[Title 29 CFR ]
[Code of Federal Regulations (annual edition) - July 1, 1998 Edition]
[From the U.S. Government Printing Office]


[[Page i]]

          29



          Labor



          PARTS 900 TO 1899

                         Revised as of July 1, 1998

          CONTAINING
          A CODIFICATION OF DOCUMENTS
          OF GENERAL APPLICABILITY
          AND FUTURE EFFECT
          AS OF JULY 1, 1998

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



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                     U.S. GOVERNMENT PRINTING OFFICE
                            WASHINGTON : 1998



               For sale by U.S. Government Printing Office
 Superintendent of Documents, Mail Stop: SSOP, Washington, DC 20402-9328



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                            Table of Contents



                                                                    Page
  Explanation.................................................       v

  Title 29:
      Subtitle B--Regulations Relating to Labor (continued):
    Chapter IX--Construction Industry Collective Bargaining 
        Commission............................................       5
    Chapter X--National Mediation Board.......................       9
    Chapter XII--Federal Mediation and Conciliation Service...      29
    Chapter XIV--Equal Employment Opportunity Commission......     135
  Finding Aids:
    Table of CFR Titles and Chapters..........................     403
    Alphabetical List of Agencies Appearing in the CFR........     421
    List of CFR Sections Affected.............................     431



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   Cite this Code:  CFR

   To cite the regulations in this volume use title, part and
   section number. Thus,  29 CFR 901.1 refers to title 29, part
   901, section 1.

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                               EXPLANATION

    The Code of Federal Regulations is a codification of the general and 
permanent rules published in the Federal Register by the Executive 
departments and agencies of the Federal Government. The Code is divided 
into 50 titles which represent broad areas subject to Federal 
regulation. Each title is divided into chapters which usually bear the 
name of the issuing agency. Each chapter is further subdivided into 
parts covering specific regulatory areas.
    Each volume of the Code is revised at least once each calendar year 
and issued on a quarterly basis approximately as follows:

Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1
    The appropriate revision date is printed on the cover of each 
volume.

LEGAL STATUS

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evidence of the text of the original documents (44 U.S.C. 1510).

HOW TO USE THE CODE OF FEDERAL REGULATIONS

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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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Many agencies have begun publishing numerous OMB control numbers as 
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OBSOLETE PROVISIONS

    Provisions that become obsolete before the revision date stated on 
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CFR INDEXES AND TABULAR GUIDES

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the revision dates of the 50 CFR titles.

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in the Code of Federal Regulations.

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                              Raymond A. Mosley,
                                    Director,
                          Office of the Federal Register.

July 1, 1998.



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                               THIS TITLE

    Title 29--Labor is composed of nine volumes. The parts in these 
volumes are arranged in the following order: parts 0-99, parts 100-499, 
parts 500-899, parts 900-1899, parts 1900-1910 (Secs. 1901.1-1910.999), 
part 1910 (Sec. 1910.1000-End), parts 1911-1925, part 1926, and part 
1927 to end. The contents of these volumes represent all current 
regulations codified under this title as of July 1, 1998.

    Subject indexes appear following the occupational safety and health 
standards (part 1910), and following the safety and health regulations 
for: Longshoring (part 1918), Gear Certification (part 1919), and 
Construction (part 1926).

    Redesignation tables appear in the Finding Aids section of the 
eighth volume.

    For this volume, Gwendolyn J. Henderson was Chief Editor. The Code 
of Federal Regulations publication program is under the direction of 
Frances D. McDonald, assisted by Alomha S. Morris.

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[[Page 1]]



                             TITLE 29--LABOR




                (This volume contains parts 900 to 1899)

----------------------------------------------------------------------
                                                                    Part

          SUBTITLE B--Regulations Relating to Labor (Continued)

Chapter ix-- Construction Industry Collective Bargaining 
  Commission................................................         901


Chapter x-- National Mediation Board........................        1200


Chapter xii-- Federal Mediation and Conciliation Service....        1400


Chapter xiv-- Equal Employment Opportunity Commission.......        1600


Cross References: Railroad Retirement Board: See Employees' Benefits, 20 
  CFR chapter II.

  Social Security Administration: See Employees' Benefits, 20 CFR 
Chapter III.

   Other regulations issued by the Department of Labor appear in 20 CFR 
Chapters I, IV, V, VI, and VII; 29 CFR subtitle A, chapters II, IV, 
XVII, and XXV; 41 CFR chapters 50, 60, and 61; and 48 CFR chapter 29. 
For Standards for a Merit System of Personnel Administration: See 5 CFR 
part 900.

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          Subtitle B--Regulations Relating to Labor (Continued)

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  CHAPTER IX--CONSTRUCTION INDUSTRY COLLECTIVE BARGAINING COMMISSION




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Part                                                                Page
900

[Reserved]

901             Policy statement on collective bargaining 
                    disputes and applicable procedures......           7

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PART 900 [RESERVED]






PART 901--POLICY STATEMENT ON COLLECTIVE BARGAINING DISPUTES AND APPLICABLE PROCEDURES--Table of Contents




Sec.
901.1  Scope and application.
901.2  Policy of Commission.
901.3  Participation by Commission.
901.4  Handling of disputes by Commission.
901.5  Agreement to refrain from strike or lockout.
901.6  Authority of Executive Director.
901.7  Inquiries and correspondence with Commission.

    Authority: E.O. 11482; 3 CFR, 1969 Comp., p. 139.

    Source: 35 FR 4752, Mar. 19, 1970, unless otherwise noted.



Sec. 901.1  Scope and application.

    The Construction Industry Collective Bargaining Commission hereby 
states its policy and sets forth procedures for handling disputes 
involving the standard labor and management organizations in the 
building and construction industry. These procedures are pursuant to the 
authority set forth in Executive Order 11482, dated September 22, 1969. 
Section 6 of the order states that, ``The Commission is authorized to 
issue such rules and regulations, and to adopt such procedures governing 
its affairs, including the conduct of its disputes settlement functions, 
as shall be necesssary and appropriate to effectuate the objectives of 
this order.''



Sec. 901.2  Policy of Commission.

    Section 3(c) of the Executive order provides that it is an objective 
of the Commission ``to establish more effective machinery for the 
resolution of disputes over the terms of collective bargaining 
agreements which at the same time recognizes the interests of each 
branch of the industry and preserves existing procedures that have been 
effective.'' Accordingly, it is the policy of the Commission:
    (a) To encourage each branch of the industry without such a 
procedure to establish its own procedures to facilitate the settlement 
of disputes over the terms and application of collective bargaining 
agreements.
    (b) To encourage each branch of the industry having such a 
procedure, but which procedure is limited in application, to expand the 
application of such procedure.
    (c) To encourage parties in each branch of construction with a 
procedure to utilize that machinery in all possible cases.
    (d) To encourage the Federal Mediation and Conciliation Service to 
refer disputes wherever possible to such machinery established in 
various branches of the industry.



Sec. 901.3  Participation by Commission.

    (a) The Commission will consider participation in specific disputes 
which conform with the following criteria:
    (1) The disputes will have a significant impact on construction 
activity in the area involved.
    (2) The dispute concerns negotiations for a new or expiring 
agreement, or a question of interpretation or application of an existing 
agreement, where all other internal methods of resolution have been 
exhausted.
    (b) The Commission will normally refrain from participating in 
specific disputes where;
    (1) The dispute involved concerns jurisdiction of work.
    (2) The parties have failed to utilize an independent disputes 
handling procedure presently in existence or subsequently established. 
(A number of such procedures exists currently in several branches of the 
industry.)
    (3) The parties have not fully utilized the service of the Federal 
Mediation and Conciliation Service.
    (c) In setting forth a disputes procedure the Commission emphasizes 
that it is not intended to provide a substitute for the collective 
bargaining process. Nor is it a means to bypass or neglect existing 
mediation facilities or industry branch dispute settling procedures. The 
standard procedure for the Commission to accept cognizance over a 
collective bargaining dispute is through referral to the Commission by 
the Director of the Federal Mediation and Conciliation Service. The 
Commission will exercise its judgment in accepting or declining specific 
disputes. The staff of the Commission is directed to maintain close 
contact with the

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Federal Mediation and Conciliation Service on all aspects of bargaining 
in the construction industry and to see that critical disputes are 
brought to the attention of the appropriate International Union and the 
national offices of an appropriate contractor association.



Sec. 901.4  Handling of disputes by Commission.

    The Commission will determine the particular method of dispute 
handling appropriate for each dispute. Section 5(a) of the Executive 
order states,

    The Commission or a panel designated by the Commission may, with the 
assistance of national labor organizations and national contractor 
associations where appropriate, seek to mediate such dispute, or make an 
investigation of the facts of the dispute and make such recommendations 
to the parties for the resolution thereof as it determines appropriate.



Sec. 901.5  Agreement to refrain from strike or lockout.

    As part of its conditions for entering the dispute, the Commission 
may request the parties to continue the terms or conditions of 
employment without the occurrence of a strike or lockout for a 30-day 
period, as set forth in section 5(a) of the Executive Order, to enhance 
the functions of mediation and other related activities.



Sec. 901.6  Authority of Executive Director.

    The Commission delegates authority to the Executive Director to 
accept or reject requests for Commission involvement in those instances 
where a Commission meeting would not occur in sufficient time prior to a 
contract expiration date to permit such involvement.



Sec. 901.7  Inquiries and correspondence with Commission.

    Inquiries to the Commission about the status of disputes or other 
matters should be directed as follows:

Executive Director, Construction Industry Collective Bargaining 
Commission, room 5220, Department of Labor Building, 14th and 
Constitution Avenue NW., Washington, DC 20210. Telephone: (202) 961-
3736.

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                 CHAPTER X--NATIONAL MEDIATION BOARD




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Part                                                                Page
1201            Definitions.................................          11
1202            Rules of procedure..........................          11
1203            Applications for service....................          14
1204            Labor contracts.............................          15
1205            Notices in re: Railway Labor Act............          16
1206            Handling representation disputes under the 
                    Railway Labor Act.......................          16
1207            Establishment of special adjustment boards..          18
1208            Availability of information.................          20
1209            Public observation of National Mediation 
                    Board meetings..........................          24


Abbreviation:
    The following abbreviation is used in this chapter:

    NMB=National Mediation Board.

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PART 1201--DEFINITIONS--Table of Contents




Sec.
1201.1  Carrier.
1201.2  Exceptions.
1201.3  Determination as to electric lines.
1201.4  Employee.
1201.5  Exceptions.
1201.6  Representatives.

    Authority: 44 Stat. 577, as amended; 45 U.S.C. 151-163.

    Source: 11 FR 177A-922, Sept. 11, 1946, unless otherwise noted. 
Redesignated at 13 FR 8740, Dec. 30, 1948.



Sec. 1201.1  Carrier.

    The term carrier includes any express company, sleeping car company, 
carrier by railroad, subject to the Interstate Commerce Act (24 Stat. 
379, as amended; 49 U.S.C. 1 et seq.), and any company which is directly 
or indirectly owned or controlled by or under common control with any 
carrier by railroad and which operates any equipment or facilities or 
performs any service (other than trucking service) in connection with 
the transportation, receipt, delivery, elevation, transfer in transit, 
refrigeration or icing, storage, and handling of property transported by 
railroad, and any receiver, trustee, or other individual or body, 
judicial or otherwise, when in the possession of the business of any 
such ``carrier.''



Sec. 1201.2  Exceptions.

    (a) The term ``carrier'' shall not include any street, interurban, 
or suburban electric railway, unless such railway is operating as a part 
of a general steam-railroad system of transportation, but shall not 
exclude any part of the general steam-railroad system of transportation 
now or hereafter operated by any other motive power.
    (b) The term ``carrier'' shall not include any company by reason of 
its being engaged in the mining of coal, the supplying of coal to 
carrier where delivery is not beyond the tipple, and the operation of 
equipment or facilities therefor or any of such activities.



Sec. 1201.3  Determination as to electric lines.

    The Interstate Commerce Commission is hereby authorized and directed 
upon request of the Mediation Board or upon complaint of any part 
interested to determine after hearing whether any line operated by 
electric power falls within the terms of this part.



Sec. 1201.4  Employee.

    The term employee as used in this part includes every person in the 
service of a carrier (subject to its continuing authority to supervise 
and direct the manner of rendition of his service) who performs any work 
defined as that of an employee or subordinate official in the orders of 
the Interstate Commerce Commission now in effect, and as the same may be 
amended or interpreted by orders hereafter entered by the Commission 
pursuant to the authority which is hereby conferred upon it to enter 
orders amending or interpreting such existing orders: Provided, however, 
That no occupational classification made by order of the Interstate 
Commerce Commission shall be construed to define the crafts according to 
which railway employees may be organized by their voluntary action, nor 
shall the jurisdiction or powers of such employee organizations be 
regarded as in any way limited or defined by the provisions of this Act 
or by the orders of the Commission.



Sec. 1201.5  Exceptions.

    The term ``employee'' shall not include any individual while such 
individual is engaged in the physical operations consisting of the 
mining of coal, the preparation of coal, the handling (other than 
movement by rail with standard locomotives) of coal not beyond the mine 
tipple, or the loading of coal at the tipple.



Sec. 1201.6  Representatives.

    The term representative means any person or persons, labor union, 
organization, or corporation designated either by a carrier or group of 
carriers or by its or their employees, to act for it or them.



PART 1202--RULES OF PROCEDURE--Table of Contents




Sec.
1202.1  Mediation.
1202.2  Interpretation of mediation agreements.
1202.3  Representation disputes.

[[Page 12]]

1202.4  Secret ballot.
1202.5  Rules to govern elections.
1202.6  Access to carrier records.
1202.7  Who may participate in elections.
1202.8  Hearings on craft or class.
1202.9  Appointment of arbitrators.
1202.10  Appointment of referees.
1202.11  Emergency boards.
1202.12  National Air Transport Adjustment Board.
1202.13  Air carriers.
1202.14  Labor members of Adjustment Board.
1202.15  Length of briefs in NMB hearing proceedings.

    Authority: 44 Stat. 577, as amended; 45 U.S.C. 151-163.

    Source: 11 FR 177A-922, Sept. 11, 1946, unless otherwise noted. 
Redesignated at 13 FR 8740, Dec. 30, 1948.



Sec. 1202.1  Mediation.

    The mediation services of the Board may be invoked by the parties, 
or either party, to a dispute between an employee or group of employees 
and a carrier concerning changes in rates of pay, rules, or working 
conditions not adjusted by the parties in conference; also, concerning a 
dispute not referable to the National Railroad Adjustment Board or 
appropriate airline adjustment board, when not adjusted in conference 
between the parties, or where conferences are refused. The National 
Mediation Board may proffer its services in case any labor emergency is 
found by it to exist at any time.



Sec. 1202.2  Interpretation of mediation agreements.

    Under section 5, Second, of title I of the Railway Labor Act, in any 
case in which a controversy arises over the meaning or application of 
any agreement reached through mediation, either party to said agreement, 
or both, may apply to the National Mediation Board for an interpretation 
of the meaning or application of such agreement. Upon receipt of such 
request, the Board shall, after a hearing of both sides, give its 
interpretation within 30 days.



Sec. 1202.3  Representation disputes.

    If any dispute shall arise among a carrier's employees as to who are 
the representatives of such employees designated and authorized in 
accordance with the requirements of the Railway Labor Act, it is the 
duty of the Board, upon request of either party to the dispute, to 
investigate such dispute and certify to both parties, in writing, the 
name or names of individuals or organizations that have been designated 
and authorized to represent the employees involved in the dispute, and 
to certify the same to the carrier.



Sec. 1202.4  Secret ballot.

    In conducting such investigation, the Board is authorized to take a 
secret ballot of the employees involved, or to utilize any other 
appropriate method of ascertaining the names of their duly designated 
and authorized representatives in such manner as shall insure the choice 
of representatives by the employees without interference, influence, or 
coercion exercised by the carrier.



Sec. 1202.5  Rules to govern elections.

    In the conduct of a representation election, the Board shall 
designate who may participate in the election, which may include a 
public hearing on craft or class, and establish the rules to govern the 
election, or may appoint a committee of three neutral persons who after 
hearing shall within 10 days designate the employees who may participate 
in the election.



Sec. 1202.6  Access to carrier records.

    Under the Railway Labor Act the Board has access to and has power to 
make copies of the books and records of the carriers to obtain and 
utilize such information as may be necessary to fulfill its duties with 
respect to representatives of carrier employees.



Sec. 1202.7  Who may participate in elections.

    As mentioned in Sec. 1202.3, when disputes arise between parties to 
a representation dispute, the National Mediation Board is authorized by 
the Act to determine who may participate in the selection of employees 
representatives.



Sec. 1202.8  Hearings on craft or class.

    In the event the contesting parties or organizations are unable to 
agree on the employees eligible to participate in

[[Page 13]]

the selection of representatives, and either party makes application by 
letter for a formal hearing before the Board to determine the dispute, 
the Board may in its discretion hold a public hearing, at which all 
parties interested may present their contentions and argument, and at 
which the carrier concerned is usually invited to present factual 
information. At the conclusion of such hearings the Board customarily 
invites all interested parties to submit briefs supporting their views, 
and after considering the evidence and briefs, the Board makes a 
determination or finding, specifying the craft or class of employees 
eligible to participate in the designation of representatives.



Sec. 1202.9  Appointment of arbitrators.

    Section 5, Third, (a) of the Railway Labor Act provides in the event 
mediation of a dispute is unsuccessful, the Board endeavors to induce 
the parties to submit their controversy to arbitration. If the parties 
so agree, and the arbitrators named by the parties are unable to agree 
upon the neutral arbitrator or arbitrators, as provided in section 7 of 
the Railway Labor Act, it becomes the duty of the Board to name such 
neutral arbitrators and fix the compensation for such service. In 
performing this duty, the Board is required to appoint only those whom 
it deems wholly disinterested in the controversy, and to be impartial 
and without bias as between the parties thereto.



Sec. 1202.10  Appointment of referees.

    Section 3, Third, (e) title I of the act makes it the duty of the 
National Mediation Board to appoint and fix the compensation for service 
a neutral person known as a ``referee'' in any case where a division of 
the National Railroad Adjustment Board becomes deadlocked on an award, 
such referee to sit with the division and make an award. The National 
Mediation Board in appointing referees is bound by the same requirements 
that apply in the appointment of neutral arbitrators as outlined in 
Sec. 1202.9



Sec. 1202.11  Emergency boards.

    Under the terms of section 10 of the Railway Labor Act, if a dispute 
between a carrier and its employees is not adjusted through mediation or 
the other procedures prescribed by the act, and should, in the judgment 
of the National Mediation Board, threaten to interrupt interstate 
commerce to a degree such as to deprive any section of the country of 
essential transportation service, the Board shall notify the President, 
who may thereupon, in his discretion, create an emergency board to 
investigate and report to him respecting such dispute. An emergency 
board may be composed of such number of persons as the President 
designates, and persons so designated shall not be pecuniarily or 
otherwise interested in any organization of employees or any carrier. 
The compensation of emergency board members is fixed by the President. 
An emergency board is created separately in each instance, and is 
required to investigate the facts as to the dispute and report thereon 
to the President within 30 days from the date of its creation.



Sec. 1202.12  National Air Transport Adjustment Board.

    Under section 205, title II, of the Railway Labor Act, when in the 
judgment of the National Mediation Board it becomes necessary to 
establish a permanent national board of adjustment for the air carriers 
subject to the act to provide for the prompt and orderly settlement of 
disputes between the employees and the carriers growing out of 
grievances, or out of the application or interpretation of working 
agreements, the Board is empowered by its order made, published, and 
served, to direct the air carriers and labor organizations, national in 
scope, to select and designate four representatives to constitute a 
Board known as the National Air Transport Adjustment Board. Two members 
each shall be selected by the air carriers and the labor organizations 
of their employees. Up to the present time, it has not been considered 
necessary to establish the National Air Transport Adjustment Board.



Sec. 1202.13  Air carriers.

    By the terms of title II of the Railway Labor Act, which was 
approved April 10, 1936, all of title I, except section 3, which relates 
to the National

[[Page 14]]

Railroad Adjustment Board, was extended to cover every common carrier by 
air engaged in interstate or foreign commerce, and every carrier by air 
transporting mail for or under contract with the United States 
Government, and to all employees or subordinate officials of such air 
carriers.



Sec. 1202.14  Labor members of Adjustment Board.

    Section 3, First, (f) of title I of the Railway Labor Act relating 
to the settlement of disputes among labor organizations as to the 
qualification of any such organization to participate in the selection 
of labor members of the Adjustment Board, places certain duties upon the 
National Mediation Board. This section of the act is quoted below:

    (f) In the event a dispute arises as to the right of any national 
labor organization to participate as per paragraph (c) of this section 
in the selection and designation of the labor members of the Adjustment 
Board, the Secretary of Labor shall investigate the claim of such labor 
organization to participate, and if such claim in the judgment of the 
Secretary of Labor has merit, the secretary shall notify the Mediation 
Board accordingly, and within 10 days after receipt of such advice the 
Mediation Board shall request those national labor organizations duly 
qualified as per paragraph (c) of this section to participate in the 
selection and designation of the labor members of the Adjustment Board 
to select a representative. Such representatives, together with a 
representative likewise designated by the claimant, and a third or 
neutral party designated by the Mediation Board, constituting a board of 
three, shall within 30 days after the appointment of the neutral member 
investigate the claims of the labor organization desiring participation 
and decide whether or not it was organized in accordance with section 2, 
hereof, and is otherwise properly qualified to participate in the 
selection of the labor members of the Adjustment Board, and the findings 
of such boards of three shall be final and binding.



Sec. 1202.15  Length of briefs in NMB hearing proceedings.

    (a) In the event briefs are authorized by the Board or the assigned 
Hearing Officer, principal briefs shall not exceed fifty (50) pages in 
length and reply briefs, if permitted, shall not exceed twenty-five (25) 
pages in length unless the participant desiring to submit a brief in 
excess of such limitation requests a waiver of such limitation from the 
Board which is received within five (5) days of the date on which the 
briefs were ordered or, in the case of a reply brief, within five (5) 
days of receipt of the principal brief, and in such cases the Board may 
require the filing of a summary of argument, suitably paragraphed which 
shoud be a succinct, but accurate and clear, condensation of the 
argument actually made in the brief.
    (b) The page limitations provided by this section (Sec. 1202.15) are 
exclusive of those pages containing the table of contents, tables of 
citations and any copies of administrative or court decisions which have 
been cited in the brief. All briefs shall be submitted on standard 8\1/
2\ x 11 inch paper with double spaced type.
    (c) Briefs not complying with this section (Sec. 1202.15) will be 
returned promptly to their initiators.
[44 FR 10601, Feb. 22, 1979]



PART 1203--APPLICATIONS FOR SERVICE--Table of Contents




Sec.
1203.1  Mediation services.
1203.2  Investigation of representation disputes.
1203.3  Interpretation of mediation agreements.

    Authority: 44 Stat. 577, as amended; 45 U.S.C. 151-163.



Sec. 1203.1  Mediation services.

    Applications for the mediation services of the National Mediation 
Board under section 5, First, of the Railway Labor Act, may be made on 
printed forms N.M.B. 2, copies of which may be secured from the Board's 
Secretary. Such applications and all correspondence connected therewith 
should be submitted in duplicate. The application should show the exact 
nature of the dispute, the number of employees involved, name of the 
carrier and name of the labor organization, date of agreement between 
the parties, if any, date and copy of notice served by the invoking 
party to the other and date of final conference between the parties. 
Application should be signed by the highest officer of the carrier who 
has been designated to handle disputes

[[Page 15]]

under the Railway Labor Act, or by the chief executive of the labor 
organization, whichever party files the application. These applications, 
after preliminary investigation in the Board's officer, are given docket 
number in series ``A'' and the cases are assigned for mediation to Board 
members or to mediators on the Board's staff.
[11 FR 177A-923, Sept. 11, 1946. Redesignated at 13 FR 8740, Dec. 30, 
1948]



Sec. 1203.2  Investigation of representation disputes.

    Applications for the services of the National Mediation Board under 
section 2, ninth, of the Railway Labor Act to investigate representation 
disputes among carriers' employees may be made on printed forms NMB-3, 
copies of which may be secured from the Board's Executive Secretary. 
Such applications and all correspondence connected therewith should be 
filed in duplicate and the applications should be accompanied by signed 
authorization cards from the employees composing the craft or class 
involved in the dispute. The applications should show specifically the 
name or description of the craft of class of employees involved, the 
name of the invoking organization, the name of the organization 
currently representing the employees, if any, and the estimated number 
of employees in each craft or class involved. The applications should be 
signed by the chief executive of the invoking organization, or other 
authorized officer of the organization. These disputes are given docket 
numbers in series ``R''.
[43 FR 30053, July 13, 1978]



Sec. 1203.3  Interpretation of mediation agreements.

    (a) Applications may be filed with the Board's Secretary under 
section 5, Second, of the Railway Labor Act, for the interpretation of 
agreements reached in mediation under section 5, First. Such 
applications may be made by letter from either party to the mediation 
agreement stating the specific question on which an interpretation is 
desired.
    (b) This function of the National Mediation Board is not intended to 
conflict with the provisions of section 3 of the Railway Labor Act. 
Providing for interpretation of agreements by the National Railroad 
Adjustment Board. Many complete working agreements are revised with the 
aid of the Board's mediating services, and it has been the Board's 
policy that disputes involving the interpretation or application of such 
agreements should be handled by the Adjustment Board. Under this section 
of the law the Board when called upon may only consider and render an 
interpretation on the specific terms of an agreement actually signed in 
mediation, and not for matters incident or corollary thereto.
[11 FR 177A-923, Sept. 11, 1946. Redesignated at 13 FR 8740, Dec. 30, 
1948]



PART 1204--LABOR CONTRACTS--Table of Contents




Sec.
1204.1  Making and maintaining contracts.
1204.2  Arbitrary changing of contracts.
1204.3  Filing of contracts.

    Authority: 44 Stat. 577, as amended; 45 U.S.C. 151-163.

    Source: 11 FR 177A-924, Sept. 11, 1946, unless otherwise noted. 
Redesignated at 13 FR 8740, Dec. 30, 1948.



Sec. 1204.1  Making and maintaining contracts.

    It is the duty of all carriers, their officers, agents, and 
employees to exert every reasonable effort to make and maintain 
contracts covering rates of pay, rules, and working conditions.



Sec. 1204.2  Arbitrary changing of contracts.

    No carrier, its officers, or agents shall change the rates of pay, 
rules, or working conditons of its employees, as a class as embodied in 
agreements except in the manner prescribed in such agreements or in 
section 6 of the Railway Labor Act.



Sec. 1204.3  Filing of contracts.

    Section 5, Third, (e) of the Railway Labor Act requires all carriers 
to file with the National Mediation Board copies of all contracts in 
effect with organizations representing their employees, covering rates 
of pay, rules, and working conditions. Several thousand of such 
contracts are on file in the Board's Washington office and are

[[Page 16]]

available for inspection by interested parties.



PART 1205--NOTICES IN RE: RAILWAY LABOR ACT--Table of Contents




Sec.
1205.1  Handling of disputes.
1205.2  Employees' Bill of Rights.
1205.3  General Order No. 1.
1205.4  Substantive rules.

    Authority: 44 Stat. 577, as amended; 45 U.S.C. 151-163.

    Source: 11 FR 177A-924, Sept. 11, 1946, unless otherwise noted. 
Redesignated at 13 FR 8740, Dec. 30, 1948.



Sec. 1205.1  Handling of disputes.

    Section 2, Eighth, of the Railway Labor Act provides that every 
carrier shall notify its employees by printed notices in such form and 
posted at such times and places as shall be specified by order of the 
Mediation Board and requires that all disputes between a carrier and its 
employees will be handled in accordance with the requirements of the 
act. In such notices there must be printed verbatim, in large type, the 
third, fourth, and fifth paragraphs of said section 2, Eighth, of the 
Railway Labor Act.



Sec. 1205.2  Employees' Bill of Rights.

    The provisions of the third, fourth, and fifth paragraphs of section 
2 are by law made a part of the contract of employment between the 
carrier and each employee and shall be binding upon the parties 
regardless of any other express or implied agreements between them. 
Under these provisions the employees are guaranteed the right to 
organize without interference of management, the right to determine who 
shall represent them, and the right to bargain collectively through such 
representatives. This section makes it unlawful for any carrier to 
require any person seeking employment to sign any contract promising to 
join or not to join a labor organization. Violation of the foregoing 
provisions is a misdemeanor under the law and subjects the offender to 
punishment.



Sec. 1205.3  General Order No. 1.

    General Order No. 1, issued August 14, 1934, is the only order the 
Board has issued since its creation in 1934. This order sent to the 
President of each carrier coming under the act transmitted a sample copy 
of the Mediation Board's Form MB-1 known as ``Notice in re: Railway 
Labor Act.'' The order prescribes that such notices are to be standard 
as to contents, dimensions of sheet, and size of type and that they 
shall be posted promptly and maintained continuously in readable 
condition on all the usual and customary bulletin boards giving 
information to employees and at such other places as may be necessary to 
make them accessible to all employees. Such notices must not be hidden 
by other papers or otherwise obscured from view.



Sec. 1205.4  Substantive rules.

    The only substantive rules issued by the National Mediation Board 
are those authorized under section 2, Ninth, of the Railway Labor Acts 
to implement the procedure of determining employee representation.
[12 FR 2451, April 16, 1947. Redesignated at 13 FR 8740, Dec. 30, 1948]



PART 1206--HANDLING REPRESENTATION DISPUTES UNDER THE RAILWAY LABOR ACT--Table of Contents




Sec.
1206.1  Run-off elections.
1206.2  Percentage of valid authorizations required to determine 
          existence of a representation dispute.
1206.3  Age of authorization cards.
1206.4  Time limits on applications.
1206.5  Necessary evidence of intervenor's interest in a representation 
          dispute.
1206.6  Eligibility of dismissed employees to vote.
1206.7  Construction of this part.
1206.8  Amendment or rescission of rules in this part.

    Authority: 44 Stat. 577, as amended; 45 U.S.C. 151-163.

    Source: 12 FR 3083, May 10, 1947, unless otherwise noted. 
Redesignated at 13 FR 8740, Dec. 30, 1948.



Sec. 1206.1  Run-off elections.

    (a) If in an election among any craft or class no organization or 
individual receives a majority of the legal votes cast, or in the event 
of a tie vote, a second or run-off election shall be held

[[Page 17]]

forthwith: Provided, That a written request by an individual or 
organization entitled to appear on the run-off ballot is submitted to 
the Board within ten (10) days after the date of the report of results 
of the first election.
    (b) In the event a run-off election is authorized by the Board, the 
names of the two individuals or organizations which received the highest 
number of votes cast in the first election shall be placed on the run-
off ballot, and no blank line on which votes may write in the name of 
any organization or individual will be provided on the run-off ballot.
    (c) Employees who were eligible to vote at the conclusion of the 
first election shall be eligible to vote in the run-off election except 
(1) those employees whose employment relationship has terminated, and 
(2) those employees who are no longer employed in the craft or class.



Sec. 1206.2  Percentage of valid authorizations required to determine existence of a representation dispute.

    (a) Where the employees involved in a representation dispute are 
represented by an individual or labor organization, either local or 
national in scope and are covered by a valid existing contract between 
such representative and the carrier a showing of proved authorizations 
(checked and verified as to date, signature, and employment status) from 
at least a majority of the craft or class must be made before the 
National Mediation Board will authorize an election or otherwise 
determine the representation desires of the employees under the 
provisions of section 2, Ninth, of the Railway Labor Act.
    (b) Where the employees involved in a representation dispute are 
unrepresented, a showing of proved authorizations from at least thirty-
five (35) percent of the employees in the craft or class must be made 
before the National Mediation Board will authorize an election or 
otherwise determine the representation desires of the employees under 
the provisions of section 2, Ninth, of the Railway Labor Act.



Sec. 1206.3  Age of authorization cards.

    Authorizations must be signed and dated in the employee's own 
handwriting or witnessed mark. No authorizations will be accepted by the 
National Mediation Board in any employee representation dispute which 
bear a date prior to one year before the date of the application for the 
investigation of such dispute.



Sec. 1206.4  Time limits on applications.

    Except in unusual or extraordinary circumstances, the National 
Mediation Board will not accept an application for investigation of a 
representation dispute among employees of a carrier:
    (a) For a period of two (2) years from the date of a certification 
covering the same craft or class of employees on the same carrier, and
    (b) For a period of one (1) year from the date on which:
    (1) The Board dismissed a docketed application after having 
conducted an election among the same craft or class of employees on the 
same carrier and less than a majority of eligible voters particpated in 
the election; or
    (2) The Board dismissed a docketed application covering the same 
craft or class of employees on the same carrier because no dispute 
existed as defined in Sec. 1206.2 of these rules; or
    (3) The Board dismissed a docketed application after the applicant 
withdrew an application covering the same craft or class of employees on 
the same carrier after the application was docketed by the Board.
[44 FR 10602, Feb. 22, 1979]



Sec. 1206.5  Necessary evidence of intervenor's interest in a representation dispute.

    In any representation dispute under the provisons of section 2, 
Ninth, of the Railway Labor Act, an intervening individual or 
organization must produce proved authorization from at least thirty-five 
(35) percent of the craft or class of employees involved to warrant 
placing the name of the intervenor on the ballot.

[[Page 18]]



Sec. 1206.6  Eligibility of dismissed employees to vote.

    Dismissed employees whose requests for reinstatement account of 
wrongful dismissal are pending before proper authorities, which includes 
the National Railroad Adjustment Board or other appropriate adjustment 
board, are eligible to participate in elections among the craft or class 
of employees in which they are employed at time of dismissal. This does 
not include dismissed employees whose guilt has been determined, and who 
are seeking reinstatement on a leniency basis.



Sec. 1206.7  Construction of this part.

    The rules and regulations in this part shall be liberally construed 
to effectuate the purposes and provisions of the act.



Sec. 1206.8  Amendment or rescission of rules in this part.

    (a) Any rule or regulation in this part may be amended or rescinded 
by the Board at any time.
    (b) Any interested person may petition the Board, in writing, for 
the issuance, amendment, or repeal of a rule or regulation in this part. 
An original and three copies of such petition shall be filed with the 
Board in Washington, DC, and shall state the rule or regulation proposed 
to be issued, amended, or repealed, together with a statement of grounds 
in support of such petition.
    (c) Upon the filing of such petition, the Board shall consider the 
same, and may thereupon either grant or deny the petition in whole or in 
part, conduct an appropriate hearing thereon and make other disposition 
of the petition. Should the petition be denied in whole or in part, 
prompt notice shall be given of the denial, accompanied by a simple 
statement of the grounds unless the denial is self-explanatory.



PART 1207--ESTABLISHMENT OF SPECIAL ADJUSTMENT BOARDS--Table of Contents




Sec.
1207.1  Establishment of special adjustment boards (PL Boards).
1207.2  Requests for Mediation Board action.
1207.3  Compensation of neutrals.
1207.4  Designation of PL Boards, filing of agreements, and disposition 
          of records.

    Authority: 44 Stat. 577, as amended; 45 U.S.C. 151-163.

    Source: 31 FR 14644, Nov. 17, 1966, unless otherwise noted.



Sec. 1207.1  Establishment of special adjustment boards (PL Boards).

    Public Law 89-456 (80 Stat. 208) governs procedures to be followed 
by carriers and representatives of employees in the establishment and 
functioning of special adjustment boards, hereinafter referred to as PL 
Boards. Public Law 89-456 requires action by the National Mediation 
Board in the following circumstances:
    (a) Designation of party member of PL Board. Public Law 89-456 
provides that within thirty (30) days from the date a written request is 
made by an employee representative upon a carrier, or by a carrier upon 
an employee representative, for the establishment of a PL Board, an 
agreement establishing such a Board shall be made. If, however, one 
party fails to designate a member of the Board, the party making the 
request may ask the Mediation Board to designate a member on behalf of 
the other party. Upon receipt of such request, the Mediation Board will 
notify the party which failed to designate a partisan member for the 
establishment of a PL Board of the receipt of the request. The Mediation 
Board will then designate a representative on behalf of the party upon 
whom the request was made. This representative will be an individual 
associated in interest with the party he is to represent. The designee, 
together with the member appointed by the party requesting the 
establishment of the PL Board, shall constitute the Board.
    (b) Appointment of a neutral to determine matters concerning the 
establishment and/or jurisdiction of a PL Board. (1) When the members of 
a PL Board constituted in accordance with paragraph (a) of this section, 
for the purpose of resolving questions concerning the establishment of 
the Board and/or its jurisdiction, are unable to resolve these matters, 
then and in that event, either party may ten (10) days thereafter 
request the Mediation Board to appoint a

[[Page 19]]

neutral member to determine these procedural issues.
    (2) Upon receipt of this request, the Mediation Board will notify 
the other party to the PL Board. The Mediation Board will then designate 
a neutral member to sit with the PL Board and resolve the procedural 
issues in dispute. When the neutral has determined the procedural issues 
in dispute, he shall cease to be a member of the PL Board.
    (c) Appointment of neutral to sit with PL Boards and dispose of 
disputes. (1) When the members of a PL Board constituted by agreement of 
the parties, or by the appointment of a party member by the Mediation 
Board, as described in paragraph (a) of this section, are unable within 
ten (10) days after their failure to agree upon an award to agree upon 
the selection of a neutral person, either member of the Board may 
request the Mediation Board to appoint such neutral person and upon 
receipt of such request, the Mediation Board shall promptly make such 
appointment.
    (2) A request for the appointment of a neutral under paragraph (b) 
of this section or this paragraph (c) shall;
    (i) Show the authority for the request--Public Law 89-456, and
    (ii) Define and list the proposed specific issues or disputes to be 
heard.



Sec. 1207.2  Requests for Mediation Board action.

    (a) Requests for the National Mediation Board to appoint neutrals or 
party representatives should be made on NMB Form 5.
    (b) Those authorized to sign request on behalf on parties:
    (1) The ``representative of any craft or class of employees of a 
carrier,'' as referred to in Public Law 89-456, making request for 
Mediation Board action, shall be either the General Chairman, Grand 
Lodge Officer (or corresponding officer of equivalent rank), or the 
Chief Executive of the representative involved. A request signed by a 
General Chairman or Grand Lodge Officer (or corresponding officer of 
equivalent rank) shall bear the approval of the Chief Executive of the 
employee representative.
    (2) The ``carrier representative'' making such a request for the 
Mediation Board's action shall be the highest carrier officer designated 
to handle matters arising under the Railway Labor Act.
    (c) Docketing of PL Board agreements: The National Mediation Board 
will docket agreements establishing PL Board, which agreements meet the 
requirements of coverage as specified in Public Law 89-456. No neutral 
will be appointed under Sec. 1207.1(c) until the agreement establishing 
the PL Board has been docketed by the Mediation Board.



Sec. 1207.3  Compensation of neutrals.

    (a) Neutrals appointed by the National Mediation Board. All neutral 
persons appointed by the National Mediation Board under the provisions 
of Sec. 1207.1 (b) and (c) will be compensated by the Mediation Board in 
accordance with legislative authority. Certificates of appointment will 
be issued by the Mediation Board in each instance.
    (b) Neutrals selected by the parties. (1) In cases where the party 
members of a PL Board created under Public Law 89-456 mutually agree 
upon a neutral person to be a member of the Board, the party members 
will jointly so notify the Mediation Board, which Board will then issue 
a certificate of appointment to the neutral and arrange to compensate 
him as under paragraph (a) of this section.
    (2) The same procedure will apply in cases where carrier and 
employee representatives are unable to agree upon the establishment and 
jurisdiction of a PL Board, and mutually agree upon a procedural neutral 
person to sit with them as a member and determine such issues.



Sec. 1207.4  Designation of PL Boards, filing of agreements, and disposition of records.

    (a) Designation of PL Boards. All special adjustment boards created 
under Public Law 89-456 will be designated PL Boards, and will be 
numbered serially, commencing with No. 1, in the order of their 
docketing by the National Mediation Board.
    (b) Filing of agreements. The original agreement creating the PL 
Board under Public Law 89-456 shall be filed with the National Mediation 
Board at the time it is executed by the parties.

[[Page 20]]

A copy of such agreement shall be filed by the parties with the 
Administrative Officer of the National Railroad Adjustment Board, 
Chicago, Ill.
    (c) Disposition of records. Since the provisions of section 2(a) of 
Public Law 89-456 apply also to the awards of PL Boards created under 
this Act, two copies of all awards made by the PL Boards, together with 
the record of proceedings upon which such awards are based, shall be 
forwarded by the neutrals who are members of such Boards, or by the 
parties in case of disposition of disputes by PL Boards without 
participation of neutrals, to the Administrative Officer of the National 
Railroad Adjustment Board, Chicago, Ill., for filing, safekeeping, and 
handling under the provisions of section 2(q), as may be required.



PART 1208--AVAILABILITY OF INFORMATION--Table of Contents




Sec.
1208.1  Purpose.
1208.2  Production or disclosure of material or information.
1208.3  General policy.
1208.4  Material relating to representation function.
1208.5  Material relating to mediation function--confidential.
1208.6  Fees--duplication costs and search.
1208.7  Compliance with subpoenas.

    Authority: 44 Stat. 577, as amended; 45 U.S.C. 151-163.

    Source: 39 FR 1751, Jan. 14, 1974, unless otherwise noted.



Sec. 1208.1  Purpose.

    The purpose of this part is to set forth the basic policies of the 
National Mediation Board and the National Railroad Adjustment Board in 
regard to the availability and disclosure of information in the 
possession of the NMB and the NRAB.



Sec. 1208.2  Production or disclosure of material or information.

    (a) Requests for identifiable records and copies. (1) All requests 
for National Mediation Board records shall be filed in writing by 
mailing the request or delivering it to the Executive Secretary, 
National Mediation Board, Washington, DC 20572, except that requests for 
records of the National Railroad Adjustment Board shall be in writing 
and addressed to the Administrative Officer, National Railroad 
Adjustment Board, 220 South State Street, Chicago, Illinois 60604.
    (2) The request shall reasonably describe the records being sought 
in a manner which permits identification and location of the records.
    (i) If the description is insufficient to locate the records, the 
National Mediation Board will so notify the person making the request 
and indicate the additional information needed to identify the records 
requested.
    (ii) Every reasonable effort shall be made by the Board to assist in 
the identification and location of the records sought.
    (3) Upon receipt of a request for records the Executive Secretary 
shall maintain records in reference thereto which shall include the date 
and time received, the name and address of the requester, the nature of 
the records requested, the action taken, the date the determination 
letter is sent to the requester, appeals and action thereon, the date 
any records are subsequently furnished, the number of staff hours and 
grade levels of persons who spent time responding to the request and the 
payment requested and received.
    (4) All time limitations established pursuant to this section with 
respect to processing initial requests and appeals shall commence at the 
time a written request for records is received at the Board's offices in 
Washington, DC, except for requests directed to the National Railroad 
Adjustment Board pursuant to Sec. 1208.2(a)(1) in which case the time 
limit shall commence when the request is received at the NRAB's office 
in Chicago.
    (i) An oral request for records shall not begin any time 
requirement.
    (ii) [Reserved]
    (b) Processing the initial request. (1) Time limitations. Within 10 
working days (excepting Saturdays, Sundays, and working holidays) after 
a request for records is received, the Executive Secretary shall 
determine and inform the requester by letter whether or the extent to 
which the request will be complied with, unless an extension is taken 
under paragraph (b)(3) of this section.
    (2) Such reply letter shall include:

[[Page 21]]

    (i) A reference to the specific exemption or exemptions under the 
Freedom of Information Act authorizing the withholding of the record, a 
brief explanation of how the exemption applies to the record withheld.
    (ii) The name or names and positions of the person or persons, other 
than the Executive Secretary, responsible for the denial.
    (iii) A statement that the denial may be appealed within thirty days 
by writing to the Chairman, National Mediation Board, Washington, DC 
20572, and that judicial review will thereafter be available in the 
district in which the requester resides, or has his principal place of 
business, or the district in which the agency records are situated, or 
the District of Columbia.
    (3) Extension of time. In unusual circumstances as specified in this 
paragraph, the Executive Secretary may extend the time for initial 
determination on requests up to a total of ten days (excluding 
Saturdays, Sundays, and legal public holidays). Extensions shall be 
granted in increments of five days or less and shall be made by written 
notice to the requester which sets forth the reason for the extension 
and the date on which a determination is expected to be dispatched. As 
used in this paragraph ``unusual circumstances'' means, but only to the 
extent necessary to the proper processing of the request:
    (i) The need to search for and collect the requested records from 
field facilities or other establishments that are separate from the 
office processing the request;
    (ii) The need to search for, collect, and appropriately examine a 
voluminous amount of separate and distinct records which are demanded in 
a single request; or
    (iii) The need for consultation, which shall be conducted with all 
practicable speed, with another agency or another division having 
substantial interest in the determination of the request, or the need 
for consultation among components of the agency having substantial 
subject matter interest therein.
    (4) Treatment of delay as a denial. If no determination has been 
dispatched at the end of the ten-day period, or the last extension 
thereof, the requester may deem his request denied, and exercise a right 
of appeal, in accordance with Sec. 1208.2(c). When no determination can 
be dispatched within the applicable time limit, the responsible official 
shall nevertheless continue to process the request; on expiration of the 
time limit he shall inform the requester of the reason for the delay, of 
the date on which a determination may be expected to be dispatched, and 
of his right to treat the delay as a denial and to appeal to the 
Chairman of the Board in accordance with Sec. 1208.2(c) and he may ask 
the requester to forego appeal until a determination is made.
    (c) Appeals to the Chairman of the Board. (1) When a request for 
records has been denied in whole or in part by the Executive Secretary 
or other person authorized to deny requests, the requester may, within 
thirty days of its receipt, appeal the denial to the Chairman of the 
Board. Appeals to the Chairman shall be in writing, addressed to the 
Chairman, National Mediation Board, Washington, DC 20572.
    (2) The Chairman of the Board will act upon the appeal within twenty 
working days (excluding Saturdays, Sundays and legal public holidays) of 
its receipt unless an extension is made under paragraph (c)(3) of this 
section.
    (3) In unusual circumstances as specified in this paragraph, the 
time for action on an appeal may be extended up to ten days (excluding 
Saturdays, Sundays and legal public holidays) minus any extension 
granted at the initial request level pursuant to Sec. 1208.2(b)(3). Such 
extension shall be made by written notice to the requester which sets 
forth the reason for the extension and the date on which a determination 
is expected to be dispatched. As used in this paragraph ``unusual 
circumstances'' means, but only to the extent necessary to the proper 
processing of the appeal:
    (i) The need to search for and col- lect the requested records from 
field facilities or other establishments that are separate from the 
office processing the request;
    (ii) The need to search for, collect, and appropriately examine a 
voluminous amount of separate and distinct records which are demanded in 
a single request; or

[[Page 22]]

    (iii) The need for consultation, which shall be conducted with all 
practicable speed, with another agency or another division having 
substantial interest in the determination of the request or the need for 
consultation among components of the agency having substantial subject 
matter interest therein.
    (4) Treatment of delay as a denial. If no determination on the 
appeal has been dispatched at the end of the twenty-day period or the 
last extension thereof, the requester is deemed to have exhausted his 
administrative remedies, giving rise to a right of review in a district 
court of the United States as specified in 5 U.S.C. 552(a)(4). When no 
determination can be dispatched within the applicable time limit, the 
appeal will nevertheless continue to be processed; on expiration of the 
time limit the requester shall be informed of the reason for the delay, 
of the date on which a determination may be expected to be dispatched, 
and of his right to seek judicial review in the United States district 
court in the district in which he resides or has his principal place of 
business, the district in which the Board records are situated or the 
District of Columbia. The requester may be asked to forego judicial 
review until determination of the appeal.
    (d) Indexes of certain records. (1) The National Mediation Board at 
its office in Washington, DC will maintain, make available for public 
inspection and copying, and publish quarterly (unless the Board 
determines by order published in the Federal Register that such 
publication would be unnecessary or impracticable) a current index of 
the materials available at the Board offices which are required to be 
indexed by 5 U.S.C. 552(a)(2).
    (i) A copy of such index shall be available at cost from the 
National Mediation Board, Washington, DC 20572.
    (ii) [Reserved]
    (2) The National Railroad Adjustment Board at its offices in 
Chicago, Illinois will maintain, make available for public inspection 
and copying, and publish quarterly (unless the Board determines by order 
published in the Federal Register that such publication would be 
unnecessary or impracticable) a current index of the materials available 
at the Board offices which are required to be indexed by 5 U.S.C. 
552(a)(2).
[42 FR 43627, Aug. 30, 1977]



Sec. 1208.3  General policy.

    (a) Public policy and the successful effectuation of the NMB's 
mission require that Board members and the employees of the NMB maintain 
a reputation for impartiality and integrity. Labor and management and 
other interested parties participating in mediation efforts must have 
assurance, as must labor organizations and individuals involved in 
questions of representation, that confidential information disclosed to 
Board members and employees of the NMB will not be divulged, voluntarily 
or by compulsion.
    (b) Notwithstanding this general policy, the Board will under all 
circumstances endeavor to make public as much information as can be 
allowed.



Sec. 1208.4  Material relating to representation function.

    (a) The documents constituting the record of a case, such as the 
notices of hearing, motions, rulings, orders, stenographic reports of 
the hearings, briefs, exhibits, findings upon investigation, 
determinations of craft or class, interpretations, dismissals, 
withdrawals, and certifications, are matters of official record and are 
available for inspection and examination during the usual business hours 
at the Board's offices in Washington.
    (b) This part notwithstanding, the Board will treat as confidential 
the evidence submitted in connection with a representation dispute and 
the investigatory file pertaining to the representation function.



Sec. 1208.5  Material relating to mediation function--confidential.

    (a) All files, reports, letters, memoranda, documents, and papers 
(hereinafter referred to as confidential documents) relating to the 
mediation function of the NMB, in the custody of the NMB or its 
employees relating to or acquired in their mediatory capacity under any 
applicable section of the Railway Labor Act of 1926, as amended, are 
hereby declared to be confidential. No such confidential documents or 
the

[[Page 23]]

material contained therein shall be disclosed to any unauthorized 
person, or be taken or withdrawn, copied or removed from the custody of 
the NMB or its employees by any person or by any agent of such person or 
his representative without the explicit consent of the NMB.
    (b) However, the following specific documents: Invocation or proffer 
of mediation, the reply or replies of the parties, the proffer of 
arbitration and replies thereto, and the notice of failure of mediatory 
efforts in cases under section 5, First of the Railway Labor Act, as 
amended, are matters of official record and are available for inspection 
and examination.
    (c) Interpretations of mediation agreements by the NMB, arising out 
of section 5, Second, of the Railway Labor Act, as amended, are public 
records and are therefore open for public inspection and examination.



Sec. 1208.6  Fees--duplication costs and search.

    (a)(1) Unless waived in accordance with the provisions of 
Sec. 1208.62, the following fees shall be imposed for the reproduction 
of any record disclosed pursuant to this part.
    (i) Copying of records. Fifteen cents per copy of each page.
    (ii) Copying of microfilm. Fifty cents per microfilm frame.
    (iii) Clerical searches. $1.80 for each one quarter hour spent by 
clerical personnel searching for and producing a requested record, 
including time spent copying any record.
    (iv) Non-clerical searches. $4.10 for each one quarter hour spent by 
professional or managerial personnel searching for and producing a 
requested record, including time spent copying any record.
    (v) Certification or authentication of records. $1.00 per 
certification or authentication.
    (vi) Forwarding material to destination. Postage, insurance and 
special fees will be charged on an actual cost basis.
    (2)(i) No charge shall be assessed for time spent in resolving legal 
or policy questions relating to the documents or in examining records 
for the purpose of deleting nondisclosable portions thereof.
    (ii) No charge shall be assessed for time spent in monitoring an 
individual who examines documents at the Board's offices.
    (3) Payment shall be made by check or money order payable to 
``United States Treasury.''
    (b)(1) No fee shall be charged for disclosure of records pursuant to 
this part where:
    (i) The cost of providing the records is less than $5.00.
    (ii) The records are requested by a congressional committee or 
subcommittee, a Federal court, a Federal department or agency, or the 
General Accounting Office.
    (2)(i) The Executive Secretary may waive payment of fees, in whole 
or in part, when he determines that the person making the request is 
indigent.
    (ii) A person seeking such a determination shall petition the 
Executive Secretary in writing stating the reasons therefore.
    (iii) Determinations made pursuant to this provision will be made 
within the discretion of the agency.
    (3)(i) The Executive Secretary may reduce or waive payment of fees 
in whole or in part when he determines that such reduction or waiver is 
in the public interest because furnishing the information can be 
considered as primarily benefiting the general public.
    (ii) Determinations pursuant to this provision shall be made within 
the discretion of the agency.
    (4) No fee shall be charged if a record requested is not found or 
for any record that is determined to be totally exempt from disclosure.
[42 FR 43628, Aug. 30, 1977]



Sec. 1208.7  Compliance with subpoenas.

    (a) No person connected in any official way with the NMB shall 
produce or present any confidential records of the Board or testify on 
behalf of any party to any cause pending in any court, or before any 
board, commission, committee, tribunal, investigatory body, or 
administrative agency of the U.S. Government, or any State or Territory 
of the United States, or the District of Columbia, or any municipality 
with respect to matters coming to his knowledge in his official capacity 
or with respect to any information contained in

[[Page 24]]

confidential documents of the NMB, whether in answer to any order, 
subpoena, subpoena duces tecum, or otherwise without the express written 
consent of the Board.
    (b) Whenever any subpoena or subpoena duces tecum calling for 
confidential documents, or the information contained therein, or 
testimony as described above shall have been served on any such person, 
he will appear in answer thereto, and unless otherwise expressly 
permitted by the Board, respectfully decline, by reason of this section, 
to produce or present such confidential documents or to give such 
testimony.



PART 1209--PUBLIC OBSERVATION OF NATIONAL MEDIATION BOARD MEETINGS--Table of Contents




Sec.
1209.01  Scope and purpose.
1209.02  Definitions.
1209.03  Conduct of National Mediation Board business.
1209.04  Open meetings.
1209.05  Closing of meetings; reasons therefor.
1209.06  Action necessary to close meetings; record of votes.
1209.07  Notice of meetings; public announcement and publication.
1209.08  Transcripts, recordings or minutes of closed meetings; 
          retention; public availability.
1209.09  Requests for records under Freedom of Information Act.
1209.10  Capacity of public observers.

    Authority: 5 U.S.C. 552b(g), 44 Stat. 577, as amended (45 U.S.C. 151 
et seq.).

    Source: 42 FR 60739, Nov. 29, 1977, unless otherwise noted.



Sec. 1209.01  Scope and purpose.

    (a) The provisions of this part are intended to implement the 
requirements of section 3(a) of the Government in the Sunshine Act, 5 
U.S.C. 552b.
    (b) It is the policy of the National Mediation Board that the public 
is entitled to the fullest practicable information regarding its 
decisionmaking processes. It is the purpose of this part to provide the 
public with such information while protecting the rights of individuals 
and the ability of the agency to carry out its responsibilities.



Sec. 1209.02  Definitions.

    For purposes of this part:
    (a) The terms Board or Agency mean the National Mediation Board, a 
collegial body composed of three members appointed by the President with 
the advice and consent of the Senate.
    (b) The term meeting means the deliberations of at least two members 
of the Board where such deliberations determine or result in the joint 
conduct or disposition of official agency business, but does not include 
deliberations required or permitted or with respect to any information 
proposed to be withheld under by 5 U.S.C. 552b(d) or (e)/5 U.S.C. 
552b(c).



Sec. 1209.03  Conduct of National Mediation Board business.

    Members shall not jointly conduct or dispose of agency business 
other than in accordance with this part.



Sec. 1209.04  Open meetings.

    Every portion of every Board meeting shall be open to public 
observation except as otherwise provided by Sec. 1209.05 of this part.



Sec. 1209.05  Closing of meetings; reasons therefor.

    (a) Except where the Board determines that the public interest 
requires otherwise, meetings, or portions thereof, shall not be open to 
public observation where the deliberations concern the issuance of a 
subponea, the Board's participation in a civil action or proceeding or 
an arbitration, or the initiation, conduct or disposition by the Board 
of any matter involving a determination on the record after opportunity 
for a hearing, or any court proceeding collateral or ancillary thereto.
    (b) Except where the Board determines that the public interest 
requires otherwise, the Board also may close meetings, or portions 
thereof, when the deliberations concern matters or information falling 
within the scope of 5 U.S.C. 552b (c)(1) (secret matters concerning 
national defense or foreign policy); (c)(2) (internal personnel rules 
and practices); (c)(3) (matters specifically exempted from disclosure by 
statute); (c)(4) (trade secrets and commercial or financial information 
obtained from a person and privileged or confidential);

[[Page 25]]

(c)(5) (matters of alleged criminal conduct or formal censure); (c)(6) 
(personal information where disclosure would cause a clearly unwarranted 
invasion of personal privacy); (c)(7) (certain materials or information 
from investigatory files compiled for law enforcement purposes); or 
(c)(9)(B) (disclosure would significantly frustrate implementation of a 
proposed agency action).



Sec. 1209.06  Action necessary to close meetings; record of votes.

    A meeting shall be closed to public observation under Sec. 1209.05, 
only when a majority of the members of the Board who will participate in 
the meeting vote to take such action.
    (a) When the meeting deliberations concern matters specified in 
Sec. 1209.05(a), the Board members shall vote at the beginning of the 
meeting, or portion thereof, on whether to close such meeting, or 
portion thereof, to public observation, and on whether the public 
interest requires that a meeting which may properly be closed should 
nevertheless be open to public observation A record of such vote, 
reflecting the vote of each member of the Board, shall be kept and made 
available to the public at the earliest practicable time.
    (b) When the meeting deliberations concerns matters specified in 
Sec. 1209.05(b), the Board shall vote on whether to close such meeting, 
or portion thereof, to public ovservation, and on whether the public 
interest requires that a meeting which may properly be closed should 
nevertheless be open to public observation. The vote shall be taken at a 
time sufficient to permit inclusion of information concerning the open 
or closed status of the meeting in the public announcement thereof. A 
single vote may be taken with respect to a series of meetings at which 
the deliberations will concern the same particular matters where 
subsequent meetings in the series are scheduled to be held within one 
day after the vote is taken.
    (c) Whenever any person whose interests may be directly affected by 
deliberations during a meeting, or a portion thereof, requests that the 
Board close that meeting, or portion thereof, to public observation for 
any of the reasons specified in 5 U.S.C. 552b(c)(5) (matters of alleged 
criminal conduct or formal censure), (c)(6) (personal information where 
disclosure would cause a clearly unwarranted invasion of personal 
privacy), or (c)(7) (certain materials or information from investigatory 
files compiled for law enforcement purposes), the Board members 
participating in the meeting upon request of any one member of the 
Board, shall vote on whether to close such meeting, or any portion 
thereof, for that reason. A record of such vote, reflecting the vote of 
each member of the Board participating in the meeting, shall be kept and 
made available to the public within one day after the vote is taken.
    (d) After public announcement of a meeting as provided in 
Sec. 1209.07 of this part, a meeting, or portion thereof, announced as 
closed may be opened or a meeting, or portion thereof, announced as open 
may be closed, only if a majority of the members of the Board who will 
participate in the meeting determine by a recorded vote that Board 
business so requires and that an earlier announcement of the change was 
not possible. The change made and the vote of each member on the change 
shall be announced publicly at the earliest practicable time.
    (e) Before a meeting may be closed pursuant to Sec. 1209.05 the 
General Counsel of the Board shall certify that in his or her opinion 
the meeting may properly be closed to public observation. The 
certification shall set forth each applicable exemptive provision for 
such closing. The certification shall be retained by the agency and made 
publicly available as soon as practicable.



Sec. 1209.07  Notice of meetings; public announcement and publication.

    (a) A public announcement setting forth the time, place and subject 
matter of meetings or portions thereof closed to public observation 
pursuant to the provisions of Sec. 1209.05(a) of this part, shall be 
made at the earaliest practicable time.
    (b) Except for meetings closed to public observation pursuant to the 
provisions of Sec. 1209.05(a) of this part, the agency shall make public 
announcement of each meeting at least 7 days before the scheduled date 
of the meeting. The announcement shall specify

[[Page 26]]

the time, place and subject matter of the meeting, whether it is to be 
open to public observation or closed, and the name, address and phone 
number of an agency official designated to respond to requests for 
information about the meeting. The 7 day period for advance notice may 
be shortened only upon a determination by a majority of the members of 
the Board who will participate in the meeting that agency business 
requires that such meeting be called at an earlier date, in which event 
the public announcement shall be made at the earliest practicable time. 
A record of the vote to schedule a meeting at an earlier date shall be 
kept and made available to the public.
    (c) Within one day after a vote to close a meeting, or any portion 
thereof, pursuant to the provisions of Sec. 1209.05(b) of this part, the 
agency shall make publicly available a full written explanation of its 
action closing the meeting, or portion thereof, together with a list of 
all persons expected to attend the meeting and their affiliation.
    (d) If after a public announcement required by paragraph (b) of this 
section has been made, the time and place of the meeting are changed, a 
public announcement of such changes shall be made at the earliest 
practicable time. The subject matter of the meeting may be changed after 
public annmouncment thereof only if a majority of the members of the 
Board who will participate in the meeting determine that agency business 
so requires and that no earlier announcement of the change was possible. 
When such a change in subject matter is approved a public announcement 
of the change shall be made at the earliest practicable time. A record 
of the vote to change the subject matter of the meeting shall be kept 
and made available to the public.
    (e) All announcements or changes thereof issued pursuant to the 
provisions of paragraphs (b) and (d) of this section, or pursuant to the 
provisions of Sec. 1209.06(d), shall be submitted for publication in the 
Federal Register immediately following their release to the public.
    (f) Announcement of meeting made pursuant to the provisions of this 
section shall be posted on a bulletin board maintained for such purpose 
at the Board's offices, 1425 K Street, NW., Washington, DC. Interested 
individuals or organizations may request the Executive Secretary, 
National Mediation Board, Washington, DC 20572 to place them on a 
mailing list for receipt of such announcements.



Sec. 1209.08  Transcripts, recordings or minutes of closed meetings; retention; public availability.

    (a) For every meeting or portion thereof closed under the provisions 
of Sec. 1209.05, the presiding officer shall prepare a statement setting 
forth the time and place of the meeting and the persons present, which 
statement shall be retained by the agency. For each such meeting or 
portion thereof there also shall be maintained a complete transcript or 
electronic recording of the proceedings, except that for meetings closed 
pursuant to Sec. 1209.05(a) the Board may, in lieu of a transcript or 
electronic recording, maintain a set of minutes fully and accurately 
summarizing any action taken, the reason therefor and views thereof, 
documents considered, and the members' vote on each roll call vote.
    (b) The agency shall maintain a complete verbatim transcript, a 
complete electronic recording, or a complete set of minutes for each 
meeting or portion thereof closed to public observation, for a period of 
at least one year after the close of the agency proceeding of which the 
meeting was a part, but in no event for a period of less than two years 
after such meeting.
    (c) The agency shall make promptly available to the public copies of 
transcripts, electronic recordings or minutes maintained as provided in 
paragraphs (a) and (b) of this section, except to the extent the items 
therein contain information which the agency determines may be withheld 
pursuant to the provisions of 5 U.S.C. 552b(c).
    (d) Upon request in accordance with the provisions of this paragraph 
and except to the extent they contain information which the agency 
determines may be withheld pursuant to the provisions of 5 U.S.C. 
552b(c), copies of transcripts or minutes, or transcriptions of 
electronic recordings including the identification of speakers,

[[Page 27]]

shall be furnished subject to the payment of duplication costs in 
accordance with the schedule of fees set forth in Sec. 1208.06 of the 
Board's Rules, and the actual cost of transcription. Requests for copies 
of transcripts or minutes, or transcriptions of electronic recordings of 
Board meetings shall be directed to the Executive Secretary, National 
Mediation Board, Washington, DC 20572. Such requests shall reasonably 
identify the records sought and include a statement that whatever costs 
are involved in furnishing the records will be acceptable or, 
alternatively, that costs will be acceptable up to a specified amount. 
The Board may determine to require prepayment of such costs.



Sec. 1209.09  Requests for records under Freedom of Information Act.

    Requests to review or obtain copies of agency records other than 
notices or records prepared under this part may be pursued in accordance 
with the Freedom of Information Act (5 U.S.C. 552). Part 1208 of the 
Board's Rules addresses the requisite procedures under that Act.



Sec. 1209.10  Capacity of public observers.

    The public may attend open Board meetings for the sole purpose of 
observation. Observers may not participate in meetings unless expressly 
invited or otherwise interfere with the conduct and disposition of 
agency business. When a portion of a meeting is closed to the public, 
observers will leave the meeting room upon request to enable discussion 
of the exempt matter therein under consideration.

[[Page 29]]



     CHAPTER XII--FEDERAL MEDIATION AND CONCILIATION SERVICE




  --------------------------------------------------------------------
Part                                                                Page
1400            Standards of conduct, responsibilities, and 
                    discipline..............................          31
1401            Public information..........................          36
1402            Procedures of the Service...................          42
1403            Functions and duties........................          43
1404            Arbitration services........................          45
1405            Part-time employment........................          52
1410            Privacy.....................................          53
1420            Federal Mediation and Conciliation Service--
                    assistance in the health care industry..          57
1425            Mediation assistance in the Federal Service.          60
1430            Federal Mediation and Conciliation Service 
                    advisory committees.....................          64
1440            Arbitration of pesticide data disputes......          67
1450            Collections of claims owed the United States          75
1470            Uniform administrative requirements for 
                    grants and cooperative agreements to 
                    State and local governments.............          89
1471            Governmentwide debarment and suspension 
                    (nonprocurement) and governmentwide 
                    requirements for drug-free workplace 
                    (grants)................................         116

[[Page 31]]



PART 1400--STANDARDS OF CONDUCT, RESPONSIBILITIES, AND DISCIPLINE--Table of Contents




                           Subpart A--General

Sec.
1400.735-3  Advice and counseling service.

  Subpart B--Employees: Ethical and Other Conduct and Responsibilities

1400.735-12  Outside employment, business activities, or interests (paid 
          or unpaid).
1400.735-19  Influencing Members of Congress.
1400.735-20  Code of Professional Conduct for Labor Mediators.
1400.735-21  Miscellaneous statutory provisions.

              Subpart F--Disciplinary Actions and Penalties

1400.735-60  Disciplinary actions.
1400.735-61  Notice to and appeal of employee.

Appendix to Part 1400--Code of Professional Conduct for Labor Mediators

    Authority: E.O. 11222, 30 FR 6469, 3 CFR, 1965 Supp.; 5 CFR 735.104.

    Source: 33 FR 5765, Apr. 13, 1968, unless otherwise noted.



                           Subpart A--General



Sec. 1400.735-3  Advice and counseling service.

    The Director will designate a counselor for the Service on all 
matters relating to the conduct and responsibilities of employees, and 
special Government employees, under the Executive order. The counselor 
is responsible for providing individual employees with interpretations 
on questions of conflicts of interest, and other matters covered by this 
part. (Due to the small size of the Federal Mediation and Conciliation 
Service, it is unrealistic to designate deputy counselors, and 
therefore, all questions concerning matters covered in this part should 
be directed to the one counselor appointed by the Director.)



  Subpart B--Employees: Ethical and Other Conduct and Responsibilities



Sec. 1400.735-12  Outside employment, business activities, or interests (paid or unpaid).

    (a) Outside employment. (1) An employee shall not engage in outside 
employment or other outside activity not compatible with the full and 
proper discharge of the duties and responsibilities of his Government 
employment.
    (2) Outside employment limitations in paragraph (a)(1) of this 
section do not preclude an employee from:
    (i) Receipt of a bona fide reimbursement, unless prohibited by law, 
for actual expenses for travel and such other necessary subsistence as 
is compatible with this part for which no Government payment or 
reimbursement is made. However, this paragraph does not allow an 
employee to be reimbursed, or payment to be made on his behalf, for 
excessive personal living expenses, gifts, entertainment, or other 
personal benefits, nor does it allow an employee to be reimbursed by a 
person for travel on official business under agency order.
    (ii) Participation in the acitivities of national or State political 
parties not prohibited by law.
    (iii) Participation in the affairs of, or acceptance of an award for 
a meritorious public contribution or achievement given by a charitable, 
religious, professional, social, fraternal, nonprofit educational and 
recreational, public service, or civic organization.
    (3) Incompatible activities referred to in paragraph (a)(1) of this 
section include, but are not limited to:
    (i) Acceptance of a fee, compensation, gift, payment of expense, or 
any other thing of monetary value in circumstances in which acceptance 
may result in, or create the appearance of, conflicts of interests; or
    (ii) Outside employment if it is determined that engaging in the 
proposed outside activity might:

[[Page 32]]

    (a) Influence or conflict with the employee's decisions or actions 
in planning, interpreting, or executing policies, programs, and work 
assignments of the Service;
    (b) Injure relations of the Service with the public;
    (c) Impair the employee's physical capacity to render proper and 
efficient service at all times;
    (d) Interfere with the impartial performance or jeopardize 
acceptability of the employee in his work;
    (e) Conflict with the employee's normal office hours, including an 
allowance for sufficient time for travel to place of outside employment 
or activity. (Normal office hours will be considered as those which are 
established for the specific office in which the employee works.) In the 
absence of extenuating circumstances, approval generally will not be 
granted where the outside activity requires presence of the employee 
prior to 6 p.m.

    Note: Teaching activities are not approved automatically, but rather 
on the basis of time required, appropriate subject matter, etc.

    (4) The Service, as a matter of policy, does not look upon any 
outside employment or business activity, including concurrent employment 
by the Federal Mediation and Conciliation Service and any other 
Governmental political subdivision or agency, as being consistent with 
the best interests of the Service.
    (5) Employees may not engage in any outside employment, including 
teaching, lecturing, or writing, which might reasonably result in a 
conflict of interest, or an apparent conflict of interest, between the 
private interests of the employee and his official government duties and 
responsibilities. No employee shall directly or indirectly accept, 
engage in, or continue in any outside employment or business activity, 
full- or part-time, paid or unpaid, without advance written approval 
(including teaching or lecturing).
    (b) Private compensation. An employee shall not receive any salary 
or anything of monetary value from a private source as compensation for 
his services to the Government (18 U.S.C. 209).
    (c) Teaching, writing and lecturing. (1) Teaching, writing and 
lecturing by Federal employees are generally to be encouraged so long as 
the laws, general standards, and regulations pertaining to conflicts of 
interest and the standards and regulations in this part applying to 
outside employment are observed. Teaching commitments will generally be 
limited to one class, course, or assignment during a concurrent period. 
These activities frequently serve to enhance the employee's value to the 
Service, as well as to increase the spread of knowledge and information 
in our society. Such activities, if remuneration is anticipated, must 
not be dependent on information obtained as a result of the employee's 
official government position if such information is not available to 
others, at least on request.
    (2) This provision does not, of course, prevent the Director from 
authorizing an employee to base his writings or lectures on nonpublic 
materials in the Federal Mediation and Conciliation Service files (not 
involving national security) when this will be done in the public 
interest. Personal research relating to mediation, collective bargaining 
and labor management relations is encouraged as a progressive step in 
self-development. The writing of articles in this area, which may be 
released or submitted for publication, is also encouraged. Research and 
writing are not considered official activity, and therefore may not be 
undertaken on duty time; and the author may receive compensation for 
publication thereof. Advance approval by the Director, before 
undertaking the research or writing, is not required. However, when such 
research is undertaken, or such article is being written on the basis of 
an official assignment, the work will be performed on duty time and the 
product will be the property of the Service.
    (3) If any type of article, when published or released, will 
identify the author in any manner as an employee of the Service, such 
identification necessarily implies that the article reflects either the 
official policy or the philosophies of the Service. For that reason, it 
must be submitted to the Director before release or publication, or it 
must contain a disclaimer phrase to the effect that the article or 
statement

[[Page 33]]

does not necessarily reflect the official policy or philosophies of the 
Service.
    (d) Procedure for approval of outside employment or teaching. 
Clerical and administrative employees' approval for outside activity 
shall be in writing and may be granted by the Regional Director, if a 
regional employee, or by the Director of Administrative Management, if a 
national office employee. Approval for such outside activity for all 
other employees of the Service shall be granted by the Director or his 
designee. Requests for approval shall be made in writing through the 
employee's supervisor and must contain the following:
    (1) The name and address of the employer or business activity;
    (2) The exact nature of the work or employment;
    (3) Working hours.
[33 FR 5765, Apr. 13, 1968, as amended at 58 FR 35377, July 1, 1993]



Sec. 1400.735-19  Influencing Members of Congress.

    No money appropriated to the Service shall be used by any employee 
of the Service to pay for any personal service, printed or written 
matter, or other devices intended to influence any Member of Congress 
regarding any legislation or appropriation before the Congress.



Sec. 1400.735-20  Code of Professional Conduct for Labor Mediators.

    In 1964, a Code of Professional Conduct for Labor Mediators was 
drafted by a Federal-State Liaison Committee and approved by the Service 
and the Association of Labor Mediation Agencies at its annual meeting. 
It is expected that mediators in the Federal Mediation and Conciliation 
Service will make themselves familiar with this Code and will conduct 
themselves in accordance with the responsibilities outlined therein. The 
complete narrative of the Code appears in the appendix to this part.



Sec. 1400.735-21  Miscellaneous statutory provisions.

    Each employee shall acquaint himself with the statutes that relate 
to his ethical and other conduct as an employee of the Federal Mediation 
and Conciliation Service and of the Government. The attention of all 
employees is directed to the following statutory provisions and to the 
accompanying chart of penalties and statutory references:
    (a) House Concurrent Resolution 175, 85th Congress, 2d session, 72 
Stat. B12, the ``Code of Ethics for Government Service.''
    (b) Chapter 11 of title 18, United States Code, relating to bribery, 
graft, and conflicts of interest, as appropriate to the employees 
concerned.
    (c) The prohibition against lobbying with appropriated funds (18 
U.S.C. 1913).
    (d) The prohibitions against disloyalty and striking (5 U.S.C. 7311, 
18 U.S.C. 1918).
    (e) The prohibition against the employment of a member of a 
Communist organization (50 U.S.C. 784).
    (f) The prohibitions against (1) the disclosure of classified 
information (18 U.S.C. 798, 50 U.S.C. 783); and (2) the disclosure of 
confidential information (18 U.S.C. 1905).
    (g) The provisions relating to the habitual use of intoxicants to 
excess (5 U.S.C. 7352).
    (h) The prohibition against the misuse of a Government vehicle (31 
U.S.C. 638a (c)).
    (i) The prohibition against the misuse of the franking privilege (18 
U.S.C. 1719).
    (j) The prohibition against the use of deceit in an examination of 
personnel action in connection with Government employment (18 U.S.C. 
1917).
    (k) The prohibition against fraud or false statements in a 
Government matter (18 U.S.C. 1001).
    (l) The prohibition against mutilating or destroying a public record 
(18 U.S.C. 2071).
    (m) The prohibition against counterfeiting and forging 
transportation requests (18 U.S.C. 508).
    (n) The prohibitions against (1) embezzlement of Government money or 
property (18 U.S.C. 641); (2) failing to account for public money (18 
U.S.C. 643); and (3) embezzlement of the money or property of another 
person in the possession of an employee by reason of his employment (18 
U.S.C. 654).
    (o) The prohibition against unauthorized use of documents relating 
to

[[Page 34]]

claims from or by the Government (18 U.S.C. 285).
    (p) The prohibitions against political activities in subchapter III 
of chapter 73 of title 5, United States Code and 18 U.S.C. 602, 603, 
607, and 608.
    (q) The prohibition against an employee acting as the agent of a 
foreign principal registered under the Foreign Agents Registration Act 
(18 U.S.C. 219).
    (r) Penalties: The following table, copied from the Federal 
Personnel Manual, lists maximum penalties for some of the more serious 
offenses.

                                                                        
------------------------------------------------------------------------
                                   Statute and                          
          Prohibition             United States       Maximum penalty   
                                       Code                             
------------------------------------------------------------------------
A-1. Gifts to official          5 U.S.C. 7351....  Removal.             
 superiors.                                                             
A-2. Conflicts of interest:                                             
  a. Receiving compensation in  18 U.S.C. 203....  $10,000 fine; 2 years
   relation to claims                               imprisonment or     
   contracts, etc.                                  both; and removal.  
  b. Prosecuting claims         18 U.S.C. 205....  $10,000 fine; 2 years
   against and other matters                        imprisonment or     
   affecting the Government.                        both.               
  c. Prosecuting claims         18 U.S.C. 207....  $10,000 fine; 2 years
   involving matters connected                      imprisonment or     
   with former duties--                             both.               
   disqualification of                                                  
   partners.                                                            
  d. Interested persons acting  18 U.S.C. 208....  $10,000 fine; 2 years
   as Government agents.                            imprisonment or     
                                                    both.               
  e. Salaries from other than   18 U.S.C. 209....  $5,000 fine; 1 year  
   Government sources.                              imprisonment or     
                                                    both.               
A-3. Lobbying with              18 U.S.C. 1913...  $500 fine; 1 year    
 appropriated funds.                                imprisonment or     
                                                    both; and removal.  
A-4. Denial of rights to        5 U.S.C. 7102....  No specific penalty  
 petition Congress.                                 provided.           
A-5. Failure to make return or  18 U.S.C. 2075...  $1,000 fine.         
 report.                                                                
A-6. Disloyalty and striking..  5 U.S.C. 7311; 18  $1,000 fine, 1 year  
                                 U.S.C. 1918.       and a day           
                                                    imprisonment or     
                                                    both; and removal.  
A-7. Employment of member of    50 U.S.C. 784 et   $10,000 fine; 5 years
 proscribed communist            seq.               imprisonment or     
 organization.                                      both; and removal.  
A-8. Disclosure of classified   18 U.S.C. 798; 50  $10,000 fine; 10     
 information.                    U.S.C. 783.        years imprisonment  
                                                    or both; and        
                                                    removal.            
A-9. Disclosure of              18 U.S.C. 1905...  $1,000 fine; 1 year  
 confidential information.                          imprisonment or     
                                                    both; and removal.  
A-10. Habitual use of           5 U.S.C. 7352....  Removal.             
 intoxicants to excess.                                                 
A-11. Misuse of Government      31 U.S.C. 638a(c)  Removal.             
 vehicles.                                                              
A-12. Misuse of franking        18 U.S.C. 1719...  $300 fine.           
 privilege.                                                             
A-13. Deceit in examinations    5 U.S.C. 1917....  $1,000 fine; 1 year  
 and personnel actions.                             imprisonment or     
                                                    both.               
A-14. Fraud and false           18 U.S.C. 1001...  $10,000 fine; 5 years
 statements.                                        imprisonment or     
                                                    both.               
A-15. Unlawful mutilating or    18 U.S.C. 2071(b)  $2,000 fine; 3 years 
 destroying public records.                         imprisonment or     
                                                    both; and removal.  
A-16. Bribery and graft:                                                
  a. Bribery of public          18 U.S.C. 201....  $20,000 fine or three
   officials.                                       times the money or  
                                                    thing received,     
                                                    whichever is        
                                                    greater; 15 years   
                                                    imprisonment or     
                                                    both; and removal.  
  b. Acceptance or              18 U.S.C. 211....  $1,000 fine; 1 year  
   solicitation to obtain                           imprisonment or     
   appointive office.                               both.               
A-17. Counterfeiting and        18 U.S.C. 508....  $5,000 fine; 10 years
 forgery of transportation                          imprisonment or     
 requests.                                          both.               
A-18. Embezzlement and theft:                                           
  a. Taking money, property,    18 U.S.C. 641....  $10,000 fine; 10     
   or records.                                      years imprisonment  
                                                    or both.            
  b. Failure to render          18 U.S.C. 643....  Fine equal to amount 
   accounts for public money.                       embezzled;          
                                                    imprisonment not    
                                                    more than 10 years  
                                                    or both.            
  c. Wrongfully converting      18 U.S.C. 654....  Same as penalty      
   property of another.                             immediately above.  
A-19. Taking or using papers    18 U.S.C. 285....  $5,000 fine; 5 years 
 related to claims.                                 imprisonment or     
                                                    both.               
------------------------------------------------------------------------



              Subpart F--Disciplinary Actions and Penalties



Sec. 1400.735-60  Disciplinary actions.

    The Service shall take prompt disciplinary action against an 
employee committing prohibited activity, or whose conduct is prejudicial 
to the best interests of the Service, or of a nature to bring discredit 
to it. There are four major types of disciplinary action possible, 
following the above proceedings.
    (a) Reprimand. An official reprimand usually shall be issued to an 
employee or special Government employee for a first offense which is not 
serious.

[[Page 35]]

    (b) Suspension. Under Civil Service and Federal Mediation and 
Conciliation Service regulations, an employee or special Government 
employee may be suspended without pay during the course of an 
investigation of alleged criminal, infamous, dishonest, immoral, or 
notoriously disgraceful conduct. Also, an employee may be suspended 
without pay for a definite period of time because of some offense of a 
less serious nature for which more drastic action is not justified.
    (c) Demotion. When such action will ``promote the efficiency of the 
Service,'' an employee or special Government employee may be demoted 
because of some offense for which more drastic action is not justified.
    (d) Separation. The Service is responsible for the prompt dismissal 
of unsatisfactory, incompetent, or unfit employees. Separation 
(dismissal or removal) can be the penalty for a single breach of conduct 
that is extremely serious in nature.



Sec. 1400.735-61  Notice to and appeal of employee.

    The Director of Administrative Management will prepare charges and 
institute proceedings, which in all cases will be in accordance with 
Civil Service procedures for disciplinary actions against status 
employees. Such proceedings will include notification to the employee of 
his appeal rights.

 Appendix to Part 1400--Code of Professional Conduct for Labor Mediators

                                preamble

    The practice of mediation is a profession with ethical 
responsibilities and duties. Those who engage in the practice of 
mediation must be dedicated to the principles of free and responsible 
collective bargaining. They must be aware that their duties and 
obligations relate to the parties who engage in collective bargaining, 
to every other mediator, to the agencies which administer the practice 
of mediation, and to the general public.
    Recognition is given to the varying statutory duties and 
responsibilities of the city, State and Federal agencies. This code, 
however, is not intended in any way to define or adjust any of these 
duties and responsibilities, nor is it intended to define when and in 
what situations mediators from more than one agency should participate. 
It is, rather, a personal code relating to the conduct of the individual 
mediator.
    This code is intended to establish principles applicable to all 
professional mediators employed by city, State or Federal agencies or to 
mediators privately retained by parties.
    I. The responsibility of the mediator to the parties. The primary 
responsibility for the resolution of a labor dispute rests upon the 
parties themselves. The mediator at all times should recognize that the 
agreements reached in collective bargaining are voluntarily made by the 
parties. It is the mediator's responsibility to assist the parties in 
reaching a settlement.
    It is desirable that agreement be reached by collective bargaining 
without mediation assistance. However, public policy and applicable 
statutes recognize that mediation is the appropriate form of 
governmental participation in cases where it is required. Whether and 
when a mediator should intercede will normally be influenced by the 
desires of the parties. Intercession by a mediator on his own motion 
should be limited to exceptional cases.
    The mediator must not consider himself limited to keeping peace at 
the bargaining table. His role should be one of being a resource upon 
which the parties may draw and, when appropriate, he should be prepared 
to provide both procedural and substantive suggestions and alternatives 
which will assist the parties in successful negotiations.
    Since mediation is essentially a voluntary process, the 
acceptability of the mediator by the parties as a person of integrity, 
objectivity, and fairness is absolutely essential to the effective 
performance of the duties of the mediator. The manner in which the 
mediator carries out his professional duties and responsibilities will 
measure his usefulness as a mediator. The quality of his character as 
well as his intellectual, emotional, social and technical attributes 
will reveal themselves by the conduct of the mediator and his oral and 
written communications with the parties, other mediators and the public.
    II. The responsibility of the mediator toward other mediators. A 
mediator should not enter any dispute which is being mediated by another 
mediator or mediators without first conferring with the person or 
persons conducting such mediation. The mediator should not intercede in 
a dispute merely because another mediator may also be participating. 
Conversely, it should not be assumed that the lack of mediation 
participation by one mediator indicates a need for participation by 
another mediator.
    In those situations where more than one mediator is participating in 
a particular case, each mediator has a responsibility to keep the others 
informed of developments which are essential to a cooperative effort,

[[Page 36]]

and should extend every possible courtesy to his fellow mediator.
    The mediator should carefully avoid any appearance of disagreement 
with or criticism of his fellow mediator. Discussions as to what 
positions and actions mediators should take in particular cases should 
be carried on solely between or among the mediators.
    III. The responsibility of the mediator toward his agency and his 
profession. Agencies responsible for providing mediation assistance to 
parties engaged in collective bargaining are a part of government. The 
mediator must recognize that, as such, he is part of government. The 
mediator should constantly bear in mind that he and his work are not 
judged solely on an individual basis but that he is also judged as a 
representative of his agency. Any improper conduct or professional 
shortcoming, therefore, reflects not only on the individual mediator but 
upon his employer and, as such, jeopardizes the effectiveness of his 
agency, other government agencies, and the acceptability of the 
mediation process.
    The mediator should not use his position for private gain or 
advantage, nor should he engage in any employment, activity or 
enterprise which will conflict with his work as a mediator, nor should 
he accept any money or thing of value for the performance of his 
duties--other than his regular salary--or incur obligations to any party 
which might interfere with the impartial performance of his duties.
    IV. The responsibility of the mediator toward the public. Collective 
bargaining is in essence a private, voluntary process. The primary 
purpose of mediation is to assist the parties to achieve a settlement. 
Such assistance does not abrogate the rights of the parties to resort to 
economic and legal sanctions. However, the mediation process may include 
a responsibility to assert the interest of the public that a particular 
dispute be settled; that a work stoppage be ended; and that normal 
operations be resumed. It should be understood, however, that the 
mediator does not regulate or control any of the content of a collective 
bargaining agreement.
    It is conceivable that a mediator might find it necessary to 
withdraw from a negotiation, if it is patently clear that the parties 
intend to use his presence as implied governmental sanction for an 
agreement obviously contrary to public policy.
    It is recognized that labor disputes are settled at the bargaining 
table; however, the mediator may release appropriate information with 
due regard (1) to the desires of the parties, (2) to whether that 
information will assist or impede the settlement of the dispute and (3) 
to the needs of an informed public.
    Publicity shall not be used by a mediator to enhance his own 
position or that of his agency. Where two or more mediators are 
mediating a dispute, public information should be handled through a 
mutually agreeable procedure.
    V. Responsibility of the mediator toward the mediation process. 
Collective bargaining is an established institution in our economic way 
of life. The practice of mediation required the development of 
alternatives which the parties will voluntarily accept as a basis for 
settling their problems. Improper pressures which jeopardize voluntary 
action by the parties should not be a part of mediation.
    Since the status, experience, and ability of the mediator lend 
weight to his suggestions and recommendations, he should evaluate 
carefully the effect of his suggestions and recommendations and accept 
full responsibility for their honesty and merit.
    The mediator has a continuing responsibility to study industrial 
relations to improve his skills and upgrade his abilities.
    Suggestions by individual mediators or agencies to parties, which 
give the implication that transfer of a case from one mediation 
``forum'' to another will produce better results, are unprofessional and 
are to be condemned.
    Confidential information acquired by the mediator should not be 
disclosed to others for any purpose, or in a legal proceeding or be used 
directly or indirectly for the personal benefit or profit of the 
mediator.
    Bargaining positions, proposals or suggestions given to the mediator 
in confidence during the course of bargaining for his sole information, 
should not be disclosed to another party without first securing 
permission from the party or person who gave it to him.
[31 FR 5423, Apr. 6, 1966]



PART 1401--PUBLIC INFORMATION--Table of Contents




             Subpart A--Information in Response to Subpoenas

Sec.
1401.1  Purpose and scope.
1401.2  Productions of records or testimony by FMCS employees.
1401.3  Procedure in the event of a demand for production, disclosure, 
          or testimony.

           Subpart B--Production or Disclosure of Information

1401.20  Purpose and scope.
1401.21  Information policy.
1401.22  Partial disclosure of records.
1401.23  Preparation of new records.
1401.24  Notices of dispute are public.
1401.30  Applicability of procedures.
1401.31  Filing a request for records.
1401.32  Logging of written requests.
1401.33  Description of information requested.

[[Page 37]]

1401.34  Time for processing requests.
1401.35  Appeals from denials of request.
1401.36  Freedom of Information Act fee schedules.
1401.37  Annual report.

    Authority: Sec. 202, 61 Stat. 136, as amended; 5 U.S.C. 552.

    Source: 40 FR 8169, Feb. 26, 1975, unless otherwise noted.



             Subpart A--Information in Response to Subpoenas



Sec. 1401.1  Purpose and scope.

    This subpart contains the regulations of the Service concerning 
procedures to be followed when a subpoena, order, or other demand of a 
court or other authority is issued for the production or disclosure of 
(a) any material contained in the files of the Service; (b) any 
information relating to material contained in the files of the Service; 
or (c) any information or material acquired by any person as a part of 
the performance of his official duties or because of his official 
status, while such person was an employee of the Service.



Sec. 1401.2  Production of records or testimony by FMCS employees.

    (a) Public policy and the successful effectuation of the Federal 
Mediation and Conciliation Service's mission require that commissioners 
and employees maintain a reputation for impartiality and integrity. 
Labor and management or other interested parties participating in 
mediation efforts must have the assurance and confidence that 
information disclosed to commissioners and other employees of the 
Service will not subsequently be divulged, voluntarily or because of 
compulsion, unless authorized by the Director of the Service.
    (b) No officer, employee, or other person officially connected in 
any capacity with the Service, currently or formerly shall, in response 
to a subpoena, subpoena duces tecum, or other judicial or administrative 
order, produce any material contained in the files of the Service, 
disclose any information acquired as part of the performance of his 
official duties or because of his official status, or testify on behalf 
of any party to any matter pending in any judicial, arbitral or 
administrative proceeding, without the prior approval of the Director.



Sec. 1401.3  Procedure in the event of a demand for production, disclosure, or testimony.

    (a) Any request for records of the Service, whether it be by letter, 
by subpoena duces tecum or by any other written demand, shall be handled 
pursuant to the procedures established in subpart B of this part, and 
shall comply with the rules governing public disclosure.
    (b) Whenever any subpoena or subpoena duces tecum calling for 
production of records or testimony as described above shall have been 
served upon any officer, employee or other person as noted in 
Sec. 1401.2(b), he will, unless notified otherwise appear in answer 
thereto, and unless otherwise expressly directed by the Director, 
respectfully decline to produce or present such records or to give such 
testimony, by reason of the prohibitions of this section, and shall 
state that the production of the record(s) involved will be handled by 
the procedures established in this part.



           Subpart B--Production or Disclosure of Information

    Source: 50 FR 52917, Dec. 27, 1985, unless otherwise noted.



Sec. 1401.20  Purpose and scope.

    This subpart contains the regulations of the Federal Mediation and 
Conciliation Service providing for public access to information from 
records of the Service. These regulations implement the Freedom of 
Information Act, 5 U.S.C. 552, and the policy of the FMCS to disseminate 
information on matters of interest to the public and to disclose on 
request information contained in agency records insofar as is compatible 
with the discharge of its responsibilities and the principle of 
confidentiality and neutrality of dispute resolution by third party 
neutrals.



Sec. 1401.21  Information policy.

    (a) Except for matters specifically excluded by subsection 552(b) of 
title 5, United States Code, matters covered by the Privacy Act, or 
other applicable

[[Page 38]]

statutes, all documents and records maintained by this agency or in its 
custody shall be available to the public upon request filed in 
accordance with these regulations. To the extent permitted by other 
laws, the Service also will make available records which it is 
authorized to withhold under 5 U.S.C. 552(b) whenever it determines that 
such disclosure is in the public interest.
    (b) Any document released for inspection under the provisions of 
this part may be manually copied by the requesting party. The Service 
shall provide facilities for copying such documents at reasonable times 
during normal working hours so long as it does not interfere with the 
efficient operation of the agency.
    (c) The Service will also publish and maintain a current index, 
revised quarterly, providing identifying information for the public as 
to statements of policy and interpretation adopted by the agency and 
still in force but not published by the Federal Register, and 
administrative staff manuals and instructions to staff that affect the 
public. The Service will also maintain on file all material published in 
the Service in the Federal Register and currently in effect.
    (d) Records or documents prepared by the Service for routine public 
distribution, e.g., pamphlets, speeches, and educational or training 
materials, will be furnished upon request to the Office of Information, 
Federal Mediation and Conciliation Service, 2100 K Street, NW., 
Washington, DC 20427, as long as the supply lasts. The provisions of 
Sec. 1401.36 (fees) is not applicable to such requests except when the 
supply of such material is exhausted and it is necessary to reproduce 
individual copies upon specific request.
    (e) All existing FMCS records are subject to routine destruction 
according to standard record retention schedules.



Sec. 1401.22  Partial disclosure of records.

    If a record contains both disclosable and nondisclosable 
information, the nondisclosable information will be deleted and the 
remaining record will be disclosed unless the two are so inextricably 
intertwined that it is not feasible to separate them or release of the 
disclosable information would compromise or impinge upon the 
nondisclosable portion of the record.



Sec. 1401.23  Preparation of new records.

    (a) Freedom of Information Act and the provisions of this part apply 
only to existing records that are reasonably described in a request 
filed with the Federal Mediation and Conciliation Service pursuant to 
the procedures established in Secs. 1401.31--1401.36.
    (b) The Director may, in his or her discretion, prepare new records 
in order to respond to a request for information when he or she 
concludes that it is in the public interest and promotes the objectives 
of the Labor-Management Relations Act, 1947, as amended.



Sec. 1401.24  Notices of dispute are public.

    Written notices of disputes received by the Service pursuant to 
sections 8(d)(3), 8(d)(A), 8(g) and 9(c)(1) of the Labor-Management 
Relations Act, 1947, as amended, or pursuant to 29 CFR 1425.2, are not 
exempt from disclosure. Parties at interest have the right to receive 
certified copies of any such notice of dispute upon written request. 
Requests for copies of notices should be submitted to FMCS, Notice 
Processing Unit, 2100 K Street, NW., Washington, DC 20427.



Sec. 1401.30  Applicability of procedures.

    Requests for inspection or copying of information from records in 
the custody of the FMCS which are reasonably identifiable and available 
under the provisions of this part shall be made and acted upon as 
provided in the following sections of this subpart. The prescribed 
procedure shall be followed in all cases where access is sought to 
official records pursuant to the provisions of the Freedom of 
Information Act, except with respect to records for which a less formal 
disclosure procedure is provided specifically in this part.



Sec. 1401.31  Filing a request for records.

    (a) Any person who desires to inspect or copy any record covered by 
this part shall submit a written request to that effect to the Legal 
Services Office,

[[Page 39]]

FMCS, 2100 K Street, NW., Washington, DC 20427. (202) 653-5305.
    (b) The Legal Services Office will determine what office or division 
within FMCS is custodian of the records. The Office will then send the 
request to the appropriate FMCS office or division as provided in 
Sec. 1401.32(b) of this part.



Sec. 1401.32  Logging of written requests.

    (a) All requests for records should be clearly and prominently 
identified as a request for information under the Freedom of Information 
Act, and if submitted by mail or otherwise submitted in an envelope or 
other cover, should be clearly and prominently identified as such on the 
envelope or other cover.
    (b) Upon receipt of a request for records from the FMCS Legal 
Services Office, the FMCS office or division responding to the request 
shall enter it in a public log. The log shall state the date and time 
received, the name and address of person making the request, the nature 
of the records requested, the action taken on the request, the date of 
the determination letter sent pursuant to Sec. 1401.34 (b) and (d), the 
date(s) any records are subsequently furnished, the number of staff 
hours and grade levels of persons who spent time responding to the 
request, and the payment requested and received.



Sec. 1401.33  Description of information requested.

    (a) Each request should reasonably describe the records being 
sought, in a way that they can be identified and located. A request 
should include all pertinent details that will help identify the records 
sought.
    (b) If the description is insufficient, the officer processing the 
request will so notify the person making the request and indicate the 
additional information needed. Every reasonable effort shall be made to 
assist in the identification and location of the records sought.



Sec. 1401.34  Time for processing requests.

    (a) All time limitations established pursuant to this section shall 
begin as of the time at which a request for records is logged in by the 
officer or employee processing the request pursuant to Sec. 1401.32(b). 
An oral request for records shall not begin any time requirement. A 
written request for records sent to an office or division of FMCS other 
than the one having authority to grant or deny access to the records 
shall be redirected to the appropriate office for processing, and the 
time shall begin upon its being logged in there in accordance with 
Sec. 1401.32(b).
    (b) The officer or employee passing upon the request for records 
shall, within ten (10) working days following receipt of the request, 
respond in writing to the requester, determining whether, or the extent 
to which, the Agency shall comply with the request.
    (1) If all of the records requested have been located and a final 
determination has been made with respect to disclosure of all the 
records requested, the response shall so state.
    (2) If all of the records have not been located or a final 
determination has not been made with respect to disclosure of all 
records requested, the response shall state the extent to which the 
records involved will be disclosed pursuant to the rules established in 
this part.
    (3) If the request is expected to involve an assessed fee in excess 
of $50.00, the response shall specify or estimate the fee involved and 
shall require prepayment before the records are made available.
    (4) Whenever possible, the response relating to a request for 
records that involves a fee of less than $50.00, shall be accompanied by 
the requested records. Where this is not possible, the records shall be 
forwarded as soon as possible thereafter, consistent with other 
obligations of the Agency.
    (c) In the following circumstances, the time for passing upon the 
request may be extended for up to an additional 10 working days by 
written notice to the person making the request, setting forth the 
reasons for such extension and the time within which a determination is 
expected to be made:
    (1) The need to search for and collect the requested records from 
the field facilities or other establishments that are separate from the 
office processing the request;
    (2) The need to search for, collect and appropriately examine a 
voluminous

[[Page 40]]

amount of records which are demanded in a single request; or
    (3) The need for consultation, which shall be conducted with all 
practicable speed, with another agency having a substantial interest in 
the determination of the request or among two or more components of the 
Agency having substantial subject matter interest therein.
    (b) If any request for records is denied in whole or in part, the 
response required by paragraph (b) of this section shall notify the 
requester of the denial. Such denial shall specify the reason therefor 
and also advise that the denial may be appealed to the Office of Deputy 
Director of the Agency as specified in Sec. 1401.35.



Sec. 1401.35  Appeals from denials of request.

    (a) Whenever any request for records is denied, a written appeal may 
be filed with the Deputy Director, FMCS, 2100 K Street, NW., Washington, 
DC 20427, within 30 days after requester receives notification that the 
request has been denied or after the requester receives any records 
being made available, in the event of partial denial. The appeal shall 
state the grounds for appeal, including any supporting statements or 
arguments.
    (b) Final action on the appeal shall be taken within 20 working days 
from the time of receipt of the appeal. Where novel and complicated 
questions have been raised or unusual difficulties have been 
encountered, the Deputy Director may extend the time for final action up 
to an additional 10 days, depending upon whether there had been an 
extension pursuant to Sec. 1401.34(c) at the initial stage. In such 
cases, the applicant shall be notified in writing of the reasons for the 
extension of time and the approximate date on which a final response 
will be forthcoming.
    (c) If on appeal the denial of the request for records is upheld in 
whole or in part, the Deputy Director shall notify the applicant of the 
reasons therefor, and shall advise the requester of the provisions for 
judicial review under 5 U.S.C. 552(a) (4) and (6).



Sec. 1401.36  Freedom of Information Act fee schedules.

    (a) Definitions. For purposes of Sec. 1401.36, the following 
definitions apply:
    (1) Direct costs means those expenditures which are actually 
incurred in searching for and duplicating and, in the case of commercial 
use requesters, reviewing to respond to a FOIA request.
    (2) Search includes all time spent looking for material that is 
responsive to a request, including page-by-page and line-by-line 
identification of material within documents. Searches may be done 
manually or by computer.
    (3) Duplication refers to the process of making a copy of a document 
necessary to respond to a FOIA request. Copies may be in various forms 
including machine readable documentation (e.g. magnetic tape or disk) 
among others. The copy provided shall be in a form that is reasonably 
usable by the requester.
    (4) Review refers to the process of examining documents located in 
response to a request that is for commercial use, to determine whether a 
document or any portion of any document located is permitted to be 
withheld. It includes processing any documents for disclosure to the 
requester, e.g., doing all that is necessary to excise them or otherwise 
prepare them for release.
    (5) Commercial use request refers to a request from or on behalf of 
one who seeks information for a use or purpose that furthers the 
commercial trade or profit interest of the requester or the person on 
whose behalf the request is made.
    (6) Educational institution refers to a preschool, a public or 
private elementary or secondary school, an institution of undergraduate 
higher education, an institution of graduate or professional education 
or an institution of vocational education, which operates a program or 
programs of scholarly research.
    (7) Representative of the news media refers to any person actively 
gathering news for an entity that is organized and operated to publish 
or broadcast news to the public. The term ``news'' means information 
that is about current events or that would be of current

[[Page 41]]

interest to the public. In the case of ``freelance'' journalists, they 
may be regarded as working for a news organization if they can 
demonstrate a reasonable expectation of publication through the 
organization, even though not actually employed by it.
    (8) Non-commercial scientific institution refers to an institution 
that is not operated on a commercial basis as defined under ``commercial 
use request'' in paragraph (a)(5) of this section, and which is operated 
solely for the purpose of conducting scientific research, the results of 
which are not intended to promote any particular product or industry.
    (b) Fee schedules and waivers. Requests submitted shall be subject 
to direct costs, including search, duplication and review, in accordance 
with the following schedules, procedures and conditions.
    (1) Schedule of charges--(i) Clerical time. For each one-quarter 
hour or portion thereof of clerical time, $2.25.
    (ii) Professional time. For each one-quarter hour or portion thereof 
of professional time, $7.00.
    (iii) Duplication. For each sheet of duplication (not to exceed 8\1/
2\ by 14 inches) of requested records, $.20.
    (iv) Computer time. For computer time, $3.00 per minute of time 
expended for production programming, searching and production of any 
record. Computer time expressed in fractions of minutes will be rounded 
to the next whole minute.
    (v) Certification or authorization of records. The fee per 
certification or authentication is $2.00.
    (vi) Forwarding material to destination. No charge will be assessed 
for ordinary packaging and mailing costs. The FMCS may assess a charge 
if compliance with the request requires special handling procedures such 
as express mail or other unusual procedures. Such charges will be made 
on the basis of actual costs.
    (vii) Other costs. All other direct costs of preparing a response to 
a request shall be charged to requester in the same amount as incurred 
by FMCS. Charges may also be assessed for searches even if the records 
requested are not found, or the records are determined to be exempted 
from disclosure.
    (2) Rules of construction. (i) In providing the foregoing the 
schedules pursuant to the provisions of 5 U.S.C. 552(a)(4)(A), it is the 
intent of FMCS to apply 29 CFR part 70 and the user charge statute, 31, 
U.S.C. 9701, to cover those situations in which the Agency is performing 
for a requester services which are not required under the Freedom of 
Information Act.
    (ii) For those matters coming within the scope of this regulation, 
the FMCS will look to the provisions of the guidance published by the 
Office of Management and Budget (52 FR 10012, March 27, 1987) and the 
Department of Justice (Attorney General's memorandum on the 1986 
Amendments to the Freedom of Information Act, December 1987) for making 
such interpretations as may be necessary.
    (3) Fee categories. Fees shall be determined in accordance with the 
following categories of requesters.
    (i) Commercial use requesters will be assessed charges to recover 
the full direct cost of searching for, reviewing for release, and 
duplicating the records sought. This includes the full direct costs of 
computer production programming, searching and production of records. 
Commercial use requesters are not entitled to 2 hours of free search 
time nor 100 free pages of reproduction of documents, as described 
below.
    (ii) Educational and non-commercial scientific institution 
requesters will be assessed charges for the cost of duplication alone, 
excluding charges for the first 100 pages. To be eligible for inclusion 
in this category, requesters must show that the request is being made 
under the auspices of a qualifying institution pursuant to the criteria 
in paragraphs (a)(6) and (a)(8) of this section, and that the records 
are not sought for commercial use, but are sought in furtherance of 
scholarly or scientific research.
    (iii) Requesters who are representatives of the news media will be 
assessed charges for the cost of duplication alone, excluding charges 
for the first 100 pages. To be eligible for inclusion in this category, 
a requester must meet the criteria in paragraph (a)(7) of this section, 
and the request must not be made for a commercial use. A request

[[Page 42]]

for records supporting the news dissemination function of the requester 
shall not be considered to be a request that is for commercial use.
    (iv) All other requesters will be assessed charges to recover the 
full reasonable direct costs of searching for and reproducing records 
that are responsive to the request, including costs of computer 
production programming, searching and production, except that the first 
100 pages of reproduction, and the first 2 hours of search time shall be 
furnished without charge.
    (v) In no event shall fees be charged when the total charges are 
less than $50.00, which is the Agency cost of collecting and processing 
the fee itself.
    (4) Waiver or reduction of charge. Documents are to be furnished 
without charge or at reduced levels if disclosure of the information is 
in the public interest; that is, because it is likely to contribute 
significantly to public understanding of the operations or activities of 
the Government and is not primarily in the commercial interest of the 
requester.
    (c) Fee payments. (1) Payments shall be made by check or money order 
payable to ``Federal Mediation and Conciliation Service'' and shall be 
sent to: Director, Financial Management Staff, Federal Mediation and 
Conciliation Service, 2100 K Street NW., Washington, DC 20427.
    (2) If a requester fails to pay chargeable fees that were incurred 
as a result of this Agency's processing of the information request, the 
Agency beginning on the 31st day following the date on which the 
notification of charges was sent, may assess interest charges against 
the requester in the manner prescribed in 31 U.S.C. 37l7.
    (3) The Agency may use the provisions of the Debt Collection Act of 
1982, (Pub. L. 97-365, 29 CFR part 1450) including disclosure to 
consumer reporting agencies, for the purpose of obtaining payment.
    (d) Advance payments. FMCS may require a requester to make an 
advance payment of anticipated fees under the following circumstances:
    (1) If the anticipated charges are likely to exceed $250, FMCS may 
notify the requestor of the likely cost and obtain satisfactory 
assurance of full payment when the requester has a history of prompt 
payment of FOIA fees, or require an advance payment of an amount up to 
the full estimated charges in the case of requesters with no history of 
payments.
    (2) If a requester has previously failed to pay fees that have been 
charged in processing a request, within 30 days of the date when the 
notification of fees was sent, the requester may be required to:
    (i) Pay the entire amount of fees that are owed, plus any applicable 
interest as provided for in paragraph (c)(2) of this section, and
    (ii) To make an advance payment of the full amount of the estimated 
fee before the Agency will process the new pending request.
[55 FR 17602, Apr. 26, 1990]



Sec. 1401.37  Annual report.

    The Office of the Director shall annually, within 60 days following 
the close of each calendar year, prepare a report covering each of the 
categories or records to be maintained in accordance with 5 U.S.C. 
552(d) for such calendar year and shall forthwith submit the same to the 
Speaker of the House of Representatives and the President of the Senate 
for referral to the appropriate committees of the Congress.



PART 1402--PROCEDURES OF THE SERVICE--Table of Contents




    Authority: Sec. 202, 61 Stat. 153, sec. 3, 80 Stat. 250, sec. 203, 
61 Stat. 153; 5 U.S.C. 552, 29 U.S.C. 172, 173.



Sec. 1402.1  Notice of dispute.

    The notice of dispute filed with the Federal Mediation and 
Conciliation Service pursuant to the provisions of section 8(d)(3), of 
the Labor-Management Relations Act, 1947, as amended, shall be in 
writing. The following Form F-7, for use by the parties in filing a 
notice of dispute, has been prepared by the Service:

FMCS Form F-7.
Revised May 1964.

                      Notice to Mediation Agencies

To: Federal Mediation and Conciliation Service, Washington, D.C. 20427; 
and

[[Page 43]]

To: (Appropriate State or Territorial agency.)
Date --------------------
    You are hereby notified that written notice of the proposed 
termination or modification of the existing collective bargaining 
contract was served upon the other party to this contract and that no 
agreement has been reached.
    1. (a) Name of employer (if more than one company or an association, 
submit names and addresses on separate sheet in duplicate). Phone No. --
----------
    Address of establishment affected (Street) (City) (State) (Zip 
Code).
    (If more than one establishment, or plant, list addresses on 
separate sheet.)
    (b) Employer Official to communicate with (name and title).
Address:        Phone No. --------.
---------------- (Street), ---------------- (City), ---------------- 
(State).
    2. (a) International union ---------------- Local No. ------. AFL-
CIO (  ). Independent (  ). Phone No. ------. Address of local union:
---------------- (Street), ---------------- (City), ---------------- 
(State), -------- (Zip Code).
    (b) Union official to communicate with --------------------. Phone 
No. ----------.
Address:
---------------- (Street), ---------------- (City), ---------------- 
(State), -------- (Zip Code).
    3. (a) Number of employees covered by the Contract(s) ------.
    (b) Total number employed by the Company at this location(s) ------.
    4. Type of establishment and principal products, or services ------
---------------- (Factory, mine, wholesaler, over-the-road trucking, 
etc.).
    5. Contract expiration or reopening date ------------.
    6. Name of official filing this notice --------------------. Title 
----------------.
Address ------------------------ Phone No. --------.
    Check on whose behalf this notice is filed:
Union ------------. Employer ------------
Signature --------------------------------
    Receipt of this notice does not constitute a request for mediation 
nor does it commit the agencies to offer their facilities. This 
particular form of notice is not legally required. Receipt of notice 
will not be acknowledged in writing by the Federal Mediation and 
Conciliation Service. (Attach copies of any statement you wish to make 
to the Mediation Agencies.)
    Copies of this Form F-7 are obtainable at the national, regional and 
field offices of the Service. This form may be duplicated for use by 
representatives of employers or unions provided it is copied in full 
without change.
[32 FR 9812, July 6, 1967, as amended at 47 FR 10531, Mar. 11, 1982]



PART 1403--FUNCTIONS AND DUTIES--Table of Contents




Sec.
1403.1  Definitions.
1403.2  Policies of the Federal Mediation and Conciliation Service.
1403.3  Obtaining data on labor-management disputes.
1403.4  Assignment of mediators.
1403.5  Relations with State and local mediation agencies.

    Authority: Sec. 202, 61 Stat. 153, sec. 3, 80 Stat. 250, sec. 203, 
61 Stat. 153; 29 U.S.C. 172, 5 U.S.C. 552, 29 U.S.C. 173.

    Source: 32 FR 9813, July 6, 1967, unless otherwise noted.



Sec. 1403.1  Definitions.

    As used in this part, unless the context clearly indicates 
otherwise;
    (a) The term commerce means trade, traffic, commerce, 
transportation, or communication among the several States, or between 
the District of Columbia or any Territory of the United States and any 
State or other Territory, or between any foreign country and any State, 
Territory, or the District of Columbia, or within the District of 
Columbia, or any Territory, or between points in the same State but 
through any other State or any Territory or the District of Columbia or 
any foreign country.
    (b) The term affecting commerce means in commerce, or burdening or 
obstructing commerce or the free flow of commerce, or having led or 
tending to lead to a labor-management dispute burdening or obstructing 
commerce or the free flow of commerce.
    (c) The term labor union or labor organization means any 
organization of any kind, or any agency or employee representation 
committee or plan, in which employees participate and which exists for 
the purpose, in whole or in part, of dealing with employers concerning 
grievances, labor disputes, wages, rates of pay, hours of employment, or 
conditions of work.
    (d) The term State or other conciliation services means the official 
and accredited mediation and conciliation establishments of State and 
local governments, which are wholly or partially supported by public 
funds.

[[Page 44]]

    (e) The term proffer its services, as applied to the functions and 
duties of the Federal Mediation and Conciliation Service, means to make 
mediation services and facilities available either on its own motion or 
upon the request of one or more of the parties to a dispute.



Sec. 1403.2  Policies of the Federal Mediation and Conciliation Service.

    It is the policy of the Federal Mediation and Conciliation Service:
    (a) To facilitate and promote the settlement of labor-management 
disputes through collective bargaining by encouraging labor and 
management to resolve differences through their own resources.
    (b) To encourage the States to provide facilities for fostering 
better labor-management relations and for resolving disputes.
    (c) To proffer its services in labor-management disputes in any 
industry affecting commerce, except as to any matter which is subject to 
the provisions of the Railway Labor Act, as amended, either upon its own 
motion or upon the request of one or more of the parties to the dispute, 
whenever in its judgment such dispute threatens to cause a substantial 
interruption to commerce.
    (d) To refrain from proffering its services:
    (1) In labor-management disputes affecting intrastate commerce 
exclusively,
    (2) In labor-management disputes having a minor effect on interstate 
commerce, if State or other conciliation services are available to the 
parties, or
    (3) In a labor-management dispute when a substantial question of 
representation has been raised, or to continue to make its facilities 
available when a substantial question of representation is raised during 
the negotiations.
    (e) To proffer its services in any labor-management dispute directly 
involving Government procurement contracts necessary to the national 
defense, or in disputes which imperil or threaten to imperil the 
national health or safety.
    (f) To proffer its services to the parties in grievance disputes 
arising over the application or interpretation of an existing 
collective-bargaining agreement only as a last resort and in exceptional 
cases.



Sec. 1403.3  Obtaining data on labor-management disputes.

    When the existence of a labor-management dispute comes to the 
attention of the Federal Service upon a request for mediation service 
from one or more parties to the dispute, through notification under the 
provisions of section 8(d)(3), title I of the Labor-Management Relations 
Act, 1947, or otherwise, the Federal Service will examine the 
information to determine if the Service should proffer its services 
under its policies. If sufficient data on which to base a determination 
is not at hand, the Federal Service will inquire into the circumstances 
surrounding the case. Such inquiry will be conducted for fact-finding 
purposes only and is not to be interpreted as the Federal Service 
proffering its services.



Sec. 1403.4  Assignment of mediators.

    The Federal Service will assign one or more mediators to each labor-
management dispute in which it has been determined that its services 
should proffered.



Sec. 1403.5  Relations with State and local mediation agencies.

    (a) If under State or local law a State or local mediation agency 
must offer its facilities in a labor-management dispute in which the 
Federal Service is proffering its services, the interests of such 
agencies will be recognized and their co-operation will be encouraged in 
order that all efforts may be made to prevent or to effectively minimize 
industrial strife.
    (b) If, in a labor-management dispute there is reasonable doubt that 
the dispute threatens to cause a substantial interruption to commerce or 
that there is more than a minor effect upon interstate commerce, and 
State or other conciliation services are available to the parties, the 
regional director of the Federal Service will endeavor to work out 
suitable arrangements with the

[[Page 45]]

State or other conciliation or mediation agency for mediation of the 
dispute. Decisions in such cases will take into consideration the 
desires of the parties, the effectiveness and availability of the 
respective facilities, and the public welfare, health, and safety.
    (c) If requested by a State or local mediation agency or the chief 
executive of a State or local government, the Federal Service may make 
its services available in a labor-management dispute which would have 
only a minor effect upon interstate commerce when, in the judgment of 
the Federal Service, the effect of the dispute upon commerce or the 
public welfare, health, or safety justifies making available its 
mediation facilities.



PART 1404--ARBITRATION SERVICES--Table of Contents




         Subpart A--Arbitration Policy; Administration of Roster

Sec.
1404.1  Scope and authority.
1404.2  Policy.
1404.3  Administrative responsibilities.

        Subpart B--Roster of Arbitrators; Admission and Retention

1404.4  Roster and status of members.
1404.5  Listing on the roster; criteria for listing and retention.
1404.6  Inactive status.
1404.7  Listing fee.

             Subpart C--Procedures for Arbitration Services

1404.8  Freedom of choice.
1404.9  Procedures for requesting arbitration lists and panels.
1404.10  Arbitrability.
1404.11  Nominations of arbitrators.
1404.12  Selection by parties and appointments of arbitrators.
1404.13  Conduct of hearings.
1404.14  Decision and award.
1404.15  Fees and charges of arbitrators.
1404.16  Reports and biographical sketches.

                    Subpart D--Expedited Arbitration

1404.17  Policy.
1404.18  Procedures for requesting expedited panels.
1404.19  Arbitration process.
1404.20  Arbitrator eligibility.
1404.21  Proper use of expedited arbitration.

Appendix to 29 CFR Part 1404--Arbitration Policy; Schedule of Fees

    Authority: 29 U.S.C. 172 and 29 U.S.C. 173 et seq.

    Source: 62 FR 34171, June 25, 1997, unless otherwise noted.



         Subpart A--Arbitration Policy; Administration of Roster



Sec. 1404.1  Scope and authority.

    This chapter is issued by the Federal Mediation and Conciliation 
Service (FMCS) under Title II of the Labor Management Relations Act of 
1947 (Pub. L. 80-101) as amended. It applies to all arbitrators listed 
on the FMCS Roster of Arbitrators, to all applicants for listing on the 
Roster, and to all persons or parties seeking to obtain from FMCS either 
names or panels of names of arbitrators listed on the Roster in 
connection with disputes which are to be submitted to arbitration or 
factfinding.



Sec. 1404.2  Policy.

    The labor policy of the United States promotes and encourages the 
use of voluntary arbitration to resolve disputes over the interpretation 
or application of collective bargaining agreements. Voluntary 
arbitration and factfinding are important features of constructive 
employment relations as alternatives to economic strife.



Sec. 1404.3  Administrative responsibilities.

    (a) Director. The Director of FMCS has responsibility for all 
aspects of FMCS arbitration activities and is the final agency authority 
on all questions concerning the Roster and FMCS arbitration procedures.
    (b) Office of Arbitration Services. The Office of Arbitration 
Services (OAS) maintains a Roster of Arbitrators (the Roster); 
administers subpart C of this part (Procedures for Arbitration 
Services); assists, promotes, and cooperates in the establishment of 
programs for training and developing new arbitrators; and provides names 
or panels of names of listed arbitrators to parties requesting them.
    (c) Arbitrator Review Board. The Arbitrator Review Board shall 
consist of a

[[Page 46]]

chairman and members appointed by the Director who shall serve at the 
Director's pleasure. The Board shall be composed entirely of full-time 
officers or employees of the Federal Government and shall establish 
procedures for carrying out its duties.
    (1) Duties of the Board. The Board shall:
    (i) Review the qualifications of all applicants for listing on the 
Roster, interpreting and applying the criteria set forth in Sec. 1404.5;
    (ii) Review the status of all persons whose continued eligibility 
for listing on the Roster has been questioned under Sec. 1404.5;
    (iii) Recommend to the Director the acceptance or rejection of 
applicants for listing on the Roster, or the withdrawal of listing on 
the Roster for any of the reasons set forth in this part;
    (iv) At the request of the Director of FMCS, review arbitration 
policies and procedures, including all regulations and written guidance 
regarding the use of the FMCS arbitrators, and make recommendations 
regarding such policies and procedures to the Director.
    (2) [Reserved]



        Subpart B--Roster of Arbitrators; Admission and Retention



Sec. 1404.4  Roster and status of members.

    (a) The Roster. FMCS shall maintain a Roster of labor arbitrators 
consisting of persons who meet the criteria for listing contained in 
Sec. 1404.5 and who remain in good standing.
    (b) Adherence of standards and requirements. Persons listed on the 
Roster shall comply with FMCS rules and regulations pertaining to 
arbitration and with such guidelines and procedures as may be issued by 
the OAS pursuant to subpart C of this part. Arbitrators shall conform to 
the ethical standards and procedures set forth in the Code of 
Professional Responsibility for Arbitrators of Labor Management 
Disputes, as approved by the National Academy of Arbitrators, Federal 
Mediation and Conciliation Service, and the American Arbitration 
Association.
    (c) Status of arbitrators. Persons who are listed on the Roster and 
are selected or appointed to hear arbitration matters or to serve as 
factfinders do not become employees of the Federal Government by virtue 
of their selection or appointment. Following selection or appointment, 
the arbitrator's relationship is solely with the parties to the dispute, 
except that arbitrators are subject to certain reporting requirements 
and to standards of conduct as set forth in this part.
    (d) Role of FMCS. FMCS has no power to:
    (1) Compel parties to appear before an arbitrator;
    (2) Enforce an agreement to arbitrate;
    (3) Compel parties to arbitrate any issue;
    (4) Influence, alter, or set aside decisions of arbitrators on the 
Roster;
    (5) Compel, deny, or modify payment of compensation to an 
arbitrator.
    (e) Nominations and panels. On request of the parties to an 
agreement to arbitrate or engage in factfinding, or where arbitration or 
factfinding may be provided for by statute, OAS will provide names or 
panels of names for a nominal fee. Procedures for obtaining these 
services are outlined in subpart C of this part. Neither the submission 
of a nomination or panel nor the appointment of an arbitrator 
constitutes a determination by FMCS that an agreement to arbitrate or 
enter factfinding proceedings exists; nor does such action constitute a 
ruling that the matter in controversy is arbitrable under any agreement.
    (f) Rights of persons listed on the Roster. No person shall have any 
right to be listed or to remain listed on the Roster. FMCS retains its 
authority and responsibility to assure that the needs of the parties 
using its services are served. To accomplish this purpose, FMCS may 
establish procedures for the preparation of panels or the appointment of 
arbitrators or factfinders which include consideration of such factors 
as background and experience, availability, acceptability, geographical 
location, and the expressed preferences of the parties. FMCS may also 
establish procedures for the removal from the Roster of those 
arbitrators who fail to adhere to provisions contained in this part.

[[Page 47]]



Sec. 1404.5  Listing on the roster; criteria for listing and retention.

    Persons seeking to be listed on the Roster must complete and submit 
an application form which may be obtained from OAS. Upon receipt of an 
executed application, OAS will review the application, assure that it is 
complete, make such inquiries as are necessary, and submit the 
application to the Arbitrator Review Board. The Board will review the 
completed application under the criteria in paragraphs (a), (b), and (c) 
of this section, and will forward to the FMCS Director its 
recommendation as to whether or not the applicant meets the criteria for 
listing on the Roster. The Director shall make all final decisions as to 
whether an applicant may be listed on the Roster. Each applicant shall 
be notified in writing of the Director's decision and the reasons 
therefor.
    (a) General criteria. Applicants for the Roster will be listed on 
the Roster upon a determination that they are experienced, competent, 
and acceptable in decision-making roles in the resolution of labor 
relations disputes.
    (b) Proof of qualification. Qualifications for listing on the Roster 
may be demonstrated by submission of five (5) arbitration awards 
prepared by the applicant while serving as an impartial arbitrator of 
record chosen by the parties to labor disputes arising under collective 
bargaining agreements. The Board will consider experience in relevant 
positions in collective bargaining or as a judge or hearing examiner in 
labor relations controversies as a substitute for such awards.
    (c) Advocacy. Any person who at the time of application is an 
advocate as defined in paragraph (c)(1) of this section, must agree to 
cease such activity before being recommended for listing on the Roster 
by the Board. Except in the case of persons listed on the Roster as 
advocates before November 17, 1996, any person who did not divulge his 
or her advocacy at the time of listing or who becomes an advocate while 
listed on the Roster, shall be recommended for removal by the Board 
after the fact of advocacy is revealed.
    (1) Definition of advocacy. An advocate is a person who represents 
employers, labor organizations, or individuals as an employee, attorney, 
or consultant, in matters of labor relations, including but not limited 
to the subjects of union representation and recognition matters, 
collective bargaining, arbitration, unfair labor practices, equal 
employment opportunity, and other areas generally recognized as 
constituting labor relations. The definition includes representatives of 
employers or employees in individual cases or controversies involving 
worker's compensation, occupational health or safety, minimum wage, or 
other labor standards matters. This definition of advocate also includes 
a person who is directly associated with an advocate in a business or 
professional relationship, as for example, partners or employees of a 
law firm. Consultants engage only in joint education or training or 
other non-adversarial activities will not be deemed as advocates.
    (2) [Reserved]
    (d) Duration of listing, retention. Listing on the Roster shall be 
by decision of the Director of FMCS based upon the recommendations of 
the Arbitrator Review Board. The Board may recommend, and the Director 
may remove, any person listed on the Roster, for violation of this part 
and/or the Code of Professional Responsibility. Notice of cancellation 
or suspension shall be given to a person listed on the Roster whenever a 
Roster member:
    (1) No longer meets the criteria for admission;
    (2) Has become an advocate as defined in paragraph (c) of this 
section;
    (3) Has been repeatedly or flagrantly delinquent in submitting 
awards;
    (4) Has refused to make reasonable and periodic reports in a timely 
manner to FMCS, as required in subpart C of this part, concerning 
activities pertaining to arbitration;
    (5) Has been the subject of complaints by parties who use FMCS 
services, and the Board after appropriate inquiry, concludes that just 
cause for cancellation has been shown;
    (6) Is determined by the Director to be unacceptable to the parties 
who use FMCS arbitration services; the Director may base a determination 
of unacceptability on FMCS records which show the number of times the 
arbitrator's name has been proposed to

[[Page 48]]

the parties and the number of times it has been selected. Such cases 
will be reviewed for extenuating circumstances, such as length of time 
on the Roster or prior history.
    (e) The Board may, at its discretion, conduct an inquiry into the 
facts of any proposed removal from the Roster. An arbitrator listed on 
the Roster may only be removed after 60-day notice and an opportunity to 
submit a response or information showing why the listing should not be 
canceled. The Board may recommend to the Director whether to remove an 
arbitrator from the Roster. All determinations to remove an arbitrator 
from the Roster shall be made by the Director. Removals may be for a 
period of up to two (2) years, after which the arbitrator may seek 
reinstatement.
    (f) The Director of OAS may suspend for a period not to exceed 180 
days any person listed on the Roster who has violated any of the 
criteria in paragraph (d) of this section. Arbitrators shall be promptly 
notified of a suspension. They may appeal a suspension to the Arbitrator 
Review Board, which shall make a recommendation to the Director of FMCS. 
The decision of the Director of FMCS shall constitute the final action 
of the agency.



Sec. 1404.6  Inactive status.

    A member of the Roster who continues to meet the criteria for 
listing on the Roster may request that he or she be put in an active 
status on a temporary basis because of ill health, vacation, schedule, 
or other reasons.



Sec. 1404.7  Listing fee.

    All arbitrators will be required to pay an annual fee for listing on 
the Roster, as set forth in the Appendix to this part.



             Subpart C--Procedures for Arbitration Services



Sec. 1404.8  Freedom of choice.

    Nothing contained in this part should be construed to limit the 
rights of parties who use FMCS arbitration services to jointly select 
any arbitrator or arbitration procedure acceptable to them. Once a 
request is made to OAS, all parties are subject to the procedures 
contained in this part.



Sec. 1404.9  Procedures for requesting arbitration lists and panels.

    (a) The Office of Arbitration Services (OAS) has been delegated the 
responsibility for administering all requests for arbitration services. 
Requests should be addressed to the Federal Mediation and Conciliation 
Service, Office of Arbitration Services, Washington, DC 20427.
    (b) The OAS will refer a panel of arbitrators to the parties upon 
request. The parties are encouraged to make joint requests. In the 
event, however, that the request is made by only one party, the OAS will 
submit a panel of arbitrators. However, the issuance of a panel--
pursuant to either joint or unilateral request--is nothing more than a 
response to a request. It does not signify the adoption of any position 
by the FMCS regarding the arbitrability of any dispute or the terms of 
the parties' contract.
    (c) As an alternative to a request for a panel of names, OAS will, 
upon written request, submit a list of all arbitrators and their 
biographical sketches from a designated geographical area. The parties 
may then select and deal directly with an arbitrator of their choice, 
with no further involvement of FMCS with the parties or the arbitrator. 
The parties may also request FMCS to make a direct appointment of their 
selection. In such a situation, a case number will be assigned.
    (d) The OAS reserves the right to decline to submit a panel or make 
appointments of arbitrators, if the request submitted is overly 
burdensome or otherwise impracticable. The OAS, in such circumstances, 
may refer the parties to an FMCS mediator to help in the design of an 
alternative solution. The OAS may also decline to service any requests 
from parties with a demonstrated history of non-payment of arbitrator 
fees or other behavior which constrains the spirit or operation of the 
arbitration process.
    (e) The parties are required to use the Request for Arbitration 
Panel (Form R-43), which has been prepared by the OAS and is available 
in quantity upon request to the Federal Mediation

[[Page 49]]

and Conciliation Service, Office of Arbitration Services, Washington, DC 
20427, or by calling (202) 606-5111 or at www.fmcs.gov. Requests that do 
not contain all required information requested on the R-43 in 
typewritten form may be rejected.
    (f) Requests made by only one party, for a service other than the 
furnishing of a standard list or panel of seven (7) arbitrators, will 
not be honored unless authorized by the applicable collective bargaining 
agreement. This includes unilateral requests for a second or third panel 
or for a direct appointment of an arbitrator.
    (g) The OAS will charge a nominal fee for all requests for lists, 
panels, and other major services. Payments for these services must be 
received with the request for services before the service is delivered 
and may be paid by either labor or management or both. A schedule of 
fees is listed in the Appendix to this part.



Sec. 1404.10  Arbitrability.

    The OAS will not decide the merits of a claim by either party that a 
dispute is not subject to arbitration.



Sec. 1404.11  Nominations of arbitrators.

    (a) The parties may also report a randomly selected panel containing 
the names of seven (7) arbitrators accompanied by a biographical sketch 
for each member of the panel. This sketch states the background, 
qualifications, experience, and all fees as furnished to the OAS by the 
arbitrator. Requests for a panel of seven (7) arbitrators, whether joint 
or unilateral, will be honored. Requests for a panel of other than seven 
(7) names, for a direct appointment of an arbitrator, for special 
qualifications or other service will not be honored unless jointly 
submitted or authorized by the applicable collective bargaining 
agreement. Alternatively, the parties may request a list and 
biographical sketches of some or all arbitrators in one or more 
designated geographical areas. If the parties can agree on the selection 
of an arbitrator, they may appoint their own arbitrator directly without 
any further case tracking by FMCS. No case number will be assigned.
    (b) All panels submitted to the parties by the OAS, and all letters 
issued by the OAS making a direct appointment, will have an assigned 
FMCS case number. All future communications between the parties and the 
OAS should refer to this case number.
    (c) The OAS will provide a randomly selected panel of arbitrators 
located in state(s) in proximity of the hearing site. The parties may 
request special qualifications of arbitrators experienced in certain 
issues or industries or that possess certain backgrounds. The OAS has no 
obligation to put an individual on any given panel, or on a minimum 
number of panels in any fixed period. In general:
    (1) The geographic location of arbitrators placed on panels is 
governed by the site of the dispute as stated on the request received by 
the OAS.
    (2) If at any time both parties request that a name or names be 
included, or omitted, from a panel, such name or names will be included, 
or omitted, unless the number of names is excessive. These inclusions/
exclusions may not discriminate against anyone because of age, race, 
gender, ethnicity or religious beliefs.
    (d) If the parties do not agree on an arbitrator from the first 
panel, the OAS will furnish a second and third panel to the parties upon 
joint request and payment of an additional fee. Requests for a second or 
third panel should be accompanied by a brief explanation as to why the 
previous panel(s) was inadequate. If parties are unable to agree on a 
selection after having received three panels, the OAS will make a direct 
appointment upon joint request.



Sec. 1404.12  Selection by parties and appointments of arbitrators.

    (a) After receiving a panel of names, the parties must notify the 
OAS of their selection of an arbitrator or of the decision not to 
proceed with arbitration. Upon notification of the selection of an 
arbitrator, the OAS will make a formal appointment of the arbitrator. 
The arbitrator, upon notification of appointment, is expected to 
communicate with the parties within

[[Page 50]]

14 days to arrange for preliminary matters, such as the date and place 
of hearing. Should an arbitrator be notified directly by the parties 
that he or she has been selected, the Arbitrator must promptly notify 
the OAS of the selection and his or her willingness to serve. If the 
parties settle a case prior to the hearing, the parties must inform the 
arbitrator as well as the OAS. Consistent failure to follow these 
procedures may lead to a denial of future OAS service.
    (b) If the parties request a list of names and biographical sketches 
rather than a panel, they may choose to appoint and contact an 
arbitrator directly. In this situation, neither the parties nor the 
arbitrator is required to furnish any additional information to FMCS and 
no case number will be assigned.
    (c) Where the parties' collective bargaining agreement is silent on 
the manner of selecting arbitrators, the parties may wish to consider 
any jointly determined method or one of the following methods for 
selection of an arbitrator from a panel:
    (1) Each party alternately strikes a name from the submitted panel 
until one remains, or
    (2) Each party advises the OAS of its order of preference by 
numbering each name on the panel and submitting the numbered lists in 
writing to the OAS. The name that has the lowest combined number will be 
appointed.
    (3) In those situations where the parties separately notify the OAS 
of their preferred selections, once the OAS receives the preferred 
selection from one party, it will notify the other party that it has 
fourteen (14) days in which to submit its selections. If that party 
fails to respond within the deadline, the first party's choice will be 
honored. If, within 14 days, a second panel is requested and is allowed 
by the collective bargaining agreement, the requesting party must pay a 
fee for the second panel.
    (d) The OAS will make a direct appointment of an arbitrator only 
upon joint request unless authorized by the applicable collective 
bargaining agreement.
    (e) The issuance of a panel of names or a direct appointment in no 
way signifies a determination on arbitrability or an interpretation of 
the terms and conditions of the collective bargaining agreement. The 
resolution of such disputes rests solely with the parties.



Sec. 1404.13  Conduct of hearings.

    All proceedings conducted by the arbitrators shall be in conformity 
with the contractual obligations of the parties. The arbitrator shall 
comply with Sec. 1404.4(b). The conduct of the arbitration proceeding is 
under the arbitrator's jurisdiction and control, and the arbitrator's 
decision shall be based upon the evidence and testimony presented at the 
hearing or otherwise incorporated in the record of the proceeding. The 
arbitrator may, unless prohibited by law, proceed in the absence of any 
party who, after due notice, fails to be present or to obtain a 
postponement. An award rendered in an ex parte proceeding of this nature 
must be based upon evidence presented to the arbitrator.



Sec. 1404.14  Decision and award.

    (a) Arbitrators shall make awards no later than 60 days from the 
date of the closing of the record as determined by the arbitrator, 
unless otherwise agreed upon by the parties or specified by the 
collective bargaining agreement or law. However, failure to meet the 60 
day deadline will not invalidate the process or award. A failure to 
render timely awards reflects upon the performance of an arbitrator and 
may lead to removal from the FMCS Roster.
    (b) The parties should inform the OAS whenever a decision is unduly 
delayed. The arbitrator shall notify the OAS if and when the arbitrator:
    (1) Cannot schedule, hear, and render decisions promptly, or
    (2) Learns a dispute has been settled by the parties prior to the 
decision.
    (c) Within 15 days after an award has been submitted to the parties, 
the arbitrator shall submit an Arbitrator's Report and Fee Statement 
(Form R-19) to OAS showing a breakdown of the fee and expense charges so 
that the OAS may review conformance with stated charges under 
Sec. 1404.11(a). The Form R-19 is not to be used to invoice the parties.

[[Page 51]]

    (d) While FMCS encourages the publication of arbitration awards, 
arbitrators should not publicize awards if objected to by one of the 
parties.



Sec. 1404.15  Fees and charges of arbitrators.

    (a) FMCS will charge all arbitrators an annual fee to be listed on 
the Roster. All arbitrators listed on the Roster may charge a per diem 
and other predetermined fees for services, if the amount of such fees 
have been provided in advance to FMCS. Each arbitrator's maximum per 
diem and other fees are set forth on a biographical sketch which is sent 
to the parties when panels are submitted. The arbitrators shall not 
change any fee or add charges without giving at least 30 days advance 
written notice to FMCS. Arbitrators with dual business addresses must 
bill the parties for expenses from the least expensive business address 
to the hearing site.
    (b) In cases involving unusual amounts of time and expenses relative 
to the pre-hearing and post-hearing administration of a particular case, 
an administrative charge may be made by the arbitrator.
    (c) Arbitrators shall divulge all charges to the parties and obtain 
agreement thereto immediately after appointment.
    (d) The OAS requests that it be notified of any arbitrator's 
deviation from the policies expressed in this part. While the OAS does 
not resolve individual fee disputes, repeated complaints concerning the 
fees charged by an arbitrator will be brought to the attention of the 
Arbitrator Review Board for consideration. Similarly, repeated 
complaints by arbitrators concerning non-payment of fees by the parties 
may lead to the denial of services or other actions by the OAS.



Sec. 1404.16  Reports and biographical sketches.

    (a) Arbitrators listed on the Roster shall execute and return all 
documents, forms and reports required by the OAS. They shall also keep 
the OAS informed of changes of address, telephone number, availability, 
and of any business or other connection or relationship which involves 
labor-management relations or which creates or gives the appearance of 
advocacy as defined in Sec. 1404.5(c)(1).
    (b) The OAS will provide biographical sketches on each person 
admitted to the Roster from information supplied by applicants. 
Arbitrators may request revision of biographical information at later 
dates to reflect changes in fees, the existence of additional charges, 
or other relevant data. The OAS reserves the right to decide and approve 
the format and content of biographical sketches.



                    Subpart D--Expedited Arbitration

    Source: 62 FR 48949, Sept. 18, 1997, unless otherwise noted.



Sec. 1404.17  Policy

    In an effort to reduce the time and expense of some grievance 
arbitrators, FMCS is offering expedited procedures that may be 
appropriate in certain non-precedential cases or those that do not 
involve complex or unique issues. Expedited Arbitrator is intended to be 
a mutually agreed upon process whereby arbitrator appointments, hearings 
and awards are acted upon quickly by the parties, FMCS, and the 
arbitrators. The process is streamlined by mandating short deadlines and 
eliminating requirements for transcripts, briefs and lengthy opinions.



Sec. 1404.18  Procedures for requesting expedited panels.

    (a) With the excepting of the specific changes noted in this 
Subpart, all FMCS rules and regulations governing its arbitration 
services shall apply to Expedited Arbitration.
    (b) Upon receipt of a joint Request for Arbitration Panel (Form R-
43) indicating that expedited services are desired by both parties, the 
OAS will require a panel of arbitrators.

[[Page 52]]

    (c) A panel of arbitrators submitted by the OAS in expedited cases 
shall be valid for up to 30 days. Only one panel will be submitted per 
case. If the parties are unable to mutually agree upon an arbitrator or 
if prioritized selections are not received from both parties within 30 
days, the OAS will make a direct appointment of an arbitrator not on the 
original panel.
    (d) If the parties mutually select an arbitrator, but the arbitrator 
is not available, the parties may select a second name from the same 
panel or the OAS will make a direct appointment of another arbitrator 
not listed on the original panel.



Sec. 1404.19  Arbitration process.

    (a) Once notified of the expedited case appointment by the OAS, the 
arbitrator must contact the parties within seven (7) calendar days.
    (b) The parties and the arbitrator must attempt to schedule a 
hearing within 30 days of the appointment date.
    (c) Absent mutual agreement, all hearings will be concluded within 
one day. No transcripts of the proceedings will be made and the filing 
of post-hearing briefs will not be allowed.
    (d) All awards must be completed within seven (7) working days from 
the hearing. These awards are expected to be brief, concise, and not 
required extensive written opinion or research time.



Sec. 1404.20  Arbitrator eligibility.

    In an effort to increase exposure for new arbitrators, those 
arbitrators who have been listed on the Roster of Arbitrators for a 
period of five (5) years or less will be automatically placed on 
expedited panels submitted to the parties. However, all panels will also 
contain the names of at least two more senior arbitrators. In addition, 
the parties may jointly request a larger pool of arbitrators or a direct 
appointment of their choice who is listed on the Roster.



Sec. 1404.21  Proper use of expedited arbitration.

    (a) FMCS reserves the right to cease honoring request for Expedited 
Arbitration if a pattern of misuse of this becomes apparent. Misuse may 
be indicated by the parties' frequent delay of the process or referral 
of inappropriate cases.
    (b) Arbitrators who exhibit a pattern of unavailability of 
appointments or who are repeatedly unable to schedule hearings or render 
awards within established deadlines will be considered ineligible for 
appointment for this service.

   Appendix to 29 CFR Part  1404--Arbitration Policy; Schedule of Fees

Annual listing fee for all arbitrators: $100 for the first address; $50 
for second address
Request for panel of arbitrators: $30 for each panel request (includes 
subsequent appointment)
Direct appointment of arbitrator when a panel is not used--$20 per 
appointment
List and biographic sketches of arbitrators in a specific area--$10 per 
request plus $.10 per page



PART 1405--PART-TIME EMPLOYMENT--Table of Contents




                           Subpart A--General

Sec.
1405.1  Purpose.
1405.2  Policy.
1405.3  Definition.
1405.4  Applicability.

                 Subpart B--Part-time Employment Program

1405.6  Program coordination.
1405.7  Goals and timetables.
1405.8  Reporting.
1405.9  Part-time employment practices.
1405.10  Effect on employment ceilings.
1405.11  Effect on employee benefits.

    Authority: Pub. L. 95-437, Federal Employees Part-time Career 
Employment Act of 1978.

    Source: 47 FR 15779, Apr. 13, 1982, unless otherwise noted.



                           Subpart A--General



Sec. 1405.1  Purpose.

    These regulations implement Public Law 95-437, the Federal Employees 
Part-time Career Employment Act of 1978, by establishing a continuing 
program in the Federal Mediation and Conciliation Service (FMCS) to 
provide career part-time employment opportunities.



Sec. 1405.2  Policy.

    It is the policy of FMCS to provide career part-time employment 
opportunities in positions through GS-16 (or equivalent) subject to 
agency resources and mission requirements.

[[Page 53]]



Sec. 1405.3  Definition.

    Part-time career employment means regularly scheduled work of from 
16 to 32 hours per week performed by employees in competitive or 
excepted appointments in tenure groups I or II.



Sec. 1405.4  Applicability.

    The regulations cover permanent positions which are deemed by 
management to be appropriately structured on a part-time basis. The 
regulations do not apply to positions at GS-16 (or equivalent) and 
above.



                 Subpart B--Part-time Employment Program



Sec. 1405.6  Program coordination.

    The Director of Personnel is designated the FMCS Part-time 
Employment Coordinator with responsibility for:
    (a) Consulting in the part-time employment program with the Director 
of Equal Employment Opportunity, Federal Women's Program Coordinator, 
Handicapped Program Coordinator, representatives of employee unions, and 
other interested parties;
    (b) Responding to requests for advice and assistance on part-time 
employment within the agency;
    (c) Maintaining liaison with groups interested in promoting part-
time employment opportunities;
    (d) Monitoring the agency's part-time employment efforts; and 
preparing reports on part-time employment for transmittal to OPM and the 
Congress.



Sec. 1405.7  Goals and timetables.

    On an annual basis, as part of the manpower and budget process, 
management will set goals for establishing part-time positions to part-
time along with a timetable setting forth interim and final deadlines 
for achieving the goals. Decisions on part-time employment will be based 
on such factors as agency mission, occupational mix, workload 
fluctuations, affirmative actions, geographic dispersion, effect on 
providing services to the public, and employee interest in part-time 
employment.



Sec. 1405.8  Reporting.

    FMCS will report as required by regulations to the Office of 
Personnel Management on the part-time employment program. The program 
will be reviewed through internal personnel management evaluations.



Sec. 1405.9  Part-time employment practices.

    FMCS will review positions which become vacant for the feasibility 
of utilizing part-time career appointments. Part-time positions will be 
advertised in vacancy announcements. Agency employees may request and 
receive consideration to switch from full-time to part-time schedules. 
The request should be addressed through the supervisor to the Director 
of Personnel listing any and all reasons for the request. The Director 
of Personnel, with input from all affected management officials, will 
decide whether or not to grant the request. Any employee requesting a 
change from full-time to part-time employment will be advised of effects 
on pay and fringe benefits by the Director of Personnel.



Sec. 1405.10  Effect on employment ceilings.

    Effective October 1, 1980, part-time employees will be counted on 
the basis of the fractional part of the 40-hour week actually worked. 
For example two employees each working twenty hours a week will count as 
one employee.



Sec. 1405.11  Effect on employee benefits.

    Career part-time employees are entitled to coverage under the 
Federal Employees Group Life Insurance and Federal Employees Health 
Benefits Programs. The Government contribution for health insurance of 
eligible part-time employees will be prorated on the basis of the 
fraction of a full-time schedule worked.



PART 1410--PRIVACY--Table of Contents




Sec.
1410.1  Purpose and scope.
1410.2  Definitions.
1410.3  Individual access requests.
1410.4  Requirements for identification of individuals making requests.

[[Page 54]]

1410.5  Special procedures: Medical records.
1410.6  Requests for correction or amendment of records.
1410.7  Agency review of refusal to amend a record.
1410.8  Notation of dispute.
1410.9  Fees.
1410.10  Penalties.
1410.11  Standards of review.
1410.12  Specific exemptions.

    Authority: Privacy Act 1974, Pub. L. 93-579, 88 Stat. 1896 (5 U.S.C. 
552a).

    Source: 40 FR 47418, Oct. 8, 1975, unless otherwise noted.



Sec. 1410.1  Purpose and scope.

    (a) The purpose of this part is to set forth rules to inform the 
public about information maintained by the Federal Mediation and 
Conciliation Service about individuals, to inform those individuals how 
they may gain access to and correct or amend information about 
themselves, and to exempt disclosure of identity of confidential sources 
of certain records.
    (b) [Reserved]



Sec. 1410.2  Definitions.

    For the purposes of this part, unless otherwise required by the 
context--
    (a) Individual means a citizen of the United States or an alien 
lawfully admitted for permanent residence.
    (b) Maintain means maintain, collect, use or disseminate.
    (c) Record means any item, collection or grouping of information 
about an individual that is maintained by the Federal Mediation and 
Conciliation Service including, but not limited to, his education, 
financial transactions, medical history, and criminal or employment 
history, that contains his name, or the identifying number, symbol, or 
other identifying particular assigned to the individual, such as a 
finger or voice print, or a photograph.
    (d) System of records means a group of any records under the control 
of Federal Mediation and Conciliation Service from which information is 
retrieved by the name of the individual or by some identifying 
particular assigned to the individual.



Sec. 1410.3  Individual access requests.

    (a) Individuals who desire to know whether the agency maintains a 
system of records containing records pertaining to him may submit a 
written request to the Director of Administration, Federal Mediation and 
Conciliation Service, Washington, DC 20427. The request must include the 
name and address of the requestor. The Director of Administration, or 
his designated representative, will advise the requestor in writing 
within 10 working days whether the records are so maintained and the 
general category of records maintained within the system.
    (b) Any individual who desires to inspect or receive copies of any 
record maintained within the system concerning him shall submit a 
written request to the Director of Administration, Federal Mediation and 
Conciliation Service, Washington, DC 20427, reasonably identifying the 
records sought to be inspected or copied.
    (c) The individual seeking access to his record may also have 
another person accompanying him during his review of the records. If the 
requestor desires another person to accompany him during the inspection, 
the requestor must sign a statement, to be furnished to the Service 
representative at the time of the inspection authorizing such other 
person to accompany him. Except as required under the Freedom of 
Information Act, permitted as a routine use as published in the agency's 
annual notice, or for internal agency use, disclosure of records will 
only be made to the individual to whom the record pertains, unless 
written consent is obtained from that individual. The Director of 
Administration will verify the signature of the individual requesting or 
consenting to the disclosure of a record prior to the disclosure thereof 
to any other person by a comparison of signatures, if the request or 
consent is not executed within the presence of a designated Service 
representative.
    (d) The Director of Administration or his designated representative 
will advise the requestor in writing within 10 working days of receipt 
of the request whether, to what extent, and approximately when and where 
access shall be granted. Within 30 days of receipt of the request, the 
records will be made available for review at the FMCS National Office in 
Washington, DC, or one of the Regional Offices. The following

[[Page 55]]

is a list of the Regional Office locations:

    1. Eastern Region:
    Address: Jacob K. Javits Federal Building, 26 Federal Plaza, Room 
2937, New York, NY 10278.
    Consists of: Maine, New Hampshire, Vermont, Connecticut, Rhode 
Island, Massachusetts, New York, Puerto Rico, the Virgin Islands, 
Pennsylvania, Delaware, New Jersey, Garrett and Alleghany Counties of 
Maryland; and Brooke and Hancock Counties of West Virginia.
    2. Central Region:
    Address: Insurance Exchange Building, Room 1641, 175 W. Jackson 
Street, Chicago, IL 60604.
    Consist of: Illinois (except counties listed under the the Southern 
Region); Indiana (except counties listed under Southern Region); 
Wisconsin, Minnesota, North Dakota, South Dakota, Michigan, and Ohio 
(except counties listed under the Southern Region).
    3. Southern Region:
    Address: Suite 400, 1422 W. Peachtree St., NW., Atlanta, GA 30309.
    Consists of: Virginia, Maryland (except counties listed under the 
Eastern Region); Tennessee; North Carolina; South Carolina; Georgia; 
Alabama; Florida; Mississippi; Louisiana; Arkansas; Kentucky; Texas 
(except for Hudspeth and El Paso counties); Oklahoma; Missouri (except 
for those counties listed for the Western Region); Illinois (in counties 
of Calhoun, Greene, Jersey, McCoupin, Montgomery, Fayette, Bond, 
Madison, St. Clair, Monroe, Clinton, Washington, Marion, White, 
Hamilton, Wayne, Edwards, Wabash, Lawrence, Richland, Clay, Effingham, 
Jasper, and Crawford); Indiana (the counties of Knox, Daviess, Martin, 
Orange, Washington, Clark, Floyd, Harrison, Crawford, Perry, Spencer, 
DuBois, Pike, Gibson, Posey, Vanderburgh, and Warrick); Ohio (the 
counties of Butler, Hamilton, Warren, Clermont, Brown, Highland, 
Clinton, Ross, Pike, Adams, Scioto, Lawrence, Ballia, Jackson, Vinton, 
Hocking, Athens, and Meigs); Kansas (the counties of Bourbon, Crawford, 
Cherokee, and Ottawa); West Virginia (except counties listed under the 
Central Region); and the Canal Zone.
    4. Western Region:
    Address: Francisco Bay Building, Suite 235, 50 Francisco Street, San 
Francisco, CA 94133.
    Consists of: California; Nevada; Arizona; New Mexico; El Paso and 
Hudspeth Counties (only) in Texas; Hawaii; Guam; Alaska; Washington; 
Oregon; Colorado; Utah; Wyoming; Montana; Idaho; Nebraska; Kansas; Iowa; 
Missouri (the counties of Atchinson, Nodaway, Worth, Harrison, Mercer, 
Putnam, Schuyler, Scotland, Knox, Adair, Sullivan, Grundy, Daviess, 
Gentry, DeKalb, Andrew, Holt, Buchanan, Clinton, Caldwell, Livingston, 
Linn, Macon, Shelby, Randolph, Chariton, Carrol, Ray, Clay, Platte, 
Jackson, Lafayette, Saline, Howard, Boon, Cooper, Pettis, Johnson, Cass, 
Bates, Henry, St. Clair, Benton, and Morgan); American Somoa; and Wake 
Island.
[40 FR 47418, Oct. 8, 1975, as amended at 47 FR 10530, Mar. 11, 1982]



Sec. 1410.4  Requirements for identification of individuals making requests.

    Satisfactory identification (i.e., employ identification number, 
current address, and verification of signature) must be provided to FMCS 
prior to review of the record. The requestor will be provided the 
opportunity to review the records during normal business hours.



Sec. 1410.5  Special procedures: Medical records.

    (a) If medical records are requested for inspection which, in the 
opinion of the Director of Administration, may be harmful to the 
requestor if personally inspected by him, such records will be furnished 
only to a licensed physician, designated to receive such records by the 
requestor. Prior to such disclosure, the requestor must furnish a signed 
written authorization to the Service to make such disclosure and the 
physician must furnish a written request to the Director of 
Administration for the physician's receipt of such records.
    (b) Verification of the requestor's signature will be accomplished 
by a comparison of signatures if such authorization is not executed 
within the presence of a Service representative.



Sec. 1410.6  Requests for correction or amendment of records.

    (a) If the individual disagrees with the information in the record, 
he may request that the record be amended by addition or deletion. Such 
a request must be in writing and directed to the Director of 
Administration, Federal Mediation and Conciliation Service, Washington, 
DC, 20427. The request must also specifically outline the amendment 
sought. The Director of Administration or his designated representative 
will acknowledge receipt of the request within 10 working days from the 
date of receipt of such request. Under normal circumstances, not later 
than 30 days after receipt of

[[Page 56]]

the request for amendments, the Director of Administration will either:
    (1) Amend the record and notify the requestor in a written letter of 
determination to what extent the record is amended; or
    (2) If the amendment or correction is denied in whole or in part, 
notify the requestor in a written letter of determination the reason for 
denial and the requestor's right to request review by the Deputy 
National Director.
    (b) Routine requests of arbitrators maintained on the Service's 
roster of arbitrators to amend records for such matters as address, 
experience, fees charged, may be made in writing to the Director of 
Arbitration Services, Washington, DC, 20427. If such routine requests 
are not granted or involve other types of amendments, then the procedure 
to be followed is that which includes a request in writing to the 
Director of Administration.



Sec. 1410.7  Agency review of refusal to amend a record.

    (a) The requestor may appeal any determination of the Director of 
Administration not to amend a record by submitting a written request for 
review of refusal to amend a record to the Deputy National Director, 
Washington, DC 20427. Such a request shall indicate the specific 
corrections or amendments sought. Not later than 30 days from receipt of 
a request for review (unless such period is extended by the National 
Director for good cause shown), the Deputy National Director will 
complete such a review and make a final determination on the request, 
and shall advise the requestor in a written letter of determination 
whether, and to what extent the correction or amendment will be made. If 
the correction or amendment is denied, in whole or in part, the letter 
of determination will specify the reasons for such denial.
    (b) If the Deputy National Director makes a final determination not 
to amend the record, the individual may provide to the Service a concise 
written statement explaining the reasons for disagreement with the 
refusal.
    (c) In addition, the individual may file a civil action in the U.S. 
District Court to seek an order compelling the Service to amend the 
record as requested.



Sec. 1410.8  Notation of dispute.

    After an individual has filed a statement of disagreement as 
described in Sec. 1410.7(b), any disclosure of the contested records 
must contain a notation of the dispute. In addition, a copy of the 
individual's statement will be provided to the person or agency to whom 
the disputed record is disclosed. The Service may also, but it is not 
required to, provide a statement reflecting the agency's reasons for not 
making the requested amendments.



Sec. 1410.9  Fees.

    Upon request, the Service will provide a photostatic copy of the 
records to the individual to whom they pertain. There will be a charge 
of $.10 per page.



Sec. 1410.10  Penalties.

    Any person who knowingly and willfully requests or obtains any 
record concerning an individual from the Service under false pretenses 
shall be guilty of a misdemeanor and fined not more than $5,000.



Sec. 1410.11  Standards of review.

    Upon a request for inspection of records or a determination on a 
request for amendment, the Director of Administration, his designated 
representative, or the Deputy National Director will review the 
pertinent records and discard any material in them that is not:
    (a) Relevant and necessary to accomplish a statutory purpose or a 
purpose not authorized by executive order.
    (b) Accurate, relevant, timely, and complete, to assure fairness to 
the individual.



Sec. 1410.12  Specific exemptions.

    With regard to Agency Internal Personnel Records and Arbitrator 
Personal Data Files, separately described in the system notices, such 
records will be exempted from section (d) of the Act as follows:

    Investigatory material maintained solely for the purposes of 
determining an individual's qualification, eligibility, or suitability

[[Page 57]]

for employment in the Federal civilian service, Federal contracts, or 
access to classified information, but only to the extent that disclosure 
of such material would reveal the identity of the source who furnished 
information to the Government under an express promise that the identity 
of the source would be held in confidence, or prior to September 27, 
1975, under an implied promise that the identity of the source would be 
held in confidence.


In order to obtain accurate information pertaining to employee or 
arbitrator eligibility, the nondisclosure of the identity of such a 
confidential source is essential.



PART 1420--FEDERAL MEDIATION AND CONCILIATION SERVICE--ASSISTANCE IN THE HEALTH CARE INDUSTRY--Table of Contents




Sec.
1420.1  Functions of the Service in health care industry bargaining 
          under the Labor-Management Relations Act, as amended 
          (hereinafter ``the Act'').
1420.2-1420.4  [Reserved]
1420.5  Optional input of parties to Board of Inquiry selection.
1420.6-1420.7  [Reserved]
1420.8  FMCS deferral to parties' own private factfinding procedures.
1420.9  FMCS deferral to parties' own private interest arbitration 
          procedures.

    Authority: Secs. 8(d), 201, 203, 204, and 213 of the Labor 
Management Relations Act, as amended in 1974 (29 U.S.C. 158(d), 171, 
173, 174 and 183).

    Source: 44 FR 42683, July 20, 1979, unless otherwise noted.



Sec. 1420.1  Functions of the Service in health care industry bargaining under the Labor-Management Relations Act, as amended (hereinafter ``the Act'').

    (a) Dispute mediation. Whenever a collective bargaining dispute 
involves employees of a health care institution, either party to such 
collective bargaining must give certain statutory notices to the Federal 
Mediation and Conciliation Service (hereinafter ``the Service'') before 
resorting to strike or lockout and before terminating or modifying any 
existing collective bargaining agreement. Thereafter, the Service will 
promptly communicate with the parties and use its best efforts, by 
mediation and conciliation, to bring them to agreement. The parties 
shall participate fully and promptly in such meetings as may be called 
by the Service for the purpose of aiding in a settlement of the dispute. 
(29 U.S.C. 158(d) and 158(g).).
    (b) Boards of inquiry. If, in the opinion of the Director of the 
Service a threatened or actual strike or lockout affecting a health care 
institution will substantially interrupt the delivery of health care in 
the locality concerned, the Director may establish within certain 
statutory time periods an impartial Board of Inquiry. The Board of 
Inquiry will investigate the issues involved in the dispute and make a 
written report, containing the findings of fact and the Board's non-
binding recommendations for settling the dispute, to the parties within 
15 days after the establishment of such a Board. (29 U.S.C. 183.)



Secs. 1420.2-1420.4  [Reserved]



Sec. 1420.5  Optional input of parties to Board of Inquiry selection.

    The Act gives the Director of the Service the authority to select 
the individual(s) who will serve as the Board of Inquiry if the Director 
decides to establish a Board of Inquiry in a particular health care 
industry bargaining dispute (29 U.S.C. 183). If the parties to 
collective bargaining involving a health care institution(s) desire to 
have some input to the Service's selection of an individual(s) to serve 
as a Board of Inquiry (hereinafter ``BoI''), they may jointly exercise 
the following optional procedure:
    (a) At any time at least 90 days prior to the expiration date of a 
collective bargaining agreement in a contract renewal dispute, or at any 
time prior to the notice required under clause (B) of section 8(d) of 
the Act (29 U.S.C. 158(d)) in an initial contract dispute, the 
employer(s) and the union(s) in the dispute may jointly submit to the 
Service a list of arbitrators or other impartial individuals who would 
be acceptable BoI members both to the employer(s) and to the union(s). 
Such list submission must identify the dispute(s) involved and must 
include addresses and telephone numbers of the individuals listed and 
any information available to

[[Page 58]]

the parties as to current and past employment of the individuals listed. 
The parties may jointly rank the individuals in order of preference if 
they desire to do so.
    (b) The Service will make every effort to select any BoI that might 
be appointed from that jointly submitted list. However, the Service 
cannot promise that it will select a BoI from such list. The chances of 
the Service finding one or more individuals on such list available to 
serve as the BoI will be increased if the list contains a sufficiently 
large number of names and if it is submitted at as early a date as 
possible. Nevertheless, the parties can even preselect and submit 
jointly to the Service one specific individual if that individual agrees 
to be available for the particular BoI time period. Again the Service 
will not be bound to appoint that individual, but will be receptive to 
such a submission by the parties.
    (c) The jointly submitted list may be worked out and agreed to by 
(1) A particular set of parties in contemplation of a particular 
upcoming negotiation dispute between them, or (2) a particular set of 
parties for use in all future disputes between that set of parties, or 
(3) a group of various health care institutions and unions in a certain 
community or geographic area for use in all disputes between any two or 
more of those parties.
    (d) Submission or receipt of any such list will not in any way 
constitute an admission of the appropriateness of appointment of a BoI 
nor an expression of the desirability of a BoI by any party or by the 
Service.
    (e) This joint submission procedure is a purely optional one to 
provide the parties with an opportunity to have input into the selection 
of a BoI if they so desire.
    (f) Such jointly submitted lists should be sent jointly by the 
employer(s) and the union(s) to the appropriate regional office of the 
Service. The regional offices of the Service are as follows:

    1. Eastern Region:
    Address: Jacob K. Javits Federal Building, 26 Federal Plaza, Room 
2937, New York, NY 10278.
    Consists of: Maine, New Hampshire, Vermont, Connecticut, Rhode 
Island, Massachusetts, New York, Puerto Rico, the Virgin Islands, 
Pennsylvania, Delaware, New Jersey, Garrett and Alleghany Counties of 
Maryland; and Brooke and Hancock Counties of West Virginia.
    2. Central Region:
    Address: Insurance Exchange Building, Room 1641, 175 W. Jackson 
Street, Chicago, IL 60604.
    Consist of: Illinois (except counties listed under the the Southern 
Region); Indiana (except counties listed under Southern Region); 
Wisconsin, Minnesota, North Dakota, South Dakota, Michigan, and Ohio 
(except counties listed under the Southern Region).
    3. Southern Region:
    Address: Suite 400, 1422 W. Peachtree St., NW., Atlanta, GA 30309.
    Consists of: Virginia, Maryland (except counties listed under the 
Eastern Region); Tennessee; North Carolina; South Carolina; Georgia; 
Alabama; Florida; Mississippi; Louisiana; Arkansas; Kentucky; Texas 
(except for Hudspeth and El Paso counties); Oklahoma; Missouri (except 
for those counties listed for the Western Region); Illinois (in counties 
of Calhoun, Greene, Jersey, McCoupin, Montgomery, Fayette, Bond, 
Madison, St. Clair, Monroe, Clinton, Washington, Marion, White, 
Hamilton, Wayne, Edwards, Wabash, Lawrence, Richland, Clay, Effingham, 
Jasper, and Crawford); Indiana (the counties of Knox, Daviess, Martin, 
Orange, Washington, Clark, Floyd, Harrison, Crawford, Perry, Spencer, 
DuBois, Pike, Gibson, Posey, Vanderburgh, and Warrick); Ohio (the 
counties of Butler, Hamilton, Warren, Clermont, Brown, Highland, 
Clinton, Ross, Pike, Adams, Scioto, Lawrence, Ballia, Jackson, Vinton, 
Hocking, Athens, and Meigs); Kansas (the counties of Bourbon, Crawford, 
Cherokee, and Ottawa); West Virginia (except counties listed under the 
Central Region); and the Canal Zone.
    4. Western Region:
    Address: Francisco Bay Building, Suite 235, 50 Francisco Street, San 
Francisco, CA 94133.
    Consists of: California; Nevada; Arizona; New Mexico; El Paso and 
Hudspeth Counties (only) in Texas; Hawaii; Guam; Alaska; Washington; 
Oregon; Colorado; Utah; Wyoming; Montana; Idaho; Nebraska; Kansas; Iowa; 
Missouri (the counties of Atchinson, Nodaway, Worth, Harrison, Mercer, 
Putnam, Schuyler, Scotland, Knox, Adair, Sullivan, Grundy, Daviess, 
Gentry, DeKalb, Andrew, Holt, Buchanan, Clinton, Caldwell, Livingston, 
Linn, Macon, Shelby, Randolph, Chariton, Carrol, Ray, Clay, Platte, 
Jackson, Lafayette, Saline, Howard, Boon, Cooper, Pettis, Johnson, Cass, 
Bates, Henry, St.

[[Page 59]]

Clair, Benton, and Morgan); American Somoa; and Wake Island.
[44 FR 42683, July 20, 1979, as amended at 47 FR 10530, Mar. 11, 1982]



Secs. 1420.6-1420.7  Reserved]



Sec. 1420.8  FMCS deferral to parties' own private factfinding procedures.

    (a) The Service will defer to the parties' own privately agreed to 
factfinding procedure and decline to appoint a Board of Inquiry (BoI) as 
long as the parties' own procedure meets certain conditions so as to 
satisfy the Service's responsibilities under the Act. The Service will 
decline to appoint a BoI and leave the selection and appointment of a 
factfinder to the parties to a dispute if both the parties have agreed 
in writing to their own factfinding procedure which meets the following 
conditions:
    (1) The factfinding procedure must be invoked automatically at a 
specified time (for example, at contract expiration if no agreement is 
reached).
    (2) It must provide a fixed and determinate method for selecting the 
impartial factfinder(s).
    (3) It must provide that there can be no strike or lockout and no 
changes in conditions of employment (except by mutual agreement) prior 
to or during the factfinding procedure and for a period of at least 
seven days after the factfinding is completed.
    (4) It must provide that the factfinder(s) will make a written 
report to the parties, containing the findings of fact and the 
recommendations of the factfinder(s) for settling the dispute, a copy of 
which is sent to the Service. The parties to a dispute who have agreed 
to such a factfinding procedure should jointly submit a copy of such 
agreed upon procedure to the appropriate regional office of the Service 
at as early a date as possible, but in any event prior to the 
appointment of a BoI by the Service. See Sec. 1420.5(f) for the 
addresses of the regional offices.
    (b) Since the Service does not appoint the factfinder under 
paragraph (a) of this section, the Service cannot pay for such 
factfinder. In this respect, such deferral by the Service to the 
parties' own factfinding procedure is different from the use of 
stipulation agreements between the parties which give to the Service the 
authority to select and appoint a factfinder at a later date than the 
date by which a BoI would have to be appointed under the Act. Under such 
stipulation agreements by which the parties give the Service authority 
to appoint a factfinder at a later date, the Service can pay for the 
factfinder. However, in the deferral to the parties' own factfinding 
procedure, the parties choose their own factfinder and they pay for the 
factfinder.



Sec. 1420.9  FMCS deferral to parties' own private interest arbitration procedures.

    (a) The Service will defer to the parties' own privately agreed to 
interest arbitration procedure and decline to appoint a Board of Inquiry 
(BoI) as long as the parties' own procedure meets certain conditions so 
as to satisfy the Service's responsibilities under the Act. The Service 
will decline to appoint BoI if the parties to a dispute have agreed in 
writing to their own interest arbitration procedure which meets the 
following conditions:
    (1) The interest arbitration procedure must provide that there can 
be no strike or lockout and no changes in conditions of employment 
(except by mutual agreement) during the contract negotiation covered by 
the interest arbitration procedure and the period of any subsequent 
interest arbitration proceedings.
    (2) It must provide that the award of the arbitrator(s) under the 
interest arbitration procedure is final and binding on both parties.
    (3) It must provide a fixed and determinate method for selecting the 
impartial interest arbitrator(s).
    (4) The interest arbitration procedure must provide for a written 
award by the interest arbitrator(s).
    (b) The parties to a dispute who have agreed to such an interest 
arbitration procedure should jointly submit a copy of their agreed upon 
procedure to the appropriate regional office of the Service at as early 
a date as possible, but in any event prior to the appointment of BoI by 
the Service. See Sec. 1420.5(f) for the addresses of regional offices.

[[Page 60]]


These new regulations are a part of the Service's overall approach to 
implementing the health care amendments of 1974 in a manner consistent 
with the Congressional intent of promoting peaceful settlements of labor 
disputes at our vital health care facilities. The Service will work with 
the parties in every way possible to be flexible and to tailor its 
approach so as to accommodate the needs of the parties in the interest 
of settling the dispute. This was the motivating principle behind these 
new regulations which permit input by the parties to the Board of 
Inquiry selection and allow the parties to set up their own factfinding 
or arbitration procedures in lieu of the Board of Inquiry procedure. We 
encourage the parties, both unions and management, to take advantage of 
these and other options and to work with the Service to tailor their 
approach and procedures to fit the needs of their bargaining situations.



PART 1425--MEDIATION ASSISTANCE IN THE FEDERAL SERVICE--Table of Contents




Sec.
1425.1  Definitions.
1425.2  Notice to the Service of agreement negotiations.
1425.3  Functions of the Service under title VII of the Civil Service 
          Reform Act.
1425.4  Duty of parties.
1425.5  Referral to FSIP.
1425.6  Use of third-party mediation assistance.

    Authority: 5 U.S.C. 581(8), 7119, 7134.

    Source: 45 FR 62798, Sept. 22, 1980, unless otherwise noted.



Sec. 1425.1  Definitions.

    As used in this part:
    (a) The Service means Federal Mediation and Conciliation Service.
    (b) Party or Parties means (1) any appropriate activity, facility, 
geographical subdivision, or combination thereof, of an agency as that 
term is defined in 5 U.S.C. 7103(3), or (2) a labor organization as that 
term is defined in 5 U.S.C. 7103(4).
    (c) Third-party mediation assistance means mediation by persons 
other than FMCS commissioners.
    (d) Provide its services means to make the services and facilities 
of the Service available either on its own motion or upon the special 
request of one or both of the parties.



Sec. 1425.2  Notice to the Service of agreement negotiations.

    (a) In order that the Service may provide assistance to the parties, 
the party initiating negotiations shall file a notice with the FMCS 
Notice Processing Unit, 2100 K Street, N.W., Washington, D.C. 20427, at 
least 30 days prior to the expiration or modification date of an 
existing agreement, or 30 days prior to the reopener date of an existing 
agreement. In the case of an initial agreement the notice shall be filed 
within 30 days after commencing negotiations.
    (b) Parties engaging in mid-term or impact and/or implementation 
bargaining are encouraged to send a notice to FMCS if assistance is 
desired. Such notice may be sent by either party or may be submitted 
jointly. In regard to such notices a brief listing should be general in 
nature e.g., smoking policies, or Alternative Work Schedules (AWS).
    (c) Parties requesting grievance mediation must send a request 
signed by both the union and the agency involved. Receipt of such 
request does not commit FMCS to provide its services. FMCS has the 
discretion to determine whether or not to perform grievance mediation, 
as such service may not be appropriate in all cases.
    (d) The guidelines for FMCS grievance mediation are:
    (1) The parties shall submit a joint request, signed by both parties 
requesting FMCS assistance. The parties agree that grievance mediation 
is a supplement to, and not a substitute for, the steps of the 
contractual grievance procedure.
    (2) The grievant is entitled to be present at the grievance 
mediation conference.
    (3) Any times limits in the parties labor agreement must be waived 
to permit the grievance to proceed to arbitration should mediation be 
unsuccessful.
    (4) Proceedings before the mediator will be informal and rules of 
evidence do not apply. No record, stenographic or tape recordings of the 
meetings will

[[Page 61]]

be made. The mediators notes are confidential and content shall not be 
revealed.
    (5) The mediator shall conduct the mediation conference utilizing 
all of the customary techniques associated with mediation including the 
use of separate caucuses.
    (6) The mediator had no authority to compel resolution of the 
grievance.
    (7) In the event that no settlement is reached during the mediation 
conference, the mediator may provide the parties either in separate or 
joint session with an oral advisory opinion.
    (8) If either party does not accept an advisory opinion, the matter 
may then proceed to arbitration in the manner form provided in their 
collective bargaining agreement. Such arbitration hearings will be held 
as if the grievance mediation effort had not taken place. Nothing said 
or done by the parties or the mediator during the grievance mediation 
session can be used during arbitration proceedings.
    (9) When the parties choose the FMCS grievance mediation procedure, 
they have agreed to abide by these guidelines established by FMCS, and 
it is understood that the parties and the grievant shall hold FMCS and 
the mediator appointed by the Service to conduct the mediation 
conference harmless of any claim of damages arising from the mediation 
process.

[[Page 62]]

[GRAPHIC] [TIFF OMITTED] TR10JA95.000

                              Instructions

    Complete this form, please follow these instructions.
    In item # 1. Check the block and give the date if this is for an 
existing agreement or reopener. The FLRA Certification number should be 
provided if available. If not known, please leave this item blank. 
Absence of this number will not impede processing of the Form.

[[Page 63]]

    In item #2. If other assistance in bargaining is requested please 
specify: e.g.; impact and implementation bargaining (I&I) and/or mid-
term bargaining and provide a brief listing of issues, e.g. Smoking, 
Alternative Work Schedules (AWS), ground rules, office moves, or if 
desired, add attached list. This is only if such issues are known at 
time of filing.
    In item #3. Please specify the issues to be considered for grievance 
mediation. Please refer to FMCS guidelines for processing these 
requests. Please make certain that both parties sign this request!
    In item #4. List the name of the agency, as follows: The Department, 
and the subdivision or component. For example: U.S. Dept. of Labor, BLS, 
or U.S. Dept. of Army, Aberdeen Proving Ground, or Illinois National 
Guard, Springfield Chapter. If an independent agency is involved, list 
the agency, e.g. Federal Deposit Insurance Corp. (FDIC) and any 
subdivision or component, if appropriate.
    In item #5. List the name of the union and its subdivision or 
component as follows: e.g. Federal Employees Union, Local 23 or 
Government Workers Union, Western Joint Council.
    In item #6. Provide the area where the negotiation or mediation will 
most likely take place, with zip code, e.g., Washington, D.C. 20427. The 
zip code is important because our cases are routed by computer through 
zip code, and mediators are assigned on that basis.
    In item #7. Only the approximate number of employees in the 
bargaining unit and establishment are requested. The establishment is 
the entity referred to in item 4 as name of subdivision or component, if 
any.
    In item #8. The filing need only be sent by one party unless it is a 
request for grievance mediation. (See item 9.)
    In item #9. Please give the title of the official, phone number, 
address, and zip code.
    In item #10. Both labor and management signatures are required for 
grievance mediation requests.

                                 Notice

    Send original to F.M.C.S.
    Send one copy to opposite party.
    Retain one copy for party filing notice.
[60 FR 2509, Jan. 10, 1995]



Sec. 1425.3  Functions of the Service under title VII of the Civil Service Reform Act.

    (a) The service may provide its assistance in any negotiation 
dispute when earnest efforts by the parties to reach agreement through 
direct negotiation have failed to resolve the dispute. When the 
existence of a negotiation dispute comes to the attention of the Service 
through a specific request for mediation from one or both of the 
parties, through notification under the provisions of Sec. 1425.2, or 
otherwise, the Service will examine the information concerning the 
dispute and if, in its opinion, the need for mediation exists, the 
Service will use its best efforts to assist the parties to reach 
agreement.
    (b) The Service may, at the outset of negotiations or at any time in 
the dispute, set time limits on its participation. If no settlement of 
the dispute is reached by the expiration of the time limits, the Service 
may make suggestions for settlement to the parties. If suggestions for 
settlement made by the Service are not accepted by the parties within 
time limits set by the Service, the matter may be referred to the 
Federal Services Impasses Panel (FSIP).



Sec. 1425.4  Duty of parties.

    It shall be the duty of the parties to participate fully and 
promptly in any meetings arranged by the Service for the purpose of 
assisting in the settlement of a negotiation dispute.



Sec. 1425.5  Referral to FSIP.

    If the mediation process has been completed and the parties are at a 
negotiation impasse, the Service or the parties may request 
consideration of the matter by the Federal Services Impasses Panel. The 
Service shall not refer a case to FSIP until the mediation process has 
been exhausted and the parties are at a negotiation impasse.



Sec. 1425.6  Use of third-party mediation assistance.

    If the parties should mutually agree to third-party mediation 
assistance other than that of the Service, both parties shall 
immediately inform the Service in writing of this agreement. Such 
written communication shall be filed with the regional director of the 
region in which the negotiation is scheduled, and shall state what 
alternate assistance the parties have agreed to use.

[[Page 64]]



PART 1430--FEDERAL MEDIATION AND CONCILIATION SERVICE ADVISORY COMMITTEES--Table of Contents




Sec.
1430.1  Scope and purpose.
1430.2  Definitions.
1430.3  Establishment of advisory committees.
1430.4  Filing of advisory committee charter.
1430.5  Termination of advisory committees.
1430.6  Renewal of advisory committees.
1430.7  Application of the Freedom of Information Act to advisory 
          committee functions.
1430.8  Advisory committee meetings.
1430.9  Agency management of advisory committees.

    Authority: Pub. L. 92-463, 86 Stat. 770 (5 U.S.C. App.).

    Source: 39 FR 9433, Mar. 11, 1974, unless otherwise noted.



Sec. 1430.1  Scope and purpose.

    (a) This part contains the Federal Mediation and Conciliation 
Service's regulations implementing section 8(a) of the Federal Advisory 
Committee Act (Pub. L. 92-463, 86 Stat. 770, (5 U.S.C. App.)), which 
requires each agency head to establish uniform guidelines and management 
controls for the advisory committees. These regulations supplement the 
Government-wide guidelines issued jointly by the Office of Management 
and Budget and the Department of Justice, and should be read in 
conjunction with them.
    (b) The regulations provided under this part do not apply to 
statutorily created or established advisory committees of the Service, 
to the extent that such statutes have specific provisions different from 
those promulgated herein.



Sec. 1430.2  Definitions.

    For the purposes of this part:
    (a) The term Act means the Federal Advisory Committee Act;
    (b) The term advisory committee means any committee, board, 
commission, counsel, conference, panel, task force, or other similar 
group, or any subgroup or subcommittee thereof which is:
    (1) Established by statute or reorganization, plan, or
    (2) Established or utilized by the President, or
    (3) Established or utilized by one or more agencies or officers of 
the Federal Government in the interest of obtaining advice or 
recommendations for the President or one or more agencies of the Federal 
Government, except that such term excludes:
    (i) The Advisory Commission on Intergovernmental Relations;
    (ii) The Commission on Government Procurement; and
    (iii) Any committee which is composed wholly of full-time officers 
or employees of the Federal Government.
    (c) The term agency has the same meaning as in 5 U.S.C. 552(1);
    (d) The term committee management officer means the Federal 
Mediation and Conciliation Service employee or his delegee, officially 
designated to perform the advisory committee management functions 
delineated in this part;
    (e) The term Service means the Federal Mediation and Conciliation 
Service;
    (f) The term OMB means the Office of Management and Budget;
    (g) The term Director means the Director of the Federal Mediation 
and Conciliation Service;
    (h) The term secretariat means the OMB Committee Management 
Secretariat.



Sec. 1430.3  Establishment of advisory committees.

    (a) Guidelines for establishing advisory committees. The guidelines 
in establishing advisory committees are as follows:
    (1) No advisory committee shall be established if its functions are 
being or could be performed by an agency or an existing committee;
    (2) The purpose of the advisory committee shall be clearly defined;
    (3) The membership of the advisory committee shall be fairly 
balanced in terms of the points of view represented and the committee's 
functions;
    (4) There shall be appropriate safeguards to assure that an advisory 
committee's advice and recommendations will not be inappropriately 
influenced by any special interests; and
    (5) At least once a year, a report shall be prepared for each 
advisory committee, describing the committee's membership, functions, 
and actions.

[[Page 65]]

    (b) Advisory committees established by the Service not pursuant to 
specific statutory authority. (1) Advisory committees established by the 
Service not pursuant to specific statutory authority may be created by 
the Director after consultation with the secretariat.
    (2) When the Director determines that such an advisory committee 
needs to be established, he shall notify the secretariat of his 
determination and shall inform the secretariat of the nature and purpose 
of the committee, the reasons why the committee is needed, and the 
inability of any existing agency or committee to perform the committee's 
functions.
    (3) After the secretariat has determined that establishment of such 
a committee is in conformance with the Act and has so informed the 
Director, the Director shall prepare a certification of the committee, 
stating the committee's nature and purpose, and that it is established 
in the public interest. That certification shall be published in the 
Federal Register.
    (c) Advisory committees created pursuant to Presidential directive. 
Advisory committees established by Presidential directive are those 
created pursuant to Executive Order, executive memorandum, or 
reorganization plan. The Director shall create such committees in 
accordance with the provisions of the Presidential directive and shall 
follow the provisions of this part, to the extent they are not 
inconsistent with the directive.
    (d) Advisory committees created pursuant to specific statutory 
authority. The Director shall create advisory committees established 
pursuant to specific statutory authority in accordance with the 
provisions of the statute and shall follow the provisions of this part, 
to the extent they are not inconsistent with the statute: Provided, 
however, That the Director need not utilize the procedures described in 
paragraph (b) of this section.
    (e) Advisory committees established by persons outside the Federal 
Government, but utilized by the Service to obtain advice or opinion. In 
utilizing such committees, the Director shall follow the provisions of 
this part and the requirements of the Act. Such committees, to the 
extent they are utilized by the Service, shall be considered, for the 
purposes of this part, to be advisory committees established by the 
Service.



Sec. 1430.4  Filing of advisory committee charter.

    (a) Filing charter with Director. Before an advisory committee takes 
any action or conducts any business, a charter shall be filed with the 
Director, the standing committees of Congress with legislative 
jurisdiction over the Service, and the Library of Congress. Except for a 
committee in existence on the effective date of the Act, or when 
authorized by statute, Presidential directive, or by the secretariat, 
such charter shall be filed no earlier than 30 days after publication of 
the committee's certification in the Federal Register.
    (b) Charter information. A charter shall contain the following 
information:
    (1) The committee's official designation;
    (2) The committee's objectives and scope of activity;
    (3) The period of time necessary for the committee to carry out its 
purposes;
    (4) The agency or official to whom the advisory committee reports;
    (5) The agency responsible for providing necessary support;
    (6) A description of the committee's duties;
    (7) The estimated number and frequency of committee meetings;
    (8) The estimated annual operating costs in dollars and man-years;
    (9) The committee's termination date, if less than two years; and
    (10) The date the charter is filed.
    (c) Preparation and filing of initial charter. Responsibility for 
preparation of the initial committee charter shall be with the head of 
the appropriate program within the Service, in cooperation with the 
committee management officer. The Director of Administration shall have 
responsibility for assuring the appropriate filings of such charters.



Sec. 1430.5  Termination of advisory committees.

    (a) All nonstatutory advisory committees including those authorized, 
but

[[Page 66]]

not specifically created by statute, shall terminate no later than 2 
years after their charters have been filed, unless renewed as provided 
in Sec. 1430.6.
    (b) The charter of any committee in existence on the date the Act 
became effective (January 5, 1973) shall terminate no later than January 
5, 1975, unless renewed, as provided in Sec. 1430.6.
    (c) Advisory committees specifically created by statute shall 
terminate as provided in the establishing statute.



Sec. 1430.6  Renewal of advisory committees.

    (a) Renewal of advisory committees not created pursuant to specific 
statutory authority.
    (1) The Director may renew an advisory committee not created 
pursuant to specific statutory authority after consultation with the 
secretariat.
    (2) When the Director determines that such an advisory committee 
should be renewed, he shall so advise the secretariat within 60 days 
prior to the committee's termination date and shall state the reasons 
for his determination.
    (3) Upon concurrence of the secretariat, the Director shall publish 
notice of the renewal in the Federal Register and cause a new charter to 
be prepared and filed in accordance with the provisions of Sec. 1430.3.
    (b) Renewal of advisory committees established pursuant to specific 
statutory authority. The Director may renew advisory committees 
established pursuant to specific statutory authority through the filing 
of a new charter at appropriate 2-year intervals.
    (c) No advisory committee shall take any action or conduct any 
business during the period of time between its termination date and the 
filing of its renewal charter.



Sec. 1430.7  Application of the Freedom of Information Act to advisory committee functions.

    (a) Subject to 5 U.S.C. 552, the records, reports, transcripts, 
minutes, appendices, working papers, drafts, studies, agenda, and other 
documents which are made available to or are prepared for or by an 
advisory committee shall be available to the public.
    (b) Advisory committee meeting conducted in accordance with 
Sec. 1430.7 may be closed to the public when discussing a matter that is 
of a 5 U.S.C. 552(b) nature, whether or not the discussion centers on a 
written document.
    (c) No record, report, or other document prepared for or by an 
advisory committee may be withheld from the public unless the Office of 
the General Counsel determines that the document is properly within the 
exemptions of 5 U.S.C. 552(b). No committee meeting, or portion thereof, 
may be closed to the public unless the Office of the General Counsel 
determines in writing, prior to publication of the meeting in the 
Federal Register that such a closing is within the exemptions of 5 
U.S.C. 552(b).



Sec. 1430.8  Advisory committee meetings.

    (a) Initiation of meetings. (1) Committee meetings may be called by:
    (i) The Director or the head of the office most directly concerned 
with the committee's activities;
    (ii) The agency officer referred to in paragraph (a)(1)(i) of this 
section, and the committee chairman, jointly; or
    (iii) The committee chairman, with the advance approval of the 
officer referred to in paragraph (a)(1)(i) of this section.
    (2) The Service's committee management officer shall be promptly 
informed that a meeting has been called.
    (b) Agenda. Committee meetings shall be based on agenda approved by 
the officer referred to in paragraph (a)(1) of this section. Such agenda 
shall note those items which may involve matters which have been 
determined by the Office of the General Counsel as coming within the 
exemptions to the Freedom of Information Act, 5 U.S.C. 552(b).
    (c) Notice of meetings. (1) Notice of advisory committee meetings 
shall be published in the Federal Register at least 7 days before the 
date of the meeting, irrespective of whether a particular meeting will 
be open to the public. Notice to interested persons shall also be 
provided in such other reasonable ways as are appropriate under the 
circumstances, such as press release or letter. Responsibility for 
preparation of Federal Register and

[[Page 67]]

other appropriate notice shall be with the officer referred to in 
paragraph (a)(1) of this section.
    (2) Notice in the Federal Register shall state all pertinent 
information related to a meeting and shall be published at least 7 days 
prior to a meeting.
    (d) Presence of agency officer or employee at meetings. No committee 
shall meet without the presence of the officer referred to in paragraph 
(a)(1) of this section, or his delegate. At his option the officer or 
employee may elect to chair the meeting.
    (e) Minutes. Detailed minutes shall be kept of all committee 
meetings and shall be certified by the chairman of the advisory 
committee as being accurate.
    (f) Adjournment. The officer or employee referred to in paragraph 
(a)(1) of this section may adjourn a meeting at any time he determines 
it in the public interest to do so.
    (g) Public access to committee meetings. All advisory committee 
meetings shall be open to the public, except when the Office of the 
General Counsel determines, in writing, and states his reasons therefor 
prior to Federal Register notice, that a meeting or any part thereof, is 
concerned with matters related to the exemptions provided in the Freedom 
of Information Act, 5 U.S.C. 552(b). In such instances, those portions 
of a committee meeting which come within the section 552(b) exemptions 
may be closed to the public.
    (h) Public participation in committee procedures. Interested persons 
shall be permitted to file statements with advisory committees. Subject 
to reasonable committee procedures, interested persons may also be 
permitted to make oral statements on matters germane to the subjects 
under consideration at the committee meeting.



Sec. 1430.9  Agency management of advisory committees.

    Consistent with the other provisions of this part, the Service's 
advisory committee management officer shall:
    (a) Exercise control and supervision over the establishment, 
procedures, and accomplishments of advisory committees established by 
the Service;
    (b) Assemble and maintain the reports, records, and other papers of 
advisory committees, during their existence;
    (c) Carry out, with the concurrence of the Office of the General 
Counsel, the provisions of the Freedom of Information Act, as those 
provisions apply to advisory committees;
    (d) Have available for public inspection and copying all pertinent 
documents of advisory committees which are within the purview of the 
Freedom of Information Act; and
    (e) When transcripts have been made of advisory committee meetings, 
provide for such transcripts to be made available to the public at 
actual cost of duplication, except where prohibited by contractual 
agreements entered into prior to January 5, 1973, the effective date of 
the Federal Advisory Committee Act.



PART 1440--ARBITRATION OF PESTICIDE DATA DISPUTES--Table of Contents




Sec.
1440.1  Arbitration of pesticide data disputes.


Appendix to Part 1440--FIFRA Arbitration Rules

    Authority: Federal Insecticide, Fungicide, and Rodenticide Act (7 
U.S.C. 136 et seq.), as amended, Pub. L. 95-396, 92 Stat. 819.

    Source: 45 FR 55395, Aug. 19, 1980, unless otherwise noted.]



Sec. 1440.1  Arbitration of pesticide data disputes.

    (a) Persons requesting the appointment of an arbitrator under 
section 3(c)(1)(D)(ii) and section 3(c)(2)(B)(iii) of the Federal 
Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. 136, as amended), 
shall send such requests in writing to the appropriate American 
Arbitration Association Regional Office. Such requests must include the 
names, addresses, and telephone numbers of the parties to the dispute; 
issue(s) in dispute, the amount in dollars or any other remedy sought; 
sufficient facts to show that the statutory waiting period has passed, 
and the appropriate fee provided in the Fee Schedule.

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    (b) For the purpose of compliance with the Federal Insecticide, 
Fungicide, and Rodenticide Act (hereinafter ``the Act''), the roster of 
arbitrators maintained by the Federal Mediation and Conciliation Service 
shall be the roster of commerical arbitrators maintained by the American 
Arbitration Association. Under this Act, arbitrators will be appointed 
from that roster. The fees of the American Arbitration Association shall 
apply, and the procedure and rules of the Federal Mediation and 
Conciliation Service, applicable to arbitration proceedings under the 
Act, shall be the FIFRA arbitration rules of the American Arbitration 
Association, which are hereby made a part of this regulation.

             Appendix to Part 1440--FIFRA Arbitration Rules

                                Section 1

    These rules shall apply as published in the Federal Register unless 
modified by FMCS.

                           Sec. 2. Definitions

    For the purpose of these Rules of Procedure the terms are defined as 
follows:
    (1) AAA means the American Arbitration Association.
    (2) Act or FIFRA means the Federal Insecticide, Fungicide, and 
Rodenticide Act, 7 U.S.C. 136 et seq.
    (3) EPA means the United States Environmental Protection Agency.
    (4) Arbitrator(s) means the person or persons appointed to the 
tribunal constituted by the parties for the settlement of their dispute 
under these Rules.
    (5) Claimant means a person asserting a claim for compensation under 
these Rules or filing a claim concerning joint development of data.
    (6) Compulsory arbitration means arbitration invoked under the 
mandatory provisions of section 3(c)(1)(d) or 3(c)(2)(B)(iii) of the 
Act.
    (7) Voluntary arbitration means arbitration voluntarily agreed to by 
the parties to settle a dispute under section 3(c)(1)(d) or 
3(c)(2)(B)(iii) of the Act.
    (8) Director means Director, Registration Division, Office of 
Pesticide Programs, Environmental Protection Agency, or any officer or 
employee of the EPA to whom authority has been or may hereafter be 
lawfully delegated to act in his stead.
    (9) Administator means the AAA, its Tribunal Administrators or such 
officers or committees as the AAA may direct.
    (10) Roster means the Commercial Arbitration Roster of AAA.
    (11) FMCS or Service means the Federal Mediation and Conciliation 
Service.
    (12) Party means claimant or respondent.
    (13) Person means any individual, partnership, association, 
corporation, or any organized group of persons, whether incorporated or 
not.
    (14) Respondent means the person against whom a claim is made under 
section 3(c)(1)(D) or 3(c)(2)(B)(iii) of the Act.

Terms defined in the Act and not explicitly defined herein are used 
herein with the meanings given in the Act.

                    Sec. 3. Initiation of Arbitration

    (a) Under compulsory procedures of FIFRA. Upon the request of a 
party qualified under FIFRA section 3(c)(1)(D) or 3(c)(2)(B)(iii) for 
the appointment of an arbitrator, the Service will appoint an arbitrator 
in accordance with 29 CFR 1440.1 (a) and these rules. Requests shall be 
submitted in writing to the appropriate AAA Regional Office and must 
include the names, addresses and telephone numbers of the parties to the 
dispute; issues in dispute; the amount in dollars or any other remedy 
sought; sufficient facts to show that the statutory waiting period has 
passed; and the appropriate fee as provided in the Fee Schedule.

AAA shall give notice of filing of a request for arbitration to the 
other party. If he so desires, the party upon whom the demand for 
arbitration is made may file an answering statement in duplicate with 
AAA within seven days after notice, in which event he shall 
simultaneously send a copy of his answer to the other party. If a 
monetary claim is made in the answer the appropriate fee provided in the 
Fee Schedule shall be forwarded with the answer. If no answer is filed 
within the stated time, it will be assumed that the claim is denied. 
Failure to file an answer shall not operate to delay the arbitration.
    (b) Under a Voluntary Submission. Parties to any existing dispute 
may commence an arbitration under these Rules by filing at any AAA 
Regional Office two (2) copies of a written agreement to arbitrate under 
these Rules (Submission), signed by the parties. It shall contain a 
statement of the matter in dispute, the amount of money involved, if 
any, and the remedy sought, together with the appropriate administrative 
fee as provided in the Fee Schedule.

                        Sec. 4. Fixing of Locale

    The parties may mutually agree on the locale where the arbitration 
is to be held. If the locale is not designated within seven days from 
the date of filing the Demand or Submission the AAA shall have power to 
determine the locale. Its decision shall be final

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and binding. If any party requests that the hearing be held in a 
specific locale and the other party files no objection thereto within 
seven days after notice of the requests, the locale shall be the one 
requested.

                   Sec. 5. Qualification of Arbitrator

    Any Arbitrator appointed pursuant to these rules shall be neutral, 
subject to disqualification for the reasons specified in section 11. If 
the agreement of the parties names an Arbitrator or specifies any other 
method of appointing an Arbitrator, or if the parties specifically agree 
in writing, such Arbitrator shall not be subject to disqualification for 
said reasons.

                     Sec. 6. Appointment From Panel

    If the parties have not appointed an Arbitrator and have not 
provided any other method of appointment, the Arbitrator shall be 
appointed in the following manner. Immediately after the filing of the 
Request or Submission, the AAA shall submit simultaneously to each party 
to the dispute an identical list of names of persons chosen from the 
Panel. Each party to the dispute shall have seven days from the mailing 
date in which to cross off any names to which he objects, number the 
remaining names indicating the order of his preference, and return the 
list to the AAA. If a party does not return the list within the time 
specified, all persons named therein shall be deemed acceptable. From 
among the persons who have been approved on both lists, and in 
accordance with the designated order of mutual preference, the AAA shall 
invite the acceptance of an Arbitrator to serve, and the Service shall 
appoint the Arbitrator. If the parties fail to agree upon any of the 
persons named, or if acceptable Arbitrators are unable to act, or if for 
any other reason the appointment cannot be made from the submitted 
lists, the FMCS shall have the power to make the appointment from other 
members of the Panel without the submission of any additional lists.

                  Sec. 7. Direct Appointment by Parties

    If the agreement of the parties to a Submission names an Arbitrator 
or specifies a method of appointment of an Arbitrator, that designation 
or method shall be followed. The notice of appointment, with name and 
address of such Arbitrator, shall be filed with the AAA by the 
appointing party. Upon the request of any such appointing party, the AAA 
shall submit a list of members from the Panel from which the party may, 
if he so desires, make the appointment.
    If the agreement specifies a period of time within which an 
Arbitrator shall be appointed, and any party fails to make such 
appointment within that period, the AAA shall make the appointment.

Sec. 8. Appointment of Neutral Arbitrator by Party Appointed Arbitrators

    If the parties have appointed their Arbitrators or if either or both 
of them have been appointed as provided in section 7, and have 
authorized such Arbitrators to appoint a neutral Arbitrator within a 
specified time and no appointment is made within such time or any agreed 
extension thereof, the FMCS shall appoint a neutral Arbitrator who shall 
act as Chairman.
    If no period of time is specified for appointment of the neutral 
Arbitrator and the parties do not make the appointment within seven days 
from the date of the appointment of the last party-appointed Arbitrator, 
the FMCS shall appoint such neutral Arbitrator, who shall act as 
Chairman.
    If the parties have agreed that their Arbitrators shall appoint the 
neutral Arbitrator from the Panel, the AAA shall furnish to the party-
appointed Arbitrators, in the manner prescribed in section 6, a list 
selected from the Panel, and the appointment of the neutral Arbitrator 
shall be made as prescribed in such section.

                      Sec. 9. Number of Arbitrators

    If the arbitration agreement does not specify the number of 
Arbitrators, the dispute shall be heard and determined by one 
Arbitrator, unless the AAA in its discretion, directs that a greater 
number of Arbitrators be appointed.

         Sec. 10. Notice to Arbitrator of His or Her Appointment

    Notice of the appointment of the neutral Arbitrator, whether 
appointed by the parties, by the AAA or FMCS shall be mailed to the 
Arbitrator, together with a copy of these Rules, and the signed 
acceptance of the Arbitrator shall be filed with AAA prior to the 
opening of the first hearing.

               Sec. 11. Disclosure and Challenge Procedure

    A person appointed as neutral Arbitrator shall disclose to the AAA 
any circumstances likely to affect his or her impartiality, including 
any bias or any financial or personal interest in the result of the 
arbitration or any past or present relationship with the parties or 
their counsel. Upon receipt of such information from such Arbitrator or 
other source, the AAA shall communicate such information to the parties, 
and, if it deems it appropriate to do so, to the Arbitrator. Thereafter, 
the AAA shall make a determination whether the Arbitrator should be 
disqualified. The determination, however, may be appealed to FMCS. The 
decision of FMCS shall be conclusive.

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                           Sec. 12. Vacancies

    If any Arbitrator should resign, die, withdraw, refuse, be 
disqualified, or be unable to perform the duties of his office, AAA may, 
on proof satisfactory to it, declare the office vacant. Either party to 
a compulsory arbitration may request the FMCS to review a declaration of 
disqualification. Vacancies shall be filled in accordance with the 
applicable provision of these Rules and the matter shall be reheard 
unless the parties shall agree otherwise.

                   Sec. 13. Commencement of Proceeding

    (a) Within 60 days from receipt by the parties of notice of the 
appointment of an arbitrator, the claimant shall file with AAA:
    (1) If appropriate, a detailed statement as to the amount of 
compensation claimed, the method of computing said amount, and terms of 
payment, and a list of the test data deemed to be compensable, together 
with a detailed justification therefore.
    (2) A certification as to: (i) Whether any court or tribunal has 
made determinations for payment by any other persons to claimant for use 
of the same test data and, if so, identification of the persons against 
whom the 3(c)(2)(B) determinations were issued and the application for 
registration for which the test data was used; and (ii) whether any 
other claims against any persons are pending in arbitration or in any 
court for use of the same test data and, if so, an identification of the 
persons against whom the claims are pending and the applications for 
registration on which the claims are being made.
    (3) A detailed statement of the matter in dispute under 3(c)(2)(B).
    (b) Within 60 days of service of the documents referred to in 
subsection (a) the respondent shall file a detailed statement of its 
position as to the amount of compensation due, method of computation, 
terms of payment, and list of data deemed to be compensable together 
with a detailed justification therefore or a detailed statement of the 
dispute under 3(c)(2)(5). To the extent any portion of the claimant's 
statement of its claim is not denied or challenged by respondent, it 
shall be deemed admitted.
    (c) After respondent's statement is filed, the arbitrator may, upon 
request by a party, request the Director to supplement the file with 
additional information, including copies of relevant test data, 
information contained in a relevant registration file, a statement as to 
data requirements for registration, or any other information which the 
arbitrator deems to be relevant. Upon request by a party or other 
interested person, the arbitrator shall order protective measures to 
safeguard and restrict access to confidential business information.

                       Sec. 14. Filing and Service

    (a) All documents or papers required or authorized to be filed, 
shall be filed with the AAA for transmittal to the arbitrator, except as 
otherwise herein provided, and shall bear the caption of the case and 
the docket number. At the same time that a party files documents or 
papers with the AAA, the party shall serve upon all other parties copies 
thereof, with a certificate of service on or attached to each document 
or paper, including those filed with the arbitrator. If a party is 
represented by counsel or other representative, service shall be made on 
such representative. Service may be made personally or by regular mail, 
and if made by mail shall be deemed complete on mailing. If filing is 
accomplished by mail addressed to the AAA, filing shall be deemed timely 
if the papers are postmarked on the due date.
    (b) All orders, decisions, or other documents made or signed by the 
arbitrator shall be served immediately upon all parties.

                              Sec. 15. Time

    (a) In computing any period of time prescribed or allowed by these 
rules, except as otherwise provided, the day of the act, event, or 
default from which the designated period of time begins to run shall not 
be included. Saturdays, Sundays and legal holidays shall be included in 
computing the time allowed for the filing of any document or paper, 
except that when such time expires on a Saturday, Sunday, or legal 
holiday, such period shall be extended to include the next following 
business day.
    (b) When by these rules or by order of the arbitrators, an act is 
required or allowed to be done at or within a specified time, the 
arbitrator or AAA for cause shown may at any time in their discretion 
(1) with or without motion or notice, order the period enlarged if 
request therefore, which may be made ex parte, is made before the 
expiration of the period originally prescribed or as extended by a 
previous order, or (2) on motion made after the expiration of the 
specified period, permit the act to be done where the failure to act was 
the result of excusable neglect or other good cause.

      Sec. 16. Communication with Arbitrator and Serving of Notices

    (a) There shall be no communication between the parties and a 
neutral arbitrator other than at oral hearings. Any other oral or 
written communications from the parties to the arbitrator shall be 
directed to the AAA for transmittal to the arbitrator.
    (b) Each party to an agreement which provides for arbitration under 
these Rules shall be deemed to have consented that any papers, notices 
or process necessary or proper for the initiation or continuation of an 
arbitration under these Rules and for any court

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action in connection therewith or for the entry of judgment on any award 
made thereunder may be served upon such party by mail addressed to such 
party or his attorney at his last known address or by personal service, 
within or without the State wherein the arbitration is to be held 
(whether such party be within or without the United States of America): 
Provided, That reasonable opportunity to be heard with regard thereto 
has been granted such party.

                         Sec. 17. Time of Award

    The award shall be made promptly by the arbitrator and, unless 
otherwise agreed by the parties, or specified by law, no later than 
thirty days from the date of closing the hearings, or if oral hearings 
have been waived, from the date of transmitting the final statements and 
proofs to the arbitrator.

                          Sec. 18. Appearances

    (a) Parties may appear in person or by counsel or other 
representative. Persons who appear as counsel or in a representative 
capacity must conform to the standards of ethical conduct required of 
practitioners before the courts of the United States.
    (b) Any party to the proceeding who, after being duly notified and 
without good cause being shown fails to appear at a prehearing 
conference or fails to respond to correspondence, shall be deemed to 
have waived his rights with respect thereto and shall be subject to such 
orders or determinations with respect thereto as the arbitrator shall 
make. The failure of a party to appear at a hearing shall constitute a 
waiver of the right to present evidence at such hearing. Where either 
party fails to appear at a hearing, the arbitrator shall require the 
presentation by the present party of such evidence as he deems necessary 
to prepare a decision in conformity with the requirements of the act.
    (c) Any person having a direct interest in the arbitration is 
entitled to attend hearings. The arbitrator shall otherwise have the 
power to require the exclusion of any witness, other than a party or 
other essential person, during the testimony of any other witness. It 
shall be discretionary with the arbitrator to determine the propriety of 
the attendance of any other person.

                  Sec. 19. Consolidation and Severance

    (a) The AAA may with agreement of all parties consolidate any 
matters at issue in two or more proceedings docketed under these Rules 
of Procedure where there exist common parties, common questions of fact 
and law, and where such consolidation would expedite or simplify 
consideration of the issues. Consolidation may also be effected where 
separate claims for use of the same test data are made against different 
respondents. The arbitrator who presides over the consolidated 
proceeding shall be chosen in accordance with section 3, supra.
    (b) The arbitrator may, by motion or sua sponte, for good cause 
shown order any proceeding severed with respect to some or all parties 
or issues.

             Sec. 20. Protection of Confidential Information

    (a) The arbitrator shall make such orders as required to protect the 
secrecy of confidential information or documents such as review in 
camera.
    (b) The arbitrator shall impose a sanction against any party who 
violates an order issued under this section. Such sanction may include 
an award against the offending party.

                     Sec. 21. Scheduling of Hearing

    (a) After consideration of the convenience of the parties, the AAA 
shall serve upon the parties a notice of hearing setting a time and 
place for such hearing.
    (b) Except for good cause shown, no request for postponement of a 
hearing will be granted. Such request must be received in writing at 
least a day in advance of the time set for the hearing. In case of 
postponement, the hearing shall be rescheduled for a date as early as 
circumstances will permit.

                 Sec. 22. Optional Accelerated Procedure

    (a) In claims involving $25,000 or less, the parties may elect, 
prior to commencement of hearing, to have the claim processed under an 
expedited procedure. If no specific amount of claim is stated, a case 
will be considered to fall within this rule if the amount which the 
claimant represents in writing that it could recover as a result of any 
arbitrator's decision favorable to it does not exceed $25,000. Upon such 
election, a case shall then be processed under this rule unless the 
respondent objects and shows good cause why the substantive nature of 
the dispute requires processing under the regular procedures. In cases 
proceeding under this rule, the parties have waived discovery and 
briefs.
    (b) The arbitrator shall schedule the dispute for hearing within 
thirty (30) days of service of notice to the parties that the dispute 
will be governed by this accelerated procedure, unless either party 
requests that the case be submitted without hearing under section 19.
    (c) Written decision by the arbitrators in cases proceeding under 
this rule normally will be short and contain summary findings of fact 
and conclusions only. The arbitrator shall render such decisions 
promptly, but in no event later than thirty days after the dispute is 
ready for decision.

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                           Sec. 23. Discovery

    (a) Either party may move for permission to serve written 
interrogatories and requests for production of documents upon the 
opposing party. The arbitrator shall grant such motion to the extent 
that such interrogatories and requests are designed to produce relevant 
evidence and only upon such terms as the arbitrator in his or her 
discretion considers to be consistent with the objective of securing a 
just and inexpensive determination of the dispute without unnecessary 
delay.
    (b) Upon motion by either party, the arbitrator may order a 
deposition upon a showing of good cause and a finding that the 
deposition is designed to secure relevant and probative evidence which 
(1) cannot be obtained by alternative means, or (2) may otherwise not be 
preserved for presentation at hearing.
    (c) If a party fails to comply with an order issued under this 
section, the arbitrator shall draw inferences adverse to that party in 
connection with the facts sought to be discovered.
    (d) At least thirty days prior to the hearing, each party shall make 
available to each other party the names of the expert and other 
witnesses it intends to call, together with a detailed summary of their 
expected testimony, and copies of all documents and exhibits which the 
party intends to introduce into evidence. Thereafter, witnesses, 
documents, or exhibits may be added and narrative summaries of expected 
testimony amended only upon motion by a party for good cause shown.

                     Sec. 24. Prehearing Conference

    (a) When it appears that such procedure will expedite the 
preceeding, the arbitrator at any time prior to the commencement of the 
hearing may request the parties and their counsel or other 
representative to appear at a conference before him or her to consider:
    (i) The possibility of settlement of the case;
    (ii) The simplification of issues and stipulation of facts not 
indispute;
    (iii) The necessity or desirability of amending or supplementing 
documents in the record;
    (iv) The possibility of obtaining admissions or stipulations of fact 
and of documents which will avoid unnecessary proof;
    (v) The limitation of the number of expert or other witnesses;
    (vi) The setting of a time and place for the hearing, giving 
consideration to the convenience of all parties and to the public 
interest; and
    (vii) Any other matters as may expedite the disposition of the 
proceeding.
    (b) No transcript of any prehearing conference shall be made unless 
ordered upon motion of a party or sua sponte by the arbitrator. In the 
absence of a transcript, the arbitrator shall prepare and file a report 
of the action taken at such conference. Such report shall incorporate 
any written stipulations or agreements made by the parties, all rulings 
upon matters considered at such conference, and appropriate orders 
containing directions to the parties. Such report shall, as appropriate, 
direct the subsequent course of the proceeding, unless modified by the 
arbitrators on motion or sua sponte.

                            Sec. 25. Evidence

    (a) The arbitrator shall admit all evidence which is relevant, 
competent, material, not privileged, and not unduly repetitious. The 
weight to be given evidence shall be determined by its reliability and 
probative value.
    (b) Except as otherwise provided in these Rules of Procedure or by 
the arbitrator, witnesses shall be examined orally, under oath or 
affirmation. Parties shall have the right to cross-examine a witness who 
appears at the hearing provided that such cross-examination is not 
unduly repetitious.
    (c) Except where the arbitrator finds it impracticable, an original 
and two copies of each exhibit shall be filed at the time the exhibit is 
offered into evidence and a copy shall be furnished to each party. A 
true copy of an exhibit may be substituted for the original.
    (d) Official notice may be taken of any matter judicially noticed in 
the Federal courts. The parties shall be given adequate opportunity to 
show that such facts are erroneously noticed.

                      Sec. 26. Order of Proceedings

    (a) Hearing shall be opened by the filing of the oath of the 
arbitrator, and by the recording of the place, time and date of the 
hearing, the presence of the arbitrator, parties, and counsel.
    (b) The arbitrator may, at the beginning of the hearing, ask for 
statements clarifying the issues involved. The claimant shall then 
present his claim and proofs and his witnesses. The respondent shall 
then present his response and proofs and his witnesses. The arbitrator 
may in his descretion vary this procedure but he or she shall afford 
full and equal opportunity to all parties for the presentation of any 
material or relevant proofs.

          Sec. 28. Burden of Presentation; Burden of Persuasion

    The claimant shall have the burden of going forward to establish his 
entitlement to an amount of compensation that respondent should pay for 
use of the test data relied upon. Each matter of controversy shall be 
decided by the arbitrator upon a preponderance of the evidence.

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                      Sec. 29. Stenographic Record

    Any party may request a stenographic record by making arrangements 
for same through the AAA. If such transcript is agreed by the parties to 
be, or in appropriate cases determined by the arbitrator to be, the 
official record of the proceeding, it must be made available to the 
arbitrator, and to the other party for inspection, at a time and place 
determined by the arbitrator. The total cost of such a record shall be 
shared equally by those parties that order copies.

Sec. 30. Filing of Briefs, Proposed Findings of Fact and Conclusions of 
                         Law, and Proposed Order

    Unless otherwise ordered by the arbitrator, each party may within 
thirty days after delivery of the transcript of a hearing to the 
arbitrator as provided in section 29, file with AAA and serve upon all 
other parties a brief together with references to relevant exhibits and 
the record. Within Fifteen days thereafter each party may file a reply 
brief concerning matters contained in the opposing brief. Oral argument 
may be had at the discretion of the arbitrator.

                      Sec. 31. Closing of Hearings

    The Arbitrator shall inquire of all parties whether they have any 
further proofs to offer or witnesses to be heard. Upon receiving 
negative replies, the arbitrator shall declare the hearings closed and 
the time and date shall be recorded. If briefs or other documents are to 
be filed, the hearings shall be declared closed as of the final date set 
by the arbitrator for filing with the AAA. The time limit within which 
the Arbitrator is required to make the award shall commence to run, in 
the absence of other agreement by the parties, upon the closing of the 
hearings.

                     Sec. 32. Arbitrators' Decision

    (a) The arbitrator shall as soon as practicable after the filing of 
briefs evaluate the record and prepare and file a decision. The decision 
shall contain findings of fact and conclusions regarding all issues in 
dispute as well as reasons therefore.
    (b) The decision shall contain a determination as to the 
compensation, if any respondent must pay to claimant, or other remedy as 
appropriate, the method of payment, and may fix such other terms and 
conditions as may be reasonable under the circumstances, including the 
furnishing of a bond or other guarantee of payment by the respondent to 
the claimant.

                     Sec. 33. Reopening of Hearings

    (a) The hearings may be reopened by the arbitrator on his or her own 
motion, or upon application of a party at any time before the award is 
made. If the reopening of the hearings would prevent the making of the 
award within the specific time agreed upon by the parties in the 
contract out of which the controversy has arisen, the matter may not be 
reopened, unless the parties agree upon the extension of such time 
limit. When no specific date is fixed, the arbitrator may reopen the 
hearings, and the arbitrator shall have thirty days from the closing of 
the reopened hearings within which to make an award.
    (b) A motion to reopen a hearing to take further evidence, to rehear 
or reargue any matter related to such proceeding, or to reconsider the 
arbitrator's decision, must be made by motion in writing to the 
arbitrator in accordance with these Rules of Procedure. Every such 
motion must state the specific grounds upon which relief is sought.
    (c) A motion to reopen a hearing for the purpose of taking further 
evidence may be filed at any time prior to the issuance of the 
arbitrator's decision. Such motion shall state briefly the nature and 
purpose of the evidence to be adduced, shall show that such evidence is 
not cumulative, and shall set forth a good reason why such evidence was 
not adduced at a hearing.
    (d) Motions to modify the arbitrator's decision shall be filed 
within 30 days after the date of service of the decision. Such motion 
must state specifically one of the following grounds for modification:
    1. There was a miscalculation of figures or a mistake in the 
description of any person, thing or property referred to in the award; 
or
    2. The arbitrators have awarded upon a matter not submitted to them 
and the award may be corrected without affecting the merits of the 
decision upon the issues submitted; or
    3. The award is imperfect in a matter of form, not affecting the 
merits of the controversy.

                     Sec. 34. Award Upon Settlement

    If the parties settle their dispute during the course of the 
arbitration, the arbitrator, upon their request, may set forth the terms 
of the agreed settlement in an award.

                  Sec. 35. Delivery of Award to Parties

    Parties shall accept as legal delivery of the award the placing of 
the award or a true copy thereof in the mail by the AAA, addressed to 
such party at his last known address or to his attorney, or personal 
service of the award, or the filing of the award in any manner which may 
be prescribed by law.

         Sec. 36. Release of Documents for Judicial Proceedings

    The AAA shall, upon the written request of a party, furnish to such 
party, at his or her expense, certified facsimiles of any papers in the 
AAA's possession that may be required

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in judicial proceedings relating to the arbitration.

                      Sec. 37. Application to Court

    (a) No judicial proceedings by a party relating to the subject 
matter of the arbitration shall be deemed a waiver of the party's right 
to arbitrate.
    (b) Neither the AAA nor FMCS is a necessary party in judicial 
proceedings relating to the arbitration.
    (c) Parties to these Rules shall be deemed to have consented that 
judgment upon the arbitration award may be entered in any Federal or 
State Court having jurisdiction thereof.

                      Sec. 38. Administrative Fees

    As a nonprofit organization, the AAA shall prescribe an 
administrative fee schedule and a refund schedule to compensate it for 
the cost of providing administrative services. The schedule in effect at 
the time of filing or the time of refund shall be applicable.
    The administrative fees shall be advanced by the initiating party or 
parties, subject to final appointment by the arbitrator in his award.
    When a matter is withdrawn or settled, the refund shall be made in 
accordance with the refund schedule.
    The AAA, in the event of extreme hardship on the part of any party, 
may defer or reduce the administrative fee.

               Sec. 39. Fee When Oral Hearings Are Waived

    Where all oral hearings are waived the Administrative Fee Schedule 
shall apply.

                            Sec. 40. Expenses

    The expenses of witnesses for either side shall be paid by the party 
producing such witnesses.
    The cost of the stenographic record, if any is made, and all 
transcripts thereof, shall be prorated equally among all parties 
ordering copies unless they shall otherwise agree and shall be paid for 
by the responsible parties directly to the reporting agency.
    All other expenses of the arbitration, including required traveling 
and other expenses of the arbitrator and of AAA representatives, and the 
expenses of any witness or the cost of any proofs produced at the direct 
request of the arbitrator, shall be borne equally by the parties.

                        Sec. 41. Arbitrator's Fee

    Any arrangement for the compensation of a neutral arbitrator shall 
be made through the AAA and not directly by him or her with the parties. 
Where parties cannot agree, AAA shall fix reasonable compensation.

                            Sec. 42. Deposits

    The AAA may require the parties to deposit in advance such sums of 
money as it deems necessary to defray the expense of the arbitration, 
including the arbitrator's fee if any, and shall render an accounting to 
the parties and return any unexpened balance.

            Sec. 43. Interpretation and Application of Rules

    The arbitrator shall interpret and apply these Rules insofar as they 
relate to his or her powers and duties. When there is more than one 
arbitrator and a difference arises among them concerning the meaning or 
application of any such Rules, it shall be decided by a majority vote. 
If that is unobtainable, either an arbitrator or a party may refer the 
question to the AAA for decision. All other Rules shall be interpreted 
and applied by the AAA. Either party may request that FMCS review any 
decision of AAA on interpretation or application of these rules.

                       Administrative Fee Schedule

    The administrative fee of the AAA is based upon the amount of each 
claim and counterclaim as disclosed when the claim and counterclaim are 
filed, and is due and payable at the time of filing.

                                                                        
------------------------------------------------------------------------
             Amount of claim                            Fee             
------------------------------------------------------------------------
Up to $25,000............................  $500.                        
$25,000 to $100,000......................  $600, plus 1% of excess over 
                                            $25,000.                    
$100,000 to $200,000.....................  $1350, plus \1/2\% of excess 
                                            over $100,000.              
$200,000 to $5,000,000...................  $1850, plus \1/4\% of excess 
                                            over $200,000.              
------------------------------------------------------------------------

    Where the claim or counter claim exceeds $5 million, an appropriate 
fee will be determined by the AAA.
    When no amount can be stated at the time of filing, the 
administrative fee is $500, subject to adjustment in accordance with the 
above schedule as soon as an amount can be disclosed.
    If there are more than two parties represented in the arbitration, 
an additional 10% of the initiating fee will be due for each additional 
represented party.
    Other Service Charges--$50.00 payable by a party causing an 
adjournment of any scheduled hearing;
    $100 payable by a party causing a second or additional adjournment 
of any scheduled hearing.
    $25.00 payable by each party for each hearing after the first 
hearing which is either clerked by the AAA or held in a hearing room 
provided by the AAA.
    Refund Schedule--If the AAA is notified that a case has been settled 
or withdrawn before a list of Arbitrators has been sent out, all the 
fees in excess of $500 will be refunded.

[[Page 75]]

    If the AAA is notified that a case has been settled or withdrawn 
thereafter but before the due date for the return of the first list, 
two-thirds of the fee in excess of $500.00 will be refunded.
    If the AAA is notified that a case is settled or withdrawn 
thereafter but at least 48 hours before the date and time set for the 
first hearing, one-half of the fee in excess of $500 will be refunded.

                           Regional Directors

Atlanta (30303), India Johnson--100 Peachtree Street, NW.
Boston (02108), Richard M. Reilly--294 Washington Street
Charlotte (28218), John A. Ramsey--3235 Eastway Drive, P.O. Box 18591
Chicago (60601), Charles H. Bridge, Jr.--180 N. La Salle Street
Cincinnati (45202), Philip S. Thompson--2308 Carew Tower
Cleveland (44114), Earle C. Brown--215 Euclid Avenue
Dallas (75201), Helmut O. Wolff--1607 Main Street
Detroit (48226), Mary A. Bedikian--1234 City National Bank Building
Garden City, NY (11530), Ellen Maltz-Brown--585 Stewart Avenue
Hartford (06103), J. Robert Haskell--37 Lewis Street
Los Angeles (90020), Jerrold L. Murase--443 Shatto Place
Miami (33129), Joseph A. Fiorillo--2250 SW. 3rd Avenue
Minneapolis (55402), Patricia A. Levin--1001 Foshay Tower
New Brunswick, NJ (08901), Richard Naimark--96 Bayard Street
New York (10020), Robert E. Meade--140 West 51st Street
Philadelphia (19102), Arthur R. Mehr--1520 Locust Street
Phoenix (85004), Paul A. Newnham--222 North Central Avenue
Pittsburgh (15222), John F. Schano--221 Gateway Four
San Diego (92101), John E. Scrivner--530 Broadway
San Francisco (94104), Charles A. Cooper--690 Market Street
Seattle (98104), Neal M. Blacker--810 Third Avenue
Syracuse (13203), Deborah A. Brown--731 James Street
Washington (20036), Garylee Cox--1730 Rhode Island Avenue, NW.
White Plains, NY (10601), John R. Dacey--34 South Broadway



PART 1450--COLLECTIONS OF CLAIMS OWED THE UNITED STATES--Table of Contents




                      Subpart A--General Provisions

Sec.
1450.1  Definitions.
1450.2  Exceptions.
1450.3  Use of procedures.
1450.4  Conformance to law and regulations.
1450.5  Other procedures.
1450.6  Informal action.
1450.7  Return of property.
1450.8  Omissions not a defense.

     Subpart B--Administrative Offset--Consumer Reporting Agencies--
                       Contracting for Collection

1450.9  Demand for payment.
1450.10  Collection by administrative offset.
1450.11  Administrative offset against amounts payable from Civil 
          Service Retirement and Disability Fund.
1450.12  Collection in installments.
1450.13  Exploration of compromise.
1450.14  Suspending or termination collection action.
1450.15  Referrals to the Department of Justice or the General 
          Accounting Office.
1450.16  Use of consumer reporting agencies.
1450.17  Contracting for collection services.

                        Subpart C--Salary Offset

1450.18  Purpose.
1450.19  Scope.
1450.20  Definitions.
1450.21  Notification.
1450.22  Hearing.
1450.23  Deduction from pay.
1450.24  Liquidation from final check or recovery from other payment.
1450.25  Non-waiver of rights by payments.
1450.26  Refunds.
1450.27  Interest, penalties, and administrative costs.
1450.28  Recovery when paying agency is not creditor agency.

        Subpart D--Interest, Penalties, and Administrative Costs

1450.29  Assessment.
1450.30  Exemptions.
1450.31  Other sanctions.

    Authority: 31 U.S.C. 3701-3719; 5 U.S.C. 5514; 4 CFR parts 101-105; 
5 CFR part 550.

    Source: 51 FR 24817, July 9, 1986, unless otherwise noted.

[[Page 76]]



                      Subpart A--General Provisions



Sec. 1450.1  Definitions.

    (a) The term agency means the Federal Mediation and Conciliation 
Service (FMCS) or any other agency of the U.S. Government as stated at 
Sec. 1450.20.
    (b) The term agency head means the Director of the Federal Mediation 
and Conciliation Service.
    (c) The terms appropriate agency official or designee mean the 
Director of the Financial Management Staff of FMCS, or such other 
official as may be named in the future by the Director of FMCS.
    (d) The terms claim and debt are deemed synonymous and 
interchangeable. They refer to an amount of money or property which has 
been determined by an appropriate agency official to be owed to the 
United States from any person, organization or entity, except another 
Federal agency.
    (e) A debt is considered delinquent if it has not been paid by the 
date specified in the agency's written notification or applicable 
contractual agreement, unless other satisfactory payment arrangements 
have been made by that date, or if at any time thereafter the debtor 
fails to satisfy obligations under a payment agreement with the agency.
    (f) The term referral for litigation means referral to the 
Department of justice for appropriate legal proceedings.



Sec. 1450.2  Exceptions.

    (a) Claims arising from the audit of transportation accounts 
pursuant to 31 U.S.C. 3726 shall be determined, collected, compromised, 
terminated or settled in accordance with regulations published under the 
authority of 31 U.S.C. 3726 (see 41 CFR part 101-41).
    (b) Claims arising out of acquisition contracts subject to the 
Federal Acquisition Regulations (FAR) shall be determined, collected, 
compromised, terminated, or settled in accordance with those 
regulations. (See 48 CFR part 32). If not otherwise provided for in the 
FAR system, contract claims that have been the subject of a contracting 
officer's final decision in accordance with section 6(a) of the Contract 
Disputes Act of 1978 (41 U.S.C. 605)(a)), may be determined, collected, 
compromised, terminated or settled under the provisions of this 
regulation, except that no additional review of the debt shall be 
granted beyond that provided by the contracting officer in accordance 
with the provisions of section 6 of the Contract Disputes Act of 1978 
(41 U.S.C. 605), and the amount of any interest, administrative charge, 
or penalty charge shall be subject to the limitations, if any, contained 
in the contract out of which the claim arose.
    (c) Claims based in whole or in part on conduct in violation of the 
antitrust laws, or in regard to which there is an indication of fraud, 
presentation of a false claim, or misrepresentation on the part of the 
debtor or any other party having an interest in the claim, shall be 
referred to the Department of Justice (DOJ) as only the DOJ has 
authority to compromise, suspend, or terminate collection action on such 
claims.
    (d) Tax claims are also excluded from the coverage of this 
regulation.



Sec. 1450.3  Use of procedures.

    Procedures authorized by this regulation (including, but not limited 
to, disclosure to a consumer reporting agency, contracting for 
collection services, administrative offset and salary offset) may be 
used singly or in combination, so long as the requirements of applicable 
law and regulation are satisfied.



Sec. 1450.4  Conformance to law and regulations.

    The requirements of applicable law (31 U.S.C 3701-3719 and 5 U.S.C. 
5514 as amended by Pub. L. 97-365, 96 Stat. 1749) have been implemented 
in Governmentwide standards:
    (a) The Regulations of the Office of Personnel Management (5 CFR 
part 550),
    (b) The Federal Claims Collection Standards issued jointly by the 
General Accounting Office and the Department of Justice (4 CFR parts 
101-105), and
    (c) The procedures prescribed by the Office of Management and Budget 
in Circular A-129 of May 9, 1985.


[[Page 77]]



Not every item in the above described standards has been incorporated or 
referenced in this regulation. To the extent, however, that 
circumstances arise which are not covered by the terms stated in this 
regulation, FMCS will proceed in any actions taken in accordance with 
applicable requirements found in the sources referred to in paragraphs 
(a), (b), and (c) of this section.



Sec. 1450.5  Other procedures.

    Nothing contained in this regulation is intended to require FMCS to 
duplicate administrative proceedings required by contract or other laws 
or regulations.



Sec. 1450.6  Informal action.

    Nothing contained in this regulation is intended to preclude 
utilization of informal administrative actions or remedies which may be 
available.



Sec. 1450.7  Return of property.

    Nothing contained in this regulation is intended to deter FMCS from 
demanding the return of specific property or from demanding, the return 
of the property or the payment of its value.



Sec. 1450.8  Omissions not a defense.

    The failure of FMCS to comply with any provision in this regulation 
shall not serve as a defense to the debt.



     Subpart B--Administrative Offset--Consumer Reporting Agencies--
                       Contracting for Collection



Sec. 1450.9  Demand for payment.

    Prior to making an administrative offset, demand for payment will be 
made as stated below:
    (a) Written demands shall be made promptly upon a debtor in terms 
which inform the debtor of the consequences of failure to cooperate. A 
total of three progressively stronger written demands at not more than 
30-day intervals will normally be made unless a response to the first or 
second demand indicates that a further demand would be futile and the 
debtor's response does not require rebuttal. In determining the timing 
of demand letters, FMCS will give due regard to the need to act promptly 
so that, as a general rule, if necessary to refer the debt to the 
Department of Justice for litigation, such referral can be made within 
one year of the agency's final determination of the fact and the amount 
of the debt. When necessary to protect the Government's interest (for 
example, to prevent the statute of limitations, 28 U.S.C. 2415, from 
expiring), written demand may be preceded by other appropriate actions 
under this subpart including immediate referral for litigation.
    (b) The initial demand letter will inform the debtor of:
    (1) The basis for the indebtedness and the right of the debtor to 
request review within the agency;
    (2) The applicable standards for assessing interest, penalties, and 
administrative costs (subpart D of this regulation) and
    (3) The date by which payment is to be made, which normally should 
be not more than 30 days from the date that the initial demand letter 
was mailed or hand-delivered. FMCS will exercise care to insure that 
demand letters are mailed or hand-delivered on the same day that they 
are actually dated. Apart from this, there is no prescribed format for 
the demand letters.
    (c) As appropriate to the circumstances, FMCS may include either in 
the initial demand letter or in subsequent letters, matters relating to 
alternative methods of payment, policies with respect to use of consumer 
reporting agencies and collection services, the agency's intentions with 
respect to referral of the debt to the Department of Justice for 
litigation, and, depending on applicable statutory authority, the 
debtor's entitlement to consideration of waiver.
    (d) FMCS will respond promptly to communications from the debtor, 
within 30 days whenever feasible, and will advise debtor who dispute the 
debt that they must furnish available evidence to support their 
contentions.
    (e) If, either prior to the initiations of, at any time during, or 
after completion of the demand cycle, FMCS determines to pursue 
administrative offset, then the requirements specified in Secs. 1450.10 
and 1450.11, as applicable, will be met. The availability of funds for

[[Page 78]]

offset and the agency determination to purse it release the agency from 
the necessity of further compliance with paragraphs (a), (b), and (c) of 
this section. If the agency has not already sent the first demand 
letter, the agency's written notification of its intent to offset must 
give the debtor the opportunity to make voluntary payment, a requirement 
which will be satisfied by compliance with the notice requirements of 
Secs. 1450.10 and 1450.11 as applicable.



Sec. 1450.10  Collection by administrative offset.

    (a) Collection by administrative offset will be undertaken in 
accordance with these regulations on all claims which are liquidated or 
certain in amount, in every instance in which such collection is 
determined to be feasible and not otherwise prohibited.
    (1) For purposes of this section, the term ``administrative offset'' 
is the same as stated in 31 U.S.C. 3716(a)(1).
    (2) Whether collection by administrative offset is feasible is a 
determination to be made by the agency on a case-by-case basis, in the 
exercise of sound discretion. FMCS will consider not only whether 
administrative offset can be accomplished practically, but also whether 
offset is best suited to further and protect all of the Government's 
interests. In appropriate circumstances, FMCS may give due consideration 
to the debtor's financial condition and is not required to use offset in 
every instance in which there is an available source of funds. FMCS may 
also consider whether offset would tend to substantially interfere with 
or defeat the purposes of the program authorizing the payments against 
which offset is contemplated. For example, under a grant program in 
which payments are made in advance of the grantee's performance, offset 
will normally be inappropriate. This concept generally does not apply, 
however, where payment is in the form of reimbursement.
    (b) Before the offset is made, a debtor shall be provided with the 
following: Written notice of the nature and amount of the debt, and the 
agency's intention to collect by offset; opportunity to inspect and copy 
agency records pertaining to the debt; opportunity to obtain review 
within the agency of the determination of indebtedness; and opportunity 
to enter into a written agreement with the agency to repay the debt. 
FMCS may also make requests for offset to other agencies holding funds 
payable to the debtor, and process requests for offset that are received 
from other agencies.
    (1) FMCS will exercise sound judgment in determining whether to 
accept a repayment agreement in lieu of offset. The determination will 
weigh the Government's interest in collecting the debt against fairness 
to the debtor. If the debt is delinquent and the debtor has not disputed 
its existence or amount, FMCS will normally accept a repayment agreement 
in lieu of offset only if the debtor is able to establish that offset 
would result in undue financial hardship or would be against equity and 
good conscience.
    (2) In cases where the procedural requirements specified in 
paragraph (b) of this section have previously been provided to the 
debtor in connection with the same debt under Sec. 1450.9, or some other 
regulatory or statutory authority, such as pursuant to a notice of audit 
allowance, the agency is not required to duplicate those requirements 
before taking administrative offset.
    (3) FMCS may not initiate administrative offset to collect a debt 
under 31 U.S.C. 3716 more than 10 years after the Government's right to 
collect the debt first accrued, unless facts material to the 
Government's right to collect the debt were not known and could not 
reasonably have been known by the official or officials of the 
Government who were charged with the responsibility to discover and 
collect such debts. When the debt first accrued is to be determined 
according to existing law, regarding the accrual of debts, such as 28 
U.S.C. 2415.
    (4) FMCS is not authorized by 31 U.S.C. 3716 to use administrative 
offset with respect to:
    (i) Debts owed by any State or local Governments;
    (ii) Debts arising under or payments made under the Social Security 
Act, the Internal Revenue Code of 1954, or the tariff laws of the United 
States; or

[[Page 79]]

    (iii) Any case in which collection of the type of debt involved by 
administrative offset is explicitly provided for or prohibited by 
another statute. However, unless otherwise provided by contract or law, 
debts or payments which are not subject to administrative offset under 
31 U.S.C. 3716 may be collected by administrative offset under the 
common law or other applicable statutory authority.
    (5) FMCS may effect administrative offset against a payment to be 
made to a debtor prior to completion of the procedures required by 
paragraph (b) of this section if:
    (i) Failure to take the offset would substantially prejudice the 
Government's ability to collect the debt, and
    (ii) The time before the payment is to be made does not reasonably 
permit the completion of those procedures.

Such prior offset must be promptly followed by the completion of those 
procedures. Amounts recovered by offset but later found not to be owed 
to the Government shall be promptly refunded.
    (6) FMCS will obtain credit reports on delinquent accounts to 
identify opportunities for administrative offset of amounts due to a 
delinquent debtor when other collection techniques have been 
unsuccessful.
    (c) Type of hearing or review: (1) For purposes of this section, 
whenever FMCS is required to provide a hearing or review within the 
agency, the agency shall provide the debtor with a reasonable 
opportunity for an oral hearing when:
    (i) An applicable statute authorizes or requires the agency to 
consider waiver of the indebtedness involved, the debtor requests waiver 
of the indebtedness, and the waiver determination turns on an issue of 
credibility or veracity; or
    (ii) The debtor requests reconsideration of the debt and the agency 
determines that the question of the indebtedness cannot be resolved by 
review of the documentary evidence, for example, when the validity of 
the debt turns on an issue of credibility or veracity.

Unless otherwise required by law, an oral hearing under this section is 
not required to be a formal evidentiary-type hearing, although the FMCS 
will carefully document all significant matters discussed at the 
hearing.
    (2) This section does not require an oral hearing with respect to 
debt collection systems in which determinations of indebtedness or 
waiver rarely involve issues of credibility or veracity and the agency 
has determined that review of the written record is ordinarily an 
adequate means to correct prior mistakes. In administering such a 
system, the agency is not required to sift through all of the requests 
received in order to accord oral hearings in those few cases which may 
involve issues of credibility or veracity.
    (3) In those cases where an oral hearing is not required by this 
section, the agency will make its determination on the request for 
waiver or reconsideration based upon a ``paper hearing'' that is, a 
review of the written record.
    (d) Appropriate use will be made of the cooperative efforts of other 
agencies in effecting collection by administrative offset. Generally, 
FMCS will not refuse to comply with requests from other agencies to 
initiate administrative offset to collect debts owed to the United 
States, unless the requesting agency has not complied with the 
applicable provisions of these standards or the offset would be 
otherwise contrary to law.
    (e) Collection by offset against a judgment obtained by a debtor 
against the United States shall be accomplished in accordance with 31 
U.S.C. 3728.
    (f) Whenever the creditor agency is not the agency which is 
responsible for making the payment against which administrative offset 
is sought, the latter agency shall not initiate the requested offset 
until it has been provided by the creditor agency with an appropriate 
written certification that the debtor owes a debt (including the amount) 
and that full compliance with the provisions of this section has taken 
place.
    (g) When collecting multiple debts by administrative offset, FMCS 
will apply the recovered amounts to those debts in accordance with the 
best interests of the United States, as determined by the facts and 
circumstances of the particular case, paying special attention to 
applicable statutes of limitations.

[[Page 80]]



Sec. 1450.11  Administrative offset against amounts payable from Civil Service Retirement and Disability Fund.

    (a) Unless otherwise prohibited by law, FMCS may request that moneys 
which are due and payable to a debtor from the Civil Service Retirement 
and Disability Fund be administratively offset in reasonable amounts in 
order to collect in one full payment, or a minimal number of payments, 
debts owed to the United States by the debtor. Such requests shall be 
made to the appropriate officials of the Office of Personnel Management 
in accordance with such regulations as may be prescribed by the Director 
of that Office.
    (b) When making a request for administrative offset under paragraph 
(a) of this section, FMCS shall include a written certification that:
    (1) The debtor owes the United States a debt, including the amount 
of the debt;
    (2) The FMCS has complied with the applicable statutes, regulations, 
and procedures of the Office of Personnel Management; and
    (3) The FMCS has complied with the requirements of Sec. 1450.10 of 
this subpart, including any required hearing or review.
    (c) Once FMCS decides to request adminstrative offset under 
paragraph (a) of this section, it will make the request as soon as 
practical after completion of the applicable procedures in order that 
the Office of Personnel Management may identify and ``flag'' the 
debtor's account in anticipation of the time when the debtor requests or 
become eligible to receive payments from the Fund. This will satisfy any 
requirement that offset be initiated prior to expiration of the 
applicable statute of limitations. At such time as the debtor makes a 
claim for payments from the Fund, if at least a year has elapsed since 
the offset request was originally made, the debtor should be permitted 
to offer a satisfactory payment plan in lieu of offset upon establishing 
that changed financial circumstances would render the offset unjust.
    (d) If FMCS collects part or all of the debt by other means before 
deductions are made or completed pursuant to paragraph (a) of this 
section, FMCS shall act promptly to modify or terminate its request for 
offset under paragraph (a) of this section.
    (e) This section does not require or authorize the Office of 
Personnel Management to review the merits of the FMCS determination with 
respect to the amount and validity of the debt, its determination as to 
waiver under an applicable statute, or its determination to provide or 
not provide a hearing.



Sec. 1450.12  Collection in installments.

    (a) Whenever feasible, and except as otherwise provided by law, 
debts owed to the United States, together with interest, penalties, and 
administrative costs as required by this regulation should be collected 
in full in one lump sum. This is true whether the debt is being 
collected by administrative offset or by another method, including 
voluntary payment. However, if the debtor is financially unable to pay 
the indebtedness in one lump sum, payment may be accepted in regular 
installments. FMCS will obtain financial statements from debtors who 
represent that they are unable to pay the debt in one lump sum. If FMCS 
agrees to accept payment in regular installments it will obtain a 
legally enforceable written agreement from the debtor which specifies 
all of the terms of the arrangement and which contains a provision 
accelerating the debt in the event the debtor defaults. The size and 
frequency of installment payments should bear a reasonable relation to 
the size of the debt and the debtor's ability to pay. If possible, the 
installment payments should be sufficient in size and frequency to 
liquidate the Government's claim in not more than 3 years. Installment 
payments of less than $50 per month will be accepted only if justifiable 
on the grounds of financial hardship or some other reasonable cause.
    (b) If the debtor owes more than one debt and designates how a 
voluntary installment payment is to be applied as among those debts, 
that designation must be followed. If the debtor does not designate the 
application of the payment, FMCS will apply payments to various debts in 
accordance with the best interests of the United States, as

[[Page 81]]

determined by the facts and circumstances of the particular case, paying 
special attention to applicable statutes of limitations.



Sec. 1450.13  Exploration of compromise.

    FMCS may attempt to effect compromise, preferably during the course 
of personal interviews, in accordance with the standards set forth in 
part 103 of the Federal Claims Collection Standards (4 CFR part 103).



Sec. 1450.14  Suspending or termination collection action.

    The suspension or termination of collection action shall be made in 
accordance with the standards set forth in part 104 of the Federal 
Claims Collection Standards (4 CFR part 104).



Sec. 1450.15  Referrals to the Department of Justice or the General Accounting Office.

    Referrals to the Department of Justice or the General Accounting 
Office shall be made in accordance with the standards set forth in part 
105 of the Federal Claims Collection Standards (4 CFR part 105).



Sec. 1450.16  Use of consumer reporting agencies.

    (a) The term individual means a natural person, and the term 
``consumer reporting agency'' has the meaning provided in the Federal 
Claims Collection Act, as amended, at 31 U.S.C. 3701(a)(3) or the Fair 
Credit Reporting Act, at 15 U.S.C. 1681a(f).
    (b) FMCS may disclose to a consumer reporting agency, from a system 
of records, information that an individual is responsible for a claim 
if--
    (1) Notice required by section 5 U.S.C. 552(a)(e)(4) indicates that 
information in the system may be disclosed to a consumer reporting 
agency;
    (2) The claim has been reviewed and it is decided that the claim is 
valid and overdue;
    (3) FMCS has notified the individual in writing--
    (i) That payment of the claim is overdue;
    (ii) That, within not less than 60 days after sending the notice, 
FMCS intends to disclose to a consumer reporting agency that the 
individual is responsible for that claim;
    (iii) Of the specific information to be disclosed to the consumer 
reporting agency; and
    (iv) Of the rights the individual has to a complete explanation of 
the claim, to dispute information in the records of the agency about the 
claim, and to administrative appeal or review of the claim; and
    (4) The individual has not--
    (i) Repaid or agreed to repay the claim under a written repayment 
plan that the individual has signed and the agency has agreed to; or
    (ii) Filed for review of the claim under paragraph (g) of this 
section;
    (c) FMCS will also--(1) Disclose promptly, to each consumer 
reporting agency to which the original disclosure was made, a 
substantial change in the condition or amount of the claim;
    (2) Verify or correct promptly information about the claim, on 
request of a consumer reporting agency for verification of information 
disclosed; and
    (3) Get satisfactory assurances from each consumer reporting agency 
that they are complying with all laws of the United States related to 
providing consumer credit information; and assure that
    (d) The information disclosed to the consumer reporting agency is 
limited to (1) Information necessary to establish the identity of the 
individual, including name, address, and taxpayer identification number;
    (2) The amount, status, and history of the claim; and
    (3) The agency or program under which the claim arose.
    (e) All accounts in excess of $100 that have been delinquent more 
than 31 days will normally be referred to a consumer reporting agency.
    (f) Before disclosing information to a consumer reporting agency 
FMCS shall take reasonable action to locate an individual for whom the 
head of the agency does not have a current address to send the notice.
    (g) Before disclosing information to a consumer reporting agency 
FMCS shall provide, on request of an individual alleged by the agency to 
be responsible

[[Page 82]]

for the claim, a review of the obligation of the individual including an 
opportunity for reconsideration of the initial decision on the claim.
    (h) Under the same provisions as described above in this section, 
FMCS may disclose to a credit reporting agency, information relating to 
a debtor other than a natural person. Such commercial debt accounts are 
not covered, however, by the Privacy Act.



Sec. 1450.17  Contracting for collection services.

    (a) FMCS has authority to contract for collection services to 
recover delinquent debts, provided that the following conditions are 
satisfied;
    (1) The authority to resolve disputes, compromise claims, suspend or 
terminate collection action, and refer the matter for litigation is 
retained by the agency;
    (2) The contractor shall be subject to the Privacy Act of 1974, as 
amended to the extent specified in 5 U.S.C. 552a(m), and to applicable 
Federal and State laws and regulations pertaining to debt collection 
practices, such as the Fair Debt Collection Practices Act, 15 U.S.C. 
1692;
    (3) The contractor must be required to account strictly for all 
amounts collected;
    (4) The contractor must agree that uncollectible accounts shall be 
returned with appropriate documentation to enable FMCS to determine 
whether to pursue collection through litigation or to terminate 
collection efforts, and
    (5) The contractor must agree to provide any data contained in its 
files relating to paragraphs (a) (1), (2), and (3) of Sec. 105.2 of the 
Federal Claims Collection Standards (4 CFR part 105) upon returning an 
account to FMCS for subsequent referral to the Department of Justice for 
litigation.
    (b) Funding of collection service contracts: (1) FMCS may fund a 
collection service contract on a fixed-fee basis, that is, payment of a 
fixed fee determined without regard to the amount actually collected 
under the contract. Payment of the fee under this type of contract must 
be charged to available agency appropriations.
    (2) FMCS may also fund a collection service contract on a 
contingent-fee basis, that is, by including a provision in the contract 
permitting the contractor to deduct its fee from amounts collected under 
the contract. The fee should be based on a percentage of the amount 
collected, consistent with prevailing commercial practice.
    (3) FMCS may enter into a contract under paragraph (b)(1) of this 
section only if and to the extent provided in advance in its 
appropriation acts or other legislation, except that this requirement 
does not apply to the use of a revolving fund authorized by statute.
    (4) Except as authorized under paragraph (b)(2) of this section, or 
unless the receipt qualifies as a refund to the appropriation, or unless 
otherwise specifically provided by law, FMCS must deposit all amounts 
recovered under collection service contracts (or by agency employees on 
behalf of the agency) in the Treasury as miscellaneous receipts pursuant 
to 31 U.S.C. 3302.
    (c) FMCS will consider the use of collection agencies at any time 
after the account is 61 days past due. In all cases accounts that are 
six months or more past due shall be turned over to a collection agency 
unless referred for litigation or unless arrangements have been made for 
a workout procedure, or the agency has exercised its authority to write 
off the debt pursuant to Sec. 1450.14.
    (d) FMCS will generally not use a collection agency to collect a 
delinquent debt owed by a currently employed or retired Federal 
employee, if collection by salary or annuity offset is available.



                        Subpart C--Salary Offset



Sec. 1450.18  Purpose.

    This subpart provides the standards to be followed by FMCS in 
implementing 5 U.S.C. 5514 to recover a debt from the pay account of an 
FMCS employee, and establishes procedural guidelines to recover debts 
when the employee's creditor and paying agencies are not the same.

[[Page 83]]



Sec. 1450.19  Scope.

    (a) Coverage. This subpart applies to agencies and employees as 
defined by Sec. 1450.20.
    (b) Applicability. This subpart and 5 U.S.C. 5514 apply in 
recovering certain debts by offset, except where the employee consents 
to the recovery, from the current pay account of that employee. Because 
it is an administrative offset, debt collection procedures for salary 
offset which are not specified in U.S.C. 5514 and these regulations 
should be consistent with the provisions of the Federal Claims 
Collection Standards (4 CFR parts 101-105).
    (1) Excluded debts or claims. The procedures contained in this 
subpart do not apply to debts or claims arising under the Internal 
Revenue Code of 1954 as amended (26 U.S.C. 1 et seq.), the Social 
Security Act (42 U.S.C. 301 et seq.) or the tariff laws of the United 
States, or to any case where collection of a debt by salary offset is 
explicitly provided for or prohibited by another statute (e.g., travel 
advances in 5 U.S.C. 5705 and employee training expenses in 5 U.S.C. 
4108).
    (2) Waiver requests and claims to the General Accounting Office. 
This subpart does not preclude an employee from requesting waiver of a 
salary overpayment under 5 U.S.C. 5584, 10 U.S.C. 2774, or 32 U.S.C. 
716, or in any way questioning the amount or validity of a debt by 
submitting a subsequent claim to the General Accounting Office in 
accordance with procedures prescribed by the General Accounting Office. 
Similarly, in the case of other types of debts, it does not preclude an 
employee from requesting waiver, if waiver is available under any 
statutory provision pertaining to the particular debt being collected.
    (c) Time limit. Under 4 CFR 102.3(b)(3), offset may not be initiated 
more than 10 years after the Government's right to collect the debt 
first accrued, unless an exception applies as stated in 
Sec. 102.3(b)(3).



Sec. 1450.20  Definitions.

    For purposes of this subpart--
    Agency means the Federal Mediation and Conciliation Service (FMCS) 
or means any other agency of the U.S. Government as defined by section 
105 of title 5 U.S.C., including the U.S. Postal Service, and the U.S. 
Postal Rate Commission, a military department as defined by section 102 
of title 5 U.S.C., an agency or court of the judicial branch, and an 
agency of the legislative branch, including the U.S. Senate and the U.S. 
House of Representatives.
    Creditor agency means the agency to which the debt is owed.
    Debt means an amount owed to the United States from sources which 
include loans insured or guaranteed by the United States and all other 
amounts due the United States from fees, leases, rents, royalties, 
services, sales of real or personal property, overpayments, penalties, 
damages, interests, fines and forfeitures (except those arising under 
the Uniform Code Military Justice), and all other similar sources.
    Disposable pay means that part of current basic pay, special pay, 
incentive pay, retired pay, retainer pay, or in the case of an employee 
not entitled to basic pay, other authorized pay remaining after the 
deduction of any amount required by law to be withheld. FMCS will 
exclude deductions described in 5 CFR 581.105 (b) through (f) to 
determine disposable pay subject to salary offset.
    Employee means a current employee of FMCS or of another agency, 
including a current member of the Armed Forces or a Reserve of the Armed 
Forces
    FCCS means the Federal Claims Collection Standards jointly published 
by the Justice Department and the General Accounting Office at 4 CFR 
parts 101-105.
    Paying agency means the agency employing the individual and 
authorizing the payment of his or her current pay.
    Salary offset means an administrative offset to collect a debt under 
5 U.S.C. 5514 by deduction(s) at one or more officially established pay 
intervals from the current pay account of an employee without his or her 
consent.
    Waiver means the cancellation, remission, forgiveness, or non-
recovery of a debt allegedly owed by an employee to an agency as 
permitted or required by 5 U.S.C. 5584, 10 U.S.C. 2774,

[[Page 84]]

or 32 U.S.C. 710, 5 U.S.C. 8346(b), or any other law.



Sec. 1450.21  Notification.

    (a) Salary offset deductions shall not be made unless the Director 
of the Financial Management Staff of FMCS, or such other official as may 
be named in the future by the Director of FMCS, provides to the 
employee--at least 30 days before any deduction--a written notice 
stating at a minimum:
    (1) The agency's determination that a debt is owed, including the 
origin, nature, and amount of the debt;
    (2) The agency's intention to collect the debt by means of deduction 
from the employee's current disposable pay account;
    (3) The amount, frequency, proposed beginning date, and duration of 
the intended deductions;
    (4) An explanation of the agency's policy concerning interest, 
penalties, and administrative costs (subpart D of this regulation), a 
statement that such assessment must be made unless excused in accordance 
with the FCCS;
    (5) The employee's right to inspect and copy Government records 
relating to the debt or, if the employee or his or her representative 
cannot personnally inspect the records, to request and receive a copy of 
such records;
    (6) If not previously provided, the opportunity (under terms 
agreeable to the agency) to establish a schedule for the voluntary 
repayment of the debt or to enter into a written agreement to establish 
a schedule for repayment of the debt in lieu of offset. The agreement 
must be writing, signed by both the employee and the Director of the 
Financial Management Staff of FMCS, and documented in agency files (4 
CFR 102.11).
    (7) The employee's right to a hearing conducted by an official 
arranged by the agency (an administrative law judge or alternatively, a 
hearing official not under the control of the head of the agency) if a 
petition is filed as prescribed by Sec. 1450.22.
    (8) The method and time period for petitioning for a hearing;
    (9) That the timely filing of a petition for hearing will stay the 
commencement of collection proceedings;
    (10) That a final decision on the hearing (if one is requested) will 
be issued at the earliest practical date, but not later than 60 days 
after the filing of the petition requesting the hearing unless the 
employee requests and the hearing official grants a delay in the 
proceedings;
    (11) That any knowingly false, misleading, or frivolous statements, 
representations, or evidence may subject the employee to:
    (i) Disciplinary procedures appropriate under chapter 75 of title 5, 
U.S.C., part 752 of title 5, CFR, or any other applicable status or 
regulations;
    (ii) Penalties under the False Claims Act sections 3729-3731 of 
title 31, U.S.C., or any other applicable statutory authority; or
    (iii) Criminal penalties under sections 286, 287, 1001, and 1002 of 
title 18, U.S.C., or any other applicable statutory authority.
    (12) Any other right and remedies available to the employee under 
statutes or regulations governing the program for which the collection 
is being made; and
    (13) Unless there are applicable contractual or statutory provisions 
to the contrary, that amounts paid on or deducted for the debt which are 
later waived or found not owned to the United States will be promptly 
refunded to the employee.
    (b) Notifications under this section shall be hand delivered with a 
record made of the date and time of delivery, or shall be mailed by 
certified mail return receipt requested.
    (c) No notification, hearing, written responses or final decisions 
under this regulation are required of FMCS for any adjustment to pay 
arising out of an employee's election of coverage under a Federal 
benefit program requiring periodic deductions from pay, if the amount to 
be recovered was accumulated over four pay periods or less.



Sec. 1450.22  Hearing.

    (a) Petition for hearing. (1) A hearing may be requested by filing a 
written petition with the Director, Financial Management Staff of FMCS, 
or such other official as may be named in the

[[Page 85]]

future by the Director of FMCS, stating why the employee believes the 
determination of the agency concerning the existence or the amount of 
the debt is in error.
    (2) The employee's petition must be signed by the employee and fully 
identify and explain with reasonable specificity all the facts, evidence 
and witnesses, if any, which the employee believes support his or her 
position.
    (3) The petition must be filed no later than fifteen (15) calendar 
days from the date that the notification was hand delivered or the date 
of delivery by certified mail, return receipt requested.
    (4) If a petition is received after the fifteen (15) calendar day 
deadline referred to above, FMCS will nevertheless accept the petition 
if the employee can show that the delay was because of circumstances 
beyond his or her control, or because of failure to receive notice of 
the time limit (unless otherwise aware of it).
    (5) If a petition is not filed within the time limit specified in 
paragraph (a)(3) of this section, and is not accepted pursuant to 
paragraph (a)(4) of this section, the employee's right to hearing will 
be considered waived, and salary offset will be implemented by FMCS.
    (b) Type of hearing. (1) The form and content of the hearing will be 
determined by the hearing official who shall be a person outside the 
control or authority of FMCS. In determining the type of hearing, the 
hearing officer will consider the nature and complexity of the 
transaction giving rise to the debt. The hearing may be conducted as an 
informal conference or interview, in which the agency and employee will 
be given a full opportunity to present their respective positions, or as 
a more formal proceeding involving the presentation of evidence, 
arguments and written submissions.
    (2) The employee may represent himself or herself, or may be 
represented by an attorney.
    (3) The hearing official shall maintain a summary record of the 
hearing.
    (4) The decision of the hearing officer will be in writing, and will 
state:
    (i) The facts purported to evidence the nature and origin of the 
alleged debt;
    (ii) The hearing official's analysis, findings, and conclusions, in 
the light of the hearing, as to--
    (A) The employee's and/or agency's grounds,
    (B) The amount and validity of the alleged debt and,
    (C) The repayment schedule, if applicable.
    (5) The decision of the hearing official shall constitute the final 
administrative decision of the agency.



Sec. 1450.23  Deduction from pay.

    (a) Deduction by salary offset, from an employee's current 
disposable pay, shall be subject to the following conditions:
    (1) Ordinarily, debts to the United States should be collected in 
full, in one lump-sum. This will be done when funds are available. 
However, if funds are unavailable for payment in one lump sum, or if the 
amount of the debt exceeds 15 percent of disposable pay for an 
officially established pay interval, collection will normally be made in 
installments.
    (2) The installments shall not exceed 15 percent of the disposable 
pay from which the deduction is made, unless the employee has agreed in 
writing to the deduction of a greater amount.
    (3) Deduction will generally commence with the next full pay 
interval (ordinarily the next biweekly pay period) following written 
consent by the employee to salary offset, waiver of hearing, or the 
decision issued by the hearing officer.
    (4) Installment deductions must be made over a period not greater 
than the anticipated period of employment except as provided in 
Sec. 1450.24.



Sec. 1450.24  Liquidation from final check or recovery from other payment.

    (a) If the employee retires or resigns or if his or her employment 
or period of active duty ends before collection of the debt is 
completed, offset of the entire remaining balance on the debt may be 
made from a final payment of any nature, including but not limited to, 
final salary payment or lump-sum leave due to the employee as of the 
date of separation.
    (b) If the debt cannot be liquidated by offset from a final payment, 
offset

[[Page 86]]

may be made from later payments of any kind due from the United States, 
including, but not limited to, the Civil Service Retirement and 
Disability Fund, pursuant to Sec. 1450.11 of this regulation.



Sec. 1450.25  Non-waiver of rights by payments.

    An employee's involuntary payment of all or any portion of a debt 
being collected under 5 U.S.C. 5514 shall not be construed as a waiver 
of any rights which the employee may have under 5 U.S.C. 5514 or any 
other provision of contract or law, unless statutory or contractual 
provisions provide to the contrary.



Sec. 1450.26  Refunds.

    (a) Refunds shall promptly be made when--
    (1) A debt is waived or otherwise found not owing to the United 
States (unless expressly prohibited by statute or regulation); or
    (2) The employee's paying agency is directed by an administrative or 
judicial order to refund amounts deducted from his or her current pay.
    (b) Refunds do not bear interest unless required or permitted by law 
or contract.



Sec. 1450.27  Interest, penalties, and administrative costs.

    The assessment of interest, penalties and administrative costs shall 
be in accordance with subpart D of this regulation.



Sec. 1450.28  Recovery when paying agency is not creditor agency.

    (a) Responsibilities of creditor agency. Upon completion of the 
procedures established under 5 U.S.C. 5514, the creditor agency must do 
the following:
    (1) The creditor agency must certify, in writing, that the employee 
owes the debt, the amont and basis of the debt, the date on which 
payment(s) is due, the date the Government's right to collect the debt 
first accrued, and that the creditor agency's regulations implementing 5 
U.S.C. 5514 have been approved by OPM.
    (2) If the collection must be made in installments, the creditor 
agency also must advise the paying agency of the number of installments 
to be collected, the amount of each installment, and the commencing date 
of the first installment (if a date other than the next officially 
established pay period is required).
    (3) Unless the employee has consented to the salary offset in 
writing or signed a statement acknowledging receipt of the required 
procedures, and the written consent or statement is forwarded to the 
paying agency, the creditor agency also must advise the paying agency of 
the action(s) taken under 5 U.S.C. 5514(b) and give the date(s) the 
action(s) was taken.
    (4) Except as otherwise provided in this paragraph, the creditor 
agency must submit a debt claim containing the information specified in 
paragraphs (a) (1) through (3) of this section and an installment 
agreement (or other instruction on the payment schedule), if applicable 
to the employee's paying agency.
    (5) If the employee is in the process of separating, the creditor 
agency must submit its claim to the employee's paying agency for 
collection pursuant to Sec. 1450.24. The paying agency must certify the 
total amount of its collection and provide copies to the creditor agency 
and the employee as stated in paragraph (c)(1) of this section. If the 
paying agency is aware that the employee is entitled to payments from 
the Civil Service Retirement and Disability Fund, or other similar 
payments, it must provide written notification to the agency responsible 
for making such payments that the debtor owes a debt (including the 
amount) and that the provisions of this section have been fully compiled 
with. However, the creditor agency must submit a properly certified 
claim to the agency responsible for making such payments before 
collection can be made.
    (6) If the employee is already separated and all payments from his 
or her former paying agency have been paid, the creditor agency may 
request, unless otherwise prohibited, that money due and payable to the 
employee from the Civil Service Retirement and Disability Fund (5 CFR 
831.1801 et seq.), or other similar funds, be administratively offset to 
collect the debt. (31 U.S.C. 3716 and 102.4 FCCS.)

[[Page 87]]

    (b) Responsibilities of paying agency--(1) Complete claim. When the 
paying agency receives a properly certified debt claim from a creditor 
agency, deductions should be scheduled to begin prospectively at the 
next officially established pay interval. The employee must receive 
written notice that the paying agency has received a certified debt 
claim from the creditor agency (including the amount) and written notice 
of the date deductions from salary will commence and of the amount of 
such deductions.
    (2) Incomplete claim. When the paying agency receives an incomplete 
debt claim from a creditor agency, the paying agency must return the 
debt claim with a notice that procedures under 5 U.S.C. 5514 and this 
subpart must be provided, and a properly certified debt claim received, 
before action will be taken to collect from the employee's current pay 
account.
    (3) Review. The paying agency is not required or authorized to 
review the merits of the creditor agency's determination with respect to 
the amount or validity of the debt certified by the creditor agency.
    (c) Employees who transfer from one paying agency to another. (1) 
If, after the creditor agency has submitted the debt claim to the 
employee's paying agency, the employee transfers to a position served by 
a different paying agency before the debt is collected in full, the 
paying agency from which the employee separates must certify the total 
amount of the collection made on the debt. One copy of the certification 
must be furnished to the employee, another to the creditor agency along 
with notice of employee's transfer. However, the creditor agency must 
submit a properly certified claim to the new paying agency before 
collection can be resumed.
    (2) When an employee transfers to another paying agency, the 
creditor agency need not repeat the due process procedures described by 
5 U.S.C. 5514 and this subpart to resume the collection. However, the 
creditor agency is responsible for reviewing the debt upon receiving the 
former paying agency's notice of the employee's transfer to make sure 
the collection is resumed by the new paying agency.



        Subpart D--Interest, Penalties, and Administrative Costs



Sec. 1450.29  Assessment.

    (a) Except as provided in paragraph (h) of this section, or 
Sec. 1450.30, FMCS shall assess interest, penalties and administrative 
costs on debts owed to the United States pursuant to 31 U.S.C. 3717. 
Before assessing these charges, FMCS will mail or hand-deliver a written 
notice to the debtor. This notice shall include a statement of the 
agency's requirements concerning these charges. (Sections 1450.9 and 
1450.21).
    (b) Interest shall accrue from the date on which notice of the debt 
and the interest requirements is first mailed or hand-delivered to the 
debtor, using the most current address that is available to the agency. 
If FMCS should use an ``advance billing'' procedure--that is, if it 
mails a bill before the debt is actually owed--it can include the 
required interest notification in the advance billing, but interest may 
not start to accrue before the debt is actually owed. FMCS will exercise 
care to insure that the notices required by this section are dated and 
mailed or hand-delivered on the same day.
    (c) The rate of interest assessed shall be the rate of the current 
value of funds to the United States Treasury (i.e., the Treasury tax and 
loan account rate), as prescribed and published by the Secretary of the 
Treasury in the Federal Register and the Treasury Fiscal Requirements 
Manual Bulletins annually or quarterly, in accordance with 31 U.S.C. 
3717. FMCS may assess a higher rate of interest if it reasonably 
determines that a higher rate is necessary to protect the interests of 
the United States. The rate of interest, as initially assessed, shall 
remain fixed for the duration of the indebtedness except that where a 
debtor has defaulted on a repayment agreement and seeks to enter into a 
new agreement, FMCS may set a new interest rate which reflects the 
current value of funds to the Treasury at the time the new agreement is 
executed. Interest will not be assessed on interest, penalties, or 
administrative costs required by this section. However, if the debtor 
defaults on a previous repayment agreement, charges which accrued but 
were not

[[Page 88]]

collected under the defaulted agreement shall be added to the principal 
to be paid under a new repayment agreement.
    (d) FMCS shall assess against a debtor charges to cover 
administrative costs incurred as a result of a delinquent debt--that is, 
the additional costs incurred in processing and handling the debt 
because it became delinquent. Calculation of administrative costs shall 
be based upon actual costs incurred or upon cost analyses establishing 
an average of actual additional costs incurred by the agency in 
processing and handling claims against other debtors in similar stages 
of delinquency. Administrative costs may include costs incurred in 
obtaining a credit report or in using a private debt collector, to the 
extent they are attributable to delinquency.
    (e) FMCS shall assess a penalty charge, not to exceed 6 percent a 
year, on any portion of a debt that is delinquent for more than 90 days. 
This charge need not be calculated until the 91st day of delinquency, 
but shall accure from the date that the debt became delinquent.
    (f) When a debt is paid in partial or installment payments, amounts 
received by the agency shall be applied first to outstanding penalty and 
administrative cost charges, second to accrued interest, and third to 
outstanding principal.
    (g) FMCS will waive the collection of interest on the debt or any 
portion of the debt which is paid within 30 days after the date on which 
interest began to accrue. FMCS may extend this 30-day period, on a case-
by-case basis, if it reasonably determines that such action is 
appropriate. Also, FMCS may waive, in whole or in part, the collection 
of interest, penalties, and/or administrative costs assessed under this 
section under the criteria specified in part 103 of the Federal Claims 
Collection Standards (4 CFR part 103) relating to the compromise of 
claims (without regard to the amount of the debt), or if the agency 
determines that collection of these charges would be against equity and 
good conscience, or not in the best interests of the United States. 
Waiver under the first sentence of this paragraph (g) is mandatory. 
Under the second and third sentences, it may be exercised under the 
following circumstances:
    (1) Waiver of interest pending consideration of a request for 
reconsideration, administrative review, or waiver of the underlying debt 
under a permissive statute, and
    (2) Waiver of interest where FMCS has accepted an installment plan, 
there is no indication of fault or lack of good faith on the part of the 
debtor, and the amount of interest is large enough in relation to the 
size of the installments that the debtor can reasonably afford to pay, 
that the debt will never be repaid.
    (h) Where a mandatory waiver or review statute applies, interest and 
related charges may not be assessed for those periods during which 
collection action must be suspended under Sec. 104.2(c)(1) of the 
Federal Claims Collection Standards (4 CFR part 104).



Sec. 1450.30  Exemptions.

    (a) The provisions of 31 U.S.C. 3717 to not apply:
    (1) To debts owed by any State or local government;
    (2) To debts arising under contracts which were executed prior to, 
and were in effect on (i.e., were not completed as of), October 25, 
1982;
    (3) To debts where an applicable statute, regulation required by 
statute, loan agreement, or contract either prohibits such charges or 
explicitly fixes the charges that apply to the debts arising under the 
Social Security Act, the Internal Revenue Code of 1954, or the tariff 
laws of the United States.
    (b) However, FMCS is authorized to assess interest and related 
charges on debts which are not subject to 31 U.S.C. 3717 to the extent 
authorized under the common law or other applicable statutory authority.



Sec. 1450.31  Other sanctions.

    The sanctions stated in this subpart are not intended to be 
exclusive. Other sanctions which may be imposed by the Director of FMCS 
include placement of the debtor's name on a list of debarred, suspended 
or ineligible contractors or grantees; conversion of method of payment 
under a grant from an advance payment method to a reimbursement

[[Page 89]]

method; or revocation of a letter of credit. Notice will be given by 
FMCS to the debtor regarding the imposition of such other sanctions.



PART 1470--UNIFORM ADMINISTRATIVE REQUIREMENTS FOR GRANTS AND COOPERATIVE AGREEMENTS TO STATE AND LOCAL GOVERNMENTS--Table of Contents




                           Subpart A--General

Sec.
1470.1  Purpose and scope of this part.
1470.2  Scope of subpart.
1470.3  Definitions.
1470.4  Applicability.
1470.5  Effect on other issuances.
1470.6  Additions and exceptions.

                    Subpart B--Pre-Award Requirements

1470.10  Forms for applying for grants.
1470.11  State plans.
1470.12  Special grant or subgrant conditions for ``high-risk'' 
          grantees.

                   Subpart C--Post-Award Requirements

                        Financial Administration

1470.20  Standards for financial management systems.
1470.21  Payment.
1470.22  Allowable costs.
1470.23  Period of availability of funds.
1470.24  Matching or cost sharing.
1470.25  Program income.
1470.26  Non-Federal audit.

                    Changes, Property, and Subawards

1470.30  Changes.
1470.31  Real property.
1470.32  Equipment.
1470.33  Supplies.
1470.34  Copyrights.
1470.35  Subawards to debarred and suspended parties.
1470.36  Procurement.
1470.37  Subgrants.

               Reports, Records Retention, and Enforcement

1470.40  Monitoring and reporting program performance.
1470.41  Financial reporting.
1470.42  Retention and access requirements for records.
1470.43  Enforcement.
1470.44  Termination for convenience.

                 Subpart D--After-the-Grant Requirements

1470.50  Closeout.
1470.51  Later disallowances and adjustments.
1470.52  Collection of amounts due.

                   Subpart E--Entitlements [Reserved]

    Authority: 29 U.S.C. 175a.

    Source: 53 FR 8087, Mar. 11, 1988, unless otherwise noted.



                           Subpart A--General



Sec. 1470.1  Purpose and scope of this part.

    This part establishes uniform administrative rules for Federal 
grants and cooperative agreements and subawards to State, local and 
Indian tribal governments.



Sec. 1470.2  Scope of subpart.

    This subpart contains general rules pertaining to this part and 
procedures for control of exceptions from this part.



Sec. 1470.3  Definitions.

    As used in this part:
    Accrued expenditures mean the charges incurred by the grantee during 
a given period requiring the provision of funds for: (1) Goods and other 
tangible property received; (2) services performed by employees, 
contractors, subgrantees, subcontractors, and other payees; and (3) 
other amounts becoming owed under programs for which no current services 
or performance is required, such as annuities, insurance claims, and 
other benefit payments.
    Accrued income means the sum of: (1) Earnings during a given period 
from services performed by the grantee and goods and other tangible 
property delivered to purchasers, and (2) amounts becoming owed to the 
grantee for which no current services or performance is required by the 
grantee.
    Acquisition cost of an item of purchased equipment means the net 
invoice unit price of the property including the cost of modifications, 
attachments, accessories, or auxiliary apparatus necessary to make the 
property usable for the purpose for which it was acquired. Other charges 
such as the cost of installation, transportation, taxes, duty or 
protective in-transit insurance, shall be included or excluded

[[Page 90]]

from the unit acquisition cost in accordance with the grantee's regular 
accounting practices.
    Administrative requirements mean those matters common to grants in 
general, such as financial management, kinds and frequency of reports, 
and retention of records. These are distinguished from programmatic 
requirements, which concern matters that can be treated only on a 
program-by-program or grant-by-grant basis, such as kinds of activities 
that can be supported by grants under a particular program.
    Awarding agency means (1) with respect to a grant, the Federal 
agency, and (2) with respect to a subgrant, the party that awarded the 
subgrant.
    Cash contributions means the grantee's cash outlay, including the 
outlay of money contributed to the grantee or subgrantee by other public 
agencies and institutions, and private organizations and individuals. 
When authorized by Federal legislation, Federal funds received from 
other assistance agreements may be considered as grantee or subgrantee 
cash contributions.
    Contract means (except as used in the definitions for grant and 
subgrant in this section and except where qualified by Federal) a 
procurement contract under a grant or subgrant, and means a procurement 
subcontract under a contract.
    Cost sharing or matching means the value of the third party in-kind 
contributions and the portion of the costs of a federally assisted 
project or program not borne by the Federal Government.
    Cost-type contract means a contract or subcontract under a grant in 
which the contractor or subcontractor is paid on the basis of the costs 
it incurs, with or without a fee.
    Equipment means tangible, nonexpendable, personal property having a 
useful life of more than one year and an acquisition cost of $5,000 or 
more per unit. A grantee may use its own definition of equipment 
provided that such definition would at least include all equipment 
defined above.
    Expenditure report means: (1) For nonconstruction grants, the SF-269 
``Financial Status Report'' (or other equivalent report); (2) for 
construction grants, the SF-271 ``Outlay Report and Request for 
Reimbursement'' (or other equivalent report).
    Federally recognized Indian tribal government means the governing 
body or a governmental agency of any Indian tribe, band, nation, or 
other organized group or community (including any Native village as 
defined in section 3 of the Alaska Native Claims Settlement Act, 85 Stat 
688) certified by the Secretary of the Interior as eligible for the 
special programs and services provided by him through the Bureau of 
Indian Affairs.
    Government means a State or local government or a federally 
recognized Indian tribal government.
    Grant means an award of financial assistance, including cooperative 
agreements, in the form of money, or property in lieu of money, by the 
Federal Government to an eligible grantee. The term does not include 
technical assistance which provides services instead of money, or other 
assistance in the form of revenue sharing, loans, loan guarantees, 
interest subsidies, insurance, or direct appropriations. Also, the term 
does not include assistance, such as a fellowship or other lump sum 
award, which the grantee is not required to account for.
    Grantee means the government to which a grant is awarded and which 
is accountable for the use of the funds provided. The grantee is the 
entire legal entity even if only a particular component of the entity is 
designated in the grant award document.
    Local government means a county, municipality, city, town, township, 
local public authority (including any public and Indian housing agency 
under the United States Housing Act of 1937) school district, special 
district, intrastate district, council of governments (whether or not 
incorporated as a nonprofit corporation under State law), any other 
regional or interstate government entity, or any agency or 
instrumentality of a local government.
    Obligations means the amounts of orders placed, contracts and 
subgrants awarded, goods and services received, and similar transactions 
during a given period that will require payment by the grantee during 
the same or a future period.

[[Page 91]]

    OMB means the United States Office of Management and Budget.
    Outlays (expenditures) mean charges made to the project or program. 
They may be reported on a cash or accrual basis. For reports prepared on 
a cash basis, outlays are the sum of actual cash disbursement for direct 
charges for goods and services, the amount of indirect expense incurred, 
the value of in-kind contributions applied, and the amount of cash 
advances and payments made to contractors and subgrantees. For reports 
prepared on an accrued expenditure basis, outlays are the sum of actual 
cash disbursements, the amount of indirect expense incurred, the value 
of inkind contributions applied, and the new increase (or decrease) in 
the amounts owed by the grantee for goods and other property received, 
for services performed by employees, contractors, subgrantees, 
subcontractors, and other payees, and other amounts becoming owed under 
programs for which no current services or performance are required, such 
as annuities, insurance claims, and other benefit payments.
    Percentage of completion method refers to a system under which 
payments are made for construction work according to the percentage of 
completion of the work, rather than to the grantee's cost incurred.
    Prior approval means documentation evidencing consent prior to 
incurring specific cost.
    Real property means land, including land improvements, structures 
and appurtenances thereto, excluding movable machinery and equipment.
    Share, when referring to the awarding agency's portion of real 
property, equipment or supplies, means the same percentage as the 
awarding agency's portion of the acquiring party's total costs under the 
grant to which the acquisition costs under the grant to which the 
acquisition cost of the property was charged. Only costs are to be 
counted--not the value of third-party in-kind contributions.
    State means any of the several States of the United States, the 
District of Columbia, the Commonwealth of Puerto Rico, any territory or 
possession of the United States, or any agency or instrumentality of a 
State exclusive of local governments. The term does not include any 
public and Indian housing agency under United States Housing Act of 
1937.
    Subgrant means an award of financial assistance in the form of 
money, or property in lieu of money, made under a grant by a grantee to 
an eligible subgrantee. The term includes financial assistance when 
provided by contractual legal agreement, but does not include 
procurement purchases, nor does it include any form of assistance which 
is excluded from the definition of grant in this part.
    Subgrantee means the government or other legal entity to which a 
subgrant is awarded and which is accountable to the grantee for the use 
of the funds provided.
    Supplies means all tangible personal property other than equipment 
as defined in this part.
    Suspension means depending on the context, either (1) temporary 
withdrawal of the authority to obligate grant funds pending corrective 
action by the grantee or subgrantee or a decision to terminate the 
grant, or (2) an action taken by a suspending official in accordance 
with agency regulations implementing E.O. 12549 to immediately exclude a 
person from participating in grant transactions for a period, pending 
completion of an investigation and such legal or debarment proceedings 
as may ensue.
    Termination means permanent withdrawal of the authority to obligate 
previously-awarded grant funds before that authority would otherwise 
expire. It also means the voluntary relinquishment of that authority by 
the grantee or subgrantee. Termination does not include:
    (1) Withdrawal of funds awarded on the basis of the grantee's 
underestimate of the unobligated balance in a prior period;
    (2) Withdrawal of the unobligated balance as of the expiration of a 
grant;
    (3) Refusal to extend a grant or award additional funds, to make a 
competing or noncompeting continuation, renewal, extension, or 
supplemental award; or
    (4) Voiding of a grant upon determination that the award was 
obtained fraudulently, or was otherwise illegal or invalid from 
inception.

[[Page 92]]

    Terms of a grant or subgrant mean all requirements of the grant or 
subgrant, whether in statute, regulations, or the award document.
    Third party in-kind contributions mean property or services which 
benefit a federally assisted project or program and which are 
contributed by non-Federal third parties without charge to the grantee, 
or a cost-type contractor under the grant agreement.
    Unliquidated obligations for reports prepared on a cash basis mean 
the amount of obligations incurred by the grantee that has not been 
paid. For reports prepared on an accrued expenditure basis, they 
represent the amount of obligations incurred by the grantee for which an 
outlay has not been recorded.
    Unobligated balance means the portion of the funds authorized by the 
Federal agency that has not been obligated by the grantee and is 
determined by deducting the cumulative obligations from the cumulative 
funds authorized.



Sec. 1470.4  Applicability.

    (a) General. Subparts A through D of this part apply to all grants 
and subgrants to governments, except where inconsistent with Federal 
statutes or with regulations authorized in accordance with the exception 
provision of Sec. 1470.6, or:
    (1) Grants and subgrants to State and local institutions of higher 
education or State and local hospitals.
    (2) The block grants authorized by the Omnibus Budget Reconciliation 
Act of 1981 (Community Services; Preventive Health and Health Services; 
Alcohol, Drug Abuse, and Mental Health Services; Maternal and Child 
Health Services; Social Services; Low-Income Home Energy Assistance; 
States' Program of Community Development Block Grants for Small Cities; 
and Elementary and Secondary Education other than programs administered 
by the Secretary of Education under title V, subtitle D, chapter 2, 
section 583--the Secretary's discretionary grant program) and titles I-
III of the Job Training Partnership Act of 1982 and under the Public 
Health Services Act (section 1921), Alcohol and Drug Abuse Treatment and 
Rehabilitation Block Grant and part C of title V, Mental Health Service 
for the Homeless Block Grant).
    (3) Entitlement grants to carry out the following programs of the 
Social Security Act:
    (i) Aid to Needy Families with Dependent Children (title IV-A of the 
Act, not including the Work Incentive Program (WIN) authorized by 
section 402(a)19(G); HHS grants for WIN are subject to this part);
    (ii) Child Support Enforcement and Establishment of Paternity (title 
IV-D of the Act);
    (iii) Foster Care and Adoption Assistance (title IV-E of the Act);
    (iv) Aid to the Aged, Blind, and Disabled (titles I, X, XIV, and 
XVI-AABD of the Act); and
    (v) Medical Assistance (Medicaid) (title XIX of the Act) not 
including the State Medicaid Fraud Control program authorized by section 
1903(a)(6)(B).
    (4) Entitlement grants under the following programs of The National 
School Lunch Act:
    (i) School Lunch (section 4 of the Act),
    (ii) Commodity Assistance (section 6 of the Act),
    (iii) Special Meal Assistance (section 11 of the Act),
    (iv) Summer Food Service for Children (section 13 of the Act), and
    (v) Child Care Food Program (section 17 of the Act).
    (5) Entitlement grants under the following programs of The Child 
Nutrition Act of 1966:
    (i) Special Milk (section 3 of the Act), and
    (ii) School Breakfast (section 4 of the Act).
    (6) Entitlement grants for State Administrative expenses under The 
Food Stamp Act of 1977 (section 16 of the Act).
    (7) A grant for an experimental, pilot, or demonstration project 
that is also supported by a grant listed in paragraph (a)(3) of this 
section;
    (8) Grant funds awarded under subsection 412(e) of the Immigration 
and Nationality Act (8 U.S.C. 1522(e)) and subsection 501(a) of the 
Refugee Education Assistance Act of 1980 (Pub. L.

[[Page 93]]

96-422, 94 Stat. 1809), for cash assistance, medical assistance, and 
supplemental security income benefits to refugees and entrants and the 
administrative costs of providing the assistance and benefits;
    (9) Grants to local education agencies under 20 U.S.C. 236 through 
241-1(a), and 242 through 244 (portions of the Impact Aid program), 
except for 20 U.S.C. 238(d)(2)(c) and 240(f) (Entitlement Increase for 
Handicapped Children); and
    (10) Payments under the Veterans Administration's State Home Per 
Diem Program (38 U.S.C. 641(a)).
    (b) Entitlement programs. Entitlement programs enumerated above in 
Sec. 1470.4(a) (3) through (8) are subject to subpart E.



Sec. 1470.5  Effect on other issuances.

    All other grants administration provisions of codified program 
regulations, program manuals, handbooks and other nonregulatory 
materials which are inconsistent with this part are superseded, except 
to the extent they are required by statute, or authorized in accordance 
with the exception provision in Sec. 1470.6.



Sec. 1470.6  Additions and exceptions.

    (a) For classes of grants and grantees subject to this part, Federal 
agencies may not impose additional administrative requirements except in 
codified regulations published in the Federal Register.
    (b) Exceptions for classes of grants or grantees may be authorized 
only by OMB.
    (c) Exceptions on a case-by-case basis and for subgrantees may be 
authorized by the affected Federal agencies.



                    Subpart B--Pre-Award Requirements



Sec. 1470.10  Forms for applying for grants.

    (a) Scope. (1) This section prescribes forms and instructions to be 
used by governmental organizations (except hospitals and institutions of 
higher education operated by a government) in applying for grants. This 
section is not applicable, however, to formula grant programs which do 
not require applicants to apply for funds on a project basis.
    (2) This section applies only to applications to Federal agencies 
for grants, and is not required to be applied by grantees in dealing 
with applicants for subgrants. However, grantees are encouraged to avoid 
more detailed or burdensome application requirements for subgrants.
    (b) Authorized forms and instructions for governmental 
organizations. (1) In applying for grants, applicants shall only use 
standard application forms or those prescribed by the granting agency 
with the approval of OMB under the Paperwork Reduction Act of 1980.
    (2) Applicants are not required to submit more than the original and 
two copies of preapplications or applications.
    (3) Applicants must follow all applicable instructions that bear OMB 
clearance numbers. Federal agencies may specify and describe the 
programs, functions, or activities that will be used to plan, budget, 
and evaluate the work under a grant. Other supplementary instructions 
may be issued only with the approval of OMB to the extent required under 
the Paperwork Reduction Act of 1980. For any standard form, except the 
SF-424 facesheet, Federal agencies may shade out or instruct the 
applicant to disregard any line item that is not needed.
    (4) When a grantee applies for additional funding (such as a 
continuation or supplemental award) or amends a previously submitted 
application, only the affected pages need be submitted. Previously 
submitted pages with information that is still current need not be 
resubmitted.



Sec. 1470.11  State plans.

    (a) Scope. The statutes for some programs require States to submit 
plans before receiving grants. Under regulations implementing Executive 
Order 12372, ``Intergovernmental Review of Federal Programs,'' States 
are allowed to simplify, consolidate and substitute plans. This section 
contains additional provisions for plans that are subject to regulations 
implementing the Executive order.

[[Page 94]]

    (b) Requirements. A State need meet only Federal administrative or 
programmatic requirements for a plan that are in statutes or codified 
regulations.
    (c) Assurances. In each plan the State will include an assurance 
that the State shall comply with all applicable Federal statutes and 
regulations in effect with respect to the periods for which it receives 
grant funding. For this assurance and other assurances required in the 
plan, the State may:
    (1) Cite by number the statutory or regulatory provisions requiring 
the assurances and affirm that it gives the assurances required by those 
provisions,
    (2) Repeat the assurance language in the statutes or regulations, or
    (3) Develop its own language to the extent permitted by law.
    (d) Amendments. A State will amend a plan whenever necessary to 
reflect: (1) New or revised Federal statutes or regulations or (2) a 
material change in any State law, organization, policy, or State agency 
operation. The State will obtain approval for the amendment and its 
effective date but need submit for approval only the amended portions of 
the plan.



Sec. 1470.12  Special grant or subgrant conditions for ``high-risk'' grantees.

    (a) A grantee or subgrantee may be considered ``high risk'' if an 
awarding agency determines that a grantee or subgrantee:
    (1) Has a history of unsatisfactory performance, or
    (2) Is not financially stable, or
    (3) Has a management system which does not meet the management 
standards set forth in this part, or
    (4) Has not conformed to terms and conditions of previous awards, or
    (5) Is otherwise not responsible; and if the awarding agency 
determines that an award will be made, special conditions and/or 
restrictions shall correspond to the high risk condition and shall be 
included in the award.
    (b) Special conditions or restrictions may include:
    (1) Payment on a reimbursement basis;
    (2) Withholding authority to proceed to the next phase until receipt 
of evidence of acceptable performance within a given funding period;
    (3) Requiring additional, more detailed financial reports;
    (4) Additional project monitoring;
    (5) Requiring the grante or subgrantee to obtain technical or 
management assistance; or
    (6) Establishing additional prior approvals.
    (c) If an awarding agency decides to impose such conditions, the 
awarding official will notify the grantee or subgrantee as early as 
possible, in writing, of:
    (1) The nature of the special conditions/restrictions;
    (2) The reason(s) for imposing them;
    (3) The corrective actions which must be taken before they will be 
removed and the time allowed for completing the corrective actions and
    (4) The method of requesting reconsideration of the conditions/
restrictions imposed.



                   Subpart C--Post-Award Requirements

                        Financial Administration



Sec. 1470.20  Standards for financial management systems.

    (a) A State must expand and account for grant funds in accordance 
with State laws and procedures for expending and accounting for its own 
funds. Fiscal control and accounting procedures of the State, as well as 
its subgrantees and cost-type contractors, must be sufficient to--
    (1) Permit preparation of reports required by this part and the 
statutes authorizing the grant, and
    (2) Permit the tracing of funds to a level of expenditures adequate 
to establish that such funds have not been used in violation of the 
restrictions and prohibitions of applicable statutes.
    (b) The financial management systems of other grantees and 
subgrantees must meet the following standards:
    (1) Financial reporting. Accurate, current, and complete disclosure 
of the financial results of financially assisted activities must be made 
in accordance with the financial reporting requirements of the grant or 
subgrant.

[[Page 95]]

    (2) Accounting records. Grantees and subgrantees must maintain 
records which adequately identify the source and application of funds 
provided for financially-assisted activities. These records must contain 
information pertaining to grant or subgrant awards and authorizations, 
obligations, unobligated balances, assets, liabilities, outlays or 
expenditures, and income.
    (3) Internal control. Effective control and accountability must be 
maintained for all grant and subgrant cash, real and personal property, 
and other assets. Grantees and subgrantees must adequately safeguard all 
such property and must assure that it is used solely for authorized 
purposes.
    (4) Budget control. Actual expenditures or outlays must be compared 
with budgeted amounts for each grant or subgrant. Financial information 
must be related to performance or productivity data, including the 
development of unit cost information whenever appropriate or 
specifically required in the grant or subgrant agreement. If unit cost 
data are required, estimates based on available documentation will be 
accepted whenever possible.
    (5) Allowable cost. Applicable OMB cost principles, agency program 
regulations, and the terms of grant and subgrant agreements will be 
followed in determining the reasonableness, allowability, and 
allocability of costs.
    (6) Source documentation. Accounting records must be supported by 
such source documentation as cancelled checks, paid bills, payrolls, 
time and attendance records, contract and subgrant award documents, etc.
    (7) Cash management. Procedures for minimizing the time elapsing 
between the transfer of funds from the U.S. Treasury and disbursement by 
grantees and subgrantees must be followed whenever advance payment 
procedures are used. Grantees must establish reasonable procedures to 
ensure the receipt of reports on subgrantees' cash balances and cash 
disbursements in sufficient time to enable them to prepare complete and 
accurate cash transactions reports to the awarding agency. When advances 
are made by letter-of-credit or electronic transfer of funds methods, 
the grantee must make drawdowns as close as possible to the time of 
making disbursements. Grantees must monitor cash drawdowns by their 
subgrantees to assure that they conform substantially to the same 
standards of timing and amount as apply to advances to the grantees.
    (c) An awarding agency may review the adequacy of the financial 
management system of any applicant for financial assistance as part of a 
preaward review or at any time subsequent to award.



Sec. 1470.21  Payment.

    (a) Scope. This section prescribes the basic standard and the 
methods under which a Federal agency will make payments to grantees, and 
grantees will make payments to subgrantees and contractors.
    (b) Basic standard. Methods and procedures for payment shall 
minimize the time elapsing between the transfer of funds and 
disbursement by the grantee or subgrantee, in accordance with Treasury 
regulations at 31 CFR part 205.
    (c) Advances. Grantees and subgrantees shall be paid in advance, 
provided they maintain or demonstrate the willingness and ability to 
maintain procedures to minimize the time elapsing between the transfer 
of the funds and their disbursement by the grantee or subgrantee.
    (d) Reimbursement. Reimbursement shall be the preferred method when 
the requirements in paragraph (c) of this section are not met. Grantees 
and subgrantees may also be paid by reimbursement for any construction 
grant. Except as otherwise specified in regulation, Federal agencies 
shall not use the percentage of completion method to pay construction 
grants. The grantee or subgrantee may use that method to pay its 
construction contractor, and if it does, the awarding agency's payments 
to the grantee or subgrantee will be based on the grantee's or 
subgrantee's actual rate of disbursement.
    (e) Working capital advances. If a grantee cannot meet the criteria 
for advance payments described in paragraph (c) of this section, and the 
Federal agency has determined that reimbursement is not feasible because 
the

[[Page 96]]

grantee lacks sufficient working capital, the awarding agency may 
provide cash or a working capital advance basis. Under this procedure 
the awarding agency shall advance cash to the grantee to cover its 
estimated disbursement needs for an initial period generally geared to 
the grantee's disbursing cycle. Thereafter, the awarding agency shall 
reimburse the grantee for its actual cash disbursements. The working 
capital advance method of payment shall not be used by grantees or 
subgrantees if the reason for using such method is the unwillingness or 
inability of the grantee to provide timely advances to the subgrantee to 
meet the subgrantee's actual cash disbursements.
    (f) Effect of program income, refunds, and audit recoveries on 
payment. (1) Grantees and subgrantees shall disburse repayments to and 
interest earned on a revolving fund before requesting additional cash 
payments for the same activity.
    (2) Except as provided in paragraph (f)(1) of this section, grantees 
and subgrantees shall disburse program income, rebates, refunds, 
contract settlements, audit recoveries and interest earned on such funds 
before requesting additional cash payments.
    (g) Withholding payments. (1) Unless otherwise required by Federal 
statute, awarding agencies shall not withhold payments for proper 
charges incurred by grantees or subgrantees unless--
    (i) The grantee or subgrantee has failed to comply with grant award 
conditions or
    (ii) The grantee or subgrantee is indebted to the United States.
    (2) Cash withheld for failure to comply with grant award condition, 
but without suspension of the grant, shall be released to the grantee 
upon subsequent compliance. When a grant is suspended, payment 
adjustments will be made in accordance with Sec. 1470.43(c).
    (3) A Federal agency shall not make payment to grantees for amounts 
that are withheld by grantees or subgrantees from payment to contractors 
to assure satisfactory completion of work. Payments shall be made by the 
Federal agency when the grantees or subgrantees actually disburse the 
withheld funds to the contractors or to escrow accounts established to 
assure satisfactory completion of work.
    (h) Cash depositories. (1) Consistent with the national goal of 
expanding the opportunities for minority business enterprises, grantees 
and subgrantees are encouraged to use minority banks (a bank which is 
owned at least 50 percent by minority group members). A list of minority 
owned banks can be obtained from the Minority Business Development 
Agency, Department of Commerce, Washington, DC 20230.
    (2) A grantee or subgrantee shall maintain a separate bank account 
only when required by Federal-State agreement.
    (i) Interest earned on advances. Except for interest earned on 
advances of funds exempt under the Intergovernmental Cooperation Act (31 
U.S.C. 6501 et seq.) and the Indian Self-Determination Act (23 U.S.C. 
450), grantees and subgrantees shall promptly, but at least quarterly, 
remit interest earned on advances to the Federal agency. The grantee or 
subgrantee may keep interest amounts up to $100 per year for 
administrative expenses.



Sec. 1470.22  Allowable costs.

    (a) Limitation on use of funds. Grant funds may be used only for:
    (1) The allowable costs of the grantees, subgrantees and cost-type 
contractors, including allowable costs in the form of payments to fixed-
price contractors; and
    (2) Reasonable fees or profit to cost-type contractors but not any 
fee or profit (or other increment above allowable costs) to the grantee 
or subgrantee.
    (b) Applicable cost principles. For each kind of organization, there 
is a set of Federal principles for determining allowable costs. 
Allowable costs will be determined in accordance with the cost 
principles applicable to the organization incurring the costs. The 
following chart lists the kinds of organizations and the applicable cost 
principles.

                                                                        
------------------------------------------------------------------------
           For the costs of a--                Use the principles in--  
------------------------------------------------------------------------
State, local or Indian tribal government..  OMB Circular A-87.          

[[Page 97]]

                                                                        
Private nonprofit organization other than   OMB Circular A-122.         
 an (1) institution of higher education,                                
 (2) hospital, or (3) organization named                                
 in OMB Circular A-122 as not subject to                                
 that circular.                                                         
Educational institutions..................  OMB Circular A-21.          
For-profit organization other than a        48 CFR part 31. Contract    
 hospital and an organization named in OBM   Cost Principles and        
 Circular A-122 as not subject to that       Procedures, or uniform cost
 circular.                                   accounting standards that  
                                             comply with cost principles
                                             acceptable to the Federal  
                                             agency.                    
------------------------------------------------------------------------



Sec. 1470.23  Period of availability of funds.

    (a) General. Where a funding period is specified, a grantee may 
charge to the award only costs resulting from obligations of the funding 
period unless carryover of unobligated balances is permitted, in which 
case the carryover balances may be charged for costs resulting from 
obligations of the subsequent funding period.
    (b) Liquidation of obligations. A grantee must liquidate all 
obligations incurred under the award not later than 90 days after the 
end of the funding period (or as specified in a program regulation) to 
coincide with the submission of the annual Financial Status Report (SF-
269). The Federal agency may extend this deadline at the request of the 
grantee.



Sec. 1470.24  Matching or cost sharing.

    (a) Basic rule: Costs and contributions acceptable. With the 
qualifications and exceptions listed in paragraph (b) of this section, a 
matching or cost sharing requirement may be satisfied by either or both 
of the following:
    (1) Allowable costs incurred by the grantee, subgrantee or a cost-
type contractor under the assistance agreement. This includes allowable 
costs borne by non-Federal grants or by others cash donations from non-
Federal third parties.
    (2) The value of third party in-kind contributions applicable to the 
period to which the cost sharing or matching requirements applies.
    (b) Qualifications and exceptions--(1) Costs borne by other Federal 
grant agreements. Except as provided by Federal statute, a cost sharing 
or matching requirement may not be met by costs borne by another Federal 
grant. This prohibition does not apply to income earned by a grantee or 
subgrantee from a contract awarded under another Federal grant.
    (2) General revenue sharing. For the purpose of this section, 
general revenue sharing funds distributed under 31 U.S.C. 6702 are not 
considered Federal grant funds.
    (3) Cost or contributions counted towards other Federal costs-
sharing requirements. Neither costs nor the values of third party in-
kind contributions may count towards satisfying a cost sharing or 
matching requirement of a grant agreement if they have been or will be 
counted towards satisfying a cost sharing or matching requirement of 
another Federal grant agreement, a Federal procurement contract, or any 
other award of Federal funds.
    (4) Costs financed by program income. Costs financed by program 
income, as defined in Sec. 1470.25, shall not count towards satisfying a 
cost sharing or matching requirement unless they are expressly permitted 
in the terms of the assistance agreement. (This use of general program 
income is described in Sec. 1470.25(g).)
    (5) Services or property financed by income earned by contractors. 
Contractors under a grant may earn income from the activities carried 
out under the contract in addition to the amounts earned from the party 
awarding the contract. No costs of services or property supported by 
this income may count toward satisfying a cost sharing or matching 
requirement unless other provisions of the grant agreement expressly 
permit this kind of income to be used to meet the requirement.
    (6) Records. Costs and third party in-kind contributions counting 
towards satisfying a cost sharing or matching requirement must be 
verifiable from the records of grantees and subgrantee or cost-type 
contractors. These records must show how the value placed on third party 
in-kind contributions was derived. To the extent feasible, volunteer 
services will be supported by the same methods that the organization 
uses to support the allocability of regular personnel costs.

[[Page 98]]

    (7) Special standards for third party in-kind contributions. (i) 
Third party in-kind contributions count towards satisfying a cost 
sharing or matching requirement only where, if the party receiving the 
contributions were to pay for them, the payments would be allowable 
costs.
    (ii) Some third party in-kind contributions are goods and services 
that, if the grantee, subgrantee, or contractor receiving the 
contribution had to pay for them, the payments would have been an 
indirect costs. Costs sharing or matching credit for such contributions 
shall be given only if the grantee, subgrantee, or contractor has 
established, along with its regular indirect cost rate, a special rate 
for allocating to individual projects or programs the value of the 
contributions.
    (iii) A third party in-kind contribution to a fixed-price contract 
may count towards satisfying a cost sharing or matching requirement only 
if it results in:
    (A) An increase in the services or property provided under the 
contract (without additional cost to the grantee or subgrantee) or
    (B) A cost savings to the grantee or subgrantee.
    (iv) The values placed on third party in-kind contributions for cost 
sharing or matching purposes will conform to the rules in the succeeding 
sections of this part. If a third party in-kind contribution is a type 
not treated in those sections, the value placed upon it shall be fair 
and reasonable.
    (c) Valuation of donated services--(1) Volunteer services. Unpaid 
services provided to a grantee or subgrantee by individuals will be 
valued at rates consistent with those ordinarily paid for similar work 
in the grantee's or subgrantee's organization. If the grantee or 
subgrantee does not have employees performing similar work, the rates 
will be consistent with those ordinarily paid by other employers for 
similar work in the same labor market. In either case, a reasonable 
amount for fringe benefits may be included in the valuation.
    (2) Employees of other organizations. When an employer other than a 
grantee, subgrantee, or cost-type contractor furnishes free of charge 
the services of an employee in the employee's normal line of work, the 
services will be valued at the employee's regular rate of pay exclusive 
of the employee's fringe benefits and overhead costs. If the services 
are in a different line of work, paragraph (c)(1) of this section 
applies.
    (d) Valuation of third party donated supplies and loaned equipment 
or space. (1) If a third party donates supplies, the contribution will 
be valued at the market value of the supplies at the time of donation.
    (2) If a third party donates the use of equipment or space in a 
building but retains title, the contribution will be valued at the fair 
rental rate of the equipment or space.
    (e) Valuation of third party donated equipment, buildings, and land. 
If a third party donates equipment, buildings, or land, and title passes 
to a grantee or subgrantee, the treatment of the donated property will 
depend upon the purpose of the grant or subgrant, as follows:
    (1) Awards for capital expenditures. If the purpose of the grant or 
subgrant is to assist the grantee or subgrantee in the acquisition of 
property, the market value of that property at the time of donation may 
be counted as cost sharing or matching,
    (2) Other awards. If assisting in the acquisition of property is not 
the purpose of the grant or subgrant, paragraphs (e)(2) (i) and (ii) of 
this section apply:
    (i) If approval is obtained from the awarding agency, the market 
value at the time of donation of the donated equipment or buildings and 
the fair rental rate of the donated land may be counted as cost sharing 
or matching. In the case of a subgrant, the terms of the grant agreement 
may require that the approval be obtained from the Federal agency as 
well as the grantee. In all cases, the approval may be given only if a 
purchase of the equipment or rental of the land would be approved as an 
allowable direct cost. If any part of the donated property was acquired 
with Federal funds, only the non-Federal share of the property may be 
counted as cost-sharing or matching.
    (ii) If approval is not obtained under paragraph (e)(2)(i) of this 
section, no amount may be counted for donated

[[Page 99]]

land, and only depreciation or use allowances may be counted for donated 
equipment and buildings. The depreciation or use allowances for this 
property are not treated as third party in-kind contributions. Instead, 
they are treated as costs incurred by the grantee or subgrantee. They 
are computed and allocated (usually as indirect costs) in accordance 
with the cost principles specified in Sec. 1470.22, in the same way as 
depreciation or use allowances for purchased equipment and buildings. 
The amount of depreciation or use allowances for donated equipment and 
buildings is based on the property's market value at the time it was 
donated.
    (f) Valuation of grantee or subgrantee donated real property for 
construction/acquisition. If a grantee or subgrantee donates real 
property for a construction or facilities acquisition project, the 
current market value of that property may be counted as cost sharing or 
matching. If any part of the donated property was acquired with Federal 
funds, only the non-Federal share of the property may be counted as cost 
sharing or matching.
    (g) Appraisal of real property. In some cases under paragraphs (d), 
(e) and (f) of this section, it will be necessary to establish the 
market value of land or a building or the fair rental rate of land or of 
space in a building. In these cases, the Federal agency may require the 
market value or fair rental value be set by an independent appraiser, 
and that the value or rate be certified by the grantee. This requirement 
will also be imposed by the grantee on subgrantees.



Sec. 1470.25  Program income.

    (a) General. Grantees are encouraged to earn income to defray 
program costs. Program income includes income from fees for services 
performed, from the use or rental of real or personal property acquired 
with grant funds, from the sale of commodities or items fabricated under 
a grant agreement, and from payments of principal and interest on loans 
made with grant funds. Except as otherwise provided in regulations of 
the Federal agency, program income does not include interest on grant 
funds, rebates, credits, discounts, refunds, etc. and interest earned on 
any of them.
    (b) Definition of program income. Program income means gross income 
received by the grantee or subgrantee directly generated by a grant 
supported activity, or earned only as a result of the grant agreement 
during the grant period. ``During the grant period'' is the time between 
the effective date of the award and the ending date of the award 
reflected in the final financial report.
    (c) Cost of generating program income. If authorized by Federal 
regulations or the grant agreement, costs incident to the generation of 
program income may be deducted from gross income to determine program 
income.
    (d) Governmental revenues. Taxes, special assessments, levies, 
fines, and other such revenues raised by a grantee or subgrantee are not 
program income unless the revenues are specifically identified in the 
grant agreement or Federal agency regulations as program income.
    (e) Royalties. Income from royalties and license fees for 
copyrighted material, patents, and inventions developed by a grantee or 
subgrantee is program income only if the revenues are specifically 
identified in the grant agreement or Federal agency regulations as 
program income. (See Sec. 1470.34.)
    (f) Property. Proceeds from the sale of real property or equipment 
will be handled in accordance with the requirements of Secs. 1470.31 and 
1470.32.
    (g) Use of program income. Program income shall be deducted from 
outlays which may be both Federal and non-Federal as described below, 
unless the Federal agency regulations or the grant agreement specify 
another alternative (or a combination of the alternatives). In 
specifying alternatives, the Federal agency may distinguish between 
income earned by the grantee and income earned by subgrantees and 
between the sources, kinds, or amounts of income. When Federal agencies 
authorize the alternatives in paragraphs (g) (2) and (3) of this 
section, program income in excess of any limits stipulated shall also be 
deducted from outlays.
    (1) Deduction. Ordinarily program income shall be deducted from 
total allowable costs to determine the net allowable costs. Program 
income shall be

[[Page 100]]

used for current costs unless the Federal agency authorizes otherwise. 
Program income which the grantee did not anticipate at the time of the 
award shall be used to reduce the Federal agency and grantee 
contributions rather than to increase the funds committed to the 
project.
    (2) Addition. When authorized, program income may be added to the 
funds committed to the grant agreement by the Federal agency and the 
grantee. The program income shall be used for the purposes and under the 
conditions of the grant agreement.
    (3) Cost sharing or matching. When authorized, program income may be 
used to meet the cost sharing or matching requirement of the grant 
agreement. The amount of the Federal grant award remains the same.
    (h) Income after the award period. There are no Federal requirements 
governing the disposition of program income earned after the end of the 
award period (i.e., until the ending date of the final financial report, 
see paragraph (a) of this section), unless the terms of the agreement or 
the Federal agency regulations provide otherwise.



Sec. 1470.26  Non-Federal audit.

    (a) Basic rule. Grantees and subgrantees are responsible for 
obtaining audits in accordance with the Single Audit Act Amendments of 
1996 (31 U.S.C. 7501-7507) and revised OMB Circular A-133, ``Audits of 
States, Local Governments, and Non-Profit Organizations.'' The audits 
shall be made by an independent auditor in accordance with generally 
accepted government auditing standards covering financial audits.
    (b) Subgrantees. State or local governments, as those terms are 
defined for purposes of the Single Audit Act Amendments of 1996, that 
provide Federal awards to a subgrantee, which expends $300,000 or more 
(or other amount as specified by OMB) in Federal awards in a fiscal 
year, shall:
    (1) Determine whether State or local subgrantees have met the audit 
requirements of the Act and whether subgrantees covered by OMB Circular 
A-110, ``Uniform Administrative Requirements for Grants and Agreements 
with Institutions of Higher Education, Hospitals, and Other Non-Profit 
Organizations,'' have met the audit requirements of the Act. Commercial 
contractors (private for-profit and private and governmental 
organizations) providing goods and services to State and local 
governments are not required to have a single audit performed. State and 
local governments should use their own procedures to ensure that the 
contractor has complied with laws and regulations affecting the 
expenditure of Federal funds;
    (2) Determine whether the subgrantee spent Federal assistance funds 
provided in accordance with applicable laws and regulations. This may be 
accomplished by reviewing an audit of the subgrantee made in accordance 
with the Act, Circular A-110, or through other means (e.g., program 
reviews) if the subgrantee has not had such an audit;
    (3) Ensure that appropriate corrective action is taken within six 
months after receipt of the audit report in instance of noncompliance 
with Federal laws and regulations;
    (4) Consider whether subgrantee audits necessitate adjustment of the 
grantee's own records; and
    (5) Require each subgrantee to permit independent auditors to have 
access to the records and financial statements.
    (c) Auditor selection. In arranging for audit services, Sec. 1470.36 
shall be followed.
[53 FR 8087, Mar. 11, 1988, as amended at 62 FR 45939, 45942, Aug. 29, 
1997]

                    Changes, Property, and Subawards



Sec. 1470.30  Changes.

    (a) General. Grantees and subgrantees are permitted to rebudget 
within the approved direct cost budget to meet unanticipated 
requirements and may make limited program changes to the approved 
project. However, unless waived by the awarding agency, certain types of 
post-award changes in budgets and projects shall require the prior 
written approval of the awarding agency.
    (b) Relation to cost principles. The applicable cost principles (see 
Sec. 1470.22) contain requirements for prior approval of certain types 
of costs. Except where waived, those requirements

[[Page 101]]

apply to all grants and subgrants even if paragraphs (c) through (f) of 
this section do not.
    (c) Budget changes--(1) Nonconstruction projects. Except as stated 
in other regulations or an award document, grantees or subgrantees shall 
obtain the prior approval of the awarding agency whenever any of the 
following changes is anticipated under a nonconstruction award:
    (i) Any revision which would result in the need for additional 
funding.
    (ii) Unless waived by the awarding agency, cumulative transfers 
among direct cost categories, or, if applicable, among separately 
budgeted programs, projects, functions, or activities which exceed or 
are expected to exceed ten percent of the current total approved budget, 
whenever the awarding agency's share exceeds $100,000.
    (iii) Transfer of funds allotted for training allowances (i.e., from 
direct payments to trainees to other expense categories).
    (2) Construction projects. Grantees and subgrantees shall obtain 
prior written approval for any budget revision which would result in the 
need for additional funds.
    (3) Combined construction and nonconstruction projects. When a grant 
or subgrant provides funding for both construction and nonconstruction 
activities, the grantee or subgrantee must obtain prior written approval 
from the awarding agency before making any fund or budget transfer from 
nonconstruction to construction or vice versa.
    (d) Programmatic changes. Grantees or subgrantees must obtain the 
prior approval of the awarding agency whenever any of the following 
actions is anticipated:
    (1) Any revision of the scope or objectives of the project 
(regardless of whether there is an associated budget revision requiring 
prior approval).
    (2) Need to extend the period of availability of funds.
    (3) Changes in key persons in cases where specified in an 
application or a grant award. In research projects, a change in the 
project director or principal investigator shall always require approval 
unless waived by the awarding agency.
    (4) Under nonconstruction projects, contracting out, subgranting (if 
authorized by law) or otherwise obtaining the services of a third party 
to perform activities which are central to the purposes of the award. 
This approval requirement is in addition to the approval requirements of 
Sec. 1470.36 but does not apply to the procurement of equipment, 
supplies, and general support services.
    (e) Additional prior approval requirements. The awarding agency may 
not require prior approval for any budget revision which is not 
described in paragraph (c) of this section.
    (f) Requesting prior approval. (1) A request for prior approval of 
any budget revision will be in the same budget formal the grantee used 
in its application and shall be accompanied by a narrative justification 
for the proposed revision.
    (2) A request for a prior approval under the applicable Federal cost 
principles (see Sec. 1470.22) may be made by letter.
    (3) A request by a subgrantee for prior approval will be addressed 
in writing to the grantee. The grantee will promptly review such request 
and shall approve or disapprove the request in writing. A grantee will 
not approve any budget or project revision which is inconsistent with 
the purpose or terms and conditions of the Federal grant to the grantee. 
If the revision, requested by the subgrantee would result in a change to 
the grantee's approved project which requires Federal prior approval, 
the grantee will obtain the Federal agency's approval before approving 
the subgrantee's request.



Sec. 1470.31  Real property.

    (a) Title. Subject to the obligations and conditions set forth in 
this section, title to real property acquired under a grant or subgrant 
will vest upon acquisition in the grantee or subgrantee respectively.
    (b) Use. Except as otherwise provided by Federal statutes, real 
property will be used for the originally authorized purposes as long as 
needed for that purposes, and the grantee or subgrantee shall not 
dispose of or encumber its title or other interests.

[[Page 102]]

    (c) Disposition. When real property is no longer needed for the 
originally authorized purpose, the grantee or subgrantee will request 
disposition instructions from the awarding agency. The instructions will 
provide for one of the following alternatives:
    (1) Retention of title. Retain title after compensating the awarding 
agency. The amount paid to the awarding agency will be computed by 
applying the awarding agency's percentage of participation in the cost 
of the original purchase to the fair market value of the property. 
However, in those situations where a grantee or subgrantee is disposing 
of real property acquired with grant funds and acquiring replacement 
real property under the same program, the net proceeds from the 
disposition may be used as an offset to the cost of the replacement 
property.
    (2) Sale of property. Sell the property and compensate the awarding 
agency. The amount due to the awarding agency will be calculated by 
applying the awarding agency's percentage of participation in the cost 
of the original purchase to the proceeds of the sale after deduction of 
any actual and reasonable selling and fixing-up expenses. If the grant 
is still active, the net proceeds from sale may be offset against the 
original cost of the property. When a grantee or subgrantee is directed 
to sell property, sales procedures shall be followed that provide for 
competition to the extent practicable and result in the highest possible 
return.
    (3) Transfer of title. Transfer title to the awarding agency or to a 
third-party designated/approved by the awarding agency. The grantee or 
subgrantee shall be paid an amount calculated by applying the grantee or 
subgrantee's percentage of participation in the purchase of the real 
property to the current fair market value of the property.



Sec. 1470.32  Equipment.

    (a) Title. Subject to the obligations and conditions set forth in 
this section, title to equipment acquired under a grant or subgrant will 
vest upon acquisition in the grantee or subgrantee respectively.
    (b) States. A State will use, manage, and dispose of equipment 
acquired under a grant by the State in accordance with State laws and 
procedures. Other grantees and subgrantees will follow paragraphs (c) 
through (e) of this section.
    (c) Use. (1) Equipment shall be used by the grantee or subgrantee in 
the program or project for which it was acquired as long as needed, 
whether or not the project or program continues to be supported by 
Federal funds. When no longer needed for the original program or 
project, the equipment may be used in other activities currently or 
previously supported by a Federal agency.
    (2) The grantee or subgrantee shall also make equipment available 
for use on other projects or programs currently or previously supported 
by the Federal Government, providing such use will not interfere with 
the work on the projects or program for which it was originally 
acquired. First preference for other use shall be given to other 
programs or projects supported by the awarding agency. User fees should 
be considered if appropriate.
    (3) Notwithstanding the encouragement in Sec. 1470.25(a) to earn 
program income, the grantee or subgrantee must not use equipment 
acquired with grant funds to provide services for a fee to compete 
unfairly with private companies that provide equivalent services, unless 
specifically permitted or contemplated by Federal statute.
    (4) When acquiring replacement equipment, the grantee or subgrantee 
may use the equipment to be replaced as a trade-in or sell the property 
and use the proceeds to offset the cost of the replacement property, 
subject to the approval of the awarding agency.
    (d) Management requirements. Procedures for managing equipment 
(including replacement equipment), whether acquired in whole or in part 
with grant funds, until disposition takes place will, as a minimum, meet 
the following requirements:
    (1) Property records must be maintained that include a description 
of the property, a serial number or other identification number, the 
source of property, who holds title, the acquisition date, and cost of 
the property, percentage of Federal participation in the cost of the 
property, the location, use

[[Page 103]]

and condition of the property, and any ultimate disposition data 
including the date of disposal and sale price of the property.
    (2) A physical inventory of the property must be taken and the 
results reconciled with the property records at least once every two 
years.
    (3) A control system must be developed to ensure adequate safeguards 
to prevent loss, damage, or theft of the property. Any loss, damage, or 
theft shall be investigated.
    (4) Adequate maintenance procedures must be developed to keep the 
property in good condition.
    (5) If the grantee or subgrantee is authorized or required to sell 
the property, proper sales procedures must be established to ensure the 
highest possible return.
    (e) Disposition. When original or replacement equipment acquired 
under a grant or subgrant is no longer needed for the original project 
or program or for other activities currently or previously supported by 
a Federal agency, disposition of the equipment will be made as follows:
    (1) Items of equipment with a current per-unit fair market value of 
less than $5,000 may be retained, sold or otherwise disposed of with no 
further obligation to the awarding agency.
    (2) Items of equipment with a current per unit fair market value in 
excess of $5,000 may be retained or sold and the awarding agency shall 
have a right to an amount calculated by multiplying the current market 
value or proceeds from sale by the awarding agency's share of the 
equipment.
    (3) In cases where a grantee or subgrantee fails to take appropriate 
disposition actions, the awarding agency may direct the grantee or 
subgrantee to take excess and disposition actions.
    (f) Federal equipment. In the event a grantee or subgrantee is 
provided federally-owned equipment:
    (1) Title will remain vested in the Federal Government.
    (2) Grantees or subgrantees will manage the equipment in accordance 
with Federal agency rules and procedures, and submit an annual inventory 
listing.
    (3) When the equipment is no longer needed, the grantee or 
subgrantee will request disposition instructions from the Federal 
agency.
    (g) Right to transfer title. The Federal awarding agency may reserve 
the right to transfer title to the Federal Government or a third part 
named by the awarding agency when such a third party is otherwise 
eligible under existing statutes. Such transfers shall be subject to the 
following standards:
    (1) The property shall be identified in the grant or otherwise made 
known to the grantee in writing.
    (2) The Federal awarding agency shall issue disposition instruction 
within 120 calendar days after the end of the Federal support of the 
project for which it was acquired. If the Federal awarding agency fails 
to issue disposition instructions within the 120 calendar-day period the 
grantee shall follow Sec. 1470.32(e).
    (3) When title to equipment is transferred, the grantee shall be 
paid an amount calculated by applying the percentage of participation in 
the purchase to the current fair market value of the property.



Sec. 1470.33  Supplies.

    (a) Title. Title to supplies acquired under a grant or subgrant will 
vest, upon acquisition, in the grantee or subgrantee respectively.
    (b) Disposition. If there is a residual inventory of unused supplies 
exceeding $5,000 in total aggregate fair market value upon termination 
or completion of the award, and if the supplies are not needed for any 
other federally sponsored programs or projects, the grantee or 
subgrantee shall compensate the awarding agency for its share.



Sec. 1470.34  Copyrights.

    The Federal awarding agency reserves a royalty-free, nonexclusive, 
and irrevocable license to reproduce, publish or otherwise use, and to 
authorize others to use, for Federal Government purposes:
    (a) The copyright in any work developed under a grant, subgrant, or 
contract under a grant or subgrant; and
    (b) Any rights of copyright to which a grantee, subgrantee or a 
contractor purchases ownership with grant support.

[[Page 104]]



Sec. 1470.35  Subawards to debarred and suspended parties.

    Grantees and subgrantees must not make any award or permit any award 
(subgrant or contract) at any tier to any party which is debarred or 
suspended or is otherwise excluded from or ineligible for participation 
in Federal assistance programs under Executive Order 12549, ``Debarment 
and Suspension.''



Sec. 1470.36  Procurement.

    (a) States. When procuring property and services under a grant, a 
State will follow the same policies and procedures it uses for 
procurements from its non-Federal funds. The State will ensure that 
every purchase order or other contract includes any clauses required by 
Federal statutes and executive orders and their implementing 
regulations. Other grantees and subgrantees will follow paragraphs (b) 
through (i) in this section.
    (b) Procurement standards. (1) Grantees and subgrantees will use 
their own procurement procedures which reflect applicable State and 
local laws and regulations, provided that the procurements conform to 
applicable Federal law and the standards identified in this section.
    (2) Grantees and subgrantees will maintain a contract administration 
system which ensures that contractors perform in accordance with the 
terms, conditions, and specifications of their contracts or purchase 
orders.
    (3) Grantees and subgrantees will maintain a written code of 
standards of conduct governing the performance of their employees 
engaged in the award and administration of contracts. No employee, 
officer or agent of the grantee or subgrantee shall participate in 
selection, or in the award or administration of a contract supported by 
Federal funds if a conflict of interest, real or apparent, would be 
involved. Such a conflict would arise when:
    (i) The employee, officer or agent,
    (ii) Any member of his immediate family,
    (iii) His or her partner, or
    (iv) An organization which employs, or is about to employ, any of 
the above, has a financial or other interest in the firm selected for 
award. The grantee's or subgrantee's officers, employees or agents will 
neither solicit nor accept gratuities, favors or anything of monetary 
value from contractors, potential contractors, or parties to 
subagreements. Grantee and subgrantees may set minimum rules where the 
financial interest is not substantial or the gift is an unsolicited item 
of nominal intrinsic value. To the extent permitted by State or local 
law or regulations, such standards or conduct will provide for 
penalties, sanctions, or other disciplinary actions for violations of 
such standards by the grantee's and subgrantee's officers, employees, or 
agents, or by contractors or their agents. The awarding agency may in 
regulation provide additional prohibitions relative to real, apparent, 
or potential conflicts of interest.
    (4) Grantee and subgrantee procedures will provide for a review of 
proposed procurements to avoid purchase of unnecessary or duplicative 
items. Consideration should be given to consolidating or breaking out 
procurements to obtain a more economical purchase. Where appropriate, an 
analysis will be made of lease versus purchase alternatives, and any 
other appropriate analysis to determine the most economical approach.
    (5) To foster greater economy and efficiency, grantees and 
subgrantees are encouraged to enter into State and local 
intergovernmental agreements for procurement or use of common goods and 
services.
    (6) Grantees and subgrantees are encouraged to use Federal excess 
and surplus property in lieu of purchasing new equipment and property 
whenever such use is feasible and reduces project costs.
    (7) Grantees and subgrantees are encouraged to use value engineering 
clauses in contracts for construction projects of sufficient size to 
offer reasonable opportunities for cost reductions. Value engineering is 
a systematic and creative anaylsis of each contract item or task to 
ensure that its essential function is provided at the overall lower 
cost.
    (8) Grantees and subgrantees will make awards only to responsible 
contractors possessing the ability to perform successfully under the 
terms and

[[Page 105]]

conditions of a proposed procurement. Consideration will be given to 
such matters as contractor integrity, compliance with public policy, 
record of past performance, and financial and technical resources.
    (9) Grantees and subgrantees will maintain records sufficient to 
detail the significant history of a procurement. These records will 
include, but are not necessarily limited to the following: rationale for 
the method of procurement, selection of contract type, contractor 
selection or rejection, and the basis for the contract price.
    (10) Grantees and subgrantees will use time and material type 
contracts only--
    (i) After a determination that no other contract is suitable, and
    (ii) If the contract includes a ceiling price that the contractor 
exceeds at its own risk.
    (11) Grantees and subgrantees alone will be responsible, in 
accordance with good administrative practice and sound business 
judgment, for the settlement of all contractual and administrative 
issues arising out of procurements. These issues include, but are not 
limited to source evaluation, protests, disputes, and claims. These 
standards do not relieve the grantee or subgrantee of any contractual 
responsibilities under its contracts. Federal agencies will not 
substitute their judgment for that of the grantee or subgrantee unless 
the matter is primarily a Federal concern. Violations of law will be 
referred to the local, State, or Federal authority having proper 
jurisdiction.
    (12) Grantees and subgrantees will have protest procedures to handle 
and resolve disputes relating to their procurements and shall in all 
instances disclose information regarding the protest to the awarding 
agency. A protestor must exhaust all administrative remedies with the 
grantee and subgrantee before pursuing a protest with the Federal 
agency. Reviews of protests by the Federal agency will be limited to:
    (i) Violations of Federal law or regulations and the standards of 
this section (violations of State or local law will be under the 
jurisdiction of State or local authorities) and
    (ii) Violations of the grantee's or subgrantee's protest procedures 
for failure to review a complaint or protest. Protests received by the 
Federal agency other than those specified above will be referred to the 
grantee or subgrantee.
    (c) Competition. (1) All procurement transactions will be conducted 
in a manner providing full and open competition consistent with the 
standards of Sec. 1470.36. Some of the situations considered to be 
restrictive of competition include but are not limited to:
    (i) Placing unreasonable requirements on firms in order for them to 
qualify to do business,
    (ii) Requiring unnecessary experience and excessive bonding,
    (iii) Noncompetitive pricing practices between firms or between 
affiliated companies,
    (iv) Noncompetitive awards to consultants that are on retainer 
contracts,
    (v) Organizational conflicts of interest,
    (vi) Specifying only a ``brand name'' product instead of allowing 
``an equal'' product to be offered and describing the performance of 
other relevant requirements of the procurement, and
    (vii) Any arbitrary action in the procurement process.
    (2) Grantees and subgrantees will conduct procurements in a manner 
that prohibits the use of statutorily or administratively imposed in-
State or local geographical preferences in the evaluation of bids or 
proposals, except in those cases where applicable Federal statutes 
expressly mandate or encourage geographic preference. Nothing in this 
section preempts State licensing laws. When contracting for 
architectural and engineering (A/E) services, geographic location may be 
a selection criteria provided its application leaves an appropriate 
number of qualified firms, given the nature and size of the project, to 
compete for the contract.
    (3) Grantees will have written selection procedures for procurement 
transactions. These procedures will ensure that all solicitations:
    (i) Incorporate a clear and accurate description of the technical 
requirements for the material, product, or service to be procured. Such 
description shall not, in competitive procurements, contain features 
which unduly

[[Page 106]]

restrict competition. The description may include a statement of the 
qualitative nature of the material, product or service to be procured, 
and when necessary, shall set forth those minimum essential 
characteristics and standards to which it must conform if it is to 
satisfy its intended use. Detailed product specifications should be 
avoided if at all possible. When it is impractical or uneconomical to 
make a clear and accurate description of the technical requirements, a 
``brand name or equal'' description may be used as a means to define the 
performance or other salient requirements of a procurement. The specific 
features of the named brand which must be met by offerors shall be 
clearly stated; and
    (ii) Identify all requirements which the offerors must fulfill and 
all other factors to be used in evaluating bids or proposals.
    (4) Grantees and subgrantees will ensure that all prequalified lists 
of persons, firms, or products which are used in acquiring goods and 
services are current and include enough qualified sources to ensure 
maximum open and free competition. Also, grantees and subgrantees will 
not preclude potential bidders from qualifying during the solicitation 
period.
    (d) Methods of procurement to be followed--(1) Procurement by small 
purchase procedures. Small purchase procedures are those relatively 
simple and informal procurement methods for securing services, supplies, 
or other property that do not cost more than the simplified acquisition 
threshold fixed at 41 U.S.C. 403(11) (currently set at $100,000). If 
small purchase procedures are used, price or rate quotations shall be 
obtained from an adequate number of qualified sources.
    (2) Procurement by sealed bids (formal advertising). Bids are 
publicly solicited and a firm-fixed-price contract (lump sum or unit 
price) is awarded to the responsible bidder whose bid, conforming with 
all the material terms and conditions of the invitation for bids, is the 
lowest in price. The sealed bid method is the preferred method for 
procuring construction, if the conditions in Sec. 1470.36(d)(2)(i) 
apply.
    (i) In order for sealed bidding to be feasible, the following 
conditions should be present:
    (A) A complete, adequate, and realistic specification or purchase 
description is available;
    (B) Two or more responsible bidders are willing and able to compete 
effectively and for the business; and
    (C) The procurement lends itself to a firm fixed price contract and 
the selection of the successful bidder can be made principally on the 
basis of price.
    (ii) If sealed bids are used, the following requirements apply:
    (A) The invitation for bids will be publicly advertised and bids 
shall be solicited from an adequate number of known suppliers, providing 
them sufficient time prior to the date set for opening the bids;
    (B) The invitation for bids, which will include any specifications 
and pertinent attachments, shall define the items or services in order 
for the bidder to properly respond;
    (C) All bids will be publicly opened at the time and place 
prescribed in the invitation for bids;
    (D) A firm fixed-price contract award will be made in writing to the 
lowest responsive and responsible bidder. Where specified in bidding 
documents, factors such as discounts, transportation cost, and life 
cycle costs shall be considered in determining which bid is lowest. 
Payment discounts will only be used to determine the low bid when prior 
experience indicates that such discounts are usually taken advantage of; 
and
    (E) Any or all bids may be rejected if there is a sound documented 
reason.
    (3) Procurement by competitive proposals. The technique of 
competitive proposals is normally conducted with more than one source 
submitting an offer, and either a fixed-price or cost-reimbursement type 
contract is awarded. It is generally used when conditions are not 
appropriate for the use of sealed bids. If this method is used, the 
following requirements apply:
    (i) Requests for proposals will be publicized and identify all 
evaluation factors and their relative importance. Any response to 
publicized requests for proposals shall be honored to the maximum extent 
practical;

[[Page 107]]

    (ii) Proposals will be solicited from an adequate number of 
qualified sources;
    (iii) Grantees and subgrantees will have a method for conducting 
technical evaluations of the proposals received and for selecting 
awardees;
    (iv) Awards will be made to the responsible firm whose proposal is 
most advantageous to the program, with price and other factors 
considered; and
    (v) Grantees and subgrantees may use competitive proposal procedures 
for qualifications-based procurement of architectural/engineering (A/E) 
professional services whereby competitors' qualifications are evaluated 
and the most qualified competitor is selected, subject to negotiation of 
fair and reasonable compensation. The method, where price is not used as 
a selection factor, can only be used in procurement of A/E professional 
services. It cannot be used to purchase other types of services though 
A/E firms are a potential source to perform the proposed effort.
    (4) Procurement by noncompetitive proposals is procurement through 
solicitation of a proposal from only one source, or after solicitation 
of a number of sources, competition is determined inadequate.
    (i) Procurement by noncompetitive proposals may be used only when 
the award of a contract is infeasible under small purchase procedures, 
sealed bids or competitive proposals and one of the following 
circumstances applies:
    (A) The item is available only from a single source;
    (B) The public exigency or emergency for the requirement will not 
permit a delay resulting from competitive solicitation;
    (C) The awarding agency authorizes noncompetitive proposals; or
    (D) After solicitation of a number of sources, competition is 
determined inadequate.
    (ii) Cost analysis, i.e., verifying the proposed cost data, the 
projections of the data, and the evaluation of the specific elements of 
costs and profits, is required.
    (iii) Grantees and subgrantees may be required to submit the 
proposed procurement to the awarding agency for pre-award review in 
accordance with paragraph (g) of this section.
    (e) Contracting with small and minority firms, women's business 
enterprise and labor surplus area firms. (1) The grantee and subgrantee 
will take all necessary affirmative steps to assure that minority firms, 
women's business enterprises, and labor surplus area firms are used when 
possible.
    (2) Affirmative steps shall include:
    (i) Placing qualified small and minority businesses and women's 
business enterprises on solicitation lists;
    (ii) Assuring that small and minority businesses, and women's 
business enterprises are solicited whenever they are potential sources;
    (iii) Dividing total requirements, when economically feasible, into 
smaller tasks or quantities to permit maximum participation by small and 
minority business, and women's business enterprises;
    (iv) Establishing delivery schedules, where the requirement permits, 
which encourage participation by small and minority business, and 
women's business enterprises;
    (v) Using the services and assistance of the Small Business 
Administration, and the Minority Business Development Agency of the 
Department of Commerce; and
    (vi) Requiring the prime contractor, if subcontracts are to be let, 
to take the affirmative steps listed in paragraphs (e)(2) (i) through 
(v) of this section.
    (f) Contract cost and price. (1) Grantees and subgrantees must 
perform a cost or price analysis in connection with every procurement 
action including contract modifications. The method and degree of 
analysis is dependent on the facts surrounding the particular 
procurement situation, but as a starting point, grantees must make 
independent estimates before receiving bids or proposals. A cost 
analysis must be performed when the offeror is required to submit the 
elements of his estimated cost, e.g., under professional, consulting, 
and architectural engineering services contracts. A cost analysis will 
be necessary when adequate price competition is lacking, and for sole 
source procurements, including contract modifications or change orders,

[[Page 108]]

unless price resonableness can be established on the basis of a catalog 
or market price of a commercial product sold in substantial quantities 
to the general public or based on prices set by law or regulation. A 
price analysis will be used in all other instances to determine the 
reasonableness of the proposed contract price.
    (2) Grantees and subgrantees will negotiate profit as a separate 
element of the price for each contract in which there is no price 
competition and in all cases where cost analysis is performed. To 
establish a fair and reasonable profit, consideration will be given to 
the complexity of the work to be performed, the risk borne by the 
contractor, the contractor's investment, the amount of subcontracting, 
the quality of its record of past performance, and industry profit rates 
in the surrounding geographical area for similar work.
    (3) Costs or prices based on estimated costs for contracts under 
grants will be allowable only to the extent that costs incurred or cost 
estimates included in negotiated prices are consistent with Federal cost 
principles (see Sec. 1470.22). Grantees may reference their own cost 
principles that comply with the applicable Federal cost principles.
    (4) The cost plus a percentage of cost and percentage of 
construction cost methods of contracting shall not be used.
    (g) Awarding agency review. (1) Grantees and subgrantees must make 
available, upon request of the awarding agency, technical specifications 
on proposed procurements where the awarding agency believes such review 
is needed to ensure that the item and/or service specified is the one 
being proposed for purchase. This review generally will take place prior 
to the time the specification is incorporated into a solicitation 
document. However, if the grantee or subgrantee desires to have the 
review accomplished after a solicitation has been developed, the 
awarding agency may still review the specifications, with such review 
usually limited to the technical aspects of the proposed purchase.
    (2) Grantees and subgrantees must on request make available for 
awarding agency pre-award review procurement documents, such as requests 
for proposals or invitations for bids, independent cost estimates, etc. 
when:
    (i) A grantee's or subgrantee's procurement procedures or operation 
fails to comply with the procurement standards in this section; or
    (ii) The procurement is expected to exceed the simplified 
acquisition threshold and is to be awarded without competition or only 
one bid or offer is received in response to a solicitation; or
    (iii) The procurement, which is expected to exceed the simplified 
acquisition threshold, specifies a ``brand name'' product; or
    (iv) The proposed award is more than the simplified acquisition 
threshold and is to be awarded to other than the apparent low bidder 
under a sealed bid procurement; or
    (v) A proposed contract modification changes the scope of a contract 
or increases the contract amount by more than the simplified acquisition 
threshold.
    (3) A grantee or subgrantee will be exempt from the pre-award review 
in paragraph (g)(2) of this section if the awarding agency determines 
that its procurement systems comply with the standards of this section.
    (i) A grantee or subgrantee may request that its procurement system 
be reviewed by the awarding agency to determine whether its system meets 
these standards in order for its system to be certified. Generally, 
these reviews shall occur where there is a continuous high-dollar 
funding, and third-party contracts are awarded on a regular basis.
    (ii) A grantee or subgrantee may self-certify its procurement 
system. Such self-certification shall not limit the awarding agency's 
right to survey the system. Under a self-certification procedure, 
awarding agencies may wish to rely on written assurances from the 
grantee or subgrantee that it is complying with these standards. A 
grantee or subgrantee will cite specific procedures, regulations, 
standards, etc., as being in compliance with these requirements and have 
its system available for review.
    (h) Bonding requirements. For construction or facility improvement 
contracts or subcontracts exceeding the

[[Page 109]]

simplified acquisition threshold, the awarding agency may accept the 
bonding policy and requirements of the grantee or subgrantee provided 
the awarding agency has made a determination that the awarding agency's 
interest is adequately protected. If such a determination has not been 
made, the minimum requirements shall be as follows:
    (1) A bid guarantee from each bidder equivalent to five percent of 
the bid price. The ``bid guarantee'' shall consist of a firm commitment 
such as a bid bond, certified check, or other negotiable instrument 
accompanying a bid as assurance that the bidder will, upon acceptance of 
his bid, execute such contractual documents as may be required within 
the time specified.
    (2) A performance bond on the part of the contractor for 100 percent 
of the contract price. A ``performance bond'' is one executed in 
connection with a contract to secure fulfillment of all the contractor's 
obligations under such contract.
    (3) A payment bond on the part of the contractor for 100 percent of 
the contract price. A ``payment bond'' is one executed in connection 
with a contract to assure payment as required by law of all persons 
supplying labor and material in the execution of the work provided for 
in the contract.
    (i) Contract provisions. A grantee's and subgrantee's contracts must 
contain provisions in paragraph (i) of this section. Federal agencies 
are permitted to require changes, remedies, changed conditions, access 
and records retention, suspension of work, and other clauses approved by 
the Office of Federal Procurement Policy.
    (1) Administrative, contractual, or legal remedies in instances 
where contractors violate or breach contract terms, and provide for such 
sanctions and penalties as may be appropriate. (Contracts more than the 
simplified acquisition threshold)
    (2) Termination for cause and for convenience by the grantee or 
subgrantee including the manner by which it will be effected and the 
basis for settlement. (All contracts in excess of $10,000)
    (3) Compliance with Executive Order 11246 of September 24, 1965, 
entitled ``Equal Employment Opportunity,'' as amended by Executive Order 
11375 of October 13, 1967, and as supplemented in Department of Labor 
regulations (41 CFR chapter 60). (All construction contracts awarded in 
excess of $10,000 by grantees and their contractors or subgrantees)
    (4) Compliance with the Copeland ``Anti-Kickback'' Act (18 U.S.C. 
874) as supplemented in Department of Labor regulations (29 CFR part 3). 
(All contracts and subgrants for construction or repair)
    (5) Compliance with the Davis-Bacon Act (40 U.S.C. 276a to 276a-7) 
as supplemented by Department of Labor regulations (29 CFR part 5). 
(Construction contracts in excess of $2000 awarded by grantees and 
subgrantees when required by Federal grant program legislation)
    (6) Compliance with Sections 103 and 107 of the Contract Work Hours 
and Safety Standards Act (40 U.S.C. 327-330) as supplemented by 
Department of Labor regulations (29 CFR part 5). (Construction contracts 
awarded by grantees and subgrantees in excess of $2000, and in excess of 
$2500 for other contracts which involve the employment of mechanics or 
laborers)
    (7) Notice of awarding agency requirements and regulations 
pertaining to reporting.
    (8) Notice of awarding agency requirements and regulations 
pertaining to patent rights with respect to any discovery or invention 
which arises or is developed in the course of or under such contract.
    (9) Awarding agency requirements and regulations pertaining to 
copyrights and rights in data.
    (10) Access by the grantee, the subgrantee, the Federal grantor 
agency, the Comptroller General of the United States, or any of their 
duly authorized representatives to any books, documents, papers, and 
records of the contractor which are directly pertinent to that specific 
contract for the purpose of making audit, examination, excerpts, and 
transcriptions.
    (11) Retention of all required records for three years after 
grantees or subgrantees make final payments and all other pending 
matters are closed.

[[Page 110]]

    (12) Compliance with all applicable standards, orders, or 
requirements issued under section 306 of the Clean Air Act (42 U.S.C. 
1857(h)), section 508 of the Clean Water Act (33 U.S.C. 1368), Executive 
Order 11738, and Environmental Protection Agency regulations (40 CFR 
part 15). (Contracts, subcontracts, and subgrants of amounts in excess 
of $100,000)
    (13) Mandatory standards and policies relating to energy efficiency 
which are contained in the state energy conservation plan issued in 
compliance with the Energy Policy and Conservation Act (Pub. L. 94-163, 
89 Stat. 871).
[53 FR 8087, Mar. 11, 1988, as amended at 60 FR 19639, 19643, Apr. 19, 
1995]



Sec. 1470.37  Subgrants.

    (a) States. States shall follow State law and procedures when 
awarding and administering subgrants (whether on a cost reimbursement or 
fixed amount basis) of financial assistance to local and Indian tribal 
governments. States shall:
    (1) Ensure that every subgrant includes any clauses required by 
Federal statute and executive orders and their implementing regulations;
    (2) Ensure that subgrantees are aware of requirements imposed upon 
them by Federal statute and regulation;
    (3) Ensure that a provision for compliance with Sec. 1470.42 is 
placed in every cost reimbursement subgrant; and
    (4) Conform any advances of grant funds to subgrantees substantially 
to the same standards of timing and amount that apply to cash advances 
by Federal agencies.
    (b) All other grantees. All other grantees shall follow the 
provisions of this part which are applicable to awarding agencies when 
awarding and administering subgrants (whether on a cost reimbursement or 
fixed amount basis) of financial assistance to local and Indian tribal 
governments. Grantees shall:
    (1) Ensure that every subgrant includes a provision for compliance 
with this part;
    (2) Ensure that every subgrant includes any clauses required by 
Federal statute and executive orders and their implementing regulations; 
and
    (3) Ensure that subgrantees are aware of requirements imposed upon 
them by Federal statutes and regulations.
    (c) Exceptions. By their own terms, certain provisions of this part 
do not apply to the award and administration of subgrants:
    (1) Section 1470.10;
    (2) Section 1470.11;
    (3) The letter-of-credit procedures specified in Treasury 
Regulations at 31 CFR part 205, cited in Sec. 1470.21; and
    (4) Section 1470.50.

               Reports, Records Retention, and Enforcement



Sec. 1470.40  Monitoring and reporting program performance.

    (a) Monitoring by grantees. Grantees are responsible for managing 
the day-to-day operations of grant and subgrant supported activities. 
Grantees must monitor grant and subgrant supported activities to assure 
compliance with applicable Federal requirements and that performance 
goals are being achieved. Grantee monitoring must cover each program, 
function or activity.
    (b) Nonconstruction performance reports. The Federal agency may, if 
it decides that performance information available from subsequent 
applications contains sufficient information to meet its programmatic 
needs, require the grantee to submit a performance report only upon 
expiration or termination of grant support. Unless waived by the Federal 
agency this report will be due on the same date as the final Financial 
Status Report.
    (1) Grantees shall submit annual performance reports unless the 
awarding agency requires quarterly or semi-annual reports. However, 
performance reports will not be required more frequently than quarterly. 
Annual reports shall be due 90 days after the grant year, quarterly or 
semi-annual reports shall be due 30 days after the reporting period. The 
final performance report will be due 90 days after the expiration or 
termination of grant support. If a justified request is submitted by a 
grantee, the Federal agency may extend the due date for any performance 
report. Additionally, requirements for

[[Page 111]]

unnecessary performance reports may be waived by the Federal agency.
    (2) Performance reports will contain, for each grant, brief 
information on the following:
    (i) A comparison of actual accomplishments to the objectives 
established for the period. Where the output of the project can be 
quantified, a computation of the cost per unit of output may be required 
if that information will be useful.
    (ii) The reasons for slippage if established objectives were not 
met.
    (iii) Additional pertinent information including, when appropriate, 
analysis and explanation of cost overruns or high unit costs.
    (3) Grantees will not be required to submit more than the original 
and two copies of performance reports.
    (4) Grantees will adhere to the standards in this section in 
prescribing performance reporting requirements for subgrantees.
    (c) Construction performance reports. For the most part, on-site 
technical inspections and certified percentage-of-completion data are 
relied on heavily by Federal agencies to monitor progress under 
construction grants and subgrants. The Federal agency will require 
additional formal performance reports only when considered necessary, 
and never more frequently than quarterly.
    (d) Significant developments. Events may occur between the scheduled 
performance reporting dates which have significant impact upon the grant 
or subgrant supported activity. In such cases, the grantee must inform 
the Federal agency as soon as the following types of conditions become 
known:
    (1) Problems, delays, or adverse conditions which will materially 
impair the ability to meet the objective of the award. This disclosure 
must include a statement of the action taken, or contemplated, and any 
assistance needed to resolve the situation.
    (2) Favorable developments which enable meeting time schedules and 
objectives sooner or at less cost than anticipated or producing more 
beneficial results than originally planned.
    (e) Federal agencies may make site visits as warranted by program 
needs.
    (f) Waivers, extensions. (1) Federal agencies may waive any 
performance report required by this part if not needed.
    (2) The grantee may waive any performance report from a subgrantee 
when not needed. The grantee may extend the due date for any performance 
report from a subgrantee if the grantee will still be able to meet its 
performance reporting obligations to the Federal agency.



Sec. 1470.41  Financial reporting.

    (a) General. (1) Except as provided in paragraphs (a) (2) and (5) of 
this section, grantees will use only the forms specified in paragraphs 
(a) through (e) of this section, and such supplementary or other forms 
as may from time to time be authorized by OMB, for:
    (i) Submitting financial reports to Federal agencies, or
    (ii) Requesting advances or reimbursements when letters of credit 
are not used.
    (2) Grantees need not apply the forms prescribed in this section in 
dealing with their subgrantees. However, grantees shall not impose more 
burdensome requirements on subgrantees.
    (3) Grantees shall follow all applicable standard and supplemental 
Federal agency instructions approved by OMB to the extend required under 
the Paperwork Reduction Act of 1980 for use in connection with forms 
specified in paragraphs (b) through (e) of this section. Federal 
agencies may issue substantive supplementary instructions only with the 
approval of OMB. Federal agencies may shade out or instruct the grantee 
to disregard any line item that the Federal agency finds unnecessary for 
its decisionmaking purposes.
    (4) Grantees will not be required to submit more than the original 
and two copies of forms required under this part.
    (5) Federal agencies may provide computer outputs to grantees to 
expedite or contribute to the accuracy of reporting. Federal agencies 
may accept the required information from grantees in machine usable 
format or computer printouts instead of prescribed forms.

[[Page 112]]

    (6) Federal agencies may waive any report required by this section 
if not needed.
    (7) Federal agencies may extend the due date of any financial report 
upon receiving a justified request from a grantee.
    (b) Financial Status Report--(1) Form. Grantees will use Standard 
Form 269 or 269A, Financial Status Report, to report the status of funds 
for all nonconstruction grants and for construction grants when required 
in accordance with Sec. 1470.41(e)(2)(iii).
    (2) Accounting basis. Each grantee will report program outlays and 
program income on a cash or accrual basis as prescribed by the awarding 
agency. If the Federal agency requires accrual information and the 
grantee's accounting records are not normally kept on the accural basis, 
the grantee shall not be required to convert its accounting system but 
shall develop such accrual information through and analysis of the 
documentation on hand.
    (3) Frequency. The Federal agency may prescribe the frequency of the 
report for each project or program. However, the report will not be 
required more frequently than quarterly. If the Federal agency does not 
specify the frequency of the report, it will be submitted annually. A 
final report will be required upon expiration or termination of grant 
support.
    (4) Due date. When reports are required on a quarterly or semiannual 
basis, they will be due 30 days after the reporting period. When 
required on an annual basis, they will be due 90 days after the grant 
year. Final reports will be due 90 days after the expiration or 
termination of grant support.
    (c) Federal Cash Transactions Report--(1) Form. (i) For grants paid 
by letter or credit, Treasury check advances or electronic transfer of 
funds, the grantee will submit the Standard Form 272, Federal Cash 
Transactions Report, and when necessary, its continuation sheet, 
Standard Form 272a, unless the terms of the award exempt the grantee 
from this requirement.
    (ii) These reports will be used by the Federal agency to monitor 
cash advanced to grantees and to obtain disbursement or outlay 
information for each grant from grantees. The format of the report may 
be adapted as appropriate when reporting is to be accomplished with the 
assistance of automatic data processing equipment provided that the 
information to be submitted is not changed in substance.
    (2) Forecasts of Federal cash requirements. Forecasts of Federal 
cash requirements may be required in the ``Remarks'' section of the 
report.
    (3) Cash in hands of subgrantees. When considered necessary and 
feasible by the Federal agency, grantees may be required to report the 
amount of cash advances in excess of three days' needs in the hands of 
their subgrantees or contractors and to provide short narrative 
explanations of actions taken by the grantee to reduce the excess 
balances.
    (4) Frequency and due date. Grantees must submit the report no later 
than 15 working days following the end of each quarter. However, where 
an advance either by letter of credit or electronic transfer of funds is 
authorized at an annualized rate of one million dollars or more, the 
Federal agency may require the report to be submitted within 15 working 
days following the end of each month.
    (d) Request for advance or reimbursement--(1) Advance payments. 
Requests for Treasury check advance payments will be submitted on 
Standard Form 270, Request for Advance or Reimbursement. (This form will 
not be used for drawdowns under a letter of credit, electronic funds 
transfer or when Treasury check advance payments are made to the grantee 
automatically on a predetermined basis.)
    (2) Reimbursements. Requests for reimbursement under nonconstruction 
grants will also be submitted on Standard Form 270. (For reimbursement 
requests under construction grants, see paragraph (e)(1) of this 
section.)
    (3) The frequency for submitting payment requests is treated in 
Sec. 1470.41(b)(3).
    (e) Outlay report and request for reimbursement for construction 
programs--(1) Grants that support construction activities paid by 
reimbursement method. (i) Requests for reimbursement under construction 
grants will be submitted on Standard Form 271, Outlay Report and

[[Page 113]]

Request for Reimbursement for Construction Programs. Federal agencies 
may, however, prescribe the Request for Advance or Reimbursement form, 
specified in Sec. 1470.41(d), instead of this form.
    (ii) The frequency for submitting reimbursement requests is treated 
in Sec. 1470.41(b)(3).
    (2) Grants that support construction activities paid by letter of 
credit, electronic funds transfer or Treasury check advance. (i) When a 
construction grant is paid by letter of credit, electronic funds 
transfer or Treasury check advances, the grantee will report its outlays 
to the Federal agency using Standard Form 271, Outlay Report and Request 
for Reimbursement for Construction Programs. The Federal agency will 
provide any necessary special instruction. However, frequency and due 
date shall be governed by Sec. 1470.41(b) (3) and (4).
    (ii) When a construction grant is paid by Treasury check advances 
based on periodic requests from the grantee, the advances will be 
requested on the form specified in Sec. 1470.41(d).
    (iii) The Federal agency may substitute the Financial Status Report 
specified in Sec. 1470.41(b) for the Outlay Report and Request for 
Reimbursement for Construction Programs.
    (3) Accounting basis. The accounting basis for the Outlay Report and 
Request for Reimbursement for Construction Programs shall be governed by 
Sec. 1470.41(b)(2).



Sec. 1470.42  Retention and access requirements for records.

    (a) Applicability. (1) This section applies to all financial and 
programmatic records, supporting documents, statistical records, and 
other records of grantees or subgrantees which are:
    (i) Required to be maintained by the terms of this part, program 
regulations or the grant agreement, or
    (ii) Otherwise reasonably considered as pertinent to program 
regulations or the grant agreement.
    (2) This section does not apply to records maintained by contractors 
or subcontractors. For a requirement to place a provision concerning 
records in certain kinds of contracts, see Sec. 1470.36(i)(10).
    (b) Length of retention period. (1) Except as otherwise provided, 
records must be retained for three years from the starting date 
specified in paragraph (c) of this section.
    (2) If any litigation, claim, negotiation, audit or other action 
involving the records has been started before the expiration of the 3-
year period, the records must be retained until completion of the action 
and resolution of all issues which arise from it, or until the end of 
the regular 3-year period, whichever is later.
    (3) To avoid duplicate recordkeeping, awarding agencies may make 
special arrangements with grantees and subgrantees to retain any records 
which are continuously needed for joint use. The awarding agency will 
request transfer of records to its custody when it determines that the 
records possess long-term retention value. When the records are 
transferred to or maintained by the Federal agency, the 3-year retention 
requirement is not applicable to the grantee or subgrantee.
    (c) Starting date of retention period--(1) General. When grant 
support is continued or renewed at annual or other intervals, the 
retention period for the records of each funding period starts on the 
day the grantee or subgrantee submits to the awarding agency its single 
or last expenditure report for that period. However, if grant support is 
continued or renewed quarterly, the retention period for each year's 
records starts on the day the grantee submits its expenditure report for 
the last quarter of the Federal fiscal year. In all other cases, the 
retention period starts on the day the grantee submits its final 
expenditure report. If an expenditure report has been waived, the 
retention period starts on the day the report would have been due.
    (2) Real property and equipment records. The retention period for 
real property and equipment records starts from the date of the 
disposition or replacement or transfer at the direction of the awarding 
agency.
    (3) Records for income transactions after grant or subgrant support. 
In some cases grantees must report income after the period of grant 
support. Where there is such a requirement, the

[[Page 114]]

retention period for the records pertaining to the earning of the income 
starts from the end of the grantee's fiscal year in which the income is 
earned.
    (4) Indirect cost rate proposals, cost allocations plans, etc. This 
paragraph applies to the following types of documents, and their 
supporting records: indirect cost rate computations or proposals, cost 
allocation plans, and any similar accounting computations of the rate at 
which a particular group of costs is chargeable (such as computer usage 
chargeback rates or composite fringe benefit rates).
    (i) If submitted for negotiation. If the proposal, plan, or other 
computation is required to be submitted to the Federal Government (or to 
the grantee) to form the basis for negotiation of the rate, then the 3-
year retention period for its supporting records starts from the date of 
such submission.
    (ii) If not submitted for negotiation. If the proposal, plan, or 
other computation is not required to be submitted to the Federal 
Government (or to the grantee) for negotiation purposes, then the 3-year 
retention period for the proposal plan, or computation and its 
supporting records starts from end of the fiscal year (or other 
accounting period) covered by the proposal, plan, or other computation.
    (d) Substitution of microfilm. Copies made by microfilming, 
photocopying, or similar methods may be substituted for the original 
records.
    (e) Access to records--(1) Records of grantees and subgrantees. The 
awarding agency and the Comptroller General of the United States, or any 
of their authorized representatives, shall have the right of access to 
any pertinent books, documents, papers, or other records of grantees and 
subgrantees which are pertinent to the grant, in order to make audits, 
examinations, excerpts, and transcripts.
    (2) Expiration of right of access. The rights of access in this 
section must not be limited to the required retention period but shall 
last as long as the records are retained.
    (f) Restrictions on public access. The Federal Freedom of 
Information Act (5 U.S.C. 552) does not apply to records Unless required 
by Federal, State, or local law, grantees and subgrantees are not 
required to permit public access to their records.



Sec. 1470.43  Enforcement.

    (a) Remedies for noncompliance. If a grantee or subgrantee 
materially fails to comply with any term of an award, whether stated in 
a Federal statute or regulation, an assurance, in a State plan or 
application, a notice of award, or elsewhere, the awarding agency may 
take one or more of the following actions, as appropriate in the 
circumstances:
    (1) Temporarily withhold cash payments pending correction of the 
deficiency by the grantee or subgrantee or more severe enforcement 
action by the awarding agency,
    (2) Disallow (that is, deny both use of funds and matching credit 
for) all or part of the cost of the activity or action not in 
compliance,
    (3) Wholly or partly suspend or terminate the current award for the 
grantee's or subgrantee's program,
    (4) Withhold further awards for the program, or
    (5) Take other remedies that may be legally available.
    (b) Hearings, appeals. In taking an enforcement action, the awarding 
agency will provide the grantee or subgrantee an opportunity for such 
hearing, appeal, or other administrative proceeding to which the grantee 
or subgrantee is entitled under any statute or regulation applicable to 
the action involved.
    (c) Effects of suspension and termination. Costs of grantee or 
subgrantee resulting from obligations incurred by the grantee or 
subgrantee during a suspension or after termination of an award are not 
allowable unless the awarding agency expressly authorizes them in the 
notice of suspension or termination or subsequently. Other grantee or 
subgrantee costs during suspension or after termination which are 
necessary and not reasonably avoidable are allowable if:
    (1) The costs result from obligations which were properly incurred 
by the grantee or subgrantee before the effective date of suspension or 
termination, are not in anticipation of it, and, in the case of a 
termination, are noncancellable, and,

[[Page 115]]

    (2) The costs would be allowable if the award were not suspended or 
expired normally at the end of the funding period in which the 
termination takes effect.
    (d) Relationship to debarment and suspension. The enforcement 
remedies identified in this section, including suspension and 
termination, do not preclude grantee or subgrantee from being subject to 
``Debarment and Suspension'' under E.O. 12549 (see Sec. 1470.35).



Sec. 1470.44  Termination for convenience.

    Except as provided in Sec. 1470.43 awards may be terminated in whole 
or in part only as follows:
    (a) By the awarding agency with the consent of the grantee or 
subgrantee in which case the two parties shall agree upon the 
termination conditions, including the effective date and in the case of 
partial termination, the portion to be terminated, or
    (b) By the grantee or subgrantee upon written notification to the 
awarding agency, setting forth the reasons for such termination, the 
effective date, and in the case of partial termination, the portion to 
be terminated. However, if, in the case of a partial termination, the 
awarding agency determines that the remaining portion of the award will 
not accomplish the purposes for which the award was made, the awarding 
agency may terminate the award in its entirety under either Sec. 1470.43 
or paragraph (a) of this section.



                 Subpart D--After-The-Grant Requirements



Sec. 1470.50  Closeout.

    (a) General. The Federal agency will close out the award when it 
determines that all applicable administrative actions and all required 
work of the grant has been completed.
    (b) Reports. Within 90 days after the expiration or termination of 
the grant, the grantee must submit all financial, performance, and other 
reports required as a condition of the grant. Upon request by the 
grantee, Federal agencies may extend this timeframe. These may include 
but are not limited to:
    (1) Final performance or progress report.
    (2) Financial Status Report (SF-269) or Outlay Report and Request 
for Reimbursement for Construction Programs (SF-271) (as applicable).
    (3) Final request for payment (SF-270) (if applicable).
    (4) Invention disclosure (if applicable).
    (5) Federally-owned property report:

In accordance with Sec. 1470.32(f), a grantee must submit an inventory 
of all federally owned property (as distinct from property acquired with 
grant funds) for which it is accountable and request disposition 
instructions from the Federal agency of property no longer needed.
    (c) Cost adjustment. The Federal agency will, within 90 days after 
receipt of reports in paragraph (b) of this section, make upward or 
downward adjustments to the allowable costs.
    (d) Cash adjustments. (1) The Federal agency will make prompt 
payment to the grantee for allowable reimbursable costs.
    (2) The grantee must immediately refund to the Federal agency any 
balance of unobligated (unencumbered) cash advanced that is not 
authorized to be retained for use on other grants.



Sec. 1470.51  Later disallowances and adjustments.

    The closeout of a grant does not affect:
    (a) The Federal agency's right to disallow costs and recover funds 
on the basis of a later audit or other review;
    (b) The grantee's obligation to return any funds due as a result of 
later refunds, corrections, or other transactions;
    (c) Records retention as required in Sec. 1470.42;
    (d) Property management requirements in Secs. 1470.31 and 1470.32; 
and
    (e) Audit requirements in Sec. 1470.26.



Sec. 1470.52  Collection of amounts due.

    (a) Any funds paid to a grantee in excess of the amount to which the 
grantee is finally determined to be entitled under the terms of the 
award constitute a debt to the Federal Government. If not paid within a 
reasonable period after demand, the Federal agency may reduce the debt 
by:

[[Page 116]]

    (1) Making an adminstrative offset against other requests for 
reimbursements,
    (2) Withholding advance payments otherwise due to the grantee, or
    (3) Other action permitted by law.
    (b) Except where otherwise provided by statutes or regulations, the 
Federal agency will charge interest on an overdue debt in accordance 
with the Federal Claims Collection Standards (4 CFR chapter II). The 
date from which interest is computed is not extended by litigation or 
the filing of any form of appeal.



                   Subpart E--Entitlements [Reserved]



PART 1471--GOVERNMENTWIDE DEBARMENT AND SUSPENSION (NONPROCUREMENT) AND GOVERNMENTWIDE REQUIREMENTS FOR DRUG-FREE WORKPLACE (GRANTS)--Table of Contents




                           Subpart A--General

Sec.
1471.100  Purpose.
1471.105  Definitions.
1471.110  Coverage.
1471.115  Policy.

                       Subpart B--Effect of Action

1471.200  Debarment or suspension.
1471.205  Ineligible persons.
1471.210  Voluntary exclusion.
1471.215  Exception provision.
1471.220  Continuation of covered transactions.
1471.225  Failure to adhere to restrictions.

                          Subpart C--Debarment

1471.300  General.
1471.305  Causes for debarment.
1471.310  Procedures.
1471.311  Investigation and referral.
1471.312  Notice of proposed debarment.
1471.313  Opportunity to contest proposed debarment.
1471.314  Debarring official's decision.
1471.315  Settlement and voluntary exclusion.
1471.320  Period of debarment.
1471.325  Scope of debarment.

                          Subpart D--Suspension

1471.400  General.
1471.405  Causes for suspension.
1471.410  Procedures.
1471.411  Notice of suspension.
1471.412  Opportunity to contest suspension.
1471.413  Suspending official's decision.
1471.415  Period of suspension.
1471.420  Scope of suspension.

       Subpart E--Responsibilities of GSA, Agency and Participants

1471.500  GSA responsibilities.
1471.505  FMCS responsibilities.
1471.510  Participants' responsibilities.

          Subpart F--Drug-Free Workplace Requirements (Grants)

1471.600  Purpose.
1471.605  Definitions.
1471.610  Coverage.
1471.615  Grounds for suspension of payments, suspension or termination 
          of grants, or suspension or debarment.
1471.620  Effect of violation.
1471.625  Exception provision.
1471.630  Certification requirements and procedures.
1471.635  Reporting of and employee sanctions for convictions of 
          criminal drug offenses.


Appendix A to Part 1471--Certification Regarding Debarment, Suspension, 
          and Other Responsibility Matters--Primary Covered Transactions
Appendix B to Part 1471--Certification Regarding Debarment, Suspension, 
          Ineligibility and Voluntary Exclusion--Lower Tier Covered 
          Transactions
Appendix C to Part 1471--Certification Regarding Drug-Free Workplace 
          Requirements

    Authority: E.O. 12549; secs. 5151-5160 of the Drug-Free Workplace 
Act of 1988 (Pub. L. 100-690, title V, subtitle D; 41 U.S.C. 701 et 
seq.) Pub. L. 95-524, Oct. 27, 1978, 29 U.S.C. 175a.

    Source: 53 FR 19189 and 19204, May 26, 1988, unless otherwise noted.

    Cross References: See also Office of Management and Budget notices 
published at 55 FR 21679, May 25, 1990, and 60 FR 33036, June 26, 1995.

    Editorial Note: For nomenclature changes affecting this part, see 53 
FR 19189, May 26, 1988.



                           Subpart A--General



Sec. 1471.100  Purpose.

    (a) Executive Order (E.O.) 12549 provides that, to the extent 
permitted by

[[Page 117]]

law, Executive departments and agencies shall participate in a 
governmentwide system for nonprocurement debarment and suspension. A 
person who is debarred or suspended shall be excluded from Federal 
financial and nonfinancial assistance and benefits under Federal 
programs and activities. Debarment or suspension of a participant in a 
program by one agency shall have governmentwide effect.
    (b) These regulations implement section 3 of E.O. 12549 and the 
guidelines promulgated by the Office of Management and Budget under 
section 6 of the E.O. by:
    (1) Prescribing the programs and activities that are covered by the 
governmentwide system;
    (2) Prescribing the governmentwide criteria and governmentwide 
minimum due process procedures that each agency shall use;
    (3) Providing for the listing of debarred and suspended 
participants, participants declared ineligible (see definition of 
``ineligible'' in Sec. 1471.105), and participants who have voluntarily 
excluded themselves from participation in covered transactions;
    (4) Setting forth the consequences of a debarment, suspension, 
determination of ineligibility, or voluntary exclusion; and
    (5) Offering such other guidance as necessary for the effective 
implementation and administration of the governmentwide system.
    (c) These regulations also implement Executive Order 12689 (3 CFR, 
1989 Comp., p. 235) and 31 U.S.C. 6101 note (Public Law 103-355, sec. 
2455, 108 Stat. 3327) by--
    (1) Providing for the inclusion in the List of Parties Excluded from 
Federal Procurement and Nonprocurement Programs all persons proposed for 
debarment, debarred or suspended under the Federal Acquisition 
Regulation, 48 CFR part 9, subpart 9.4; persons against which 
governmentwide exclusions have been entered under this part; and persons 
determined to be ineligible; and
    (2) Setting forth the consequences of a debarment, suspension, 
determination of ineligibility, or voluntary exclusion.
    (d) Although these regulations cover the listing of ineligible 
participants and the effect of such listing, they do not prescribe 
policies and procedures governing declarations of ineligibility.
[60 FR 33040, 33052, June 26, 1995]



Sec. 1471.105  Definitions.

    The following definitions apply to this part:
    Adequate evidence. Information sufficient to support the reasonable 
belief that a particular act or omission has occurred.
    Affiliate. Persons are affiliates of each other if, directly or 
indirectly, either one controls or has the power to control the other, 
or, a third person controls or has the power to control both. Indicia of 
control include, but are not limited to: interlocking management or 
ownership, identity of interests among family members, shared facilities 
and equipment, common use of employees, or a business entity organized 
following the suspension or debarment of a person which has the same or 
similar management, ownership, or principal employees as the suspended, 
debarred, ineligible, or voluntarily excluded person.
    Agency. Any executive department, military department or defense 
agency or other agency of the executive branch, excluding the 
independent regulatory agencies.
    Civil judgment. The disposition of a civil action by any court of 
competent jurisdiction, whether entered by verdict, decision, 
settlement, stipulation, or otherwise creating a civil liability for the 
wrongful acts complained of; or a final determination of liability under 
the Program Fraud Civil Remedies Act of 1988 (31 U.S.C. 3801-12).
    Conviction. A judgment or conviction of a criminal offense by any 
court of competent jurisdiction, whether entered upon a verdict or a 
plea, including a plea of nolo contendere.
    Debarment. An action taken by a debarring official in accordance 
with these regulations to exclude a person from participating in covered 
transactions. A person so excluded is ``debarred.''
    Debarring official. An official authorized to impose debarment. The 
debarring official is either:
    (1) The agency head, or

[[Page 118]]

    (2) An official designated by the agency head.
    FMCS. Federal Mediation Conciliation Service.
    Indictment. Indictment for a criminal offense. An information or 
other filing by competent authority charging a criminal offense shall be 
given the same effect as an indictment.
    Ineligible. Excluded from participation in Federal nonprocurement 
programs pursuant to a determination of ineligibility under statutory, 
executive order, or regulatory authority, other than Executive Order 
12549 and its agency implementing regulations; for exemple, excluded 
pursuant to the Davis-Bacon Act and its implementing regulations, the 
equal employment opportunity acts and executive orders, or the 
environmental protection acts and executive orders. A person is 
ineligible where the determination of ineligibility affects such 
person's eligibility to participate in more than one covered 
transaction.
    Legal proceedings. Any criminal proceeding or any civil judicial 
proceeding to which the Federal Government or a State or local 
government or quasi-governmental authority is a party. The term includes 
appeals from such proceedings.
    List of Parties Excluded from Federal Procurement and Nonprocurement 
Programs. A list compiled, maintained and distributed by the General 
Services Administration (GSA) containing the names and other information 
about persons who have been debarred, suspended, or voluntarily excluded 
under Executive Orders 12549 and 12689 and these regulations or 48 CFR 
part 9, subpart 9.4, persons who have been proposed for debarment under 
48 CFR part 9, subpart 9.4, and those persons who have been determined 
to be ineligible.
    Notice. A written communication served in person or sent by 
certified mail, return receipt requested, or its equivalent, to the last 
known address of a party, its identified counsel, its agent for service 
of process, or any partner, officer, director, owner, or joint venturer 
of the party. Notice, if undeliverable, shall be considered to have been 
received by the addressee five days after being properly sent to the 
last address known by the agency.
    Participant. Any person who submits a proposal for, enters into, or 
reasonably may be expected to enter into a covered transaction. This 
term also includes any person who acts on behalf of or is authorized to 
commit a participant in a covered transaction as an agent or 
representative of another participant.
    Person. Any individual, corporation, partnership, association, unit 
of government or legal entity, however organized, except: foreign 
governments or foreign governmental entities, public international 
organizations, foreign government owned (in whole or in part) or 
controlled entities, and entities consisting wholly or partially of 
foreign governments or foreign governmental entities.
    Preponderance of the evidence. Proof by information that, compared 
with that opposing it, leads to the conclusion that the fact at issue is 
more probably true than not.
    Principal. Officer, director, owner, partner, key employee, or other 
person within a participant with primary management or supervisory 
responsibilities; or a person who has a critical influence on or 
substantive control over a covered transaction, whether or not employed 
by the participant. Persons who have a critical influence on or 
substantive control over a covered transaction are:
    (1) Principal investigators.
    (2) [Reserved]
    Proposal. A solicited or unsolicited bid, application, request, 
invitation to consider or similar communication by or on behalf of a 
person seeking to participate or to receive a benefit, directly or 
indirectly, in or under a covered transaction.
    Respondent. A person against whom a debarment or suspension action 
has been initiated.
    State. Any of the States of the United States, the District of 
Columbia, the Commonwealth of Puerto Rico, any territory or possession 
of the United States, or any agency of a State, exclusive of 
institutions of higher education, hospitals, and units of local 
government. A State instrumentality will be considered part of the State 
government if it has a written determination from a State government 
that such

[[Page 119]]

State considers that instrumentality to be an agency of the State 
government.
    Suspending official. An official authorized to impose suspension. 
The suspending official is either:
    (1) The agency head, or
    (2) An official designated by the agency head.
    Suspension. An action taken by a suspending official in accordance 
with these regulations that immediately excludes a person from 
participating in covered transactions for a temporary period, pending 
completion of an investigation and such legal, debarment, or Program 
Fraud Civil Remedies Act proceedings as may ensue. A person so excluded 
is ``suspended.''
    Voluntary exclusion or voluntarily excluded. A status of 
nonparticipation or limited participation in covered transactions 
assumed by a person pursuant to the terms of a settlement.
[53 FR 19189, 19204, May 26, 1988, as amended at 53 FR 19189, May 26, 
1988; 60 FR 33041, 33052, June 26, 1995]



Sec. 1471.110  Coverage.

    (a) These regulations apply to all persons who have participated, 
are currently participating or may reasonably be expected to participate 
in transactions under Federal nonprocurement programs. For purposes of 
these regulations such transactions will be referred to as ``covered 
transactions.''
    (1) Covered transaction. For purposes of these regulations, a 
covered transaction is a primary covered transaction or a lower tier 
covered transaction. Covered transactions at any tier need not involve 
the transfer of Federal funds.
    (i) Primary covered transaction. Except as noted in paragraph (a)(2) 
of this section, a primary covered transaction is any nonprocurement 
transaction between an agency and a person, regardless of type, 
including: grants, cooperative agreements, scholarships, fellowships, 
contracts of assistance, loans, loan guarantees, subsidies, insurance, 
payments for specified use, donation agreements and any other 
nonprocurement transactions between a Federal agency and a person. 
Primary covered transactions also include those transactions specially 
designated by the U.S. Department of Housing and Urban Development in 
such agency's regulations governing debarment and suspension.
    (ii) Lower tier covered transaction. A lower tier covered 
transaction is:
    (A) Any transaction between a participant and a person other than a 
procurement contract for goods or services, regardless of type, under a 
primary covered transaction.
    (B) Any procurement contract for goods or services between a 
participant and a person, regardless of type, expected to equal or 
exceed the Federal procurement small purchase threshold fixed at 10 
U.S.C. 2304(g) and 41 U.S.C. 253(g) (currently $25,000) under a primary 
covered transaction.
    (C) Any procurement contract for goods or services between a 
participant and a person under a covered transaction, regardless of 
amount, under which that person will have a critical influence on or 
substantive control over that covered transaction. Such persons are:
    (1) Principal investigators.
    (2) Providers of federally-required audit services.
    (2) Exceptions. The following transactions are not covered:
    (i) Statutory entitlements or mandatory awards (but not subtier 
awards thereunder which are not themselves mandatory), including 
deposited funds insured by the Federal Government;
    (ii) Direct awards to foreign governments or public international 
organizations, or transactions with foreign governments or foreign 
governmental entities, public international organizations, foreign 
government owned (in whole or in part) or controlled entities, entities 
consisting wholly or partially of foreign governments or foreign 
governmental entities;
    (iii) Benefits to an individual as a personal entitlement without 
regard to the individual's present responsibility (but benefits received 
in an individual's business capacity are not excepted);
    (iv) Federal employment;
    (v) Transactions pursuant to national or agency-recognized 
emergencies or disasters;
    (vi) Incidental benefits derived from ordinary governmental 
operations; and

[[Page 120]]

    (vii) Other transactions where the application of these regulations 
would be prohibited by law.
    (b) Relationship to other sections. This section describes the types 
of transactions to which a debarment or suspension under the regulations 
will apply. Subpart B, ``Effect of Action,'' Sec. 1471.200, ``Debarment 
or suspension,'' sets forth the consequences of a debarment or 
suspension. Those consequences would obtain only with respect to 
participants and principals in the covered transactions and activities 
described in Sec. 1471.110(a). Sections 1471.325, ``Scope of 
debarment,'' and 1471.420, ``Scope of suspension,'' govern the extent to 
which a specific participant or organizational elements of a participant 
would be automatically included within a debarment or suspension action, 
and the conditions under which affiliates or persons associated with a 
participant may also be brought within the scope of the action.
    (c) Relationship to Federal procurement activities. In accordance 
with E.O. 12689 and section 2455 of Public Law 103-355, any debarment, 
suspension, proposed debarment or other governmentwide exclusion 
initiated under the Federal Acquisition Regulation (FAR) on or after 
August 25, 1995, shall be recognized by and effective for Executive 
Branch agencies and participants as an exclusion under this regulation. 
Similarly, any debarment, suspension or other governmentwide exclusion 
initiated under this regulation on or after August 25, 1995, shall be 
recognized by and effective for those agencies as a debarment or 
suspension under the FAR.
[53 FR 19189, 19204, May 26, 1988, as amended at 60 FR 33041, 33052, 
June 26, 1995]



Sec. 1471.115  Policy.

    (a) In order to protect the public interest, it is the policy of the 
Federal Government to conduct business only with responsible persons. 
Debarment and suspension are discretionary actions that, taken in 
accordance with Executive Order 12549 and these regulations, are 
appropriate means to implement this policy.
    (b) Debarment and suspension are serious actions which shall be used 
only in the public interest and for the Federal Government's protection 
and not for purposes of punishment. Agencies may impose debarment or 
suspension for the causes and in accordance with the procedures set 
forth in these regulations.
    (c) When more than one agency has an interest in the proposed 
debarment or suspension of a person, consideration shall be given to 
designating one agency as the lead agency for making the decision. 
Agencies are encouraged to establish methods and procedures for 
coordinating their debarment or suspension actions.



                       Subpart B--Effect of Action



Sec. 1471.200  Debarment or suspension.

    (a) Primary covered transactions. Except to the extent prohibited by 
law, persons who are debarred or suspended shall be excluded from 
primary covered transactions as either participants or principals 
throughout the Executive Branch of the Federal Government for the period 
of their debarment, suspension, or the period they are proposed for 
debarment under 48 CFR part 9, subpart 9.4. Accordingly, no agency shall 
enter into primary covered transactions with such excluded persons 
during such period, except as permitted pursuant to Sec. 1471.215.
    (b) Lower tier covered transactions. Except to the extent prohibited 
by law, persons who have been proposed for debarment under 48 CFR part 
9, subpart 9.4, debarred or suspended shall be excluded from 
participating as either participants or principals in all lower tier 
covered transactions (see Sec. 1471.110(a)(1)(ii)) for the period of 
their exclusion.
    (c) Exceptions. Debarment or suspension does not affect a person's 
eligibility for--
    (1) Statutory entitlements or mandatory awards (but not subtier 
awards thereunder which are not themselves mandatory), including 
deposited funds insured by the Federal Government;
    (2) Direct awards to foreign governments or public international 
organizations, or transactions with foreign governments or foreign 
governmental entities, public international organizations, foreign 
government owned (in whole or in part) or controlled entities,

[[Page 121]]

and entities consisting wholly or partially of foreign governments or 
foreign governmental entities;
    (3) Benefits to an individual as a personal entitlement without 
regard to the individual's present responsibility (but benefits received 
in an individual's business capacity are not excepted);
    (4) Federal employment;
    (5) Transactions pursuant to national or agency-recognized 
emergencies or disasters;
    (6) Incidental benefits derived from ordinary governmental 
operations; and
    (7) Other transactions where the application of these regulations 
would be prohibited by law.
[60 FR 33041, 33052, June 26, 1995]



Sec. 1471.205  Ineligible persons.

    Persons who are ineligible, as defined in Sec. 1471.105(i), are 
excluded in accordance with the applicable statutory, executive order, 
or regulatory authority.



Sec. 1471.210  Voluntary exclusion.

    Persons who accept voluntary exclusions under Sec. 1471.315 are 
excluded in accordance with the terms of their settlements. FMCS shall, 
and participants may, contact the original action agency to ascertain 
the extent of the exclusion.



Sec. 1471.215  Exception provision.

    FMCS may grant an exception permitting a debarred, suspended, or 
voluntarily excluded person, or a person proposed for debarment under 48 
CFR part 9, subpart 9.4, to participate in a particular covered 
transaction upon a written determination by the agency head or an 
authorized designee stating the reason(s) for deviating from the 
Presidential policy established by Executive Order 12549 and 
Sec. 1471.200. However, in accordance with the President's stated 
intention in the Executive Order, exceptions shall be granted only 
infrequently. Exceptions shall be reported in accordance with 
Sec. 1471.505(a).
[60 FR 33041, 33052, June 26, 1995]



Sec. 1471.220  Continuation of covered transactions.

    (a) Notwithstanding the debarment, suspension, proposed debarment 
under 48 CFR part 9, subpart 9.4, determination of ineligibility, or 
voluntary exclusion of any person by an agency, agencies and 
participants may continue covered transactions in existence at the time 
the person was debarred, suspended, proposed for debarment under 48 CFR 
part 9, subpart 9.4, declared ineligible, or voluntarily excluded. A 
decision as to the type of termination action, if any, to be taken 
should be made only after thorough review to ensure the propriety of the 
proposed action.
    (b) Agencies and participants shall not renew or extend covered 
transactions (other than no-cost time extensions) with any person who is 
debarred, suspended, proposed for debarment under 48 CFR part 9, subpart 
9.4, ineligible or voluntary excluded, except as provided in 
Sec. 1471.215.
[60 FR 33041, 33052, June 26, 1995]



Sec. 1471.225  Failure to adhere to restrictions.

    (a) Except as permitted under Sec. 1471.215 or Sec. 1471.220, a 
participant shall not knowingly do business under a covered transaction 
with a person who is--
    (1) Debarred or suspended;
    (2) Proposed for debarment under 48 CFR part 9, subpart 9.4; or
    (3) Ineligible for or voluntarily excluded from the covered 
transaction.
    (b) Violation of the restriction under paragraph (a) of this section 
may result in disallowance of costs, annulment or termination of award, 
issuance of a stop work order, debarment or suspension, or other 
remedies as appropriate.
    (c) A participant may rely upon the certification of a prospective 
participant in a lower tier covered transaction that it and its 
principals are not debarred, suspended, proposed for debarment under 48 
CFR part 9, subpart 9.4, ineligible, or voluntarily excluded from the 
covered transaction (See appendix B of these regulations), unless it 
knows that the certification is erroneous. An agency has the burden of 
proof that a participant did knowingly do business with a person that 
filed an erroneous certification.
[60 FR 33041, 33052, June 26, 1995]

[[Page 122]]



                          Subpart C--Debarment



Sec. 1471.300  General.

    The debarring official may debar a person for any of the causes in 
Sec. 1471.305, using procedures established in Secs. 1471.310 through 
1471.314. The existence of a cause for debarment, however, does not 
necessarily require that the person be debarred; the seriousness of the 
person's acts or omissions and any mitigating factors shall be 
considered in making any debarment decision.



Sec. 1471.305  Causes for debarment.

    Debarment may be imposed in accordance with the provisions of 
Secs. 1471.300 through 1471.314 for:
    (a) Conviction of or civil judgment for:
    (1) Commission of fraud or a criminal offense in connection with 
obtaining, attempting to obtain, or performing a public or private 
agreement or transaction;
    (2) Violation of Federal or State antitrust statutes, including 
those proscribing price fixing between competitors, allocation of 
customers between competitors, and bid rigging;
    (3) Commission of embezzlement, theft, forgery, bribery, 
falsification or destruction of records, making false statements, 
receiving stolen property, making false claims, or obstruction of 
justice; or
    (4) Commission of any other offense indicating a lack of business 
integrity or business honesty that seriously and directly affects the 
present responsibility of a person.
    (b) Violation of the terms of a public agreement or transaction so 
serious as to affect the integrity of an agency program, such as:
    (1) A willful failure to perform in accordance with the terms of one 
or more public agreements or transactions;
    (2) A history of failure to perform or of unsatisfactory performance 
of one or more public agreements or transactions; or
    (3) A willful violation of a statutory or regulatory provision or 
requirement applicable to a public agreement or transaction.
    (c) Any of the following causes:
    (1) A nonprocurement debarment by any Federal agency taken before 
October 1, 1988, the effective date of these regulations, or a 
procurement debarment by any Federal agency taken pursuant to 48 CFR 
subpart 9.4;
    (2) Knowingly doing business with a debarred, suspended, ineligible, 
or voluntarily excluded person, in connection with a covered 
transaction, except as permitted in Sec. 1471.215 or Sec. 1471.220;
    (3) Failure to pay a single substantial debt, or a number of 
outstanding debts (including disallowed costs and overpayments, but not 
including sums owed the Federal Government under the Internal Revenue 
Code) owed to any Federal agency or instrumentality, provided the debt 
is uncontested by the debtor or, if contested, provided that the 
debtor's legal and administrative remedies have been exhausted;
    (4) Violation of a material provision of a voluntary exclusion 
agreement entered into under Sec. 1471.315 or of any settlement of a 
debarment or suspension action; or
    (5) Violation of any requirement of subpart F of this part, relating 
to providing a drug-free workplace, as set forth in Sec. 1471.615 of 
this part.
    (d) Any other cause of so serious or compelling a nature that it 
affects the present responsibility of a person.
[53 FR 19189, 19204, May 26, 1988, as amended at 54 FR 4950, 4959, Jan. 
31, 1989]



Sec. 1471.310  Procedures.

    FMCS shall process debarment actions as informally as practicable, 
consistent with the principles of fundamental fairness, using the 
procedures in Secs. 1471.311 through 1471.314.



Sec. 1471.311  Investigation and referral.

    Information concerning the existence of a cause for debarment from 
any source shall be promptly reported, investigated, and referred, when 
appropriate, to the debarring official for consideration. After 
consideration, the debarring official may issue a notice of proposed 
debarment.



Sec. 1471.312  Notice of proposed debarment.

    A debarment proceeding shall be initiated by notice to the 
respondent advising:

[[Page 123]]

    (a) That debarment is being considered;
    (b) Of the reasons for the proposed debarment in terms sufficient to 
put the respondent on notice of the conduct or transaction(s) upon which 
it is based;
    (c) Of the cause(s) relied upon under Sec. 1471.305 for proposing 
debarment;
    (d) Of the provisions of Sec. 1471.311 through Sec. 1471.314, and 
any other FMCS procedures, if applicable, governing debarment 
decisionmaking; and
    (e) Of the potential effect of a debarment.



Sec. 1471.313  Opportunity to contest proposed debarment.

    (a) Submission in opposition. Within 30 days after receipt of the 
notice of proposed debarment, the respondent may submit, in person, in 
writing, or through a representative, information and argument in 
opposition to the proposed debarment.
    (b) Additional proceedings as to disputed material facts. (1) In 
actions not based upon a conviction or civil judgment, if the debarring 
official finds that the respondent's submission in opposition raises a 
genuine dispute over facts material to the proposed debarment, 
respondent(s) shall be afforded an opportunity to appear with a 
representative, submit documentary evidence, present witnesses, and 
confront any witness the agency presents.
    (2) A transcribed record of any additional proceedings shall be made 
available at cost to the respondent, upon request, unless the respondent 
and the agency, by mutual agreement, waive the requirement for a 
transcript.



Sec. 1471.314  Debarring official's decision.

    (a) No additional proceedings necessary. In actions based upon a 
conviction or civil judgment, or in which there is no genuine dispute 
over material facts, the debarring official shall make a decision on the 
basis of all the information in the administrative record, including any 
submission made by the respondent. The decision shall be made within 45 
days after receipt of any information and argument submitted by the 
respondent, unless the debarring official extends this period for good 
cause.
    (b) Additional proceedings necessary. (1) In actions in which 
additional proceedings are necessary to determine disputed material 
facts, written findings of fact shall be prepared. The debarring 
official shall base the decision on the facts as found, together with 
any information and argument submitted by the respondent and any other 
information in the administrative record.
    (2) The debarring official may refer disputed material facts to 
another official for findings of fact. The debarring official may reject 
any such findings, in whole or in part, only after specifically 
determining them to be arbitrary and capricious or clearly erroneous.
    (3) The debarring official's decision shall be made after the 
conclusion of the proceedings with respect to disputed facts.
    (c)(1) Standard of proof. In any debarment action, the cause for 
debarment must be established by a preponderance of the evidence. Where 
the proposed debarment is based upon a conviction or civil judgment, the 
standard shall be deemed to have been met.
    (2) Burden of proof. The burden of proof is on the agency proposing 
debarment.
    (d) Notice of debarring official's decision. (1) If the debarring 
official decides to impose debarment, the respondent shall be given 
prompt notice:
    (i) Referring to the notice of proposed debarment;
    (ii) Specifying the reasons for debarment;
    (iii) Stating the period of debarment, including effective dates; 
and
    (iv) Advising that the debarment is effective for covered 
transactions throughout the executive branch of the Federal Government 
unless an agency head or an authorized designee makes the determination 
referred to in Sec. 1471.215.
    (2) If the debarring official decides not to impose debarment, the 
respondent shall be given prompt notice of that decision. A decision not 
to impose debarment shall be without prejudice to a subsequent 
imposition of debarment by any other agency.

[[Page 124]]



Sec. 1471.315  Settlement and voluntary exclusion.

    (a) When in the best interest of the Government, FMCS may, at any 
time, settle a debarment or suspension action.
    (b) If a participant and the agency agree to a voluntary exclusion 
of the participant, such voluntary exclusion shall be entered on the 
Nonprocurement List (see subpart E).



Sec. 1471.320  Period of debarment.

    (a) Debarment shall be for a period commensurate with the 
seriousness of the cause(s). If a suspension precedes a debarment, the 
suspension period shall be considered in determining the debarment 
period.
    (1) Debarment for causes other than those related to a violation of 
the requirements of subpart F of this part generally should not exceed 
three years. Where circumstances warrant, a longer period of debarment 
may be imposed.
    (2) In the case of a debarment for a violation of the requirements 
of subpart F of this part (see 1471.305(c)(5)), the period of debarment 
shall not exceed five years.
    (b) The debarring official may extend an existing debarment for an 
additional period, if that official determines that an extension is 
necessary to protect the public interest. However, a debarment may not 
be extended solely on the basis of the facts and circumstances upon 
which the initial debarment action was based. If debarment for an 
additional period is determined to be necessary, the procedures of 
Secs. 1471.311 through 1471.314 shall be followed to extend the 
debarment.
    (c) The respondent may request the debarring official to reverse the 
debarment decision or to reduce the period or scope of debarment. Such a 
request shall be in writing and supported by documentation. The 
debarring official may grant such a request for reasons including, but 
not limited to:
    (1) Newly discovered material evidence;
    (2) Reversal of the conviction or civil judgment upon which the 
debarment was based;
    (3) Bona fide change in ownership or management;
    (4) Elimination of other causes for which the debarment was imposed; 
or
    (5) Other reasons the debarring official deems appropriate.
[53 FR 19189, 19204, May 26, 1988, as amended at 54 FR 4950, 4960, Jan. 
31, 1989]



Sec. 1471.325  Scope of debarment.

    (a) Scope in general. (1) Debarment of a person under these 
regulations constitutes debarment of all its divisions and other 
organizational elements from all covered transactions, unless the 
debarment decision is limited by its terms to one or more specifically 
identified individuals, divisions or other organizational elements or to 
specific types of transactions.
    (2) The debarment action may include any affiliate of the 
participant that is specifically named and given notice of the proposed 
debarment and an opportunity to respond (see Secs. 1471.311 through 
1471.314).
    (b) Imputing conduct. For purposes of determining the scope of 
debarment, conduct may be imputed as follows:
    (1) Conduct imputed to participant. The fraudulent, criminal or 
other seriously improper conduct of any officer, director, shareholder, 
partner, employee, or other individual associated with a participant may 
be imputed to the participant when the conduct occurred in connection 
with the individual's performance of duties for or on behalf of the 
participant, or with the participant's knowledge, approval, or 
acquiescence. The participant's acceptance of the benefits derived from 
the conduct shall be evidence of such knowledge, approval, or 
acquiescence.
    (2) Conduct imputed to individuals associated with participant. The 
fraudulent, criminal, or other seriously improper conduct of a 
participant may be imputed to any officer, director, shareholder, 
partner, employee, or other individual associated with the participant 
who participated in, knew of, or had reason to know of the participant's 
conduct.
    (3) Conduct of one participant imputed to other participants in a 
joint venture. The fraudulent, criminal, or other seriously improper 
conduct of one participant in a joint venture, grant pursuant to a joint 
application, or similar arrangement may be imputed to other

[[Page 125]]

participants if the conduct occurred for or on behalf of the joint 
venture, grant pursuant to a joint application, or similar arrangement 
may be imputed to other participants if the conduct occurred for or on 
behalf of the joint venture, grant pursuant to a joint application, or 
similar arrangement or with the knowledge, approval, or acquiescence of 
these participants. Acceptance of the benefits derived from the conduct 
shall be evidence of such knowledge, approval, or acquiescence.



                          Subpart D--Suspension



Sec. 1471.400  General.

    (a) The suspending official may suspend a person for any of the 
causes in Sec. 1471.405 using procedures established in Secs. 1471.410 
through 1471.413.
    (b) Suspension is a serious action to be imposed only when:
    (1) There exists adequate evidence of one or more of the causes set 
out in Sec. 1471.405, and
    (2) Immediate action is necessary to protect the public interest.
    (c) In assessing the adequacy of the evidence, the agency should 
consider how much information is available, how credible it is given the 
circumstances, whether or not important allegations are corroborated, 
and what inferences can reasonably be drawn as a result. This assessment 
should include an examination of basic documents such as grants, 
cooperative agreements, loan authorizations, and contracts.



Sec. 1471.405  Causes for suspension.

    (a) Suspension may be imposed in accordance with the provisions of 
Secs. 1471.400 through 1471.413 upon adequate evidence:
    (1) To suspect the commission of an offense listed in 
Sec. 1471.305(a); or
    (2) That a cause for debarment under Sec. 1471.305 may exist.
    (b) Indictment shall constitute adequate evidence for purposes of 
suspension actions.



Sec. 1471.410  Procedures.

    (a) Investigation and referral. Information concerning the existence 
of a cause for suspension from any source shall be promptly reported, 
investigated, and referred, when appropriate, to the suspending official 
for consideration. After consideration, the suspending official may 
issue a notice of suspension.
    (b) Decisionmaking process. FMCS shall process suspension actions as 
informally as practicable, consistent with principles of fundamental 
fairness, using the procedures in Sec. 1471.411 through Sec. 1471.413.



Sec. 1471.411  Notice of suspension.

    When a respondent is suspended, notice shall immediately be given:
    (a) That suspension has been imposed;
    (b) That the suspension is based on an indictment, conviction, or 
other adequate evidence that the respondent has committed irregularities 
seriously reflecting on the propriety of further Federal Government 
dealings with the respondent;
    (c) Describing any such irregularities in terms sufficient to put 
the respondent on notice without disclosing the Federal Government's 
evidence;
    (d) Of the cause(s) relied upon under Sec. 1471.405 for imposing 
suspension;
    (e) That the suspension is for a temporary period pending the 
completion of an investigation or ensuing legal, debarment, or Program 
Fraud Civil Remedies Act proceedings;
    (f) Of the provisions of Sec. 1471.411 through Sec. 1471.413 and any 
other FMCS procedures, if applicable, governing suspension 
decisionmaking; and
    (g) Of the effect of the suspension.



Sec. 1471.412  Opportunity to contest suspension.

    (a) Submission in opposition. Within 30 days after receipt of the 
notice of suspension, the respondent may submit, in person, in writing, 
or through a representative, information and argument in opposition to 
the suspension.
    (b) Additional proceedings as to disputed material facts. (1) If the 
suspending official finds that the respondent's submission in opposition 
raises a genuine dispute over facts material to the suspension, 
respondent(s) shall be afforded an opportunity to appear with a 
representative, submit documentary

[[Page 126]]

evidence, present witnesses, and confront any witness the agency 
presents, unless:
    (i) The action is based on an indictment, conviction or civil 
judgment, or
    (ii) A determination is made, on the basis of Department of Justice 
advice, that the substantial interests of the Federal Government in 
pending or contemplated legal proceedings based on the same facts as the 
suspension would be prejudiced.
    (2) A transcribed record of any additional proceedings shall be 
prepared and made available at cost to the respondent, upon request, 
unless the respondent and the agency, by mutual agreement, waive the 
requirement for a transcript.



Sec. 1471.413  Suspending official's decision.

    The suspending official may modify or terminate the suspension (for 
example, see Sec. 1471.320(c) for reasons for reducing the period or 
scope of debarment) or may leave it in force. However, a decision to 
modify or terminate the suspension shall be without prejudice to the 
subsequent imposition of suspension by any other agency or debarment by 
any agency. The decision shall be rendered in accordance with the 
following provisions:
    (a) No additional proceedings necessary. In actions: based on an 
indictment, conviction, or civil judgment; in which there is no genuine 
dispute over material facts; or in which additional proceedings to 
determine disputed material facts have been denied on the basis of 
Department of Justice advice, the suspending official shall make a 
decision on the basis of all the information in the administrative 
record, including any submission made by the respondent. The decision 
shall be made within 45 days after receipt of any information and 
argument submitted by the respondent, unless the suspending official 
extends this period for good cause.
    (b) Additional proceedings necessary. (1) In actions in which 
additional proceedings are necessary to determine disputed material 
facts, written findings of fact shall be prepared. The suspending 
official shall base the decision on the facts as found, together with 
any information and argument submitted by the respondent and any other 
information in the administrative record.
    (2) The suspending official may refer matters involving disputed 
material facts to another official for findings of fact. The suspending 
official may reject any such findings, in whole or in part, only after 
specifically determining them to be arbitrary or capricious or clearly 
erroneous.
    (c) Notice of suspending official's decision. Prompt written notice 
of the suspending official's decision shall be sent to the respondent.



Sec. 1471.415  Period of suspension.

    (a) Suspension shall be for a temporary period pending the 
completion of an investigation or ensuing legal, debarment, or Program 
Fraud Civil Remedies Act proceedings, unless terminated sooner by the 
suspending official or as provided in paragraph (b) of this section.
    (b) If legal or administrative proceedings are not initiated within 
12 months after the date of the suspension notice, the suspension shall 
be terminated unless an Assistant Attorney General or United States 
Attorney requests its extension in writing, in which case it may be 
extended for an additional six months. In no event may a suspension 
extend beyond 18 months, unless such proceedings have been initiated 
within that period.
    (c) The suspending official shall notify the Department of Justice 
of an impending termination of a suspension, at least 30 days before the 
12-month period expires, to give that Department an opportunity to 
request an extension.



Sec. 1471.420  Scope of suspension.

    The scope of a suspension is the same as the scope of a debarment 
(see Sec. 1471.325), except that the procedures of Secs. 1471.410 
through 1471.413 shall be used in imposing a suspension.



       Subpart E--Responsibilities of GSA, Agency and Participants



Sec. 1471.500  GSA responsibilities.

    (a) In accordance with the OMB guidelines, GSA shall compile, 
maintain, and distribute a list of all persons who have been debarred, 
suspended, or

[[Page 127]]

voluntarily excluded by agencies under Executive Order 12549 and these 
regulations, and those who have been determined to be ineligible.
    (b) At a minimum, this list shall indicate:
    (1) The names and addresses of all debarred, suspended, ineligible, 
and voluntarily excluded persons, in alphabetical order, with cross-
references when more than one name is involved in a single action;
    (2) The type of action;
    (3) The cause for the action;
    (4) The scope of the action;
    (5) Any termination date for each listing; and
    (6) The agency and name and telephone number of the agency point of 
contact for the action.



Sec. 1471.505  FMCS responsibilities.

    (a) The agency shall provide GSA with current information concerning 
debarments, suspension, determinations of ineligibility, and voluntary 
exclusions it has taken. Until February 18, 1989, the agency shall also 
provide GSA and OMB with information concerning all transactions in 
which FMCS has granted exceptions under Sec. 1471.215 permitting 
participation by debarred, suspended, or voluntarily excluded persons.
    (b) Unless an alternative schedule is agreed to by GSA, the agency 
shall advise GSA of the information set forth in Sec. 1471.500(b) and of 
the exceptions granted under Sec. 1471.215 within five working days 
after taking such actions.
    (c) The agency shall direct inquiries concerning listed persons to 
the agency that took the action.
    (d) Agency officials shall check the Nonprocurement List before 
entering covered transactions to determine whether a participant in a 
primary transaction is debarred, suspended, ineligible, or voluntarily 
excluded (Tel. ).
    (e) Agency officials shall check the Nonprocurement List before 
approving principals or lower tier participants where agency approval of 
the principal or lower tier participant is required under the terms of 
the transaction, to determine whether such principals or participants 
are debarred, suspended, ineligible, or voluntarily excluded.



Sec. 1471.510  Participants' responsibilities.

    (a) Certification by participants in primary covered transactions. 
Each participant shall submit the certification in appendix A to this 
part for it and its principals at the time the participant submits its 
proposal in connection with a primary covered transaction, except that 
States need only complete such certification as to their principals. 
Participants may decide the method and frequency by which they determine 
the eligibility of their principals. In addition, each participant may, 
but is not required to, check the Nonprocurement List for its principals 
(Tel. ). Adverse information on the certification will not necessarily 
result in denial of participation. However, the certification, and any 
additional information pertaining to the certification submitted by the 
participant, shall be considered in the administration of covered 
transactions.
    (b) Certification by participants in lower tier covered 
transactions. (1) Each participant shall require participants in lower 
tier covered transactions to include the certification in appendix B to 
this part for it and its principals in any proposal submitted in 
connection with such lower tier covered transactions.
    (2) A participant may rely upon the certification of a prospective 
participant in a lower tier covered transaction that it and its 
principals are not debarred, suspended, ineligible, or voluntarily 
excluded from the covered transaction by any Federal agency, unless it 
knows that the certification is erroneous. Participants may decide the 
method and frequency by which they determine the eligiblity of their 
principals. In addition, a participant may, but is not required to, 
check the Nonprocurement List for its principals and for participants 
(Tel. ).
    (c) Changed circumstances regarding certification. A participant 
shall provide immediate written notice to FMCS if at any time the 
participant learns that its certification was erroneous when submitted 
or has become erroneous by

[[Page 128]]

reason of changed circumstances. Participants in lower tier covered 
transactions shall provide the same updated notice to the participant to 
which it submitted its proposals.



          Subpart F--Drug-Free Workplace Requirements (Grants)

    Source: 55 FR 21688, 21697, May 25, 1990, unless otherwise noted.



Sec. 1471.600  Purpose.

    (a) The purpose of this subpart is to carry out the Drug-Free 
Workplace Act of 1988 by requiring that--
    (1) A grantee, other than an individual, shall certify to the agency 
that it will provide a drug-free workplace;
    (2) A grantee who is an individual shall certify to the agency that, 
as a condition of the grant, he or she will not engage in the unlawful 
manufacture, distribution, dispensing, possession or use of a controlled 
substance in conducting any activity with the grant.
    (b) Requirements implementing the Drug-Free Workplace Act of 1988 
for contractors with the agency are found at 48 CFR subparts 9.4, 23.5, 
and 52.2.



Sec. 1471.605  Definitions.

    (a) Except as amended in this section, the definitions of 
Sec. 1471.105 apply to this subpart.
    (b) For purposes of this subpart--
    (1) Controlled substance means a controlled substance in schedules I 
through V of the Controlled Substances Act (21 U.S.C. 812), and as 
further defined by regulation at 21 CFR 1308.11 through 1308.15;
    (2) Conviction means a finding of guilt (including a plea of nolo 
contendere) or imposition of sentence, or both, by any judicial body 
charged with the responsibility to determine violations of the Federal 
or State criminal drug statutes;
    (3) Criminal drug statute means a Federal or non-Federal criminal 
statute involving the manufacture, distribution, dispensing, use, or 
possession of any controlled substance;
    (4) Drug-free workplace means a site for the performance of work 
done in connection with a specific grant at which employees of the 
grantee are prohibited from engaging in the unlawful manufacture, 
distribution, dispensing, possession, or use of a controlled substance;
    (5) Employee means the employee of a grantee directly engaged in the 
performance of work under the grant, including:
    (i) All direct charge employees;
    (ii) All indirect charge employees, unless their impact or 
involvement is insignificant to the performance of the grant; and,
    (iii) Temporary personnel and consultants who are directly engaged 
in the performance of work under the grant and who are on the grantee's 
payroll.

This definition does not include workers not on the payroll of the 
grantee (e.g., volunteers, even if used to meet a matching requirement; 
consultants or independent contractors not on the payroll; or employees 
of subrecipients or subcontractors in covered workplaces);
    (6) Federal agency or agency means any United States executive 
department, military department, government corporation, government 
controlled corporation, any other establishment in the executive branch 
(including the Executive Office of the President), or any independent 
regulatory agency;
    (7) Grant means an award of financial assistance, including a 
cooperative agreement, in the form of money, or property in lieu of 
money, by a Federal agency directly to a grantee. The term grant 
includes block grant and entitlement grant programs, whether or not 
exempted from coverage under the grants management government-wide 
common rule on uniform administrative requirements for grants and 
cooperative agreements. The term does not include technical assistance 
that provides services instead of money, or other assistance in the form 
of loans, loan guarantees, interest subsidies, insurance, or direct 
appropriations; or any veterans' benefits to individuals, i.e., any 
benefit to veterans, their families, or survivors by virtue of the 
service of a veteran in the Armed Forces of the United States;
    (8) Grantee means a person who applies for or receives a grant 
directly

[[Page 129]]

from a Federal agency (except another Federal agency);
    (9) Individual means a natural person;
    (10) State means any of the States of the United States, the 
District of Columbia, the Commonwealth of Puerto Rico, any territory or 
possession of the United States, or any agency of a State, exclusive of 
institutions of higher education, hospitals, and units of local 
government. A State instrumentality will be considered part of the State 
government if it has a written determination from a State government 
that such State considers the instrumentality to be an agency of the 
State government.



Sec. 1471.610  Coverage.

    (a) This subpart applies to any grantee of the agency.
    (b) This subpart applies to any grant, except where application of 
this subpart would be inconsistent with the international obligations of 
the United States or the laws or regulations of a foreign government. A 
determination of such inconsistency may be made only by the agency head 
or his/her designee.
    (c) The provisions of subparts A, B, C, D and E of this part apply 
to matters covered by this subpart, except where specifically modified 
by this subpart. In the event of any conflict between provisions of this 
subpart and other provisions of this part, the provisions of this 
subpart are deemed to control with respect to the implementation of 
drug-free workplace requirements concerning grants.



Sec. 1471.615  Grounds for suspension of payments, suspension or termination of grants, or suspension or debarment.

    A grantee shall be deemed in violation of the requirements of this 
subpart if the agency head or his or her official designee determines, 
in writing, that--
    (a) The grantee has made a false certification under Sec. 1471.630;
    (b) With respect to a grantee other than an individual--
    (1) The grantee has violated the certification by failing to carry 
out the requirements of paragraphs (A)(a)-(g) and/or (B) of the 
certification (alternate I to appendix C) or
    (2) Such a number of employees of the grantee have been convicted of 
violations of criminal drug statutes for violations occurring in the 
workplace as to indicate that the grantee has failed to make a good 
faith effort to provide a drug-free workplace.
    (c) With respect to a grantee who is an individual--
    (1) The grantee has violated the certification by failing to carry 
out its requirements (alternate II to appendix C); or
    (2) The grantee is convicted of a criminal drug offense resulting 
from a violation occurring during the conduct of any grant activity.



Sec. 1471.620  Effect of violation.

    (a) In the event of a violation of this subpart as provided in 
Sec. 1471.615, and in accordance with applicable law, the grantee shall 
be subject to one or more of the following actions:
    (1) Suspension of payments under the grant;
    (2) Suspension or termination of the grant; and
    (3) Suspension or debarment of the grantee under the provisions of 
this part.
    (b) Upon issuance of any final decision under this part requiring 
debarment of a grantee, the debarred grantee shall be ineligible for 
award of any grant from any Federal agency for a period specified in the 
decision, not to exceed five years (see Sec. 1471.320(a)(2) of this 
part).



Sec. 1471.625  Exception provision.

    The agency head may waive with respect to a particular grant, in 
writing, a suspension of payments under a grant, suspension or 
termination of a grant, or suspension or debarment of a grantee if the 
agency head determines that such a waiver would be in the public 
interest. This exception authority cannot be delegated to any other 
official.



Sec. 1471.630  Certification requirements and procedures.

    (a)(1) As a prior condition of being awarded a grant, each grantee 
shall make the appropriate certification to

[[Page 130]]

the Federal agency providing the grant, as provided in appendix C to 
this part.
    (2) Grantees are not required to make a certification in order to 
continue receiving funds under a grant awarded before March 18, 1989, or 
under a no-cost time extension of such a grant. However, the grantee 
shall make a one-time drug-free workplace certification for a non-
automatic continuation of such a grant made on or after March 18, 1989.
    (b) Except as provided in this section, all grantees shall make the 
required certification for each grant. For mandatory formula grants and 
entitlements that have no application process, grantees shall submit a 
one-time certification in order to continue receiving awards.
    (c) A grantee that is a State may elect to make one certification in 
each Federal fiscal year. States that previously submitted an annual 
certification are not required to make a certification for Fiscal Year 
1990 until June 30, 1990. Except as provided in paragraph (d) of this 
section, this certification shall cover all grants to all State agencies 
from any Federal agency. The State shall retain the original of this 
statewide certification in its Governor's office and, prior to grant 
award, shall ensure that a copy is submitted individually with respect 
to each grant, unless the Federal agency has designated a central 
location for submission.
    (d)(1) The Governor of a State may exclude certain State agencies 
from the statewide certification and authorize these agencies to submit 
their own certifications to Federal agencies. The statewide 
certification shall name any State agencies so excluded.
    (2) A State agency to which the statewide certification does not 
apply, or a State agency in a State that does not have a statewide 
certification, may elect to make one certification in each Federal 
fiscal year. State agencies that previously submitted a State agency 
certification are not required to make a certification for Fiscal Year 
1990 until June 30, 1990. The State agency shall retain the original of 
this State agency-wide certification in its central office and, prior to 
grant award, shall ensure that a copy is submitted individually with 
respect to each grant, unless the Federal agency designates a central 
location for submission.
    (3) When the work of a grant is done by more than one State agency, 
the certification of the State agency directly receiving the grant shall 
be deemed to certify compliance for all workplaces, including those 
located in other State agencies.
    (e)(1) For a grant of less than 30 days performance duration, 
grantees shall have this policy statement and program in place as soon 
as possible, but in any case by a date prior to the date on which 
performance is expected to be completed.
    (2) For a grant of 30 days or more performance duration, grantees 
shall have this policy statement and program in place within 30 days 
after award.
    (3) Where extraordinary circumstances warrant for a specific grant, 
the grant officer may determine a different date on which the policy 
statement and program shall be in place.



Sec. 1471.635  Reporting of and employee sanctions for convictions of criminal drug offenses.

    (a) When a grantee other than an individual is notified that an 
employee has been convicted for a violation of a criminal drug statute 
occurring in the workplace, it shall take the following actions:
    (1) Within 10 calendar days of receiving notice of the conviction, 
the grantee shall provide written notice, including the convicted 
employee's position title, to every grant officer, or other designee on 
whose grant activity the convicted employee was working, unless a 
Federal agency has designated a central point for the receipt of such 
notifications. Notification shall include the identification number(s) 
for each of the Federal agency's affected grants.
    (2) Within 30 calendar days of receiving notice of the conviction, 
the grantee shall do the following with respect to the employee who was 
convicted.
    (i) Take appropriate personnel action against the employee, up to 
and including termination, consistent with requirements of the 
Rehabilitation Act of 1973, as amended; or

[[Page 131]]

    (ii) Require the employee to participate satisfactorily in a drug 
abuse assistance or rehabilitation program approved for such purposes by 
a Federal, State, or local health, law enforcement, or other appropriate 
agency.
    (b) A grantee who is an individual who is convicted for a violation 
of a criminal drug statute occurring during the conduct of any grant 
activity shall report the conviction, in writing, within 10 calendar 
days, to his or her Federal agency grant officer, or other designee, 
unless the Federal agency has designated a central point for the receipt 
of such notices. Notification shall include the identification number(s) 
for each of the Federal agency's affected grants.

(Approved by the Office of Management and Budget under control number 
0991-0002)

Appendix A to Part 1471--Certification Regarding Debarment, Suspension, 
     and Other Responsibility Matters--Primary Covered Transactions

                     Instructions for Certification

    1. By signing and submitting this proposal, the prospective primary 
participant is providing the certification set out below.
    2. The inability of a person to provide the certification required 
below will not necessarily result in denial of participation in this 
covered transaction. The prospective participant shall submit an 
explanation of why it cannot provide the certification set out below. 
The certification or explanation will be considered in connection with 
the department or agency's determination whether to enter into this 
transaction. However, failure of the prospective primary participant to 
furnish a certification or an explanation shall disqualify such person 
from participation in this transaction.
    3. The certification in this clause is a material representation of 
fact upon which reliance was placed when the department or agency 
determined to enter into this transaction. If it is later determined 
that the prospective primary participant knowingly rendered an erroneous 
certification, in addition to other remedies available to the Federal 
Government, the department or agency may terminate this transaction for 
cause or default.
    4. The prospective primary participant shall provide immediate 
written notice to the department or agency to which this proposal is 
submitted if at any time the prospective primary participant learns that 
its certification was erroneous when submitted or has become erroneous 
by reason of changed circumstances.
    5. The terms covered transaction, debarred, suspended, ineligible, 
lower tier covered transaction, participant, person, primary covered 
transaction, principal, proposal, and voluntarily excluded, as used in 
this clause, have the meanings set out in the Definitions and Coverage 
sections of the rules implementing Executive Order 12549. You may 
contact the department or agency to which this proposal is being 
submitted for assistance in obtaining a copy of those regulations.
    6. The prospective primary participant agrees by submitting this 
proposal that, should the proposed covered transaction be entered into, 
it shall not knowingly enter into any lower tier covered transaction 
with a person who is proposed for debarment under 48 CFR part 9, subpart 
9.4, debarred, suspended, declared ineligible, or voluntarily excluded 
from participation in this covered transaction, unless authorized by the 
department or agency entering into this transaction.
    7. The prospective primary participant further agrees by submitting 
this proposal that it will include the clause titled ``Certification 
Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion-
Lower Tier Covered Transaction,'' provided by the department or agency 
entering into this covered transaction, without modification, in all 
lower tier covered transactions and in all solicitations for lower tier 
covered transactions.
    8. A participant in a covered transaction may rely upon a 
certification of a prospective participant in a lower tier covered 
transaction that it is not proposed for debarment under 48 CFR part 9, 
subpart 9.4, debarred, suspended, ineligible, or voluntarily excluded 
from the covered transaction, unless it knows that the certification is 
erroneous. A participant may decide the method and frequency by which it 
determines the eligibility of its principals. Each participant may, but 
is not required to, check the List of Parties Excluded from Federal 
Procurement and Nonprocurement Programs.
    9. Nothing contained in the foregoing shall be construed to require 
establishment of a system of records in order to render in good faith 
the certification required by this clause. The knowledge and information 
of a participant is not required to exceed that which is normally 
possessed by a prudent person in the ordinary course of business 
dealings.
    10. Except for transactions authorized under paragraph 6 of these 
instructions, if a participant in a covered transaction knowingly enters 
into a lower tier covered transaction with a person who is proposed for 
debarment under 48 CFR part 9, subpart 9.4,

[[Page 132]]

suspended, debarred, ineligible, or voluntarily excluded from 
participation in this transaction, in addition to other remedies 
available to the Federal Government, the department or agency may 
terminate this transaction for cause or default.

Certification Regarding Debarment, Suspension, and Other Responsibility 
                  Matters--Primary Covered Transactions

    (1) The prospective primary participant certifies to the best of its 
knowledge and belief, that it and its principals:
    (a) Are not presently debarred, suspended, proposed for debarment, 
declared ineligible, or voluntarily excluded by any Federal department 
or agency;
    (b) Have not within a three-year period preceding this proposal been 
convicted of or had a civil judgment rendered against them for 
commission of fraud or a criminal offense in connection with obtaining, 
attempting to obtain, or performing a public (Federal, State or local) 
transaction or contract under a public transaction; violation of Federal 
or State antitrust statutes or commission of embezzlement, theft, 
forgery, bribery, falsification or destruction of records, making false 
statements, or receiving stolen property;
    (c) Are not presently indicted for or otherwise criminally or 
civilly charged by a governmental entity (Federal, State or local) with 
commission of any of the offenses enumerated in paragraph (1)(b) of this 
certification; and
    (d) Have not within a three-year period preceding this application/
proposal had one or more public transactions (Federal, State or local) 
terminated for cause or default.
    (2) Where the prospective primary participant is unable to certify 
to any of the statements in this certification, such prospective 
participant shall attach an explanation to this proposal.
[60 FR 33042, 33052, June 26, 1995]

Appendix B to Part 1471--Certification Regarding Debarment, Suspension, 
 Ineligibility and Voluntary Exclusion--Lower Tier Covered Transactions

                     Instructions for Certification

    1. By signing and submitting this proposal, the prospective lower 
tier participant is providing the certification set out below.
    2. The certification in this clause is a material representation of 
fact upon which reliance was placed when this transaction was entered 
into. If it is later determined that the prospective lower tier 
participant knowingly rendered an erroneous certification, in addition 
to other remedies available to the Federal Government the department or 
agency with which this transaction originated may pursue available 
remedies, including suspension and/or debarment.
    3. The prospective lower tier participant shall provide immediate 
written notice to the person to which this proposal is submitted if at 
any time the prospective lower tier participant learns that its 
certification was erroneous when submitted or had become erroneous by 
reason of changed circumstances.
    4. The terms covered transaction, debarred, suspended, ineligible, 
lower tier covered transaction, participant, person, primary covered 
transaction, principal, proposal, and voluntarily excluded, as used in 
this clause, have the meaning set out in the Definitions and Coverage 
sections of rules implementing Executive Order 12549. You may contact 
the person to which this proposal is submitted for assistance in 
obtaining a copy of those regulations.
    5. The prospective lower tier participant agrees by submitting this 
proposal that, should the proposed covered transaction be entered into, 
it shall not knowingly enter into any lower tier covered transaction 
with a person who is proposed for debarment under 48 CFR part 9, subpart 
9.4, debarred, suspended, declared ineligible, or voluntarily excluded 
from participation in this covered transaction, unless authorized by the 
department or agency with which this transaction originated.
    6. The prospective lower tier participant further agrees by 
submitting this proposal that it will include this clause titled 
``Certification Regarding Debarment, Suspension, Ineligibility and 
Voluntary Exclusion-Lower Tier Covered Transaction,'' without 
modification, in all lower tier covered transactions and in all 
solicitations for lower tier covered transactions.
    7. A participant in a covered transaction may rely upon a 
certification of a prospective participant in a lower tier covered 
transaction that it is not proposed for debarment under 48 CFR part 9, 
subpart 9.4, debarred, suspended, ineligible, or voluntarily excluded 
from covered transactions, unless it knows that the certification is 
erroneous. A participant may decide the method and frequency by which it 
determines the eligibility of its principals. Each participant may, but 
is not required to, check the List of Parties Excluded from Federal 
Procurement and Nonprocurement Programs.
    8. Nothing contained in the foregoing shall be construed to require 
establishment of a system of records in order to render in good faith 
the certification required by this clause. The knowledge and information 
of a participant is not required to exceed that which is normally 
possessed by a prudent person in the ordinary course of business 
dealings.

[[Page 133]]

    9. Except for transactions authorized under paragraph 5 of these 
instructions, if a participant in a covered transaction knowingly enters 
into a lower tier covered transaction with a person who is proposed for 
debarment under 48 CFR part 9, subpart 9.4, suspended, debarred, 
ineligible, or voluntarily excluded from participation in this 
transaction, in addition to other remedies available to the Federal 
Government, the department or agency with which this transaction 
originated may pursue available remedies, including suspension and/or 
debarment.

    Certification Regarding Debarment, Suspension, Ineligibility an 
          Voluntary Exclusion--Lower Tier Covered Transactions

    (1) The prospective lower tier participant certifies, by submission 
of this proposal, that neither it nor its principals is presently 
debarred, suspended, proposed for debarment, declared ineligible, or 
voluntarily excluded from participation in this transaction by any 
Federal department or agency.
    (2) Where the prospective lower tier participant is unable to 
certify to any of the statements in this certification, such prospective 
participant shall attach an explanation to this proposal.
[60 FR 33042, 33052, June 26, 1995]

 Appendix C to Part 1471--Certifi- cation Regarding Drug-Free Workplace 
                              Requirements

                     Instructions for Certification

    1. By signing and/or submitting this application or grant agreement, 
the grantee is providing the certification set out below.
    2. The certification set out below is a material representation of 
fact upon which reliance is placed when the agency awards the grant. If 
it is later determined that the grantee knowingly rendered a false 
certification, or otherwise violates the requirements of the Drug-Free 
Workplace Act, the agency, in addition to any other remedies available 
to the Federal Government, may take action authorized under the Drug-
Free Workplace Act.
    3. For grantees other than individuals, Alternate I applies.
    4. For grantees who are individuals, Alternate II applies.
    5. Workplaces under grants, for grantees other than individuals, 
need not be identified on the certification. If known, they may be 
identified in the grant application. If the grantee does not identify 
the workplaces at the time of application, or upon award, if there is no 
application, the grantee must keep the identity of the workplace(s) on 
file in its office and make the information available for Federal 
inspection. Failure to identify all known workplaces constitutes a 
violation of the grantee's drug-free workplace requirements.
    6. Workplace identifications must include the actual address of 
buildings (or parts of buildings) or other sites where work under the 
grant takes place. Categorical descriptions may be used (e.g., all 
vehicles of a mass transit authority or State highway department while 
in operation, State employees in each local unemployment office, 
performers in concert halls or radio studios).
    7. If the workplace identified to the agency changes during the 
performance of the grant, the grantee shall inform the agency of the 
change(s), if it previously identified the workplaces in question (see 
paragraph five).
    8. Definitions of terms in the Nonprocurement Suspension and 
Debarment common rule and Drug-Free Workplace common rule apply to this 
certification. Grantees' attention is called, in particular, to the 
following definitions from these rules:
    Controlled substance means a controlled substance in Schedules I 
through V of the Controlled Substances Act (21 U.S.C. 812) and as 
further defined by regulation (21 CFR 1308.11 through 1308.15);
    Conviction means a finding of guilt (including a plea of nolo 
contendere) or imposition of sentence, or both, by any judicial body 
charged with the responsibility to determine violations of the Federal 
or State criminal drug statutes;
    Criminal drug statute means a Federal or non-Federal criminal 
statute involving the manufacture, distribution, dispensing, use, or 
possession of any controlled substance;
    Employee means the employee of a grantee directly engaged in the 
performance of work under a grant, including: (i) All direct charge 
employees; (ii) All indirect charge employees unless their impact or 
involvement is insignificant to the performance of the grant; and, (iii) 
Temporary personnel and consultants who are directly engaged in the 
performance of work under the grant and who are on the grantee's 
payroll. This definition does not include workers not on the payroll of 
the grantee (e.g., volunteers, even if used to meet a matching 
requirement; consultants or independent contractors not on the grantee's 
payroll; or employees of subrecipients or subcontractors in covered 
workplaces).

        Certification Regarding Drug-Free Workplace Requirements

             Alternate I. (Grantees Other Than Individuals)

    A. The grantee certifies that it will or will continue to provide a 
drug-free workplace by:
    (a) Publishing a statement notifying employees that the unlawful 
manufacture, distribution, dispensing, possession, or use of a 
controlled substance is prohibited in the

[[Page 134]]

grantee's workplace and specifying the actions that will be taken 
against employees for violation of such prohibition;
    (b) Establishing an ongoing drug-free awareness program to inform 
employees about--
    (1) The dangers of drug abuse in the workplace;
    (2) The grantee's policy of maintaining a drug-free workplace;
    (3) Any available drug counseling, rehabilitation, and employee 
assistance programs; and
    (4) The penalties that may be imposed upon employees for drug abuse 
violations occurring in the workplace;
    (c) Making it a requirement that each employee to be engaged in the 
performance of the grant be given a copy of the statement required by 
paragraph (a);
    (d) Notifying the employee in the statement required by paragraph 
(a) that, as a condition of employment under the grant, the employee 
will--
    (1) Abide by the terms of the statement; and
    (2) Notify the employer in writing of his or her conviction for a 
violation of a criminal drug statute occurring in the workplace no later 
than five calendar days after such conviction;
    (e) Notifying the agency in writing, within ten calendar days after 
receiving notice under paragraph (d)(2) from an employee or otherwise 
receiving actual notice of such conviction. Employers of convicted 
employees must provide notice, including position title, to every grant 
officer or other designee on whose grant activity the convicted employee 
was working, unless the Federal agency has designated a central point 
for the receipt of such notices. Notice shall include the identification 
number(s) of each affected grant;
    (f) Taking one of the following actions, within 30 calendar days of 
receiving notice under paragraph (d)(2), with respect to any employee 
who is so convicted--
    (1) Taking appropriate personnel action against such an employee, up 
to and including termination, consistent with the requirements of the 
Rehabilitation Act of 1973, as amended; or
    (2) Requiring such employee to participate satisfactorily in a drug 
abuse assistance or rehabilitation program approved for such purposes by 
a Federal, State, or local health, law enforcement, or other appropriate 
agency;
    (g) Making a good faith effort to continue to maintain a drug-free 
workplace through implementation of paragraphs (a), (b), (c), (d), (e) 
and (f).
    B. The grantee may insert in the space provided below the site(s) 
for the performance of work done in connection with the specific grant:

Place of Performance (Street address, city, county, State, zip code)
 _______________________________________________________________________
________________________________________________________________________
________________________________________________________________________

Check {time}  if there are workplaces on file that are not identified 
here.

              Alternate II. (Grantees Who Are Individuals)

    (a) The grantee certifies that, as a condition of the grant, he or 
she will not engage in the unlawful manufacture, distribution, 
dispensing, possession, or use of a controlled substance in conducting 
any activity with the grant;
    (b) If convicted of a criminal drug offense resulting from a 
violation occurring during the conduct of any grant activity, he or she 
will report the conviction, in writing, within 10 calendar days of the 
conviction, to every grant officer or other designee, unless the Federal 
agency designates a central point for the receipt of such notices. When 
notice is made to such a central point, it shall include the 
identification number(s) of each affected grant.
[55 FR 21690, 21697, May 25, 1990]

[[Page 135]]



      CHAPTER XIV--EQUAL EMPLOYMENT OPPORTUNITY COMMISSION




  --------------------------------------------------------------------
Part                                                                Page
1600            Employee responsibilities and conduct.......         137
1601            Procedural regulations......................         137
1602            Recordkeeping and reporting requirements 
                    under title VII and the ADA.............         159
1603            Procedures for previously exempt State and 
                    local government employee complaints of 
                    employment discrimination under section 
                    321 of the Government Employee Rights 
                    Act of 1991.............................         172
1604            Guidelines on discrimination because of sex.         180
1605            Guidelines on discrimination because of 
                    religion................................         190
1606            Guidelines on discrimination because of 
                    national origin.........................         194
1607            Uniform guidelines on employee selection 
                    procedures (1978).......................         197
1608            Affirmative action appropriate under title 
                    VII of the Civil Rights Act of 1964, as 
                    amended.................................         223
1610            Availability of records.....................         231
1611            Privacy Act regulations.....................         241
1612            Government in the Sunshine Act regulations..         247
1614            Federal sector equal employment opportunity.         253
1615            Enforcement of nondiscrimination on the 
                    basis of handicap in programs or 
                    activities conducted by the Equal 
                    Employment Opportunity Commission.......         282
1620            The Equal Pay Act...........................         289
1621            Procedures--the Equal Pay Act...............         303
1625            Age Discrimination in Employment Act........         304
1626            Procedures--Age Discrimination in Employment 
                    Act.....................................         323
1627            Records to be made or kept relating to age: 
                    notices to be posted: administrative 
                    exemptions..............................         328
1630            Regulations to implement the equal 
                    employment provisions of the Americans 
                    with Disabilities Act...................         336

[[Page 136]]

1640            Procedures for coordinating the 
                    investigation of complaints or charges 
                    of employment discrimination based on 
                    disability subject to the Americans with 
                    Disabilities Act and section 504 of the 
                    Rehabilitation Act of 1973..............         368
1641            Procedures for complaints/charges of 
                    employment discrimination based on 
                    disability filed against employers 
                    holding government contracts or 
                    subcontracts............................         375
1650            Debt collection.............................         379
1690            Procedures on interagency coordination of 
                    equal employment opportunity issuances..         390
1691            Procedures for complaints of employment 
                    discrimination filed against recipients 
                    of Federal financial assistance.........         394
1692-1899

  [Reserved]

[[Page 137]]



PART 1600--EMPLOYEE RESPONSIBILITIES AND CONDUCT--Table of Contents




    Authority: 5 U.S.C. 7301.



Sec. 1600.101  Cross-reference to employee ethical conduct standards and financial disclosure regulations.

    Employees of the Equal Employment Opportunity Commission (EEOC) are 
subject to the executive branch-wide Standards of Ethical Conduct at 5 
CFR part 2635, the EEOC regulation at 5 CFR part 7201, which supplements 
the executive branch-wide standards, and the executive branch-wide 
financial disclosure regulations at 5 CFR part 2634.
[61 FR 7067, Feb. 26, 1996]



PART 1601--PROCEDURAL REGULATIONS--Table of Contents




Sec.
1601.1  Purpose.

                         Subpart A--Definitions

1601.2  Terms defined in title VII of the Civil Rights Act and the 
          Americans with Disabilities Act.
1601.3  Other definitions.
1601.4  Vice Chairman's functions.
1601.5  District; area; supervisory authority.

Subpart B--Procedure for the Prevention of Unlawful Employment Practices

1601.6  Submission of information.
1601.7  Charges by or on behalf of persons claiming to be aggrieved.
1601.8  Where to make a charge.
1601.9  Form of charge.
1601.10  Withdrawal of a charge by a person claiming to be aggrieved.
1601.11  Charges by members of the Commission.
1601.12  Contents of charge; amendment of charge.
1601.13  Filing; deferrals to State and local agencies.
1601.14  Service of charge or notice of charge.

                        Investigation of a Charge

1601.15  Investigative authority.
1601.16  Access to and production of evidence; testimony of witnesses; 
          procedure and authority.
1601.17  Witnesses for public hearings.

                 Procedure Following Filing of a Charge

1601.18  Dismissal: Procedure and authority.
1601.19  No cause determinations: Procedure and authority.
1601.20  Negotiated settlement.
1601.21  Reasonable cause determination: Procedure and authority.
1601.22  Confidentiality.

           Procedure To Rectify Unlawful Employment Practices

1601.23  Preliminary or temporary relief.
1601.24  Conciliation: Procedure and authority.
1601.25  Failure of conciliation; notice.
1601.26  Confidentiality of endeavors.

          Procedure Concerning the Institution of Civil Actions

1601.27  Civil actions by the Commission.
1601.28  Notice of right to sue: Procedure and authority.
1601.29  Referral to the Attorney General.

  Subpart C--Notices to Employees, Applicants for Employment and Union 
                                 Members

1601.30  Notices to be posted.

                    Subpart D--Construction of Rules

1601.34  Rules to be liberally construed.

           Subpart E--Issuance, Amendment, or Repeal of Rules

1601.35  Petitions.
1601.36  Action on petition.

                          Subpart F [Reserved]

              Subpart G--FEP Agency Designation Procedures

1601.70  FEP agency qualifications.
1601.71  FEP agency notification.
1601.72-1601.73  [Reserved]
1601.74  Designated and notice agencies.
1601.75  Certification of designated FEP agencies.
1601.76  Right of party to request review.
1601.77  Review by the Commission.
1601.78  Evaluation of designated FEP agencies certified by the 
          Commission.
1601.79  Revocation of certification.
1601.80  Certified designated FEP agencies.

   Subpart H--Title VII Interpretations and Opinions by the Commission

1601.91  Request for title VII interpretation or opinion.
1601.92  Contents of request; where to file.
1601.93  Opinions--title VII.


[[Page 138]]


    Authority: 42 U.S.C. 2000e to 2000e-17; 42 U.S.C. 12111 to 12117.

    Source: 42 FR 55388, Oct. 14, 1977, unless otherwise noted.

    Editorial Note: Nomenclature changes to part 1601 appear at 56 FR 
8624, Mar. 7, 1991.



Sec. 1601.1  Purpose.

    The regulations set forth in this part contain the procedures 
established by the Equal Employment Opportunity Commission for carrying 
out its responsibilities in the administration and enforcement of title 
VII of the Civil Rights Act of 1964 and the Americans with Disabilities 
Act of 1990. Section 107 of the Americans with Disabilities Act 
incorporates the powers, remedies and procedures set forth in sections 
705, 706, 707, 709 and 710 of the Civil Rights Act of 1964. Based on its 
experience in the enforcement of title VII and the Americans with 
Disabilities Act and upon its evaluation of suggestions and petitions 
for amendments submitted by interested persons in accordance with 
Sec. 1601.31, the Commission may from time to time amend and revise 
these procedures.
[56 FR 9624, Mar. 7, 1991]



                         Subpart A--Definitions



Sec. 1601.2  Terms defined in title VII of the Civil Rights Act and the Americans with Disabilities Act.

    The terms person, employer, employment agency, labor organization, 
employee, commerce, industry affecting commerce, State and religion as 
used in this part shall have the meanings set forth in section 701 of 
title VII of the Civil Rights Act of 1964. The term ``disability'' shall 
have the meaning set forth in section 3 of the Americans with 
Disabilities Act of 1990.
[56 FR 9624, Mar. 7, 1991]



Sec. 1601.3  Other definitions.

    (a) For the purposes of this part, the term title VII shall mean 
title VII of the Civil Rights Act of 1964; the term ADA shall mean the 
Americans with Disabilities Act of 1990; the term Commission shall mean 
the Equal Employment Opportunity Commission or any of its designated 
representatives; Washington Field Office shall mean the Commission's 
primary non-Headquarters office serving the District of Columbia and 
surrounding Maryland and Virginia suburban counties and jurisdictions; 
the term field office shall mean any of the Commission's District 
Offices, Area Offices and Local Offices, and its Washington Field 
Office; the term FEP agency shall mean a State or local agency which the 
Commission has determined satisfies the criteria stated in section 
706(c) of title VII; and the term verified shall mean sworn to or 
affirmed before a notary public, designated representative of the 
Commission, or other person duly authorized by law to administer oaths 
and take acknowledgements, or supported by an unsworn declaration in 
writing under penalty of perjury.
    (b) The delegations of authority in subpart B of this part are 
applicable to charges filed pursuant to either section 706 or section 
707 of title VII.
[42 FR 55388, Oct. 14, 1977, as amended at 56 FR 9624, Mar. 7, 1991]



Sec. 1601.4  Vice Chairman's functions.

    The member of the Commission designated by the President to serve as 
Vice Chairman shall act as Chairman in the absence or disability of the 
Chairman or in the event of a vacancy in that office.



Sec. 1601.5  District; area; supervisory authority.

    The term ``district'' as used herein shall mean that part of the 
United States or any territory thereof fixed by the Commission as a 
particular district. The term ``district director'' shall refer to that 
person designated as the Commission's chief officer in each district. 
The term ``Washington Field Office Director'' shall refer to that person 
designated as the Commission's chief officer in the Washington Field 
Office. Any authority of, or delegation of authority to, District 
Directors shall be deemed to include the Director of the Washington 
Field Office. The term ``area'' shall mean that part of the United 
States within a district fixed by the Commission as a particular sub-

[[Page 139]]

unit of a district. The term ``area director'' shall refer to that 
person designated as the Commission's chief officer in each area. The 
term ``local office'' shall mean an EEOC office with responsibility over 
a part of the United States within a district fixed by the Commission as 
a particular sub-unit of a district. The term ``local director'' shall 
refer to that person designated as the Commission's chief officer for 
the local office. Each district office and the Washington Field Office 
will operate under the supervision of the Program Director, Office of 
Program Operations through the Directors Field Management Programs, 
Office of Program Operations, and the General Counsel. Each area and 
local office will operate under the supervision of the district 
director. Any or all delegations, or actions taken, as provided by this 
part may be revoked and/or exercised by the supervisor in keeping with 
the supervisory structure described in this section.
[44 FR 4668, Jan. 23, 1979, as amended at 47 FR 46275, Oct. 18, 1982; 49 
FR 13024, Apr. 2, 1984; 54 FR 32061, Aug. 4, 1989]



Subpart B--Procedure for the Prevention of Unlawful Employment Practices



Sec. 1601.6  Submission of information.

    (a) The Commission shall receive information concerning alleged 
violations of title VII or the ADA from any person. Where the 
information discloses that a person is entitled to file a charge with 
the Commission, the appropriate office shall render assistance in the 
filing of a charge. Any person or organization may request the issuance 
of a Commissioner charge for an inquiry into individual or systematic 
discrimination. Such request, with any pertinent information, should be 
submitted to the nearest field office.
    (b) A person who submits data or evidence to the Commission may 
retain or, on payment of lawfully prescribed costs, procure a copy of 
transcript thereof, except that a witness may for good cause be limited 
to inspection of the official transcript of his or her testimony.
[42 FR 55388, Oct. 14, 1977, as amended at 52 FR 26957, July 17, 1987; 
54 FR 32061, Aug. 4, 1989; 56 FR 9624, Mar. 7, 1991]



Sec. 1601.7  Charges by or on behalf of persons claiming to be aggrieved.

    (a) A charge that any person has engaged in or is engaging in an 
unlawful employment practice within the meaning of title VII or the ADA 
may be made by or on behalf of any person claiming to be aggrieved. A 
charge on behalf of a person claiming to be aggrieved may be made by any 
person, agency, or organization. The written charge need not identify by 
name the person on whose behalf it is made. The person making the 
charge, however, must provide the Commission with the name, address and 
telephone number of the person on whose behalf the charge is made. 
During the Commission investigation, Commission personnel shall verify 
the authorization of such charge by the person on whose behalf the 
charge is made. Any such person may request that the Commission shall 
keep his or her identity confidential. However, such request for 
confidentiality shall not prevent the Commission from disclosing the 
identity to Federal, State or local agencies that have agreed to keep 
such information confidential. If this condition is violated by a 
recipient agency, the Commission may decline to honor subsequent 
requests for such information.
    (b) The person claiming to be aggrieved has the responsibility to 
provide the Commission with notice of any change in address and with 
notice of any prolonged absence from that current address so that he or 
she can be located when necessary during the Commission's consideration 
of the charge.
[42 FR 55388, Oct. 14, 1977, as amended at 56 FR 9624, Mar. 7, 1991]



Sec. 1601.8  Where to make a charge.

    A charge may be made in person or by mail at the offices of the 
Commission in Washington, DC, or any of its

[[Page 140]]

field offices or with any designated representative of the Commission. 
The addresses of the Commission's field offices appear in Sec. 1610.4.
[44 FR 4668, Jan. 23, 1979, as amended at 49 FR 13024, Apr. 2, 1984; 54 
FR 32061, Aug. 4, 1989]



Sec. 1601.9  Form of charge.

    A charge shall be in writing and signed and shall be verified.



Sec. 1601.10  Withdrawal of a charge by a person claiming to be aggrieved.

    A charge filed by or on behalf of a person claiming to be aggrieved 
may be withdrawn only by the person claiming to be aggrieved and only 
with the consent of the Commission. The Commission hereby delegates 
authority to District Directors, Area Directors, Local Directors, the 
Program Director, Office of Program Operations, Director of Systemic 
Programs, Office of Program Operations, or Directors Field Management 
Programs, Office of Program Operations, or their designees, to grant 
consent to a request to withdraw a charge, other than a Commissioner 
charge, where the withdrawal of the charge will not defeat the purposes 
of title VII or the ADA.
[44 FR 4669, Jan. 23, 1979, as amended at 47 FR 46275, Oct. 18, 1982; 49 
FR 13024, Apr. 2, 1984; 54 FR 32061, Aug. 4, 1989; 56 FR 9624, Mar. 7, 
1991]



Sec. 1601.11  Charges by members of the Commission.

    (a) Any member of the Commission may file a charge with the 
Commission. Such charge shall be in writing and signed and shall be 
verified.
    (b) A Commissioner who files a charge under paragraph (a) of this 
section may withdraw the charge with the consent of the Commission. The 
Commission may withdraw any charge filed under paragraph (a) of this 
section by a Commissioner who is no longer holding office when it 
determines that the purposes of title VII or the ADA are no longer 
served by processing the charge. Commissioner charges may not be 
withdrawn pursuant to this section after a determination as to 
reasonable cause has been made. This paragraph does not apply to a 
charge filed by a Commissioner which is on behalf of a person claiming 
to be aggrieved within the meaning of Sec. 1601.7 unless such person 
submits a written request for withdrawal to the Commission.
[43 FR 30798, July 18, 1978, as amended at 56 FR 9624, Mar. 7, 1991]



Sec. 1601.12  Contents of charge; amendment of charge.

    (a) Each charge should contain the following:
    (1) The full name, address and telephone number of the person making 
the charge except as provided in Sec. 1601.7;
    (2) The full name and address of the person against whom the charge 
is made, if known (hereinafter referred to as the respondent);
    (3) A clear and concise statement of the facts, including pertinent 
dates, constituting the alleged unlawful employment practices: See 
Sec. 1601.15(b);
    (4) If known, the approximate number of employees of the respondent 
employer or the approximate number of members of the respondent labor 
organization, as the case may be; and
    (5) A statement disclosing whether proceedings involving the alleged 
unlawful employment practice have been commenced before a State or local 
agency charged with the enforcement of fair employment practice laws 
and, if so, the date of such commencement and the name of the agency.
    (b) Notwithstanding the provisions of paragraph (a) of this section, 
a charge is sufficient when the Commission receives from the person 
making the charge a written statement sufficiently precise to identify 
the parties, and to describe generally the action or practices 
complained of. A charge may be amended to cure technical defects or 
omissions, including failure to verify the charge, or to clarify and 
amplify allegations made therein. Such amendments and amendments 
alleging additional acts which constitute unlawful employment practices 
related to or growing out of the subject matter of the original charge 
will relate back to the date the charge was first received. A charge 
that has been so amended shall not be required to be redeferred.

[[Page 141]]



Sec. 1601.13  Filing; deferrals to State and local agencies.

    (a) Initial presentation of a charge to the Commission. (1) Charges 
arising in jurisdictions having no FEP agency are filed with the 
Commission upon receipt. Such charges are timely filed if received by 
the Commission within 180 days from the date of the alleged violation.
    (2) A jurisdiction having a FEP agency without subject matter 
jurisdiction over a charge (e.g., an agency which does not cover sex 
discrimination or does not cover nonprofit organizations) is equivalent 
to a jurisdiction having no FEP agency. Charges over which a FEP agency 
has no subject matter jurisdiction are filed with the Commission upon 
receipt and are timely filed if received by the Commission within 180 
days from the date of the alleged violation.
    (3) Charges arising in jurisdictions having a FEP agency with 
subject matter jurisdiction over the charges are to be processed in 
accordance with the Commission's deferral policy set forth below and the 
procedures in paragraph (a)(4) of this section.
    (i) In order to give full weight to the policy of section 706(c) of 
title VII, which affords State and local fair employment practice 
agencies that come within the provisions of that section an opportunity 
to remedy alleged discrimination concurrently regulated by title VII or 
the ADA and State or local law, the Commission adopts the following 
procedures with respect to allegations of discrimination filed with the 
Commission. It is the intent of the Commission to thereby encourage the 
maximum degree of effectiveness in the State and local agencies. The 
Commission shall endeavor to maintain close communication with the State 
and local agencies with respect to all matters forwarded to such 
agencies and shall provide such assistance to State and local agencies 
as is permitted by law and as is practicable.
    (ii) Section 706(c) of title VII grants States and their political 
subdivisions the exclusive right to process allegations of 
discrimination filed by a person other than a Commissioner for a period 
of 60 days (or 120 days during the first year after the effective date 
of the qualifying State or local law). This right exists where, as set 
forth in Sec. 1601.70, a State or local law prohibits the employment 
practice alleged to be unlawful and a State or local agency has been 
authorized to grant or seek relief. After the expiration of the 
exclusive processing period, the Commission may commence processing the 
allegation of discrimination.
    (iii) A FEP agency may waive its right to the period of exclusive 
processing of charges provided under section 706(c) of title VII with 
respect to any charge or category of charges. Copies of all such charges 
will be forwarded to the appropriate FEP agency.
    (4) The following procedures shall be followed with respect to 
charges which arise in jurisdictions having a FEP agency with subject 
matter jurisdiction over the charges:
    (i) Where any document, whether or not verified, is received by the 
Commission as provided in Sec. 1601.8 which may constitute a charge 
cognizable under title VII or the ADA, and where the FEP agency has not 
waived its right to the period of exclusive processing with respect to 
that document, that document shall be deferred to the appropriate FEP 
agency as provided in the procedures set forth below:
    (A) All such documents shall be dated and time stamped upon receipt.
    (B) A copy of the originial document, shall be transmitted by 
registered mail, return receipt requested, to the appropriate FEP 
agency, or, where the FEP agency has consented thereto, by certified 
mail, by regular mail or by hand delivery. State or local proceedings 
are deemed to have commenced on the date such document is mailed or hand 
delivered.
    (C) The person claiming to be aggrieved and any person filing a 
charge on behalf of such person shall be notified, in writing, that the 
document which he or she sent to the Commission has been forwarded to 
the FEP agency pursuant to the provisions of section 706(c) of title 
VII.
    (ii) Such charges are deemed to be filed with the Commission as 
follows:
    (A) Where the document on its face constitutes a charge within a 
category of charges over which the FEP agency has waived its rights to 
the period of

[[Page 142]]

exclusive processing referred to in paragraph (a)(3)(iii) of this 
section, the charge is deemed to be filed with the Commission upon 
receipt of the document. Such filing is timely if the charge is received 
within 300 days from the date of the alleged violation.
    (B) Where the document on its face constitutes a charge which is not 
within a category of charges over which the FEP agency has waived its 
right to the period of exclusive processing referred to in paragraph 
(a)(3)(iii) of this section, the Commission shall process the document 
in accordance with paragraph (a)(4)(i) of this section. The charge shall 
be deemed to be filing with the Commission upon expiration of 60 (or 
where appropriate, 120) days after deferral, or upon the termination of 
FEP agency proceedings, or upon waiver of the FEP agency's right to 
exclusively process the charge, whichever is earliest. Where the FEP 
agency earlier terminates its proceedings or waives its right to 
exclusive processing of a charge, the charge shall be deemed to be filed 
with the Commission on the date the FEP agency terminated its 
proceedings or the FEP agency waived its right to exclusive processing 
of the charge. Such filing is timely if effected within 300 days from 
the date of the alleged violation.
    (b) Initial presentation of a charge to a FEP agency. (1) When a 
charge is initially presented to a FEP agency and the charging party 
requests that the charge be presented to the Commission, the charge will 
be deemed to be filed with the Commission upon expiration of 60 (or 
where appropriate, 120) days after a written and signed statement of 
facts upon which the charge is based was sent to the FEP agency by 
registered mail or was otherwise received by the FEP agency, or upon the 
termination of FEP agency proceedings, or upon waiver of the FEP 
agency's right to exclusively process the charge, whichever is earliest. 
Such filing is timely if effected within 300 days from the date of the 
alleged violation.
    (2) When a charge is initially presented to a FEP agency but the 
charging party does not request that the charge be presented to the 
Commission, the charging party may present the charge to the Commission 
as follows:
    (i) If the FEP agency has refused to accept a charge, a subsequent 
submission of the charge to the Commission will be processed as if it 
were an initial presentation in accordance with paragraph (a) of this 
section.
    (ii) If the FEP agency proceedings have terminated, the charge may 
be timely filed with the Commission within 30 days of receipt of notice 
that the FEP agency proceedings have been terminated or within 300 days 
from the date of the alleged violation, whichever is earlier.
    (iii) If the FEP agency proceedings have not been terminated, the 
charge may be presented to the Commission within 300 days from the date 
of the alleged violation. Once presented, such a charge will be deemed 
to be filed with the Commission upon expiration of 60 (or where 
appropriate, 120) days after a written and signed statement of facts 
upon which the charge is based was sent to the FEP agency by certified 
mail or was otherwise received by the FEP agency, or upon the 
termination of the FEP agency proceedings, or upon waiver of the FEP 
agency's right to exclusively process the charge, whichever is earliest. 
To be timely, however, such filing must be effected within 300 days from 
the date of the alleged violation.
    (c) Agreements with Fair Employment Practice agencies. Pursuant to 
section 705(g)(1) and section 706(b) of title VII, the Commission shall 
endeavor to enter into agreements with FEP agencies to establish 
effective and integrated resolution procedures. Such agreements may 
include, but need not be limited to, cooperative arrangements to provide 
for processing of certain charges by the Commission, rather than by the 
FEP agency during the period specified in section 706(c) and section 
706(d) of title VII.
    (d) Preliminary relief. When a charge is filed with the Commission, 
the Commission may make a preliminary investigation and commence 
judicial action for immediate, temporary or preliminary relief pursuant 
to section 706(f)(2) of title VII.
    (e) Commissioner charges. A charge made by a member of the 
Commission shall be deemed filed upon receipt by

[[Page 143]]

the Commission office responsible for investigating the charge. The 
Commission will notify a FEP agency when an allegation of discrimination 
is made by a member of the Commission concerning an employment practice 
occurring within the jurisdiction of the FEP agency. The FEP agency will 
be entitled to process the charge exclusively for a period of not less 
than 60 days if the FEP agency makes a written request to the Commission 
within 10 days of receiving notice that the allegation has been filed. 
The 60-day period shall be extended to 120 days during the first year 
after the effective date of the qualifying State or local law.
[46 FR 43039, Aug. 26, 1981, as amended at 46 FR 48189, Oct. 1, 1981; 52 
FR 10224, Mar. 31, 1987; 52 FR 18354, May 15, 1987; 56 FR 9624, Mar. 7, 
1991]



Sec. 1601.14  Service of charge or notice of charge.

    (a) Within ten days after the filing of a charge in the appropriate 
Commission office, the Commission shall serve respondent a copy of the 
charge, by mail or in person, except when it is determined that 
providing a copy of the charge would impede the law enforcement 
functions of the Commissiion. Where a copy of the charge is not 
provided, the respondent will be served with a notice of the charge 
within ten days after the filing of the charge. The notice shall include 
the date, place and circumstances of the alleged unlawful employment 
practice. Where appropriate, the notice may include the identity of the 
person or organization filing the charge.
    (b) The District Directors, the Area Directors, Local Directors, the 
Program Director, Office of Program Operations, Director of Systemic 
Programs, Office of Program Operations, or Directors Field Management 
Programs, Office of Program Operations, or their designees, are hereby 
delegated the authority to issue the notice described in paragraph (a) 
of this section.
[44 FR 4669, Jan. 23, 1979, as amended at 47 FR 46275, Oct. 18, 1982; 49 
FR 13024, Apr. 2, 1984; 49 FR 13874, Apr. 9, 1984; 54 FR 32061, Aug. 4, 
1989]

                        Investigation of a Charge



Sec. 1601.15  Investigative authority.

    (a) The investigation of a charge shall be made by the Commission, 
its investigators, or any other representative designated by the 
Commission. During the course of such investigation, the Commission may 
utilize the services of State and local agencies which are charged with 
the administration of fair employment practice laws or appropriate 
Federal agencies, and may utilize the information gathered by such 
authorities or agencies. As part of each investigation, the Commission 
will accept any statement of position or evidence with respect to the 
allegations of the charge which the person claiming to be aggrieved, the 
person making the charge on behalf of such person, if any, or the 
respondent wishes to submit.
    (b) As part of the Commission's investigation, the Commission may 
require the person claiming to be aggrieved to provide a statement which 
includes:
    (1) A statement of each specific harm that the person has suffered 
and the date on which each harm occurred;
    (2) For each harm, a statement specifying the act, policy or 
practice which is alleged to be unlawful;
    (3) For each act, policy, or practice alleged to have harmed the 
person claiming to be aggrieved, a statement of the facts which lead the 
person claiming to be aggrieved to believe that the act, policy or 
practice is discriminatory.
    (c) The Commission may require a fact-finding conference with the 
parties prior to a determination on a charge of discrimination. The 
conference is primarily an investigative forum intended to define the 
issues, to determine which elements are undisputed, to resolve those 
issues that can be resolved and to ascertain whether there is a basis 
for negotiated settlement of the charge.
    (d) The Commission's authority to investigate a charge is not 
limited to the procedures outlined in paragraphs (a), (b), and (c) of 
this section.

[[Page 144]]



Sec. 1601.16  Access to and production of evidence; testimony of witnesses; procedure and authority.

    (a) To effectuate the purposes of title VII and the ADA, any member 
of the Commission shall have the authority to sign and issue a subpoena 
requiring:
    (1) The attendance and testimony of witnesses;
    (2) The production of evidence including, but not limited to, books, 
records, correspondence, or documents, in the possession or under the 
control of the person subpoenaed; and
    (3) Access to evidence for the purposes of examination and the right 
to copy.

Any District Director, the Program Director, Office of Program 
Operations or upon delegation, the Director of Systemic Programs, Office 
of Program Operations or the Directors, Field Management Programs, 
Office of Program Operations, or any representatives designated by the 
Commission, may sign and issue a subpoena on behalf of the Commission. 
The subpoena shall state the name and address of its issuer, identify 
the person or evidence subpoenaed, the person to whom and the place, 
date, and the time at which it is returnable or the nature of the 
evidence to be examined or copied, and the date and time when access is 
requested. A subpoena shall be returnable to a duly authorized 
investigator or other representative of the Commission. Neither the 
person claiming to be aggrieved, the person filing a charge on behalf of 
such person nor the respondent shall have the right to demand that a 
subpoena be issued.
    (b)(1) Any person served with a subpoena who intends not to comply 
shall petition the issuing Director or petition the General Counsel, if 
the subpoena is issued by a Commissioner, to seek its revocation or 
modification. Petitions must be mailed to the Director or General 
Counsel, as appropriate, within five days (excluding Saturdays, Sundays 
and Federal legal holidays) after service of the subpoena. Petitions to 
the General Counsel shall be mailed to 1801 L Street, NW., Washington DC 
20507. A copy of the petition shall also be served upon the issuing 
official.
    (2) The petition shall separately identify each portion of the 
subpoena with which the petitioner does not intend to comply and shall 
state, with respect to each such portion, the basis for noncompliance 
with the subpoena. A copy of the subpoena shall be attached to the 
petition and shall be designated ``Attachment A.'' Within eight calendar 
days after receipt or as soon as practicable, the General Counsel or 
Director, as appropriate, shall either grant the petition to revoke or 
modify in its entirety or make a proposed determination on the petition, 
stating reasons, and submit the petition and proposed determination to 
the Commission for its review and final determination. A Commissioner 
who has issued a subpoena shall abstain from reviewing a petition 
concerning that subpoena. The Commission shall serve a copy of the final 
determination on the petitioner.
    (c) Upon the failure of any person to comply with a subpoena issued 
under this section, the Commission may utilize the procedures of section 
11(2) of the National Labor Relations Act, as amended, 29 U.S.C. 161(2), 
to compel enforcement of the subpoena.
    (d) If a person who is served with a subpoena does not comply with 
the subpoena and does not petition for its revocation or modification 
pursuant to paragraph (b) of this section, the General Council or his or 
her designee may institute proceedings to enforce the subpoena in 
accordance with the provisions of paragraph (c) of this section. 
Likewise, if a person who is served with a subpoena petitions for 
revocation or modification of the subpoena pursuant to paragraph (b), 
and the Commission issues a final determination upholding all or part of 
the subpoena, and the person does not comply with the subpoena, the 
General Council or his or her designee may institute proceedings to 
enforce the subpoena in accordance with paragraph (c) of this section.
    (e) Witnesses who are subpoenaed pursuant to Sec. 1601.16(a) shall 
be entitled to the same fees and mileage that are paid witnesses in the 
courts of the United States.
[43 FR 30798, July 18, 1978, as amended at 47 FR 46275, Oct. 18, 1982; 
51 FR 29098, Aug. 14, 1986; 54 FR 32061, Aug. 4, 1989; 55 FR 14245, Apr. 
17, 1990; 56 FR 9624, Mar. 7, 1991]

[[Page 145]]



Sec. 1601.17  Witnesses for public hearings.

    (a) To effectuate the purposes of title VII and the ADA, any 
Commissioner, upon approval of the Commission, may demand in writing 
that a person appear at a stated time and place within the State in 
which such person resides, transacts business, or is served with the 
demand, for the purpose of testifying under oath before the Commission 
or its representative. If there be noncompliance with any such demand, 
the Commission may utilize the procedures of section 710 of title VII 
and the ADA to compel such person to testify. A transcript of testimony 
may be made a part of the record of each investigation.
    (b) Witnesses who testify as provided in paragraph (a) of this 
section shall be entitled to the same fees and mileage that are paid 
witnesses in the courts of the United States.
[42 FR 55388, Oct. 14, 1977, as amended at 56 FR 9624, Mar. 7, 1991]

                 Procedure Following Filing of a Charge



Sec. 1601.18  Dismissal: Procedure and authority.

    (a) Where a charge on its face, or as amplified by the statements of 
the person claiming to be aggrieved discloses, or where after 
investigation the Commission determines, that the charge and every 
portion thereof is not timely filed, or otherwise fails to state a claim 
under title VII or the ADA, the Commission shall dismiss the charge. A 
charge which raises a claim exclusively under section 717 of title VII 
or the Rehabilitation Act shall not be taken and persons seeking to 
raise such claims shall be referred to the appropriate Federal agency.
    (b) Where the person claiming to be aggrieved fails to provide 
requested necessary information, fails or refuses to appear or to be 
available for interviews or conferences as necessary, fails or refuses 
to provide information requested by the Commission pursuant to 
Sec. 1601.15(b), or otherwise refuses to cooperate to the extent that 
the Commission is unable to resolve the charge, and after due notice, 
the charging party has had 30 days in which to respond, the Commission 
may dismiss the charge.
    (c) Where the person claiming to be aggrieved cannot be located, the 
Commission may dismiss the charge: Provided, That reasonable efforts 
have been made to locate the charging party and the charging party has 
not responded within 30 days to a notice sent by the Commission to the 
person's last known address.
    (d) Where a respondent has made a settlement offer described in 
Sec. 1601.20 which is in writing and specific in its terms, the 
Commission may dismiss the charge if the person claiming to be aggrieved 
refuses to accept the offer: Provided, That the offer would afford full 
relief for the harm alleged by the person claiming to be aggrieved and 
the person claiming to be aggrieved fails to accept such an offer within 
30 days after actual notice of the offer.
    (e) Written notice of disposition, pursuant to paragraphs (a), (b), 
(c) or (d) of this section, shall be issued to the person claiming to be 
aggrieved and to the person making the charge on behalf of such person, 
where applicable; in the case of a Commissioner charge, to all persons 
specified in Sec. 1601.28(b)(2); and to the respondent. Appropriate 
notices of right to sue shall be issued pursuant to Sec. 1601.28.
    (f) The Commission hereby delegates authority to District Directors; 
the Program Director, Office of Program Operations or upon delegation, 
the Director of Systemic Programs, Office of Program Operations or the 
Directors, Field Management Programs, Office of Program Operations, as 
appropriate, to dismiss charges, as limited by Sec. 1601.21(d). The 
Commission hereby delegates authority to Area Directors or Local 
Director to dismiss charges pursuant to paragraphs (a), (b) and (c) of 
this section, as limited by Sec. 1601.21(d). The authority of the 
Commission to reconsider decisions and determinations as set forth in 
Sec. 1601.21 (b) and (d) shall be applicable to this section.
[42 FR 55388, Oct. 14, 1977, as amended at 48 FR 19165, Apr. 28, 1983; 
49 FR 13024, Apr. 2, 1984. Redesignated and amended at 52 FR 26957, July 
17, 1987; 54 FR 32061, Aug. 4, 1989; 55 FR 26684, June 29, 1990; 56 FR 
9624, 9625, Mar. 7, 1991]

[[Page 146]]



Sec. 1601.19  No cause determinations: Procedure and authority.

    (a) Where the Commission completes its investigation of a charge and 
finds that there is not reasonable cause to believe that an unlawful 
employment practice has occurred or is occurring as to all issues 
addressed in the determination, the Commission shall issue a letter of 
determination to all parties to the charge indicating the finding. The 
Commission's letter of determination shall be the final determination of 
the Commission. The letter of determination shall inform the person 
claiming to be aggrieved or the person on whose behalf a charge was 
filed of the right to sue in Federal district court within 90 days of 
receipt of the letter of determination. The Commission hereby delegates 
authority to the Program Director, Office of Program Operations, or upon 
delegation to the Directors, Field Management Programs, Director, 
Determinations Review Program, and Dirstrict Directors or upon 
delegation to Area Directors or Local Directors, except in those cases 
involving issues currently designated by the Commission for priority 
review, to issue no cause letters of determination.
    (b) The Commission may on its own initiative reconsider a final 
determination of no reasonable cause and an issuing director may, on his 
or her own initiative reconsider his or her final determination of no 
reasonable cause. If the Commission or an issuing director decides to 
reconsider a final no cause determination, a notice of intent to 
reconsider shall promptly issue to all parties to the charge. If such 
notice of intent to reconsider is issued within 90 days of receipt of 
the final no cause determination, and the person claiming to be 
aggrieved or the person on whose behalf a charge was filed has not filed 
suit and did not request and receive a notice of right to sue pursuant 
to Sec. 1601.28(a) (1) or (2), the notice of intent to reconsider shall 
vacate the letter of determination and shall revoke the charging party's 
right to bring suit within 90 days. If the 90 day suit period has 
expired, the charging party has filed suit, or the charging party had 
requested a notice of right to sue pursuant to Sec. 1601.28(a) (1) or 
(2), the notice of intent to reconsider shall vacate the letter of 
determination, but shall not revoke the charging party's right to sue in 
90 days. After reconsideration, the Commission or issuing director shall 
issue a new determination. In those circumstances where the charging 
party's right to bring suit in 90 days was revoked, the determination 
shall include notice that a new 90 day suit period shall begin upon the 
charging party's receipt of the determination. Where a member of the 
Commission has filed a Commissioner charge, he or she shall abstain from 
making a determination in that case.
[52 FR 26958, July 17, 1987, as amended at 54 FR 32061, Aug. 4, 1989; 56 
FR 9625, Mar. 7, 1991; 56 FR 14470, Apr. 10, 1991]



Sec. 1601.20  Negotiated settlement.

    (a) Prior to the issuance of a determination as to reasonable cause 
the Commission may encourage the parties to settle the charge on terms 
that are mutually agreeable. District Directors, Area Directors, Local 
Directors, the Program Director, Office of Program Operations, Director 
of Systemic Programs, Office of Program Operations, or Directors, Field 
Management Programs, Office of Program Operations, or their designees, 
shall have the authority to sign any settlement agreement which is 
agreeable to both parties. When the Commission agrees in any negotiated 
settlement not to process that charge further, the Commission's 
agreement shall be in consideration for the promises made by theother 
parties to the agreement. Such an agreement shall not affect the 
processing of any other charge, including, but not limited to, a 
Commissioner charge or a charge, the allegations of which are like or 
related to the individual allegations settled.
    (b) In the alternative, the Commission may facilitate a settlement 
between the person claiming to be aggrieved and the respondent by 
permitting withdrawal of the charge pursuant to Sec. 1601.10.
[44 FR 4669, Jan. 23, 1979, as amended at 47 FR 46275, Oct. 18, 1982; 49 
FR 13024, Apr. 2, 1984; 49 FR 13874, Apr. 9, 1984; 54 FR 32061, Aug. 4, 
1989]

[[Page 147]]



Sec. 1601.21  Reasonable cause determination: Procedure and authority.

    (a) After completing its investigation, where the Commission has not 
settled or dismissed a charge or made a no cause finding as to every 
allegation addressed in the determination under Sec. 1601.19, the 
Commission shall issue a determination that reasonable cause exists to 
believe that an unlawful employment practice has occurred or is 
occurring under title VII or the ADA. A determination finding reasonable 
cause is based on, and limited to, evidence obtained by the Commission 
and does not reflect any judgment on the merits of allegations not 
addressed in the determination.
    (b) The Commission shall provide prompt notification of its 
determination under paragraph (a) of this section to the person claiming 
to be aggrieved, the person making the charge on behalf of such person, 
if any, and the respondent, or in the case of a Commissioner charge, the 
person named in the charge or identified by the Commission in the third 
party certificate, if any, and the respondent. The Commission may, 
however, on its own initiative reconsider its decision or the 
determination of any of its designated officers who have authority to 
issue Letters of Determination, Except that the Commission will not 
reconsider determinations of reasonable cause previously issued against 
a government, governmental entity or political subdivision after a 
failure of conciliation as set forth in Sec. 1601.25.
    (1) In cases where the Commission decides to reconsider a dismissal 
or a determination finding reasonable cause to believe a charge is true, 
a notice of intent to reconsider will promptly issue. If such notice of 
intent to reconsider is issued within 90 days from receipt of a notice 
of right to sue and the charging party has not filed suit and did not 
receive a notice of right to sue pursuant to Sec. 1601.28(a)(1) or (2), 
the notice of intent to reconsider will vacate the dismissal or letter 
of determination and revoke the notice of right to sue. If the 90 day 
period has expired, the charging party has filed suit, or the charging 
party had requested a notice of right to sue pursuant to 
Sec. 1601.28(a)(1) or (2), the notice of intent to reconsider will 
vacate the dismissal or letter of determination, but will not revoke the 
notice of right to sue. After reconsideration the Commission will issue 
a determination anew. In those circumstances where the notice of right 
to sue has been revoked, the Commision will, in accordance with 
Sec. 1601.28, issue a notice of right to sue anew which will provide the 
charging party with 90 days within which to bring suit.
    (2) The Commission shall provide prompt notification of its intent 
to reconsider, which is effective upon issuance, and its final decision 
after reconsideration to the person claiming to be aggrieved, the person 
making the charge on behalf of such person, if any, and the respondent, 
or in the case of a Commissioner charge, the person named in the charge 
or identified by the Commissioner in the third-party certificate, if 
any, and the respondent.
    (c) Where a member of the Commission has filed a Commissioner 
charge, he or she shall abstain from making a determination in that 
case.
    (d) The Commission hereby delegates to District Directors, or upon 
delegation, Area Directors or Local Directors; and the Program Director, 
Office of Program Operations, or upon delegation, the Directors, Field 
Management Programs, Office of Program Operations, the authority, except 
in those cases involving issues currently designated by the Commission 
for priority review, upon completion of an investigation, to make a 
determination finding reasonable cause, issue a cause letter of 
determination and serve a copy of the determination upon the parties. 
Each determination issued under this section is final when the letter of 
determination is issued. However, the Program Director, Office of 
Program Operations or upon delegation, the Director of Systemic 
Programs, Office of Program Operations or the Directors, Field 
Management Programs, Office of Program Operations; each District 
Director; each Area Director and each Local Director, for determinations 
issued by his or her office, may on his or her own initiative reconsider 
determinations, Except that

[[Page 148]]

such directors may not reconsider determinations of reasonable cause 
previously issued against a government, governmental entity or political 
subdivision after a failure of conciliation as set forth in 
Sec. 1601.25.
    (1) In cases where the issuing Director decides to reconsider a 
dismissal or a determination finding reasonable cause to believe a 
charge is true, a notice of intent to reconsider will promptly issue. If 
such notice of intent to reconsider is issued within 90 days from 
receipt of a notice of right to sue and the charging party has not filed 
suit and did not request a notice of right to sue pursuant to 
Sec. 1601.28(a)(1) or (2), the notice of intent to reconsider will 
vacate the dismissal or letter of determination and revoke the notice of 
right to sue. If the 90 day period has expired, the charging party has 
filed suit, or the charging party had received a notice of right to sue 
pursuant to Sec. 1601.28(a)(1) or (2), the notice of intent to 
reconsider will vacate the dismissal or letter of determination, but 
will not revoke the notice of right to sue. After reconsideration the 
issuing Director will issue a determination anew. In those circumstances 
where the notice of right to sue has been revoked, the issuing Director 
will, in accordance with Sec. 1601.28, issue a notice of right to sue 
anew which will provide the charging party with 90 days within which to 
bring suit.
    (2) When the issuing Director does reconsider, he or she shall 
provide prompt notification of his or her intent to reconsider, which is 
effective upon issuance, and final decision after reconsideration to the 
person claiming to be aggrieved, the person making the charge on behalf 
of such person, if any, and the respondent, or in the charge or 
identified by the Commissioner in the third party certificate, if any, 
and the respondent.
    (e) In making a determination as to whether reasonable cause exists, 
substantial weight shall be accorded final findings and orders made by 
designated FEP agencies to which the Commission defers charges pursuant 
to Sec. 1601.13. For the purposes of this section, the following 
definitions shall apply:
    (1) ``Final findings and orders'' shall mean:
    (i) The findings of fact and order incident thereto issued by a FEP 
agency on the merits of a charge; or
    (ii) The consent order or consent decree entered into by the FEP 
agency on the merits of a charge.

Provided, however, That no findings and order of a FEP agency shall be 
considered final for purposes of this section unless the FEP agency 
shall have served a copy of such findings and order upon the Commission 
and upon the person claiming to be aggrieved and shall have informed 
such person of his or her rights of appeal or to request 
reconsideration, or rehearing or similar rights; and the time for such 
appeal, reconsideration, or rehearing request shall have expired or the 
issues of such appeal, reconsideration or rehearing shall have been 
determined.
    (2) ``Substantial weight'' shall mean that such full and careful 
consideration shall be accorded to final findings and orders, as defined 
above, as is appropriate in light of the facts supporting them when they 
meet all of the prerequisites set forth below:
    (i) The proceedings were fair and regular; and
    (ii) The practices prohibited by the State or local law are 
comparable in scope to the practices prohibited by Federal law; and
    (iii) The final findings and order serve the interest of the 
effective enforcement of title VII or the ADA: Provided, That giving 
substantial weight to final findings and orders of a FEP agency does not 
include according weight, for purposes of applying Federal law, to such 
Agency's conclusions of law.
[42 FR 55388, Oct. 14, 1977, as amended at 45 FR 73036, Nov. 4, 1980; 48 
FR 19165, Apr. 28, 1983; 49 FR 13024, Apr. 2, 1984; 51 FR 18778, May 22, 
1986; 52 FR 26959, July 17, 1987; 53 FR 3370, Feb. 7, 1988; 54 FR 32061, 
Aug. 4, 1989; 56 FR 9624, 9625, Mar. 7, 1991]



Sec. 1601.22  Confidentiality.

    Neither a charge, nor information obtained during the investigation 
of a charge of employment discrimination under the ADA or title VII, nor 
information obtained from records required to be kept or reports 
required to be filed pursuant to the ADA or title VII,

[[Page 149]]

shall be made matters of public information by the Commission prior to 
the institution of any proceeding under the ADA or title VII involving 
such charge or information. This provision does not apply to such 
earlier disclosures to charging parties, or their attorneys, respondents 
or their attorneys, or witnesses where disclosure is deemed necessary 
for securing appropriate relief. This provision also does not apply to 
such earlier disclosures to representatives of interested Federal, 
State, and local authorities as may be appropriate or necessary to the 
carrying out of the Commission's function under title VII or the ADA, 
nor to the publication of data derived from such information in a form 
which does not reveal the identity of charging parties, respondents, or 
persons supplying the information.
[42 FR 55388, Oct. 14, 1977, as amended at 56 FR 9624, 9625, Mar. 7, 
1991]

           Procedure To Rectify Unlawful Employment Practices



Sec. 1601.23  Preliminary or temporary relief.

    (a) In the interest of the expeditious procedure required by section 
706(f)(2) of title VII, the Commission hereby delegates to the Program 
Director, Office of Program Operations or upon delegation, the Director 
of Systemic Programs, Office of Program Operations or the Directors, 
Field Management Programs, Office of Program Operations and each 
District Director the authority, upon the basis of a preliminary 
investigation, to make the initial determination on its behalf that 
prompt judicial action is necessary to carry out the purposes of the Act 
and recommend such action to the General Counsel. The Commission 
authorizes the General Counsel to institute an appropriate action on 
behalf of the Commission in such a case not involving a government, 
governmental agency, or political subdivision.
    (b) In a case involving a government, governmental agency, or 
political subdivision, any recommendation for preliminary or temporary 
relief shall be transmitted directly to the Attorney General by the 
Program Director, Office of Program Operations or upon delegation, the 
Director of Systemic Programs, Office of Program Operations or the 
Directors, Field Management Programs, Office of Program Operations or 
the District Director.
    (c) Nothing in this section shall be construed to prohibit private 
individuals from exercising their rights to seek temporary or 
preliminary relief on their own motion.
[42 FR 55388, Oct. 14, 1977, as amended at 47 FR 46275, Oct. 18, 1982; 
54 FR 32061, Aug. 4, 1989]



Sec. 1601.24  Conciliation: Procedure and authority.

    (a) Where the Commission determines that there is reasonable cause 
to believe that an unlawful employment practice has occurred or is 
occurring, the Commission shall endeavor to eliminate such practice by 
informal methods of conference, conciliation and persuasion. In 
conciliating a case in which a determination of reasonable cause has 
been made, the Commission shall attempt to achieve a just resolution of 
all violations found and to obtain agreement that the respondent will 
eliminate the unlawful employment practice and provide appropriate 
affirmative relief. Where such conciliation attempts are successful, the 
terms of the conciliation agreement shall be reduced to writing and 
shall be signed by the Commission's designated representative and the 
parties. A copy of the signed agreement shall be sent to the respondent 
and the person claiming to be aggrieved. Where a charge has been filed 
on behalf of a person claiming to be aggrieved, the conciliation 
agreement may be signed by the person filing the charge or by the person 
on whose behalf the charge was filed.
    (b) District Directors; the Program Director, Office of Program 
Operations; or the Directors, Field Management Programs, Office of 
Program Operations; or their designees, are hereby delegated authority 
to enter into informal conciliation efforts. District Directors or upon 
delegation, Area Directors, or Local Directors, the Program Director, 
Office of Program Operations; the Director of Systemic Programs, Office 
of Program Operations; or the Directors, Field Management Programs, 
Office of Program Operations are hereby delegated the authority to 
negotiate

[[Page 150]]

and sign conciliation agreements. When a suit brought by the Commission 
is in litigation, the General Counsel is hereby delegated the authority 
to negotiate and sign conciliation agreements where, pursuant to section 
706(f)(1) of title VII, a court has stayed processings in the case 
pending further efforts of the Commission to obtain voluntary 
compliance.
    (c) Proof of compliance with title VII or the ADA in accordance with 
the terms of the agreement shall be obtained by the Commission before 
the case is closed. In those instances in which a person claiming to be 
aggrieved or a member of the class claimed to be aggrieved by the 
practices alleged in the charge is not a party to such an agreement, the 
agreement shall not extinguish or in any way prejudice the rights of 
such person to proceed in court under section 706(f)(1) of title VII or 
the ADA.
[42 FR 55388, Oct. 14, 1977, as amended at 48 FR 19165, Apr. 28, 1983; 
49 FR 13024, Apr. 2, 1984; 49 FR 13874, Apr. 9, 1984; 52 FR 26959, July 
17, 1987; 54 FR 32061, Aug. 4, 1989; 56 FR 9624, 9625, Mar. 7, 1991]



Sec. 1601.25  Failure of conciliation; notice.

    Where the Commission is unable to obtain voluntary compliance as 
provided by title VII or the ADA and it determines that further efforts 
to do so would be futile or nonproductive, it shall, through the 
appropriate District Director, the Program Director, Office of Program 
Operations, Director of Systemic Programs, Office of Program Operations, 
or Directors, Field Management Programs, Office of Program Operations, 
or their designees, so notify the respondent in writing.
[42 FR 55388, Oct. 14, 1977, as amended at 47 FR 46275, Oct. 18, 1982; 
54 FR 32061, Aug. 4, 1989; 56 FR 9624, Mar. 7, 1991]



Sec. 1601.26  Confidentiality of endeavors.

    (a) Nothing that is said or done during and as part of the informal 
endeavors of the Commission to eliminate unlawful employment practices 
by informal methods of conference, conciliation, and persuasion may be 
made a matter of public information by the Commission, its officers or 
employees, or used as evidence in a subsequent proceeding without the 
written consent of the persons concerned. This provision does not apply 
to such disclosures to the representatives of Federal, State or local 
agencies as may be appropriate or necessary to the carrying out of the 
Commission's functions under title VII or the ADA: Provided, however, 
That the Commission may refuse to make disclosures to any such agency 
which does not maintain the confidentiality of such endeavors in accord 
with this section or in any circumstances where the disclosures will not 
serve the purposes of the effective enforcement of title VII or the ADA.
    (b) Factual information obtained by the Commission during such 
informal endeavors, if such information is otherwise obtainable by the 
Commission under section 709 of title VII, for disclosure purposes will 
be considered by the Commission as obtained during the investigatory 
process.
[42 FR 55388, Oct. 14, 1977, as amended at 56 FR 9625, Mar. 7, 1991]

          Procedure Concerning the Institution of Civil Actions



Sec. 1601.27  Civil actions by the Commission.

    The Commission may bring a civil action against any respondent named 
in a charge not a government, governmental agency or political 
subdivision, after thirty (30) days from the date of the filing of a 
charge with the Commission unless a conciliation agreement acceptable to 
the Commission has been secured: Provided, however, That the Commission 
may seek preliminary or temporary relief pursuant to section 706(f)(2) 
of title VII, according to the procedures set forth in Sec. 1601.23 of 
this part, at any time.



Sec. 1601.28  Notice of right to sue: Procedure and authority.

    (a) Issuance of notice of right to sue upon request. (1) When a 
person claiming to be aggrieved requests, in writing, that a notice of 
right to sue be issued and the charge to which the request relates is 
filed against a respondent other than a government, governmental agency 
or political subdivision, the Commission shall promptly issue such 
notice as described in Sec. 1601.28(e)

[[Page 151]]

to all parties, at any time after the expiration of one hundred eighty 
(180) days from the date of filing of the charge with the Commission, or 
in the case of a Commissioner charge 180 days after the filing of the 
charge or 180 days after the expiration of any period of reference under 
section 706(d) of title VII as appropriate.
    (2) When a person claiming to be aggrieved requests, in writing, 
that a notice of right to sue be issued, and the charge to which the 
request relates is filed against a respondent other than a government, 
governmental agency or political subdivision, the Commission may issue 
such notice as described in Sec. 1601.28(e) with copies to all parties, 
at any time prior to the expiration of 180 days from the date of filing 
the charge with the Commission; provided, that the District Director, 
the Area Director, the Local Director, the Program Director, Office of 
Program Operations or upon delegation, the Director of Systemic 
Programs, Office of Program Operations or the Directors, Field 
Management Programs, Office of Program Operations has determined that it 
is probable that the Commission will be unable to complete its 
administrative processing of the charge within 180 days from the filing 
of the charge and has attached a written certificate to that effect.
    (3) Issuance of a notice of right to sue shall terminate further 
proceeding of any charge not a Commissioner charge unless the District 
Director; Area Director; Local Director; Program Director, Office of 
Program Operations or upon delegation, the Director of Systemic 
Programs, Office of Program Operations or the Directors, Field 
Management Programs, Office of Program Operations; or the General 
Counsel, determines at that time or at a later time that it would 
effectuate the purpose of title VII or the ADA to further process the 
charge. Issuance of a notice of right to sue shall not terminate the 
processing of a Commissioner charge.
    (4) The issuance of a notice of right to sue does not preclude the 
Commission from offering such assistance to a person issued such notice 
as the Commission deems necessary or appropriate.
    (b) Issuance of notice of right to sue following Commission 
disposition of charge. (1) Where the Commission has found reasonable 
cause to believe that title VII or the ADA has been violated, has been 
unable to obtain voluntary compliance with title VII or the ADA, and 
where the Commission has decided not to bring a civil action against the 
respondent, it will issue a notice of right to sue on the charge as 
described in Sec. 1601.28(e) to:
    (i) The person claiming to be aggrieved, or,
    (ii) In the case of a Commissioner charge, to any member of the 
class who is named in the charge, identified by the Commissioner in a 
third-party certificate, or otherwise identified by the Commision as a 
member of the class and provide a copy thereof to all parties.
    (2) Where the Commission has entered into a conciliation agreement 
to which the person claiming to be aggrieved is not a party, the 
Commission shall issue a notice of right to sue on the charge to the 
person claiming to be aggrieved.
    (3) Where the Commission has dismissed a charge pursuant to 
Sec. 1601.18, it shall issue a notice of right to sue as described in 
Sec. 1601.28(e) to:
    (i) The person claiming to be aggrieved, or,
    (ii) In the case of a Commissioner charge, to any member of the 
class who is named in the charge, identified by the Commissioner in a 
third-party certificate, or otherwise identified by the Commission as a 
member of the class, and provide a copy thereof to all parties.
    (4) The issuance of a notice of right to sue does not preclude the 
Commission from offering such assistance to a person issued such notice 
as the Commission deems necessary or appropriate.
    (c) The Commission hereby delegates authority to District Directors, 
Area Directors, Local Directors, the Program Director, Office of Program 
Operations, Director of Systemic Programs, Office of Program Operations, 
or Directors, Field Management Programs, Office of Program Operations, 
or their designees, to issue notices of right to sue, in accordance with 
this section, on

[[Page 152]]

behalf of the Commission. Where a charge has been filed on behalf of a 
person claiming to be aggrieved, the notice of right to sue shall be 
issued in the name of the person or organization who filed the 
charge.1
---------------------------------------------------------------------------

    1 Formal Ratification-Notice is hereby given that the EEOC at 
a Commission meeting on March 12, 1974, formally ratified the acts of 
the District Directors of EEOC District Offices in issuing notices of 
right to sue pursuant to Commission practice instituted on October 15, 
1969, and continued through March 18, 1974. 39 FR 10178 (March 18, 
1974).
---------------------------------------------------------------------------

    (d) Notices of right-of-sue for charges against Governmental 
respondents. In all cases where the respondent is a government, 
governmental agency, or a political subivision, the Commission will 
issue the notice of right to sue when there has been a dismissal of a 
charge. The notice of right to sue will be issued in accordance with 
Sec. 1601.28(e). In all other cases where the respondent is a 
government, governmental agency, or political subdivision, the Attorney 
General will issue the notice of right to sue, including the following 
cases:
    (1) When there has been a finding of reasonable cause by the 
Commission, there has been a failure of conciliation, and the Attorney 
General has decided not to file a civil action; and
    (2) Where a charging party has requested a notice of right to sue 
pursuant to Sec. 1601.28(a)(1) or (2). In cases where a charge of 
discrimination results in a finding of cause in part and no cause in 
part, the case will be treated as a ``cause'' determination and will be 
referred to the Attorney General.
    (e) Content of notice of right to sue. The notice of right to sue 
shall include:
    (1) Authorization to the aggrieved person to bring a civil action 
under title VII or the ADA pursuant to section 706(f)(1) of title VII or 
section 107 of the ADA within 90 days from receipt of such 
authorization;
    (2) Advice concerning the institution of such civil action by the 
person claiming to be aggrieved, where appropriate;
    (3) A copy of the charge;
    (4) The Commission's decision, determination, or dismissal, as 
appropriate.
[42 FR 55388, Oct. 14, 1977, as amended at 44 FR 4669, Jan. 23, 1979; 45 
FR 73037, Nov. 4, 1980; 47 FR 46275, Oct. 18, 1982; 48 FR 19165, Apr. 
28, 1983; 49 FR 13024, Apr. 2, 1984; 49 FR 13874, Apr. 9, 1984; 52 FR 
26959, July 17, 1987; 54 FR 32061, Aug. 4, 1989; 56 FR 9624, 9625, Mar. 
7, 1991]



Sec. 1601.29  Referral to the Attorney General.

    If the Commission is unable to obtain voluntary compliance in a 
charge involving a government, governmental agency or political 
subdivision, it shall inform the Attorney General of the appropriate 
facts in the case with recommendations for the institution of a civil 
action by him or her against such respondent or for intervention by him 
or her in a civil action previously instituted by the person claiming to 
be aggrieved.



  Subpart C--Notices to Employees, Applicants for Employment and Union 
                                 Members



Sec. 1601.30  Notices to be posted.

    (a) Every employer, employment agency, labor organization, and joint 
labor-management committee controlling an apprenticeship or other 
training program that has an obligation under title VII or the ADA shall 
post and keep posted in conspicuous places upon its premises notices in 
an accessible format, to be prepared or approved by the Commission, 
describing the applicable provisions of title VII and the ADA. Such 
notice must be posted in prominent and accessible places where notices 
to employees, applicants and members are cusomarily maintained.
    (b) Section 711(b) of Title VII makes failure to comply with this 
section punishable by a fine of not more than $110 for each separate 
offense.
[42 FR 55388, Oct. 14, 1977, as amended at 55 FR 2518, Jan. 25, 1990; 56 
FR 9625, Mar. 7, 1991; 62 FR 26934, May 16, 1997]

[[Page 153]]



                    Subpart D--Construction of Rules



Sec. 1601.34  Rules to be liberally construed.

    These rules and regulations shall be liberally construed to 
effectuate the purpose and provisions of title VII and the ADA.
[44 FR 4670, Jan. 23, 1979. Redesignated and amended at 56 FR 9624, 
9625, Mar. 7, 1991]



           Subpart E--Issuance, Amendment, or Repeal of Rules



Sec. 1601.35  Petitions.

    Any interested person may petition the Commission, in writing, for 
the issuance, amendment, or repeal of a rule or regulation. Such 
petition shall be filed with the Equal Employment Opportunity 
Commission, 1801 L Street NW., Washington DC 20507, and shall state the 
rule or regulation proposed to be issued, amended, or repealed, together 
with a statement of grounds in support of such petition.
[42 FR 55388, Oct. 14, 1977, as amended at 54 FR 32061, Aug. 4, 1989. 
Redesignated at 56 FR 9625, Mar. 7, 1991]



Sec. 1601.36  Action on petition.

    Upon the filing of such petition, the Commission shall consider the 
same and may thereupon either grant or deny the petition in whole or in 
part, conduct an appropriate proceeding thereon, or make other 
disposition of the petition. Should the petition be denied in whole or 
in part, prompt notice shall be given of the denial, accompanied by a 
simple statement of the grounds unless the denial be self-explanatory.
[42 FR 55388, Oct. 14, 1977. Redesignated at 56 FR 9625, Mar. 7, 1991]



                          Subpart F [Reserved]



              Subpart G--FEP Agency Designation Procedures



Sec. 1601.70  FEP agency qualifications.

    (a) State and local fair employment practice agencies or authorities 
which qualify under section 706(c) of title VII and this section shall 
be designated as ``FEP agencies.'' The qualifications for designation 
under section 706(c) are as follows:
    (1) That the State or political subdivision has a fair employment 
practice law which makes unlawful employment practices based upon race, 
color, religion, sex, national origin or disability; and
    (2) That the State or political subdivision has either established a 
State or local authority or authorized an existing State or local 
authority that is empowered with respect to employment practices found 
to be unlawful, to do one of three things: To grant relief from the 
practice; to seek relief from the practice; or to institute criminal 
proceedings with respect to the practice.
    (b) Any State or local agency or authority seeking FEP agency 
designation should submit a written request to the Chairman of the 
Commission. However, if the Commission is aware that an agency or 
authority meets the above criteria for FEP agency designation, the 
Commission shall defer charges to such agency or authority even though 
no request for FEP agency designation has been made.
    (c) A request for FEP agency designation should include a copy of 
the agency's fair employment practices law and any rules, regulations 
and guidelines of general interpretation issued pursuant thereto. 
Submission of such data will allow the Commission to ascertain which 
employment practices are made unlawful and which bases are covered by 
the State or local entity. Agencies or authorities are requested, but 
not required, to provide the following helpful information:
    (1) A chart of the organization of the agency or authority 
responsible for administering and enforcing said law;
    (2) The amount of funds made available to or allocated by the agency 
or authority for fair employment purposes;
    (3) The identity and telephone number of the agency (authority) 
representative whom the Commission may contact with reference to any 
legal or other questions that may arise regarding designation;
    (4) A detailed statement as to how the agency or authority meets the

[[Page 154]]

qualifications of paragraph (a) (1) and (2) of Sec. 1601.70.
    (d) Where both State and local FEP agencies exist, the Commission 
reserves the right to defer to the State FEP agency only. However, where 
there exist agencies of concurrent jurisdiction, the Commission may 
defer to the FEP agency which would best serve the purposes of title VII 
or the ADA, or to both.
    (e) The Chairman or his or her designee, will provide to the 
Attorney General of the concerned State (and corporation counsel of a 
concerned local government, if appropriate) an opportunity to comment 
upon aspects of State or local law which might affect the qualifications 
of any new agency in that State otherwise cognizable under this section.
[45 FR 33606, May 20, 1980, as amended at 47 FR 53733, Nov. 29, 1982. 
Redesignated and amended at 56 FR 9625, Mar. 7, 1991; 60 FR 46220, Sept. 
6, 1995]



Sec. 1601.71  FEP agency notification.

    (a) When the Commission determines that an agency or authority meets 
the criteria outlined in section 706(c) of title VII and Sec. 1601.70, 
the Commission shall so notify the agency by letter and shall notify the 
public by publication in the Federal Register of an amendment to 
Sec. 1601.74.
    (b) Where the Commission determines that an agency or authority does 
not come within the definition of a FEP agency for purposes of a 
particular basis of discrimination or where the agency or authority 
applies for designation as a Notice Agency, the Commission shall notify 
that agency or authority of the filing of charges for which the agency 
or authority is not a FEP agency. For such purposes that State or local 
agency will be deemed a Notice Agency.
    (c) Where the Chairman becomes aware of events which lead him or her 
to believe that a deferral Agency no longer meets the requirements of a 
FEP agency and should no longer be considered a FEP agency, the Chairman 
will so notify the affected agency and give it 15 days in which to 
respond to the preliminary findings. If the Chairman deems necessary, he 
or she may convene a hearing for the purpose of clarifying the matter. 
The Commission shall render a final determination regarding continuation 
of the agency as a FEP agency.
[45 FR 33606, May 20, 1980, as amended at 47 FR 53733, Nov. 29, 1982. 
Redesignated at 56 FR 9625, Mar. 7, 1991; 60 FR 46220, Sept. 6, 1995]



Secs. 1601.72--1601.73  [Reserved]



Sec. 1601.74  Designated and notice agencies.

    (a) The designated FEP agencies are:

Alaska Commission for Human Rights
Alexandria (VA) Human Rights Office
Allentown (PA) Human Relations Commission
Anchorage (AK) Equal Rights Commission
Anderson (IN) Human Relations Commission
Arizona Civil Rights Division
Arlington County (VA) Human Rights Commission 2
---------------------------------------------------------------------------

    2 The Arlington Human Rights Commission has been designated as 
a FEP agency for all charges except charges alleging a violation of 
title VII by a government, government agency, or political subdivision 
of the State of Virginia.
    For these types of charges it shall be deemed a ``Notice agency'' 
pursuant to 29 CFR 1601.71(b).
---------------------------------------------------------------------------

Austin (TX) Human Relations Commission 3
---------------------------------------------------------------------------

    3 The Austin (TX) Human Relations Commission has been 
designated as a FEP agency for all charges except charges alleging a 
violation of title VII by a government, government agency, or political 
subdivision of the State of Texas.
    For these types of charges it shall be deemed a ``Notice Agency,'' 
pursuant to 29 CFR 1601.71(b).
---------------------------------------------------------------------------

Baltimore (MD) Community Relations Commission
Bloomington (IL) Human Relations Commission
Bloomington (IN) Human Rights Commission
Broward County (FL) Human Relations Commission
California Department of Fair Employment and Housing
Charleston (WV) Human Rights Commission
City of Salina (KS) Human Relations Commission and Department
Clearwater (FL) Office of Community Relations
Colorado Civil Rights Commission
Colorado State Personnel Board 4
Commonwealth of Puerto Rico Department of Labor 5
---------------------------------------------------------------------------

    5 The Commonwealth of Puerto Rico Department of Labor has been 
designated as a FEP agency for all charges except (1) charges alleging a 
``labor union'' has violated title VII; (2) charges alleging an 
``Employment Agency'' has violated title VII; (3) charges alleging 
violations of title VII by agencies or instrumentalities of the 
Government of Puerto Rico when they are not operating as private 
businesses or enterprises; and (4) all charges alleging violations of 
sec. 704(a) or title VII.
    For these types of charges it shall be deemed a ``Notice Agency,'' 
pursuant to 29 CFR 1601.71(b).

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[[Page 155]]

Connecticut Commission on Human Rights and Opportunity
Corpus Christi (TX) Human Relations Commission
Dade County (FL) Fair Housing and Employment Commission
Delaware Department of Labor
District of Columbia Office of Human Rights
Durham (NC) Human Relations Commission
East Chicago (IN) Human Rights Commission
Evansville (IN) Human Relations Commission
Fairfax County (VA) Human Rights Commission
Florida Commission on Human Relations
Fort Dodge-Webster County (IA) Human Rights Commission
Fort Wayne (IN) Metropolitan Human Relations Commission
Fort Worth (TX) Human Relations Commission
Gary (IN) Human Relations Commission
Georgia Office of Fair Employment Practices 6
---------------------------------------------------------------------------

    6 The Georgia Office of Fair Employment Practices has been 
designated as a FEP agency for all charges covering the employment 
practices of the departments of the State of Georgia only.
---------------------------------------------------------------------------

Hawaii Department of Labor and Industrial Relations 7
---------------------------------------------------------------------------

    7 The Hawaii Department of Labor and Industrial Relations has 
been granted FEP agency designation of all charges except those filed 
against units of the State and local government, in which case it shall 
be deemed a ``Notice Agency.''
---------------------------------------------------------------------------

Hillsborough County (FL) Equal Opportunity and Human Relations 
Department
Howard County (MD) Human Rights Commission 8
---------------------------------------------------------------------------

    8 The Howard County (MD) Human Rights Commission has been 
granted designation of all charges except those filed against agencies 
of Howard County in which case it shall be deemed a ``Notice Agency.''
---------------------------------------------------------------------------

Huntington (WV) Human Relations Commission
Idaho Human Rights Commission
Illinois Department of Human Rights
Indiana Civil Rights Commission
Iowa Civil Rights Commission
Jacksonville (FL) Equal Employment Opportunity Commission
Kansas City (KS) Human Relations Department
Kansas City (MO) Human Relations Department
Kansas Human Rights Commission
Kentucky Commission on Human Rights
Lee County (FL) Department of Equal Opportunity
Lexington-Fayette (KY) Urban County Human Rights Commission
Lincoln (NE) Commission on Human Rights 9
---------------------------------------------------------------------------

    9 The Lincoln (NE) Commission on Human Rights has been 
designated as a FEP agency for all charges except (1) a charge by an 
``applicant for membership'' alleging a violation of section 703(c)(2) 
of title VII (2) a charge by an individual alleging that a ``joint 
labor-management committee'' has violated section 704(a) of title VII; 
and (3) a charge by an individual alleging that a ``joint labor-
management committee'' has violated section 704(b) of title VII.
    For those types of charges, it shall be deemed a ``Notice Agency,'' 
pursuant to 29 CFR 1601.71(b).

Louisiana (LA) Commission on Human Rights
Louisville and Jefferson County (KY) Human Relations Commission
Madison (WI) Equal Opportunities Commission
Maine Human Rights Commission
Maryland Commission on Human Relations
Mason City (IA) Human Rights Commission
Massachusetts Commission Against Discrimination
Michigan City (IN) Human Rights Commission
Michigan Department of Civil Rights
Minneapolis (MN) Department of Civil Rights
Minnesota Department of Human Rights
Missouri Commission on Human Rights
Montana Human Rights Division
Montgomery County (MD) Human Relations Commission
Nebraska Equal Opportunity Commission
Nevada Commission on Equal Rights of Citizens
New Hampshire Commission for Human Rights
New Hanover (NC) Human Relations Commission 10
---------------------------------------------------------------------------

    10 The New Hanover Human Relations Commission is being 
designated as a FEP agency for charges covering employment practices 
under section 706(c) of title VII and CFR 1601.70 et seq. (1980) within 
New Hanover County and ``such cities within the county as may by 
resolution of their governing boards, permit the Ordinance of the Board 
of Commissioners of New Hanover County entitled `Prohibition of 
Discrimination in Employment' to be applicable within such cities.'' 
This covers Wilmington City and the unincorporated area of New Hanover 
County. At this time Wrightsville Beach, Carolina Beach and Kure Beach 
are not included in this designation. For charges from these latter 
locales the New Hanover Human Relations Commission shall be deemed a 
``Notice Agency,'' pursuant to 29 CFR 1601.71(b).

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[[Page 156]]

New Haven (CT) Commission on Equal Opportunities
New Jersey Division of Civil Rights, Department of Law and Public Safety
New Mexico Human Rights Commission
New York City (NY) Commission on Human Rights
New York State Division on Human Rights
North Carolina State Office of Administrative Hearings
North Dakota Department of Labor
Ohio Civil Rights Commission
Oklahoma Human Rights Commission
Omaha (NE) Human Relations Department
Orange County (NC) Human Relations Commission
Oregon Bureau of Labor
Orlando (FL) Human Relations Department
Paducah (KY) Human Rights Commission
Palm Beach County (FL) Office of Equal Opportunity
Pennsylvania Human Relations Commission
Philadelphia (PA) Commission on Human Relations
Pinellas County (FL) Affirmative Action Office
Pittsburgh (PA) Commission on Human Rights
Prince George's County (MD) Human Relations Commission
Prince William County (VA) Human Rights Commission
Rhode Island Commission for Human Rights
Richmond County (GA) Human Rights Commission
Rockville (MD) Human Rights Commission
St. Louis (MO) Civil Rights Enforcement Agency
St. Paul (MN) Department of Human Rights
St. Petersburg (FL) Human Relations Division 11
---------------------------------------------------------------------------

    11 On June 1, 1979, the St. Petersburg Office of Human 
Relations was designated a FEP agency for all charges except those 
charges alleging retaliation under section 704(a) of title VII. 
Accordingly, ``for retaliation charges'' it was deemed a ``Notice 
Agency,'' pursuant to 29 CFR 1601.71(c). See 44 FR 31638. On May 23, 
1979, an ordinance amended the St. Petersburg, FL Human Relations law to 
include charges of retaliation. Therefore, retaliation charges will be 
deferred to that agency effective immediately.
---------------------------------------------------------------------------

Seattle (WA) Human Rights Commission
Sioux Falls (SD) Human Relations Commission
South Bend (IN) Human Rights Commission
South Carolina Human Affairs Commission
South Dakota Division of Human Rights
Springfield (OH) Human Relations Department
Tacoma (WA) Human Relations Commission
Tampa (FL) Office of Community Relations
Tennessee Commission for Human Development
Texas Commission on Human Rights
Topeka (KS) Human Relations Commission
Utah Industrial Commission, Anti-Discrimination Division
Vermont Attorney General's Office, Civil Rights Division
Vermont Human Rights Commission
Virgin Islands Department of Labor
Virginia Council on Human Rights
Washington Human Rights Commission
West Virginia Human Rights Commission
Wheeling (WV) Human Rights Commission
Wichita Falls (TX) Human Relations Commission
Wisconsin Equal Rights Division, Department of Industry, Labor and Human 
Relations
Wisconsin State Personnel Commission 12
---------------------------------------------------------------------------

    12 The Wisconsin State Personnel Commission is being 
designated as a FEP agency for all charges covering the employment 
practices of the agencies of the State of Wisconsin except those charges 
alleging retaliation under 704(a) of title VII. Accordingly, for 
retaliation charges, it shall be deemed a Notice Agency pursuant to 29 
CFR 1601.71(b).
---------------------------------------------------------------------------

Wyoming Fair Employment Practices Commission
York (PA) Human Relations Commission
Youngstown (OH) Human Relations Commission

    (b) The designated Notice Agencies are:

Arkansas Governor's Committee on Human Resources
Ohio Director of Industrial Relations
Raleigh (NC) Human Resources Department, Civil Rights Unit

(Sec. 713(a) 78 Stat. 265 (42 U.S.C. 2000e--12(a)))
[46 FR 33030, June 26, 1981. Redesignated at 56 FR 9625, Mar. 7, 1991]


    Editorial Note: For Federal Register citations affecting 
Sec. 1601.74, see the List of CFR Sections Affected in the Finding Aids 
section of this volume.



Sec. 1601.75  Certification of designated FEP agencies.

    (a) The Commission may certify designated FEP agencies based upon 
the past, satisfactory performance of those

[[Page 157]]

agencies. The effect of such certification is that the Commission shall 
accept the findings and resolutions of designated FEP agencies in regard 
to cases processed under contracts with those agencies without 
individual, case-by-case substantial weight review by the Commission 
except as provided in Secs. 1601.76 and 1601.77 of this part.
    (b) Eligibility criteria for certification of a designated FEP 
agency are as follows:
    (1) That the State or local agency has been a designated FEP agency 
for 4 years;
    (2) That the State or local designated FEP agency's work product has 
been evaluated within the past 12 months by the Systemic Investigations 
and Individual Compliance Programs, Office of Program Operations, and 
found to be in conformance with the Commission's Substantial Weight 
Review Procedures (EEOC Order 916); and
    (3) That the State or local designated FEP agency's findings and 
resolutions pursuant to its contract with the Commission, as provided in 
section 709(b) of title VII, have been accepted by the Commission in at 
least 95% of the cases processed by the FEP agency in the past 12 
months.
    (c) Upon Commission approval of a designated FEP agency for 
certification, it shall notify the agency of its cetification and shall 
effect such certification by issuance and publication of an amendment to 
Sec. 1601.80 of this part.
[46 FR 50367, Oct. 13, 1981, as amended at 54 FR 32061, Aug. 4, 1989. 
Redesignated and amended at 56 FR 9625, Mar. 7, 1991]



Sec. 1601.76  Right of party to request review.

    The Commission shall notify the parties whose cases are to be 
processed by the designated, certified FEP agency of their right, if 
aggrieved by the agency's final action, to request review by the 
Commission within 15 days of that action. The Commission, on receipt of 
a request for review, shall conduct such review in accord with the 
procedures set forth in the Substantial Weight Review Procedures (EEOC 
Order 916).
[46 FR 50367, Oct. 13, 1981. Redesignated at 56 FR 9625, Mar. 7, 1991]



Sec. 1601.77  Review by the Commission.

    After a designated FEP agency has been certified, the Commission 
shall accept the findings and resolutions of that agency as final in 
regard to all cases processed under contract with the Commission, as 
provided in section 709(b) of title VII, except that the Commission 
shall review charges closed by the certified FEP agency for lack of 
jurisdiction, as a result of unsuccessful conciliation, or where the 
charge involves an issue currently designated by the Commission for 
priority review.
[46 FR 50367, Oct. 13, 1981, as amended at 51 FR 18778, May 22, 1986. 
Redesignated at 56 FR 9625, Mar. 7, 1991]



Sec. 1601.78  Evaluation of designated FEP agencies certified by the Commission.

    To assure that designated FEP agencies certified by the Commission, 
as provided in Sec. 1601.75 of this part, continue to maintain 
performance consistent with the Commission's Substantial Weight Review 
Procedures (EEOC Order 916), the Commission shall provide for the 
evaluation of such agencies as follows:
    (a) Each designated FEP agency certified by the Commission shall be 
evaluated at least once every 3 years; and
    (b) Each designated FEP agency certified by the Commission shall be 
evaluated when, as a result of a substantial weight review requested as 
provided in Sec. 1601.76 of this part or required in regard to cases 
closed as a result of unsuccessful conciliation or for lack of 
jurisdiction as provided in Sec. 1601.77 of this part, the Commission 
rejects more than 5% of a designated FEP agency's findings at the end of 
the year or 20% or more of its findings for two consecutive quarters. 
When the Commission rejects 20% or more of a designated FEP agency's 
findings during any quarter, the Commission shall initiate an inquiry 
and may conduct an evaluation.
    (c) The Commission may, on its own motion, require an evaluaiton at 
any time.
[46 FR 50367, Oct. 13, 1981. Redesignated at 56 FR 9625, Mar. 7, 1991]

[[Page 158]]



Sec. 1601.79  Revocation of certification.

    Certification of a designated FEP agency is discretionary with the 
Commission and the Commission may, upon its own motion, withdraw such 
certification as a result of an evaluation conducted pursuant to 
Sec. 1601.78 or for any reason which leads the Commission to believe 
that such certification no longer serves the interest of effective 
enforcement of title VII or the ADA. The Commission will accept comments 
from any individual or organization concerning the efficacy of the 
certification of any designated FEP agency. The revocation shall be 
effected by the issuance and publication of an amendment to Sec. 1601.80 
of this part.
[46 FR 50367, Oct. 13, 1981. Redesignated and amended at 56 FR 9624, 
9625, Mar. 7, 1991]



Sec. 1601.80  Certified designated FEP agencies.

    The designated FEP agencies receiving certification by the 
Commission are as follows:

Alaska Commission for Human Rights
Alexandria (VA) Human Rights Office
Anchorage (AK) Equal Rights Commission
Arizona Civil Rights Division
Arlington County (VA) Human Rights Commission
Austin Human Relations Commission
Baltimore (MD) Community Relations Commission
Broward County (FL) Human Relations Commission
California Department of Fair Employment and Housing
Clearwater (FL) Office of Community Relations
Colorado Civil Rights Division
Connecticut Commission on Human Rights and Opportunity
Corpus Christi (TX) Human Relations Commission
Dade County (FL) Fair Housing and Employment Commission
Delaware Department of Labor
District of Columbia Office of Human Rights
East Chicago (IN) Human Rights Commission
Fairfax County (VA) Human Rights Commission
Florida Commission on Human Rights
Fort Wayne (IN) Metropolitan Human Relations Commission
Fort Worth (TX) Human Relations Commission
Gary (IN) Human Relations Commission
Hawaii Department of Labor and Industrial Relations
Howard County (MD) Office of Human Rights
Idaho Human Rights Commission
Illinois Department of Human Rights
Indiana Civil Rights Commission
Iowa Civil Rights Commission
Jacksonville (FL) Equal Employment Opportunity Commission
Kansas Commission on Civil Rights
Lexington-Fayette (KY) Urban County Human Rights Commission
Louisville and Jefferson County Human Relations Commission
Maine Human Rights Commission
Maryland Commission on Human Relations
Massachusetts Commission Against Discrimination
Michigan Department of Civil Rights
Minneapolis (MN) Department of Civil Rights
Minnesota Department of Human Rights
Missouri Commission on Civil Rights
Montana Human Rights Division
Nebraska Equal Opportunity Commission
Nevada Commission on Equal Rights of Citizens
New Hampshire Commission for Human Rights
New Hanover Human Relations Commission
New Jersey Division on Civil Rights
New Mexico Human Rights Commission
New York City (NY) Commission on Human Rights
New York State Division on Human Rights
Ohio Civil Rights Commission
Oklahoma Human Rights Commission
Omaha (NE) Human Relations Department
Oregon Bureau of Labor
Orlando (FL) Human Relations Department
Pennsylvania Human Relations Commission
Philadelphia Commission on Human Relations
Pittsburgh Commission on Human Relations
Puerto Rico Department of Labor and Human Resources
Rhode Island Commission for Human Rights
St. Louis (MO) Civil Rights Enforcement Agency
St. Petersburg (FL) Human Relations Department
Seattle (WA) Human Rights Commission
South Bend (IN) Human Rights Commission
South Carolina Human Affairs Commission
South Dakota Division of Human Rights
Tacoma (WA) Human Relations Division
Tennessee Human Rights Commission
Texas Commission on Human Rights
Utah Industrial Commission, Anti-Discrimination Division
Vermont Attorney General's Office, Civil Rights Division
Virgin Islands Department of Labor
Washington Human Rights Commission
West Virginia Human Rights Commission
Wisconsin Equal Rights Division, Department of Industry, Labor and Human 
Relations

[[Page 159]]

Wyoming Fair Employment Practices Commission

(42 U.S.C. 2000e--12(a))
[46 FR 50367, Oct. 13, 1981. Redesignated at 56 FR 9625, Mar. 7, 1991]

    Editorial Note: For Federal Register citations affecting 
Sec. 1601.80, see the List of CFR Sections Affected in the Finding Aids 
section of this volume.



   Subpart H--Title VII Interpretations and Opinions by the Commission



Sec. 1601.91  Request for title VII interpretation or opinion.

    Any interested person desiring a written title VII interpretation or 
opinion from the Commission may make such a request. However, issuance 
of title VII interpretations or opinions is discretionary.
[56 FR 9625, Mar. 7, 1991]



Sec. 1601.92  Contents of request; where to file.

    A request for an ``opinion letter'' shall be in writing, signed by 
the person making the request, addressed to the Chairman, Equal 
Employment Opportunity Commission, 1801 L Street, NW., Washington, DC 
20507 and shall contain:
    (a) The names and addresses of the person making the request and of 
other interested persons.
    (b) A statement of all known relevant facts.
    (c) A statement of reasons why the title VII interpretation or 
opinion should be issued.
[42 FR 55388, Oct. 14, 1977. Redesignated and amended at 56 FR 9625, 
Mar. 7, 1991]



Sec. 1601.93  Opinions--title VII.

    Only the following may be relied upon as a ``written interpretation 
or opinion of the Commission'' within the meaning of section 713 of 
title VII:
    (a) A letter entitled ``opinion letter'' and signed by the Legal 
Counsel on behalf of and as approved by the Commission, or, if issued in 
the conduct of litigation, by the General Counsel on behalf of and as 
approved by the Commission, or
    (b) Matter published and specifically designated as such in the 
Federal Register, including the Commission's Guidelines on Affirmative 
Action, or
    (c) A Commission determination of no reasonable cause, issued, under 
the circumstances described in Sec. 1608.10 (a) or (b) of the 
Commission's Guidelines on Affirmative Action, 29 CFR part 1608, when 
such determination contains a statement that it is a ``written 
interpretation or opinion of the Commission.''
[49 FR 31411, Aug. 7, 1984. Redesignated at 56 FR 9626, Mar. 7, 1991]



PART 1602--RECORDKEEPING AND REPORTING REQUIREMENTS UNDER TITLE VII AND THE ADA--Table of Contents




                           Subpart A--General

Sec.
1602.1  Purpose and scope.
1602.2-1602.6  [Reserved]

                 Subpart B--Employer Information Report

1602.7  Requirement for filing of report.
1602.8  Penalty for making of willfully false statements on report.
1602.9  Commission's remedy for employer's failure to file report.
1602.10  Employer's exemption from reporting requirements.
1602.11  Additional reporting requirements.

                  Subpart C--Recordkeeping by Employers

1602.12  Records to be made or kept.
1602.13  Records as to racial or ethnic identity of employees.
1602.14  Preservation of records made or kept.

              Subpart D--Apprenticeship Information Report

1602.15  Requirement for filing and preserving copy of report.
1602.16  Penalty for making of willfully false statements on report.
1602.17  Commission's remedy for failure to file report.
1602.18  Exemption from reporting requirements.
1602.19  Additional reporting requirements.

                 Subpart E--Apprenticeship Recordkeeping

1602.20  Records to be made or kept.
1602.21  Preservation of records made or kept.

[[Page 160]]

       Subpart F--Local Union Equal Employment Opportunity Report

1602.22  Requirements for filing and preserving copy of report.
1602.23  Penalty for making of willfully false statements on reports.
1602.24  Commission's remedy for failure to file report.
1602.25  Exemption from reporting requirements.
1602.26  Additional reporting requirements.

             Subpart G--Recordkeeping by Labor Organizations

1602.27  Records to be made or kept.
1602.28  Preservation of records made or kept.

Subpart H--Records and Inquiries as to Race, Color, National Origin, or 
                                   Sex

1602.29  Applicability of State or local law.

          Subpart I--State and Local Governments Recordkeeping

1602.30  Records to be made or kept.
1602.31  Preservation of records made or kept.

        Subpart J--State and Local Government Information Report

1602.32  Requirement for filing and preserving copy of report.
1602.33  Penalty for making of willfully false statements on report.
1602.34  Commission's remedy for political jurisdiction's failure to 
          file report.
1602.35  Political jurisdiction's exemption from reporting requirements.
1602.36  Schools exemption.
1602.37  Additional reporting requirements.

Subpart K--Records and Inquiries as to Race, Color, National Origin, or 
                                   Sex

1602.38  Applicability of State or local law.

   Subpart L--Elementary and Secondary School Systems, Districts, and 
                    Individual Schools Recordkeeping

1602.39  Records to be made or kept.
1602.40  Preservation of records made or kept.

        Subpart M--Elementary-Secondary Staff Information Report

1602.41  Requirement for filing and preserving copy of report.
1602.42  Penalty for making of willfully false statements on report.
1602.43  Commission's remedy for school systems' or districts' failure 
          to file report.
1602.44  School systems' or districts' exemption from reporting 
          requirements.
1602.45  Additional reporting requirements.

Subpart N--Records and Inquiries as to Race, Color, National Origin, or 
                                   Sex

1602.46  Applicability of State or local law.

      Subpart O--Recordkeeping for Institutions of Higher Education

1602.47  Definition.
1602.48  Records to be made or kept.
1602.49  Preservation of records made or kept.

       Subpart P--Higher Education Staff Information Report EEO-6

1602.50  Requirement for filing and preserving copy of report.
1602.51  Penalty for making of willfully false statements on report.
1602.52  Commission's remedy for failure to file.
1602.53  Exemption from reporting requirements.
1602.54  Additional reporting requirements.

Subpart Q--Records and Inquiries as to Race, Color, National Origin, or 
                                   Sex

1602.55  Applicability of State or local law.

    Subpart R--Investigation of Reporting or Recordkeeping Violations

1602.56  Investigation of reporting or recordkeeping violations.

    Authority: 42 U.S.C. 2000e-8, 2000e-12; 44 U.S.C. 3501 et seq.; 42 
U.S.C. 12117.



                           Subpart A--General



Sec. 1602.1  Purpose and scope.

    Section 709 of title VII (42 U.S.C. 2000e) and section 107 of the 
Americans with Disabilities Act (ADA) (42 U.S.C. 12117) require the 
Commission to establish regulations pursuant to which employers, labor 
organizations, joint labor-management committees, and employment 
agencies subject to those Acts shall make and preserve certain records 
and shall furnish specified information to aid in the administration and 
enforcement of the Acts.
[56 FR 35755, July 26, 1991]

[[Page 161]]



Secs. 1602.2-1602.6  [Reserved]



                 Subpart B--Employer Information Report



Sec. 1602.7  Requirement for filing of report.

    On or before September 30 of each year, every employer that is 
subject to title VII of the Civil Rights Act of 1964, as amended, and 
that has 100 or more employees shall file with the Commission or its 
delegate executed copies of Standard Form 100, as revised (otherwise 
known as ``Employer Information Report EEO-1'') in conformity with the 
directions set forth in the form and accompanying instructions. 
Notwithstanding the provisions of Sec. 1602.14, every such employer 
shall retain at all times at each reporting unit, or at company or 
divisional headquarters, a copy of the most recent report filed for each 
such unit and shall make the same available if requested by an officer, 
agent, or employee of the Commission under the authority of section 710 
of title VII. Appropriate copies of Standard Form 100 in blank will be 
supplied to every employer known to the Commission to be subject to the 
reporting requirements, but it is the responsibility of all such 
employers to obtain necessary supplies of the form from the Commission 
or its delegate prior to the filing date.
[37 FR 9219, May 6, 1972, as amended at 56 FR 35755, July 26, 1991]



Sec. 1602.8  Penalty for making of willfully false statements on report.

    The making of willfully false statements on Report EEO-1 is a 
violation of the United States Code, title 18, section 1001, and is 
punishable by fine or imprisonment as set forth therein.
[31 FR 2833, Feb. 17, 1966]



Sec. 1602.9  Commission's remedy for employer's failure to file report.

    Any employer failing or refusing to file Report EEO-1 when required 
to do so may be compelled to file by order of a U.S. District Court, 
upon application of the Commission.
[31 FR 2833, Feb. 17, 1966]



Sec. 1602.10  Employer's exemption from reporting requirements.

    If an employer claims that the preparation or filing of the report 
would create undue hardship, the employer may apply to the Commission 
for an exemption from the requirements set forth in this part, according 
to instruction 5. If an employer is engaged in activities for which the 
reporting unit criteria described in section 5 of the instructions are 
not readily adaptable, special reporting procedures may be required. If 
an employer seeks to change the date for filing its Standard Form 100 or 
seeks to change the period for which data are reported, an alternative 
reporting date or period may be permitted. In such instances, the 
employer should so advise the Commission by submitting to the Commission 
or its delegate a specific written proposal for an alternative reporting 
system prior to the date on which the report is due.
[56 FR 35755, July 26, 1991]



Sec. 1602.11  Additional reporting requirements.

    The Commission reserves the right to require reports, other than 
that designated as the Employer Information Report EEO-1, about the 
employment practices of individual employers or groups of employers 
whenever, in its judgment, special or supplemental reports are necessary 
to accomplish the purposes of title VII or the ADA. Any system for the 
requirement of such reports will be established in accordance with the 
procedures referred to in section 709(c) of title VII or section 107 of 
the ADA and as otherwise prescribed by law.
[31 FR 2833, Feb. 17, 1966, as amended at 56 FR 35755, July 26, 1991]



                  Subpart C--Recordkeeping by Employers



Sec. 1602.12  Records to be made or kept.

    The Commission has not adopted any requirement, generally applicable 
to employers, that records be made or kept. It reserves the right to 
impose

[[Page 162]]

recordkeeping requirements upon individual employers or groups of 
employers subject to its jurisdiction whenever, in its judgment, such 
records (a) are necessary for the effective operation of the EEO-1 
reporting system or of any special or supplemental reporting system as 
described above; or (b) are further required to accomplish the purposes 
of title VII or the ADA. Such record-keeping requirements will be 
adopted in accordance with the procedures referred to in section 709(c) 
of title VII, or section 107 of the ADA, and otherwise prescribed by 
law.

(Approved by the Office of Management and Budget under control number 
3046-0040)

[31 FR 2833, Feb. 17, 1966, as amended at 46 FR 63268, Dec. 31, 1981; 56 
FR 35755, July 26, 1991]



Sec. 1602.13  Records as to racial or ethnic identity of employees.

    Employers may acquire the information necessary for completion of 
items 5 and 6 of Report EEO-1 either by visual surveys of the work 
force, or at their option, by the maintenance of post-employment records 
as to the identity of employees where the same is permitted by State 
law. In the latter case, however, the Commission recommends the 
maintenance of a permanent record as to the racial or ethnic identity of 
an individual for purpose of completing the report form only where the 
employer keeps such records separately from the employee's basic 
personnel form or other records available to those responsible for 
personnel decisions, e.g., as part of an automatic data processing 
system in the payroll department.
[31 FR 2833, Feb. 17, 1966]



Sec. 1602.14  Preservation of records made or kept.

    Any personnel or employment record made or kept by an employer 
(including but not necessarily limited to requests for reasonable 
accommodation, application forms submitted by applicants and other 
records having to do with hiring, promotion, demotion, transfer, lay-off 
or termination, rates of pay or other terms of compensation, and 
selection for training or apprenticeship) shall be preserved by the 
employer for a period of one year from the date of the making of the 
record or the personnel action involved, whichever occurs later. In the 
case of involuntary termination of an employee, the personnel records of 
the individual terminated shall be kept for a period of one year from 
the date of termination. Where a charge of discrimination has been 
filed, or an action brought by the Commission or the Attorney General, 
against an employer under title VII or the ADA, the respondent employer 
shall preserve all personnel records relevant to the charge or action 
until final disposition of the charge or the action. The term 
``personnel records relevant to the charge,'' for example, would include 
personnel or employment records relating to the aggrieved person and to 
all other employees holding positions similar to that held or sought by 
the aggrieved person and application forms or test papers completed by 
an unsuccessful applicant and by all other candidates for the same 
position as that for which the aggrieved person applied and was 
rejected. The date of final disposition of the charge or the action 
means the date of expiration of the statutory period within which the 
aggrieved person may bring an action in a U.S. District Court or, where 
an action is brought against an employer either by the aggrieved person, 
the Commission, or by the Attorney General, the date on which such 
litigation is terminated.

(Approved by the Office of Management and Budget under control number 
3046-0040)

[37 FR 9219, May 6, 1972, as amended at 46 FR 63268, Dec. 31, 1981; 56 
FR 35755, July 26, 1991]



              Subpart D--Apprenticeship Information Report



Sec. 1602.15  Requirement for filing and preserving copy of report.

    On or before September 30, 1967, and annually thereafter, certain 
joint labor-management committees subject to title VII of the Civil 
Rights Act of 1964 which control apprenticeship programs shall file with 
the Commission, or its delegate, executed copies of Apprenticeship 
Information Report EEO-2 in conformity with the directions set

[[Page 163]]

forth in the form and accompanying instructions. The committees covered 
by this regulation are those which (a) have five or more apprentices 
enrolled in the program at any time during August and September of the 
reporting year, and (b) represent at least one employer sponsor and at 
least one labor organization sponsor which are themselves subject to 
title VII. Every such committee shall retain at all times among the 
records maintained in the ordinary course of its affairs a copy of the 
most recent report filed, and shall make the same available if requested 
by an officer, agent, or employee of the Commission under the authority 
of section 710 of title VII. It is the responsibility of all such 
committees to obtain from the Commission or its delegate necessary 
supplies of the form.
[37 FR 9220, May 6, 1972]



Sec. 1602.16  Penalty for making of willfully false statements on report.

    The making of willfully false statements on Report EEO-2 is a 
violation of the U.S. Code, title 18, section 1001, and is punishable by 
fine or imprisonment as set forth therein.
[32 FR 10650, July 20, 1967]



Sec. 1602.17  Commission's remedy for failure to file report.

    Any person failing or refusing to file Report EEO-2 when required to 
do so may be compelled to file by order of a U.S. District Court, upon 
application of the Commission, under authority of section 709(c) of 
title VII.
[37 FR 9220, May 6, 1972]



Sec. 1602.18  Exemption from reporting requirements.

    If it is claimed that the preparation or filing of Report EEO-2 
would create undue hardship, the committee may apply to the Commission 
for an exemption from the requirements set forth in this part.
[32 FR 10650, July 20, 1967]



Sec. 1602.19  Additional reporting requirements.

    The Commission reserves the right to require reports, other than 
that designated as Report EEO-2, about apprenticeship procedures of 
joint labor-management committees, employers, and labor organizations 
whenever, in its judgment, special or supplemental reports are necessary 
to accomplish the purpose of title VII or the ADA. Any system for the 
requirement of such reports will be established in accordance with the 
procedures referred to in section 709(c) of title VII or section 107 of 
the ADA and as otherwise prescribed by law.
[32 FR 10650, July 20, 1967, as amended at 56 FR 35755, July 26, 1991]



                 Subpart E--Apprenticeship Recordkeeping



Sec. 1602.20  Records to be made or kept.

    (a) Every person required to file Report EEO-2 shall make or keep 
such records as are necessary for its completion under the conditions 
and circumstances set forth in the instructions accompanying the report, 
which are specifically incorporated herein by reference and have the 
same force and effect as other sections of this part.
    (b) Every employer, labor organization, and joint labor-management 
committee subject to title VII which controls an apprenticeship program 
(regardless of any joint or individual obligation to file a report) 
shall beginning August 1, 1967, maintain a list in chronological order 
containing the names and addresses of all persons who have applied to 
participate in the apprenticeship program, including the dates on which 
such applications were received. (See section 709(c), title VII, Civil 
Rights Act of 1964.) Such list shall, contain a notation of the sex of 
the applicant and of the applicant's identification as ``White,'' 
``Black,'' ``Hispanic,'' ``Asian or Pacific Islander'' or ``American 
Indian or Alaskan Native.'' The methods of making such identification 
are set forth in the instruction accompanying Report EEO-2. The words 
``applied,'' ``applicant'' and ``application'' as used in this section 
refer to situations involving actual applications only. An applicant is 
considered to be a person who files a formal application, or in some 
informal way indicates a specific intention to be

[[Page 164]]

considered for admission to the apprenticeship program. A person who 
casually appears to make an informal inquiry about the program, or about 
apprenticeship in general, is not considered to be an applicant. The 
term ``apprenticeship program'' as used herein refers to programs 
described in the instructions accompanying Report EEO-2.
    (c) In lieu of maintaining the chronological list referred to in 
Sec. 1602.20 (b), persons required to compile the list may maintain on 
file written applications for participation in the apprenticeship 
program, provided that the application form contains a notation of the 
date the form was received, the address of the applicant, and a notation 
of the sex, and the race, color, or national origin of the applicant as 
described above.
[32 FR 10650, July 20, 1967, as amended at 33 FR 282, Jan. 9, 1968; 42 
FR 33557, Aug. 10, 1977]



Sec. 1602.21  Preservation of records made or kept.

    (a) Notwithstanding the provisions of section 1602.14, every person 
subject to Sec. 1602.20 (b) or (c) shall preserve the list of applicants 
or application forms, as the case may be, for a period of 2 years from 
the date the application was received, except that in those instances 
where an annual report is required by the Commission calling for 
statistics as to the sex, and the race, color, or national origin of 
apprentices, the person required to file the report shall preserve the 
list and forms for a period of 2 years or the period of a successful 
applicant's apprenticeship, whichever is longer. Persons required to 
file Report EEO-2, or other reports calling for information about the 
operation of an apprenticeship program similar to that required on 
Report EEO-2, shall preserve any other record made solely for the 
purpose of completing such reports for a period of 1 year from the due 
date thereof.
    (b) Other records: Except to the extent inconsistent with the law or 
regulation of any State or local fair employment practices agency, or of 
any other Federal or State agency involved in the enforcement of an 
antidiscrimination program in apprenticeship, other records relating to 
apprenticeship made or kept by a person required to file Report EEO-2, 
including but not necessarily limited to requests for reasonable 
accommodation, test papers completed by applicants for apprenticeship 
and records of interviews with applicants, shall be kept for a period of 
2 years from the date of the making of the record. Where a charge of 
discrimination has been filed, or an action brought by the Attorney 
General under title VII, or the ADA the respondent shall preserve all 
records relevant to the charge or action until final disposion of the 
charge or the action. The term ``records relevant to the charge,'' for 
example, would include applications, forms or test papers completed by 
an unsuccessful applicant and by all other candidates for the same 
position as that for which the charging party applied and was rejected. 
The date of ``final disposition of the charge or the action'' means the 
date of expiration of the statutory period within which a charging party 
may bring an action in a U.S. District Court or, where an action is 
brought either by a charging party or by the Attorney General, the date 
on which such litigation is terminated.
[32 FR 10660, July 20, 1967, as amended at 56 FR 35755, July 26, 1991]



       Subpart F--Local Union Equal Employment Opportunity Report



Sec. 1602.22  Requirements for filing and preserving copy of report.

    On or before December 31, 1986, and biennially thereafter, every 
labor organization subject to title VII of the Civil Rights Act of 1964, 
as amended, shall file with the Commission or its delegate an executed 
copy of Local Union Report EEO-3 in conformity with the directions set 
forth in the form and accompanying instructions, provided that the labor 
organization has 100 or more members at any time during the 12 months 
preceding the due date of the report, and is a ``local union'' (as that 
term is commonly understood) or an independent or unaffiliated union. 
Labor organizations required to report are those which perform, in a 
specific jurisdiction, the functions ordinarily performed by a local 
union, whether or not they are so designated. Every local

[[Page 165]]

union or a labor organization acting in its behalf, shall retain at all 
times among the records maintained in the ordinary course of its affairs 
a copy of the most recent report filed, and shall make the same 
available if requested by an officer, agent, or employee of the 
Commission under the authority of section 709 of title VII. It is the 
responsibility of all persons required to file to obtain from the 
Commission or its delegate necessary supplies of the form.

(Approved by the Office of Management and Budget under control number 
3046-0006)

[51 FR 11018, Apr. 1, 1986]



Sec. 1602.23  Penalty for making of willfully false statements on reports.

    The making of willfully false statements on Report EEO-3 is a 
violation of the United States Code, title 18, section 1001, and is 
punishable by fine or imprisonment as set forth herein.
[32 FR 10651, July 20, 1967]



Sec. 1602.24  Commission's remedy for failure to file report.

    Any person failing or refusing to file Report EEO-3 when required to 
do so may be compelled to file by order of a U.S. District Court, upon 
application of the Commission, under authority of section 709(c) of 
title VII.
[37 FR 9220, May 6, 1972]



Sec. 1602.25  Exemption from reporting requirements.

    If it is claimed that the preparation or filing of Report EEO-3 
would create undue hardship, the labor organization may apply to the 
Commission for an exemption from the requirements set forth in this 
part.
[32 FR 10651, July 20, 1967]



Sec. 1602.26  Additional reporting requirements.

    The Commission reserves the right to require reports, other than 
that designated as Report EEO-3, about the membership or referral 
practices or other procedures of labor organizations, whenever, in its 
judgment, special or supplemental reports are necessary to accomplish 
the purposes of title VII or the ADA. Any system for requirement of such 
reports will be established in accordance with the procedures referred 
to in section 709(c) of title VII or section 107 of the ADA, and as 
otherwise prescribed by law.
[32 FR 10651, July 20, 1967, as amended at 56 FR 35755, July 26, 1991]



             Subpart G--Recordkeeping by Labor Organizations



Sec. 1602.27  Records to be made or kept.

    Those portions of Report EEO-3 calling for information about union 
policies and practices and for the compilation of statistics on the 
race, color, national origin, and sex of members, persons referred, and 
apprentices, are deemed to be ``records'' within the meaning of section 
709(c), title VII, Civil Rights Act of 1964. Every local, independent, 
or unaffiliated union with 100 or more members (or any agent acting in 
its behalf, if the agent has responsibility for referral of persons for 
employment) shall make these records or such other records as are 
necessary for the completion of Report EEO-3 under the circumstances and 
conditions set forth in the instructions accompanying it, which are 
specifically incorporated herein by reference and have the same force 
and effect as other sections of this part.

(Approved by the Office of Management and Budget under control number 
3046-0006)

[32 FR 10651, July 20, 1967, as amended at 46 FR 63268, Dec. 31, 1981]



Sec. 1602.28  Preservation of records made or kept.

    (a) All records made by a labor organization or its agent solely for 
the purpose of completing Report EEO-3 shall be preserved for a period 
of 1 year from the due date of the report for which they were compiled. 
Any labor organization identified as a ``referral union'' in the 
instructions accompanying Report EEO-3, or agent thereto, shall preserve 
other membership or referral records (including applications for same) 
made or kept by it for a period of 1 year from the date of the making of 
the record. Where a charge of discrimination has been filed, or an 
action

[[Page 166]]

brought by the Commission or the Attorney General, against a labor 
organization under title VII or the ADA, the respondent labor 
organization shall preserve all records relevant to the charge or action 
until final disposition of the charge or the action. The date of ``final 
disposition of the charge or the action'' means the date of expiration 
of the statutory period within which the aggrieved person may bring an 
action in a U.S. District Court or, where an action is brought against a 
labor organization either by the Commission, the aggrieved person, or by 
the Attorney General, the date on which such litigation is terminated.
    (b) Nothing herein shall relieve any labor organization covered by 
title VII of the obligations set forth in subpart E, Secs. 1602.20 and 
1602.21, relating to the establishment and maintenance of a list of 
applicants wishing to participate in an apprenticeship program 
controlled by it.

(Approved by the Office of Management and Budget under control number 
3046-0040)

[37 FR 9220, May 6, 1972, as amended at 46 FR 63268, Dec. 31, 1981; 56 
FR 35755, July 26, 1991]



Subpart H--Records and Inquiries as to Race, Color, National Origin, or 
                                   Sex



Sec. 1602.29  Applicability of State or local law.

    The requirements imposed by the Equal Employment Opportunity 
Commission in these regulations, subparts D through G, supersede any 
provisions of State or local law which may conflict with them. Any State 
or local laws prohibiting inquiries and recordkeeping with respect to 
race, color, national origin, or sex do not apply to inquiries required 
to be made under these regulations and under the instructions 
accompanying Reports EEO-2 and EEO-3.
[32 FR 10652, July 20, 1967]



          Subpart I--State and Local Governments Recordkeeping



Sec. 1602.30  Records to be made or kept.

    On or before September 30, 1974, and annually thereafter, every 
political jurisdiction with 15 or more employees is required to make or 
keep records and the information therefrom which are or would be 
necessary for the completion of report EEO-4 under the circumstances set 
forth in the instructions thereto, whether or not the political 
jurisdiction is required to file such report under Sec. 1602.32 of the 
regulations in this part. The instructions are specifically incorporated 
herein by reference and have the same force and effect as other sections 
of this part.1 Such reports and the information therefrom 
shall be retained at all times for a period of 3 years at the central 
office of the political jurisdiction and shall be made available if 
requested by an officer, agent, or employee of the Commission under 
section 710 of title VII, as amended. Although agency data are 
aggregated by functions for purposes of reporting, separate data for 
each agency must be maintained either by the agency itself or by the 
office of the political jurisdiction responsible for preparing the EEO-4 
form. It is the responsibility of every political jurisdiction to obtain 
from the Commission or its delegate necessary instructions in order to 
comply with the requirements of this section.
---------------------------------------------------------------------------

    1 Note: Instructions were published as an appendix to the 
proposed regulations on Mar. 2, 1973 (38 FR 5662).

(Approved by the Office of Management and Budget under control number 
---------------------------------------------------------------------------
3046-0008)

[38 FR 12604, May 14, 1973, as amended at 39 FR 30832, Aug. 26, 1974; 46 
FR 63268, Dec. 31, 1981]



Sec. 1602.31  Preservation of records made or kept.

    Any personnel or employment record made or kept by a political 
jurisdiction (including but not necessarily limited to requests for 
reasonable accommodation application forms submitted by applicants and 
other records having to do with hiring, promotion, demotion, transfer, 
layoff, or termination, rates of pay or other terms of compensation, and 
selection for training or apprenticeship) shall be preserved by the 
political jurisdiction for a period of 2 years from the date of the 
making of

[[Page 167]]

the record or the personnel action involved, whichever occurs later. In 
the case of involuntary termination of an employee, the personnel 
records of the individual terminated shall be kept for a period of 2 
years from the date of termination. Where a charge of discrimination has 
been filed, or an action brought by the Attorney General against a 
political jurisdiction under title VII or the ADA, the respondent 
political jurisdiction shall preserve all personnel records relevant to 
the charge or action until final disposition of the charge or the 
action. The term ``personnel record relevant to the charge,'' for 
example, would include personnel or employment records relating to the 
person claiming to be aggrieved and to all other employees holding 
positions similar to that held or sought by the person claiming to be 
aggrieved; and application forms or test papers completed by an 
unsuccessful applicant and by all other candidates for the same position 
as that for which the person claiming to be aggrieved applied and was 
rejected. The date of final disposition of the charge or the action 
means the date of expiration of the statutory period within which a 
person claiming to be aggrieved may bring an action in a U.S. district 
court or, where an action is brought against a political jurisdiction 
either by a person claiming to be aggrieved or by the Attorney General, 
the date on which such litigation is terminated.

(Approved by the Office of Management and Budget under control number 
3046-0040)

[38 FR 12605, May 14, 1973, as amended by 46 FR 63268, Dec. 31, 1981; 56 
FR 35756, July 26, 1991]



        Subpart J--State and Local Government Information Report

    Source: 38 FR 12605, May 14, 1973, unless otherwise noted.



Sec. 1602.32  Requirement for filing and preserving copy of report.

    On or before September 30, 1993, and biennially thereafter, certain 
political jurisdictions subject to title VII of the Civil Rights Act of 
1964, as amended, shall file with the Commission or its delegate 
executed copies of ``State and Local Government Information Report EEO-
4'' in conformity with the directions set forth in the form and 
accompanying instructions. The political jurisdictions covered by this 
section are (a) those which have 100 or more employees, and (b) those 
other political jurisdictions which have 15 or more employees from whom 
the Commission requests the filing of reports.
    Every such political jurisdiction shall retain at all times a copy 
of the most recently filed EEO-4 at the central office of the political 
jurisdiction for a period of 3 years and shall make the same available 
if requested by an officer, agent, or employee of the Commission under 
the authority of section 710 of title VII, as amended.
[58 FR 29536, May 21, 1993]



Sec. 1602.33  Penalty for making of willfully false statements on report.

    The making of willfully false statements on report EEO-4, is a 
violation of the United States Code, title 18, section 1001, and is 
punishable by fine or imprisonment as set forth therein.



Sec. 1602.34  Commission's remedy for political jurisdiction's failure to file report.

    Any political jurisdiction failing or refusing to file report EEO-4 
when required to do so may be compelled to file by order of a U.S. 
district court, upon application of the Attorney General.



Sec. 1602.35  Political jurisdiction's exemption from reporting requirements.

    If it is claimed that the preparation or filing of the report would 
create undue hardship, the political jurisdiction may apply to the 
Commission for an exemption from the requirements set forth in this part 
by submitting to the Commission or its delegate a specific proposal for 
an alternative reporting system prior to the date on which the report is 
due.



Sec. 1602.36  Schools exemption.

    The recordkeeping and report-filing requirements of subparts I and J 
of this part shall not apply to State or local educational institutions 
or to school

[[Page 168]]

districts or school systems or any other educational functions. The 
previous sentence of this section shall not act to bar jurisdiction 
which otherwise would attach under Sec. 1602.30.



Sec. 1602.37  Additional reporting requirements.

    The Commission reserves the right to require reports, other than 
that designated as the ``State and Local Government Information Report 
EEO-4,'' about the employment practices of individual political 
jurisdictions or group of political jurisdictions whenever, in its 
judgment, special or supplemental reports are necessary to accomplish 
the purposes of title VII or the ADA. Any system for the requirement of 
such reports will be established in accordance with the procedures 
referred to in section 709(c) of title VII or section 107 of the ADA and 
as otherwise prescribed by law.
[38 FR 12605, May 14, 1973, as amended at 56 FR 35756, July 26, 1991]



Subpart K--Records and Inquiries as to Race, Color, National Origin, or 
                                   Sex



Sec. 1602.38  Applicability of State or local law.

    The requirements imposed by the Equal Employment Opportunity 
Commission in these regulations, subparts I and J, supersede any 
provisions of State or local law which may conflict with them.
[38 FR 12605, May 14, 1973]



   Subpart L--Elementary and Secondary School Systems, Districts, and 
                    Individual Schools Recordkeeping



Sec. 1602.39  Records to be made or kept.

    On or before November 30, 1974, and annually thereafter, every 
public elementary and secondary school system or district, including 
every individually or separately administered district within a system, 
with 15 or more employees and every individual school within such system 
or district, regardless of the size of the school shall make or keep all 
records and information therefrom which are or would be necessary for 
the completion of report EEO-5 whether or not it is required to file 
such a report under Sec. 1602.41. The instructions for completion of 
report EEO-5 are specifically incorporated herein by reference and have 
the same force and effect as other sections of this part.1 
Such records and the information therefrom shall be retained at all 
times for a period of 3 years at the central office of the elementary or 
secondary school system or district, or at the individual school which 
is the subject of the records and the information therefrom, where more 
convenient, and shall be made available if requested by an officer, 
agent, or employee of the Commission under section 710 of title VII, as 
amended. It is the responsibility of every such school system or 
district, to obtain from the Commission or its delegate necessary 
instructions in order to comply with the requirements of this section.
---------------------------------------------------------------------------

    1 Note: Instructions were published as an appendix to the 
proposed regulations on June 12, 1973 (38 FR 15463).

(Approved by the Office of Management and Budget under control number 
---------------------------------------------------------------------------
3046-0003)

[38 FR 26719, Sept. 25, 1973, as amended at 39 FR 30832, Aug. 26, 1974; 
46 FR 63268, Dec. 31, 1981]



Sec. 1602.40  Preservation of records made or kept.

    Any personnel or employment record made or kept by a school system, 
district, or individual school (including but not necessarily limited to 
requests for reasonable accommodation, application forms submitted by 
applicants and other records having to do with hiring, promotion, 
demotion, transfer, layoff, or termination, rates of pay or other terms 
of compensation, and selection for training or apprenticeship) shall be 
preserved by such school system, district, or school, as the case may 
be, for a period of 2 years from the date of the making of the record or 
the personnel action involved, whichever occurs later. In the case of 
involuntary termination of an employee, the personnel records of the 
individual terminated shall be kept for a period of 2 years from the 
date of termination.

[[Page 169]]

Where a charge of discrimination has been filed, or an action brought 
against an elementary or secondary school by the Commission or the 
Attorney General, the respondent elementary or secondary school system, 
district, or individual school shall preserve similarly at the central 
office of the system or district or individual school which is the 
subject of the charge or action, where more convenient, all personnel 
records relevant to the charge or action until final disposition 
thereof. The term ``personnel record relevant to the charge,'' for 
example, would include personnel or employment records relating to the 
person claiming to be aggrieved and to all other employees holding 
positions similar to that held or sought by the person claiming to be 
aggrieved; and application forms or test papers completed by an 
unsuccessful applicant and by all other candidates for the same position 
as that for which the person claiming to be aggrieved applied and was 
rejected. The date of ``final disposition of the charge or the action'' 
means the date of expiration of the statutory period within which a 
person claiming to be aggrieved may bring an action in a U.S. district 
court or, where an action is brought against a school system, district, 
or school either by a person claiming to be aggrieved, the Commission, 
or the Attorney General, the date on which such litigation is 
terminated.

(Approved by the Office of Management and Budget under control number 
3046-0040)

[38 FR 26719, Sept. 25, 1973, as amended at 46 FR 63268, Dec. 31, 1981; 
56 FR 35756, July 26, 1991]



        Subpart M--Elementary-Secondary Staff Information Report

    Source: 38 FR 26719, Sept. 25, 1973, unless otherwise noted.



Sec. 1602.41  Requirement for filing and preserving copy of report.

    On or before November 30, 1982, and biennially thereafter, certain 
public elementary and secondary school systems and districts, including 
individually or separately administered districts within such systems, 
shall file with the Commission or its delegate executed copies of 
Elementary-Secondary Staff Information Report EEO-5 in conformity with 
the directions set forth in the form and accompanying instructions. The 
elementary and secondary school systems and districts covered are:
    (a) Every one of those which have 100 or more employees, and
    (b) Every one of those others which have 15 or more employees from 
whom the Commission requests the filing of reports.

Every such elementary or secondary school system or district shall 
retain at all times, for a period of 3 years, a copy of the most 
recently filed report EEO-5 at the central office of the school system 
or district, and shall make the same available if requested by an 
officer, agent, or employee of the Commission under the authority of 
section 710 of title VII, as amended. It is the responsibility of the 
school systems or districts above described in this section to obtain 
from the Commission or its delegate necessary supplies of the form.
[48 FR 8058, Feb. 25, 1983; as amended at 61 FR 33660, June 28, 1996]



Sec. 1602.42  Penalty for making of willfully false statements on report.

    The making of willfully false statements on report EEO-5 is a 
violation of the United States Code, title 18, section 1001, and is 
punishable by fine or emprisonment as set forth therein.



Sec. 1602.43  Commission's remedy for school systems' or districts' failure to file report.

    Any school system or district failing or refusing to file report 
EEO-5 when required to do so may be compelled to file by order of a U.S. 
district court, upon application of the Commission or the Attorney 
General.
[61 FR 33660, June 28, 1996]



Sec. 1602.44  School systems' or districts' exemption from reporting requirements.

    If it is claimed that the preparation or filing of the report would 
create undue hardship, the school system or district may apply to the 
Commission

[[Page 170]]

for an exemption from the requirements set forth in this part by 
submitting to the Commission or its delegate a specific proposal for an 
alternative reporting system prior to the date on which the report is 
due.
[61 FR 33660, June 28, 1996]



Sec. 1602.45  Additional reporting requirements.

    The Commission reserves the right to require reports, other than 
that designated as the Elementary-Secondary Information Report EEO-5, 
about the employment practices of private or public individual school 
systems, districts, or schools, or groups thereof, whenever, in its 
judgment, special or supplemental reports are necessary to accomplish 
the purposes of title VII or the ADA. Any system for the requirement of 
such reports will be established in accordance with the procedures 
referred to in section 709(c) of title VII or section 107 of the ADA and 
as otherwise prescribed by law.
[38 FR 27619, Sept. 25, 1973, as amended at 56 FR 35756, July 26, 1991]



Subpart N--Records and Inquiries as to Race, Color, National Origin, or 
                                   Sex



Sec. 1602.46  Applicability of State or local law.

    The requirements imposed by the Equal Employment Opportunity 
Commission in these regulations, subparts L and M of this part, 
supersede any provisions of State or local law which may conflict with 
them.
[38 FR 26720, Sept. 25, 1973]



      Subpart O--Recordkeeping for Institutions of Higher Education



Sec. 1602.47  Definition.

    Under subparts O and P of this part, the term institution of higher 
education means an institutional system, college, university, community 
college, junior college, and any other educational institution which 
offers an associate degree, baccalaureate degree or higher degree or 
which offers a two year program of college level studies without degree. 
The term college level studies means a post secondary program which is 
wholly or principally creditable toward a baccalaureate degree or 
terminates in an associate degree.
[40 FR 25188, June 12, 1975]



Sec. 1602.48  Records to be made or kept.

    Commencing August 1, 1975, every institution of higher education, 
whether public or private, with 15 or more employees, shall make or keep 
all records, and information therefrom, which are or would be necessary 
for the completion of Higher Education Staff Information Report EEO-6 
whether or not it is required to file such a report under Sec. 1602.50. 
The instructions for completion of Report EEO-6 are specifically 
incorporated herein by reference and have the same force and effect as 
other sections of this part.1Such records, and the 
information therefrom, shall be retained at all times for a period of 
three years at the central administrative office of the institution of 
higher education, at the central administrative office of a separate 
campus or branch, or at an individual school which is the subject of the 
records and information, where more convenient. Such records, and the 
information therefrom, shall be made available if requested by the 
Commission or its representative under section 710 of title VII and 29 
U.S.C. 161. It is the responsibility of every institution of higher 
education to obtain from the Commission or its delegate the necessary 
instructions in order to comply with the requirements of this section.
---------------------------------------------------------------------------

    1 Note: Instructions were published as an appendix to the 
regulations at 40 FR 25188, June 12, 1975.

(Approved by the Office of Management and Budget under control number 
---------------------------------------------------------------------------
3046-0009)

[40 FR 25188, June 12, 1975, as amended at 46 FR 63268, Dec. 31, 1981]



Sec. 1602.49  Preservation of records made or kept.

    (a) Any personnel or employment record (including but not 
necessarily limited to requests for reasonable accommodation, 
application forms submitted by applicants and other records having to do 
with hiring, promotion, tenure, demotion, transfer, layoff, or

[[Page 171]]

termination, rates of pay or other terms of compensation, and selection 
for training) made or kept by an institution of higher education shall 
be preserved by such institution of higher education for a period of two 
years from the date of the making of the personnel action or record 
involved, whichever occurs later. In the case of the involuntary 
termination of an employee, the personnel records of the individual 
terminated shall be kept for a period of two years from the date of 
termination. Where a charge of discrimination has been filed, or a civil 
action brought against an institution of higher education by the 
Commission or the Attorney General, the respondent shall preserve 
similarly at the central administrative office of the institution of 
higher education, at the central office of a separate campus or branch, 
or at the individual school which is the subject of the charge or 
action, where more convenient, all personnel records relevant to the 
charge or action until final disposition thereof. The term ``personnel 
records relevant to the charge,'' for example, would include personnel 
or employment records relating to the person claiming to be aggrieved 
and to all other employees holding positions similar to that held or 
sought by the person claiming to be aggrieved; it would also include 
application forms or test papers completed by an unsuccessful applicant 
and by all other candidates for the same position as that for which the 
person claiming to be aggrieved applied and was rejected. The date of 
``final disposition of the charge or the action'' means the date of 
expiration of the statutory period within which a person claiming to be 
aggrieved may bring an action in the United States District Court, or, 
where an action is brought against an institution of higher education by 
a person claiming to be aggrieved, the Commission, or the Attorney 
General, the date on which such litigation is terminated.
    (b) The requirements of paragraph (a) of this section shall not 
apply to application forms and other preemployment records of non-
student applicants for positions known to non-student applicants to be 
of a temporary or seasonal nature.

(Approved by the Office of Management and Budget under control number 
3046-0040)

[40 FR 25188, June 12, 1975, as amended at 46 FR 63268, Dec. 31, 1981; 
56 FR 35756, July 26, 1991]



       Subpart P--Higher Education Staff Information Report EEO-6

    Source: 40 FR 25189, June 12, 1975, unless otherwise noted.



Sec. 1602.50  Requirement for filing and preserving copy of report.

    On or before November 30, 1975, and biennially thereafter, every 
public and private institution of higher education having fifteen (15) 
or more employees shall file with the Commission or its delegate 
executed copies of Higher Education Staff Information Report EEO-6 in 
conformity with the directions set forth in the form and accompanying 
instructions. Every institution of higher education shall retain at all 
times, for a period of three years a copy of the most recently filed 
Report EEO-6 at its central administrative office, at the central office 
of a separate campus or branch, or at an individual school which is the 
subject of the report, where more convenient. An institution of higher 
education shall make the same available if requested by the Commission 
or is representative under the authority of section 710 of the Act and 
29 U.S.C. 161. It is the responsibility of the institutions above 
described in this section to obtain from the Commission or its delegate 
necessary supplies of the form.



Sec. 1602.51  Penalty for making of willfully false statements on report.

    The making of willfully false statements on Report EEO-6 is a 
violation of the United States Code, title 18, section 1001, and is 
punishable by fine or imprisonment as set forth therein.



Sec. 1602.52  Commission's remedy for failure to file.

    Any institution of higher education failing or refusing to keep 
records, in accordance with Sec. 1602.48 or Sec. 1602.49 of

[[Page 172]]

subpart O of this part, or failing or refusing to file Report EEO-6 when 
required to do so, in accordance with Sec. 1602.50 of this part, may be 
compelled to keep records or to file by order of a United States 
District Court upon application of the Commission, or the Attorney 
General in a case involving a public institution.



Sec. 1602.53  Exemption from reporting requirements.

    If it is claimed that the preparation or filing of the report would 
create undue hardship, the institution of higher education may apply to 
the Commission for an exemption from the requirements set forth in 
subparts O and P of this part by submitting to the Commission or its 
delegate a specific proposal for an alternative reporting system no 
later than 45 days prior to the date on which the report must be filed.



Sec. 1602.54  Additional reporting requirements.

    The Commission reserves the right to require reports, other than 
that designated as the Higher Education Staff Information Report EEO-6, 
about the employment practices of private or public institutions of 
higher education whenever, in its judgment, special or supplemental 
reports are necessary to accomplish the purposes of title VII or the 
ADA. Any system for the requirement of such reports will be established 
in accordance with the procedures referred to in section 709(c) of title 
VII or section 107 of the ADA and as otherwise prescribed by law.
[40 FR 25189, June 12, 1975, as amended at 56 FR 35756, July 26, 1991]



Subpart Q--Records and Inquiries as to Race, Color, National Origin, or 
                                   Sex



Sec. 1602.55  Applicability of State or local law.

    The requirements imposed by the Equal Employment Opportunity 
Commission in these regulations, subparts O, P, and Q of this part, 
supersede any provisions of State or local law which may conflict with 
them.
[40 FR 25189, June 12, 1975]



    Subpart R--Investigation of Reporting or Recordkeeping Violations



Sec. 1602.56  Investigation of reporting or recordkeeping violations.

    When it has received an allegation, or has reason to believe, that a 
person has not complied with the reporting or recordkeeping requirements 
of this part or of part 1607 of this chapter, the Commission may conduct 
an investigation of the alleged failure to comply.
[56 FR 35756, July 26, 1991]



  PART 1603--PROCEDURES FOR PREVIOUSLY EXEMPT STATE AND LOCAL GOVERNMENT EMPLOYEE COMPLAINTS OF EMPLOYMENT DISCRIMINATION UNDER SECTION 321 OF THE GOVERNMENT 

EMPLOYEE RIGHTS ACT OF 1991--Table of Contents




Sec.
1603.100  Purpose.

                    Subpart A--Administrative Process

1603.101  Coverage.
1603.102  Filing a complaint.
1603.103  Referral of complaints.
1603.104  Service of the complaint.
1603.105  Withdrawal of a complaint.
1603.106  Computation of time.
1603.107  Dismissals of complaints.
1603.108  Settlement and alternative dispute resolution.
1603.109  Investigations.

                           Subpart B--Hearings

1603.201  Referral and scheduling for hearing.
1603.202  Administrative law judge.
1603.203  Unavailability or withdrawal of administrative law judges.
1603.204  Ex parte communications.
1603.205  Separation of functions.
1603.206  Consolidation and severance of hearings.
1603.207  Intervention.
1603.208  Motions.
1603.209  Filing and service.
1603.210  Discovery.
1603.211  Subpoenas.
1603.212  Witness fees.
1603.213  Interlocutory review.
1603.214  Evidence.
1603.215  Record of hearings.
1603.216  Summary decision.
1603.217  Decision of the administrative law judge.

[[Page 173]]

                           Subpart C--Appeals

1603.301  Appeal to the Commission.
1603.302  Filing an appeal.
1603.303  Briefs on appeal.
1603.304  Commission decision.
1603.305  Modification or withdrawal of Commission decision.
1603.306  Judicial review.

    Authority: 2 U.S.C. 1220.

    Source: 62 FR 17543, Apr. 10, 1997, unless otherwise noted.



Sec. 1603.100  Purpose.

    This part contains the regulations of the Equal Employment 
Opportunity Commission (hereinafter the Commission) for processing 
complaints of discrimination filed under section 321 of the Government 
Employee Rights Act, 2 U.S.C. 1220.



                    Subpart A--Administrative Process



Sec. 1603.101  Coverage.

    Section 321 of the Government Employee Rights Act of 1991 applies to 
employment, which includes application for employment, of any individual 
chosen or appointed by a person elected to public office in any State or 
political subdivision of any State by the qualified voters thereof:
    (a) To be a member of the elected official's personal staff;
    (b) To serve the elected official on the policymaking level; or
    (c) To serve the elected official as an immediate advisor with 
respect to the exercise of the constitutional or legal powers of the 
office.



Sec. 1603.102  Filing a complaint.

    (a) Who may make a complaint. Individuals referred to in 
Sec. 1603.101 who believe they have been discriminated against on the 
basis of race, color, religion, sex, national origin, age or disability 
or retaliated against for opposing any practice made unlawful by federal 
laws protecting equal employment opportunity or for participating in any 
stage of administrative or judicial proceedings under federal laws 
protecting equal employment opportunity may file a complaint not later 
than 180 days after the occurrence of the alleged discrimination.
    (b) Where to file a complaint. A complaint may be filed in person or 
by mail or by facsimile machine to the offices of the Commission in 
Washington, D.C., or any of its field offices or with any designated 
agent or representative of the Commission. The addresses of the 
Commission's field offices appear in 29 CFR 1610.4.
    (c) Contents of a complaint. A complaint shall be in writing, signed 
and verified. In addition, each complaint should contain the following:
    (1) The full name, address and telephone number of the person making 
the complaint;
    (2) The full name and address of the person, governmental entity or 
political subdivision against whom the complaint is made (hereinafter 
referred to as the respondent);
    (3) A clear and concise statement of the facts, including pertinent 
dates, constituting the alleged unlawful employment practices (See 29 
CFR 1601.15(b)); and
    (4) A statement disclosing whether proceedings involving the alleged 
unlawful employment practice have been commenced before a State or local 
FEP agency charged with the enforcement of fair employment practice laws 
and, if so, the date of such commencement and the name of the agency.
    (d) Amendment of a complaint. Notwithstanding paragraph (c) of this 
section, a complaint is sufficient when the Commission receives from the 
person making the complaint a written statement sufficiently precise to 
identify the parties and to describe generally the alleged 
discriminatory action or practices. A complaint may be amended to cure 
technical defects or omissions, including failure to verify the 
complaint, or to clarify and amplify its allegations. Such amendments, 
and amendments alleging additional acts that constitute discriminatory 
employment practices related to or growing out of the subject matter of 
the original complaint, will relate back to the date the complaint was 
first received. A complaint that has been amended after it was referred 
shall not be again referred to the appropriate state or local fair 
employment practices agency.

[[Page 174]]

    (e) Misfiled complaint. A charge filed pursuant to 29 CFR part 1601 
or part 1626, that is later deemed to be a matter under this part, shall 
be processed as a complaint under this part and shall relate back to the 
date of the initial charge or complaint. A complaint filed under this 
part that is later deemed to be a matter under 29 CFR part 1601 or part 
1626 shall be processed as a charge under the appropriate regulation and 
shall relate back to the date of the initial complaint.



Sec. 1603.103  Referral of complaints.

    (a) The Commission will notify an FEP agency, as defined in 29 CFR 
1601.3(a), when a complaint is filed by a state or local government 
employee or applicant under this part concerning an employment practice 
within the jurisdiction of the FEP agency. The FEP agency will be 
entitled to process the complaint exclusively for a period of not less 
than 60 days if the FEP agency makes a written request to the Commission 
within 10 days of receiving notice that the complaint has been filed, 
unless the complaint names the FEP agency as the respondent.
    (b) The Commission may enter into an agreement with an FEP agency 
that authorizes the FEP agency to receive complaints under this part on 
behalf of the Commission, or waives the FEP agency's right to exclusive 
processing of complaints.



Sec. 1603.104  Service of the complaint.

    Upon receipt of a complaint, the Commission shall promptly serve the 
respondent with a copy of the complaint.



Sec. 1603.105  Withdrawal of a complaint.

    The complainant may withdraw a complaint at any time by so advising 
the Commission in writing.



Sec. 1603.106  Computation of time.

    (a) All time periods in this part that are stated in terms of days 
are calendar days unless otherwise stated.
    (b) A document shall be deemed timely if it is delivered by 
facsimile not exceeding 20 pages, in person or postmarked before the 
expiration of the applicable filing period, or, in the absence of a 
legible postmark, if it is received by mail within five days of the 
expiration of the applicable filing period.
    (c) All time limits in this part are subject to waiver, estoppel and 
equitable tolling.
    (d) The first day counted shall be the day after the event from 
which the time period begins to run and the last day of the period shall 
be included unless it falls on a Saturday, Sunday or federal holiday, in 
which case the period shall be extended to include the next business 
day.



Sec. 1603.107  Dismissals of complaints.

    (a) Where a complaint on its face, or after further inquiry, is 
determined to be not timely filed or otherwise fails to state a claim 
under this part, the Commission shall dismiss the complaint.
    (b) Where the complainant cannot be located, the Commission may 
dismiss the complaint provided that reasonable efforts have been made to 
locate the complainant and the complainant has not responded within 30 
days to a notice sent by the Commission to the complainant's last known 
address.
    (c) Where the complainant fails to provide requested information, 
fails or refuses to appear or to be available for interviews or 
conferences as necessary, or otherwise refuses to cooperate, the 
Commission, after providing the complainant with notice and 30 days in 
which to respond, may dismiss the complaint.
    (d) Written notice of dismissal pursuant to paragraphs (a), (b), or 
(c) of this section shall be issued to the complainant and the 
respondent. The Commission hereby delegates authority to the Program 
Director, Office of Program Operations, or to his or her designees, and 
District Directors, or to their designees, to dismiss complaints.
    (e) A complainant who is dissatisfied with a dismissal issued 
pursuant to paragraphs (a), (b), or (c) of this section may appeal to 
the Commission in accordance with the procedures in subpart C of this 
part.



Sec. 1603.108  Settlement and alternative dispute resolution.

    (a) The parties are at all times free to settle all or part of a 
complaint on terms that are mutually agreeable. Any settlement reached 
shall be in

[[Page 175]]

writing and signed by both parties and shall identify the allegations 
resolved. A copy of any settlement shall be served on the Commission.
    (b) With the agreement of the parties, the Commission may refer a 
complaint to a neutral mediator or to any other alternative dispute 
resolution process authorized by the Administrative Dispute Resolution 
Act, 5 U.S.C. 571 to 583, or other statute.
    (c) The Commission may use the services of the Federal Mediation and 
Conciliation Service, other federal agencies, appropriate professional 
organizations, employees of the Commission and other appropriate sources 
in selecting neutrals for alternative dispute resolution processes.
    (d) The alternative dispute resolution process shall be strictly 
confidential, and no party to a complaint or neutral shall disclose any 
dispute resolution communication or any information provided in 
confidence to the neutral except as provided in 5 U.S.C. 584.



Sec. 1603.109  Investigations.

    (a) Before referring a complaint to an administrative law judge 
under section 201 of this part, the Commission may conduct investigation 
using an exchange of letters, interrogatories, fact-finding conferences, 
interviews, on-site visits or other fact-finding methods that address 
the matters at issue.
    (b) During an investigation of a complaint under this part, the 
Commission shall have the authority to sign and issue a subpoena 
requiring the attendance and testimony of witnesses, the production of 
evidence and access to evidence for the purposes of examination and the 
right to copy. The subpoena procedures contained in 29 CFR 1601.16 shall 
apply to subpoenas issued pursuant to this section.



                           Subpart B--Hearings



Sec. 1603.201  Referral and scheduling for hearing.

    (a) Upon request by the complainant under paragraph (b) of this 
section or if the complaint is not dismissed or resolved under subpart A 
of this part, on behalf of the Commission, the Office of Federal 
Operations shall transmit the complaint file to an administrative law 
judge, appointed under 5 U.S.C. 3105, for a hearing.
    (b) If the complaint has not been referred to an administrative law 
judge within 180 days after filing, the complainant may request that the 
complaint be immediately transmitted to an administrative law judge for 
a hearing.
    (c) The administrative law judge shall fix the time, place, and date 
for the hearing with due regard for the convenience of the parties, 
their representatives or witnesses and shall notify the parties of the 
same.



Sec. 1603.202  Administrative law judge.

    The administrative law judge shall have all the powers necessary to 
conduct fair, expeditious, and impartial hearings as provided in 5 
U.S.C. 556(c). In addition, the administrative law judge shall have the 
power to:
    (a) Change the time, place or date of the hearing;
    (b) Enter a default decision against a party failing to appear at a 
hearing unless the party shows good cause by contacting the 
administrative law judge and presenting arguments as to why the party or 
the party's representative could not appear either prior to the hearing 
or within two days after the scheduled hearing; and
    (c) Take any appropriate action authorized by the Federal Rules of 
Civil Procedure (28 U.S.C. appendix).



Sec. 1603.203  Unavailability or withdrawal of administrative law judges.

    (a) In the event the administrative law judge designated to conduct 
the hearing becomes unavailable or withdraws from the adjudication, 
another administrative law judge may be designated for the purpose of 
further hearing or issuing a decision on the record as made, or both.
    (b) The administrative law judge may withdraw from the adjudication 
at any time the administrative law judge deems himself or herself 
disqualified. Prior to issuance of the decision, any party may move that 
the administrative law judge withdraw on the ground of personal bias or 
other disqualification, by filing with the administrative law judge 
promptly upon discovery of

[[Page 176]]

the alleged facts an affidavit setting forth in detail the matters 
alleged to constitute grounds for withdrawal.
    (c) The administrative law judge shall rule upon the motion for 
withdrawal. If the administrative law judge concludes that the motion is 
timely and has merit, the administrative law judge shall immediately 
withdraw from the adjudication. If the administrative law judge does not 
withdraw, the adjudication shall proceed.



Sec. 1603.204  Ex parte communications.

    (a) Oral or written communications concerning the merits of an 
adjudication between the administrative law judge or decision-making 
personnel of the Commission and an interested party to the adjudication 
without providing the other party a chance to participate are prohibited 
from the time the matter is assigned to an administrative law judge 
until the Commission has rendered a final decision. Communications 
concerning the status of the case, the date of a hearing, the method of 
transmitting evidence to the Commission and other purely procedural 
questions are permitted.
    (b) Decision-making personnel of the Commission include members of 
the Commission and their staffs and personnel in the Office of Federal 
Operations, but do not include investigators and intake staff.
    (c) Any communication made in violation of this section shall be 
made part of the record and an opportunity for rebuttal by the other 
party allowed. If the communication was oral, a memorandum stating the 
substance of the discussion shall be placed in the record.
    (d) Where it appears that a party has engaged in prohibited ex parte 
communications, that party may be required to show cause why, in the 
interest of justice, his or her claim or defense should not be 
dismissed, denied or otherwise adversely affected.



Sec. 1603.205  Separation of functions.

    (a) The administrative law judge may not be responsible to or 
subject to the supervision or direction of a Commission employee engaged 
in investigating complaints under this part.
    (b) No Commission employee engaged in investigating complaints under 
this part shall participate or advise in the decision of the 
administrative law judge, except as a witness or counsel in the 
adjudication, or its appellate review.



Sec. 1603.206  Consolidation and severance of hearings.

    (a) The administrative law judge may, upon motion by a party or upon 
his or her own motion, after providing reasonable notice and opportunity 
to object to all parties affected, consolidate any or all matters at 
issue in two or more adjudications docketed under this part where common 
parties, or factual or legal questions exist; where such consolidation 
would expedite or simplify consideration of the issues; or where the 
interests of justice would be served. For purposes of this section, no 
distinction is made between joinder and consolidation of adjudications.
    (b) The administrative law judge may, upon motion of a party or upon 
his or her own motion, for good cause shown, order any adjudication 
severed with respect to some or all parties, claims or issues.



Sec. 1603.207  Intervention.

    (a) Any person or entity that wishes to intervene in any proceeding 
under this subpart shall file a motion to intervene in accordance with 
Sec. 1603.208.
    (b) A motion to intervene shall indicate the question of law or fact 
common to the movant's claim or defense and the complaint at issue and 
state all other facts or reasons the movant should be permitted to 
intervene.
    (c) Any party may file a response to a motion to intervene within 15 
days after the filing of the motion to intervene.



Sec. 1603.208  Motions.

    (a) All motions shall state the specific relief requested. All 
motions shall be in writing, except that a motion may be made orally 
during a conference or during the hearing. After providing an 
opportunity for response, the administrative law judge may rule on an 
oral motion immediately or may require that it be submitted in writing.

[[Page 177]]

    (b) Unless otherwise directed by the administrative law judge, any 
other party may file a response in support of or in opposition to any 
written motion within ten (10) business days after service of the 
motion. If no response is filed within the response period, the party 
failing to respond shall be deemed to have waived any objection to the 
granting of the motion. The moving party shall have no right to reply to 
a response, unless the administrative law judge, in his or her 
discretion, orders that a reply be filed.
    (c) Except for procedural matters, the administrative law judge may 
not grant a written motion prior to the expiration of the time for 
filing responses. The administrative law judge may deny a written motion 
without awaiting a response. The administrative law judge may allow oral 
argument (including that made by telephone) on written motions. Any 
party adversely affected by the ex parte grant of a motion for a 
procedural order may request, within five (5) business days of service 
of the order, that the administrative law judge reconsider, vacate or 
modify the order.
    (d) The administrative law judge may summarily deny dilatory, 
repetitive or frivolous motions. Unless otherwise ordered by the 
administrative law judge, the filing of a motion does not stay the 
proceeding.
    (e) All motions and responses must comply with the filing and 
service requirements of Sec. 1603.209.



Sec. 1603.209  Filing and service.

    (a) Unless otherwise ordered by the administrative law judge, a 
signed original of each motion, brief or other document shall be filed 
with the administrative law judge, with a certificate of service 
indicating that a copy has been sent to all other parties, and the date 
and manner of service. All documents shall be on standard size (8\1/2\ 
x  11) paper. Each document filed shall be clear and legible.
    (b) Filing and service shall be made by first class mail or other 
more expeditious means of delivery, including, at the discretion of the 
administrative law judge, by facsimile. The administrative law judge, 
may in his discretion, limit the number of pages that may be filed or 
served by facsimile. Service shall be made on a party's representative, 
or, if not represented, on the party.
    (c) Every document shall contain a caption, the complaint number or 
docket number assigned to the matter, a designation of the type of 
filing (e.g., motion, brief, etc.), and the filing person's signature, 
address, telephone number and telecopier number, if any.



Sec. 1603.210  Discovery.

    (a) Unless otherwise ordered by the administrative law judge, 
discovery may begin as soon as the complaint has been transmitted to the 
administrative law judge pursuant to Sec. 1603.201. Discovery shall be 
completed as expeditiously as possible within such time as the 
administrative law judge directs.
    (b) Unless otherwise ordered by the administrative law judge, 
parties may obtain discovery by written interrogatories (not to exceed 
20 interrogatories including subparts), depositions upon oral 
examination or written questions, requests for production of documents 
or things for inspection or other purposes, requests for admission or 
any other method found reasonable and appropriate by the administrative 
law judge.
    (c) Except as otherwise specified, the Federal Rules of Civil 
Procedure shall govern discovery in proceedings under this part.
    (d) Neutral mediators who have participated in the alternative 
dispute resolution process in accordance with Sec. 1603.108 shall not be 
called as witnesses or be subject to discovery in any adjudication under 
this part.



Sec. 1603.211  Subpoenas.

    (a) Upon written application of any party, the administrative law 
judge may on behalf of the Commission issue a subpoena requiring the 
attendance and testimony of witnesses and the production of any 
evidence, including, but not limited to, books, records, correspondence, 
or documents, in their possession or under their control. The subpoena 
shall state the name and address of the party at whose request the 
subpoena was issued, identify the person and evidence subpoenaed, and 
the

[[Page 178]]

date and time the subpoena is returnable.
    (b) Any person served with a subpoena who intends not to comply 
shall, within 5 days after service of the subpoena, petition the 
administrative law judge in writing to revoke or modify the subpoena. 
All petitions to revoke or modify shall be served upon the party at 
whose request the subpoena was issued. The requestor may file with the 
administrative law judge a response to the petition to revoke or modify 
within 5 days after service of the petition.
    (c) Upon the failure of any person to comply with a subpoena issued 
under this section, the administrative law judge may refer the matter to 
the Commission for enforcement in accordance with 29 CFR 1601.16(c).



Sec. 1603.212  Witness fees.

    Witnesses summoned under this part shall receive the same fees and 
mileage as witnesses in the courts of the United States. Those fees must 
be paid or offered to the witness by the party requesting the subpoena 
at the time the subpoena is served, or, if the witness appears 
voluntarily, at the time of appearance. A federal agency or corporation 
is not required to pay or offer witness fees and mileage allowances in 
advance.



Sec. 1603.213  Interlocutory review.

    (a) Interlocutory review may not be sought except when the 
administrative law judge determines upon motion of a party or upon his 
or her own motion that:
    (1) The ruling involves a controlling question of law or policy 
about which there is substantial ground for difference of opinion;
    (2) An immediate ruling will materially advance the completion of 
the proceeding; or
    (3) The denial of an immediate ruling will cause irreparable harm to 
the party or the public.
    (b) Application for interlocutory review shall be filed within ten 
(10) days after notice of the administrative law judge's ruling. Any 
application for review shall:
    (1) Designate the ruling or part thereof from which appeal is being 
taken; and
    (2) Contain arguments or evidence that tend to establish one or more 
of the grounds for interlocutory review contained in paragraph (a) of 
this section.
    (c) Any party opposing the application for interlocutory review 
shall file a response to the application within 10 days after service of 
the application. The applicant shall have no right to reply to a 
response unless the administrative law judge, within his or her 
discretion, orders that a reply be filed.
    (d) The administrative law judge shall promptly certify in writing 
any ruling that qualifies for interlocutory review under paragraph (a) 
of this section.
    (e) The filing of an application for interlocutory review and the 
grant of an application shall not stay proceedings before the 
administrative law judge unless the administrative law judge or the 
Commission so orders. The Commission shall not consider a motion for a 
stay unless the motion was first made to the administrative law judge.



Sec. 1603.214  Evidence.

    The administrative law judge shall accept relevant non-privileged 
evidence in accordance with the Federal Rules of Evidence (28 U.S.C. 
appendix), except the rules on hearsay will not be strictly applied.



Sec. 1603.215  Record of hearings.

    (a) All hearings shall be mechanically or stenographically reported. 
All evidence relied upon by the administrative law judge for decision 
shall be contained in the transcript of testimony, either directly or by 
appropriate reference. All exhibits introduced as evidence shall be 
marked for identification, with a copy provided for all parties, if not 
previously provided, and incorporated into the record. Transcripts may 
be obtained by the parties and the public from the official reporter at 
rates fixed by the contract with the reporter.
    (b) Corrections to the official transcript will be permitted upon 
motion,

[[Page 179]]

only when errors of substance are involved and upon approval of the 
administrative law judge. Motions for correction must be submitted 
within ten (10) days of the receipt of the transcript unless additional 
time is permitted by the administrative law judge.



Sec. 1603.216  Summary decision.

    Upon motion of a party or after notice to the parties, the 
administrative law judge may issue a summary decision without a hearing 
if the administrative law judge finds that there is no genuine issue of 
material fact or that the complaint may be dismissed pursuant to 
Sec. 1603.107 or any other grounds authorized by this part. A summary 
decision shall otherwise conform to the requirements of Sec. 1603.217.



Sec. 1603.217  Decision of the administrative law judge.

    (a) The administrative law judge shall issue a decision on the 
merits of the complaint within 270 days after referral of a complaint 
for hearing, unless the administrative law judge makes a written 
determination that good cause exists for extending the time for issuing 
a decision. The decision shall contain findings of fact and conclusions 
of law, shall order appropriate relief where discrimination is found, 
and shall provide notice of appeal rights consistent with subpart C of 
this part.
    (b) The administrative law judge shall serve the decision promptly 
on all parties to the proceeding and their counsel. Thereafter, the 
administrative law judge shall transmit the case file to the Office of 
Federal Operations including the decision and the record. The record 
shall include the complaint; the investigative file, if any; referral 
notice; motions; briefs; rulings; orders; official transcript of the 
hearing; all discovery and any other documents submitted by the parties.



                           Subpart C--Appeals



Sec. 1603.301  Appeal to the Commission.

    Any party may appeal to the Commission the dismissal of a complaint 
under Sec. 1603.107, any matter certified for interlocutory review under 
Sec. 1613.213, or the administrative law judge's decision under 
Sec. 1603.216 or Sec. 1603.217.



Sec. 1603.302  Filing an appeal.

    (a) An appeal shall be filed within 30 days after the date of the 
appealable decision or certification for interlocutory review, unless 
the Commission, upon a showing of good cause, extends the time for 
filing an appeal for a period not to exceed an additional 30 days.
    (b) An appeal shall be filed with the Director, Office of Federal 
Operations, Equal Employment Opportunity Commission, P.O. Box 19848, 
Washington, D.C. 20036, by mail or personal delivery or facsimile.



Sec. 1603.303  Briefs on appeal.

    (a) The appellant shall file a brief or other written statement 
within 30 days after the appeal is filed, unless the Commission 
otherwise directs.
    (b) All other parties may file briefs or other written statements 
within 30 days of service of the appellant's brief or statement.
    (c) Every brief or statement shall contain a statement of facts and 
a section setting forth the party's legal arguments. Any brief or 
statement in support of the appeal shall contain arguments or evidence 
that tend to establish that the dismissal, order or decision:
    (1) Is not supported by substantial evidence;
    (2) Contains an erroneous interpretation of law, regulation or 
material fact, or misapplication of established policy;
    (3) Contains a prejudicial error of procedure; or
    (4) Involves a substantial question of law or policy.
    (d) Appellate briefs shall not exceed 50 pages in length.
    (e) Filing and service of the appeal and appellate briefs shall be 
made in accordance with Sec. 1603.209.



Sec. 1603.304  Commission decision.

    (a) On behalf of the Commission, the Office of Federal Operations 
shall review the record and the appellate briefs submitted by all the 
parties. The Office of Federal Operations shall prepare a recommended 
decision for consideration by the Commission.

[[Page 180]]

    (b) When an administrative law judge certifies a matter for 
interlocutory review under Sec. 1603.213, the Commission may, in its 
discretion, issue a decision on the matter or send the matter back to 
the administrative law judge without decision.
    (c) The Commission will not accept or consider new evidence on 
appeal unless the Commission, in its discretion, reopens the record on 
appeal.
    (d) The decision of the Commission on appeal shall be its final 
order and shall be served on all parties.
    (e) In the absence of a timely appeal under Sec. 1603.302, the 
decision of the administrative law judge under Sec. 1603.217 or a 
dismissal under Sec. 1603.107 shall become the final order of the 
Commission. A final order under this paragraph shall not have 
precedential significance.



Sec. 1603.305  Modification or withdrawal of Commission decision.

    At any time, the Commission may modify or withdraw a decision for 
any reason provided that no petition for review in a United States Court 
of Appeals has been filed.



Sec. 1603.306  Judicial review.

    Any party to a complaint who is aggrieved by a final decision under 
Sec. 1603.304 may obtain a review of such final decision under chapter 
158 of title 28 of the United States Code by filing a petition for 
review with a United States Court of Appeals within 60 days after 
issuance of the final decision. Such petition for review should be filed 
in the judicial circuit in which the petitioner resides, or has its 
principal office, or in the United States Court of Appeals for the 
District of Columbia Circuit.



PART 1604--GUIDELINES ON DISCRIMINATION BECAUSE OF SEX--Table of Contents




Sec.
1604.1  General principles.
1604.2  Sex as a bona fide occupational qualification.
1604.3  Separate lines of progression and seniority systems.
1604.4  Discrimination against married women.
1604.5  Job opportunities advertising.
1604.6  Employment agencies.
1604.7  Pre-employment inquiries as to sex.
1604.8  Relationship of title VII to the Equal Pay Act.
1604.9  Fringe benefits.
1604.10  Employment policies relating to pregnancy and childbirth.
1604.11  Sexual harassment.


Appendix to Part 1604--Questions and Answers on the Pregnancy 
          Discrimination Act, Public Law 95-555, 92 Stat. 2076 (1978)

    Authority: Sec. 713(b), 78 Stat. 265, 42 U.S.C. 2000e-12.

    Source: 37 FR 6836, April 5, 1972, unless otherwise noted.



Sec. 1604.1  General principles.

    (a) References to ``employer'' or ``employers'' in this part 1604 
state principles that are applicable not only to employers but also to 
labor organizations and to employment agencies insofar as their action 
or inaction may adversely affect employment opportunities.
    (b) To the extent that the views expressed in prior Commission 
pronouncements are inconsistent with the views expressed herein, such 
prior views are hereby overruled.
    (c) The Commission will continue to consider particular problems 
relating to sex discrimination on a case-by-case basis.



Sec. 1604.2  Sex as a bona fide occupational qualification.

    (a) The commission believes that the bona fide occupational 
qualification exception as to sex should be interpreted narrowly. 
Label--``Men's jobs'' and ``Women's jobs''--tend to deny employment 
opportunities unnecessarily to one sex or the other.
    (1) The Commission will find that the following situations do not 
warrant the application of the bona fide occupational qualification 
exception:
    (i) The refusal to hire a woman because of her sex based on 
assumptions of the comparative employment characteristics of women in 
general. For example, the assumption that the turnover rate among women 
is higher than among men.
    (ii) The refusal to hire an individual based on stereotyped 
characterizations of the sexes. Such stereotypes include, for example, 
that men are less capable of assembling intricate equipment:

[[Page 181]]

that women are less capable of aggressive salesmanship. The principle of 
nondiscrimination requires that individuals be considered on the basis 
of individual capacities and not on the basis of any characteristics 
generally attributed to the group.
    (iii) The refusal to hire an individual because of the preferences 
of coworkers, the employer, clients or customers except as covered 
specifically in paragraph (a)(2) of this section.
    (2) Where it is necessary for the purpose of authenticity or 
genuineness, the Commission will consider sex to be a bona fide 
occupational qualification, e.g., an actor or actress.
    (b) Effect of sex-oriented State employment legislation.
    (1) Many States have enacted laws or promulgated administrative 
regulations with respect to the employment of females. Among these laws 
are those which prohibit or limit the employment of females, e.g., the 
employment of females in certain occupations, in jobs requiring the 
lifting or carrying of weights exceeding certain prescribed limits, 
during certain hours of the night, for more than a specified number of 
hours per day or per week, and for certain periods of time before and 
after childbirth. The Commission has found that such laws and 
regulations do not take into account the capacities, preferences, and 
abilities of individual females and, therefore, discriminate on the 
basis of sex. The Commission has concluded that such laws and 
regulations conflict with and are superseded by title VII of the Civil 
Rights Act of 1964. Accordingly, such laws will not be considered a 
defense to an otherwise established unlawful employment practice or as a 
basis for the application of the bona fide occupational qualification 
exception.
    (2) The Commission has concluded that State laws and regulations 
which discriminate on the basis of sex with regard to the employment of 
minors are in conflict with and are superseded by title VII to the 
extent that such laws are more restrictive for one sex. Accordingly, 
restrictions on the employment of minors of one sex over and above those 
imposed on minors of the other sex will not be considered a defense to 
an otherwise established unlawful employment practice or as a basis for 
the application of the bona fide occupational qualification exception.
    (3) A number of States require that minimum wage and premium pay for 
overtime be provided for female employees. An employer will be deemed to 
have engaged in an unlawful employment practice if:
    (i) It refuses to hire or otherwise adversely affects the employment 
opportunities of female applicants or employees in order to avoid the 
payment of minimum wages or overtime pay required by State law; or
    (ii) It does not provide the same benefits for male employees.
    (4) As to other kinds of sex-oriented State employment laws, such as 
those requiring special rest and meal periods or physical facilities for 
women, provision of these benefits to one sex only will be a violation 
of title VII. An employer will be deemed to have engaged in an unlawful 
employment practice if:
    (i) It refuses to hire or otherwise adversely affects the employment 
opportunities of female applicants or employees in order to avoid the 
provision of such benefits; or
    (ii) It does not provide the same benefits for male employees. If 
the employer can prove that business necessity precludes providing these 
benefits to both men and women, then the State law is in conflict with 
and superseded by title VII as to this employer. In this situation, the 
employer shall not provide such benefits to members of either sex.
    (5) Some States require that separate restrooms be provided for 
employees of each sex. An employer will be deemed to have engaged in an 
unlawful employment practice if it refuses to hire or otherwise 
adversely affects the employment opportunities of applicants or 
employees in order to avoid the provision of such restrooms for persons 
of that sex.



Sec. 1604.3  Separate lines of progression and seniority systems.

    (a) It is an unlawful employment practice to classify a job as 
``male'' or ``female'' or to maintain separate lines of progression or 
separate seniority

[[Page 182]]

lists based on sex where this would adversely affect any employee unless 
sex is a bona fide occupational qualification for that job. Accordingly, 
employment practices are unlawful which arbitrarily classify jobs so 
that:
    (1) A female is prohibited from applying for a job labeled ``male,'' 
or for a job in a ``male'' line of progression; and vice versa.
    (2) A male scheduled for layoff is prohibited from displacing a less 
senior female on a ``female'' seniority list; and vice versa.
    (b) A Seniority system or line of progression which distinguishes 
between ``light'' and ``heavy'' jobs constitutes an unlawful employment 
practice if it operates as a disguised form of classification by sex, or 
creates unreasonable obstacles to the advancement by members of either 
sex into jobs which members of that sex would reasonably be expected to 
perform.



Sec. 1604.4  Discrimination against married women.

    (a) The Commission has determined that an employer's rule which 
forbids or restricts the employment of married women and which is not 
applicable to married men is a discrimination based on sex prohibited by 
title VII of the Civil Rights Act. It does not seem to us relevant that 
the rule is not directed against all females, but only against married 
females, for so long as sex is a factor in the application of the rule, 
such application involves a discrimination based on sex.
    (b) It may be that under certain circumstances, such a rule could be 
justified within the meaning of section 703(e)(1) of title VII. We 
express no opinion on this question at this time except to point out 
that sex as a bona fide occupational qualification must be justified in 
terms of the peculiar requirements of the particular job and not on the 
basis of a general principle such as the desirability of spreading work.



Sec. 1604.5  Job opportunities advertising.

    It is a violation of title VII for a help-wanted advertisement to 
indicate a preference, limitation, specification, or discrimination 
based on sex unless sex is a bona fide occupational qualification for 
the particular job involved. The placement of an advertisement in 
columns classified by publishers on the basis of sex, such as columns 
headed ``Male'' or ``Female,'' will be considered an expression of a 
preference, limitation, specification, or discrimination based on sex.



Sec. 1604.6  Employment agencies.

    (a) Section 703(b) of the Civil Rights Act specifically states that 
it shall be unlawful for an employment agency to discriminate against 
any individual because of sex. The Commission has determined that 
private employment agencies which deal exclusively with one sex are 
engaged in an unlawful employment practice, except to the extent that 
such agencies limit their services to furnishing employees for 
particular jobs for which sex is a bona fide occupational qualification.
    (b) An employment agency that receives a job order containing an 
unlawful sex specification will share responsibility with the employer 
placing the job order if the agency fills the order knowing that the sex 
specification is not based upon a bona fide occupational qualification. 
However, an employment agency will not be deemed to be in violation of 
the law, regardless of the determination as to the employer, if the 
agency does not have reason to believe that the employer's claim of bona 
fide occupations qualification is without substance and the agency makes 
and maintains a written record available to the Commission of each such 
job order. Such record shall include the name of the employer, the 
description of the job and the basis for the employer's claim of bona 
fide occupational qualification.
    (c) It is the responsibility of employment agencies to keep informed 
of opinions and decisions of the Commission on sex discrimination.



Sec. 1604.7  Pre-employment inquiries as to sex.

    A pre-employment inquiry may ask ``Male........., Female.........''; 
or ``Mr. Mrs. Miss,'' provided that the inquiry is made in good faith 
for a nondiscriminatory purpose. Any pre-employment inquiry in 
connection with prospective employment which expresses directly

[[Page 183]]

or indirectly any limitation, specification, or discrimination as to sex 
shall be unlawful unless based upon a bona fide occupational 
qualification.



Sec. 1604.8  Relationship of title VII to the Equal Pay Act.

    (a) The employee coverage of the prohibitions against discrimination 
based on sex contained in title VII is coextensive with that of the 
other prohibitions contained in title VII and is not limited by section 
703(h) to those employees covered by the Fair Labor Standards Act.
    (b) By virtue of section 703(h), a defense based on the Equal Pay 
Act may be raised in a proceeding under title VII.
    (c) Where such a defense is raised the Commission will give 
appropriate consideration to the interpretations of the Administrator, 
Wage and Hour Division, Department of Labor, but will not be bound 
thereby.



Sec. 1604.9  Fringe benefits.

    (a) ``Fringe benefits,'' as used herein, includes medical, hospital, 
accident, life insurance and retirement benefits; profit-sharing and 
bonus plans; leave; and other terms, conditions, and privileges of 
employment.
    (b) It shall be an unlawful employment practice for an employer to 
discriminate between men and women with regard to fringe benefits.
    (c) Where an employer conditions benefits available to employees and 
their spouses and families on whether the employee is the ``head of the 
household'' or ``principal wage earner'' in the family unit, the 
benefits tend to be available only to male employees and their families. 
Due to the fact that such conditioning discriminatorily affects the 
rights of women employees, and that ``head of household'' or ``principal 
wage earner'' status bears no relationship to job performance, benefits 
which are so conditioned will be found a prima facie violation of the 
prohibitions against sex discrimination contained in the act.
    (d) It shall be an unlawful employment practice for an employer to 
make available benefits for the wives and families of male employees 
where the same benefits are not made available for the husbands and 
families of female employees; or to make available benefits for the 
wives of male employees which are not made available for female 
employees; or to make available benefits to the husbands of female 
employees which are not made available for male employees. An example of 
such an unlawful employment practice is a situation in which wives of 
male employees receive maternity benefits while female employees receive 
no such benefits.
    (e) It shall not be a defense under title VIII to a charge of sex 
discrimination in benefits that the cost of such benefits is greater 
with respect to one sex than the other.
    (f) It shall be an unlawful employment practice for an employer to 
have a pension or retirement plan which establishes different optional 
or compulsory retirement ages based on sex, or which differentiates in 
benefits on the basis of sex. A statement of the General Counsel of 
September 13, 1968, providing for a phasing out of differentials with 
regard to optional retirement age for certain incumbent employees is 
hereby withdrawn.



Sec. 1604.10  Employment policies relating to pregnancy and childbirth.

    (a) A written or unwritten employment policy or practice which 
excludes from employment applicants or employees because of pregnancy, 
childbirth or related medical conditions is in prima facie violation of 
title VII.
    (b) Disabilities caused or contributed to by pregnancy, childbirth, 
or related medical conditions, for all job-related purposes, shall be 
treated the same as disabilities caused or contributed to by other 
medical conditions, under any health or disability insurance or sick 
leave plan available in connection with employment. Written or unwritten 
employment policies and practices involving matters such as the 
commencement and duration of leave, the availability of extensions, the 
accrual of seniority and other benefits and privileges, reinstatement, 
and payment under any health or disability insurance or sick leave plan, 
formal or informal, shall be applied to disability due to pregnancy, 
childbirth or related medical conditions on the same terms

[[Page 184]]

and conditions as they are applied to other disabilities. Health 
insurance benefits for abortion, except where the life of the mother 
would be endangered if the fetus were carried to term or where medical 
complications have arisen from an abortion, are not required to be paid 
by an employer; nothing herein, however, precludes an employer from 
providing abortion benefits or otherwise affects bargaining agreements 
in regard to abortion.
    (c) Where the termination of an employee who is temporarily disabled 
is caused by an employment policy under which insufficient or no leave 
is available, such a termination violates the Act if it has a disparate 
impact on employees of one sex and is not justified by business 
necessity.
    (d)(1) Any fringe benefit program, or fund, or insurance program 
which is in effect on October 31, 1978, which does not treat women 
affected by pregnancy, childbirth, or related medical conditions the 
same as other persons not so affected but similar in their ability or 
inability to work, must be in compliance with the provisions of 
Sec. 1604.10(b) by April 29, 1979. In order to come into compliance with 
the provisions of 1604.10(b), there can be no reduction of benefits or 
compensation which were in effect on October 31, 1978, before October 
31, 1979 or the expiration of a collective bargaining agreement in 
effect on October 31, 1978, whichever is later.
    (2) Any fringe benefit program implemented after October 31, 1978, 
must comply with the provisions of Sec. 1604.10(b) upon implementation.
[44 FR 23805, Apr. 20, 1979]



Sec. 1604.11  Sexual harassment.

    (a) Harassment on the basis of sex is a violation of section 703 of 
title VII.1 Unwelcome sexual advances, requests for sexual 
favors, and other verbal or physical conduct of a sexual nature 
constitute sexual harassment when (1) submission to such conduct is made 
either explicitly or implicitly a term or condition of an individual's 
employment, (2) submission to or rejection of such conduct by an 
individual is used as the basis for employment decisions affecting such 
individual, or (3) such conduct has the purpose or effect of 
unreasonably interfering with an individual's work performance or 
creating an intimidating, hostile, or offensive working environment.
---------------------------------------------------------------------------

    1  The principles involved here continue to apply to 
race, color, religion or national origin.
---------------------------------------------------------------------------

    (b) In determining whether alleged conduct constitutes sexual 
harassment, the Commission will look at the record as a whole and at the 
totality of the circumstances, such as the nature of the sexual advances 
and the context in which the alleged incidents occurred. The 
determination of the legality of a particular action will be made from 
the facts, on a case by case basis.
    (c) Applying general title VII principles, an employer, employment 
agency, joint apprenticeship committee or labor organization 
(hereinafter collectively referred to as ``employer'') is responsible 
for its acts and those of its agents and supervisory employees with 
respect to sexual harassment regardless of whether the specific acts 
complained of were authorized or even forbidden by the employer and 
regardless of whether the employer knew or should have known of their 
occurrence. The Commission will examine the circumstances of the 
particular employment relationship and the job junctions performed by 
the individual in determining whether an individual acts in either a 
supervisory or agency capacity.
    (d) With respect to conduct between fellow employees, an employer is 
responsible for acts of sexual harassment in the workplace where the 
employer (or its agents or supervisory employees) knows or should have 
known of the conduct, unless it can show that it took immediate and 
appropriate corrective action.
    (e) An employer may also be responsible for the acts of non-
employees, with respect to sexual harassment of employees in the 
workplace, where the employer (or its agents or supervisory employees) 
knows or should have known of the conduct and fails to take immediate 
and appropriate corrective action. In reviewing these cases the 
Commission will consider the extent of the employer's control and any 
other

[[Page 185]]

legal responsibility which the employer may have with respect to the 
conduct of such non-employees.
    (f) Prevention is the best tool for the elimination of sexual 
harassment. An employer should take all steps necessary to prevent 
sexual harassment from occurring, such as affirmatively raising the 
subject, expressing strong disapproval, developing appropriate 
sanctions, informing employees of their right to raise and how to raise 
the issue of harassment under title VII, and developing methods to 
sensitize all concerned.
    (g) Other related practices: Where employment opportunities or 
benefits are granted because of an individual's submission to the 
employer's sexual advances or requests for sexual favors, the employer 
may be held liable for unlawful sex discrimination against other persons 
who were qualified for but denied that employment opportunity or 
benefit.

(Title VII, Pub. L. 88-352, 78 Stat. 253 (42 U.S.C. 2000e et seq.))
[45 FR 74677, Nov. 10, 1980]

     Appendix to Part 1604--Questions and Answers on the Pregnancy 
       Discrimination Act, Public Law 95-555, 92 Stat. 2076 (1978)

                              Introduction

    On October 31, 1978, President Carter signed into law the Pregnancy 
Discrimination Act (Pub. L. 95-955). The Act is an amendment to title 
VII of the Civil Rights Act of 1964 which prohibits, among other things, 
discrimination in employment on the basis of sex. The Pregnancy 
Discrimination Act makes it clear that ``because of sex'' or ``on the 
basis of sex'', as used in title VII, includes ``because of or on the 
basis of pregnancy, childbirth or related medical conditions.'' 
Therefore, title VII prohibits discrimination in employment against 
women affected by pregnancy or related conditions.
    The basic principle of the Act is that women affected by pregnancy 
and related conditions must be treated the same as other applicants and 
employees on the basis of their ability or inability to work. A woman is 
therefore protected against such practices as being fired, or refused a 
job or promotion, merely because she is pregnant or has had an abortion. 
She usually cannot be forced to go on leave as long as she can still 
work. If other employees who take disability leave are entitled to get 
their jobs back when they are able to work again, so are women who have 
been unable to work because of pregnancy.
    In the area of fringe benefits, such as disability benefits, sick 
leave and health insurance, the same principle applies. A woman unable 
to work for pregnancy-related reasons is entitled to disability benefits 
or sick leave on the same basis as employees unable to work for other 
medical reasons. Also, any health insurance provided must cover expenses 
for pregnancy-related conditions on the same basis as expenses for other 
medical conditions. However, health insurance for expenses arising from 
abortion is not required except where the life of the mother would be 
endangered if the fetus were carried to term, or where medical 
complications have arisen from an abortion.
    Some questions and answers about the Pregnancy Discrimination Act 
follow. Although the questions and answers often use only the term 
``employer,'' the Act--and these questions and answers--apply also to 
unions and other entities covered by title VII.
    1. Q. What is the effective date of the Pregnancy Discrimination 
Act?
    A. The Act became effective on October 31, 1978, except that with 
respect to fringe benefit programs in effect on that date, the Act will 
take effect 180 days thereafter, that is, April 29, 1979.
    To the extent that title VII already required employers to treat 
persons affected by pregnancy-related conditions the same as persons 
affected by other medical conditions, the Act does not change employee 
rights arising prior to October 31, 1978, or April 29, 1979. Most 
employment practices relating to pregnancy, childbirth and related 
conditions--whether concerning fringe benefits or other practices--were 
already controlled by title VII prior to this Act. For example, title 
VII has always prohibited an employer from firing, or refusing to hire 
or promote, a woman because of pregnancy or related conditions, and from 
failing to accord a woman on pregnancy-related leave the same seniority 
retention and accrual accorded those on other disability leaves.
    2. Q. If an employer had a sick leave policy in effect on October 
31, 1978, by what date must the employer bring its policy into 
compliance with the Act?
    A. With respect to payment of benefits, an employer has until April 
29, 1979, to bring into compliance any fringe benefit or insurance 
program, including a sick leave policy, which was in effect on October 
31, 1978. However, any such policy or program created after October 31, 
1978, must be in compliance when created.
    With respect to all aspects of sick leave policy other than payment 
of benefits, such as the terms governing retention and accrual of 
seniority, credit for vacation, and resumption of former job on return 
from sick leave,

[[Page 186]]

equality of treatment was required by title VII without the Amendment.
    3. Q. Must an employer provide benefits for pregnancy-related 
conditions to an employee whose pregnancy begins prior to April 29, 
1979, and continues beyond that date?
    A. As of April 29, 1979, the effective date of the Act's 
requirements, an employer must provide the same benefits for pregnancy-
related conditions as it provides for other conditions, regardless of 
when the pregnancy began. Thus, disability benefits must be paid for all 
absences on or after April 29, 1979, resulting from pregnancy-related 
temporary disabilities to the same extent as they are paid for absences 
resulting from other temporary disabilities. For example, if an employee 
gives birth before April 29, 1979, but is still unable to work on or 
after that date, she is entitled to the same disability benefits 
available to other employees. Similarily, medical insurance benefits 
must be paid for pregnancy-related expenses incurred on or after April 
29, 1979.
    If an employer requires an employee to be employed for a 
predetermined period prior to being eligible for insurance coverage, the 
period prior to April 29, 1979, during which a pregnant employee has 
been employed must be credited toward the eligibility waiting period on 
the same basis as for any other employee.
    As to any programs instituted for the first time after October 31, 
1978, coverage for pregnancy-related conditions must be provided in the 
same manner as for other medical conditions.
    4. Q. Would the answer to the preceding question be the same if the 
employee became pregnant prior to October 31, 1978?
    A. Yes.
    5. Q. If, for pregnancy-related reasons, an employee is unable to 
perform the functions of her job, does the employer have to provide her 
an alternative job?
    A. An employer is required to treat an employee temporarily unable 
to perform the functions of her job because of her pregnancy-related 
condition in the same manner as it treats other temporarily disabled 
employees, whether by providing modified tasks, alternative assignments, 
disability leaves, leaves without pay, etc. For example, a woman's 
primary job function may be the operation of a machine, and, incidental 
to that function, she may carry materials to and from the machine. If 
other employees temporarily unable to lift are relieved of these 
functions, pregnant employees also unable to lift must be temporarily 
relieved of the function.
    6. Q. What procedures may an employer use to determine whether to 
place on leave as unable to work a pregnant employee who claims she is 
able to work or deny leave to a pregnant employee who claims that she is 
disabled from work?
    A. An employer may not single out pregnancy-related conditions for 
special procedures for determining an employee's ability to work. 
However, an employer may use any procedure used to determine the ability 
of all employees to work. For example, if an employer requires its 
employees to submit a doctor's statement concerning their inability to 
work before granting leave or paying sick benefits, the employer may 
require employees affected by pregnancy-related conditions to submit 
such statement. Similarly, if an employer allows its employees to obtain 
doctor's statements from their personal physicians for absences due to 
other disabilities or return dates from other disabilities, it must 
accept doctor's statements from personal physicians for absences and 
return dates connected with pregnancy-related disabilities.
    7. Q. Can an employer have a rule which prohibits an employee from 
returning to work for a predetermined length of time after childbirth?
    A. No.
    8. Q. If an employee has been absent from work as a result of a 
pregnancy-related condition and recovers, may her employer require her 
to remain on leave until after her baby is born?
    A. No. An employee must be permitted to work at all times during 
pregnancy when she is able to perform her job.
    9. Q. Must an employer hold open the job of an employee who is 
absent on leave because she is temporarily disabled by pregnancy-related 
conditions?
    A. Unless the employee on leave has informed the employer that she 
does not intend to return to work, her job must be held open for her 
return on the same basis as jobs are held open for employees on sick or 
disability leave for other reasons.
    10. Q. May an employer's policy concerning the accrual and crediting 
of seniority during absences for medical conditions be different for 
employees affected by pregnancy-related conditions than for other 
employees?
    A. No. An employer's seniority policy must be the same for employees 
absent for pregnancy-related reasons as for those absent for other 
medical reasons.
    11. Q. For purposes of calculating such matters as vacations and pay 
increases, may an employer credit time spent on leave for pregnancy-
related reasons differently than time spent on leave for other reasons?
    A. No. An employer's policy with respect to crediting time for the 
purpose of calculating such matters as vacations and pay increases 
cannot treat employees on leave for pregnancy-related reasons less 
favorably than employees on leave for other reasons. For example, if 
employees on leave for medical reasons are credited with the time spent 
on leave when computing entitlement to vacation or pay raises, an 
employee on leave

[[Page 187]]

for pregnancy-related disability is entitled to the same kind of time 
credit.
    12. Q. Must an employer hire a woman who is medically unable, 
because of a pregnancy-related condition, to perform a necessary 
function of a job?
    A. An employer cannot refuse to hire a women because of her 
pregnancy-related condition so long as she is able to perform the major 
functions necessary to the job. Nor can an employer refuse to hire her 
because of its preferences against pregnant workers or the preferences 
of co-workers, clients, or customers.
    13. Q. May an employer limit disability benefits for pregnancy-
related conditions to married employees?
    A. No.
    14. Q. If an employer has an all female workforce or job 
classification, must benefits be provided for pregnancy-related 
conditions?
    A. Yes. If benefits are provided for other conditions, they must 
also be provided for pregnancy-related conditions.
    15. Q. For what length of time must an employer who provides income 
maintenance benefits for temporary disabilities provide such benefits 
for pregnancy-related disabilities?
    A. Benefits should be provided for as long as the employee is unable 
to work for medical reasons unless some other limitation is set for all 
other temporary disabilities, in which case pregnancy-related 
disabilities should be treated the same as other temporary disabilities.
    16. Q. Must an employer who provides benefits for long-term or 
permanent disabilities provide such benefits for pregnancy-related 
conditions?
    A. Yes. Benefits for long-term or permanent disabilities resulting 
from pregnancy-related conditions must be provided to the same extent 
that such benefits are provided for other conditions which result in 
long-term or permanent disability.
    17. Q. If an employer provides benefits to employees on leave, such 
as installment purchase disability insurance, payment of premiums for 
health, life or other insurance, continued payments into pension, saving 
or profit sharing plans, must the same benefits be provided for those on 
leave for pregnancy-related conditions?
    A. Yes, the employer must provide the same benefits for those on 
leave for pregnancy-related conditions as for those on leave for other 
reasons.
    18. Q. Can an employee who is absent due to a pregnancy-related 
disability be required to exhaust vacation benefits before receiving 
sick leave pay or disability benefits?
    A. No. If employees who are absent because of other disabling causes 
receive sick leave pay or disability benefits without any requirement 
that they first exhaust vacation benefits, the employer cannot impose 
this requirement on an employee absent for a pregnancy-related cause.
    18 (A). Q. Must an employer grant leave to a female employee for 
chidcare purposes after she is medically able to return to work 
following leave necessitated by pregnancy, childbirth or related medical 
conditions?
    A. While leave for childcare purposes is not covered by the 
Pregnancy Discrimination Act, ordinary title VII principles would 
require that leave for childcare purposes be granted on the same basis 
as leave which is granted to employees for other non-medical reasons. 
For example, if an employer allows its employees to take leave without 
pay or accrued annual leave for travel or education which is not job 
related, the same type of leave must be granted to those who wish to 
remain on leave for infant care, even though they are medically able to 
return to work.
    19. Q. If State law requires an employer to provide disability 
insurance for a specified period before and after childbirth, does 
compliance with the State law fulfill the employer's obligation under 
the Pregnancy Discrimination Act?
    A. Not necessarily. It is an employer's obligation to treat 
employees temporarily disabled by pregnancy in the same manner as 
employees affected by other temporary disabilities. Therefore, any 
restrictions imposed by State law on benefits for pregnancy-related 
disabilities, but not for other disabilities, do not excuse the employer 
from treating the individuals in both groups of employees the same. If, 
for example, a State law requires an employer to pay a maximum of 26 
weeks benefits for disabilities other than pregnancy-related ones but 
only six weeks for pregnancy-related disabilities, the employer must 
provide benefits for the additional weeks to an employee disabled by 
pregnancy-related conditions, up to the maximum provided other disabled 
employees.
    20. Q. If a State or local government provides its own employees 
income maintenance benefits for disabilities, may it provide different 
benefits for disabilities arising from pregnancy-related conditions than 
for disabilities arising from other conditions?
    A. No. State and local governments, as employers, are subject to the 
Pregnancy Discrimination Act in the same way as private employers and 
must bring their employment practices and programs into compliance with 
the Act, including disability and health insurance programs.
    21. Q. Must an employer provide health insurance coverage for the 
medical expenses of pregnancy-related conditions of the spouses of male 
employees? Of the dependents of all employees?
    A. Where an employer provides no coverage for dependents, the 
employer is not required to institute such coverage. However, if an 
employer's insurance program covers the

[[Page 188]]

medical expenses of spouses of female employees, then it must equally 
cover the medical expenses of spouses of male employees, including those 
arising from pregnancy-related conditions.
    But the insurance does not have to cover the pregnancy-related 
conditions of other dependents as long as it excludes the pregnancy-
related conditions of the dependents of male and female employees 
equally.
    22. Q. Must an employer provide the same level of health insurance 
coverage for the pregnancy-related medical conditions of the spouses of 
male employees as it provides for its female employees?
    A. No. It is not necessary to provide the same level of coverage for 
the pregnancy-related medical conditions of spouses of male employees as 
for female employees. However, where the employer provides coverage for 
the medical conditions of the spouses of its employees, then the level 
of coverage for pregnancy-related medical conditions of the spouses of 
male employees must be the same as the level of coverage for all other 
medical conditions of the spouses of female employees. For example, if 
the employer covers employees for 100 percent of reasonable and 
customary expenses sustained for a medical condition, but only covers 
dependent spouses for 50 percent of reasonable and customary expenses 
for their medical conditions, the pregnancy-related expenses of the male 
employee's spouse must be covered at the 50 percent level.
    23. Q. May an employer offer optional dependent coverage which 
excludes pregnancy-related medical conditions or offers less coverage 
for pregnancy-related medical conditions where the total premium for the 
optional coverage is paid by the employee?
    A. No. Pregnancy-related medical conditions must be treated the same 
as other medical conditions under any health or disability insurance or 
sick leave plan available in connection with employment, regardless of 
who pays the premiums.
    24. Q. Where an employer provides its employees a choice among 
several health insurance plans, must coverage for pregnancy-related 
conditions be offered in all of the plans?
    A. Yes. Each of the plans must cover pregnancy-related conditions. 
For example, an employee with a single coverage policy cannot be forced 
to purchase a more expensive family coverage policy in order to receive 
coverage for her own pregnancy-related condition.
    25. Q. On what basis should an employee be reimbursed for medical 
expenses arising from pregnancy, childbirth or related conditions?
    A. Pregnancy-related expenses should be reimbursed in the same 
manner as are expenses incurred for other medical conditions. Therefore, 
whether a plan reimburses the employees on a fixed basis, or a 
percentage of reasonable and customary charge basis, the same basis 
should be used for reimbursement of expenses incurred for pregnancy-
related conditions. Furthermore, if medical costs for pregnancy-related 
conditions increase, reevaluation of the reimbursement level should be 
conducted in the same manner as are cost reevaluations of increases for 
other medical conditions.
    Coverage provided by a health insurance program for other conditions 
must be provided for pregnancy-related conditions. For example, if a 
plan provides major medical coverage, pregnancy-related conditions must 
be so covered. Similarily, if a plan covers the cost of a private room 
for other conditions, the plan must cover the cost of a private room for 
pregnancy-related conditions. Finally, where a health insurance plan 
covers office visits to physicians, pre-natal and post-natal visits must 
be included in such coverage.
    26. Q. May an employer limit payment of costs for pregnancy-related 
medical conditions to a specified dollar amount set forth in an 
insurance policy, collective bargaining agreement or other statement of 
benefits to which an employee is entitled?
    A. The amounts payable for the costs incurred for pregnancy-related 
conditions can be limited only to the same extent as are costs for other 
conditions. Maximum recoverable dollar amounts may be specified for 
pregnancy-related conditions if such amounts are similarly specified for 
other conditions, and so long as the specified amounts in all instances 
cover the same proportion of actual costs. If, in addition to the 
scheduled amount for other procedures, additional costs are paid for, 
either directly or indirectly, by the employer, such additional payments 
must also be paid for pregnancy-related procedures.
    27. Q. May an employer impose a different deductible for payment of 
costs for pregnancy-related medical conditions than for costs of other 
medical conditions?
    A. No. Neither an additional deductible, an increase in the usual 
deductible, nor a larger deductible can be imposed for coverage for 
pregnancy-related medical costs, whether as a condition for inclusion of 
pregnancy-related costs in the policy or for payment of the costs when 
incurred. Thus, if pregnancy-related costs are the first incurred under 
the policy, the employee is required to pay only the same deductible as 
would otherwise be required had other medical costs been the first 
incurred. Once this deductible has been paid, no additional deductible 
can be required for other medical procedures. If the usual deductible 
has already been paid for other medical procedures, no additional 
deductible can be required when pregnancy-related costs are later 
incurred.

[[Page 189]]

    28. Q. If a health insurance plan excludes the payment of benefits 
for any conditions existing at the time the insured's coverage becomes 
effective (pre-existing condition clause), can benefits be denied for 
medical costs arising from a pregnancy existing at the time the coverage 
became effective?
    A. Yes. However, such benefits cannot be denied unless the pre-
existing condition clause also excludes benefits for other pre-existing 
conditions in the same way.
    29. Q. If an employer's insurance plan provides benefits after the 
insured's employment has ended (i.e. extended benefits) for costs 
connected with pregnancy and delivery where conception occurred while 
the insured was working for the employer, but not for the costs of any 
other medical condition which began prior to termination of employment, 
may an employer (a) continue to pay these extended benefits for 
pregnancy-related medical conditions but not for other medical 
conditions, or (b) terminate these benefits for pregnancy-related 
conditions?
    A. Where a health insurance plan currently provides extended 
benefits for other medical conditions on a less favorable basis than for 
pregnancy-related medical conditions, extended benefits must be provided 
for other medical conditions on the same basis as for pregnancy-related 
medical conditions. Therefore, an employer can neither continue to 
provide less benefits for other medical conditions nor reduce benefits 
currently paid for pregnancy-related medical conditions.
    30. Q. Where an employer's health insurance plan currently requires 
total disability as a prerequisite for payment of extended benefits for 
other medical conditions but not for pregnancy-related costs, may the 
employer now require total disability for payment of benefits for 
pregnancy-related medical conditions as well?
    A. Since extended benefits cannot be reduced in order to come into 
compliance with the Act, a more stringent prerequisite for payment of 
extended benefits for pregnancy-related medical conditions, such as a 
requirement for total disability, cannot be imposed. Thus, in this 
instance, in order to comply with the Act, the employer must treat other 
medical conditions as pregnancy-related conditions are treated.
    31. Q. Can the added cost of bringing benefit plans into compliance 
with the Act be apportioned between the employer and employee?
    A. The added cost, if any, can be apportioned between the employer 
and employee in the same proportion that the cost of the fringe benefit 
plan was apportioned on October 31, 1978, if that apportionment was 
nondiscriminatory. If the costs were not apportioned on October 31, 
1978, they may not be apportioned in order to come into compliance with 
the Act. However, in no circumstance may male or female employees be 
required to pay unequal apportionments on the basis of sex or pregnancy.
    32. Q. In order to come into compliance with the Act, may an 
employer reduce benefits or compensation?
    A. In order to come into compliance with the Act, benefits or 
compensation which an employer was paying on October 31, 1978 cannot be 
reduced before October 31, 1979 or before the expiration of a collective 
bargaining agreement in effect on October 31, 1978, whichever is later.
    Where an employer has not been in compliance with the Act by the 
times specified in the Act, and attempts to reduce benefits, or 
compensation, the employer may be required to remedy its practices in 
accord with ordinary title VII remedial principles.
    33. Q. Can an employer self-insure benefits for pregnancy-related 
conditions if it does not self-insure benefits for other medical 
conditions?
    A. Yes, so long as the benefits are the same. In measuring whether 
benefits are the same, factors other than the dollar coverage paid 
should be considered. Such factors include the range of choice of 
physicians and hospitals, and the processing and promptness of payment 
of claims.
    34. Q. Can an employer discharge, refuse to hire or otherwise 
discriminate against a woman because she has had an abortion?
    A. No. An employer cannot discriminate in its employment practices 
against a woman who has had an abortion.
    35. Q. Is an employer required to provide fringe benefits for 
abortions if fringe benefits are provided for other medical conditions?
    A. All fringe benefits other than health insurance, such as sick 
leave, which are provided for other medical conditions, must be provided 
for abortions. Health insurance, however, need be provided for abortions 
only where the life of the woman would be endangered if the fetus were 
carried to term or where medical complications arise from an abortion.
    36. Q. If complications arise during the course of an abortion, as 
for instance excessive hemorrhaging, must an employer's health insurance 
plan cover the additional cost due to the complications of the abortion?
    A. Yes. The plan is required to pay those additional costs 
attributable to the complications of the abortion. However, the employer 
is not required to pay for the abortion itself, except where the life of 
the mother would be endangered if the fetus were carried to term.
    37. Q. May an employer elect to provide insurance coverage for 
abortions?
    A. Yes. The Act specifically provides that an employer is not 
precluded from providing benefits for abortions whether directly or 
through a collective bargaining agreement, but if an employer decides to 
cover the costs

[[Page 190]]

of abortion, the employer must do so in the same manner and to the same 
degree as it covers other medical conditions.
[44 FR 23805, Apr. 20, 1979]



PART 1605--GUIDELINES ON DISCRIMINATION BECAUSE OF RELIGION--Table of Contents




Sec.
1605.1  ``Religious'' nature of a practice or belief.
1605.2  Reasonable accommodation without undue hardship as required by 
          section 701(j) of title VII of the Civil Rights Act of 1964.
1605.3  Selection practices.


Appendix A to Secs. 1605.2 and 1605.3--Background Information

    Authority: Title VII of the Civil Rights Act of 1964, as amended, 42 
U.S.C. 2000e et seq.

    Source: 45 FR 72612, Oct. 31, 1980, unless otherwise noted.



Sec. 1605.1  ``Religious'' nature of a practice or belief.

    In most cases whether or not a practice or belief is religious is 
not at issue. However, in those cases in which the issue does exist, the 
Commission will define religious practices to include moral or ethical 
beliefs as to what is right and wrong which are sincerely held with the 
strength of traditional religious views. This standard was developed in 
United States v. Seeger, 380 U.S. 163 (1965) and Welsh v. United States, 
398 U.S. 333 (1970). The Commission has consistently applied this 
standard in its decisions.1The fact that no religious group 
espouses such beliefs or the fact that the religious group to which the 
individual professes to belong may not accept such belief will not 
determine whether the belief is a religious belief of the employee or 
prospective employee. The phrase ``religious practice'' as used in these 
Guidelines includes both religious observances and practices, as stated 
in section 701(j), 42 U.S.C. 2000e(j).
---------------------------------------------------------------------------

    1 See CD 76-104 (1976), CCH para.6500; CD 71-2620 (1971), 
CCH para.6283; CD 71-779 (1970), CCH para.6180.
---------------------------------------------------------------------------



Sec. 1605.2  Reasonable accommodation without undue hardship as required by section 701(j) of title VII of the Civil Rights Act of 1964.

    (a) Purpose of this section. This section clarifies the obligation 
imposed by title VII of the Civil Rights Act of 1964, as amended, 
(sections 701(j), 703 and 717) to accommodate the religious practices of 
employees and prospective employees. This section does not address other 
obligations under title VII not to discriminate on grounds of religion, 
nor other provisions of title VII. This section is not intended to limit 
any additional obligations to accommodate religious practices which may 
exist pursuant to constitutional, or other statutory provisions; neither 
is it intended to provide guidance for statutes which require 
accommodation on bases other than religion such as section 503 of the 
Rehabilitation Act of 1973. The legal principles which have been 
developed with respect to discrimination prohibited by title VII on the 
bases of race, color, sex, and national origin also apply to religious 
discrimination in all circumstances other than where an accommodation is 
required.
    (b) Duty to accommodate. (1) Section 701(j) makes it an unlawful 
employment practice under section 703(a)(1) for an employer to fail to 
reasonably accommodate the religious practices of an employee or 
prospective employee, unless the employer demonstrates that 
accommodation would result in undue hardship on the conduct of its 
business.2
---------------------------------------------------------------------------

    2  See Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 74 
(1977).
---------------------------------------------------------------------------

    (2) Section 701(j) in conjunction with section 703(c), imposes an 
obligation on a labor organization to reasonably accommodate the 
religious practices of an employee or prospective employee, unless the 
labor organization demonstrates that accommodation would result in undue 
hardship.
    (3) Section 1605.2 is primarily directed to obligations of employers 
or labor organizations, which are the entities covered by title VII that 
will most often be required to make an accommodation. However, the 
principles of

[[Page 191]]

Sec. 1605.2 also apply when an accommodation can be required of other 
entities covered by title VII, such as employment agencies (section 
703(b)) or joint labor-management committees controlling apprecticeship 
or other training or retraining (section 703(d)). (See, for example, 
Sec. 1605.3(a) ``Scheduling of Tests or Other Selection Procedures.'')
    (c) Reasonable accommodation. (1) After an employee or prospective 
employee notifies the employer or labor organization of his or her need 
for a religious accommodation, the employer or labor organization has an 
obligation to reasonably accommodate the individual's religious 
practices. A refusal to accommodate is justified only when an employer 
or labor organization can demonstrate that an undue hardship would in 
fact result from each available alternative method of accommodation. A 
mere assumption that many more people, with the same religious practices 
as the person being accommodated, may also need accommodation is not 
evidence of undue hardship.
    (2) When there is more than one method of accommodation available 
which would not cause undue hardship, the Commission will determine 
whether the accommodation offered is reasonable by examining:
    (i) The alternatives for accommodation considered by the employer or 
labor organization; and
    (ii) The alternatives for accommodation, if any, actually offered to 
the individual requiring accommodation. Some alternatives for 
accommodating religious practices might disadvantage the individual with 
respect to his or her employment opportunites, such as compensation, 
terms, conditions, or privileges of employment. Therefore, when there is 
more than one means of accommodation which would not cause undue 
hardship, the employer or labor organization must offer the alternative 
which least disadvantages the individual with respect to his or her 
employment opportunities.
    (d) Alternatives for accommodating religious practices. (1) 
Employees and prospective employees most frequently request an 
accommodation because their religious practices conflict with their work 
schedules. The following subsections are some means of accommodating the 
conflict between work schedules and religious practices which the 
Commission believes that employers and labor organizations should 
consider as part of the obligation to accommodate and which the 
Commission will consider in investigating a charge. These are not 
intended to be all-inclusive. There are often other alternatives which 
would reasonably accommodate an individual's religious practices when 
they conflict with a work schedule. There are also employment practices 
besides work scheduling which may conflict with religious practices and 
cause an individual to request an accommodation. See, for example, the 
Commission's finding number (3) from its Hearings on Religious 
Discrimination, in appendix A to Secs. 1605.2 and 1605.3. The principles 
expressed in these Guidelines apply as well to such requests for 
accommodation.
    (i) Voluntary Substitutes and ``Swaps''.
    Reasonable accommodation without undue hardship is generally 
possible where a voluntary substitute with substantially similar 
qualifications is available. One means of substitution is the voluntary 
swap. In a number of cases, the securing of a substitute has been left 
entirely up to the individual seeking the accommodation. The Commission 
believes that the obligation to accommodate requires that employers and 
labor organizations facilitate the securing of a voluntary substitute 
with substantially similar qualifications. Some means of doing this 
which employers and labor organizations should consider are: to 
publicize policies regarding accommodation and voluntary substitution; 
to promote an atmosphere in which such substitutions are favorably 
regarded; to provide a central file, bulletin board or other means for 
matching voluntary substitutes with positions for which substitutes are 
needed.
    (ii) Flexible Scheduling.
    One means of providing reasonable accommodation for the religious 
practices of employees or prospective employees which employers and 
labor organizations should consider is the creation of a flexible work 
schedule for individuals requesting accommodation.

[[Page 192]]

    The following list is an example of areas in which flexibility might 
be introduced: flexible arrival and departure times; floating or 
optional holidays; flexible work breaks; use of lunch time in exchange 
for early departure; staggered work hours; and permitting an employee to 
make up time lost due to the observance of religious practices. 3
---------------------------------------------------------------------------

    3 On September 29, 1978, Congress enacted such a provision for 
the accommodation of Federal employees' religious practices. See Pub. L. 
95-390, 5 U.S.C. 5550a ``Compensatory Time Off for Religious 
Observances.''
---------------------------------------------------------------------------

    (iii) Lateral Transfer and Change of Job Assignments.
    When an employee cannot be accommodated either as to his or her 
entire job or an assignment within the job, employers and labor 
organizations should consider whether or not it is possible to change 
the job assignment or give the employee a lateral transfer.
    (2) Payment of Dues to a Labor Organization.
    Some collective bargaining agreements include a provision that each 
employee must join the labor organization or pay the labor organization 
a sum equivalent to dues. When an employee's religious practices to not 
permit compliance with such a provision, the labor organization should 
accommodate the employee by not requiring the employee to join the 
organization and by permitting him or her to donate a sum equivalent to 
dues to a charitable organization.
    (e) Undue hardship. (1) Cost. An employer may assert undue hardship 
to justify a refusal to accommodate an employee's need to be absent from 
his or her scheduled duty hours if the employer can demonstrate that the 
accommodation would require ``more than a de minimis 
cost''.4The Commission will determine what constitutes ``more 
than a de minimis cost'' with due regard given to the identifiable cost 
in relation to the size and operating cost of the employer, and the 
number of individuals who will in fact need a particular accommodation. 
In general, the Commission interprets this phrase as it was used in the 
Hardison decision to mean that costs similar to the regular payment of 
premium wages of substitutes, which was at issue in Hardison, would 
constitute undue hardship. However, the Commission will presume that the 
infrequent payment of premium wages for a substitute or the payment of 
premium wages while a more permanent accommodation is being sought are 
costs which an employer can be required to bear as a means of providing 
a reasonable accommodation. Further, the Commission will presume that 
generally, the payment of administrative costs necessary for providing 
the accommodation will not constitute more than a de minimis cost. 
Administrative costs, for example, include those costs involved in 
rearranging schedules and recording substitutions for payroll purposes.
---------------------------------------------------------------------------

    4 Hardison, supra, 432 U.S. at 84.
---------------------------------------------------------------------------

    (2) Seniority Rights. Undue hardship would also be shown where a 
variance from a bona fide seniority system is necessary in order to 
accommodate an employee's religious practices when doing so would deny 
another employee his or her job or shift preference guaranteed by that 
system. Hardison, supra, 432 U.S. at 80. Arrangements for voluntary 
substitutes and swaps (see paragraph (d)(1)(i) of this section) do not 
constitute an undue hardship to the extent the arrangements do not 
violate a bona fide seniority system. Nothing in the Statute or these 
Guidelines precludes an employer and a union from including arrangements 
for voluntary substitutes and swaps as part of a collective bargaining 
agreement.



Sec. 1605.3  Selection practices.

    (a) Scheduling of tests or other selection procedures. When a test 
or other selection procedure is scheduled at a time when an employee or 
prospective employee cannot attend because of his or her religious 
practices, the user of the test should be aware that the principles 
enunciated in these guidelines apply and that it has an obligation to 
accommodate such employee or prospective employee unless undue hardship 
would result.
    (b) Inquiries which determine an applicant's availability to work 
during an employer's scheduled working hours. (1) The duty to 
accommodate pertains to prospective employees as well as current 
employees. Consequently, an employer may not permit an applicant's need 
for a religious accommodation to affect in

[[Page 193]]

any way its decision whether to hire the applicant unless it can 
demonstrate that it cannot reasonably accommodate the applicant's 
religious practices without undue hardship.
    (2) As a result of the oral and written testimony submitted at the 
Commission's Hearings on Religious Discrimination, discussions with 
representatives of organizations interested in the issue of religious 
discrimination, and the comments received from the public on these 
Guidelines as proposed, the Commission has concluded that the use of 
pre-selection inquiries which determine an applicant's availability has 
an exclusionary effect on the employment opportunities of persons with 
certain religious practices. The use of such inquiries will, therefore, 
be considered to violate title VII unless the employer can show that it:
    (i) Did not have an exclusionary effect on its employees or 
prospective employees needing an accommodation for the same religious 
practices; or
    (ii) Was otherwise justified by business necessity.

Employers who believe they have a legitimate interest in knowing the 
availability of their applicants prior to selection must consider 
procedures which would serve this interest and which would have a lesser 
exclusionary effect on persons whose religious practices need 
accommodation. An example of such a procedure is for the employer to 
state the normal work hours for the job and, after making it clear to 
the applicant that he or she is not required to indicate the need for 
any absences for religious practices during the scheduled work hours, 
ask the applicant whether he or she is otherwise available to work those 
hours. Then, after a position is offered, but before the applicant is 
hired, the employer can inquire into the need for a religious 
accommodation and determine, according to the principles of these 
Guidelines, whether an accommodation is possible. This type of inquiry 
would provide an employer with information concerning the availability 
of most of its applicants, while deferring until after a position is 
offered the identification of the usually small number of applicants who 
require an accommodation.
    (3) The Commission will infer that the need for an accommodation 
discriminatorily influenced a decision to reject an applicant when: (i) 
prior to an offer of employment the employer makes an inquiry into an 
applicant's availability without having a business necessity 
justification; and (ii) after the employer has determined the 
applicant's need for an accommodation, the employer rejects a qualified 
applicant. The burden is then on the employer to demonstrate that 
factors other than the need for an accommodation were the reason for 
rejecting the qualified applicant, or that a reasonable accommodation 
without undue hardship was not possible.

      Appendix A to Secs. 1605.2 and 1605.3--Background Information

    In 1966, the Commission adopted guidelines on religious 
discrimination which stated that an employer had an obligation to 
accommodate the religious practices of its employees or prospective 
employees unless to do so would create a ``serious inconvenience to the 
conduct of the business''. 29 CFR 1605.1(a)(2), 31 FR 3870 (1966).
    In 1967, the Commission revised these guidelines to state that an 
employer had an obligation to reasonably accommodate the religious 
practices of its employees or prospective employees, unless the employer 
could prove that to do so would create an ``undue hardship''. 29 CFR 
1605.1(b)(c), 32 FR 10298.
    In 1972, Congress amended title VII to incorporate the obligation to 
accommodate expressed in the Commission's 1967 Guidelines by adding 
section 701(j).
    In 1977, the United States Supreme Court issued its decision in the 
case of Trans World Airlines, Inc. v. Hardison, 432 U.S. 63 (1977). 
Hardison was brought under section 703(a)(1) because it involved facts 
occurring before the enactment of section 701(j). The Court applied the 
Commission's 1967 Guidelines, but indicated that the result would be the 
same under section 701(j). It stated that Trans World Airlines had made 
reasonable efforts to accommodate the religious needs of its employee, 
Hardison. The Court held that to require Trans World Airlines to make 
further attempts at accommodations--by unilaterally violating a 
seniority provision of the collective bargaining agreement, paying 
premium wages on a regular basis to another employee to replace 
Hardison, or creating a serious shortage of necessary employees in 
another department in order to replace Hardison--would create an undue 
hardship on the conduct of Trans World Airlines'

[[Page 194]]

business, and would therefore, exceed the duty to accommodate Hardison.
    In 1978, the Commission conducted public hearings on religious 
discrimination in New York City, Milwaukee, and Los Angeles in order to 
respond to the concerns raised by Hardison. Approximately 150 witnesses 
testified or submitted written statements.5The witnesses 
included employers, employees, representatives of religious and labor 
organizations and representatives of Federal, State and local 
governments.
---------------------------------------------------------------------------

    5 The transcript of the Commission's Hearings on 
Religious Discrimination can be examined by the public at: The Equal 
Employment Opportunity Commission, 2401 E Street NW., Washington, DC 
20506.
---------------------------------------------------------------------------

    The Commission found from the hearings that:
    (1) There is widespread confusion concerning the extent of 
accommodation under the Hardison decision.
    (2) The religious practices of some individuals and some groups of 
individuals are not being accommodated.
    (3) Some of those practices which are not being accommodated are:
    --Observance of a Sabbath or religious holidays;
    --Need for prayer break during working hours;
    --Practice of following certain dietary requirements;
    --Practice of not working during a mourning period for a deceased 
relative;
    --Prohibition against medical examinations;
    --Prohibition against membership in labor and other organizations; 
and
    --Practices concerning dress and other personal grooming habits.
    (4) Many of the employers who testified had developed alternative 
employment practices which accommodate the religious practices of 
employees and prospective employees and which meet the employer's 
business needs.
    (5) Little evidence was submitted by employers which showed actual 
attempts to accommodate religious practices with resultant unfavorable 
consequences to the employer's business. Employers appeared to have 
substantial anticipatory concerns but no, or very little, actual 
experience with the problems they theorized would emerge by providing 
reasonable accommodation for religious practices.
    Based on these findings, the Commission is revising its Guidelines 
to clarify the obligation imposed by section 701(j) to accommodate the 
religious practices of employees and prospective employees.



PART 1606--GUIDELINES ON DISCRIMINATION BECAUSE OF NATIONAL ORIGIN--Table of Contents




Sec.
1606.1  Definition of national origin discrimination.
1606.2  Scope of title VII protection.
1606.3  The national security exception.
1606.4  The bona fide occupational qualification exception.
1606.5  Citizenship requirements.
1606.6  Selection procedures.
1606.7  Speak-English-only rules.
1606.8  Harassment.

    Authority: Title VII of the Civil Rights Act of 1964, as amended, 42 
U.S.C. 2000e et seq.

    Source: 45 FR 85635, Dec. 29, 1980, unless otherwise noted.



Sec. 1606.1  Definition of national origin discrimination.

    The Commission defines national origin discrimination broadly as 
including, but not limited to, the denial of equal employment 
opportunity because of an individual's, or his or her ancestor's, place 
of origin; or because an individual has the physical, cultural or 
linguistic characteristics of a national origin group. The Commission 
will examine with particular concern charges alleging that individuals 
within the jurisdiction of the Commission have been denied equal 
employment opportunity for reasons which are grounded in national origin 
considerations, such as (a) marriage to or association with persons of a 
national origin group; (b) membership in, or association with an 
organization identified with or seeking to promote the interests of 
national origin groups; (c) attendance or participation in schools, 
churches, temples or mosques, generally used by persons of a national 
origin group; and (d) because an individual's name or spouse's name is 
associated with a national origin group. In examining these charges for 
unlawful national origin discrimination, the Commission will apply 
general title VII principles, such as disparate treatment and adverse 
impact.



Sec. 1606.2  Scope of title VII protection.

    Title VII of the Civil Rights Act of 1964, as amended, protects 
individuals against employment discrimination on the basis of race, 
color, religion, sex or

[[Page 195]]

national origin. The title VII principles of disparate treatment and 
adverse impact equally apply to national origin discrimination. These 
Guidelines apply to all entities covered by title VII (collectively 
referred to as ``employer'').



Sec. 1606.3  The national security exception.

    It is not an unlawful employment practice to deny employment 
opportunities to any individual who does not fulfill the national 
security requirements stated in section 703(g) of title VII.1
---------------------------------------------------------------------------

    1 See also, 5 U.S.C. 7532, for the authority of the head of a 
Federal agency or department to suspend or remove an employee on grounds 
of national security.
---------------------------------------------------------------------------



Sec. 1606.4  The bona fide occupational qualification exception.

    The exception stated in section 703(e) of title VII, that national 
origin may be a bona fide occupational qualification, shall be strictly 
construed.



Sec. 1606.5  Citizenship requirements.

    (a) In those circumstances, where citizenship requirements have the 
purpose or effect of discriminating against an individual on the basis 
of national origin, they are prohibited by title VII.2
---------------------------------------------------------------------------

    2 See Espinoza v. Farah Mfg. Co., Inc., 414 U.S. 86, 92 
(1973). See also, E.O. 11935, 5 CFR 7.4; and 31 U.S.C. 699(b), for 
citizenship requirements in certain Federal employment.
---------------------------------------------------------------------------

    (b) Some State laws prohibit the employment of non-citizens. Where 
these laws are in conflict with title VII, they are superseded under 
section 708 of the title.



Sec. 1606.6  Selection procedures.

    (a)(1) In investigating an employer's selection procedures 
(including those identified below) for adverse impact on the basis of 
national origin, the Commission will apply the Uniform Guidelines on 
Employee Selection Procedures (UGESP), 29 CFR part 1607. Employers and 
other users of selection procedures should refer to the UGESP for 
guidance on matters, such as adverse impact, validation and 
recordkeeping requirements for national origin groups.
    (2) Because height or weight requirements tend to exclude 
individuals on the basis of national origin,3the user is 
expected to evaluate these selection procedures for adverse impact, 
regardless of whether the total selection process has an adverse impact 
based on national origin. Therefore, height or weight requirements are 
identified here, as they are in the UGESP,4as exceptions to 
the ``bottom line'' concept.
---------------------------------------------------------------------------

    3 See CD 71-1529 (1971), CCH EEOC Decisions para.6231, 3 
FEP Cases 952; CD 71-1418 (1971), CCH EEOC Decisions para.6223, 3 FEP 
Cases 580; CD 74-25 (1973), CCH EEOC Decisions para.6400, 10 FEP Cases 
260. Davis v. County of Los Angeles, 566 F. 2d 1334, 1341-42 (9th Cir., 
1977) vacated and remanded as moot on other grounds, 440 U.S. 625 
(1979). See also, Dothard v. Rawlinson, 433 U.S. 321 (1977).
    4 See section 4C(2) of the Uniform Guidelines on Employee 
Selection Procedures, 29 CFR 1607.4C(2).
---------------------------------------------------------------------------

    (b) The Commission has found that the use of the following selection 
procedures may be discriminatory on the basis of national origin. 
Therefore, it will carefully investigate charges involving these 
selection procedures for both disparate treatment and adverse impact on 
the basis of national origin. However, the Commission does not consider 
these to be exceptions to the ``bottom line'' concept:
    (1) Fluency-in-English requirements, such as denying employment 
opportunities because of an individual's foreign accent,5or 
inability to communicate well in English.6
---------------------------------------------------------------------------

    5 See CD AL68-1-155E (1969), CCH EEOC Decisions para.6008, 1 
FEP Cases 921.
    6 See CD YAU9-048 (1969), CCH EEOC Decisions para.6054, 2 
FEP Cases 78.
---------------------------------------------------------------------------

    (2) Training or education requirements which deny employment 
opportunities to an individual because of his or her foreign training or 
education, or which require an individual to be foreign trained or 
educated.



Sec. 1606.7  Speak-English-only rules.

    (a) When applied at all times. A rule requiring employees to speak 
only English at all times in the workplace is a burdensome term and 
condition of employment. The primary language of an individual is often 
an essential national origin characteristic. Prohibiting employees at 
all times, in the workplace, from speaking their primary language or the 
language they speak most comfortably, disadvantages

[[Page 196]]

an individual's employment opportunities on the basis of national 
origin. It may also create an atmosphere of inferiority, isolation and 
intimidation based on national origin which could result in a 
discriminatory working environment.7Therefore, the Commission 
will presume that such a rule violates title VII and will closely 
scrutinize it.
---------------------------------------------------------------------------

    7 See CD 71-446 (1970), CCH EEOC Decisions para.6173, 2 
FEP Cases, 1127; CD 72-0281 (1971), CCH EEOC Decisions para.6293.
---------------------------------------------------------------------------

    (b) When applied only at certain times. An employer may have a rule 
requiring that employees speak only in English at certain times where 
the employer can show that the rule is justified by business necessity.
    (c) Notice of the rule. It is common for individuals whose primary 
language is not English to inadvertently change from speaking English to 
speaking their primary language. Therefore, if an employer believes it 
has a business necessity for a speak-English-only rule at certain times, 
the employer should inform its employees of the general circumstances 
when speaking only in English is required and of the consequences of 
violating the rule. If an employer fails to effectively notify its 
employees of the rule and makes an adverse employment decision against 
an individual based on a violation of the rule, the Commission will 
consider the employer's application of the rule as evidence of 
discrimination on the basis of national origin.



Sec. 1606.8  Harassment.

    (a) The Commission has consistently held that harassment on the 
basis of national origin is a violation of title VII. An employer has an 
affirmative duty to maintain a working environment free of harassment on 
the basis of national origin.8
---------------------------------------------------------------------------

    8 See CD CL68-12-431 EU (1969), CCH EEOC Decisions para.6085, 
2 FEP Cases 295; CD 72-0621 (1971), CCH EEOC Decisions para.6311, 4 FEP 
Cases 312; CD 72-1561 (1972), CCH EEOC Decisions para.6354, 4 FEP Cases 
852; CD 74-05 (1973), CCH EEOC Decisions para.6387, 6 FEP Cases 834; CD 
76-41 (1975), CCH EEOC Decisions para.6632. See also, Amendment to 
Guidelines on Discrimination Because of Sex, Sec. 1604.11(a) n. 1, 45 FR 
7476 sy 74677 (November 10, 1980).
---------------------------------------------------------------------------

    (b) Ethnic slurs and other verbal or physical conduct relating to an 
individual's national origin constitute harassment when this conduct:
    (1) Has the purpose or effect of creating an intimidating, hostile 
or offensive working environment;
    (2) Has the purpose or effect of unreasonably interfering with an 
individual's work performance; or
    (3) Otherwise adversely affects an individual's employment 
opportunities.
    (c) An employer is responsible for its acts and those of its agents 
and supervisory employees with respect to harassment on the basis of 
national origin regardless of whether the specific acts complained of 
were authorized or even forbidden by the employer and regardless of 
whether the employer knew or should have known of their occurrence. The 
Commission will examine the circumstances of the particular employment 
relationship and the job functions performed by the individual in 
determining whether an individual acts in either a supervisory or agency 
capacity.
    (d) With respect to conduct between fellow employees, an employer is 
responsible for acts of harassment in the workplace on the basis of 
national origin, where the employer, its agents or supervisory 
employees, knows or should have known of the conduct, unless the 
employer can show that it took immediate and appropriate corrective 
action.
    (e) An employer may also be responsible for the acts of non-
employees with respect to harassment of employees in the workplace on 
the basis of national origin, where the employer, its agents or 
supervisory employees, knows or should have known of the conduct and 
fails to take immediate and appropriate corrective action. In reviewing 
these cases, the Commission will consider the extent of the employer's 
control and any other legal responsibility which the employer may have 
with respect to the conduct of such non-employees.

[[Page 197]]



PART 1607--UNIFORM GUIDELINES ON EMPLOYEE SELECTION PROCEDURES (1978)--Table of Contents




                     Comprehensive Table of Contents

                           general principles

1607.1. Statement of purpose
A. Need for uniformity--issuing agencies
B. Purpose of guidelines
C. Relation to prior guidelines
1607.2. Scope
A. Application of guidelines
B. Employment decisions
C. Selection procedures
D. Limitations
E. Indian preference not affected
1607.3. Discrimination defined: Relationship between use of selection 
          procedures and discrimination
A. Procedure having adverse impact constitutes discrimination unless 
justified
B. Consideration of suitable alternative selection procedures
1607.4. Information on impact
A. Records concerning impact
B. Applicable race, sex and ethnic groups for recordkeeping
C. Evaluation of selection rates. The ``bottom line''
D. Adverse impact and the ``four-fifths rule''
E. Consideration of user's equal employment opportunity posture
1607.5. General standards for validity studies
A. Acceptable types of validity studies
B. Criterion-related, content, and construct validity
C. Guidelines are consistent with professional standards
D. Need for documentation of validity
E. Accuracy and standardization
F. Caution against selection on basis of knowledges, skills or ability 
learned in brief orientation period
G. Method of use of selection procedures
H. Cutoff scores
I. Use of selection procedures for higher level jobs
J. Interim use of selection procedures
K. Review of validity studies for currency
1607.6. Use of selection procedures which have not been validated
A. Use of alternate selection procedures to eliminate adverse impact
B. Where validity studies cannot or need not be performed
(1) Where informal or unscored procedures are used
(2) Where formal and scored procedures are used
1607.7. Use of other validity studies
A. Validity studies not conducted by the user
B. Use of criterion-related validity evidence from other sources
(1) Validity evidence
(2) Job similarity
(3) Fairness evidence
C. Validity evidence from multiunit study
D. Other significant variables
1607.8. Cooperative studies
A. Encouragement of cooperative studies
B. Standards for use of cooperative studies
1607.9. No assumption of validity
A. Unacceptable substitutes for evidence of validity
B. Encouragement of professional supervision
1607.10. Employment agencies and employment services
A. Where selection procedures are devised by agency
B. Where selection procedures are devised elsewhere
1607.11. Disparate treatment
1607.12. Retesting of applicants
1607.13. Affirmative action
A. Affirmative action obligations
B. Encouragement of voluntary affirmative action programs

                           technical standards

1607.14. Technical standards for validity studies
A. Validity studies should be based on review of information about the 
job
B. Technical standards for criterion-related validity studies
(1) Technical feasibility
(2) Analysis of the job
(3) Criterion measures
(4) Representativeness of the sample
(5) Statistical relationships
(6) Operational use of selection procedures
(7) Overstatement of validity findings
(8) Fairness
(a) Unfairness defined
(b) Investigation of fairness
(c) General considerations in fairness investigations
(d) When unfairness is shown
(e) Technical feasibility of fairness studies
(f) Continued use of selection procedures when fairness studies not 
feasible
C. Technical standards for content validity studies
(1) Appropriateness of content validity studies
(2) Job analysis for content validity
(3) Development of selection procedures
(4) Standards for demonstrating content validity
(5) Reliability
(6) Prior training or experience
(7) Content validity of training success
(8) Operational use
(9) Ranking based on content validity studies
D. Technical standards for construct validity studies

[[Page 198]]

(1) Appropriateness of construct validity studies
(2) Job analysis for construct validity studies
(3) Relationship to the job
(4) Use of construct validity study without new criterion-related 
evidence
(a) Standards for use
(b) Determination of common work behaviors

              documentation of impact and validity evidence

1607.15. Documentation of impact and validity evidence
A. Required information
(1) Simplified recordkeeping for users with less than 100 employees
(2) Information on impact
(a) Collection of information on impact
(b) When adverse impact has been eliminated in the total selection 
process
(c) When data insufficient to determine impact
(3) Documentation of validity evidence
(a) Types of evidence
(b) Form of report
(c) Completeness
B. Criterion-related validity studies
(1) User(s), location(s), and date(s) of study
(2) Problem and setting
(3) Job analysis or review of job information
(4) Job titles and codes
(5) Criterion measures
(6) Sample description
(7) Description of selection procedures
(8) Techniques and results
(9) Alternative procedures investigated
(10) Uses and applications
(11) Source data
(12) Contact person
(13) Accuracy and completeness
C. Content validity studies
(1) User(s), location(s), and date(s) of study
(2) Problem and setting
(3) Job analysis--Content of the job
(4) Selection procedure and its content
(5) Relationship between the selection procedure and the job
(6) Alternative procedures investigated
(7) Uses and applications
(8) Contact person
(9) Accuracy and completeness
D. Construct validity studies
(1) User(s), location(s), and date(s) of study
(2) Problem and setting
(3) Construct definition
(4) Job analysis
(5) Job titles and codes
(6) Selection procedure
(7) Relationship to job performance
(8) Alternative procedures investigated
(9) Uses and applications
(10) Accuracy and completeness
(11) Source data
(12) Contact person
E. Evidence of validity from other studies
(1) Evidence from criterion-related validity studies
(a) Job information
(b) Relevance of criteria
(c) Other variables
(d) Use of the selection procedure
(e) Bibliography
(2) Evidence from content validity studies
(3) Evidence from construct validity studies
F. Evidence of validity from cooperative studies
G. Selection for higher level job
H. Interim use of selection procedures

                               definitions

1607.16. Definitions

                                appendix

1607.17. Policy statement on affirmative action (see section 13B)
1607.18. Citations

    Authority: Secs. 709 and 713, Civil Rights Act of 1964 (78 Stat. 
265) as amended by the Equal Employment Opportunity Act of 1972 (Pub. L. 
92-261); 42 U.S.C. 2000e-8, 2000e-12.

    Source: 43 FR 38295, 38312, Aug. 25, 1978, unless otherwise noted.

                           General Principles



Sec. 1607.1  Statement of purpose.

    A. Need for uniformity--Issuing agencies. The Federal government's 
need for a uniform set of principles on the question of the use of tests 
and other selection procedures has long been recognized. The Equal 
Employment Opportunity Commission, the Civil Service Commission, the 
Department of Labor, and the Department of Justice jointly have adopted 
these uniform guidelines to meet that need, and to apply the same 
principles to the Federal Government as are applied to other employers.
    B. Purpose of guidelines. These guidelines incorporate a single set 
of principles which are designed to assist employers, labor 
organizations, employment agencies, and licensing and certification 
boards to comply with requirements of Federal law prohibiting employment 
practices which discriminate on grounds of race, color, religion,

[[Page 199]]

sex, and national origin. They are designed to provide a framework for 
determining the proper use of tests and other selection procedures. 
These guidelines do not require a user to conduct validity studies of 
selection procedures where no adverse impact results. However, all users 
are encouraged to use selection procedures which are valid, especially 
users operating under merit principles.
    C. Relation to prior guidelines. These guidelines are based upon and 
supersede previously issued guidelines on employee selection procedures. 
These guidelines have been built upon court decisions, the previously 
issued guidelines of the agencies, and the practical experience of the 
agencies, as well as the standards of the psychological profession. 
These guidelines are intended to be consistent with existing law.



Sec. 1607.2  Scope.

    A. Application of guidelines. These guidelines will be applied by 
the Equal Employment Opportunity Commission in the enforcement of title 
VII of the Civil Rights Act of 1964, as amended by the Equal Employment 
Opportunity Act of 1972 (hereinafter ``title VII''); by the Department 
of Labor, and the contract compliance agencies until the transfer of 
authority contemplated by the President's Reorganization Plan No. 1 of 
1978, in the administration and enforcement of Executive Order 11246, as 
amended by Executive Order 11375 (hereinafter ``Executive Order 
11246''); by the Civil Service Commission and other Federal agencies 
subject to section 717 of title VII; by the Civil Service Commission in 
exercising its responsibilities toward State and local governments under 
section 208(b)(1) of the Intergovernmental-Personnel Act; by the 
Department of Justice in exercising its responsibilities under Federal 
law; by the Office of Revenue Sharing of the Department of the Treasury 
under the State and Local Fiscal Assistance Act of 1972, as amended; and 
by any other Federal agency which adopts them.
    B. Employment decisions. These guidelines apply to tests and other 
selection procedures which are used as a basis for any employment 
decision. Employment decisions include but are not limited to hiring, 
promotion, demotion, membership (for example, in a labor organization), 
referral, retention, and licensing and certification, to the extent that 
licensing and certification may be covered by Federal equal employment 
opportunity law. Other selection decisions, such as selection for 
training or transfer, may also be considered employment decisions if 
they lead to any of the decisions listed above.
    C. Selection procedures. These guidelines apply only to selection 
procedures which are used as a basis for making employment decisions. 
For example, the use of recruiting procedures designed to attract 
members of a particular race, sex, or ethnic group, which were 
previously denied employment opportunities or which are currently 
underutilized, may be necessary to bring an employer into compliance 
with Federal law, and is frequently an essential element of any 
effective affirmative action program; but recruitment practices are not 
considered by these guidelines to be selection procedures. Similarly, 
these guidelines do not pertain to the question of the lawfulness of a 
seniority system within the meaning of section 703(h), Executive Order 
11246 or other provisions of Federal law or regulation, except to the 
extent that such systems utilize selection procedures to determine 
qualifications or abilities to perform the job. Nothing in these 
guidelines is intended or should be interpreted as discouraging the use 
of a selection procedure for the purpose of determining qualifications 
or for the purpose of selection on the basis of relative qualifications, 
if the selection procedure had been validated in accord with these 
guidelines for each such purpose for which it is to be used.
    D. Limitations. These guidelines apply only to persons subject to 
title VII, Executive Order 11246, or other equal employment opportunity 
requirements of Federal law. These guidelines do not apply to 
responsibilities under the Age Discrimination in Employment Act of 1967, 
as amended, not to discriminate on the basis of age, or under sections 
501, 503, and 504 of the Rehabilitation Act of 1973, not to discriminate 
on the basis of handicap.

[[Page 200]]

    E. Indian preference not affected. These guidelines do not restrict 
any obligation imposed or right granted by Federal law to users to 
extend a preference in employment to Indians living on or near an Indian 
reservation in connection with employment opportunities on or near an 
Indian reservation.



Sec. 1607.3  Discrimination defined: Relationship between use of selection procedures and discrimination.

    A. Procedure having adverse impact constitutes discrimination unless 
justified. The use of any selection procedure which has an adverse 
impact on the hiring, promotion, or other employment or membership 
opportunities of members of any race, sex, or ethnic group will be 
considered to be discriminatory and inconsistent with these guidelines, 
unless the procedure has been validated in accordance with these 
guidelines, or the provisions of section 6 below are satisfied.
    B. Consideration of suitable alternative selection procedures. Where 
two or more selection procedures are available which serve the user's 
legitimate interest in efficient and trustworthy workmanship, and which 
are substantially equally valid for a given purpose, the user should use 
the procedure which has been demonstrated to have the lesser adverse 
impact. Accordingly, whenever a validity study is called for by these 
guidelines, the user should include, as a part of the validity study, an 
investigation of suitable alternative selection procedures and suitable 
alternative methods of using the selection procedure which have as 
little adverse impact as possible, to determine the appropriateness of 
using or validating them in accord with these guidelines. If a user has 
made a reasonable effort to become aware of such alternative procedures 
and validity has been demonstrated in accord with these guidelines, the 
use of the test or other selection procedure may continue until such 
time as it should reasonably be reviewed for currency. Whenever the user 
is shown an alternative selection procedure with evidence of less 
adverse impact and substantial evidence of validity for the same job in 
similar circumstances, the user should investigate it to determine the 
appropriateness of using or validating it in accord with these 
guidelines. This subsection is not intended to preclude the combination 
of procedures into a significantly more valid procedure, if the use of 
such a combination has been shown to be in compliance with the 
guidelines.



Sec. 1607.4  Information on impact.

    A. Records concerning impact. Each user should maintain and have 
available for inspection records or other information which will 
disclose the impact which its tests and other selection procedures have 
upon employment opportunities of persons by identifiable race, sex, or 
ethnic group as set forth in paragraph B of this section, in order to 
determine compliance with these guidelines. Where there are large 
numbers of applicants and procedures are administered frequently, such 
information may be retained on a sample basis, provided that the sample 
is appropriate in terms of the applicant population and adequate in 
size.
    B. Applicable race, sex, and ethnic groups for recordkeeping. The 
records called for by this section are to be maintained by sex, and the 
following races and ethnic groups: Blacks (Negroes), American Indians 
(including Alaskan Natives), Asians (including Pacific Islanders), 
Hispanic (including persons of Mexican, Puerto Rican, Cuban, Central or 
South American, or other Spanish origin or culture regardless of race), 
whites (Caucasians) other than Hispanic, and totals. The race, sex, and 
ethnic classifications called for by this section are consistent with 
the Equal Employment Opportunity Standard Form 100, Employer Information 
Report EEO-1 series of reports. The user should adopt safeguards to 
insure that the records required by this paragraph are used for 
appropriate purposes such as determining adverse impact, or (where 
required) for developing and monitoring affirmative action programs, and 
that such records are not used improperly. See sections 4E and 17(4), 
below.
    C. Evaluation of selection rates. The ``bottom line.'' If the 
information called for by sections 4A and B above shows that the total 
selection process for a

[[Page 201]]

job has an adverse impact, the individual components of the selection 
process should be evaluated for adverse impact. If this information 
shows that the total selection process does not have an adverse impact, 
the Federal enforcement agencies, in the exercise of their 
administrative and prosecutorial discretion, in usual circumstances, 
will not expect a user to evaluate the individual components for adverse 
impact, or to validate such individual components, and will not take 
enforcement action based upon adverse impact of any component of that 
process, including the separate parts of a multipart selection procedure 
or any separate procedure that is used as an alternative method of 
selection. However, in the following circumstances the Federal 
enforcement agencies will expect a user to evaluate the individual 
components for adverse impact and may, where appropriate, take 
enforcement action with respect to the individual components:
    (1) Where the selection procedure is a significant factor in the 
continuation of patterns of assignments of incumbent employees caused by 
prior discriminatory employment practices, (2) where the weight of court 
decisions or administrative interpretations hold that a specific 
procedure (such as height or weight requirements or no-arrest records) 
is not job related in the same or similar circumstances. In unusual 
circumstances, other than those listed in (1) and (2) of this paragraph, 
the Federal enforcement agencies may request a user to evaluate the 
individual components for adverse impact and may, where appropriate, 
take enforcement action with respect to the individual component.
    D. Adverse impact and the ``four-fifths rule.'' A selection rate for 
any race, sex, or ethnic group which is less than four-fifths (\4/5\) 
(or eighty percent) of the rate for the group with the highest rate will 
generally be regarded by the Federal enforcement agencies as evidence of 
adverse impact, while a greater than four-fifths rate will generally not 
be regarded by Federal enforcement agencies as evidence of adverse 
impact. Smaller differences in selection rate may nevertheless 
constitute adverse impact, where they are significant in both 
statistical and practical terms or where a user's actions have 
discouraged applicants disproportionately on grounds of race, sex, or 
ethnic group. Greater differences in selection rate may not constitute 
adverse impact where the differences are based on small numbers and are 
not statistically significant, or where special recruiting or other 
programs cause the pool of minority or female candidates to be atypical 
of the normal pool of applicants from that group. Where the user's 
evidence concerning the impact of a selection procedure indicates 
adverse impact but is based upon numbers which are too small to be 
reliable, evidence concerning the impact of the procedure over a longer 
period of time and/or evidence concerning the impact which the selection 
procedure had when used in the same manner in similar circumstances 
elsewhere may be considered in determining adverse impact. Where the 
user has not maintained data on adverse impact as required by the 
documentation section of applicable guidelines, the Federal enforcement 
agencies may draw an inference of adverse impact of the selection 
process from the failure of the user to maintain such data, if the user 
has an underutilization of a group in the job category, as compared to 
the group's representation in the relevant labor market or, in the case 
of jobs filled from within, the applicable work force.
    E. Consideration of user's equal employment opportunity posture. In 
carrying out their obligations, the Federal enforcement agencies will 
consider the general posture of the user with respect to equal 
employment opportunity for the job or group of jobs in question. Where a 
user has adopted an affirmative action program, the Federal enforcement 
agencies will consider the provisions of that program, including the 
goals and timetables which the user has adopted and the progress which 
the user has made in carrying out that program and in meeting the goals 
and timetables. While such affirmative action programs may in design and 
execution be race, color, sex, or ethnic conscious, selection procedures 
under such programs should be

[[Page 202]]

based upon the ability or relative ability to do the work.

(Approved by the Office of Management and Budget under control number 
3046-0017)


(Pub. L. 96-511, 94 Stat. 2812 (44 U.S.C. 3501 et seq.))
[43 FR 38295, 38312, Aug. 25, 1978, as amended at 46 FR 63268, Dec. 31, 
1981]



Sec. 1607.5  General standards for validity studies.

    A. Acceptable types of validity studies. For the purposes of 
satisfying these guidelines, users may rely upon criterion-related 
validity studies, content validity studies or construct validity 
studies, in accordance with the standards set forth in the technical 
standards of these guidelines, section 14 below. New strategies for 
showing the validity of selection procedures will be evaluated as they 
become accepted by the psychological profession.
    B. Criterion-related, content, and construct validity. Evidence of 
the validity of a test or other selection procedure by a criterion-
related validity study should consist of empirical data demonstrating 
that the selection procedure is predictive of or significantly 
correlated with important elements of job performance. See section 14B 
below. Evidence of the validity of a test or other selection procedure 
by a content validity study should consist of data showing that the 
content of the selection procedure is representative of important 
aspects of performance on the job for which the candidates are to be 
evaluated. See 14C below. Evidence of the validity of a test or other 
selection procedure through a construct validity study should consist of 
data showing that the procedure measures the degree to which candidates 
have identifiable characteristics which have been determined to be 
important in successful performance in the job for which the candidates 
are to be evaluated. See section 14D below.
    C. Guidelines are consistent with professional standards. The 
provisions of these guidelines relating to validation of selection 
procedures are intended to be consistent with generally accepted 
professional standards for evaluating standardized tests and other 
selection procedures, such as those described in the Standards for 
Educational and Psychological Tests prepared by a joint committee of the 
American Psychological Association, the American Educational Research 
Association, and the National Council on Measurement in Education 
(American Psychological Association, Washington, DC, 1974) (hereinafter 
``A.P.A. Standards'') and standard textbooks and journals in the field 
of personnel selection.
    D. Need for documentation of validity. For any selection procedure 
which is part of a selection process which has an adverse impact and 
which selection procedure has an adverse impact, each user should 
maintain and have available such documentation as is described in 
section 15 below.
    E. Accuracy and standardization. Validity studies should be carried 
out under conditions which assure insofar as possible the adequacy and 
accuracy of the research and the report. Selection procedures should be 
administered and scored under standardized conditions.
    F. Caution against selection on basis of knowledges, skills, or 
ability learned in brief orientation period. In general, users should 
avoid making employment decisions on the basis of measures of 
knowledges, skills, or abilities which are normally learned in a brief 
orientation period, and which have an adverse impact.
    G. Method of use of selection procedures. The evidence of both the 
validity and utility of a selection procedure should support the method 
the user chooses for operational use of the procedure, if that method of 
use has a greater adverse impact than another method of use. Evidence 
which may be sufficient to support the use of a selection procedure on a 
pass/fail (screening) basis may be insufficient to support the use of 
the same procedure on a ranking basis under these guidelines. Thus, if a 
user decides to use a selection procedure on a ranking basis, and that 
method of use has a greater adverse impact than use on an appropriate 
pass/fail basis (see section 5H below), the user should have sufficient 
evidence of validity and utility to support the use on a ranking basis. 
See sections 3B, 14B (5) and (6), and 14C (8) and (9).

[[Page 203]]

    H. Cutoff scores. Where cutoff scores are used, they should normally 
be set so as to be reasonable and consistent with normal expectations of 
acceptable proficiency within the work force. Where applicants are 
ranked on the basis of properly validated selection procedures and those 
applicants scoring below a higher cutoff score than appropriate in light 
of such expectations have little or no chance of being selected for 
employment, the higher cutoff score may be appropriate, but the degree 
of adverse impact should be considered.
    I. Use of selection procedures for higher level jobs. If job 
progression structures are so established that employees will probably, 
within a reasonable period of time and in a majority of cases, progress 
to a higher level, it may be considered that the applicants are being 
evaluated for a job or jobs at the higher level. However, where job 
progression is not so nearly automatic, or the time span is such that 
higher level jobs or employees' potential may be expected to change in 
significant ways, it should be considered that applicants are being 
evaluated for a job at or near the entry level. A ``reasonable period of 
time'' will vary for different jobs and employment situations but will 
seldom be more than 5 years. Use of selection procedures to evaluate 
applicants for a higher level job would not be appropriate:
    (1) If the majority of those remaining employed do not progress to 
the higher level job;
    (2) If there is a reason to doubt that the higher level job will 
continue to require essentially similar skills during the progression 
period; or
    (3) If the selection procedures measure knowledges, skills, or 
abilities required for advancement which would be expected to develop 
principally from the training or experience on the job.
    J. Interim use of selection procedures. Users may continue the use 
of a selection procedure which is not at the moment fully supported by 
the required evidence of validity, provided: (1) The user has available 
substantial evidence of validity, and (2) the user has in progress, when 
technically feasible, a study which is designed to produce the 
additional evidence required by these guidelines within a reasonable 
time. If such a study is not technically feasible, see section 6B. If 
the study does not demonstrate validity, this provision of these 
guidelines for interim use shall not constitute a defense in any action, 
nor shall it relieve the user of any obligations arising under Federal 
law.
    K. Review of validity studies for currency. Whenever validity has 
been shown in accord with these guidelines for the use of a particular 
selection procedure for a job or group of jobs, additional studies need 
not be performed until such time as the validity study is subject to 
review as provided in section 3B above. There are no absolutes in the 
area of determining the currency of a validity study. All circumstances 
concerning the study, including the validation strategy used, and 
changes in the relevant labor market and the job should be considered in 
the determination of when a validity study is outdated.



Sec. 1607.6  Use of selection procedures which have not been validated.

    A. Use of alternate selection procedures to eliminate adverse 
impact. A user may choose to utilize alternative selection procedures in 
order to eliminate adverse impact or as part of an affirmative action 
program. See section 13 below. Such alternative procedures should 
eliminate the adverse impact in the total selection process, should be 
lawful and should be as job related as possible.
    B. Where validity studies cannot or need not be performed. There are 
circumstances in which a user cannot or need not utilize the validation 
techniques contemplated by these guidelines. In such circumstances, the 
user should utilize selection procedures which are as job related as 
possible and which will minimize or eliminate adverse impact, as set 
forth below.
    (1) Where informal or unscored procedures are used. When an informal 
or unscored selection procedure which has an adverse impact is utilized, 
the user should eliminate the adverse impact, or modify the procedure to 
one which is a formal, scored or quantified measure or combination of 
measures and then validate the procedure in accord

[[Page 204]]

with these guidelines, or otherwise justify continued use of the 
procedure in accord with Federal law.
    (2) Where formal and scored procedures are used. When a formal and 
scored selection procedure is used which has an adverse impact, the 
validation techniques contemplated by these guidelines usually should be 
followed if technically feasible. Where the user cannot or need not 
follow the validation techniques anticipated by these guidelines, the 
user should either modify the procedure to eliminate adverse impact or 
otherwise justify continued use of the procedure in accord with Federal 
law.



Sec. 1607.7  Use of other validity studies.

    A. Validity studies not conducted by the user. Users may, under 
certain circumstances, support the use of selection procedures by 
validity studies conducted by other users or conducted by test 
publishers or distributors and described in test manuals. While 
publishers of selection procedures have a professional obligation to 
provide evidence of validity which meets generally accepted professional 
standards (see section 5C above), users are cautioned that they are 
responsible for compliance with these guidelines. Accordingly, users 
seeking to obtain selection procedures from publishers and distributors 
should be careful to determine that, in the event the user becomes 
subject to the validity requirements of these guidelines, the necessary 
information to support validity has been determined and will be made 
available to the user.
    B. Use of criterion-related validity evidence from other sources. 
Criterion-related validity studies conducted by one test user, or 
described in test manuals and the professional literature, will be 
considered acceptable for use by another user when the following 
requirements are met:
    (1) Validity evidence. Evidence from the available studies meeting 
the standards of section 14B below clearly demonstrates that the 
selection procedure is valid;
    (2) Job similarity. The incumbents in the user's job and the 
incumbents in the job or group of jobs on which the validity study was 
conducted perform substantially the same major work behaviors, as shown 
by appropriate job analyses both on the job or group of jobs on which 
the validity study was performed and on the job for which the selection 
procedure is to be used; and
    (3) Fairness evidence. The studies include a study of test fairness 
for each race, sex, and ethnic group which constitutes a significant 
factor in the borrowing user's relevant labor market for the job or jobs 
in question. If the studies under consideration satisfy paragraphs (1) 
and (2) of this paragraph B.,\1/4\ above but do not contain an 
investigation of test fairness, and it is not technically feasible for 
the borrowing user to conduct an internal study of test fairness, the 
borrowing user may utilize the study until studies conducted elsewhere 
meeting the requirements of these guidelines show test unfairness, or 
until such time as it becomes technically feasible to conduct an 
internal study of test fairness and the results of that study can be 
acted upon. Users obtaining selection procedures from publishers should 
consider, as one factor in the decision to purchase a particular 
selection procedure, the availability of evidence concerning test 
fairness.
    C. Validity evidence from multiunit study. if validity evidence from 
a study covering more than one unit within an organization statisfies 
the requirements of section 14B below, evidence of validity specific to 
each unit will not be required unless there are variables which are 
likely to affect validity significantly.
    D. Other significant variables. If there are variables in the other 
studies which are likely to affect validity significantly, the user may 
not rely upon such studies, but will be expected either to conduct an 
internal validity study or to comply with section 6 above.



Sec. 1607.8  Cooperative studies.

    A. Encouragement of cooperative studies. The agencies issuing these 
guidelines encourage employers, labor organizations, and employment 
agencies to cooperate in research, development, search for lawful 
alternatives, and validity studies in order to achieve procedures which 
are consistent with these guidelines.

[[Page 205]]

    B. Standards for use of cooperative studies. If validity evidence 
from a cooperative study satisfies the requirements of section 14 below, 
evidence of validity specific to each user will not be required unless 
there are variables in the user's situation which are likely to affect 
validity significantly.



Sec. 1607.9  No assumption of validity.

    A. Unacceptable substitutes for evidence of validity. Under no 
circumstances will the general reputation of a test or other selection 
procedures, its author or its publisher, or casual reports of it's 
validity be accepted in lieu of evidence of validity. Specifically ruled 
out are: assumptions of validity based on a procedure's name or 
descriptive labels; all forms of promotional literature; data bearing on 
the frequency of a procedure's usage; testimonial statements and 
credentials of sellers, users, or consultants; and other nonempirical or 
anecdotal accounts of selection practices or selection outcomes.
    B. Encouragement of professional supervision. Professional 
supervision of selection activities is encouraged but is not a 
substitute for documented evidence of validity. The enforcement agencies 
will take into account the fact that a thorough job analysis was 
conducted and that careful development and use of a selection procedure 
in accordance with professional standards enhance the probability that 
the selection procedure is valid for the job.



Sec. 1607.10  Employment agencies and employment services.

    A. Where selection procedures are devised by agency. An employment 
agency, including private employment agencies and State employment 
agencies, which agrees to a request by an employer or labor organization 
to device and utilize a selection procedure should follow the standards 
in these guidelines for determining adverse impact. If adverse impact 
exists the agency should comply with these guidelines. An employment 
agency is not relieved of its obligation herein because the user did not 
request such validation or has requested the use of some lesser standard 
of validation than is provided in these guidelines. The use of an 
employment agency does not relieve an employer or labor organization or 
other user of its responsibilities under Federal law to provide equal 
employment opportunity or its obligations as a user under these 
guidelines.
    B. Where selection procedures are devised elsewhere. Where an 
employment agency or service is requested to administer a selection 
procedure which has been devised elsewhere and to make referrals 
pursuant to the results, the employment agency or service should 
maintain and have available evidence of the impact of the selection and 
referral procedures which it administers. If adverse impact results the 
agency or service should comply with these guidelines. If the agency or 
service seeks to comply with these guidelines by reliance upon validity 
studies or other data in the possession of the employer, it should 
obtain and have available such information.



Sec. 1607.11  Disparate treatment.

    The principles of disparate or unequal treatment must be 
distinguished from the concepts of validation. A selection procedure--
even though validated against job performance in accordance with these 
guidelines--cannot be imposed upon members of a race, sex, or ethnic 
group where other employees, applicants, or members have not been 
subjected to that standard. Disparate treatment occurs where members of 
a race, sex, or ethnic group have been denied the same employment, 
promotion, membership, or other employment opportunities as have been 
available to other employees or applicants. Those employees or 
applicants who have been denied equal treatment, because of prior 
discriminatory practices or policies, must at least be afforded the same 
opportunities as had existed for other employees or applicants during 
the period of discrimination. Thus, the persons who were in the class of 
persons discriminated against during the period the user followed the 
discriminatory practices should be allowed the opportunity to qualify 
under less stringent selection procedures previously followed, unless 
the user demonstrates that the increased standards are required by 
business necessity. This section does not prohibit a user who has not 
previously

[[Page 206]]

followed merit standards from adopting merit standards which are in 
compliance with these guidelines; nor does it preclude a user who has 
previously used invalid or unvalidated selection procedures from 
developing and using procedures which are in accord with these 
guidelines.



Sec. 1607.12  Retesting of applicants.

    Users should provide a reasonable opportunity for retesting and 
reconsideration. Where examinations are administered periodically with 
public notice, such reasonable opportunity exists, unless persons who 
have previously been tested are precluded from retesting. The user may 
however take reasonable steps to preserve the security of its 
procedures.



Sec. 1607.13  Affirmative action.

    A. Affirmative action obligations. The use of selection procedures 
which have been validated pursuant to these guidelines does not relieve 
users of any obligations they may have to undertake affirmative action 
to assure equal employment opportunity. Nothing in these guidelines is 
intended to preclude the use of lawful selection procedures which assist 
in remedying the effects of prior discriminatory practices, or the 
achievement of affirmative action objectives.
    B. Encouragement of voluntary affirmative action programs. These 
guidelines are also intended to encourage the adoption and 
implementation of voluntary affirmative action programs by users who 
have no obligation under Federal law to adopt them; but are not intended 
to impose any new obligations in that regard. The agencies issuing and 
endorsing these guidelines endorse for all private employers and 
reaffirm for all governmental employers the Equal Employment Opportunity 
Coordinating Council's ``Policy Statement on Affirmative Action Programs 
for State and Local Government Agencies'' (41 FR 38814, September 13, 
1976). That policy statement is attached hereto as appendix, section 17.

                           Technical Standards



Sec. 1607.14  Technical standards for validity studies.

    The following minimum standards, as applicable, should be met in 
conducting a validity study. Nothing in these guidelines is intended to 
preclude the development and use of other professionally acceptable 
techniques with respect to validation of selection procedures. Where it 
is not technically feasible for a user to conduct a validity study, the 
user has the obligation otherwise to comply with these guidelines. See 
sections 6 and 7 above.
    A. Validity studies should be based on review of information about 
the job. Any validity study should be based upon a review of information 
about the job for which the selection procedure is to be used. The 
review should include a job analysis except as provided in section 
14B(3) below with respect to criterion-related validity. Any method of 
job analysis may be used if it provides the information required for the 
specific validation strategy used.
    B. Technical standards for criterion-related validity studies--(1) 
Technical feasibility. Users choosing to validate a selection procedure 
by a criterion-related validity strategy should determine whether it is 
technically feasible (as defined in section 16) to conduct such a study 
in the particular employment context. The determination of the number of 
persons necessary to permit the conduct of a meaningful criterion-
related study should be made by the user on the basis of all relevant 
information concerning the selection procedure, the potential sample and 
the employment situation. Where appropriate, jobs with substantially the 
same major work behaviors may be grouped together for validity studies, 
in order to obtain an adequate sample. These guidelines do not require a 
user to hire or promote persons for the purpose of making it possible to 
conduct a criterion-related study.
    (2) Analysis of the job. There should be a review of job information 
to determine measures of work behavior(s) or performance that are 
relevant to the job or group of jobs in question. These

[[Page 207]]

measures or criteria are relevant to the extent that they represent 
critical or important job duties, work behaviors or work outcomes as 
developed from the review of job information. The possibility of bias 
should be considered both in selection of the criterion measures and 
their application. In view of the possibility of bias in subjective 
evaluations, supervisory rating techniques and instructions to raters 
should be carefully developed. All criterion measures and the methods 
for gathering data need to be examined for freedom from factors which 
would unfairly alter scores of members of any group. The relevance of 
criteria and their freedom from bias are of particular concern when 
there are significant differences in measures of job performance for 
different groups.
    (3) Criterion measures. Proper safeguards should be taken to insure 
that scores on selection procedures do not enter into any judgments of 
employee adequacy that are to be used as criterion measures. Whatever 
criteria are used should represent important or critical work 
behavior(s) or work outcomes. Certain criteria may be used without a 
full job analysis if the user can show the importance of the criteria to 
the particular employment context. These criteria include but are not 
limited to production rate, error rate, tardiness, absenteeism, and 
length of service. A standardized rating of overall work performance may 
be used where a study of the job shows that it is an appropriate 
criterion. Where performance in training is used as a criterion, success 
in training should be properly measured and the relevance of the 
training should be shown either through a comparsion of the content of 
the training program with the critical or important work behavior(s) of 
the job(s), or through a demonstration of the relationship between 
measures of performance in training and measures of job performance. 
Measures of relative success in training include but are not limited to 
instructor evaluations, performance samples, or tests. Criterion 
measures consisting of paper and pencil tests will be closely reviewed 
for job relevance.
    (4) Representativeness of the sample. Whether the study is 
predictive or concurrent, the sample subjects should insofar as feasible 
be representative of the candidates normally available in the relevant 
labor market for the job or group of jobs in question, and should 
insofar as feasible include the races, sexes, and ethnic groups normally 
available in the relevant job market. In determining the 
representativeness of the sample in a concurrent validity study, the 
user should take into account the extent to which the specific 
knowledges or skills which are the primary focus of the test are those 
which employees learn on the job.

Where samples are combined or compared, attention should be given to see 
that such samples are comparable in terms of the actual job they 
perform, the length of time on the job where time on the job is likely 
to affect performance, and other relevant factors likely to affect 
validity differences; or that these factors are included in the design 
of the study and their effects identified.
    (5) Statistical relationships. The degree of relationship between 
selection procedure scores and criterion measures should be examined and 
computed, using professionally acceptable statistical procedures. 
Generally, a selection procedure is considered related to the criterion, 
for the purposes of these guidelines, when the relationship between 
performance on the procedure and performance on the criterion measure is 
statistically significant at the 0.05 level of significance, which means 
that it is sufficiently high as to have a probability of no more than 
one (1) in twenty (20) to have occurred by chance. Absence of a 
statistically significant relationship between a selection procedure and 
job performance should not necessarily discourage other investigations 
of the validity of that selection procedure.
    (6) Operational use of selection procedures. Users should evaluate 
each selection procedure to assure that it is appropriate for 
operational use, including establishment of cutoff scores or rank 
ordering. Generally, if other factors reman the same, the greater the 
magnitude of the relationship (e.g., correlation coefficent) between 
performance on a selection procedure and one or more criteria of 
performance on the

[[Page 208]]

job, and the greater the importance and number of aspects of job 
performance covered by the criteria, the more likely it is that the 
procedure will be appropriate for use. Reliance upon a selection 
procedure which is significantly related to a criterion measure, but 
which is based upon a study involving a large number of subjects and has 
a low correlation coefficient will be subject to close review if it has 
a large adverse impact. Sole reliance upon a single selection instrument 
which is related to only one of many job duties or aspects of job 
performance will also be subject to close review. The appropriateness of 
a selection procedure is best evaluated in each particular situation and 
there are no minimum correlation coefficients applicable to all 
employment situations. In determining whether a selection procedure is 
appropriate for operational use the following considerations should also 
be taken into account: The degree of adverse impact of the procedure, 
the availability of other selection procedures of greater or 
substantially equal validity.
    (7) Overstatement of validity findings. Users should avoid reliance 
upon techniques which tend to overestimate validity findings as a result 
of capitalization on chance unless an appropriate safeguard is taken. 
Reliance upon a few selection procedures or criteria of successful job 
performance when many selection procedures or criteria of performance 
have been studied, or the use of optimal statistical weights for 
selection procedures computed in one sample, are techniques which tend 
to inflate validity estimates as a result of chance. Use of a large 
sample is one safeguard: cross-validation is another.
    (8) Fairness. This section generally calls for studies of unfairness 
where technically feasible. The concept of fairness or unfairness of 
selection procedures is a developing concept. In addition, fairness 
studies generally require substantial numbers of employees in the job or 
group of jobs being studied. For these reasons, the Federal enforcement 
agencies recognize that the obligation to conduct studies of fairness 
imposed by the guidelines generally will be upon users or groups of 
users with a large number of persons in a a job class, or test 
developers; and that small users utilizing their own selection 
procedures will generally not be obligated to conduct such studies 
because it will be technically infeasible for them to do so.
    (a) Unfairness defined. When members of one race, sex, or ethnic 
group characteristically obtain lower scores on a selection procedure 
than members of another group, and the differences in scores are not 
reflected in differences in a measure of job performance, use of the 
selection procedure may unfairly deny opportunities to members of the 
group that obtains the lower scores.
    (b) Investigation of fairness. Where a selection procedure results 
in an adverse impact on a race, sex, or ethnic group identified in 
accordance with the classifications set forth in section 4 above and 
that group is a significant factor in the relevant labor market, the 
user generally should investigate the possible existence of unfairness 
for that group if it is technically feasible to do so. The greater the 
severity of the adverse impact on a group, the greater the need to 
investigate the possible existence of unfairness. Where the weight of 
evidence from other studies shows that the selection procedure predicts 
fairly for the group in question and for the same or similar jobs, such 
evidence may be relied on in connection with the selection procedure at 
issue.
    (c) General considerations in fairness investigations. Users 
conducting a study of fairness should review the A.P.A. Standards 
regarding investigation of possible bias in testing. An investigation of 
fairness of a selection procedure depends on both evidence of validity 
and the manner in which the selection procedure is to be used in a 
particular employment context. Fairness of a selection procedure cannot 
necessarily be specified in advance without investigating these factors. 
Investigation of fairness of a selection procedure in samples where the 
range of scores on selection procedures or criterion measures is 
severely restricted for any subgroup sample (as compared to other 
subgroup samples) may produce misleading evidence of unfairness. That 
factor should accordingly be taken into account in conducting such 
studies and before reliance is placed on the results.

[[Page 209]]

    (d) When unfairness is shown. If unfairness is demonstrated through 
a showing that members of a particular group perform better or poorer on 
the job than their scores on the selection procedure would indicate 
through comparison with how members of other groups perform, the user 
may either revise or replace the selection instrument in accordance with 
these guidelines, or may continue to use the selection instrument 
operationally with appropriate revisions in its use to assure 
compatibility between the probability of successful job performance and 
the probability of being selected.
    (e) Technical feasibility of fairness studies. In addition to the 
general conditions needed for technical feasibility for the conduct of a 
criterion-related study (see section 16, below) an investigation of 
fairness requires the following:
    (i) An adequate sample of persons in each group available for the 
study to achieve findings of statistical significance. Guidelines do not 
require a user to hire or promote persons on the basis of group 
classifications for the purpose of making it possible to conduct a study 
of fairness; but the user has the obligation otherwise to comply with 
these guidelines.
    (ii) The samples for each group should be comparable in terms of the 
actual job they perform, length of time on the job where time on the job 
is likely to affect performance, and other relevant factors likely to 
affect validity differences; or such factors should be included in the 
design of the study and their effects identified.
    (f) Continued use of selection procedures when fairness studies not 
feasible. If a study of fairness should otherwise be performed, but is 
not technically feasible, a selection procedure may be used which has 
otherwise met the validity standards of these guidelines, unless the 
technical infeasibility resulted from discriminatory employment 
practices which are demonstrated by facts other than past failure to 
conform with requirements for validation of selection procedures. 
However, when it becomes technically feasible for the user to perform a 
study of fairness and such a study is otherwise called for, the user 
should conduct the study of fairness.
    C. Technical standards for content validity studies--(1) 
Appropriateness of content validity studies. Users choosing to validate 
a selection procedure by a content validity strategy should determine 
whether it is appropriate to conduct such a study in the particular 
employment context. A selection procedure can be supported by a content 
validity strategy to the extent that it is a representative sample of 
the content of the job. Selection procedures which purport to measure 
knowledges, skills, or abilities may in certain circumstances be 
justified by content validity, although they may not be representative 
samples, if the knowledge, skill, or ability measured by the selection 
procedure can be operationally defined as provided in section 14C(4) 
below, and if that knowledge, skill, or ability is a necessary 
prerequisite to successful job performance.
    A selection procedure based upon inferences about mental processes 
cannot be supported solely or primarily on the basis of content 
validity. Thus, a content strategy is not appropriate for demonstrating 
the validity of selection procedures which purport to measure traits or 
constructs, such as intelligence, aptitude, personality, commonsense, 
judgment, leadership, and spatial ability. Content validity is also not 
an appropriate strategy when the selection procedure involves 
knowledges, skills, or abilities which an employee will be expected to 
learn on the job.
    (2) Job analysis for content validity. There should be a job 
analysis which includes an analysis of the important work behavior(s) 
required for successful performance and their relative importance and, 
if the behavior results in work product(s), an analysis of the work 
product(s). Any job analysis should focus on the work behavior(s) and 
the tasks associated with them. If work behavior(s) are not observable, 
the job analysis should identify and analyze those aspects of the 
behavior(s) that can be observed and the observed work products. The 
work behavior(s) selected for measurement should be critical work 
behavior(s) and/or important work behavior(s) constituting most of the 
job.

[[Page 210]]

    (3) Development of selection procedures. A selection procedure 
designed to measure the work behavior may be developed specifically from 
the job and job analysis in question, or may have been previously 
developed by the user, or by other users or by a test publisher.
    (4) Standards for demonstrating content validity. To demonstrate the 
content validity of a selection procedure, a user should show that the 
behavior(s) demonstrated in the selection procedure are a representative 
sample of the behavior(s) of the job in question or that the selection 
procedure provides a representative sample of the work product of the 
job. In the case of a selection procedure measuring a knowledge, skill, 
or ability, the knowledge, skill, or ability being measured should be 
operationally defined. In the case of a selection procedure measuring a 
knowledge, the knowledge being measured should be operationally defined 
as that body of learned information which is used in and is a necessary 
prerequisite for observable aspects of work behavior of the job. In the 
case of skills or abilities, the skill or ability being measured should 
be operationally defined in terms of observable aspects of work behavior 
of the job. For any selection procedure measuring a knowledge, skill, or 
ability the user should show that (a) the selection procedure measures 
and is a representative sample of that knowledge, skill, or ability; and 
(b) that knowledge, skill, or ability is used in and is a necessary 
prerequisite to performance of critical or important work behavior(s). 
In addition, to be content valid, a selection procedure measuring a 
skill or ability should either closely approximate an observable work 
behavior, or its product should closely approximate an observable work 
product. If a test purports to sample a work behavior or to provide a 
sample of a work product, the manner and setting of the selection 
procedure and its level and complexity should closely approximate the 
work situation. The closer the content and the context of the selection 
procedure are to work samples or work behaviors, the stronger is the 
basis for showing content validity. As the content of the selection 
procedure less resembles a work behavior, or the setting and manner of 
the administration of the selection procedure less resemble the work 
situation, or the result less resembles a work product, the less likely 
the selection procedure is to be content valid, and the greater the need 
for other evidence of validity.
    (5) Reliability. The reliability of selection procedures justified 
on the basis of content validity should be a matter of concern to the 
user. Whenever it is feasible, appropriate statistical estimates should 
be made of the reliability of the selection procedure.
    (6) Prior training or experience. A requirement for or evaluation of 
specific prior training or experience based on content validity, 
including a specification of level or amount of training or experience, 
should be justified on the basis of the relationship between the content 
of the training or experience and the content of the job for which the 
training or experience is to be required or evaluated. The critical 
consideration is the resemblance between the specific behaviors, 
products, knowledges, skills, or abilities in the experience or training 
and the specific behaviors, products, knowledges, skills, or abilities 
required on the job, whether or not there is close resemblance between 
the experience or training as a whole and the job as a whole.
    (7) Content validity of training success. Where a measure of success 
in a training program is used as a selection procedure and the content 
of a training program is justified on the basis of content validity, the 
use should be justified on the relationship between the content of the 
training program and the content of the job.
    (8) Operational use. A selection procedure which is supported on the 
basis of content validity may be used for a job if it represents a 
critical work behavior (i.e., a behavior which is necessary for 
performance of the job) or work behaviors which constitute most of the 
important parts of the job.
    (9) Ranking based on content validity studies. If a user can show, 
by a job analysis or otherwise, that a higher score on a content valid 
selection procedure is likely to result in better job performance, the 
results may be used

[[Page 211]]

to rank persons who score above minimum levels. Where a selection 
procedure supported solely or primarily by content validity is used to 
rank job candidates, the selection procedure should measure those 
aspects of performance which differentiate among levels of job 
performance.
    D. Technical standards for construct validity studies--(1) 
Appropriateness of construct validity studies. Construct validity is a 
more complex strategy than either criterion-related or content validity. 
Construct validation is a relatively new and developing procedure in the 
employment field, and there is at present a lack of substantial 
literature extending the concept to employment practices. The user 
should be aware that the effort to obtain sufficient empirical support 
for construct validity is both an extensive and arduous effort involving 
a series of research studies, which include criterion related validity 
studies and which may include content validity studies. Users choosing 
to justify use of a selection procedure by this strategy should 
therefore take particular care to assure that the validity study meets 
the standards set forth below.
    (2) Job analysis for construct validity studies. There should be a 
job analysis. This job analysis should show the work behavior(s) 
required for successful performance of the job, or the groups of jobs 
being studied, the critical or important work behavior(s) in the job or 
group of jobs being studied, and an identification of the construct(s) 
believed to underlie successful performance of these critical or 
important work behaviors in the job or jobs in question. Each construct 
should be named and defined, so as to distinguish it from other 
constructs. If a group of jobs is being studied the jobs should have in 
common one or more critical or important work behav- iors at a 
comparable level of complexity.
    (3) Relationship to the job. A selection procedure should then be 
identified or developed which measures the construct identified in 
accord with subparagraph (2) above. The user should show by empirical 
evidence that the selection procedure is validly related to the 
construct and that the construct is validly related to the performance 
of critical or important work behavior(s). The relationship between the 
construct as measured by the selection procedure and the related work 
behavior(s) should be supported by empirical evidence from one or more 
criterion-related studies involving the job or jobs in question which 
satisfy the provisions of section 14B above.
    (4) Use of construct validity study without new criterion-related 
evidence--(a) Standards for use. Until such time as professional 
literature provides more guidance on the use of construct validity in 
employment situations, the Federal agencies will accept a claim of 
construct validity without a criterion-related study which satisfies 
section 14B above only when the selection procedure has been used 
elsewhere in a situation in which a criterion-related study has been 
conducted and the use of a criterion-related validity study in this 
context meets the standards for transportability of criterion-related 
validity studies as set forth above in section 7. However, if a study 
pertains to a number of jobs having common critical or important work 
behaviors at a comparable level of complexity, and the evidence 
satisfies subparagraphs 14B (2) and (3) above for those jobs with 
criterion-related validity evidence for those jobs, the selection 
procedure may be used for all the jobs to which the study pertains. If 
construct validity is to be generalized to other jobs or groups of jobs 
not in the group studied, the Federal enforcement agencies will expect 
at a minimum additional empirical research evidence meeting the 
standards of subparagraphs section 14B (2) and (3) above for the 
additional jobs or groups of jobs.
    (b) Determination of common work behaviors. In determining whether 
two or more jobs have one or more work behavior(s) in common, the user 
should compare the observed work behavior(s) in each of the jobs and 
should compare the observed work product(s) in each of the jobs. If 
neither the observed work behavior(s) in each of the jobs nor the 
observed work product(s) in each of the jobs are the same, the Federal 
enforcement agencies will presume that the work behavior(s) in each job 
are different. If the work behaviors are not observable, then evidence 
of similarity

[[Page 212]]

of work products and any other relevant research evidence will be 
considered in determining whether the work behavior(s) in the two jobs 
are the same.

              Documentation of Impact and Validity Evidence



Sec. 1607.15  Documentation of impact and validity evidence.

    A. Required information. Users of selection procedures other than 
those users complying with section 15A(1) below should maintain and have 
available for each job information on adverse impact of the selection 
process for that job and, where it is determined a selection process has 
an adverse impact, evidence of validity as set forth below.
    (1) Simplified recordkeeping for users with less than 100 employees. 
In order to minimize recordkeeping burdens on employers who employ one 
hundred (100) or fewer employees, and other users not required to file 
EEO-1, et seq., reports, such users may satisfy the requirements of this 
section 15 if they maintain and have available records showing, for each 
year:
    (a) The number of persons hired, promoted, and terminated for each 
job, by sex, and where appropriate by race and national origin;
    (b) The number of applicants for hire and promotion by sex and where 
appropriate by race and national origin; and
    (c) The selection procedures utilized (either standardized or not 
standardized).

These records should be maintained for each race or national origin 
group (see section 4 above) constituting more than two percent (2%) of 
the labor force in the relevant labor area. However, it is not necessary 
to maintain records by race and/or national origin (see Sec. 4 above) if 
one race or national origin group in the relevant labor area constitutes 
more than ninety-eight percent (98%) of the labor force in the area. If 
the user has reason to believe that a selection procedure has an adverse 
impact, the user should maintain any available evidence of validity for 
that procedure (see sections 7A and 8).
    (2) Information on impact--(a) Collection of information on impact. 
Users of selection procedures other than those complying with section 
15A(1) above should maintain and have available for each job records or 
other information showing whether the total selection process for that 
job has an adverse impact on any of the groups for which records are 
called for by sections 4B above. Adverse impact determinations should be 
made at least annually for each such group which constitutes at least 2 
percent of the labor force in the relevant labor area or 2 percent of 
the applicable workforce. Where a total selection process for a job has 
an adverse impact, the user should maintain and have available records 
or other information showing which components have an adverse impact. 
Where the total selection process for a job does not have an adverse 
impact, information need not be maintained for individual components 
except in circumstances set forth in subsection 15A(2)(b) below. If the 
determination of adverse impact is made using a procedure other than the 
``four-fifths rule,'' as defined in the first sentence of section 4D 
above, a justification, consistent with section 4D above, for the 
procedure used to determine adverse impact should be available.
    (b) When adverse impact has been eliminated in the total selection 
process. Whenever the total selection process for a particular job has 
had an adverse impact, as defined in section 4 above, in any year, but 
no longer has an adverse impact, the user should maintain and have 
available the information on individual components of the selection 
process required in the preceding paragraph for the period in which 
there was adverse impact. In addition, the user should continue to 
collect such information for at least two (2) years after the adverse 
impact has been eliminated.
    (c) When data insufficient to determine impact. Where there has been 
an insufficient number of selections to determine whether there is an 
adverse impact of the total selection process for a particular job, the 
user should continue to collect, maintain and have available the 
information on individual components of the selection process required 
in section 15(A)(2)(a) above until

[[Page 213]]

the information is sufficient to determine that the overall selection 
process does not have an adverse impact as defined in section 4 above, 
or until the job has changed substantially.
    (3) Documentation of validity evidence--(a) Types of evidence. Where 
a total selection process has an adverse impact (see section 4 above) 
the user should maintain and have available for each component of that 
process which has an adverse impact, one or more of the following types 
of documentation evidence:
    (i) Documentation evidence showing criterion-related validity of the 
selection procedure (see section 15B, below).
    (ii) Documentation evidence showing content validity of the 
selection procedure (see section 15C, below).
    (iii) Documentation evidence showing construct validity of the 
selection procedure (see section 15D, below).
    (iv) Documentation evidence from other studies showing validity of 
the selection procedure in the user's facility (see section 15E, below).
    (v) Documentation evidence showing why a validity study cannot or 
need not be performed and why continued use of the procedure is 
consistent with Federal law.
    (b) Form of report. This evidence should be compiled in a reasonably 
complete and organized manner to permit direct evaluation of the 
validity of the selection procedure. Previously written employer or 
consultant reports of validity, or reports describing validity studies 
completed before the issuance of these guidelines are acceptable if they 
are complete in regard to the documentation requirements contained in 
this section, or if they satisfied requirements of guidelines which were 
in effect when the validity study was completed. If they are not 
complete, the required additional documentation should be appended. If 
necessary information is not available the report of the validity study 
may still be used as documentation, but its adequacy will be evaluated 
in terms of compliance with the requirements of these guidelines.
    (c) Completeness. In the event that evidence of validity is reviewed 
by an enforcement agency, the validation reports completed after the 
effective date of these guidelines are expected to contain the 
information set forth below. Evidence denoted by use of the word 
``(Essential)'' is considered critical. If information denoted essential 
is not included, the report will be considered incomplete unless the 
user affirmatively demonstrates either its unavailability due to 
circumstances beyond the user's control or special circumstances of the 
user's study which make the information irrelevant. Evidence not so 
denoted is desirable but its absence will not be a basis for considering 
a report incomplete. The user should maintain and have available the 
information called for under the heading ``Source Data'' in sections 
15B(11) and 15D(11). While it is a necessary part of the study, it need 
not be submitted with the report. All statistical results should be 
organized and presented in tabular or graphic form to the extent 
feasible.
    B. Criterion-related validity studies. Reports of criterion-related 
validity for a selection procedure should include the following 
information:
    (1) User(s), location(s), and date(s) of study. Dates and 
location(s) of the job analysis or review of job information, the 
date(s) and location(s) of the administration of the selection 
procedures and collection of criterion data, and the time between 
collection of data on selection procedures and criterion measures should 
be provided (Essential). If the study was conducted at several 
locations, the address of each location, including city and State, 
should be shown.
    (2) Problem and setting. An explicit definition of the purpose(s) of 
the study and the circumstances in which the study was conducted should 
be provided. A description of existing selection procedures and cutoff 
scores, if any, should be provided.
    (3) Job anlysis or review of job information. A description of the 
procedure used to analyze the job or group of jobs, or to review the job 
information should be provided (Essential). Where a review of job 
information results in criteria which may be used without a full job 
analysis (see section 14B(3)), the basis for the selection of these 
criteria should be reported (Essential).

[[Page 214]]

Where a job analysis is required a complete description of the work 
behavior(s) or work outcome(s), and measures of their criticality or 
importance should be provided (Essential). The report should describe 
the basis on which the behavior(s) or outcome(s) were determined to be 
critical or important, such as the proportion of time spent on the 
respective behaviors, their level of difficulty, their frequency of 
performance, the consequences of error, or other appropriate factors 
(Essential). Where two or more jobs are grouped for a validity study, 
the information called for in this subsection should be provided for 
each of the jobs, and the justification for the grouping (see section 
14B(1)) should be provided (Essential).
    (4) Job titles and codes. It is desirable to provide the user's job 
title(s) for the job(s) in question and the corresponding job title(s) 
and code(s) from U.S. Employment Service's Dictionary of Occupational 
Titles.
    (5) Criterion measures. The bases for the selection of the criterion 
measures should be provided, together with references to the evidence 
considered in making the selection of criterion measures (essential). A 
full description of all criteria on which data were collected and means 
by which they were observed, recorded, evaluated, and quantified, should 
be provided (essential). If rating techniques are used as criterion 
measures, the appraisal form(s) and instructions to the rater(s) should 
be included as part of the validation evidence, or should be explicitly 
described and available (essential). All steps taken to insure that 
criterion measures are free from factors which would unfairly alter the 
scores of members of any group should be described (essential).
    (6) Sample description. A description of how the research sample was 
identified and selected should be included (essential). The race, sex, 
and ethnic composition of the sample, including those groups set forth 
in section 4A above, should be described (essential). This description 
should include the size of each subgroup (essential). A description of 
how the research sample compares with the relevant labor market or work 
force, the method by which the relevant labor market or work force was 
defined, and a discussion of the likely effects on validity of 
differences between the sample and the relevant labor market or work 
force, are also desirable. Descriptions of educational levels, length of 
service, and age are also desirable.
    (7) Description of selection procedures. Any measure, combination of 
measures, or procedure studied should be completely and explicitly 
described or attached (essential). If commercially available selection 
procedures are studied, they should be described by title, form, and 
publisher (essential). Reports of reliability estimates and how they 
were established are desirable.
    (8) Techniques and results. Methods used in analyzing data should be 
described (essential). Measures of central tendency (e.g., means) and 
measures of dispersion (e.g., standard deviations and ranges) for all 
selection procedures and all criteria should be reported for each race, 
sex, and ethnic group which constitutes a significant factor in the 
relevant labor market (essential). The magnitude and direction of all 
relationships between selection procedures and criterion measures 
investigated should be reported for each relevant race, sex, and ethnic 
group and for the total group (essential). Where groups are too small to 
obtain reliable evidence of the magnitude of the relationship, need not 
be reported separately. Statements regarding the statistical 
significance of results should be made (essential). Any statistical 
adjustments, such as for less then perfect reliability or for 
restriction of score range in the selection procedure or criterion 
should be described and explained; and uncorrected correlation 
coefficients should also be shown (essential). Where the statistical 
technique categorizes continuous data, such as biserial correlation and 
the phi coefficient, the categories and the bases on which they were 
determined should be described and explained (essential). Studies of 
test fairness should be included where called for by the requirements of 
section 14B(8) (essential). These studies should include the rationale 
by which a selection procedure was determined to be fair to the

[[Page 215]]

group(s) in question. Where test fairness or unfairness has been 
demonstrated on the basis of other studies, a bibliography of the 
relevant studies should be included (essential). If the bibliography 
includes unpublished studies, copies of these studies, or adequate 
abstracts or summaries, should be attached (essential). Where revisions 
have been made in a selection procedure to assure compatability between 
successful job performance and the probability of being selected, the 
studies underlying such revisions should be included (essential). All 
statistical results should be organized and presented by relevant race, 
sex, and ethnic group (essential).
    (9) Alternative procedures investigated. The selection procedures 
investigated and available evidence of their impact should be identified 
(essential). The scope, method, and findings of the investigation, and 
the conclusions reached in light of the findings, should be fully 
described (essential).
    (10) Uses and applications. The methods considered for use of the 
selection procedure (e.g., as a screening device with a cutoff score, 
for grouping or ranking, or combined with other procedures in a battery) 
and available evidence of their impact should be described (essential). 
This description should include the rationale for choosing the method 
for operational use, and the evidence of the validity and utility of the 
procedure as it is to be used (essential). The purpose for which the 
procedure is to be used (e.g., hiring, transfer, promotion) should be 
described (essential). If weights are assigned to different parts of the 
selection procedure, these weights and the validity of the weighted 
composite should be reported (essential). If the selection procedure is 
used with a cutoff score, the user should describe the way in which 
normal expectations of proficiency within the work force were determined 
and the way in which the cutoff score was determined (essential).
    (11) Source data. Each user should maintain records showing all 
pertinent information about individual sample members and raters where 
they are used, in studies involving the validation of selection 
procedures. These records should be made available upon request of a 
compliance agency. In the case of individual sample members these data 
should include scores on the selection procedure(s), scores on criterion 
measures, age, sex, race, or ethnic group status, and experience on the 
specific job on which the validation study was conducted, and may also 
include such things as education, training, and prior job experience, 
but should not include names and social security numbers. Records should 
be maintained which show the ratings given to each sample member by each 
rater.
    (12) Contact person. The name, mailing address, and telephone number 
of the person who may be contacted for further information about the 
validity study should be provided (essential).
    (13) Accuracy and completeness. The report should describe the steps 
taken to assure the accuracy and completeness of the collection, 
analysis, and report of data and results.
    C. Content validity studies. Reports of content validity for a 
selection procedure should include the following information:
    (1) User(s), location(s) and date(s) of study. Dates and location(s) 
of the job analysis should be shown (essential).
    (2) Problem and setting. An explicit definition of the purpose(s) of 
the study and the circumstances in which the study was conducted should 
be provided. A description of existing selection procedures and cutoff 
scores, if any, should be provided.
    (3) Job analysis--Content of the job. A description of the method 
used to analyze the job should be provided (essential). The work 
behavior(s), the associated tasks, and, if the behavior results in a 
work product, the work products should be completely described 
(essential). Measures of criticality and/or importance of the work 
behavior(s) and the method of determining these measures should be 
provided (essential). Where the job analysis also identified the 
knowledges, skills, and abilities used in work behavior(s), an 
operational definition for each knowledge in terms of a body of learned 
information and for each skill and ability in terms of observable 
behaviors and outcomes, and the relationship between each knowledge, 
skill, or ability and

[[Page 216]]

each work behavior, as well as the method used to determine this 
relationship, should be provided (essential). The work situation should 
be described, including the setting in which work behavior(s) are 
performed, and where appropriate, the manner in which knowledges, 
skills, or abilities are used, and the complexity and difficulty of the 
knowledge, skill, or ability as used in the work behavior(s).
    (4) Selection procedure and its content. Selection procedures, 
including those constructed by or for the user, specific training 
requirements, composites of selection procedures, and any other 
procedure supported by content validity, should be completely and 
explicitly described or attached (essential). If commercially available 
selection procedures are used, they should be described by title, form, 
and publisher (essential). The behaviors measured or sampled by the 
selection procedure should be explicitly described (essential). Where 
the selection procedure purports to measure a knowledge, skill, or 
ability, evidence that the selection procedure measures and is a 
representative sample of the knowledge, skill, or ability should be 
provided (essential).
    (5) Relationship between the selection procedure and the job. The 
evidence demonstrating that the selection procedure is a representative 
work sample, a representative sample of the work behavior(s), or a 
representative sample of a knowledge, skill, or ability as used as a 
part of a work behavior and necessary for that behavior should be 
provided (essential). The user should identify the work behavior(s) 
which each item or part of the selection procedure is intended to sample 
or measure (essential). Where the selection procedure purports to sample 
a work behavior or to provide a sample of a work product, a comparison 
should be provided of the manner, setting, and the level of complexity 
of the selection procedure with those of the work situation (essential). 
If any steps were taken to reduce adverse impact on a race, sex, or 
ethnic group in the content of the procedure or in its administration, 
these steps should be described. Establishment of time limits, if any, 
and how these limits are related to the speed with which duties must be 
performed on the job, should be explained. Measures of central tend- 
ency (e.g., means) and measures of dispersion (e.g., standard 
deviations) and estimates of realibility should be reported for all 
selection procedures if available. Such reports should be made for 
relevant race, sex, and ethnic subgroups, at least on a statistically 
reliable sample basis.
    (6) Alternative procedures investigated. The alternative selection 
procedures investigated and available evidence of their impact should be 
identified (essential). The scope, method, and findings of the 
investigation, and the conclusions reached in light of the findings, 
should be fully described (essential).
    (7) Uses and applications. The methods considered for use of the 
selection procedure (e.g., as a screening device with a cutoff score, 
for grouping or ranking, or combined with other procedures in a battery) 
and available evidence of their impact should be described (essential). 
This description should include the rationale for choosing the method 
for operational use, and the evidence of the validity and utility of the 
procedure as it is to be used (essential). The purpose for which the 
procedure is to be used (e.g., hiring, transfer, promotion) should be 
described (essential). If the selection procedure is used with a cutoff 
score, the user should describe the way in which normal expectations of 
proficiency within the work force were determined and the way in which 
the cutoff score was determined (essential). In addition, if the 
selection procedure is to be used for ranking, the user should specify 
the evidence showing that a higher score on the selection procedure is 
likely to result in better job performance.
    (8) Contact person. The name, mailing address, and telephone number 
of the person who may be contacted for further information about the 
validity study should be provided (essential).
    (9) Accuracy and completeness. The report should describe the steps 
taken to assure the accuracy and completeness of the collection, 
analysis, and report of data and results.
    D. Construct validity studies. Reports of construct validity for a 
selection procedure should include the following information:

[[Page 217]]

    (1) User(s), location(s), and date(s) of study. Date(s) and 
location(s) of the job analysis and the gathering of other evidence 
called for by these guidelines should be provided (essential).
    (2) Problem and setting. An explicit definition of the purpose(s) of 
the study and the circumstances in which the study was conducted should 
be provided. A description of existing selection procedures and cutoff 
scores, if any, should be provided.
    (3) Construct definition. A clear definition of the construct(s) 
which are believed to underlie successful performance of the critical or 
important work behavior(s) should be provided (essential). This 
definition should include the levels of construct performance relevant 
to the job(s) for which the selection procedure is to be used 
(essential). There should be a summary of the position of the construct 
in the psychological literature, or in the absence of such a position, a 
description of the way in which the definition and measurement of the 
construct was developed and the psychological theory underlying it 
(essential). Any quantitative data which identify or define the job 
constructs, such as factor analyses, should be provided (essential).
    (4) Job analysis. A description of the method used to analyze the 
job should be provided (essential). A complete description of the work 
behavior(s) and, to the extent appropriate, work outcomes and measures 
of their criticality and/or importance should be provided (essential). 
The report should also describe the basis on which the behavior(s) or 
outcomes were determined to be important, such as their level of 
difficulty, their frequency of performance, the consequences of error or 
other appropriate factors (essential). Where jobs are grouped or 
compared for the purposes of generalizing validity evidence, the work 
behavior(s) and work product(s) for each of the jobs should be 
described, and conclusions concerning the similarity of the jobs in 
terms of observable work behaviors or work products should be made 
(essential).
    (5) Job titles and codes. It is desirable to provide the selection 
procedure user's job title(s) for the job(s) in question and the 
corresponding job title(s) and code(s) from the United States Employment 
Service's dictionary of occupational titles.
    (6) Selection procedure. The selection procedure used as a measure 
of the construct should be completely and explicitly described or 
attached (essential). If commercially available selection procedures are 
used, they should be identified by title, form and publisher 
(essential). The research evidence of the relationship between the 
selection procedure and the construct, such as factor structure, should 
be included (essential). Measures of central tendency, variability and 
reliability of the selection procedure should be provided (essential). 
Whenever feasible, these measures should be provided separately for each 
relevant race, sex and ethnic group.
    (7) Relationship to job performance. The criterion-related 
study(ies) and other empirical evidence of the relationship between the 
construct measured by the selection procedure and the related work 
behavior(s) for the job or jobs in question should be provided 
(essential). Documentation of the criterion-related study(ies) should 
satisfy the provisions of section 15B above or section 15E(1) below, 
except for studies conducted prior to the effective date of these 
guidelines (essential). Where a study pertains to a group of jobs, and, 
on the basis of the study, validity is asserted for a job in the group, 
the observed work behaviors and the observed work products for each of 
the jobs should be described (essential). Any other evidence used in 
determining whether the work behavior(s) in each of the jobs is the same 
should be fully described (essential).
    (8) Alternative procedures investigated. The alternative selection 
procedures investigated and available evidence of their impact should be 
identified (essential). The scope, method, and findings of the 
investigation, and the conclusions reached in light of the findings 
should be fully described (essential).
    (9) Uses and applications. The methods considered for use of the 
selection procedure (e.g., as a screening device with a cutoff score, 
for grouping or ranking, or combined with other procedures in a battery) 
and available evidence of their impact should be described (essential).

[[Page 218]]

This description should include the rationale for choosing the method 
for operational use, and the evidence of the validity and utility of the 
procedure as it is to be used (essential). The purpose for which the 
procedure is to be used (e.g., hiring, transfer, promotion) should be 
described (essential). If weights are assigned to different parts of the 
selection procedure, these weights and the validity of the weighted 
composite should be reported (essential). If the selection procedure is 
used with a cutoff score, the user should describe the way in which 
normal expectations of proficiency within the work force were determined 
and the way in which the cutoff score was determined (essential).
    (10) Accuracy and completeness. The report should describe the steps 
taken to assure the accuracy and completeness of the collection, 
analysis, and report of data and results.
    (11) Source data. Each user should maintain records showing all 
pertinent information relating to its study of construct validity.
    (12) Contact person. The name, mailing address, and telephone number 
of the individual who may be contacted for further information about the 
validity study should be provided (essential).
    E. Evidence of validity from other studies. When validity of a 
selection procedure is supported by studies not done by the user, the 
evidence from the original study or studies should be compiled in a 
manner similar to that required in the appropriate section of this 
section 15 above. In addition, the following evidence should be 
supplied:
    (1) Evidence from criterion-related validity studies--a. Job 
information. A description of the important job behavior(s) of the 
user's job and the basis on which the behaviors were determined to be 
important should be provided (essential). A full description of the 
basis for determining that these important work behaviors are the same 
as those of the job in the original study (or studies) should be 
provided (essential).
    b. Relevance of criteria. A full description of the basis on which 
the criteria used in the original studies are determined to be relevant 
for the user should be provided (essential).
    c. Other variables. The similarity of important applicant pool or 
sample characteristics reported in the original studies to those of the 
user should be described (essential). A description of the comparison 
between the race, sex and ethnic composition of the user's relevant 
labor market and the sample in the original validity studies should be 
provided (essential).
    d. Use of the selection procedure. A full description should be 
provided showing that the use to be made of the selection procedure is 
consistent with the findings of the original validity studies 
(essential).
    e. Bibliography. A bibliography of reports of validity of the 
selection procedure for the job or jobs in question should be provided 
(essential). Where any of the studies included an investigation of test 
fairness, the results of this investigation should be provided 
(essential). Copies of reports published in journals that are not 
commonly available should be described in detail or attached 
(essential). Where a user is relying upon unpublished studies, a 
reasonable effort should be made to obtain these studies. If these 
unpublished studies are the sole source of validity evidence they should 
be described in detail or attached (essential). If these studies are not 
available, the name and address of the source, an adequate abstract or 
summary of the validity study and data, and a contact person in the 
source organization should be provided (essential).
    (2) Evidence from content validity studies. See section 14C(3) and 
section 15C above.
    (3) Evidence from construct validity studies. See sections 14D(2) 
and 15D above.
    F. Evidence of validity from cooperative studies. Where a selection 
procedure has been validated through a cooperative study, evidence that 
the study satisfies the requirements of sections 7, 8 and 15E should be 
provided (essential).
    G. Selection for higher level job. If a selection procedure is used 
to evaluate candidates for jobs at a higher level than those for which 
they will initially be employed, the validity evidence should satisfy 
the documentation provisions of this section 15 for the higher level job 
or jobs, and in addition, the

[[Page 219]]

user should provide: (1) a description of the job progression structure, 
formal or informal; (2) the data showing how many employees progress to 
the higher level job and the length of time needed to make this 
progression; and (3) an identification of any anticipated changes in the 
higher level job. In addition, if the test measures a knowledge, skill 
or ability, the user should provide evidence that the knowledge, skill 
or ability is required for the higher level job and the basis for the 
conclusion that the knowledge, skill or ability is not expected to 
develop from the training or experience on the job.
    H. Interim use of selection procedures. If a selection procedure is 
being used on an interim basis because the procedure is not fully 
supported by the required evidence of validity, the user should maintain 
and have available (1) substantial evidence of validity for the 
procedure, and (2) a report showing the date on which the study to 
gather the additional evidence commenced, the estimated completion date 
of the study, and a description of the data to be collected (essential).

(Approved by the Office of Management and Budget under control number 
3046-0017)


(Pub. L. 96-511, 94 Stat. 2812 (44 U.S.C. 3501 et seq.))

[43 FR 38295, 38312, Aug. 25, 1978, as amended at 46 FR 63268, Dec. 31, 
1981]

                               Definitions



Sec. 1607.16  Definitions.

    The following definitions shall apply throughout these guidelines:
    A. Ability. A present competence to perform an observable behavior 
or a behavior which results in an observable product.
    B. Adverse impact. A substantially different rate of selection in 
hiring, promotion, or other employment decision which works to the 
disadvantage of members of a race, sex, or ethnic group. See section 4 
of these guidelines.
    C. Compliance with these guidelines. Use of a selection procedure is 
in compliance with these guidelines if such use has been validated in 
accord with these guidelines (as defined below), or if such use does not 
result in adverse impact on any race, sex, or ethnic group (see section 
4, above), or, in unusual circumstances, if use of the procedure is 
otherwise justified in accord with Federal law. See section 6B, above.
    D. Content validity. Demonstrated by data showing that the content 
of a selection procedure is representative of important aspects of 
performance on the job. See section 5B and section 14C.
    E. Construct validity. Demonstrated by data showing that the 
selection procedure measures the degree to which candidates have 
identifiable characteristics which have been determined to be important 
for successful job performance. See section 5B and section 14D.
    F. Criterion-related validity. Demonstrated by empirical data 
showing that the selection procedure is predictive of or significantly 
correlated with important elements of work behavior. See sections 5B and 
14B.
    G. Employer. Any employer subject to the provisions of the Civil 
Rights Act of 1964, as amended, including State or local governments and 
any Federal agency subject to the provisions of section 717 of the Civil 
Rights Act of 1964, as amended, and any Federal contractor or 
subcontractor or federally assisted construction contractor or 
subcontactor covered by Executive Order 11246, as amended.
    H. Employment agency. Any employment agency subject to the 
provisions of the Civil Rights Act of 1964, as amended.
    I. Enforcement action. For the purposes of section 4 a proceeding by 
a Federal enforcement agency such as a lawsuit or an administrative 
proceeding leading to debarment from or withholding, suspension, or 
termination of Federal Government contracts or the suspension or 
withholding of Federal Government funds; but not a finding of reasonable 
cause or a concil- ation process or the issuance of right to sue letters 
under title VII or under Executive Order 11246 where such finding, 
conciliation, or issuance of notice of right to sue is based upon an 
individual complaint.
    J. Enforcement agency. Any agency of the executive branch of the 
Federal Government which adopts these guidelines for purposes of the 
enforcement of

[[Page 220]]

the equal employment opportunity laws or which has responsibility for 
securing compliance with them.
    K. Job analysis. A detailed statement of work behaviors and other 
information relevant to the job.
    L. Job description. A general statement of job duties and 
responsibilities.
    M. Knowledge. A body of information applied directly to the 
performance of a function.
    N. Labor organization. Any labor organization subject to the 
provisions of the Civil Rights Act of 1964, as amended, and any 
committee subject thereto controlling apprenticeship or other training.
    O. Observable. Able to be seen, heard, or otherwise perceived by a 
person other than the person performing the action.
    P. Race, sex, or ethnic group. Any group of persons identifiable on 
the grounds of race, color, religion, sex, or national origin.
    Q. Selection procedure. Any measure, combination of measures, or 
procedure used as a basis for any employment decision. Selection 
procedures include the full range of assessment techniques from 
traditional paper and pencil tests, performance tests, training 
programs, or probationary periods and physical, educational, and work 
experience requirements through informal or casual interviews and 
unscored application forms.
    R. Selection rate. The proportion of applicants or candidates who 
are hired, promoted, or otherwise selected.
    S. Should. The term ``should'' as used in these guidelines is 
intended to connote action which is necessary to achieve compliance with 
the guidelines, while recognizing that there are circumstances where 
alternative courses of action are open to users.
    T. Skill. A present, observable competence to perform a learned 
psychomoter act.
    U. Technical feasibility. The exist- ence of conditions permitting 
the conduct of meaningful criterion-related validity studies. These 
conditions include: (1) An adequate sample of persons available for the 
study to achieve findings of statistical significance; (2) having or 
being able to obtain a sufficient range of scores on the selection 
procedure and job performance measures to produce validity results which 
can be expected to be representative of the results if the ranges 
normally expected were utilized; and (3) having or being able to devise 
unbiased, reliable and relevant measures of job performance or other 
criteria of employee adequacy. See section 14B(2). With respect to 
investigation of possible unfairness, the same considerations are 
applicable to each group for which the study is made. See section 
14B(8).
    V. Unfairness of selection procedure. A condition in which members 
of one race, sex, or ethnic group characteristically obtain lower scores 
on a selection procedure than members of another group, and the 
differences are not reflected in differences in measures of job 
performance. See section 14B(7).
    W. User. Any employer, labor organization, employment agency, or 
licensing or certification board, to the extent it may be covered by 
Federal equal employment opportunity law, which uses a selection 
procedure as a basis for any employment decision. Whenever an employer, 
labor organization, or employment agency is required by law to restrict 
recruitment for any occupation to those applicants who have met 
licensing or certification requirements, the licensing or certifying 
authority to the extent it may be covered by Federal equal employment 
opportunity law will be considered the user with respect to those 
licensing or certification requirements. Whenever a State employment 
agency or service does no more than administer or monitor a procedure as 
permitted by Department of Labor regulations, and does so without making 
referrals or taking any other action on the basis of the results, the 
State employment agency will not be deemed to be a user.
    X. Validated in accord with these guidelines or properly validated. 
A demonstration that one or more validity study or studies meeting the 
standards of these guidelines has been conducted, including 
investigation and, where appropriate, use of suitable alternative 
selection procedures as contemplated by section 3B, and has produced 
evidence of validity sufficient to warrant use of the procedure for the 
intended purpose

[[Page 221]]

under the standards of these guidelines.
    Y. Work behavior. An activity performed to achieve the objectives of 
the job. Work behaviors involve observable (physical) components and 
unobservable (mental) components. A work behavior consists of the 
performance of one or more tasks. Knowledges, skills, and abilities are 
not behaviors, although they may be applied in work behaviors.

                                Appendix



Sec. 1607.17  Policy statement on affirmative action (see section 13B).

    The Equal Employment Opportunity Coordinating Council was 
established by act of Congress in 1972, and charged with responsibility 
for developing and implementing agreements and policies designed, among 
other things, to eliminate conflict and inconsistency among the agencies 
of the Federal Government responsible for administering Federal law 
prohibiting discrimination on grounds of race, color, sex, religion, and 
national origin. This statement is issued as an initial response to the 
requests of a number of State and local officials for clarification of 
the Government's policies concerning the role of affirmative action in 
the overall equal employment opportunity program. While the Coordinating 
Council's adoption of this statement expresses only the views of the 
signatory agencies concerning this important subject, the principles set 
forth below should serve as policy guidance for other Federal agencies 
as well.
    (1) Equal employment opportunity is the law of the land. In the 
public sector of our society this means that all persons, regardless of 
race, color, religion, sex, or national origin shall have equal access 
to positions in the public service limited only by their ability to do 
the job. There is ample evidence in all sectors of our society that such 
equal access frequently has been denied to members of certain groups 
because of their sex, racial, or ethnic characteristics. The remedy for 
such past and present discrimination is twofold.
    On the one hand, vigorous enforcement of the laws against 
discrimination is essential. But equally, and perhaps even more 
important are affirmative, voluntary efforts on the part of public 
employers to assure that positions in the public service are genuinely 
and equally accessible to qualified persons, without regard to their 
sex, racial, or ethnic characteristics. Without such efforts equal 
employment opportunity is no more than a wish. The importance of 
voluntary affirmative action on the part of employers is underscored by 
title VII of the Civil Rights Act of 1964, Executive Order 11246, and 
related laws and regulations--all of which emphasize voluntary action to 
achieve equal employment opportunity.
    As with most management objectives, a systematic plan based on sound 
organizational analysis and problem identification is crucial to the 
accomplishment of affirmative action objectives. For this reason, the 
Council urges all State and local governments to develop and implement 
results oriented affirmative action plans which deal with the problems 
so identified.
    The following paragraphs are intended to assist State and local 
governments by illustrating the kinds of analyses and activities which 
may be appropriate for a public employer's voluntary affirmative action 
plan. This statement does not address remedies imposed after a finding 
of unlawful discrimination.
    (2) Voluntary affirmative action to assure equal employment 
opportunity is appropriate at any stage of the employment process. The 
first step in the construction of any affirmative action plan should be 
an analysis of the employer's work force to determine whether 
precentages of sex, race, or ethnic groups in individual job 
classifications are substantially similar to the precentages of those 
groups available in the relevant job market who possess the basic job-
related qualifications.
    When substantial disparities are found through such analyses, each 
element of the overall selection process should be examined to determine 
which elements operate to exclude persons on the basis of sex, race, or 
ethnic group. Such elements include, but are not limited to, 
recruitment, testing, ranking

[[Page 222]]

certification, interview, recommendations for selection, hiring, 
promotion, etc. The examination of each element of the selection process 
should at a minimum include a determination of its validity in 
predicting job performance.
    (3) When an employer has reason to believe that its selection 
procedures have the exclusionary effect described in paragraph 2 above, 
it should initiate affirmative steps to remedy the situation. Such 
steps, which in design and execution may be race, color, sex, or ethnic 
``conscious,'' include, but are not limited to, the following:
    (a) The establishment of a long-term goal, and short-range, interim 
goals and timetables for the specific job classifications, all of which 
should take into account the availability of basically qualified persons 
in the relevant job market;
    (b) A recruitment program designed to attract qualified members of 
the group in question;
    (c) A systematic effort to organize work and redesign jobs in ways 
that provide opportunities for persons lacking ``journeyman'' level 
knowledge or skills to enter and, with appropriate training, to progress 
in a career field;
    (d) Revamping selection instruments or procedures which have not yet 
been validated in order to reduce or eliminate exclusionary effects on 
particular groups in particular job classifications;
    (e) The initiation of measures designed to assure that members of 
the affected group who are qualified to perform the job are included 
within the pool of persons from which the selecting official makes the 
selection;
    (f) A systematic effort to provide career advancement training, both 
classroom and on-the-job, to employees locked into dead end jobs; and
    (g) The establishment of a system for regularly monitoring the 
effectiveness of the particular affirmative action program, and 
procedures for making timely adjustments in this program where 
effectiveness is not demonstrated.
    (4) The goal of any affirmative action plan should be achievement of 
genuine equal employment opportunity for all qualified persons. 
Selection under such plans should be based upon the ability of the 
applicant(s) to do the work. Such plans should not require the selection 
of the unqualified, or the unneeded, nor should they require the 
selection of persons on the basis of race, color, sex, religion, or 
national origin. Moreover, while the Council believes that this 
statement should serve to assist State and local employers, as well as 
Federal agencies, it recognizes that affirmative action cannot be viewed 
as a standardized program which must be accomplished in the same way at 
all times in all places.

Accordingly, the Council has not attempted to set forth here either the 
minimum or maximum voluntary steps that employers may take to deal with 
their respective situations. Rather, the Council recognizes that under 
applicable authorities, State and local employers have flexibility to 
formulate affirmative action plans that are best suited to their 
particular situations. In this manner, the Council believes that 
affirmative action programs will best serve the goal of equal employment 
opportunity.

    Respectfully submitted,

                                                 Harold R. Tyler, Jr.,  
Deputy Attorney General and Chairman of the Equal Employment 
Coordinating Council.
                                                    Michael H. Moskow,  
Under Secretary of Labor.
                                                     Ethel Bent Walsh,  
Acting Chairman, Equal Employment Opportunity Commission.
                                                    Robert E. Hampton,  
Chairman, Civil Service Commission.
                                                   Arthur E. Flemming,  
Chairman, Commission on Civil Rights.

    Because of its equal employment opportunity responsibilities under 
the State and Local Government Fiscal Assistance Act of 1972 (the 
revenue sharing act), the Department of Treasury was invited to 
participate in the formulation of this policy statement; and it concurs 
and joins in the adoption of this policy statement.

    Done this 26th day of August 1976.

                                                   Richard Albrecht,    
                                                      General Counsel,  
                                             Department of the Treasury.



Sec. 1607.18  Citations.

    The official title of these guidelines is ``Uniform Guidelines on 
Employee

[[Page 223]]

Selection Procedures (1978)''. The Uniform Guidelines on Employee 
Selection Procedures (1978) are intended to establish a uniform Federal 
position in the area of prohibiting discrimination in employment 
practices on grounds of race, color, religion, sex, or national origin. 
These guidelines have been adopted by the Equal Employment Opportunity 
Commission, the Department of Labor, the Department of Justice, and the 
Civil Service Commission.
    The official citation is:

    Section ----, Uniform Guidelines on Employee Selection Procedure 
(1978); 43 FR ---- (August 25, 1978).

    The short form citation is:

    Section ----, U.G.E.S.P. (1978); 43 FR ---- (August 25, 1978).

    When the guidelines are cited in connection with the activities of 
one of the issuing agencies, a specific citation to the regulations of 
that agency can be added at the end of the above citation. The specific 
additional citations are as follows:

Equal Employment Opportunity Commission
29 CFR part 1607
Department of Labor
Office of Federal Contract Compliance Programs
41 CFR part 60-3
Department of Justice
28 CFR 50.14
Civil Service Commission
5 CFR 300.103(c)

Normally when citing these guidelines, the section number immediately 
preceding the title of the guidelines will be from these guidelines 
series 1-18. If a section number from the codification for an individual 
agency is needed it can also be added at the end of the agency citation. 
For example, section 6A of these guidelines could be cited for EEOC as 
follows:

    Section 6A, Uniform Guidelines on Employee Selection Procedures 
(1978); 43 FR ----, (August 25, 1978); 29 CFR part 1607, section 6A.



PART 1608--AFFIRMATIVE ACTION APPROPRIATE UNDER TITLE VII OF THE CIVIL RIGHTS ACT OF 1964, AS AMENDED--Table of Contents




Sec.
1608.1  Statement of purpose.
1608.2  Written interpretation and opinion.
1608.3  Circumstances under which voluntary affirmative action is 
          appropriate.
1608.4  Establishing affirmative action plans.
1608.5  Affirmative action compliance programs under Executive Order No. 
          11246, as amended.
1608.6  Affirmative action plans which are part of Commission 
          conciliation or settlement agreements.
1608.7  Affirmative action plans or programs under State or local law.
1608.8  Adherence to court order.
1608.9  Reliance on directions of other government agencies.
1608.10  Standard of review.
1608.11  Limitations on the application of these guidelines.
1608.12  Equal employment opportunity plans adopted pursuant to section 
          717 of title VII.

    Authority: Sec. 713 the Civil Rights Act of 1964, as amended, 42 
U.S.C. 2000e-12, 78 Stat. 265.

    Source: 44 FR 4422, Jan. 19, 1979, unless otherwise noted.



Sec. 1608.1  Statement of purpose.

    (a) Need for Guidelines. Since the passage of title VII in 1964, 
many employers, labor organizations, and other persons subject to title 
VII have changed their employment practices and systems to improve 
employment opportunities for minorities and women, and this must 
continue. These changes have been undertaken either on the initiative of 
the employer, labor organization, or other person subject to title VII, 
or as a result of conciliation efforts under title VII, action under 
Executive Order 11246, as amended, or under other Federal, State, or 
local laws, or litigation. Many decisions taken pursuant to affirmative 
action plans or programs have been race, sex, or national origin 
conscious in order to achieve the Congressional purpose of

[[Page 224]]

providing equal employment opportunity. Occasionally, these actions have 
been challenged as inconsistent with title VII, because they took into 
account race, sex, or national origin. This is the so-called ``reverse 
discrimination'' claim. In such a situation, both the affirmative action 
undertaken to improve the conditions of minorities and women, and the 
objection to that action, are based upon the principles of title VII. 
Any uncertainty as to the meaning and application of title VII in such 
situations threatens the accomplishment of the clear Congressional 
intent to encourage voluntary affirmative action. The Commission 
believes that by the enactment of title VII Congress did not intend to 
expose those who comply with the Act to charges that they are violating 
the very statute they are seeking to implement. Such a result would 
immobilize or reduce the efforts of many who would otherwise take action 
to improve the opportunities of minorities and women without litigation, 
thus frustrating the Congressional intent to encourage voluntary action 
and increasing the prospect of title VII litigation. The Commission 
believes that it is now necessary to clarify and harmonize the 
principles of title VII in order to achieve these Congressional 
objectives and protect those employers, labor organizations, and other 
persons who comply with the principles of title VII.
    (b) Purposes of title VII. Congress enacted title VII in order to 
improve the economic and social conditions of minorities and women by 
providing equality of opportunity in the work place. These conditions 
were part of a larger pattern of restriction, exclusion, discrimination, 
segregation, and inferior treatment of minorities and women in many 
areas of life.2 The Legislative Histories of title VII, the 
Equal Pay Act, and the Equal Employment Opportunity Act of 1972 contain 
extensive analyses of the higher unemployment rate, the lesser 
occupational status, and the consequent lower income levels of 
minorities and women.3 The purpose of Executive Order No. 
11246, as amended, is similar to the purpose of title VII. In response 
to these economic and social conditions, Congress, by passage of title 
VII, established a national policy against discrimination in employment 
on grounds of race, color, religion, sex, and national origin. In 
addition, Congress strongly encouraged employers, labor organizations, 
and other persons subject to title VII (hereinafter referred to as 
``persons,'' see section 701(a) of the Act) to act on a voluntary basis 
to modify employment practices and systems which constituted barriers to 
equal employment opportunity, without awaiting litigation or formal 
government action. Conference, conciliation, and persuasion were the 
primary processes adopted by Congress in 1964, and reaffirmed in 1972, 
to achieve these objectives, with enforcement action through the courts 
or agencies as a supporting procedure where voluntary action did not 
take place and conciliation failed. See section 706 of title VII.
---------------------------------------------------------------------------

    2  Congress has also addressed these conditions in other 
laws, including the Equal Pay Act of 1963, Pub. L. 88-38, 77 Stat. 56 
(1963), as amended; the other titles of the Civil Rights Act of 1964, 
Pub. L. 88-352, 78 Stat. 241 (1964), as amended; the Voting Rights Act 
of 1965, Pub. L. 89-110, 79 Stat. 437 (1965), as amended; the Fair 
Housing Act of 1968, Pub. L. 90-284, title VII, 82 Stat. 73, 81 (1968), 
as amended; the Educational Opportunity Act (title IX), Pub. L. 92-318, 
86 Stat. 373 (1972), as amended; and the Equal Employment Opportunity 
Act of 1972, Pub. L. 92-261, 86 Stat. 103 (1972), as amended.
    3  Equal Pay Act of 1963: S. Rep. No. 176, 88th Cong., 
1st Sess., 1-2 (1963). Civil Rights Act of 1964: H.R. Rep. No. 914, pt. 
2, 88th Cong., 1st Sess. (1971). Equal Employment Opportunity Act of 
1972: H.R. Rep. No. 92-238, 92d Cong., 1st Sess. (1971); S. Rep. No. 92-
415, 92d Cong., 1st Sess. (1971). See also, Equal Employment Opportunity 
Commission, Equal Employment Opportunity Report--1975, Job Patterns for 
Women in Private Industry (1977); Equal Employment Opportunity 
Commission, Minorities and Women in State and Local Government--1975 
(1977); United States Commission on Civil Rights, Social Indicators of 
Equality for Minorities and Women (1978).
---------------------------------------------------------------------------

    (c) Interpretation in furtherance of legislative purpose. The 
principle of nondiscrimination in employment because of race, color, 
religion, sex, or national origin, and the principle that each person 
subject to title VII should take voluntary action to correct the effects 
of past discrimination and to prevent present and future discrimination

[[Page 225]]

without awaiting litigation, are mutually consistent and interdependent 
methods of addressing social and economic conditions which precipitated 
the enactment of title VII. Voluntary affirmative action to improve 
opportunities for minorities and women must be encouraged and protected 
in order to carry out the Congressional intent embodied in title 
VII.4 Affirmative action under these principles means those 
actions appropriate to overcome the effects of past or present 
practices, policies, or other barriers to equal employment opportunity. 
Such voluntary affirmative action cannot be measured by the standard of 
whether it would have been required had there been litigation, for this 
standard would undermine the legislative purpose of first encouraging 
voluntary action without litigation. Rather, persons subject to title 
VII must be allowed flexibility in modifying employment systems and 
practices to comport with the purposes of title VII. Correspondingly, 
title VII must be construed to permit such voluntary action, and those 
taking such action should be afforded the protection against title VII 
liability which the Commission is authorized to provide under section 
713(b)(1).
---------------------------------------------------------------------------

    4 Affirmative action often improves opportunities for all 
members of the workforce, as where affirmative action includes the 
posting of notices of job vacancies. Similarly, the integration of 
previously segregated jobs means that all workers will be provided 
opportunities to enter jobs previously restricted. See, e.g., EEOC v. 
AT&T, 419 F. Supp. 1022 (E.D.Pa. 1976), aff'd, 556 F. 2d 167 (3rd Cir. 
1977), cert. denied, 98 S.Ct. 3145 (1978).
---------------------------------------------------------------------------

    (d) Guidelines interpret title VII and authorize use of section 
713(b)(1). These Guidelines describe the circumstances in which persons 
subject to title VII may take or agree upon action to improve employment 
opportunities of minorities and women, and describe the kinds of actions 
they may take which are consistent with title VII. These Guidelines 
constitute the Commission's interpretation of title VII and will be 
applied in the processing of claims of discrimination which involve 
voluntary affirmative action plans and programs. In addition, these 
Guidelines state the circumstances under which the Commission will 
recognize that a person subject to title VII is entitled to assert that 
actions were taken ``in good faith, in conformity with, and in reliance 
upon a written interpretation or opinion of the Commission,'' including 
reliance upon the interpretation and opinion contained in these 
Guidelines, and thereby invoke the protection of section 713(b)(1) of 
title VII.
    (e) Review of existing plans recommended. Only affirmative action 
plans or programs adopted in good faith, in conformity with, and in 
reliance upon these Guidelines can receive the full protection of these 
Guidelines, including the section 713(b)(1) defense. See Sec. 1608.10. 
Therefore, persons subject to title VII who have existing affirmative 
action plans, programs, or agreements are encouraged to review them in 
light of these Guidelines, to modify them to the extent necessary to 
comply with these Guidelines, and to readopt or reaffirm them.



Sec. 1608.2  Written interpretation and opinion.

    These Guidelines constitute ``a written interpretation and opinion'' 
of the Equal Employment Opportunity Commission as that term is used in 
section 713(b)(1) of title VII of the Civil Rights Act of 1964, as 
amended, 42 U.S.C. 2000e-12(b)(1), and Sec. 1601.33 of the Procedural 
Regulations of the Equal Employment Opportunity Commission (29 CFR 
1601.30; 42 FR 55,394 (October 14, 1977)). Section 713(b)(1) provides:

    In any action or proceeding based on any alleged unlawful employment 
practice, no person shall be subject to any liability or punishment for 
or on account of (1) the commission by such person of an unlawful 
employment practice if he pleads and proves that the act or omission 
complained of was in good faith, in conformity with, and in reliance on 
any written interpretation or opinion of the Commission * * *. Such a 
defense, if established, shall be a bar to the action or proceeding, 
notwithstanding that * * * after such act or omission, such 
interpretation or opinion is modified or rescinded or is determined by 
judicial authority to be invalid or of no legal effect * * *.


The applicability of these Guidelines is subject to the limitations on 
use set forth in Sec. 1608.11.

[[Page 226]]



Sec. 1608.3  Circumstances under which voluntary affirmative action is appropriate.

    (a) Adverse effect. Title VII prohibits practices, procedures, or 
policies which have an adverse impact unless they are justified by 
business necessity. In addition, title VII proscribes practices which 
``tend to deprive'' persons of equal employment opportunities. 
Employers, labor organizations and other persons subject to title VII 
may take affirmative action based on an analysis which reveals facts 
constituting actual or potential adverse impact, if such adverse impact 
is likely to result from existing or contemplated practices.
    (b) Effects of prior discriminatory practices. Employers, labor 
organizations, or other persons subject to title VII may also take 
affirmative action to correct the effects of prior discriminatory 
practices. The effects of prior discriminatory practices can be 
initially identified by a comparison between the employer's work force, 
or a part thereof, and an appropriate segment of the labor force.
    (c) Limited labor pool. Because of historic restrictions by 
employers, labor organizations, and others, there are circumstances in 
which the available pool, particularly of qualified minorities and 
women, for employment or promotional opportunities is artificially 
limited. Employers, labor organizations, and other persons subject to 
title VII may, and are encouraged to take affirmative action in such 
circumstances, including, but not limited to, the following:
    (1) Training plans and programs, including on-the-job training, 
which emphasize providing minorities and women with the opportunity, 
skill, and expericence necessary to perform the functions of skilled 
trades, crafts, or professions;
    (2) Extensive and focused recruiting activity;
    (3) Elimination of the adverse impact caused by unvalidated 
selection criteria (see sections 3 and 6, Uniform Guidelines on Employee 
Selection Procedures (1978), 43 FR 30290; 38297; 38299 (August 25, 
1978));
    (4) Modification through collective bargaining where a labor 
organization represents employees, or unilaterally where one does not, 
of promotion and layoff procedures.



Sec. 1608.4  Establishing affirmative action plans.

    An affirmative action plan or program under this section shall 
contain three elements: a reasonable self analysis; a reasonable basis 
for concluding action is appropriate; and reasonable action.
    (a) Reasonable self analysis. The objective of a self analysis is to 
determine whether employment practices do, or tend to, exclude, 
disadvantage, restrict, or result in adverse impact or disparate 
treatment of previously excluded or restricted groups or leave 
uncorrected the effects of prior discrimination, and if so, to attempt 
to determine why. There is no mandatory method of conducting a self 
analysis. The employer may utilize techniques used in order to comply 
with Executive Order 11246, as amended, and its implementing 
regulations, including 41 CFR part 60-2 (known as Revised Order 4), or 
related orders issued by the Office of Federal Contract Compliance 
Programs or its authorized agencies, or may use an analysis similar to 
that required under other Federal, State, or local laws or regulations 
prohibiting employment discrimination. In conducting a self analysis, 
the employer, labor organization, or other person subject to title VII 
should be concerned with the effect on its employment practices of 
circumstances which may be the result of discrimination by other persons 
or institutions. See Griggs v. Duke Power Co., 401 U.S. 424 (1971).
    (b) Reasonable basis. If the self analysis shows that one or more 
employment practices:
    (1) Have or tend to have an adverse effect on employment 
opportunities of members of previously excluded groups, or groups whose 
employment or promotional opportunities have been artificially limited,
    (2) Leave uncorrected the effects of prior discrimination, or
    (3) Result in disparate treatment, the person making the self 
analysis has a reasonable basis for concluding that action is 
appropriate.

It is not necessary that the self analysis establish a violation of 
title VII.

[[Page 227]]

This reasonable basis exists without any admission or formal finding 
that the person has violated title VII, and without regard to whether 
there exists arguable defenses to a title VII action.
    (c) Reasonable action. The action taken pursuant to an affirmative 
action plan or program must be reasonable in relation to the problems 
disclosed by the self analysis. Such reasonable action may include goals 
and timetables or other appropriate employment tools which recognize the 
race, sex, or national origin of applicants or employees. It may include 
the adoption of practices which will eliminate the actual or potential 
adverse impact, disparate treatment, or effect or past discrimination by 
providing opportunities for members of groups which have been excluded, 
regardless of whether the persons benefited were themselves the victims 
of prior policies or procedures which produced the adverse impact or 
disparate treatment or which perpetuated past discrimination.
    (1) Illustrations of appropriate affirmative action. Affirmative 
action plans or programs may include, but are not limited to, those 
described in the Equal Employment Opportunity Coordinating Council 
``Policy Statement on Affirmative Action Programs for State and Local 
Government Agencies,'' 41 FR 38814 (September 13, 1976), reaffirmed and 
extended to all persons subject to Federal equal employment opportunity 
laws and orders, in the Uniform Guidelines on Employee Selection 
Procedures (1978) 43 FR 38290; 38300 (Aug. 25, 1978). That statement 
reads, in relevant part:

    When an employer has reason to believe that its selection procedures 
have * * * exclusionary effect * * *, it should initiate affirmative 
steps to remedy the situation. Such steps, which in design and execution 
may be race, color, sex or ethnic `conscious,' include, but are not 
limited to, the following:
    The establishment of a long term goal and short range, interim goals 
and timetables for the specific job classifications, all of which should 
take into account the availability of basically qualified persons in the 
relevant job market;
    A recruitment program designed to attract qualified members of the 
group in question;
    A systematic effort to organize work and re-design jobs in ways that 
provide opportunities for persons lacking `journeyman' level knowledge 
or skills to enter and, with appropriate training, to progress in a 
career field;
    Revamping selection instruments or procedures which have not yet 
been validated in order to reduce or eliminate exclusionary effects on 
particular groups in particular job classifications;
    The initiation of measures designed to assure that members of the 
affected group who are qualified to perform the job are included within 
the pool of persons from which the selecting official makes the 
selection;
    A systematic effort to provide career advancement training, both 
classroom and on-the-job, to employees locked into dead end jobs; and
    The establishment of a system for regularly monitoring the 
effectiveness of the particular affirmative action program, and 
procedures for making timely adjustments in this program where 
effectiveness is not demonstrated.

    (2) Standards of reasonable action. In considering the 
reasonableness of a particular affirmative action plan or program, the 
Commission will generally apply the following standards:
    (i) The plan should be tailored to solve the problems which were 
identified in the self analysis, see Sec. 1608.4(a), supra, and to 
ensure that employment systems operate fairly in the future, while 
avoiding unnecessary restrictions on opportunities for the workforce as 
a whole. The race, sex, and national origin conscious provisions of the 
plan or program should be maintained only so long as is necessary to 
achieve these objectives.
    (ii) Goals and timetables should be reasonably related to such 
considerations as the effects of past discrimination, the need for 
prompt elimination of adverse impact or disparate treatment, the 
availability of basically qualified or qualifiable applicants, and the 
number of employment opportunities expected to be available.
    (d) Written or unwritten plans or programs--(1) Written plans 
required for 713(b)(1) protection. The protection of section 713(b) of 
title VII will be accorded by the Commission to a person subject to 
title VII only if the self analysis and the affirmative action plan are 
dated and in writing, and the plan otherwise meets the requirements of 
section 713(b)(1). The Commission will not require that there be any 
written statement concluding that a title VII violation exists.

[[Page 228]]

    (2) Reasonable cause determinations. Where an affirmative action 
plan or program is alleged to violate title VII, or is asserted as a 
defense to a charge of discrimination, the Commission will investigate 
the charge in accordance with its usual procedures and pursuant to the 
standards set forth in these Guidelines, whether or not the analysis and 
plan are in writing. However, the absence of a written self analysis and 
a written affirmative action plan or program may make it more difficult 
to provide credible evidence that the analysis was conducted, and that 
action was taken pursuant to a plan or program based on the analysis. 
Therefore, the Commission recommends that such analyses and plans be in 
writing.



Sec. 1608.5  Affirmative action compliance programs under Executive Order No. 11246, as amended.

    Under title VII, affirmative action compliance programs adopted 
pursuant to Executive Order 11246, as amended, and its implementing 
regulations, including 41 CFR part 60-2 (Revised Order 4), will be 
considered by the Commission in light of the similar purposes of title 
VII and the Executive Order, and the Commission's responsibility under 
Executive Order 12067 to avoid potential conflict among Federal equal 
employment opportunity programs. Accordingly, the Commission will 
process title VII complaints involving such affirmative action 
compliance programs under this section.
    (a) Procedures for review of Affirmative Action Compliance Programs. 
If adherence to an affirmative action compliance program adopted 
pursuant to Executive Order 11246, as amended, and its implementing 
regulations, is the basis of a complaint filed under title VII, or is 
alleged to be the justification for an action which is challenged under 
title VII, the Commission will investigate to determine whether the 
affirmative action compliance program was adopted by a person subject to 
the Order and pursuant to the Order, and whether adherence to the 
program was the basis of the complaint or the justification.
    (1) Programs previously approved. If the Commission makes the 
determination described in paragraph (a) of this section and also finds 
that the affirmative action program has been approved by an appropriate 
official of the Department of Labor or its authorized agencies, or is 
part of a conciliation or settlement agreement or an order of an 
administrative agency, whether entered by consent or after contested 
proceedings brought to enforce Executive Order 11246, as amended, the 
Commission will issue a determination of no reasonable cause.
    (2) Program not previously approved. If the Commission makes the 
determination described in paragraph (a), of this section but the 
program has not been approved by an appropriate official of the 
Department of Labor or its authorized agencies, the Commission will: (i) 
Follow the procedure in Sec. 1608.10(a) and review the program, or (ii) 
refer the plan to the Department of Labor for a determination of whether 
it is to be approved under Executive Order 11246, as amended, and its 
implementing regulations. If, the Commission finds that the program does 
conform to these Guidelines, or the Department of Labor approves the 
affirmative action compliance program, the Commission will issue a 
determination of no reasonable cause under Sec. 1608.10(a).
    (b) Reliance on these guidelines. In addition, if the affirmative 
action compliance program has been adopted in good faith reliance on 
these Guidelines, the provisions of section 713(b)(1) of title VII and 
of Sec. 1608.10(b), of this part, may be asserted by the contractor.



Sec. 1608.6  Affirmative action plans which are part of Commission conciliation or settlement agreements.

    (a) Procedures for review of plans. If adherence to a conciliation 
or settlement agreement executed under title VII and approved by a 
responsible official of the EEOC is the basis of a complaint filed under 
title VII, or is alleged to be the justification for an action 
challenged under title VII, the Commission will investigate to 
determine:
    (1) Whether the conciliation agreement or settlement agreement was 
approved by a responsible official of the EEOC, and

[[Page 229]]

    (2) Whether adherence to the agreement was the basis for the 
complaint or justification.

If the Commission so finds, it will make a determination of no 
reasonable cause under Sec. 1608.10(a) and will advise the respondent of 
its right under section 713(b)(1) of title VII to rely on the 
conciliation agreement.
    (b) Reliance on these guidelines. In addition, if the affirmative 
action plan or program has been adopted in good faith reliance on these 
Guidelines, the provisions of section 713(b)(1) of title VII and of 
Sec. 1608.10(b), of this part, may be asserted by the respondent.



Sec. 1608.7  Affirmative action plans or programs under State or local law.

    Affirmative action plans or programs executed by agreement with 
State or local government agencies, or by order of State or local 
government agencies, whether entered by consent or after contested 
proceedings, under statutes or ordinances described in title VII, will 
be reviewed by the Commission in light of the similar purposes of title 
VII and such statutes and ordinances. Accordingly, the Commission will 
process title VII complaints involving such affirmative action plans or 
programs under this section.
    (a) Procedures for review of plans or programs. If adherence to an 
affirmative action plan or program executed pursuant to a State statute 
or local ordinance described in title VII is the basis of a complaint 
filed under title VII or is alleged to be the justification for an 
action which is challenged under Title VII, the Commission will 
investigate to determine:
    (1) Whether the affirmative action plan or program was executed by 
an employer, labor organization, or person subject to the statute or 
ordinance,
    (2) Whether the agreement was approved by an appropriate official of 
the State or local government, and
    (3) Whether adherence to the plan or program was the basis of the 
complaint or justification.
    (1) Previously approved plans or programs. If the Commission finds 
the facts described in paragraph (a) of this section, the Commission 
will, in accordance with the ``substantial weight'' provisions of 
section 706 of the Act, find no reasonable cause where appropriate.
    (2) Plans or programs not previously approved. If the plan or 
program has not been approved by an appropriate official of the State or 
local government, the Commission will follow the procedure of 
Sec. 1608.10 of these Guidelines. If the Commission finds that the plan 
or program does conform to these Guidelines, the Commission will make a 
determination of no reasonable cause as set forth in Sec. 1608.10(a).
    (b) Reliance on these guidelines. In addition, if the affirmative 
action plan or program has been adopted in good faith reliance on these 
Guidelines, the provisions of section 713(b)(1) and Sec. 1608.10(b), of 
this part, may be asserted by the respondent.



Sec. 1608.8  Adherence to court order.

    Parties are entitled to rely on orders of courts of competent 
jurisdiction. If adherence to an Order of a United States District Court 
or other court of competent jurisdiction, whether entered by consent or 
after contested litigation, in a case brought to enforce a Federal, 
State, or local equal employment opportunity law or regulation, is the 
basis of a complaint filed under title VII or is alleged to be the 
justification for an action which is challenged under title VII, the 
Commission will investigate to determine:
    (a) Whether such an Order exists and
    (b) Whether adherence to the affirmative action plan which is part 
of the Order was the basis of the complaint or justification.

If the Commission so finds, it will issue a determination of no 
reasonable cause. The Commission interprets title VII to mean that 
actions taken pursuant to the direction of a Court Order cannot give 
rise to liability under title VII.



Sec. 1608.9  Reliance on directions of other government agencies.

    When a charge challenges an affirmative action plan or program, or 
when such a plan or program is raised as justification for an employment 
decision, and when the plan or program was developed pursuant to the 
requirements of a Federal or State law or regulation

[[Page 230]]

which in part seeks to ensure equal employment opportunity, the 
Commission will process the charge in accordance with Sec. 1608.10(a). 
Other agencies with equal employment opportunity responsibilities may 
apply the principles of these Guidelines in the exercise of their 
authority.



Sec. 1608.10  Standard of review.

    (a) Affirmative action plans or programs not specifically relying on 
these guidelines. If, during the investigation of a charge of 
discrimination filed with the Commission, a respondent asserts that the 
action complained of was taken pursuant to an in accordance with a plan 
or program of the type described in these Guidelines, the Commission 
will determine whether the assertion is true, and if so, whether such a 
plan or program conforms to the requirements of these guidelines. If the 
Commission so finds, it will issue a determination of no reasonable 
cause and, where appropriate, will state that the determination 
constitutes a written interpretation or opinion of the Commission under 
section 713(b)(1). This interpretation may be relied upon by the 
respondent and asserted as a defense in the event that new charges 
involving similar facts and circumstances are thereafter filed against 
the respondent, which are based on actions taken pursuant to the 
affirmative action plan or program. If the Commission does not so find, 
it will proceed with the investigation in the usual manner.
    (b) Reliance on these guidelines. If a respondent asserts that the 
action taken was pursuant to and in accordance with a plan or program 
which was adopted or implemented in good faith, in conformity with, and 
in reliance upon these Guidelines, and the self analysis and plan are in 
writing, the Commission will determine whether such assertion is true. 
If the Commission so finds, it will so state in the determination of no 
reasonable cause and will advise the respondent that:
    (1) The Commission has found that the respondent is entitled to the 
protection of section 713(b)(1) of title VII; and
    (2) That the determination is itself an additional written 
interpretation or opinion of the Commission pursuant to section 
713(b)(1).



Sec. 1608.11  Limitations on the application of these guidelines.

    (a) No determination of adequacy of plan or program. These 
Guidelines are applicable only with respect to the circumstances 
described in Sec. 1608.1(d), of this part. They do not apply to, and the 
section 713(b)(1) defense is not available for the purpose of, 
determining the adequacy of an affirmative action plan or program to 
eliminate discrimination. Whether an employer who takes such affirmative 
action has done enough to remedy such discrimination will remain a 
question of fact in each case.
    (b) Guidelines inapplicable in absence of affirmative action. Where 
an affirmative action plan or program does not exist, or where the plan 
or program is not the basis of the action complained of, these 
Guidelines are inapplicable.
    (c) Currency of plan or program. Under section 713(b)(1), persons 
may rely on the plan or program only during the time when it is current. 
Currency is related to such factors as progress in correcting the 
conditions disclosed by the self analysis. The currency of the plan or 
program is a question of fact to be determined on a case by case basis. 
Programs developed under Executive Order 11246, as amended, will be 
deemed current in accordance with Department of Labor regulations at 41 
CFR chapter 60, or successor orders or regulations.



Sec. 1608.12  Equal employment opportunity plans adopted pursuant to section 717 of title VII.

    If adherence to an Equal Employment Opportunity Plan, adopted 
pursuant to section 717 of title VII, and approved by an appropriate 
official of the U.S. Civil Service Commission, is the basis of a 
complaint filed under title VII, or is alleged to be the justification 
for an action under title VII, these Guidelines will apply in a manner 
similar to that set forth in Sec. 1608.5. The Commission will issue 
regulations setting forth the procedure for processing such complaints.

[[Page 231]]



PART 1610--AVAILABILITY OF RECORDS--Table of Contents




         Subpart A--Production or Disclosure Under 5 U.S.C. 552

Sec.
1610.1  Definitions.
1610.2  Statutory requirements.
1610.3  Purpose and scope.
1610.4  Public reference facilities and current index.
1610.5  Request for records.
1610.6  Records of other agencies.
1610.7  Where to make request; form.
1610.8  Authority to determine.
1610.9  Responses: timing.
1610.10  Responses: form and content.
1610.11  Appeals to the Legal Counsel from initial denials.
1610.13  Maintenance of files.
1610.14  Waiver of user charges.
1610.15  Schedule of fees and method of payment for services rendered.
1610.16  Payment of fees.
1610.17  Exemptions.
1610.18  Information to be disclosed.
1610.19  Predisclosure notification procedures for confidential 
          commercial information.
1610.20  Deletion of exempted matters.
1610.21  Annual report.

 Subpart B--Production in Response to Subpenas or Demands of Courts or 
                            Other Authorities

1610.30  Purpose and scope.
1610.32  Production prohibited unless approved by the Legal Counsel.
1610.34  Procedure in the event of a demand for production or 
          disclosure.
1610.36  Procedure in the event of an adverse ruling.

    Authority:  42 U.S.C. 2000e-12(a), 5 U.S.C. 552 as amended by Pub. 
L. 93-502, Pub. L. 99-570, and Pub. L. 105-231; for Sec. 1610.15, 
nonsearch or copy portions are issued under 31 U.S.C. 9701.



         Subpart A--Production or Disclosure Under 5 U.S.C. 552



Sec. 1610.1  Definitions.

    (a) Title VII refers to title VII of the Civil Rights Act of 1964, 
as amended by Public Law 92-261, 42 U.S.C. (Supp. II) 2000e et seq.
    (b) Commission refers to the Equal Employment Opportunity 
Commission.
    (c) Freedom of Information Act refers to 5 U.S.C. 552 (Pub. L. 90-23 
as amended by Pub. L. 93-502).
    (d) Commercial use refers to a use or purpose by the requester of 
information for the information that furthers the requester's 
commercial, trade or profit interests. Requests for charge files by 
profit-making entities, other than educational and noncommercial 
scientific institutions and representatives of the new media, shall be 
considered for commercial use unless the request demonstrates a 
noncommercial use.
[40 FR 8171, Feb. 26, 1975, as amended at 52 FR 13830, Apr. 27, 1987]



Sec. 1610.2  Statutory requirements.

    5 U.S.C. 552(a)(3) requires each Agency, upon request for reasonably 
described records made in accordance with published rules stating the 
time, place, fees, if any, and procedure to be followed, to make such 
records promptly available to any person. 5 U.S.C. 552(b) exempts 
specified classes of records from the public access requirements of 5 
U.S.C. 552(a) and permits them to be withheld.
[40 FR 8171, Feb. 26, 1975]



Sec. 1610.3  Purpose and scope.

    This subpart contains the regulations of the Equal Employment 
Opportunity Commission implementing 5 U.S.C. 552. The regulations of 
this subpart provide information concerning the procedures by which 
records may be obtained from all organizational units within the 
Commission. Official records of the Commission made available pursuant 
to the requirements of 5 U.S.C. 552 shall be furnished to members of the 
public only as prescribed by this subpart. Officers and employees of the 
Commission may continue to furnish to the public, informally and without 
compliance with the procedures prescribed herein, information and 
records which prior to the enactment of 5 U.S.C. 552 were furnished 
customarily in the regular performance of their duties. To the extent 
that it is not prohibited by other laws, the Commission also will make 
available records which it is authorized to withhold under 5 U.S.C. 552 
whenever it determines that such disclosure is in the public interest.

[[Page 232]]



Sec. 1610.4  Public reference facilities and current index.

    (a) The Commission will maintain in a public reading area located in 
the Commission's library at 1801 L Street NW., Washington DC 20507, the 
materials which are required by 5 U.S.C. 552(a)(2) and 552(a)(5) to be 
made available for public inspection and copying. Any such materials 
created on or after November 1, 1996 may also be accessed through the 
Internet at EEOC's World Wide Web site at http:www.eeoc.gov. The 
Commission will maintain and make available for public inspection and 
copying in this public reading area a current index providing 
identifying information for the public as to any matter which is issued, 
adopted, or promulgated after July 4, 1967, and which is required to be 
indexed by 5 U.S.C. 552(a)(2). The Commission in its discretion may, 
however, include precedential materials issued, adopted, or promulgated 
prior to July 4, 1967. The Commission will also maintain on file in this 
public reading area all material published by the Commission in the 
Federal Register and currently in effect.
    (b) Each of the Commission's field offices listed in paragraph (c) 
of this section, including the District Offices, the Washington Field 
Office, the Area Offices and the Local Offices, shall maintain and make 
available for public inspection and copying a copy of:
    (1) The Commission's notices and regulatory amendments which are not 
yet or have never been published in the Code of Federal Regulations,
    (2) The Commission's annual reports,
    (3) The Commission's Compliance Manual,
    (4) Blank forms relating to the Commission's procedures as they 
affect the public,
    (5) The Commission's Orders (agency directives), and
    (6) ``CCH Equal Employment Opportunity Commission Decisions'' (1973) 
and Employment Practices Guide (vol. 2), published by Commerce Clearing 
House, Inc.
    (c) The Commission's field offices are:

Albuquerque Area Office (Phoenix District), 505 Marquette, NW, Suite 
900, Albuquerque, NM 87102.
Atlanta District Office, 100 Alabama Street, SW, Suite 4R30, Atlanta, GA 
30303.
Baltimore District Office, City Crescent Building, 10 South Howard 
Street, 3rd Floor, Baltimore, MD 21201.
Birmingham District Office, 1900 3rd Avenue, North, Suite 101, 
Birmingham, AL 35203-2397.
Boston Area Office (New York District), 1 Congress Street, 10th Floor, 
Room 1001, Boston, MA 02114.
Buffalo Local Office (New York District), 6 Fountain Plaza, Suite 350, 
Buffalo, NY 14202.
Charlotte District Office, 129 West Trade Street, Suite 400, Charlotte, 
NC 28202.
Chicago District Office, 500 West Madison Street, Suite 2800, Chicago, 
IL 60661.
Cincinnati Area Office (Cleveland District), 525 Vine Street, Suite 810, 
Cincinnati, OH 45202-3122.
Cleveland District Office, 1660 West Second Street, Suite 850, 
Cleveland, OH 44113-1454.
Dallas District Office, 207 S. Houston Street, 3rd Floor, Dallas, TX 
75202-4726.
Denver District Office, 303 E. 17th Avenue, Suite 510, Denver, CO 80203.
Detroit District Office, 477 Michigan Avenue, Room 865, Detroit, MI 
48226-9704.
El Paso Area Office (San Antonio District), The Commons, Building C, 
Suite 100, 4171 N. Mesa Street, El Paso, TX 79902.
Fresno Local Office (San Francisco District), 1265 West Shaw Avenue, 
Suite 103, Fresno, CA 93711.
Greensboro Local Office (Charlotte District), 801 Summit Avenue, 
Greensboro, NC 27405-7813.
Greenville Local Office (Charlotte District), Wachovia Building, 15 
South Main Street, Suite 530, Greenville, SC 29601.
Honolulu Local Office (San Francisco District), 300 Ala Moana Boulevard, 
Room 7123-A, PO Box 50082, Honolulu, HI 96850-0051.
Houston District Office, 1919 Smith Street, 7th Floor, Houston, TX 
77002.
Indianapolis District Office, 101 West Ohio Street, Suite 1900, 
Indianapolis, IN 46204-4203.
Jackson Area Office (Birmingham District), 207 West Amite Street, 
Jackson, MS 39201.
Kansas City Area Office (St. Louis District), 400 State Avenue, Suite 
905, Kansas City, KS 66101.
Little Rock Area Office (Memphis District), 425 West Capitol Avenue, 
Suite 625, Little Rock, AR 72201.
Los Angeles District Office, 255 E. Temple Street, 4th Floor, Los 
Angeles, CA 90012.
Louisville Area Office (Indianapolis District), 600 Dr. Martin Luther 
King Jr. Place, Suite 268, Louisville, KY 40202.
Memphis District Office, 1407 Union Avenue, Suite 621, Memphis, TN 
38104.

[[Page 233]]

Miami District Office, One Biscayne Tower, 2 South Biscayne Boulevard, 
Suite 2700, Miami, FL 33131.
Milwaukee District Office, 310 West Wisconsin Avenue, Suite 800, 
Milwaukee, WI 53203-2292.
Minneapolis Area Office (Milwaukee District), 330 South Second Avenue, 
Suite 430, Minneapolis, MN 55402-2224.
Nashville Area Office (Memphis District), 50 Vantage Way, Suite 202, 
Nashville, TN 37228-9940.
Newark Area Office (Philadelphia District), 1 Newark Center, 21st Floor, 
Newark, NJ 07102-5233.
New Orleans District Office, 701 Loyola Avenue, Suite 600, New Orleans, 
LA 70113-9936.
New York District Office, 7 World Trade Center, 18th Floor, New York, NY 
10048-1102.
Norfolk Area Office (Baltimore District), World Trade Center, 101 South 
Main Street, Suite 4300, Norfolk, VA 23510.
Oakland Local Office (San Francisco District), 1301 Clay Street, Suite 
1170-N, Oakland, CA 94612-5217.
Oklahoma Area Office (Dallas District), 210 Park Avenue, Suite 1350, 
Oklahoma City, OK 73102.
Philadelphia District Office, 21 South 5th Street, Suite 400, 
Philadelphia, PA 19106-2515.
Phoenix District Office, 3300 N. Central Avenue, Suite 690, Phoenix, AZ 
85012-2504.
Pittsburgh Area Office (Philadelphia District), 1001 Liberty Avenue, 
Suite 300, Pittsburgh, PA 15222-4187.
Raleigh Area Office (Charlotte District), 1309 Annapolis Drive, Raleigh, 
NC 27608-2129.
Richmond Area Office (Baltimore District), 3600 West Broad Street, Room 
229, Richmond, VA 23230.
San Antonio District Office, 5410 Fredericksburg Road, Suite 200, San 
Antonio, TX 78229-3555.
San Diego Area Office (Los Angeles District), 401 B Street, Suite 1550, 
San Diego, CA 92101.
San Francisco District Office, 901 Market Street, Suite 500, San 
Francisco, CA 94103.
San Jose Local Office (San Francisco District), 96 North 3rd Street, 
Suite 200, San Jose, CA 95112.
Savannah Local Office (Atlanta District), 410 Mall Boulevard, Suite G, 
Savannah, GA 31406-4821.
Seattle District Office, Federal Office Building, 909 First Avenue, 
Suite 400, Seattle, WA 98104-1061.
St. Louis District Office, Robert A. Young Building, 1222 Spruce Street, 
Room 8.100, St. Louis, MO 63103.
Tampa Area Office (Miami District), 501 East Polk Street, Room 1020, 
Tampa, FL 33602.
Washington Field Office (Baltimore District), 1400 L Street, NW, Suite 
200, Washington, DC 20005.
[40 FR 8171, Feb. 26, 1975, as amended at 45 FR 40603, June 16, 1980; 49 
FR 13024, Apr. 2, 1984; 54 FR 32061, Aug. 4, 1989; 56 FR 29578, June 28, 
1991; 63 FR 1341, Jan. 9, 1998]



Sec. 1610.5  Request for records.

    (a) A written request for inspection or copying of a record of the 
Commission may be presented in person or by mail to the Commission 
employee designated in Sec. 1610.7. Requests must be presented during 
business hours on any workday.
    (b) Each request must contain information which reasonably describes 
the records sought and, when known, should contain a name, date, subject 
matter and location for the record requested in order to permit the 
record to be promptly located.
    (c) Where a request is not considered reasonably descriptive or 
requires the production of voluminous records, or necessitates the 
utilization of a considerable number of work hours to the detriment of 
the business of the Commission, the Commission may require the person 
making the request or such person's agent to confer with a Commission 
representative in order to attempt to verify the scope of the request 
and, if possible, narrow such request.
[40 FR 8171, Feb. 26, 1975, as amended at 56 FR 29578, June 28, 1991; 63 
FR 1341, Jan. 9, 1998]



Sec. 1610.6  Records of other agencies.

    Requests for records that originated in another Agency and are in 
the custody of the Commission will be coordinated in appropriate 
circumstances with that Agency and the person submitting the request 
shall be so notified. The decision made by that Agency with respect to 
such records will be honored by the Commission.
[45 FR 40604, June 16, 1980]



Sec. 1610.7  Where to make request; form.

    (a) Requests for the following types of records shall be submitted 
to the regional attorney for the pertinent district, area or local 
office, at the district office address listed in Sec. 1610.4(c) or, in 
the case of the Washington Field

[[Page 234]]

Office, shall be submitted to the regional attorney in the Baltimore 
District Office at the address listed in Sec. 1610.4(c):
    (1) Information about current or former employees of a field office;
    (2) Existing non-confidential statistical data related to the case 
processing of a field office;
    (3) Agreements between the Commission and State or local fair 
employment agencies operating within the jurisdiction of a field office; 
or
    (4) Materials in field office investigative files related to charges 
under: Title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e et 
seq); the Equal Pay Act (29 U.S.C. 206(d)); the Age Discrimination in 
Employment Act of 1967 (29 U.S.C. 621 et seq.); or, the Americans with 
Disabilities Act of 1990 (42 U.S.C. 12101 et seq.).
    (b) A request for any record which does not fall within the ambit of 
subparagraph (a) of this section, or a request for any record the 
location of which is unknown to the person making the request, shall be 
submitted in writing to the Legal Counsel, Equal Employment Opportunity 
Commission, 1801 L Street NW., Washington DC 20507.
    (c) A request must be clearly and prominently defined as a request 
for information under the Freedom of Information Act. If submitted by 
mail, or otherwise submitted under any cover, the envelope or other 
cover must be similarly identified.
    (d) When a request is one which by nature should properly be 
directed to the Legal Counsel, or a regional attorney, such request 
shall not be deemed to have been received by the Commission until the 
time it is actually received by the appropriate official.
    (e) Any Commission official who receives a written Freedom of 
Information request shall promptly forward it to the appropriate 
official specified in paragraph (a) or (b) of this section. Any 
Commission official who receives an oral request under the Freedom of 
Information Act shall inform the other person making the request that it 
must be in writing and also inform such person of the provisions of this 
subpart.
[45 FR 40604, June 16, 1980, as amended at 47 FR 46275, Oct. 18, 1982; 
52 FR 4902, Feb. 18, 1987; 54 FR 32062, Aug. 4, 1989; 56 FR 29578, June 
28, 1991]



Sec. 1610.8  Authority to determine.

    The Legal Counsel's designee, the regional attorney, or the regional 
attorney's designee, when receiving a request pursuant to these 
regulations, shall grant or deny each such request. That decision shall 
be final, subject only to administrative review as provided in 
Sec. 1610.11 of this subpart.
[63 FR 1341, Jan. 9, 1998]



Sec. 1610.9  Responses: timing.

    (a) The Legal Counsel's designee, the regional attorney, or the 
regional attorney's designee shall either grant or deny a request for 
records within 20 working days after receipt of the request unless 
additional time is required for one of the following reasons:
    (1) It is necessary to search for and collect the requested records 
from field facilities or other establishments that are separate from the 
office processing the request;
    (2) It is necessary to search for, collect, and appropriately 
examine a voluminous amount of separate and distinct records which are 
demanded in a single request; or
    (3) If it is necessary to consult with another agency having a 
substantial interest in the determination of the request or among two or 
more components of the agency having substantial subject-matter interest 
therein.
    (b) When additional time is required for one of the reasons stated 
in paragraph (a) of this section the Legal Counsel's designee, the 
regional attorney, or the regional attorney's designee, shall 
acknowledge receipt of the request within the 20 day period and include 
a brief notation of the reason for the delay and an indication of the 
date on which it is expected that a determination as to disclosure will 
be forthcoming. If more than 10 working additional days are needed, the 
requester shall be notified and provided an opportunity to limit the 
scope of the request

[[Page 235]]

or to arrange for an alternate time frame for processing the request.
    (c)(1) Requests for records may be eligible for expedited processing 
if the requester demonstrates a compelling need. For the purposes of 
this section, compelling need means:
    (i) that the failure to obtain the records on an expedited basis 
could reasonably be expected to pose an imminent threat to the life or 
physical safety of an individual; or
    (ii) that the requester is a person primarily engaged in 
disseminating information and there is an urgency to inform the public 
concerning actual or alleged Federal government activity.
    (2) A requester who seeks expedited processing must submit a 
statement, certified to be true and correct to the best of that person's 
knowledge and belief, explaining in detail the basis for requesting 
expedited processing. A determination on the request for expedited 
processing will be made and the requester notified within 10 working 
days. The Legal Counsel or designee shall promptly respond to any appeal 
of the denial for expedited processing.
[45 FR 40604, June 16, 1980, as amended at 47 FR 46275, Oct. 18, 1982; 
52 FR 4902, Feb. 18, 1987; 56 FR 29578, 29579, June 28, 1991; 63 FR 
1341, Jan. 9, 1998]



Sec. 1610.10  Responses: form and content.

    (a) Once a requested record is identified and available, the 
requester will be notified of when and where the record will be made 
available and the cost assessed for processing the request. Records 
shall be made available in the form or format indicated by the 
requester, if the record is readily reproducible in that form or format. 
Fees for processing requests will be determined in accordance with the 
schedule set forth in Sec. 1610.15. Checks shall be made payable to the 
Treasurer of the United States.
    (b) A reply denying a written request for a record shall be in 
writing, signed by the Legal Counsel's designee, the regional attorney, 
or the regional attorney's designee, and shall include:
    (1) His or her name and title;
    (2) A reference to the specific exemption under the Freedom of 
Information Act authorizing the withholding of the record and a brief 
explanation of how the exemption applies to the record withheld, or a 
statement that, after diligent effort, the requested records have not 
been found or have not been adequately examined during the time allowed 
under Sec. 1610.9(a), and that the denial will be reconsidered as soon 
as the search or examination is complete; and
    (3) A statement that the denial may be appealed to the Legal Counsel 
within 30 days of receipt of the denial or partial denial.
    (c) When denying a request for records, the estimated volume of 
denied material shall be indicated, unless providing such estimate would 
harm an interest protected by the exemptions in 5 U.S.C. 522(b). When 
providing a reasonably segregable portion of a record, the amount of 
information deleted from the released portion, and to the extent 
technically feasible, the place in the record where such deletion was 
made shall be indicated.
    (d) If a requested record cannot be located from the information 
supplied, or is known to have been destroyed or otherwise disposed of, 
the person making the request shall be so notified.
[40 FR 8171, Feb. 26, 1975, as amended at 52 FR 4902, Feb. 18, 1987; 56 
FR 29579, June 28, 1991; 63 FR 1342, Jan. 9, 1998]



Sec. 1610.11  Appeals to the Legal Counsel from initial denials.

    (a) When the Legal Counsel's designee, the regional attorney, or the 
regional attorney's designee, has denied a request for records in whole 
or in part, the person making the request may appeal within 30 calendar 
days of its receipt. The appeal must be in writing addressed to the 
Legal Counsel or designee, Equal Employment Opportunity Commission, 1801 
L Street NW., Washington DC 20507, and clearly labeled as a Freedom of 
Information Act appeal. Any appeal of a denial in whole or part by a 
regional attorney, or the regional attorney's designee, must include a 
copy of the regional attorney's, or the regional attorney's designee's 
determination.
    (b) The Legal Counsel or designee shall act upon the appeal within 
20 working days of its receipt, and more rapidly if practicable. If the 
decision is

[[Page 236]]

in favor of the person making the request, the decision shall order 
records promptly made available to the person making the request. The 
Legal Counsel or designee may extend the 20 day period in which to 
render a decision on an appeal for that period of time which could have 
been claimed and consumed by the Legal Counsel's designee, the regional 
attorney, or the regional attorney's designee, under Sec. 1610.9 but 
which was either not claimed or consumed in making the original 
determination.
    (c) The decision on appeal shall be in writing and signed by the 
Legal Counsel or designee. A denial in whole or in part of a request on 
appeal shall set forth the exemption relied on, a brief explanation of 
how the exemption applied to the records withheld and the reasons for 
asserting it, if different from that described by the Legal Counsel's 
designee, the regional attorney, or the regional attorney's designee 
under Sec. 1610.10, and that the person making the request may, if 
dissatisfied with the decision on appeal, file a civil action in the 
district in which the person resides or has his principal place of 
business, in the district where the records reside, or in the District 
of Columbia.
    (d) No personal appearance, oral argument or hearing will ordinarily 
be permitted in connection with an appeal to the Legal Counsel or 
designee.
    (e) On appeal, the Legal Counsel or designee may reduce any fees 
previously assessed.
    (f)In the event that the Commission terminates its proceedings on a 
charge after the regional attorney or the regional attorney's designee 
denies a request for the charge file but during consideration of the 
requester's appeal from that denial, the request may be remanded for 
redetermination. The requester retains a right to appeal to the Legal 
Counsel from the decision on remand.
[49 FR 48040, Dec. 10, 1984, as amended at 52 FR 4902, Feb. 18, 1987; 54 
FR 32062, Aug. 4, 1989; 56 FR 29579, June 28, 1991; 63 FR 1342, Jan. 9, 
1998]



Sec. 1610.13  Maintenance of files.

    (a) The Legal Counsel or designee, and regional attorneys, shall 
maintain files containing all material required to be retained by or 
furnished to them under this subpart. The material shall be filed by 
individual request indexed according to the exemptions asserted, and, to 
the extent feasible, indexed according to the type of records requested.
    (b) The Legal Counsel or designee, shall also maintain a file open 
to the public, which shall contain copies of all grants or denials of 
appeals by the Commission. The material shall be indexed as stated in 
paragraph (a) of this section.
[45 FR 40605, June 16, 1980, as amended at 47 FR 46275, Oct. 18, 1982; 
52 FR 4092, Feb. 18, 1987; 56 FR 29578, June 28, 1991]



Sec. 1610.14  Waiver of user charges.

    (a) Except as provided in paragraph (b) of this section the Legal 
Counsel or designee and regional attorneys or designees shall assess 
fees where applicable in accordance with Sec. 1610.15 for search, review 
and duplication of records requested. They shall also have authority to 
furnish documents without any charge or at a reduced charge if 
disclosure of the information is in the public interest because it is 
likely to contribute significantly to public understanding of the 
operations or activities of the government and is not primarily in the 
commercial interest of the requester.
    (b) District directors, the Washington Field Office Director, area 
directors, and the librarian are hereby authorized to collect fees where 
applicable in accordance with Sec. 1610.15 for duplication of records 
which are to be made available for public inspection and copying in the 
district or area office, or in the headquarters library in accordance 
with Sec. 1610.4(b). District directors, the Washington Field Office 
Director, area directors, and the librarian are hereby authorized to 
duplicate such records without charge, or at a reduced charge in 
accordance with the criteria of paragraph (a) of this section.
[52 FR 13830, Apr. 27, 1987, as amended at 54 FR 32062, Aug. 4, 1989; 56 
FR 29578, June 28, 1991; 63 FR 1342, Jan. 9, 1998]

[[Page 237]]



Sec. 1610.15  Schedule of fees and method of payment for services rendered.

    (a) Fees shall be assessed in accordance with the fee schedule set 
forth in paragraph (c) of this section as follows:
    (1) When records are requested for commercial use, the Commission 
shall charge the full amount of its direct costs for document search, 
review and duplication. The Commission shall not charge for review at 
the administrative appeal level of an exemption already applied.
    (2) When records are not sought for commercial use and the request 
is made by an educational or noncommercial scientific institution, or a 
representative of the news media, the Commission shall charge the direct 
costs of document duplication after the first 100 pages. The first 100 
pages of duplication under paragraph (a)(2) shall be provided without 
charge.
    (3) For all other record requests not falling under paragraph (a) 
(1) or (2) of this section, the Commission shall charge the direct costs 
for document search time after the first two hours and the direct costs 
for document duplication after the first 100 pages. The first two hours 
of search time and the first 100 pages of duplication under paragraph 
(a)(3) shall be provided without charge.
    (b) When the Commission reasonably believes that a requester or 
group of requesters is attempting to break a request down into a series 
of requests for the purpose of evading the assessment of fees, the 
Commission shall aggregate any such requests and charge accordingly.
    (c) Except as otherwise provided, the following specific fees for 
direct costs shall be applicable with respect to services rendered to 
members of the public under this subpart:
    (1) For actual search and review time by clerical personnel--at the 
rate of $7.00 per hour.
    (2) For actual search and review time by professional personnel--at 
the rate of $17.00 per hour.
    (3) For copies made by photocopying machine--$.15 per page (maximum 
of 10 copies).
    (4) For attestation of such record as a true copy--$.75 per 
document.
    (5) For certification of each record as a true copy, under the seal 
of the agency--$1.00.
    (6) For each signed statement of negative result of search for 
record--$1.00.
    (7) All other direct costs of search, review, duplication or 
delivery (other than normal mail), including computer search time, runs 
and operator salary shall be charged to the requester as appropriate in 
the same amount as incurred by the agency.
    (d) The Commission shall not charge a fee if the costs of routine 
collection and processing of the fee are likely to equal or exceed the 
amount of the fee.
    (e) The Commission shall charge interest at the rate prescribed in 
31 U.S.C. 3717, accruing from the date of billing, to those requesters 
who fail to pay fees charged beginning on the 31st day following the day 
on which the billing was sent.
    (f) While the fees charged for search and copying will in no event 
exceed those specified in paragraph (c) of this section, the Commission 
reserves the right to limit the number of copies that will be provided 
of any document or to require that special arrangements for copying be 
made in the case of records or requests presenting unusual problems of 
reproduction or handling.
[52 FR 13830, Apr. 27, 1987, as amended at 63 FR 1342, Jan. 9, 1998]



Sec. 1610.16  Payment of fees.

    (a) Unless a person making a request under the Freedom of 
Information Act states that he or she will bear all assessed fees levied 
by the Commission in searching for and, where applicable, reproducing 
requested data, said person will be held liable for assessed fees not to 
exceed $25.00. A request which the Commission expects to exceed $25.00 
and which does not state acceptance of responsibility for all assessed 
fees will not be deemed to have been received until the person making 
the request is promptly advised of the anticipated fees and agrees to 
bear them.
    (b) A search fee will be assessable notwithstanding that no records 
responsive to the request or that no records not exempt from disclosure 
are found.

[[Page 238]]

    (c) The Commission shall require payment in full prior to the 
commencement or continuation of work on a request if:
    (1) It estimates or determines that the allowable charges will 
exceed $250, unless the requester has a history of prompt payment of 
FOIA fees, in which case the Commission may obtain satisfactory 
assurance of prompt payment; or
    (2) The requester has previously failed to pay fees within 30 days 
of the date of billing.
[40 FR 8171, Feb. 26, 1975, as amended at 52 FR 13830, Apr. 27, 1987]



Sec. 1610.17  Exemptions.

    (a) 5 U.S.C. 552 exempts from all of its publication and disclosure 
requirements nine categories of records which are described in 552(b). 
These categories include such matters as national defense and foreign 
policy information, investigatory files, internal procedures and 
communications, materials exempted from disclosure by other statutes, 
information given in confidence, and matters involving personal privacy.
    (b) Section 706(b) of title VII provides that the Commission shall 
not make public charges which have been filed. It also provides that 
(subsequent to the filing of a charge, an investigation, and a finding 
that there is reasonable cause to believe that the charge is true) 
nothing said or done during and as a part of the Commission's endeavors 
to eliminate any alleged unlawful employment practice by informal 
methods of conference, conciliation, and persuasion may be made public 
by the Commission without the written consent of the parties concerned; 
nor may it be used as evidence in a subsequent proceeding. Any officer 
or employee of the Commission who shall make public in any manner 
whatever any information in violation of section 706(b) shall be deemed 
guilty of a misdemeanor and upon conviction thereof shall be fined not 
more than $1,000 or imprisoned not more than 1 year.
    (c) Section 709 of title VII authorizes the Commission to conduct 
investigations of charges filed under section 706, engage in cooperative 
efforts with State and local agencies charged with the administration of 
State or local fair employment practices laws, and issue regulations 
concerning reports and record-keeping. Section (e) of section 709 
provides that it shall be unlawful for any officer or employee of the 
Commission to make public in any manner whatever any information 
obtained by the Commission pursuant to its authority under section 709 
prior to the institution of any proceeding under the act involving such 
information. Any officer or employee of the Commission who shall make 
public in any manner whatever any information in violation of section 
709(e) shall be guilty of a misdemeanor and upon conviction thereof 
shall be fined not more than $1,000 or imprisoned not more than 1 year.
    (d) Special disclosure rules apply to the case files for charging 
parties, aggrieved persons on whose behalf a charge has been filed, and 
entities against whom charges have been filed. The special disclosure 
rules are available in the public reading areas of the Commission. Under 
sections 706 and 709, case files involved in the administrative process 
of the Commission are not available to the public.
    (e) Each executed statistical reporting form required under part 
1602 of this chapter, such as Employer Information Report EEO-1, etc., 
relating to a particular employer is exempt from disclosure to the 
public prior to the institution of a proceeding under title VII 
involving information from such form.
    (f) Section 107 of the Americans with Disabilities Act of 1990 (42 
U.S.C. 12117) explicitly adopts the powers, remedies, and procedures set 
forth in sections 706 and 709 of title VII. Accordingly, the 
prohibitions on disclosure contained in sections 706 and 709 of title 
VII as outlined in paragraphs (b), (c), (d), and (e) of this section, 
apply with equal force to requests for information related to charges 
and executed statistical reporting forms filed with the Commission under 
the Americans with Disabilities Act.
    (g) Requests for information relating to open case files covering 
alleged violations of the Equal Pay Act (29 U.S.C. 206(b)) or the Age 
Discrimination in Employment Act of 1967 (29 U.S.C. 621

[[Page 239]]

et seq. ) will ordinarily be denied under the seventh exemption of the 
Freedom of Information Act as investigatory records compiled for law 
enforcement purposes.
    (h) The medical, financial, and personnel files of employees of the 
Commission are exempt from disclosure to the public.
[40 FR 8171, Feb. 26, 1975, as amended at 45 FR 40605, June 16, 1980; 56 
FR 29579, June 28, 1991]



Sec. 1610.18  Information to be disclosed.

    The Commission will provide the following information to the public:
    (a) The Commission will make available for inspection and copying 
certain tabulations of aggregate industry, area, and other statistics 
derived from the Commission's reporting programs authorized by section 
709(c) of title VII, provide that such tabulations: Were previously 
compiled by the Commission and are available in documentary form; 
comprise an aggregation of data from not less than three responding 
entities; and, do not reveal the identity of an individual or dominant 
entity in a particular industry or area;
    (b) All blank forms used by the Commission;
    (c) Subject to the restrictions and procedures set forth in 
Sec. 1610.19, all signed contracts, final bids on all signed contracts, 
and agreements between the Commission and State or local agencies 
charged with the administration of State or local fair employment 
practices laws;
    (d) All final reports that do not contain statutorily confidential 
material in a recognizable form;
    (e) All agency correspondence to members of the public, Members of 
Congress, or other persons not government employees or special 
government employees, except those containing information that would 
produce an invasion of privacy if made public;
    (f) All administrative staff manuals and instructions to staff that 
affect members of the public unless the materials are promptly published 
and copies offered for sale; and
    (g) All final votes of each Commissioner, for every Commission 
meeting, except for votes pertaining to filing suit against respondents 
until such litigation is commenced.
[56 FR 29579, June 28, 1991, as amended at 63 FR 1342, Jan. 9, 1998]



Sec. 1610.19  Predisclosure notification procedures for confidential commercial information.

    (a) In general. Commercial information provided to the Commission 
shall not be disclosed except in accordance with this section. For the 
purposes of this section, the following definitions apply:
    (1) Confidential commercial information refers to records provided 
by a submitter containing information that is arguably exempt from 
disclosure under 5 U.S.C. 552(b)(4), because disclosure could reasonably 
be expected to cause substantial competitive harm.
    (2) Submitter refers to any person or entity who provides 
confidential commercial information to the government. The term 
includes, but is not limited to, corporations, State governments, and 
foreign governments.
    (b) Notice to submitter. Except as provided in paragraph (g) of this 
section, the Commission shall provide a submitter with explicit notice 
of a FOIA request for confidential commercial records whenever:
    (1) The Commission reasonably believes that disclosure could cause 
substantial competitive harm to the submitter;
    (2) The information was submitted prior to January 1, 1988, the 
records are less than 10 years old, and the submitter designated them as 
commercially sensitive; or
    (3) The information was submitted after January 1, 1988, and the 
submitter previously, in good faith, designated the records as 
confidential commercial information. Such designations shall:
    (i) Whenever possible, include a statement or certification from an 
officer or authorized representative of the company that the information 
is in fact confidential commercial information and has not been 
disclosed to the public; and
    (ii) Expire ten years from the date of submission unless otherwise 
justified.
    (c) Notice to requester. When notice is given to a submitter under 
this section, the requester shall be notified

[[Page 240]]

that notice and opportunity to comment are being provided to the 
submitter.
    (d) Opportunity of submitter to object. When notification is made 
pursuant to paragraph (b) of this section, the Commission shall afford 
the submitter a minimum of five working days to provide it with a 
detailed statement of objections to disclosure. Such statement shall 
provide precise identification of the exempted information, and the 
basis for claiming it as a trade secret or as confidential information 
pursuant to 5 U.S.C. 552(b)(4), the disclosure of which is likely to 
cause substantial harm to the submitter's competitive position.
    (e) Notice of intent to disclose. (1) The Commission shall consider 
carefully the objections of a submitter provided pursuant to paragraph 
(d) of this section. When the Commission decides to disclose information 
despite such objections, it shall provide the submitter with a written 
statement briefly explaining why the objections were not sustained. Such 
statement shall be provided a minimum of three working days prior to the 
specified disclosure date, in order that the submitter may seek a court 
injunction to prevent release of the records if it so chooses.
    (2) When a submitter is notified pursuant to paragraph (e)(1) of 
this section, notice of the Commission's final disclosure determination 
and proposed release date shall also be provided to the requester.
    (f) Notice of lawsuit. Whenever a requester brings suit seeking to 
compel disclosure of confidential commercial information, the Commission 
shall promptly notify the submitter of the legal action.
    (g) Exceptions to the notice requirement. The notice requirements of 
this section shall not apply if:
    (1) The Commission determines that the information shall not be 
disclosed;
    (2) The information is published or otherwise officially available 
to the public;
    (3) Disclosure of the information is required by law (other than 5 
U.S.C. 552).
[56 FR 29579, June 28, 1991]



Sec. 1610.20  Deletion of exempted matters.

    Where requested records contain matters which are exempted under 5 
U.S.C. 552(b) but which matters are reasonably segregable from the 
remainder of the records, they shall be disclosed by the Commission with 
deletions. To each such record the Commission shall attach a written 
justification for making deletions. A single such justification shall 
suffice for deletions made in a group of similar or related records.
[40 FR 8171, Feb. 26, 1975. Redesignated at 56 FR 29579, June 28, 1991]



Sec. 1610.21  Annual report.

    The Legal Counsel shall, on or before February 1, 1998, and annually 
thereafter, submit a Freedom of Information Act report covering the 
preceding fiscal year to the Attorney General of the United States. The 
report shall include those matters required by 5 U.S.C. 552(e), and 
shall be made available electronically.
[63 FR 1342, Jan. 9, 1998]



 Subpart B--Production in Response to Subpenas or Demands of Courts or 
                            Other Authorities



Sec. 1610.30  Purpose and scope.

    This subpart contains the regulations of the Commission concerning 
procedures to be followed when a subpena, order, or other demand 
(hereinafter in this subpart referred to as a ``demand'') of a court or 
other authority is issued for the production or disclosure of (a) any 
material contained in the files of the Commission; (b) any information 
relating to material contained in the files of the Commission; or (c) 
any information or material acquired by any person while such person was 
an employee of the Commission as a part of the performance of his 
official duties or because of his official status.
[32 FR 16261, Nov. 29, 1967]



Sec. 1610.32  Production prohibited unless approved by the Legal Counsel.

    No employee or former employee of the Commission shall, in response 
to a

[[Page 241]]

demand of a court or other authority, produce any material contained in 
the files of the Commission or disclose any information or produce any 
material acquired as part of the performance of his official duties or 
because of his official status without the prior approval of the Legal 
Counsel.
[32 FR 16261, Nov. 29, 1967, as amended at 47 FR 46275, Oct. 18, 1982]



Sec. 1610.34  Procedure in the event of a demand for production or disclosure.

    (a) Whenever a demand is made upon an employee or former employee of 
the Commission for the production of material or the disclosure of 
information described in Sec. 1610.30, he shall immediately notify the 
Legal Counsel. If possible, the Legal Counsel shall be notified before 
the employee or former employee concerned replies to or appears before 
the court or other authority.
    (b) If response to the demand is required before instructions from 
the Legal Counsel are received, an attorney designated for that purpose 
by the Commission shall appear with the employee or former employee upon 
whom the demand has been made, and shall furnish the court or other 
authority with a copy of the regulations contained in this part and 
inform the court or other authority that the demand has been or is 
being, as the case may be, referred for prompt consideration by the 
Legal Counsel. The court or other authority shall be requested 
respectfully to stay the demand pending receipt of the requested 
instructions from the Legal Counsel.
[32 FR 16261, Nov. 29, 1967, as amended at 47 FR 46275, Oct. 18, 1982; 
63 FR 1342, Jan. 9, 1998]



Sec. 1610.36  Procedure in the event of an adverse ruling.

    If the court or other authority declines to stay the effect of the 
demand in response to a request made in accordance with Sec. 1610.34(b) 
pending receipt of instructions from the Legal Counsel, or if the court 
or other authority rules that the demand must be complied with 
irrespective of the instructions from the Legal Counsel not to produce 
the material or disclose the information sought, the employee or former 
employee upon whom the demand has been made shall respectfully decline 
to comply with the demand (United States ex rel. Touhy v. Ragen, 340 
U.S. 462 (1951)).
[32 FR 16261, Nov. 29, 1967, as amended at 47 FR 46275, Oct. 18, 1982]



PART 1611--PRIVACY ACT REGULATIONS--Table of Contents




Sec.
1611.1  Purpose and scope.
1611.2  Definitions.
1611.3  Procedures for requests pertaining to individual records in a 
          record system.
1611.4  Times, places, and requirements for identification of 
          individuals making requests.
1611.5  Disclosure of requested information to individuals.
1611.6  Special procedures: Medical records.
1611.7  Request for correction or amendment to record.
1611.8  Agency review of request for correction or amendment to record.
1611.9  Appeal of initial adverse agency determination on correction or 
          amendment.
1611.10  Disclosure of record to person other than the individual to 
          whom it pertains.
1611.11  Fees.
1611.12  Penalties.
1611.13  Specific exemptions.

    Authority: 5 U.S.C. 552a.

    Source: 42 FR 7949, Feb. 8, 1977, unless otherwise noted.



Sec. 1611.1  Purpose and scope.

    This part contains the regulations of the Equal Employment 
Opportunity Commission (the Commission) implementing the Privacy Act of 
1974, 5 U.S.C. 552a. It sets forth the basic responsibilities of the 
Commission under the Privacy Act (the Act) and offers guidance to 
members of the public who wish to exercise any of the rights established 
by the Act with regard to records maintained by the Commission. All 
records contained in system EEOC/GOVT-1, including those maintained by 
other agencies, are subject to the Commission's Privacy Act regulations. 
Requests for access to, an accounting of disclosures for, or amendment 
of records in EEOC/GOVT-1 must be processed by agency personnel in 
accordance with this part. Commission

[[Page 242]]

records that are contained in a government-wide system of records 
established by the U.S. Office of Personnel Management (OPM), the 
General Services Administration (GSA), the Merit Systems Protection 
Board (MSPB), the Office of Government Ethics (OGE) or the Department of 
Labor (DOL) for which those agencies have published systems notices are 
subject to the publishing agency's Privacy Act regulations. Where the 
government-wide systems notices permit access to these records through 
the employing agency, an individual should submit requests for access 
to, for amendment of or for an accounting of disclosures to the 
Commission offices as indicated in Sec. 1611.3(b).
[56 FR 29580, June 28, 1991]



Sec. 1611.2  Definitions.

    For purposes of this part, the terms individual, maintain, record, 
and system of records shall have the meanings set forth in 5 U.S.C. 
552a.



Sec. 1611.3  Procedures for requests pertaining to individual records in a record system.

    (a) Any person who wishes to be notified if a system of records 
maintained by the Commission contains any record pertaining to him or 
her, or to request access to such record or to request an accounting of 
disclosures made of such record, shall submit a written request, either 
in person or by mail, in accordance with the instructions set forth in 
the system notice published in the Federal Register. The request shall 
include:
    (1) The name of the individual making the request;
    (2) The name of the system of records (as set forth in the system 
notice to which the request relates);
    (3) Any other information specified in the system notice; and
    (4) When the request is for access to records, a statement 
indicating whether the requester desires to make a personal inspection 
of the records or be supplied with copies by mail.
    (b) Requests pertaining to records contained in a system of records 
established by the Commission and for which the Commission has published 
a system notice should be submitted to the person or office indicated in 
the system notice. Requests pertaining to Commission records contained 
in the government-wide systems of records listed below should be 
submitted as follows:
    (1) For systems OPM/GOVT-1 (General Personnel Records), OPM/GOVT-2 
(Employee Performance File System Records), OPM/GOVT-3 (Records of 
Adverse Actions and Actions Based on Unacceptable Performance), OPM/
GOVT-5 (Recruiting, Examining and Placement Records), OPM/GOVT-6 
(Personnel Research and Test Validation Records), OPM/GOVT-9 (Files on 
Position Classification Appeals, Job Grading Appeals and Retained Grade 
or Pay Appeals), OPM/GOVT-10 (Employee Medical File System Records) and 
DOL/ESA-13 (Office of Workers' Compensation Programs, Federal Employees' 
Compensation File), to the Director of Personnel Management Services, 
EEOC, 1801 L Street, NW., Washington, DC 20507;
    (2) For systems OGE/GOVT-1 (Executive Branch Public Financial 
Disclosure Reports and Other Ethics Program Records), OGE/GOVT-2 
(Confidential Statements of Employment and Financial Interests) and 
MSPB/GOVT-1 (Appeal and Case Records), to the Legal Counsel, EEOC, 1801 
L Street, NW., Washington, DC 20507;
    (3) For system OPM/GOVT-7 (Applicant Race, Sex, National Origin, and 
Disability Status Records), to the Director of the Office of Equal 
Employment Opportunity, EEOC, 1801 L Street, NW., Washington, DC 20507;
    (4) For systems GSA/GOVT-3 (Travel Charge Card Program) and GSA/
GOVT-4 (Contracted Travel Services Program) to the Director of Financial 
and Resource Management Services, EEOC, 1801 L Street, NW., Washington, 
DC 20507.
    (c) Any person whose request for access under paragraph (a) of this 
section is denied, may appeal that denial in accordance with 
Sec. 1611.5(c).
[42 FR 7949, Feb. 8, 1977, as amended at 56 FR 29581, June 28, 1991]

[[Page 243]]



Sec. 1611.4  Times, places, and requirements for identification of individuals making requests.

    (a) If a person submitting a request for access under Sec. 1611.3 
has asked that the Commission authorize a personal inspection of records 
pertaining to that person, and the appropriate Commission official has 
granted that request the requester shall present himself or herself at 
the time and place specified in the Commission's response or arrange 
another, mutually convenient time with the appropriate Commission 
official.
    (b) Prior to inspection of the records, the requester shall present 
sufficient personal identification (e.g., driver's license, employee 
identification card, social security card, credit cards). If the 
requester is unable to provide such identification, the requester shall 
complete and sign in the presence of a Commission official a signed 
statement asserting his or her identity and stipulating that he or she 
understands that knowingly or willfully seeking or obtaining access to 
records about another individual under false pretenses is a misdemeanor 
punishable by fine up to $5,000.
    (c) Any person who has requested access under Sec. 1611.3 to records 
through personal inspection, and who wishes to be accompanied by another 
person or persons during this inspection, shall submit a written 
statement authorizing disclosure of the record in such person's or 
person's presence.
    (d) If an individual submitting a request by mail under Sec. 1611.3 
wishes to have copies furnished by mail, he or she must include with the 
request a signed and notarized statement asserting his or her identity 
and stipulating that he or she understands that knowlingly or willfully 
seeking or obtaining access to records about another individual under 
false pretenses is a misdemeanor punishable by fine up to $5,000.
    (e) A request filed by the parent of any minor or the legal guardian 
of any incompetent person shall: state the relationship of the requester 
to the individual to whom the record pertains; present sufficient 
identification; and, if not evident from information already available 
to the Commission, present appropriate proof of the relationship or 
guardianship.
    (f) A person making a request pursuant to a power of attorney must 
possess a specific power of attorney to make that request.
    (g) No verification of identity will be required where the records 
sought are publicly available under the Freedom of Information Act.



Sec. 1611.5  Disclosure of requested information to individuals.

    (a) Upon receipt of request for notification as to whether the 
Commission maintains a record about an individual and/or request for 
access to such record:
    (1) The appropriate Commission official shall acknowledge such 
request in writing within 10 working days of receipt of the request. 
Wherever practicable, the acknowledgement should contain the 
notification and/or determination required in paragraph (a) (2) of this 
section.
    (2) The appropriate Commission official shall provide, within 30 
working days of receipt of the request, written notification to the 
requester as to the existence of the records and/or a determination as 
to whether or not access will be granted. In some cases, such as where 
records have to be recalled from the Federal Records Center, 
notification and/or a determination of access may be delayed. In the 
event of such a delay, the Commission official shall inform the 
requester of this fact, the reasons for the delay, and an estimate of 
the date on which notification and/or a determination will be 
forthcoming.
    (3) If access to a record is granted, the determination shall 
indicate when and where the record will be available for personal 
inspection. If a copy of the record has been requested, the Commission 
official shall mail that copy or retain it at the Commission to present 
to the individual, upon receipt of a check or money order in an amount 
computed pursuant to Sec. 1611.11.
    (4) When access to a record is to be granted, the appropriate 
Commission official will normally provide access within 30 working days 
of receipt of the request unless, for good cause shown, he or she is 
unable to do so, in which case the requester shall be informed

[[Page 244]]

within 30 working days of receipt of the request as to those reasons and 
when it is anticipated that access will be granted.
    (5) The Commission shall not deny any request under Sec. 1611.3 
concerning the existence of records about the requester in any system of 
records it maintains, or any request for access to such records, unless 
that system is exempted from the requirements of 5 U.S.C. 552a in 
Sec. 1611.13.
    (6) If the Commission receives a request pursuant to Sec. 1611.3 for 
access to records in a system of records it maintains which is so 
exempt, the appropriate Commission official shall deny the request.
    (b) Upon request, the appropriate Commission official shall make 
available an accounting of disclosures pursuant to 5 U.S.C. 552a(c)(3).
    (c) If a request for access to records is denied pursuant to 
paragraph (a) or (b) of this section, the determination shall specify 
the reasons for the denial and advise the individual how to appeal the 
denial. If the request pertains to a system of records for which the 
Commission has published a system notice, any appeal must be submitted 
in writing to the Legal Counsel, EEOC, 1801 L Street, NW., Washington, 
DC 20507. If the request pertains to a government-wide system of records 
any appeal should be in writing, identified as a Privacy Act appeal and 
submitted as follows:
    (1) For systems established by OPM and for which OPM has published a 
system notice, to the Assistant Director for Workforce Information, 
Personnel Systems and Oversight Group, OPM, 1900 E Street, NW., 
Washington, DC 20415. The OPM Privacy Act regulations, 5 CFR 297.207, 
shall govern such appeals.
    (2) For systems established by OGE and for which OGE has published a 
system notice, to the Privacy Act Officer, Office of Government Ethics, 
1201 New York Avenue, NW., Suite 500, Washington, DC 20005-3917. The OGE 
Privacy Act regulations, 5 CFR part 2606, shall govern such appeals.
    (3) For the system established by MSPB and for which MSPB has 
published a system notice, to the Deputy Executive Director for 
Management, U.S. Merit Systems Protection Board, 1120 Vermont Avenue, 
NW., Washington, DC 20419. The MSPB Privacy Act regulations, 5 CFR part 
1205, shall govern such appeals.
    (4) For systems established by GSA and for which GSA has published a 
system notice, to GSA Privacy Act Officer, General Services 
Administration (ATRAI), Washington, DC 20405. The GSA Privacy Act 
regulations, 41 CFR 105-64.301-5, shall govern such appeals.
    (5) For the system established by DOL and for which DOL has 
published a system notice, to the Solicitor of Labor, Department of 
Labor, 200 Constitution Avenue, NW., Washington, DC 20210. The DOL 
Privacy Act regulations, 29 CFR 70a.9, shall govern such appeals.
    (d) In the event that access to a record is denied on appeal by the 
Legal Counsel or the Legal Counsel's designee, the requestor shall be 
advised of his or her right to bring a civil action in Federal district 
court for review of the denial in accordance with 5 U.S.C. 552a(g).
    (e) Nothing in 5 U.S.C. 552a or this part allows an individual 
access to any information compiled in reasonable anticipation of a civil 
action or proceeding.
[42 FR 7949, Feb. 8, 1977, as amended at 56 FR 29581, June 28, 1991]



Sec. 1611.6  Special procedures: Medical records.

    In the event the Commission receives a request pursuant to 
Sec. 1611.3 for access to medical records (including psychological 
records) whose disclosure of which the appropriate Commission official 
determines could be harmful to the individual to whom they relate, he or 
she may refuse to disclose the records directly to the requester but 
shall transmit them to a physician designated by that individual.



Sec. 1611.7  Request for correction or amendment to record.

    (a) Any person who wishes to request correction or amendment of any 
record pertaining to him or her which is contained in a system of 
records maintained by the Commission, shall submit that request in 
writing in accordance with the instructions set forth in

[[Page 245]]

the system notice for that system of records. If the request is 
submitted by mail, the envelope should be clearly labeled ``Personal 
Information Amendment.'' The request shall include:
    (1) The name of the individual making the request;
    (2) The name of the system of records as set forth in the system 
notice to which the request relates;
    (3) A description of the nature (e.g., modification, addition or 
deletion) and substance of the correction or amendment requested; and
    (4) Any other information specified in the system notice.
    (b) Any person submitting a request pursuant to paragraph (a) of 
this section shall include sufficient information in support of that 
request to allow the Commission to apply the standards set forth in 5 
U.S.C. 552a (e).
    (c) All requests to amend pertaining to personnel records described 
in Sec. 1611.3(b) shall conform to the requirements of paragraphs (a) 
and (b) of this section and may be directed to the appropriate officials 
as indicated in Sec. 1611.3(b). Such requests may also be directed to 
the system manager specified in the OPM's systems notices.
    (d) Any person whose request under paragraph (a) of this section is 
denied may appeal that denial in accordance with Sec. 1611.9(a).
[42 FR 7949, Feb. 8, 1977, as amended at 56 FR 29581, June 28, 1991]



Sec. 1611.8  Agency review of request for correction or amendment to record.

    (a) When the Commission receives a request for amendment or 
correction under Sec. 1611.7(a), the appropriate Commission official 
shall acknowledge that request in writing within 10 working days of 
receipt. He or she shall promptly either:
    (1) Determine to grant all or any portion of a request for 
correction or amendment; and:
    (i) Advise the individual of that determination;
    (ii) Make the requested correction or amendment; and
    (iii) Inform any person or agency outside the Commission to whom the 
record has been disclosed, and where an accounting of that disclosure is 
maintained in accordance with 5 U.S.C. 552a(c), of the occurrence and 
substance of the correction or amendments, or;
    (2) Inform the requester of the refusal to amend the record in 
accordance with the request; the reason for the refusal; and the 
procedures whereby the requester can appeal the refusal to the Legal 
Counsel of the Commission.
    (b) If the Commission official informs the requester of the 
determination within the 10-day deadline, a separate acknowledgement is 
not required.
    (c) In conducting the review of a request for correction or 
amendment, the Commission official shall be guided by the requirements 
of 5 U.S.C. 552a(e).
    (d) In the event that the Commission receives a notice of correction 
or amendment from another agency that pertains to records maintained by 
the Commission, the Commission shall make the appropriate correction or 
amendment to its records and comply with paragraph (a)(1)(iii) of this 
section.
    (e) Requests for amendment or correction of records maintained in 
the government-wide systems of records listed in Sec. 1611.5(c) shall be 
governed by the appropriate agency's regulations cited in that 
paragraph. Requests for amendment or correction of records maintained by 
other agencies in system EEOC/GOVT-1 shall be governed by the 
Commission's regulations in this part.
[42 FR 7949, Feb. 8, 1977, as amended at 56 FR 29581, June 28, 1991]



Sec. 1611.9  Appeal of initial adverse agency determination on correction or amendment.

    (a) If a request for correction or amendment of a record in a system 
of records established by EEOC is denied, the requester may appeal the 
determination in writing to the Legal Counsel, EEOC, 1801 L Street, NW., 
Washington, DC 20507. If the request pertains to a record that is 
contained in the government-wide systems of records listed in 
Sec. 1611.5(c), an appeal must be made in accordance with the 
appropriate agency's regulations cited in that paragraph.
    (b) The Legal Counsel or the Legal Counsel's designee shall make a 
final determination with regard to an appeal

[[Page 246]]

submitted under paragraph (a) of this section not later than 30 working 
days from the date on which the individual requests a review, unless for 
good cause shown, this 30-day period is extended and the requester is 
notified of the reasons for the extension and of the estimated date on 
which a final determination will be made. Such extensions will be used 
only in exceptional circumstances and will not normally exceed 30 
working days.
    (c) In conducting the review of an appeal submitted under paragraph 
(a) of this section, the Legal Counsel or the Legal Counsel's designee 
shall be guided by the requirements of 5 U.S.C. 552a(e).
    (d) If the Legal Counsel or the Legal Counsel's designee determines 
to grant all or any portion of a request on an appeal submitted under 
paragraph (a) of this section, he or she shall so inform the requester, 
and the appropriate Commission official shall comply with the procedures 
set forth in Sec. 1611.8(a)(1)(ii) and (iii).
    (e) If the Legal Counsel or the Legal Counsel's designee determines 
in accordance with paragraphs (b) and (c) of this section not to grant 
all or any portion of a request on an appeal submitted under paragraph 
(a) of this section, he or she shall inform the requester:
    (1) Of this determination and the reasons for it;
    (2) Of the requester's right to file a concise statement of reasons 
for disagreement with the determination of the Legal Counsel or the 
Legal Counsel's designee;
    (3) That such statements of disagreement will be made available to 
anyone to whom the record is subsequently disclosed, together with (if 
the Legal Counsel or Legal Counsel's designee deems it appropriate) a 
brief statement summarizing the Legal Counsel or Legal Counsel's 
designee's reasons for refusing to amend the record;
    (4) That prior recipients of the disputed record will be provided 
with a copy of the statement of disagreement together with (if the Legal 
Counsel or Legal Counsel's designee deems it appropriate) a brief 
statement of the Legal Counsel or Legal Counsel's designee's reasons for 
refusing to amend the record, to the extent that an accounting of 
disclosure is maintained under 5 U.S.C. 552a(c); and
    (5) Of the requester's right to file a civil action in Federal 
district court to seek a review of the determination of the Legal 
Counsel or the Legal Counsel's designee in accordance with 5 U.S.C. 
552a(g).
    (f) The Legal Counsel or the Legal Counsel's designee shall ensure 
that any statements of disagreement submitted by a requestor are made 
available or distributed in accordance with paragraphs (e) (3) and (4) 
of this section.
[56 FR 29582, June 28, 1991]



Sec. 1611.10  Disclosure of record to person other than the individual to whom it pertains.

    The Commission shall not disclose any record which is contained in a 
system of records it maintains, by any means of communication to any 
person or to another agency, except pursuant to a written request by, or 
with the prior written consent of the individual to whom the record 
pertains, unless the disclosure is authorized by one or more provisions 
of 5 U.S.C. 552a(b).



Sec. 1611.11  Fees.

    (a) No fee shall be charged for searches necessary to locate 
records. No charge shall be made if the total fees authorized are less 
than $1.00. Fees shall be charged for services rendered under this part 
as follows:
    (1) Photocopies (per page), $.15.
    (2) Attestation of each record as a true copy, $.75.
    (3) Certification of each record as a true copy under the seal of 
the Commission, $1.00.
    (b) All required fees shall be paid in full prior to issuance of 
requested copies of records. Fees are payable to ``Treasurer of the 
United States.''
[42 FR 7949, Feb. 8, 1977, as amended at 56 FR 29582, June 28, 1991]



Sec. 1611.12  Penalties.

    The criminal penalties which have been established for violations of 
the Privacy Act of 1974 are set forth in 5 U.S.C. 552a(i). Penalties are 
applicable to any officer or employee of the Commission; to contractors 
and employees

[[Page 247]]

of such contractors who enter into contracts with the Commission on or 
after September 27, 1975, and who are considered to be employees of the 
Commission within the meaning of 5 U.S.C. 552a(m); and to any person who 
knowingly and willfully requests or obtains any record concerning an 
individual from the Commission under false pretenses.



Sec. 1611.13  Specific exemptions.

    Pursuant to subsection (k)(2) of the Act, 5 U.S.C. 552a(k)(2), 
systems EEOC-1 (Age and Equal Pay Act Discrimination Case Files), EEOC-3 
(title VII and Americans With Disabilities Act Discrimination Case 
Files) and EEOC/GOVT-1 (Equal Employment Opportunity Complaint Records 
and Appeal Records) are exempt from subsections (c)(3), (d), (e)(1), 
(e)(4)(G), (e)(4)(H), (e)(4)(I) and (f) of the Act. The Commission has 
determined to exempt these systems from the above named provisions of 
the Privacy Act for the following reasons:
    (a) The files in these systems contain information obtained by the 
Commission and other Federal agencies in the course of investigations of 
charges and complaints that violations of title VII of the Civil Rights 
Act, the Age Discrimination in Employment Act, the Equal Pay Act, the 
Americans With Disabilities Act and the Rehabilitation Act have 
occurred. In some instances, agencies obtain information regarding 
unlawful employment practices other than those complained of by the 
individual who is the subject of the file. It would impede the law 
enforcement activities of the Commission and other agencies for these 
provisions of the Act to apply to such records.
    (b) The subject individuals of the files in these systems know that 
the Commission or their employing agencies are maintaining a file on 
their charge or complaint, and the general nature of the information 
contained in it.
    (c) Subject individuals of the files in each of these systems have 
been provided a means of access to their records by the Freedom of 
Information Act. Subject individuals of the charge files in system EEOC-
3 have also been provided a means of access to their records by section 
83 of the Commission's Compliance Manual. Subject individuals of the 
case files in system EEOC/GOVT-1 have also been provided a means of 
access to their records by the Commission's Equal Employment Opportunity 
in the Federal Government regulation, 29 CFR 1613.220.
    (d) Many of the records contained in system EEOC/GOVT-1 are obtained 
from other systems of records. If such records are incorrect, it would 
be more appropriate for an individual to seek to amend or correct those 
records in their primary filing location so that notice of the 
correction can be given to all recipients of that information.
    (e) Subject individuals of the files in each of these systems have 
access to relevant information provided by the allegedly discriminating 
employer as part of the investigatory process and are given the 
opportunity to explain or contradict such information and to submit any 
responsive evidence of their own. To allow such individuals the 
additional right to amend or correct the records submitted by the 
allegedly discriminating employer would undermine the investigatory 
process and destroy the integrity of the administrative record.
    (f) The Commission has determined that the exemption of these three 
systems from subsections (c)(3), (d), (e)(1), (e)(4)(G), (e)(4)(H), 
(e)(4)(I), and (f) of the Privacy Act is necessary for the agency's law 
enforcement efforts.
[56 FR 29582, June 28, 1991]



PART 1612--GOVERNMENT IN THE SUNSHINE ACT REGULATIONS--Table of Contents




Sec.
1612.1    Purpose and scope.
1612.2    Definitions.
1612.3    Open meeting policy.
1612.4    Exemptions to open meeting policy.
1612.5    Closed meeting procedures: agency initiated requests.
1612.6    Closed meeting procedures: request initiated by an interested 
          person.
1612.7    Public announcement of agency meetings.
1612.8    Public announcement of changes in meetings.
1612.9    Legal Counsel's certification in closing a meeting.
1612.10    Recordkeeping requirements.
1612.11    Public access to records.

[[Page 248]]

1612.12    Fees.
1612.13    Meetings closed by regulation.
1612.14    Judicial review.

    Authority: 5 U.S.C. 552b, sec. 713, 78 Stat. 265; 42 U.S.C. 2000e-
12.

    Source: 42 FR 13830, Mar. 14, 1977, unless otherwise noted.



Sec. 1612.1  Purpose and scope.

    This part contains the regulations of the Equal Employment 
Opportunity Commission (hereinafter, the Commission) implementing the 
Government in the Sunshine Act of 1976, 5 U.S.C. 552b, which entitles 
the public to the fullest practicable information regarding the 
decision-making processes of the Commission. The provisions of this part 
set forth the basic responsibilities of the Commission with regard to 
the Commission's compliance with the requirements of the Sunshine Act 
and offers guidance to members of the public who wish to exercise any of 
the rights established by the Act.



Sec. 1612.2  Definitions.

    The following definitions apply for purposes of this part:
    (a) The term agency means the Equal Employment Opportunity 
Commission and any subdivision thereof authorized to act on its behalf.
    (b) The term meeting means the deliberations of at least three of 
the members of the agency, which is a quorum of Commissioners, where 
such deliberations determine or result in the joint conduct or 
disposition of official agency business (including conference calls), 
but does not include:
    (1) Individual members' consideration of official agency business 
circulated to the members in writing for disposition by notation or 
other separate, sequential consideration of Commission business by 
Commissioners,
    (2) Deliberations to decide whether a meeting or portion(s) of a 
meeting or series of meetings should be open or closed.
    (3) Deliberations to decide whether to withhold from disclosure 
information pertaining to a meeting or portions of a meeting or a series 
of meetings, or
    (4) Deliberations pertaining to any change in any meeting or to 
changes in the public announcement of such meeting.
    (c) The term member means each Commissioner of the agency.
    (d) The term entire membership means the number of members holding 
office at the time of the meeting in question.
    (e) The term person means any individual, partnership, corporation, 
association, or public or private organization.
    (f) The term public observation means attendance at any meeting open 
to the public but does not include participation, or attempted 
participation, in such meeting in any manner.



Sec. 1612.3  Open meeting policy.

    (a) All meetings of the Commission shall be conducted in accordance 
with the provisions of this part.
    (b) Except as otherwise provided in Sec. 1612.4, every portion of 
every meeting shall be open to public observation. Public observation 
does not include participation or disruptive conduct by observers. Any 
attempted participation or disruptive conduct by observers shall be 
cause for removal of persons so engaged at the discretion of the 
presiding member of the agency.
    (c) When holding open meetings, the Commission shall provide ample 
space, sufficient visibility, and adequate acoustics for persons in 
attendance at the meeting.
    (d) Observers may take still photographs and use portable sound 
recorders which do not require electrical outlets. Persons may take 
pictures only at the beginning of a meeting and may not use flash 
equipment. Permission to use non-battery operated sound recorders and 
visual recorders must be sought reasonably in advance of a meeting. Such 
request must be made in writing to the Commission through the Office of 
the Executive Secretariat. The Commission may permit such activities to 
be conducted under specified limitations which insure proper decorum and 
minimum interference with the meeting. In all cases, audio or visual 
recording shall not disrupt or otherwise impede the meeting.



Sec. 1612.4  Exemptions to open meeting policy.

    Except in a case where the agency finds that the public interest 
requires otherwise, the provisions of Sec. 1612.3

[[Page 249]]

shall not apply to any meeting or portion of a meeting or portion of a 
meeting where the agency determines that an open meeting or the 
disclosure of information from such meeting or portions of a meeting is 
likely to:
    (a) Disclose matters that are (1) specifically authorized under 
criteria established by an Executive Order to be kept secret in the 
interests of national defense or foreign policy and (2) in fact properly 
classified pursuant to such Executive Order;
    (b) Relate solely to the internal personnel rules and practices of 
the agency;
    (c) Disclose matters specifically exempted from disclosure by 
statute (other than the Freedom of Information Act, 5 U.S.C. 552), 
provided that such statute (1) requires that the matters be withheld 
from the public in such a manner as to leave no discretion on the issue, 
or (2) establishes particular criteria for withholding or refers to 
particular types of matters to be withheld;
    (d) Disclose trade secrets and commercial or financial information 
obtained from a person and privileged or confidential;
    (e) Involve accusing any person of a crime or formally censuring any 
person;
    (f) Disclose information of a personal nature where disclosure would 
constitute a clearly unwarranted invasion of personal privacy;
    (g) Disclose investigatory records compiled for law enforcement 
purposes, or information which if written would be contained in such 
records, but only to the extent that the production of such records or 
information would (1) interfere with enforcement proceedings, (2) 
deprive a persons of a right to a fair trial or an impartial 
adjudication, (3) constitute an unwarranted invasion of personal 
privacy, (4) disclose the identity of a confidential source, and, in the 
case of a record compiled by a criminal law enforcement authority in the 
course of a criminal investigation, or by an agency conducting a lawful 
national security intelligence investigation, confidential information 
furnished only by the confidential source, (5) disclose investigative 
techniques and procedures, or (6) endanger the life of physical safety 
of law enforcement personnel;
    (h) Disclose information contained in or related to examination, 
operating, or condition reports prepared by, on behalf of, or for the 
use of an agency responsible for the regulation or supervision of 
financial institutions;
    (i) Disclose information the premature disclosure of which would be 
likely to significantly frustrate implementation of a proposed agency 
action, except where the agency has already disclosed to the public the 
content or nature of the disclosed action, or where the agency is 
required by law to make such disclosure on its own initiative prior to 
taking final agency action on such proposal; or
    (j) Specifically concern the agency's issuance of a subpoena, or the 
agency's participation in a civil action or proceeding, an action in a 
foreign court or international tribunal, or an arbitration, or the 
initiation, conduct, or disposition by the agency of a particular case 
of formal agency adjudication pursuant to the procedures specified in 5 
U.S.C. 554 or otherwise involving a determination on the record after 
opportunity for a hearing.



Sec. 1612.5  Closed meeting procedures: agency initiated requests.

    (a) Any member of the agency, the Legal Counsel, or any other 
Commission official submitting an agenda item for the subject meeting 
may request that any meeting or portion thereof be closed to public 
observation for any of the reasons provided in Sec. 1612.4 of this part 
by submitting a request in writing to the Commission through the Office 
of the Executive Secretariat no later than fourteen (14) calendar days 
prior to the meeting.
    (b) Upon receipt of any request made under paragraph (a) of this 
section, the Executive Secretary shall submit the request to the Legal 
Counsel for certification in accordance with Sec. 1612.9 of this part.
    (c) No later than seven (7) calendar days prior to the scheduled 
meeting the members of the agency shall, upon consideration of the 
request submitted and consideration of the certified opinion of the 
Legal Counsel, determine by recorded vote whether to close the

[[Page 250]]

meeting or portion of the meeting to public observation. The members may 
vote less than seven days prior to the scheduled meeting where:
    (1) A majority of the members of the Commission determines by 
recorded vote that agency business requires that any such meeting or 
series of meetings be held at an earlier date.
    (2) A meeting is closed under the Commission's regulation as set 
forth in Sec. 1612.13(a) of this part.
    (3) A meeting is closed pursuant to a request made under Sec. 1612.6 
of this part and submitted less than seven days prior to the meeting.
    (4) There is a need to change the subject matter or the 
determination to open or close a meeting previously announced.
    (d) The Commissioner shall, at the same time, vote on whether to 
withhold any information pertaining to the meeting and otherwise 
required to be announced (Sec. 1612.7(a)(3)) or made publicly available 
(paragraphs (f) (2) and (3) of this section).
    (e) A meeting, portion of a meeting, or series of meetings may be 
closed to public observation only when a majority of the entire agency 
membership votes to take such action. Information pertaining to a 
meeting, portion of a meeting or series of meetings otherwise required 
to be announced (Sec. 1612.7(a)(3)) or made publicly available 
(paragraphs (f) (2) and (3) of this section) shall be withheld only when 
a majority of the entire agency membership votes to take such action.
    (f) With respect to each vote taken on whether a meeting should be 
open or closed, the agency shall, within one day of such vote, make 
publicly available the following information:
    (1) A written copy of the vote of each participating Commission 
member on the question.
    (2) A written explanation of Commission action closing a meeting or 
portions thereof, and
    (3) The name and affiliation of any persons who are expected to 
attend a closed meeting.
    (g) The agency shall, within one day, make publicly available the 
vote of each Commission member on whether or not to withhold any of the 
information described in paragraphs (f) (2) or (3) of this section.
    (h) A separate vote shall be taken for each meeting proposed to be 
closed to the public and with respect to any information proposed to be 
withheld from the public. However, a single vote may be taken with 
respect to a series of meetings proposed to be closed to the public, and 
with respect to information concerning such series of meetings, if each 
meeting involves the same particular matters and is scheduled to be held 
no later than thirty (30) calendar days after the first meeting in the 
series.
[42 FR 13830, Mar. 14, 1977, as amended at 47 FR 46276, Oct. 18, 1982]



Sec. 1612.6  Closed meeting procedures: request initiated by an interested person.

    (a) Any person as defined in Sec. 1612.2 of this part whose interest 
may be directly affected by a portion of a meeting may request that the 
agency close that portion of the meeting to the public for any of the 
reasons listed in Sec. 1612.4(e), (f) or (g).
    (b) Any person described in paragraph (a) of this section who 
submits a request that a portion of a meeting be closed, shall submit 
such request to the Chairman of the agency at the following address: the 
Equal Employment Opportunity Commission, 2401 E Street NW., Washington, 
DC, 20506. Such person shall state with particularity that portion of a 
meeting sought to be closed and the reasons for such request.
    (c) The Chairman, upon receipt of any request made under paragraph 
(a) of this section, shall furnish a copy of the request to:
    (1) Each member of the agency.
    (2) The Legal Counsel for certification in accordance with 
Sec. 1612.9 of this part.
    (d) Any member of the agency may request agency action upon such 
request.
    (e) The Commission shall, upon the request of any one of its members 
and consideration of the certified opinion of the Legal Counsel, 
determine by recorded vote whether to close such meeting or portion 
thereof.
    (f) The Chairman of the Commission shall promptly communicate to any

[[Page 251]]

person making a request to close a meeting or portion of a meeting under 
this section the agency's final disposition of such request.
[42 FR 13830, Mar. 14, 1977, as amended at 47 FR 46276, Oct. 18, 1982]



Sec. 1612.7  Public announcement of agency meetings.

    (a) Public announcement of each meeting by the agency shall be 
accomplished by recorded telephone message at telephone number 202-663-
7100 (between the hours of 9 a.m. and 5 p.m. e.t.), and by posting such 
announcement in the lobby of the Commission's headquarters at 1801 L 
Street NW., Washington, DC 20507, not later than one week prior to 
commencement of a meeting or the commencement of the first meeting in a 
series of meetings, except as otherwise provided in this section, and 
shall disclose:
    (1) The time of the meeting.
    (2) The place of the meeting.
    (3) The subject matter of each portion of each meeting or series of 
meetings.
    (4) Whether any portion(s) of a meeting will be open or closed to 
public observation.
    (5) The name and telephone number of an official designated to 
respond to requests for information about the meeting.
    (b) Where a meeting is closed to the public, the agency may withhold 
and not announce the information specified in paragraph (a)(3) of this 
section, if and to the extent that it finds that such action is 
justified under Sec. 1612.4. Information shall be withheld only by a 
recorded vote of a majority of the entire membership of the agency.
    (c) The announcement described in paragraph (a) of this section may 
be accomplished less than one week prior to the commencement of any 
meeting or series of meetings where:
    (1) A majority of the members of the Commission determines by 
recorded vote that agency business requires that any such meeting or 
series of meetings be held at an earlier date.
    (2) A meeting is closed under the Commission's regulation as set 
forth in Sec. 1612.13(a) of this part.
    (3) A meeting is closed pursuant to a request made under Sec. 1612.6 
of this part and submitted less than seven days prior to the meeting.
    (4) There has been a change in the subject matter or determination 
to open or close a meeting previously announced.

In these instances, the agency shall make public announcement at the 
earliest practicable time.
    (d) Immediately following any public announcement accomplished under 
the provisions of this section, the agency shall submit a notice for 
publication in the Federal Register disclosing:
    (1) The time of the meeting.
    (2) The place of the meeting.
    (3) The subject matter of each portion of each meeting or series of 
meetings.
    (4) Whether any portion(s) of a meeting will be open or closed to 
public observation.
    (5) The name and telephone number of an official designated to 
respond to requests for information about the meeting.
[42 FR 13830, Mar. 14, 1977, as amended at 55 FR 8140, Mar. 7, 1990]



Sec. 1612.8  Public announcement of changes in meetings.

    (a) The agency is required to make a public announcement of any 
changes in its meeting or portion(s) thereof. If, after the announcement 
provided for in Sec. 1612.7, the time or place of a meeting is changed 
or the meeting is cancelled, the agency will announce the change at the 
earliest practicable time. The subject matter or the determination to 
open or close the meeting may be changed only if (1) a majority of the 
entire membership of the agency determines by recorded vote that agency 
business so requires and that no earlier announcement of the change was 
possible and (2) the agency publicly announces the change and the vote 
of each member upon such change at the earliest practicable time.
    (b) Immediately following any public announcement of any change 
accomplished under the provisions of this section, the agency shall 
submit a notice for publication in the Federal Register disclosing:
    (1) The time of the meeting.
    (2) The place of the meeting.

[[Page 252]]

    (3) The subject matter of each portion of each meeting or series of 
meetings.
    (4) Whether any portion(s) of a meeting is open or closed to public 
observation.
    (5) Any change in paragraphs (b) (1), (2), (3), or (4) of this 
section.
    (6) The name and telephone number of the official designated to 
respond to requests for information about any meeting.



Sec. 1612.9  Legal Counsel's certification in closing a meeting.

    (a) Upon any proper request made pursuant to this part, that the 
agency close a meeting or portion(s) thereof, the Legal Counsel shall 
certify in writing to the agency, whether in his or her opinion the 
closing of a meeting or portion(s) thereof is proper under the 
provisions of this part and the terms of the Government in the Sunshine 
Act (5 U.S.C. 552b). If, in the opinion of the Legal Counsel, a meeting 
or portion(s) thereof is proper for closing under this part and the 
terms of the Government in the Sunshine Act, his or her certification of 
that opinion shall cite each applicable particular exemption of that Act 
and provision of this part.
    (b) A copy of the certification of the Legal Counsel as described in 
paragraph (a) of this section together with a statement of the presiding 
officer of the meeting setting forth the time and place of the relevant 
meeting or meetings, and the persons present, shall be maintained by the 
agency in a public file.
[42 FR 13830, Mar. 14, 1977, as amended at 47 FR 46276, Oct. 18, 1982]



Sec. 1612.10  Recordkeeping requirements.

    (a) In the case of any meeting or portion(s) thereof to be closed to 
public observation under the provisions of this part, the following 
records shall be maintained by the Executive Secretary of the agency:
    (1) The certification of the Legal Counsel pursuant to Sec. 1612.9 
of this part;
    (2) A statement from the presiding officer of the meeting or 
portion(s) thereof setting forth the time and place of the meeting, and 
the persons present;
    (3) A complete electronic recording adequate to record fully the 
proceedings of each meeting closed to the public observation, except 
that in a meeting closed pursuant to paragraph (h) or (j) of 
Sec. 1612.4, the agency may maintain minutes in lieu of a recording. 
Such minutes shall fully, and clearly describe all matters discussed and 
shall provide a full and accurate summary of any actions taken, and the 
reasons therefor, including a description of each of the views expressed 
on any item and the record of any roll call vote. All documents 
considered in connection with any item shall be identified in the 
minutes.
    (b) If the agency has determined that the meeting or portion(s) 
thereof may properly be closed to the public, the electronic recording 
or minutes shall not be made available to the public until such future 
time, if any, as it is determined by the Commission upon request, that 
the reasons for closing the meeting no longer pertain; Provided, 
however, that any separable portion of a recording or minutes will be 
made promptly available to the public if that portion does not contain 
information properly withheld under Sec. 1612.4.
    (c) The agency shall maintain a copy of the electronic recording or 
minutes for a period of two years after the meeting, or until one year 
after the conclusion of the proceeding to which the meeting relates, 
whichever occurs later.
[42 FR 13830, Mar. 14, 1977, as amended at 47 FR 46276, Oct. 18, 1982]



Sec. 1612.11  Public access to records.

    All requests for information shall be submitted in writing to the 
Chairman of the agency. Requests to inspect or copy the electronic 
recordings or minutes of agency meetings or portions thereof will be 
considered under the provisions of Sec. 1612.4 of this part.



Sec. 1612.12  Fees.

    (a) Records provided to the public under this part shall be 
furnished at the expense of the party requesting copies of the recording 
or minutes, upon payment of the actual cost of duplication.

[[Page 253]]

    (b) All required fees shall be paid in full prior to issuance of 
requested copies of records. Fees are payable to the ``Treasurer of the 
United States.''



Sec. 1612.13  Meetings closed by regulation.

    (a) This paragraph constitutes the Commission's regulation 
promulgated pursuant to paragraph (d)(4) of the Government in the 
Sunshine Act and may be invoked by the agency to close meetings or 
portions thereof where the subject matter of such meeting or portion of 
a meeting is likely to involve:
    (1) Matters pertaining to the issuance of subpoenas;
    (2) Subpoena modification and revocation requests, and
    (3) The Agency's participation in civil actions or proceedings 
pertaining thereto.
    (b) When closing a meeting or portion thereof under the Commission's 
regulation set forth in paragraph (a) of this section, a majority of the 
Commission membership shall vote at or before the beginning of such 
meeting or portion thereof to do so. The vote to close a meeting by 
regulation shall be recorded and made publicly available.
    (c) The Commission's determination to promulgate the regulation in 
paragraph (a) of this section is based upon a review of the agenda of 
Commission meetings for the two years prior to the promulgation of these 
regulations.
    (1) Since the Commission's practice of conducting weekly meetings 
began in 1975, proposed litigation against title VII respondents has 
been a regular agenda item. The tenth exemption of the Government in the 
Sunshine Act, 5 U.S.C. 552b(c)(10), exempts the discussion of these 
matters from the open meeting requirements of the Act.
    (2) Thus, the Commission has determined that a majority of its 
meetings or portions thereof may properly be closed to the public under 
the tenth exemption of the Sunshine Act, and that paragraph (d)(4) of 
the Sunshine Act is properly relied upon in promulgating the 
Commission's regulation in paragraph (a) of this section.



Sec. 1612.14  Judicial review.

    Any person may bring an action in a United States District Court to 
challenge or enforce the provisions of this part. Such action may be 
brought prior to or within sixty (60) calendar days after the meeting in 
question, except that if proper public announcement of the meeting is 
not made, the action may be instituted at any time within sixty (60) 
days after such announcement is made. An action may be brought where the 
agency meeting was held or in the District of Columbia.



PART 1614--FEDERAL SECTOR EQUAL EMPLOYMENT OPPORTUNITY--Table of Contents




    Subpart A--Agency Program To Promote Equal Employment Opportunity

1614.101  General policy.
1614.102  Agency program.
1614.103  Complaints of discrimination covered by this part.
1614.104  Agency processing.
1614.105  Pre-complaint processing.
1614.106  Individual complaints.
1614.107  Dismissals of complaints.
1614.108  Investigation of complaints.
1614.109  Hearings.
1614.110  Final decisions.

        Subpart B--Provisions Applicable to Particular Complaints

1614.201  Age Discrimination in Employment Act.
1614.202  Equal Pay Act.
1614.203  Rehabilitation Act.
1614.204  Class complaints.

                      Subpart C--Related Processes

1614.301  Relationship to negotiated grievance procedure.
1614.302  Mixed case complaints.
1614.303  Petitions to the EEOC from MSPB decisions on mixed case 
          appeals and complaints.
1614.304  Contents of petition.
1614.305  Consideration procedures.
1614.306  Referral of case to Special Panel.
1614.307  Organization of Special Panel.
1614.308  Practices and procedures of the Special Panel.
1614.309  Enforcement of Special Panel decision.
1614.310  Right to file a civil action.

                  Subpart D--Appeals and Civil Actions

1614.401  Appeals to the Commission.
1614.402  Time for appeals to the Commission.
1614.403  How to appeal.
1614.404  Appellate procedure.
1614.405  Decisions on appeals.

[[Page 254]]

1614.406  Time limits. [Reserved]
1614.407  Reconsideration.
1614.408  Civil action: Title VII, Age Discrimination in Employment Act 
          and Rehabilitation Act.
1614.409  Civil action: Equal Pay Act.
1614.410  Effect of filing a civil action.

                   Subpart E--Remedies and Enforcement

1614.501  Remedies and relief.
1614.502  Compliance with final Commission decisions.
1614.503  Enforcement of final Commission decisions.
1614.504  Compliance with settlement agreements and final decisions.

               Subpart F--Matters of General Applicability

1614.601  EEO group statistics.
1614.602  Reports to the Commission.
1614.603  Voluntary settlement attempts.
1614.604  Filing and computation of time.
1614.605  Representation and official time.
1614.606  Joint processing and consolidation of complaints.
1614.607  Delegation of authority.

    Authority: 29 U.S.C. 206(d), 633a, 791 and 794a; 42 U.S.C. 2000e-16; 
E.O. 10577, 3 CFR, 1954-1958 Comp., p.218; E.O. 11222, 3 CFR, 1964-1965 
Comp., p.306; E.O. 11478, 3 CFR, 1969 Comp., p.133; E.O. 12106, 3 CFR, 
1978 Comp., p.263; Reorg. Plan No. 1 of 1978, 3 CFR, 1978 Comp., p.321.

    Source: 57 FR 12646, Apr. 10, 1992, unless otherwise noted.



    Subpart A--Agency Program To Promote Equal Employment Opportunity



Sec. 1614.101  General policy.

    (a) It is the policy of the Government of the United States to 
provide equal opportunity in employment for all persons, to prohibit 
discrimination in employment because of race, color, religion, sex, 
national origin, age or handicap and to promote the full realization of 
equal employment opportunity through a continuing affirmative program in 
each agency.
    (b) No person shall be subject to retaliation for opposing any 
practice made unlawful by title VII of the Civil Rights Act (title VII) 
(42 U.S.C. 2000e et seq.), the Age Discrimination in Employment Act 
(ADEA) (29 U.S.C. 621 et seq.), the Equal Pay Act (29 U.S.C. 206(d)) or 
the Rehabilitation Act (29 U.S.C. 791 et seq.) or for participating in 
any stage of administrative or judicial proceedings under those 
statutes.



Sec. 1614.102  Agency program.

    (a) Each agency shall maintain a continuing affirmative program to 
promote equal opportunity and to identify and eliminate discriminatory 
practices and policies. In support of this program, the agency shall:
    (1) Provide sufficient resources to its equal employment opportunity 
program to ensure efficient and successful operation;
    (2) Provide for the prompt, fair and impartial processing of 
complaints in accordance with this part and the instructions contained 
in the Commission's Management Directives;
    (3) Conduct a continuing campaign to eradicate every form of 
prejudice or discrimination from the agency's personnel policies, 
practices and working conditions;
    (4) Communicate the agency's equal employment opportunity policy and 
program and its employment needs to all sources of job candidates 
without regard to race, color, religion, sex, national, origin, age or 
handicap, and solicit their recruitment assistance on a continuing 
basis;
    (5) Review, evaluate and control managerial and supervisory 
performance in such a manner as to insure a continuing affirmative 
application and vigorous enforcement of the policy of equal opportunity, 
and provide orientation, training and advice to managers and supervisors 
to assure their understanding and implementation of the equal employment 
opportunity policy and program;
    (6) Take appropriate disciplinary action against employees who 
engage in discriminatory practices;
    (7) Make reasonable accommodation to the religious needs of 
applicants and employees when those accommodations can be made without 
undue hardship on the business of the agency;
    (8) Make reasonable accommodation to the known physical or mental 
limitations of qualified applicants and employees with handicaps unless 
the accommodation would impose an undue hardship on the operation of the 
agency's program;

[[Page 255]]

    (9) Reassign, in accordance with Sec. 1614.203(g), nonprobationary 
employees who develop physical or mental limitations that prevent them 
from performing the essential functions of their positions even with 
reasonable accommodation;
    (10) Provide recognition to employees, supervisors, managers and 
units demonstrating superior accomplishment in equal employment 
opportunity;
    (11) Establish a system for periodically evaluating the 
effectiveness of the agency's overall equal employment opportunity 
effort;
    (12) Provide the maximum feasible opportunity to employees to 
enhance their skills through on-the-job training, work-study programs 
and other training measures so that they may perform at their highest 
potential and advance in accordance with their abilities;
    (13) Inform its employees and recognized labor organizations of the 
affirmative equal employment opportunity policy and program and enlist 
their cooperation; and
    (14) Participate at the community level with other employers, with 
schools and universities and with other public and private groups in 
cooperative action to improve employment opportunities and community 
conditions that affect employability.
    (b) In order to implement its program, each agency shall:
    (1) Develop the plans, procedures and regulations necessary to carry 
out its program;
    (2) Appraise its personnel operations at regular intervals to assure 
their conformity with its program, this part 1614 and the instructions 
contained in the Commission's management directives;
    (3) Designate a Director of Equal Employment Opportunity (EEO 
Director), EEO Officer(s), and such Special Emphasis Program Managers 
(e.g., People With Disabilities Program, Federal Women's Program and 
Hispanic Employment Program), clerical and administrative support as may 
be necessary to carry out the functions described in this part in all 
organizational units of the agency and at all agency installations. The 
EEO Director shall be under the immediate supervision of the agency 
head;
    (4) Make written materials available to all employees and applicants 
informing them of the variety of equal employment opportunity programs 
and administrative and judicial remedial procedures available to them 
and prominently post such written materials in all personnel and EEO 
offices and throughout the workplace;
    (5) Ensure that full cooperation is provided by all agency employees 
to EEO Counselors and agency EEO personnel in the processing and 
resolution of pre-complaint matters and complaints within an agency and 
that full cooperation is provided to the Commission in the course of 
appeals, including granting the Commission routine access to personnel 
records of the agency when required in connection with an investigation; 
and
    (6) Publicize to all employees and post at all times the names, 
business telephone numbers and business addresses of the EEO Counselors 
(unless the counseling function is centralized, in which case only the 
telephone number and address need be publicized and posted), a notice of 
the time limits and necessity of contacting a Counselor before filing a 
complaint and the telephone numbers and addresses of the EEO Director, 
EEO Officer(s) and Special Emphasis Program Managers.
    (c) Under each agency program, the EEO Director shall be responsible 
for:
    (1) Advising the head of the agency with respect to the preparation 
of national and regional equal employment opportunity plans, procedures, 
regulations, reports and other matters pertaining to the policy in 
Sec. 1614.101 and the agency program;
    (2) Evaluating from time to time the sufficiency of the total agency 
program for equal employment opportunity and reporting to the head of 
the agency with recommendations as to any improvement or correction 
needed, including remedial or disciplinary action with respect to 
managerial, supervisory or other employees who have failed in their 
responsibilities;
    (3) When authorized by the head of the agency, making changes in 
programs and procedures designed to eliminate discriminatory practices 
and

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to improve the agency's program for equal employment opportunity;
    (4) Providing for counseling of aggrieved individuals and for the 
receipt and processing of individual and class complaints of 
discrimination; and
    (5) Assuring that individual complaints are fairly and thoroughly 
investigated and that final decisions are issued in a timely manner in 
accordance with this part.
    (d) Directives, instructions, forms and other Commission materials 
referenced in this part may be obtained in accordance with the 
provisions of 29 CFR 1610.7 of this chapter.



Sec. 1614.103  Complaints of discrimination covered by this part.

    (a) Individual and class complaints of employment discrimination and 
retaliation prohibited by title VII (discrimination on the basis of 
race, color, religion, sex and national origin), the ADEA 
(discrimination on the basis of age when the aggrieved individual is at 
least 40 years of age), the Rehabilitation Act (discrimination on the 
basis of handicap) or the Equal Pay Act (sex-based wage discrimination) 
shall be processed in accordance with this part. Complaints alleging 
retaliation prohibited by these statutes are considered to be complaints 
of discrimination for purposes of this part.
    (b) This part applies to:
    (1) Military departments as defined in 5 U.S.C. 102;
    (2) Executive agencies as defined in 5 U.S.C. 105;
    (3) The United States Postal Service, Postal Rate Commission and 
Tennessee Valley Authority; and
    (4) All units of the legislative and judicial branches of the 
Federal Government having positions in the competitive service, except 
for complaints under the Rehabilitation Act.
    (c) Within the covered departments, agencies and units, this part 
applies to all employees and applicants for employment, and to all 
employment policies or practices affecting employees or applicants for 
employment including employees and applicants who are paid from 
nonappropriated funds, unless otherwise excluded.
    (d) This part does not apply to:
    (1) Uniformed members of the military departments referred to in 
paragraph (b)(1) of this section:
    (2) Employees of the General Accounting Office;
    (3) Employees of the Library of Congress;
    (4) Aliens employed in positions, or who apply for positions, 
located outside the limits of the United States; or
    (5) Equal Pay Act complaints of employees whose services are 
performed within a foreign country or certain United States territories 
as provided in 29 U.S.C. 213(f).



Sec. 1614.104  Agency processing.

    (a) Each agency subject to this part shall adopt procedures for 
processing individual and class complaints of discrimination that 
include the provisions contained in Secs. 1614.105 through 1614.110 and 
in Sec. 1614.204, and that are consistent with all other applicable 
provisions of this part and the instructions for complaint processing 
contained in the Commission's Management Directives.
    (b) The Commission shall periodically review agency resources and 
procedures to ensure that an agency makes reasonable efforts to resolve 
complaints informally, to process complaints in a timely manner, to 
develop adequate factual records, to issue decisions that are consistent 
with acceptable legal standards, to explain the reasons for its 
decisions, and to give complainants adequate and timely notice of their 
rights.



Sec. 1614.105  Pre-complaint processing.

    (a) Aggrieved persons who believe they have been discriminated 
against on the basis of race, color, religion, sex, national origin, age 
or handicap must consult a Counselor prior to filing a complaint in 
order to try to informally resolve the matter.
    (1) An aggrieved person must initiate contact with a Counselor 
within 45 days of the date of the matter alleged to be discriminatory 
or, in the case of personnel action, within 45 days of the effective 
date of the action.
    (2) The agency or the Commission shall extend the 45-day time limit 
in paragraph (a)(1) of this section when the individual shows that he or 
she was not notified of the time limits and was

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not otherwise aware of them, that he or she did not know and reasonably 
should not have been known that the discriminatory matter or personnel 
action occurred, that despite due diligence he or she was prevented by 
circumstances beyond his or her control from contacting the counselor 
within the time limits, or for other reasons considered sufficient by 
the agency or the Commission.
    (b) At the initial counseling session, Counselors must advise 
individuals in writing of their rights and responsibilities, including 
the right to request a hearing after an investigation by the agency, 
election rights pursuant to Secs. 1614.301 and 1614.302, the right to 
file a notice of intent to sue pursuant to Sec. 1614.201(a) and a 
lawsuit under the ADEA instead of an administrative complaint of age 
discrimination under this part, the duty to mitigate damages, 
administrative and court time frames, and that only the matter(s) raised 
in precomplaint counseling (or issues like or related to issues raised 
in pre-complaint counseling) may be alleged in a subsequent complaint 
filed with the agency. Counselors must advise individuals of their duty 
to keep the agency and Commission informed of their current address and 
to serve copies of appeal papers on the agency. The notice required by 
paragraphs (d) or (e) of this section shall include a notice of the 
right to file a class complaint. If the aggrieved person informs the 
Counselor that he or she wishes to file a class complaint, the Counselor 
shall explain the class complaint procedures and the responsibilities of 
a class agent.
    (c) Counselors shall conduct counseling activities in accordance 
with instructions contained in Commission Management Directives. When 
advised that a complaint has been filed by an aggrieved person, the 
Counselor shall submit a written report within 15 days to the agency 
office that has been designated to accept complaints and the aggrieved 
person concerning the issues discussed and actions taken during 
counseling.
    (d) Unless the aggrieved person agrees to a longer counseling period 
under paragraph (e) of this section, or the agency has an established 
dispute resolution procedure under paragraph (f) of this section, the 
Counselor shall conduct the final interview with the aggrieved person 
within 30 days of the date the aggrieved person brought the matter to 
the Counselor's attention. If the matter has not been resolved, the 
aggrieved person shall be informed in writing by the Counselor, not 
later than the thirtieth day after contacting the Counselor, of the 
right to file a discrimination complaint. The notice shall inform the 
complainant of the right to file a discrimination complaint within 15 
days of receipt of the notice, of the appropriate official with whom to 
file a complaint and of the complainant's duty to assure that the agency 
is informed immediately if the complainant retains counsel or a 
representative.
    (e) Prior to the end of the 30-day period, the aggrieved person may 
agree in writing with the agency to p