[Title 44 CFR ]
[Code of Federal Regulations (annual edition) - October 1, 2002 Edition]
[From the U.S. Government Printing Office]



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                    44

                         Revised as of October 1, 2002

Emergency Management and Assistance





          Containing a codification of documents of general 
          applicability and future effect
          As of October 1, 2002
          With Ancillaries
          Published by
          Office of the Federal Register
          National Archives and Records
          Administration

A Special Edition of the Federal Register



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                     U.S. GOVERNMENT PRINTING OFFICE
                            WASHINGTON : 2002



  For sale by the Superintendent of Documents, U.S. Government Printing 
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                            Table of Contents



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

  Title 44:
          Chapter I--Federal Emergency Management Agency             3
          Chapter IV--Department of Commerce and Department of 
          Transportation                                           615
  Finding Aids:
      Table of CFR Titles and Chapters........................     623
      Alphabetical List of Agencies Appearing in the CFR......     641
      List of CFR Sections Affected...........................     651



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                     ----------------------------

                     Cite this Code:  CFR
                     To cite the regulations in 
                       this volume use title, 
                       part and section number. 
                       Thus, 44 CFR 1.1 refers to 
                       title 44, part 1, 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

    The contents of the Federal Register are required to be judicially 
noticed (44 U.S.C. 1507). The Code of Federal Regulations is prima facie 
evidence of the text of the original documents (44 U.S.C. 1510).

HOW TO USE THE CODE OF FEDERAL REGULATIONS

    The Code of Federal Regulations is kept up to date by the individual 
issues of the Federal Register. These two publications must be used 
together to determine the latest version of any given rule.
    To determine whether a Code volume has been amended since its 
revision date (in this case, October 1, 2002), consult the ``List of CFR 
Sections Affected (LSA),'' which is issued monthly, and the ``Cumulative 
List of Parts Affected,'' which appears in the Reader Aids section of 
the daily Federal Register. These two lists will identify the Federal 
Register page number of the latest amendment of any given rule.

EFFECTIVE AND EXPIRATION DATES

    Each volume of the Code contains amendments published in the Federal 
Register since the last revision of that volume of the Code. Source 
citations for the regulations are referred to by volume number and page 
number of the Federal Register and date of publication. Publication 
dates and effective dates are usually not the same and care must be 
exercised by the user in determining the actual effective date. In 
instances where the effective date is beyond the cut-off date for the 
Code a note has been inserted to reflect the future effective date. In 
those instances where a regulation published in the Federal Register 
states a date certain for expiration, an appropriate note will be 
inserted following the text.

OMB CONTROL NUMBERS

    The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires 
Federal agencies to display an OMB control number with their information 
collection request.

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Many agencies have begun publishing numerous OMB control numbers as 
amendments to existing regulations in the CFR. These OMB numbers are 
placed as close as possible to the applicable recordkeeping or reporting 
requirements.

OBSOLETE PROVISIONS

    Provisions that become obsolete before the revision date stated on 
the cover of each volume are not carried. Code users may find the text 
of provisions in effect on a given date in the past by using the 
appropriate numerical list of sections affected. For the period before 
January 1, 2001, consult either the List of CFR Sections Affected, 1949-
1963, 1964-1972, 1973-1985, or 1986-2000, published in 11 separate 
volumes. For the period beginning January 1, 2001, a ``List of CFR 
Sections Affected'' is published at the end of each CFR volume.

CFR INDEXES AND TABULAR GUIDES

    A subject index to the Code of Federal Regulations is contained in a 
separate volume, revised annually as of January 1, entitled CFR Index 
and Finding Aids. This volume contains the Parallel Table of Statutory 
Authorities and Agency Rules (Table I). A list of CFR titles, chapters, 
and parts and an alphabetical list of agencies publishing in the CFR are 
also included in this volume.
    An index to the text of ``Title 3--The President'' is carried within 
that volume.
    The Federal Register Index is issued monthly in cumulative form. 
This index is based on a consolidation of the ``Contents'' entries in 
the daily Federal Register.
    A List of CFR Sections Affected (LSA) is published monthly, keyed to 
the revision dates of the 50 CFR titles.

REPUBLICATION OF MATERIAL

    There are no restrictions on the republication of material appearing 
in the Code of Federal Regulations.

INQUIRIES

    For a legal interpretation or explanation of any regulation in this 
volume, contact the issuing agency. The issuing agency's name appears at 
the top of odd-numbered pages.
    For inquiries concerning CFR reference assistance, call 202-741-6000 
or write to the Director, Office of the Federal Register, National 
Archives and Records Administration, Washington, DC 20408 or e-mail 
info@fedreg.nara.gov.

SALES

    The Government Printing Office (GPO) processes all sales and 
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ELECTRONIC SERVICES

    The full text of the Code of Federal Regulations, the LSA (List of 
CFR Sections Affected), The United States Government Manual, the Federal 
Register, Public Laws, Public Papers, Weekly Compilation of Presidential 
Documents and the Privacy Act Compilation are available in electronic 
format at www.access.gpo.gov/nara (''GPO Access''). For more 
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Government Printing Office. Phone 202-512-1530, or 888-293-6498 (toll-
free). E-mail, gpoaccess@gpo.gov.

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    The Office of the Federal Register also offers a free service on the 
National Archives and Records Administration's (NARA) World Wide Web 
site for public law numbers, Federal Register finding aids, and related 
information. Connect to NARA's web site at www.nara.gov/fedreg. The NARA 
site also contains links to GPO Access.

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

October 1, 2002.



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                               THIS TITLE

    Title 44--Emergency Management and Assistance is composed of one 
volume. The contents of this volume represent all current regulations 
codified under this title of the CFR as of October 1, 2002.

[[Page x]]





[[Page 1]]



              TITLE 44--EMERGENCY MANAGEMENT AND ASSISTANCE




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

chapter i-- Federal Emergency Management Agency.............           1

chapter iv-- Department of Commerce and Department of 
  Transportation............................................         401

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             CHAPTER I--FEDERAL EMERGENCY MANAGEMENT AGENCY




  --------------------------------------------------------------------

                          SUBCHAPTER A--GENERAL
Part                                                                Page
0

General statements of policy [Reserved]

1               Rulemaking; policy and procedures...........           7
2               Organization, functions, and delegations of 
                    authority...............................          13
3               [Reserved]

4               Intergovernmental review of Federal 
                    Emergency Management Agency (FEMA) 
                    programs and activities.................          27
5               Production or disclosure of information.....          30
6               Implementation of the Privacy Act of 1974...          46
7               Nondiscrimination in federally-assisted 
                    programs (FEMA Reg. 5)..................          64
8               National security information...............          79
9               Floodplain management and protection of 
                    wetlands................................          81
10              Environmental considerations................         101
11              Claims......................................         111
12              Advisory committees.........................         138
13              Uniform administrative requirements for 
                    grants and cooperative agreements to 
                    State and local governments.............         145
14              Administration of grants: Audits of State 
                    and local governments...................         172
15              Conduct at the Mt. Weather Emergency 
                    Assistance Center and at the National 
                    Emergency Training Center...............         178
16              Enforcement of nondiscrimination on the 
                    basis of handicap in programs or 
                    activities conducted by the Federal 
                    Emergency Management Agency.............         182
17              Governmentwide debarment and suspension 
                    (nonprocurement) and governmentwide 
                    requirements for drug-free workplace 
                    (grants)................................         188
18              New restrictions on lobbying................         207

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19              Nondiscrimination on the basis of sex in 
                    education programs or activities 
                    receiving Federal financial assistance..         218
20-24           [Reserved]

25              Uniform relocation assistance and real 
                    property acquisition for Federal and 
                    federally assisted programs.............         234
26-49           [Reserved]

              SUBCHAPTER B--INSURANCE AND HAZARD MITIGATION
50-54           [Reserved]

                 NATIONAL INSURANCE DEVELOPMENT PROGRAM
55-58            [Reserved]

                    NATIONAL FLOOD INSURANCE PROGRAM
59              General provisions..........................         235
60              Criteria for land management and use........         250
61              Insurance coverage and rates................         266
62              Sale of insurance and adjustment of claims..         316
63              Implementation of section 1306(c) of the 
                    National Flood Insurance Act of 1968....         331
64              Communities eligible for the sale of 
                    insurance...............................         336
65              Identification and mapping of special hazard 
                    areas...................................         339
66              Consultation with local officials...........         355
67              Appeals from proposed flood elevation 
                    determinations..........................         357
68              Administrative hearing procedures...........         360
69              [Reserved]

70              Procedure for map correction................         362
71              Implementation of coastal barrier 
                    legislation.............................         364
72              Procedures and fees for processing map 
                    changes.................................         368
73              Implementation of section 1316 of the 
                    National Flood Insurance Act of 1968....         371
74              [Reserved]

75              Exemption of State-owned properties under 
                    self-insurance plan.....................         372
76-77           [Reserved]

78              Flood mitigation assistance.................         375
79              [Reserved]

                     FEDERAL CRIME INSURANCE PROGRAM
80-149          [Reserved]

                SUBCHAPTER C--FIRE PREVENTION AND CONTROL
150             Public safety awards to public safety 
                    officers................................         379

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151             Reimbursement for costs of firefighting on 
                    Federal property........................         382
152             Assistance to firefighters grant program....         387
153-199         [Reserved]

                    SUBCHAPTER D--DISASTER ASSISTANCE
200             [Reserved]

201             Mitigation planning.........................         398
202-203         [Reserved]

204             Fire Management Assistance Grant Program....         404
205             [Reserved]

206             Federal Disaster Assistance for disasters 
                    declared on or after November 23, 1988..         414
207-208         [Reserved]

209             Supplemental property acquisition and 
                    elevation assistance....................         515
210-294         [Reserved]

               SUBCHAPTER E--CERRO GRANDE FIRE ASSISTANCE
295             Cerro Grande fire assistance................         523
296-299         [Reserved]

                       SUBCHAPTER F--PREPAREDNESS
300             Disaster preparedness assistance............         536
301             [Reserved]

302             Civil defense-State and local Emergency 
                    Management Assistance Program (EMA).....         537
303             [Reserved]

304             Consolidated grants to insular areas........         546
305-311         [Reserved]

312             Use of civil defense personnel, materials, 
                    and facilities for natural disaster 
                    purposes................................         547
313-320         [Reserved]

321             Maintenance of the mobilization base 
                    (Department of Defense, Department of 
                    Energy, Maritime Administration)........         550
323             Guidance on priority use of resources in 
                    immediate post attack period (DMO-4)....         553
324-325         [Reserved]

327             Policy on use of Government-owned industrial 
                    plant equipment by private industry 
                    (DMO-10A)...............................         558
328             [Reserved]

329             Use of priorities and allocation authority 
                    for Federal supply classification (FSC) 
                    common use items (DMO-12)...............         559

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330             Policy guidance and delegation of 
                    authorities for use of priorities and 
                    allocations to maximize domestic energy 
                    supplies in accordance with subsection 
                    101(c) of the Defense Production Act of 
                    1950, as amended (DMO-13)...............         561
331             Preservation of the mobilization base 
                    through the placement of procurement and 
                    facilities in labor surplus areas.......         562
332             Voluntary agreements under section 708 of 
                    the Defense Production Act of 1950, as 
                    amended.................................         563
333             [Reserved]

334             Graduated mobilization response.............         566
335-349         [Reserved]

350             Review and approval of State and local 
                    radiological emergency plans and 
                    preparedness............................         570
351             Radiological emergency planning and 
                    preparedness............................         580
352             Commercial Nuclear Power Plants: Emergency 
                    Preparedness Planning...................         586
353             Fee for services in support, review and 
                    approval of State and local government 
                    or licensee radiological emergency plans 
                    and preparedness........................         592
354             Fee for services to support FEMA'S offsite 
                    Radiological Emergency Preparedness 
                    Program.................................         600
355-359         [Reserved]

360             State assistance programs for training and 
                    education in comprehensive emergency 
                    management..............................         604
361             National earthquake hazards reduction 
                    assistance to State and local 
                    governments.............................         607
362             Criteria for acceptance of gifts, bequests, 
                    or services.............................         612
363-399         [Reserved]

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                          SUBCHAPTER A--GENERAL



             PART 0--GENERAL STATEMENTS OF POLICY [RESERVED]



PART 1--RULEMAKING; POLICY AND PROCEDURES--Table of Contents




                           Subpart A--General

Sec.
1.1  Purpose.
1.2  Definitions.
1.3  Scope.
1.4  Policy and procedures.
1.5  Rules docket.
1.6  Ex parte communications.
1.7  Regulations agendas.
1.8  Regulations review.
1.9  Regulatory impact analyses.

                  Subpart B--Procedures for Rulemaking

1.10  Initiation of rulemaking.
1.11  Advance notice of proposed rulemaking.
1.12  Notice of proposed rulemaking.
1.13  Participation by interested persons.
1.14  Additional rulemaking proceedings.
1.15  Hearings.
1.16  Adoption of a final rule.
1.17  Petitions for reconsideration.
1.18  Petition for rulemaking.

    Authority: 5 U.S.C. 551, 552, 553; 5 U.S.C. 601, et seq.; E.O. 
12291. Reorganization Plan No. 3 of 1978; E.O. 12127; E.O. 12148.

    Source: 46 FR 32584, June 24, 1981, unless otherwise noted.



                           Subpart A--General



Sec. 1.1  Purpose.

    (a) This part contains the basic policies and procedures of the 
Federal Emergency Management Agency (FEMA) for adoption of rules. These 
policies and procedures incorporate those provisions of section 4 of the 
Administrative Procedure Act (APA) (5 U.S.C. 553) which FEMA will 
follow. This part and internal FEMA Manuals implement Executive Order 
12291.
    (b) Rules which must be published are described in section 3(a) of 
the APA, 5 U.S.C. 552(a). FEMA implementation of paragraph (a) is 
contained in 44 CFR part 5, subpart B.
    (c) This part contains policies and procedures for implementation of 
the Regulatory Flexibility Act which took effect January 1, 1981.
    (d) A FEMA Manual No. 1140.1, ``The Formulation, Drafting, 
Clearance, and Publication of Federal Register Documents'' has been 
issued describing the internal procedures including policy level 
oversight of FEMA for:
    (1) Publishing the semiannual agenda of significant regulations 
under development and review;
    (2) Making initial determinations with respect to significance of 
proposed rulemaking;
    (3) Determining the need for regulatory analyses; and
    (4) Reviewing existing regulations, including the reviews required 
by the Regulatory Flexibility Act.
    (e) As the FEMA Manual deals with internal management it is not 
subject to the requirements either of 5 U.S.C. 552 or 553. Its 
provisions are not part of this rule and reference to it is informative 
only.

[46 FR 32584, June 24, 1981, as amended at 49 FR 33878, Aug. 27, 1984]



Sec. 1.2  Definitions.

    (a) Rule or regulation means the whole or a part of any agency 
statement of general applicability and future effect designed to (1) 
implement, interpret, or prescribe law or policy, or (2) describe 
procedures or practice requirements. It includes any rule of general 
applicability governing Federal grants to State and local governments 
for which the agency provides an opportunity for notice and public 
comment, except that the term rule does not include a rule of particular 
applicability relating to rates, wages, prices, facilities, appliances, 
services, or allowances therefor or to valuations, costs or accounting, 
or practices relating to such rates, wages, structures, prices, 
appliances, services, or allowances. For purposes of this part the term 
rule does not include regulations issued with respect to a military or 
foreign affairs function of the United States.

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    (b) Rulemaking means the FEMA process for considering and 
formulating the issuance, amendment or repeal of a rule.
    (c) Director means the Director, FEMA, or an official to whom the 
Director has expressly delegated authority to issue rules.
    (d) FEMA means Federal Emergency Management Agency.
    (e) Major rule means any regulation that is likely to result in:
    (1) An annual effect on the economy of $100 million or more;
    (2) A major increase in costs or prices for consumers, individual 
industries, Federal, State, or local government agencies, or geographic 
regions; or
    (3) Significant adverse effects on competition, employment, 
investment, productivity, innovation, or on the ability of United 
States-based enterprises to compete with foreign-based enterprises in 
domestic or export markets.

[46 FR 32584, June 24, 1981, as amended at 49 FR 38118, Sept. 27, 1984]



Sec. 1.3  Scope.

    (a) This part prescribes general rulemaking procedures for the 
issuance, amendment, or repeal of rules in which participation by 
interested persons is required by 5 U.S.C. 553 or other statutes, by 
Executive Order 12291, by FEMA policy, or by Sec. 1.4 of this part.
    (b) Any delegation by the Director of authority to issue rules may 
not be further redelegated, unless expressly provided for in the 
delegation.
    (c) This part does not apply to rules issued in accordance with the 
formal rulemaking provisions of the Administrative Procedure Act (5 
U.S.C. 556, 557).



Sec. 1.4  Policy and procedures.

    (a) In promulgating new regulations, reviewing existing regulations, 
and developing legislative proposals concerning regulation, FEMA, to the 
extent permitted by law, shall adhere to the following requirements:
    (1) Administrative decisions shall be based on adequate information 
concerning the need for and consequences of proposed government action;
    (2) Regulatory action shall not be undertaken unless the potential 
benefits to society for the regulation outweigh the potential costs to 
society;
    (3) Regulatory objectives shall be chosen to maximize the net 
benefits to society;
    (4) Among alternative approaches to any given regulatory objective, 
the alternative involving the least net cost to society shall be chosen; 
and
    (5) FEMA shall set regulatory priorities with the aim of maximizing 
the aggregate net benefits to society, taking into account the condition 
of the particular entities affected by regulations, the condition of the 
national economy, and other regulatory actions contemplated for the 
future.
    (b) It is the policy of FEMA to provide for public participation in 
rulemaking regarding its programs and functions, including matters that 
relate to public property, loans, grants, or benefits, or contracts, 
even though these matters are not subject to a requirement for notice 
and public comment rulemaking by law.
    (c) FEMA will publish notices of proposed rulemaking in the Federal 
Register and will give interested persons an opportunity to participate 
in the rulemaking through submission of written data, views, and 
arguments with or without opportunity for oral presentation.
    (d) In order to give the public, including small entities and 
consumer groups, an early and meaningful opportunity to participate in 
the development of rules, for a number of regulations the Director will 
employ additional methods of inviting public participation. These 
methods include, but are not limited to, publishing advance Notices of 
Proposed Rulemaking (ANPR), which can include a statement with respect 
to the impact of the proposed rule on small entities; holding open 
conferences; convening public forums or panels, sending notices of 
proposed regulations to publications likely to be read by those affected 
and soliciting comment from interested parties by such means as direct 
mail. An ANPR should be used to solicit public comment early in the 
rulemaking process for significant rules.
    (e) It is the policy of FEMA that its notices of proposed rulemaking 
are to afford the public at least sixty days for

[[Page 9]]

submission of comments unless the Director makes an exception and sets 
forth the reasons for the exception in the preamble to the notice of 
proposed rulemaking. This period shall also include any period of review 
required by the Office of Management and Budget in accordance with the 
Paperwork Reduction Act of 1980.
    (f) Unless required by statute or Executive Order, notice and public 
procedure may be omitted if the Director, for good cause, determines in 
a particular case or class of cases that notice and public procedure is 
impractical, unnecessary or contrary to the public interest and sets 
forth the reason for the determination in the rulemaking document or, 
for a class of cases, in a published rule or statement of policy. In a 
particular case, the reasons for the determination will be stated in the 
rulemaking document. Notice and public procedure may also be omitted 
with respect to statements of policy, interpretative rules, rules 
governing FEMA's organization or its own internal practices or 
procedures, or if a statute expressly authorizes omission.
    (g) A final substantive rule will be published not less than 30 days 
before its effective date unless it grants or recognizes an exemption or 
relieves a restriction or unless the rulemaking document states good 
cause for its taking effect less than 30 days after publication. 
Statements of policy and interpretative rules will usually be made 
effective on the date of publication.
    (h) This part shall not apply to any regulation that responds to an 
emergency situation, provided that, any such regulation shall be 
reported to the Director, Office of Management and Budget, as soon as is 
practicable. FEMA shall publish in the Federal Register a statement of 
the reasons why it is impracticable for the agency to follow the 
procedures of Executive Order 12291 with respect to such a rule, and the 
agency shall prepare and transmit, if needed, as soon as is practicable 
a Regulatory Impact Analysis of any such major rule.

[46 FR 32584, June 24, 1981, as amended at 49 FR 38119, Sept. 27, 1984; 
50 FR 40004, Oct. 1, 1985]



Sec. 1.5  Rules docket.

    (a) Documents which are public records and which are a part of a 
specific rulemaking procedure, including but not limited to, advance 
notices of proposed rulemaking, notices of proposed rulemaking, written 
comments addressed to the merits of a proposed rule, and comments 
received in response to notices, or withdrawals or terminations of 
proposed rulemaking, petitions for rulemaking, requests for oral 
argument in public participation cases, requests for extension of time, 
grants or denials of petitions or requests, transcripts or minutes of 
informal hearings, final rules and general notices shall be maintained 
in the Office of General Counsel. All public rulemaking comments should 
refer to the docket number which appears in the heading of the rule and 
should be addressed to the Rule Docket Clerk, Federal Emergency 
Management Agency, Office of General Counsel.
    (b) Documents which are a part of a specific rulemaking proceeding 
are public records. After a docket is established, any person may 
examine docketed material at any time during established hours of 
business and may obtain a copy of any docketed material upon payment of 
the prescribed fee. (See part 5 of this chapter.)

[46 FR 32584, June 24, 1981, as amended at 48 FR 44542, Sept. 29, 1983]



Sec. 1.6  Ex parte communications.

    In rulemaking proceedings subject only to the procedural 
requirements of 5 U.S.C. 553:
    (a) All oral communications from outside FEMA of significant 
information and argument respecting the merits of a proposed rule, 
received after notice of proposed informal rulemaking and in its course 
by FEMA or its offices and divisions or their personnel participating in 
the decision, should be summarized in writing and placed promptly in the 
Rules Docket File available for public inspection.
    (b) FEMA may conclude that restrictions on ex parte communications 
in particular rulemaking proceedings are necessitated by consideration 
of fairness or for other reasons.

[[Page 10]]



Sec. 1.7  Regulations agendas.

    (a) The FEMA semi-annual agenda called for by Executive Order 12291 
will be part of the Unified Agenda of Federal Regulations published in 
April and October of each year.
    (b) In accordance with 5 U.S.C. 605, the regulatory flexibility 
agenda required by 5 U.S.C. 602 and the list of rules, if any, to be 
reviewed pursuant to 5 U.S.C. 610 shall be included in the FEMA 
semiannual agenda described in paragraph (a) of this section.
    (c) The semiannual agenda shall, among other items, include:
    (1) A summary of the nature of each major rule being considered, the 
objectives and legal basis for the issuance of the rule, and an 
approximate schedule for completing action on any major rule for which 
the agency has issued a notice of proposed rulemaking.
    (2) The name and telephone number of a knowledgeable agency official 
for each item on the agenda; and
    (3) A list of existing regulations to be reviewed under the terms of 
the Order and a brief discussion of each such regulation.

[46 FR 32584, June 24, 1981, as amended at 49 FR 33878, Aug. 27, 1984]



Sec. 1.8  Regulations review.

    (a) As part of the semiannual agenda described in Sec. 1.7 of this 
part, FEMA will publish in the Federal Register and keep updated a plan 
for periodic review of existing rules at least within 10 years from date 
of publication of a rule as final. This includes those that have 
significant impact on a substantial number of small entities.
    (b) The purpose of the review shall be to determine whether such 
rules should be continued without change, or should be amended or 
rescinded, consistent with the stated objectives of applicable statutes, 
including minimizing any significant economic impact of the rules upon a 
substantial number of small entities.
    (c) In reviewing rules FEMA shall consider the following factors:
    (1) The continued need for the rule;
    (2) The nature, type and number of complaints or comments received 
concerning the rule from the public;
    (3) The complexity of the rule, including need for review of 
language for clarity;
    (4) The extent to which the rule overlaps, duplicates or conflicts 
with other Federal rules, and, to the extent feasible, with State and 
local governmental rules; and
    (5) The length of time since the rule has been evaluated or the 
degree to which technology, economic conditions, or other factors have 
changed in the area affected by the rule.



Sec. 1.9  Regulatory impact analyses.

    (a) FEMA shall, in connection with any major rule, prepare and 
consider a Regulatory Impact Analysis. Such analysis may be combined 
with the Regulatory Flexibility Analysis described in Secs. 1.12(f) and 
1.16(c) of this part.
    (b) FEMA shall initially determine whether a rule it intends to 
propose or to issue is a major rule and, if a major rule, shall prepare 
Regulatory Impact Analyses and transmit them, along with all notices of 
proposed rulemaking and all final rules, to the Director, Office of 
Management and Budget, as follows:
    (1) If no notice of proposed rulemaking is to be published for a 
proposed major rule that is not an emergency rule, the agency shall 
prepare only a final Regulatory Impact Analysis, which shall be 
transmitted, along with the proposed rule, to the Director, Office of 
Management and Budget, at least 60 days prior to the publication of the 
major rule as a final rule;
    (2) With respect to all other major rules, FEMA shall prepare a 
preliminary Regulatory Impact Analysis, which shall be transmitted, 
along with a notice of proposed rulemaking, to the Director, Office of 
Management and Budget, at least 60 days prior to the publication of a 
notice of proposed rulemaking, and a final Regulatory Impact Analysis, 
which shall be transmited along with the final rule at least 30 days 
prior to the publication of the major rule as a final rule;
    (3) For all rules other than major rules, FEMA shall, unless an 
exemption has been granted, submit to the Director, Office of Management 
and

[[Page 11]]

Budget, at least 10 days prior to publication, every notice of proposed 
rulemaking and final rule.
    (c) To permit each major rule to be analyzed in light of the 
requirements stated in section 2 of Executive Order 12291, each 
preliminary and final Regulatory Impact Analysis shall contain the 
following information:
    (1) A description of the potential benefits of the rule, including 
any beneficial effects that cannot be quantified in monetary terms, and 
the identification of those likely to receive the benefits;
    (2) A description of the potential costs of the rule, including any 
adverse effects that cannot be quantified in monetary terms, and the 
identification of those likely to bear the costs;
    (3) A determination of the potential net benefits of the rule, 
including an evaluation of effects that cannot be quantified in monetary 
terms;
    (4) A description of alternative approaches that could substantially 
achieve the same regulatory goal at lower cost, together with an 
analysis of this potential benefit and costs and a brief explanation of 
the legal reasons why such alternatives, if proposed, could not be 
adopted; and
    (5) Unless covered by the description required under paragraph 
(c)(4) of this section, an explanation of any legal reasons why the rule 
cannot be based on the requirements set forth in section 2 of Executive 
Order 12291.



                  Subpart B--Procedures for Rulemaking



Sec. 1.10  Initiation of rulemaking.

    Rulemaking may be initiated on the Director's motion or upon motion 
of an official to whom rulemaking authority has been delegated. 
Rulemaking may also be initiated on the petition of any interested 
person in accordance with the provisions of Sec. 1.18. Interested person 
includes a Federal, State, or local government or government agency.



Sec. 1.11  Advance notice of proposed rulemaking.

    An Advance Notice of Proposed Rulemaking will be published in the 
Federal Register and contains:
    (a) A description of the proposed new program or program changes, 
and why they are needed;
    (b) A presentation of the major policy issues involved;
    (c) A request for comments, both specific and general, on the need 
for the proposed rule and the provisions that the rule might include;
    (d) If appropriate, a list of questions about the proposal which 
seeks to bring out detailed comments;
    (e) If known, an estimate of the reporting or recordkeeping 
requirements, if any, that the rule would impose; and
    (f) The time within which comments may be submitted to the Rules 
Docket Clerk, Federal Emergency Management Agency, Washington, DC 20472.

[46 FR 32584, June 24, 1981, as amended at 48 FR 44542, Sept. 29, 1983; 
49 FR 33879, Aug. 27, 1984]



Sec. 1.12  Notice of proposed rulemaking.

    Each notice of proposed rulemaking required by statute, executive 
order, or by Sec. 1.4 will be published in the Federal Register and will 
include:
    (a) The substance or terms of the proposed rule or a description of 
the subject matter and issues involved.
    (b) A statement of how and to what extent interested persons may 
participate in the proceeding.
    (c) Where participation is limited to written comments, a statement 
of the time within which such comments must be submitted.
    (d) A reference to the legal authority under which the proposal is 
issued.
    (e) In a proceeding which has provided Advance Notice of Proposed 
Rulemaking, an analysis of the principal issues and recommendations 
raised by the comments, and the manner in which they have been addressed 
in the proposed rulemaking.
    (f)(1) A brief statement setting forth the agency's initial 
determination whether the proposed rule is a major rule, together with 
the reasons underlying that determination;
    (2) For each proposed major rule, a brief summary of the agency's 
preliminary Regulatory Impact Analysis; and
    (3) The initial regulatory flexibility analysis or a summary thereof 
as required by the Regulatory Flexibility

[[Page 12]]

Act (5 U.S.C. 601, et seq.), or a certification that the rule, if 
promulgated, will not have a significant economic impact on a 
significant number of small entities pursuant to 5 U.S.C. 605. Such 
certification may be made by any FEMA official with rulemaking 
authority.
    (g) It is desirable, but not required, that the notices contain a 
target deadline for issuance of the regulation, and that to the extent 
feasible, this deadline be met.
    (h) If the rule is one which contains a requirement for collection 
of information, a copy of the rule will be furnished OMB in accordance 
with 44 U.S.C. 3504(h).

[46 FR 32584, June 24, 1981, as amended at 49 FR 38119, Sept. 27, 1984]



Sec. 1.13  Participation by interested persons.

    (a) Unless the notice otherwise provides, any interested person may 
participate in rulemaking proceedings by submitting written data, views 
or arguments within the comment time stated in the notice. In addition, 
the Director may permit the filing of comments in response to original 
comments.
    (b) In appropriate cases, the Director may provide for oral 
presentation of views in additional proceedings described in Sec. 1.14.
    (c) Copies of regulatory flexibility analyses shall be furnished the 
Chief Counsel for Advocacy of the Small Business Administration.



Sec. 1.14  Additional rulemaking proceedings.

    The Director may invite interested persons to present oral 
arguments, appear at informal hearings, or participate in any other 
procedure affording opportunity for oral presentation of views. The 
transcript or minutes of such meetings, as appropriate, will be kept and 
filed in the Rules Docket.



Sec. 1.15  Hearings.

    (a) The provisions of 5 U.S.C. 556 and 557, which govern formal 
hearings in adjudicatory proceedings, do not apply to informal 
rulemaking proceedings described in this part. When opportunity is 
afforded for oral presentation, the informal ``hearing'' is a 
nonadversary, fact-finding proceeding. Any rule issued in a proceeding 
under this part in which a hearing is held need not be based exclusively 
on the record of such hearing.
    (b) When a hearing is provided, the Director will designate a 
representative to conduct the hearing.



Sec. 1.16  Adoption of a final rule.

    (a) All timely comments will be considered in taking final action on 
a proposed rule. Each preamble to a final rule will contain a short 
analysis and evaluation of the relevant significant issues set forth in 
the comments submitted, and a clear concise statement of the basis and 
purpose of the rule.
    (b) When determined necessary by the Director in accordance with the 
provisions of 1 CFR 18.12, the preamble shall contain the following 
information:
    (1) A discussion of the background and major issues involved;
    (2) In the case of a final rule, any significant differences between 
it and the proposed rule;
    (3) A response to substantive public comments received; and
    (4) Any other information the Director considers appropriate.
    (c) At the time of publication of the final rule, a statement shall 
be published describing how the public may obtain copies of the final 
regulatory flexibility analysis which must be prepared in accordance 
with 5 U.S.C. 604 unless the procedure for waiver or delay of completion 
under 5 U.S.C. 608 is followed.
    (d) Before approving any final major rule FEMA will:
    (1) Make a determination that the regulation is clearly within the 
authority delegated by law and consistent with congressional intent and 
include in the Federal Register at the time of promulgation a memorandum 
of law supporting that determination; and
    (2) Make a determination that the factual conclusions upon which the 
rule is based have substantial support in the agency record, viewed as a 
whole, with full attention to public comments in general and the 
comments of persons directly affected by the rule in particular.

[[Page 13]]



Sec. 1.17  Petitions for reconsideration.

    Petitions for reconsideration of a final rule will not be 
considered. Such petitions, if filed, will be treated as petitions for 
rulemaking in accordance with Sec. 1.18.



Sec. 1.18  Petition for rulemaking.

    (a) Any interested person may petition the Director for the 
issuance, amendment, or repeal of a rule. For purposes of this section 
the term person includes a Federal, State or local government or 
government agency. Each petition shall:
    (1) Be submitted to the Rules Docket Clerk;
    (2) Set forth the substance of the rule or amendment proposed or 
specify the rule sought to be repealed or amended;
    (3) Explain the interest of the petitioner in support of the action 
sought; and
    (4) Set forth all data and arguments available to the petitioner in 
support of the action sought.
    (b) No public procedures will be held directly on the petition 
before its disposition. If the Director finds that the petition contains 
adequate justification, a rulemaking proceeding will be initiated or a 
final rule will be issued as appropriate. If the Director finds that the 
petition does not contain adequate justification, the petition will be 
denied by letter or other notice, with a brief statement of the ground 
for denial. The Director may consider new evidence at any time; however, 
repetitious petitions for rulemaking will not be considered.



PART 2--ORGANIZATION, FUNCTIONS, AND DELEGATIONS OF AUTHORITY--Table of Contents




    Subpart A--Organization, Functions, and Delegations of Authority

                                 General

Sec.
2.1  Purpose.
2.2  Organization of FEMA.
2.3  Exercise of authority.
2.4  General limitations and reservations.
2.5  Delegations not included.
2.6  Redelegation of authority.
2.7  General delegations.
2.8  Designation of subordinates to act.

                              FEMA Offices

2.11  Office of the Director.
2.12  Office of the Inspector General.
2.13  Office of the General Counsel.
2.14  Office of Congressional and Governmental Affairs.
2.15  Office of Emergency Information and Public Affairs.
2.16  Office of Policy and Assessment.
2.17  Office of Human Resources Management.
2.18  Office of Equal Rights.
2.19  Office of Financial Management.
2.20  Office of Regional Operations.
2.21  Ombudsman. [Reserved]
2.22  Regional Offices.

                             Administrations

2.31  Federal Insurance Administration.
2.32  United States Fire Administration.

                              Directorates

2.41  Mitigation Directorate.
2.42  Preparedness, Training, and Exercises Directorate.
2.43  Response and Recovery Directorate.
2.44  Operations Support Directorate.

Subpart B [Reserved]

                     Subpart C--OMB Control Numbers

2.80  Purpose.
2.81  OMB control numbers assigned to information collections.

    Authority: 5 U.S.C. 552; Reorganization Plan No. 3 of 1978, 5 U.S.C. 
App. 1; E.O. 12127, 3 CFR, 1979 Comp., p. 376; E.O. 12148, as amended, 3 
CFR, 1979 Comp., p. 412.

    Source: 59 FR 26133, May 19, 1994, unless otherwise noted.



    Subpart A--Organization, Functions, and Delegations of Authority

                                 General



Sec. 2.1  Purpose.

    This part describes the organization of the Federal Emergency 
Management Agency (FEMA), and the general course and method by which its 
functions are administered. It provides for the exercise by officials of 
FEMA of authorities that are vested in the Director specifically by 
statute, as head of an agency, or as a consequence of a law authorizing 
such exercise. It also provides for exercise of authorities that have 
been transferred to the Director by Reorganization Plan or delegated to

[[Page 14]]

the Director by Executive Order or other appropriate document.



Sec. 2.2  Organization of FEMA.

    (a) The Director is the head of FEMA. All authorities of FEMA are 
either vested in the Director by statute or have been transferred to or 
delegated to the Director. Notwithstanding any delegation by the 
Director to a subordinate officer of FEMA, the Director may also 
exercise such authority.
    (b) FEMA is composed of the Offices, Administrations, and 
Directorates, the responsibilities of which are described in Secs. 2.11 
through 2.44.
    (c) The Executive Board of FEMA consists of the senior managers 
appointed by the President and confirmed by the Senate as well as 
representatives of the Regional Directors and other senior managers as 
the Director shall designate from time to time. The principal function 
of the Executive Board is to review the Agency's overall direction, 
performance, and policies. The Executive Board will hold regular 
meetings on a quarterly basis and may hold special meetings at the 
discretion of the Director.



Sec. 2.3  Exercise of authority.

    Exercise of the authority delegated by this subpart or redelegated 
pursuant to this subpart is subject to the direction, control, and 
authority of the Director, and is governed by applicable laws, Executive 
Orders, Federal agency regulations or issuances applicable to FEMA. Such 
exercise is also governed by regulations issued by FEMA, and by 
policies, objectives, directives, manuals, instructions, plans, 
standards, procedures and limitations issued from time to time by or on 
behalf of the Director.



Sec. 2.4  General limitations and reservations.

    (a) All powers and duties not delegated by the Director in this 
subpart, nor otherwise provided for in Title 44, are reserved to the 
Director.
    (b) The following specific authorities are reserved to the Director:
    (1) Certain authorities relating to reporting to Congress and the 
President including those under:
    (i) Section 16 of the Federal Fire Prevention and Control Act of 
1974 (15 U.S.C. 2215);
    (ii) Section 1320 of the National Flood Insurance Act (42 U.S.C. 
4027);
    (iii) Section 1234 of the National Housing Act (12 U.S.C. 1749bbb-
10d);
    (iv) Section 406 of the Federal Civil Defense Act of 1950, as 
amended (50 U.S.C. App. 2258);
    (v) Section 5(b)(1)(D) of the Earthquake Hazards Reduction Act of 
1977 (42 U.S.C. 7704(b)(1)(D)); and
    (vi) Section 2-105 of Executive Order 12148 of July 20, 1979.
    (2) Authorities connected with declaration of major disasters and 
emergencies, and with delegations to other agencies including:
    (i) The authority to make recommendations to the President 
concerning the determination that an emergency exists pursuant to 
section 501 of the Robert T. Stafford Disaster Relief and Emergency 
Assistance Act (42 U.S.C. 5191);
    (ii) The authority to make recommendations to the President 
concerning the issuance of a major disaster declaration pursuant to 
section 401 of the Robert T. Stafford Disaster Relief and Emergency 
Assistance Act (42 U.S.C. 5170); and
    (iii) Provision is made in Sec. 2.11 of this part for the Deputy 
Director to exercise the authorities set out in this paragraph when the 
Director is unavailable due to illness or incapacity.
    (3) Authorities relating to voluntary agreements under section 708 
of the Defense Production Act (50 U.S.C. App. 2158) delegated to the 
Director in section 501 of Executive Order 10480.
    (4) Authority to make the determination concerning Federal operation 
of the program and the report to Congress under section 1340 of the 
National Flood Insurance Act (42 U.S.C. 4071).
    (5) Authority to appoint Federal Coordinating Officers under section 
302 of the Robert T. Stafford Disaster Relief and Emergency Assistance 
Act (42 U.S.C. 5143).



Sec. 2.5  Delegations not included.

    Other delegations of authority have been and will be made in other 
FEMA regulations and by internal FEMA directives that concern internal 
FEMA

[[Page 15]]

policies and operations. These are valid delegations. Without in any way 
limiting the number of those delegations, and without describing all of 
them in this listing which is not complete, they include those:
    (a) Delegations concerning Federal personnel matters such as those 
concerning appointing authority, compensation, and so on. These are 
considered internal personnel rules and are not published in this 
chapter but are published in a FEMA Instruction.
    (b) Delegation to the General Counsel as Ethics Counselor under 5 
CFR part 2638.
    (c) Delegations under parts 5 and 6 of this subchapter relating to 
the Freedom of Information Act and Privacy Act.
    (d) Delegations to several officials relating to authentication of 
records under 44 CFR 5.82.
    (e) Delegations to the General Counsel and Chief Financial Officer 
with respect to claims under part 11 of this subchapter.
    (f) Delegations to classify information originally as Secret or 
Confidential.
    (g) Delegations to make certifications and findings under the 
Regulatory Flexibility Act, 5 U.S.C. 601-612; the National Environmental 
Policy Act, 42 U.S.C. 4321-4335; the Paperwork Reduction Act, 44 U.S.C. 
3501-3520; E.O. 12612 of October 26, 1987, 3 CFR, 1987 Comp., p. 252; 
E.O. 12778 of October 23, 1991, 3 CFR, 1991 Comp., p. 359; E.O. 12866 of 
September 30, 1993, 3 CFR, 1993 Comp., p. 638; and any other 
certifications or findings required by existing or future laws, 
executive orders, or other authorities;
    (h) Delegations concerning environmental matters under part 10 of 
this subchapter; and
    (i) Delegations concerning floodplain management and wetlands 
protection matters under part 9 of this subchapter.



Sec. 2.6  Redelegation of authority.

    (a) It is FEMA's policy that the authorities delegated by this 
chapter should, whenever appropriate, be redelegated to the manager or 
official who has immediate responsibility for the action. Authority 
delegated by this chapter, unless otherwise specifically provided, may 
be redelegated in whole or in part provided any such redelegation is in 
writing and approved by the officer to whom the authority is initially 
delegated. This restriction does not apply to a temporary redelegation 
of authority to a principal deputy or first assistant to be exercised 
during the absence of the delegating official.
    (b) The authority to issue regulations having general applicability 
and future effect designed to implement, interpret or prescribe law or 
policy, and which are to be published in the Federal Register, may be 
delegated or redelegated only to positions for which it is required that 
the incumbent be confirmed by the United States Senate. This does not 
prohibit an acting official from issuing regulations. This paragraph 
does not apply to rules issued under parts 64, 65, 67, or 70 of this 
title.



Sec. 2.7  General delegations.

    (a) This section sets forth general delegations to the officers or 
employees named in paragraph (b) of this section.
    (b) The officers authorized to exercise authorities in paragraph (c) 
of this section are:
    (1) Deputy Director;
    (2) Chief of Staff;
    (3) Inspector General;
    (4) General Counsel;
    (5) Director of the Office of Congressional and Governmental 
Affairs;
    (6) Director of the Office of Emergency Information and Public 
Affairs;
    (7) Director of the Office of Policy and Assessment;
    (8) Director of the Office of Human Resources Management;
    (9) Director of the Office of Equal Rights;
    (10) Chief Financial Officer;
    (11) Director of the Office of Regional Operations;
    (12) Regional Directors;
    (13) Federal Insurance Administrator;
    (14) United States Fire Administrator;
    (15) Associate Director for Mitigation;
    (16) Associate Director for Preparedness, Training, and Exercises;

[[Page 16]]

    (17) Associate Director for Response and Recovery; and
    (18) Associate Director for Operations Support.
    (c) Each officer named in paragraph (b) of this section is 
authorized to:
    (1) Approve official travel as temporary duty travel on official 
business and allowable expenses incidental thereto for employees of 
their respective organizational units, in accordance with the Federal 
Travel Regulations; except that travel to and from points outside of the 
United States is subject to prior notification to the Director and 
foreign travel (i.e., travel outside the United States and its insular 
areas) is subject to prior approval of the Director. However, no officer 
or employee may approve his or her own travel. Travel of officers named 
in paragraph (b) of this section is approved by the Deputy Director or 
the Chief of Staff, except that travel of a Regional Director may be 
approved by the Deputy Regional Director for that Region.
    (2) Approve travel advances of funds through disbursing officers or 
imprest fund cashiers for employees of the respective organizational 
units who are entitled to per diem or mileage allowance or subsistence 
expenses in accordance with the Federal Travel Regulations.
    (3) Approve travel vouchers for employees of their respective 
organizational units.
    (4) Approve travel by employees of their respective organizations at 
the invitation and expense of parties outside of the Federal Government, 
with the concurrence of the Designated Agency Ethics Officer (DAEO) or a 
Deputy DAEO;
    (5) Approve funding requisitions;
    (6) As appropriate, issue final agency decisions on individual or 
class complaints of discrimination because of race, color, national 
origin, religion, sex, disability, age, or economic status.
    (7) Promulgate internal guidance to cover areas of assigned 
responsibilities.
    (8) Approve training costing less than $2500 (all expenses) or 
training of less than 80 hours in duration, whichever is more 
restrictive, except that this authority does not include authority to 
approve training involving the use of facilities of foreign governments 
or international organizations, which must be approved by the Director; 
or the authority to approve acceptance by employees of contributions or 
awards from non-Government organizations, whether in cash or in kind, 
which must be approved by the Director.
    (9) Adjust working hours for individual employees when there is 
special justification therefor that it is in the interest of FEMA or to 
accommodate individual needs of employees for legitimate reasons where 
the work of the agency will not be impeded.
    (10) Approve incentive awards to subordinates, Public Service 
Awards, cash awards of $1,500 or less for individuals and quality 
within-grade salary increases.
    (11) Enter into and administer funded and unfunded memoranda of 
understanding with respect to assigned duties.
    (12) Classify documents derivatively, based on the original 
classification by other Federal agencies or the Director.



Sec. 2.8  Designation of subordinates to act.

    Each officer named in Sec. 2.7(b) shall:
    (a) Submit to the Director, for approval, a list of three or more 
subordinates to act for such officer during his or her absence; and
    (b) Ensure that each Division Director, Branch Chief, or head of any 
other organizational unit under that officer's authority designate one 
or more subordinate employees to serve as acting head of the unit during 
the absence of the head of a unit or during a vacancy in the position.

                              FEMA Offices



Sec. 2.11  Office of the Director.

    The Deputy Director is the first assistant to the Director under the 
Vacancies Act, 5 U.S.C. 3341 et seq., and acts in place of the Director 
when the Director is not available because of illness or incapacity. The 
Deputy Director is the Chief Operating Officer of the Agency, with the 
duties and powers set forth in Presidential Memorandum of October 1, 
1993, ``Implementing Reform in the Executive Branch.'' The Deputy 
Director is authorized to exercise the

[[Page 17]]

duties and powers of the Director as necessary to carry out the 
responsibilities of the Chief Operating Officer and to act in place of 
the Director in the Director's unavailability.



Sec. 2.12  Office of the Inspector General.

    (a) Mission. The Office of the Inspector General serves FEMA as an 
independent unit to promote economy, efficiency, and effectiveness; to 
prevent waste, fraud, and abuse; and to keep the Congress and the 
Director fully informed on these subjects.
    (b) Functions. The principal functions of the Office of the 
Inspector General are:
    (1) Performance of all audit functions relating to programs and 
operations of FEMA;
    (2) Inspection of agency activities to identify actual or potential 
fraud, waste, abuse, or mismanagement and to develop recommendations for 
corrective action;
    (3) Investigation of allegations of illegal, unethical, or other 
activities that may lead to civil or criminal liability on the part of 
FEMA or its employees, contractors, or program participants; and
    (4) Referral of potential criminal prosecutions to the Department of 
Justice, under 28 U.S.C. 535.
    (c) Authority. The position of Inspector General of FEMA is created 
by statute (The Inspector General Act of 1978, as amended, 5 U.S.C. App. 
3 Secs. 1-15). The Inspector General is authorized to exercise the 
duties and powers set forth in that statute.



Sec. 2.13  Office of the General Counsel.

    (a) Mission. The Office of the General Counsel renders legal advice 
and assistance on all matters related to Agency programs and operation, 
and conducts the Agency's ethics program and Freedom of Information Act/
Privacy Act program.
    (b) Functions. The principal functions of the Office of the General 
Counsel are:
    (1) Rendering legal opinions and advice with respect to the duties, 
powers, and responsibilities of the Director, FEMA, and other Agency 
officers and employees and the applications of statutes, rules and 
regulations, other administrative issuances, and judicial precedents to 
Agency operations;
    (2) Review for legal sufficiency of all Agency documents requiring 
legal interpretation or opinion.
    (3) Establishment of Agency policy for and conduct of all 
appearances on behalf of FEMA in litigation or administrative 
proceedings and hearings;
    (4) Liaison to the Department of Justice except when otherwise 
provided by the Office of the Inspector General.
    (5) Coordination of the FEMA regulatory program, including liaison 
to the Office of Management and Budget and the Office of the Federal 
Register;
    (6) Operation of the FEMA legislative reference program, including 
liaison to the Office of Management and Budget and allied legislative 
proposals; and
    (7) Operation of FEMA's ethics program and Freedom of Information 
Act and Privacy Act program.
    (c) Delegated authorities. The General Counsel is authorized to 
exercise the duties and powers of the Director to:
    (1) Accept service of process on behalf of the Agency, and on behalf 
of its officials and employees in connection with performance of their 
official duties;
    (2) Determine the agency's position with respect to litigation and 
refer matters directly to the Attorney General for prosecution or for 
initiation of litigation;
    (3) Determine the government's position in connection with any 
dispute before a Board of Contract Appeals, including the authority to 
settle or adjust any such claim.
    (4) Consider, compromise and settle tort claims against FEMA, but 
any award, compromise, or settlement of more than $25,000 requires the 
prior written approval of the Attorney General or designee;
    (5) Serve as the Designated Agency Ethics Officer;
    (6) Make technical corrections to all FEMA documents, including 
rules and regulations submitted to the Federal Register;
    (7) Consider, compromise and settle personnel claims of less than 
$15,000 against FEMA;
    (8) Waive claims of the United States against a person arising out 
of pay and allowances to an employee of FEMA in amounts of not more than 
$1,500, and in

[[Page 18]]

accordance with the requirements of 5 U.S.C. 5584, and the implementing 
regulations and standards of the Comptroller General; and
    (9) Enter into ratification agreements at the direction of the 
Department of Justice in order to insure that FEMA's subrogation 
interest will be represented.



Sec. 2.14  Office of Congressional and Governmental Affairs.

    (a) Mission. The Office of Congressional and Governmental Affairs 
coordinates FEMA's ongoing emergency management relationships with the 
Congress, public interest groups, and State and local organizations.
    (b) Functions. The principal functions of the Office of 
Congressional and Governmental Affairs are:
    (1) Liaison with Congress, the Office of Management and Budget, and 
the White House on legislative matters directly affecting FEMA;
    (2) Advising the Director and other FEMA officials on actions 
pending or anticipated in Congress;
    (3) Liaison with Federal Coordinating Officers following 
declarations of disasters or emergencies under the Stafford Act, on 
matters requiring coordination with Congress; and
    (4) Liaison with FEMA's constituencies on FEMA legislative matters.
    (c) Delegated authorities. The Director of the Office of 
Congressional and Governmental Affairs is authorized to exercise the 
duties and powers of the Director in the Director's capacity as agency 
head in support of the functions listed in paragraph (b) of this 
section.



Sec. 2.15  Office of Emergency Information and Public Affairs.

    (a) Mission. The Office of Emergency Information and Public Affairs 
informs the public about FEMA's programs and activities, both in time of 
disaster and in other times.
    (b) Functions. The principal functions of the Office of Emergency 
Information and Public Affairs are:
    (1) Gathering and dissemination of information about FEMA's programs 
and activities;
    (2) Liaison with news media;
    (3) Management of Joint Information Centers during disasters.
    (c) Delegated authorities. The Director of the Office of Emergency 
Information and Public Affairs is authorized to exercise the duties and 
powers of the Director in the Director's capacity as agency head as set 
forth in paragraph (b) of this section.



Sec. 2.16  Office of Policy and Assessment.

    (a) Mission. The Office of Policy and Assessment manages and 
facilitates policy development, strategic planning, planning, 
performance standards and assessment, innovation, and organizational 
development to achieve FEMA's overall mission.
    (b) Functions. The principal functions of the Office of Policy and 
Assessment are:
    (1) Facilitation of the development and implementation of Agency 
policy, including systematic review and evaluation of that policy;
    (2) Development and coordination of FEMA's strategic planning 
process;
    (3) Development of standards and mechanisms for evaluation of Agency 
performance;
    (4) Development and implementation of a system for identifying 
shortfalls in Agency programs and performance and for monitoring 
progress towards their remediation;
    (5) Oversight of FEMA's implementation of the Government Performance 
and Results Act of 1993, Pub. L. 103-62, 107 Stat. 285.
    (6) Oversight of implementation of FEMA's environmental 
responsibilities;
    (7) Support of the FEMA Executive Board;
    (8) Oversight of, and provision of guidance for, FEMA's renewal and 
participation in the Reinvention Laboratory process; and
    (9) Facilitating institutional change and innovation.
    (c) Delegated authorities. The Director of the Office of Policy and 
Assessment is authorized to exercise the duties and powers of the 
Director in the Director's capacity as agency head in support of the 
functions listed in paragraph (b) of this section.

[[Page 19]]



Sec. 2.17  Office of Human Resources Management.

    (a) Mission. The Office of Human Resources Management provides and 
maintains a workforce capable of carrying out FEMA's mission.
    (b) Functions. The principal functions of the Office of Human 
Resources Management are:
    (1) Administration of FEMA's classification and position management 
programs;
    (2) Recruitment and placement of employees;
    (3) Administration of compensation and leave programs;
    (4) Management of FEMA's disaster personnel program;
    (5) Administration of workforce and workplace programs;
    (6) Management of FEMA's labor relations, employee relations, and 
employee benefit programs;
    (7) Administration of performance management and incentive awards 
programs;
    (8) Establishment and maintenance of personnel records; and
    (9) Coordination of affirmative employment programs with the Office 
of Equal Rights and support of FEMA's Offices, Administrations, and 
Directorates in meeting their affirmative actions goals.
    (c) Delegated authorities. The Director of the Office of Human 
Resources Management is authorized to exercise the duties and powers of 
the Director in the Director's capacity as agency head in support of the 
functions listed in paragraph (b) of this section.



Sec. 2.18  Office of Equal Rights.

    (a) Mission. The Office of Equal Rights assists management in 
fulfilling its responsibilities to ensure Equal Rights for all employees 
and applicants for employment, and to guarantee protection for the civil 
rights of every American receiving assistance from FEMA.
    (b) Functions. The principal functions of the Office of Equal Rights 
are:
    (1) Development, in coordination with Agency management, of multi-
year Affirmative Employment Plans and annual updates covering women, 
minority group members, and persons with disabilities;
    (2) Training regarding Equal Rights and Civil Rights and 
Responsibilities;
    (3) Investigation and non-adjudicatory resolution of complaints of 
discrimination and referral of unresolved complaints to the Equal 
Employment Opportunity Commission or the Department of Justice; and
    (4) Ensuring compliance with Civil Rights guidance in FEMA's 
programs and operations.
    (c) Delegated authorities. The Director of the Office of Equal 
Rights is authorized to exercise the duties and powers of the Director 
as set forth in:
    (1) E.O. 12336, as amended;
    (2) E.O. 12250;
    (3) E.O. 12067, as amended;
    (4) E.O. 11478, as amended;
    (5) E.O. 11141; and
    (6) E.O. 11063, as amended.



Sec. 2.19  Office of Financial Management.

    (a) Mission. The Office of Financial Management promotes sound 
financial management and accountability throughout the Agency by 
providing financial guidance, information, and services to FEMA 
management, its employees, and the Agency's customers.
    (b) Functions. This office reports directly to the Director of FEMA 
regarding financial management matters and is headed by the Chief 
Financial Officer. The principal functions of the Office of Financial 
Management are:
    (1) Oversight of all financial management activities relating to the 
programs and operations of the Agency, including fund manager for all 
Agency funds;
    (2) Development, operation, and maintenance of an integrated Agency 
accounting and financial management system, including internal and 
external financial reporting;
    (3) Oversight of the Agency's internal control guidance and review 
program;
    (4) Direction, management, and provision of policy guidance and 
oversight of Agency financial management personnel, activities, and 
operations;
    (5) Preparation of the annual report described in 31 U.S.C. 
902(a)(6) to the Director of FEMA and to the Office of Management and 
Budget;
    (6) Oversight of and responsibility for the formulation and 
execution of the

[[Page 20]]

Agency's budget and accounts for actual expenditures;
    (7) Preparation and submission of timely performance reports to the 
Director of FEMA and operating units;
    (8) Review, on a biennial basis, of the fees, royalties, rents, and 
other charges imposed by the Agency for services and things of value it 
provides, and recommendation of revision of those charges to reflect 
costs incurred by the Agency in providing those services and things of 
value.
    (c) Authority. The position of Chief Financial Officer was created 
by statute (Agency Chief Financial Officers Act, as amended, 31 U.S.C. 
901-1114, 3511-3521). The Chief Financial Officer is authorized to 
exercise the duties and powers set forth in that statute. The Chief 
Financial Officer is specifically authorized to:
    (1) Supervise the activities and functions of the Office of the 
Financial Management and oversee all financial management activities 
relating to the programs and operations of the Agency.
    (2) Direct, manage, and provide policy guidance and oversight of the 
Agency financial management personnel, activities and operations.
    (3) Establish and maintain an integrated Agency accounting and 
financial management system, including financial reporting and internal 
controls, that--
    (i) Complies with applicable accounting principles, standards, and 
requirements and standards prescribed by the Office of Management and 
Budget, the General Accounting Office, and the Department of the 
Treasury;
    (ii) Provides for complete, reliable and timely information, that is 
prepared on a uniform basis, and that is responsive to the financial 
management needs of the Agency; and,
    (iii) Complies with any other requirements applicable to such 
systems.
    (4) Prepare and submit a financial statement that conforms to the 
requirements of 31 U.S.C. 902 and 3515. Develop and implement the 5-year 
financial management plan as required by 31 U.S.C. 902(a)(5).
    (5) Develop the Agency's financial management plans and budgets, and 
review legislative proposals and other programmatic proposals to provide 
advice to the Director on the financial implications of such proposals.
    (6) Develop and implement Agency asset management systems, including 
systems for cash management, credit management, debt collection, and 
property and inventory management and control.
    (7) Review on a biennial basis the fees, royalties, rents and other 
charges imposed by the Agency for services and things of value it 
provides, and make recommendations to the Director on revising those 
charges to reflect actual costs incurred by the Agency in providing 
those services and things of value. Premiums and other policy holder 
charges that relate to the issuance of policies (National Flood 
Insurance and Crime Insurance programs) are set by the Federal Insurance 
Administrator pursuant to Federal law and regulation.
    (8) Develop, operate and maintain an Administrative Fund Control 
System that provides, for accurate and timely data on the status of each 
account. This Administrative Fund Control System shall comply with 
appropriate statutory requirements and regulations issued by General 
Accounting Office, Office of Management and Budget, the Department of 
the Treasury, and other central administrative agencies.
    (9) Establish and maintain the appropriate accounts designated by 
the Department of the Treasury, the General Accounting Office, and 
Office of Management and Budget and such subsidiary records as may be 
necessary for accounting, audit and management purposes. Establish and 
maintain controls for appropriations and other special limitations 
required by law. Maintain reliable accounting records that will be the 
basis for preparing and supporting the budget requests of the Agency, 
controlling the execution of the budget and providing financial 
information required by law and regulation.
    (10) Oversee the implementation of internal control systems that 
conform with rules, circulars, and other directives issued by General 
Accounting Office, Office of Management and Budget, and the Department 
of the Treasury. Report to the Director, as required by

[[Page 21]]

law and regulation, whether the Agency's internal control systems and 
other financial systems and processes comply with applicable law and 
regulation.
    (11) Develop and implement administrative standards and cost 
principles for the Agency's assistance programs in conformity with 
rules, circulars, and other directives that are issued by the General 
Accounting Office, the Office of Management and Budget, and the 
Department of the Treasury.
    (12) Develop and maintain procedures for approving requisitions for 
disbursing funds, reports of current accounts rendered by disbursing 
officers, and other financial and accounting documents involving FEMA, 
the General Accounting Office, the Department of the Treasury, and the 
Office of Management and Budget.
    (13) Certify to the General Accounting Office any charge against any 
officer or agent entrusted with public property, arising from any loss 
and accruing by this person's fault, to the Government as to the 
property so entrusted to this person.
    (14) Approve all expenditures and receipt all vouchers and other 
documents necessary to carry out FEMA's appropriations and programs.
    (15) Certify that all required documents, information and approvals 
respecting fiscal transactions are present; verify or cause to be 
verified the accuracy of the financial computations, the consistency of 
the information included in the various documents; and determine, or 
cause to be determined, that the financial transactions of the Agency 
are in strict accordance with the law, regulations and decisions.
    (16) Authorize officers and employees to certify vouchers.
    (17) Receive and credit amounts received to the applicable 
appropriation of FEMA or to the miscellaneous receipts account.
    (18) Request cashier designation and resolution from the Department 
of the Treasury, and designate cashiers to serve in FEMA.
    (19) Approve invitational travel for the Office of Financial 
Management.
    (20) Have access to records and documents as required by 31 U.S.C. 
902(b) (1)(A), (1)(B), and (1)(C). Access to records and documents is 
subject to the limitations in 31 U.S.C. 902(b)(2).



Sec. 2.20  Office of Regional Operations.

    (a) Mission. The Office of Regional Operations coordinates FEMA's 
policies, programs, and administrative and management guidance with 
Regional Directors and ensures that regional implementation is 
consistent with the Director's goals.
    (b) Functions. The principal functions of the Office of Regional 
Operations are:
    (1) Liaison between the Regional Directors and the Director, 
Associate Directors, Administrators, and Office Directors;
    (2) Advising the Director, Associate Directors, Administrators, and 
Office Directors on regional matters; and
    (3) Providing guidance to Regional Directors on policy, programs, 
operations, and administrative matters.
    (c) Delegated authorities. The Director of the Office of Regional 
Operations is authorized to exercise the duties and powers of the 
Director in the Director's capacity as agency head in support of the 
functions listed in paragraph (b) of this section.



Sec. 2.21  Ombudsman. [Reserved]



Sec. 2.22  Regional Offices.

    (a) Mission. The Regional Offices implement FEMA's policies and 
programs at the regional level.
    (b) Functions. The principal functions of the Regional Offices are:
    (1) Liaison, within the regions, with other Federal agencies, State 
and local governments, voluntary and other private organizations, and 
the public;
    (2) Recommendations to the Director on implementation of policy and 
improvement of the administration of FEMA's programs;
    (3) Administration of Comprehensive Cooperative Agreements, grants, 
and other financial assistance to State and local governments;
    (4) Response to disasters and emergencies declared under the 
Stafford Act, through Regional Response Teams;
    (5) Recovery activities under the Stafford Act;

[[Page 22]]

    (6) Implementation of floodplain management aspects of the National 
Flood Insurance Program;
    (7) Management of training and field exercises; and
    (8) Technical assistance to Federal agencies, State and local 
governments, and voluntary and other private organizations regarding 
emergency response planning, preparedness, mitigation, response, and 
recovery.
    (c) Delegated authorities. In general, Regional Directors are 
authorized, within their respective regions, to exercise the duties and 
powers of the Administrators and Associate Directors as set forth in 
Secs. 2.32 through 2.44. However, the authorities of the Earthquake 
Hazards Reduction Act of 1977, as amended, 42 U.S.C. 7701 et seq., are 
not delegated to Regional Directors (except for the authority of 42 
U.S.C. 7704(b)(2)(A)(i), which is delegated). In addition, the 
authorities of the Federal Insurance Administrator as set forth in 
Sec. 2.31 are not delegated to the Regional Directors.

                             Administrations



Sec. 2.31  Federal Insurance Administration.

    (a) Mission. The Federal Insurance Administration markets, issues, 
and services insurance policies under the National Flood Insurance 
Program (NFIP) and the Federal Crime Insurance Program (FCIP), with 
assistance from private insurance companies and servicing contractors.
    (b) Functions. The principal functions of the Federal Insurance 
Administration are:
    (1) Establishment of regulations, policy guidelines, standard 
contracts of insurance, and insurance rates for the NFIP and FCIP;
    (2) Establishment of policy, plans, and procedures for evaluation, 
payment, and review of insurance claims;
    (3) Oversight of servicing contracts for the NFIP and FCIP and the 
issuance and servicing of flood insurance policies by Write-Your-Own 
(WYO) carriers;
    (4) Studies of the costs and feasibility of proposed extensions of 
the National Flood Insurance Program or of the proposed establishment of 
Federal insurance programs for other natural hazards; and
    (5) Administration of the National Flood Insurance Fund and National 
Insurance Development Fund.
    (c) Delegated authorities. The Federal Insurance Administrator is 
authorized to exercise the duties and powers of the Director as set 
forth in section 1-104 of E.O. 12127 insofar as it pertains to the 
marketing, issuance, and servicing of insurance under the NFIP and FCIP.



Sec. 2.32  United States Fire Administration.

    (a) Mission. The United States Fire Administration works to reduce 
deaths, injuries, and property loss caused by fires in the United 
States.
    (b) Functions. The principal functions of the United States Fire 
Administration are:
    (1) Education of the public about fire problems and high fire risk 
behaviors;
    (2) Providing training and technical assistance to fire and 
emergency services providers in incident response, mitigation and 
management;
    (3) Collection and analysis of fire incident information;
    (4) Investigation of technologies, equipment, and strategies for 
fire and emergency services providers;
    (5) Coordination with State and local fire and emergency agencies 
concerning arson investigation and mitigation, use of building and fire 
codes, fire protection and multi-agency cooperation; and
    (6) Management and operation of the National Emergency Training 
Center, Emmitsburg, Maryland.
    (c) Delegated authorities. The United States Fire Administrator is 
authorized to exercise the duties and powers of the Director as set 
forth in section 1-103 of E.O. 12127.

                              Directorates



Sec. 2.41  Mitigation Directorate.

    (a) Mission. The Mitigation Directorate administers programs to 
reduce or eliminate loss of life and property from natural and 
technological hazards.
    (b) Functions. The principal functions of the Mitigation Directorate 
are:

[[Page 23]]

    (1) Identifying and assessing the risks posed by natural and 
technological hazards, except that, on issues of technological risk 
assessment, FEMA will defer to the Agency having primary responsibility 
in the specific area, notably the Nuclear Regulatory Commission (NRC) 
regarding accidents at commercial nuclear power plants, and the United 
States Army regarding chemical weapons;
    (2) Developing mitigation policies and strategies for implementing 
programs designed to reduce or eliminate loss of life and property from 
natural and technological hazards;
    (3) Coordinating with other Federal agencies and the scientific 
community on matters that will enhance FEMA'S ability to reduce or 
eliminate loss of life and property from natural and technological 
hazards;
    (4) Transferring information on the risks posed by natural and 
technological hazards to other Federal agencies and State and local 
government officials, and the public;
    (5) Promoting a multi-hazard approach to mitigation at State and 
local levels;
    (6) Coordinating with national associations whose membership, 
expertise, and standard-setting capabilities enhance the reduction of 
risks associated with natural and technological hazards;
    (7) Providing for the dissemination of information and delivery of 
technical assistance to build mitigation capabilities and promote 
mitigation activities;
    (8) Carrying out hazard mitigation activities of the Stafford Act, 
including the processing of applications for hazard mitigation grants, 
disbursement of funds under section 404 of the Stafford Act, and 
administrative responsibilities in support of these activities;
    (9) Management of Comprehensive Cooperative Agreements with the 
States, through which the Mitigation programs are implemented in the 
regions; and
    (10) Establishment of Agency Geographic Information Systems (GIS) 
requirements and an Agency-wide GIS policy.
    (c) Delegated authorities. The Associate Director for Mitigation is 
authorized to exercise the duties and powers of the Director as set 
forth in:
    (1) 33 U.S.C. 467h, 709b, insofar as it pertains to the Dam 
Inspection Program;
    (2) Section 1-104 of E.O. 12127 insofar as it pertains to:
    (i) Determining the eligibility of communities to participate in the 
National Flood Insurance Program;
    (ii) Identification of flood-prone areas;
    (iii) Determination of inclusion or non-inclusion of properties 
within the Coastal Barrier Resources System established by 16 U.S.C. 
3503 or within an otherwise protected area;
    (iv) Determination of projected flood elevations for State and local 
governments to use in adopting flood plain management laws, regulations 
or ordinances;
    (v) Establishment of criteria for land management and use, flood 
control, flood zoning, and flood damage protection; and
    (vi) Purchase of properties insured under the National Flood 
Insurance Program that have been damaged substantially beyond repair by 
flood;
    (3) E.O. 11988;
    (4) The following sections of E.O. 12148, as amended:
    (i) Section 4-203, insofar as it pertains to hurricane preparedness, 
as set forth in section 201 of the Robert T. Stafford Disaster Relief 
and Emergency Assistance Act, 42 U.S.C. 5131;
    (ii) Section 4-203, insofar as it pertains to hazard mitigation set 
forth in sections 404, 406, 409, and 411 of the Robert T. Stafford 
Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5170, 5172, 
5176, and 5178;
    (iii) Section 4-204, pertaining to earthquake hazards reduction as 
set forth in the Earthquake Hazards Reduction Act of 1977, as amended, 
42 U.S.C. 7701-7706; and
    (5) E.O. 12699.



Sec. 2.42  Preparedness, Training, and Exercises Directorate.

    (a) Mission. The Preparedness, Training, and Exercises Directorate 
supports the emergency preparedness, training, and exercises 
capabilities of Federal, State and local governments.

[[Page 24]]

    (b) Functions. The principal functions of the Preparedness, 
Training, and Exercises Directorate are:
    (1) Management of programs to establish, maintain, and enhance the 
capabilities of Federal, State, and local governments to prepare for, 
respond to, recover from a broad range of emergencies, including such 
programs as the Radiological Emergency Preparedness (REP) Program, 
Chemical Stockpile Emergency Preparedness Program (CSEPP), and the 
delegated responsibilities under the Federal Civil Defense Act of 1950, 
as amended (50 U.S.C. App. 2251-2303);
    (2) Management of Comprehensive Cooperative Agreements with the 
States, through which agreements the above programs are implemented in 
the regions;
    (3) Training of Federal, State, and local government employees to 
prepare for, respond to, recover from a broad range of emergencies;
    (4) Testing of Federal, State, and local emergency preparedness and 
response procedures through a comprehensive exercise, evaluation and 
corrective action program; and
    (5) Recommendation of policy for all-hazard emergency preparedness 
and provision of implementation guidance, as required by statute, 
international agreement, or executive order.
    (c) Delegated authorities. The Associate Director for Preparedness, 
Training, and Exercises Directorate is authorized to exercise the duties 
and powers of the Director as set forth in:
    (1) E.O. 10480, as amended;
    (2) E.O. 11179, as amended;
    (3) Sections 1-103(b) and 1-105, E.O. 12127;
    (4) Section 1-101, E.O. 12148;
    (5) E.O. 12241;
    (6) E.O. 12656, other than section 202;
    (7) E.O. 12657; and
    (8) E.O. 12742.



Sec. 2.43  Response and Recovery Directorate.

    (a) Mission. The Response and Recovery Directorate maintains an 
integrated operational capability to respond to and recover from the 
consequences of a disaster, regardless of its cause, in cooperation with 
other Federal agencies, State and local governments, volunteer 
organizations, and the private sector.
    (b) Functions. The principal functions of the Response and Recovery 
Directorate are:
    (1) Management of Disaster Assistance, including damage assessment, 
recommendations to the President on declaration of disasters or 
emergencies under the Robert T. Stafford Disaster Relief and Emergency 
Assistance (Stafford) Act, 42 U.S.C. 5121-5201, processing of 
applications for disaster assistance and disbursement of Federal 
disaster assistance funds, except for hazard mitigation assistance 
provided under section 404 of the Stafford Act, 42 U.S.C. 5170c.
    (2) Coordination among Federal agencies, State and local 
governments, and the American Red Cross of the ongoing development and 
the implementation of the Federal Response Plan (for implementation of 
Pub. L. 93-288, as amended) and associated plans for response to and 
recovery from a broad range of disasters;
    (3) Support of communications and Automated Data Processing (ADP) 
capabilities for interagency operations during a wide range of 
emergencies; and
    (4) Maintaining the continuity of essential functions of the Federal 
Government during a wide range of emergencies.
    (c) Delegated authorities. The Associate Director for Response and 
Recovery is authorized to exercise the duties and powers of the Director 
as set forth in:
    (1) Sections 2-102 and 4-203, Executive Order 12148, as amended, 
except insofar as they pertain to hazard mitigation assistance; and
    (2) Section 202, Executive Order 12656.



Sec. 2.44  Operations Support Directorate.

    (a) Mission. The Operations Support Directorate provides direct 
support and services to FEMA's all-hazards emergency management program 
of mitigation, preparedness, response and recovery.
    (b) Functions. The principal functions of the Operations Support 
Directorate are:
    (1) Services primarily for the support of internal functions, 
including:

[[Page 25]]

    (i) Management and oversight of the Agency's procurement system, 
including acquisition of supplies and services;
    (ii) Printing and publications;
    (iii) Telecommunications operations;
    (iv) Automated data processing;
    (v) Software design and engineering;
    (vi) Records management;
    (vii) Agency-wide logistics and property management;
    (viii) Protection of personnel, facilities, and equipment;
    (ix) Management of transit subsidies;
    (x) Preparation of visual presentations materials;
    (xi) Placement of advertisements in general circulation newspapers; 
and
    (2) Services that support organizations outside of FEMA as well as 
the agency itself, including:
    (i) Telecommunications design and engineering;
    (ii) Resource and economic modeling;
    (iii) Management of data storage and production associated with 
Geographic Information Systems (GIS) and other analytic systems;
    (iv) Security of classified records;
    (v) Security of classified communications;
    (vi) Background investigations for the granting of security 
clearances;
    (vii) Determination of suitability for employment under 5 CFR part 
731; and
    (viii) Control of public information collections.
    (c) Delegated authorities. Subject to the qualifications of 
paragraph (d) of this section, the Associate Director for Operations 
Support is authorized to exercise the duties and powers of the Director 
as set forth in:
    (1) E.O. 10450, as amended;
    (2) E.O. 12046, as amended;
    (3) E.O. 12356; and
    (4) E.O. 12472.
    (d) Authorities delegated directly to the Director, Acquisition 
Services Division. The Director, Acquisition Services Division, 
Operations Support Directorate, is authorized to:
    (1)(i) Exercise authority under section 104(h) of the Comprehensive 
Environmental Response, Compensation and Liability Act of 1980 delegated 
to the Director by section 2(f) of Executive Order 12316;
    (ii) Exercise authority of the Director concerning extraordinary 
contractual actions under paragraph 21 of Executive Order 10789.
    (iii) Exercise authority delegated to the Director by Executive 
Order 12352 and act as procurement executive.
    (2)(i) Make purchases and contracts by advertising for equipment and 
supplies, administrative equipment, office supplies, professional 
services, transportation of persons and property, and nonpersonal 
services, and determine that the rejection of any bid is in the public 
interest;
    (ii) Negotiate purchases and contracts for equipment and supplies, 
professional services, transportation of persons and property, and non-
personal services without advertising; and make and issue determinations 
related thereto pursuant to section 302(c) (1)-(b)(10)(10), (14) and 
(15) of the Federal Property and Administrative Services Act of 1949 (41 
U.S.C. 252(c) (1)-(10), (14) and (15)) and 40 U.S.C. 541-544 with 
respect to contracting for services of Architects Engineers;
    (iii) Enter into and administer interagency agreements under the 
Economy Act or any other such agreement involving obligation of funds;
    (3) Notwithstanding any general delegation of statutory authority in 
this part to another officer of FEMA, if the authority delegated in the 
general statutory delegation contains procurement authority that 
authority is delegated solely to the Director, Acquisition Services 
Division, with authority to redelegate to any employee of FEMA. As used 
in this paragraph (d) the term ``procurement'' includes acquisition from 
a recipient including a State or local government, of property or 
services for the direct benefit or use of the Federal Government. This 
includes authority under section 201(h) of the Federal Civil Defense Act 
but excludes authority under section 1362 of the National Flood 
Insurance Act.
    (4) Notwithstanding any general delegation of authority in this part 
to another officer of FEMA, other than the delegation to Regional 
Directors under Sec. 2.22, if the authority delegated contains authority 
to award discretionary grants that authority is delegated to the 
Director, Acquisition Services Division, who is authorized to exercise

[[Page 26]]

the authority of the Director with respect thereto. The Director, 
Acquisition Services Division, may redelegate this authority to any 
employee of FEMA. Discretionary grants include those instruments that 
are awarded to a selected or limited number of recipients deemed best 
qualified based upon criteria designed for the conduct of a specific 
project. This can include governments. Discretionary grants do not 
include those awarded to recipients for which:
    (i) The recipient or class of recipient is mandated by legislation 
or regulation;
    (ii) The amount of the instrument or the amount of the program is 
established by legislation and discretion in the award process is 
limited; or
    (iii) There is no choice in the purpose of the award or whether to 
make the award. The delegation to the Regional Directors under Sec. 2.22 
to implement various programs is not affected by this delegation to the 
Director, Acquisition Services Division.

Subpart B [Reserved]



                     Subpart C--OMB Control Numbers



Sec. 2.80  Purpose.

    The purpose of this subpart is to display OMB control numbers 
assigned to FEMA's information collection requirements.



Sec. 2.81  OMB control numbers assigned to information collections.

    This section collects and displays the control numbers assigned to 
information collection requirements of FEMA by OMB pursuant to the 
Paperwork Reduction Act of 1980. FEMA intends that this section comply 
with the requirements of section 3507(f) of the Paperwork Reduction Act, 
which requires that agencies display a current control number assigned 
by the Director of the Office of Management and Budget for each agency 
information collection requirement.

------------------------------------------------------------------------
                                                             Current OMB
                                                             control No.
------------------------------------------------------------------------
44 CFR part or section where identified or described:
  7 subpart E..............................................    3067-0177
  11.36....................................................    3067-0122
  11.54....................................................    3067-0122
  11 subpart D.............................................    3067-0167
  59.22(a).................................................    3067-0020
  59.22(b)(2)..............................................    3067-0018
  60.3, 60.4, 60.5.........................................    3067-0022
  61, 61 app. A(1), 61 app. B..............................    3067-0022
  62 subpart C, 62 app. A, 62 app. B.......................    3067-0169
  63 subpart B.............................................    3067-0196
  64.3(c)..................................................    3067-0020
  65.......................................................    3067-0147
  66, 67...................................................    3067-0148
  70.......................................................    3067-0147
  71.......................................................    3067-0120
  75 subpart B.............................................    3067-0127
  80, 81, 83...............................................    3067-0031
  151 subpart B............................................    3067-0141
  204......................................................    3067-0290
  205.33...................................................    3067-0113
  205.34...................................................    3067-0113
  205.52(e)................................................    3067-0009
  205.54(e)................................................    3067-0146
  205.54(f), 205.54(j).....................................    3067-0163
  205.59...................................................    3067-0166
  205.94...................................................    3067-0034
  205.96...................................................    3067-0026
  205 subpart G............................................    3067-0066
  205.116..................................................    3067-0151
  205.200(b)...............................................    3067-0048
  205.207..................................................    3067-0048
  205.208..................................................    3067-0048
  206.35...................................................    3067-0113
  206.36...................................................    3067-0113
  206.101(e)...............................................    3067-0009
  206.131(e)...............................................    3067-0146
  206.131(f), 206.131(j)...................................    3067-0163
  206.171..................................................    3067-0166
  206.202(c)...............................................    3067-0033
  206.204..................................................    3067-0151
  206.364..................................................    3067-0034
  206.366..................................................    3067-0026
  206 subpart L............................................    3067-0066
  206.436..................................................    3067-0207
  206.437..................................................    3067-0208
  206.405..................................................    3067-0212
  220.6....................................................    3067-0168
  220.19...................................................    3067-0156
  221.8....................................................    3067-0156
  222.5, 222.6.............................................    3067-0184
  302.3(a), 302.3(d).......................................    3067-0138
  302.3(b).................................................    3067-0123
  302.3(c)(1)..............................................    3067-0096
  302.3(c)(3)..............................................    3067-0090
  308.7....................................................    3067-0074
  352.4....................................................    3067-0201
  352.24...................................................    3067-0201
  360.4(c).................................................    3067-0100
48 CFR part or section where identified or described:
  4452.226-01(a)...........................................    3067-0213
------------------------------------------------------------------------


[59 FR 26133, May 19, 1994, as amended at 66 FR 57347, Nov. 14, 2001]

                            PART 3 [RESERVED]

[[Page 27]]



PART 4--INTERGOVERNMENTAL REVIEW OF FEDERAL EMERGENCY MANAGEMENT AGENCY (FEMA) PROGRAMS AND ACTIVITIES--Table of Contents




Sec.
4.1  What is the purpose of these regulations?
4.2  What definitions apply to these regulations?
4.3  What programs and activities of FEMA are subject to these 
          regulations?
4.4  [Reserved]
4.5  What is the Director's obligation with respect to Federal 
          interagency coordination?
4.6  What procedures apply to the selection of programs and activities 
          under these regulations?
4.7  How does the Director communicate with State and local officials 
          concerning FEMA's programs and activities?
4.8  How does the Director provide an opportunity to comment on proposed 
          Federal financial assistance and direct Federal development?
4.9  How does the Director receive and respond to comments?
4.10  How does the Director make efforts to accommodate 
          intergovernmental concerns?
4.11  What are the Director's obligations in interstate situations?
4.12  How may a State simplify, consolidate, or substitute federally 
          required State plans?
4.13  May the Director waive any provision of these regulations?

    Authority: E.O. 12372, July 14, 1982 (47 FR 30959), as amended April 
8, 1983 (48 FR 15887); sec. 401, Intergovernmental Cooperation Act of 
1968, as amended (31 U.S.C. 6506); sec. 204, Demonstration Cities and 
Metropolitan Development Act of 1966, as amended (42 U.S.C. 3334).

    Source: 48 FR 29316, June 24, 1983, unless otherwise noted.

    Editorial Note: For additional information, see related documents 
published at 47 FR 57369, Dec. 23, 1982; 48 FR 17101, Apr. 21, 1983; and 
48 FR 29096, June 24, 1983.



Sec. 4.1  What is the purpose of these regulations?

    (a) The regulations in this part implement Executive Order 12372, 
``Intergovernmental Review of Federal Programs,'' issued July 14, 1982 
and amended on April 8, 1983. These regulations also implement 
applicable provisions of section 401 of the Intergovernmental 
Cooperation Act of 1968 and section 204 of the Demonstration Cities and 
Metropolitan Development Act of 1966.
    (b) These regulations are intended to foster an intergovernmental 
partnership and a strengthened Federalism by relying on state processes 
and on State, areawide, regional and local coordination for review of 
proposed Federal financial assistance and direct Federal development.
    (c) These regulations are intended to aid the internal management of 
FEMA, and are not intended to create any right or benefit enforceable at 
law by a party against FEMA or its officers.



Sec. 4.2  What definitions apply to these regulations?

    FEMA means the Federal Emergency Management Agency.
    Order means Executive Order 12372, issued July 14, 1982, and amended 
April 8, 1983 and titled ``Intergovernmental Review of Federal 
Programs.''
    Director means the Director of FEMA or an official or employee of 
FEMA acting for the Director under a delegation of authority.
    State means any of the 50 states, the District of Columbia, the 
Commonwealth of Puerto Rico, the Commonwealth of Northern Mariana 
Islands, Guam, American Samoa, the U.S. Virgin Islands, or the Trust 
Territory of the Pacific Islands.



Sec. 4.3  What programs and activities of FEMA are subject to these regulations?

    The Director publishes in the Federal Register a list of FEMA's 
programs and activities that are subject to these regulations and 
identifies which of these are subject to the requirements of section 204 
of the Demonstration Cities and Metropolitan Development Act.



Sec. 4.4  [Reserved]



Sec. 4.5  What is the Director's obligation with respect to Federal interagency coordination?

    The Director, to the extent practicable, consults with and seeks 
advice from all other substantially affected Federal departments and 
agencies in

[[Page 28]]

an effort to assure full coordination between such agencies and FEMA 
regarding programs and activities covered under these regulations.



Sec. 4.6  What procedures apply to the selection of programs and activities under these regulations?

    (a) A State may select any program or activity published in the 
Federal Register in accordance with Sec. 4.3 of this part for 
intergovernmental review under these regulations. Each State, before 
selecting programs and activities, shall consult with local elected 
officials.
    (b) Each State that adopts a process shall notify the Director of 
FEMA's programs and activities selected for that process.
    (c) A State may notify the Director of changes in its selections at 
any time. For each change, the State shall submit to the Director an 
assurance that the State has consulted with local elected officials 
regarding the change. FEMA may establish deadlines by which States are 
required to inform the Director of changes in their program selections.
    (d) The Director uses a State's process as soon as feasible, 
depending on individual programs and activities, after the Director is 
notified of its selections.



Sec. 4.7  How does the Director communicate with State and local officials concerning FEMA's programs and activities?

    (a) For those programs and activities covered by a state process 
under Sec. 4.6, the Director, to the extent permitted by law:
    (1) Uses the state process to determine views of State and local 
elected officials; and,
    (2) Communicates with State and local elected officials, through the 
state process, as early in a program planning cycle as is reasonably 
feasible to explain specific plans and actions.
    (b) The Director provides notice to directly affected State, 
areawide, regional, and local entities in a State of proposed Federal 
financial assistance or direct Federal development if:
    (1) The State has not adopted a process under the Order; or
    (2) The assistance or development involves a program or activity not 
selected for the State process.

This notice may be made by publication in the Federal Register or other 
appropriate means, which FEMA in its discretion deems appropriate.



Sec. 4.8  How does the Director provide an opportunity to comment on proposed Federal financial assistance and direct Federal development?

    (a) Except in unusual circumstances, the Director gives state 
processes or directly affected State, areawide, regional and local 
officials and entities at least 60 days from the date established by the 
Director to comment on proposed direct Federal development or Federal 
financial assistance.
    (b) This section also applies to comments in cases in which the 
review, coordination, and communication with FEMA have been delegated.
    (c) Applicants for programs and activities subject to section 204 of 
the Demonstration Cities and Metropolitan Act shall allow areawide 
agencies a 60-day opportunity for review and comment.



Sec. 4.9  How does the Director receive and respond to comments?

    (a) The Director follows the procedures in Sec. 4.10 if:
    (1) A State office or official is designated to act as a single 
point of contact between a state process and all Federal agencies, and
    (2) That office or official transmits a state process recommendation 
for a program selected under Sec. 4.6.
    (b)(1) The single point of contact is not obligated to transmit 
comments from State, areawide, regional or local officials and entities 
where there is no state process recommendation.
    (2) If a state process recommendation is transmitted by a single 
point of contact, all comments from state, areawide, regional, and local 
officials and entities that differ from it must also be transmitted.
    (c) If a State has not established a process, or is unable to submit 
a state process recommendation, State, areawide, regional and local 
officials and entities may submit comments to FEMA.

[[Page 29]]

    (d) If a program or activity is not selected for a state process, 
State, areawide, regional and local officials and entities may submit 
comments to FEMA. In addition, if a state process recommendation for a 
nonselected program or activity is transmitted to FEMA by the single 
point of contact, the Director follows the procedures of Sec. 4.10 of 
this part.
    (e) The Director considers comments which do not constitute a state 
process recommendation submitted under these regulations and for which 
the Director is not required to apply the procedures of Sec. 4.10 of 
this part, when such comments are provided by a single point of contact, 
by the applicant or directly to FEMA by a commenting party.



Sec. 4.10  How does the Director make efforts to accommodate intergovernmental concerns?

    (a) If a state process provides a state process recommendation to 
FEMA through its single point of contact, the Director either:
    (1) Accepts the recommendation;
    (2) Reaches a mutually agreeable solution with the state process; or
    (3) Provides the single point of contact with such written 
explanation of the decision, as the Director in his or her discretion 
deems appropriate. The Director may also supplement the written 
explanation by providing the explanation to the single point of contact 
by telephone, other telecommunication, or other means.
    (b) In any explanation under paragraph (a)(3) of this section, the 
Director informs the single point of contact that:
    (1) FEMA will not implement its decision for at least ten days after 
the single point of contact receives the explanation; or
    (2) The Director has reviewed the decision and determined that, 
because of unusual circumstances, the waiting period of at least ten 
days is not feasible.
    (c) For purposes of computing the waiting period under paragraph 
(b)(1) of this section, a single point of contact is presumed to have 
received written notification 5 days after the date of mailing of such 
notification.



Sec. 4.11  What are the Director's obligations in interstate situations?

    (a) The Director is responsible for:
    (1) Identifying proposed Federal financial assistance and direct 
Federal development that have an impact on interstate areas;
    (2) Notifying appropriate officials and entities in states which 
have adopted a process and which select FEMA's program or activity;
    (3) Making efforts to identify and notify the affected State, 
areawide, regional, and local officials and entities in those States 
that have not adopted a process under the Order or do not select FEMA's 
progam or activity;
    (4) Responding pursuant to Sec. 4.10 of this part if the Director 
receives a recommendation from a designated areawide agency transmitted 
by a single point of contact, in cases in which the review, 
coordination, and communication with FEMA have been delegated.
    (b) The Director uses the procedures in Sec. 4.10 if a state process 
provides a state process recommendation to FEMA through a single point 
of contact.



Sec. 4.12  How may a State simplify, consolidate, or substitute federally required State plans?

    (a) As used in this section:
    (1) Simplify means that a State may develop its own format, choose 
its own submission date, and select the planning period for a State 
plan.
    (2) Consolidate means that a State may meet statutory and regulatory 
requirements by combining two or more plans into one document and that 
the State can select the format, submission date, and planning period 
for the consolidated plan.
    (3) Substitute means that a State may use a plan or other document 
that it has developed for its own purposes to meet Federal requirements.
    (b) If not inconsistent with law, a State may decide to try to 
simplify, consolidate, or substitute federally required state plans 
without prior approval by the Director.
    (c) The Director reviews each state plan that a State has 
simplified, consolidated, or substituted and accepts

[[Page 30]]

the plan only if its contents meet Federal requirements.



Sec. 4.13  May the Director waive any provision of these regulations?

    In an emergency, the Director may waive any provision of these 
regulations.



PART 5--PRODUCTION OR DISCLOSURE OF INFORMATION--Table of Contents




                      Subpart A--General Provisions

Sec.
5.1  Scope and purposes of part.
5.2  Application.
5.3  Definitions.
5.4  Availability of records.
5.5  Exemptions.
5.6  Congressional information.
5.7  Records of other agencies.
5.8  Records involved in litigation or other judicial process.
5.9  Inconsistent issuances of FEMA and its predecessor agencies 
          superseded.

Subpart B--Publication of or Availability of General Agency Information, 
              Rules, Orders, Policies, and Similar Material

5.20  Publication of rules and general policies.
5.21  Effect of failure to publish.
5.22  Coordination of publication.
5.23  Incorporation by reference.
5.24  Availability of opinions, orders, policies, interpretations, 
          manuals, and instructions.
5.25  Available materials.
5.26  Rules for public inspection and copying.
5.27  Deletion of identifying details.
5.28  Indexes.
5.29  Effect of failure to make information materials available.

                             Subpart C--Fees

5.40  Copies of FEMA records available at a fee.
5.41  FEMA publications.
5.42  Fees to be charged--categories of requesters.
5.43  Waiver or reduction of fees.
5.44  Prepayment of fees.
5.45  Form of payment.
5.46  Fee schedule.
5.47  Appeals regarding fees.

                      Subpart D--Described Records

5.50  General.
5.51  Submission of requests for described records.
5.52  Review of requests.
5.53  Approval of request.
5.54  Denial of request of records.
5.55  Appeal within FEMA of denial of request.
5.56  Extension of time limits.
5.57  Predisclosure notification procedures for confidential commercial 
          information.
5.58  Exhaustion of administrative remedies.
5.59  Judicial relief available to the public.
5.60  Disciplinary action against employees for ``arbitrary or 
          capricious'' denial.
5.61  Contempt for noncompliance.

                          Subpart E--Exemptions

5.70  General.
5.71  Categories of records exempt from disclosure under 5 U.S.C. 552.
5.72  Executive privilege exemption.

    Subpart F--Subpoenas or Other Legal Demands for Testimony or the 
        Production or Disclosure of Records or Other Information

5.80  Scope and applicability.
5.81  Statement of policy.
5.82  Definitions.
5.83  Authority to accept service of subpoenas.
5.84  Production of documents in private litigation.
5.85  Authentication and attestation of copies.
5.86  Production of documents in litigation or other adjudicatory 
          proceeding in which the United States is a party.
5.87  Testimony of FEMA employees in private litigation.
5.88  Testimony in litigation in which the United States is a party.
5.89  Waiver.

    Authority: 5 U.S.C. 552 as amended by sections 1801-1804 of the 
Omnibus Anti-Drug Abuse Act of 1986 which contains the Freedom of 
Information Reform Act of 1986 (Pub. L. 99-570); 5 U.S.C. 301 (Pub. L. 
85-619); Reorganization Plan No. 3 of 1978; E.O. 12127; and E.O. 12148.

    Source: 44 FR 50287, Aug. 27, 1979, unless otherwise noted.



                      Subpart A--General Provisions



Sec. 5.1  Scope and purposes of part.

    This part sets forth policies and procedures concerning the 
availability of and disclosure of records and information held by the 
Federal Emergency Management Agency (FEMA) in accordance with 5 U.S.C. 
552, popularly known as the ``Freedom of Information Act,'' (FOIA).

[[Page 31]]



Sec. 5.2  Application.

    This part applies to all records and information materials 
generated, developed, or held by FEMA at Headquarters, in Regions, or in 
the field, or any component thereof.



Sec. 5.3  Definitions.

    For purposes of this part, the following terms have the meanings 
ascribed to them in this section:
    (a) Records. Records means all books, papers, maps, photographs, or 
other documentary materials, regardless of physical form or 
characteristics made or received by FEMA in pursuance of Federal Law or 
in connection with the transaction of public business and preserved, or 
appropriate for preservation, as evidence of the organization, 
functions, policies, decisions, procedures, operations, or other 
activities of FEMA or because of the information value of data contained 
therein. The term does not include:
    (1) Material made or acquired and preserved solely for reference or 
exhibition purposes, extra copies of documents preserved only for 
convenience of reference, and stocks of publications and of processed 
documents; or
    (2) Objects or articles, such as structures, furniture, paintings, 
sculpture, models, vehicles or equipment; or
    (3) Formulae, designs, drawings, research data, computer programs, 
technical data packages, and the like, which are not considered records 
within the Congressional intent of reference because of development 
costs, utilization, or value. These items are considered exploitable 
resources to be utilized in the best interest of all the public and are 
not preserved for informational value nor as evidence of agency 
functions. Requests for copies of such material shall be evaluated in 
accordance with policies expressly directed to the appropriate 
dissemination or use of these resources. Requests to inspect this 
material to determine its content for informational purposes shall 
normally be granted, unless inspection is inconsistent with the 
obligation to protect the property value of the material, as, for 
example, may be true for patent information and certain formulae, or is 
inconsistent with another significant and legitimate governmental 
purpose.
    (b) Reasonably Described. Reasonably described, when applied to a 
request record, means identifying it to the extent that it will permit 
the location of the particular document with a reasonable effort.
    (c) Agency. Agency, as defined in section 552(e) of title 5 U.S.C., 
includes any executive department, military department, government 
corporation, or other establishment in the executive branch of the 
Government (including the Executive Office of the President), or any 
independent regulatory agency.
    (d) Headquarters FOIA Officer. The FOIA/Privacy Act Specialist or 
his/her designee.
    (e) Regional FOIA Officer. The Regional Director, or his/her 
designee.

[44 FR 50287, Aug. 27, 1979, as amended at 45 FR 1421, Jan. 7, 1980; 51 
FR 34604, Sept. 30, 1986]



Sec. 5.4  Availability of records.

    (a) FEMA records are available to the greatest extent possible in 
keeping with the spirit and intent of FOIA and will be furnished 
promptly to any member of the public upon request addressed to the 
office designated in Sec. 5.26. The person making the request need not 
have a particular interest in the subject matter, nor must he provide 
justification for the request.
    (b) The requirement of 5 U.S.C. 552 that records be available to the 
public refers only to records in being at the time the request for them 
is made. FOIA imposes no obligation to compile a record in response to a 
request.



Sec. 5.5  Exemptions.

    Requests for FEMA records may be denied if disclosure is exempted 
under the provisions of 5 U.S.C. 552, as outlined in subpart E. Usually, 
except when a record is classified, or when disclosure would violate any 
other Federal statute, the authority to withhold a record from 
disclosure is permissive rather than mandatory. The authority for 
nondisclosure will not be invoked unless there is compelling reason to 
do so.



Sec. 5.6  Congressional information.

    Nothing in this part authorizes withholding information from the 
Congress

[[Page 32]]

except when executive privilege is invoked by the President.



Sec. 5.7  Records of other agencies.

    If a request is submitted to FEMA to make available current records 
which are the primary responsibility of another agency, FEMA will refer 
the request to the agency concerned for appropriate action. FEMA will 
advise the requester that the request has been forwarded to the 
responsible agency.



Sec. 5.8  Records involved in litigation or other judicial process.

    Where there is reason to believe that any records requested may be 
involved in litigation or other judicial process in which the United 
States is a party, including discovery procedures pursuant to the 
Federal Rules of Civil Procedure or Federal Rules of Criminal Procedure, 
the request shall be referred to the General Counsel.



Sec. 5.9  Inconsistent issuances of FEMA and its predecessor agencies superseded.

    Policies and procedures of any of FEMA's predecessor agencies 
inconsistent with this regulation are superseded to the extent of that 
inconsistency.



Subpart B--Publication of or Availability of General Agency Information, 
              Rules, Orders, Policies, and Similar Material



Sec. 5.20  Publication of rules and general policies.

    In accordance with 5 U.S.C. 552(a)(1), there are separately stated 
and currently published, or from time to time there will be published, 
in the Federal Register for the guidance of the public, the following 
general information concerning FEMA:
    (a) Description of the organization of the Headquarters Office and 
regional and other offices and the established places at which, the 
employees from whom, and the methods whereby the public may obtain 
information, make submittals or requests, or obtain decisions.
    (b) Statement of the general course and method by which FEMA 
functions are channeled and determined, including the nature and 
requirements of all formal and informal procedures available.
    (c) Rules of procedure, descriptions of forms available or the 
places at which forms may be obtained, and instructions as to the scope 
and contents of all papers, reports, or examinations.
    (d) Substantive rules of general applicability adopted as authorized 
by law, and statements of general policy or interpretations of general 
applicability formulated and adopted by FEMA.
    (e) Each amendment, revision, or repeal of the materials described 
in this section. Much of this information will also be codified in this 
subchapter A.



Sec. 5.21  Effect of failure to publish.

    5 U.S.C. 552(a)(1) provides that, except to the extent that a person 
has actual and timely notice of the terms thereof, a person may not in 
any manner be required to resort to, or to be adversely affected by, a 
matter required to be published in the Federal Register and not so 
published.



Sec. 5.22  Coordination of publication.

    The General Counsel, FEMA, is responsible for coordination of FEMA 
materials required to be published in the Federal Register.



Sec. 5.23  Incorporation by reference.

    When deemed appropriate, matter covered by this subpart, which is 
reasonably available to the class of persons affected thereby may be 
incorporated by reference in the Federal Register in accordance with 
standards prescribed from time to time by the Director of the Federal 
Register (see 1 CFR part 51).



Sec. 5.24  Availability of opinions, orders, policies, interpretations, manuals, and instructions.

    FEMA will make available for public inspection and copying the 
material described in 5 U.S.C. 552(a)(2) as enumerated in Sec. 5.25 and 
an index of those materials as described in Sec. 5.28, at convenient 
places and times.



Sec. 5.25  Available materials.

    FEMA materials which are available under this subpart are as 
follows:

[[Page 33]]

    (a) Final opinions and orders made in the adjudication of cases.
    (b) Those statements of policy and interpretations which have been 
adopted by FEMA and are not published in the Federal Register.
    (c) Administrative staff manuals and instructions to staff that 
affect a member of the public, unless such materials are promptly 
published and copies offered for sale.



Sec. 5.26  Rules for public inspection and copying.

    (a) Location. Materials are available for public inspection and 
copying at the following locations:
    (1) Headquarters:

Federal Center Plaza, 500 C Street, SW, Washington, DC 20472

    (2) Regional Offices

Region I, Room 442, J. W. McCormack Post Office & Court House, Boston, 
MA 02109;
Region II, 26 Federal Plaza, New York, NY 10278;
Region III, Liberty Square Bldg. (Second Floor), 105 South Seventh 
Street, Philadephia, PA 19106;
Region IV, 1371 Peachtree Street, N.E., 7th Floor, Atlanta, GA 30309;
Region V, 300 South Wacker Drive, 24th Floor, Chicago, IL 60606;
Region VI, Federal Regional Center, Denton, TX 76201;
Region VII, 911 Walnut Street, Room 300, Kansas City, MO 64106;
Region VIII, Denver Federal Center, Bldg. 710, Denver, CO 80225-0267;
Region XI, Building 105, Presidio of San Francisco, CA 94129;
Region X, Federal Regional Center, 130-228th Street, SW., Bothell, WA 
98021-9796.

    (b) Time. Materials will be made available for public inspection and 
copying during the normal hours of business.
    (c) FEMA will furnish reasonable copying services at fees specified 
in subpart C. Such reproduction services as are required will be 
arranged by the Office of Administrative Support in the headquarters or 
by regional offices as appropriate.
    (d) Handling of materials. The unlawful removal or mutilation of 
materials is forbidden by law and is punishable by fine or imprisonment 
or both. FEMA personnel making materials available will ensure that all 
materials provided for inspection and copying are returned in the same 
condition as provided.

[44 FR 50287, Aug. 27, 1979, as amended at 47 FR 13149, Mar. 29, 1982; 
48 FR 44542, Sept. 29, 1983; 50 FR 40006, Oct. 1, 1985]



Sec. 5.27  Deletion of identifying details.

    To the extent required to prevent a clearly unwarranted invasion of 
personal privacy, FEMA may delete identifying details when making 
available or publishing an opinion, statement of policy, interpretation, 
or staff manual or instruction. However, the justification for each 
deletion will be explained fully in writing, and will require the 
concurrence of the General Counsel. A copy of the justification will be 
attached to the material containing the deletion and a copy will also be 
furnished to the Headquarters FOIA Officer or appropriate Regional 
Director.



Sec. 5.28  Indexes.

    FEMA will maintain and make available for public inspection and 
copying current indexes arranged by subject matter providing identifying 
information for the public regarding any matter issued, adopted, or 
promulgated after July 4, 1967, and described in Sec. 5.25. FEMA will 
publish quarterly and make available copies of each index or supplements 
thereto. The indexes will be maintained for public inspection at the 
location described in Sec. 5.26.



Sec. 5.29  Effect of failure to make information materials available.

    Materials requested to be made available pursuant to Sec. 5.24 that 
affect a member of the public may be relied upon, used, or cited as 
precedent by FEMA against any private party only if (a) they have been 
indexed and either made available or published as required by 5 U.S.C. 
552(a)(2), or (b) the private party has actual and timely notice of 
their terms.



                             Subpart C--Fees



Sec. 5.40  Copies of FEMA records available at a fee.

    One copy of FEMA records not available free of charge will be 
provided at a fee as provided in Sec. 5.46. A reasonable number of 
additional copies will be provided for the applicable fee where

[[Page 34]]

reproduction services are not readily obtainable from private commercial 
sources.



Sec. 5.41  FEMA publications.

    Anyone may obtain FEMA publications without charge from the FEMA 
Headquarters, Regional Offices and from FEMA, P.O. Box 8181, Washington, 
DC 20024 in accordance with standard operating procedures, including 
limitation on numbers of specific individual publications. FEMA Films 
may be obtained on loan or certain of these films may be purchased, in 
which case fees will be charged as set out in a FEMA catalogue. Non-
exempt FEMA research reports are available from the National Technical 
Information Service, United States Department of Commerce, which 
establishes its own fee schedule. Charges, if any, for these items and 
similar user charges are established in accordance with other provisions 
of law as, for example, 31 U.S.C. 9701 and are not deemed search and 
duplication charges hereunder.

[44 FR 50287, Aug. 27, 1979, as amended at 48 FR 44542, Sept. 29, 1983; 
50 FR 40006, Oct. 1, 1985]



Sec. 5.42  Fees to be charged--categories of requesters.

    (a) There are four categories of FOIA requesters: Commercial use 
requesters; representatives of news media; educational and noncommercial 
scientific institutions; and all other requesters. The time limits for 
processing requests shall only begin upon receipt of a proper request 
which reasonably identifies records being sought. The Freedom of 
Information Reform Act of 1986 prescribes specific levels of fees for 
each of these categories:
    (1) When records are being requested for commercial use, the fee 
policy of FEMA is to levy full allowable direct cost of searching for, 
reviewing for release, and duplicating the records sought. Commercial 
users are not entitled to two hours of free search time nor 100 free 
pages of reproduction of documents. The full allowable direct cost of 
searching for and reviewing records will be charged even if there is 
ultimately no disclosure of records. Commercial use is defined as a use 
that furthers the commercial, trade or profit interests of the requester 
or person on whose behalf the request is made. In determining whether a 
requester falls within the commercial use category, FEMA will look to 
the use to which a requester will put the documents requested. Where a 
requester does not explain his/her use, or where his/her explanation is 
insufficient to permit a determination of the nature of the use, FEMA 
shall require the requester to provide information regarding the use to 
be made of the information and if the request does not include an 
agreement to pay all appropriate fees, FEMA will process such request 
only up to the $30.00 threshold which is the estimated cost to FEMA to 
collect fees which we are prohibited from charging by law. Requesters 
must reasonably describe the records sought.
    (2) When records are being requested by representatives of the news 
media, the fee policy of FEMA is to levy reproduction charges only, 
excluding charges for the first 100 pages. Representatives 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 interest to the public. Examples of news media entities 
include television or radio stations broadcasting to the public at 
large, and publishers of periodicals (but only in those instances where 
they can qualify as disseminators of ``news'') who make their products 
available for purchase or subscription by the general public. These 
examples are not intended to be all-inclusive. As traditional methods of 
news delivery evolve (i.e., electronic dissemination of newspapers 
through telecommunications services), such alternative media would be 
included in this category. In the case of ``freelance'' journalists, 
they may be regarded as working for a news organization if they can 
demonstrate a solid basis for expecting publication through that 
organization, even though not actually employed by it. For example, a 
publication contract would be the clearest proof, but FEMA may also look 
to the past publication record, press accreditation, guild membership,

[[Page 35]]

business registration, Federal Communications Commission licensing, or 
similar credentials of a requester in making this determination. To be 
eligible for inclusion in this category, requesters must meet the 
criteria specified in this section and his or her request must not be 
made for a commercial use basis as that term is defined under paragraph 
(a)(1) of this section. A request for records supporting the news 
dissemination function of the requester shall not be considered to be a 
request that is for a commercial use. Requesters must reasonably 
describe the records sought.
    (3) When records are being requested by an educational or 
noncommercial scientific institution whose purpose is scholarly or 
scientific research, the fee policy of FEMA is to levy reproduction 
charges only, excluding charges for the first 100 pages. Educational 
institution refers to a preschool, a public or private elementary or 
secondary school, an institution of graduate higher education, an 
institution of undergraduate higher education, an institution of 
professional education and an institution of vocational education, which 
operates a program or programs of scholarly research. Noncommercial 
scientific institution refers to an institution that is not operated on 
a commercial basis as that term is defined under paragraph (a)(1) 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. To be eligible for inclusion in this 
category, requesters must show that the request is being made under the 
auspices of a qualifying institution and that the records are not sought 
for a commercial use, but are sought in furtherance of scholarly (if the 
request is from an educational institution) or scientific (if the 
request is from a noncommercial scientific institution) research. 
Requesters must reasonably describe the records sought.
    (4) For any other request which does not meet the criteria contained 
in paragraphs (a)(1) through (3) of this section, the fee policy of FEMA 
is to levy full reasonable direct cost of searching for and duplicating 
the records sought, except that the first 100 pages of reproduction and 
the first two hours of search time shall be furnished without charge. 
The first two hours of computer search time is based on the hourly cost 
of operating the central processing unit and the operator's hourly 
salary plus 16 percent. When the cost of the computer search, including 
the operator time and the cost of operating the computer to process the 
request, equals the equivalent dollar amount of two hours of the salary 
of the person performing the search, i.e., the operator, FEMA shall 
begin assessing charges for computer search. Requests from individuals 
requesting records about themselves filed in FEMA's systems of records 
shall continue to be treated under the fee provisions of the Privacy Act 
of 1974 which permit fees only for reproduction. Requesters must 
reasonably describe the records sought.
    (b) Except for requests that are for a commercial use, FEMA may not 
charge for the first two hours of search time or for the first 100 pages 
of reproduction. However, a requester may not file multiple requests at 
the same time, each seeking portions of a document or documents, solely 
in order to avoid payment of fees. When FEMA believes that a requester 
or, on rare occasions, a group of requesters acting in concert, is 
attempting to break a request down into a series of requests for the 
purpose of evading the assessment of fees, FEMA may aggregate any such 
requests and charge accordingly. For example, it would be reasonable to 
presume that multiple requests of this type made within a 30-day period 
had been made to avoid fees. For requests made over a longer period, 
however, FEMA must have a solid basis for determining that aggregation 
is warranted in such cases. Before aggregating requests from more than 
one requester, FEMA must have a concrete basis on which to conclude that 
the requesters are acting in concert and are acting specifically to 
avoid payment of fees. In no case may FEMA aggregate multiple requests 
on unrelated subjects from one requester.
    (c) In accordance with the prohibition of section (4)(A)(iv) of the 
Freedom of Information Act, as amended,

[[Page 36]]

FEMA shall not charge fees to any requester, including commercial use 
requesters, if the cost of collecting a fee would be equal to or greater 
than the fee itself.
    (1) For commercial use requesters, if the direct cost of searching 
for, reviewing for release, and duplicating the records sought would not 
exceed $30.00, FEMA shall not charge the requester any costs.
    (2) For requests from representatives of news media or educational 
and noncommercial scientific institutions, excluding the first 100 pages 
which are provided at no charge, if the duplication cost would not 
exceed $30.00, FEMA shall not charge the requester any costs.
    (3) For all other requests not falling within the category of 
commercial use requests, representatives of news media, or educational 
and noncommercial scientific institutions, if the direct cost of 
searching for and duplicating the records sought, excluding the first 
two hours of search time and first 100 pages which are free of charge, 
would not exceed $30.00, FEMA shall not charge the requester any costs.

[52 FR 13677, Apr. 24, 1987]



Sec. 5.43  Waiver or reduction of fees.

    (a) FEMA may waive all fees or levy a reduced fee when disclosure of 
the information requested is deemed to be in the public interest because 
it is likely to contribute significantly to public understanding of the 
operations or activities of the Federal Government and is not primarily 
in the commercial interest of the requester.
    (b) A fee waiver request shall indicate how the information will be 
used, to whom it will be provided, whether the requester intends to use 
the information for resale at a fee above actual cost, any personal or 
commercial benefits that the requester reasonably expects to receive by 
the disclosure, provide justification to support how release would 
benefit the general public, the requester's and/or intended user's 
identity and qualifications, expertise in the subject area and ability 
and intention to disseminate the information to the public.

[52 FR 13678, Apr. 24, 1987]



Sec. 5.44  Prepayment of fees.

    (a) When FEMA estimates or determines that allowable charges that a 
requester may be required to pay are likely to exceed $250.00, FEMA may 
require a requester to make an advance payment of the entire fee before 
continuing to process the request.
    (b) When a requester has previously failed to pay a fee charged in a 
timely fashion (i.e., within 30 days of the date of the billing), FEMA 
may require the requester to pay the full amount owed plus any 
applicable interest as provided in Sec. 5.46(d), and to make an advance 
payment of the full amount of the estimated fee before the agency begins 
to process a new request or a pending request from that requester.
    (c) When FEMA acts under paragraphs (a) or (b) of this section, the 
administrative time limits prescribed in subsection (a)(6) of the FOIA 
(i.e., 10 working days from the receipt of initial requests and 20 
working days from receipt of appeals from initial denial, plus 
permissible extensions of these time limits) will begin only after FEMA 
has received fee payments described under paragraphs (a) or (b) of this 
section.

[52 FR 13678, Apr. 24, 1987]



Sec. 5.45  Form of payment.

    Payment shall be by check or money order payable to the Federal 
Emergency Management Agency and shall be addressed to the official 
designated by FEMA in correspondence with the requestor or to the 
Headquarters FOIA Officer or Regional FOIA Officer, as appropriate.

[44 FR 50287, Aug. 27, 1979, as amended at 48 FR 44542, Sept. 29, 1983]



Sec. 5.46  Fee schedule.

    (a) Manual searches for records. FEMA will charge at the salary 
rate(s), (i.e., basic hourly pay rate plus 16 percent) of the 
employee(s) conducting the search. FEMA may assess charges for time 
spent searching, even if the agency fails to locate the records or if 
records located are determined to be exempt from disclosure. FEMA may 
assess charges for time spent searching, even if FEMA fails to locate 
the

[[Page 37]]

records or if records located are determined to be exempt from 
disclosure.
    (b) Computer searches for records. FEMA will charge the actual 
direct cost of providing the service. This will include the cost of 
operating the central processing unit (CPU) for that portion of 
operating time that is directly attributable to searching for records 
responsive to a FOIA request and operator/programmer salary 
apportionable to the search. FEMA may assess charges for time spent 
searching, even if FEMA fails to locate the records or if records 
located are determined to be exempt from disclosure.
    (c) Duplication costs. (1) For copies of documents reproduced on a 
standard office copying machine in sizes up to 8\1/2\ x 14 inches, the 
charge will be $.15 per page.
    (2) The fee for reproducing copies of records over 8\1/2\ x 14 
inches or whose physical characteristics do not permit reproduction by 
routine electrostatic copying shall be the direct cost of reproducing 
the records through government or commercial sources. If FEMA estimates 
that the allowable duplication charges are likely to exceed $25, it 
shall notify the requester of the estimated amount of fees, unless the 
requester has indicated in advance his/her willingness to pay fees as 
high as those anticipated. Such a notice shall offer a requester the 
opportunity to confer with agency personnel with the objective of 
reformulating the request to meet his/her needs at a lower cost.
    (3) For copies prepared by computer, such as tapes or printouts, 
FEMA shall charge the actual cost, including operator time, of 
production of the tape or printout. If FEMA estimates that the allowable 
duplication charges are likely to exceed $25, it shall notify the 
requester of the estimated amount of fees, unless the requester has 
indicated in advance his/her willingness to pay fees as high as those 
anticipated. Such a notice shall offer a requester the opportunity to 
confer with agency personnel with the objective of reformulating the 
request to meet his/her needs at a lower cost.
    (4) For other methods of reproduction or duplication, FEMA shall 
charge the actual direct costs of producing the document(s). If FEMA 
estimates that the allowable duplication charges are likely to exceed 
$25, it shall notify the requester of the estimated amount of fees, 
unless the requester has indicated in advance his/her willingness to pay 
fees as high as those anticipated. Such a notice shall offer a requester 
the opportunity to confer with agency personnel with the objective of 
reformulating the request to meet his/her needs at a lower cost.
    (d) Interest may be charged to those requesters who fail to pay fees 
charged. FEMA may begin assessing interest charges on the amount billed 
starting on the 31st day following the day on which the billing was 
sent. Interest will be at the rate prescribed in section 3717 of Title 
31 U.S.C. and will accrue from the date of the billing.
    (e) FEMA shall use the most efficient and least costly methods to 
comply with requests for documents made under the FOIA. FEMA may choose 
to contract with private sector services to locate, reproduce and 
disseminate records in response to FOIA requests when that is the most 
efficient and least costly method. When documents responsive to a 
request are maintained for distribution by agencies operating statutory-
based fee schedule programs, such as but not limited to the Government 
Printing Office or the National Technical Information Service, FEMA will 
inform requesters of the steps necessary to obtain records from those 
sources.

[52 FR 13678, Apr.24, 1987, as amended at 52 FR 33410, Sept. 3, 1987]



Sec. 5.47  Appeals regarding fees.

    A requestor whose application for a fee waiver or a fee reduction is 
denied may appeal that decision to the Deputy Director in the manner 
prescribed in subpart D.



                      Subpart D--Described Records



Sec. 5.50  General.

    (a) Except for records made available pursuant to subpart B, FEMA 
shall promptly make records available to a requestor pursuant to a 
request which

[[Page 38]]

reasonably described such records unless FEMA invokes an exemption 
pursuant to subpart E. Although the burden of reasonable description of 
the records rests with the requestor, FEMA will assist in identification 
to the extent practicable. Where requested records may be involved in 
litigation or other judicial proceedings in which the United States is a 
party, the procedures set forth under Sec. 5.8 shall be followed.
    (b) Upon receipt of a request which does not reasonably describe the 
records requested, FEMA may contact the requestor to seek a more 
specific description. The 10-day time limit set forth in Sec. 5.52 will 
not start until a request reasonably describing the records is received 
in the office of the appropriate official identified in Sec. 5.51.



Sec. 5.51  Submission of requests for described records.

    (a) For records located in the FEMA Headquarters, requests shall be 
submitted in writing, to the Headquarters FOIA Officer, Federal 
Emergency Management Agency, Washington, DC 20472. For records located 
in the FEMA Regional Offices, requests shall be submitted to the 
appropriate Regional FOIA Officer, at the address listed in Sec. 5.26. 
Requests should bear the legend ``Freedom of Information Request'' 
prominently marked on both the face of the request letter and the 
envelope. The 10-day time limit for agency determinations set forth in 
Sec. 5.52 shall not start until a request is received in the office of 
the appropriate official identified in this paragraph.
    (b) The Headquarters FOIA Officer shall respond to questions 
concerning the proper office to which Freedom of Information requests 
should be addressed.



Sec. 5.52  Review of requests.

    (a) Upon receipt of a request for information, the Headquarters FOIA 
Officer, or the Regional FOIA Officer for a regional office, will 
forward the request to the FEMA office which has custody of the record.
    (b) Upon any request for records made pursuant to Sec. 5.20, 
Sec. 5.24, or Sec. 5.51, the office having custody of the records shall 
determine within 10 workdays, after receipt of any such request in the 
office of the appropriate official identified in Sec. 5.51 whether to 
comply with the request. If the request is approved, the office having 
custody of the record shall notify the requestor and the Headquarters 
FOIA Officer whether request originated in Headquarters, Region or 
field.

[44 FR 50287, Aug. 27, 1979, as amended at 50 FR 40006, Oct. 1, 1985; 53 
FR 2740, Feb. 1, 1988]



Sec. 5.53  Approval of request.

    When a request is approved, records will be made available promptly 
in accordance with the terms of the regulation. Copies may be furnished 
or the records may be inspected and copied as provided in Sec. 5.26.



Sec. 5.54  Denial of request of records.

    (a) Each of the following officials within FEMA, any official 
designated to act for the official, or any official redelegated 
authority by such officials shall have the authority to make initial 
denials of requests for disclosure of records in his or her custody, and 
shall, in accordance with 5 U.S.C. 552(a)(6)(C) be the responsible 
official for denial of records under this part.
    (1) Deputy Director
    (2) [Reserved]
    (3) Federal Insurance Administrator
    (4) Associate Directors
    (5) United States Fire Administrator
    (6) Chief of Staff
    (7) Office Directors
    (8) General Counsel
    (9) Inspector General
    (10) Comptroller
    (11) Regional Directors
    (b) If a request is denied, the appropriate official listed in 
paragraph (a) of this section shall except as provided in Sec. 5.56 
advise the requestor within 10 workdays of receipt of the request by the 
official specified in Sec. 5.51 and furnish written reasons for the 
denial. The denial will (1) describe the record or records requested, 
(2) state the reasons for nondisclosure pursuant to subpart E, (3) state 
the name and title or position of the official responsible for the 
denial of such request, and (4) state the requestor's appeal rights.
    (c) In the event FEMA cannot locate requested records the 
appropriate official specified in paragraph (a) of this

[[Page 39]]

section will inform the requestor (1) that the agency has determined at 
the present time to deny the request because the records have not yet 
been found or examined, but (2) that the agency will review the request 
within a specified number of days, when the search or examination is 
expected to be complete. The denial letter will state the name and title 
or position of the official responsible for the denial of such request. 
In such event, the requestor may file an agency appeal immediately, 
pursuant to Sec. 5.55.

[44 FR 50287, Aug. 27, 1979, as amended at 48 FR 44542, Sept. 29, 1983; 
50 FR 40006, Oct. 1, 1985; 51 FR 34604, Sept. 30, 1986]



Sec. 5.55  Appeal within FEMA of denial of request.

    (a) A requestor denied access, in whole or in part, to FEMA records 
may appeal that decision within FEMA. All appeals should be addressed to 
the Headquarters FOIA Officer, Federal Emergency Management Agency, 
Washington, DC, 20472 regardless of whether the denial being appealed 
was made at Headquarters, in a field office, or by a Regional Director.
    (b) An appeal must be received in the Headquarters FOIA Office no 
later than thirty calendar days after receipt by the requestor of the 
initial denial.
    (c) An appeal must be in writing and should contain a brief 
statement of the reasons why the records should be released and enclose 
copies of the initial request and denial. The appeal letter should bear 
the legend, ``FREEDOM OF INFORMATION APPEAL,'' conspicuously marked on 
both the face of the appeal letter and on the envelope. FEMA has twenty 
workdays after the receipt of an appeal to make a determination with 
respect to such appeal. The twenty day time limit shall not begin to run 
until the appeal is received by the Headquarters FOIA Officer. 
Misdirected appeals should be promptly forwarded to that office.
    (d) The Headquarters FOIA Officer will submit the appeal to the 
Deputy Director for final administrative determination.
    (e) The Deputy Director shall be the deciding official on all 
appeals except in those cases in which the initial denial was made by 
him/her. If the Deputy Director made the initial denial, the Director 
will be the deciding official on any appeal from that denial. In the 
absence of the Deputy Director, or in case of a vacancy in that office, 
the Director may designate another FEMA official to perform the Deputy's 
functions.
    (f) If an appeal is filed in response to a tentative denial pending 
locating and/or examination of records, as described in Sec. 5.53(c), 
FEMA will continue to search for and/or examine the requested records 
and will issue a response immediately upon completion of the search and/
or examination. Such action in no way suspends the time for FEMA's 
response to the requestor's appeal which FEMA will continue to process 
regardless of the response under this paragraph.
    (g) If a requestor files suit pending an agency appeal, FEMA 
nonetheless will continue to process the appeal, and will furnish a 
response within the twenty day time limit set out in paragraph (c) of 
this section.
    (h) If, on appeal, the denial of the request for records is in whole 
or in part upheld, the Deputy Director will promptly furnish the 
requestor a copy of the ruling in writing within the twenty day time 
limit set out in paragraph (c) of this section except as provided in 
Sec. 5.55. The notification letter shall contain:
    (1) A brief description of the record or records requested;
    (2) A statement of the legal basis for nondisclosure;
    (3) A statement of the name and title or position of the official or 
officials responsible for the denial of the initial request as described 
in Sec. 5.54 and the denial of the appeal as described in paragraph (f) 
of this section, and
    (4) A statement of the requestor's rights of judicial review.

[44 FR 50287, Aug. 27, 1979, as amended at 45 FR 1422, Jan. 7, 1980; 50 
FR 40006, Oct. 1, 1985]



Sec. 5.56  Extension of time limits.

    In unusual circumstances as specified in this section, the time 
limits prescribed in Secs. 5.52 and 5.55 may be extended by an official 
named in Sec. 5.54(a) who will provide written notice to the requestor 
setting forth the reasons for such extension and the date on which a

[[Page 40]]

determination is expected. Such notice will specify no date that would 
result in an extension of more than ten work days. In unusual 
circumstances, the Headquarters FOIA Officer may authorize more than one 
extension, divided between the initial request stage and the appeals 
stage, but in no event will the combined periods of extension exceed ten 
work days. As used in this section, ``unusual circumstances'' include 
only those circumstances where extension of time is reasonably necessary 
to the proper processing of the particular request. Examples include:
    (a) 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; or
    (b) 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
    (c) The need for consultation, which shall be conducted with all 
practicable speed, with another agency or with a non-Federal source 
having a substantial interest in the determination of the request or 
among two or more components of FEMA having substantial subject matter 
interest therein.



Sec. 5.57  Predisclosure notification procedures for confidential commercial information.

    (a) In general. Business information provided to FEMA by a business 
submitter shall not be disclosed pursuant to a Freedom of Information 
Act (FOIA) request except in accordance with this section. For purposes 
of this section, the following definitions apply:
    (1) Confidential commercial information means records provided to 
the government by a submitter that arguably contain material exempt from 
release under Exemption 4 of the Freedom of Information Act, 5 U.S.C 
552(b)(4), because disclosure could reasonably be expected to cause 
substantial competitive harm.
    (2) Submitter means any person or entity who provides confidential 
commercial information to the government. The term submitter includes, 
but is not limited to, corporations, State governments, and foreign 
governments.
    (b) Notice to business submitters. FEMA shall provide a submitter 
with prompt notice of receipt of a Freedom of Information Act request 
encompassing its business information whenever required in accordance 
with paragraph (c) of this section, and except as provided in paragraph 
(g) of this section. The written notice shall either describe the exact 
nature of the business information requested or provide copies of the 
records or portions of records containing the business information.
    (c) When notice is required. (1) For confidential commercial 
information submitted prior to January 1, 1988, FEMA shall provide a 
submitter with notice of receipt of a FOIA request whenever:
    (i) The records are less than 10 years old and the information has 
been designated by the submitter as confidential commercial information;
    (ii) FEMA has reason to believe that disclosure of the information 
could reasonably result in commercial or financial injury to the 
submitter; or
    (iii) The information is subject to prior express commitment of 
confidentiality given by FEMA to the submitter.
    (2) For confidential commercial information submitted to FEMA on or 
after January 1, 1988, FEMA shall provide a submitter with notice of 
receipt of a FOIA request whenever:
    (i) The submitter has in good faith designated the information as 
commercially or financially sensitive information; or
    (ii) FEMA has reason to believe that disclosure of the information 
could reasonably result in commercial or financial injury to the 
submitter.
    (3) Notice of a request for confidential commercial information 
falling within paragraph (c)(2)(i) of this section shall be required for 
a period of not more than 10 years after the date of submission unless 
the submitter requests, and provides acceptable justification for, a 
specific notice period of greater duration.
    (4) Whenever possible, the submitter's claim of confidentiality 
shall be

[[Page 41]]

supported by a statement or certification by an officer or authorized 
representative of the company that the information in question is in 
fact confidential commercial or financial information and has not been 
disclosed to the public.
    (d) Opportunity to object to disclosure. (1) Through the notice 
described in paragraph (b) of this section, FEMA shall afford a 
submitter 7 working days within which to provide FEMA with a detailed 
statement of any objection to disclosure. Such statement shall specify 
all grounds for withholding any of the information under any exemptions 
of the Freedom of Information Act and, in the case of Exemption 4, shall 
demonstrate why the information is contended to be a trade secret or 
commercial or financial information which is considered privileged or 
confidential. Information provided by a submitter pursuant to this 
paragraph may itself be subject to disclosure under the FOIA.
    (2) When notice is given to a submitter under this section, FEMA 
shall notify the requester that such notice has been given to the 
submitter. The requester will be further advised that a delay in 
responding to the request, i.e., 10 working days after receipt of the 
request by FEMA or 20 working days after receipt of the request by FEMA 
if the time limits are extended under unusual circumstances permitted by 
the FOIA, may be considered a denial of access to records and the 
requester may proceed with an adminstrative appeal or seek judicial 
review, if appropriate.
    (e) Notice of intent to disclose. FEMA shall consider carefully a 
submitter's objections and specific grounds for nondisclosure prior to 
determining whether to disclose business information. Whenever FEMA 
decides to disclose business information over the objection of a 
submitter, FEMA shall forward to the submitter a written notice which 
shall include:
    (1) A statement of the reasons for which the submitter's disclosure 
objections were not sustained;
    (2) A description of the business information to be disclosed; and
    (3) A specified disclosure date, which is 7 working days after the 
notice of the final decision to release the requested information has 
been mailed to the submitter. FEMA shall inform the submitter that 
disclosure will be made by the specified disclosure date, unless the 
submitter seeks a court injunction to prevent its release by the date. 
When notice is given to a submitter under this section, FEMA shall 
notify the requester that such notice has been given to the submitter 
and the proposed date for disclosure.
    (f) Notice of lawsuit. (1) Whenever a requester brings legal action 
seeking to compel disclosure of business information covered by 
paragraph (c) of this section, FEMA shall promptly notify the submitter.
    (2) Whenever a submitter brings legal action seeking to prevent 
disclosure of business information covered by paragraph (c) of this 
section, FEMA shall promptly notify the requester.
    (g) Exception to notice requirement. The notice requirements of this 
section shall not apply if:
    (1) FEMA determines that the information shall not be disclosed;
    (2) The information has been published or otherwise officially made 
available to the public;
    (3) Disclosure of the information is required by law (other than 5 
U.S.C. 552); or
    (4) The information was required in the course of a lawful 
investigation of a possible violation of criminal law.

[53 FR 2740, Feb. 1, 1988]



Sec. 5.58  Exhaustion of administrative remedies.

    Any person making a request to FEMA for records under this part 
shall be deemed to have exhausted his administrative remedies with 
respect to the request if the agency fails to comply with the applicable 
time limit provisions set forth in Secs. 5.52 and 5.55.

[44 FR 50287, Aug. 27, 1979. Redesignated at 53 FR 2740, Feb. 1, 1988]



Sec. 5.59  Judicial relief available to the public.

    Upon denial of a requestor's appeal by the Deputy Director the 
requester may file a complaint in a district court of the United States 
in the district in which the complainant resides, or has his principal 
place of business, or in

[[Page 42]]

which the agency records are situated, or in the District of Columbia, 
pursuant to 5 U.S.C. 552(a)(4)(B).

[44 FR 50287, Aug. 27, 1979. Redesignated at 53 FR 2740, Feb. 1, 1988]



Sec. 5.60  Disciplinary action against employees for ``arbitrary or capricious'' denial.

    Pursuant to 5 U.S.C. 552(a)(4)(F), whenever the district court, 
described in Sec. 5.59 orders the production of any FEMA records 
improperly withheld from the complainant and assesses against the United 
States reasonable attorney fees and other litigation costs, and the 
court additionally issues a written finding that the circumstances 
surrounding the withholding raise questions whether FEMA personnel acted 
arbitrarily or capriciously with respect to the withholding, the Special 
Counsel in the Merit Systems Protection Board is required to initiate a 
proceeding to determine whether disciplinary action is warranted against 
the officer or employee who primarily was responsible for the 
withholding. The Special Counsel after investigation and consideration 
of the evidence submitted, submits findings and recommendations to the 
Director of FEMA and sends copies of the findings and recommendations to 
the officer or employee or his or her representative. The law requires 
the Director to take any corrective action which the Special Counsel 
recommends.

[44 FR 50287, Aug. 27, 1979, as amended at 45 FR 1422, Jan. 7, 1980. 
Redesignated and amended at 53 FR 2740, Feb. 1, 1988]



Sec. 5.61  Contempt for noncompliance.

    In the event of noncompliance by FEMA with an order of a district 
court pursuant to Sec. 5.60, the district court may punish for contempt 
the FEMA employee responsible for the noncompliance, pursuant to 5 
U.S.C. 552(a)(4)(G).

[44 FR 50287, Aug. 27, 1979, as amended at 45 FR 1422, Jan. 7, 1980; 50 
FR 40006, Oct. 1, 1985. Redesignated and amended at 53 FR 2740, Feb. 1, 
1988]



                          Subpart E--Exemptions



Sec. 5.70  General.

    The exemptions enumerated in 5 U.S.C. 552(b), under which the 
provisions for availability of records and informational materials will 
not apply, are general in nature. FEMA will decide each case on its 
merits in accordance with the FEMA policy expressed in subpart A.



Sec. 5.71  Categories of records exempt from disclosure under 5 U.S.C. 552.

    5 U.S.C. 552(b) provides that the requirements of the statute do not 
apply to matters that are:
    (a) Specifically authorized under criteria established by an 
Executive Order to be kept secret in the interest of national defense or 
foreign policy and are, in fact, properly classified pursuant to such 
Executive Order.
    (b) Related solely to the internal personnel rules and practices of 
an agency.
    (c) Specifically exempted from disclosure by statute other than 
section 552(b) of title 5, 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 matter to be withheld.
    (d) Trade secrets and commercial or financial information obtained 
from a person and privileged or confidential.
    (e) Inter-agency or intra-agency memoranda or letters which would 
not be available by law to a party other than an agency in litigation 
with the agency.
    (f) Personnel and medical files and similar files the disclosure of 
which would constitute a clearly unwarranted invasion of personal 
privacy.
    (g) Records or information compiled for law enforcment purposes, but 
only to the extent that the production of such law enforcement records 
or information:
    (1) Could reasonably be expected to interfere with enforcement 
proceedings;
    (2) Would deprive a person of a right to a fair trial or an 
impartial adjudication;

[[Page 43]]

    (3) Could reasonably be expected to constitute an unwarranted 
invasion of personal privacy;
    (4) Could reasonably be expected to disclose the identity of a 
confidential source, including a State, local, or foreign agency or 
authority or any private institution which furnished information on a 
confidential basis, and, in the case of a record or information 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, information furnished by a confidential 
source;
    (5) Would disclose techniques and procedures for law enforcement 
investigations or prosecutions, or would disclose guidelines for law 
enforcement investigations or prosecutions if such disclosure could 
reasonably be expected to risk circumvention of the law; or
    (6) Could reasonably be expected to endanger the life or physical 
safety of any individual.
    (h) Contained in or related to examination, operating, or condition 
reports prepared by, on behalf of, or for the use of any agency 
responsible for the regulation or supervision of financial institutions.
    (i) Geological and geophysical information and data, including maps, 
concerning wells. Any reasonably segregable portion of a record shall be 
provided to any person requesting the record after deletion of the 
portions which are exempt under this section.
    (j) Whenever a request is made which involves access to records 
described in paragraph (g)(1) of this section and the investigation or 
proceeding involves a possible violation of criminal law; and there is 
reason to believe that the subject of the investigation or proceeding is 
not aware of its pendency, and disclosure of the existence of the 
records could reasonably be expected to interfere with enforcement 
proceedings, FEMA may, during only such time as that circumstance 
continues, treat the records as not subject to the requirements of 5 
U.S.C. 552 and this subpart.

[44 FR 50287, Aug. 27, 1979, as amended at 52 FR 13679, Apr. 24, 1987]



Sec. 5.72  Executive privilege exemption.

    Where application of the executive privilege exemption is desired, 
the matter shall be forwarded to the Director for consideration. If the 
request for information is Congressional, only the President may invoke 
the exemption. Presidential approval is not necessarily required if the 
request for information is in connection with judicial or adjudicatory 
proceedings or otherwise. In connection with judicial proceedings, the 
response shall be coordinated with the Department of Justice.



    Subpart F--Subpoenas or Other Legal Demands for Testimony or the 
        Production or Disclosure of Records or Other Information

    Source: 54 FR 11715, Mar. 22, 1989, unless otherwise noted.



Sec. 5.80  Scope and applicability.

    (a) This subpart sets forth policies and procedures with respect to 
the disclosure or production by FEMA employees, in response to a 
subpoena, order or other demand of a court or other authority, of any 
material contained in the files of the Agency or any information 
relating to material contained in the files of the Agency or any 
information acquired by an employee as part of the performance of that 
person's official duties or because of that person's official status.
    (b) This subpart applies to State and local judicial, administrative 
and legislative proceedings, and Federal judicial and administrative 
proceedings.
    (c) This subpart does not apply to Congressional requests or 
subpoenas for testimony or documents, or to an employee making an 
appearance solely in his or her private capacity in judicial or 
administrative proceedings that do not relate to the Agency (such as 
cases arising out of traffic accidents, domestic relations, etc.).



Sec. 5.81  Statement of policy.

    (a) It is the policy of FEMA to make its records available to 
private litigants to the same extent and in the same manner as such 
records are made available to members of the general

[[Page 44]]

public, except where protected from disclosure by litigation procedural 
authority (e.g., Federal Rules of Civil Procedure) or other applicable 
law.
    (b) It is FEMA's policy and responsibility to preserve its human 
resources for performance of the official functions of the Agency and to 
maintain strict impartiality with respect to private litigants. 
Participation by FEMA employees in private litigation in their official 
capacities is generally contrary to this policy.



Sec. 5.82  Definitions.

    For purposes of this subpart, the following terms have the meanings 
ascribed to them in this section:
    (a) Demand refers to a subpoena, order, or other demand of a court 
of competent jurisdiction, or other specific authority (e.g., an 
administrative or State legislative body), signed by the presiding 
officer, for the production, disclosure, or release of FEMA records or 
information or for the appearance and testimony of FEMA personnel as 
witnesses in their official capacities.
    (b) Employee of the Agency includes all officers and employees of 
the United States appointed by or subject to the supervision, 
jurisdiction or control of the Director of FEMA.
    (c) Private litigation refers to any legal proceeding which does not 
involve as a named party the United States Government, or the Federal 
Emergency Management Agency, or any official thereof in his or her 
official capacity.



Sec. 5.83  Authority to accept service of subpoenas.

    In all legal proceedings between private litigants, a subpoena duces 
tecum or subpoena ad testificandum or other demand by a court or other 
authority for the production of records held by FEMA Regional offices or 
for the oral or written testimony of FEMA Regional employees should be 
addressed to the appropriate Regional Director listed in Sec. 5.26. For 
records or testimony of the Office of Inspector General, the subpoena 
should be addressed to the Inspector General, FEMA, Washington, DC 
20472. For all other records or testimony, the subpoena should be 
addressed to the General Counsel, FEMA, Washington, DC 20472. No other 
official or employee of FEMA is authorized to accept service of 
subpoenas on behalf of the Agency.



Sec. 5.84  Production of documents in private litigation.

    (a) The production of records held by FEMA in response to a subpoena 
duces tecum or other demand issued pursuant to private litigation, 
whether or not served in accordance with the provisions of Sec. 5.83 of 
this subpart, is prohibited absent authorization by the General Counsel 
or, as to records of the Office of the Inspector General, by the 
Inspector General.
    (b) Whenever an official or employee of FEMA, including any Regional 
Director, receives a subpoena or other demand for the production of 
Agency documents or material, he or she shall immediately notify and 
provide a copy of the demand to the General Counsel, unless the subpoena 
or demand seeks the production of documents or material maintained by 
the Office of Inspector General, in which case a copy of the demand 
shall be provided to the Inspector General.
    (c) The General Counsel (or Inspector General), after consultation 
with other appropriate officials as deemed necessary, shall promptly 
determine whether to disclose the material or documents identified in 
the subpoena or other demand. Generally, authorization to furnish the 
requested material or documents shall not be withheld unless their 
disclosure is prohibited by relevant law or for other compelling 
reasons.
    (d) Whenever a subpoena or demand commanding the production of any 
record is served upon any Agency employee other than as provided in 
Sec. 5.83 of this subpart, or the response to a demand is required 
before the receipt of instructions from the General Counsel (or 
Inspector General), such employee shall appear in response thereto, 
respectfully decline to produce the record(s) on the ground that it is 
prohibited by this section and state that the demand has been referred 
for the prompt consideration of the General Counsel (or, where 
appropriate, the Inspector General).

[[Page 45]]

    (e) Where the release of documents in response to a subpoena duces 
tecum is authorized by the General Counsel (or, as to documents 
maintained by the Office of Inspector General, the Inspector General), 
the official having custody of the requested records will furnish, upon 
the request of the party seeking disclosure, authenticated copies of the 
documents. No official or employee of FEMA shall respond in strict 
compliance with the terms of a subpoena duces tecum unless specifically 
authorized by the General Counsel (or Inspector General).



Sec. 5.85  Authentication and attestation of copies.

    The Director, Deputy Director, Associate Directors, Administrators, 
the General Counsel, the Docket Clerk, Inspector General, Regional 
Directors, and their designees, and other heads of offices having 
possession of records are authorized in the name of the Director to 
authenticate and attest for copies or reproductions of records. 
Appropriate fees will be charged for such copies or reproductions based 
on the fee schedule set forth in section 5.46 of this part.



Sec. 5.86  Production of documents in litigation or other adjudicatory proceeding in which the United States is a party.

    Subpoenas duces tecum issued pursuant to litigation or any other 
adjudicatory proceeding in which the United States is a party shall be 
handled as provided at Sec. 5.8.



Sec. 5.87  Testimony of FEMA employees in private litigation.

    (a) No FEMA employee shall testify in response to a subpoena or 
other demand in private litigation as to any information relating to 
material contained in the files of the Agency, or any information 
acquired as part of the performance of that person's official duties or 
because of that person's official status, including the meaning of 
Agency documents.
    (b) Whenever a demand is made upon a FEMA employee, other than an 
employee of the Office of Inspector General, for the disclosure of 
information described in paragraph (a) of this section, that employee 
shall immediately notify the Office of General Counsel. Employees of the 
Office of Inspector General shall notify the Inspector General of such 
demands. The General Counsel (or Inspector General through designated 
legal counsel), upon receipt of such notice and absent waiver of the 
general prohibition against employee testimony at his or her discretion, 
shall arrange with the appropriate United States Attorney the taking of 
such steps as are necessary to quash the subpoena or seek a protective 
order.
    (c) In the event that an immediate demand for testimony or 
disclosure is made in circumstances which would preclude prior notice to 
and consultation with the General Counsel (or Inspector General), the 
employee shall respectfully request from the demanding authority a stay 
in the proceedings to allow sufficient time to obtain advice of counsel.
    (d) If the court or other authority declines to stay the effect of 
the demand in response to a request made in accordance with paragraph 
(c) of this section pending consultation with counsel, or if the court 
or other authority rules that the demand must be complied with 
irrespective of instructions not to testify or disclose the information 
sought, the employee upon whom the demand has been made shall 
respectfully decline to comply with the demand, citing these regulations 
and United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951).



Sec. 5.88  Testimony in litigation in which the United States is a party.

    (a) Whenever, in any legal proceeding in which the United States is 
a party, the attorney in charge of presenting the case for the United 
States requests it, the General Counsel shall arrange for an employee of 
the Agency to testify as a witness for the United States.
    (b) The attendance and testimony of named employees of the Agency 
may not be required in any legal proceeding by the judge or other 
presiding officer, by subpoena or otherwise. However, the judge or other 
presiding officer may, upon a showing of exceptional circumstances (such 
as a case in which a particular named FEMA employee has

[[Page 46]]

direct personal knowledge of a material fact not known to the witness 
made available by the Agency) require the attendance and testimony of 
named FEMA personnel.



Sec. 5.89  Waiver.

    The General Counsel (or, as to employees of the Office of Inspector 
General, the Inspector General) may grant, in writing, a waiver of any 
policy or procedure prescribed by this subpart, where waiver is 
considered necessary to promote a significant interest of the Agency or 
for other good cause. In granting such waiver, the General Counsel (or 
Inspector General) shall attach to the waiver such reasonable conditions 
and limitations as are deemed appropriate in order that a response in 
strict compliance with the terms of a subpoena duces tecum or the 
providing of testimony will not interfere with the duties of the 
employee and will otherwise conform to the policies of this part. The 
Director may, in his or her discretion, review any decision to authorize 
a waiver of any policy or procedure prescribed by this subpart.



PART 6--IMPLEMENTATION OF THE PRIVACY ACT OF 1974--Table of Contents




                           Subpart A--General

Sec.
6.1  Purpose and scope of part.
6.2  Definitions.
6.3  Collection and use of information (Privacy Act statements).
6.4  Standards of accuracy.
6.5  Rules of conduct.
6.6  Safeguarding systems of records.
6.7  Records of other agencies.
6.8  Subpoena and other legal demands.
6.9  Inconsistent issuances of FEMA and/or its predecessor agencies 
          superseded.
6.10  Assistance and referrals.

                    Subpart B--Disclosure of Records

6.20  Conditions of disclosure.
6.21  Procedures for disclosure.
6.22  Accounting of disclosures.

                 Subpart C--Individual Access to Records

6.30  Form of requests.
6.31  Special requirements for medical records.
6.32  Granting access.
6.33  Denials of access.
6.34  Appeal of denial of access within FEMA.

                  Subpart D--Requests To Amend Records

6.50  Submission of requests to amend records.
6.51  Review of requests to amend records.
6.52  Approval of requests to amend records.
6.53  Denial of requests to amend records.
6.54  Agreement to alternative amendments.
6.55  Appeal of denial of request to amend a record.
6.56  Statement of disagreement.
6.57  Judicial review.

  Subpart E--Report on New Systems and Alterations of Existing Systems

6.70  Reporting requirement.
6.71  Federal Register notice of establishment of new system or 
          alteration of existing system.
6.72  Effective date of new system of records or alteration of an 
          existing system of records.

                             Subpart F--Fees

6.80  Records available at fee.
6.81  Additional copies.
6.82  Waiver of fee.
6.83  Prepayment of fees.
6.84  Form of payment.
6.85  Reproduction fees.

                  Subpart G--Exempt Systems of Records

6.86  General exemptions.
6.87  Specific exemptions.

    Authority: 5 U.S.C. 552a; Reorganization Plan No. 3 of 1978; and 
E.O. 12127.

    Source: 44 FR 50293, Aug. 27, 1979, unless otherwise noted.



                           Subpart A--General



Sec. 6.1  Purpose and scope of part.

    This part sets forth policies and procedures concerning the 
collection, use and dissemination of records maintained by the Federal 
Emergency Management Agency (FEMA) which are subject to the provision of 
5 U.S.C. 552a, popularly known as the ``Privacy Act of 1974'' 
(hereinafter referred to as the Act). These policies and procedures 
govern only those records as defined in Sec. 6.2. Policies and 
procedures governing the disclosure and availability of records in 
general are in part 5 of this chapter. This part also covers: (a) 
Procedures for notification to individuals

[[Page 47]]

of a FEMA system of records pertaining to them; (b) guidance to 
individuals in obtaining information, including inspections of, and 
disagreement with, the content of records; (c) accounting of disclosure; 
(d) special requirements for medical records; and (e) fees.



Sec. 6.2  Definitions.

    For the purpose of this part:
    (a) Agency includes any executive department, military department, 
Government corporation, Government controlled corporation, or other 
establishment in the executive branch of the Government (including the 
Executive Office of the President), or any independent regulatory agency 
(see 5 U.S.C. 552(e)).
    (b) Individual means a citizen of the United States or an alien 
lawfully admitted for permanent residence.
    (c) Maintain includes maintain, collect, use, and disseminate.
    (d) Record means any item, collection, or grouping of information 
about an individual that is maintained by an agency, including, but not 
limited to those concerning education, financial transactions, medical 
history, and criminal or employment history, and that contains the name 
or other identifying particular assigned to the individual, such as a 
fingerprint, voiceprint, or photograph.
    (e) System of records means a group of any records under the control 
of an agency from which information is retrieved by the name of the 
individual or by some identifying number, symbol, or other 
identification assigned to that individual.
    (f) Statistical record means a record in a system of records 
maintained for statistical research or reporting purposes only and not 
used in whole or in part in making any determination about an 
identifiable individual, except as provided by 13 U.S.C. 8.
    (g) Routine use means, with respect to the disclosure of a record, 
the use of that record for a purpose which is compatible with the 
purpose for which it was collected.
    (h) System manager means the employee of FEMA who is responsible for 
the maintenance of a system of records and for the collection, use, and 
dissemination of information therein.
    (i) Subject individual means the individual named or discussed in a 
record of the individual to whom a record otherwise pertains.
    (j) Disclosure means a transfer of a record, a copy of a record, or 
any or all of the information contained in a record to a recipient other 
than the subject individual, or the review of a record by someone other 
than the subject individual.
    (k) Access means a transfer of a record, a copy of a record, or the 
information in a record to the subject individual, or the review of a 
record by the subject individual.
    (l) Solicitation means a request by an officer or employee of FEMA 
that an individual provide information about himself or herself.
    (m) Director means the Director, FEMA.
    (n) Deputy Director means the Deputy Director, FEMA, or, in the case 
of the absence of the Deputy Director, or a vacancy in that office, a 
person designated by the Director to perform the functions under this 
regulation of the Deputy Director.
    (o) Privacy Appeals Officer means the FOIA/Privacy Act Specialist or 
his/her designee.

[44 FR 50293, Aug. 27, 1979, as amended at 45 FR 17152, Mar. 18, 1980; 
51 FR 34604, Sept. 30, 1986]



Sec. 6.3  Collection and use of information (Privacy Act statements).

    (a) General. Any information used in whole or in part in making a 
determination about an individual's rights, benefits, or privileges 
under FEMA programs will be collected directly from the subject 
individual to the extent practicable. The system manager also shall 
ensure that information collected is used only in conformance with the 
provisions of the Act and these regulations.
    (b) Solicitation of information. System managers shall ensure that 
at the time information is solicited the solicited individual is 
informed of the authority for collecting that information, whether 
providing the information is mandatory or voluntary, the purpose for 
which the information will be used, the

[[Page 48]]

routine uses to be made of the information, and the effects on the 
individual, if any, of not providing the information. The Director, 
Office of Administrative Support and Regional Directors shall ensure 
that forms used to solicit information are in compliance with the Act 
and these regulations.
    (c) Solicitation of Social Security numbers. Before an employee of 
FEMA can deny to any individual a right, benefit, or privilege provided 
by law because such individual refuses to disclose his/her social 
security account number, the employee of FEMA shall ensure that either:
    (1) The disclosure is required by Federal statute; or
    (2) The disclosure of a social security number was required under a 
statute or regulation adopted before January 1, 1975, to verify the 
identity of an individual, and the social security number will become a 
part of a system of records in existence and operating before January 1, 
1975.

If solicitation of the social security number is authorized under 
paragraph (c) (1) or (2) of this section, the FEMA employee who requests 
an individual to disclose the social security account number shall first 
inform that individual whether that disclosure is mandatory or 
voluntary, by what statutory or other authority the number is solicited, 
and the use that will be made of it.
    (d) Soliciting information from third parties. An employee of FEMA 
shall inform third parties who are requested to provide information 
about another individual of the purposes for which the information will 
be used.

[44 FR 50293, Aug. 27, 1979, as amended at 47 FR 13149, Mar. 29, 1982; 
48 FR 12091, Mar. 23, 1983; 50 FR 40006, Oct. 1, 1985]



Sec. 6.4  Standards of accuracy.

    The system manager shall ensure that all records which are used by 
FEMA to make determinations about any individual are maintained with 
such accuracy, relevance, timeliness, and completeness as is reasonably 
necessary to ensure fairness to the individual.



Sec. 6.5  Rules of conduct.

    Employees of FEMA involved in the design, development, operation, or 
maintenance of any system of records or in maintaining any record, shall 
conduct themselves in accordance with the rules of conduct concerning 
the protection of personal information in Sec. 3.25 of this chapter.



Sec. 6.6  Safeguarding systems of records.

    (a) Systems managers shall ensure that appropriate administrative, 
technical, and physical safeguards are established to ensure the 
security and confidentiality of records and to protect against any 
anticipated threats or hazards to their security or integrity which 
could result in substantial harm, embarrassment, inconvenience, or 
unfairness to any individual on whom information is maintained.
    (b) Personnel information contained in both manual and automated 
systems of records shall be protected by implementing the following 
safeguards:
    (1) Official personnel folders, authorized personnel operating or 
work folders and other records of personnel actions effected during an 
employee's Federal service or affecting the employee's status and 
service, including information on experience, education, training, 
special qualification, and skills, performance appraisals, and conduct, 
shall be stored in a lockable metal filing cabinet when not in use by an 
authorized person. A system manager may employ an alternative storage 
system providing that it furnished an equivalent degree of physical 
security as storage in a lockable metal filing cabinet.
    (2) System managers, at their discretion, may designate additional 
records of unusual sensitivity which require safeguards similar to those 
described in paragraph (a) of this section.
    (3) A system manager shall permit access to and use of automated or 
manual personnel records only to persons whose official duties require 
such access, or to a subject individual or his or her representative as 
provided by this part.

[[Page 49]]



Sec. 6.7  Records of other agencies.

    If FEMA receives a request for access to records which are the 
primary responsibility of another agency, but which are maintained by or 
in the temporary possession of FEMA on behalf of that agency, FEMA will 
advise the requestor that the request has been forwarded to the 
responsible agency. Records in the custody of FEMA which are the primary 
responsibility of the Office of Personnel Management are governed by the 
rules promulgated by it pursuant to the Privacy Act.



Sec. 6.8  Subpoena and other legal demands.

    Access to records in systems of records by subpoena or other legal 
process shall be in accordance with the provisions of part 5 of this 
chapter.



Sec. 6.9  Inconsistent issuances of FEMA and/or its predecessor agencies superseded.

    Any policies and procedures in any issuances of FEMA or any of its 
predecessor agencies which are inconsistent with the policies and 
procedures in this part are superseded to the extent of that 
inconsistency.



Sec. 6.10  Assistance and referrals.

    Requests for assistance and referral to the responsible system 
manager or other FEMA employee charged with implementing these 
regulations should be made to the Privacy Appeals Officer, Federal 
Emergency Management Agency, Washington, DC 20472.

[45 FR 17152, Mar. 18, 1980]



                    Subpart B--Disclosure of Records



Sec. 6.20  Conditions of disclosure.

    No employee of FEMA shall disclose any record to any person or to 
another agency without the express written consent of the subject 
individual unless the disclosure is:
    (a) To officers or employees of FEMA who have a need for the 
information in the official performance of their duties;
    (b) Required by the provisions of the Freedom of Information Act, 5 
U.S.C. 552.
    (c) For a routine use as published in the notices in the Federal 
Register;
    (d) To the Bureau of the Census for use pursuant to title 13, United 
States Code;
    (e) To a recipient who has provided FEMA with advance adequate 
written assurance that the record will be used solely as a statistical 
research or reporting record subject to the following: The record shall 
be transferred in a form that is not individually identifiable. The 
written statement should include as a minimum (1) a statement of the 
purpose for requesting the records; and (2) certification that the 
records will be used only for statistical purposes. These written 
statements should be maintained as accounting records. In addition to 
deleting personal identifying information from records released for 
statistical purposes, the system manager shall ensure that the identity 
of the individual cannot reasonably be deduced by combining various 
statistical records;
    (f) To the National Archives of the United States as a record which 
has sufficient historical or other value to warrant its continued 
preservation by the United States Government, or for evaluation by the 
Administrator of The National Archives and Records Administration or his 
designee to determine whether the record has such value;
    (g) To another agency or instrumentality of any governmental 
jurisdiction within or under the control of the United States for civil 
or criminal law enforcement activity, if the activity is authorized by 
law, and if the head of the agency or instrumentality or his designated 
representative has made a written request to the Director specifying the 
particular portion desired and the law enforcement activity for which 
the record is sought;
    (h) To a person showing compelling circumstances affecting the 
health and safety of an individual to whom the record pertains. (Upon 
such disclosure, a notification must be sent to the last known address 
of the subject individual.)
    (i) To either House of Congress or to a subcommittee or committee 
(joint or of either House, to the extent that the subject matter falls 
within their jurisdiction;
    (j) To the Comptroller General or any duly authorized 
representatives of the

[[Page 50]]

Comptroller General in the course of the performance of the duties of 
the General Accounting Office; or
    (k) Pursuant to the order of a court of competent jurisdiction.
    (l) To consumer reporting agencies as defined in the Fair Credit 
Reporting Act (35 U.S.C. 1681a(f) or the Debt Collection Act of 1982 (31 
U.S.C. 3711(d)(4)).

[44 FR 50293, Aug. 27, 1979, as amended at 48 FR 44543, Sept. 29, 1983; 
50 FR 40006, Oct. 1, 1985]



Sec. 6.21  Procedures for disclosure.

    (a) Upon receipt of a request for disclosure, the system manager 
shall verify the right of the requestor to obtain disclosure pursuant to 
Sec. 6.20. Upon that verification and subject to other requirements of 
this part, the system manager shall make the requested records 
available.
    (b) If the system manager determines that the disclosure is not 
permitted under the provisions of Sec. 6.20 or other provisions of this 
part, the system manager shall deny the request in writing and shall 
inform the requestor of the right to submit a request for review and 
final determination to the Director or designee.



Sec. 6.22  Accounting of disclosures.

    (a) Except for disclosures made pursuant to Sec. 6.20 (a) and (b), 
an accurate accounting of each disclosure shall be made and retained for 
5 years after the disclosure or for the life of the record, whichever is 
longer. The accounting shall include the date, nature, and purpose of 
each disclosure, and the name and address of the person or agency to 
whom the disclosure is made;
    (b) The system manager also shall maintain in conjunction with the 
accounting of disclosures;
    (1) A full statement of the justification for the disclosure.
    (2) All documentation surrounding disclosure of a record for 
statistical or law enforcement purposes; and
    (3) Evidence of written consent to a disclosure given by the subject 
individual.
    (c) Except for the accounting of disclosures made to agencies or 
instrumentalities in law enforcement activities in accordance with 
Sec. 6.20 (g) or of disclosures made from exempt systems the accounting 
of disclosures shall be made available to the individual upon request. 
Procedures for requesting access to the accounting are in subpart C of 
this part.



                 Subpart C--Individual Access to Records



Sec. 6.30  Form of requests.

    (a) An individual who seeks access to his or her record or to any 
information pertaining to the individual which is contained in a system 
of records should notify the system manager at the address indicated in 
the Federal Register notice describing the pertinent system. The notice 
should bear the legend ``Privacy Act Request'' both on the request 
letter and on the envelope. It will help in the processing of a request 
if the request letter contains the complete name and identifying number 
of the system as published in the Federal Register; the full name and 
address of the subject individual; a brief description of the nature, 
time, place, and circumstances of the individual's association with 
FEMA; and any other information which the individual believes would help 
the system manager to determine whether the information about the 
individual is included in the system of records. The system manager 
shall answer or acknowledge the request within 10 workdays of its 
receipt by FEMA.
    (b) The system manager, at his discretion, may accept oral requests 
for access subject to verification of identity.



Sec. 6.31  Special requirements for medical records.

    (a) A system manager who receives a request from an individual for 
access to those official medical records which belong to the U.S. Office 
of Personnel Management and are described in Chapter 339, Federal 
Personnel Manual (medical records about entrance qualifications or 
fitness for duty, or medical records which are otherwise filed in the 
Official Personnel Folder), shall refer the pertinent system of records 
to a Federal Medical Officer for review and determination in accordance 
with this section. If no Federal Medical Officer is available to make 
the determination

[[Page 51]]

required by this section, the system manager shall refer the request and 
the medical reports concerned to the Office of Personnel Management for 
determination.
    (b) If, in the opinion of a Federal Medical Officer, medical records 
requested by the subject individual indicate a condition about which a 
prudent physician would hesitate to inform a person suffering from such 
a condition of its exact nature and probable outcome, the system manager 
shall not release the medical information to the subject individual nor 
to any person other than a physician designated in writing by the 
subject individual, or the guardian or conservator of the individual.
    (c) If, in the opinion of a Federal Medical Officer, the medical 
information does not indicate the presence of any condition which would 
cause a prudent physician to hesitate to inform a person suffering from 
such a condition of its exact nature and probable outcome, the system 
manager shall release it to the subject individual or to any person, 
firm, or organization which the individual authorizes in writing to 
receive it.



Sec. 6.32  Granting access.

    (a) Upon receipt of a request for access to non-exempt records, the 
system manager shall make these records available to the subject 
individual or shall acknowledge the request within 10 workdays of its 
receipt by FEMA. The acknowledgment shall indicate when the system 
manager will make the records available.
    (b) If the system manager anticipates more than a 10 day delay in 
making a record available, he or she also shall include in the 
acknowledgment specific reasons for the delay.
    (c) If a subject individual's request for access does not contain 
sufficient information to permit the system manager to locate the 
records, the system manager shall request additional information from 
the individual and shall have 10 workdays following receipt of the 
additional information in which to make the records available or to 
acknowledge receipt of the request and indicate when the records will be 
available.
    (d) Records will be available for authorized access during normal 
business hours at the offices where the records are located. A requestor 
should be prepared to identify himself or herself by signature; i.e., to 
note by signature the date of access and/or produce other identification 
verifying the signature.
    (e) Upon request, a system manager shall permit an individual to 
examine the original of a non-exempt record, shall provide the 
individual with a copy of the record, or both. Fees shall be charged in 
accordance with subpart F.
    (f) An individual may request to pick up a record in person or to 
receive it by mail, directed to the name and address provided by the 
individual in the request. A system manager shall not make a record 
available to a third party for delivery to the subject individual except 
for medical records as outlined in Sec. 6.31.
    (g) An individual who selects another person to review, or to 
accompany the individual in reviewing or obtaining a copy of the record 
must, prior to the disclosure, sign a statement authorizing the 
disclosure of the record. The system manager shall maintain this 
statement with the record.
    (h) The procedure for access to an accounting of disclosure is 
identical to the procedure for access to a record as set forth in this 
section.



Sec. 6.33  Denials of access.

    (a) A system manager may deny an individual access to that 
individual's record only upon the grounds that FEMA has published the 
rules in the Federal Register exempting the pertinent system of records 
from the access requirement. These exempt systems of records are 
described in subpart G of this part.
    (b) Upon receipt of a request for access to a record which the 
system manager believes is contained within an exempt system of records 
he or she shall forward the request to the appropriate official listed 
below or to his or her delegate through normal supervisory channels.
    (1) Deputy Director
    (2) [Reserved]
    (3) Federal Insurance Administrator
    (4) Associate Directors

[[Page 52]]

    (5) United States Fire Administrator
    (6) Chief of Staff
    (7) Office Directors
    (8) General Counsel
    (9) Inspector General
    (10) Comptroller
    (11) Regional Directors

The system manager shall append to the request an explanation of the 
determination that the requested record is contained within an exempt 
system of records and a recommendation that the request be denied or 
granted.
    (c) In the event that the system manager serves in one of the 
positions listed in paragraph (b) of this section, he or she shall 
retain the responsibility for denying or granting the request.
    (d) The appropriate official listed in paragraph (b) of this section 
shall, in consultation with the Office of General Counsel and such other 
officials as deemed appropriate, determine if the request record is 
contained within an exempt system of records and:
    (1) If the record is not contained within an exempt system of 
records, the above official shall notify the system manager to grant the 
request in accordance with Sec. 6.32, or
    (2) If the record is contained within an exempt system said official 
shall;
    (i) Notify the requestor that the request is denied, including a 
statement justifying the denial and advising the requestor of a right to 
judicial review of that decision as provided in Sec. 6.57, or
    (ii) Notify the system manager to make record available to the 
requestor in accordance with Sec. 6.31, notwithstanding the record's 
inclusion within an exempt system.
    (e) The appropriate official listed in paragraph (b) of this section 
shall provide the Privacy Appeals Office with a copy of any denial of a 
requested access.

[44 FR 50293, Aug. 27, 1979, as amended at 48 FR 44543, Sept. 29, 1983; 
50 FR 40006, Oct. 1, 1985; 51 FR 34604, Sept. 30, 1986]



Sec. 6.34  Appeal of denial of access within FEMA.

    A requestor denied access in whole or in part, to records pertaining 
to that individual, exclusive of those records for which the system 
manager is the Director, may file an administrative appeal of that 
denial. Appeals of denied access will be processed in the same manner as 
processing for appeals from a denial of a request to amend a record set 
out in Sec. 6.55, regardless whether the denial being appealed is made 
at headquarters or by a regional official.



                  Subpart D--Requests To Amend Records



Sec. 6.50  Submission of requests to amend records.

    An individual who desires to amend any record containing personal 
information about the individual should direct a written request to the 
system manager specified in the pertinent Federal Register notice 
concerning FEMA's systems of records. A current FEMA employee who 
desires to amend personnel records should submit a written request to 
the FEMA Director of Personnel, Washington, DC 20472. Each request 
should include evidence of and justification for the need to amend the 
pertinent record. Each request should bear the legend ``Privacy Act--
Request to Amend Record'' prominently marked on both the face of the 
request letter and the envelope.



Sec. 6.51  Review of requests to amend records.

    (a) The system manager shall acknowledge the receipt of a request to 
amend a record within 10 workdays. If possible, the acknowledgment shall 
include the system manager's determination either to amend the record or 
to deny the request to amend as provided in Sec. 6.53.
    (b) When reviewing a record in response to a request to amend, the 
system manager shall assess the accuracy, relevance, timeliness, and 
completeness of the existing record in light of the proposed amendment 
and shall determine whether the request for the amendment is justified. 
With respect to a request to delete information, the system manager also 
shall review the request and the existing record to determine whether 
the information is relevant and necessary to accomplish an agency 
purpose required to be accomplished by statute or Executive Order.

[[Page 53]]



Sec. 6.52  Approval of requests to amend records.

    If the system manager determines that amendment of a record is 
proper in accordance with the request to amend, he or she promptly shall 
make the necessary corrections to the record and shall send a copy of 
the corrected record to the individual. Where an accounting of 
disclosure has been maintained, the system manager shall advise all 
previous recipients of the record of the fact that a correction has been 
made and the substance of the correction. Where practicable, the system 
manager shall advise the Privacy Appeals Officer that a request to amend 
has been approved.



Sec. 6.53  Denial of requests to amend records.

    (a) If the system manager determines that an amendment of a record 
is improper or that the record should be amended in a manner other than 
that requested by an individual, he shall refer the request to amend and 
his determinations and recommendations to the appropriate official 
listed in Sec. 6.33(b) through normal supervisory channels.
    (b) If the official listed in Sec. 6.33, after reviewing the request 
to amend a record, determines to amend the record in accordance with the 
request, said official promptly shall return the request to the system 
manager with instructions to make the requested amendments in accordance 
with Sec. 6.52.
    (c) If the appropriate official listed in Sec. 6.33, after reviewing 
the request to amend a record, determines not to amend the record in 
accordance with the request, the requestor shall be promptly advised in 
writing of the determination. The refusal letter (1) shall state the 
reasons for the denial of the request to amend; (2) shall include 
proposed alternative amendments, if appropriate; (3) shall state the 
requestor's right to appeal the denial of the request to amend; and (4) 
shall state the procedures for appealing and the name and title of the 
official to whom the appeal is to be addressed.
    (d) The appropriate official listed in Sec. 6.33 shall furnish the 
Privacy Appeals Officer a copy of each initial denial of a request to 
amend a record.

[44 FR 50293, Aug. 27, 1979, as amended at 45 FR 17152, Mar. 18, 1980]



Sec. 6.54  Agreement to alternative amendments.

    If the denial of a request to amend a record includes proposed 
alternative amendments, and if the requestor agrees to accept them, he 
or she must notify the official who signed the denial. That official 
immediately shall instruct the system manager to make the necessary 
amendments in accordance with Sec. 6.52.



Sec. 6.55  Appeal of denial of request to amend a record.

    (a) A requestor who disagrees with a denial of a request to amend a 
record may file an administrative appeal of that denial. The requestor 
should address the appeal to the FEMA Privacy Appeals Officer, 
Washington, DC 20472. If the requestor is an employee of FEMA and the 
denial to amend involves a record maintained in the employee's Official 
Personnel Folder covered by an Office of Personnel Management 
Government-wide system notice, the appeal should be addressed to the 
Assistant Director, Information Systems, Agency Compliance and 
Evaluation Group, Office of Personnel Management, Washington, DC 20415.
    (b) Each appeal to the Privacy Act Appeals Officer shall be in 
writing and must be received by FEMA no later than 30 calendar days from 
the requestor's receipt of a denial of a request to amend a record. The 
appeal should bear the legend ``Privacy Act--Appeal,'' both on the face 
of the letter and the envelope.
    (c) Upon receipt of an appeal, the Privacy Act Appeals Officer shall 
consult with the system manager, the official who made the denial, the 
General Counsel or a member of that office, and such other officials as 
may be appropriate. If the Privacy Act Appeals Officer in consultation 
with these officials, determines that the record should be amended, as 
requested, the system manager shall be instructed immediately to amend 
the record in accordance with Sec. 6.52 and shall notify the requestor 
of that action.

[[Page 54]]

    (d) If the Privacy Act Appeals Officer, in consultation with the 
officials specified in paragraph (c) of this section, determines that 
the appeal should be rejected, the Privacy Act Appeals Officer shall 
submit the file on the request and appeal, including findings and 
recommendations, to the Deputy Director for a final administrative 
determination.
    (e) If the Deputy Director determines that the record should be 
amended as requested, he or she immediately shall instruct the system 
manager in writing to amend the record in accordance with Sec. 6.52. The 
Deputy Director shall send a copy of those instructions to the Privacy 
Act Appeals Officer, who shall notify the requester of that action.
    (f) If the Deputy Director determines to reject the appeal, the 
requestor shall immediately be notified in writing of that 
determination. This action shall constitute the final administrative 
determination on the request to amend the record and shall include:
    (1) The reasons for the rejection of the appeal.
    (2) Proposed alternative amendments, if appropriate, which the 
requestor subsequently may accept in accordance with Sec. 6.54.
    (3) Notice of the requestor's right to file a Statement of 
Disagreement for distribution in accordance with Sec. 6.56.
    (4) Notice of the requestor's right to seek judicial review of the 
final administrative determination, as provided in Sec. 6.57.
    (g) The final agency determination must be made no later than 30 
workdays from the date on which the appeal is received by the Privacy 
Act Appeals Officer.
    (h) In extraordinary circumstances, the Director may extend this 
time limit by notifying the requestor in writing before the expiration 
of the 30 workdays. The Director's notification will include a 
justification for the extension.

[44 FR 50293, Aug. 27, 1979, as amended at 45 FR 17152, Mar. 18, 1980]



Sec. 6.56  Statement of disagreement.

    Upon receipt of a final administrative determination denying a 
request to amend a record, the requestor may file a Statement of 
Disagreement with the appropriate system manager. The Statement of 
Disagreement should include an explanation of why the requestor believes 
the record to be inaccurate, irrelevant, untimely, or incomplete. The 
system manager shall maintain the Statement of Disagreement in 
conjunction with the pertinent record, and shall include a copy of the 
Statement of Disagreement in any disclosure of the pertinent record. The 
system manager shall provide a copy of the Statement of Disagreement to 
any person or agency to whom the record has been disclosed only if the 
disclosure was subject to the accounting requirements of Sec. 6.22.



Sec. 6.57  Judicial review.

    Within 2 years of receipt of a final administrative determination as 
provided in Sec. 6.34 or Sec. 6.55, a requestor may seek judicial review 
of that determination. A civil action must be filed in the Federal 
District Court in which the requestor resides or has his or her 
principal place of business or in which the agency records are situated, 
or in the District of Columbia.



  Subpart E--Report on New Systems and Alterations of Existing Systems



Sec. 6.70  Reporting requirement.

    (a) No later than 90 calendar days prior to the establishment of a 
new system of records, the prospective system manager shall notify the 
Privacy Appeals Officer of the proposed new system. The prospective 
system manager shall include with the notification a completed FEMA Form 
11-2, System of Records Covered by the Privacy Act of 1974, and a 
justification for each system of records proposed to be established. If 
the Privacy Appeals Officer determines that the establishment of the 
proposed system is in the best interest of the Government, then no later 
than 60 calendar days prior to the establishment of that system of 
records, a report of the proposal shall be submitted by the Director or 
a designee thereof, to the President of the Senate, the Speaker of the 
House of Representatives, and the Administrator, Office of Information 
and Regulatory Affairs, Office of Management and Budget for

[[Page 55]]

their evaluation of the probable or potential effect of that proposal on 
the privacy and other personal or property rights of individuals.
    (b) No later than 90 calendar days prior to the alteration of a 
system of records, the system manager responsible for the maintenance of 
that system of records shall notify the Privacy Appeals Officer of the 
proposed alteration. The system manager shall include with the 
notification a completed FEMA Form 11-2. System of Records Covered by 
the Privacy Act of 1974, and a justification for each system of records 
he proposes to alter. If it is determined that the proposed alteration 
is in the best interest of the Government, then, the Director, or a 
designee thereof, shall submit, no later than 60 calendar days prior to 
the establishment of that alteration, a report of the proposal to the 
President of the Senate, the Speaker of the House of Representatives, 
and the Administrator, Office of Information and Regulatory Affairs, 
Office of Management and Budget for their evaluation of the probable or 
potential effect of that proposal on the privacy and other personal or 
property rights of individuals.
    (c) The reports required by this regulation are exempt from reports 
control.
    (d) The Administrator, Office of Information and Regulatory Affairs, 
Office of Management and Budget may waive the time requirements set out 
in this section upon a finding that a delay in the establishing or 
amending the system would not be in the public interest and showing how 
the public interest would be adversely affected if the waiver were not 
granted and otherwise complying with OMB Circular A-130.

[44 FR 50293, Aug. 27, 1979, as amended at 45 FR 17152, Mar. 18, 1980; 
51 FR 34604, Sept. 30, 1986]



Sec. 6.71  Federal Register notice of establishment of new system or alteration of existing system.

    Notice of the proposed establishment or alteration of a system of 
records shall be published in the Federal Register, in accordance with 
FEMA procedures when:
    (a) Notice is received that the Senate, the House of 
Representatives, and the Office of Management and Budget do not object 
to the establishment of a new system or records or to the alteration of 
an existing system of records, or
    (b) No fewer than 30 calendar days elapse from the date of 
submission of the proposal to the Senate, the House of Representatives, 
and the Office of Management and Budget without receipt of an objection 
to the proposal. The notice shall include all of the information 
required to be provided in FEMA Form 11-2, System of Records Covered by 
the Privacy Act of 1974, and such other information as the Director 
deems necessary.



Sec. 6.72  Effective date of new system of records or alteration of an existing system of records.

    Systems of records proposed to be established or altered in 
accordance with the provisions of this subpart shall be effective no 
sooner than 30 calendar days from the publication of the notice required 
by Sec. 6.71.



                             Subpart F--Fees



Sec. 6.80  Records available at fee.

    The system manager shall provide a copy of a record to a requestor 
at a fee prescribed in Sec. 6.85 unless the fee is waived under 
Sec. 6.82.

[44 FR 50293, Aug. 27, 1979, as amended at 45 FR 17152, Mar. 18, 1980]



Sec. 6.81  Additional copies.

    A reasonable number of additional copies shall be provided for the 
applicable fee to a requestor who indicates that he has no access to 
commercial reproduction services.



Sec. 6.82  Waiver of fee.

    The system manager shall make one copy of a record, up to 300 pages, 
available without charge to a requestor who is an employee of FEMA. The 
system manager may waive the fee requirement for any other requestor if 
the cost of collecting the fee is an unduly large part of, or greater 
than, the fee, or when furnishing the record without

[[Page 56]]

charge conforms to generally established business custom or is in the 
public interest.

[44 FR 50287, Aug. 27, 1979, as amended at 52 FR 13679, Apr. 24, 1987]



Sec. 6.83  Prepayment of fees.

    (a) When FEMA estimates or determines that allowable charges that a 
requester may be required to pay are likely to exceed $250.00, FEMA may 
require a requester to make an advance payment of the entire fee before 
continuing to process the request.
    (b) When a requester has previously failed to pay a fee charged in a 
timely fashion (i.e., within 30 days of the date of the billing), FEMA 
may require the requester to pay the full amount owed plus any 
applicable interest as provided in Sec. 6.85(d), and to make an advance 
payment of the full amount of the estimated fee before the agency begins 
to process a new request or a pending request from that requester.
    (c) When FEMA acts under Sec. 5.44 (a) or (b), the administrative 
time limits prescribed in subsection (a)(6) of the FOIA (i.e., 10 
working days from the receipt of initial requests and 20 working days 
from receipt of appeals from initial denial, plus permissible extensions 
of these time limits) will begin only after FEMA has received fee 
payments described under Sec. 5.44 (a) or (b).

[52 FR 13679, Apr. 24, 1987]



Sec. 6.84  Form of payment.

    Payment shall be by check or money order payable to The Federal 
Emergency Management Agency and shall be addressed to the system 
manager.



Sec. 6.85  Reproduction fees.

    (a) Duplication costs. (1) For copies of documents reproduced on a 
standard office copying machine in sizes up to 8\1/2\ x 14 inches, the 
charge will be $.15 per page.
    (2) The fee for reproducing copies of records over 8\1/2\ x 14 
inches or whose physical characteristics do not permit reproduction by 
routine electrostatic copying shall be the direct cost of reproducing 
the records through Government or commercial sources. If FEMA estimates 
that the allowable duplication charges are likely to exceed $25, it 
shall notify the requester of the estimated amount of fees, unless the 
requester has indicated in advance his/her willingness to pay fees as 
high as those anticipated. Such a notice shall offer a requester the 
opportunity to confer with agency personnel with the objective of 
reformulating the request to meet his/her needs at a lower cost.
    (3) For other methods of reproduction or duplication, FEMA shall 
charge the actual direct costs of producing the document(s). If FEMA 
estimates that the allowable duplication charges are likely to exceed 
$25, it shall notify the requester of the estimated amount of fees, 
unless the requester has indicated in advance his/her willingness to pay 
fees as high as those anticipated. Such a notice shall offer a requester 
the opportunity to confer with agency personnel with the objective of 
reformulating the request to meet his/her needs at a lower cost.
    (b) Interest may be charge to those requesters who fail to pay fees 
charged. FEMA may begin assessing interest charges on the amount billed 
starting on the 31st day following the day on which the billing was 
sent. Interest will be at the rate prescribed in section 3717 of title 
31 U.S.C.

[52 FR 13679, Apr. 24, 1987]



                  Subpart G--Exempt Systems of Records



Sec. 6.86  General exemptions.

    (a) Whenever the Director, Federal Emergency Management Agency, 
determines it to be necessary and proper, with respect to any system of 
records maintained by the Federal Emergency Management Agency, to 
exercise the right to promulgate rules to exempt such systems in 
accordance with the provisions of 5 U.S.C. 552a (j) and (k), each 
specific exemption, including the parts of each system to be exempted, 
the provisions of the Act from which they are exempted, and the 
justification for each exemption shall be published in the Federal 
Register as part of FEMA's Notice of Systems of Records.
    (b) Exempt under 5 U.S.C. 552a(j)(2) from the requirements of 5 
U.S.C. 552a(c) (3) and (4), (d), (e) (1), (2), (3),

[[Page 57]]

(e)(4) (G), (H), and (I), (e) (5) and (8) (f) and (g) of the Privacy 
Act.
    (1) Exempt systems. The following systems of records, which contain 
information of the type described in 5 U.S.C. 552(j)(2), shall be exempt 
from the provisions of 5 U.S.C. 552a listed in paragraph (b) of this 
section.

General Investigative Files (FEMA/IG-2)--Limited Access

    (2) Reasons for exemptions. (i) 5 U.S.C. 552a (e)(4)(G) and (f)(1) 
enable individuals to be notified whether a system of records contains 
records pertaining to them. The Federal Emergency Management Agency 
believes that application of these provisions to the above-listed system 
of records would give individuals an opportunity to learn whether they 
are of record either as suspects or as subjects of a criminal 
investigation; this would compromise the ability of the Federal 
Emergency Management Agency to complete investigations and identify or 
detect violators of laws administered by the Federal Emergency 
Management Agency or other Federal agencies. Individuals would be able 
(A) to take steps to avoid detection, (B) to inform co-conspirators of 
the fact that an investigation is being conducted, (C) to learn the 
nature of the investigation to which they are being subjected, (D) to 
learn the type of surveillance being utilized, (E) to learn whether they 
are only suspects or identified law violators, (F) to continue to resume 
their illegal conduct without fear of detection upon learning that they 
are not in a particular system of records, and (G) to destroy evidence 
needed to prove the violation.
    (ii) 5 U.S.C. 552a (d)(1), (e)(4)(H) and (f)(2), (3) and (5) enable 
individuals to gain access to records pertaining to them. The Federal 
Emergency Management Agency believes that application of these 
provisions to the above-listed system of records would compromise its 
ability to complete or continue criminal investigations and to detect or 
identify violators of laws administered by the Federal Emergency 
Management Agency or other Federal agencies. Permitting access to 
records contained in the above-listed system of records would provide 
individuals with significant information concerning the nature of the 
investigation, and this could enable them to avoid detection or 
apprehension in the following ways:
    (A) By discovering the collection of facts which would form the 
basis for their arrest, (B) by enabling them to destroy evidence of 
criminal conduct which would form the basis for their arrest, and (C) by 
learning that the criminal investigators had reason to believe that a 
crime was about to be committed, they could delay the commission of the 
crime or change the scene of the crime to a location which might not be 
under surveillance. Granting access to ongoing or closed investigative 
files would also reveal investigative techniques and procedures, the 
knowledge of which could enable individuals planning criminal activity 
to structure their future operations in such a way as to avoid detection 
or apprehension, thereby neutralizing law enforcement officers' 
established investigative tools and procedures. Further, granting access 
to investigative files and records could disclose the identity of 
confidential sources and other informers and the nature of the 
information which they supplied, thereby endangering the life or 
physical safety of those sources of information by exposing them to 
possible reprisals for having provided information relating to the 
criminal activities of those individuals who are the subjects of the 
investigative files and records; confidential sources and other 
informers might refuse to provide criminal investigators with valuable 
information if they could not be secure in the knowledge that their 
identities would not be revealed through disclosure of either their 
names or the nature of the information they supplied, and this would 
seriously impair the ability of the Federal Emergency Management Agency 
to carry out its mandate to enforce criminal and related laws. 
Additionally, providing access to records contained in the above-listed 
system of records could reveal the identities of undercover law 
enforcement personnel who compiled information regarding individual's 
criminal activities, thereby endangering the life or physical safety of 
those undercover personnel or their families by exposing them to 
possible reprisals.

[[Page 58]]

    (iii) 5 U.S.C. 552a(d) (2), (3) and (4), (e)(4)(H) and (f)(4), which 
are dependent upon access having been granted to records pursuant to the 
provisions cited in paragraph (b)(2)(ii) of this section, enable 
individuals to contest (seek amendment to) the content of records 
contained in a system of records and require an agency to note an 
amended record and to provide a copy of an individual's statement (of 
disagreement with the agency's refusal to amend a record) to persons or 
other agencies to whom the record has been disclosed. The Federal 
Emergency Management Agency believes that the reasons set forth in 
paragraph (b)(2)(ii) of this section are equally applicable to this 
paragraph and, accordingly, those reasons are hereby incorporated herein 
by reference.
    (iv) 5 U.S.C. 552a(c)(3) requires that an agency make accountings of 
disclosures of records available to individuals named in the records at 
their request; such accountings must state the date, nature and purpose 
of each disclosure of a record and the name and address of the 
recipient. The Federal Emergency Management Agency believes that 
application of this provision to the above-listed system of records 
would impair the ability of other law enforcement agencies to make 
effective use of information provided by the Federal Emergency 
Management Agency in connection with the investigation, detection and 
apprehension of violators of the criminal laws enforced by those other 
law enforcement agencies. Making accountings of disclosure available to 
violators or possible violators would alert those individuals to the 
fact that another agency is conducting an investigation into their 
criminal activities, and this could reveal the geographic location of 
the other agency's investigation, the nature and purpose of that 
investigation, and the dates on which that investigation was active. 
Violators possessing such knowledge would thereby be able to take 
appropriate measures to avoid detection or apprehension by altering 
their operations, by transferring their criminal activities to other 
geographic areas or by destroying or concealing evidence which would 
form the basis for their arrest. In addition, providing violators with 
accountings of disclosure would alert those individuals to the fact that 
the Federal Emergency Management Agency has information regarding their 
criminal activities and could inform those individuals of the general 
nature of that information; this, in turn, would afford those 
individuals a better opportunity to take appropriate steps to avoid 
detection or apprehension for violations of criminal and related laws.
    (v) 5 U.S.C. 552a(c)(4) requires that an agency inform any person or 
other agency about any correction or notation of dispute made by the 
agency in accordance with 5 U.S.C. 552a(d) of any record that has been 
disclosed to the person or agency if an accounting of the disclosure was 
made. Since this provision is dependent on an individual's having been 
provided an opportunity to contest (seek amendment to) records 
pertaining to him/her, and since the above-listed system of records is 
proposed to be exempt from those provisions of 5 U.S.C. 552a relating to 
amendments of records as indicated in paragraph (b)(2)(iii) of this 
section, the Federal Emergency Management Agency believes that this 
provision should not be applicable to the above system of records.
    (vi) 5 U.S.C. 552a(e)(4)(I) requires that an agency publish a public 
notice listing the categories of sources for information contained in a 
system of records. The categories of sources of this system of records 
have been published in the Federal Register in broad generic terms in 
the belief that this is all that subsection (e)(4)(I) of the Act 
requires. In the event, however, that this subsection should be 
interpreted to require more detail as to the identity of sources of the 
records in this system, exemption from this provision is necessary in 
order to protect the confidentiality of the sources of criminal and 
other law enforcement information. Such exemption is further necessary 
to protect the privacy and physical safety of witnesses and informants.
    (vii) 5 U.S.C. 552a(e)(1) requires that an agency maintain in its 
records only such information about an individual as is relevant and 
necessary to accomplish a purpose of the agency required

[[Page 59]]

to be accomplished by statute or executive order. The term maintain as 
defined in 5 U.S.C. 552a(a)(3) includes ``collect'' and ``disseminate.'' 
At the time that information is collected by the Federal Emergency 
Management Agency, there is often insufficient time to determine whether 
the information is relevant and necessary to accomplish a purpose of the 
Federal Emergency Management Agency; in many cases information collected 
may not be immediately susceptible to a determination of whether the 
information is relevant and necessary, particularly in the early stages 
of an investigation, and in many cases, information which initially 
appears to be irrelevant or unnecessary may, upon further evaluation or 
upon continuation of the investigation, prove to have particular 
relevance to an enforcement program of the Federal Emergency Management 
Agency. Further, not all violations of law discovered during a criminal 
investigation fall within the investigative jurisdiction of the Federal 
Emergency Management Agency; in order to promote effective law 
enforcement, it often becomes necessary and desirable to disseminate 
information pertaining to such violations to other law enforcement 
agencies which have jurisdiction over the offense to which the 
information relates. The Federal Emergency Management Agency should not 
be placed in a position of having to ignore information relating to 
violations of law not within its jurisdiction when that information 
comes to the attention of the Federal Emergency Management Agency 
through the conduct of a lawful FEMA investigation. The Federal 
Emergency Management Agency, therefore, believes that it is appropriate 
to exempt the above-listed system of records from the provisions of 5 
U.S.C. 552a(e)(1).
    (viii) 5 U.S.C. 552a(e)(2) requires that an agency collect 
information to the greatest extent practicable directly from the subject 
individual when the information may result in adverse determinations 
about an individual's rights, benefits, and privileges under Federal 
programs. The Federal Emergency Management Agency believes that 
application of this provision to the above-listed system of records 
would impair the ability of the Federal Emergency Management Agency to 
conduct investigations and to identify or detect violators of criminal 
or related laws for the following reasons:
    (A) Most information collected about an individual under criminal 
investigations is obtained from third parties such as witnesses and 
informers, and it is usually not feasible to rely upon the subject of 
the investigation as a source for information regarding his/her criminal 
activities, (B) an attempt to obtain information from the subject of a 
criminal investigation will often alert that individual to the existence 
of an investigation, thereby affording the individual an opportunity to 
attempt to conceal his/her criminal activities so as to avoid 
apprehension, (C) in certain instances, the subject of a criminal 
investigation is not required to supply information to criminal 
investigators as a matter of legal duty, and (D) during criminal 
investigations it is often a matter of sound investigative procedures to 
obtain information from a variety of sources in order to verify 
information already obtained.
    (ix) 5 U.S.C. 552a(e)(3) requires that an agency inform each 
individual whom it asks to supply information, either on the form which 
the agency uses to collect the information or on a separate form which 
can be retained by the individual, with the following information: The 
authority which authorizes the solicitation of the information and 
whether disclosure of such information is mandatory or voluntary; the 
principal purposes for which the information is intended to be used; the 
routine uses which may be made of the information; and the effects on 
the individual of not providing all or part of the requested 
information. The Federal Emergency Management Agency believes that the 
above-listed system of records should be exempted from this provision in 
order to avoid adverse effects on its ability to identify or detect 
violators of criminal or related laws. In many cases, information is 
obtained by confidential sources, other informers or undercover law 
enforcement officers under circumstances where it is necessary that the 
true purpose of their actions be kept secret so as to avoid

[[Page 60]]

alerting the subject of the investigation or his/her associates that a 
criminal investigation is in process. Further, if it became known that 
the undercover officer was assisting in a criminal investigation, that 
officer's life or physical safety could be endangered through reprisal, 
and, under such circumstances it may not be possible to continue to 
utilize that officer in the investigation. In many cases, individuals, 
for personal reasons, would feel inhibited in talking to a person 
representing a criminal law enforcement agency but would be willing to 
talk to a confidential source or undercover officer who they believe is 
not involved in law enforcement activities. In addition, providing a 
source of information with written evidence that he was a source, as 
required by this provision, could increase the likelihood that the 
source of information would be the subject of retaliatory action by the 
subject of the investigation. Further, application of this provision 
could result in an unwarranted invasion of the personal privacy of the 
subject of the criminal investigation, particularly where further 
investigation would result in a finding that the subject was not 
involved in any criminal activity.
    (x) 5 U.S.C. 552a(e)(5) requires that an agency maintain all records 
used by the agency in making any determination about any individual with 
such accuracy, relevance, timeliness and completeness as is reasonably 
necessary to assure fairness to the individual in the determination. 
Since 5 U.S.C. 552a(a)(3) defines ``maintain'' to include ``collect'' 
and ``disseminate,'' application of this provision to the above-listed 
system of records would hinder the initial collection of any information 
which could not, at the moment of collection, be determined to be 
accurate, relevant, timely and complete. Similarly, application of this 
provision would seriously restrict the necessary flow of information 
from the Federal Emergency Management Agency to other law enforcement 
agencies when a FEMA investigation revealed information pertaining to a 
violation of law which was under investigative jurisdiction of another 
agency. In collecting information during the course of a criminal 
investigation, it is not possible or feasible to determine accuracy, 
relevance, timeliness or completeness prior to collection of the 
information; in disseminating information to other law enforcement 
agencies it is often not possible to determine accuracy, relevance, 
timeliness or completeness prior to dissemination because the 
disseminating agency may not have the expertise with which to make such 
determinations. Further, information which may initially appear to be 
inaccurate, irrelevant, untimely or incomplete may, when gathered, 
grouped, and evaluated with other available information, become more 
pertinent as an investigation progresses. In addition, application of 
this provision could seriously impede criminal investigators and 
intelligence analysts in the exercise of their judgment in reporting on 
results obtained during criminal investigations. The Federal Emergency 
Management Agency believes that it is appropriate to exempt the above-
listed system of records from the provisions of 5 U.S.C. 552a(e)(5).
    (xi) 5 U.S.C. 552a(e)(8) requires that an agency make reasonable 
effort to serve notice on an individual when any record on the 
individual is made available to any person under compulsory legal 
process when such process becomes a matter of public record. The Federal 
Emergency Management Agency believes that the above-listed system of 
records should be exempt from this provision in order to avoid revealing 
investigative techniques and procedures outlined in those records and in 
order to prevent revelation of the existence on an on-going 
investigation where there is a need to keep the existence of the 
investigation secret.
    (xii) 5 U.S.C. 552a(g) provides civil remedies to an individual for 
an agency's refusal to amend a record or to make a review of a request 
for amendment; for an agency's refusal to grant access to a record; for 
an agency's failure to maintain accurate, relevant, timely and complete 
records which are used to make a determination which is adverse to the 
individual; and for an agency's failure to comply with any other 
provision of 5 U.S.C. 552a in such a way as to have an adverse effect on 
an individual. The Federal Emergency Management Agency believes that the

[[Page 61]]

above-listed system of records should be exempted from this provision to 
the extent that the civil remedies provided therein may relate to 
provisions of 5 U.S.C. 552a from which the above-listed system of 
records is proposed to be exempt. Since the provisions of 5 U.S.C. 552a 
enumerated in paragraphs (b)(2)(i) through (xi) of this section are 
proposed to be inapplicable to the above-listed systems of records for 
the reasons stated therein, there should be no corresponding civil 
remedies for failure to comply with the requirements of those provisions 
to which the exemption is proposed to apply. Further, the Federal 
Emergency Management Agency believes that application of this provision 
to the above-listed system of records would adversely affect its ability 
to conduct criminal investigations by exposing to civil court action 
every stage of the criminal investigative process in which information 
is compiled or used in order to identify, detect, or otherwise 
investigate persons suspected or known to be engaged in criminal 
conduct.
    (xiii) Individuals may not have access to another agency's records, 
which are contained in files maintained by the Federal Emergency 
Management Agency, when that other agency's regulations provide that 
such records are subject to general exemption under 5 U.S.C. 552a(j). If 
such exempt records are within a request for access, FEMA will advise 
the individual of their existence and of the name and address of the 
source agency. For any further information concerning the record and the 
exemption, the individual must contact that source agency.

[45 FR 64580, Sept. 30, 1980]



Sec. 6.87  Specific exemptions.

    (a) Exempt under 5 U.S.C. 552a(k)(1). The Director, Federal 
Emergency Management Agency has determined that certain systems of 
records may be exempt from the requirements of (c)(3) and (d) pursuant 
to 5 U.S.C. 552a(k)(1) to the extent that the system contains any 
information properly classified under Executive Order 12356 or any 
subsequent Executive order and which are required to be kept secret in 
the interest of national defense or foreign policy. To the extent that 
this occurs, such records in the following systems would be exempt:

Claims (litigation) (FEMA/GC-1)--Limited Access
FEMA Enforcement (Compliance) (FEMA/GC-2)--Limited Access
General Investigative Files (FEMA/IG-1)--Limited Access
Security Management Information System (FEMA/SEC-1)--Limited Access

    (b) Exempt under 5 U.S.C. 552a(k)(2) from the requirements of 5 
U.S.C. 552a (c)(3), (d), (e)(1), (e)(4) (G), (H), and (I), and (f). The 
Federal Emergency Management Agency will not deny individuals access to 
information which has been used to deny them a right, privilege, or 
benefit to which they would otherwise be entitled.
    (1) Exempt systems. The following systems of records, which contain 
information of the type described in 5 U.S.C. 552a(k)(2), shall be 
exempt from the provisions of 5 U.S.C. 552a(k)(2) listed in paragraph 
(b) of this section.

Claims (litigation) (FEMA/GC-1)--Limited Access
FEMA Enforcement (Compliance) (FEMA/GC-2)--Limited Access
General Investigative Files (FEMA/IG-1)--Limited Access
Equal Employment Opportunity Complaints of Discrimination Files (FEMA/
PER-2)--Limited Access

    (2) Reasons for exemptions. (i) 5 U.S.C. 552a (e)(4)(G) and (f)(1) 
enable individuals to be notified whether a system of records contains 
records pertaining to them. The Federal Emergency Management Agency 
believes that application of these provisions to the above-listed 
systems of records would impair the ability of FEMA to successfully 
complete investigations and inquiries of suspected violators of civil 
and criminal laws and regulations under its jurisdiction. In many cases 
investigations and inquiries into violations of civil and criminal laws 
and regulations involve complex and continuing patterns of behavior. 
Individuals, if informed, that they have been identified as suspected 
violators of civil or criminal laws and regulations, would have an 
opportunity to take measures to prevent detection of illegal action so 
as to avoid prosecution or the imposition of civil sanctions. They would 
also be able to learn the nature and location of

[[Page 62]]

the investigation or inquiry, the type of surveillance being utilized, 
and they would be able to transmit this knowledge to co-conspirators. 
Finally, violators might be given the opportunity to destroy evidence 
needed to prove the violation under investigation or inquiry.
    (ii) 5 U.S.C. 552a (d)(1), (e)(4)(H) and (f)(2), (3) and (5) enable 
individuals to gain access to records pertaining to them. The Federal 
Emergency Management Agency believes that application of these 
provisions to the above-listed systems of records would impair its 
ability to complete or continue civil or criminal investigations and 
inquiries and to detect violators of civil or criminal laws. Permitting 
access to records contained in the above-listed systems of records would 
provide violators with significant information concerning the nature of 
the civil or criminal investigation or inquiry. Knowledge of the facts 
developed during an investigation or inquiry would enable violators of 
criminal and civil laws and regulations to learn the extent to which the 
investigation or inquiry has progressed, and this could provide them 
with an opportunity to destroy evidence that would form the basis for 
prosecution or the imposition of civil sanctions. In addition, knowledge 
gained through access to investigatory material could alert a violator 
to the need to temporarily postpone commission of the violation or to 
change the intended point where the violation is to be committed so as 
to avoid detection or apprehension. Further, access to investigatory 
material would disclose investigative techniques and procedures which, 
if known, could enable violators to structure their future operations in 
such a way as to avoid detection or apprehension, thereby neutralizing 
investigators' established and effective investigative tools and 
procedures. In addition, investigatory material may contain the identity 
of a confidential source of information or other informer who would not 
want his/her identity to be disclosed for reasons of personal privacy or 
for fear of reprisal at the hands of the individual about whom he/she 
supplied information. In some cases mere disclosure of the information 
provided by an informer would reveal the identity of the informer either 
through the process of elimination or by virtue of the nature of the 
information supplied. If informers cannot be assured that their 
identities (as sources for information) will remain confidential, they 
would be very reluctant in the future to provide information pertaining 
to violations of criminal and civil laws and regulations, and this would 
seriously compromise the ability of the Federal Emergency Management 
Agency to carry out its mission. Further, application of 5 U.S.C. 552a 
(d)(1), (e)(4)(H) and (f)(2), (3) and (5) to the above-listed systems of 
records would make available attorney's work product and other documents 
which contain evaluations, recommendations, and discussions of on-going 
civil and criminal legal proceedings; the availability of such documents 
could have a chilling effect on the free flow of information and ideas 
within the Federal Emergency Management Agency which is vital to the 
agency's predecisional deliberative process, could seriously prejudice 
the agency's or the Government's position in a civil or criminal 
litigation, and could result in the disclosure of investigatory material 
which should not be disclosed for the reasons stated above. It is the 
belief of the Federal Emergency Management Agency that, in both civil 
actions and criminal prosecutions, due process will assure that 
individuals have a reasonable opportunity to learn of the existence of, 
and to challenge, investigatory records and related materials which are 
to be used in legal proceedings.
    (iii) 5 U.S.C. 552a (d)(2), (3) and (4), (e)(4)(H) and (f)(4) which 
are dependent upon access having been granted to records pursuant to the 
provisions cited in paragraph (b)(2)(ii) of this section, enable 
individuals to contest (seek amendment to) the content of records 
contained in a system of records and require an agency to note an 
amended record and to provide a copy of an individual's statement (of 
disagreement with the agency's refusal to amend a record) to persons or 
other agencies to whom the record has been disclosed. The Federal 
Emergency Management Agency believes that the reasons set forth in 
paragraphs (b)(2)(i)

[[Page 63]]

of this section are equally applicable to this paragraph, and, 
accordingly, those reasons are hereby incorporated herein by reference.
    (iv) 5 U.S.C. 552a(c)(3) requires that an agency make accountings of 
disclosures of records available to individuals named in the records at 
their request; such accountings must state the date, nature, and purpose 
of each disclosure of a record and the name and address of the 
recipient. The Federal Emergency Management Agency believes that 
application of this provision to the above-listed systems of records 
would impair the ability of the Federal Emergency Management Agency and 
other law enforcement agencies to conduct investigations and inquiries 
into civil and criminal violations under their respective jurisdictions. 
Making accountings available to violators would alert those individuals 
to the fact that the Federal Emergency Management Agency or another law 
enforcement authority is conducting an investigation or inquiry into 
their activities, and such accountings could reveal the geographic 
location of the investigation or inquiry, the nature and purpose of the 
investigation or inquiry and the nature of the information disclosed, 
and the date on which that investigation or inquiry was active. 
Violators possessing such knowledge would thereby be able to take 
appropriate measures to avoid detection or apprehension by altering 
their operations, transferring their activities to other locations or 
destroying or concealing evidence which would form the basis for 
prosecution or the imposition of civil sanctions.
    (v) 5 U.S.C. 552a(e)(1) requires that an agency maintain in its 
records only such information about an individual as is relevant and 
necessary to accomplish a purpose of the agency required to be 
accomplished by statute or executive order. The term maintain as defined 
in 5 U.S.C. 552a(a)(3) includes ``collect'' and ``disseminate.'' At the 
time that information is collected by the Federal Emergency Management 
Agency there is often insufficient time to determine whether the 
information is relevant and necessary to accomplish a purpose of the 
Federal Emergency Management Agency; in many cases information collected 
may not be immediately susceptible to a determination of whether the 
information is relevant and necessary, particularly in the early stages 
of investigation or inquiry, and in many cases information which 
initially appears to be irrelevant or unnecessary may, upon further 
evaluation or upon continuation of the investigation or inquiry, prove 
to have particular relevance to an enforcement program of the Federal 
Emergency Management Agency. Further, not all violations of law 
uncovered during a Federal Emergency Management Agency inquiry fall 
within the civil or criminal jurisdiction of the Federal Emergency 
Management Agency; in order to promote effective law enforcement, it 
often becomes necessary and desirable to disseminate information 
pertaining to such violations to other law enforcement agencies which 
have jurisdiction over the offense to which the information relates. The 
Federal Emergency Management Agency should not be placed in a position 
of having to ignore information relating to violations of law not within 
its jurisdiction when that information comes to the attention of the 
Federal Emergency Management Agency through the conduct of a lawful 
FEMAs civil or criminal investigation or inquiry. The Federal Emergency 
Management Agency therefore believes that it is appropriate to exempt 
the above-listed systems of records from the provisions of 5 U.S.C. 
552a(e)(1).
    (c) Exempt under 5 U.S.C. 552a(k)(5). The Director, Federal 
Emergency Management Agency has determined that certain systems of 
records are exempt from the requirements of (c)(3) and (d) of 5 U.S.C. 
552a.
    (1) Exempt systems. The following systems of records, which contain 
information of the type described in 5 U.S.C. 552a(k)(5), shall be 
exempted from the provisions of 5 U.S.C. 552a listed in paragraph (c) of 
this section.

Claims (litigation) (FEMA/GC-1)--Limited Access
FEMA Enforcement (Compliance) (FEMA/GC-2)--Limited Access
General Investigative Files (FEMA/IG-2)--Limited Access
Security Management Information Systems (FEMA/SEC-1)--Limited Access


[[Page 64]]


    (2) Reasons for exemptions. All information about individuals in 
these records that meet the criteria stated in 5 U.S.C. 552a(k)(5) is 
exempt from the requirements of 5 U.S.C. 552a (c)(3) and (d). These 
provisions of the Privacy Act relate to making accountings of disclosure 
available to the subject and access to and amendment of records. These 
exemptions are claimed because the system of records entitled, FEMA/SEC-
1, Security Management Information System, contains investigatory 
material compiled solely for the purpose of determining suitability, 
eligibility, or qualifications for access to classified information or 
classified Federal contracts, but only to the extent that the disclosure 
would reveal the identity of a source who furnished information to the 
Government under an express promise or, prior to September 27, 1975, 
under an implied promise that the identity of the source would be held 
in confidence. During the litigation process and investigations, it is 
possible that certain records from the system of records entitled, FEMA/
SEC-1, Security Management System may be necessary and relevant to the 
litigation or investigation and included in these systems of records. To 
the extent that this occurs, the Director, FEMA, has determined that the 
records would also be exempted from subsections (c)(3) and (d) pursuant 
to 5 U.S.C. 552a(k)(5) to protect such records. A determination will be 
made at the time of the request for a record concerning whether specific 
information would reveal the identity of a source. This exemption is 
required in order to protect the confidentiality of the sources of 
information compiled for the purpose of determining access to classified 
information. This confidentiality helps maintain the Government's 
continued access to information from persons who would otherwise refuse 
to give it.

[45 FR 64580, Sept. 30, 1980, as amended at 47 FR 54816, Dec. 6, 1982; 
52 FR 5114, Feb. 19, 1987]



PART 7--NONDISCRIMINATION IN FEDERALLY-ASSISTED PROGRAMS (FEMA REG. 5)--Table of Contents




         Subpart A--Nondiscrimination in FEMA Programs--General

Sec.
7.1  Purpose.
7.2  Definitions.
7.3  Application of this regulation.
7.4  Further application of this regulation.
7.5  Specific discriminatory actions prohibited.
7.6  Life, health, and safety.
7.7  Assurances required.
7.8  Elementary and secondary schools.
7.9  Assurances from institutions.
7.10  Compliance information.
7.11  Conduct of investigations.
7.12  Procedure for effecting compliance.
7.13  Hearings.
7.14  Decisions and notices.
7.15  Judicial review.
7.16  Effect on other regulations; forms and instructions.

Subparts B-D [Reserved]

    Subpart E--Nondiscrimination on the Basis of Age in FEMA Program 
            Activities Receiving Federal Financial Assistance

                                 General

7.910  What is the purpose of the Age Discrimination Act of 1975?
7.911  What is the purpose of FEMA's age discrimination regulation?
7.912  To what programs does this regulation apply?
7.913  Definition of terms used in this regulation.

              Standards for Determining Age Discrimination

7.920  Rules against age discrimination.
7.921  Exceptions to the rules against age discrimination: Normal 
          operation or statutory objective of any program or activity.
7.922  Exceptions to the rules against age discrimination: Reasonable 
          factors other than age.
7.923  Burden of proof for exceptions.
7.924  Affirmative action by recipient.
7.925  Special benefits for children and the elderly.
7.926  Age distinctions contained in FEMA regulations.

[[Page 65]]

                        Duties of FEMA Recipients

7.930  General responsibilities.
7.931  Notice to subrecipients and beneficiaries.
7.932  Assurance of compliance and recipient assessment of age 
          distinctions.
7.933  Information requirement.

         Investigation, Conciliation, and Enforcement Procedures

7.940  Compliance reviews.
7.941  Complaints.
7.942  Mediation.
7.943  Investigation.
7.944  Prohibition against intimidation or retaliation.
7.945  Compliance procedure.
7.946  Hearings, decisions, post-termination proceedings.
7.947  Remedial action by recipient.
7.948  Alternate funds disbursal procedure.
7.949  Exhaustion of administrative remedies.

    Source: 30 FR 321, Jan. 9, 1965, unless otherwise noted. 
Redesignated at 45 FR 44575, July 1, 1980.



         Subpart A--Nondiscrimination in FEMA Programs--General

    Authority: FEMA Reg. 5 issued under sec. 602, 78 Stat. 252; 42 
U.S.C. 2000 d-1; 42 U.S.C. 1855-1885g; 50 U.S.C. 404.

    Source: 30 FR 321, Jan. 9, 1965, unless otherwise noted. 
Redesignated at 45 FR 44575, July 1, 1980, and further redesignated at 
55 FR 23078, June 6, 1990.



Sec. 7.1  Purpose.

    The purpose of this regulation is to effectuate the provisions of 
title VI of the Civil Rights Act of 1964 (hereafter referred to as the 
``Act'') to the end that no person in the United States shall, on the 
ground of race, color, or national origin, be excluded from 
participation in, be denied the benefits of, or be otherwise subjected 
to discrimination under any program or activity receiving Federal 
financial assistance from the Federal Emergency Management Agency.



Sec. 7.2  Definitions.

    As used in this regulation:
    (a) The term responsible agency official with respect to any program 
receiving Federal financial assistance means the Director of the Federal 
Emergency Management Agency or other official of the agency who by law 
or by delegation has the principal responsibility within the agency for 
the administration of the law extending such assistance.
    (b) The term United States means the States of the United States, 
the District of Columbia, Puerto Rico, the Virgin Islands, American 
Samoa, Guam, Wake Island, the Canal Zone, and the territories and 
possessions of the United States, and the term State means any one of 
the foregoing.
    (c) The term Federal financial assistance includes (1) grants and 
loans of Federal funds, (2) the grant or donation of Federal property 
and interests in property, (3) the detail of Federal personnel, (4) the 
sale and lease of, and the permission to use (on other than a casual or 
transient basis), Federal property or any interest in such property 
without consideration or at a nominal consideration, or at a 
consideration which is reduced for the purpose of assisting the 
recipient, or in recognition of the public interest to be served by such 
sale or lease to the recipient, and (5) any Federal agreement, 
arrangement, or other contract which has as one of its purposes the 
provision of assistance.
    (d) The term program includes any program, project, or activity for 
the provision of services, financial aid, or other benefits to 
individuals (including education or training, health, welfare, 
rehabilitation, housing, or other services, whether provided through 
employees of the recipient of Federal financial assistance or provided 
by others through contracts or other arrangements with the recipient, 
and including work opportunities and cash or loan or other assistance to 
individuals), or for the provision of facilities for furnishing 
services, financial aid or other benefits to individuals. The services, 
financial aid, or other benefits provided under a program receiving 
Federal financial assistance shall be deemed to include any services, 
financial aid, or other benefits provided with the aid of Federal 
financial assistance or with the aid of any non-Federal funds, property, 
or other resources required to be expended or made available for the 
program to meet matching requirements or other conditions which must be 
met

[[Page 66]]

in order to receive the Federal financial assistance, and to include any 
services, financial aid, or other benefits provided in or through a 
facility provided with the aid of Federal financial assistance or such 
non-Federal resources.
    (e) The term facility includes all or any portion of structure, 
equipment, or other real or personal property or interests therein, and 
the provision of facilities includes the construction, expansion, 
renovation, remodeling, alteration or acquisition of facilities.
    (f) The term recipient means any State, political subdivision of any 
State, or instrumentality of any State or political subdivision, any 
public or private agency, institution, or organization, or other entity, 
or any individual, in any State, to whom Federal financial assistance is 
extended, directly or through another recipient, for any program, 
including any successor, assign, or transferee thereof, but such term 
does not include any ultimate beneficiary under any such program.
    (g) The term primary recipient means any recipient which is 
authorized or required to extend Federal financial assistance to another 
recipient for the purpose of carrying out a program.
    (h) The term applicant means one who submits an application, 
request, or plan required to be approved by a responsible agency 
official, or by a primary recipient, as a condition to eligibility for 
Federal financial assistance, and the term application means such an 
application, request, or plan.



Sec. 7.3  Application of this regulation.

    No person in the United States shall, on the ground of race, color, 
or national origin, be excluded from participation in, be denied the 
benefits of, or be otherwise subjected to discrimination by those 
receiving assistance under the ``Federal Disaster Assistance'' program 
(Pub. L. 81-875; 42 U.S.C. 1855-1855g), or under the ``Interim Emergency 
Management of Resources'' program (section 103 of the National Security 
Act of 1947; Pub. L. 80-253, as amended; 50 U.S.C. 404).



Sec. 7.4  Further application of this regulation.

    This regulation applies to any program for which Federal financial 
assistance is authorized under a law administered by the Federal 
Emergency Management Agency. It applies to money paid, property 
transferred, or other Federal financial assistance extended under any 
such program after the effective date of the regulation pursuant to an 
application approved prior to such effective date. This regulation does 
not apply to (a) any Federal financial assistance by way of insurance or 
guaranty contracts, (b) money paid, property transferred, or other 
assistance extended under any such program before the effective date of 
this regulation, (c) any assistance to any individual who is the 
ultimate beneficiary under any such program, or (d) any employment 
practice, under such program, of any employer, employment agency, or 
labor organization.

(Reorganization Plan No. 3 of 1978, E.O. 12127 and E.O. 12148)

[30 FR 321, Jan. 9, 1965. Redesignated at 45 FR 44575, July 1, 1980, as 
amended at 48 FR 44543, Sept. 29, 1983]



Sec. 7.5  Specific discriminatory actions prohibited.

    (a) A recipient under any program to which this regulation applies 
may not, directly or through contractual or other arrangements, on 
ground of race, color, or national origin:
    (1) Deny any individual any service, financial aid, or other benefit 
provided under the program;
    (2) Provide any service, financial aid, or other benefit to an 
individual which is different, or is provided in a different manner, 
from that provided to others under the program;
    (3) Subject an individual to segregation or separate treatment in 
any matter related to his receipt of any service, financial aid, or 
other benefit under the program;
    (4) Restrict an individual in any way in the enjoyment of any 
advantage or privilege enjoyed by others receiving any service, 
financial aid, or other benefit under the program;

[[Page 67]]

    (5) Treat an individual differently from others in determining 
whether he satisfies any admission, enrollment, quota, eligibility, 
membership or other requirement or condition which individuals must meet 
in order to be provided any service, financial aid, or other benefit 
provided under the program;
    (6) Deny an individual an opportunity to participate in the program 
through the provision of services or otherwise or afford him an 
opportunity to do so which is different from that afforded others under 
the program.
    (b) A recipient, in determining the types of services, financial 
aid, or other benefits, or facilities which will be provided under any 
such program, or the class of individuals to whom, or the situations in 
which, such services, financial aid, other benefits, or facilities will 
be provided under any such program, or the class of individuals to be 
afforded an opportunity to participate in any such program, may not, 
directly or through contractual or other arrangements, utilize criteria 
or methods of administration which have the effect of subjecting 
individuals to discrimination because of their race, color, or national 
origin, or have the effect of defeating or substantially impairing 
accomplishment of the objectives of the program as respect individuals 
of a particular race, color, or national origin.
    (c) As used in this section the services, financial aid, or other 
benefits provided under a program receiving Federal financial assistance 
shall be deemed to include any service, financial aid, or other benefit 
provided in or through a facility provided with the aid of Federal 
financial assistance.
    (d) The enumeration of specific forms of prohibited discrimination 
in this section does not limit the generality of the prohibition in 
section 4.



Sec. 7.6  Life, health, and safety.

    Notwithstanding the provisions of section 5, a recipient of Federal 
financial assistance shall not be deemed to have failed to comply with 
section 3, if immediate provision of a service or other benefit to an 
individual is necessary to prevent his death or serious impairment of 
his health or safety.



Sec. 7.7  Assurances required.

    Every application for Federal financial assistance to carry out a 
program to which this regulation applies, and every application for 
Federal financial assistance to provide a facility shall, as a condition 
to its approval and the extension of any Federal financial assistance 
pursuant to the application, contain or be accompanied by an assurance 
that the program will be conducted or the facility operated in 
compliance with all requirements imposed by or pursuant to this 
regulation. In the case of an application for Federal financial 
assistance to provide real property or structures thereon, the assurance 
shall obligate the recipient, or, in the case of a subsequent transfer, 
the transferee, for the period during which the real property or 
structures are used for a purpose for which the Federal financial 
assistance is extended or for another purpose involving the provision of 
similar services or benefits. In the case of personal property the 
assurance shall obligate the recipient for the period during which he 
retains ownership or possession of the property. In all other cases the 
assurance shall obligate the recipient for the period during which 
Federal financial assistance is extended pursuant to the application. 
The responsible agency official shall specify the form of the foregoing 
assurances for each program, and the extent to which like assurances 
will be required of subgrantee, contractors and subcontractors, 
transferees, successors in interest, and other participants in the 
program. Any such assurance shall include provisions which give the 
United States a right to seek its judicial enforcement.



Sec. 7.8  Elementary and secondary schools.

    The requirements of section 7 with respect to any elementary or 
secondary school or school system shall be deemed to be satisfied if 
such school or school system (a) is subject to a final order of a court 
of the United States for the desegregation of such school or school 
system, and provides an assurance that it will comply with such order, 
including any future modification of such order, or (b) submits a plan 
for the desegregation of such school or

[[Page 68]]

school system which the United States Commissioner of Education 
determines is adequate to accomplish the purpose of the Act and this 
regulation, and provides reasonable assurance that it will carry out 
such plans; in any case of continuing Federal financial assistance the 
responsible agency official may reserve the right to redetermine, after 
such period as may be specified by him, the adequacy of the plan to 
accomplish the purposes of the Act and this regulation. In any case to 
which a final order of a court of the United States for the 
desegregation of such school or school system is entered after 
submission of such a plan, such plan shall be revised to conform to such 
final order, including any future modification of such order.



Sec. 7.9  Assurances from institutions.

    (a) In the case of any application for Federal financial assistance 
to an institution of higher education, the assurance required by section 
7 shall extend to admission practices and to all other practices 
relating to the treatment of students.
    (b) The assurances required with respect to an institution of higher 
education, hospital, or any other institution, insofar as the assurance 
relates to the institution's practices with respect to admission or 
other treatment of individuals as students, patients, or clients of the 
institutions or to the opportunity to participate in the provision of 
services or other benefits to such individuals, shall be applicable to 
the entire institution unless the applicant establishes, to the 
satisfaction of the Director of the Federal Emergency Management Agency 
that the institution's practices in designated parts or programs of the 
institution will in no way affect its practices in the program of the 
institution for which Federal financial assistance is sought, or the 
beneficiaries of or participants in such program. If in any such case 
the assistance sought is for the construction of a facility or part of a 
facility, the assurance shall in any event extend to the entire facility 
and to facilities operated in connection therewith.



Sec. 7.10  Compliance information.

    (a) Cooperation and assistance. The responsible official in the 
Federal Emergency Management Agency shall to the fullest extent 
practicable seek the cooperation of recipients in obtaining compliance 
with this regulation and shall provide assistance and guidance to 
recipients to help them comply voluntarily with this regulation.
    (b) Compliance reports. Each recipient shall keep such records and 
submit to the responsible agency official or his designee timely, 
complete, and accurate compliance reports at such times, and in such 
form and containing such information, as the responsible agency official 
or his designee may determine to be necessary to enable him to ascertain 
whether the recipient has complied or is complying with this regulation. 
In the case of any program under which a primary recipient extends 
Federal financial assistance to any other recipient, such other 
recipient shall also submit such compliance reports to the primary 
recipient as may be necessary to enable the primary recipient to carry 
out its obligations under this regulation.
    (c) Access to sources of information. Each recipient shall permit 
access by the responsible agency official or his designee during normal 
business hours to such of its books, records, accounts, and other 
sources of information, and its facilities as may be pertinent to 
ascertain compliance with this regulation. Where any information 
required of a recipient is in the exclusive possession of any other 
agency, institution or person and this agency, institution or person 
shall fail or refuse to furnish this information, the recipient shall so 
certify in its report and shall set forth what efforts it has made to 
obtain the information.
    (d) Information to beneficiaries and participants. Each recipient 
shall make available to participants, beneficiaries, and other 
interested persons such information regarding the provisions of this 
regulation and its applicability to the program under which the 
recipient receives Federal financial assistance, and make such 
information available to them in such manner, as the responsible agency 
official finds necessary to apprise such persons of the protection

[[Page 69]]

against discrimination assured them by the Act and this regulation.



Sec. 7.11  Conduct of investigations.

    (a) Periodic compliance reviews. The responsible agency official or 
his designee shall from time to time review the practices of recipients 
to determine whether they are complying with this regulation.
    (b) Complaints. Any person who believes himself or any specific 
class of individuals to be subjected to discrimination prohibited by 
this regulation may by himself or by a representative file a written 
complaint with the National Headquarters or any Regional Office of the 
Federal Emergency Management Agency. A complaint must be filed not later 
than 180 days from the date of the alleged discrimination, unless the 
time for filing is extended by the responsible agency official or his 
designee.
    (c) Investigations. The responsible agency official or his designee 
will make a prompt investigation whenever a compliance review, report, 
complaint, or any other information indicates a possible failure to 
comply with this regulation. The investigation should include, where 
appropriate, a review of the pertinent practices and policies of the 
recipient, the circumstances under which the possible noncompliance with 
this regulation occurred, and other factors relevant to a determination 
as to whether the recipient has failed to comply with this regulation.
    (d) Resolution of matters. (1) If an investigation pursuant to 
paragraph (c) of this section indicates a failure to comply with this 
regulation, the responsible agency official or his designee will so 
inform the recipient and the matter will be resolved by informal means 
whenever possible. If it has been determined that the matter cannot be 
resolved by informal means, action will be taken as provided for in 
section 12.
    (2) If an investigation does not warrant action pursuant to 
paragraph (d)(1) of this section the responsible agency official or his 
designee will so inform the recipient and the complainant, if any, in 
writing.
    (e) Intimidatory or retaliatory acts prohibited. No recipient or 
other person shall intimidate, threaten, coerce, or discriminate against 
any individual for the purpose of interfering with any right or 
privilege secured by section 601 of the Act or this regulation, or 
because he has made a complaint, testified, assisted, or participated in 
any manner in an investigation, proceeding, or hearing under this 
regulation. The identity of complainants shall be kept confidential 
except to the extent necessary to carry out the purposes of this 
regulation, including the conduct of any investigation, hearing, or 
judicial proceeding arising thereunder.

[30 FR 321, Jan. 9, 1965. Redesignated at 45 FR 44575, July 1, 1980, and 
further redesignated at 55 FR 23078, June 6, 1990, as amended at 64 FR 
38309, July 16, 1999]



Sec. 7.12  Procedure for effecting compliance.

    (a) General. If there appears to be a failure or threatened failure 
to comply with this regulation, and if the noncompliance or threatened 
noncompliance cannot be corrected by informal means, compliance with 
this regulation may be effected by the suspension or termination of or 
refusal to grant or to continue Federal financial assistance or by any 
other means authorized by law. Such other means may include, but are not 
limited to, (1) a reference to the Department of Justice with a 
recommendation that appropriate proceedings be brought to enforce any 
rights of the United States under any law of the United States 
(including other titles of the Act), or any assurance or other 
contractual undertaking, and (2) any applicable proceeding under state 
or local law.
    (b) Noncompliance with section 7. If an applicant fails or refuses 
to furnish an assurance required under section 7 or otherwise fails or 
refuses to comply with a requirement imposed by or pursuant to that 
section Federal financial assistance may be refused in accordance with 
the procedures of paragraph (c) of this section. The agency shall not be 
required to provide assistance in such a case during the pendency of the 
administrative proceedings under such paragraph except that the agency 
shall continue assistance during the pendency of such proceedings where 
such

[[Page 70]]

assistance is due and payable pursuant to an application thereof 
approved prior to the effective date of this regulation.
    (c) Termination of or refusal to grant or to continue Federal 
financial assistance. No order suspending, terminating or refusing to 
grant or continue Federal financial assistance shall become effective 
until (1) the responsible agency official has advised the applicant or 
recipient of his failure to comply and has determined that compliance 
cannot be secured by voluntary means, (2) there has been an express 
finding on the record, after opportunity for hearing, of a failure by 
the applicant or recipient to comply with a requirement imposed by or 
pursuant to this regulation, (3) the action has been approved by the 
Director of the Federal Emergency Management Agency pursuant to section 
14, and (4) the expiration of 30 days after the Director has filed with 
the committee of the House and the committee of the Senate having 
legislative jurisdiction over the program involved, a full written 
report of the circumstances and the grounds for such action. Any action 
to suspend or terminate or to refuse to grant or to continue Federal 
financial assistance shall be limited to the particular political 
entity, or part thereof, or other applicant or recipient as to whom such 
a finding has been made and shall be limited in its effect to the 
particular program, or part thereof, in which such noncompliance has 
been so found.
    (d) Other means authorized by law. No action to effect compliance by 
any other means authorized by law shall be taken until (1) the 
responsible agency official has determined that compliance cannot be 
secured by voluntary means, (2) the action has been approved by the 
Director of the Federal Emergency Management Agency, (3) the recipient 
or other person has been notified of its failure to comply and of the 
action to be taken to effect compliance, and (4) the expiration of at 
least 10 days from the mailing of such notice to the recipient or other 
person. During this period of at least 10 days additional efforts shall 
be made to persuade the recipient or other person to comply with the 
regulation and to take such corrective action as may be appropriate.



Sec. 7.13  Hearings.

    (a) Opportunity for hearing. Whenever an opportunity for a hearing 
is required by section 12(c), reasonable notice shall be given by 
registered or certified mail, return receipt requested, to the affected 
applicant or recipient. This notice shall advise the applicant or 
recipient of the action proposed to be taken, the specific provision 
under which the proposed action against it is to be taken, and the 
matters of fact or law asserted as the basis for this action, and either 
(1) fix a date not less than 20 days after the date of such notice 
within which the applicant or recipient may request of the responsible 
agency official that the matter be scheduled for hearing or (2) advise 
the applicant or recipient that the matter in question has been set down 
for hearing at a stated place and time. The time and place so fixed 
shall be reasonable and shall be subject to change for cause. The 
complainant, if any, shall be advised of the time and place of the 
hearing. An applicant or recipient may waive a hearing and submit 
written information and argument for the record. The failure of an 
applicant or recipient to request a hearing under this subsection or to 
appear at a hearing for which a date has been set shall be deemed to be 
a waiver of the right to a hearing under section 602 of the Act and 
section 12(c) of this regulation and consent to the making of a decision 
on the basis of such information as is available.
    (b) Time and place of hearing. Hearings shall be held at the 
National Headquarters of the Federal Emergency Management Agency in 
Washington, DC, at a time fixed by the responsible agency official 
unless he determines that the convenience of the applicant or recipient 
or of the agency requires that another place be selected. Hearings shall 
be held before the responsible agency official or, at his discretion, 
before a hearing examiner designated in accordance with section 11 of 
the Administrative Procedure Act.

[[Page 71]]

    (c) Right to counsel. In all proceedings under this section, the 
applicant or recipient and the agency shall have the right to be 
represented by counsel.
    (d) Procedures, evidence, and record. (1) The hearing, decision, and 
any administrative review thereof shall be conducted in conformity with 
sections 5-8 of the Administrative Procedure Act, and in accordance with 
such rules of procedure as are proper (and not inconsistent with this 
section) relating to the conduct of the hearing, giving of notices 
subsequent to those provided for in paragraph (a) of this section, 
taking of testimony, exhibits, arguments and briefs, requests for 
findings, and other related matters. Both the agency and the applicant 
or recipient shall be entitled to introduce all relevant evidence on the 
issues as stated in the notice for hearing or as determined by the 
officer conducting the hearing at the outset of or during the hearing.
    (2) Technical rules of evidence shall not apply to hearings 
conducted pursuant to this regulation, but rules or principles designed 
to assure production of the most credible evidence available and to 
subject testimony to test by cross-examination shall be applied where 
reasonably necessary by the officer conducting the hearing. The hearing 
officer may exclude irrelevant, immaterial, or unduly repetitious 
evidence. All documents and other evidence offered or taken for the 
record shall be open to examination by the parties and opportunity shall 
be given to refute facts and arguments advanced on either side of the 
issues. A transcript shall be made of the oral evidence except to the 
extent the substance thereof is stipulated for the record. All decisions 
shall be based upon the hearing record and written findings shall be 
made.
    (e) Consolidated or joint hearings. In cases in which the same or 
related facts are asserted to constitute noncompliance with this 
regulation with respect to two or more programs to which this regulation 
applies, or noncompliance with this regulation and the regulations of 
one or more other Federal departments or agencies issued under title VI 
of the Act, the Director of the Federal Emergency Management Agency may, 
by agreement with such other departments or agencies where applicable, 
provide for the conduct of consolidated or joint hearings, and for the 
application to such hearings of rules of procedures not inconsistent 
with this regulation. Final decisions in such cases, insofar as this 
regulation is concerned, shall be made in accordance with section 14.



Sec. 7.14  Decisions and notices.

    (a) Decision by person other than the responsible agency official. 
If the hearing is held by a hearing examiner such hearing examiner shall 
either make an initial decision, if so authorized, or certify the entire 
record including his recommended findings and proposed decision to the 
responsible agency official for a final decision, and a copy of such 
initial decision or certification shall be mailed to the applicant or 
recipient. Where the initial decision is made by the hearing examiner 
the applicant or recipient may within 30 days of the mailing of such 
notice of initial decision file with the responsible agency official his 
exceptions to the initial decision, with his reasons therefor. In the 
absence of exceptions, the responsible agency official may on his own 
motion within 45 days after the initial decision serve on the applicant 
or recipient a notice that he will review the decision. Upon the filing 
of such exceptions or of such notice of review the responsible agency 
official shall review the initial decision and issue his own decision 
thereon including the reasons therefor. In the absence of either 
exceptions or a notice of review the initial decision shall constitute 
the final decision of the responsible agency official.
    (b) Decisions on record or review by the responsible agency 
official. Whenever a record is certified to the responsible agency 
official for decision or he reviews the decision of a hearing examiner 
pursuant to paragraph (a) of this section, or whenever he conducts the 
hearing, the applicant or recipient shall be given reasonable 
opportunity to file with him briefs or other written statements of its 
contentions, and a copy of his final decision shall be given in writing 
to the applicant or recipient and to the complainant, if any.

[[Page 72]]

    (c) Decisions on record where a hearing is waived. Whenever a 
hearing is waived pursuant to section 13(a) a decision shall be made by 
the responsible agency official on the record and a copy of such 
decision shall be given in writing to the applicant or recipient, and to 
the complainant, if any.
    (d) Rulings required. Each decision of a hearing officer or 
responsible agency official shall set forth his ruling on each finding, 
conclusion, or exception presented, and shall identify the requirement 
or requirements imposed by or pursuant to this regulation with which it 
is found that the applicant or recipient has failed to comply.
    (e) Approval by Director. Any final decision of a responsible agency 
official (other than the Director of the agency) which provides for the 
suspension or termination of, or the refusal to grant or continue 
Federal financial assistance, or the imposition of any other sanction 
available under this regulation or the Act, shall promptly be 
transmitted to the Director of the Federal Emergency Management Agency 
who may approve such decision, may vacate it, or remit or mitigate any 
sanction imposed.
    (f) Content of orders. The final decision may provide for suspension 
or termination of, or refusal to grant or continue Federal financial 
assistance, in whole or in part, under the program involved, and may 
contain such terms, conditions, and other provisions as are consistent 
with and will effectuate the purposes of the Act and this regulation, 
including provisions designed to assure that no Federal financial 
assistance will thereafter be extended under such program to the 
applicant or recipient determined by such decision to be in default in 
its performance of an assurance given by it pursuant to this regulation, 
or to have otherwise failed to comply with this regulation, unless and 
until it corrects its noncompliance and satisfies the Director of the 
Federal Emergency Management Agency that it will fully comply with this 
regulation.



Sec. 7.15  Judicial review.

    Action taken pursuant to section 602 of the Act is subject to 
judicial review as provided in section 603 of the Act.



Sec. 7.16  Effect on other regulations; forms and instructions.

    (a) Effect on other regulations. All regulations, orders, or like 
directions heretofore issued by any officer of the Federal Emergency 
Management Agency which impose requirements designed to prohibit any 
discrimination against individuals on the ground of race, color, or 
national origin under any program to which this regulation applies, and 
which authorize the suspension or termination of or refusal to grant or 
to continue Federal financial assistance to any applicant for or 
recipient of such assistance under such program for failure to comply 
with such requirements, are hereby superseded to the extent that such 
discrimination is prohibited by this regulation, except that nothing in 
this regulation shall be deemed to relieve any person of any obligation 
assumed or imposed under any such superseded regulation, order, 
instruction, or like direction prior to the effective date of this 
regulation. Nothing in this regulation, however, shall be deemed to 
supersede Executive Orders 10925 and 11114 (including future amendments 
thereof) and regulations issued thereunder, or any other regulations or 
instructions, insofar as such regulations or instructions prohibit 
discrimination on the ground of race, color, or national origin in any 
program or situation to which this regulation is inapplicable, or 
prohibit discrimination on any other ground.
    (b) Forms and instructions. Each responsible agency official shall 
issue and promptly make available to interested persons forms and 
detailed instructions and procedures for effectuating this regulation as 
applied to programs to which this regulation applies and for which he is 
responsible.
    (c) Supervision and coordination. The Director of the Federal 
Emergency Management Agency may from time to time assign to officials of 
other departments or agencies of the Government with the consent of such 
departments or agencies, responsibilities in connection with the 
effectuation of the purposes of title VI of the Act and this regulation 
(other than responsibility for final decision as provided in section

[[Page 73]]

14), including the achievement of effective coordination and maximum 
uniformity within the agency and within the Executive Branch of the 
Government in the application of title VI and this regulation to similar 
programs and in similar situations.

Subparts B-D [Reserved]



    Subpart E--Nondiscrimination on the Basis of Age in FEMA Program 
            Activities Receiving Federal Financial Assistance

    Authority: Age Discrimination Act of 1975, as amended, 42 U.S.C. 
26101 et seq. (45 CFR part 90).

    Source: 55 FR 23078, June 6, 1990, unless otherwise noted.

                                 General



Sec. 7.910  What is the purpose of the Age Discrimination Act of 1975?

    The Age Discrimination Act of 1975 (the ``Act''), as amended, is 
designed to prohibit discrimination on the basis of age in programs or 
activities receiving Federal financial assistance. The Act also permits 
federally-assisted programs and activities, and recipients of Federal 
funds, to continue to use certain age distinctions and factors other 
than age which meet the requirements of the Act and this regulation.



Sec. 7.911  What is the purpose of FEMA's age discrimination regulation?

    The purpose of this regulation is to set out FEMA's policies and 
procedures under the Age Discrimination Act of 1975 and the general 
governmentwide regulations, 45 CFR part 90. The Act and the general 
regulations prohibit discrimination on the basis of age in programs or 
activities receiving Federal financial assistance. The Act and the 
general regulations permit federally-assisted programs, activities, and 
recipients of Federal funds, to continue to use age distinctions and 
factors other than age which meet the requirements of the Act and its 
implementing regulations.



Sec. 7.912  To what programs does this regulation apply?

    (a) The Act and this regulation apply to each FEMA recipient and to 
each program or activity operated by the recipient which receives or 
benefits from Federal financial assistance provided by FEMA.
    (b) The Act and this regulation do not apply to:
    (1) An age distinction contained in that part of a Federal, State or 
local statute or ordinance adopted by an elected, general purpose 
legislative body which:
    (i) Provides any benefits or assistance to persons based on age; or
    (ii) Establishes criteria for participation in age-related terms; or
    (iii) Describes intended beneficiaries or target groups in age-
related terms.
    (2) Any employment practice of any employer, employment agency, 
labor organization, or any labor-management joint apprenticeship 
training program, except for any program or activity receiving Federal 
financial assistance for public service employment under the Job 
Training Partnership Act (29 U.S.C. 150, et seq.)



Sec. 7.913  Definition of terms used in this regulation.

    As used in this regulation, the term Act means the Age 
Discrimination Act of 1975 as amended (title III of Pub. L. 94-135).
    Action means any act, activity, policy, rule, standard, or method of 
administration; or the use of any policy, rule, standard or method of 
administration.
    Age means how old a person is, or the number of years from the date 
of a person's birth.
    Age distinction means any action using age or an age-related term.
    Age-related term means a word or words which necessarily imply a 
particular age or range of ages (for example, children, older persons, 
but not student).
    Agency means the Federal Emergency Management Agency.
    Director means the Director of the Federal Emergency Management 
Agency.
    Federal financial assistance means any grant, entitlement, loan, 
cooperative

[[Page 74]]

agreement, contract (other than a procurement contract or a contract of 
insurance or guaranty), or any other arrangement by which the agency 
provides or otherwise makes available assistance in the form of:
    (a) Funds; or
    (b) Services or Federal personnel; or
    (c) Real and personal property or any interest in or use of 
property, including:
    (1) Transfers or leases of property for less than fair market value 
or for reduced consideration; and
    (2) Proceeds from a subsequent transfer or lease of property if the 
Federal share of its fair market value is not returned to the Federal 
Government.
    Normal operation means the operation of a program or activity 
without significant changes that would impair its ability to meet its 
objective.
    Recipient means any State or its political subdivision, any 
instrumentality of a State or its political subdivision, institution, 
organization, or other entity, or any person to which Federal financial 
assistance is extended, directly or through another recipient. Recipient 
includes any successor, assignee, or transferee, but excludes the 
ultimate beneficiary of the assistance.
    Statutory objective means any purpose of a program or activity 
expressly stated in any Federal statute, State statute or local statute 
or ordinance adopted by an elected, general purpose legislative body.
    Subrecipient means any of the entities in the definition of 
``recipient'' to which a recipient extends or passes on Federal 
financial assistance. A subrecipient is generally regarded as a 
recipient of Federal financial assistance and has all the duties of a 
recipient in these regulations.
    United States includes the States of the United States, the District 
of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, 
American Samoa, Guam, the Commonwealth of the Northern Mariana Islands, 
Wake Island, the Canal Zone, the Trust Territory of the Pacific Islands 
and all other territories and possessions of the United States. The term 
``State'' also includes any one of the foregoing.

              Standards for Determining Age Discrimination



Sec. 7.920  Rules against discrimination.

    The rules stated in this section are limited by the exceptions 
contained in Secs. 7.921 and 7.922 of these regulations.
    (a) General rule: No person in the United States shall, on the basis 
of age, be excluded from participation in, be denied the benefits of, or 
be subjected to discrimination under, any program or activity receiving 
Federal financial assistance.
    (b) Specific rules: A recipient may not, in any program or activity 
receiving Federal financial assistance, directly or through contractual 
licensing, or other arrangements, use age distinctions or take any other 
actions which have the effect, on the basis of age, of:
    (1) Excluding individuals from, denying them the benefits of, 
subjecting them to discrimination under, a program or activity receiving 
Federal financial assistance; or
    (2) Denying or limiting individuals in their opportunity to 
participate in any program or activity receiving Federal financial 
assistance. The specific forms of age discrimination listed in paragraph 
(b) of this section do not necessarily constitute a complete list.



Sec. 7.921  Exceptions to the rules against age discrimination: Normal operation or statutory objective of any program or activity.

    A recipient is permitted to take an action, otherwise prohibited by 
Sec. 7.920, if the action reasonably takes into account age as a factor 
necessary to the normal operation of the achievement of any statutory 
objective of a program or activity. An action reasonably takes into 
account age as a factor necessary to the normal operation or the 
achievement of any statutory objective of a program or activity, if:
    (a) Age is used as a measure or approximation of one or more other 
characteristics; and
    (b) The other characteristic(s) must be measured or approximated in 
order for the normal operation of the program or activity to continue, 
or to achieve any statutory objective of the program or activity; and

[[Page 75]]

    (c) The other characteristic(s) can be reasonably measured or 
approximated by the use of age; and
    (d) The other characteristic(s) are impractical to measure directly 
on an individual basis.



Sec. 7.922  Exceptions to the rules against age discrimination: Reasonable factors other than age.

    A recipient is permitted to take an action otherwise prohibited by 
Sec. 7.920 which is based on a factor other than age, even though that 
action may have a disproportionate effect on persons of different ages 
only if the factor bears a direct and substantial relationship to the 
normal operation of the program or activity or to the achievement of a 
statutory objective.



Sec. 7.923  Burden of proof for exceptions.

    The burden of proving that an age distinction or other action falls 
within the exceptions outlined in Secs. 7.921 and 7.922 is on the 
recipient of Federal financial assistance.



Sec. 7.924  Affirmative action by recipient.

    Even in the absence of a finding of discrimination, a recipient may 
take affirmative action to overcome the effects of conditions that 
resulted in the limited participation in the recipient's program or 
activity on the basis of age.



Sec. 7.925  Special benefits for children and the elderly.

    If a recipient operating a program provides special benefits to the 
elderly or to children, such use of age distinctions shall be presumed 
to be necessary to the normal operation of the program, notwithstanding 
the provisions of Sec. 7.921.



Sec. 7.926  Age distinctions contained in FEMA regulations.

    Any age distinctions contained in a rule or regulation issued by 
FEMA shall be presumed to be necessary to the achievement of a statutory 
objective of the program to which the rule or regulation applies, 
notwithstanding the provisions of Sec. 7.921.

                        Duties of FEMA Recipients



Sec. 7.930  General responsibilities.

    Each FEMA recipient has primary responsibility to ensure that its 
programs and activities are in compliance with the Act and this 
regulation, and shall take steps to eliminate violations of the Act. A 
recipient also has responsibility to maintain records, provide 
information, and to afford FEMA access to its records to the extent FEMA 
finds necessary to determine whether the recipient is in compliance with 
the Act and this regulation.



Sec. 7.931  Notice to subrecipients and beneficiaries.

    (a) Where a recipient passes on Federal financial assistance from 
FEMA to subrecipients, the recipient shall provide the subrecipients 
written notice of their obligations under the Act and this regulation.
    (b) Each recipient shall make necessary information about the Act 
and this regulation available to its program beneficiaries in order to 
inform them about the protection against discrimination provided by the 
Act and this regulation.



Sec. 7.932  Assurance of compliance and recipient assessment of age distinctions.

    (a) Each recipient of Federal financial assistance from FEMA shall 
sign a written assurance as specified by FEMA that it will comply with 
Act and this regulation.
    (b) Recipient assessment of age distinctions. (1) As part of the 
compliance review under Sec. 7.940 or complaint investigation under 
Sec. 7.943, FEMA may require a recipient employing the equivalent of 
fifteen or more employees to complete written evaluation, in a manner 
specified by the responsible Agency official, of any age distinction 
imposed in its program or activity receiving Federal financial 
assistance from FEMA to assess the recipient's compliance with the Act.
    (2) Whenever an assessment indicates a violation of the Act and the 
FEMA regulations, the recipient shall take corrective action.

[[Page 76]]



Sec. 7.933  Information requirement.

    Each recipient shall:
    (a) Keep records in a form acceptable to FEMA and containing 
information which FEMA determines are necessary to ascertain whether the 
recipient is complying with the Act and this regulation.
    (b) Provide to FEMA, upon request, information and reports which 
FEMA determines are necessary to ascertain whether the recipient is 
complying with the Act and this regulation.
    (c) Permit FEMA reasonable access to the books, records, accounts, 
and other recipient facilities and sources of information to the extent 
FEMA determines is necessary to ascertain whether the recipient is 
complying with the Act and this regulation.

         Investigation, Conciliation, and Enforcement Procedures



Sec. 7.940  Compliance reviews.

    (a) FEMA may conduct compliance reviews and preaward reviews or use 
other similar procedures that will permit it to investigate and correct 
violations of the Act and this regulation. FEMA may conduct these 
reviews even in the absence of a complaint against a recipient. The 
reviews may be as comprehensive as necessary to determine whether a 
violation of the Act and this regulation has occurred.
    (b) If a compliance review or preaward review indicates a violation 
of the Act or this regulation, FEMA will attempt to achieve voluntary 
compliance with the Act. If voluntary compliance cannot be achieved, 
FEMA will arrange for enforcement as described in Sec. 7.945.



Sec. 7.941  Complaints.

    (a) Any person, individually or as a member of a class or on behalf 
of others, may file a complaint with FEMA, alleging discrimination 
prohibited by the Act or these regulations occurring after the date of 
final adoption of this rule. A complainant shall file a complaint within 
180 days from the date the complainant first had knowledge of the 
alleged act of discrimination. However, for good cause showing, FEMA may 
extend this time limit.
    (b) FEMA will consider the date a complaint is filed to be the date 
upon which the complaint is sufficient to be processed. A complaint is 
deemed ``sufficient'' when it contains particulars (e.g., names, 
addresses, and telephone numbers of parties involved; date(s) of alleged 
discrimination; kind(s) of alleged discrimination) upon which to begin 
an investigation.
    (c) FEMA will attempt to facilitate the filing of complaints 
wherever possible, including taking the following measures:
    (1) Accepting as a sufficient complaint any written statement which 
identifies the parties involved and the date the complainant first had 
knowledge of the alleged violation, describes generally the action or 
practice complained of, and is signed by the complainant.
    (2) Freely permitting a complainant to add information to the 
complaint to meet the requirements of a sufficient complaint.
    (3) Notifying the complainant and the recipient of their rights and 
obligations under the complaint procedure, including the right to have a 
representative at all stages of the complaint procedure.
    (4) Notifying the complainant and the recipient (or their 
representatives) of their right to contact FEMA for information and 
assistance regarding the complaint resolution process.
    (d) FEMA will return to the complainant any complaint outside the 
jurisdiction of this regulation, and will state the reason(s) why it is 
outside the jurisdiction of this regulation.



Sec. 7.942  Mediation.

    (a) FEMA will promptly refer to a mediation agency designated by the 
Director all sufficient complaints that:
    (1) Fall within the jurisdiction of the Act and this regulation, 
unless the age distinction complained of is clearly within an exception; 
and,
    (2) Contain all information necessary for further processing.
    (b) Both the complainant and the recipient shall participate in the 
mediation process to the extent necessary to reach an agreement or for 
the mediator to make an informed judgment that an agreement is not 
possible.

[[Page 77]]

    (c) If the complainant and the recipient reach an agreement, the 
mediator shall prepare a written statement of the agreement and have the 
complainant and the recipient sign it. The mediator shall send a copy of 
the agreement to FEMA. FEMA will take no further action on the complaint 
unless the complainant or the recipient fails to comply with the 
agreement.
    (d) The mediator shall protect the confidentiality of all 
information obtained in the course of the mediation process. No mediator 
shall testify in any adjudicative proceeding, produce any document, or 
otherwise disclose any information obtained in the course of the 
mediation process without prior approval of the head of the mediation 
agency.
    (e) The mediation will proceed for a maximum of 60 days after a 
complaint is filed with FEMA. Mediation ends if:
    (1) Sixty days elapse from the time the complaint is filed; or
    (2) Prior to the end of that 60 day period, an agreement is reached; 
or
    (3) Prior to the end of that 60 day period, the mediator determines 
that an agreement cannot be reached. This 60 day period may be extended 
by the mediator, with the concurrence of FEMA, for not more than 30 days 
if the mediator determines agreement will likely be reached during such 
extended period.
    (f) The mediator shall return unresolved complaints to FEMA.



Sec. 7.943  Investigation.

    (a) Informal investigation. (1) FEMA will investigate complaints 
that are unresolved after mediation or are reopened because of a 
violation of a mediation agreement.
    (2) As part of the initial investigation, FEMA will use informal 
fact finding methods, including joint or separate discussion with the 
complainant and recipient, to establish the facts and, if possible, 
settle the complaint on terms that are mutually agreeable to the 
parties. FEMA may seek the assistance of any involved state program 
agency.
    (3) FEMA will put any agreement in writing and have it signed by the 
parties and an authorized official at FEMA.
    (4) The settlement shall not affect the operation of any other 
enforcement effort of FEMA, including compliance reviews and 
investigation of other complaints which may involve the recipient.
    (5) The settlement is not a finding of discrimination against a 
recipient.
    (b) Formal investigation. If FEMA cannot resolve the complaint 
through informal investigation, it will begin to develop formal findings 
through further investigation of the complaint. If the investigation 
indicates a violation of this regulation, FEMA will attempt to obtain 
voluntary compliance, it will begin enforcement as described in 
Sec. 7.945.



Sec. 7.944  Prohibition against intimidation or retaliation.

    A recipient may not engage in acts of intimidation or retaliation 
against any person who:
    (a) Attempts to assert a right protected by the Act or this 
regulation; or
    (b) Cooperates in any mediation, investigation, hearing, or other 
part of FEMA's investigation, conciliation and enforcement process.



Sec. 7.945  Compliance procedure.

    (a) FEMA may enforce the Act and this regulation through:
    (1) Termination of a recipient's Federal financial assistance from 
FEMA under the program or activity involved where the recipient has 
violated the Act or this regulation. The determination of the 
recipient's violation may be made only after a recipient has had an 
opportunity for a hearing on the record before an administrative law 
judge.
    (2) Any other means authorized by law including but not limited to:
    (i) Referral to the Department of Justice for proceedings to enforce 
any rights of the United States or obligations of the recipient created 
by the Act or this regulation.
    (ii) Use of any requirement of or referral to any Federal, State or 
local government agency that will have the effect of correcting a 
violation of the Act or this regulation.

[[Page 78]]

    (b) FEMA will limit any termination under Sec. 7.945(a)(1) to the 
particular recipient and particular program or activity or part of such 
program and activity FEMA finds in violation of this regulation. FEMA 
will not base any part of a termination on a finding with respect to any 
program or activity of the recipient which does not receive Federal 
financial assistance from FEMA.
    (c) FEMA will take no action under paragraph (a) until:
    (1) The Director has advised the recipient of its failure to comply 
with the Act and this regulation and has determined that voluntary 
compliance cannot be obtained.
    (2) Thirty days have elapsed after the Director has sent a written 
report of the circumstances and grounds of the action to the committees 
of the Congress having legislative jurisdiction over the Federal program 
or activity involved. The Director will file a report whenever any 
action is taken under paragraph (a).
    (d) FEMA also may defer granting new Federal financial assistance 
from FEMA to a recipient when a hearing under Sec. 7.945(a)(1) is 
initiated.
    (1) New Federal financial assistance from FEMA includes all 
assistance for which FEMA requires an application or approval, including 
renewal or continuation of existing activities, or authorization of new 
activities, during the deferral period. New Federal financial assistance 
from FEMA does not include increases in funding as a result of changed 
computation of formula awards or assistance approved prior to the 
beginning of a hearing under Sec. 7.945(a)(1).
    (2) FEMA will not begin a deferral until the recipient has received 
a notice of an opportunity for a hearing under Sec. 7.945(a)(1). FEMA 
will not continue a deferral for more than 60 days unless a hearing has 
begun within that time or the time for beginning the hearing has been 
extended by mutual consent of the recipient for more than 30 days after 
the close of the hearing, unless the hearing results in a finding 
against the recipient.
    (3) FEMA will limit any deferral to the particular recipient and 
particular program or activity or part of such program or activity FEMA 
finds in violation of this regulation. FEMA will not base any part of a 
deferral on a finding with respect to any program or activity of the 
recipient which does not and would not, in connection with new funds, 
receive Federal financial assistance from FEMA.



Sec. 7.946  Hearings, decisions, post-termination proceedings.

    Certain FEMA procedural provisions applicable to title VI of the 
Civil Rights Act of 1964 apply to FEMA enforcement of this regulation. 
They are found at 44 CFR 7.10 through 7.16.



Sec. 7.947  Remedial action by recipient.

    Where FEMA finds a recipient has discriminated on the basis of age, 
the recipient shall take any remedial action that FEMA may require to 
overcome the effects of the discrimination. If another recipient 
exercises control over the recipient that had discriminated, FEMA may 
require both recipients to take remedial action.



Sec. 7.948  Alternate funds disbursal procedure.

    (a) When FEMA withholds funds from recipient under this regulation, 
the Director may, if allowable under the statute governing the 
assistance, disburse the withheld funds directly to an alternate 
recipient: Any public or nonprofit private organization or agency, or 
State or political subdivision of the State.
    (b) The Director will require any alternate recipient to 
demonstrate:
    (1) The ability to comply with this regulation; and
    (2) The ability to achieve the goals of the Federal statute 
authorizing the program or activity.



Sec. 7.949  Exhaustion of administrative remedies.

    (a) A complainant may file a civil action following the exhaustion 
of administrative remedies under the Act. Administrative remedies are 
exhausted if:
    (1) 180 days have elapsed since the complainant filed the complaint 
and FEMA had made no finding with regard to the complaint; or
    (2) FEMA issues any finding in favor of the recipient.

[[Page 79]]

    (b) If FEMA fails to make a finding within 180 days or issues a 
finding in favor of the recipient, FEMA shall:
    (1) Promptly advise the complainant in writing of this fact; and
    (2) Advise the complainant of his or her right to bring a civil 
action for injunctive relief; and
    (3) Inform the complainant:
    (i) That the complainant may bring a civil action only in a United 
States District Court for the district in which the recipient is located 
or transacts business;
    (ii) That a complainant prevailing in a civil action has the right 
to be awarded the costs of the action, including reasonable attorney's 
fees, but that the complainant must demand these costs in the complaint 
at the time it is filed.
    (iii) That before commencing the action, the complainant shall give 
30 days notice by registered mail to the Director, the Attorney General 
of the United States, and the recipient;
    (iv) That the notice must state: The alleged violation of the Act; 
the relief requested; the court in which the complainant is bringing the 
action; and whether or not attorney's fees are demanded in the event the 
complainant prevails; and
    (v) That the complainant may not bring an action if the same alleged 
violation of the Act by the same recipient is the subject of a pending 
action in any court (Federal or State) of the United States.



PART 8--NATIONAL SECURITY INFORMATION--Table of Contents




Sec.
8.1  Purpose.
8.2  Original classification authority.
8.3  Senior FEMA official responsible for the information security 
          program.
8.4  Mandatory declassification review procedures.

    Authority: Reorganization Plan No. 3 of 1978, E.O. 12148 and E.O. 
12356.



Sec. 8.1  Purpose.

    (a) Section 5.3(b) of Executive Order (EO) 12356, ``National 
Security Information'' requires agencies to promulgate implementing 
policies and regulations. To the extent that these regulations affect 
members of the public, these policies are to be published in the Federal 
Register.
    (b) This regulation provides public notification of the FEMA 
procedures for processing requests for the mandatory review of 
classified information pursuant to section 3.4(d) of E.O. 12356.

[49 FR 24518, June 14, 1984, as amended at 49 FR 38119, Sept. 27, 1984; 
50 FR 40006, Oct. 1, 1985]



Sec. 8.2  Original classification authority.

    (a) The Director, Federal Emergency Management Agency (FEMA), has 
the authority to classify information originally as TOP SECRET, as 
designated by the President in the Federal Register, Vol 47, No. 91, May 
11, 1982, in accordance with section 1.2(a)(2), E.O. 12356.
    (b) In accordance with section 1.2(d)(2), E.O. 12356, the following 
positions have been delegated ORIGINAL TOP SECRET CLASSIFICATION 
AUTHORITY by the Director, FEMA:
    (1) DEPUTY DIRECTOR, FEMA
    (2) ASSOCIATE DIRECTOR, NATIONAL PREPAREDNESS DIRECTORATE
    (3) DIRECTOR, OFFICE OF SECURITY
    (c) The positions delegated original Top Secret Classification 
Authority in paragraph (b) of this section, are also delegated Original 
Secret and Confidential Classification Authority by virtue of this 
delegation. The following positions have been delegated Original Secret 
and Original Confidential Classification Authority:
    (1) Associate Director, State and Local Programs and Support.
    (2) Regional Directors.

Any further delegation of original classification authority, for any 
classification level, will be accomplished only by the Director of the 
Federal Emergency Management Agency.
    (d) The positions delegated ORIGINAL TOP SECRET CLASSIFICATION 
AUTHORITY in paragraph (b) of this section, are also delegated ORIGINAL 
SECRET and CONFIDENTIAL CLASSIFICATION AUTHORITY by virtue of this 
delegation. The positions delegated ORIGINAL SECRET CLASSIFICATION 
AUTHORITY in paragraph (c) of this section, are also delegated

[[Page 80]]

ORIGINAL CONFIDENTIAL CLASSIFICATION AUTHORITY by virtue of this 
delegation. Any further delegation of original classification authority, 
for any classification level, will be accomplished only by the Director 
of FEMA.

[49 FR 24518, June 14, 1984 as amended at 51 FR 34605, Sept. 30, 1986; 
53 FR 47210, Nov. 22, 1989; 56 FR 32328, July 16, 1991]



Sec. 8.3  Senior FEMA official responsible for the information security program.

    The Director of Security, FEMA, has been designated as the senior 
official to direct and administer the FEMA information security program, 
in accordance with section 5.3(a), E.O. 12356.

[49 FR 24518, June 14, 1984]



Sec. 8.4  Mandatory declassification review procedures.

    (a) All information classified by FEMA under E.O. 12356 or 
predecessor orders shall be subject to a review for declassification if 
such a review is requested by a United States citizen or permanent 
resident alien, a Federal agency or a State or local government.
    (b) Requests for declassification review shall be submitted to the 
Office of Security, Federal Emergency Management Agency, Washington, DC 
20472. All requests shall be in writing and reasonably describe the 
information sought with sufficient clarity to enable the appropriate 
FEMA component to identify the information sought. Any requests that do 
not sufficiently identify the information sought shall be returned to 
the requestor and he or she shall be asked to clarify the request and/or 
provide additional information.
    (c) If within 30 days the requestor does not respond to the agency's 
request for clarification or additional information, the FEMA Office of 
Security shall notify the requestor that no further action can be taken 
on the request. If the requestor's response to the agency's request for 
clarification and/or additional information is inadequate, the Office of 
Security shall notify him or her that no further action will be taken 
until such time as the agency is provided with adequate information 
concerning the request. In addition, the agency's response will set 
forth the agency's explanation of the deficiencies of the request.
    (d) Once a request meets the foregoing requirements for processing, 
it will be acted upon as follows:
    (1) Receipt of all requests shall be acknowledged within ten (10) 
working days.
    (2) FEMA action upon a request shall be completed within sixty (60) 
calendar days.
    (e) The Director of Security shall designate a FEMA component to 
conduct the declassification review. This will normally be the 
originating component. The designated program or staff office shall 
conduct the review and forward its recommendation(s) to the Office of 
Security. Information no longer requiring protection under E.O. 12356 
shall be declassified and released unless withholding is otherwise 
authorized under applicable law. When information cannot be declassified 
in its entirety, FEMA will make a reasonable effort to release those 
declassified portions of the requested information that constitute a 
coherent segment. If the information may not be released in whole or 
part, the requestor shall be given a brief statement as to the reason 
for the denial, a notice of the right to appeal the determination to the 
Director of FEMA and a notice that such an appeal must be filed within 
sixty (60) calendar days to be considered.
    (f) If the request requires the rendering of services for which fees 
may be charged under 31 U.S.C. 9701, such fees may be imposed in 
accordance with the provisions of 44 CFR part 5, subpart C.
    (g) The following procedures shall be followed when denials of 
requests for declassification are appealed:
    (1) The Director shall, within fifteen (15) working days of receipt 
of the appeal, convene a meeting of the FEMA Information Security 
Oversight Committee (ISOC). Representation on the FEMA ISOC shall 
include the Director of Security or his/her representative, a 
representative of the component that denied the original request, a 
representative from the Office of General Counsel, a representative from 
the Office of External Affairs and the Chief of Staff or his/her 
representative.

[[Page 81]]

    (2) If the ISOC upholds the appeal in its entirety, the information 
will be released in accordance with the provisions of paragraph (e) of 
this section.
    (3) If the ISOC denies the appeal, in part or in its entirety, then 
it will forward the appeal with its recommendation(s) to the Director of 
FEMA, for a final determination. A reply will be forwarded to the 
requestor enclosing the declassified releasable information if any, and 
an explanation for denying the request in whole or in part.
    (4) Final action on appeals shall be completed within thirty (30) 
working days of receipt of appeal.

[49 FR 24518, June 14, 1984, as amended at 49 FR 38119, Sept. 27, 1984; 
50 FR 40006, Oct. 1, 1985; 51 FR 34605, Sept. 30, 1986]



PART 9--FLOODPLAIN MANAGEMENT AND PROTECTION OF WETLANDS--Table of Contents




Sec.
9.1  Purpose of part.
9.2  Policy.
9.3  Authority.
9.4  Definitions.
9.5  Scope.
9.6  Decision-making process.
9.7  Determination of proposed action's location.
9.8  Public notice requirements.
9.9  Analysis and reevaluation of practicable alternatives.
9.10  Identify impacts of proposed actions.
9.11  Mitigation.
9.12  Final public notice.
9.13  Particular types of temporary housing.
9.14  Disposal of Agency property.
9.15  Planning programs affecting land use.
9.16  Guidance for applicants.
9.17  Instructions to applicants.
9.18  Responsibilities.

Appendix A to Part 9--Decision-Making Process for E.O. 11988

    Authority: E.O. 11988 of May 24, 1977. 3 CFR, 1977 Comp., p. 117; 
E.O. 11990 of May 24 1977, 3 CFR, 1977 Comp. p. 121; Reorganization Plan 
No. 3 of 1978, 43 FR 41943, 3 CFR, 1978 Comp., p. 329; E.O. 12127 of 
March 31, 1979, 44 FR 19367, 3 CFR, 1979 Comp., p. 376; E.O. 12148 of 
July 20, 1979, 44 FR 43239, 3 CFR, 1979 Comp., p. 412, as amended.; E.O. 
12127; E.O. 12148; 42 U.S.C. 5201.

    Source: 45 FR 59526, Sept. 9, 1980, unless otherwise noted.



Sec. 9.1  Purpose of part.

    This regulation sets forth the policy, procedure and 
responsibilities to implement and enforce Executive Order 11988, 
Floodplain Management, and Executive Order 11990, Protection of 
Wetlands.



Sec. 9.2  Policy.

    (a) FEMA shall take no action unless and until the requirements of 
this regulation are complied with.
    (b) It is the policy of the Agency to provide leadership in 
floodplain management and the protection of wetlands. Further, the 
Agency shall integrate the goals of the Orders to the greatest possible 
degree into its procedures for implementing NEPA. The Agency shall take 
action to:
    (1) Avoid long- and short-term adverse impacts associated with the 
occupancy and modification of floodplains and the destruction and 
modification of wetlands;
    (2) Avoid direct and indirect support of floodplain development and 
new construction in wetlands wherever there is a practicable 
alternative;
    (3) Reduce the risk of flood loss;
    (4) Promote the use of nonstructural flood protection methods to 
reduce the risk of flood loss;
    (5) Minimize the impact of floods on human health, safety and 
welfare;
    (6) Minimize the destruction, loss or degradation of wetlands;
    (7) Restore and preserve the natural and beneficial values served by 
floodplains;
    (8) Preserve and enhance the natural values of wetlands;
    (9) Involve the public throughout the floodplain management and 
wetlands protection decision-making process;
    (10) Adhere to the objectives of the Unified National Program for 
Floodplain Management; and
    (11) Improve and coordinate the Agency's plans, programs, functions 
and resources so that the Nation may attain the widest range of 
beneficial uses of the environment without degradation or risk to health 
and safety.



Sec. 9.3  Authority.

    The authority for these regulations is (a) Executive Order 11988, 
May 24, 1977, which replaced Executive Order

[[Page 82]]

11296, August 10, 1966, (b) Executive Order 11990, May 24, 1977, (c) 
Reorganization Plan No. 3 of 1978 (43 FR 41943); and (d) Executive Order 
12127, April 1, 1979 (44 FR 1936). E.O. 11988 was issued in furtherance 
of the National Flood Insurance Act of 1968, as amended (Pub. L. 90-
488); the Flood Disaster Protection Act of 1973, as amended (Pub. L. 93-
234); and the National Environmental Policy Act of 1969 (NEPA) (Pub. L. 
91-190). Section 2(d) of Executive Order 11988 requires issuance of new 
or amended regulations and procedures to satisfy its substantive and 
procedural provisions. E.O. 11990 was issued in furtherance of NEPA, and 
at section 6 required issuance of new or amended regulations and 
procedures to satisfy its substantive and procedural provisions.

[45 FR 59526, Sept. 9, 1980, as amended at 48 FR 44543, Sept. 29, 1983]



Sec. 9.4  Definitions.

    The following definitions shall apply throughout this regulation.
    Action means any action or activity including: (a) Acquiring, 
managing and disposing of Federal lands and facilities; (b) providing 
federally undertaken, financed or assisted construction and 
improvements; and (c) conducting Federal activities and programs 
affecting land use, including, but not limited to, water and related 
land resources, planning, regulating and licensing activities.
    Actions Affecting or Affected by Floodplains or Wetlands means 
actions which have the potential to result in the long- or short-term 
impacts associated with (a) the occupancy or modification of 
floodplains, and the direct or indirect support of floodplain 
development, or (b) the destruction and modification of wetlands and the 
direct or indirect support of new construction in wetlands.
    Agency means the Federal Emergency Management Agency (FEMA).
    Agency Assistance means grants for projects or planning activities, 
loans, and all other forms of financial or technical assistance provided 
by the Agency.
    Associate Director means the head of any Office or Administration of 
the Federal Emergency Management Agency, who has programmatic 
responsibility for a particular action.
    Base Flood means the flood which has a one percent chance of being 
equalled or exceeded in any given year (also known as a 100-year flood). 
This term is used in the National Flood Insurance Program (NFIP) to 
indicate the minimum level of flooding to be used by a community in its 
floodplain management regulations.
    Base Floodplain means the 100-year floodplain (one percent chance 
floodplain).
    Coastal High Hazard Area means the areas subject to high velocity 
waters including but not limited to hurricane wave wash or tsunamis. On 
a Flood Insurance Rate Map (FIRM), this appears as zone V1-30, VE or V.
    Critical Action means an action for which even a slight chance of 
flooding is too great. The minimum floodplain of concern for critical 
actions is the 500-year floodplain, i.e., critical action floodplain. 
Critical actions include, but are not limited to, those which create or 
extend the useful life of structures or facilities:
    (a) Such as those which produce, use or store highly volatile, 
flammable, explosive, toxic or water-reactive materials;
    (b) Such as hospitals and nursing homes, and housing for the 
elderly, which are likely to contain occupants who may not be 
sufficiently mobile to avoid the loss of life or injury during flood and 
storm events;
    (c) Such as emergency operation centers, or data storage centers 
which contain records or services that may become lost or inoperative 
during flood and storm events; and
    (d) Such as generating plants, and other principal points of utility 
lines.
    Direct Impacts means changes in floodplain or wetland values and 
functions and changes in the risk to lives and property caused or 
induced by an action or related activity. Impacts are caused whenever 
these natural values and functions are affected as a direct result of an 
action. An action which would result in the discharge of polluted storm 
waters into a floodplain or wetland, for example, would directly affect 
their natural values and functions. Construction-related activities,

[[Page 83]]

such as dredging and filling operations within the floodplain or a 
wetland would be another example of impacts caused by an action.
    Director means the Director of the Federal Emergency Management 
Agency (FEMA).
    Emergency Actions means emergency work essential to save lives and 
protect property and public health and safety performed under sections 
305 and 306 of the Disaster Relief Act of 1974 (42 U.S.C. 5145 and 
5146). See 44 CFR part 205, subpart E.
    Enhance means to increase, heighten, or improve the natural and 
beneficial values associated with wetlands.
    Facility means any man-made or man-placed item other than a 
structure.
    FEMA means the Federal Emergency Management Agency.
    FIA means the Federal Insurance Administration.
    Five Hundred Year Floodplain (the 500-year floodplain or 0.2 percent 
change floodplain) means that area, including the base floodplain, which 
is subject to inundation from a flood having a 0.2 percent chance of 
being equalled or exceeded in any given year.
    Flood or flooding means a general and temporary condition of partial 
or complete inundation of normally dry land areas from the overflow of 
inland and/or tidal waters, and/or the unusual and rapid accumulation or 
runoff of surface waters from any source.
    Flood Fringe means that portion of the floodplain outside of the 
floodway (often referred to as ``floodway fringe'').
    Flood Hazard Boundary Map (FHBM) means an offical map of a 
community, issued by the Director, where the boundaries of the flood, 
mudslide (i.e., mudflow) and related erosion areas having special 
hazards have been designated as Zone A, M, or E.
    Flood Insurance Rate Map (FIRM) means an official map of a community 
on which the Director has delineated both the special hazard areas and 
the risk premium zones applicable to the community.
    Flood Insurance Study (FIS) means an examination, evaluation and 
determination of flood hazards and, if appropriate, corresponding water 
surface elevations or an examination, evaluation and determination of 
mudslide (i.e., mudflow) and/or flood-related erosion hazards.
    Floodplain means the lowland and relatively flat areas adjoining 
inland and coastal waters including, at a minimum, that area subject to 
a one percent or greater chance of flooding in any given year. Wherever 
in this regulation the term ``floodplain'' is used, if a critical action 
is involved, ``floodplain'' shall mean the area subject to inundation 
from a flood having a 0.2 percent chance of occurring in any given year 
(500-year floodplain). ``Floodplain'' does not include areas subject 
only to mudflow until FIA adopts maps identifying ``M'' Zones.
    Floodproofing means the modification of individual structures and 
facilities, their sites, and their contents to protect against 
structural failure, to keep water out, or to reduce effects of water 
entry.
    Floodway means that portion of the floodplain which is effective in 
carrying flow, within which this carrying capacity must be preserved and 
where the flood hazard is generally highest, i.e., where water depths 
and velocities are the greatest. It is that area which provides for the 
discharge of the base flood so the cumulative increase in water surface 
elevation is no more than one foot.
    Functionally Dependent Use means a use which cannot perform its 
intended purpose unless it is located or carried out in close proximity 
to water, (e.g., bridges, and piers).
    Indirect Impacts means an indirect result of an action whenever the 
action induces or makes possible related activities which effect the 
natural values and functions of floodplains or wetlands or the risk to 
lives and property. Such impacts occur whenever these values and 
functions are potentially affected, either in the short- or long-term, 
as a result of undertaking an action.
    Minimize means to reduce to the smallest amount or degree possible.

[[Page 84]]

    Mitigation means all steps necessary to minimize the potentially 
adverse effects of the proposed action, and to restore and preserve the 
natural and beneficial floodplain values and to preserve and enhance 
natural values of wetlands.
    Natural Values of Floodplains and Wetlands means the qualities of or 
functions served by floodplains and wetlands which include but are not 
limited to: (a) Water resource values (natural moderation of floods, 
water quality maintenance, groundwater recharge); (b) living resource 
values (fish, wildlife, plant resources and habitats); (c) cultural 
resource values (open space, natural beauty, scientific study, outdoor 
education, archeological and historic sites, recreation); and (d) 
cultivated resource values (agriculture, aquaculture, forestry).
    New Construction means the construction of a new structure 
(including the placement of a mobile home) or facility or the 
replacement of a structure or facility which has been totally destroyed.
    New Construction in Wetlands includes draining, dredging, 
channelizing, filling, diking, impounding, and related activities and 
any structures or facilities begun or authorized after the effective 
dates of the Orders, May 24, 1977.
    Orders means Executive Orders 11988, Floodplain Management, and 
11990, Protection of Wetlands.
    Practicable means capable of being done within existing constraints. 
The test of what is practicable depends upon the situation and includes 
consideration of all pertinent factors, such as environment, cost and 
technology.
    Preserve means to prevent alterations to natural conditions and to 
maintain the values and functions which operate the floodplains or 
wetlands in their natural states.
    Regional Director means the Regional Director of the Federal 
Emergency Management Agency for the Region in which FEMA is acting or 
the Disaster Recovery Manager when one is designated.
    Regulatory Floodway means the area regulated by federal, State or 
local requirements to provide for the discharge of the base flood so the 
cumulative increase in water surface elevation is no more than a 
designated amount (not to exceed one foot as set by the National Flood 
Insurance Program).
    Restore means to reestablish a setting or environment in which the 
natural functions of the floodplain can again operate.
    SLPS means the State and Local Programs and Support Directorate.
    Structures means walled or roofed buildings, including mobile homes 
and gas or liquid storage tanks.
    Substantial Improvement means any repair, reconstruction or other 
improvement of a structure or facility, which has been damaged in excess 
of, or the cost of which equals or exceeds, 50% of the market value of 
the structure or replacement cost of the facility (including all 
``public facilities'' as defined in the Disaster Relief Act of 1974) (a) 
before the repair or improvement is started, or (b) if the structure or 
facility has been damaged and is proposed to be restored, before the 
damage occurred. If a facility is an essential link in a larger system, 
the percentage of damage will be based on the relative cost of repairing 
the damaged facility to the replacement cost of the portion of the 
system which is operationally dependent on the facility. The term 
``substantial improvement'' does not include any alteration of a 
structure or facility listed on the National Register of Historic Places 
or a State Inventory of Historic Places.
    Support means to encourage, allow, serve or otherwise facilitate 
floodplain or wetland development. Direct support results from actions 
within a floodplain or wetland, and indirect support results from 
actions outside of floodplains or wetlands.
    Wetlands means those areas which are inundated or saturated by 
surface or ground water with a frequency sufficient to support, or that 
under normal hydrologic conditions does or would support, a prevalence 
of vegetation or aquatic life typically adapted for life in saturated or 
seasonally saturated soil conditions. Examples of wetlands include, but 
are not limited to, swamps, fresh and salt water marshes, estuaries, 
bogs, beaches, wet meadows, sloughs, potholes, mud flats, river 
overflows and other similar areas. This definition includes those 
wetlands

[[Page 85]]

areas separated from their natural supply of water as a result of 
activities such as the construction of structural flood protection 
methods or solid-fill road beds and activities such as mineral 
extraction and navigation improvements. This definition is intended to 
be consistent with the definition utilized by the U.S. Fish and Wildlife 
Service in the publication entitled Classification of Wetlands and Deep 
Water Habitats of the United States (Cowardin, et al., 1977).

[45 FR 59526, Sept. 9, 1980, as amended at 47 FR 13149, Mar. 29, 1982; 
50 FR 40006, Oct. 1, 1985]



Sec. 9.5  Scope.

    (a) Applicability. (1) These regulations apply to all Agency actions 
which have the potential to affect floodplains or wetlands or their 
occupants, or which are subject to potential harm by location in 
floodplains or wetlands.
    (2) The basic test of the potential of an action to affect 
floodplains or wetlands is the action's potential (both by itself and 
when viewed cumulatively with other proposed actions) to result in the 
long- or short-term adverse impacts associated with:
    (i) The occupancy or modification of floodplains, and the direct and 
indirect support of floodplain development; or
    (ii) The destruction or modification of wetlands and the direct or 
indirect support of new construction in wetlands.
    (3) This regulation applies to actions that were, on the effective 
date of the Orders (May 24, 1977), ongoing, in the planning and/or 
development stages, or undergoing implementation, and are incomplete as 
of the effective date of these regulations. The regulation also applies 
to proposed (new) actions. The Agency shall:
    (i) Determine the applicable provisions of the Orders by analyzing 
whether the action in question has progressed beyond critical stages in 
the floodplain management and wetlands protection decision-making 
process, as set out below in Sec. 9.6. This determination need only be 
made at the time that followup actions are being taken to complete or 
implement the action in question; and
    (ii) Apply the provisions of the Orders and of this regulation to 
all such actions to the fullest extent practicable.
    (b) Limited exemption of ongoing actions involving wetlands located 
outside the floodplains. (1) Executive Order 11990, Protection of 
Wetlands, contains a limited exemption not found in Executive Order 
11988, Floodplain Management. Therefore, this exemption applies only to 
actions affecting wetlands which are located outside the floodplains, 
and which have no potential to result in harm to or within floodplains 
or to support floodplain development.
    (2) The following proposed actions that impact wetlands located 
outside of floodplains are exempt from this regulation:
    (i) Agency-assisted or permitted projects which were under 
construction before May 24, 1977; and
    (ii) Projects for which the Agency has proposed a draft of a final 
environmental impact statement (EIS) which adequately analyzes the 
action and which was filed before October 1, 1977. Proposed actions that 
impact wetlands outside of floodplains are not exempt if the EIS:
    (A) Only generally covers the proposed action;
    (B) Is devoted largely to related activities; or
    (C) Treats the project area or program without an adequate and 
specific analysis of the floodplain and wetland implications of the 
proposed action.
    (c) Decision-making involving certain categories of actions. The 
provisions set forth in this regulation are not applicable to the 
actions enumerated below except that the Regional Directors shall comply 
with the spirit of the Order to the extent practicable. For any action 
which is excluded from the actions enumerated below, the full 8-step 
process applies (see Sec. 9.6) (except as indicated at paragraphs (d), 
(f) and (g) of this section regarding other categories of partial or 
total exclusions). The provisions of these regulations do not apply to 
the following (all references are to the Disaster Relief Act of 1974, 
Pub. L. 93-288, as amended, except as noted):
    (1) Assistance provided for emergency work essential to save lives 
and protect

[[Page 86]]

property and public health and safety performed pursuant to sections 305 
and 306;
    (2) Emergency Support Teams (section 304);
    (3) Unemployment Assistance (section 407);
    (4) Emergency Communications (section 415);
    (5) Emergency Public Transportation (section 416);
    (6) Fire Management Assistance (Section 420);
    (7) Community Disaster Loans (section 414), except to the extent 
that the proceeds of the loan will be used for repair of facilities or 
structures or for construction of additional facilities or structures;
    (8) The following Individual and Family Grant Program (section 408) 
actions:
    (i) Housing needs or expenses, except for restoring, repairing or 
building private bridges, purchase of mobile homes and provision of 
structures as minimum protective measures;
    (ii) Personal property needs or expenses;
    (iii) Transportation expenses;
    (iv) Medical/dental expenses;
    (v) Funeral expenses;
    (vi) Limited home repairs;
    (vii) Flood insurance premium;
    (viii) Cost estimates;
    (ix) Food expenses; and
    (x) Temporary rental accommodations.
    (9) Mortgage and rental assistance under section 404(b);
    (10) Use of existing resources in the temporary housing assistance 
program [section 404(a)], except that Step 1 (Sec. 9.7) shall be carried 
out;
    (11) Minimal home repairs [section 404(c)];
    (12) Debris removal (section 403), except those grants involving 
non-emergency disposal of debris within a floodplain or wetland;
    (13) Repairs or replacements under section 402, of less than $5,000 
to damaged structures or facilities.
    (14) Placement of families in existing resources and Temporary 
Relocation Assistance provided to those families so placed under the 
Comprehensive Environmental Response, Compensation, and Liability Act of 
1980, Public Law 96-510.
    (d) For each action enumerated below, the Regional Director shall 
apply steps 1, 2, 4, 5 and 8 of the decision-making process (Secs. 9.7, 
9.8, 9.10 and 9.11, see Sec. 9.6). Steps 3 and 6 (Sec. 9.9) shall be 
carried out except that alternative sites outside the floodplain or 
wetland need not be considered. After assessing impacts of the proposed 
action on the floodplain or wetlands and of the site on the proposed 
action, alternative actions to the proposed action, if any, and the ``no 
action'' alternative shall be considered. The Regional Director may also 
require certain other portions of the decision-making process to be 
carried out for individual actions as is deemed necessary. For any 
action which is excluded from the actions listed below. (except as 
indicated in paragraphs (c), (f) and (g) of this section regarding other 
categories of partial or total exclusion), the full 8-step process 
applies (see Sec. 9.6). The references are to the Disaster Relief Act of 
1974, Public Law 93-288, as amended.
    (1) Actions performed under the Individual and Family Grant Program 
(section 408) for restoring or repairing a private bridge, except where 
two or more individuals or families are authorized to pool their grants 
for this purpose.
    (2) Small project grants (section 419), except to the extent that 
Federal funding involved is used for construction of new facilities or 
structures.
    (3) Replacement of building contents, materials and equipment. 
(sections 402 and 419).
    (4) Repairs under section 402 to damaged facilities or structures, 
except any such action for which one or more of the following is 
applicable:
    (i) FEMA estimated cost of repairs is more than 50% of the estimated 
reconstruction cost of the entire facility or structure, or is more than 
$100,000, or
    (ii) The action is located in a floodway or coastal high hazard 
area, or
    (iii) The facility or structure is one which has previously 
sustained structural damage from flooding due to a major disaster or 
emergency or on which a flood insurance claim has been paid, or

[[Page 87]]

    (iv) The action is a critical action.
    (e) Other categories of actions. Based upon the completion of the 8-
step decision-making process (Sec. 9.6), the Director may find that a 
specific category of actions either offers no potential for carrying out 
the purposes of the Orders and shall be treated as those actions listed 
in Sec. 9.5(c), or has no practicable alternative sites and shall be 
treated as those actions listed in Sec. 9.5(d), or has no practicable 
alternative actions or sites and shall be treated as those actions 
listed in Sec. 9.5(g). This finding will be made in consultation with 
the Federal Insurance Administration and the Council on Environmental 
Quality as provided in section 2(d) of E.O. 11988. Public notice of each 
of these determinations shall include publication in the Federal 
Register and a 30-day comment period.
    (f) The National Flood Insurance Program (NFIP). (1) Most of what is 
done by FIA or SLPS, in adminstering the National Flood Insurance 
Program is performed on a program-wide basis. For all regulations, 
procedures or other issuances making or amending program policy, FIA or 
SLPS, shall apply the 8-step decision-making process to that program-
wide action. The action to which the 8-step process must be applied is 
the establishment of programmatic standards or criteria, not the 
application of programmatic standards or criteria to specific 
situations. Thus, for example, FIA or SLPS, would apply the 8-step 
process to a programmatic determination of categories of structures to 
be insured, but not to whether to insure each individual structure. The 
two prime examples of where FIA or SLPS, does take site specific actions 
which would require individual application of the 8-step process are 
property acquisition under section 1362 of the National Flood Insurance 
Act of 1968, as amended, and the issuance of an exception to a community 
under 44 CFR 60.6(b). (See also Sec. 9.9(e)(6) and Sec. 9.11(e).)
    (2) The provisions set forth in this regulation are not applicable 
to the actions enumerated below except that the Federal Insurance 
Administrator or the Associate Director, SLPS, as appropriate shall 
comply with the spirit of the Orders to the extent practicable:
    (i) The issuance of individual flood insurance policies and policy 
interpretations;
    (ii) The adjustment of claims made under the Standard Flood 
Insurance Policy;
    (iii) The hiring of independent contractors to assist in the 
implementation of the National Flood Insurance Program;
    (iv) The issuance of individual flood insurance maps, Map 
Information Facility map determinations, and map amendments; and
    (v) The conferring of eligibility for emergency or regular program 
(NFIP) benefits upon communities.
    (g) For the action listed below, the Regional Director shall apply 
steps 1, 4, 5 and 8 of the decision-making process (Secs. 9.7, 9.10 and 
9.11). For any action which is excluded from the actions listed below, 
(except as indicated in paragraphs (c), (d) and (f) of this section 
regarding other categories of partial or total exclusion), the full 8-
step process applies (See Sec. 9.6). The Regional Director may also 
require certain other portions of the decision-making process to be 
carried out for individual actions as is deemed necessary. The 
references are to the Disaster Relief Act of 1974, Public Law 93-288. 
The above requirements apply to repairs, under section 402, between 
$5,000 and $25,000 to damaged structures of facilities except for:
    (1) Actions in a floodway or coastal high hazard area; or
    (2) New or substantially improved structures or facilities; or
    (3) Facilities or structures which have previously sustained 
structural damage from flooding due to a major disaster or emergency.

[45 FR 59526, Sept. 9, 1980, as amended at 47 FR 13149, Mar. 29, 1982; 
49 FR 35583, Sept. 10, 1984; 50 FR 40006, Oct. 1, 1985; 51 FR 39531, 
Oct. 29, 1986; 66 FR 57347, Nov. 14, 2001]



Sec. 9.6  Decision-making process.

    (a) Purpose. The purpose of this section is to set out the 
floodplain management and wetlands protection decision-making process to 
be followed by the Agency in applying the Orders to its actions. While 
the decision-making process was initially designed to address the 
floodplain Order's requirements, the process will also satisfy the

[[Page 88]]

wetlands Order's provisions due to the close similarity of the two 
directives. The numbering of Steps 1 through 8 does not firmly require 
that the steps be followed sequentially. As information is gathered 
throughout the decision-making process and as additional information is 
needed, reevaluation of lower numbered steps may be necessary.
    (b) Except as otherwise provided in Sec. 9.5 (c), (d), (f), and (g) 
regarding categories of partial or total exclusion when proposing an 
action, the Agency shall apply the 8-step decision-making process. FEMA 
shall:
    Step 1. Determine whether the proposed action is located in a 
wetland and/or the 100-year floodplain (500-year floodplain for critical 
actions); and whether it has the potential to affect or be affected by a 
floodplain or wetland (see Sec. 9.7);
    Step 2. Notify the public at the earliest possible time of the 
intent to carry out an action in a floodplain or wetland, and involve 
the affected and interested public in the decision-making process (see 
Sec. 9.8);
    Step 3. Identify and evaluate practicable alternatives to locating 
the proposed action in a floodplain or wetland (including alternative 
sites, actions and the ``no action'' option) (see Sec. 9.9). If a 
practicable alternative exists outside the floodplain or wetland FEMA 
must locate the action at the alternative site.
    Step 4. Identify the potential direct and indirect impacts 
associated with the occupancy or modification of floodplains and 
wetlands and the potential direct and indirect support of floodplain and 
wetland development that could result from the proposed action (see 
Sec. 9.10);
    Step 5. Minimize the potential adverse impacts and support to or 
within floodplains and wetlands to be identified under Step 4, restore 
and preserve the natural and beneficial values served by floodplains, 
and preserve and enhance the natural and beneficial values served by 
wetlands (see Sec. 9.11);
    Step 6. Reevaluate the proposed action to determine first, if it is 
still practicable in light of its exposure to flood hazards, the extent 
to which it will aggravate the hazards to others, and its potential to 
disrupt floodplain and wetland values and second, if alternatives 
preliminarily rejected at Step 3 are practicable in light of the 
information gained in Steps 4 and 5. FEMA shall not act in a floodplain 
or wetland unless it is the only practicable location (see Sec. 9.9);
    Step 7. Prepare and provide the public with a finding and public 
explanation of any final decision that the floodplain or wetland is the 
only practicable alternative (see Sec. 9.12); and
    Step 8. Review the implementation and post-implementation phases of 
the proposed action to ensure that the requirements stated in Sec. 9.11 
are fully implemented. Oversight responsibility shall be integrated into 
existing processes.

[45 FR 59526, Sept. 9, 1980, as amended at 49 FR 35583, Sept. 10, 1984; 
50 FR 40006, Oct. 1, 1985]



Sec. 9.7  Determination of proposed action's location.

    (a) The purpose of this section is to establish Agency procedures 
for determining whether any action as proposed is located in or affects 
(1) the base floodplain (the Agency shall substitute the 500-year 
floodplain for the base floodplain where the action being proposed 
involves a critical action), or (2) a wetland.
    (b) Information needed. The Agency shall obtain enough information 
so that it can fulfill the requirements of the Orders to (1) avoid 
floodplain and wetland locations unless they are the only practicable 
alternatives; and (2) minimize harm to and within floodplains and 
wetlands. In all cases, FEMA shall determine whether the proposed action 
is located in a floodplain or wetland. In the absence of a finding to 
the contrary, FEMA may assume that a proposed action involving a 
facility or structure that has been flooded is in the floodplain. 
Information about the 100-year and 500-year floods and location of 
floodways and coastal high hazard areas may also be needed to comply 
with these regulations, especially Sec. 9.11. The following additional 
flooding characteristics shall be identified by the Regional Director as 
appropriate:
    (i) Velocity of floodwater;

[[Page 89]]

    (ii) Rate of rise of floodwater;
    (iii) Duration of flooding;
    (iv) Available warning and evacuation time and routes;
    (v) Special problems:
    (A) Levees;
    (B) Erosion;
    (C) Subsidence;
    (D) Sink holes;
    (E) Ice jams;
    (F) Debris load;
    (G) Pollutants;
    (H) Wave heights;
    (I) Groundwater flooding;
    (J) Mudflow.
    (c) Floodplain determination. (1) In the search for flood hazard 
information, FEMA shall follow the sequence below:
    (i) The Regional Director shall consult the FEMA Flood Insurance 
Rate Map (FIRM) the Flood Boundary Floodway Map (FBFM) and the Flood 
Insurance Study (FIS).
    (ii) If a detailed map (FIRM or FBFM) is not available, the Regional 
Director shall consult an FEMA Flood Hazard Boundary Map (FHBM) . If 
data on flood elevations, floodways, or coastal high hazard areas are 
needed, or if the map does not delineate the flood hazard boundaries in 
the vicinity of the proposed site, the Regional Director shall seek the 
necessary detailed information and assistance from the sources listed 
below.

                Sources of Maps and Technical Information

Department of Agriculture: Soil Conservation Service
Department of the Army: Corps of Engineers
Department of Commerce: National Oceanic and Atmospheric Administration
Federal Insurance Administration
FEMA Regional Offices/Natural and Technological Hazards Division
Department of the Interior:
    Geological Survey
    Bureau of Land Management
    Bureau of Reclamation
Tennessee Valley Authority
Delaware River Basin Commission
Susquehanna River Basin Commission
States

    (iii) If the sources listed do not have or know of the information 
necessary to comply with the Orders' requirements, the Regional Director 
shall seek the services of a Federal or other engineer experienced in 
this type of work.
    (2) If a decision involves an area or location within extensive 
Federal or state holdings or a headwater area, and an FIS, FIRM, FBFM, 
or FHBM is not available, the Regional Director shall seek information 
from the land administering agency before information and/or assistance 
is sought from the sources listed in this section. If none of these 
sources has information or can provide assistance, the services of an 
experienced Federal or other engineer shall be sought as described 
above.
    (d) Wetland determination. The following sequence shall be followed 
by the Agency in making the wetland determination.
    (1) The Agency shall consult with the U.S. Fish and Wildlife Service 
(FWS) for information concerning the location, scale and type of 
wetlands within the area which could be affected by the proposed action.
    (2) If the FWS does not have adequate information upon which to base 
the determination, the Agency shall consult wetland inventories 
maintained by the Army Corps of Engineers, the Environmental Protection 
Agency, various states, communities and others.
    (3) If state or other sources do not have adequate information upon 
which to base the determination, the Agency shall carry out an on-site 
analysis performed by a representative of the FWS or other qualified 
individual for wetlands characteristics based on the performance 
definition of what constitutes a wetland.
    (4) If an action is in a wetland but not in a floodplain, and the 
action is new construction, the provisions of this regulation shall 
apply. Even if the action is not in a wetland, the Regional Director 
shall determine if the action has the potential to result in indirect 
impacts on wetlands. If so, all adverse impacts shall be minimized. For 
actions which are in a wetland and the floodplain, completion of the 
decision-making process is required. (See Sec. 9.6.) In such a case the 
wetland will be considered as one of the natural and beneficial values 
of floodplain.

[45 FR 59526, Sept. 9, 1980, as amended at 47 FR 13149, Mar. 29, 1982; 
49 FR 33879, Aug. 27, 1984; 50 FR 40006, Oct. 1, 1985; 51 FR 34605, 
Sept. 30, 1986]

[[Page 90]]



Sec. 9.8  Public notice requirements.

    (a) Purpose. The purpose of this section is to establish the initial 
notice procedures to be followed when proposing any action in or 
affecting floodplains or wetlands.
    (b) General. The Agency shall provide adequate information to enable 
the public to have impact on the decision outcome for all actions having 
potential to affect, adversely, or be affected by floodplains or 
wetlands that it proposes. To achieve this objective, the Agency shall:
    (1) Provide the public with adequate information and opportunity for 
review and comment at the earliest possible time and throughout the 
decision-making process; and upon completion of this process, provide 
the public with an accounting of its final decisions (see Sec. 9.12); 
and
    (2) Rely on its environmental assessment processes, to the extent 
possible, as vehicles for public notice, involvement and explanation.
    (c) Early public notice. The Agency shall provide opportunity for 
public involvement in the decision-making process through the provision 
of public notice upon determining that the proposed action can be 
expected to affect or be affected by floodplains or wetlands. Whenever 
possible, notice shall precede major project site identification and 
analysis in order to preclude the foreclosure of options consistent with 
the Orders.
    (1) For an action for which an environmental impact statement is 
being prepared, the Notice of Intent to File an EIS is adequate to 
constitute the early public notice, if it includes the information 
required under paragraph (c)(5) of this section.
    (2) For each action having national significance for which notice is 
being provided, the Agency shall use the Federal Register as the minimum 
means for notice, and shall provide notice by mail to national 
organizations reasonably expected to be interested in the action. The 
additional notices listed in paragraph (c)(4) of this section shall be 
used in accordance with the determination made under paragraph (c)(3) of 
this section.
    (3) The Agency shall base its determination of appropriate notices, 
adequate comment periods, and whether to issue cumulative notices 
(paragraphs (c)(4), (6) and (7) of this section) on factors which 
include, but are not limited to:
    (i) Scale of the action;
    (ii) Potential for controversy;
    (iii) Degree of public need;
    (iv) Number of affected agencies and individuals; and
    (v) Its anticipated potential impact.
    (4) For each action having primarily local importance for which 
notice is being provided, notice shall be made in accordance with the 
criteria under paragraph (c)(3) of this section, and shall entail as 
appropriate:
    (i) [Reserved]
    (ii) Notice to Indian tribes when effects may occur on reservations.
    (iii) Information required in the affected State's public notice 
procedures for comparable actions.
    (iv) Publication in local newspapers (in papers of general 
circulation rather than legal papers).
    (v) Notice through other local media.
    (vi) Notice to potentially interested community organizations.
    (vii) Publication in newsletters that may be expected to reach 
potentially interested persons.
    (viii) Direct mailing to owners and occupants of nearby or affected 
property.
    (ix) Posting of notice on and off site in the area where the action 
is to be located.
    (x) Holding a public hearing.
    (5) The notice shall include:
    (i) A description of the action, its purpose and a statement of the 
intent to carry out an action affecting or affected by a floodplain or 
wetland;
    (ii) Based on the factors in paragraph (c)(3) of this section, a map 
of the area or other indentification of the floodplain and/or wetland 
areas which is of adequate scale and detail so that the location is 
discernible; instead of publication of such map, FEMA may state that 
such map is available for public inspection, including the location at 
which such map may be inspected and a telephone number to call for 
information;
    (iii) Based on the factors in paragraph (c)(3) of this section, a 
description of the type, extent and degree of

[[Page 91]]

hazard involved and the floodplain or wetland values present; and
    (iv) Identification of the responsible official or organization for 
implementing the proposed action, and from whom further information can 
be obtained.
    (6) The Agency shall provide for an adequate comment period.
    (7) In a post-disaster situation in particular, the requirement for 
early public notice may be met in a cumulative manner based on the 
factors set out in paragraph (c)(3) of this section. Several actions may 
be addressed in one notice or series of notices. For some actions 
involving limited public interest a single notice in a local newspaper 
or letter to interested parties may suffice.
    (d) Continuing public notice. The Agency shall keep the public 
informed of the progress of the decision-making process through 
additional public notices at key points in the process. The preliminary 
information provided under paragraph (c)(5) of this section shall be 
augmented by the findings of the adverse effects of the proposed actions 
and steps necessary to mitigate them. This responsibility shall be 
performed for actions requiring the preparation of an EIS, and all other 
actions having the potential for major adverse impacts, or the potential 
for harm to the health and safety of the general public.

[45 FR 59526, Sept. 9, 1980, as amended at 48 FR 29318, June 24, 1983]



Sec. 9.9  Analysis and reevaluation of practicable alternatives.

    (a) Purpose. (1) The purpose of this section is to expand upon the 
directives set out in Sec. 9.6, of this part, in order to clarify and 
emphasize the Orders' key requirements to avoid floodplains and wetlands 
unless there is no practicable alternative.
    (2) Step 3 is a preliminary determination as to whether the 
floodplain is the only practicable location for the action. It is a 
preliminary determination because it comes early in the decision-making 
process when the Agency has a limited amount of information. If it is 
clear that there is a practicable alternative, or the floodplain or 
wetland is itself not a practicable location, FEMA shall then act on 
that basis. Provided that the location outside the floodplain or wetland 
does not indirectly impact floodplains or wetlands or support 
development therein (see Sec. 9.10), the remaining analysis set out by 
this regulation is not required. If such location does indirectly impact 
floodplains or wetlands or support development therein, the remaining 
analysis set out by this regulation is required. If the preliminary 
determination is to act in the floodplain, FEMA shall gather the 
additional information required under Steps 4 and 5 and then reevaluate 
all the data to determine if the floodplain or wetland is the only 
practicable alternative.
    (b) Analysis of practicable alternatives. The Agency shall identify 
and evaluate practicable alternatives to carrying out a proposed action 
in floodplains or wetlands, including:
    (1) Alternative sites outside the floodplain or wetland;
    (2) Alternative actions which serve essentially the same purpose as 
the proposed action, but which have less potential to affect or be 
affected by the floodplain or wetlands; and
    (3) No action. The floodplain and wetland site itself must be a 
practicable location in light of the factors set out in this section.
    (c) The Agency shall analyze the following factors in determining 
the practicability of the alternatives set out in paragraph (b) of this 
section:
    (1) Natural environment (topography, habitat, hazards, etc.);
    (2) Social concerns (aesthetics, historical and cultural values, 
land patterns, etc.);
    (3) Economic aspects (costs of space, construction, services, and 
relocation); and
    (4) Legal constraints (deeds, leases, etc.).
    (d) Action following the analysis of practicable alternatives. (1) 
The Agency shall not locate the proposed action in the floodplain or in 
a wetland if a practicable alternative exists outside the floodplain or 
wetland.
    (2) For critical actions, the Agency shall not locate the proposed 
action in the 500-year floodplain if a practicable alternative exists 
outside the 500-year floodplain.

[[Page 92]]

    (3) Even if no practicable alternative exists outside the floodplain 
or wetland, in order to carry out the action the floodplain or wetland 
must itself be a practicable location in light of the review required in 
this section.
    (e) Reevaluation of alternatives. Upon determination of the impact 
of the proposed action to or within the floodplain or wetland and of 
what measures are necessary to comply with the requirement to minimize 
harm to and within floodplains and wetlands (Sec. 9.11), FEMA shall:
    (1) Determine whether:
    (i) The action is still practicable at a floodplain or wetland site 
in light of the exposure to flood risk and the ensuing disruption of 
natural values;
    (ii) The floodplain or wetland site is the only practicable 
alternative;
    (iii) There is a potential for limiting the action to increase the 
practicability of previously rejected non-floodplain or wetland sites 
and alternative actions; and
    (iv) Minimization of harm to or within the floodplain can be 
achieved using all practicable means.
    (2) Take no action in a floodplain unless the importance of the 
floodplain site clearly outweighs the requirement of E.O. 11988 to:
    (i) Avoid direct or indirect support of floodplain development;
    (ii) Reduce the risk of flood loss;
    (iii) Minimize the impact of floods on human safety, health and 
welfare; and
    (iv) Restore and preserve floodplain values.
    (3) Take no action in a wetland unless the importance of the wetland 
site clearly outweighs the requirements of E.O. 11990 to:
    (i) Avoid the destruction or modification of the wetlands;
    (ii) Avoid direct or indirect support of new construction in 
wetlands;
    (iii) Minimize the destruction, loss or degradation of wetlands; and
    (iv) Preserve and enhance the natural and beneficial values of 
wetlands.
    (4) In carrying out this balancing process, give the factors in 
paragraphs (e)(2) and (3) of this section, the great weight intended by 
the Orders.
    (5) Choose the ``no action'' alternative where there are no 
practicable alternative actions or sites and where the floodplain or 
wetland is not itself a practicable alternative. In making the 
assessment of whether a floodplain or wetland location is itself a 
practicable alternative, the practicability of the floodplain or wetland 
location shall be balanced against the practicability of not carrying 
out the action at all. That is, even if there is no practicable 
alternative outside of the floodplain or wetland, the floodplain or 
wetland itself must be a practicable location in order for the action to 
be carried out there. To be a practicable location, the importance of 
carrying out the action must clearly outweigh the requirements of the 
Orders listed in paragraphs (e)(2) and (e)(3) of this section. Unless 
the importance of carrying out the action clearly outweighs those 
requirements, the ``no action'' alternative shall be selected.
    (6) In any case in which the Regional Director has selected the ``no 
action'' option, FIA may not provide a new or renewed contract of flood 
insurance for that structure.

    Effective Date Note: At 45 FR 79070, Nov. 28, 1980, Sec. 9.9(e)(6) 
was temporarily suspended until further notice.



Sec. 9.10  Identify impacts of proposed actions.

    (a) Purpose. The purpose of this section is to ensure that the 
effects of proposed Agency actions are identified.
    (b) The Agency shall identify the potential direct and indirect 
adverse impacts associated with the occupancy and modification of 
floodplains and wetlands and the potential direct and indirect support 
of floodplain and wetland development that could result from the 
proposed action. Such identification of impacts shall be to the extent 
necessary to comply with the requirements of the Orders to avoid 
floodplain and wetland locations unless they are the only practicable 
alternatives and to minimize harm to and within floodplains and 
wetlands.
    (c) This identification shall consider whether the proposed action 
will result in an increase in the useful life of any structure or 
facility in question, maintain the investment at risk and exposure of 
lives to the flood hazard or forego an opportunity to restore the 
natural and beneficial values served by

[[Page 93]]

floodplains or wetlands. Regional Offices of the U.S. Fish and Wildlife 
Service may be contacted to aid in the identification and evaluation of 
potential impacts of the proposed action on natural and beneficial 
floodplain and wetland values.
    (d) In the review of a proposed or alternative action, the Regional 
Director shall specifically consider and evaluate: impacts associated 
with modification of wetlands and floodplains regardless of its 
location; additional impacts which may occur when certain types of 
actions may support subsequent action which have additional impacts of 
their own; adverse impacts of the proposed actions on lives and property 
and on natural and beneficial floodplain and wetland values; and the 
three categories of factors listed below:
    (1) Flood hazard-related factors. These include for example, the 
factors listed in Sec. 9.7(b)(2);
    (2) Natural values-related factors. These include, for example, the 
following: Water resource values (natural moderation of floods, water 
quality maintenance, and ground water recharge); living resource values 
(fish and wildlife and biological productivity); cultural resource 
values (archeological and historic sites, and open space recreation and 
green belts); and agricultural, aquacultural and forestry resource 
values.
    (3) Factors relevant to a proposed action's effects on the survival 
and quality of wetlands. These include, for example, the following: 
Public health, safety, and welfare, including water supply, quality, 
recharge and discharge; pollution; flood and storm hazards; and sediment 
and erosion; maintenance of natural systems, including conservation and 
long term productivity of existing flora and fauna, species and habitat 
diversity and stability, hydrologic utility, fish, wildlife, timber, and 
food and fiber resources; and other uses of wetlands in the public 
interest, including recreational, scientific, and cultural uses.



Sec. 9.11  Mitigation.

    (a) Purpose. The purpose of this section is to expand upon the 
directives set out in Sec. 9.6 of this part, and to set out the 
mitigative actions required if the preliminary determination is made to 
carry out an action that affects or is in a floodplain or wetland.
    (b) General provisions. (1) The Agency shall design or modify its 
actions so as to minimize harm to or within the floodplain;
    (2) The Agency shall minimize the destruction, loss or degradation 
of wetlands;
    (3) The Agency shall restore and preserve natural and beneficial 
floodplain values; and
    (4) The Agency shall preserve and enhance natural and beneficial 
wetland values.
    (c) Minimization provisions. The Agency shall minimize:
    (1) Potential harm to lives and the investment at risk from the base 
flood, or, in the case of critical actions, from the 500-year flood;
    (2) Potential adverse impacts the action may have on others; and
    (3) Potential adverse impact the action may have on floodplain and 
wetland values.
    (d) Minimization Standards. In its implementation of the Disaster 
Relief Act of 1974, the Agency shall apply at a minimum, the following 
standards to its actions to comply with the requirements of paragraphs 
(b) and (c), of this section, (except as provided in Sec. 9.5 (c), (d), 
and (g) regarding categories of partial or total exclusion). Any Agency 
action to which the following specific requirements do not apply, shall 
nevertheless be subject to the full 8-step process (Sec. 9.6) including 
the general requirement to minimize harm to and within floodplains:
    (1) There shall be no new construction or substantial improvement in 
a floodway, and no new construction in a coastal high hazard area, 
except for:
    (i) A functionally dependent use; or
    (ii) A structure or facility which facilitates an open space use.
    (2) For a structure which is a functionally dependent use, or which 
facilitates an open space use, the following applies. There shall be no 
construction of a new or substantially improved structure in a coastal 
high hazard area unless it is elevated on adequately anchored pilings or 
columns, and securely anchored to such piles or columns so

[[Page 94]]

that the lowest portion of the structural members of the lowest floor 
(excluding the pilings or columns) is elevated to or above the base 
flood level (the 500-year flood level for critical actions) (including 
wave height). The structure shall be anchored so as to withstand 
velocity waters and hurricane wave wash. The Regional Director shall be 
responsible for determining the base flood level, including the wave 
height, in all cases. Where there is a FIRM in effect, it shall be the 
basis of the Regional Director's determination. If the FIRM does not 
reflect wave heights, or if there is no FIRM in effect, the Regional 
Director is responsible for delineating the base flood level, including 
wave heights.
    (3) Elevation of structures. (i) There shall be no new construction 
or substantial improvement of structures unless the lowest floor of the 
structures (including basement) is at or above the level of the base 
flood.
    (ii) There shall be no new construction or substantial improvement 
of structures involving a critical action unless the lowest floor of the 
structure (including the basement) is at or above the level of the 500-
year flood.
    (iii) If the subject structure is nonresidential, FEMA may, instead 
of elevating the structure to the 100-year or 500-year level, as 
appropriate, approve the design of the structure and its attendant 
utility and sanitary facilities so that below the flood level the 
structure is water tight with walls substantially impermeable to the 
passage of water and with structural components having the capability of 
resisting hydrostatic and hydrodynamic loads and effects of buoyancy.
    (iv) The provisions of paragraphs (d)(3)(i), (ii), and (iii) of this 
section do not apply to the extent that the Federal Insurance 
Administration has granted an exception under 44 CFR Sec. 60.6(b) 
(formerly 24 CFR 1910.6(b)), or the community has granted a variance 
which the Regional Director determines is consistent with 44 CFR 60.6(a) 
(formerly 24 CFR 1910.6(a)). In a community which does not have a FIRM 
in effect, FEMA may approve a variance from the standards of paragraphs 
(d)(3)(i), (ii), and (iii) of this section, after compliance with the 
standards of 44 CFR 60.6(a).
    (4) There shall be no encroachments, including fill, new 
construction, substantial improvements of structures or facilities, or 
other development within a designated regulatory floodway that would 
result in any increase in flood levels within the community during the 
occurrence of the base flood discharge. Until a regulatory floodway is 
designated, no new construction, substantial improvements, or other 
development (including fill) shall be permitted within the base 
floodplain unless it is demonstrated that the cumulative effect of the 
proposed development, when combined with all other existing and 
anticipated development, will not increase the water surface elevation 
of the base flood more than one foot at any point within the community.
    (5) Even if an action is a functionally dependent use or facilitates 
open space uses (under paragraph (d) (1) or (2) of this section) and 
does not increase flood heights (under paragraph (d)(4) of this 
section), such action may only be taken in a floodway or coastal high 
hazard area if:
    (i) Such site is the only practicable alternative; and
    (ii) Harm to and within the floodplain is minimized.
    (6) In addition to standards (d)(1) through (d)(5) of this section, 
no action may be taken if it is inconsistent with the criteria of the 
National Flood Insurance Program (44 CFR part 59 et seq.) or any more 
restrictive Federal, State or local floodplain management standards.
    (7) New construction and substantial improvement of structures shall 
be elevated on open works (walls, columns, piers, piles, etc.) rather 
than on fill, in all cases in coastal high hazard areas and elsewhere, 
where practicable.
    (8) To minimize the effect of floods on human health, safety and 
welfare, the Agency shall:
    (i) Where appropriate, integrate all of its proposed actions in 
floodplains into existing flood warning and preparedness plans and 
ensure that available flood warning time is reflected;

[[Page 95]]

    (ii) Facilitate adequate access and egress to and from the site of 
the proposed action; and
    (iii) Give special consideration to the unique hazard potential in 
flash flood, rapid-rise or tsunami areas.
    (9) In the replacement of building contents, materials and 
equipment, the Regional Director shall require as appropriate, disaster 
proofing of the building and/or elimination of such future losses by 
relocation of those building contents, materials and equipment outside 
or above the base floodplain or the 500-year floodplain for critical 
actions.
    (e) In the implementation of the National Flood Insurance Program. 
(1) The Federal Insurance Administration shall make identification of 
all coastal high hazard areas a priority;
    (2) Beginning October 1, 1981, the Federal Insurance Administration 
of FEMA may only provide flood insurance for new construction or 
substantial improvements in a coastal high hazard area if:
    (i) Wave heights have been designated for the site of the structure 
either by the Director of FEMA based upon data generated by FEMA or by 
another source, satisfactory to the Director; and
    (ii) The structure is rated by FEMA-FIA based on a system which 
reflects the capacity to withstand the effects of the 100-year frequency 
flood including, but not limited to, the following factors:
    (A) Wave heights;
    (B) The ability of the structure to withstand the force of waves.
    (3)(i) FEMA shall accept and take fully into account information 
submitted by a property owner indicating that the rate for a particular 
structure is too high based on the ability of the structure to withstand 
the force of waves. In order to obtain a rate adjustment, a property 
owner must submit to FEMA specific information regarding the structure 
and its immediate environment. Such information must be certified by a 
registered professional architect or engineer who has demonstrable 
experience and competence in the fields of foundation, soils, and 
structural engineering. Such information should include:
    (A) Elevation of the structure (bottom of lowest floor beam) in 
relation to the Base Flood Elevation including wave height;
    (B) Distance of the structure from the shoreline;
    (C) Dune protection and other environmental factors;
    (D) Description of the building support system; and
    (E) Other relevant building details.

Adequate completion of the ``V-Zone Risk Factor Rating Form'' is 
sufficient for FEMA to determine whether a rate adjustment is 
appropriate. The form is available from and applications for rate 
adjustments should be submitted to:

National Flood Insurance Program
Attention: V-Zone Underwriting Specialist
9901-A George Palmer Highway
Lanham, MD 20706


Pending a determination on a rate adjustment, insurance will be issued 
at the class rate. If the rate adjustment is granted, a refund of the 
appropriate portion of the premium will be made. Unless a property owner 
is seeking an adjustment of the rate prescribed by FEMA-FIA, this 
information need not be submitted.
    (ii) FIA shall notify communities with coastal high hazard areas and 
federally related lenders in such communities, of the provisions of this 
paragraph. Notice to the lenders may be accomplished by the Federal 
instrumentalities to which the lenders are related.
    (4) In any case in which the Regional Director has been, pursuant to 
Sec. 9.11(d)(1), precluded from providing assistance for a new or 
substantially improved structure in a floodway, FIA may not provide a 
new or renewed policy of flood insurance for that structure.
    (f) Restore and preserve. (1) For any action taken by the Agency 
which affects the floodplain or wetland and which has resulted in, or 
will result in, harm to the floodplain or wetland, the Agency shall act 
to restore and preserve the natural and beneficial values served by 
floodplains and wetlands.
    (2) Where floodplain or wetland values have been degraded by the 
proposed action, the Agency shall identify,

[[Page 96]]

evaluate and implement measures to restore the values.
    (3) If an action will result in harm to or within the floodplain or 
wetland, the Agency shall design or modify the action to preserve as 
much of the natural and beneficial floodplain and wetland values as is 
possible.

[45 FR 59526, Sept. 9, 1980, as amended at 46 FR 51752, Oct. 22, 1981; 
48 FR 44543, Sept. 29, 1983; 49 FR 33879, Aug. 27, 1984; 49 FR 35584, 
Sept. 10, 1984; 50 FR 40006, Oct. 1, 1985]

    Effective Date Note: At 45 FR 79070, Nov. 28, 1980, Sec. 9.11(e)(4) 
was temporarily suspended until further notice.



Sec. 9.12  Final public notice.

    If the Agency decides to take an action in or affecting a floodplain 
or wetland, it shall provide the public with a statement of its final 
decision and shall explain the relevant factors considered by the Agency 
in making this determination.
    (a) In addition, those sent notices under Sec. 9.8 shall also be 
provided the final notice.
    (b) For actions for which an environmental impact statement is being 
prepared, the FEIS is adequate to constitute final notice in all cases 
except where:
    (1) Significant modifications are made in the FEIS after its initial 
publication;
    (2) Significant modifications are made in the development plan for 
the proposed action; or
    (3) Significant new information becomes available in the interim 
between issuance of the FEIS and implementation of the proposed action.

If any of these situations develop, the Agency shall prepare a separate 
final notice that contains the contents of paragraph (e) of this section 
and shall make it available to those who received the FEIS. A minimum of 
15 days shall, without good cause shown, be allowed for comment on the 
final notice.
    (c) For actions for which an environmental assessment was prepared, 
the Notice of No Significant Impact is adequate to constitute final 
public notice, if it includes the information required under paragraph 
(e) of this section.
    (d) For all other actions, the finding shall be made in a document 
separate from those described in paragraphs (a), (b), and (c) of this 
section. Based on an assessment of the following factors, the 
requirement for final notice may be met in a cumulative manner:
    (1) Scale of the action;
    (2) Potential for controversy;
    (3) Degree of public need;
    (4) Number of affected agencies and individuals;
    (5) Its anticipated potential impact; and
    (6) Similarity of the actions, i.e., to the extent that they are 
susceptible of common descriptions and assessments.

When a damaged structure or facility is already being repaired by the 
State or local government at the time of the Damage Survey Report, the 
requirements of Steps 2 and 7 (Secs. 9.8 and 9.12) may be met by a 
single notice. Such notice shall contain all the information required by 
both sections.
    (e) The final notice shall include the following:
    (1) A statement of why the proposed action must be located in an 
area affecting or affected by a floodplain or a wetland;
    (2) A description of all significant facts considered in making this 
determination;
    (3) A list of the alternatives considered;
    (4) A statement indicating whether the action conforms to applicable 
state and local floodplain protection standards;
    (5) A statement indicating how the action affects or is affected by 
the floodplain and/or wetland, and how mitigation is to be achieved;
    (6) Identification of the responsible official or organization for 
implementation and monitoring of the proposed action, and from whom 
further information can be obtained; and
    (7) A map of the area or a statement that such map is available for 
public inspection, including the location at which such map may be 
inspected and a telephone number to call for information.
    (f) After providing the final notice, the Agency shall, without good 
cause shown, wait at least 15 days before carrying out the action.

[45 FR 59526, Sept. 9, 1980, as amended at 48 FR 29318, June 24, 1983]

[[Page 97]]



Sec. 9.13  Particular types of temporary housing.

    (a) The purpose of this section is to set forth the procedures 
whereby the Agency will provide certain specified types of temporary 
housing.
    (b) Prior to providing the types of temporary housing enumerated in 
paragraph (c) of this section, the Agency shall comply with the 
provisions of this section. For all temporary housing not enumerated 
below, the full 8-step process (see Sec. 9.6) applies.
    (c) The following temporary housing actions are subject to the 
provisions of this section and not the full 8-step process:
    (1) [Reserved]
    (2) Placing a mobile home or readily fabricated dwelling on a 
private or commercial site, but not a group site.
    (d) The actions set out in paragraph (c) of this section are subject 
to the following decision-making process:
    (1) The temporary housing action shall be evaluated in accordance 
with the provisions of Sec. 9.7 to determine if it is in or affects a 
floodplain or wetland.
    (2) No mobile home or readily fabricated dwelling may be placed on a 
private or commercial site in a floodway or coastal high hazard area.
    (3) An individual or family shall not be housed in a floodplain or 
wetland unless the Regional Director has complied with the provisions of 
Sec. 9.9 to determine that such site is the only practicable 
alternative. The following factors shall be substituted for the factors 
in Sec. 9.9 (c) and (e) (2) through (4):
    (i) Speedy provision of temporary housing;
    (ii) Potential flood risk to the temporary housing occupant;
    (iii) Cost effectiveness;
    (iv) Social and neighborhood patterns;
    (v) Timely availability of other housing resources; and
    (vi) Potential harm to the floodplain or wetland.
    (4) An individual or family shall not be housed in a floodplain or 
wetland (except in existing resources) unless the Regional Director has 
complied with the provisions of Sec. 9.11 to minimize harm to and within 
floodplains and wetlands. The following provisions shall be substituted 
for the provisions of Sec. 9.11(d) for mobile homes:
    (i) No mobile home or readily fabricated dwelling may be placed on a 
private or commercial site unless it is elevated to the fullest extent 
practicable up to the base flood level and adequately anchored.
    (ii) No mobile home or readily fabricated dwelling may be placed if 
such placement is inconsistent with the criteria of the National Flood 
Insurance Program (44 CFR part 59 et seq.) or any more restrictive 
Federal, State or local floodplain management standard. Such standards 
may require elevation to the base flood level in the absence of a 
variance.
    (iii) Mobile homes shall be elevated on open works (walls, columns, 
piers, piles, etc.) rather than on fill where practicable.
    (iv) To minimize the effect of floods on human health, safety and 
welfare, the Agency shall:
    (A) Where appropriate, integrate all of its proposed actions in 
placing mobile homes for temporary housing in floodplains into existing 
flood warning and preparedness plans and ensure that available flood 
warning time is reflected;
    (B) Provide adequate access and egress to and from the proposed site 
of the mobile home; and
    (C) Give special consideration to the unique hazard potential in 
flash flood and rapid-rise areas.
    (5) FEMA shall comply with Step 2 Early Public Notice (Sec. 9.8(c)) 
and Step 7 Final Public Notice (Sec. 9.12). In providing these notices, 
the emergency nature of temporary housing shall be taken into account.
    (e) FEMA shall not sell or otherwise dispose of mobile homes or 
other readily fabricated dwellings which would be located in floodways 
or coastal high hazard areas. FEMA shall not sell or otherwise dispose 
of mobile homes or other readily fabricated dwellings which would be 
located in floodplains or wetlands unless there is full compliance with 
the 8-step process. Given the vulnerability of mobile homes to flooding, 
a rejection of a non-floodplain location alternative and of the no-
action alternative shall be based on (1) a compelling need of the family 
or individual

[[Page 98]]

to buy a mobile home for permanent housing, and (2) a compelling 
requirement to locate the unit in a floodplain. Further, FEMA shall not 
sell or otherwise dispose of mobile homes or other readily fabricated 
dwellings in a floodplain unless they are elevated at least to the level 
of the 100-year flood. The Regional Director shall notify the Associate 
Director for State and Local Programs and Support of each instance where 
a floodplain location has been found to be the only practicable 
alternative for a mobile home sale.

[45 FR 59526, Sept. 9, 1980, as amended at 47 FR 13149, Mar. 29, 1982; 
49 FR 35584, Sept. 10, 1984; 50 FR 40006, Oct. 1, 1985]



Sec. 9.14  Disposal of Agency property.

    (a) The purpose of this section is to set forth the procedures 
whereby the Agency shall dispose of property.
    (b) Prior to its disposal by sale, lease or other means of disposal, 
property proposed to be disposed of by the Agency shall be reviewed 
according to the decision-making process set out in Sec. 9.6 of this 
part, as follows:
    (1) The property shall be evaluated in accordance with the 
provisions of Sec. 9.7 to determine if it affects or is affected by a 
floodplain or wetland;
    (2) The public shall be notified of the proposal and involved in the 
decision-making process in accordance with the provisions of Sec. 9.8;
    (3) Practicable alternatives to disposal shall be evaluated in 
accordance with the provisions of Sec. 9.9. For disposals, this 
evaluation shall focus on alternative actions (conveyance for an 
alternative use that is more consistent with the floodplain management 
and wetland protection policies set out in Sec. 9.2 than the one 
proposed, e.g., open space use for park or recreational purposes rather 
than high intensity uses), and on the ``no action'' option (retain the 
property);
    (4) Identify the potential impacts and support associated with the 
disposal of the property in accordance with Sec. 9.10;
    (5) Identify the steps necessary to minimize, restore, preserve and 
enhance in accordance with Sec. 9.11. For disposals, this analysis shall 
address all four of these components of mitigation where unimproved 
property is involved, but shall focus on minimization through 
floodproofing and restoration of natural values where improved property 
is involved;
    (6) Reevaluate the proposal to dispose of the property in light of 
its exposure to the flood hazard and its natural values-related impacts, 
in accordance with Sec. 9.9. This analysis shall focus on whether it is 
practicable in light of the findings from Secs. 9.10 and 9.11 to dispose 
of the property, or whether it must be retained. If it is determined 
that it is practicable to dispose of the property, this analysis shall 
identify the practicable alternative that best achieves all of the 
components of the Orders' mitigation responsibility;
    (7) To the extent that it would decrease the flood hazard to lives 
and property, the Agency shall, wherever practicable, dispose of the 
properties according to the following priorities:
    (i) Properties located outside the floodplain;
    (ii) Properties located in the flood fringe; and
    (iii) Properties located in a floodway, regulatory floodway or 
coastal high hazard area.
    (8) The Agency shall prepare and provide the public with a finding 
and public explanation in accordance with Sec. 9.12.
    (9) The Agency shall ensure that the applicable mitigation 
requirements are fully implemented in accordance with Sec. 9.11.
    (c) At the time of disposal, for all disposed property, the Agency 
shall reference in the conveyance uses that are restricted under 
existing Federal, State and local floodplain management and wetland 
protection standards relating to flood hazards and floodplain and 
wetland values.



Sec. 9.15  Planning programs affecting land use.

    The Agency shall take floodplain management into account when 
formulating or evaluating any water and land use plans. No plan may be 
approved unless it:
    (a) Reflects consideration of flood hazards and floodplain 
management and wetlands protection; and

[[Page 99]]

    (b) Prescribes planning procedures to implement the policies and 
requirements of the Orders and this regulation.



Sec. 9.16  Guidance for applicants.

    (a) The Agency shall encourage and provide adequate guidance to 
applicants for agency assistance to evaluate the effects of their plans 
and proposals in or affecting floodplains and wetlands.
    (b) This shall be accomplished primarily through amendment of all 
Agency instructions to applicants, e.g., program handbooks, contracts, 
application and agreement forms, etc., and also through contact made by 
agency staff during the normal course of their activities, to fully 
inform prospective applicants of:
    (1) The Agency's policy on floodplain management and wetlands 
protection as set out in Sec. 9.2;
    (2) The decision-making process to be used by the Agency in making 
the determination of whether to provide the required assistance as set 
out in Sec. 9.6;
    (3) The nature of the Orders' practicability analysis as set out in 
Sec. 9.9;
    (4) The nature of the Orders' mitigation responsibilities as set out 
in Sec. 9.11;
    (5) The nature of the Orders' public notice and involvement process 
as set out in Secs. 9.8 and 9.12; and
    (6) The supplemental requirements applicable to applications for the 
lease or other disposal of Agency owned properties set out in Sec. 9.14.
    (c) Guidance to applicants shall be provided where possible, prior 
to the time of application in order to minimize potential delays in 
process application due to failure of applicants to recognize and 
reflect the provisions of the Orders and this regulation.



Sec. 9.17  Instructions to applicants.

    (a) Purpose. In accordance with Executive Orders 11988 and 11990, 
the Federal executive agencies must respond to a number of floodplain 
management and wetland protection responsibilities before carrying out 
any of their activities, including the provision of Federal financial 
and technical assistance. The purpose of this section is to put 
applicants for Agency assistance on notice concerning both the criteria 
that it is required to follow under the Orders, and applicants' 
responsibilities under this regulation.
    (b) Responsibilities of Applicants. Based upon the guidance provided 
by the Agency under Sec. 9.16, that guidance included in the U.S. Water 
Resources Council's Guidance for Implementing E.O. 11988, and based upon 
the provisions of the Orders and this regulation, applicants for Agency 
assistance shall recognize and reflect in their application:
    (1) The Agency's policy on floodplain management and wetlands 
protection as set out in Sec. 9.2;
    (2) The decision-making process to be used by the Agency in making 
the determination of whether to provide the requested assistance as set 
out in Sec. 9.6;
    (3) The nature of the Orders' practicability analysis as set out in 
Sec. 9.9;
    (4) The nature of the Orders' mitigation responsibilities as set out 
in Sec. 9.11;
    (5) The nature of the Orders' public and involvement process as set 
out in Secs. 9.8 and 9.12; and
    (6) The supplemental requirements for application for the lease or 
other disposal of Agency-owned properties, as set out in Sec. 9.13.
    (c) Provision of supporting information. Applicants for Agency 
assistance may be called upon to provide supporting information relative 
to the various responsibilities set out in paragraph (b) of this section 
as a prerequisite to the approval of their applications.
    (d) Approval of applications. Applications for Agency assistance 
shall be reviewed for the recognition and reflection of the provisions 
of this regulation in addition to the Agency's existing approval 
criteria.



Sec. 9.18  Responsibilities.

    (a) Regional Directors' responsibilities. Regional Directors shall, 
for all actions falling within their respective jurisdictions:
    (1) Implement the requirements of the Orders and this regulation. 
Anywhere in Secs. 9.2, 9.6 through 9.13, and 9.15 where a direction is 
given to the Agency, it is the responsibility of the Regional Director.

[[Page 100]]

    (2) Consult with the General Counsel regarding any question of 
interpretation concerning this regulation or the Orders.
    (b) Associate Directors' responsibilities. Associate Directors/
Administrators shall ensure that the offices/administrations under their 
jurisdiction:
    (1) Implement the requirements of the Orders and this regulation. 
When a decision of a Regional Director relating to disaster assistance 
is appealed, the Associate Director for State and Local Programs and 
Support may make determinations under these regulations on behalf of the 
Agency.
    (2) Identify within ninety (90) days of the effective date of this 
regulation:
    (i) The modifications that are necessary to make their existing 
floodplain management and wetlands protection procedures adequate to 
meet the directives of the Orders;
    (ii) Which of these modifications should be made a part of this 
regulation;
    (iii) Which of these modifications are to be included in program 
regulations other than this one; and
    (iv) The steps being taken to prepare and implement these 
modifications.
    (3) Are in full compliance with the Orders' provisions through the 
modification of their processes in accordance with paragraphs (b) (1) 
and (2) of this section.
    (4) Prepare and submit to the Office of General Counsel reports to 
the Office of Management and Budget in accordance with section 2(b) of 
E.O. 11988 and section 3 of E.O. 11990. If a proposed action is to be 
located in a floodplain or wetland, any requests to the Office of 
Management and Budget for new authorizations or appropriations shall be 
accompanied by a report indicating whether the proposed action is in 
accord with the Orders and these regulations.

[45 FR 59526, Sept. 9, 1980, as amended at 49 FR 33879, Aug. 27, 1984]

[[Page 101]]

      Appendix A to Part 9--Decision-making Process for E.O. 11988
      [GRAPHIC] [TIFF OMITTED] TC02FE91.074
      


PART 10--ENVIRONMENTAL CONSIDERATIONS--Table of Contents




                           Subpart A--General

Sec.
10.1  Background and purpose.
10.2  Applicability and scope.
10.3  Definitions.
10.4  Policy.

                Subpart B--Agency Implementing Procedures

10.5  Responsibilities.
10.6  Making or amending policy.
10.7  Planning.
10.8  Determination of requirement for environmental review.
10.9  Preparation of environmental assessments.
10.10  Preparation of environmental impact statements.
10.11  Environmental information.
10.12  Pre-implementation actions.
10.13  Emergencies.
10.14  Flood plains and wetlands.

    Authority: 42 U.S.C. 4321 et seq.; E.O. 11514 of March 7, 1970, 35 
FR 4247, as amended by E. O. 11991 of March 24, 1977, 3 CFR, 1977 Comp., 
p. 123; Reorganization Plan No. 3 of 1978, 43 FR 41943, 3 CFR, 1978 
Comp., p. 329; E.O. 12127 of March 31, 1979, 44 FR 19367, 3 CFR, 1979 
Comp., p. 376; E.O. 12148 of July 20, 1979, 44 FR 43239, 3 CFR, 1979 
Comp., p. 412, as amended.

    Source: 45 FR 41142, June 18, 1980, unless otherwise noted.



                           Subpart A--General



Sec. 10.1  Background and purpose.

    (a) This part implements the Council on Environmental Quality (CEQ) 
regulations (National Environmental Policy Act Regulations, 43 FR 55978 
(1978)) and provides policy and procedures to

[[Page 102]]

enable Federal Emergency Management Agency (FEMA) officials to be 
informed of and take into account environmental considerations when 
authorizing or approving major FEMA actions that significantly affect 
the environment in the United States. The Council on Environmental 
Quality Regulations implement the procedural provisions, section 102(2), 
of the National Environmental Policy Act of 1969, as amended 
(hereinafter NEPA) (Pub. L. 91-190, 42 U.S.C. 4321 et seq.), and 
Executive Order 11991, 42 FR 26967 (1977).
    (b) Section 1507.3, Council on Environmental Quality Regulations 
(National Environmental Policy Act Regulations, 43 FR 55978 (1978)) 
directs that Federal agencies shall adopt procedures to supplement the 
CEQ regulations. This regulation provides detailed FEMA implementing 
procedures to supplement the CEQ regulations.
    (c) The provisions of this part must be read together with those of 
the CEQ regulations and NEPA as a whole when applying the NEPA process.



Sec. 10.2  Applicability and scope.

    The provisions of this part apply to the Federal Emergency 
Management Agency, (hereinafter referred to as FEMA) including any 
office or administration of FEMA, and the FEMA regional offices.



Sec. 10.3  Definitions.

    (a) Regional Director means the Regional Director of the Federal 
Emergency Management Agency for the region in which FEMA is acting.
    (b) The other terms used in this part are defined in the CEQ 
regulations (40 CFR part 1508).
    (c) Environmental Officer means the Chief, Public Assistance 
Division, Office of Disaster Assistance Programs, State and Local 
Programs and Support Directorate.

[45 FR 41142, June 18, 1980, as amended at 47 FR 13149, Mar. 29, 1982; 
50 FR 40006, Oct. 1, 1985]



Sec. 10.4  Policy.

    (a) FEMA shall act with care to assure that, in carrying out its 
responsibilities, including disaster planning, response and recovery and 
hazard mitigation and flood insurance, it does so in a manner consistent 
with national environmental policies. Care shall be taken to assure, 
consistent with other considerations of national policy, that all 
practical means and measures are used to protect, restore, and enhance 
the quality of the environment, to avoid or minimize adverse 
environmental consequences, and to attain the objectives of:
    (1) Achieving use of the environment without degradation, or 
undesirable and unintended consequences;
    (2) Preserving historic, cultural and natural aspects of national 
heritage and maintaining, wherever possible, an environment that 
supports diversity and variety of individual choice;
    (3) Achieving a balance between resource use and development within 
the sustained carrying capacity of the ecosystem involved; and
    (4) Enhancing the quality of renewable resources and working toward 
the maximum attainable recycling of depletable resources.
    (b) FEMA shall:
    (1) Assess environmental consequences of FEMA actions in accordance 
with Secs. 10.9 and 10.10 of this part and parts 1500 through 1508 of 
the CEQ regulations;
    (2) Use a systematic, interdisciplinary approach that will ensure 
the integrated use of the natural and social sciences, and environmental 
considerations, in planning and decisionmaking where there is a 
potential for significant environmental impact;
    (3) Ensure that presently unmeasured environmental amenities are 
considered in the decisionmaking process;
    (4) Consider reasonable alternatives to recommended courses of 
action in any proposal that involves conflicts concerning alternative 
uses of resources; and
    (5) Make available to States, counties, municipalities, institutions 
and individuals advice and information useful in restoring, maintaining, 
and enhancing the quality of the environment.

[[Page 103]]



                Subpart B--Agency Implementing Procedures



Sec. 10.5  Responsibilities.

    (a) The Regional Directors shall, for each action not categorically 
excluded from this regulation and falling within their respective 
jurisdictions:
    (1) Prepare an environmental assessment and submit such assessment 
to the Environmental Officer and the Office of General Counsel (OGC);
    (2) Prepare a finding of no significant impact, or prepare an 
environmental impact statement;
    (3) Coordinate and provide information regarding environmental 
review with applicants for FEMA assistance;
    (4) Prepare and maintain an administrative record for each proposal 
that is determined to be categorically excluded from this regulation;
    (5) Involve environmental agencies, applicants, and the public to 
the extent practicable in preparing environmental assessments;
    (6) Prepare, as required, a supplement to either the draft or final 
environmental impact statement;
    (7) Circulate draft and final environmental impact statements;
    (8) Ensure that decisions are made in accordance with the policies 
and procedures of NEPA and this part, and prepare a concise public 
record of such decisions;
    (9) Consider mitigating measures to avoid or minimize environmental 
harm, and, in particular, harm to and within floodplains and wetlands; 
and
    (10) Review and comment upon, as appropriate, environmental 
assessments and impact statements of other Federal agencies and of State 
and local entities within their respective regions.
    (b) The Environmental Officer shall:
    (1) Determine, on the basis of the environmental assessment whether 
an environmental impact statement is required, or whether a finding of 
no significant impact shall be prepared;
    (2) Review all proposed changes or additions to the list of 
categorical exclusions;
    (3) Review all findings of no significant impact;
    (4) Review all proposed draft and final environmental statements;
    (5) Publish the required notices in the Federal Register;
    (6) Provide assistance in the preparation of environmental 
assessments and impact statements and assign lead agency responsibility 
when more than one FEMA office or administration is involved;
    (7) Direct the preparation of environmental documents for specific 
actions when required;
    (8) Comply with the requirements of this part when the Director of 
FEMA promulgates regulations, procedures or other issuances making or 
amending Agency policy;
    (9) Provide, when appropriate, consolidated FEMA comments on draft 
and final impact statements prepared for the issuance of regulations and 
procedures of other agencies;
    (10) Review FEMA issuances that have environmental implications;
    (11) Maintain liaison with the Council on Environmental Quality, the 
Environmental Protection Agency, the Office of Management and Budget, 
other Federal agencies, and State and local groups, with respect to 
environmental analysis for FEMA actions affecting the environment.
    (c) The Heads of the Office and Administrations of FEMA shall:
    (1) Assess environmental consequences of proposed and on-going 
programs within their respective organizational units;
    (2) Prepare and process environmental assessments and environmental 
impact statements for all regulations, procedures and other issuances 
making or amending program policy related to actions which do not 
qualify for categorical exclusions;
    (3) Integrate environmental considerations into their decisionmaking 
processes;
    (4) Ensure that regulations, procedures and other issuances making 
or amending program policy are reviewed for consistency with the 
requirements of this part;
    (5) Designate a single point of contact for matters pertaining to 
this part;
    (6) Provide applicants for FEMA assistance with technical assistance 
regarding FEMA's environmental review process.

[[Page 104]]

    (d) The Office of General Counsel of FEMA shall:
    (1) Provide advice and assistance concerning the requirements of 
this part;
    (2) Review all proposed changes or additions to the list of 
categorical exclusions;
    (3) Review all findings of no significant impact; and
    (4) Review all proposed draft and final environmental impact 
statements.

[45 FR 41142, June 18, 1980, as amended at 47 FR 13149, Mar. 29, 1982]



Sec. 10.6  Making or amending policy.

    For all regulations, procedures, or other issuances making or 
amending policy, the head of the FEMA office or administration 
establishing such policy shall be responsible for application of this 
part to that action. This does not apply to actions categorically 
excluded. For all policy-making actions not categorically excluded, the 
head of the office or administration shall comply with the requirements 
of this part. Thus, for such actions, the office or administration head 
shall assume the responsibilities that a Regional Director assumes for a 
FEMA action in his/her respective region. For such policy-making actions 
taken by the Director of FEMA, the Environmental Officer shall assume 
the responsibilities that a Regional Director assumes for a FEMA action 
in his/her respective region.

[45 FR 41142, June 18, 1980, as amended at 47 FR 13149, Mar. 29, 1982]



Sec. 10.7  Planning.

    (a) Early planning. The Regional Director shall integrate the NEPA 
process with other planning at the earliest possible time to ensure that 
planning decisions reflect environmental values, to avoid delays later 
in the process, and to head off potential conflicts.
    (b) Lead agency. To determine the lead agency for policy-making in 
which more than one FEMA office or administration is involved or any 
action in which another Federal agency is involved, FEMA offices and 
administrations shall apply criteria defined in Sec. 1501.5 of the CEQ 
regulation. If there is disagreement, the FEMA offices and/or 
administrations shall forward a request for lead agency determination to 
the Environmental Officer;
    (1) The Environmental Officer will determine lead agency 
responsibility among FEMA offices and administration.
    (2) In those cases involving a FEMA office or administration and 
another Federal agency, the Environmental Officer will attempt to 
resolve the differences. If unsuccessful, the Environmental Officer will 
file the request with the Council on Environmental Quality for 
determination.
    (c) Technical assistance to applicants. (1) Section 1501.2(d) of the 
CEQ regulations requires agencies to provide for early involvement in 
actions which, while planned by private applicants or other non-Federal 
entities, require some form of Federal approval. To implement the 
requirements of Sec. 1501.2(d),
    (i) The heads of the FEMA offices and administration shall prepare 
where practicable, generic guidelines describing the scope and level of 
environmental information required from applicants as a basis for 
evaluating their proposed actions, and make these guidelines available 
upon request.
    (ii) The Regional Director shall provide such guidance on a project-
by-project basis to applicants seeking assistance from FEMA.
    (iii) Upon receipt of an application for agency approval, or 
notification that an application will be filed, the Regional Director 
shall consult as required with other appropriate parties to initiate and 
coordinate the necessary environmental analyses.
    (2) To facilitate compliance with the requirements of paragraph (a) 
of this section, applicants and other non-Federal entities are expected 
to:
    (i) Contact the Regional Director as early as possible in the 
planning process for guidance on the scope and level of environmental 
information required to be submitted in support of their application;
    (ii) Conduct any studies which are deemed necessary and appropriate 
by FEMA to determine the impact of the proposed action on the human 
environment;
    (iii) Consult with appropriate Federal, regional, State, and local 
agencies

[[Page 105]]

and other potentially interested parties during preliminary planning 
stages to ensure that all environmental factors are identified;
    (iv) Submit applications for all Federal, regional, State, and local 
approvals as early as possible in the planning process;
    (v) Notify the Regional Director as early as possible of all other 
Federal, regional, State, local, and Indian tribe actions required for 
project completion so that FEMA may coordinate all Federal environmental 
reviews; and
    (vi) Notify the Regional Director of all known parties potentially 
affected by or interested in the proposed action.

[45 FR 41142, June 18, 1980, as amended at 47 FR 13149, Mar. 29, 1982]



Sec. 10.8  Determination of requirement for environmental review.

    The first step in applying the NEPA process is to determine whether 
to prepare an environmental assessment or an environmental impact 
statement. Early determination will help ensure that necessary 
environmental documentation is prepared and integrated into the 
decision-making process. Environmental impact statements will be 
prepared for all major Agency actions (see 40 CFR 1508.18) significantly 
(see 40 CFR 1508.27) affecting the quality of the human environment.
    (a) In determining whether to prepare an environmental impact 
statement (EIS) the Regional Director will first determine whether the 
proposal is one which:
    (1) Normally requires an environmental impact statement; or
    (2) Normally does not require either an environmental impact 
statement or an environmental assessment (categorical exclusion).
    (b) Actions that normally require an EIS. (1) In some cases, it will 
be readily apparent that a proposed action will have significant impact 
on the environment. In that event, the Regional Director will, pursuant 
to Sec. 10.9(g) of this part, submit the notice of preparation of an 
environmental impact statement to the Environmental Officer.
    (2) To assist in determining those actions that normally do require 
an environmental impact statement, the following criteria apply:
    (i) If an action will result in an extensive change in land use or 
the commitment of a large amount of land;
    (ii) If an action will result in a land use change which is 
incompatible with the existing or planned land use of the surrounding 
area;
    (iii) If many people will be affected;
    (iv) If the environmental impact of the project is likely to be 
controversial;
    (v) If an action will affect, in large measure, wildlife populations 
and their habitats, important natural resources, floodplains, wetlands, 
estuaries, beaches, dunes, unstable soils, steep slopes, aquifer 
recharge areas, or delicate or rare ecosystems, including endangered 
species;
    (vi) If an action will result in a major adverse impact upon air or 
water quality;
    (vii) If an action will adversely affect a property listed on the 
National Register of Historic Places or eligible for listing on the 
Register if, after consultation with the Advisory Council on Historic 
Preservation an environmental assessment is not deemed sufficient;
    (viii) If an action is one of several actions underway or planned 
for an area and the cumulative impact of these projects is considered 
significant in terms of the above criteria;
    (ix) If an action holds potential for threat or hazard to the 
public; or
    (x) If an action is similar to previous actions determined to 
require an environmental impact statement.
    (3) In any case involving an action that normally does require an 
environmental impact statement, the Regional Director may prepare an 
environmental assessment to determine if an environmental impact 
statement is required.
    (c) Statutory exclusions. The following actions are statutorily 
excluded from NEPA and the preparation of environmental impact 
statements and environmental assessments by section 316 of the Robert T. 
Stafford Disaster Relief and Emergency Assistance Act (Stafford Act), as 
amended, 42 U.S.C. 5159;
    (1) Action taken or assistance provided under sections 402, 403, 
407, or 502 of the Stafford Act; and

[[Page 106]]

    (2) Action taken or assistance provided under section 406 of the 
Stafford Act that has the effect of restoring facilities substantially 
as they existed before a major disaster or emergency.
    (d) Categorical Exclusions (CATEXs). CEQ regulations at 40 CFR 
1508.4 provide for the categorical exclusion of actions that do not 
individually or cumulatively have a significant impact on the human 
environment and for which, therefore, neither an environmental 
assessment nor an environmental impact statement is required. Full 
implementation of this concept will help FEMA avoid unnecessary or 
duplicate effort and concentrate resources on significant environmental 
issues.
    (1) Criteria. The criteria used for determination of those 
categories of actions that normally do not require either an 
environmental impact statement or an environmental assessment include:
    (i) Minimal or no effect on environmental quality;
    (ii) No significant change to existing environmental conditions; and
    (iii) No significant cumulative environmental impact.
    (2) List of exclusion categories. FEMA has determined that the 
following categories of actions have no significant effect on the human 
environment and are, therefore, categorically excluded from the 
preparation of environmental impact statements and environmental 
assessments except where extraordinary circumstances as defined in 
paragraph (d)(5) of this section exist. If the action is of an emergency 
nature as described in Sec. 316 of the Stafford Act (42 U.S.C. 5159), it 
is statutorily excluded and is noted with [SE].
    (i) Administrative actions such as personnel actions, travel, 
procurement of supplies, etc., in support of normal day-to-day 
activities and disaster related activities;
    (ii) Preparation, revision, and adoption of regulations, directives, 
manuals, and other guidance documents related to actions that qualify 
for categorical exclusions;
    (iii) Studies that involve no commitment of resources other than 
manpower and associated funding;
    (iv) Inspection and monitoring activities, granting of variances, 
and actions to enforce Federal, state, or local codes, standards or 
regulations;
    (v) Training activities and both training and operational exercises 
utilizing existing facilities in accordance with established procedures 
and land use designations;
    (vi) Procurement of goods and services for support of day-to-day and 
emergency operational activities, and the temporary storage of goods 
other than hazardous materials, so long as storage occurs on previously 
disturbed land or in existing facilities;
    (vii) The acquisition of properties and the associated demolition/
removal [see paragraph (d)(2)(xii) of this section] or relocation of 
structures [see paragraph (d)(2)(xiii) of this section] under any 
applicable authority when the acquisition is from a willing seller, the 
buyer coordinated acquisition planning with affected authorities, and 
the acquired property will be dedicated in perpetuity to uses that are 
compatible with open space, recreational, or wetland practices.
    (viii) Acquisition or lease of existing facilities where planned 
uses conform to past use or local land use requirements;
    (ix) Acquisition, installation, or operation of utility and 
communication systems that use existing distribution systems or 
facilities, or currently used infrastructure rights-of-way;
    (x) Routine maintenance, repair, and grounds-keeping activities at 
FEMA facilities;
    (xi) Planting of indigenous vegetation;
    (xii) Demolition of structures and other improvements or disposal of 
uncontaminated structures and other improvements to permitted off-site 
locations, or both;
    (xiii) Physical relocation of individual structures where FEMA has 
no involvement in the relocation site selection or development;
    (xiv) Granting of community-wide exceptions for floodproofed 
residential basements meeting the requirements of 44 CFR 60.6(c) under 
the National Flood Insurance Program;
    (xv) Repair, reconstruction, restoration, elevation, retrofitting, 
upgrading to current codes and standards, or replacement of any facility 
in a manner

[[Page 107]]

that substantially conforms to the preexisting design, function, and 
location; [SE, in part]
    (xvi) Improvements to existing facilities and the construction of 
small scale hazard mitigation measures in existing developed areas with 
substantially completed infrastructure, when the immediate project area 
has already been disturbed, and when those actions do not alter basic 
functions, do not exceed capacity of other system components, or modify 
intended land use; provided the operation of the completed project will 
not, of itself, have an adverse effect on the quality of the human 
environment;
    (xvii) Actions conducted within enclosed facilities where all 
airborne emissions, waterborne effluent, external radiation levels, 
outdoor noise, and solid and bulk waste disposal practices comply with 
existing Federal, state, and local laws and regulations;
    (xviii) The following planning and administrative activities in 
support of emergency and disaster response and recovery:
    (A) Activation of the Emergency Support Team and convening of the 
Catastrophic Disaster Response Group at FEMA headquarters;
    (B) Activation of the Regional Operations Center and deployment of 
the Emergency Response Team, in whole or in part;
    (C) Deployment of Urban Search and Rescue teams;
    (D) Situation Assessment including ground and aerial reconnaissance;
    (E) Information and data gathering and reporting efforts in support 
of emergency and disaster response and recovery and hazard mitigation; 
and
    (xix) The following emergency and disaster response, recovery and 
hazard mitigation activities under the Stafford Act:
    (A) General Federal Assistance (Sec. 402); [SE]
    (B) Essential Assistance (Sec. 403); [SE]
    (C) Debris Removal (Sec. 407) [SE]
    (D) Temporary Housing (Sec. 408), except locating multiple mobile 
homes or other readily fabricated dwellings on sites, other than private 
residences, not previously used for such purposes;
    (E) Unemployment Assistance (Sec. 410);
    (F) Individual and Family Grant Programs (Sec. 411), except for 
grants that will be used for restoring, repairing or building private 
bridges, or purchasing mobile homes or other readily fabricated 
dwellings;
    (G) Food Coupons and Distribution (Sec. 412);
    (H) Food Commodities (Sec. 413);
    (I) Legal Services (Sec. 415);
    (J) Crisis Counseling Assistance and Training (Sec. 416);
    (K) Community Disaster Loans (Sec. 417);
    (L) Emergency Communications (Sec. 418);
    (M) Emergency Public Transportation (Sec. 419);
    (N) Fire Management Assistance Grants; and
    (O) Federal Emergency Assistance (Sec. 502) [SE].
    (3) Extraordinary circumstances. If extraordinary circumstances 
exist within an area affected by an action, such that an action that is 
categorically excluded from NEPA compliance may have a significant 
adverse environmental impact, an environmental assessment shall be 
prepared. Extraordinary circumstances that may have a significant 
environmental impact include:
    (i) Greater scope or size than normally experienced for a particular 
category of action;
    (ii) Actions with a high level of public controversy;
    (iii) Potential for degradation, even though slight, of already 
existing poor environmental conditions;
    (iv) Employment of unproven technology with potential adverse 
effects or actions involving unique or unknown environmental risks;
    (v) Presence of endangered or threatened species or their critical 
habitat, or archaeological, cultural, historical or other protected 
resources;
    (vi) Presence of hazardous or toxic substances at levels which 
exceed Federal, state or local regulations or standards requiring action 
or attention;
    (vii) Actions with the potential to affect special status areas 
adversely or other critical resources such as wetlands, coastal zones, 
wildlife refuge and

[[Page 108]]

wilderness areas, wild and scenic rivers, sole or principal drinking 
water aquifers;
    (viii) Potential for adverse effects on health or safety; and
    (ix) Potential to violate a Federal, State, local or tribal law or 
requirement imposed for the protection of the environment.
    (x) Potential for significant cumulative impact when the proposed 
action is combined with other past, present and reasonably foreseeable 
future actions, even though the impacts of the proposed action may not 
be significant by themselves.
    (4) Documentation. The Regional Director will prepare and maintain 
an administrative record of each proposal that is determined to be 
categorically excluded from the preparation of an environmental impact 
statement or an environmental assessment.
    (5) Revocation. The Regional Director shall revoke a determination 
of categorical exclusion and shall require a full environmental review 
if, subsequent to the granting an exclusion, the Regional Director 
determines that due to changes in the proposed action or in light of new 
findings, the action no longer meets the requirements for a categorical 
exclusion.
    (6) Changes to the list of exclusion categories. (i) The FEMA list 
of exclusion categories will be continually reviewed and refined as 
additional categories are identified and experience is gained in the 
categorical exclusion process. An office, directorate, or administration 
of FEMA may, at any time, recommend additions or changes to the FEMA 
list of exclusion categories.
    (ii) Offices, directorates, and administrations of FEMA are 
encouraged to develop additional categories of exclusions necessary to 
meet their unique operational and mission requirements.
    (iii) If an office, directorate, or administration of FEMA proposes 
to change or add to the list of exclusion categories, it shall first:
    (A) Obtain the approval of the Environmental Officer and the Office 
of the General Counsel; and
    (B) Publish notice of such proposed change or addition in the 
Federal Register at least 60 days before the effective date of such 
change or addition.
    (e) Actions that normally require an environmental assessment. When 
a proposal is not one that normally requires an environmental impact 
statement and does not qualify as a categorical exclusion, the Regional 
Director shall prepare an environmental assessment.
    (f) Documentation. The Regional Director will prepare and maintain 
an administrative record of each proposal that is determined to be 
categorically excluded from the preparation of an environmental impact 
statement or an environmental assessment.
    (g) Actions that normally require an environmental assessment. When 
a proposal is not one that normally requires an environmental impact 
statement and does not qualify as a categorical exclusion, the Regional 
Director shall prepare an environmental assessment.

[45 FR 41142, June 18, 1980, as amended at 46 FR 2049, Jan. 8, 1981; 46 
FR 54346, Nov. 3, 1981; 47 FR 13149, Mar. 29, 1982; 52 FR 5285, Feb. 20, 
1987; 59 FR 954, Jan. 7, 1994; 61 FR 4230, Feb. 5, 1996; 61 FR 10688, 
Mar. 15, 1996; 66 FR 57347, Nov. 14, 2001]



Sec. 10.9  Preparation of environmental assessments.

    (a) When to prepare. The Regional Director shall begin preparation 
of an environmental assessment as early as possible after the 
determination that an assessment is required. The Regional Director may 
prepare an environmental assessment at any time to assist planning and 
decision-making.
    (b) Content and format. The environmental assessment is a concise 
public document to determine whether to prepare an environmental impact 
statement, aiding in compliance with NEPA when no EIS is necessary, and 
facilitating preparation of a statement when one is necessary. 
Preparation of an environmental assessment generally will not require 
extensive research or lengthy documentation. The environmental 
assessment shall contain brief discussion of the following:
    (1) Purpose and need for the proposed action.
    (2) Description of the proposed action.
    (3) Alternatives considered.
    (4) Environmental impact of the proposed action and alternatives.

[[Page 109]]

    (5) Listing of agencies and persons consulted.
    (6) Conclusion of whether to prepare an environmental impact 
statement.
    (c) Public participation. The Regional Director shall involve 
environmental agencies, applicants, and the public, to the extent 
practicable, in preparing environmental assessments. In determining ``to 
the extent practicable,'' the Regional Director shall consider:
    (1) Magnitude of the proposal;
    (2) Likelihood of public interest;
    (3) Need to act quickly;
    (4) Likelihood of meaningful public comment;
    (5) National security classification issues;
    (6) Need for permits; and
    (7) Statutory authority of environmental agency regarding the 
proposal.
    (d) When to prepare an EIS. The Regional Director shall prepare an 
environmental impact statement for all major Agency actions 
significantly affecting the quality of the human environment. The test 
of what is a ``significant'' enough impact to require an EIS is found in 
the CEQ regulations at 40 CFR 1508.27.
    (e) Finding of No Significant Impact. If the Regional Director 
determines on the basis of the environmental assessment not to prepare 
an environmental impact statement, the Regional Director shall prepare a 
finding of no significant impact in accordance with 40 CFR 1501.4(e) of 
the CEQ regulations. The assessment and the finding shall be submitted 
to the Environmental Officer and the Office of General Counsel (OGC) for 
approval. If Environmental Officer and OGC approval is obtained, the 
Regional Director shall then make the finding of no significant impact 
available to the public as specified in Sec. 1506.6 of the CEQ 
regulations. A finding of no significant impact is not required when the 
decision not to prepare an environmental impact statement is based on a 
categorical exclusion.
    (f) Environmental Officer or OGC Disallowance. If the Environmental 
Officer or OGC disagrees with the finding of no significant impact, the 
Regional Director shall prepare an environmental impact statement. Prior 
to preparation of an EIS, the Regional Director shall forward a notice 
of intent to prepare the EIS to the Environmental Officer who shall 
publish such notice in the Federal Register.
    (g) EIS determination of Regional Director. The Regional Director 
may decide on his/her own to prepare an environmental impact statement. 
In such case, the Regional Director shall forward a notice of intent to 
prepare the EIS to the Environmental Officer who shall publish such 
notice in the Federal Register. The notice of intent shall be published 
before initiation of the scoping process.

[45 FR 41142, June 18, 1980, as amended at 47 FR 13149, Mar. 29, 1982]



Sec. 10.10  Preparation of environmental impact statements.

    (a) Scoping. After determination that an environmental impact 
statement will be prepared and publication of the notice of intent, the 
Regional Director will initiate the scoping process in accordance with 
Sec. 1501.7 of the CEQ regulations.
    (b) Preparation. Based on the scoping process, the Regional Director 
will begin preparation of the environmental impact statement. Detailed 
procedures for preparation of the environmental impact statement are 
provided in part 1502 of the CEQ regulations.
    (c) Supplemental Environmental Impact Statements. The Regional 
Director may at any time supplement a draft or final environmental 
impact statement. The Regional Director shall prepare a supplement to 
either the draft or final environmental impact statement when required 
under the criteria set forth in Sec. 1502.9(2). The Regional Director 
will prepare, circulate, and file a supplement to a statement in the 
same fashion (exclusive of scoping) as a draft or final statement and 
will introduce the supplement into their formal administrative record.
    (d) Circulation of Environmental Impact Statements. The Regional 
Director shall circulate draft and final environmental impact statements 
as prescribed in Sec. 1502.19 of CEQ regulations. Prior to signing off 
on a draft or final impact statement, the Regional Director shall obtain 
the approval of the Environmental Officer and OGC.

[45 FR 41142, June 18, 1980, as amended at 47 FR 13149, Mar. 29, 1982]

[[Page 110]]



Sec. 10.11  Environmental information.

    Interested persons may contact the Environmental Officer or the 
Regional Director for information regarding FEMA's compliance with NEPA.

[45 FR 41142, June 18, 1980, as amended at 47 FR 13149, Mar. 29, 1982]



Sec. 10.12  Pre-implementation actions.

    (a) Decision-making. The Regional Director shall ensure that 
decisions are made in accordance with the policies and procedures of the 
Act and that the NEPA process is integrated into the decision-making 
process. Because of the diversity of FEMA, it is not feasible to 
describe in this part the decision-making process for each of the 
various FEMA programs. Proposals and actions may be initiated at any 
level. Similarly, review and approval authority may be exercised at 
various levels depending on the nature of the action, available funding, 
and statutory authority. FEMA offices and administrations shall provide 
further guidance, commensurate with their programs and organization, for 
integration of environmental considerations into the decision-making 
process. The Regional Director shall:
    (1) Consider all relevant environmental documents in evaluating 
proposals for Agency action;
    (2) Make all relevant environmental documents, comments, and 
responses part of the record in formal rulemaking or adjudicatory 
proceedings;
    (3) Ensure that all relevant environmental documents, comments and 
responses accompany the proposal through existing Agency review 
processes;
    (4) Consider only those alternatives encompassed by the range of 
alternatives discussed in the relevant environmental documents when 
evaluating proposals for Agency action;
    (5) Where an EIS has been prepared, consider the specific 
alternatives analyzed in the EIS when evaluating the proposal which is 
the subject of the EIS.
    (b) Record of decision. In those cases requiring environmental 
impact statements, the Regional Director at the time of his/her 
decision, or if appropriate, his/her recommendation to Congress, shall 
prepare a concise public record of that decision. The record of decision 
is not intended to be an extensive, detailed document for the purpose of 
justifying the decision. Rather it is a concise document that sets forth 
the decision and describes the alternatives and relevant factors 
considered as specified in 40 CFR 1505.2. The record of decision will 
normally be less than three pages in length.
    (c) Mitigation. Throughout the NEPA process, the Regional Director 
shall consider mitigating measures to avoid or minimize environmental 
harm and, in particular, harm to or within flood plains and wetlands. 
Mitigation measures or programs will be identified in the environmental 
impact statement and made available to decision-makers. Mitigation and 
other conditions established in the environmental impact statement or 
during its review and committed as part of the decision shall be 
implemented by the Regional Director.
    (d) Monitoring. If a Regional Director determines that monitoring is 
applicable for established mitigation, a monitoring program will be 
adopted to assure the mitigation measures are accomplished. The Regional 
Director shall provide monitoring information, upon request, as 
specified in 40 CFR 1505.3. This does not, however, include standing or 
blanket requests for periodic reporting.



Sec. 10.13  Emergencies.

    In the event of an emergency, the Regional Director may be required 
to take immediate action with significant environmental impact. The 
Regional Director shall notify the Environmental Officer of the 
emergency action at the earliest possible time so that the Environmental 
Officer may consult with the Council on Environmental Quality. In no 
event shall any Regional Director delay an emergency action necessary to 
the preservation of human life for the purpose of complying with the 
provision of this directive or the CEQ regulations.

[45 FR 41142, June 18, 1980, as amended at 47 FR 13149, Mar. 29, 1982]

[[Page 111]]



Sec. 10.14  Flood plains and wetlands.

    For any action taken by FEMA in a flood plain or wetland, the 
provisions of this part are supplemental to, and not instead of, the 
provisions of the FEMA regulation implementing Executive Order 11988, 
Flood Plain Management, and Executive Order 11990, Protection of 
Wetlands (44 CFR part 9).



PART 11--CLAIMS--Table of Contents




                           Subpart A--General

Sec.
11.1  General collection standards.
11.2  Delegations of authority.

     Subpart B--Administrative Claims Under Federal Tort Claims Act

11.10  Scope of regulation.
11.11  Administrative claim; when presented; appropriate FEMA office.
11.12  Administrative claim; who may file.
11.13  Investigations.
11.14  Administrative claim; evidence and information to be submitted.
11.15  Authority to adjust, determine, compromise and settle.
11.16  Limitations on authority.
11.17  Referral to Department of Justice.
11.18  Final denial of claim.
11.19  Action on approved claim.

    Subpart C--Collection of Debts by the Government Under the Debt 
                         Collection Act of 1982

11.30  Scope of regulations.
11.31  Adoption of joint standards.
11.32  Subdivision and joining of debts.
11.33  Authority of offices to attempt collection of debts.
11.34  Referral of debts to the Chief Financial Officer, Federal 
          Emergency Management Agency.
11.35  Authority of offices to compromise debts or suspend or terminate 
          collection action.
11.36  Debt collection files.
11.37  [Reserved]
11.38  Annual reports to the Director, Office of Management and Budget, 
          and the Secretary of the Treasury.
11.40  Records retention.
11.41  Suspension or revocation of eligibility.
11.42  Demand for payment of debts.
11.43  Collection by administrative offset.
11.44  [Reserved]
11.45  Collection by salary offset.
11.46  Liquidation of collateral.
11.47  Collection in installments.
11.48  Interest, penalties, and administrative charges.
11.49  Omission not a defense.
11.50  Standards for compromise of debts.
11.51  Standards for suspension or termination of collection.
11.52  Referral of delinquent debtors to consumer reporting agencies.
11.53  Securing debtor addresses from the Department of Treasury.
11.54  Contracts with debt collection agencies.
11.55  Referral to GAO or Justice Department.
11.56  Analysis of costs.
11.57  Automation.
11.58  Prevention of overpayments, delinquencies, and defaults.
11.59  Office of General Counsel.
11.60  Sale of debts due the United States arising under programs 
          administered by the Agency.
11.61  Referral of delinquent debts to Department of the Treasury for 
          offsets against tax refunds.
11.62  Administrative charges incurred in referrals for tax refund 
          offset.
11.63  Notice to debtor before tax refund offset.
11.64  Review within Federal Emergency Management Agency.
11.65  Stay of tax refund offset action.

                 Subpart D--Personnel Claims Regulations

11.70  Scope and purpose.
11.71  Claimants.
11.72  Time limitations.
11.73  Allowable claims.
11.74  Claims not allowed.
11.75  Claims involving carriers and insurers.
11.76  Claims procedures.
11.77  Settlement of claims.
11.78  Computation of amount of award.
11.79  Attorney's fees.

    Authority: 31 U.S.C. 3701 et seq.

    Source: 45 FR 15930, Mar. 12, 1980, unless otherwise noted.



                           Subpart A--General



Sec. 11.1  General collection standards.

    The general standards and procedures governing the collection, 
compromise, termination and referral to the Department of Justice of 
claims for money and property that are prescribed in the regulations 
issued jointly by the General Accounting Office and the Department of 
Justice pursuant to the Federal Claims Collection Act of 1966 (4 CFR 
part 101 et seq.), apply to the administrative claim collection 
activities

[[Page 112]]

of the Federal Emergency Management Agency (FEMA).



Sec. 11.2  Delegations of authority.

    Any and all claims that arise under subchapter III of chapter 83, 
chapter 87 and chapter 88 of title 5, the United States Code, the 
Retired Federal Employees Health Benefits Act (74 Stat. 849), the Panama 
Canal Construction Annuity Act (58 Stat. 257), and the Lighthouse 
Service Widow's Annuity Act (64 Stat. 465) shall be referred to the 
Director of the Bureau of Retirement and Insurance, Office of Personnel 
Management, for handling. The General Counsel, FEMA shall act on all 
other claims against FEMA for money and property.



     Subpart B--Administrative Claims Under Federal Tort Claims Act



Sec. 11.10  Scope of regulation.

    This regulation applies to claims asserted under the Federal Tort 
Claims Act against the Federal Emergency Management Agency (FEMA). It 
does not include any contractor with FEMA.



Sec. 11.11  Administrative claim; when presented; appropriate FEMA office.

    (a) For the purpose of this part, and the provisions of the Federal 
Tort Claims Act a claim is deemed to have been presented when FEMA 
receives, at a place designated in paragraph (b) or (c) of this section, 
an executed ``Claim for Damage or Injury,'' Standard Form 95, or other 
written notification of an incident, accompanied by a claim for money 
damages in a sum certain for injury to or loss of property, for personal 
injury, or for death alleged to have occurred by reason of the incident. 
A claim which should have been presented to FEMA, but which was 
mistakenly addressed to or filed with another Federal agency, is deemed 
to be presented to FEMA as of the date that the claim is received by 
FEMA. If a claim is mistakenly addressed to or filed with FEMA, the 
claim shall forthwith be transferred to the appropriate Federal Agency, 
if ascertainable, or returned to the claimant.
    (b) Except as provided in paragraph (c) of this section, a claimant 
shall mail or deliver his or her claim to the Office of General Counsel, 
Federal Emergency Management Agency, Washington, DC, 20472.
    (c) When a claim is for $200 or less, does not involve a personal 
injury, and involves a FEMA regional employee, the claimant shall mail 
or deliver the claim to the Director of the FEMA Regional Office in 
which is employed the FEMA employee whose negligence or wrongful act or 
omission is alleged to have caused the loss or injury complained of. The 
addresses of the Regional Offices of FEMA are set out in part 2 of this 
chapter.
    (d) A claim presented in compliance with paragraph (a) of this 
section may be amended by the claimant at any time prior to final FEMA 
action or prior to the exercise of the claimant's option under 28 U.S.C. 
2675(a). Amendments shall be submitted in writing and signed by the 
claimant or his or her duly authorized agent or legal representative. 
Upon the timely filing of an amendment to a pending claim, FEMA shall 
have six months in which to make a final disposition of the claim as 
amended and the claimant's option under 28 U.S.C. 2675(a) shall not 
accrue until six months after the filing of an amendment.

[45 FR 15930, Mar. 12, 1980, as amended at 48 FR 6711, Feb. 15, 1983; 49 
FR 33879, Aug. 27, 1984]



Sec. 11.12  Administrative claim; who may file.

    (a) A claim for injury to or loss of property may be presented by 
the owner of the property interest which is the subject of the claim, 
his or her authorized agent, or legal representative.
    (b) A claim for personal injury may be presented by the injured 
person or, his or her authorized agent or legal representative.
    (c) A claim based on death may be presented by the executor or 
administrator of the decedent's estate or by any other person legally 
entitled to assert such a claim under applicable State law.
    (d) A claim for loss wholly compensated by an insurer with the 
rights of a subrogee may be presented by the

[[Page 113]]

insurer or the insured individually, as their respective interests 
appear, or jointly. When an insurer presents a claim asserting the 
rights of a subrogee, he or she shall present with the claim appropriate 
evidence that he or she has the rights of a subrogee.
    (e) A claim presented by an agent or legal representative shall be 
presented in the name of the claimant, be signed by the agent or legal 
representative, show the title of legal capacity of the person signing, 
and be accompanied by evidence of his or her authority to present a 
claim on behalf of the claimant as agent, executor, administrator, 
parent, guardian, or other representative.



Sec. 11.13  Investigations.

    FEMA may investigate, or may request any other Federal agency to 
investigate, a claim filed under this part.



Sec. 11.14  Administrative claim; evidence and information to be submitted.

    (a) Death. In support of a claim based on death the claimant may be 
required to submit the following evidence or information:
    (1) An authenticated death certificate or other competent evidence 
showing cause of death, date of death, and age of the decedent.
    (2) Decedent's employment or occupation at time of death, including 
his or her monthly or yearly salary or earnings (if any), and the 
duration of his or her last employment or occupation.
    (3) Full names, addresses, birth dates, kinship, and marital status 
of the decedent's survivors, including identification of those survivors 
who were dependent for support on the decedent at the time of his or her 
death.
    (4) Degree of support afforded by the decedent to each survivor 
dependent on him or her for support at the time of death.
    (5) Decedent's general physical and mental condition before death.
    (6) Itemized bills or medical and burial expenses incurred by reason 
of the incident causing death, or itemized receipts of payment for such 
expenses.
    (7) If damages for pain and suffering before death are claimed, a 
physician's detailed statement specifying the injuries suffered, 
duration of pain and suffering, any drugs administered for pain, and the 
decedent's physical condition in the interval between injury and death.
    (8) Any other evidence or information which may have a bearing on 
either the responsibility of the United States for the death or the 
amount of damages claimed.
    (b) Personal injury. In support of a claim for personal injury, 
including pain and suffering, the claimant may be required to submit the 
following evidence or information:
    (1) A written report by his or her attending physician or dentist 
setting forth the nature and extent of the injury, nature and extent of 
treatment, any degree of temporary or permanent disability, the 
prognosis, period of hospitalization, and any diminished earning 
capacity. In addition, the claimant may be required to submit to a 
physical or mental examination by a physician employed by FEMA or 
another Federal agency. FEMA shall make available to the claimant a copy 
of the report of the examining physician on written request by the 
claimant, if he or she has, on request, furnished the report referred to 
in the first sentence of this subparagraph and has made or agrees to 
make available to FEMA any other physician's reports previously or 
thereafter made of the physical or mental condition which is the subject 
matter of the claim.
    (2) Itemized bills for medical, dental, and hospital expenses 
incurred, or itemized receipts of payment of such expenses.
    (3) If the prognosis reveals the necessity for future treatment, a 
statement of expected expenses for such treatment.
    (4) If a claim is made for loss of time from employment, a written 
statement from the employer showing actual time lost from employment, 
whether he or she is a full- or part-time employee, and wages or salary 
actually lost.
    (5) If a claim is made for loss of income and the claimant is self-
employed, documentary evidence showing the amount of earnings actually 
lost.
    (6) Any other evidence or information which may have a bearing on 
either the responsibility of the United States for

[[Page 114]]

the personal injury or the damages claimed.
    (c) Property damage. In support of a claim for injury to or loss of 
property, real or personal, the claimant may be required to submit the 
following evidence or information:
    (1) Proof of ownership of the property interest which is the subject 
of the claim.
    (2) A detailed statement of the amount claimed with respect to each 
item of property.
    (3) An itemized receipt of payment for necessary repairs or itemized 
written estimates of the cost of such repairs.
    (4) A statement listing date of purchase, purchase price, and 
salvage value, where repair is not economical.
    (5) Any other evidence or information which may have a bearing on 
either the responsibility of the United States for the injury to or loss 
of property or the damages claimed.



Sec. 11.15  Authority to adjust, determine, compromise and settle.

    (a) The General Counsel of FEMA, or a designee of the General 
Counsel, is delegated authority to consider, ascertain, adjust, 
determine, compromise, and settle claims under the provisions of section 
2672 of title 28, United States Code, and this part.
    (b) Notwithstanding the delegation of authority in paragraph (a) of 
this section, a Regional Director is delegated authority to be exercised 
in his or her discretion, to consider, ascertain, adjust, determine, 
compromise, and settle under the provisions of section 2672 of title 28, 
United States Code, and this part, any claim for $200 or less which is 
based on alleged negligence or wrongful act or omission of an employee 
of the appropriate Region, except when:
    (1) There are personal injuries to either Government personnel or 
individuals not employed by the Government; or
    (2) All damage to Government property or to property being used by 
FEMA, or both, is more than $200, or all damage to non-Government 
property being used by individuals not employed by the Government is 
more than $200.

[45 FR 15930, Mar. 12, 1980, as amended at 48 FR 6711, Feb. 15, 1983]



Sec. 11.16  Limitations on authority.

    (a) An award, compromise, or settlement of a claim under this part 
in excess of $25,000 may be effected only with the advance written 
approval of the Attorney General or his or her designee. For the purpose 
of this paragraph, a principal claim and any derivative or subrogated 
claim shall be treated as a single claim.
    (b) An administrative claim may be adjusted, determined, 
compromised, or settled under this part only after consultation with the 
Department of Justice, when, in the opinion of the General Counsel of 
FEMA or his or her designee:
    (1) A new precedent or a new point of law is involved; or
    (2) A question of policy is or may be involved; or
    (3) The United States is or may be entitled to indemnity or 
contribution from a third party and FEMA is unable to adjust the third 
party claim; or
    (4) The compromise of a particular claim, as a practical matter, 
will or may control the disposition of a related claim in which the 
amount to be paid may exceed $25,000.
    (c) An administrative claim may be adjusted, determined, compromised 
or settled under this part only after consultation with the Department 
of Justice when FEMA is informed or is otherwise aware that the United 
States or an employee, agent or cost-type contractor of the United 
States is involved in litigation based on a claim arising out of the 
same incident or transaction.



Sec. 11.17  Referral to Department of Justice.

    When Department of Justice approval or consultation is required 
under Sec. 11.16, the referral or request shall be transmitted to the 
Department of Justice by the General Counsel or his or her designee.

[[Page 115]]



Sec. 11.18  Final denial of claim.

    (a) Final denial of an administrative claim under this part shall be 
in writing and sent to the claimant, his or her attorney, or legal 
representative by certified or registered mail. The notification of 
final denial may include a statement of the reasons for the denial and 
shall include a statement that, if the claimant is dissatisfied with the 
FEMA action, he or she may file suit in an appropriate U.S. District 
Court not later than 6 months after the date of mailing of the 
notification.
    (b) Prior to the commencement of suit and prior to the expiration of 
the 6-month period provided in 28 U.S.C. 2401(b), a claimant, his or her 
duly authorized agent, or legal representative, may file a written 
request with FEMA for reconsideration of a final denial of a claim under 
paragraph (a) of this section. Upon the timely filing of a request for 
reconsideration the FEMA shall have 6 months from the date of filing in 
which to make a final FEMA disposition of the claim and the claimant's 
option under 28 U.S.C. 2675(a) shall not accrue until 6 months after the 
filing of a request for reconsideration. Final FEMA action on a request 
for reconsideration shall be effected in accordance with the provisions 
of paragraph (a) of this section.



Sec. 11.19  Action on approved claim.

    (a) Payment of a claim approved under this part is contingent on 
claimant's execution of (1) a ``Claim for Damage or Injury,'' Standard 
Form 95, or a claims settlement agreement, and (2) a ``Voucher for 
Payment,'' Standard Form 1145, as appropriate. When a claimant is 
represented by an attorney, the voucher for payment shall designate both 
the claimant and his or her attorney as payees, and the check shall be 
delivered to the attorney, whose address shall appear on the voucher.
    (b) Acceptance by the claimant, his or her agenct, or legal 
representative, of an award, compromise, or settlement made under 
section 2672 or 2677 of title 28, United States Code, is final and 
conclusive on the claimant, his or her agent or legal representative, 
and any other person on whose behalf or for whose benefit the claim has 
been presented, and constitutes a complete release of any claim against 
the United States and against any employee of the Government whose act 
or omission gave rise to the claim, by reason of the same subject 
matter.



    Subpart C--Collection of Debts by the Government Under the Debt 
                         Collection Act of 1982

    Authority: 31 U.S.C. 3711 et seq.

    Source: 49 FR 38267, Sept. 28, 1984, unless otherwise noted.



Sec. 11.30  Scope of regulations.

    (a) Scope. This regulation implements policies used by FEMA to 
collect debts under the Debt Collection Act of 1982, as amended, 31 
U.S.C. 3701 et seq. As amended, this Act:
    (1) Requires the Director or designee to attempt collection of all 
debts owed to the United States for money or property arising out of 
activities of the Agency; and
    (2) Authorizes the Director or his designee, for debts not exceeding 
$100,000 or such higher limit prescribed by the Attorney General of the 
United States, under the provisions of 31 U.S.C. 3711(a)(2), exclusive 
of interest, penalty, and administrative charges, to compromise such 
debts or terminate collection action where it appears that no person is 
liable on such debt or has the present or prospective financial ability 
to pay a significant sum thereon or that the cost of collecting such 
debt is likely to exceed the amount of the recovery.
    (b) Definitions. For purposes of this subpart, the following 
definitions apply:
    (1) Office means any of the following:
    (i) United States Fire Administration.
    (ii) Federal Insurance Administration.
    (iii) National Preparedness Directorate.
    (iv) State & Local Programs & Support Directorate.
    (v) U.S. Fire Academy/National Emergency Training Center.
    (vi) Office of Financial Management, which for purposes of this 
subpart shall include all FEMA Headquarters elements not included in 
paragraphs

[[Page 116]]

(b)(1)(ii) through (b)(1)(iv) of this section.
    (vii) FEMA Special Facility.
    (2) Employee means those persons defined in 5 U.S.C. 2104, members 
of and retirees from the uniformed services of the United States and 
employees of and retirees from the United States Postal Service and the 
Postal Rate Commission.

[57 FR 54714, Nov. 20, 1992]



Sec. 11.31  Adoption of joint standards.

    All administrative actions to collect debts arising out of 
activities of the Agency shall be performed in accordance with the 
applicable standards prescribed either in 4 CFR parts 101 through 105 or 
any standards promulgated jointly by the Attorney General and the 
Comptroller General. Such standards are adopted as a part of this 
subpart and are supplemented in this subpart. Additional guidance will 
be found in the GAO Policy and Procedures Manual for Guidance of Federal 
Agencies and in the Treasury Fiscal Requirements Manual.



Sec. 11.32  Subdivision and joining of debts.

    (a) A debtor's liability arising from a particular transaction or 
contract shall be considered as a single debt in determining whether the 
debt is one not exceeding $100,000 or such higher limit prescribed by 
the Attorney General in accordance with 31 U.S.C. 3711(a)(2) exclusive 
of interest for the purpose of compromise or termination of collection 
action. Such a debt may not be subdivided to avoid the monetary ceiling 
established by the Act.
    (b) Joining of two or more single debts in a demand upon a 
particular debtor for payment totaling more than $100,000 or such higher 
limit prescribed by the Attorney General in accordance with 31 U.S.C. 
3711(a)(2) does not preclude compromise or termination of collection 
action with respect to any one of such debts that do not exceed $100,000 
or such higher limit prescribed by the Attorney General in accordance 
with 31 U.S.C. 3711(a)(2) exclusive of interest.

[49 FR 38267, Sept. 28, 1984, as amended at 57 FR 54714, Nov. 20, 1992]



Sec. 11.33  Authority of offices to attempt collection of debts.

    The head of each office and each regional director shall designate a 
debt collections officer (DCO) who shall attempt to collect in full all 
debts of the Agency for money or property arising out of the activities 
of such office. Each DCO shall establish and currently maintain a file 
with regard to each debt for which collection activities are undertaken. 
Insofar as it is feasible, debt collection personnel shall have personal 
interviews or telephone contact with the debtor.



Sec. 11.34  Referral of debts to the Chief Financial Officer, Federal Emergency Management Agency.

    (a) Authority of the Chief Financial Officer (CFO), Federal 
Emergency Management Agency.
    (1) The Chief Financial Officer, Federal Emergency Management 
Agency, is designated as the Agency Collections Officer (ACO). In this 
capacity he or she shall exercise such powers and perform duties of the 
Director in collecting debts owed FEMA. In this regard, the ACO may, 
after consultation with the Office of the General Counsel, compromise, 
suspend or terminate collection action on the debts owed the Agency, not 
exceeding $100,000, or such higher limit prescribed by the Attorney 
General in accordance with 31 U.S.C. 3711(a)(2), exclusive of interest, 
except as provided in Sec. 11.35 and paragraph (b) of this section. In 
addition, the CFO is delegated all authority which may be exercised by 
the Director, Federal Emergency Management Agency in relation to:
    (i) Disclosure to a consumer reporting agency in accordance with 31 
U.S.C. 3711(f),
    (ii) Instituting salary offset procedures in accordance with 5 
U.S.C. 5514(a),
    (iii) Instituting administrative offset procedures in accordance 
with 31 U.S.C. 3716,
    (iv) Charging of interest and penalties in accordance with 31 U.S.C. 
3717,
    (v) Entering into contracts for collection of debts in accordance 
with 31 U.S.C. 3718, except that the execution and administration of 
such contracts is

[[Page 117]]

delegated to Federal Emergency Management Agency contracting officers 
appointed under provisions of 48 CFR 1.603-3,
    (vi) Prescribe debt collection procedures and manage debt collection 
activities within the Agency.
    (2) When initial attempts at collection by the office originating 
such debt have not been fully successful, the debt file shall be 
forwarded to the ACO for further administrative collection procedures. 
Debts shall be referred to the ACO well within the applicable statute of 
limitations (28 U.S.C. 2415 and 2416).
    (b) Exclusions. There shall be no compromised or terminated 
collection action with respect to any debt: (1) As to which there is an 
indication of fraud, the presentation of a false claim, or 
misrepresentation on the part of the debtor or any other party having an 
interest in the claim; (2) based in whole or in part on conduct in 
violation of the anti-trust laws; (3) based on tax statutes; or (4) 
arising from an exception made by the General Accounting Office in the 
account of an accountable officer. Such a debt shall be promptly 
referred to the Justice Department, or GAO, as appropriate, after ACO 
has consulted with the Inspector General and the Office of General 
Counsel.
    (c) Delegation. The ACO may delegate his or her authority in the 
FEMA debt collection program and under this subpart to a Deputy or to 
others in the FEMA Office of Financial Management. However, the ACO must 
personally approve any compromise, suspension or termination of 
collection efforts on debts exceeding $10,000.00.

[49 FR 38267, Sept. 28, 1984, as amended at 50 FR 40007, Oct. 1, 1985; 
53 FR 47211, Nov. 22, 1988; 57 FR 54714, Nov. 20, 1992]



Sec. 11.35  Authority of offices to compromise debts or suspend or terminate collection action.

    Where it appears that the cost of collecting a debt of $2,500 or 
less will exceed the amount of recovery, the DCO is authorized to 
compromise the debt or to terminate collection action. Further, DCO's 
are authorized to compromise a debt or terminate or suspend collection 
action for debts of $2,500 or less where:
    (a) Debtor cannot be located despite vigorous efforts, including but 
not limited to, use of skip tracing services, have failed to ascertain 
the debtor's current address.
    (b) Debtor is financially unable to pay in full or in part. DCO's 
must obtain a financial statement from the debtor in such cases.
    (c) The debt is without merit or cannot be substantiated by 
evidence. In such cases, debt collection officers should secure the 
advice of counsel. DCO's must document the debt file to show all 
evidence and reasons for compromise or termination of such debts. The 
DCO must prepare a narrative report and forward a copy of the report to 
the ACO.

[49 FR 38267, Sept. 28, 1984, as amended at 53 FR 47211, Nov. 22, 1988]



Sec. 11.36  Debt collection files.

    Each DCO is responsible for obtaining current credit data about each 
person against whom a debt is pending in his office. The files shall be 
kept up-to-date by the ACO for claims referred to his/her office for 
collection. Such credit data may take the form of:
    (a) A commercial credit report, showing the debtor's assets and 
liabilities and his income and expenses,
    (b) The individual debtor's own financial statement, executed under 
penalty for false claim, reflecting his assets and liabilities and his 
income and expenses, or
    (c) An audited balance sheet of a corporate debtor.

The file should also contain a checklist or brief summary of action 
taken to collect or compromise a debt. All debts files relating to debts 
owed by individuals are to be safeguarded in accordance with 5 U.S.C. 
552a, popularly known as the ``Privacy Act of 1974''; 31 U.S.C. 3711 et 
seq., popularly known at the ``Debt Collection Act of 1982''; 44 CFR 
part 6 and this subpart. Each DCO is responsible for maintaining files 
on debtors with information sufficient to enable the Government to 
effectuate administrative or judicial collection.

(Approved by the Office of Management and Budget under control number 
3067-0122)

[[Page 118]]



Sec. 11.37  [Reserved]



Sec. 11.38  Annual reports to the Director, Office of Management and Budget, and the Secretary of the Treasury.

    (a) The ACO shall gather data on loans, accounts receivable, and 
debts which are required by 31 U.S.C. 3719 and shall transmit them to 
the Director, Federal Emergency Management Agency. Such data shall 
include:
    (1) The total amount of loans and accounts receivable owed to the 
Agency and when the funds owed to the Agency are due to be repaid;
    (2) The total amount of receivables and number of debts that are at 
least thirty days past due;
    (3) Total amount written off as uncollectable, actual, and allowed 
for;
    (4) The rate of interest charged for overdue debts and the amount of 
interest charged and collected on debts;
    (5) The total number of debts and total amount collected;
    (6) The number of debts and the total amount of debts referred to 
the Department of Justice for settlement or collection and the total 
number of debts and the total amount of debts settled or collected by 
that Department;
    (7) For each program or activity administered by the Agency, the 
data described in paragraphs (a) (1) through (6) of this section; and
    (8) Such other data as the Director, Office of Management and 
Budget, shall prescribe by regulations issued under authority of 31 
U.S.C. 3719.
    (b) Data described in paragraph (a) of this section shall be 
collected on a calendar year basis and transmitted to the Director, FEMA 
not later than the end of January of the year following the year for 
which the data described in paragraph (a) of this section, were 
collected. The Director, FEMA, shall report these data to the Secretary 
of the Treasury and the Director, Office of Management and Budget in 
accordance with 31 U.S.C. 3719. If the Secretary of the Treasury and the 
Director, Office of Management and Budget prescribe, by regulation, a 
different annual reporting cycle, the Agency's reporting cycle, 
described in the first sentence of this subsection shall be changed to 
conform with the cycle prescribed by the Department of the Treasury and 
Office of Management and Budget regulation.



Sec. 11.40  Records retention.

    The file of each debt on which administrative collection action has 
been completed shall be retained by the appropriate officer not less 
than 1 year after the applicable statute of limitations has run.



Sec. 11.41  Suspension or revocation of eligibility.

    (a) Where a contractor, grantee, or other participant in programs 
sponsored by the Agency fails to pay his debts to the Agency within a 
reasonable time after demand, the fact shall be reported by the ACO to 
the Inspector General and to the Office of Acquisition Management, which 
shall place such defaulting participant's name on the Agency's list of 
debarred, suspended and ineligible contractors and grantees. The 
participant will be so advised. Suspension or revocation of eligibility 
may be waived in whole or in part in the case of grants for disaster 
programs administered by FEMA, if the Director FEMA, so directs.
    (b) The failure of any surety to honor its obligations in accordance 
with 6 U.S.C. 11 is to be reported at once to the ACO, who shall so 
advise the Treasury Department. That Department will notify this Agency 
when a surety's certificate of authority to do business with the 
Government has been revoked or forfeited.
    (c) Failure by a recipient of FEMA financial or nonfinancial 
assistance to pay a substantial debt or a number of outstanding debts 
being collected under this subpart may be ground for Government-wide 
debarment and suspension as described in 44 CFR 17.305(c)(3).

[49 FR 38267, Sept. 28, 1984, as amended at 57 FR 54715, Nov. 20, 1992]



Sec. 11.42  Demand for payment of debts.

    (a) Initial demand. An initial demand shall be made in writing and 
sent by certified mail, return receipt requested, or delivered by hand 
to the debtor identifying the debt and advising that the full amount due 
should be paid by a specified date, not less than 30 days from the date 
of mailing or the

[[Page 119]]

hand delivery. If the debtor is other than a State or local government 
or an agency of the United States, the initial demand notice shall also 
advise the debtor that interest, calculated at rates provided by 31 
U.S.C. 3717(a), shall be assessed if the debt is not paid in full by the 
due date. Interest shall be charged on the outstanding balance due at 
the rate prescribed by the Secretary of the Treasury in accordance with 
31 U.S.C. 3717(a), beginning on the date that the first notice was 
mailed to the debtor. The debtor shall also be advised that if any 
portion of the debt remains unpaid for 90 days after the due date, 
without a repayment schedule satisfactory to the Agency being arranged, 
then additional penalties, as described in 31 U.S.C. 3717(e)(2), of 6 
percent per year shall be charged on the unpaid balance of principal and 
interest.
    (b) Subsequent demands. If the debt is not paid by the due date or 
if a repayment program acceptable to the ACO, has not been arranged with 
the debtor, then an initial demand shall be made followed by two 
progressively stronger written demands at not more than 30-day 
intervals, will be made unless a response to the initial or subsequent 
demands indicates that further demands would be futile and that the 
debtor's response does not require rebuttal.
    (c) Debts arising from contracts executed on or before October 25, 
1982. If the claim arises from a contract executed before October 25, 
1982, then the initial and subsequent demands shall mention nothing 
about the imposition of penalties or interest, prior to rendering of 
judgment by a court of competent jurisdiction.
    (d) Waiver of subsequent written demands. If there is valid reason, 
the sending of second and third demand letters may be waived. Such 
reasons may include, but are not be limited to, statute of limitations 
being about to run.

[49 FR 38267, Sept. 28, 1984, as amended at 53 FR 47211, Nov. 22, 1988; 
57 FR 54715, Nov. 20, 1992]



Sec. 11.43  Collection by administrative offset.

    (a) General. The Agency Collections Officer (ACO) or the ACO's 
designee may collect debts owed to the United States by means of offsets 
against monies due from the United States under provisions of 31 U.S.C. 
3716 and the procedures set forth below. Under provisions of 31 U.S.C. 
3716(h)(1) and reciprocal agreements entered into by the Secretary of 
the Treasury and the States concerned, the ACO or the ACO's designee may 
institute administrative offsets covered in this section to collect 
debts that are owed to States and which arise under programs 
administered by FEMA. The procedures prescribed by this section shall 
not be used if the debtor has executed a written agreement satisfactory 
to the ACO or the ACO's designee for the payment of the debt so long as 
the debtor adheres to the provisions of the agreement. Before using the 
procedures of this section, the ACO or the ACO's designee shall examine 
the debt to determine whether the likelihood of collecting such a debt 
and the best interests of the United States justify the use of 
administrative offset. If the debt is over 6 years old but is not 10 
years old, the ACO or the ACO's designee shall examine the debt and 
decide whether using these procedures is cost effective. Further, FEMA 
shall not use administrative offset procedures on debts existing for 
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 have been known by the officials 
of the Government who were charged with responsibility to discover and 
collect the debt. FEMA may refer debts to the Department of the Treasury 
for Government-wide administrative offset under the provisions of 31 
U.S.C. 3716(c) and for offsets against Federal tax refunds under 
provisions of 31 U.S.C. 3720A.
    (b) Written notice. After the ACO or the ACO's designee has examined 
the debt under procedures set forth in paragraph (a) of this section, 
FEMA shall hand deliver or send by mail a notice to the debtor advising 
the debtor of:
    (1) Nature and amount of the debt determined by the Agency to be 
due, and of intention to collect by administrative offset;

[[Page 120]]

    (2) Rights available under this section;
    (3) Opportunity to inspect and copy the records relating to the 
debt;
    (4) Opportunity for review within the Agency with respect to the 
debt; and
    (5) Opportunity to enter into an agreement with the ACO with respect 
to the debt. Such agreement may include voluntary but nonrevocable 
withholding of monies due from the United States to the debtor.
    (c) Review within the Federal Emergency Management Agency. The 
debtor may request, within sixty calendar days after mailing or hand-
delivery of the written notice specified in paragraph (b) of this 
section, review within the Agency as to the existence or amount of the 
debt or terms of repayment. An attorney in the Office of General 
Counsel, acting as an Administrative Review Official (ARO), shall 
conduct the review. The ARO may determine that no debt is due, that the 
amount of the debts should be reduced, that terms of repayment should be 
set, or that the demanded amount should be paid in full.
    (1) If the debtor has made a timely request for a review within the 
Agency, then FEMA shall stay any offsets until the ARO has rendered a 
decision. However, interest, penalties and administrative charges, as 
specified in Sec. 11.48, shall continue to accrue during the pendency of 
the review within the Agency. If the debtor files a request for a review 
within the Agency after the 60 days specified above, then FEMA shall 
continue with the offset action. However, if the ARO finds that the 
debtor owes less than the amount offset, then FEMA will refund the 
amount over-withheld. For purposes of determining whether the debtor has 
filed a timely request for administrative review, the date of FEMA's 
receipt of the debtor's request establishes the time of filing.
    (2) The ARO shall transmit the decision on the debtor's request for 
review within the Agency. The ARO may contact the debtor directly to 
request additional information and data in order to allow the ARO to 
reach a knowledgeable decision. The ARO's decision shall be final 
insofar as FEMA's administrative processing of the debt is concerned.
    (3) FEMA shall use procedures in this section to decide debtors' 
requests for review within FEMA under the provisions of Sec. 11.64(d).
    (d) If the debtor does not execute a written agreement, if the 
debtor does not request review within the Agency, or if the review 
within the Agency determines that a debt is due, then FEMA shall use 
administrative offset against monies payable by the United States in 
accordance with this section and appropriate regulations. However, if a 
statute or FEMA agreement either prohibits or explicitly provides for 
collection through administrative offset for the debt or the type of 
debt involved then the provisions of that statute or FEMA agreement 
rather than the provisions of this section shall be used for such 
offset.
    (e) If the debtor has a judgment against the United States, then 
notice shall be provided to the General Accounting Office for offset in 
accordance with 31 U.S.C. 3728.
    (f) In addition to administrative offset remedies described above, 
FEMA may use its rights to collect debts by offsets conducted under 
principles of common law.
    (g) The debtor's failure to receive notice, described in paragraph 
(b) of this section, mailed by FEMA to the debtor's last-known address, 
shall not impair the validity of offsets taken under this section.
    (h) If FEMA or any other Federal department or agency incurs costs 
in taking offsets to collect delinquent debts, then the debtor shall be 
liable for such costs as administrative costs in accordance with section 
11.48(d).

[63 FR 1066, Jan. 8, 1998]



Sec. 11.44  [Reserved]



Sec. 11.45  Collection by salary offset.

    (a) General. Where an individual is an employee of the Federal 
Government or a member of the Armed Forces or a reserve component of the 
Armed Forces or is receiving retired or retainer pay for service as a 
Federal employee and where the individual is indebted to the United 
States and where the individual fails to satisfy his indebtedness 
voluntarily after the Agency has made demands in accordance

[[Page 121]]

with Sec. 11.42 of this part, the ACO may institute collection action by 
salary or pay offset procedures in accordance with 5 U.S.C. 5514, 5 CFR 
550.1101 through 550.1106, 5 CFR part 845, 5 CFR 831.1301 et seq., and 
the procedures described below.
    (b) Notice to debtor. At least 30 days prior to initiating salary 
offset, the ACO or his designee shall send notice by certified mail, 
return receipt requested, to the debtor advising him of:
    (1) Nature, origin and amount of indebtedness determined by the 
Agency to be due, the date that the debt was due, and a statement that 
FEMA has complied with applicable statutes, regulations and procedures,
    (2) Agency intention to initiate proceedings to collect the debt by 
deductions from pay,
    (3) Rights available under 5 U.S.C. 5514(a),
    (4) Debtor's opportunity to inspect and copy Government records 
relating to the debt,
    (5) Opportunity to enter into a written agreement, under terms 
satisfactory to the ACO, to establish terms for the repayment of the 
debt, and
    (6) Opportunity for a hearing, described in paragraph (c) of this 
section, concerning the existence or the amount of the debt or, if no 
repayment schedule has been established (in accordance with paragraph 
(b)(1) of this section) concerning the terms of the repayment schedule,
    (7) If there is a statutory provision authorizing waiver, remission, 
or forgiveness of the debt due the United States; the individual will be 
notified as to:
    (i) Nature of the provision,
    (ii) Explanation of the conditions under which the waiver shall be 
granted,
    (iii) Reasonable opportunity to request a waiver,
    (iv) If waiver is requested, then a written response will be given 
to the request.
    (c) Hearing. The debtor shall file a written petition for hearing or 
for a waiver (if applicable) on or before the twentieth calendar day 
after receipt of notice, referred to in paragraph (b) of this section, 
addressed to the Agency Collections Officer, Federal Emergency 
Management Agency, Washington, DC 20472. The postmark or receipt date, 
if mail is not used, shall establish the date of petition.
    (1) The hearing official shall be an Administrative Law Judge or a 
person of grade GS/GM-14 or higher, not under the supervision or control 
of the Director, FEMA. The Director may enter into interagency support 
agreements with other Federal agencies or departments for providing 
hearing officials.
    (2) The hearing shall be informal but the debtor shall be given the 
basic safeguards of due process. The debtor shall have the right to be 
represented by an attorney. A summary record shall be made of the 
proceedings at the hearing. The hearing shall, insofar as possible, be 
conducted at a location and time convenient to the debtor.
    (3) As soon as practicable, but in no event later than 60 days after 
the filing of the petition for hearing, the hearing official shall 
render a final decision. If a hearing is requested, no further action 
shall be taken to collect the debt until the final decision is rendered.
    (d) Amount deducted. The amount deducted from pay for any period 
shall not exceed 15 percent of disposable pay. However, the debtor may 
voluntarily agree to the deduction of a greater amount of pay. 
Disposable pay means that part of pay of any individual remainng after 
the deduction from those earnings of any amounts required by law to be 
withheld. However, installment payments of less than $25.00 will be 
accepted only in the most unusual circumstances. Disposable pay is 
defined in 5 CFR 550.1103 and 5 CFR 581.105(b) through (f).
    (e) Procedural requirements specified in paragraph (c) of this 
section shall not be used in cases of collections of such obligations as 
changes in coverage under a Federal benefits program or resulting from 
ministerial adjustments pay and allowances which cannot be placed in 
effect immediately because of normal processing delays.
    (f) When an employee, who is subject to salary offset in accordance 
with this section and who is making repayment in installments, finds 
that total repayment of the debt is about to be made, then the employee 
must notify the employee's payroll office, at least two pay

[[Page 122]]

periods before the final payment, that final payment is being made.
    (g) Debts arising from travel advances provided under 5 U.S. C. 5705 
and for travel and transportation expenses for transferred employees 
under 5 U.S.C. 5724 may be collected by taking offsets in accordance 
with 44 CFR 11.43.

[49 FR 38267, Sept. 28, 1984, as amended at 50 FR 40007, Oct. 1, 1985; 
57 FR 54715, Nov. 20, 1992]



Sec. 11.46  Liquidation of collateral.

    Where FEMA holds security or collateral that may be liquidated and 
the proceeds applied on debts due it through the exercise of a power of 
sale in the security instrument or a nonjudicial foreclosure, such 
procedures should be followed if the debtor fails to pay his debt within 
a reasonable time after demand, unless the cost of disposing of the 
collateral will be disproportionate to its value or special 
circumstances require judicial foreclosure.



Sec. 11.47  Collection in installments.

    Debts with accrued interest and penalties should be collected in 
full in one lump sum whenever this is possible. However, if the debtor 
is financially unable to pay the indebtedness in one lump sum, payment 
with applicable interest may be accepted in regular installments in 
accordance with a written agreement approved by the ACO or his designee. 
If possible, installment payments shall be sufficiently large to 
complete collection in the three years. Installment payments should not 
be less than $50.00 per month unless there are most unusual 
circumstances. The Agency may require the debtor to execute a confess-
judgment, negotiable note for the amount of the indebtedness. The ACO or 
DCO may require the debtor to provide a statement as to financial 
condition.



Sec. 11.48  Interest, penalties, and administrative charges.

    (a) Definition. In Sec. Sec. 11.30 through 11.65 of this part, a 
debt is deemed to be delinquent if the debtor has not paid the debt by 
the collection due date and if the debtor has not entered into a 
repayment agreement satisfactory to FEMA. A debt is also deemed 
delinquent if the debtor has not made payment by the date specified in 
the applicable agreement.
    (b) Interest. FEMA's delinquent debtors shall be charged interest on 
the outstanding principal balance due on debts owed the United States at 
the rate published by the Secretary of the Treasury under provisions of 
31 U.S.C. 3717(a). The interest rate in effect at the time that FEMA 
first mailed or hand delivered to the debtor written notice, stating 
that the debt was due and that interest would be assessed on the debt, 
shall be the rate applied throughout the duration of the debt until the 
debt is paid in full.
    (1) However, if the debtor defaults on a debt repayment agreement 
made with the ACO or the ACO's designee, then interest shall accrue at 
the rate published by the Secretary of the Treasury under the provisions 
of 31 U.S.C. 3717(a)(1) that was in effect when the debtor defaulted on 
the repayment agreement. Interest shall accrue either from the date that 
FEMA first informed the debtor that the Agency would assess interest on 
the debt or some subsequent date specified in the written notice given 
by FEMA to the debtor stating that interest would be assessed.
    (2) However, where FEMA first sent the notice of indebtedness prior 
to October 25, 1982, interest shall run from the date on or after that 
date when FEMA first sent the debtor a letter notifying the debtor that 
the Agency would assess interest.
    (c) Exceptions to interest charges. However, no interest, described 
in paragraph (a) of this section, shall be charged if:
    (1) The amount due is paid in full within 30 days of the mailing of 
the demand. However, the ACO or the ACO's designee, as documented by a 
memorandum in the debt collection file, may extend this 30-day period on 
a case-by-case basis for good cause shown in accordance with the Federal 
Claims Collection Standards (4 CFR 102.13(g)), or
    (2) The applicable statute, regulation required by statute, loan 
agreement or contract either prohibits the charging of interest or 
explicitly fixes interest

[[Page 123]]

or charges, which apply to the debt involved.
    (d) Penalty charges. Except in the situation described in paragraph 
(c) of this section, the debtor shall be liable for a penalty of 6% 
annually on the unpaid principal, interest, and administrative charges 
if the debtor fails to pay the debt in full within 90 days of the date 
after the first written notice by FEMA that FEMA would assess penalty 
charges. However, if the debtor enters into a repayment agreement, 
satisfactory to the ACO or the ACO's designee within the 90-day period, 
then FEMA will not assess penalty so long as the debtor adheres to the 
provisions of the agreement. Penalty shall accrue starting on and 
including the day of FEMA's first written notice where FEMA mentioned 
that it would assess penalty charges on the debt. Penalty will not be 
assessed against Federal agencies. Penalty charges shall accrue on 
administrative charges, starting on the day that FEMA incurred the 
administrative charge. However, if the debtor pays the debt in full 
within 90 days of FEMA's first notice that the Agency would assess 
penalty charges or if the debtor enters into a repayment agreement 
satisfactory to the ACO or the ACO's designee within that time, then 
FEMA will not assess penalty on accrued administrative charges.
    (e) Administrative costs for processing delinquent debts. Debtors 
shall pay the United States for costs incurred by the Government in 
collecting the debt in accordance with 31 U.S.C. 3717(e)(1). 
Administrative cost calculations will be based upon actual costs 
incurred by FEMA or upon analyses establishing an average of actual 
costs incurred by FEMA in processing debts in similar stages of 
delinquency.
    (f) Standards for waiver of interest, penalties, and administrative 
charges. (1) The ACO or the ACO's designee may waive interest, penalties 
and administrative charges, either in whole or in part, if the ACO or 
the ACO's designee finds that:
    (i) The debtor is financially unable to pay;
    (ii) The Agency's enforcement policy will be adequately served if 
there is a waiver in whole or in part;
    (iii) The debtor has shown good cause, satisfactory to the ACO, that 
the claim was not timely paid. If waiver is granted, the administrative 
claims file shall be adequately documented; or
    (iv) The ACO or the ACO's designee may waive imposition of interest 
in accordance with standards set forth in 4 CFR 102.13 and 
Sec. Sec. 11.50 and 11.51 of this subpart.
    (2) The ACO, with the concurrence of the General Counsel, may waive 
interest, penalties and administrative costs based on criteria set forth 
in paragraphs (f)(3) through (f)(5) of this section. When such charges 
are waived, the Agency Collections Officer or the ACO's designee shall 
prepare a memorandum for the debt collection file stating the reasons 
for not collecting such charges.
    (3) If the costs of collection exceed the projected recovery then 
interest, penalties and administrative costs may be waived.
    (4) If FEMA determines that the debtor is unable to pay, as shown by 
complete and sworn statements as to his or her assets and projected 
income, then the ACO or the ACO's designee may waive interest, penalties 
and administrative charges in whole or in part. If the principal 
outstanding amount of the debt exceeds $5,000, the determination shall 
be made by the ACO. If the principal outstanding amount of the debt is 
$5,000 or less, the determination may be made by the DCO, the ACO, or a 
person designated by the ACO.
    (5) The ACO or the ACO's designee may waive assessing interest, 
penalty, and administrative charges if such assessment would be against 
equity and good conscience or not in the best interests of the United 
States. Examples include, but are not limited to:
    (i) FEMA's undue delay in rendering a decision where the debtor had 
requested an administrative review or review within the Agency. Under 
these circumstances, interest and penalty would be waived during the 
period of undue delay.
    (ii) The amount of interest is so large, in relation to the debtor's 
ability to pay that assessment of interest

[[Page 124]]

would leave the debtor perpetually indebted to the United States.
    (g) Nonapplicability. The provisions of this section do not apply to 
debts owed by Federal agencies.
    (h) Installment collections or partial payments. When a debtor pays 
a debt either partially or in installments, the payments shall first be 
applied to administrative costs, second to penalty charges, third to 
accrued interest, and finally to principal. Partial payments shall be 
deemed to be made when received at the FEMA office designated to receive 
the payments. If the debtor owes more than one debt, then the ACO or the 
ACO's designee will apply the partial payment to the oldest debt first 
unless the debtor is making a voluntary installment payment. Under 
voluntary circumstances, the debtor may designate to which debt the 
payment is to be applied.
    (i) Collection of interest, penalties, and administrative charges 
while an appeal is pending. If the debtor requests administrative review 
of the existence or the amount of the debt, interest, penalties, and 
administrative charges may be waived or suspended by the ACO or the 
ACO's designee under the following circumstances:
    (1) If a State or local government requests review within the Agency 
of a proposed referral to the Treasury Offset Program or an 
administrative review of a proposed administrative offset, then the ACO 
or the ACO's designee may waive interest, penalty or administrative 
charges if the State or local government shows to the satisfaction of 
the ACO or the ACO's designee that its taxes and other revenues would be 
insufficient to allow the State or local government to provide essential 
public services if FEMA were to collect interest, penalty, 
administrative charges, or any two or more, either in whole or in part. 
The ACO or the ACO's designee may require that the State or local 
government provide FEMA with such economic, accounting, financial or 
demographic data as the ACO or the ACO's designee may deem necessary to 
reach an informed decision as to waiver.
    (2) If a debtor notes an appeal or requests an administrative review 
that is mandated by law, then FEMA shall not assess interest and 
penalties while the appeal is pending from the time that the debtor 
requests an administrative review or an appeal until the Agency has 
taken final action on the administrative review or the appeal.
    (3) When a debtor notes an appeal or requests an administrative 
review that is permissive under statute or regulation, then interest, 
penalties and administrative charges may be waived if:
    (i) There is no fault or lack of good faith on the part of the 
debtor and if the amount of interest, penalties and administrative 
charges is so high in relation to affordable installment repayments that 
the debt would never be repaid. In determining whether interest and 
penalties should be waived, the ACO, the ACO's designee, or the DCO may 
demand that the debtor provide such financial data as he or she may 
determine is necessary to reach an informed decision.
    (ii) FEMA unreasonably delays in rendering a decision on a debtor's 
request for an administrative review or review within the Agency, then 
the ACO or the ACO's designee may waive assessment of interest, penalty, 
and administrative charge during the period of the unreasonable delay.
    (iii) The ACO or the ACO's designee may waive or suspend the 
collection of interest, penalty and administrative charges, for good 
cause shown and if such waiver or suspension would serve FEMA's 
interests. The FEMA official making such a waiver shall prepare a 
memorandum describing the circumstances and stating the reasons for the 
grant of a waiver or suspension.
    (j) Accrual of interest and penalty. Interest and penalty will 
accrue on delinquent FEMA debts until FEMA receives payment at the 
address designated by the ACO or the ACO's designee.

[63 FR 1067, Jan. 8, 1998]



Sec. 11.49  Omission not a defense.

    Failure to comply with any standard prescribed in 4 CFR chapter 11, 
or in this subpart shall not be available as a defense to any debtor.

[[Page 125]]



Sec. 11.50  Standards for compromise of debts.

    (a) Compromise. (1) A debt may be compromised if:
    (i) The debtor is not able to pay the full amount within a 
reasonable period of time;
    (ii) If the debtor refuses to pay the debt in full and the Agency is 
unable to enforce collection within a reasonable time by enforced 
collection proceeding;
    (iii) If there is real doubt concerning the Agency's ability to 
prove its case in court for the full amount claimed;
    (iv) If the cost of collecting the debt does not justify the 
enforced collection of the full amount;
    (v) If, in connection with statutory penalties or forfeitures 
established as an aid to enforcement and to compel compliance, the 
Agency's enforcement policy will be adequately served by acceptance of 
the sum to be agreed upon; or
    (vi) For other reasons deemed valid by the ACO after consultation 
with the General Counsel. The Standards set forth in 4 CFR 103.3 through 
103.9 should be used.
    (2) Inability to pay. If a debtor is unable to pay the full amount 
of the debt within a reasonable time or if the debtor refuses to pay and 
the Government is unable to collect the amount of the debt through 
enforcement proceedings then the Agency may compromise the claim either 
in whole or in part. The ACO may require that the debtor provide sworn 
information as to assets, actual or potential sources of income, 
liabilities and other financial data. The standards set forth in the 
GAO, Department of Justice guidelines prescribed in 4 CFR 103.2 should 
be used.
    (3) Compromises payable in installments will not normally be 
permitted by the Agency only if the debtor shows that full, immediate 
payment is impossible.
    (4) Litigative probabilities. If there is a bona fide dispute as to 
facts or if there is a valid legal defense raised which may limit or 
eliminate the possibility of recovery, then the Agency Collections 
Officer may, after receiving a legal analysis from the General Counsel, 
compromise the action in whole or in part.
    (b) Documentary evidence of compromise. No compromise of a debt 
shall be final or binding on the Agency unless it is in writing and 
signed by the appropriate officer who has authority to compromise the 
claim pursuant to this subpart.
    (c) Authority. Only the ACO may compromise debts of more than 
$2,500. Debts of $2,500 or less may be compromised by the ACO or the 
DCO. Debts exceeding $100,000 or such other limit prescribed by the 
Attorney General in accordance with 31 U.S.C. 3711(a)(2) may be 
compromised only after approval by the Department of Justice in 
accordance with 4 CFR 103.1(b).

[49 FR 38267, Sept. 28, 1984, as amended at 53 FR 47212, Nov. 22, 1988; 
57 FR 54715, Nov. 20, 1992]



Sec. 11.51  Standards for suspension or termination of collection.

    (a) Suspension of collection action. (1) Collection action shall be 
suspended temporarily on a debt when the debtor cannot be located after 
diligent effort but there is reason to believe that future collection 
action may be sufficently productive to justify periodic review and 
action on the claim, making consideration for its size and the amount 
which may be realized. Collection action may be suspended temporarily on 
a debt when the debtor owns no subsantial equity in realty and is 
presently unable to make payment on the Agency's debt or effect a 
compromise, but his future prospects justify retention of the claim for 
periodic review and action, and, (i) the applicable statute of 
limitations has been tolled or started anew, or (ii) future collection 
can be effected by offset notwithstanding the statute of limitations. 
Suspension as to a particular debtor should not defer the early 
liquidation of security for the debt. Standards prescribed in 4 CFR part 
104 shall be used in making determinations as to suspension as 
termination of collection efforts.
    (2) No substantial recovery possible. If, at the time that 
collection is attempted, debtor is without assets or actual or potential 
income or if the debtor may have exemptions under the bankruptcy laws 
which make enforced

[[Page 126]]

collection of the debt not cost-effective, then collection action may be 
suspended. However, interest and other charges will accumulate unless 
waived.
    (3) Debtor cannot be located. If the debtor cannot be located or is 
outside the United States, then collection action may be suspended until 
the debtor is located. The statute of limitations will be tolled during 
those periods that the debtor is outside the United States.
    (b) Termination of collection action. (1) Collection action may be 
terminated and the Agency file closed for the following reasons: (i) No 
substantial amount can be collected; (ii) the debtor cannot be located; 
(iii) the cost will exceed recovery; (iv) the claim is legally without 
merit; or (v) the claim cannot be substantiated by evidence.
    (2) No substantial recovery possible. If there is little likelihood 
that collection efforts will result in any substantial recovery, then 
collection efforts may be terminated. Costs of recovery may be a factor 
in determining whether any recovery would be substantial. Normally, 
costs of recovery would be more important in cases of small debts than 
in cases of large ones.
    (3) Debtor cannot be located. Every effort, including, but not 
limited to, use of governmental records, Internal Revenue Service 
taxpayer information, private contractor skip tracer and credit 
agencies, shall be made to locate debtors in advance of the runnning of 
the statute of limitations. If the debtor cannot be located, then the 
Agency Collections Officer may determine, with the concurrence of the 
General Counsel, that collection efforts may be terminated.
    (4) Litigative possibilities. The criteria and procedures of 
Sec. 11.50(a)(4) of this subpart may be used to terminate collection 
efforts if it appears unlikely that the Government would prevail if it 
were to litigate collection of the debt.
    (c) Debts exceeding $100,000. Debts exceeding $100,000 or higher 
limits prescribed by the Attorney General in accordance with 31 U.S.C. 
3711(a)(2) (exclusive of interest, penalty charges and administrative 
charges) shall not be compromised by FEMA unless the proposed compromise 
has been referred for approval by the Department of Justice in 
accordance with 4 CFR 104.1(b). Such proposed compromises shall be 
referred to the Office of General Counsel, which shall review the 
proposal before being forwarded to the Department of Justice. However, 
where a debt claim is of no legal merit, the ACO may compromise such a 
debt without referral to the Department of Justice but only with the 
concurrence of the Office of General Counsel.
    (d) Enforcement policy. Statutory penalties and forfeitures are used 
as an aid to secure compliance with FEMA requirements and to compel 
payment. These may be waived if the Agency's enforcement policy in terms 
of securing payment and securing compliance with FEMA regulations would 
be sreved by accepting a sum agreed upon. Mere accidental or technical 
violations will be dealt with less severly than willful or substantial 
violations.

[49 FR 38267, Sept. 28, 1984, as amended at 53 FR 47212, Nov. 22, 1988; 
57 FR 54715, Nov. 20, 1992]



Sec. 11.52  Referral of delinquent debtors to consumer reporting agencies.

    (a) General. This section implements 31 U.S.C. 3711(f) concerning 
reporting of debtors having overdue debts to consumer reporting 
agencies.
    (b) Procedures. When a debt is unpaid for 120 days after the initial 
demand letter has been sent and where the debtor has not repaid the 
amount due nor has the debtor entered into an agreement for repayment 
satisfactory to the ACO or his designee, or the debt is not subject to 
administrative offset (as described in Sec. 11.43), the ACO may report 
the claim to consumer reporting agencies if:
    (1) The Agency Collections Officer or his designee has determined 
that the debt is overdue,
    (2) Notice has been sent certified mail, return receipt requested, 
to debtor informing him that:
    (i) Payment of the debt is overdue,
    (ii) The Agency intends to disclose the debtor's debt records to a 
consumer reporting agency within a stated period, not less than 60 days 
after the mailing of such debt,
    (iii) Specified items of information being released shall be listed 
in the notice. Such items will normally include

[[Page 127]]

the debtor's name, taxpayer account number, last known address, other 
information necessary to establish the identity of the individual, the 
nature, amount and status of the outstanding claim, and programs under 
which the claim arose, and
    (iv) The debtor has a right to a full explanation of the debt, to 
dispute any information in the records concerning the debt, and to have 
an administrative review. If the debtor petitions for administrative 
review, then no further action on referring debtor information to 
consumer reporting agencies shall be undertaken until the administrative 
review is completed.
    (c) Administrative review. The debtor shall send with his petition 
arguments in writing and documentary evidence to the Agency Collection 
Officer, Office of Financial Management, Federal Emergency Management 
Agency, Washington, DC 20472. These shall be reviewed by the ACO or an 
official designated by him. The reviewing official shall prepare a 
reply, within 60 days after receipt of the petition, either accepting 
the debtor's assertions in whole or is part or rejecting them. If the 
debtor's assertions are rejected in whole or in part, then the debt 
data, described in paragraph (b)(2)(iii) of this section (with 
correction made as indicated by the reviewing official) shall be sent to 
consumer reporting agencies.
    (d) Information released. Information released to consumer reporting 
agencies shall be limited to the following items:
    (1) Name of debtor, address, taxpayer identification number, and 
other information necessary to establish the identity of the debtor,
    (2) Amount, status and history of the debt and
    (3) Program under which the debt arose.

[49 FR 38267, Sept. 28, 1984, as amended at 57 FR 54715, Nov. 20, 1992]



Sec. 11.53  Securing debtor addresses from the Department of Treasury.

    (a) If the ACO is unable to obtain a current address for the debtor, 
then a written request shall be sent to the Secretary of the Treasury 
asking for the debtor's most current mailing address from the Department 
of the Treasury taxpayer identity information files for Agency use in 
collecting claims. Any information so received from the Secretary of the 
Treausury shall be safeguarded in accordance with provisions of 26 
U.S.C. 6103(p)(4) and 26 CFR parts 301 and 601.
    (b) Taxpayer identity information (which includes IRS current 
address and social security number) shall be released to consumer 
reporting agencies only for the purpose of preparation of commercial 
credit reports for use by Federal agencies in accordance with section 3 
of the Debt Collection Act (31 U.S.C. 3711(f)). A notice to this effect 
shall be placed on each page containing taxpayer identitiy information 
which is sent to consumer reporting agencies.



Sec. 11.54  Contracts with debt collection agencies.

    (a) General. FEMA shall utilize mandatory, government-wide debt 
collection agency contracts negotiated by the General Services 
Administration or the Department of the Treasury to effect collection of 
debts owed FEMA.
    (b) Debt collection contract provisions. Contracts entered into 
under authority of this secion shall have provisions relating to:
    (1) Protection of data relating to individuals which shall not be 
less than that provided under the terms of the Privacy Act (5 U.S.C. 
552a).
    (2) Protection of data derived from Department of the Treasury 
taxpayer identity information files shall in accordance with 26 U.S.C. 
6103(p)(4) and 26 CFR parts 301 and 601.
    (3) Authority to terminate collection action, settle or compromise 
claims shall remain with the Director of the Agency or the ACO rather 
than with the Contracting Officer.
    (4) Resolution of disputes relating to the claim shall remain with 
the ACO or the Agency Director. Resolution of disputes arising under the 
contract or with the contractor shall remain with the Agency Contracting 
Officer who shall handle such disputes in accordance with the Contract 
Disputes Act (Pub. L. 95-563).
    (5) Judicial enforcement of the claim shall be handled by the U.S. 
Department of Justice.

[[Page 128]]

    (6) The contractor shall adhere to Federal and State laws and 
regulations pertaining to debt collection practices including the Fair 
Debt Collection Practices Act (15 U.S.C. 1692 et seq.)
    (7) Contracts, entered into under provisions of this section, shall 
be subject to competition to the maximum practicable extent.
    (8) The contractor shall be required to strictly account for all 
amounts collected.
    (c) Collection fees. Contracts entered into under this section may 
provide that fees payable to the contractor may be paid only from the 
amounts collected from the debtor as determined by the Contracting 
Officer. However, such contracts shall be funded only from funds 
available for the time period in which the contract is executed.

(Approved by the Office of Management and Budget under control number 
3067-0122)

[49 FR 38267, Sept. 28, 1984; 50 FR 40007, Oct. 1, 1985; 50 FR 42023, 
Oct. 17, 1985; 51 FR 34605, Sept. 30, 1986; 53 FR 47212, Nov. 22, 1988]



Sec. 11.55  Referral to GAO or Justice Department.

    (a) Referral to the Department of Justice. With the exception of 
debts described in paragraph (b), of this section, those debts which 
cannot be collected or compromised or terminated in accordance with 3 
CFR parts 103 and 104 and Secs. 11.50 and 11.51, shall be referred to 
the Department of Justice for collection action. All such referrals 
shall be done by the ACO, who shall consult with the FEMA Office of 
General Counsel. The referral shall be accompanied by a copy of the 
complete debt collection file. In addition, the following information 
shall be provided:
    (1) Current address of debtor. Effort shall be made to locate the 
debtor if he is missing. If the debtor is a corporation, then the name 
and address of the agent upon whom service of process may be made, shall 
be provided.
    (2) Credit data which may be in the form of a credit report or a 
statement, under oath, of the debtor's assets and liabilities.
    (3) History of prior collection actions.
    (4) Data required by the GAO Claims Collection Litigation Report 
form. If the debt is less than $600, exclusive of interest, then 
referral shall not be made to the Department of Justice, except in 
unusual cases.
    (b) Referral to the General Accounting Office. Debts arising from 
audits exceptions taken by the General Accounting Office (GAO) shall be 
referred to GAO before referring such debts to the Department of 
Justice. If the merits of the debt or the propriety of a proposed 
compromise, suspension or termination are in doubt, then the matter 
should be referred to GAO prior to referral to the Department of 
Justice.
    (c) Prompt referral. Such referrals shall be made as early as 
possible consistent with aggressive collection action, and, in any 
event, well within the statute of limitation for bringing suit against 
the debtor. Ordinarily, debt collection referrals will be made to the 
Department of Justice within six months after FEMA has determined that a 
debt is owing in an amount certain.



Sec. 11.56  Analysis of costs.

    The ACO shall provide for periodic comparison of costs incurred and 
amounts collected. Data on costs and corresponding recovery rates for 
debts of different types and in various dollar ranges should be used to 
compare the cost effectiveness of alternative collection techniques, 
establish guidelines with respect to the points at which costs of 
further collection efforts are likely to exceed recoveries, assist in 
evaluating offers in compromise, and establish minimum debt amounts 
below which collection efforts need not be taken. Cost and recovery data 
should also be useful in justifying adequate resources for an effective 
collection action.



Sec. 11.57  Automation.

    The ACO shall work to automate the Agency's debt collection 
operations to the extent that it is cost effective and feasible.



Sec. 11.58  Prevention of overpayments, delinquencies, and defaults.

    The ACO shall establish procedures to identify the causes of 
overpayments,

[[Page 129]]

delinquencies, and defaults and the corrective actions needed. All debts 
or loans, when first established, may be reported to commercial credit 
bureaus.



Sec. 11.59  Office of General Counsel.

    The Office of General Counsel shall provide legal advice on claims 
collection matters to all debt collection officers and the Agency 
Collection Officer, as needed.



Sec. 11.60  Sale of debts due the United States arising under programs administered by the Agency.

    Where debts due the United States arising under programs 
administered by the Agency prove to be uncollectable or unresolvable 
through procedures described in Secs. 11.33 through 11.35, 11.41 through 
11.48, and 11.50 through 11.55 and where the stated value of the debt is 
less than $100,000 or such higher limit prescribed by the Attorney 
General in accordance with 31 U.S.C. 3711(a)(2), excluding penalties and 
interest, then the Agency may contract to sell or assign such debts 
under competitive sales procedures. The Agency may sell or assign debts 
valued at $600, or less, excluding penalties and interest, after 
decision by the ACO. Where the debt exceeds $600, but is less than 
$100,000 or such higher limit prescribed by the Attorney General in 
accordance with 31 U.S.C. 3711(a)(2), exclusive of interest and 
penalties, the Agency may sell or assign such debts only after the ACO 
has coordinated such action with the Department of Justice and the 
General Accounting Office.

[49 FR 38267, Sept. 28, 1984, as amended at 57 FR 54715, Nov. 20, 1992]



Sec. 11.61  Referral of delinquent debts to Department of the Treasury for offsets against tax refunds.

    (a) FEMA may refer delinquent debts to the Department of the 
Treasury for offset against tax refunds in accordance with 31 U.S.C. 
3720A and that Department's implementing regulations.
    (b) FEMA will provide information to the Department of the Treasury 
within time limits prescribed by the Secretary of the Treasury or his or 
her designee and in accordance with agreements entered into between FEMA 
and the Department of the Treasury and its constituent agencies.
    (1) Information submitted to the Department of the Treasury shall 
include a description of:
    (i) The size and age of FEMA's inventory of delinquent debts; and
    (ii) The prior collection efforts that the inventory reflects; and
    (2) In accordance with time limits and record transmission 
requirements established by the Department of the Treasury or its 
constituent agencies, FEMA may submit magnetic media containing 
information on debtors being referred to that Department for tax refund 
offset. FEMA may use the electronic data transmissions facilities of 
other federal agencies in transmitting data on debtors or for referral 
of debts to the Department of the Treasury.
    (c) FEMA shall establish a collect-call or toll-free telephone 
number that the Department of the Treasury or its constituent agencies 
will furnish to debtors whose refunds have been offset to obtain 
information from FEMA concerning the offsets taken.
    (d) Tax refund offset procedures described in Secs. 11.61 through 
11.64 shall apply to debts owed to the United States that are past-due 
and legally enforceable, and
    (1) Except in the case of a judgment debt, the debt has been 
delinquent for at least three months but has not been delinquent for 
more than ten years at the time the offset is made; and
    (2) Where FEMA has given the debtor at least 60 days from the date 
of mailing of the notification (described in Sec. 11.63 of this part) to 
request a review within FEMA and to present evidence that all or part of 
the debt is not past-due or legally enforceable. If the debtor has 
requested a review and presented evidence, then FEMA has considered the 
debtor's evidence and reasons and has determined that all or a part of 
the debt is past-due and legally enforceable; and
    (3) With respect to which FEMA has notified or has made a reasonable 
attempt to notify the debtor that the debt is past-due and, unless 
repaid within 60 days of the mailing of the notification the debt will 
be referred to

[[Page 130]]

the Department of the Treasury for offset against any overpayment of 
tax; and
    (4) Is at least $25.00; and
    (5) Meets all other requirements of 31 U.S.C. 3720A and the 
Department of the Treasury regulations relating to the eligibility of a 
debt for tax refund offset have been satisfied.

[63 FR 1068, Jan. 8, 1998]



Sec. 11.62  Administrative charges incurred in referrals for tax refund offset.

    In accordance with Sec. 11.48(e), all administrative costs incurred 
in connection with the referral of the debts to the Department of the 
Treasury for collection by tax refund offset shall be added to the 
amount owed by the debtor. Such costs will include, but not be limited 
to, a pro-rata share of total costs of taking offsets incurred by the 
Department of the Treasury in accordance with agreements executed by 
FEMA, the Department of the Treasury and the Department's constituent 
agencies.

[63 FR 1069, Jan. 8, 1998]



Sec. 11.63  Notice to debtor before tax refund offset.

    (a) FEMA will refer a debt to the Department of the Treasury for tax 
refund offset only after FEMA:
    (1) Makes a determination that the debt is owed to the United 
States;
    (2) Sends the debtor a notice of FEMA's intent to use Department of 
the Treasury tax refund offset that provides the debtor with items of 
information described in paragraphs (a)(2) (i) through (vii) as follows:
    (i) Debtor owes FEMA an amount due; and
    (ii) The debt is past due; and
    (iii) Unless the debt is repaid within 60 days of the date of FEMA's 
mailing the notice of intent described above, FEMA intends to collect 
the debt by requesting the Department of the Treasury to take offset to 
reduce the debtor's federal tax refund by the amount of the principal 
amount of the debt and all accumulated interest, penalty, and other 
charges; and
    (iv) Debtor has an opportunity to present arguments and evidence 
within 60 days of mailing of the notice of intent that all or a part of 
the debt is not due. A debtor requesting a review within the Agency 
shall send these arguments to the FEMA office that sent the notice of 
intent under Sec. 11.63(a)(2); and
    (v) Debtor has had an opportunity to arrange to inspect and copy 
records relating to the debt by mailing a request to the FEMA office 
sending the notice of intent under Sec. 11.63(a)(2); and
    (vi) If no reply is received from the debtor within 60 days of 
mailing of the notice, FEMA may refer the debt to the U.S. Department of 
the Treasury after reviewing the file and determining that the debt is 
due; and
    (vii) Debtor may negotiate a repayment agreement, satisfactory to 
FEMA, for the repayment of the debt.
    (b) If the debtor has presented evidence and arguments as described 
in subsection (a)(2)(iv) FEMA will refer the debt to the Department of 
the Treasury only after the FEMA Office of General Counsel has rendered 
a decision under provisions of Secs. 11.64 and 11.65 of this subpart 
concerning the debtor's arguments and evidence, if any, and has 
determined that the debt is due either in whole or in part. If the 
debtor has submitted evidence in accordance with paragraph (a)(2)(iv)(g) 
of this section, the FEMA Office of General Counsel shall notify the 
debtor of the Agency's final determination.
    (c) If the debtor has questions concerning the debt or procedures 
being used, the debtor may contact FEMA at an address and telephone 
number provided in the notice of intent under Sec. 11.63(a)(2).

[63 FR 1069, Jan. 8, 1998]



Sec. 11.64  Review within Federal Emergency Management Agency.

    (a) Notification by debtor. A debtor receiving notice of intent 
under Sec. 11.63(a)(2) has the right to present evidence and arguments 
within 60 days of mailing of the notice of intent that all of the debt 
is not past-due or not legally enforceable. To exercise this right, the 
debtor must:
    (1) Send a written request for review of evidence to the FEMA office 
sending the notice of intent; and

[[Page 131]]

    (2) State in the request the amount disputed and the reasons why the 
debtor believes that the debt is not past-due or is not legally 
enforceable; and
    (3) Include in the request any documents that the debtor wishes to 
be considered, or state that additional information will be submitted 
within the remainder of the 60-day period. FEMA is not obligated to 
consider any of debtor's evidence received after the 60-day period, 
except as specified in paragraph (c) of this section.
    (b) Submission of evidence. The debtor may submit evidence that all 
or part of the debt is not past due or legally enforceable along with 
the notification required by paragraph (a) of this section. Debtor's 
failure to submit the notification and evidence within the 60-day period 
may result in FEMA's referral of the debt to the Department of the 
Treasury with only a review by the ACO or the ACO's designee that FEMA's 
records show that the debt is actually due FEMA.
    (c) Late filed requests for review within FEMA. If the debtor 
submits a request for review after the 60-day time limit in paragraph 
(a) of this section, FEMA shall render a decision as described in 
paragraph (d) of this section, but FEMA shall not stay offset action as 
described in Sec. 11.65. However, if FEMA, after the review of the 
debtor's evidence and arguments, determines that the debtor owes less 
than the amounts that FEMA has taken through offset, then FEMA shall 
refund any difference between any amounts offset and amounts that the 
review within the Agency determines is actually owed.
    (d) Review of the evidence. FEMA will review the debtor's arguments 
and evidence in accordance with procedures set forth in Sec. 11.43(c).

[63 FR 1069, Jan. 8, 1998]



Sec. 11.65  Stay of tax refund offset action.

    If the debtor notifies FEMA that the debtor is exercising rights 
described in Sec. 11.64 and submits evidence within time limits 
specified in Sec. 11.64, any notice to the Department of the Treasury 
concerning tax refund offset will be stayed until the issuance of a 
written decision that sustains, amends, or ends collection action 
resulting from FEMA's original debt collection decision.

[63 FR 1069, Jan. 8, 1998]



                 Subpart D--Personnel Claims Regulations

    Authority: 31 U.S.C. 3721.

    Source: 50 FR 8112, Feb. 28, 1985.



Sec. 11.70  Scope and purpose.

    (a) The Director, Federal Emergency Management Agency (FEMA), is 
authorized by 31 U.S.C. 3721 to settle and pay (including replacement in 
kind) claims of officers and employees of FEMA, amounting to not more 
than $25,000 for damage to or loss of personal property incident to 
their service. Property may be replaced in-kind at the option of the 
Government. Claims are payable only for such types, quantities, or 
amounts of tangible personal property (including money) as the approving 
authority shall determine to be reasonable, useful, or proper under the 
circumstances existing at the time and place of the loss. In determining 
what is reasonable, useful, or proper, the approving authority will 
consider the type and quantity of property involved, circumstances 
attending acquisition and use of the property, and whether possession or 
use by the claimant at the time of damage or loss was incident to 
service.
    (b) The Government does not underwrite all personal property losses 
that a claimant may sustain and it does not underwrite individual 
tastes. While the Government does not attempt to limit possession of 
property by an individual, payment for damage or loss is made only to 
the extent that the possession of the property is determined to be 
reasonable, useful, or proper. If individuals possess excessive 
quantities of items, or expensive items, they should have such property 
privately insured. Failure of the claimant to comply with these 
procedures may reduce or preclude payment of the claim under this 
subpart.



Sec. 11.71  Claimants.

    (a) A claim pursuant to this subpart may only be made by: (1) An 
employee of FEMA; (2) a former employee of

[[Page 132]]

FEMA whose claim arises out of an incident occurring before his/her 
separation from FEMA; (3) survivors of a person named in paragraph (a) 
(1) or (2) of this section, in the following order of precedence: (i) 
Spouse; (ii) children; (iii) father or mother, or both or (iv) brothers 
or sisters, or both; (4) the authorized agent or legal representative of 
a person named in paragraphs (a) (1), (2), and (3) of this section.
    (b) A claim may not be presented by or for the benefit of a 
subrogee, assignee, conditional vendor, or other third party.



Sec. 11.72  Time limitations.

    (a) A claim under this part may be allowed only if it is in writing, 
specifies a sum certain and is received in the Office of General 
Counsel, Federal Emergency Management Agency, Washington, DC 20472: (1) 
Within 2 years after it accrues; (2) or if it cannot be filed within the 
time limits of paragraph (a)(1) of this section because it accrues in 
time of war or in time of armed conflict in which any armed force of the 
United States is engaged or if such a war or armed conflict intervenes 
within 2 years after the claim accrues, when the claimant shows good 
cause, the claim may be filed within 2 years after the cause ceases to 
exist but not more than 2 years after termination of the war or armed 
conflict.
    (b) For purposes of this subpart, a claim accrues at the time of the 
accident or incident causing the loss or damage, or at such time as the 
loss or damage should have been discovered by the claimant by the 
exercise of due diligence.



Sec. 11.73  Allowable claims.

    (a) A claim may be allowed only if: (1) The damage or loss was not 
caused wholly or partly by the negligent or wrongful act of the 
claimant, his/her agent, the members of his/her family, or his/her 
private employee (the standard to be applied is that of reasonable care 
under the circumstances); and (2) the possession of the property lost or 
damaged and the quantity possessed is determined to have been 
reasonable, useful, or proper under the circumstances; and (3) the claim 
is substantiated by proper and convincing evidence.
    (b) Claims which are otherwise allowable under this subpart shall 
not be disallowed solely because the property was not in the possession 
of the claimant at the time of the damage or loss, or solely because the 
claimant was not the legal owner of the property for which the claim is 
made. For example, borrowed property may be the subject of a claim.
    (c) Subject to the conditions in paragraph (a) of this section, and 
the other provisions of this subpart, any claim for damage to, or loss 
of, personal property incident to service with FEMA may be considered 
and allowed. The following are examples of the principal types of claims 
which may be allowed, unless excluded by Sec. 11.74.
    (1) Property loss or damage in quarters or other authorized places. 
Claims may be allowed for damage to, or loss of, property arising from 
fire, flood, hurricane, other natural disaster, theft, or other unusual 
occurrence, while such property is located at:
    (i) Quarters within the 50 states or the District of Columbia that 
were assigned to the claimant or otherwise provided in-kind by the 
United States; or
    (ii) Any warehouse, office, working area, or other place (except 
quarters) authorized for the reception or storage of property.
    (2) Transportation or travel losses. Claims may be allowed for 
damage to, or loss of, property incident to transportation or storage 
pursuant to orders, or in connection with travel under orders, including 
property in the custody of a carrier, an agent or agency of the 
Government, or the claimant.
    (3) Motor vehicles. Claims may be allowed for automobiles and other 
motor vehicles damaged or lost by overseas shipments provided by the 
Government. ``Shipments provided by the Government'' means via 
Government vessels, charter of commercial vessels, or by Government 
bills of lading on commercial vessels, and includes storage, unloading, 
and offloading incident thereto. Other claims for damage to or loss of 
automobiles and other major vehicles may be allowed when use of the 
vehicles on a nonreimbursable basis

[[Page 133]]

was required by the claimant's supervisor, but these claims shall be 
limited to a maximum of $1,000.00.
    (4) Mobile homes. Claims may be allowed for damage to or loss of 
mobile homes and their content under the provisions of paragraph (c)(2) 
of this section. Claims for structural damage to mobile homes resulting 
from such structural damage must contain conclusive evidence that the 
damage was not caused by structural deficiency of the mobile home and 
that it was not overloaded. Claims for damage to or loss of tires 
mounted on mobile homes may be allowed only in cases of collision, 
theft, or vandalism.
    (5) Money. Claims for money in an amount that is determined to be 
reasonable for the claimant to possess at the time of the loss are 
payable:
    (i) Where personal funds were accepted by responsible Government 
personnel with apparent authority to receive them for safekeeping, 
deposit, transmittal, or other authorized disposition, but were neither 
applied as directed by the owner nor returned;
    (ii) When lost incident to a marine or aircraft disaster;
    (iii) When lost by fire, flood, hurricane, or other natural 
disaster;
    (iv) When stolen from the quarters of the claimant where it is 
conclusively shown that the money was in a locked container and that the 
quarters themselves were locked. Exceptions to the foregoing ``double 
lock'' rule are permitted when the adjudicating authority determines 
that the theft loss was not caused wholly or partly by the negligent or 
wrongful act of the claimant, their agent, or their employee. The 
adjudicating authority should use the test of whether the claimant did 
their best under the circumstances to protect the property; or
    (v) When taken by force from the claimant's person.
    (6) Clothing. Claims may be allowed for clothing and accessories 
customarily worn on the person which are damaged or lost:
    (i) During the performance of official duties in an unusual or 
extraordinary-risk situation;
    (ii) In cases involving emergency action required by natural 
disaster such as fire, flood, hurricane, or by enemy or other 
belligerent action;
    (iii) In cases involving faulty equipment or defective furniture 
maintained by the Government and used by the claimant required by the 
job situation; or
    (iv) When using a motor vehicle.
    (7) Property used for benefit of the Government. Claims may be 
allowed for damage to or loss of property (except motor vehicles, see 
Secs. 11.73(c)(3) and 11.74(b)(13)) used for the benefit of the 
Government at the request of, or with the knowledge and consent of, 
superior authority or by reason of necessity.
    (8) Enemy action or public service. Claims may be allowed for damage 
to or loss of property as a direct consequence of:
    (i) Enemy action or threat thereof, or combat, guerrilla, 
brigandage, or other belligerent activity, or unjust confiscation by a 
foreign power or its nation:
    (ii) Action by the claimant to quiet a civil disturbance or to 
alleviate a public disaster; or
    (iii) Efforts by the claimant to save human life or Government 
property.
    (9) Marine or aircraft disaster. Claims may be allowed for personal 
property damaged or lost as a result of marine or aircraft disaster or 
accident.
    (10) Government property. Claims may be allowed for property owned 
by the United States only when the claimant is financially responsible 
to an agency of the Government other than FEMA.
    (11) Borrowed property. Claims may be allowed for borrowed property 
that has been damaged or lost.
    (12)(i) A claim against the Government may be made for not more than 
$40,000 by an officer or employee of the agency for damage to, or loss 
of, personal property in a foreign country that was incurred incident to 
service, and--
    (A) The officer, or employee was evacuated from the country on a 
recommendation or order of the Secretary of State or other competent 
authority that was made in responding to an incident of political unrest 
or hostile act by people in that country; and the damage or loss 
resulted from the evacuation, incident, or hostile act; or

[[Page 134]]

    (B) The damage or loss resulted from a hostile act directed against 
the Government or its officers, or employees.
    (ii) On paying the claim under this section, the Government is 
subrogated for the amount of the payment to a right or claim that the 
claimant may have against the foreign country for the damage or loss for 
which the Government made the payment.
    (iii) Amounts may be obligated or expended for claims under this 
section only to the extent provided in advance in appropriation laws.



Sec. 11.74  Claims not allowed.

    (a) A claim is not allowable if:
    (1) The damage or loss was caused wholly or partly by the negligent 
or wrongful act of the claimant, claimant's agent, claimant's employee, 
or a member of claimant's family;
    (2) The damage or loss occurred in quarters occupied by the claimant 
within the 50 states and the District of Columbia that were not assigned 
to the claimant or otherwise provided in-kind by the United States;
    (3) Possession of the property lost or damaged was not incident to 
service or not reasonable or proper under the circumstances.
    (b) In addition to claims falling within the categories of paragraph 
(a) of this section, the following are examples of claims which are not 
payable:
    (1) Claims not incident to service. Claims which arose during the 
conduct of personal business are not payable.
    (2) Subrogation claims. Claims based upon payment or other 
consideration to a proper claimant are not payable.
    (3) Assigned claims. Claims based upon assignment of a claim by a 
proper claimant are not payable.
    (4) Conditional vendor claims. Claims asserted by or on behalf of a 
conditional vendor are not payable.
    (5) Claims by improper claimants. Claims by persons not designated 
in Sec. 11.71 are not payable.
    (6) Articles of extraordinary value. Claims are not payable for 
valuable or expensive articles, such as cameras, watches, jewelry, furs, 
or other articles of extraordinary value, when shipped with household 
goods or as unaccompanied baggage (shipment includes storage). This 
prohibition does not apply to articles in the personal custody of the 
claimant or articles properly checked, provided that reasonable 
protection or security measures have been taken, by the claimant.
    (7) Articles acquired for other persons. Claims are not payable for 
articles intended directly or indirectly for persons other than the 
claimant or members of the claimants' immediate household. This 
prohibition includes articles acquired at the request of others and 
articles for sale.
    (8) Property used for business. Claims are not payable for property 
normally used for business or profit.
    (9) Unserviceable property. Claims are not payable for wornout or 
unserviceable property.
    (10) Violation of law or directive. Claims are not payable for 
property acquired, possessed, or transported in violation of law, 
regulation, or other directive. This does not apply to limitation 
imposed on the weight of shipments of household goods.
    (11) Intangible property. Claims are not payable for intangible 
property such as bank books, checks, promissory notes, stock 
certificates, bonds, bills of lading, warehouse receipts, baggage 
checks, insurance policies, money orders, and traveler's checks.
    (12) Government property. Claims are not payable for property owned 
by the United States unless the claimant is financially responsible for 
the property to an agency of the Government other than FEMA.
    (13) Motor vehicles. Claims for motor vehicles, except as provided 
for by Sec. 11.73(c)(3), will ordinarily not be paid. However, in 
exceptional cases, meritorious claims for damage to or loss of motor 
vehicles, limited to a maximum of $1,000.00, may be recommended to the 
Office of General Counsel for consideration and approval for payment.
    (14) Enemy property. Claims are not payable for enemy property, 
including war trophies.
    (15) Losses recoverable from carrier, insurer or contractor. Claims 
are not payable for losses, or any portion thereof, which have been 
recovered or are recoverable from a carrier, insurer or under contract 
except as permitted under Sec. 11.75.

[[Page 135]]

    (16) Fees for estimates. Claims are not normally payable for fees 
paid to obtain estimates of repair in conjunction with submitting a 
claim under this subpart. However, where, in the opinion of the 
adjudicating authority, the claimant could not obtain an estimate 
without paying a fee, such a claim may be considered in an amount 
reasonable in relation to the value for the cost of repairs of the 
articles involved, provided that the evidence furnished clearly 
indicates that the amount of the fee paid will not be deducted from the 
cost of repairs if the work is accomplished by the estimator.
    (17) Items fraudulently claimed. Claims are not payable for items 
fraudulently claimed. When investigation discloses that a claimant, 
claimant's agent, claimant's employee, or member of claimant's family 
has intentionally misrepresented an item claimed as to cost, condition, 
costs to repair, etc., the item will be disallowed in its entirety even 
though some actual damage has been sustained. However, if the remainder 
of the claim is proper, it may be paid. This does not preclude 
appropriate disciplinary action if warranted.
    (18) Minimum amount. Loss or damage amounting to less than $10.



Sec. 11.75  Claims involving carriers and insurers.

    In the event the property which is the subject of a claim was lost 
or damaged while in the possession of a carrier or was insured, the 
following procedures will apply:
    (a) Whenever property is damaged, lost, or destroyed while being 
shipped pursuant to authorized travel orders, the owner must file a 
written claim for reimbursement with the last commercial carrier known 
or believed to have handled the goods, or the carrier known to be in 
possession of the property when the damage or loss occurred, according 
to the terms of its bill of lading or contract, before submitting a 
claim against the Government under this subpart.
    (1) If more than one bill of lading or contract was issued, a 
separate demand should be made against the last carrier on each such 
document.
    (2) The demand should be made within the time limit provided in the 
policy and prior to the filing of a claim against the Government.
    (3) If it is apparent that the damage or loss is attributable to 
packing, storage, or unpacking while in the custody of the Government, 
no demand need be made against the carrier.
    (b) Whenever property which is damaged, lost, or destroyed incident 
to the claimant's service is insured in whole or in part, the claimant 
must make demand in writing against the insurer for reimbursement under 
terms and conditions of the insurance coverage, prior to the filing of 
the concurrent claim against the Government.
    (c) Failure to make a demand on a carrier or insurer or to make all 
reasonable efforts to protect and prosecute rights available against a 
carrier or insurer and to collect the amount recoverable from the 
carrier or insurer may result in reducing the amount recoverable from 
the Government by the maximum amount which would have been recoverable 
from the carrier or insurer, had the claim been timely or diligently 
prosecuted. However, no deduction will be made where the circumstances 
of the claimant's service preclude reasonable filing of such a claim or 
diligent prosecution, or the evidence indicates a demand was 
impracticable or would have been unavailing.
    (d) Following the submission of the claim against the carrier or 
insurer, the claimant may immediately submit a claim against the 
Government in accordance with the provisions of this subpart, without 
waiting until either final approval or denial of the claim is made by 
the carrier or insurer.
    (1) Upon submission of a claim to the Government, the claimant must 
certify in the claim that no recovery (or the amount of recovery) has 
been gained from a carrier or insurer, and enclose all correspondence 
pertinent thereto.
    (2) If the carrier or insurer has not taken final action on the 
claim against them, by the time the claimant submits a claim to the 
Government, the claimant will immediately notify them to address all 
correspondence in regard to the claim to him/her, in care of the General 
Counsel of FEMA.
    (3) The claimant shall timely advise the General Counsel in writing, 
of any

[[Page 136]]

action which is taken by the carrier or insurer on the claim. On 
request, the claimant also will furnish such evidence as may be required 
to enable the United States to enforce the claim.
    (e) When a claim is paid by FEMA, the claimant will assign to the 
United States, to the extent of any payment on the claim accepted by 
claimant, all rights, title, and interest in any claim against the 
carrier, insurer, or other party arising out of the incident on which 
the claim against the Government is based. After payment of the claim by 
the Government, the claimant will, upon receipt of any payment from a 
carrier or insurer, pay the proceeds to the United States to the extent 
of the payment received by the claimant from the United States.
    (f) When a claimant recovers for the loss from the carrier or 
insurer before the claim against the Government under this subpart is 
settled, the amount or recovery shall be applied to the claim as 
follows:
    (1) When the amount recovered from a carrier, insurer, or other 
third party is greater than or equal to the claimant's total loss as 
determined under this subpart, no compensation is allowable under this 
subpart.
    (2) When the amount recovered is less than such total loss, the 
allowable amount is determined by deducting the recovery from the amount 
of such total loss;
    (3) For the purpose of this paragraph (f) the claimant's total loss 
is to be determined without regard to the $25,000 maximum set forth 
above. However, if the resulting amount, after making this deduction, 
exceeds $25,000, the claimant will be allowed only $25,000.



Sec. 11.76  Claims procedures.

    (a) Filing a claim. Applicants shall file claims in writing with the 
General Counsel, Federal Emergency Management Agency, Washington, DC 
20472. Each written claim shall contain, as a minimum:
    (1) Name, address, and place of employment of the claimant;
    (2) Place and date of the damage or loss:
    (3) A brief statement of the facts and circumstances surrounding the 
damage or loss;
    (4) Cost, date, and place of acquisition of each price of property 
damaged or lost;
    (5) Two itemized repair estimates, or value estimates, whichever is 
applicable;
    (6) Copies of police reports, if applicable;
    (7) A statement from the claimant's supervisor that the loss was 
incident to service;
    (8) A statement that the property was or was not insured;
    (9) With respect to claims involving thefts or losses in quarters or 
other places where the property was reasonably kept, a statement as to 
what security precautions were taken to protect the property involved;
    (10) With respect to claims involving property being used for the 
benefit of the Government, a statement by the claimant's supervisor that 
the claimant was required to provide such property or that the 
claimant's providing it was in the interest of the Government; and
    (11) Other evidence as may be required.
    (b) Single claim. A single claim shall be presented for all lost or 
damaged property resulting from the same incident. If this procedure 
causes a hardship, the claimant may present an initial claim with notice 
that it is a partial claim, an explanation of the circumstances causing 
the hardship, and an estimate of the balance of the claim and the date 
it will be submitted. Payment may be made on a partial claim if the 
adjudicating authority determines that a genuine hardship exists.
    (c) Loss in quarters. Claims for property loss in quarters or other 
authorized places should be accompanied by a statement indicating:
    (1) Geographical location;
    (2) Whether the quarters were assigned or provided in-kind by the 
Government;
    (3) Whether the quarters are regularly occupied by the claimant;
    (4) Names of the authority, if any, who designated the place of 
storage of the property if other than quarters;
    (5) Measures taken to protect the property; and
    (6) Whether the claimant is a local inhabitant.

[[Page 137]]

    (d) Loss by theft or robbery. Claims for property loss by theft or 
robbery should be accompanied by a statement indicating:
    (1) Geographical location;
    (2) Facts and circumstances surrounding the loss, including evidence 
of the crime such as breaking and entering, capture of the thief or 
robber, or recovery of part of the stolen goods; and
    (3) Evidence that the claimant exercised due care in protecting the 
property prior to the loss, including information as to the degree of 
care normally exercised in the locale of the loss due to any unusual 
risks involved.
    (e) Transportation losses. Claims for transportation losses should 
be accompanied by the following:
    (1) Copies of orders authorizing the travel, transportation, or 
shipment or a certificate explaining the absence of orders and stating 
their substance;
    (2) Statement in cases where property was turned over to a shipping 
officer, supply officer, or contract packer indicating:
    (i) Name (or designation) and address of the shipping officer, 
supply officer, or contract packer indicating;
    (ii) Date the property was turned over;
    (iii) Inventoried condition when the property was turned over;
    (iv) When and where the property was packed and by whom;
    (v) Date of shipment;
    (vi) Copies of all bills of lading, inventories, and other 
applicable shipping documents;
    (vii) Date and place of delivery to the claimant;
    (viii) Date the property was unpacked by the carrier, claimant, or 
Government;
    (ix) Statement of disinterested witnesses as to the condition of the 
property when received and delivered, or as to handling or storage;
    (x) Whether the negligence of any Government employee acting within 
the scope of his/her employment caused the damage or loss;
    (xi) Whether the last common carrier or local carrier was given a 
clear receipt, except for concealed damages;
    (xii) Total gross, tare, and new weight of shipment;
    (xiii) Insurance certificate or policy if losses are privately 
insured;
    (xiv) Copy of the demand on carrier or insured, or both, when 
required, and the reply, if any;
    (xv) Action taken by the claimant to locate missing baggage or 
household effects, including related correspondence.
    (f) Marine or aircraft disaster. Claims for property losses due to 
marine or aircraft disaster should be accompanied by a copy of orders or 
other evidence to establish the claimant's right to be, or to have 
property on board.
    (g) Enemy action, public disaster, or public service. Claims for 
property losses due to enemy action, public disaster, or public service 
should be accompanied by:
    (1) Copies of orders or other evidence establishing the claimant's 
required presence in the area involved; and
    (2) A detailed statement of facts and circumstances showing an 
applicable case enumerated in Sec. 11.73(c)(8).
    (h) Money. Claims for loss of money deposited for safekeeping, 
transmittal, or other authorized disposition should be accompanied by:
    (1) Name, grade, and address of the person or persons who received 
money and any others involved;
    (2) Name and designation of the authority who authorized such person 
or persons to accept personal funds and the disposition required; and
    (3) Receipts and written sworn statements explaining the failure to 
account for funds or return them to the claimant.
    (i) Motor vehicles or mobile homes in transit. Claims for damage to 
motor vehicles or mobile homes in transit should be accompanied by a 
copy of orders or other available evidence to establish the claimant's 
lawful right to have the property shipped and evidence to establish 
damage in transit.



Sec. 11.77  Settlement of claims.

    (a) The General Counsel, FEMA, is authorized to settle (consider, 
ascertain, adjust, determine, and dispose of, whether by full or partial 
allowance or disallowance) any claim under this subpart.

[[Page 138]]

    (b) The General Counsel may formulate such procedures and make such 
redelegations as may be required to fulfill the objectives of this 
subpart.
    (c) The General Counsel shall conduct or request the Office of 
Inspector General to conduct such investigation as may be appropriate in 
order to determine the validity of a claim.
    (d) The General Counsel shall notify a claimant in writing of action 
taken on their claim, and if partial or full disallowance is made, the 
reasons therefor.
    (e) In the event a claim submitted against a carrier under 
Sec. 11.75 has not been settled, before settlement of the claim against 
the Government pursuant to this subpart, the General Counsel shall 
notify such carrier or insurer to pay the proceeds of the claim to FEMA 
to the extent FEMA has paid such to claimant in settlement.
    (f) The settlement of a claim under this subpart, whether by full or 
partial allowance or disallowance, is final and conclusive.



Sec. 11.78  Computation of amount of award.

    (a) The amount allowed for damage to or loss of any items of 
property may not exceed the cost of the item (either the price paid in 
cash or property, or the value at the time of acquisition if not 
acquired by purchase or exchange), and there will be no allowance for 
replacement cost or for appreciation in the value of the property. 
Subject to these limitations, the amount allowable is either:
    (1) The depreciated value, immediately prior to the loss or damage, 
of property lost or damaged beyond economical repair, less any salvage 
value; or
    (2) The reasonable cost or repairs, when property is economically 
repairable, provided that the cost of repairs does not exceed the amount 
allowable under paragraph (a)(1) of this section.
    (b) Depreciation in value is determined by considering the type of 
article involved, its costs, its conditions when damaged or lost, and 
the time elapsed between the date of acquisition and the date of damage 
or loss.
    (c) Replacement of lost or damaged property may be made in-kind 
whenever appropriate.



Sec. 11.79  Attorney's fees.

    No more than 10 per centum of the amount paid in settlement of each 
individual claim submitted and settled under this subpart shall be paid 
or delivered to or received by any agent or attorney on account of 
services rendered in connection with that claim. A person violating this 
section shall be fined not more than $1,000.

(Information collection approved by Office of Management and Budget 
under Control No. 3067-0167)



PART 12--ADVISORY COMMITTEES--Table of Contents




Sec.
12.1  Purpose and applicability.
12.2  Definitions.
12.3  Policy.
12.4  Interpretations.
12.5  Advisory committee management officer.
12.6  Establishment of advisory committees.
12.7  Charter.
12.8  Meetings.
12.9  Closed meetings.
12.10  Designated Federal officer or employee.
12.11  Public notice.
12.12  Minutes.
12.13  Transcripts of the advisory committee meetings and agency 
          proceedings.
12.14  Annual comprehensive review.
12.15  Termination and renewal of advisory committees.
12.16  Reports about the advisory committees.
12.17  Availability of documents and information on advisory committees.
12.18  Uniform pay guidelines.
12.19  Fiscal and administrative responsibilities.

    Authority: Federal Advisory Committee Act, 5 U.S.C. app. 1; 
Reorganization Plan No. 3 of 1978; E.O. 12127; E.O. 12148; E.O. 12024.

    Source: 45 FR 64180, Sept. 29, 1980, unless otherwise noted.



Sec. 12.1  Purpose and applicability.

    (a) The regulations in this part implement the Federal Advisory 
Committee Act, Executive Order 12024 and General Services Administration 
Regulation 41 CFR part 101-6. The provisions of the Federal Advisory 
Committee Act in this part shall apply to all advisory

[[Page 139]]

committees established by the Federal Emergency Management Agency 
(FEMA), including advisory committees created pursuant to any act of 
Congress relating to the United States Fire Administration, Federal 
Insurance Administration, or any other component of the Federal 
Emergency Management Agency, except to the extent that any act of 
Congress establishing an advisory committee reporting to the agencies 
specifically provides otherwise.
    (b) This part does not apply to inter-agency advisory committees or 
advisory committees established by the President unless specifically 
made applicable by the establishing authority.
    (c) This part does not apply to any local group, contractor, 
grantee, or other organization whose primary function is to render 
public service with respect to a Federal program, or any state or local 
committee, counsel, board, commission, or similar group established to 
advise or make recommendations to State or local officials or agencies.

[45 FR 64180, Sept. 29, 1980, as amended at 48 FR 44543, Sept. 29, 1983; 
50 FR 40007, Oct. 1, 1985]



Sec. 12.2  Definitions.

    As used in this part--
    Act means the Federal Advisory Committee Act (86 Stat. 770).
    Advisory Committee is used as per the meaning set forth in section 
3(2) of the Act.
    Agency means the Federal Emergency Management Agency, established by 
Presidential Reorganization Plan No. 3 of 1978, or any component 
thereof.
    Administrator, GSA means the Administrator of General Services.
    Director means the Director of the Federal Emergency Management 
Agency.
    FEMA means the Federal Emergency Management Agency.
    GSA means the General Services Administration.
    Presidential Advisory Committee means an advisory committee which 
advises the President of the United States.
    Secretariat means the Committee Management Secretariat of the 
General Services Administration.
    Any officer of the Federal Government means any agency official or 
employee of the Federal government designated to perform duties with 
respect to an advisory committee established under this part.
    Nonstatutory advisory committee means an advisory committee not 
established by statute or reorganization plan.



Sec. 12.3  Policy.

    In determining whether an advisory committee should be created, and 
in reviewing the functions of operating advisory committees, the Agency 
will:
    (a) Establish new advisory committees only when they are determined 
to be essential, keeping their number to the minimum necessary to 
accomplish the assigned mission of the agency or its components;
    (b) Provide standards and uniform procedures to govern the 
establishment, operation, administration, and duration of the advisory 
committees;
    (c) Terminate the advisory committees when they are no longer 
necessary to carry out the purposes for which they were established; and
    (d) Keep the Congress and the public informed with respect to the 
number, purpose, membership, activity, and cost of the advisory 
committees.



Sec. 12.4  Interpretations.

    Except as specifically authorized in writing by the Director, 
including internal instructions, no interpretation of the meaning of the 
regulations in this part by any employee or officer of the Agency, other 
than a written interpretation by the General Counsel, will be recognized 
to be binding upon the Agency.



Sec. 12.5  Advisory committee management officer.

    (a) The Director will designate as advisory committee management 
officer the Chief, Staff Planning and Evaluation, Office of 
Administrative Support, who shall:
    (1) Exercise control and supervision over the establishment, 
procedures, and accomplishments of the advisory committees established 
by the Director; and
    (2) Assemble and maintain the reports, records, and other papers of 
any

[[Page 140]]

advisory committee during its existence.
    (b) The name of the Advisory Committee Management Officer designated 
in accordance with this part shall be provided to the Secretariat.

[45 FR 64180, Sept. 29, 1980, as amended at 47 FR 13149, Mar. 29, 1982; 
48 FR 44543, Sept. 29, 1983; 49 FR 33879, Aug. 27, 1984]



Sec. 12.6  Establishment of advisory committees.

    (a) No advisory committee shall be established under this part 
unless such establishment is:
    (1) Specifically authorized by statute or the President of the 
United States; or
    (2) Determined as a matter of formal record by the Director after 
consultation with the Secretariat, with timely notice published in the 
Federal Register as a matter of the public interest, in connection with 
the performance of duties imposed on the agency by law.
    (b) The determination required by paragraph (a)(2) of this section 
shall:
    (1) Contain a clearly defined purpose for the advisory committee;
    (2) Require the membership of the advisory committee to be fairly 
balanced in terms of the points of view represented in the functions 
performed by the advisory committee;
    (3) Contain appropriate provisions to assure that the advice and 
recommendations of the advisory committee will not be inappropriately 
influenced by the appointing authority or by any special interest, but 
will instead be the result of the advisory committee's independent 
judgment;
    (4) Contain provisions dealing with the date for submission of 
reports (if any), the duration of the advisory committee, and the 
publication of reports and other materials, to the extent that the 
agency determines the provisions of Sec. 12.16 of this part to be 
inadequate; and
    (5) Contain provisions which will assure that the advisory committee 
will have adequate staff (either supplied by the Agency or employed by 
it), will be provided adequate quarters, and will have funds available 
to meet its other necessary expenses.
    (c) Consultation with the Secretariat may be in the form of a letter 
from the Agency describing the nature and purpose of the proposed 
advisory committee, including an explanation of why the functions of the 
proposed committee could not be performed by FEMA or by an existing 
committee. The letter should describe the Agency's plan to attain 
balanced membership on the proposed committee, as prescribed in 
paragraph (b)(2) of this section. If the Secretariat is satisfied that 
the establishment of the advisory committee will be in accord with the 
Act, the Agency shall certify in writing that creation of the advisory 
committee is in the public interest.
    (d) Unless otherwise specifically provided by statute or 
Presidential directive, advisory committees shall be utilized solely for 
advisory functions.



Sec. 12.7  Charter.

    (a) No advisory committee established under this part shall meet or 
take any action until an advisory committee charter has been filed with 
the Agency and the standing Committee or Committees of the Senate and 
House of Representatives having legislative jurisdiction over the FEMA 
component to which the advisory committee renders its advice.
    (b) The charter required by paragraph (a) of this section shall 
contain at least the following information:
    (1) The committee's official designations;
    (2) The committee's objectives and the scope of its activities;
    (3) The period of time necessary for the committee to carry out its 
purposes;
    (4) The FEMA component and official to whom the committee reports;
    (5) The FEMA component responsible for providing the necessary 
support for the committee;
    (6) A description of the duties for which the committee is 
responsible, and, if such duties are not solely advisory, specification 
of the authority for such functions;
    (7) The estimated annual operating cost in dollars and man years for 
the committee;
    (8) The estimated number in frequency of committee meetings;

[[Page 141]]

    (9) The committee's termination date, if less than 2 years from the 
date of committee's establishment; and
    (10) The date the charter is filed.
    (c) A copy of the charter required by paragraph (a) of this section 
shall also be furnished at the time of filing to the Library of 
Congress, Exchange and Gift Division, Federal Advisory Committee, 
Washington, DC 20540.
    (d) An amendment to the charter may be filed whenever there is a 
substantial change regarding matters stated in the original charter.
    (e) The requirements of this section shall also apply to committees 
utilized as advisory committees, even though not expressly established 
for that purpose.



Sec. 12.8  Meetings.

    (a) Advisory committees established under this part shall not hold 
any meetings, nor shall they render any advice, except at the call of, 
or with the advice and approval of, the Federal Officer or employee 
designated in accordance with Sec. 12.10 of this part, who shall also 
approve the agenda of such meetings. Timely notice of each meeting shall 
be provided in accordance with Sec. 12.11 of this part.
    (b) The agenda required by paragraph (a) of this section shall list 
the matters to be considered at the meeting. It shall also indicate when 
any part of the meeting will concern matters within the exceptions of 
the (Government) Sunshine Act, 5 U.S.C. 552b, and Sec. 12.9 of this 
part.
    (c) Subject to the provisions of Sec. 12.9 of this part, each 
advisory committee meeting shall be open to the public. Meetings which 
are completely or partly open to the public shall be held at reasonable 
times and at such a place that is reasonably accessible to the public. 
The size of the meeting room should be determined by such factors as the 
size of the committee, the number of members of the public who could 
reasonably be expected to attend, the number of persons who attended 
similar meetings in the past, and the resource facilities available.
    (d) Any member of the public shall be permitted to file a written 
statement with the committee related to any meeting that is completely 
or partly open to the public. Interested persons may also be permitted 
by the committee chairman to speak at such meetings in accordance with 
the procedures established by the committee.



Sec. 12.9  Closed meetings.

    (a) The requirements of Sec. 12.8 (c) and (d) of this part that 
meetings shall be open to the public and that the public shall be 
afforded an opportunity to participate in such meetings shall not apply 
to any advisory committee meeting which the President or the Director 
determines is concerned with matters listed in 5 U.S.C. 552b(c).
    (b) An advisory committee which seeks to have all or part of its 
meetings closed shall notify the Director before the scheduled date of 
the meeting. The notification shall be in writing and shall specify the 
reasons why any part of the meeting should be closed.
    (c) A request that the meeting be closed will be granted upon 
determination by the Director that the request is in accordance with the 
policies of this part. The Director's determination will be in writing 
and will state the specific reasons for closing all or part of the 
meeting. The determination will be made available to the public upon 
request.
    (d) The Director may delegate responsibility for making the 
determination required by paragraph (c) of this section. In any case 
where the determination to close the meeting is made by the Director's 
delegate, the determination will be reviewed by the General Counsel.
    (e) When a meeting is closed to the public, the advisory committee 
shall issue a report, at least annually, setting forth a summary of its 
activities in such meetings, addressing those related matters as would 
be informative to the public and consistent with the policy of 5 U.S.C. 
552b(c) and of this part. Notice of the availability of such annual 
reports shall be published in accordance with Sec. 12.11 of this part.



Sec. 12.10  Designated Federal officer or employee.

    (a) The Agency will designate an officer or employee of the Federal 
Government to chair or attend each meeting

[[Page 142]]

of each advisory committee established under this part.
    (b) No advisory committee shall conduct any meeting in the absence 
of the Federal employee or officer designated in accordance with 
paragraph (a) of this section.
    (c) The Federal officer or employee designated in accordance with 
paragraph (a) of this section is authorized, whenever he/she determines 
it to be in the public interest, to adjourn any committee meeting he/she 
is designated to chair or attend.



Sec. 12.11  Public notice.

    (a) The Agency's determination procedure described by Sec. 12.6 of 
this part for the creation of the advisory committee, and a description 
of the nature and purpose of the committee, should be published in the 
Federal Register at least 15 days prior to the filing of the committee's 
charter, unless the Secretariat, for good cause, authorizes a shorter 
period of time between publication of the notice and the filing of the 
charter.
    (b) Except when the Administrator GSA determines contrarily for 
reasons of national security, timely notice of each advisory committee 
meeting, whether open or closed to the public, shall be published in the 
Federal Register at least 15 days before the meeting date. Such notice 
should state the name of the advisory committee, the time, place and 
purpose of the meeting, and should include, where appropriate, a summary 
of the meeting agenda. Notice ordinarily should state that the meeting 
is open to the public or explain why the meeting or any portion of the 
meeting is to be closed. Notices shorter than the time prescribed by 
this paragraph may be provided in emergency situations, and the reasons 
for such emergency exceptions should be made part of the meeting notice. 
Due to the emergency nature of FEMA's many programs, it is contemplated 
that advisory committees may have to be established or meetings called 
on fairly short notice; however, every effort should be made to comply 
with the notice requirement, except in cases where delay may result in 
harm to individuals or damage to property. A request for a determination 
that notice of a meeting should not be published for reasons of national 
security shall be submitted to the Administrator GSA with a statement of 
reasons supporting such request at least 30 days before the meeting is 
scheduled. Where, however, there is a significant likelihood of severe 
damage to property or injury to individuals, the notice period may be 
reduced as necessary to minimize such damage or injury.
    (c) In addition to the notice required by paragraph (b) of this 
section, other forms of notice such as public releases and notices by 
mail should be used to inform the public of advisory committee meetings.
    (d) The Committee Management Officer, in coordination with the 
Office of Public Affairs, should, where practical, maintain lists of 
people and organizations interested in advisory committees and notify 
them of meetings by mail.
    (e) Notice of the availability of the annual reports required by 
Sec. 12.9(e) of this part will be published in the Federal Register no 
later than 60 days after their completion. Notice will include 
instructions which will allow the public access to the reports.



Sec. 12.12  Minutes.

    (a) Detailed minutes of each advisory committee meeting shall be 
kept and shall contain a record of the persons present, a complete 
summary of matters discussed and conclusions reached, and copies of all 
reports received, issued, or approved by the advisory committee. The 
record of persons present shall include the time and place of the 
meeting, a list of advisory committee members and staff and agency 
employees present at the meeting, a list of members of the public who 
presented oral or written statements, and an estimated number of members 
of the public who attended the meeting. The minutes shall describe the 
extent to which the meeting was open to the public and the extent of 
public participation. If it is impracticable to attach to the minutes of 
the meeting any report received, issued, or approved by the advisory 
committee, then the minutes will describe the report in sufficient 
detail to enable any person requesting the report to readily identify 
it.

[[Page 143]]

    (b) The accuracy of all minutes shall be certified by the 
chairperson of the advisory committee concerned, except in the case of a 
subcommittee or subgroup of the advisory committee, in which case the 
accuracy of the minutes shall be certified by the chairperson of the 
subcommittee or subgroup concerned and co-signed by the chairperson of 
the advisory committee.



Sec. 12.13  Transcripts of the advisory committee meetings and agency proceedings.

    Copies of transcripts of advisory committee meetings which have been 
prepared will be made available to any person at the actual cost of 
duplication, as prescribed in Sec. 12.17 of this part.



Sec. 12.14  Annual comprehensive review.

    (a) The Agency will conduct an annual comprehensive review of the 
activities and responsibilities of each advisory committee to determine:
    (1) Whether such committee is carrying out its purpose;
    (2) Whether, consistent with the provisions of applicable statutes, 
the responsibilities assigned to it should be revised;
    (3) Whether it should be merged with any other advisory committee or 
committees; or
    (4) Whether it should be abolished.
    (b) Pertinent factors to be considered in the comprehensive review 
required by paragraph (a) of this section includes the following:
    (1) The number of times the committee has met in the past year;
    (2) The number of reports or recommendations submitted by the 
committee;
    (3) An evaluation of the substance of the reports or recommendations 
submitted by the committee, regarding the Agency's programs or 
operations;
    (4) An evaluation of the utilization by the Agency of the 
committee's policy formation recommendations in: program planning, 
decision making, more effective achievement of program objectives, and 
more economical accomplishment of programs in general, with emphasis in 
such evaluation on the preceding 12 month period of the committee's 
work;
    (5) Whether information or recommendations could be obtained from 
sources within the Agency or from other advisory committees already in 
existence;
    (6) The degree of duplication of effort by the committee as compared 
with that of other parts of the Agency or other advisory committees; and
    (7) The estimated annual cost of the committee.
    (c) The annual review required by this section shall be conducted on 
a calendar year basis, and results of the review shall be included in 
the annual report to the Secretariat required by Sec. 12.16(b) of this 
part. The report shall contain a justification of each advisory 
committee which the Agency determines should be continued, making 
reference, as appropriate, to the factors specified in paragraph (b) of 
this section.
    (d) The review will examine all advisory committees, and committees 
found to be no longer needed shall be terminated. Advisory committees 
established by act of Congress or the President of the United States 
will be reviewed, and if appropriate, their termination will be 
recommended.



Sec. 12.15  Termination and renewal of advisory committees.

    (a) Each advisory committee shall terminate not later than the 
expiration of the 2 year period beginning on the date of its 
establishment, unless:
    (1) In the case of an advisory committee established by the 
President or an officer of the Federal Government, such advisory 
committee is renewed by the President or such officer by appropriate 
action prior to the end of such period; or
    (2) In the case of an advisory committee established by an Act of 
Congress, its duration is otherwise provided by law.
    (b) Any advisory committee which is renewed by the President or any 
officer of the Federal Government may be continued only for successive 
2-year periods by appropriate action taken by the President or such 
officer prior to the date on which the advisory committee would 
otherwise terminate.
    (c) Before it renews a non-statutory advisory committee in 
accordance with

[[Page 144]]

paragraph (a) or (b) of this section, the Agency will inform the 
Secretariat by letter, not more than 60 days nor less than 30 days 
before the committee expires, of the following:
    (1) Its determination that a renewal is necessary and is in the 
public interest;
    (2) The reasons for its determination;
    (3) The Agency's plan to attain balanced membership on the 
committee;
    (4) An explanation of why the committee's functions cannot be 
performed by the Agency or by an existing advisory committee.
    (d) After concurrence by the Secretariat, the Agency will certify in 
writing that the renewal of the advisory committee is in the public 
interest, and will publish a notice of the renewal in the Federal 
Register, and will file a new charter in accordance with Sec. 12.7 of 
this part.
    (e) Any advisory committee established by an Act of Congress shall 
file a charter in accordance with Sec. 12.7 of this part upon the 
expiration of each successive 2-year period following the date of 
enactment of the Act establishing such advisory committee.
    (f) No advisory committee required under this section to file a 
charter shall take any action, other than preparation and filing of such 
charter, between the date the new charter is required and the date on 
which such charter is actually filed.



Sec. 12.16  Reports about the advisory committees.

    (a) The Agency will furnish a report of the activities of the FEMA 
advisory committees annually to the Administrator, General Services 
Administration, in accordance with the Federal Property Management 
Regulations.
    (b) The Agency will furnish a report of the activities of FEMA 
advisory committees annually to the Secretariat.
    (c) The Agency will inform the Secretariat, by letter, of the 
termination of, or other significant changes with respect to, its 
advisory committees no later than 10 working days following the end of 
the month in which the committee is changed. If no changes are made 
during any given month the report of the Secretariat is not required.

[45 FR 64180, Sept. 29, 1980, as amended at 48 FR 44543, Sept. 29, 1983]



Sec. 12.17  Availability of documents and information on advisory committees.

    (a) Subject to the provisions of Secs. 12.12 and 12.13 of this part, 
the records, reports, transcripts, minutes, appendices, working papers, 
drafts, studies, agenda, or other documents which were made available to 
or prepared for by each advisory committee shall be available for public 
inspection and copying at a single location in the FEMA Headquarters, 
Washington, DC, in accordance with the regulations in part 5 of this 
chapter.
    (b) The Agency will maintain systematic information on the nature, 
functions, and operations of each of its advisory committees. A complete 
set of the charters of the Agency's advisory committees and copies of 
the annual reports required by Sec. 12.16 will be maintained for public 
inspection in the FEMA Headquarters.

[45 FR 64180, Sept. 29, 1980, as amended at 47 FR 13150, Mar. 29, 1982]



Sec. 12.18  Uniform pay guidelines.

    (a) Members. Subject to the provisions of this section, the pay of 
any member of an advisory committee shall be fixed at the daily 
equivalent rate of the FEMA general salary schedule unless the member is 
appointed as a consultant, to be compensated as provided in paragraph 
(c) of this section. In determining an appropriate rate of pay for the 
members of an advisory committee, consideration shall be given to the 
significance, scope and technical complexity of the matters with which 
the advisory committee is concerned, and the qualifications required of 
the members of the advisory committee. The pay of the members of an 
advisory committee shall not be fixed at a rate higher than the daily 
equivalent of the maximum rate for GS-15 unless the Director has 
determined that, under the factors set forth in this paragraph, a higher 
rate of pay is justified and necessary. Such a determination will be 
reviewed annually by the Director.

[[Page 145]]

    (b) Advisory committee staff. The pay of each member of the staff of 
an advisory committee shall be fixed at a rate of the general salary 
schedule in which the staff member's position would be appropriately 
compensated for in the FEMA evaluation system applicable to the 
position. Pay of the member of the staff of an advisory committee shall 
not be fixed at a rate higher than the daily equivalent of the maximum 
rate for a GS-15 unless the Director or his designee has determined 
that, under its evaluation system, the staff member's position would 
appropriately be placed in the General Salary Schedule at a grade higher 
than GS-15. Such a determination will be reviewed by the Director 
annually.
    (c) Consultants. The rate of pay of a consultant to an advisory 
committee shall not exceed the maximum rate of pay which FEMA may pay 
experts and consultants under 5 U.S.C. 3109. Consideration shall be 
given to the qualifications required of the consultant and the 
significance, scope, and technical complexity of the work in fixing the 
rate of pay for the consultants.
    (d) Voluntary services. The provisions of this section shall not 
prevent FEMA from accepting the voluntary services of a member of an 
advisory committee, or a member of the staff of an advisory committee, 
provided that FEMA has the authority to accept such services without 
compensation.
    (e) Reimbursable travel expenses. The members of an advisory 
committee and the staff thereof, while engaged in the performance of 
their duties away from their home or regular places of business, may be 
allowed travel expenses, including per diem and in lieu of subsistences, 
as authorized by 5 U.S.C. 5703 for persons employed intermittently in 
the government service.



Sec. 12.19  Fiscal and administrative responsibilities.

    (a) The Comptroller, FEMA, shall keep such records as will fully 
disclose the disposition of any funds which may be at the disposal of 
any FEMA advisory committee.
    (b) The FEMA Advisory Committee management officer or designee shall 
keep such records as are necessary to fully disclose the nature and 
extent of the activities of the FEMA advisory committees.
    (c) Support services shall be provided by FEMA for each advisory 
committee established by or reporting to it, unless the establishing 
authority provides otherwise. Where such advisory committee reports to 
more than one agency, only one agency or component thereof shall be 
responsible for support services at any one time, and the establishing 
authority shall designate the agency responsible for providing such 
services.

[45 FR 64180, Sept. 29, 1980, as amended at 48 FR 44543, Sept. 29, 1983]



PART 13--UNIFORM ADMINISTRATIVE REQUIREMENTS FOR GRANTS AND COOPERATIVE AGREEMENTS TO STATE AND LOCAL GOVERNMENTS--Table of Contents




                           Subpart A--General

Sec.
13.1  Purpose and scope of this part.
13.2  Scope of subpart.
13.3  Definitions.
13.4  Applicability.
13.5  Effect on other issuances.
13.6  Additions and exceptions.

                    Subpart B--Pre-Award Requirements

13.10  Forms for applying for grants.
13.11  State plans.
13.12  Special grant or subgrant conditions for ``high-risk'' grantees.

                   Subpart C--Post-Award Requirements

                        Financial Administration

13.20  Standards for financial management systems.
13.21  Payment.
13.22  Allowable costs.
13.23  Period of availability of funds.
13.24  Matching or cost sharing.
13.25  Program income.
13.26  Non-Federal audit.

                    Changes, Property, and Subawards

13.30  Changes.
13.31  Real property.
13.32  Equipment.
13.33  Supplies.
13.34  Copyrights.
13.35  Subawards to debarred and suspended parties.
13.36  Procurement.
13.37  Subgrants.

[[Page 146]]

               Reports, Records Retention, and Enforcement

13.40  Monitoring and reporting program performance.
13.41  Financial reporting.
13.42  Retention and access requirements for records.
13.43  Enforcement.
13.44  Termination for convenience.

                 Subpart D--After-the-Grant Requirements

13.50  Closeout.
13.51  Later disallowances and adjustments.
13.52  Collection of amounts due.

Subpart E--Entitlement [Reserved]

    Authority: Reorganization Plan No. 3of 1978; 43 FR 41943, 3 CFR, 
1978 Comp., p. 329; E.O. 12148, 44 FR 43239, 3 CFR, 1979 Comp., p. 412.

    Source: 53 FR 8078, 8087, Mar. 11, 1988, unless otherwise noted.

    Editorial Note: For additional information, see related documents 
published at 49 FR 24958, June 18, 1984; 52 FR 20178, May 29, 1987; and 
53 FR 8028, Mar. 11, 1988.



                           Subpart A--General



Sec. 13.1  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. 13.2  Scope of subpart.

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



Sec. 13.3  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 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

[[Page 147]]

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.
    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.

[[Page 148]]

    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.
    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. 13.4  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 section 13.6, or:

[[Page 149]]

    (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. 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. 13.4(a) (3) through (8) are subject to subpart E.



Sec. 13.5  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. 13.6.



Sec. 13.6  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.

[[Page 150]]

    (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. 13.10  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. 13.11  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.
    (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. 13.12  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

[[Page 151]]

    (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. 13.20  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.
    (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

[[Page 152]]

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. 13.21  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 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

[[Page 153]]

    (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. 13.43(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. 13.22  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.
Private nonprofit organization other than   OBM 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. 13.23  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. 13.24  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:

[[Page 154]]

    (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. 13.25, 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. 13.25(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.
    (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.

[[Page 155]]

    (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 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. 13.22, 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

[[Page 156]]

grantee. This requirement will also be imposed by the grantee on 
subgrantees.



Sec. 13.25  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. 13.34.)
    (f) Property. Proceeds from the sale of real property or equipment 
will be handled in accordance with the requirements of Secs. 13.31 and 
13.32.
    (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 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. 13.26  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

[[Page 157]]

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. 13.36 
shall be followed.

[53 FR 8079, 887, Mar. 11, 1988, as amended at 62 FR 45939, 45945, Aug. 
29, 1997]

                    Changes, Property, and Subawards



Sec. 13.30  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. 13.22) contain requirements for prior approval of certain types of 
costs. Except where waived, those requirements 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

[[Page 158]]

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. 13.36 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. 13.22) 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. 13.31  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.
    (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.

[[Page 159]]

    (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. 13.32  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. 13.25(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 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

[[Page 160]]

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. 13.32(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. 13.33  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. 13.34  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.



Sec. 13.35  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. 13.36  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,

[[Page 161]]

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 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

[[Page 162]]

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 section 13.36. 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 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

[[Page 163]]

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. 13.36(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;
    (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

[[Page 164]]

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, 
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. 13.22). 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.

[[Page 165]]

    (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 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.

[[Page 166]]

    (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.
    (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 8078, 8087, Mar. 11, 1988, as amended at 60 FR 19639, 19645, Apr. 
19, 1995]



Sec. 13.37  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;

[[Page 167]]

    (3) Ensure that a provision for compliance with Sec. 13.42 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 13.10;
    (2) Section 13.11;
    (3) The letter-of-credit procedures specified in Treasury 
Regulations at 31 CFR part 205, cited in Sec. 13.21; and
    (4) Section 13.50.

               Reports, Records Retention, and Enforcement



Sec. 13.40  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 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.

[[Page 168]]

    (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. 13.41  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.
    (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 paragraph (e)(2)(iii) of this section.
    (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

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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 
paragraph (b)(3) of this section.
    (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 Request for 
Reimbursement for Construction Programs. Federal agencies may, however, 
prescribe the Request for Advance or Reimbursement form, specified in 
paragraph (d) of this section, instead of this form.
    (ii) The frequency for submitting reimbursement requests is treated 
in paragraph (b)(3) of this section.
    (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 paragraphs (b) (3) and (4) 
of this section.
    (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 paragraph (d) of this section.
    (iii) The Federal agency may substitute the Financial Status Report 
specified in paragraph (b) of this section for the Outlay Report and 
Request for Reimbursement for Construction Programs.

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    (3) Accounting basis. The accounting basis for the Outlay Report and 
Request for Reimbursement for Construction Programs shall be governed by 
paragraph (b)(2) of this section.



Sec. 13.42  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. 13.36(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 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.

[[Page 171]]

    (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. 13.43  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,
    (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. 13.35).



Sec. 13.44  Termination for convenience.

    Except as provided in Sec. 13.43 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

[[Page 172]]

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. 13.43 or paragraph (a) of this section.



                 Subpart D--After-The-Grant Requirements



Sec. 13.50  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. 13.32(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. 13.51  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. 13.42;
    (d) Property management requirements in Secs. 13.31 and 13.32; and
    (e) Audit requirements in Sec. 13.26.



Sec. 13.52  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:
    (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--Entitlement [Reserved]



PART 14--ADMINISTRATION OF GRANTS: AUDITS OF STATE AND LOCAL GOVERNMENTS--Table of Contents




Sec.
14.1  Scope of part.
14.2  Non-Federal audits.

Appendix A to Part 14--OMB Circular A-128, ``Audits of State and Local 
          Governments''

    Authority: Reorganization Plan No. 3 of 1978; E.O. 12127, E.O. 
12148, 31 U.S.C. 7505.

    Source: 51 FR 24347, July 3, 1986, unless otherwise noted.

[[Page 173]]



Sec. 14.1  Scope of part.

    (a) This part contains standards for non-Federal audits of 
recipients of financial assistance from the Federal Emergency Management 
Agency (herein called recipients). This includes, without limitation, 
assistance under the Disaster Relief Act of 1974 as amended, and the 
Federal Civil Defense Act of 1950, as amended.
    (b) FEMA may not impose on recipients additional requirements 
concerning non-Federal audits. However, it may provide recipients with 
suggestions and assistance on this subject.



Sec. 14.2  Non-Federal audits.

    (a) Governmental recipients. Recipients that are governments shall 
comply with OMB Circular A-128 including any amendments published in the 
Federal Register by OMB. The Circular is codified verbatim as Appendix A 
to this part.
    (b) Grant or contract audits. Recipients of $25,000 or more, but 
less than $100,000 in Federal financial assistance that choose not to 
have an organization wide single audit must conduct individual grant or 
contract audits on all FEMA awards over $25,000.
    (c) Submission of audit reports. All copies of audit reports that a 
recipient is required under OMB Circular A-128 to submit to FEMA shall 
be addressed to the FEMA District Inspector General responsible for the 
FEMA Region in which the recipient is located. The FEMA Office of 
Inspector General will distribute copies as appropriate within the 
Agency. Recipients therefore are not required to send their audit 
reports to any FEMA officials other than the responsible District 
Inspector General.

 Appendix A to Part 14--OMB Circular A-128, ``Audits of State and Local 
                              Governments''

                    EXECUTIVE OFFICE OF THE PRESIDENT

                     Office of Management and Budget

                           CIRCULAR NO. A-128

                             April 12, 1985

To the Heads of Executive Departments and Establishments.
Subject: Audits of State and Local Governments.

    1. Purpose. This Circular is issued pursuant to the Single Audit Act 
of 1984, Public Law 98-502. It establishes audit requirements for State 
and local governments that receive Federal aid, and defines Federal 
responsibilities for implementing and monitoring those requirements.
    2. Supersession. The Circular supersedes Attachment P, ``Audit 
Requirements,'' of Circular A-102, ``Uniform requirements for grants to 
State and local governments.''
    3. Background. The Single Audit Act builds upon earlier efforts to 
improve audits of Federal aid programs. The Act requires State or local 
governments that receive $100,000 or more a year in Federal funds to 
have an audit made for that year. Section 7505 of the Act requires the 
Director of the Office of Management and Budget to prescribe policies, 
procedures and guidelines to implement the Act. It specifies that the 
Director shall designate ``cognizant'' Federal agencies, determine 
criteria for making appropriate charges to Federal programs for the cost 
of audits, and provide procedures to assure that small firms or firms 
owned and controlled by disadvantaged individuals have the opportunity 
to participate in contracts for single audits.
    4. Policy. The Single Audit Act requires the following:
    a. State or local governments that receive $100,000 or more a year 
in Federal financial assistance shall have an audit made in accordance 
with this Circular.
    b. State or local governments that receive between $25,000 and 
$100,000 a year shall have an audit made in accordance with this 
Circular, or in accordance with Federal laws and regulations governing 
the programs they participate in.
    c. State or local governments that receive less than $25,000 a year 
shall be exempt from compliance with the Act and other Federal audit 
requirements. These State and local governments shall be governed by 
audit requirements prescribed by State or local law or regulation.
    d. Nothing in this paragraph exempts State or local governments from 
maintaining records of Federal financial assistance or from providing 
access to such records to Federal agencies, as provided for in Federal 
law or in Circular A-102, ``Uniform requirements for grants to State or 
local governments.''
    5. Definitions. For the purposes of this Circular the following 
definitions from the Single Audit Act apply:
    a. Cognizant agency means the Federal agency assigned by the Office 
of Management and Budget to carry out the responsibilities described in 
paragraph 11 of this Circular.
    b. Federal financial assistance means assistance provided by a 
Federal agency in the

[[Page 174]]

form of grants, contracts, cooperative agreements, loans, loan 
guarantees, property, interest subsidies, insurance, or direct 
appropriations, but does not include direct Federal cash assistance to 
individuals. It includes awards received directly from Federal agencies, 
or indirectly through other units of State and local governments.
    c. Federal agency has the same meaning as the term agency in section 
551(1) of title 5, United States Code.
    d. Generally accepted accounting principles has the meaning 
specified in the generally accepted government auditing standards.
    e. Generally accepted government auditing standards means the 
Standards For Audit of Government Organizations, Programs, Activities, 
and Functions, developed by the Comptroller General, dated Febuary 27, 
1981.
    f. Independent auditor means:
    (1) A State or local government auditor who meets the independence 
standards specified in generally accepted government auditing standards; 
or
    (2) A public accountant who meets such independence standards.
    g. Internal controls means the plan of organization and methods and 
procedures adopted by management to ensure that:
    (1) Resource use is consistent with laws, regulations, and policies;
    (2) Resources are safeguarded against waste, loss, and misuse; and
    (3) Reliable data are obtained, maintained, and fairly disclosed in 
reports.
    h. Indian tribe means any Indian tribe, band, nations, or other 
organized group or community, including any Alaskan Native village or 
regional or village corporations (as defined in, or established under, 
the Alaskan Native Claims Settlement Act) that is recognized by the 
United States as eligible for the special programs and services provided 
by the United States to Indians because of their status as Indians.
    i. Local government means any unit of local government within a 
State, including a county, a borough, municipality, city, town, 
township, parish, local public authority, special district, school 
district, intrastate district, council of governments, and any other 
instrumentality of local government.
    j. Major Federal Assistance Program, as defined by Public Law 98-
502, is described in the Attachment to this Circular.
    k. Public accountants means those individuals who meet the 
qualification standards included in generally accepted government 
auditing standards for personnel performing government audits.
    l. State means any State of the United States, the District of 
Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, 
American Samoa, the Commonwealth of the Northern Mariana Islands, and 
the Trust Territory of the Pacific Islands, any instrumentality thereof, 
and any multi-State, regional, or interstate entity that has 
governmental functions and any Indian tribe.
    m. Subrecipient means any person or government department, agency, 
or establishment that receives Federal financial assistance to carry out 
a program through a State or local government, but does not include an 
individual that is a beneficiary of such a program. A subrecipient may 
also be a direct recipient of Federal financial assistance.
    6. Scope of audit. The Single Audit Act provides that:
    a. The audit shall be made by an independent auditor in accordance 
with generally accepted government auditing standards covering financial 
and compliance audits.
    b. The audit shall cover the entire operations of a State or local 
government or, at the option of that government, it may cover 
departments, agencies or establishments that received, expended, or 
otherwise administered Federal financial assistance during the year. 
However, if a State or local government receives $25,000 or more in 
General Revenue Sharing Funds in a fiscal year, it shall have an audit 
of its entire operations. A series of audits of individual departments, 
agencies, and establishments for the same fiscal year may be considered 
a single audit.
    c. Public hospitals and public colleges and universities may be 
excluded from State and local audits and the requirements of this 
Circular. However, if such entities are excluded, audits of these 
entities shall be made in accordance with statutory requirements and the 
provisions of Circular A-110, ``Uniform requirements for grants to 
universities, hospitals, and other nonprofit organizations.''
    d. The auditor shall determine whether:
    (1) The financial statements of the government, department, agency 
or establishment present fairly its financial position and the results 
of its financial operations in accordance with generally accepted 
accounting principles;
    (2) The organization has internal accounting and other control 
systems to provide reasonable assurance that it is managing Federal 
financial assistance programs in compliance with applicable laws and 
regulations; and
    (3) The organization has complied with laws and regulations that may 
have material effect on its financial statements and on each major 
Federal assistance program.
    7. Frequency of audit. Audits shall be made annually unless the 
State or local government has, by January 1, 1987, a constitutional or 
statutory requirement for less frequent audits. For those governments, 
the cognizant agency shall permit biennial audits, covering both years, 
if the government so requests. It shall also honor requests for biennial 
audits by governments that have an administrative policy calling for 
audits less

[[Page 175]]

frequent than annual, but only for fiscal years beginning before January 
1, 1987.
    8. Internal control and compliance reviews. The Single Audit Act 
requires that the independent auditor determine and report on whether 
the organization has internal control systems to provide reasonable 
assurance that it is managing Federal assistance programs in compliance 
with applicable laws and regulations.
    a. Internal control review. In order to provide this assurance the 
auditor must make a study and evaluation of internal control systems 
used in administering Federal assistance programs. The study and 
evaluation must be made whether or not the auditor intends to place 
reliance on such systems. As part of this review, the auditor shall:
    (1) Test whether these internal control systems are functioning in 
accordance with prescribed procedures.
    (2) Examine the recipient's system for monitoring subrecipients and 
obtaining and acting on subrecipient audit reports.
    b. Compliance review. The law also requires the auditor to determine 
whether the organization has complied with laws and regulations that may 
have a material effect on each major Federal assistance program.
    (1) In order to determine which major programs are to be tested for 
compliance, State and local governments shall identify in their accounts 
all Federal funds received and expended and the programs under which 
they were received. This shall include funds received directly from 
Federal agencies and through other State and local governments.
    (2) The review must include the selection and testing of a 
representative number of charges from each major Federal assistance 
program. The selection and testing of transactions shall be based on the 
auditor's professional judgment considering such factors as the amount 
of expeditures for the program and the individual awards; the newness of 
the program or changes in its conditions; prior experience with the 
program, particularly as revealed in audits and other evaluations (e.g., 
inspections, program reviews); the extent to which the program is 
carried out through subrecipients; the extent to which the program 
contracts for goods or services; the level to which the program is 
already subject to program reviews or other forms of independent 
oversight; the adequacy of the controls for ensuring compliance; the 
expectation of adherence or lack of adherence to the applicable laws and 
regulations; and the potential impact of adverse findings.
    (a) In making the test of transactions, the auditor shall determine 
whether:

--The amounts reported as expenditures were for allowable services, and
--The records show that those who received services or benefits were 
eligible to receive them.

    (b) In addition to transaction testing, the auditor shall determine 
whether:

--Matching requirements, levels of effort and earmarking limitations 
were met,
--Federal financial reports and claims for advances and reimbursements 
contain information that is supported by the books and records from 
which the basic financial statements have been prepared, and
--Amounts claimed or used for matching were determined in accordance 
with OMB Circular A-87, ``Cost principles for State and local 
governments,'' and Attachment F of Circular A-102, ``Uniform 
requirements for grants to State and local governments.''

    (c) The principal compliance requirements of the largest Federal aid 
programs may be ascertained by referring to the Compliance Supplement 
for Single Audits of State and Local Governments, issued by OMB and 
available from the Government Printing Office. For those programs not 
covered in the Compliance Supplement, the auditor may ascertain 
compliance requirements by researching the statutes, regulations, and 
agreements governing individual programs.
    (3) Transactions related to other Federal assistance programs that 
are selected in connection with examinations of financial statements and 
evaluations of internal controls shall be tested for compliance with 
Federal laws and regulations that apply to such transactions.
    9. Subrecipients. State or local governments that receive Federal 
financial assistance and provide $25,000 or more of it in a fiscal year 
to a subrecipient shall:
    a. Determine whether State or local subrecipients have met the audit 
requirements of this Circular and whether subrecipients covered by 
Circular A-110, ``Uniform requirements for grants to universities, 
hospitals, and other nonprofit organizations,'' have met that 
requirement;
    b. Determine whether the subrecipient spent Federal assistance funds 
provided in accordance with applicable laws and regulations. This may be 
accomplished by reviewing an audit of the subrecipient made in 
accordance with this Circular, Circular A-110, or through other means 
(e.g., program reviews) if the subrecipient has not yet had such an 
audit;
    c. Ensure that appropriate corrective action is taken within six 
months after receipt of the audit report in instances of noncompliance 
with Federal laws and regulations;
    d. Consider whether subrecipient audits necessitate adjustment of 
the recipient's own records; and

[[Page 176]]

    e. Require each subrecipient to permit independent auditors to have 
access to the records and financial statements as necessary to comply 
with this Circular.
    10. Relation to other audit requirements. The Single Audit Act 
provides that an audit made in accordance with this Circular shall be in 
lieu of any financial or financial compliance audit required under 
individual Federal assistance programs. To the extent that a single 
audit provides Federal agencies with information and assurances they 
need to carry out their overall responsibilities, they shall rely upon 
and use such information. However, a Federal agency shall make any 
additional audits which are necessary to carry out its responsibilities 
under Federal law and regulation. Any additional Federal audit effort 
shall be planned and carried out in such a way as to avoid duplication.
    a. The provisions of this Circular do not limit the authority of 
Federal agencies to make, or contract for audits and evaluations of 
Federal financial assistance programs, nor do they limit the authority 
of any Federal agency Inspector General or other Federal audit official.
    b. The provisions of this Circular do not authorize any State or 
local government or subrecipient thereof to constrain Federal agencies, 
in any manner, from carrying out additional audits.
    c. A Federal agency that makes or contracts for audits in addition 
to the audits made by recipients pursuant to this Circular shall, 
consistent with other applicable laws and regulations, arrange for 
funding the cost of such additional audits. Such additional audits 
include economy and efficiency audits, program results audits, and 
program evaluations.
    11. Cognizant agency responsibilities. The Single Audit Act provides 
for cognizant Federal agencies to oversee the implementation of this 
Circular.
    a. The Office of Management and Budget will assign cognizant 
agencies for States and their subdivisions and larger local governments 
and their subdivisions. Other Federal agencies may participate with an 
assigned cognizant agency, in order to fulfill the cognizance 
responsibilities. Smaller governments not assigned a cognizant agency 
will be under the general oversight of the Federal agency that provides 
them the most funds whether directly or indirectly.
    b. A cognizant agency shall have the following responsibilities:
    (1) Ensure that audits are made and reports are received in a timely 
manner and in accordance with the requirements of this Circular.
    (2) Provide technical advice and liaison to State and local 
governments and independent auditors.
    (3) Obtain or make quality control reviews of selected audits made 
by non-Federal audit organizations, and provide the results, when 
appropriate, to other interested organizations.
    (4) Promptly inform other affected Federal agencies and appropriate 
Federal law enforcement officials of any reported illegal acts or 
irregularities. They should also inform State or local law enforcement 
and prosecuting authorities, if not advised by the recipient, of any 
violation of law within their jurisdiction.
    (5) Advise the recipient of audits that have been found not to have 
met the requirements set forth in this Circular. In such instances, the 
recipient will be expected to work with the auditor to take corrective 
action. If corrective action is not taken, the cognizant agency shall 
notify the recipient and Federal awarding agencies of the facts and make 
recommendations for followup action. Major inadequacies or repetitive 
substandard performance of independent auditors shall be referred to 
appropriate professional bodies for disciplinary action.
    (6) Coordinate, to the extent practicable, audits made by or for 
Federal agencies that are in addition to the audits made pursuant to 
this Circular; so that the additional audits build upon such audits.
    (7) Oversee the resolution of audit findings that affect the 
programs of more than one agency.
    12. Illegal acts or irregularities. If the auditor becomes aware of 
illegal acts or other irregularities, prompt notice shall be given to 
recipient management officials above the level of involvement. (See also 
paragraph 13(a)(3) of this appendix for the auditor's reporting 
responsibilities.) The recipient, in turn, shall promptly notify the 
cognizant agency of the illegal acts or irregularities and of proposed 
and actual actions, if any. Illegal acts and irregularities include such 
matters as conflicts of interest, falsification of records or reports, 
and misappropriations of funds or other assets.
    13. Audit Reports. Audit reports must be prepared at the completion 
of the audit. Reports serve many needs of State and local governments as 
well as meeting the requirements of the Single Audit Act.
    a. The audit report shall state that the audit was made in 
accordance with the provisions of this Circular. The report shall be 
made up of at least:
    (1) The auditor's report on financial statements and on a schedule 
of Federal assistance; the financial statements; and a schedule of 
Federal assistance, showing the total expenditures for each Federal 
assistance program as identified in the Catalog of Federal Domestic 
Assistance. Federal programs or grants that have not been assigned a 
catalog number shall be identified under the caption ``other Federal 
assistance.''
    (2) The auditor's report on the study and evaluation of internal 
control systems must

[[Page 177]]

identify the organization's significant internal accounting controls, 
and those controls designed to provide reasonable assurance that Federal 
programs are being managed in compliance with laws and regulations. It 
must also identify the controls that were evaluated, the controls that 
were not evaluated, and the material weaknesses identified as a result 
of the evaluation.
    (3) The auditor's report on compliance containing:

--A statement of positive assurance with respect to those items tested 
for compliance, including compliance with law and regulations pertaining 
to financial reports and claims for advances and reimbursements;
--Negative assurance on those items not tested;
--A summary of all instances of noncompliance; and
--An identification of total amounts questioned, if any, for each 
Federal assistance award, as a result of noncompliance.

    b. The three parts of the audit report may be bound into a single 
report, or presented at the same time as separate documents.
    c. All fraud abuse, or illegal acts or indications of such acts, 
including all questioned costs found as the result of these acts that 
auditors become aware of, should normally be covered in a separate 
written report submitted in accordance with paragraph 13f of this 
appendix.
    d. In addition to the audit report, the recipient shall provide 
comments on the findings and recommendations in the report, including a 
plan for corrective action taken or planned and comments on the status 
of corrective action taken on prior findings. If corrective action is 
not necessary, a statement describing the reason it is not should 
accompany the audit report.
    e. The reports shall be made available by the State or local 
government for public inspection within 30 days after the completion of 
the audit.
    f. In accordance with generally accepted government audit standards, 
reports shall be submitted by the auditor to the organization audited 
and to those requiring or arranging for the audit. In addition, the 
recipient shall submit copies of the reports to each Federal department 
or agency that provided Federal assistance funds to the recipient. 
Subrecipients shall submit copies to recipients that provided them 
Federal assistance funds. The reports shall be sent within 30 days after 
the completion of the audit, but no later than one year after the end of 
the audit period unless a longer period is agreed to with the cognizant 
agency.
    g. Recipients of more than $100,000 in Federal funds shall submit 
one copy of the audit report within 30 days after issuance to a central 
clearinghouse to be designated by the Office of Management and Budget. 
The clearinghouse will keep completed audits on file and follow up with 
State and local governments that have not submitted required audit 
reports.
    h. Recipients shall keep audit reports on file for three years from 
their issuance.
    14. Audit Resolution. As provided in paragraph 11, the cognizant 
agency shall be responsible for monitoring the resolution of audit 
findings that affect the programs of more than one Federal agency. 
Resolution of findings that relate to the programs of a single Federal 
agency will be the responsibility of the recipient and that agency. 
Alternate arrangements may be made on a case-by-case basis by agreement 
among the agencies concerned.
    Resolution shall be made within six months after receipt of the 
report by the Federal departments and agencies. Corrective action should 
proceed as rapidly as possible.
    15. Audit workpapers and reports. Workpapers and reports shall be 
retained for a minimum of three years from the date of the audit report, 
unless the auditor is notified in writing by the cognizant agency to 
extend the retention period. Audit workpapers shall be made available 
upon request to the cognizant agency or its designee or the General 
Accounting Office, at the completion of the audit.
    16. Audit Costs. The cost of audits made in accordance with the 
provisions of this Circular are allowable charges to Federal assistance 
programs.
    a. The charges may be considered a direct cost or an allocated 
indirect cost, determined in accordance with the provision of Circular 
A-87, ``Cost principles for State and local governments.''
    b. Generally, the percentage of costs charged to Federal assistance 
programs for a single audit shall not exceed the percentage that Federal 
funds expended represent of total funds expended by the recipient during 
the fiscal year. The percentage may be exceeded, however, if appropriate 
documentation demonstrates higher actual cost.
    17. Sanctions. The Single Audit Act provides that no cost may be 
charged to Federal assistance programs for audits required by the Act 
that are not made in accordance with this Circular. In cases of 
continued inability or unwillingness to have a proper audit, Federal 
agencies must consider other appropriate sanctions including:

--Withholding a percentage of assistance payments until the audit is 
completed satisfactorily,
--Withholding or disallowing overhead costs, and
--Suspending the Federal assistance agreement until the audit is made.

    18. Auditor Selection. In arranging for audit services State and 
local governments shall

[[Page 178]]

follow the procurement standards prescribed by Attachment O of Circular 
A-102, ``Uniform requirements for grants to State and local 
governments.'' The standards provide that while recipients are 
encouraged to enter into intergovernmental agreements for audit and 
other services, analysis should be made to determine whether it would be 
more economical to purchase the services from private firms. In 
instances where use of such intergovernmental agreements are required by 
State statutes (e.g., audit services) these statutes will take 
precedence.
    19. Small and Minority Audit Firms. Small audit firms and audit 
firms owned and controlled by socially and economically disadvantaged 
individuals shall have the maximum practicable opportunity to 
participate in contracts awarded to fulfill the requirements of this 
Circular. Recipients of Federal assistance shall take the following 
steps to further this goal:
    a. Assure that small audit firms and audit firms owned and 
controlled by socially and economically disadvantaged individuals are 
used to the fullest extent practicable.
    b. Make information on forthcoming opportunities available and 
arrange timeframes for the audit so as to encourage and facilitate 
participation by small audit firms and audit firms owned and controlled 
by socially and economically disadvantaged individuals.
    c. Consider in the contract process whether firms competing for 
larger audits intend to subcontract with small audit firms and audit 
firms owned and controlled by socially and economically disadvantaged 
individuals.
    d. Encourage contracting with small audit firms or audit firms owned 
and controlled by socially and economically disadvantaged individuals 
which have traditionally audited government programs and, in such cases 
where this is not possible, assure that these firms are given 
consideration for audit subcontracting opportunities.
    e. Encourage contracting with consortiums of small audit firms as 
described in paragraph (a) of section 19 of this appendix when a 
contract is too large for an individual small audit firm or audit firm 
owned and controlled by socially and economically disadvantaged 
individuals.
    f. Use the services and assistance, as appropriate, of such 
organizations as the Small Business Administration in the solicitation 
and utilization of small audit firms or audit firms owned and controlled 
by socially and economically disadvantaged individuals.
    20. Reporting. Each Federal agency will report to the Director of 
OMB on or before March 1, 1987, and annually thereafter on the 
effectiveness of State and local governments in carrying out the 
provisions of this Circular. The report must identify each State or 
local government or Indian tribe that, in the opinion of the agency, is 
failing to comply with the Circular.
    21. Regulations. Each Federal agency shall include the provisions of 
this Circular in its regulations implementing the Single Audit Act.
    22. Effective date. This Circular is effective upon publication and 
shall apply to fiscal years of State and local governments that begin 
after December 31, 1984. Earlier implementation is encouraged. However, 
until it is implemented, the audit provisions of Attachment P to 
Circular A-102 shall continue to be observed.
    23. Inquiries. All questions or inquiries should be addressed to 
Financial Management Division, Office of Management and Budget, 
telephone number 202/395-3993.
    24. Sunset review date. This Circular shall have an independent 
policy review to ascertain its effectiveness three years from the date 
of issuance.

                                                      David A. Stockman,
                                                               Director.

                       Attachment--Circular A-128

      Definition of Major Program as Provided in Public Law 98-502

    ``Major Federal Assistance Program,'' for State and local 
governments having Federal assistance expenditures between $100,000 and 
$100,000,000, means any program for which Federal expenditures during 
the applicable year exceed the larger of $300,000, or 3 percent of such 
total expenditures.
    Where total expenditures of Federal assistance exceed $100,000,000, 
the following criteria apply:

------------------------------------------------------------------------
 Total expenditures of Federal financial assistance      Major Federal
                  for all programs                    assistance program
-----------------------------------------------------  means any program
            More than                But less than       that exceeds
------------------------------------------------------------------------
$100 million....................  $1 billion........  $3 million.
$1 billion......................  $2 billion........  $4 million.
$2 billion......................  $3 billion........  $7 million.
$3 billion......................  $4 billion........  $10 million.
$4 billion......................  $5 billion........  $13 million.
$5 billion......................  $6 billion........  $16 million.
$6 billion......................  $7 billion........  $19 million.
Over $7 billion.................  ..................  $20 million.
------------------------------------------------------------------------



PART 15--CONDUCT AT THE MT. WEATHER EMERGENCY ASSISTANCE CENTER AND AT THE NATIONAL EMERGENCY TRAINING CENTER--Table of Contents




Sec.
15.1  Applicability.
15.2  Definitions.
15.3  Access to Mt. Weather.
15.4  Inspection.

[[Page 179]]

15.5  Preservation of property.
15.6  Compliance with signs and directions.
15.7  Disturbances.
15.8  Gambling.
15.9  Alcoholic beverages and narcotics.
15.10  Soliciting, vending, and debt collection.
15.11  Distribution of handbills.
15.12  Photographs and other depictions.
15.13  Dogs and other animals.
15.14  Vehicular and pedestrian traffic.
15.15  Weapons and explosives.
15.16  Penalties.
15.17  Other laws.

    Authority: Reorganization Plan No. 3 of 1978, 43 FR 41943, 3 CFR, 
1978 Comp., p. 329; E.O. 12127 of Mar. 31, 1979, 44 FR 19367, 3 CFR, 
1979 Comp., p. 376; E.O. 12148, 44 FR 13239, 3 CFR, 1979 Comp., p. 412; 
Federal Fire Prevention and Control Act of 1974, 15 U.S.C. 2201 et seq.; 
delegation of authority from the Administrator of General Services, 
dated July 18, 1979; Pub.L. 80-566, approved June 1, 1948, 40 U.S.C. 
318-318d; and the Federal Property and Administrative Services Act of 
1949, 40 U.S.C. 271 et seq.

    Source: 64 FR 31137, June 10, 1999, unless otherwise noted.



Sec. 15.1  Applicability.

    The rules and regulations in this part apply to all persons 
entering, while on, or leaving all the property known as the Mt. Weather 
Emergency Assistance Center (Mt. Weather) located at 19844 Blue Ridge 
Mountain Road, Bluemont, Virginia 20135, and all the property known as 
the National Emergency Training Center (NETC), located on 16825 South 
Seton Avenue in Emmitsburg, Maryland, which the Federal Emergency 
Management Agency (FEMA) owns, operates and controls.



Sec. 15.2  Definitions.

    Terms used in part 15 have these meanings:
    Administrator means the Administrator, United States Fire 
Administration, FEMA.
    Director means the Director of the Federal Emergency Management 
Agency.
    FEMA means the Federal Emergency Management Agency.
    Mt. Weather means the Mt. Weather Emergency Assistance Center, 
Bluemont, VA.
    NETC means the National Emergency Training Center, Emmitsburg, MD.
    Senior Resident Manager means the Senior Resident Manager, Mt. 
Weather Emergency Assistance Center.
    We means the Federal Emergency Management Agency or FEMA.



Sec. 15.3  Access to Mt. Weather.

    Mt. Weather contains classified material and areas that we must 
protect in the interest of national security. The facility is a 
restricted area. We deny access to Mt. Weather to the general public and 
limit access to those persons having official business related to the 
missions and operations of Mt. Weather. The Director or the Senior 
Resident Manager must approve all persons and vehicles entering Mt. 
Weather. All persons must register with the Mt. Weather Police/Security 
Force and must receive a Mt. Weather identification badge and vehicle 
parking decal or permit to enter or remain on the premises. No person 
will enter or remain on Mt. Weather premises unless he or she has 
received permission from the Director or the Senior Resident Manager and 
has complied with these procedures.



Sec. 15.4  Inspection.

    (a) In general. All vehicles, packages, handbags, briefcases, and 
other containers being brought into, while on or being removed from Mt. 
Weather or the NETC are subject to inspection by the Police/Security 
Force and other authorized officials. A full search of a vehicle or 
person may accompany an arrest.
    (b) Inspection at Mt. Weather. We authorize inspection at Mt. 
Weather to prevent the possession and use of items prohibited by these 
rules and regulations or by other applicable laws, to prevent theft of 
property and to prevent the wrongful obtaining of defense information 
under 18 U.S.C. 793. If individuals object to such inspections they must 
tell the officer on duty at the entrance gate before entering Mt. 
Weather. The Police/Security Force and other authorized officials must 
not authorize or allow individuals who refuse to permit an inspection of 
their vehicle or possessions to enter the premises of Mt. Weather.

[[Page 180]]



Sec. 15.5  Preservation of property.

    At both Mt. Weather and NETC we prohibit:
    (a) The improper disposal of rubbish;
    (b) Willful destruction of or damage to property;
    (c) Theft of property;
    (d) Creation of any hazard on the property to persons or things;
    (e) Throwing articles of any kind from or at a building;
    (f) Climbing upon a fence; or
    (g) Climbing upon the roof or any part of a building.



Sec. 15.6  Compliance with signs and directions.

    Persons at Mt. Weather and the NETC must comply at all times with 
official signs that prohibit, regulate, or direct, and with the 
directions of the Police/Security Force and other authorized officials.



Sec. 15.7  Disturbances.

    At both Mt. Weather and NETC we prohibit any unwarranted loitering, 
disorderly conduct, or other conduct at Mt. Weather and NETC that:
    (a) Creates loud or unusual noise or a nuisance;
    (b) Unreasonably obstructs the usual use of classrooms, dormitory 
rooms, entrances, foyers, lobbies, corridors, offices, elevators, 
stairways, roadways or parking lots;
    (c) Otherwise impedes or disrupts the performance of official duties 
by government employees or government contractors;
    (d) Interferes with the delivery of educational or other programs; 
or
    (e) Prevents persons from obtaining in a timely manner the 
administrative services provided at both facilities.



Sec. 15.8  Gambling.

    We prohibit participating in games for money or other personal 
property, including the operation of gambling devices, the conduct of a 
lottery or pool, or the sale or purchase of numbers tickets at both 
facilities.



Sec. 15.9  Alcoholic beverages and narcotics.

    At both Mt. Weather and the NETC we prohibit:
    (a) Operating a motor vehicle by any person under the influence of 
alcoholic beverages, narcotic drugs, hallucinogens, marijuana, 
barbiturates or amphetamines as defined in Title 21 of the Annotated 
Code of Maryland, Transportation, sec. 21-902 or in Title 18.2, ch. 7, 
Art. 2 of the Code of Virginia, secs. 18.2-266 and 18.2-266.1, as 
applicable;
    (b) Entering upon or while on either property being under the 
influence of or using or possessing any narcotic drug, marijuana, 
hallucinogen, barbiturate or amphetamine. This prohibition does not 
apply in cases where a licensed physician has prescribed the drug for 
the person;
    (c) Entering upon either property or being on either property under 
the influence of alcoholic beverages;
    (d) Bringing alcoholic beverages, narcotic drugs, hallucinogens, 
marijuana, barbiturates or amphetamines onto the premises unless the 
Director, the Senior Resident Manager, or the Administrator or designee 
for the NETC authorizes it in writing; and
    (e) Use of alcoholic beverages on the property except:
    (1) In the Balloon Shed Lounge at Mt. Weather and in other locations 
that the Director or the Senior Resident Manager authorizes in writing; 
and
    (2) In the Student Center at the NETC and other locations that the 
Director or the Administrator, or designee, authorizes in writing.



Sec. 15.10  Soliciting, vending, and debt collection.

    (a) We prohibit soliciting alms and contributions, commercial or 
political soliciting and vending of all kinds, displaying or 
distributing commercial advertising, or collecting private debts unless 
the Director for either facility or the Senior Resident Manager approve 
the activities in writing and in advance.
    (b) The prohibitions of this section do not apply to:
    (1) National or local drives for funds for welfare, health, or other 
purposes

[[Page 181]]

as authorized by 5 CFR part 950, Solicitation of Federal Civilian and 
Uniformed Service Personnel for Contributions to Private Voluntary 
Organizations. The Director, or the Senior Resident Manager, or the 
Administrator for the NETC or designee, must approve all such national 
or local drives before they are conducted on either premises;
    (2) Authorized concessions;
    (3) Personal notices posted by employees on authorized bulletin 
boards; and
    (4) Solicitation of labor organization membership or dues authorized 
by occupant agencies under the Civil Service Reform Act of 1978, 5 
U.S.C. 7101 et seq.



Sec. 15.11  Distribution of handbills.

    We prohibit the distribution of materials such as pamphlets, 
handbills or flyers, and the displaying of placards or posting of 
materials on bulletin boards or elsewhere at Mt. Weather and the NETC 
unless the Director, the Senior Resident Manager, or the Administrator 
for the NETC or designee, approves such distribution or display, or when 
such distribution or display is conducted as part of authorized 
government activities.



Sec. 15.12  Photographs and other depictions.

    (a) Photographs and other depictions at Mt. Weather. We prohibit 
taking photographs and making notes, sketches, or diagrams of buildings, 
grounds or other features of Mt. Weather, or the possession of a camera 
while at Mt. Weather except when the Director or the Senior Resident 
Manager approves in advance.
    (b) Photographs and other depictions at the NETC. (1) Photographs 
may be taken inside classroom or office areas of the NETC only with the 
consent of the occupants. Except where security regulations apply or a 
Federal court order or rule prohibits it, photographs may be taken in 
entrances, lobbies, foyers, corridors, or auditoriums when used for 
public meetings.
    (2) Subject to the foregoing prohibitions, photographs for 
advertising and commercial purposes may be taken only with written 
permission of the Assistant Administrator, Management Operations and 
Student Support, United States Fire Administration, Federal Emergency 
Management Agency, Emmitsburg, MD 21727, (telephone) (301) 447-1223, 
(facsimile) (301) 447-1052, or other authorized official where 
photographs are to be taken.



Sec. 15.13  Dogs and other animals.

    Dogs and other animals, except seeing-eye dogs, must not be brought 
onto Mt. Weather grounds or into the buildings at NETC for other than 
official purposes.



Sec. 15.14  Vehicular and pedestrian traffic.

    (a) Drivers of all vehicles entering or while at Mt. Weather or the 
NETC must drive carefully and safely at all times and must obey the 
signals and directions of the Police/Security Force or other authorized 
officials and all posted traffic signs;
    (b) Drivers must comply with NETC parking requirements and vehicle 
registration requirements;
    (c) At both Mt. Weather and the NETC we prohibit:
    (1) Blocking entrances, driveways, walks, loading platforms, or fire 
hydrants on the property; and
    (2) Parking without authority, parking in unauthorized locations or 
in locations reserved for other persons, or parking contrary to the 
direction of posted signs.
    (3) Where warning signs are posted vehicles parked in violation may 
be removed at the owners' risk and expense.
    (d) The Director or the Senior Resident Manager or the Administrator 
for the NETC or designee may issue and post specific supplemental 
traffic directives if needed. When issued and posted supplemental 
traffic directives will have the same force and effect as if they were 
in these rules. Proof that a parked motor vehicle violated these rules 
or directives may be taken as prima facie evidence that the registered 
owner was responsible for the violation.



Sec. 15.15  Weapons and explosives.

    No person entering or while at Mt. Weather or the NETC will carry or 
possess firearms, other dangerous or deadly weapons, explosives or items 
intended to be used or that could reasonably be used to fabricate an 
explosive

[[Page 182]]

or incendiary device, either openly or concealed, except:
    (a) For official purposes if the Director or the Senior Resident 
Manager or the Administrator for the NETC or designee approves; and
    (b) In accordance with FEMA policy governing the possession of 
firearms.



Sec. 15.16  Penalties.

    (a) Misconduct. (1) Whoever is found guilty of violating any of 
these rules and regulations is subject to a fine of not more than $50 or 
imprisonment for not more than 30 days, or both. (See 40 U.S.C. 318c.)
    (2) We will process any misconduct at NETC according to FEMA/NETC 
policy or instructions.
    (b) Parking violations. We may tow at the owner's expense any 
vehicles parked in violation of State law, FEMA, Mt. Weather, or NETC 
instructions.



Sec. 15.17  Other laws.

    Nothing in the rules and regulations in this part will be construed 
to abolish any other Federal laws or any State and local laws and 
regulations applicable to Mt. Weather or NETC premises. The rules and 
regulations in this part supplement penal provisions of Title 18, United 
States Code, relating to Crimes and Criminal Procedure, which apply 
without regard to the place of the offense and to those penal provisions 
that apply in areas under the special maritime and territorial 
jurisdiction of the United States, as defined in 18 U.S.C. 7. They 
supersede provisions of State law, however, that Federal law makes 
criminal offenses under the Assimilated Crimes Act (18 U.S.C. 13) to the 
extent that State laws conflict with these regulations. State and local 
criminal laws apply as such only to the extent that the State reserved 
such authority to itself by the State consent or cession statute or that 
a Federal statute vests such authority in the State.



PART 16--ENFORCEMENT OF NONDISCRIMINATION ON THE BASIS OF HANDICAP IN PROGRAMS OR ACTIVITIES CONDUCTED BY THE FEDERAL EMERGENCY MANAGEMENT AGENCY--Table of Contents




Sec.
16.101  Purpose.
16.102  Application.
16.103  Definitions.
16.104-16.109  [Reserved]
16.110  Self-evaluation.
16.111  Notice.
16.112-16.129  [Reserved]
16.130  General prohibitions against discrimination.
16.131-16.139  [Reserved]
16.140  Employment.
16.141-16.148  [Reserved]
16.149  Program accessibility: Discrimination prohibited.
16.150  Program accessibility: Existing facilities.
16.151  Program accessibility: New construction and alterations.
16.152-16.159  [Reserved]
16.160  Communications.
16.161-16.169  [Reserved]
16.170  Compliance procedures.
16.171-16.999  [Reserved]

    Authority: 29 U.S.C. 794.

    Source: 53 FR 25885, July 8, 1988, unless otherwise noted.



Sec. 16.101  Purpose.

    The purpose of this regulation is to effectuate section 119 of the 
Rehabilitation, Comprehensive Services, and Developmental Disabilities 
Amendments of 1978, which amended section 504 of the Rehabilitation Act 
of 1973 to prohibit discrimination on the basis of handicap in programs 
or activities conducted by Executive agencies or the United States 
Postal Service.



Sec. 16.102  Application.

    This regulation (Secs. 16.101 through 16.170) applies to all 
programs or activities conducted by the agency, except for programs or 
activities conducted outside the United States that do not involve 
individuals with handicaps in the United States.

[[Page 183]]



Sec. 16.103  Definitions.

    For purposes of this regulation, the term--
    Assistant Attorney General means the Assistant Attorney General, 
Civil Rights Division, United States Department of Justice.
    Auxiliary aids means services or devices that enable persons with 
impaired sensory, manual, or speaking skills to have an equal 
opportunity to participate in, and enjoy the benefits of, programs or 
activities conducted by the agency. For example, auxiliary aids useful 
for persons with impaired vision include readers, Brailled materials, 
audio recordings, and other similar services and devices. Auxiliary aids 
useful for persons with impaired hearing include telephone handset 
amplifiers, telephones compatible with hearing aids, telecommunication 
devices for deaf persons (TDD's), interpreters, notetakers, written 
materials, and other similar services and devices.
    Complete complaint means a written statement that contains the 
complainant's name and address and describes the agency's alleged 
discriminatory action in sufficient detail to inform the agency of the 
nature and date of the alleged violation of section 504. It shall be 
signed by the complainant or by someone authorized to do so on his or 
her behalf. Complaints filed on behalf of classes or third parties shall 
describe or identify (by name, if possible) the alleged victims of 
discrimination.
    Facility means all or any portion of buildings, structures, 
equipment, roads, walks, parking lots, rolling stock or other 
conveyances, or other real or personal property.
    Historic preservation programs means programs conducted by the 
agency that have preservation of historic properties as a primary 
purpose.
    Historic properties means those properties that are listed or 
eligible for listing in the National Register of Historic Places or 
properties designated as historic under a statute of the appropriate 
State or local government body.
    Individual with handicaps means any person who has a physical or 
mental impairment that substantially limits one or more major life 
activities, has a record of such an impairment, or is regarded as having 
such an impairment.
    As used in this definition, the phrase:
    (1) Physical or mental impairment includes--
    (i) Any physiological disorder or condition, cosmetic disfigurement, 
or anatomical loss affecting one or more of the following body systems: 
Neurological; musculoskeletal; special sense organs; respiratory, 
including speech organs; cardiovascular; reproductive; digestive; 
genitourinary; hemic and lymphatic; skin; and endocrine; or
    (ii) Any mental or psychological disorder, such as mental 
retardation, organic brain syndrome, emotional or mental illness, and 
specific learning disabilities. The term physical or mental impairment 
includes, but is not limited to, such diseases and conditions as 
orthopedic, visual, speech, and hearing impairments, cerebral palsy, 
epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, 
diabetes, mental retardation, emotional illness, and drug addiction and 
alcoholism.
    (2) Major life activities includes functions such as caring for 
one's self, performing manual tasks, walking, seeing, hearing, speaking, 
breathing, learning, and working.
    (3) Has a record of such an impairment means has a history of, or 
has been misclassified as having, a mental or physical impairment that 
substantially limits one or more major life activities.
    (4) Is regarded as having an impairment means--
    (i) Has a physical or mental impairment that does not substantially 
limit major life activities but is treated by the agency as constituting 
such a limitation;
    (ii) Has a physical or mental impairment that substantially limits 
major life activities only as a result of the attitudes of others toward 
such impairment; or
    (iii) Has none of the impairments defined in paragraph (1) of this 
definition but is treated by the agency as having such an impairment.
    Qualified individual with handicaps means--
    (1) With respect to preschool, elementary, or secondary education 
services provided by the agency, an individual with handicaps who is a 
member of a class of persons otherwise entitled by

[[Page 184]]

statute, regulation, or agency policy to receive education services from 
the agency;
    (2) With respect to any other agency program or activity under which 
a person is required to perform services or to achieve a level of 
accomplishment, an individual with handicaps who meets the essential 
eligibility requirements and who can achieve the purpose of the program 
or activity without modifications in the program or activity that the 
agency can demonstrate would result in a fundamental alteration in its 
nature;
    (3) With respect to any other program or activity, an individual 
with handicaps who meets the essential eligibility requirements for 
participation in, or receipt of benefits from, that program or activity; 
and
    (4) Qualified handicapped person as that term is defined for 
purposes of employment in 29 CFR 1613.702(f), which is made applicable 
to this regulation by Sec. 16.140.
    Section 504 means section 504 of the Rehabilitation Act of 1973 
(Pub. L. 93-112, 87 Stat. 394 (29 U.S.C. 794)), as amended by the 
Rehabilitation Act Amendments of 1974 (Pub. L. 93-516, 88 Stat. 1617); 
the Rehabilitation, Comprehensive Services, and Developmental 
Disabilities Amendments of 1978 (Pub. L. 95-602, 92 Stat. 2955); and the 
Rehabilitation Act Amendments of 1986 (Pub. L. 99-506, 100 Stat. 1810). 
As used in this regulation, section 504 applies only to programs or 
activities conducted by Executive agencies and not to federally assisted 
programs.
    Substantial impairment means a significant loss of the integrity of 
finished materials, design quality, or special character resulting from 
a permanent alteration.



Secs. 16.104-16.109  [Reserved]



Sec. 16.110  Self-evaluation.

    (a) The agency shall, by September 6, 1989, evaluate its current 
policies and practices, and the effects thereof, that do not or may not 
meet the requirements of this regulation and, to the extent modification 
of any such policies and practices is required, the agency shall proceed 
to make the necessary modifications.
    (b) The agency shall provide an opportunity to interested persons, 
including individuals with handicaps or organizations representing 
individuals with handicaps, to participate in the self-evaluation 
process by submitting comments (both oral and written).
    (c) The agency shall, for at least three years following completion 
of the self-evaluation, maintain on file and make available for public 
inspection:
    (1) A description of areas examined and any problems identified; and
    (2) A description of any modifications made.



Sec. 16.111  Notice.

    The agency shall make available to employees, applicants, 
participants, beneficiaries, and other interested persons such 
information regarding the provisions of this regulation and its 
applicability to the programs or activities conducted by the agency, and 
make such information available to them in such manner as the head of 
the agency finds necessary to apprise such persons of the protections 
against discrimination assured them by section 504 and this regulation.



Secs. 16.112-16.129  [Reserved]



Sec. 16.130  General prohibitions against discrimination.

    (a) No qualified individual with handicaps shall, on the basis of 
handicap, be excluded from participation in, be denied the benefits of, 
or otherwise be subjected to discrimination under any program or 
activity conducted by the agency.
    (b)(1) The agency, in providing any aid, benefit, or service, may 
not, directly or through contractual, licensing, or other arrangements, 
on the basis of handicap--
    (i) Deny a qualified individual with handicaps the opportunity to 
participate in or benefit from the aid, benefit, or service;
    (ii) Afford a qualified individual with handicaps an opportunity to 
participate in or benefit from the aid, benefit, or service that is not 
equal to that afforded others;
    (iii) Provide a qualified individual with handicaps with an aid, 
benefit, or

[[Page 185]]

service that is not as effective in affording equal opportunity to 
obtain the same result, to gain the same benefit, or to reach the same 
level of achievement as that provided to others;
    (iv) Provide different or separate aid, benefits, or services to 
individuals with handicaps or to any class of individuals with handicaps 
than is provided to others unless such action is necessary to provide 
qualified individuals with handicaps with aid, benefits, or services 
that are as effective as those provided to others;
    (v) Deny a qualified individual with handicaps the opportunity to 
participate as a member of planning or advisory boards;
    (vi) Otherwise limit a qualified individual with handicaps in the 
enjoyment of any right, privilege, advantage, or opportunity enjoyed by 
others receiving the aid, benefit, or service.
    (2) The agency may not deny a qualified individual with handicaps 
the opportunity to participate in programs or activities that are not 
separate or different, despite the existence of permissibly separate or 
different programs or activities.
    (3) The agency may not, directly or through contractual or other 
arrangements, utilize criteria or methods of administration the purpose 
or effect of which would--
    (i) Subject qualified individuals with handicaps to discrimination 
on the basis of handicap; or
    (ii) Defeat or substantially impair accomplishment of the objectives 
of a program or activity with respect to individuals with handicaps.
    (4) The agency may not, in determining the site or location of a 
facility, make selections the purpose or effect of which would--
    (i) Exclude individuals with handicaps from, deny them the benefits 
of, or otherwise subject them to discrimination under any program or 
activity conducted by the agency; or
    (ii) Defeat or substantially impair the accomplishment of the 
objectives of a program or activity with respect to individuals with 
handicaps.
    (5) The agency, in the selection of procurement contractors, may not 
use criteria that subject qualified individuals with handicaps to 
discrimination on the basis of handicap.
    (6) The agency may not administer a licensing or certification 
program in a manner that subjects qualified individuals with handicaps 
to discrimination on the basis of handicap, nor may the agency establish 
requirements for the programs or activities of licensees or certified 
entities that subject qualified individuals with handicaps to 
discrimination on the basis of handicap. However, the programs or 
activities of entities that are licensed or certified by the agency are 
not, themselves, covered by this regulation.
    (c) The exclusion of nonhandicapped persons from the benefits of a 
program limited by Federal statute or Executive order to individuals 
with handicaps or the exclusion of a specific class of individuals with 
handicaps from a program limited by Federal statute or Executive order 
to a different class of individuals with handicaps is not prohibited by 
this regulation.
    (d) The agency shall administer programs and activities in the most 
integrated setting appropriate to the needs of qualified individuals 
with handicaps.



Secs. 16.131-16.139  [Reserved]



Sec. 16.140  Employment.

    No qualified individual with handicaps shall, on the basis of 
handicap, be subject to discrimination in employment under any program 
or activity conducted by the agency. The definitions, requirements, and 
procedures of section 501 of the Rehabilitation Act of 1973 (29 U.S.C. 
791), as established by the Equal Employment Opportunity Commission in 
29 CFR part 1613, shall apply to employment in federally conducted 
programs or activities.



Secs. 16.141-16.148  [Reserved]



Sec. 16.149  Program accessibility: Discrimination prohibited.

    Except as otherwise provided in Sec. 16.150, no qualified individual 
with handicaps shall, because the agency's facilities are inaccessible 
to or unusable by individuals with handicaps, be denied the benefits of, 
be excluded from

[[Page 186]]

participation in, or otherwise be subjected to discrimination under any 
program or activity conducted by the agency.



Sec. 16.150  Program accessibility: Existing facilities.

    (a) General. The agency shall operate each program or activity so 
that the program or activity, when viewed in its entirety, is readily 
accessible to and usable by individuals with handicaps. This paragraph 
does not--
    (1) Necessarily require the agency to make each of its existing 
facilities accessible to and usable by individuals with handicaps;
    (2) In the case of historic preservation programs, require the 
agency to take any action that would result in a substantial impairment 
of significant historic features of an historic property; or
    (3) Require the agency to take any action that it can demonstrate 
would result in a fundamental alteration in the nature of a program or 
activity or in undue financial and administrative burdens. In those 
circumstances where agency personnel believe that the proposed action 
would fundamentally alter the program or activity or would result in 
undue financial and administrative burdens, the agency has the burden of 
proving that compliance with Sec. 16.150(a) would result in such 
alteration or burdens. The decision that compliance would result in such 
alteration or burdens must be made by the agency head or his or her 
designee after considering all agency resources available for use in the 
funding and operation of the conducted program or activity, and must be 
accompanied by a written statement of the reasons for reaching that 
conclusion. If an action would result in such an alteration or such 
burdens, the agency shall take any other action that would not result in 
such an alteration or such burdens but would nevertheless ensure that 
individuals with handicaps receive the benefits and services of the 
program or activity.
    (b) Methods--(1) General. The agency may comply with the 
requirements of this section through such means as redesign of 
equipment, reassignment of services to accessible buildings, assignment 
of aides to beneficiaries, home visits, delivery of services at 
alternate accessible sites, alteration of existing facilities and 
construction of new facilities, use of accessible rolling stock, or any 
other methods that result in making its programs or activities readily 
accessible to and usable by individuals with handicaps. The agency is 
not required to make structural changes in existing facilities where 
other methods are effective in achieving compliance with this section. 
The agency, in making alterations to existing buildings, shall meet 
accessibility requirements to the extent compelled by the Architectural 
Barriers Act of 1968, as amended (42 U.S.C. 4151 through 4157), and any 
regulations implementing it. In choosing among available methods for 
meeting the requirements of this section, the agency shall give priority 
to those methods that offer programs and activities to qualified 
individuals with handicaps in the most integrated setting appropriate.
    (2) Historic preservation programs. In meeting the requirements of 
Sec. 16.150(a) in historic preservation programs, the agency shall give 
priority to methods that provide physical access to individuals with 
handicaps. In cases where a physical alteration to an historic property 
is not required because of Sec. 16.150(a) (2) or (3), alternative 
methods of achieving program accessibility include--
    (i) Using audio-visual materials and devices to depict those 
portions of an historic property that cannot otherwise be made 
accessible;
    (ii) Assigning persons to guide individuals with handicaps into or 
through portions of historic properties that cannot otherwise be made 
accessible; or
    (iii) Adopting other innovative methods.
    (c) Time period for compliance. The agency shall comply with the 
obligations established under this section by November 7, 1988, except 
that where structural changes in facilities are undertaken, such changes 
shall be made by September 6, 1991, but in any event as expeditiously as 
possible.
    (d) Transition plan. In the event that structural changes to 
facilities will be

[[Page 187]]

undertaken to achieve program accessibility, the agency shall develop, 
by March 6, 1989, a transition plan setting forth the steps necessary to 
complete such changes. The agency shall provide an opportunity to 
interested persons, including individuals with handicaps or 
organizations representing individuals with handicaps, to participate in 
the development of the transition plan by submitting comments (both oral 
and written). A copy of the transition plan shall be made available for 
public inspection. The plan shall, at a minimum--
    (1) Identify physical obstacles in the agency's facilities that 
limit the accessibility of its programs or activities to individuals 
with handicaps;
    (2) Describe in detail the methods that will be used to make the 
facilities accessible;
    (3) Specify the schedule for taking the steps necessary to achieve 
compliance with this section and, if the time period of the transition 
plan is longer than one year, identify steps that will be taken during 
each year of the transition period; and
    (4) Indicate the official responsible for implementation of the 
plan.



Sec. 16.151  Program accessibility: New construction and alterations.

    Each building or part of a building that is constructed or altered 
by, on behalf of, or for the use of the agency shall be designed, 
constructed, or altered so as to be readily accessible to and usable by 
individuals with handicaps. The definitions, requirements, and standards 
of the Architectural Barriers Act (42 U.S.C. 4151-4157), as established 
in 41 CFR 101-19.600 to 101-19.607, apply to buildings covered by this 
section.



Secs. 16.152-16.159  [Reserved]



Sec. 16.160  Communications.

    (a) The agency shall take appropriate steps to ensure effective 
communication with applicants, participants, personnel of other Federal 
entities, and members of the public.
    (1) The agency shall furnish appropriate auxiliary aids where 
necessary to afford an individual with handicaps an equal opportunity to 
participate in, and enjoy the benefits of, a program or activity 
conducted by the agency.
    (i) In determining what type of auxiliary aid is necessary, the 
agency shall give primary consideration to the requests of the 
individual with handicaps.
    (ii) The agency need not provide individually prescribed devices, 
readers for personal use or study, or other devices of a personal 
nature.
    (2) Where the agency communicates with applicants and beneficiaries 
by telephone, telecommunication devices for deaf persons (TDD's) or 
equally effective telecommunication systems shall be used to communicate 
with persons with impaired hearing.
    (b) The agency shall ensure that interested persons, including 
persons with impaired vision or hearing, can obtain information as to 
the existence and location of accessible services, activities, and 
facilities.
    (c) The agency shall provide signage at a primary entrance to each 
of its inaccessible facilities, directing users to a location at which 
they can obtain information about accessible facilities. The 
international symbol for accessibility shall be used at each primary 
entrance of an accessible facility.
    (d) This section does not require the agency to take any action that 
it can demonstrate would result in a fundamental alteration in the 
nature of a program or activity or in undue financial and administrative 
burdens. In those circumstances where agency personnel believe that the 
proposed action would fundamentally alter the program or activity or 
would result in undue financial and administrative burdens, the agency 
has the burden of proving that compliance with Sec. 16.160 would result 
in such alteration or burdens. The decision that compliance would result 
in such alteration or burdens must be made by the agency head or his or 
her designee after considering all agency resources available for use in 
the funding and operation of the conducted program or activity and must 
be accompanied by a written statement of the reasons for reaching that 
conclusion. If an action required to comply with this section would 
result in such an alteration or such burdens, the agency shall take any 
other action that would not

[[Page 188]]

result in such an alteration or such burdens but would nevertheless 
ensure that, to the maximum extent possible, individuals with handicaps 
receive the benefits and services of the program or activity.



Secs. 16.161-16.169  [Reserved]



Sec. 16.170  Compliance procedures.

    (a) Except as provided in paragraph (b) of this section, this 
section applies to all allegations of discrimination on the basis of 
handicap in programs and activities conducted by the agency.
    (b) The agency shall process complaints alleging violations of 
section 504 with respect to employment according to the procedures 
established by the Equal Employment Opportunity Commission in 29 CFR 
part 1613 pursuant to section 501 of the Rehabilitation Act of 1973 (29 
U.S.C. 791).
    (c) The Director of Personnel shall be responsible for coordinating 
implementation of this section. Complaints may be sent to Director of 
Personnel, Room 810, Federal Emergency Management Agency, 500 C Street, 
SW., Washington, DC 20472.
    (d) The agency shall accept and investigate all complete complaints 
for which it has jurisdiction. All complete complaints must be filed 
within 180 days of the alleged act of discrimination. The agency may 
extend this time period for good cause.
    (e) If the agency receives a complaint over which it does not have 
jurisdiction, it shall promptly notify the complainant and shall make 
reasonable efforts to refer the complaint to the appropriate Government 
entity.
    (f) The agency shall notify the Architectural and Transportation 
Barriers Compliance Board upon receipt of any complaint alleging that a 
building or facility that is subject to the Architectural Barriers Act 
of 1968, as amended (42 U.S.C. 4151-4157), is not readily accessible to 
and usable by individuals with handicaps.
    (g) Within 180 days of the receipt of a complete complaint for which 
it has jurisdiction, the agency shall notify the complainant of the 
results of the investigation in a letter containing--
    (1) Findings of fact and conclusions of law;
    (2) A description of a remedy for each violation found; and
    (3) A notice of the right to appeal.
    (h) Appeals of the findings of fact and conclusions of law or 
remedies must be filed by the complainant within 90 days of receipt from 
the agency of the letter required by paragraph (g) of this section. The 
agency may extend this time for good cause.
    (i) Timely appeals shall be accepted and processed by the head of 
the agency.
    (j) The head of the agency shall notify the complainant of the 
results of the appeal within 60 days of the receipt of the request. If 
the head of the agency determines that additional information is needed 
from the complainant, he or she shall have 60 days from the date of 
receipt of the additional information to make his or her determination 
on the appeal.
    (k) The time limits cited in paragraphs (g) and (j) of this section 
may be extended with the permission of the Assistant Attorney General.
    (l) The agency may delegate its authority for conducting complaint 
investigations to other Federal agencies, except that the authority for 
making the final determination may not be delegated to another agency.



Secs. 16.171-16.999  [Reserved]



PART 17--GOVERNMENTWIDE DEBARMENT AND SUSPENSION (NONPROCUREMENT) AND GOVERNMENTWIDE REQUIREMENTS FOR DRUG-FREE WORKPLACE (GRANTS)--Table of Contents




                           Subpart A--General

Sec.
17.100  Purpose.
17.105  Definitions.
17.110  Coverage.
17.115  Policy.

                       Subpart B--Effect of Action

17.200  Debarment or suspension.
17.205  Ineligible persons.
17.210  Voluntary exclusion.
17.215  Exception provision.
17.220  Continuation of covered transactions.
17.225  Failure to adhere to restrictions.

[[Page 189]]

                          Subpart C--Debarment

17.300  General.
17.305  Causes for debarment.
17.310  Procedures.
17.311  Investigation and referral.
17.312  Notice of proposed debarment.
17.313  Opportunity to contest proposed debarment.
17.314  Debarring official's decision.
17.315  Settlement and voluntary exclusion.
17.320  Period of debarment.
17.325  Scope of debarment.

                          Subpart D--Suspension

17.400  General.
17.405  Causes for suspension.
17.410  Procedures.
17.411  Notice of suspension.
17.412  Opportunity to contest suspension.
17.413  Suspending official's decision.
17.415  Period of suspension.
17.420  Scope of suspension.

       Subpart E--Responsibilities of GSA, Agency and Participants

17.500  GSA responsibilities.
17.505  FEMA responsibilities.
17.510  Participants' responsibilities.

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

17.600  Purpose.
17.605  Definitions.
17.610  Coverage.
17.615  Grounds for suspension of payments, suspension or termination of 
          grants, or suspension or debarment.
17.620  Effect of violation.
17.625  Exception provision.
17.630  Certification requirements and procedures.
17.635  Reporting of and employee sanctions for convictions of criminal 
          drug offenses.

Appendix A to Part 17--Certification Regarding Debarment, Suspension, 
          and Other Responsibility Matters--Primary Covered Transactions
Appendix B to Part 17--Certification Regarding Debarment, Suspension, 
          Ineligibility and Voluntary Exclusion--Lower Tier Covered 
          Transactions
Appendix C to Part 17--Certification Regarding Drug-Free Workplace 
          Requirements

    Authority: 41 U.S.C. 701 et seq.; E.O. 12549, 51 FR 6370, 3 CFR, 
1986 Comp., p. 189; E.O. 12689, 54 FR 34131, 3 CFR, 1989 Comp., p. 235.

    Source: 53 FR 19199, and 19204, May 26, 1988, unless otherwise 
noted.

    Editorial Note: For additional information, see related documents 
published at 50 FR 8953, Mar. 5, 1985; 52 FR 18768, May 19, 1987; and 52 
FR 45667, Dec. 1, 1987.



                           Subpart A--General



Sec. 17.100  Purpose.

    (a) Executive Order (E.O.) 12549 provides that, to the extent 
permitted by 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. 17.105), 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

[[Page 190]]

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, 33061, June 26, 1995]



Sec. 17.105  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:
    The agency head, or
    An official designated by the agency head.
    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

[[Page 191]]

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:
    Principal investigators. [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 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:
    The agency head, or
    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.
    FEMA. Federal Emergency Management Agency.

[53 FR 19199, 19200, and 19204, May 26, 1988, as amended at 60 FR 33041, 
33061, June 26, 1995]



Sec. 17.110  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

[[Page 192]]

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
    (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. 17.200, ``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. 17.110(a). Sections 17.325, ``Scope of debarment,'' and 17.420, 
``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 19199, and 19204, May 26, 1988, as amended at 60 FR 33041, 33061, 
June 26, 1995]



Sec. 17.115  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

[[Page 193]]

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. 17.200  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. 17.215.
    (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. 17.110(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, 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, 33061, June 26, 1995]



Sec. 17.205  Ineligible persons.

    Persons who are ineligible, as defined in Sec. 17.105(i), are 
excluded in accordance with the applicable statutory, executive order, 
or regulatory authority.



Sec. 17.210  Voluntary exclusion.

    Persons who accept voluntary exclusions under Sec. 17.315 are 
excluded in accordance with the terms of their settlements. FEMA shall, 
and participants may, contact the original action agency to ascertain 
the extent of the exclusion.



Sec. 17.215  Exception provision.

    FEMA 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. 17.200. However, in accordance with the President's stated 
intention in the Executive Order, exceptions shall be granted

[[Page 194]]

only infrequently. Exceptions shall be reported in accordance with 
Sec. 17.505(a).

[60 FR 33041, 33061, June 26, 1995]



Sec. 17.220  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. 17.215.

[60 FR 33041, 33061, June 26, 1995]



Sec. 17.225  Failure to adhere to restrictions.

    (a) Except as permitted under Sec. 17.215 or Sec. 17.220, 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, 33061, June 26, 1995]



                          Subpart C--Debarment



Sec. 17.300  General.

    The debarring official may debar a person for any of the causes in 
Sec. 17.305, using procedures established in Secs. 17.310 through 
17.314. 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. 17.305  Causes for debarment.

    Debarment may be imposed in accordance with the provisions of 
Secs. 17.300 through 17.314 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

[[Page 195]]

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. 17.215 or Sec. 17.220;
    (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; or
    (4) Violation of a material provision of a voluntary exclusion 
agreement entered into under Sec. 17.315 or of any settlement of a 
debarment or suspension action.
    (5) Violation of any requirement of subpart F of this part, relating 
to providing a drug-free workplace, as set forth in Sec. 17.615 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 19199, and 19204, May 26, 1988, as amended at 54 FR 4963, Jan. 
31, 1989]



Sec. 17.310  Procedures.

    FEMA shall process debarment actions as informally as practicable, 
consistent with the principles of fundamental fairness, using the 
procedures in Secs. 17.311 through 17.314.



Sec. 17.311  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. 17.312  Notice of proposed debarment.

    A debarment proceeding shall be initiated by notice to the 
respondent advising:
    (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. 17.305 for proposing 
debarment;
    (d) Of the provisions of Secs. 17.311 through 17.314, and any other 
FEMA procedures, if applicable, governing debarment decisionmaking; and
    (e) Of the potential effect of a debarment.



Sec. 17.313  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. 17.314  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,

[[Page 196]]

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. 17.215.
    (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.



Sec. 17.315  Settlement and voluntary exclusion.

    (a) When in the best interest of the Government, FEMA 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. 17.320  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 17.305(c)(5)), the period of debarment 
shall not exceed five years.

[54 FR 4963, Jan. 31, 1989]



Sec. 17.325  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. 17.311 through 
17.314).

[[Page 197]]

    (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 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. 17.400  General.

    (a) The suspending official may suspend a person for any of the 
causes in Sec. 17.405 using procedures established in Secs. 17.410 
through 17.413.
    (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. 17.405, 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. 17.405  Causes for suspension.

    (a) Suspension may be imposed in accordance with the provisions of 
Secs. 17.400 through 17.413 upon adequate evidence:
    (1) To suspect the commission of an offense listed in 
Sec. 17.305(a); or
    (2) That a cause for debarment under Sec. 17.305 may exist.
    (b) Indictment shall constitute adequate evidence for purposes of 
suspension actions.



Sec. 17.410  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. FEMA shall process suspension actions as 
informally as practicable, consistent with principles of fundamental 
fairness, using the procedures in Sec. 17.411 through Sec. 17.413.



Sec. 17.411  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;

[[Page 198]]

    (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. 17.405 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. 17.411 through Sec. 17.413 and any 
other FEMA procedures, if applicable, governing suspension 
decisionmaking; and
    (g) Of the effect of the suspension.



Sec. 17.412  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 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. 17.413  Suspending official's decision.

    The suspending official may modify or terminate the suspension (for 
example, see Sec. 17.320(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. 17.415  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

[[Page 199]]

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. 17.420  Scope of suspension.

    The scope of a suspension is the same as the scope of a debarment 
(see Sec. 17.325), except that the procedures of Secs. 17.410 through 
17.413 shall be used in imposing a suspension.



       Subpart E--Responsibilities of GSA, Agency and Participants



Sec. 17.500  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 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. 17.505  FEMA 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 FEMA has granted exceptions under Sec. 17.215 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. 17.500(b) and of 
the exceptions granted under Sec. 17.215 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. 17.510  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.

[[Page 200]]

    (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 FEMA if at any time the 
participant learns that its certification was erroneous when submitted 
or has become erroneous by 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 21702, May 25, 1990, unless otherwise noted.



Sec. 17.600  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. 17.605  Definitions.

    (a) Except as amended in this section, the definitions of 
Sec. 17.105 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);

[[Page 201]]

    (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 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. 17.610  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. 17.615  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. 17.630;
    (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 subparagraphs (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. 17.620  Effect of violation.

    (a) In the event of a violation of this subpart as provided in 
Sec. 17.615, and in accordance with applicable law, the grantee shall be 
subject to one or more of the following actions:

[[Page 202]]

    (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. 17.320(a)(2) of this part).



Sec. 17.625  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. 17.630  Certification requirements and procedures.

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

[[Page 203]]

statement and program shall be in place.



Sec. 17.635  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
    (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 17--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

[[Page 204]]

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, 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, 33061, June 26, 1995]

 Appendix B to Part 17--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,

[[Page 205]]

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.
    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, 33061, June 26, 1995]

   Appendix C to Part 17--Certification 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

[[Page 206]]

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 Reqardinq Druq-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 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 subparagraph (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 subparagraph (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 [squ] 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

[[Page 207]]

made to such a central point, it shall include the identification 
number(s) of each affected grant.

[55 FR 21702, May 25, 1990]



PART 18--NEW RESTRICTIONS ON LOBBYING--Table of Contents




                           Subpart A--General

Sec.
18.100  Conditions on use of funds.
18.105  Definitions.
18.110  Certification and disclosure.

                 Subpart B--Activities by Own Employees

18.200  Agency and legislative liaison.
18.205  Professional and technical services.
18.210  Reporting.

            Subpart C--Activities by Other Than Own Employees

18.300  Professional and technical services.

                  Subpart D--Penalties and Enforcement

18.400  Penalties.
18.405  Penalty procedures.
18.410  Enforcement.

                          Subpart E--Exemptions

18.500  Secretary of Defense.

                        Subpart F--Agency Reports

18.600  Semi-annual compilation.
18.605  Inspector General report.

Appendix A to Part 18--Certification Regarding Lobbying
Appendix B to Part 18--Disclosure Form To Report Lobbying

    Authority: Section 319, Public Law 101-121 (31 U.S.C. 1352); 5 
U.S.C. 551, 552, 553; 5 U.S.C. 601, et seq.; E.O. 12291. Reorganization 
Plan No. 3 of 1978, E.O. 12127, E.O. 12148, E.O. 12657, E.O. 12699.

    Source: 55 FR 6737 and 6754, Feb. 26, 1990, unless otherwise noted.

    Cross Reference: See also Office of Management and Budget notice 
published at 54 FR 52306, December 20, 1989.



                           Subpart A--General



Sec. 18.100  Conditions on use of funds.

    (a) No appropriated funds may be expended by the recipient of a 
Federal contract, grant, loan, or cooperative ageement to pay any person 
for influencing or attempting to influence an officer or employee of any 
agency, a Member of Congress, an officer or employee of Congress, or an 
employee of a Member of Congress in connection with any of the following 
covered Federal actions: the awarding of any Federal contract, the 
making of any Federal grant, the making of any Federal loan, the 
entering into of any cooperative agreement, and the extension, 
continuation, renewal, amendment, or modification of any Federal 
contract, grant, loan, or cooperative agreement.
    (b) Each person who requests or receives from an agency a Federal 
contract, grant, loan, or cooperative agreement shall file with that 
agency a certification, set forth in appendix A, that the person has not 
made, and will not make, any payment prohibited by paragraph (a) of this 
section.
    (c) Each person who requests or receives from an agency a Federal 
contract, grant, loan, or a cooperative agreement shall file with that 
agency a disclosure form, set forth in appendix B, if such person has 
made or has agreed to make any payment using nonappropriated funds (to 
include profits from any covered Federal action), which would be 
prohibited under paragraph (a) of this section if paid for with 
appropriated funds.
    (d) Each person who requests or receives from an agency a commitment 
providing for the United States to insure or guarantee a loan shall file 
with that agency a statement, set forth in appendix A, whether that 
person has made or has agreed to make any payment to influence or 
attempt to influence an officer or employee of any agency, a Member of 
Congress, an officer or employee of Congress, or an employee of a Member 
of Congress in connection with that loan insurance or guarantee.
    (e) Each person who requests or receives from an agency a commitment 
providing for the United States to insure or guarantee a loan shall file 
with that agency a disclosure form, set forth in appendix B, if that 
person has made or has agreed to make any payment to influence or 
attempt to influence an officer or employee of any agency, a Member of 
Congress, an officer or employee of Congress, or an employee of a

[[Page 208]]

Member of Congress in connection with that loan insurance or guarantee.



Sec. 18.105  Definitions.

    For purposes of this part:
    (a) Agency, as defined in 5 U.S.C. 552(f), includes Federal 
executive departments and agencies as well as independent regulatory 
commissions and Government corporations, as defined in 31 U.S.C. 
9101(1).
    (b) Covered Federal action means any of the following Federal 
actions:
    (1) The awarding of any Federal contract;
    (2) The making of any Federal grant;
    (3) The making of any Federal loan;
    (4) The entering into of any cooperative agreement; and,
    (5) The extension, continuation, renewal, amendment, or modification 
of any Federal contract, grant, loan, or cooperative agreement.

Covered Federal action does not include receiving from an agency a 
commitment providing for the United States to insure or guarantee a 
loan. Loan guarantees and loan insurance are addressed independently 
within this part.
    (c) Federal contract means an acquisition contract awarded by an 
agency, including those subject to the Federal Acquisition Regulation 
(FAR), and any other acquisition contract for real or personal property 
or services not subject to the FAR.
    (d) Federal cooperative agreement means a cooperative agreement 
entered into by an agency.
    (e) Federal grant means an award of financial assistance in the form 
of money, or property in lieu of money, by the Federal Government or a 
direct appropriation made by law to any person. 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, loan insurance, interest subsidies, insurance, or direct 
United States cash assistance to an individual.
    (f) Federal loan means a loan made by an agency. The term does not 
include loan guarantee or loan insurance.
    (g) Indian tribe and tribal organization have the meaning provided 
in section 4 of the Indian Self-Determination and Education Assistance 
Act (25 U.S.C. 450B). Alaskan Natives are included under the definitions 
of Indian tribes in that Act.
    (h) Influencing or attempting to influence means making, with the 
intent to influence, any communication to or appearance before an 
officer or employee or any agency, a Member of Congress, an officer or 
employee of Congress, or an employee of a Member of Congress in 
connection with any covered Federal action.
    (i) Loan guarantee and loan insurance means an agency's guarantee or 
insurance of a loan made by a person.
    (j) Local government means a unit of government in a State and, if 
chartered, established, or otherwise recognized by a State for the 
performance of a governmental duty, including a local public authority, 
a special district, an intrastate district, a council of governments, a 
sponsor group representative organization, and any other instrumentality 
of a local government.
    (k) Officer or employee of an agency includes the following 
individuals who are employed by an agency:
    (1) An individual who is appointed to a position in the Government 
under title 5, U.S. Code, including a position under a temporary 
appointment;
    (2) A member of the uniformed services as defined in section 101(3), 
title 37, U.S. Code;
    (3) A special Government employee as defined in section 202, title 
18, U.S. Code; and,
    (4) An individual who is a member of a Federal advisory committee, 
as defined by the Federal Advisory Committee Act, title 5, U.S. Code 
appendix 2.
    (l) Person means an individual, corporation, company, association, 
authority, firm, partnership, society, State, and local government, 
regardless of whether such entity is operated for profit or not for 
profit. This term excludes an Indian tribe, tribal organization, or any 
other Indian organization with respect to expenditures specifically 
permitted by other Federal law.
    (m) Reasonable compensation means, with respect to a regularly 
employed officer or employee of any person, compensation that is 
consistent with the

[[Page 209]]

normal compensation for such officer or employee for work that is not 
furnished to, not funded by, or not furnished in cooperation with the 
Federal Government.
    (n) Reasonable payment means, with respect to perfessional and other 
technical services, a payment in an amount that is consistent with the 
amount normally paid for such services in the private sector.
    (o) Recipient includes all contractors, subcontractors at any tier, 
and subgrantees at any tier of the recipient of funds received in 
connection with a Federal contract, grant, loan, or cooperative 
agreement. The term excludes an Indian tribe, tribal organization, or 
any other Indian organization with respect to expenditures specifically 
permitted by other Federal law.
    (p) Regularly employed means, with respect to an officer or employee 
of a person requesting or receiving a Federal contract, grant, loan, or 
cooperative agreement or a commitment providing for the United States to 
insure or guarantee a loan, an officer or employee who is employed by 
such person for at least 130 working days within one year immediately 
preceding the date of the submission that initiates agency consideration 
of such person for receipt of such contract, grant, loan, cooperative 
agreement, loan insurance commitment, or loan guarantee commitment. An 
officer or employee who is employed by such person for less than 130 
working days within one year immediately preceding the date of the 
submission that initiates agency consideration of such person shall be 
considered to be regularly employed as soon as he or she is employed by 
such person for 130 working days.
    (q) State means a State of the United States, the District of 
Columbia, the Commonwealth of Puerto Rico, a territory or possession of 
the United States, an agency or instrumentality of a State, and a multi-
State, regional, or interstate entity having governmental duties and 
powers.



Sec. 18.110  Certification and disclosure.

    (a) Each person shall file a certification, and a disclosure form, 
if required, with each submission that initiates agency consideration of 
such person for:
    (1) Award of a Federal contract, grant, or cooperative agreement 
exceeding $100,000; or
    (2) An award of a Federal loan or a commitment providing for the 
United States to insure or guarantee a loan exceeding $150,000.
    (b) Each person shall file a certification, and a disclosure form, 
if required, upon receipt by such person of:
    (1) A Federal contract, grant, or cooperative agreement exceeding 
$100,000; or
    (2) A Federal loan or a commitment providing for the United States 
to insure or guarantee a loan exceeding $150,000, unless such person 
previously filed a certification, and a disclosure form, if required, 
under paragraph (a) of this section.
    (c) Each person shall file a disclosure form at the end of each 
calendar quarter in which there occurs any event that requires 
disclosure or that materially affects the accuracy of the information 
contained in any disclosure form previously filed by such person under 
paragraphs (a) or (b) of this section. An event that materially affects 
the accuracy of the information reported includes:
    (1) A cumulative increase of $25,000 or more in the amount paid or 
expected to be paid for influencing or attempting to influence a covered 
Federal action; or
    (2) A change in the person(s) or individual(s) influencing or 
attempting to influence a covered Federal action; or,
    (3) A change in the officer(s), employee(s), or Member(s) contacted 
to influence or attempt to influence a covered Federal action.
    (d) Any person who requests or receives from a person referred to in 
paragraphs (a) or (b) of this section:
    (1) A subcontract exceeding $100,000 at any tier under a Federal 
contract;
    (2) A subgrant, contract, or subcontract exceeding $100,000 at any 
tier under a Federal grant;
    (3) A contract or subcontract exceeding $100,000 at any tier under a 
Federal loan exceeding $150,000; or,
    (4) A contract or subcontract exceeding $100,000 at any tier under a 
Federal cooperative agreement,


[[Page 210]]



shall file a certification, and a disclosure form, if required, to the 
next tier above.
    (e) All disclosure forms, but not certifications, shall be forwarded 
from tier to tier until received by the person referred to in paragraphs 
(a) or (b) of this section. That person shall forward all disclosure 
forms to the agency.
    (f) Any certification or disclosure form filed under paragraph (e) 
of this section shall be treated as a material representation of fact 
upon which all receiving tiers shall rely. All liability arising from an 
erroneous representation shall be borne solely by the tier filing that 
representation and shall not be shared by any tier to which the 
erroneous representation is forwarded. Submitting an erroneous 
certification or disclosure constitutes a failure to file the required 
certification or disclosure, respectively. If a person fails to file a 
required certification or disclosure, the United States may pursue all 
available remedies, including those authorized by section 1352, title 
31, U.S. Code.
    (g) For awards and commitments in process prior to December 23, 
1989, but not made before that date, certifications shall be required at 
award or commitment, covering activities occurring between December 23, 
1989, and the date of award or commitment. However, for awards and 
commitments in process prior to the December 23, 1989 effective date of 
these provisions, but not made before December 23, 1989, disclosure 
forms shall not be required at time of award or commitment but shall be 
filed within 30 days.
    (h) No reporting is required for an activity paid for with 
appropriated funds if that activity is allowable under either subpart B 
or C.



                 Subpart B--Activities by Own Employees



Sec. 18.200  Agency and legislative liaison.

    (a) The prohibition on the use of appropriated funds, in Sec. 18.100 
(a), does not apply in the case of a payment of reasonable compensation 
made to an officer or employee of a person requesting or receiving a 
Federal contract, grant, loan, or cooperative agreement if the payment 
is for agency and legislative liaison activities not directly related to 
a covered Federal action.
    (b) For purposes of paragraph (a) of this section, providing any 
information specifically requested by an agency or Congress is allowable 
at any time.
    (c) For purposes of paragraph (a) of this section, the following 
agency and legislative liaison activities are allowable at any time only 
where they are not related to a specific solicitation for any covered 
Federal action:
    (1) Discussing with an agency (including individual demonstrations) 
the qualities and characteristics of the person's products or services, 
conditions or terms of sale, and service capabilities; and,
    (2) Technical discussions and other activities regarding the 
application or adaptation of the person's products or services for an 
agency's use.
    (d) For purposes of paragraph (a) of this section, the following 
agencies and legislative liaison activities are allowable only where 
they are prior to formal solicitation of any covered Federal action:
    (1) Providing any information not specifically requested but 
necessary for an agency to make an informed decision about initiation of 
a covered Federal action;
    (2) Technical discussions regarding the preparation of an 
unsolicited proposal prior to its official submission; and,
    (3) Capability presentations by persons seeking awards from an 
agency pursuant to the provisions of the Small Business Act, as amended 
by Public Law 95-507 and other subsequent amendments.
    (e) Only those activities expressly authorized by this section are 
allowable under this section.



Sec. 18.205  Professional and technical services.

    (a) The prohibition on the use of appropriated funds, in Sec. 18.100 
(a), does not apply in the case of a payment of reasonable compensation 
made to an officer or employee of a person requesting or receiving a 
Federal contract, grant, loan, or cooperative agreement or an extension, 
continuation, renewal,

[[Page 211]]

amendment, or modification of a Federal contract, grant, loan, or 
cooperative agreement if payment is for professional or technical 
services rendered directly in the preparation, submission, or 
negotiation of any bid, proposal, or application for that Federal 
contract, grant, loan, or cooperative agreement or for meeting 
requirements imposed by or pursuant to law as a condition for receiving 
that Federal contract, grant, loan, or cooperative agreement.
    (b) For purposes of paragraph (a) of this section, ``professional 
and technical services'' shall be limited to advice and analysis 
directly applying any professional or technical discipline. For example, 
drafting of a legal document accompanying a bid or proposal by a lawyer 
is allowable. Similarly, technical advice provided by an engineer on the 
performance or operational capability of a piece of equipment rendered 
directly in the negotiation of a contract is allowable. However, 
communications with the intent to influence made by a professional (such 
as a licensed lawyer) or a technical person (such as a licensed 
accountant) are not allowable under this section unless they provide 
advice and analysis directly applying their professional or technical 
expertise and unless the advice or analysis is rendered directly and 
solely in the preparation, submission or negotiation of a covered 
Federal action. Thus, for example, communications with the intent to 
influence made by a lawyer that do not provide legal advice or analysis 
directly and solely related to the legal aspects of his or her client's 
proposal, but generally advocate one proposal over another are not 
allowable under this section because the lawyer is not providing 
professional legal services. Similarly, communications with the intent 
to influence made by an engineer providing an engineering analysis prior 
to the preparation or submission of a bid or proposal are not allowable 
under this section since the engineer is providing technical services 
but not directly in the preparation, submission or negotiation of a 
covered Federal action.
    (c) Requirements imposed by or pursuant to law as a condition for 
receiving a covered Federal award include those required by law or 
regulation, or reasonably expected to be required by law or regulation, 
and any other requirements in the actual award documents.
    (d) Only those services expressly authorized by this section are 
allowable under this section.



Sec. 18.210  Reporting.

    No reporting is required with respect to payments of reasonable 
compensation made to regularly employed officers or employees of a 
person.



            Subpart C--Activities by Other Than Own Employees



Sec. 18.300  Professional and technical services.

    (a) The prohibition on the use of appropriated funds, in Sec. 18.100 
(a), does not apply in the case of any reasonable payment to a person, 
other than an officer or employee of a person requesting or receiving a 
covered Federal action, if the payment is for professional or technical 
services rendered directly in the preparation, submission, or 
negotiation of any bid, proposal, or application for that Federal 
contract, grant, loan, or cooperative agreement or for meeting 
requirements imposed by or pursuant to law as a condition for receiving 
that Federal contract, grant, loan, or cooperative agreement.
    (b) The reporting requirements in Sec. 18.110 (a) and (b) regarding 
filing a disclosure form by each person, if required, shall not apply 
with respect to professional or technical services rendered directly in 
the preparation, submission, or negotiation of any commitment providing 
for the United States to insure or guarantee a loan.
    (c) For purposes of paragraph (a) of this section, ``professional 
and technical services'' shall be limited to advice and analysis 
directly applying any professional or technical discipline. For example, 
drafting or a legal document accompanying a bid or proposal by a lawyer 
is allowable. Similarly, technical advice provided by an engineer on the 
performance or operational capability of a piece of equipment rendered 
directly in the negotiation of a

[[Page 212]]

contract is allowable. However, communications with the intent to 
influence made by a professional (such as a licensed lawyer) or a 
technical person (such as a licensed accountant) are not allowable under 
this section unless they provide advice and analysis directly applying 
their professional or technical expertise and unless the advice or 
analysis is rendered directly and solely in the preparation, submission 
or negotiation of a covered Federal action. Thus, for example, 
communications with the intent to influence made by a lawyer that do not 
provide legal advice or analysis directly and solely related to the 
legal aspects of his or her client's proposal, but generally advocate 
one proposal over another are not allowable under this section because 
the lawyer is not providing professional legal services. Similarly, 
communications with the intent to influence made by an engineer 
providing an engineering analysis prior to the preparation or submission 
of a bid or proposal are not allowable under this section since the 
engineer is providing technical services but not directly in the 
preparation, submission or negotiation of a covered Federal action.
    (d) Requirements imposed by or pursuant to law as a condition for 
receiving a covered Federal award include those required by law or 
regulation, or reasonably expected to be required by law or regulation, 
and any other requirements in the actual award documents.
    (e) Persons other than officers or employees of a person requesting 
or receiving a covered Federal action include consultants and trade 
associations.
    (f) Only those services expressly authorized by this section are 
allowable under this section.



                  Subpart D--Penalties and Enforcement



Sec. 18.400  Penalties.

    (a) Any person who makes an expenditure prohibited herein shall be 
subject to a civil penalty of not less than $10,000 and not more than 
$100,000 for each such expenditure.
    (b) Any person who fails to file or amend the disclosure form (see 
appendix B) to be filed or amended if required herein, shall be subject 
to a civil penalty of not less than $10,000 and not more than $100,000 
for each such failure.
    (c) A filing or amended filing on or after the date on which an 
administrative action for the imposition of a civil penalty is commenced 
does not prevent the imposition of such civil penalty for a failure 
occurring before that date. An administrative action is commenced with 
respect to a failure when an investigating official determines in 
writing to commence an investigation of an allegation of such failure.
    (d) In determining whether to impose a civil penalty, and the amount 
of any such penalty, by reason of a violation by any person, the agency 
shall consider the nature, circumstances, extent, and gravity of the 
violation, the effect on the ability of such person to continue in 
business, any prior violations by such person, the degree of culpability 
of such person, the ability of the person to pay the penalty, and such 
other matters as may be appropriate.
    (e) First offenders under paragraphs (a) or (b) of this section 
shall be subject to a civil penalty of $10,000, absent aggravating 
circumstances. Second and subsequent offenses by persons shall be 
subject to an appropriate civil penalty between $10,000 and $100,000, as 
determined by the agency head or his or her designee.
    (f) An imposition of a civil penalty under this section does not 
prevent the United States from seeking any other remedy that may apply 
to the same conduct that is the basis for the imposition of such civil 
penalty.



Sec. 18.405  Penalty procedures.

    Agencies shall impose and collect civil penalties pursuant to the 
provisions of the Program Fraud and Civil Remedies Act, 31 U.S.C. 3803 
(except subsection (c)), 3804, 3805, 3806, 3807, 3808, and 3812, insofar 
as these provisions are not inconsistent with the requirements herein.



Sec. 18.410  Enforcement.

    The head of each agency shall take such actions as are necessary to 
ensure

[[Page 213]]

that the provisions herein are vigorously implemented and enforced in 
that agency.



                          Subpart E--Exemptions



Sec. 18.500  Secretary of Defense.

    (a) The Secretary of Defense may exempt, on a case-by-case basis, a 
covered Federal action from the prohibition whenever the Secretary 
determines, in writing, that such an exemption is in the national 
interest. The Secretary shall transmit a copy of each such written 
exemption to Congress immediately after making such a determination.
    (b) The Department of Defense may issue supplemental regulations to 
implement paragraph (a) of this section.



                        Subpart F--Agency Reports



Sec. 18.600  Semi-annual compilation.

    (a) The head of each agency shall collect and compile the disclosure 
reports (see appendix B) and, on May 31 and November 30 of each year, 
submit to the Secretary of the Senate and the Clerk of the House of 
Representatives a report containing a compilation of the information 
contained in the disclosure reports received during the six-month period 
ending on March 31 or September 30, respectively, of that year.
    (b) The report, including the compilation, shall be available for 
public inspection 30 days after receipt of the report by the Secretary 
and the Clerk.
    (c) Information that involves intelligence matters shall be reported 
only to the Select Committee on Intelligence of the Senate, the 
Permanent Select Committee on Intelligence of the House of 
Representatives, and the Committees on Appropriations of the Senate and 
the House of Representatives in accordance with procedures agreed to by 
such committees. Such information shall not be available for public 
inspection.
    (d) Information that is classified under Executive Order 12356 or 
any successor order shall be reported only to the Committee on Foreign 
Relations of the Senate and the Committee on Foreign Affairs of the 
House of Representatives or the Committees on Armed Services of the 
Senate and the House of Representatives (whichever such committees have 
jurisdiction of matters involving such information) and to the 
Committees on Appropriations of the Senate and the House of 
Representatives in accordance with procedures agreed to by such 
committees. Such information shall not be available for public 
inspection.
    (e) The first semi-annual compilation shall be submitted on May 31, 
1990, and shall contain a compilation of the disclosure reports received 
from December 23, 1989 to March 31, 1990.
    (f) Major agencies, designated by the Office of Management and 
Budget (OMB), are required to provide machine-readable compilations to 
the Secretary of the Senate and the Clerk of the House of 
Representatives no later than with the compilations due on May 31, 1991. 
OMB shall provide detailed specifications in a memorandum to these 
agencies.
    (g) Non-major agencies are requested to provide machine-readable 
compilations to the Secretary of the Senate and the Clerk of the House 
of Representatives.
    (h) Agencies shall keep the originals of all disclosure reports in 
the official files of the agency.



Sec. 18.605  Inspector General report.

    (a) The Inspector General, or other official as specified in 
paragraph (b) of this section, of each agency shall prepare and submit 
to Congress each year, commencing with submission of the President's 
Budget in 1991, an evaluation of the compliance of that agency with, and 
the effectiveness of, the requirements herein. The evaluation may 
include any recommended changes that may be necessary to strengthen or 
improve the requirements.
    (b) In the case of an agency that does not have an Inspector 
General, the agency official comparable to an Inspector General shall 
prepare and submit the annual report, or, if there is no such comparable 
official, the head of the agency shall prepare and submit the annual 
report.
    (c) The annual report shall be submitted at the same time the agency 
submits its annual budget justifications to Congress.

[[Page 214]]

    (d) The annual report shall include the following: All alleged 
violations relating to the agency's covered Federal actions during the 
year covered by the report, the actions taken by the head of the agency 
in the year covered by the report with respect to those alleged 
violations and alleged violations in previous years, and the amounts of 
civil penalties imposed by the agency in the year covered by the report.

         Appendix A to Part 18--Certification Regarding Lobbying

 Certification for Contracts, Grants, Loans, and Cooperative Agreements

    The undersigned certifies, to the best of his or her knowledge and 
belief, that:
    (1) No Federal appropriated funds have been paid or will be paid, by 
or on behalf of the undersigned, to any person for influencing or 
attempting to influence an officer or employee of an agency, a Member of 
Congress, an officer or employee of Congress, or an employee of a Member 
of Congress in connection with the awarding of any Federal contract, the 
making of any Federal grant, the making of any Federal loan, the 
entering into of any cooperative agreement, and the extension, 
continuation, renewal, amendment, or modification of any Federal 
contract, grant, loan, or cooperative agreement.
    (2) If any funds other than Federal appropriated funds have been 
paid or will be paid to any person for influencing or attempting to 
influence an officer or employee of any agency, a Member of Congress, an 
officer or employee of Congress, or an employee of a Member of Congress 
in connection with this Federal contract, grant, loan, or cooperative 
agreement, the undersigned shall complete and submit Standard Form-LLL, 
``Disclosure Form to Report Lobbying,'' in accordance with its 
instructions.
    (3) The undersigned shall require that the language of this 
certification be included in the award documents for all subawards at 
all tiers (including subcontracts, subgrants, and contracts under 
grants, loans, and cooperative agreements) and that all subrecipients 
shall certify and disclose accordingly.
    This certification is a material representation of fact upon which 
reliance was placed when this transaction was made or entered into. 
Submission of this certification is a prerequisite for making or 
entering into this transaction imposed by section 1352, title 31, U.S. 
Code. Any person who fails to file the required certification shall be 
subject to a civil penalty of not less than $10,000 and not more than 
$100,000 for each such failure.

            Statement for Loan Guarantees and Loan Insurance

    The undersigned states, to the best of his or her knowledge and 
belief, that:
    If any funds have been paid or will be paid to any person for 
influencing or attempting to influence an officer or employee of any 
agency, a Member of Congress, an officer or employee of Congress, or an 
employee of a Member of Congress in connection with this commitment 
providing for the United States to insure or guarantee a loan, the 
undersigned shall complete and submit Standard Form-LLL, ``Disclosure 
Form to Report Lobbying,'' in accordance with its instructions.
    Submission of this statement is a prerequisite for making or 
entering into this transaction imposed by section 1352, title 31, U.S. 
Code. Any person who fails to file the required statement shall be 
subject to a civil penalty of not less than $10,000 and not more than 
$100,000 for each such failure.

[[Page 215]]

        Appendix B to Part 18--Disclosure Form To Report Lobbying
      [GRAPHIC] [TIFF OMITTED] TC02FE91.075
      

[[Page 216]]


[GRAPHIC] [TIFF OMITTED] TC02FE91.076


[[Page 217]]


[GRAPHIC] [TIFF OMITTED] TC02FE91.077


[[Page 218]]





PART 19--NONDISCRIMINATION ON THE BASIS OF SEX IN EDUCATION PROGRAMS OR ACTIVITIES RECEIVING FEDERAL FINANCIAL ASSISTANCE--Table of Contents




                         Subpart A--Introduction

Sec.
19.100  Purpose and effective date.
19.105  Definitions.
19.110  Remedial and affirmative action and self-evaluation.
19.115  Assurance required.
19.120  Transfers of property.
19.125  Effect of other requirements.
19.130  Effect of employment opportunities.
19.135  Designation of responsible employee and adoption of grievance 
          procedures.
19.140  Dissemination of policy.

                           Subpart B--Coverage

19.200  Application.
19.205  Educational institutions and other entities controlled by 
          religious organizations.
19.210  Military and merchant marine educational institutions.
19.215  Membership practices of certain organizations.
19.220  Admissions.
19.225  Educational institutions eligible to submit transition plans.
19.230  Transition plans.
19.235  Statutory amendments.

     Subpart C--Discrimination on the Basis of Sex in Admission and 
                         Recruitment Prohibited

19.300  Admission.
19.305  Preference in admission.
19.310  Recruitment.

 Subpart D--Discrimination on the Basis of Sex in Education Programs or 
                          Activities Prohibited

19.400  Education programs or activities.
19.405  Housing.
19.410  Comparable facilities.
19.415  Access to course offerings.
19.420  Access to schools operated by LEAs.
19.425  Counseling and use of appraisal and counseling materials.
19.430  Financial assistance.
19.435  Employment assistance to students.
19.440  Health and insurance benefits and services.
19.445  Marital or parental status.
19.450  Athletics.
19.455  Textbooks and curricular material.

Subpart E--Discrimination on the Basis of Sex in Employment in Education 
                    Programs or Activities Prohibited

19.500  Employment.
19.505  Employment criteria.
19.510  Recruitment.
19.515  Compensation.
19.520  Job classification and structure.
19.525  Fringe benefits.
19.530  Marital or parental status.
19.535  Effect of state or local law or other requirements.
19.540  Advertising.
19.545  Pre-employment inquiries.
19.550  Sex as a bona fide occupational qualification.

                          Subpart F--Procedures

19.600  Notice of covered programs.
19.605  Enforcement procedures.

    Authority: 20 U.S.C. 1681, 1682, 1683, 1685, 1686, 1687, 1688.

    Source: 65 FR 52865, 52892, Aug. 30, 2000, unless otherwise noted.



                         Subpart A--Introduction



Sec. 19.100  Purpose and effective date.

    The purpose of these Title IX regulations is to effectuate Title IX 
of the Education Amendments of 1972, as amended (except sections 904 and 
906 of those Amendments) (20 U.S.C. 1681, 1682, 1683, 1685, 1686, 1687, 
1688), which is designed to eliminate (with certain exceptions) 
discrimination on the basis of sex in any education program or activity 
receiving Federal financial assistance, whether or not such program or 
activity is offered or sponsored by an educational institution as 
defined in these Title IX regulations. The effective date of these Title 
IX regulations shall be September 29, 2000.



Sec. 19.105  Definitions.

    As used in these Title IX regulations, the term:
    Administratively separate unit means a school, department, or 
college of an educational institution (other than a local educational 
agency) admission to which is independent of admission to any other 
component of such institution.
    Admission means selection for part-time, full-time, special, 
associate,

[[Page 219]]

transfer, exchange, or any other enrollment, membership, or 
matriculation in or at an education program or activity operated by a 
recipient.
    Applicant means one who submits an application, request, or plan 
required to be approved by an official of the Federal agency that awards 
Federal financial assistance, or by a recipient, as a condition to 
becoming a recipient.
    Designated agency official means Director, Office of Equal Rights.
    Educational institution means a local educational agency (LEA) as 
defined by 20 U.S.C. 8801(18), a preschool, a private elementary or 
secondary school, or an applicant or recipient that is an institution of 
graduate higher education, an institution of undergraduate higher 
education, an institution of professional education, or an institution 
of vocational education, as defined in this section.
    Federal financial assistance means any of the following, when 
authorized or extended under a law administered by the Federal agency 
that awards such assistance:
    (1) A grant or loan of Federal financial assistance, including funds 
made available for:
    (i) The acquisition, construction, renovation, restoration, or 
repair of a building or facility or any portion thereof; and
    (ii) Scholarships, loans, grants, wages, or other funds extended to 
any entity for payment to or on behalf of students admitted to that 
entity, or extended directly to such students for payment to that 
entity.
    (2) A grant of Federal real or personal property or any interest 
therein, including surplus property, and the proceeds of the sale or 
transfer of such property, if the Federal share of the fair market value 
of the property is not, upon such sale or transfer, properly accounted 
for to the Federal Government.
    (3) Provision of the services of Federal personnel.
    (4) Sale or lease of Federal property or any interest therein at 
nominal consideration, or at consideration reduced for the purpose of 
assisting the recipient or in recognition of public interest to be 
served thereby, or permission to use Federal property or any interest 
therein without consideration.
    (5) Any other contract, agreement, or arrangement that has as one of 
its purposes the provision of assistance to any education program or 
activity, except a contract of insurance or guaranty.
    Institution of graduate higher education means an institution that:
    (1) Offers academic study beyond the bachelor of arts or bachelor of 
science degree, whether or not leading to a certificate of any higher 
degree in the liberal arts and sciences;
    (2) Awards any degree in a professional field beyond the first 
professional degree (regardless of whether the first professional degree 
in such field is awarded by an institution of undergraduate higher 
education or professional education); or
    (3) Awards no degree and offers no further academic study, but 
operates ordinarily for the purpose of facilitating research by persons 
who have received the highest graduate degree in any field of study.
    Institution of professional education means an institution (except 
any institution of undergraduate higher education) that offers a program 
of academic study that leads to a first professional degree in a field 
for which there is a national specialized accrediting agency recognized 
by the Secretary of Education.
    Institution of undergraduate higher education means:
    (1) An institution offering at least two but less than four years of 
college-level study beyond the high school level, leading to a diploma 
or an associate degree, or wholly or principally creditable toward a 
baccalaureate degree; or
    (2) An institution offering academic study leading to a 
baccalaureate degree; or
    (3) An agency or body that certifies credentials or offers degrees, 
but that may or may not offer academic study.
    Institution of vocational education means a school or institution 
(except an institution of professional or graduate or undergraduate 
higher education) that has as its primary purpose preparation of 
students to pursue a technical, skilled, or semiskilled occupation or 
trade, or to pursue study in a

[[Page 220]]

technical field, whether or not the school or institution offers 
certificates, diplomas, or degrees and whether or not it offers full-
time study.
    Recipient means any State or political subdivision thereof, or any 
instrumentality of a State or political subdivision thereof, any public 
or private agency, institution, or organization, or other entity, or any 
person, to whom Federal financial assistance is extended directly or 
through another recipient and that operates an education program or 
activity that receives such assistance, including any subunit, 
successor, assignee, or transferee thereof.
    Student means a person who has gained admission.
    Title IX means Title IX of the Education Amendments of 1972, Public 
Law 92-318, 86 Stat. 235, 373 (codified as amended at 20 U.S.C. 1681-
1688) (except sections 904 and 906 thereof), as amended by section 3 of 
Public Law 93-568, 88 Stat. 1855, by section 412 of the Education 
Amendments of 1976, Public Law 94-482, 90 Stat. 2234, and by Section 3 
of Public Law 100-259, 102 Stat. 28, 28-29 (20 U.S.C. 1681, 1682, 1683, 
1685, 1686, 1687, 1688).
    Title IX regulations means the provisions set forth at Secs. 19.100 
through 19.605.
    Transition plan means a plan subject to the approval of the 
Secretary of Education pursuant to section 901(a)(2) of the Education 
Amendments of 1972, 20 U.S.C. 1681(a)(2), under which an educational 
institution operates in making the transition from being an educational 
institution that admits only students of one sex to being one that 
admits students of both sexes without discrimination.



Sec. 19.110  Remedial and affirmative action and self-evaluation.

    (a) Remedial action. If the designated agency official finds that a 
recipient has discriminated against persons on the basis of sex in an 
education program or activity, such recipient shall take such remedial 
action as the designated agency official deems necessary to overcome the 
effects of such discrimination.
    (b) Affirmative action. In the absence of a finding of 
discrimination on the basis of sex in an education program or activity, 
a recipient may take affirmative action consistent with law to overcome 
the effects of conditions that resulted in limited participation therein 
by persons of a particular sex. Nothing in these Title IX regulations 
shall be interpreted to alter any affirmative action obligations that a 
recipient may have under Executive Order 11246, 3 CFR, 1964-1965 Comp., 
p. 339; as amended by Executive Order 11375, 3 CFR, 1966-1970 Comp., p. 
684; as amended by Executive Order 11478, 3 CFR, 1966-1970 Comp., p. 
803; as amended by Executive Order 12086, 3 CFR, 1978 Comp., p. 230; as 
amended by Executive Order 12107, 3 CFR, 1978 Comp., p. 264.
    (c) Self-evaluation. Each recipient education institution shall, 
within one year of September 29, 2000:
    (1) Evaluate, in terms of the requirements of these Title IX 
regulations, its current policies and practices and the effects thereof 
concerning admission of students, treatment of students, and employment 
of both academic and non-academic personnel working in connection with 
the recipient's education program or activity;
    (2) Modify any of these policies and practices that do not or may 
not meet the requirements of these Title IX regulations; and
    (3) Take appropriate remedial steps to eliminate the effects of any 
discrimination that resulted or may have resulted from adherence to 
these policies and practices.
    (d) Availability of self-evaluation and related materials. 
Recipients shall maintain on file for at least three years following 
completion of the evaluation required under paragraph (c) of this 
section, and shall provide to the designated agency official upon 
request, a description of any modifications made pursuant to paragraph 
(c)(2) of this section and of any remedial steps taken pursuant to 
paragraph (c)(3) of this section.



Sec. 19.115  Assurance required.

    (a) General. Either at the application stage or the award stage, 
Federal agencies must ensure that applications for Federal financial 
assistance or awards of Federal financial assistance contain, be 
accompanied by, or be covered by a specifically identified assurance 
from

[[Page 221]]

the applicant or recipient, satisfactory to the designated agency 
official, that each education program or activity operated by the 
applicant or recipient and to which these Title IX regulations apply 
will be operated in compliance with these Title IX regulations. An 
assurance of compliance with these Title IX regulations shall not be 
satisfactory to the designated agency official if the applicant or 
recipient to whom such assurance applies fails to commit itself to take 
whatever remedial action is necessary in accordance with Sec. 19.110(a) 
to eliminate existing discrimination on the basis of sex or to eliminate 
the effects of past discrimination whether occurring prior to or 
subsequent to the submission to the designated agency official of such 
assurance.
    (b) Duration of obligation. (1) In the case of Federal financial 
assistance extended to provide real property or structures thereon, such 
assurance shall obligate the recipient or, in the case of a subsequent 
transfer, the transferee, for the period during which the real property 
or structures are used to provide an education program or activity.
    (2) In the case of Federal financial assistance extended to provide 
personal property, such assurance shall obligate the recipient for the 
period during which it retains ownership or possession of the property.
    (3) In all other cases such assurance shall obligate the recipient 
for the period during which Federal financial assistance is extended.
    (c) Form. (1) The assurances required by paragraph (a) of this 
section, which may be included as part of a document that addresses 
other assurances or obligations, shall include that the applicant or 
recipient will comply with all applicable Federal statutes relating to 
nondiscrimination. These include but are not limited to: Title IX of the 
Education Amendments of 1972, as amended (20 U.S.C. 1681-1683, 1685-
1688).
    (2) The designated agency official will specify the extent to which 
such assurances will be required of the applicant's or recipient's 
subgrantees, contractors, subcontractors, transferees, or successors in 
interest.



Sec. 19.120  Transfers of property.

    If a recipient sells or otherwise transfers property financed in 
whole or in part with Federal financial assistance to a transferee that 
operates any education program or activity, and the Federal share of the 
fair market value of the property is not upon such sale or transfer 
properly accounted for to the Federal Government, both the transferor 
and the transferee shall be deemed to be recipients, subject to the 
provisions of Secs. 19.205 through 19.235(a).



Sec. 19.125  Effect of other requirements.

    (a) Effect of other Federal provisions. The obligations imposed by 
these Title IX regulations are independent of, and do not alter, 
obligations not to discriminate on the basis of sex imposed by Executive 
Order 11246, 3 CFR, 1964-1965 Comp., p. 339; as amended by Executive 
Order 11375, 3 CFR, 1966-1970 Comp., p. 684; as amended by Executive 
Order 11478, 3 CFR, 1966-1970 Comp., p. 803; as amended by Executive 
Order 12087, 3 CFR, 1978 Comp., p. 230; as amended by Executive Order 
12107, 3 CFR, 1978 Comp., p. 264; sections 704 and 855 of the Public 
Health Service Act (42 U.S.C. 295m, 298b-2); Title VII of the Civil 
Rights Act of 1964 (42 U.S.C. 2000e et seq.); the Equal Pay Act of 1963 
(29 U.S.C. 206); and any other Act of Congress or Federal regulation.
    (b) Effect of State or local law or other requirements. The 
obligation to comply with these Title IX regulations is not obviated or 
alleviated by any State or local law or other requirement that would 
render any applicant or student ineligible, or limit the eligibility of 
any applicant or student, on the basis of sex, to practice any 
occupation or profession.
    (c) Effect of rules or regulations of private organizations. The 
obligation to comply with these Title IX regulations is not obviated or 
alleviated by any rule or regulation of any organization, club, athletic 
or other league, or association that would render any applicant or 
student ineligible to participate or limit the eligibility or 
participation of any applicant or student, on the basis of sex, in any 
education program or activity operated by a recipient and that receives 
Federal financial assistance.

[[Page 222]]



Sec. 19.130  Effect of employment opportunities.

    The obligation to comply with these Title IX regulations is not 
obviated or alleviated because employment opportunities in any 
occupation or profession are or may be more limited for members of one 
sex than for members of the other sex.



Sec. 19.135  Designation of responsible employee and adoption of grievance procedures.

    (a) Designation of responsible employee. Each recipient shall 
designate at least one employee to coordinate its efforts to comply with 
and carry out its responsibilities under these Title IX regulations, 
including any investigation of any complaint communicated to such 
recipient alleging its noncompliance with these Title IX regulations or 
alleging any actions that would be prohibited by these Title IX 
regulations. The recipient shall notify all its students and employees 
of the name, office address, and telephone number of the employee or 
employees appointed pursuant to this paragraph.
    (b) Complaint procedure of recipient. A recipient shall adopt and 
publish grievance procedures providing for prompt and equitable 
resolution of student and employee complaints alleging any action that 
would be prohibited by these Title IX regulations.



Sec. 19.140  Dissemination of policy.

    (a) Notification of policy. (1) Each recipient shall implement 
specific and continuing steps to notify applicants for admission and 
employment, students and parents of elementary and secondary school 
students, employees, sources of referral of applicants for admission and 
employment, and all unions or professional organizations holding 
collective bargaining or professional agreements with the recipient, 
that it does not discriminate on the basis of sex in the educational 
programs or activities that it operates, and that it is required by 
Title IX and these Title IX regulations not to discriminate in such a 
manner. Such notification shall contain such information, and be made in 
such manner, as the designated agency official finds necessary to 
apprise such persons of the protections against discrimination assured 
them by Title IX and these Title IX regulations, but shall state at 
least that the requirement not to discriminate in education programs or 
activities extends to employment therein, and to admission thereto 
unless Secs. 19.300 through 19.310 do not apply to the recipient, and 
that inquiries concerning the application of Title IX and these Title IX 
regulations to such recipient may be referred to the employee designated 
pursuant to Sec. 19.135, or to the designated agency official.
    (2) Each recipient shall make the initial notification required by 
paragraph (a)(1) of this section within 90 days of September 29, 2000 or 
of the date these Title IX regulations first apply to such recipient, 
whichever comes later, which notification shall include publication in:
    (i) Newspapers and magazines operated by such recipient or by 
student, alumnae, or alumni groups for or in connection with such 
recipient; and
    (ii) Memoranda or other written communications distributed to every 
student and employee of such recipient.
    (b) Publications. (1) Each recipient shall prominently include a 
statement of the policy described in paragraph (a) of this section in 
each announcement, bulletin, catalog, or application form that it makes 
available to any person of a type, described in paragraph (a) of this 
section, or which is otherwise used in connection with the recruitment 
of students or employees.
    (2) A recipient shall not use or distribute a publication of the 
type described in paragraph (b)(1) of this section that suggests, by 
text or illustration, that such recipient treats applicants, students, 
or employees differently on the basis of sex except as such treatment is 
permitted by these Title IX regulations.
    (c) Distribution. Each recipient shall distribute without 
discrimination on the basis of sex each publication described in 
paragraph (b)(1) of this section, and shall apprise each of its 
admission and employment recruitment representatives of the policy of 
nondiscrimination described in paragraph (a) of this section, and shall 
require such representatives to adhere to such policy.

[[Page 223]]



                           Subpart B--Coverage



Sec. 19.200  Application.

    Except as provided in Secs. 19.205 through 19.235(a), these Title IX 
regulations apply to every recipient and to each education program or 
activity operated by such recipient that receives Federal financial 
assistance.



Sec. 19.205  Educational institutions and other entities controlled by religious organizations.

    (a) Exemption. These Title IX regulations do not apply to any 
operation of an educational institution or other entity that is 
controlled by a religious organization to the extent that application of 
these Title IX regulations would not be consistent with the religious 
tenets of such organization.
    (b) Exemption claims. An educational institution or other entity 
that wishes to claim the exemption set forth in paragraph (a) of this 
section shall do so by submitting in writing to the designated agency 
official a statement by the highest-ranking official of the institution, 
identifying the provisions of these Title IX regulations that conflict 
with a specific tenet of the religious organization.



Sec. 19.210  Military and merchant marine educational institutions.

    These Title IX regulations do not apply to an educational 
institution whose primary purpose is the training of individuals for a 
military service of the United States or for the merchant marine.



Sec. 19.215  Membership practices of certain organizations.

    (a) Social fraternities and sororities. These Title IX regulations 
do not apply to the membership practices of social fraternities and 
sororities that are exempt from taxation under section 501(a) of the 
Internal Revenue Code of 1954, 26 U.S.C. 501(a), the active membership 
of which consists primarily of students in attendance at institutions of 
higher education.
    (b) YMCA, YWCA, Girl Scouts, Boy Scouts, and Camp Fire Girls. These 
Title IX regulations do not apply to the membership practices of the 
Young Men's Christian Association (YMCA), the Young Women's Christian 
Association (YWCA), the Girl Scouts, the Boy Scouts, and Camp Fire 
Girls.
    (c) Voluntary youth service organizations. These Title IX 
regulations do not apply to the membership practices of a voluntary 
youth service organization that is exempt from taxation under section 
501(a) of the Internal Revenue Code of 1954, 26 U.S.C. 501(a), and the 
membership of which has been traditionally limited to members of one sex 
and principally to persons of less than nineteen years of age.



Sec. 19.220  Admissions.

    (a) Admissions to educational institutions prior to June 24, 1973, 
are not covered by these Title IX regulations.
    (b) Administratively separate units. For the purposes only of this 
section, Secs. 19.225 and 19.230, and Secs. 19.300 through 19.310, each 
administratively separate unit shall be deemed to be an educational 
institution.
    (c) Application of Secs. 19.300 through .310. Except as provided in 
paragraphs (d) and (e) of this section, Secs. 19.300 through 19.310 
apply to each recipient. A recipient to which Secs. 19.300 through 
19.310 apply shall not discriminate on the basis of sex in admission or 
recruitment in violation of Secs. 19.300 through 19.310.
    (d) Educational institutions. Except as provided in paragraph (e) of 
this section as to recipients that are educational institutions, 
Secs. 19.300 through 19.310 apply only to institutions of vocational 
education, professional education, graduate higher education, and public 
institutions of undergraduate higher education.
    (e) Public institutions of undergraduate higher education. 
Secs. 19.300 through 19.310 do not apply to any public institution of 
undergraduate higher education that traditionally and continually from 
its establishment has had a policy of admitting students of only one 
sex.



Sec. 19.225  Educational institutions eligible to submit transition plans.

    (a) Application. This section applies to each educational 
institution to which Secs. 19.300 through 19.310 apply that:

[[Page 224]]

    (1) Admitted students of only one sex as regular students as of June 
23, 1972; or
    (2) Admitted students of only one sex as regular students as of June 
23, 1965, but thereafter admitted, as regular students, students of the 
sex not admitted prior to June 23, 1965.
    (b) Provision for transition plans. An educational institution to 
which this section applies shall not discriminate on the basis of sex in 
admission or recruitment in violation of Secs. 19.300 through 19.310.



Sec. 19.230  Transition plans.

    (a) Submission of plans. An institution to which Sec. 19.225 applies 
and that is composed of more than one administratively separate unit may 
submit either a single transition plan applicable to all such units, or 
a separate transition plan applicable to each such unit.
    (b) Content of plans. In order to be approved by the Secretary of 
Education, a transition plan shall:
    (1) State the name, address, and Federal Interagency Committee on 
Education Code of the educational institution submitting such plan, the 
administratively separate units to which the plan is applicable, and the 
name, address, and telephone number of the person to whom questions 
concerning the plan may be addressed. The person who submits the plan 
shall be the chief administrator or president of the institution, or 
another individual legally authorized to bind the institution to all 
actions set forth in the plan.
    (2) State whether the educational institution or administratively 
separate unit admits students of both sexes as regular students and, if 
so, when it began to do so.
    (3) Identify and describe with respect to the educational 
institution or administratively separate unit any obstacles to admitting 
students without discrimination on the basis of sex.
    (4) Describe in detail the steps necessary to eliminate as soon as 
practicable each obstacle so identified and indicate the schedule for 
taking these steps and the individual directly responsible for their 
implementation.
    (5) Include estimates of the number of students, by sex, expected to 
apply for, be admitted to, and enter each class during the period 
covered by the plan.
    (c) Nondiscrimination. No policy or practice of a recipient to which 
Sec. 19.225 applies shall result in treatment of applicants to or 
students of such recipient in violation of Secs. 19.300 through 19.310 
unless such treatment is necessitated by an obstacle identified in 
paragraph (b)(3) of this section and a schedule for eliminating that 
obstacle has been provided as required by paragraph (b)(4) of this 
section.
    (d) Effects of past exclusion. To overcome the effects of past 
exclusion of students on the basis of sex, each educational institution 
to which Sec. 19.225 applies shall include in its transition plan, and 
shall implement, specific steps designed to encourage individuals of the 
previously excluded sex to apply for admission to such institution. Such 
steps shall include instituting recruitment programs that emphasize the 
institution's commitment to enrolling students of the sex previously 
excluded.



Sec. 19.235  Statutory amendments.

    (a) This section, which applies to all provisions of these Title IX 
regulations, addresses statutory amendments to Title IX.
    (b) These Title IX regulations shall not apply to or preclude:
    (1) Any program or activity of the American Legion undertaken in 
connection with the organization or operation of any Boys State 
conference, Boys Nation conference, Girls State conference, or Girls 
Nation conference;
    (2) Any program or activity of a secondary school or educational 
institution specifically for:
    (i) The promotion of any Boys State conference, Boys Nation 
conference, Girls State conference, or Girls Nation conference; or
    (ii) The selection of students to attend any such conference;
    (3) Father-son or mother-daughter activities at an educational 
institution or in an education program or activity, but if such 
activities are provided for students of one sex, opportunities for 
reasonably comparable activities shall be provided to students of the 
other sex;

[[Page 225]]

    (4) Any scholarship or other financial assistance awarded by an 
institution of higher education to an individual because such individual 
has received such award in a single-sex pageant based upon a combination 
of factors related to the individual's personal appearance, poise, and 
talent. The pageant, however, must comply with other nondiscrimination 
provisions of Federal law.
    (c) Program or activity or program means:
    (1) All of the operations of any entity described in paragraphs 
(c)(1)(i) through (iv) of this section, any part of which is extended 
Federal financial assistance:
    (i)(A) A department, agency, special purpose district, or other 
instrumentality of a State or of a local government; or
    (B) The entity of such State or local government that distributes 
such assistance and each such department or agency (and each other State 
or local government entity) to which the assistance is extended, in the 
case of assistance to a State or local government;
    (ii)(A) A college, university, or other postsecondary institution, 
or a public system of higher education; or
    (B) A local educational agency (as defined in section 8801 of title 
20), system of vocational education, or other school system;
    (iii)(A) An entire corporation, partnership, or other private 
organization, or an entire sole proprietorship--
    (1) If assistance is extended to such corporation, partnership, 
private organization, or sole proprietorship as a whole; or
    (2) Which is principally engaged in the business of providing 
education, health care, housing, social services, or parks and 
recreation; or
    (B) The entire plant or other comparable, geographically separate 
facility to which Federal financial assistance is extended, in the case 
of any other corporation, partnership, private organization, or sole 
proprietorship; or
    (iv) Any other entity that is established by two or more of the 
entities described in paragraphs (c)(1)(i), (ii), or (iii) of this 
section.
    (2)(i) Program or activity does not include any operation of an 
entity that is controlled by a religious organization if the application 
of 20 U.S.C. 1681 to such operation would not be consistent with the 
religious tenets of such organization.
    (ii) For example, all of the operations of a college, university, or 
other postsecondary institution, including but not limited to 
traditional educational operations, faculty and student housing, campus 
shuttle bus service, campus restaurants, the bookstore, and other 
commercial activities are part of a ``program or activity'' subject to 
these Title IX regulations if the college, university, or other 
institution receives Federal financial assistance.
    (d)(1) Nothing in these Title IX regulations shall be construed to 
require or prohibit any person, or public or private entity, to provide 
or pay for any benefit or service, including the use of facilities, 
related to an abortion. Medical procedures, benefits, services, and the 
use of facilities, necessary to save the life of a pregnant woman or to 
address complications related to an abortion are not subject to this 
section.
    (2) Nothing in this section shall be construed to permit a penalty 
to be imposed on any person or individual because such person or 
individual is seeking or has received any benefit or service related to 
a legal abortion. Accordingly, subject to paragraph (d)(1) of this 
section, no person shall be excluded from participation in, be denied 
the benefits of, or be subjected to discrimination under any academic, 
extracurricular, research, occupational training, employment, or other 
educational program or activity operated by a recipient that receives 
Federal financial assistance because such individual has sought or 
received, or is seeking, a legal abortion, or any benefit or service 
related to a legal abortion.



     Subpart C--Discrimination on the Basis of Sex in Admission and 
                         Recruitment Prohibited



Sec. 19.300  Admission.

    (a) General. No person shall, on the basis of sex, be denied 
admission, or be

[[Page 226]]

subjected to discrimination in admission, by any recipient to which 
Secs. 19.300 through Secs. 19.310 apply, except as provided in 
Secs. 19.225 and Secs. 19.230.
    (b) Specific prohibitions. (1) In determining whether a person 
satisfies any policy or criterion for admission, or in making any offer 
of admission, a recipient to which Secs. 19.300 through 19.310 apply 
shall not:
    (i) Give preference to one person over another on the basis of sex, 
by ranking applicants separately on such basis, or otherwise;
    (ii) Apply numerical limitations upon the number or proportion of 
persons of either sex who may be admitted; or
    (iii) Otherwise treat one individual differently from another on the 
basis of sex.
    (2) A recipient shall not administer or operate any test or other 
criterion for admission that has a disproportionately adverse effect on 
persons on the basis of sex unless the use of such test or criterion is 
shown to predict validly success in the education program or activity in 
question and alternative tests or criteria that do not have such a 
disproportionately adverse effect are shown to be unavailable.
    (c) Prohibitions relating to marital or parental status. In 
determining whether a person satisfies any policy or criterion for 
admission, or in making any offer of admission, a recipient to which 
Secs. 19.300 through 19.310 apply:
    (1) Shall not apply any rule concerning the actual or potential 
parental, family, or marital status of a student or applicant that 
treats persons differently on the basis of sex;
    (2) Shall not discriminate against or exclude any person on the 
basis of pregnancy, childbirth, termination of pregnancy, or recovery 
therefrom, or establish or follow any rule or practice that so 
discriminates or excludes;
    (3) Subject to Sec. 19.235(d), shall treat disabilities related to 
pregnancy, childbirth, termination of pregnancy, or recovery therefrom 
in the same manner and under the same policies as any other temporary 
disability or physical condition; and
    (4) Shall not make pre-admission inquiry as to the marital status of 
an applicant for admission, including whether such applicant is ``Miss'' 
or ``Mrs.'' A recipient may make pre-admission inquiry as to the sex of 
an applicant for admission, but only if such inquiry is made equally of 
such applicants of both sexes and if the results of such inquiry are not 
used in connection with discrimination prohibited by these Title IX 
regulations.



Sec. 19.305  Preference in admission.

    A recipient to which Secs. 19.300 through 19.310 apply shall not 
give preference to applicants for admission, on the basis of attendance 
at any educational institution or other school or entity that admits as 
students only or predominantly members of one sex, if the giving of such 
preference has the effect of discriminating on the basis of sex in 
violation of Secs. 19.300 through 19.310.



Sec. 19.310  Recruitment.

    (a) Nondiscriminatory recruitment. A recipient to which Secs. 19.300 
through 19.310 apply shall not discriminate on the basis of sex in the 
recruitment and admission of students. A recipient may be required to 
undertake additional recruitment efforts for one sex as remedial action 
pursuant to Sec. 19.110(a), and may choose to undertake such efforts as 
affirmative action pursuant to Sec. 19.110(b).
    (b) Recruitment at certain institutions. A recipient to which 
Secs. 19.300 through 19.310 apply shall not recruit primarily or 
exclusively at educational institutions, schools, or entities that admit 
as students only or predominantly members of one sex, if such actions 
have the effect of discriminating on the basis of sex in violation of 
Secs. 19.300 through 19.310.



 Subpart D--Discrimination on the Basis of Sex in Education Programs or 
                          Activities Prohibited



Sec. 19.400  Education programs or activities.

    (a) General. Except as provided elsewhere in these Title IX 
regulations, no person shall, on the basis of sex, be excluded from 
participation in, be denied the benefits of, or be subjected to 
discrimination under any academic, extracurricular, research, 
occupational training, or other education program or activity operated 
by a recipient that

[[Page 227]]

receives Federal financial assistance. Sections 19.400 through 19.455 do 
not apply to actions of a recipient in connection with admission of its 
students to an education program or activity of a recipient to which 
Secs. 19.300 through 19.310 do not apply, or an entity, not a recipient, 
to which Secs. 19.300 through 19.310 would not apply if the entity were 
a recipient.
    (b) Specific prohibitions. Except as provided in Secs. 19.400 
through 19.455, in providing any aid, benefit, or service to a student, 
a recipient shall not, on the basis of sex:
    (1) Treat one person differently from another in determining whether 
such person satisfies any requirement or condition for the provision of 
such aid, benefit, or service;
    (2) Provide different aid, benefits, or services or provide aid, 
benefits, or services in a different manner;
    (3) Deny any person any such aid, benefit, or service;
    (4) Subject any person to separate or different rules of behavior, 
sanctions, or other treatment;
    (5) Apply any rule concerning the domicile or residence of a student 
or applicant, including eligibility for in-state fees and tuition;
    (6) Aid or perpetuate discrimination against any person by providing 
significant assistance to any agency, organization, or person that 
discriminates on the basis of sex in providing any aid, benefit, or 
service to students or employees;
    (7) Otherwise limit any person in the enjoyment of any right, 
privilege, advantage, or opportunity.
    (c) Assistance administered by a recipient educational institution 
to study at a foreign institution. A recipient educational institution 
may administer or assist in the administration of scholarships, 
fellowships, or other awards established by foreign or domestic wills, 
trusts, or similar legal instruments, or by acts of foreign governments 
and restricted to members of one sex, that are designed to provide 
opportunities to study abroad, and that are awarded to students who are 
already matriculating at or who are graduates of the recipient 
institution; Provided, that a recipient educational institution that 
administers or assists in the administration of such scholarships, 
fellowships, or other awards that are restricted to members of one sex 
provides, or otherwise makes available, reasonable opportunities for 
similar studies for members of the other sex. Such opportunities may be 
derived from either domestic or foreign sources.
    (d) Aids, benefits or services not provided by recipient. (1) This 
paragraph (d) applies to any recipient that requires participation by 
any applicant, student, or employee in any education program or activity 
not operated wholly by such recipient, or that facilitates, permits, or 
considers such participation as part of or equivalent to an education 
program or activity operated by such recipient, including participation 
in educational consortia and cooperative employment and student-teaching 
assignments.
    (2) Such recipient:
    (i) Shall develop and implement a procedure designed to assure 
itself that the operator or sponsor of such other education program or 
activity takes no action affecting any applicant, student, or employee 
of such recipient that these Title IX regulations would prohibit such 
recipient from taking; and
    (ii) Shall not facilitate, require, permit, or consider such 
participation if such action occurs.



Sec. 19.405  Housing.

    (a) Generally. A recipient shall not, on the basis of sex, apply 
different rules or regulations, impose different fees or requirements, 
or offer different services or benefits related to housing, except as 
provided in this section (including housing provided only to married 
students).
    (b) Housing provided by recipient. (1) A recipient may provide 
separate housing on the basis of sex.
    (2) Housing provided by a recipient to students of one sex, when 
compared to that provided to students of the other sex, shall be as a 
whole:
    (i) Proportionate in quantity to the number of students of that sex 
applying for such housing; and
    (ii) Comparable in quality and cost to the student.

[[Page 228]]

    (c) Other housing. (1) A recipient shall not, on the basis of sex, 
administer different policies or practices concerning occupancy by its 
students of housing other than that provided by such recipient.
    (2)(i) A recipient which, through solicitation, listing, approval of 
housing, or otherwise, assists any agency, organization, or person in 
making housing available to any of its students, shall take such 
reasonable action as may be necessary to assure itself that such housing 
as is provided to students of one sex, when compared to that provided to 
students of the other sex, is as a whole:
    (A) Proportionate in quantity; and
    (B) Comparable in quality and cost to the student.
    (ii) A recipient may render such assistance to any agency, 
organization, or person that provides all or part of such housing to 
students of only one sex.



Sec. 19.410  Comparable facilities.

    A recipient may provide separate toilet, locker room, and shower 
facilities on the basis of sex, but such facilities provided for 
students of one sex shall be comparable to such facilities provided for 
students of the other sex.



Sec. 19.415  Access to course offerings.

    (a) A recipient shall not provide any course or otherwise carry out 
any of its education program or activity separately on the basis of sex, 
or require or refuse participation therein by any of its students on 
such basis, including health, physical education, industrial, business, 
vocational, technical, home economics, music, and adult education 
courses.
    (b)(1) With respect to classes and activities in physical education 
at the elementary school level, the recipient shall comply fully with 
this section as expeditiously as possible but in no event later than one 
year from September 29, 2000. With respect to physical education classes 
and activities at the secondary and post-secondary levels, the recipient 
shall comply fully with this section as expeditiously as possible but in 
no event later than three years from September 29, 2000.
    (2) This section does not prohibit grouping of students in physical 
education classes and activities by ability as assessed by objective 
standards of individual performance developed and applied without regard 
to sex.
    (3) This section does not prohibit separation of students by sex 
within physical education classes or activities during participation in 
wrestling, boxing, rugby, ice hockey, football, basketball, and other 
sports the purpose or major activity of which involves bodily contact.
    (4) Where use of a single standard of measuring skill or progress in 
a physical education class has an adverse effect on members of one sex, 
the recipient shall use appropriate standards that do not have such 
effect.
    (5) Portions of classes in elementary and secondary schools, or 
portions of education programs or activities, that deal exclusively with 
human sexuality may be conducted in separate sessions for boys and 
girls.
    (6) Recipients may make requirements based on vocal range or quality 
that may result in a chorus or choruses of one or predominantly one sex.



Sec. 19.420  Access to schools operated by LEAs.

    A recipient that is a local educational agency shall not, on the 
basis of sex, exclude any person from admission to:
    (a) Any institution of vocational education operated by such 
recipient; or
    (b) Any other school or educational unit operated by such recipient, 
unless such recipient otherwise makes available to such person, pursuant 
to the same policies and criteria of admission, courses, services, and 
facilities comparable to each course, service, and facility offered in 
or through such schools.



Sec. 19.425  Counseling and use of appraisal and counseling materials.

    (a) Counseling. A recipient shall not discriminate against any 
person on the basis of sex in the counseling or guidance of students or 
applicants for admission.
    (b) Use of appraisal and counseling materials. A recipient that uses 
testing or

[[Page 229]]

other materials for appraising or counseling students shall not use 
different materials for students on the basis of their sex or use 
materials that permit or require different treatment of students on such 
basis unless such different materials cover the same occupations and 
interest areas and the use of such different materials is shown to be 
essential to eliminate sex bias. Recipients shall develop and use 
internal procedures for ensuring that such materials do not discriminate 
on the basis of sex. Where the use of a counseling test or other 
instrument results in a substantially disproportionate number of members 
of one sex in any particular course of study or classification, the 
recipient shall take such action as is necessary to assure itself that 
such disproportion is not the result of discrimination in the instrument 
or its application.
    (c) Disproportion in classes. Where a recipient finds that a 
particular class contains a substantially disproportionate number of 
individuals of one sex, the recipient shall take such action as is 
necessary to assure itself that such disproportion is not the result of 
discrimination on the basis of sex in counseling or appraisal materials 
or by counselors.



Sec. 19.430  Financial assistance.

    (a) General. Except as provided in paragraphs (b) and (c) of this 
section, in providing financial assistance to any of its students, a 
recipient shall not:
    (1) On the basis of sex, provide different amounts or types of such 
assistance, limit eligibility for such assistance that is of any 
particular type or source, apply different criteria, or otherwise 
discriminate;
    (2) Through solicitation, listing, approval, provision of 
facilities, or other services, assist any foundation, trust, agency, 
organization, or person that provides assistance to any of such 
recipient's students in a manner that discriminates on the basis of sex; 
or
    (3) Apply any rule or assist in application of any rule concerning 
eligibility for such assistance that treats persons of one sex 
differently from persons of the other sex with regard to marital or 
parental status.
    (b) Financial aid established by certain legal instruments. (1) A 
recipient may administer or assist in the administration of 
scholarships, fellowships, or other forms of financial assistance 
established pursuant to domestic or foreign wills, trusts, bequests, or 
similar legal instruments or by acts of a foreign government that 
require that awards be made to members of a particular sex specified 
therein; Provided, that the overall effect of the award of such sex-
restricted scholarships, fellowships, and other forms of financial 
assistance does not discriminate on the basis of sex.
    (2) To ensure nondiscriminatory awards of assistance as required in 
paragraph (b)(1) of this section, recipients shall develop and use 
procedures under which:
    (i) Students are selected for award of financial assistance on the 
basis of nondiscriminatory criteria and not on the basis of availability 
of funds restricted to members of a particular sex;
    (ii) An appropriate sex-restricted scholarship, fellowship, or other 
form of financial assistance is allocated to each student selected under 
paragraph (b)(2)(i) of this section; and
    (iii) No student is denied the award for which he or she was 
selected under paragraph (b)(2)(i) of this section because of the 
absence of a scholarship, fellowship, or other form of financial 
assistance designated for a member of that student's sex.
    (c) Athletic scholarships. (1) To the extent that a recipient awards 
athletic scholarships or grants-in-aid, it must provide reasonable 
opportunities for such awards for members of each sex in proportion to 
the number of students of each sex participating in interscholastic or 
intercollegiate athletics.
    (2) A recipient may provide separate athletic scholarships or 
grants-in-aid for members of each sex as part of separate athletic teams 
for members of each sex to the extent consistent with this paragraph (c) 
and Sec. 19.450.

[[Page 230]]



Sec. 19.435  Employment assistance to students.

    (a) Assistance by recipient in making available outside employment. 
A recipient that assists any agency, organization, or person in making 
employment available to any of its students:
    (1) Shall assure itself that such employment is made available 
without discrimination on the basis of sex; and
    (2) Shall not render such services to any agency, organization, or 
person that discriminates on the basis of sex in its employment 
practices.
    (b) Employment of students by recipients. A recipient that employs 
any of its students shall not do so in a manner that violates 
Secs. 19.500 through 19.550.



Sec. 19.440  Health and insurance benefits and services.

    Subject to Sec. 19.235(d), in providing a medical, hospital, 
accident, or life insurance benefit, service, policy, or plan to any of 
its students, a recipient shall not discriminate on the basis of sex, or 
provide such benefit, service, policy, or plan in a manner that would 
violate Secs. 19.500 through 19.550 if it were provided to employees of 
the recipient. This section shall not prohibit a recipient from 
providing any benefit or service that may be used by a different 
proportion of students of one sex than of the other, including family 
planning services. However, any recipient that provides full coverage 
health service shall provide gynecological care.



Sec. 19.445  Marital or parental status.

    (a) Status generally. A recipient shall not apply any rule 
concerning a student's actual or potential parental, family, or marital 
status that treats students differently on the basis of sex.
    (b) Pregnancy and related conditions. (1) A recipient shall not 
discriminate against any student, or exclude any student from its 
education program or activity, including any class or extracurricular 
activity, on the basis of such student's pregnancy, childbirth, false 
pregnancy, termination of pregnancy, or recovery therefrom, unless the 
student requests voluntarily to participate in a separate portion of the 
program or activity of the recipient.
    (2) A recipient may require such a student to obtain the 
certification of a physician that the student is physically and 
emotionally able to continue participation as long as such a 
certification is required of all students for other physical or 
emotional conditions requiring the attention of a physician.
    (3) A recipient that operates a portion of its education program or 
activity separately for pregnant students, admittance to which is 
completely voluntary on the part of the student as provided in paragraph 
(b)(1) of this section, shall ensure that the separate portion is 
comparable to that offered to non-pregnant students.
    (4) Subject to Sec. 19.235(d), a recipient shall treat pregnancy, 
childbirth, false pregnancy, termination of pregnancy and recovery 
therefrom in the same manner and under the same policies as any other 
temporary disability with respect to any medical or hospital benefit, 
service, plan, or policy that such recipient administers, operates, 
offers, or participates in with respect to students admitted to the 
recipient's educational program or activity.
    (5) In the case of a recipient that does not maintain a leave policy 
for its students, or in the case of a student who does not otherwise 
qualify for leave under such a policy, a recipient shall treat 
pregnancy, childbirth, false pregnancy, termination of pregnancy, and 
recovery therefrom as a justification for a leave of absence for as long 
a period of time as is deemed medically necessary by the student's 
physician, at the conclusion of which the student shall be reinstated to 
the status that she held when the leave began.



Sec. 19.450  Athletics.

    (a) General. No person shall, on the basis of sex, be excluded from 
participation in, be denied the benefits of, be treated differently from 
another person, or otherwise be discriminated against in any 
interscholastic, intercollegiate, club, or intramural athletics offered 
by a recipient, and no recipient shall provide any such athletics 
separately on such basis.
    (b) Separate teams. Notwithstanding the requirements of paragraph 
(a) of this section, a recipient may operate or sponsor separate teams 
for members of each sex where selection for such teams is based upon 
competitive skill

[[Page 231]]

or the activity involved is a contact sport. However, where a recipient 
operates or sponsors a team in a particular sport for members of one sex 
but operates or sponsors no such team for members of the other sex, and 
athletic opportunities for members of that sex have previously been 
limited, members of the excluded sex must be allowed to try out for the 
team offered unless the sport involved is a contact sport. For the 
purposes of these Title IX regulations, contact sports include boxing, 
wrestling, rugby, ice hockey, football, basketball, and other sports the 
purpose or major activity of which involves bodily contact.
    (c) Equal opportunity. (1) A recipient that operates or sponsors 
interscholastic, intercollegiate, club, or intramural athletics shall 
provide equal athletic opportunity for members of both sexes. In 
determining whether equal opportunities are available, the designated 
agency official will consider, among other factors:
    (i) Whether the selection of sports and levels of competition 
effectively accommodate the interests and abilities of members of both 
sexes;
    (ii) The provision of equipment and supplies;
    (iii) Scheduling of games and practice time;
    (iv) Travel and per diem allowance;
    (v) Opportunity to receive coaching and academic tutoring;
    (vi) Assignment and compensation of coaches and tutors;
    (vii) Provision of locker rooms, practice, and competitive 
facilities;
    (viii) Provision of medical and training facilities and services;
    (ix) Provision of housing and dining facilities and services;
    (x) Publicity.
    (2) For purposes of paragraph (c)(1) of this section, unequal 
aggregate expenditures for members of each sex or unequal expenditures 
for male and female teams if a recipient operates or sponsors separate 
teams will not constitute noncompliance with this section, but the 
designated agency official may consider the failure to provide necessary 
funds for teams for one sex in assessing equality of opportunity for 
members of each sex.
    (d) Adjustment period. A recipient that operates or sponsors 
interscholastic, intercollegiate, club, or intramural athletics at the 
elementary school level shall comply fully with this section as 
expeditiously as possible but in no event later than one year from 
September 29, 2000. A recipient that operates or sponsors 
interscholastic, intercollegiate, club, or intramural athletics at the 
secondary or postsecondary school level shall comply fully with this 
section as expeditiously as possible but in no event later than three 
years from September 29, 2000.



Sec. 19.455  Textbooks and curricular material.

    Nothing in these Title IX regulations shall be interpreted as 
requiring or prohibiting or abridging in any way the use of particular 
textbooks or curricular materials.



Subpart E--Discrimination on the Basis of Sex in Employment in Education 
                    Programs or Activities Prohibited



Sec. 19.500  Employment.

    (a) General. (1) No person shall, on the basis of sex, be excluded 
from participation in, be denied the benefits of, or be subjected to 
discrimination in employment, or recruitment, consideration, or 
selection therefor, whether full-time or part-time, under any education 
program or activity operated by a recipient that receives Federal 
financial assistance.
    (2) A recipient shall make all employment decisions in any education 
program or activity operated by such recipient in a nondiscriminatory 
manner and shall not limit, segregate, or classify applicants or 
employees in any way that could adversely affect any applicant's or 
employee's employment opportunities or status because of sex.
    (3) A recipient shall not enter into any contractual or other 
relationship which directly or indirectly has the effect of subjecting 
employees or students to discrimination prohibited by Secs. 19.500 
through 19.550, including relationships with employment and referral 
agencies, with labor unions, and

[[Page 232]]

with organizations providing or administering fringe benefits to 
employees of the recipient.
    (4) A recipient shall not grant preferences to applicants for 
employment on the basis of attendance at any educational institution or 
entity that admits as students only or predominantly members of one sex, 
if the giving of such preferences has the effect of discriminating on 
the basis of sex in violation of these Title IX regulations.
    (b) Application. The provisions of Secs. 19.500 through 19.550 apply 
to:
    (1) Recruitment, advertising, and the process of application for 
employment;
    (2) Hiring, upgrading, promotion, consideration for and award of 
tenure, demotion, transfer, layoff, termination, application of nepotism 
policies, right of return from layoff, and rehiring;
    (3) Rates of pay or any other form of compensation, and changes in 
compensation;
    (4) Job assignments, classifications, and structure, including 
position descriptions, lines of progression, and seniority lists;
    (5) The terms of any collective bargaining agreement;
    (6) Granting and return from leaves of absence, leave for pregnancy, 
childbirth, false pregnancy, termination of pregnancy, leave for persons 
of either sex to care for children or dependents, or any other leave;
    (7) Fringe benefits available by virtue of employment, whether or 
not administered by the recipient;
    (8) Selection and financial support for training, including 
apprenticeship, professional meetings, conferences, and other related 
activities, selection for tuition assistance, selection for sabbaticals 
and leaves of absence to pursue training;
    (9) Employer-sponsored activities, including social or recreational 
programs; and
    (10) Any other term, condition, or privilege of employment.



Sec. 19.505  Employment criteria.

    A recipient shall not administer or operate any test or other 
criterion for any employment opportunity that has a disproportionately 
adverse effect on persons on the basis of sex unless:
    (a) Use of such test or other criterion is shown to predict validly 
successful performance in the position in question; and
    (b) Alternative tests or criteria for such purpose, which do not 
have such disproportionately adverse effect, are shown to be 
unavailable.



Sec. 19.510  Recruitment.

    (a) Nondiscriminatory recruitment and hiring. A recipient shall not 
discriminate on the basis of sex in the recruitment and hiring of 
employees. Where a recipient has been found to be presently 
discriminating on the basis of sex in the recruitment or hiring of 
employees, or has been found to have so discriminated in the past, the 
recipient shall recruit members of the sex so discriminated against so 
as to overcome the effects of such past or present discrimination.
    (b) Recruitment patterns. A recipient shall not recruit primarily or 
exclusively at entities that furnish as applicants only or predominantly 
members of one sex if such actions have the effect of discriminating on 
the basis of sex in violation of Secs. 19.500 through 19.550.



Sec. 19.515  Compensation.

    A recipient shall not make or enforce any policy or practice that, 
on the basis of sex:
    (a) Makes distinctions in rates of pay or other compensation;
    (b) Results in the payment of wages to employees of one sex at a 
rate less than that paid to employees of the opposite sex for equal work 
on jobs the performance of which requires equal skill, effort, and 
responsibility, and that are performed under similar working conditions.



Sec. 19.520  Job classification and structure.

    A recipient shall not:
    (a) Classify a job as being for males or for females;
    (b) Maintain or establish separate lines of progression, seniority 
lists, career ladders, or tenure systems based on sex; or
    (c) Maintain or establish separate lines of progression, seniority 
systems, career ladders, or tenure systems for

[[Page 233]]

similar jobs, position descriptions, or job requirements that classify 
persons on the basis of sex, unless sex is a bona fide occupational 
qualification for the positions in question as set forth in Sec. 19.550.



Sec. 19.525  Fringe benefits.

    (a) ``Fringe benefits'' defined. For purposes of these Title IX 
regulations, fringe benefits means: Any medical, hospital, accident, 
life insurance, or retirement benefit, service, policy or plan, any 
profit-sharing or bonus plan, leave, and any other benefit or service of 
employment not subject to the provision of Sec. 19.515.
    (b) Prohibitions. A recipient shall not:
    (1) Discriminate on the basis of sex with regard to making fringe 
benefits available to employees or make fringe benefits available to 
spouses, families, or dependents of employees differently upon the basis 
of the employee's sex;
    (2) Administer, operate, offer, or participate in a fringe benefit 
plan that does not provide for equal periodic benefits for members of 
each sex and for equal contributions to the plan by such recipient for 
members of each sex; or
    (3) Administer, operate, offer, or participate in a pension or 
retirement plan that establishes different optional or compulsory 
retirement ages based on sex or that otherwise discriminates in benefits 
on the basis of sex.



Sec. 19.530  Marital or parental status.

    (a) General. A recipient shall not apply any policy or take any 
employment action:
    (1) Concerning the potential marital, parental, or family status of 
an employee or applicant for employment that treats persons differently 
on the basis of sex; or
    (2) Which is based upon whether an employee or applicant for 
employment is the head of household or principal wage earner in such 
employee's or applicant's family unit.
    (b) Pregnancy. A recipient shall not discriminate against or exclude 
from employment any employee or applicant for employment on the basis of 
pregnancy, childbirth, false pregnancy, termination of pregnancy, or 
recovery therefrom.
    (c) Pregnancy as a temporary disability. Subject to Sec. 19235(d), a 
recipient shall treat pregnancy, childbirth, false pregnancy, 
termination of pregnancy, recovery therefrom, and any temporary 
disability resulting therefrom as any other temporary disability for all 
job-related purposes, including commencement, duration, and extensions 
of leave, payment of disability income, accrual of seniority and any 
other benefit or service, and reinstatement, and under any fringe 
benefit offered to employees by virtue of employment.
    (d) Pregnancy leave. In the case of a recipient that does not 
maintain a leave policy for its employees, or in the case of an employee 
with insufficient leave or accrued employment time to qualify for leave 
under such a policy, a recipient shall treat pregnancy, childbirth, 
false pregnancy, termination of pregnancy, and recovery therefrom as a 
justification for a leave of absence without pay for a reasonable period 
of time, at the conclusion of which the employee shall be reinstated to 
the status that she held when the leave began or to a comparable 
position, without decrease in rate of compensation or loss of 
promotional opportunities, or any other right or privilege of 
employment.



Sec. 19.535  Effect of state or local law or other requirements.

    (a) Prohibitory requirements. The obligation to comply with 
Secs. 19.500 through 19.550 is not obviated or alleviated by the 
existence of any State or local law or other requirement that imposes 
prohibitions or limits upon employment of members of one sex that are 
not imposed upon members of the other sex.
    (b) Benefits. A recipient that provides any compensation, service, 
or benefit to members of one sex pursuant to a State or local law or 
other requirement shall provide the same compensation, service, or 
benefit to members of the other sex.



Sec. 19.540  Advertising.

    A recipient shall not in any advertising related to employment 
indicate preference, limitation, specification, or discrimination based 
on sex unless sex is a bona fide occupational qualification for the 
particular job in question.

[[Page 234]]



Sec. 19.545  Pre-employment inquiries.

    (a) Marital status. A recipient shall not make pre-employment 
inquiry as to the marital status of an applicant for employment, 
including whether such applicant is ``Miss'' or ``Mrs.''
    (b) Sex. A recipient may make pre-employment inquiry as to the sex 
of an applicant for employment, but only if such inquiry is made equally 
of such applicants of both sexes and if the results of such inquiry are 
not used in connection with discrimination prohibited by these Title IX 
regulations.



Sec. 19.550  Sex as a bona fide occupational qualification.

    A recipient may take action otherwise prohibited by Secs. 19.500 
through 19.550 provided it is shown that sex is a bona fide occupational 
qualification for that action, such that consideration of sex with 
regard to such action is essential to successful operation of the 
employment function concerned. A recipient shall not take action 
pursuant to this section that is based upon alleged comparative 
employment characteristics or stereotyped characterizations of one or 
the other sex, or upon preference based on sex of the recipient, 
employees, students, or other persons, but nothing contained in this 
section shall prevent a recipient from considering an employee's sex in 
relation to employment in a locker room or toilet facility used only by 
members of one sex.



                          Subpart F--Procedures



Sec. 19.600  Notice of covered programs.

    Within 60 days of September 29, 2000, each Federal agency that 
awards Federal financial assistance shall publish in the Federal 
Register a notice of the programs covered by these Title IX regulations. 
Each such Federal agency shall periodically republish the notice of 
covered programs to reflect changes in covered programs. Copies of this 
notice also shall be made available upon request to the Federal agency's 
office that enforces Title IX.



Sec. 196.605  Enforcement procedures.

    The investigative, compliance, and enforcement procedural provisions 
of Title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d) (``Title 
VI'') are hereby adopted and applied to these Title IX regulations. 
These procedures may be found at 32 CFR 195.7 through 195.12.

                         PARTS 20-24 [RESERVED]



PART 25--UNIFORM RELOCATION ASSISTANCE AND REAL PROPERTY ACQUISITION FOR FEDERAL AND FEDERALLY ASSISTED PROGRAMS--Table of Contents




    Authority: Sec. 213, Uniform Relocation Assistance and Real Property 
Acquisition Policies Act of 1970, Pub. L. 91-646, 84 Stat. 1894 (42 
U.S.C. 4601) as amended by the Surface Transportation and Uniform 
Relocation Assistance Act of 1987, title IV of Pub. L. 100-17, 101 Stat. 
246-256 (42 U.S.C. 4601 note).



Sec. 25.1  Uniform relocation assistance and real property acquisition.

    Regulations and procedures for complying with the Uniform Relocation 
Assistance and Real Property Acquisition Policies Act of 1970 (Pub. L. 
91-646, 84 Stat. 1894, 42 U.S.C. 4601), as amended by the Surface 
Transportation and Uniform Relocation Assistance Act of 1987 (title IV 
of Pub. L. 100-17, 101 Stat. 246-256, 42 U.S.C. 4601 note) are set forth 
in 49 CFR part 24.

[52 FR 48026, Dec. 17, 1987 and 54 FR 8912, Mar. 2, 1989]

                         PARTS 26-49 [RESERVED]

[[Page 235]]



              SUBCHAPTER B--INSURANCE AND HAZARD MITIGATION



                         PARTS 50-54 [RESERVED]

                 National Insurance Development Program

                         PARTS 55-58 [RESERVED]

                    National Flood Insurance Program



PART 59--GENERAL PROVISIONS--Table of Contents




                           Subpart A--General

Sec.
59.1  Definitions.
59.2  Description of program.
59.3  Emergency program.
59.4  References.

                   Subpart B--Eligibility Requirements

59.21  Purpose of subpart.
59.22  Prerequisites for the sale of flood insurance.
59.23  Priorities for the sale of flood insurance under the regular 
          program.
59.24  Suspension of community eligibility.

                   Subpart C--Pilot Inspection Program

59.30  A pilot inspection procedure.

    Authority: 42 U.S.C. 4001 et seq.; Reorganization Plan No. 3 of 
1978, 43 FR 41943, 3 CFR, 1978 Comp., p. 329; E.O. 12127 of Mar. 31, 
1979, 44 FR 19367, 3 CFR, 1979 Comp., p. 376.



                           Subpart A--General



Sec. 59.1  Definitions.

    As used in this subchapter--
    Act means the statutes authorizing the National Flood Insurance 
Program that are incorporated in 42 U.S.C. 4001-4128.
    Actuarial rates--see risk premium rates.
    Administrator means the Federal Insurance Administrator.
    Agency means the Federal Emergency Management Agency, Washington DC.
    Alluvial fan flooding means flooding occurring on the surface of an 
alluvial fan or similar landform which originates at the apex and is 
characterized by high-velocity flows; active processes of erosion, 
sediment transport, and deposition; and, unpredictable flow paths.
    Apex means a point on an alluvial fan or similar landform below 
which the flow path of the major stream that formed the fan becomes 
unpredictable and alluvial fan flooding can occur.
    Applicant means a community which indicates a desire to participate 
in the Program.
    Appurtenant structure means a structure which is on the same parcel 
of property as the principal structure to be insured and the use of 
which is incidental to the use of the principal structure.
    Area of future-conditions flood hazard means the land area that 
would be inundated by the 1-percent-annual-chance (100-year) flood based 
on future-conditions hydrology.
    Area of shallow flooding means a designated AO, AH, AR/AO, AR/AH, or 
VO zone on a community's Flood Insurance Rate Map (FIRM) with a 1 
percent or greater annual chance of flooding to an average depth of 1 to 
3 feet where a clearly defined channel does not exist, where the path of 
flooding is unpredictable, and where velocity flow may be evident. Such 
flooding is characterized by ponding or sheet flow.
    Area of special flood-related erosion hazard is the land within a 
community which is most likely to be subject to severe flood-related 
erosion losses. The area may be designated as Zone E on the Flood Hazard 
Boundary Map (FHBM). After the detailed evaluation of the special flood-
related erosion hazard area in preparation for publication of the FIRM, 
Zone E may be further refined.
    Area of special flood hazard is the land in the flood plain within a 
community subject to a 1 percent or greater chance of flooding in any 
given year. The area may be designated as Zone A on the FHBM. After 
detailed ratemaking has been completed in preparation for publication of 
the flood insurance rate map, Zone A usually is refined into Zones A, 
AO, AH, A1-30, AE, A99, AR, AR/A1-30, AR/AE, AR/AO, AR/AH, AR/A, VO, or 
V1-30, VE, or V. For purposes of these regulations, the term ``special 
flood hazard area'' is synonymous in

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meaning with the phrase ``area of special flood hazard''.
    Area of special mudslide (i.e., mudflow) hazard is the land within a 
community most likely to be subject to severe mudslides (i.e., 
mudflows). The area may be designated as Zone M on the FHBM. After the 
detailed evaluation of the special mudslide (i.e., mudflow) hazard area 
in preparation for publication of the FIRM, Zone M may be further 
refined.
    Base flood means the flood having a one percent chance of being 
equalled or exceeded in any given year.
    Basement'' means any area of the building having its floor subgrade 
(below ground level) on all sides.
    Breakaway wall means a wall that is not part of the structural 
support of the building and is intended through its design and 
construction to collapse under specific lateral loading forces, without 
causing damage to the elevated portion of the building or supporting 
foundation system.
    Building--see structure.
    Chargeable rates mean the rates established by the Administrator 
pursuant to section 1308 of the Act for first layer limits of flood 
insurance on existing structures.
    Chief Executive Officer of the community (CEO) means the official of 
the community who is charged with the authority to implement and 
administer laws, ordinances and regulations for that community.
    Coastal high hazard area means an area of special flood hazard 
extending from offshore to the inland limit of a primary frontal dune 
along an open coast and any other area subject to high velocity wave 
action from storms or seismic sources.
    Community means any State or area or political subdivision thereof, 
or any Indian tribe or authorized tribal organization, or Alaska Native 
village or authorized native organization, which has authority to adopt 
and enforce flood plain management regulations for the areas within its 
jurisdiction.
    Contents coverage is the insurance on personal property within an 
enclosed structure, including the cost of debris removal, and the 
reasonable cost of removal of contents to minimize damage. Personal 
property may be household goods usual or incidental to residential 
occupancy, or merchandise, furniture, fixtures, machinery, equipment and 
supplies usual to other than residential occupancies.
    Criteria means the comprehensive criteria for land management and 
use for flood-prone areas developed under 42 U.S.C. 4102 for the 
purposes set forth in part 60 of this subchapter.
    Critical feature means an integral and readily identifiable part of 
a flood protection system, without which the flood protection provided 
by the entire system would be compromised.
    Curvilinear Line means the border on either a FHBM or FIRM that 
delineates the special flood, mudslide (i.e., mudflow) and/or flood-
related erosion hazard areas and consists of a curved or contour line 
that follows the topography.
    Deductible means the fixed amount or percentage of any loss covered 
by insurance which is borne by the insured prior to the insurer's 
liability.
    Developed area means an area of a community that is:
    (a) A primarily urbanized, built-up area that is a minimum of 20 
contiguous acres, has basic urban infrastructure, including roads, 
utilities, communications, and public facilities, to sustain industrial, 
residential, and commercial activities, and
    (1) Within which 75 percent or more of the parcels, tracts, or lots 
contain commercial, industrial, or residential structures or uses; or
    (2) Is a single parcel, tract, or lot in which 75 percent of the 
area contains existing commercial or industrial structures or uses; or
    (3) Is a subdivision developed at a density of at least two 
residential structures per acre within which 75 percent or more of the 
lots contain existing residential structures at the time the designation 
is adopted.
    (b) Undeveloped parcels, tracts, or lots, the combination of which 
is less than 20 acres and contiguous on at least 3 sides to areas 
meeting the criteria of paragraph (a) at the time the designation is 
adopted.
    (c) A subdivision that is a minimum of 20 contiguous acres that has 
obtained all necessary government approvals, provided that the actual

[[Page 237]]

``start of construction'' of structures has occurred on at least 10 
percent of the lots or remaining lots of a subdivision or 10 percent of 
the maximum building coverage or remaining building coverage allowed for 
a single lot subdivision at the time the designation is adopted and 
construction of structures is underway. Residential subdivisions must 
meet the density criteria in paragraph (a)(3).
    Development means any man-made change to improved or unimproved real 
estate, including but not limited to buildings or other structures, 
mining, dredging, filling, grading, paving, excavation or drilling 
operations or storage of equipment or materials..
    Director means the Director of the Federal Emergency Management 
Agency.
    Eligible community or participating community means a community for 
which the Administrator has authorized the sale of flood insurance under 
the National Flood Insurance Program.
    Elevated building means, for insurance purposes, a nonbasement 
building which has its lowest elevated floor raised above ground level 
by foundation walls, shear walls, posts, piers, pilings, or columns.
    Emergency Flood Insurance Program or emergency program means the 
Program as implemented on an emergency basis in accordance with section 
1336 of the Act. It is intended as a program to provide a first layer 
amount of insurance on all insurable structures before the effective 
date of the initial FIRM.
    Erosion means the process of the gradual wearing away of land 
masses. This peril is not per se covered under the Program.
    Exception means a waiver from the provisions of part 60 of this 
subchapter directed to a community which relieves it from the 
requirements of a rule, regulation, order or other determination made or 
issued pursuant to the Act.
    Existing construction, means for the purposes of determining rates, 
structures for which the ``start of construction'' commenced before the 
effective date of the FIRM or before January 1, 1975, for FIRMs 
effective before that date. ``Existing construction'' may also be 
referred to as ``existing structures.''
    Existing manufactured home park or subdivision means a manufactured 
home park or subdivision for which the construction of facilities for 
servicing the lots on which the manufactured homes are to be affixed 
(including, at a minimum, the installation of utilities, the 
construction of streets, and either final site grading or the pouring of 
concrete pads) is completed before the effective date of the floodplain 
management regulations adopted by a community.
    Existing structures see existing construction.
    Expansion to an existing manfactured home park or subdivision means 
the preparation of additional sites by the construction of facilities 
for servicing the lots on which the manufacturing homes are to be 
affixed (including the installation of utilities, the construction of 
streets, and either final site grading or the pouring of concrete pads).
    Federal agency means any department, agency, corporation, or other 
entity or instrumentality of the executive branch of the Federal 
Government, and includes the Federal National Mortgage Association and 
the Federal Home Loan Mortgage Corporation.
    Federal instrumentality responsible for the supervision, approval, 
regulation, or insuring of banks, savings and loan associations, or 
similar institutions means the Board of Governors of the Federal Reserve 
System, the Federal Deposit Insurance Corporation, the Comptroller of 
the Currency, the Federal Home Loan Bank Board, the Federal Savings and 
Loan Insurance Corporation, and the National Credit Union 
Administration.
    Financial assistance means any form of loan, grant, guaranty, 
insurance, payment, rebate, subsidy, disaster assistance loan or grant, 
or any other form of direct or indirect Federal assistance, other than 
general or special revenue sharing or formula grants made to States.
    Financial assistance for acquisition or construction purposes means 
any form of financial assistance which is intended in whole or in part 
for the acquisition, construction, reconstruction, repair, or 
improvement of any publicly or privately owned building or mobile home,

[[Page 238]]

and for any machinery, equipment, fixtures, and furnishings contained or 
to be contained therein, and shall include the purchase or subsidization 
of mortgages or mortgage loans but shall exclude assistance pursuant to 
the Disaster Relief Act of 1974 other than assistance under such Act in 
connection with a flood. It includes only financial assistance insurable 
under the Standard Flood Insurance Policy.
    First-layer coverage is the maximum amount of structural and 
contents insurance coverage available under the Emergency Program.
    Flood or Flooding means:
    (a) A general and temporary condition of partial or complete 
inundation of normally dry land areas from:
    (1) The overflow of inland or tidal waters.
    (2) The unusual and rapid accumulation or runoff of surface waters 
from any source.
    (3) Mudslides (i.e., mudflows) which are proximately caused by 
flooding as defined in paragraph (a)(2) of this definition and are akin 
to a river of liquid and flowing mud on the surfaces of normally dry 
land areas, as when earth is carried by a current of water and deposited 
along the path of the current.
    (b) The collapse or subsidence of land along the shore of a lake or 
other body of water as a result of erosion or undermining caused by 
waves or currents of water exceeding anticipated cyclical levels or 
suddenly caused by an unusually high water level in a natural body of 
water, accompanied by a severe storm, or by an unanticipated force of 
nature, such as flash flood or an abnormal tidal surge, or by some 
similarly unusual and unforeseeable event which results in flooding as 
defined in paragraph (a)(1) of this definition.
    Flood elevation determination means a determination by the 
Administrator of the water surface elevations of the base flood, that 
is, the flood level that has a one percent or greater chance of 
occurrence in any given year.
    Flood elevation study means an examination, evaluation and 
determination of flood hazards and, if appropriate, corresponding water 
surface elevations, or an examination, evaluation and determination of 
mudslide (i.e., mudflow) and/or flood-related erosion hazards.
    Flood Hazard Boundary Map (FHBM) means an official map of a 
community, issued by the Administrator, where the boundaries of the 
flood, mudslide (i.e., mudflow) related erosion areas having special 
hazards have been designated as Zones A, M, and/or E.
    Flood insurance means the insurance coverage provided under the 
Program.
    Flood Insurance Rate Map (FIRM) means an official map of a 
community, on which the Administrator has delineated both the special 
hazard areas and the risk premium zones applicable to the community.
    Flood Insurance Study see flood elevation study.
    Flood plain or flood-prone area means any land area susceptible to 
being inundated by water from any source (see definition of 
``flooding'').
    Flood plain management means the operation of an overall program of 
corrective and preventive measures for reducing flood damage, including 
but not limited to emergency preparedness plans, flood control works and 
flood plain management regulations.
    Flood plain management regulations means zoning ordinances, 
subdivision regulations, building codes, health regulations, special 
purpose ordinances (such as a flood plain ordinance, grading ordinance 
and erosion control ordinance) and other applications of police power. 
The term describes such state or local regulations, in any combination 
thereof, which provide standards for the purpose of flood damage 
prevention and reduction.
    Flood protection system means those physical structural works for 
which funds have been authorized, appropriated, and expended and which 
have been constructed specifically to modify flooding in order to reduce 
the extent of the area within a community subject to a ``special flood 
hazard'' and the extent of the depths of associated flooding. Such a 
system typically includes hurricane tidal barriers, dams, reservoirs, 
levees or dikes. These specialized flood modifying works are those 
constructed in conformance with sound engineering standards.
    Flood proofing means any combination of structural and non-
structural additions, changes, or adjustments to structures which reduce 
or eliminate

[[Page 239]]

flood damage to real estate or improved real property, water and 
sanitary facilities, structures and their contents.
    Flood-related erosion means the collapse or subsidence of land along 
the shore of a lake or other body of water as a result of undermining 
caused by waves or currents of water exceeding anticipated cyclical 
levels or suddenly caused by an unusually high water level in a natural 
body of water, accompanied by a severe storm, or by an unanticipated 
force of nature, such as a flash flood or an abnormal tidal surge, or by 
some similarly unusual and unforeseeable event which results in 
flooding.
    Flood-related erosion area or flood-related erosion prone area means 
a land area adjoining the shore of a lake or other body of water, which 
due to the composition of the shoreline or bank and high water levels or 
wind-driven currents, is likely to suffer flood-related erosion damage.
    Flood-related erosion area management means the operation of an 
overall program of corrective and preventive measures for reducing 
flood-related erosion damage, including but not limited to emergency 
preparedness plans, flood-related erosion control works, and flood plain 
management regulations.
    Floodway-- see regulatory floodway.
    Floodway encroachment lines mean the lines marking the limits of 
floodways on Federal, State and local flood plain maps.
    Freeboard means a factor of safety usually expressed in feet above a 
flood level for purposes of flood plain management. ``Freeboard'' tends 
to compensate for the many unknown factors that could contribute to 
flood heights greater than the height calculated for a selected size 
flood and floodway conditions, such as wave action, bridge openings, and 
the hydrological effect of urbanization of the watershed.
    Functionally dependent use means a use which cannot perform its 
intended purpose unless it is located or carried out in close proximity 
to water. The term includes only docking facilities, port facilities 
that are necessary for the loading and unloading of cargo or passengers, 
and ship building and ship repair facilities, but does not include long-
term storage or related manufacturing facilities.
    Future-conditions flood hazard area, or future-conditions 
floodplain--see Area of future-conditions flood hazard.
    Future-conditions hydrology means the flood discharges associated 
with projected land-use conditions based on a community's zoning maps 
and/or comprehensive land-use plans and without consideration of 
projected future construction of flood detention structures or projected 
future hydraulic modifications within a stream or other waterway, such 
as bridge and culvert construction, fill, and excavation.
    General Counsel means the General Counsel of the Federal Emergency 
Management Agency.
    Highest adjacent grade means the highest natural elevation of the 
ground surface prior to construction next to the proposed walls of a 
structure.
    Historic Structure means any structure that is:
    (a) Listed individually in the National Register of Historic Places 
(a listing maintained by the Department of Interior) or preliminarily 
determined by the Secretary of the Interior as meeting the requirements 
for individual listing on the National Register;
    (b) Certified or preliminarily determined by the Secretary of the 
Interior as contributing to the historical significance of a registered 
historic district or a district preliminarily determined by the 
Secretary to qualify as a registered historic district;
    (c) Individually listed on a state inventory of historic places in 
states with historic preservation programs which have been approved by 
the Secretary of the Interior; or
    (d) Individually listed on a local inventory of historic places in 
communities with historic preservation programs that have been certified 
either:
    (1) By an approved state program as determined by the Secretary of 
the Interior or
    (2) Directly by the Secretary of the Interior in states without 
approved programs.
    Independent scientific body means a non-Federal technical or 
scientific organization involved in the study of

[[Page 240]]

land use planning, flood plain management, hydrology, geology, 
geography, or any other related field of study concerned with flooding.
    Insurance adjustment organization means any organization or person 
engaged in the business of adjusting loss claims arising under the 
Standard Flood Insurance Policy.
    Insurance company or insurer means any person or organization 
authorized to engage in the insurance business under the laws of any 
State.
    Levee means a man-made structure, usually an earthen embankment, 
designed and constructed in accordance with sound engineering practices 
to contain, control, or divert the flow of water so as to provide 
protection from temporary flooding.
    Levee System means a flood protection system which consists of a 
levee, or levees, and associated structures, such as closure and 
drainage devices, which are constructed and operated in accordance with 
sound engineering practices.
    Lowest Floor means the lowest floor of the lowest enclosed area 
(including basement). An unfinished or flood resistant enclosure, usable 
solely for parking of vehicles, building access or storage in an area 
other than a basement area is not considered a building's lowest floor; 
Provided, that such enclosure is not built so as to render the structure 
in violation of the applicable non-elevation design requirements of 
Sec. 60.3.
    Mangrove stand means an assemblage of mangrove trees which are 
mostly low trees noted for a copious development of interlacing 
adventitious roots above the ground and which contain one or more of the 
following species: Black mangrove (Avicennia Nitida); red mangrove 
(Rhizophora Mangle); white mangrove (Languncularia Racemosa); and 
buttonwood (Conocarpus Erecta).
    Manufactured home means a structure, transportable in one or more 
sections, which is built on a permanent chassis and is designed for use 
with or without a permanent foundation when attached to the required 
utilities. The term ``manufactured home'' does not include a 
``recreational vehicle''.
    Manufactured home park or subdivision'' means a parcel (or 
contiguous parcels) of land divided into two or more manufactured home 
lots for rent or sale.
    Map means the Flood Hazard Boundary Map (FHBM) or the Flood 
Insurance Rate Map (FIRM) for a community issued by the Agency.
    Mean sea level means, for purposes of the National Flood Insurance 
Program, the National Geodetic Vertical Datum (NGVD) of 1929 or other 
datum, to which base flood elevations shown on a community's Flood 
Insurance Rate Map are referenced.
    Mudslide(i.e., mudflow) describes a condition where there is a 
river, flow or inundation of liquid mud down a hillside usually as a 
result of a dual condition of loss of brush cover, and the subsequent 
accumulation of water on the ground preceded by a period of unusually 
heavy or sustained rain. A mudslide (i.e., mudflow) may occur as a 
distinct phenomenon while a landslide is in progress, and will be 
recognized as such by the Administrator only if the mudflow, and not the 
landslide, is the proximate cause of damage that occurs.
    Mudslide (i.e., mudflow) area management means the operation of an 
overall program of corrective and preventive measures for reducing 
mudslide (i.e., mudflow) damage, including but not limited to emergency 
preparedness plans, mudslide control works, and flood plain management 
regulations.
    Mudslide (i.e., mudflow) prone area means an area with land surfaces 
and slopes of unconsolidated material where the history, geology and 
climate indicate a potential for mudflow.
    New construction means, for the purposes of determining insurance 
rates, structures for which the ``start of construction'' commenced on 
or after the effective date of an initial FIRM or after December 31, 
1974, whichever is later, and includes any subsequent improvements to 
such structures. For floodplain management purposes, new construction 
means structures for which the start of construction commenced on or 
after the effective date of a floodplain management regulation adopted 
by a community and includes any subsequent improvements to such 
structures.

[[Page 241]]

    New manufactured home park or subdivision means a manufactured home 
park or subdivision for which the construciton of facilities for 
servicing the lots on which the manufactured homes are to be affixed 
(including at a minimum, the installation of utilities, the construction 
of streets, and either final site grading or the pouring of concrete 
pads) is completed on or after the effective date of floodplain 
management regulations adopted by a community.
    100-year flood see base flood.
    Participating community, also known as an eligible community, means 
a community in which the Administrator has authorized the sale of flood 
insurance.
    Person includes any individual or group of individuals, corporation, 
partnership, association, or any other entity, including State and local 
governments and agencies.
    Policy means the Standard Flood Insurance Policy.
    Premium means the total premium payable by the insured for the 
coverage or coverages provided under the policy. The calculation of the 
premium may be based upon either chargeable rates or risk premium rates, 
or a combination of both.
    Primary frontal dune means a continuous or nearly continuous mound 
or ridge of sand with relatively steep seaward and landward slopes 
immediately landward and adjacent to the beach and subject to erosion 
and overtopping from high tides and waves during major coastal storms. 
The inland limit of the primary frontal dune occurs at the point where 
there is a distinct change from a relatively steep slope to a relatively 
mild slope.
    Principally above ground means that at least 51 percent of the 
actual cash value of the structure, less land value, is above ground.
    Program means the National Flood Insurance Program authorized by 42 
U.S.C. 4001 through 4128.
    Program deficiency means a defect in a community's flood plain 
management regulations or administrative procedures that impairs 
effective implementation of those flood plain management regulations or 
of the standards in Secs. 60.3, 60.4, 60.5, or 60.6.
    Project cost means the total financial cost of a flood protection 
system (including design, land acquisition, construction, fees, 
overhead, and profits), unless the Federal Insurance Administrator 
determines a given ``cost'' not to be a part of such project cost.
    Recreational vehicle means a vehicle which is:
    (a) Built on a single chassis;
    (b) 400 square feet or less when measured at the largest horizontal 
projection;
    (c) Designed to be self-propelled or permanently towable by a light 
duty truck; and
    (d) Designed primarily not for use as a permanent dwelling but as 
temporary living quarters for recreational, camping, travel, or seasonal 
use.
    Reference feature is the receding edge of a bluff or eroding frontal 
dune, or if such a feature is not present, the normal high-water line or 
the seaward line of permanent vegetation if a high-water line cannot be 
identified.
    Regular Program means the Program authorized by the Act under which 
risk premium rates are required for the first half of available coverage 
(also known as ``first layer'' coverage) for all new construction and 
substantial improvements started on or after the effective date of the 
FIRM, or after December 31, 1974, for FIRM's effective on or before that 
date. All buildings, the construction of which started before the 
effective date of the FIRM, or before January 1, 1975, for FIRMs 
effective before that date, are eligible for first layer coverage at 
either subsidized rates or risk premium rates, whichever are lower. 
Regardless of date of construction, risk premium rates are always 
required for the second layer coverage and such coverage is offered only 
after the Administrator has completed a risk study for the community.
    Regulatory floodway means the channel of a river or other 
watercourse and the adjacent land areas that must be reserved in order 
to discharge the base flood without cumulatively increasing the water 
surface elevation more than a designated height.
    Remedy a violation means to bring the structure or other development 
into compliance with State or local flood plain management regulations, 
or, if

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this is not possible, to reduce the impacts of its noncompliance. Ways 
that impacts may be reduced include protecting the structure or other 
affected development from flood damages, implementing the enforcement 
provisions of the ordinance or otherwise deterring future similar 
violations, or reducing Federal financial exposure with regard to the 
structure or other development.
    Risk premium rates mean those rates established by the Administrator 
pursuant to individual community studies and investigations which are 
undertaken to provide flood insurance in accordance with section 1307 of 
the Act and the accepted actuarial principles. ``Risk premium rates'' 
include provisions for operating costs and allowances.
    Riverine means relating to, formed by, or resembling a river 
(including tributaries), stream, brook, etc.
    Sand dunes mean naturally occurring accumulations of sand in ridges 
or mounds landward of the beach.
    Scientifically incorrect. The methodology(ies) and/or assumptions 
which have been utilized are inappropriate for the physical processes 
being evaluated or are otherwise erroneous.
    Second layer coverage means an additional limit of coverage equal to 
the amounts made available under the Emergency Program, and made 
available under the Regular Program.
    Servicing company means a corporation, partnership, association, or 
any other organized entity which contracts with the Federal Insurance 
Administration to service insurance policies under the National Flood 
Insurance Program for a particular area.
    Sheet flow area-- see area of shallow flooding.
    60-year setback means a distance equal to 60 times the average 
annual long term recession rate at a site, measured from the reference 
feature.
    Special flood hazard area-- see ``area of special flood hazard''.
    Special hazard area means an area having special flood, mudslide 
(i.e., mudflow), or flood-related erosion hazards, and shown on an FHBM 
or FIRM as Zone A, AO, A1-30, AE, AR, AR/A1-30, AR/AE, AR/AO, AR/AH, AR/
A, A99, AH, VO, V1-30, VE, V, M, or E.
    Standard Flood Insurance Policy means the flood insurance policy 
issued by the Federal Insurance Administrator, or an insurer pursuant to 
an arrangement with the Administrator pursuant to Federal statutes and 
regulations.
    Start of Construction (for other than new construction or 
substantial improvements under the Coastal Barrier Resources Act (Pub. 
L. 97-348)), includes substantial improvement, and means the date the 
building permit was issued, provided the actual start of construction, 
repair, reconstruction, rehabilitation, addition placement, or other 
improvement was within 180 days of the permit date. The actual start 
means either the first placement of permanent construction of a 
structure on a site, such as the pouring of slab or footings, the 
installation of piles, the construction of columns, or any work beyond 
the stage of excavation; or the placement of a manufactured home on a 
foundation. Permanent construction does not include land preparation, 
such as clearing, grading and filling; nor does it include the 
installation of streets and/or walkways; nor does it include excavation 
for a basement, footings, piers, or foundations or the erection of 
temporary forms; nor does it include the installation on the property of 
accessory buildings, such as garages or sheds not occupied as dwelling 
units or not part of the main structure. For a substantial improvement, 
the actual start of construction means the first alteration of any wall, 
ceiling, floor, or other structural part of a building, whether or not 
that alteration affects the external dimensions of the building.
    State means any State, the District of Columbia, the territories and 
possessions of the United States, the Commonwealth of Puerto Rico, and 
the Trust Territory of the Pacific Islands.
    State coordinating agency means the agency of the state government, 
or other office designated by the Governor of the state or by state 
statute at the request of the Administrator to assist in the 
implementation of the National Flood Insurance Program in that state.
    Storm cellar means a space below grade used to accommodate occupants

[[Page 243]]

of the structure and emergency supplies as a means of temporary shelter 
against severe tornado or similar wind storm activity.
    Structure means, for floodplain management purposes, a walled and 
roofed building, including a gas or liquid storage tank, that is 
principally above ground, as well as a manufactured home. Structure, for 
insurance purposes, means:
    (1) A building with two or more outside rigid walls and a fully 
secured roof, that is affixed to a permanent site;
    (2) A manufactured home (``a manufactured home,'' also known as a 
mobile home, is a structure: built on a permanent chassis, transported 
to its site in one or more sections, and affixed to a permanent 
foundation); or
    (3) A travel trailer without wheels, built on a chassis and affixed 
to a permanent foundation, that is regulated under the community's 
floodplain management and building ordinances or laws.

For the latter purpose, ``structure'' does not mean a recreational 
vehicle or a park trailer or other similar vehicle, except as described 
in paragraph (3) of this definition, or a gas or liquid storage tank.
    Subsidized rates mean the rates established by the Administrator 
involving in the aggregate a subsidization by the Federal Government.
    Substantial damage means damage of any origin sustained by a 
structure whereby the cost of restoring the structure to its before 
damaged condition would equal or exceed 50 percent of the market value 
of the structure before the damage occurred.
    Substantial improvement means any reconstruction, rehabilitation, 
addition, or other improvement of a structure, the cost of which equals 
or exceeds 50 percent of the market value of the structure before the 
``start of construction'' of the improvement. This term includes 
structures which have incurred ``substantial damage'', regardless of the 
actual repair work performed. The term does not, however, include 
either:
    (1) Any project for improvement of a structure to correct existing 
violations of state or local health, sanitary, or safety code 
specifications which have been identified by the local code enforcement 
official and which are the minimum necessary to assure safe living 
conditions or
    (2) Any alteration of a ``historic structure'', provided that the 
alteration will not preclude the structure's continued designation as a 
``historic structure''.
    30-year setback means a distance equal to 30 times the average 
annual long term recession rate at a site, measured from the reference 
feature.
    Technically incorrect. The methodology(ies) utilized has been 
erroneously applied due to mathematical or measurement error, changed 
physical conditions, or insufficient quantity or quality of input data.
    V Zone--see ``coastal high hazard area.''
    Variance means a grant of relief by a community from the terms of a 
flood plain management regulation.
    Violation means the failure of a structure or other development to 
be fully compliant with the community's flood plain management 
regulations. A structure or other development without the elevation 
certificate, other certifications, or other evidence of compliance 
required in Sec. 60.3(b)(5), (c)(4), (c)(10), (d)(3), (e)(2), (e)(4), or 
(e)(5) is presumed to be in violation until such time as that 
documentation is provided.
    Water surface elevation means the height, in relation to the 
National Geodetic Vertical Datum (NGVD) of 1929, (or other datum, where 
specified) of floods of various magnitudes and frequencies in the flood 
plains of coastal or riverine areas.
    Zone of imminent collapse means an area subject to erosion adjacent 
to the shoreline of an ocean, bay, or lake and within a distance equal 
to 10 feet plus 5 times the average annual long-term erosion rate for 
the site, measured from the reference feature.

[41 FR 46968, Oct. 26, 1976]

    Editorial Note: For Federal Register citations affecting Sec. 59.1, 
see the List of CFR Sections Affected, which appears in the Finding Aids 
section of the printed volume and on GPO access.

[[Page 244]]



Sec. 59.2  Description of program.

    (a) The National Flood Insurance Act of 1968 was enacted by title 
XIII of the Housing and Urban Development Act of 1968 (Pub. L. 90-448, 
August 1, 1968) to provide previously unavailable flood insurance 
protection to property owners in flood-prone areas. Mudslide (as defined 
in Sec. 59.1) protection was added to the Program by the Housing and 
Urban Development Act of 1969 (Pub. L. 91-152, December 24, 1969). 
Flood-related erosion (as defined in Sec. 59.1) protection was added to 
the Program by the Flood Disaster Protection Act of 1973 (Pub. L. 93-
234, December 31, 1973). The Flood Disaster Protection Act of 1973 
requires the purchase of flood insurance on and after March 2, 1974, as 
a condition of receiving any form of Federal or federally-related 
financial assistance for acquisition or construction purposes with 
respect to insurable buildings and mobile homes within an identified 
special flood, mudslide (i.e., mudflow), or flood-related erosion hazard 
area that is located within any community participating in the Program. 
The Act also requires that on and after July 1, 1975, or one year after 
a community has been formally notified by the Administrator of its 
identification as community containing one or more special flood, 
mudslide (i.e., mudflow), or flood-related erosion hazard areas, no such 
Federal financial assistance, shall be provided within such an area 
unless the community in which the area is located is then participating 
in the Program, subject to certain exceptions. See FIA published 
Guidelines at Sec. 59.4(c).
    (b) To qualify for the sale of federally-subsidized flood insurance 
a community must adopt and submit to the Administrator as part of its 
application, flood plain management regulations, satisfying at a minimum 
the criteria set forth at part 60 of this subchapter, designed to reduce 
or avoid future flood, mudslide (i.e., mudflow) or flood-related erosion 
damages. These regulations must include effective enforcement 
provisions.
    (c) Minimum requirements for adequate flood plain management 
regulations are set forth in Sec. 60.3 for flood-prone areas, in 
Sec. 60.4 for mudslide (i.e., mudflow) areas and in Sec. 60.5 for flood-
related erosion areas. Those applicable requirements and standards are 
based on the amount of technical information available to the community.

[41 FR 46968, Oct. 26, 1976, as amended at 43 FR 7140, Feb. 17, 1978. 
Redesignated at 44 FR 31177, May 31, 1979, and amended at 48 FR 44552, 
Sept. 29, 1983; 49 FR 4751, Feb. 8, 1984]



Sec. 59.3  Emergency program.

    The 1968 Act required a risk study to be undertaken for each 
community before it could become eligible for the sale of flood 
insurance. Since this requirement resulted in a delay in providing 
insurance, the Congress, in section 408 of the Housing and Urban 
Development Act of 1969 (Pub. L. 91-152, December 24, 1969), established 
an Emergency Flood Insurance Program as a new section 1336 of the 
National Flood Insurance Act (42 U.S.C. 4056) to permit the early sale 
of insurance in flood-prone communities. The emergency program does not 
affect the requirement that a community must adopt adequate flood plain 
management regulations pursuant to part 60 of this subchapter but 
permits insurance to be sold before a study is conducted to determine 
risk premium rates for the community. The program still requires upon 
the effective date of a FIRM the charging of risk premium rates for all 
new construction and substantial improvements and for higher limits of 
coverage for existing structures.

[43 FR 7140, Feb. 17, 1978. Redesignated at 44 FR 31177, May 31, 1979, 
and amended at 48 FR 44543, Sept. 29, 1983]



Sec. 59.4  References.

    (a) The following are statutory references for the National Flood 
Insurance Program, under which these regulations are issued:
    (1) National Flood Insurance Act of 1968 (title XIII of the Housing 
and Urban Development Act of 1968), Pub. L. 90-448, approved August 1, 
1968, 42 U.S.C. 4001 et seq.
    (2) Housing and Urban Development Act of 1969 (Pub. L. 91-152, 
approved December 24, 1969).
    (3) Flood Disaster Protection Act of 1973 (87 Stat. 980), Public Law 
93-234, approved December 31, 1973.

[[Page 245]]

    (4) Section 816 of the Housing and Community Development Act of 1974 
(87 Stat. 975), Public Law 93-383, approved August 22, 1974.
    (5) Public Law 5-128 (effective October 12, 1977).
    (6) The above statutes are included in 42 U.S.C. 4001 et seq.
    (b) The following are references relevant to the National Flood 
Insurance Program:
    (1) Executive Order 11988 (Floodplain Management, dated May 24, 1977 
(42 FR 26951, May 25, 1977)).
    (2) The Flood Control Act of 1960 (Pub. L. 86-645).
    (3) Title II, section 314 of title III and section 406 of title IV 
of the Disaster Relief Act of 1974 (Pub. L. 93-288).
    (4) Coastal Zone Management Act (Pub. L. 92-583), as amended Public 
Law 94-370.
    (5) Water Resources Planning Act (Pub. L. 89-90), as amended Public 
Law 94-112 (October 16, 1975).
    (6) Title I, National Environmental Policy Act (Pub. L. 91-190).
    (7) Land and Water Conservation Fund Act (Pub. L. 89-578), and 
subsequent amendments thereto.
    (8) Water Resources Council, Principals and Standards for Planning, 
Water and Related Land Resources (38 FR 24778-24869, September 10, 
1973).
    (9) Executive Order 11593 (Protection and Enchancement of the 
Cultural Environment), dated May 13, 1971 (36 FR 8921, May 15, 1971).
    (10) 89th Cong., 2nd Session, H.D. 465.
    (11) Required land use element for comprehensive planning assistance 
under section 701 of the Housing Act of 1954, as amended by the Housing 
and Community Development Act of 1974 (24 CFR 600.72).
    (12) Executive Order 11990 (Protection of Wetlands, dated May 24, 
1977 (42 FR 26951, May 25, 1977)).
    (13) Water Resources Council (Guidance for Floodplain Management) 
(42 FR 52590, September 30, 1977).
    (14) Unified National Program for Floodplain Management of the 
United States Water Resources Council, July 1976.
    (c) The following reference guidelines represent the views of the 
Federal Insurance Administration with respect to the mandatory purchase 
of flood insurance under section 102 of the Flood Disaster Protection 
Act of 1973: Mandatory Purchase of Flood Insurance Guidelines (54 FR 
29666-29695, July 13, 1989).

[41 FR 46968, Oct. 26, 1976, as amended at 43 FR 7140, Feb. 17, 1978. 
Redesignated at 44 FR 31177, May 31, 1979, and amended at 57 FR 19540, 
May 7, 1992]



                   Subpart B--Eligibility Requirements



Sec. 59.21  Purpose of subpart.

    This subpart lists actions that must be taken by a community to 
become eligible and to remain eligible for the Program.

[41 FR 46968, Oct. 26, 1976. Redesignated at 44 FR 31177, May 31, 1979]



Sec. 59.22  Prerequisites for the sale of flood insurance.

    (a) To qualify for flood insurance availability a community shall 
apply for the entire area within its jurisdiction, and shall submit:
    (1) Copies of legislative and executive actions indicating a local 
need for flood insurance and an explicit desire to participate in the 
National Flood Insurance Program;
    (2) Citations to State and local statutes and ordinances authorizing 
actions regulating land use and copies of the local laws and regulations 
cited;
    (3) A copy of the flood plain management regulations the community 
has adopted to meet the requirements of Secs. 60.3, 60.4 and/or 
Sec. 60.5 of this subchapter. This submission shall include copies of 
any zoning, building, and subdivision regulations, health codes, special 
purpose ordinances (such as a flood plain ordinance, grading ordinance, 
or flood-related erosion control ordinance), and any other corrective 
and preventive measures enacted to reduce or prevent flood, mudslide 
(i.e., mudflow) or flood-related erosion damage;
    (4) A list of the incorporated communities within the applicant's 
boundaries;
    (5) Estimates relating to the community as a whole and to the flood, 
mudslide (i.e., mudflow) and flood-related erosion prone areas 
concerning:
    (i) Population;

[[Page 246]]

    (ii) Number of one to four family residences;
    (iii) Number of small businesses; and
    (iv) Number of all other structures.
    (6) Address of a local repository, such as a municipal building, 
where the Flood Hazard Boundary Maps (FHBM's) and Flood Insurance Rate 
Maps (FIRM's) will be made available for public inspection;
    (7) A summary of any State or Federal activities with respect to 
flood plain, mudslide (i.e., mudflow) or flood-related erosion area 
management within the community, such as federally-funded flood control 
projects and State-administered flood plain management regulations;
    (8) A commitment to recognize and duly evaluate flood, mudslide 
(i.e., mudflow) and/or flood-related erosion hazards in all official 
actions in the areas having special flood, mudslide (i.e., mudflow) and/
or flood-related erosion hazards and to take such other official action 
reasonably necessary to carry out the objectives of the program; and
    (9) A commitment to:
    (i) Assist the Administrator at his/her request, in his/her 
delineation of the limits of the areas having special flood, mudslide 
(i.e., mudflow) or flood-related erosion hazards;
    (ii) Provide such information concerning present uses and occupancy 
of the flood plain, mudslide (i.e., mudflow) or flood-related erosion 
areas as the Administrator may request;
    (iii) Maintain for public inspection and furnish upon request, for 
the determination of applicable flood insurance risk premium rates 
within all areas having special flood hazards identified on a FHBM or 
FIRM, any certificates of floodproofing, and information on the 
elevation (in relation to mean sea level) of the level of the lowest 
floor (including basement) of all new or substantially improved 
structures, and include whether or not such structures contain a 
basement, and if the structure has been floodproofed, the elevation (in 
relation to mean sea level) to which the structure was floodproofed;
    (iv) Cooperate with Federal, State, and local agencies and private 
firms which undertake to study, survey, map, and identify flood plain, 
mudslide (i.e., mudflow) or flood-related erosion areas, and cooperate 
with neighboring communities with respect to the management of adjoining 
flood plain, mudslide (i.e., mudflow) and/or flood-related erosion areas 
in order to prevent aggravation of existing hazards;
    (v) Upon occurrence, notify the Administrator in writing whenever 
the boundaries of the community have been modified by annexation or the 
community has otherwise assumed or no longer has authority to adopt and 
enforce flood plain management regulations for a particular area. In 
order that all FHBM's and FIRM's accurately represent the community's 
bound aries, include within such notification a copy of a map of the 
community suitable for reproduction, clearly delineating the new 
corporate limits or new area for which the community has assumed or 
relinquished flood plain management regulatory authority.
    (b) An applicant shall legislatively:
    (1) Appoint or designate the agency or official with the 
responsibility, authority, and means to implement the commitments made 
in paragraph (a) of this section, and
    (2) Designate the official responsible to submit a report to the 
Administrator concerning the community participation in the Program, 
including, but not limited to the development and implementation of 
flood plain management regulations. This report shall be submitted 
annually or biennially as determined by the Administrator.
    (c) The documents required by paragraph (a) of this section and 
evidence of the actions required by paragraph (b) of this section shall 
be submitted to the Federal Emergency Management Agency, Washington DC 
20472.

[41 FR 46968, Oct. 26, 1976. Redesignated at 44 FR 31177, May 31, 1979 
and amended at 48 FR 29318, June 24, 1983; 48 FR 44543 and 44552, Sept. 
29, 1983; 49 FR 4751, Feb. 8, 1984; 49 FR 33656, Aug. 24, 1984; 50 FR 
36023, Sept. 4, 1985]



Sec. 59.23  Priorities for the sale of flood insurance under the regular program.

    Flood-prone, mudslide (i.e., mudflow) and flood-related erosion 
prone communities are placed on a register of areas eligible for 
ratemaking studies

[[Page 247]]

and then selected from this register for ratemaking studies on the basis 
of the following considerations--
    (a) Recommendations of State officials;
    (b) Location of community and urgency of need for flood insurance;
    (c) Population of community and intensity of existing or proposed 
development of the flood plain, the mudslide (i.e., mudflow) and the 
flood-related erosion area;
    (d) Availability of information on the community with respect to its 
flood, mudslide (i.e., mudflow) and flood-related erosion 
characteristics and previous losses;
    (e) Extent of State and local progress in flood plain, mudslide 
(i.e., mudflow) area and flood-related erosion area management, 
including adoption of flood plain management regulations consistent with 
related ongoing programs in the area.

[41 FR 46968, Oct. 26, 1976. Redesignated at 44 FR 31177, May 31, 1979]



Sec. 59.24  Suspension of community eligibility.

    (a) A community eligible for the sale of flood insurance shall be 
subject to suspension from the Program for failing to submit copies of 
adequate flood plain management regulations meeting the minimum 
requirements of paragraphs (b), (c), (d), (e) or (f) of Sec. 60.3 or 
paragraph (b) of Sec. 60.4 or Sec. 60.5, within six months from the date 
the Administrator provides the data upon which the flood plain 
regulations for the applicable paragraph shall be based. Where there has 
not been any submission by the community, the Administrator shall notify 
the community that 90 days remain in the six month period in order to 
submit adequate flood plain management regulations. Where there has been 
an inadequate submission, the Administrator shall notify the community 
of the specific deficiencies in its submitted flood plain management 
regulations and inform the community of the amount of time remaining 
within the six month period. If, subsequently, copies of adequate flood 
plain management regulations are not received by the Administrator, no 
later than 30 days before the expiration of the original six month 
period the Administrator shall provide written notice to the community 
and to the state and assure publication in the Federal Register under 
part 64 of this subchapter of the community's loss of eligibility for 
the sale of flood insurance, such suspension to become effective upon 
the expiration of the six month period. Should the community remedy the 
defect and the Administrator receive copies of adequate flood plain 
management regulations within the notice period, the suspension notice 
shall be rescinded by the Administrator. If the Administrator receives 
notice from the State that it has enacted adequate flood plain 
management regulations for the community within the notice period, the 
suspension notice shall be rescinded by the Administrator. The 
community's eligibility shall remain terminated after suspension until 
copies of adequate flood plain management regulations have been received 
and approved by the Administrator.
    (b) A community eligible for the sale of flood insurance which fails 
to adequately enforce flood plain management regulations meeting the 
minimum requirements set forth in Secs. 60.3, 60.4 and/or 60.5 shall be 
subject to probation. Probation shall represent formal notification to 
the community that the Administrator regards the community's flood plain 
management program as not compliant with NFIP criteria. Prior to 
imposing probation, the Administrator (1) shall inform the community 
upon 90 days prior written notice of the impending probation and of the 
specific program deficiencies and violations relative to the failure to 
enforce, (2) shall, at least 60 days before probation is to begin, issue 
a press release to local media explaining the reasons for and the 
effects of probation, and (3) shall, at least 90 days before probation 
is to begin, advise all policyholders in the community of the impending 
probation and the additional premium that will be charged, as provided 
in this paragraph, on policies sold or renewed during the period of 
probation. During this 90-day period the community shall have the 
opportunity to avoid probation by demonstrating compliance with Program 
requirements, or by correcting Program deficiencies and remedying all

[[Page 248]]

violations to the maximum extent possible. If, at the end of the 90-day 
period, the Administrator determines that the community has failed to do 
so, the probation shall go into effect. Probation may be continued for 
up to one year after the community corrects all Program deficiencies and 
remedies all violations to the maximum extent possible. Flood insurance 
may be sold or renewed in the community while it is on probation. Where 
a policy covers property located in a community placed on probation on 
or after October 1, 1986, but prior to October 1, 1992, an additional 
premium of $25.00 shall be charged on each such policy newly issued or 
renewed during the one-year period beginning on the date the community 
is placed on probation and during any successive one-year periods that 
begin prior to October 1, 1992. Where a community's probation begins on 
or after October 1, 1992, the additional premium described in the 
preceding sentence shall be $50.00, which shall also be charged during 
any successive one-year periods during which the community remains on 
probation for any part thereof. This $50.00 additional premium shall 
further be charged during any successive one-year periods that begin on 
or after October 1, 1992, where the preceding one-year probation period 
began prior to October 1, 1992.
    (c) A community eligible for the sale of flood insurance which fails 
to adequately enforce its flood plain management regulations meeting the 
minimum requirements set forth in Secs. 60.3, 60.4 and/or 60.5 and does 
not correct its Program deficiencies and remedy all violations to the 
maximum extent possible in accordance with compliance deadlines 
established during a period of probation shall be subject to suspension 
of its Program eligibility. Under such circumstances, the Administrator 
shall grant the community 30 days in which to show cause why it should 
not be suspended. The Administrator may conduct a hearing, written or 
oral, before commencing suspensive action. If a community is to be 
suspended, the Administrator shall inform it upon 30 days prior written 
notice and upon publication in the Federal Register under part 64 of 
this subchapter of its loss of eligibility for the sale of flood 
insurance. In the event of impending suspension, the Administrator shall 
issue a press release to the local media explaining the reasons and 
effects of the suspension. The community's eligibility shall only be 
reinstated by the Administrator upon his receipt of a local legislative 
or executive measure reaffirming the community's formal intent to 
adequately enforce the flood plain management requirements of this 
subpart, together with evidence of action taken by the community to 
correct Program deficiencies and remedy to the maximum extent possible 
those violations which caused the suspension. In certain cases, the 
Administrator, in order to evaluate the community's performance under 
the terms of its submission, may withhold reinstatement for a period not 
to exceed one year from the date of his receipt of the satisfactory 
submission or place the community on probation as provided for in 
paragraph (b) of this section.
    (d) A community eligible for the sale of flood insurance which 
repeals its flood plain management regulations, allows its regulations 
to lapse, or amends its regulations so that they no longer meet the 
minimum requirements set forth in Secs. 60.3, 60.4 and/or 60.5 shall be 
suspended from the Program. If a community is to be suspended, the 
Administrator shall inform it upon 30 days prior written notice and upon 
publication in the Federal Register under part 64 of this subchapter of 
its loss of eligibility for the sale of flood insurance. The community 
eligibility shall remain terminated after suspension until copies of 
adequate flood plain management regulations have been received and 
approved by the Administrator.
    (e) A community eligible for the sale of flood insurance may 
withdraw from the Program by submitting to the Administrator a copy of a 
legislative action that explicitly states its desire to withdraw from 
the National Flood Insurance Program. Upon receipt of a certified copy 
of a final legislative action, the Administrator shall withdraw the 
community from the Program and publish in the Federal Register under

[[Page 249]]

part 64 of this subchapter its loss of eligibility for the sale of flood 
insurance. A community that has withdrawn from the Program may be 
reinstated if its submits the application materials specified in 
Sec. 59.22(a).
    (f) If during a period of ineligibility under paragraphs (a), (d), 
or (e) of this section, a community has permitted actions to take place 
that have aggravated existing flood plain, mudslide (i.e., mudflow) and/
or flood related erosion hazards, the Administrator may withhold 
reinstatement until the community submits evidence that it has taken 
action to remedy to the maximum extent possible the increased hazards. 
The Administrator may also place the reinstated community on probation 
as provided for in paragraph (b) of this section.
    (g) The Administrator shall promptly notify the servicing company 
and any insurers issuing flood insurance pursuant to an arrangement with 
the Administrator of those communities whose eligibility has been 
suspended or which have withdrawn from the program. Flood insurance 
shall not be sold or renewed in those communities. Policies sold or 
renewed within a community during a period of ineligibility are deemed 
to be voidable by the Administrator whether or not the parties to sale 
or renewal had actual notice of the ineligibility.

[41 FR 46968, Oct. 26, 1976. Redesignated at 44 FR 31177, May 31, 1979, 
and amended at 48 FR 44543 and 44552, Sept. 29, 1983; 49 FR 4751, Feb. 
8, 1984; 50 FR 36023, Sept. 4, 1985; 57 FR 19540, May 7, 1992; 59 FR 
53598, Oct. 25, 1994; 62 FR 55715, Oct. 27, 1997]



                   Subpart C--Pilot Inspection Program



Sec. 59.30  A pilot inspection procedure.

    (a) Purpose. This section sets forth the criteria for implementing a 
pilot inspection procedure in Monroe County and the Village of 
Islamorada, Florida. Areas within Monroe County that become communities 
by incorporating on or after January 1, 1999, are required to implement 
the pilot inspection procedure as a condition of participating in the 
NIP. The criteria will also be used to implement the pilot inspection 
procedure in these communities. The purpose of this inspection procedure 
is to provide the communities participating in the pilot inspection 
procedure with an additional means to identify whether structures built 
in Special Flood Hazard Areas (SFHAs) after the effective date of the 
initial Flood Insurance Rate Map (FIRM) comply with the community's 
floodplain management regulations. The pilot inspection procedure will 
also assist FEMA in verifying that structures insured under the National 
Flood Insurance Program's Standard Flood Insurance Policy are properly 
rated. FEMA will publish notices in the Federal Register when 
communities in Monroe County incorporate, agree to implement the pilot 
inspection procedure, and become eligible for the sale of flood 
insurance.
    (b) Procedures and requirements for implementation. Each community 
must establish procedures and requirements for implementing the pilot 
inspection procedure consistent with the criteria established in this 
section.
    (c) Inspection procedure--(1) Starting and termination dates. The 
Associate Director for Mitigation and the Federal Insurance 
Administrator will establish the starting date and the termination date 
for implementing the pilot inspection procedure upon the recommendation 
of the Regional Director. The Regional Director will consult with each 
community.
    (2) Extension. The Associate Director for Mitigation and the Federal 
Insurance Administrator may extend the implementation of the inspection 
procedure with a new termination date upon the recommendation of the 
Regional Director. The Regional Director will consult with the 
community. An extension will be granted based on good cause.
    (3) Notices. Before the starting date of the inspection procedure, 
each community must publish a notice in a prominent local newspaper and 
publish other notices as appropriate. The Associate Director for 
Mitigation and the Federal Insurance Administrator will publish a notice 
in the Federal Register that the community will undertake an inspection 
procedure. Published notices will include the purpose for implementing 
the inspection procedure and

[[Page 250]]

the effective period of time that the inspection procedure will cover.
    (4) Community reviews. The communities participating in the pilot 
inspection procedure must review a list of all pre-FIRM and post-FIRM 
flood insurance policies in SFHAs to confirm that the start of 
construction or substantial improvement of insured pre-FIRM buildings 
occurred on or before December 31, 1974, and to identify possible 
violations of insured post-FIRM buildings. The community will provide to 
FEMA a list of insured buildings incorrectly rated as pre-FIRM and a 
list of insured post-FIRM buildings that the community identifies as 
possible violations.
    (5) SFIP endorsement. In the communities that undertake the pilot 
inspection procedure, all new and renewed flood insurance policies that 
become effective on and after the date that we and the community 
establish for the start of the inspection procedure will contain an 
endorsement to the Standard Flood Insurance Policy that an inspection 
may be necessary before a subsequent policy renewal [see Part 61, 
Appendices A(4), (5), and (6)].
    (6) Notice from insurer. For a building identified as a possible 
violation under paragraph (c)(4) of this section, the insurer will send 
a notice to the policyholder that an inspection is necessary in order to 
renew the policy and that the policyholder must submit a community 
inspection report as part of the policy renewal process, which includes 
the payment of the premium. The insurer will send this notice about 6 
months before the Standard Flood Insurance Policy expires.
    (7) Conditions for renewal. If a policyholder receives a notice 
under paragraph (c)(6) of this section that an inspection is necessary 
in order to renew the Standard Flood Insurance Policy the following 
conditions apply:
    (i) If the policyholder obtains an inspection from the community and 
the policyholder sends the community inspection report to the insurer as 
part of the renewal process, which includes the payment of the premium, 
the insurer will renew the policy and will verify the flood insurance 
rate, or
    (ii) If the policyholder does not obtain and submit a community 
inspection report the insurer will not renew the policy.
    (8) Community responsibilities. For insured post-FIRM buildings that 
the community inspects and determines to violate the community's 
floodplain management regulations, the community must demonstrate to 
FEMA that the community is undertaking measures to remedy the violation 
to the maximum extent possible. Nothing in this section modifies the 
community's responsibility under the NFIP to enforce floodplain 
management regulations adequately that meet the minimum requirements in 
Sec. 60.3 for all new construction and substantial improvements within 
the community's SFHAs. The community's responsibility also includes the 
insured buildings where the policyholder did not obtain an inspection 
report, and non-insured buildings that this procedure does not cover.
    (d) Restoration of flood insurance coverage. Insurers will not 
provide new flood insurance on any building if a property owner does not 
obtain a community inspection report or if the property owner obtains a 
community inspection report but does not submit the report with the 
renewal premium payment. Flood insurance policies sold on a building 
ineligible in accordance with paragraph (c)(6)(ii) of this section are 
void under the Standard Flood Insurance Policy inspection endorsements 
[44 CFR Part 61, Appendices (A)(4), (A)(5), and (A)(6)]. When the 
property owner applies for a flood insurance policy and submits a 
completed community inspection report by the community with an 
application and renewal premium payment, the insurer will issue a flood 
insurance policy.

(Approved by the Office of Management and Budget under Control Number 
3067-0275)

[65 FR 39748, June 27, 2000, as amended at 67 FR 10633, Mar. 8, 2002]



PART 60--CRITERIA FOR LAND MANAGEMENT AND USE--Table of Contents




     Subpart A--Requirements for Flood Plain Management Regulations

Sec.
60.1  Purpose of subpart.

[[Page 251]]

60.2  Minimum compliance with flood plain management criteria.
60.3  Flood plain management criteria for flood-prone areas.
60.4  Flood plain management criteria for mudslide (i.e., mudflow)-prone 
          areas.
60.5  Flood plain management criteria for flood-related erosion-prone 
          areas.
60.6  Variances and exceptions.
60.7  Revisions of criteria for flood plain management regulations.
60.8  Definitions.

  Subpart B--Requirements for State Flood Plain Management Regulations

60.11  Purpose of this subpart.
60.12  Flood plain management criteria for State-owned properties in 
          special hazard areas.
60.13  Noncompliance.

 Subpart C--Additional Considerations in Managing Flood-Prone, Mudslide 
      (i.e., Mudflow)-Prone, and Flood-Related Erosion-Prone Areas

60.21  Purpose of this subpart.
60.22  Planning considerations for flood-prone areas.
60.23  Planning considerations for mudslide (i.e., mudflow)-prone areas.
60.24  Planning considerations for flood-related erosion-prone areas.
60.25  Designation, duties, and responsibilities of State Coordinating 
          Agencies.
60.26  Local coordination.

    Authority: 42 U.S.C. 4001 et seq.; Reorganization Plan No. 3 of 
1978, 43 FR 41943, 3 CFR, 1978 Comp., p. 329; E.O. 12127 of Mar. 31, 
1979, 44 FR 19367, 3 CFR, 1979 Comp., p. 376.

    Source: 41 FR 46975, Oct. 26, 1976, unless otherwise noted. 
Redesignated at 44 FR 31177, May 31, 1979.



     Subpart A--Requirements for Flood Plain Management Regulations



Sec. 60.1  Purpose of subpart.

    (a) The Act provides that flood insurance shall not be sold or 
renewed under the program within a community, unless the community has 
adopted adequate flood plain management regulations consistent with 
Federal criteria. Responsibility for establishing such criteria is 
delegated to the Administrator.
    (b) This subpart sets forth the criteria developed in accordance 
with the Act by which the Administrator will determine the adequacy of a 
community's flood plain management regulations. These regulations must 
be legally-enforceable, applied uniformly throughout the community to 
all privately and publicly owned land within flood-prone, mudslide 
(i.e., mudflow) or flood-related erosion areas, and the community must 
provide that the regulations take precedence over any less restrictive 
conflicting local laws, ordinances or codes. Except as otherwise 
provided in Sec. 60.6, the adequacy of such regulations shall be 
determined on the basis of the standards set forth in Sec. 60.3 for 
flood-prone areas, Sec. 60.4 for mudslide areas and Sec. 60.5 for flood-
related erosion areas.
    (c) Nothing in this subpart shall be construed as modifying or 
replacing the general requirement that all eligible communities must 
take into account flood, mudslide (i.e., mudflow) and flood-related 
erosion hazards, to the extent that they are known, in all official 
actions relating to land management and use.
    (d) The criteria set forth in this subpart are minimum standards for 
the adoption of flood plain management regulations by flood-prone, 
mudslide (i.e., mudflow)-prone and flood-related erosion-prone 
communities. Any community may exceed the minimum criteria under this 
part by adopting more comprehensive flood plain management regulations 
utilizing the standards such as contained in subpart C of this part. In 
some instances, community officials may have access to information or 
knowledge of conditions that require, particularly for human safety, 
higher standards than the minimum criteria set forth in subpart A of 
this part. Therefore, any flood plain management regulations adopted by 
a State or a community which are more restrictive than the criteria set 
forth in this part are encouraged and shall take precedence.

[41 FR 46975, Oct. 26, 1976. Redesignated at 44 FR 31177, May 31, 1979, 
as amended at 48 FR 44552, Sept. 29, 1983; 49 FR 4751, Feb. 8, 1984]



Sec. 60.2  Minimum compliance with flood plain management criteria.

    (a) A flood-prone community applying for flood insurance eligibility 
shall meet the standards of Sec. 60.3(a) in order to become eligible if 
a FHBM has not

[[Page 252]]

been issued for the community at the time of application. Thereafter, 
the community will be given a period of six months from the date the 
Administrator provides the data set forth in Sec. 60.3(b), (c), (d), (e) 
or (f), in which to meet the requirements of the applicable paragraph. 
If a community has received a FHBM, but has not yet applied for Program 
eligibility, the community shall apply for eligibility directly under 
the standards set forth in Sec. 60.3(b). Thereafter, the community will 
be given a period of six months from the date the Administrator provides 
the data set forth in Sec. 60.3(c), (d), (e) or (f) in which to meet the 
requirements of the applicable paragraph.
    (b) A mudslide (i.e., mudflow)-prone community applying for flood 
insurance eligibility shall meet the standards of Sec. 60.4(a) to become 
eligible. Thereafter, the community will be given a period of six months 
from the date the mudslide (i.e., mudflow) areas having special mudslide 
hazards are delineated in which to meet the requirements of 
Sec. 60.4(b).
    (c) A flood-related erosion-prone community applying for flood 
insurance eligibility shall meet the standards of Sec. 60.5(a) to become 
eligible. Thereafter, the community will be given a period of six months 
from the date the flood-related erosion areas having special erosion 
hazards are delineated in which to meet the requirements of 
Sec. 60.5(b).
    (d) Communities identified in part 65 of this subchapter as 
containing more than one type of hazard (e.g., any combination of 
special flood, mudslide (i.e., mudflow), and flood-related erosion 
hazard areas) shall adopt flood plain management regulations for each 
type of hazard consistent with the requirements of Secs. 60.3, 60.4 and 
60.5.
    (e) Local flood plain management regulations may be submitted to the 
State Coordinating Agency designated pursuant to Sec. 60.25 for its 
advice and concurrence. The submission to the State shall clearly 
describe proposed enforcement procedures.
    (f) The community official responsible for submitting annual or 
biennial reports to the Administrator pursuant to Sec. 59.22(b)(2) of 
this subchapter shall also submit copies of each annual or biennial 
report to any State Coordinating Agency.
    (g) A community shall assure that its comprehensive plan is 
consistent with the flood plain management objectives of this part.
    (h) The community shall adopt and enforce flood plain management 
regulations based on data provided by the Administrator. Without prior 
approval of the Administrator, the community shall not adopt and enforce 
flood plain management regulations based upon modified data reflecting 
natural or man-made physical changes.

[41 FR 46975, Oct. 26, 1976. Redesignated at 44 FR 31177, May 31, 1979, 
as amended at 48 FR 29318, June 24, 1983; 48 FR 44552, Sept. 29, 1983; 
49 FR 4751, Feb. 8, 1984; 50 FR 36024, Sept. 4, 1985; 59 FR 53598, Oct. 
25, 1994; 62 FR 55716, Oct. 27, 1997]



Sec. 60.3  Flood plain management criteria for flood-prone areas.

    The Administrator will provide the data upon which flood plain 
management regulations shall be based. If the Administrator has not 
provided sufficient data to furnish a basis for these regulations in a 
particular community, the community shall obtain, review and reasonably 
utilize data available from other Federal, State or other sources 
pending receipt of data from the Administrator. However, when special 
flood hazard area designations and water surface elevations have been 
furnished by the Administrator, they shall apply. The symbols defining 
such special flood hazard designations are set forth in Sec. 64.3 of 
this subchapter. In all cases the minimum requirements governing the 
adequacy of the flood plain management regulations for flood-prone areas 
adopted by a particular community depend on the amount of technical data 
formally provided to the community by the Administrator. Minimum 
standards for communities are as follows:
    (a) When the Administrator has not defined the special flood hazard 
areas within a community, has not provided water surface elevation data, 
and has not provided sufficient data to identify the floodway or coastal 
high hazard area, but the community has indicated

[[Page 253]]

the presence of such hazards by submitting an application to participate 
in the Program, the community shall:
    (1) Require permits for all proposed construction or other 
development in the community, including the placement of manufactured 
homes, so that it may determine whether such construction or other 
development is proposed within flood-prone areas;
    (2) Review proposed development to assure that all necessary permits 
have been received from those governmental agencies from which approval 
is required by Federal or State law, including section 404 of the 
Federal Water Pollution Control Act Amendments of 1972, 33 U.S.C. 1334;
    (3) Review all permit applications to determine whether proposed 
building sites will be reasonably safe from flooding. If a proposed 
building site is in a flood-prone area, all new construction and 
substantial improvements shall (i) be designed (or modified) and 
adequately anchored to prevent flotation, collapse, or lateral movement 
of the structure resulting from hydrodynamic and hydrostatic loads, 
including the effects of buoyancy, (ii) be constructed with materials 
resistant to flood damage, (iii) be constructed by methods and practices 
that minimize flood damages, and (iv) be constructed with electrical, 
heating, ventilation, plumbing, and air conditioning equipment and other 
service facilities that are designed and/or located so as to prevent 
water from entering or accumulating within the components during 
conditions of flooding.
    (4) Review subdivision proposals and other proposed new development, 
including manufactured home parks or subdivisions, to determine whether 
such proposals will be reasonably safe from flooding. If a subdivision 
proposal or other proposed new development is in a flood-prone area, any 
such proposals shall be reviewed to assure that (i) all such proposals 
are consistent with the need to minimize flood damage within the flood-
prone area, (ii) all public utilities and facilities, such as sewer, 
gas, electrical, and water systems are located and constructed to 
minimize or eliminate flood damage, and (iii) adequate drainage is 
provided to reduce exposure to flood hazards;
    (5) Require within flood-prone areas new and replacement water 
supply systems to be designed to minimize or eliminate infiltration of 
flood waters into the systems; and
    (6) Require within flood-prone areas (i) new and replacement 
sanitary sewage systems to be designed to minimize or eliminate 
infiltration of flood waters into the systems and discharges from the 
systems into flood waters and (ii) onsite waste disposal systems to be 
located to avoid impairment to them or contamination from them during 
flooding.
    (b) When the Administrator has designated areas of special flood 
hazards (A zones) by the publication of a community's FHBM or FIRM, but 
has neither produced water surface elevation data nor identified a 
floodway or coastal high hazard area, the community shall:
    (1) Require permits for all proposed construction and other 
developments including the placement of manufactured homes, within Zone 
A on the community's FHBM or FIRM;
    (2) Require the application of the standards in paragraphs (a) (2), 
(3), (4), (5) and (6) of this section to development within Zone A on 
the community's FHBM or FIRM;
    (3) Require that all new subdivision proposals and other proposed 
developments (including proposals for manufactured home parks and 
subdivisions) greater than 50 lots or 5 acres, whichever is the lesser, 
include within such proposals base flood elevation data;
    (4) Obtain, review and reasonably utilize any base flood elevation 
and floodway data available from a Federal, State, or other source, 
including data developed pursuant to paragraph (b)(3) of this section, 
as criteria for requiring that new construction, substantial 
improvements, or other development in Zone A on the community's FHBM or 
FIRM meet the standards in paragraphs (c)(2), (c)(3), (c)(5), (c)(6), 
(c)(12), (c)(14), (d)(2) and (d)(3) of this section;
    (5) Where base flood elevation data are utilized, within Zone A on 
the community's FHBM or FIRM:
    (i) Obtain the elevation (in relation to mean sea level) of the 
lowest floor

[[Page 254]]

(including basement) of all new and substantially improved structures, 
and
    (ii) Obtain, if the structure has been floodproofed in accordance 
with paragraph (c)(3)(ii) of this section, the elevation (in relation to 
mean sea level) to which the structure was floodproofed, and
    (iii) Maintain a record of all such information with the official 
designated by the community under Sec. 59.22 (a)(9)(iii);
    (6) Notify, in riverine situations, adjacent communities and the 
State Coordinating Office prior to any alteration or relocation of a 
watercourse, and submit copies of such notifications to the 
Administrator;
    (7) Assure that the flood carrying capacity within the altered or 
relocated portion of any watercourse is maintained;
    (8) Require that all manufactured homes to be placed within Zone A 
on a community's FHBM or FIRM shall be installed using methods and 
practices which minimize flood damage. For the purposes of this 
requirement, manufactured homes must be elevated and anchored to resist 
flotation, collapse, or lateral movement. Methods of anchoring may 
include, but are not to be limited to, use of over-the-top or frame ties 
to ground anchors. This requirement is in addition to applicable State 
and local anchoring requirements for resisting wind forces.
    (c) When the Administrator has provided a notice of final flood 
elevations for one or more special flood hazard areas on the community's 
FIRM and, if appropriate, has designated other special flood hazard 
areas without base flood elevations on the community's FIRM, but has not 
identified a regulatory floodway or coastal high hazard area, the 
community shall:
    (1) Require the standards of paragraph (b) of this section within 
all A1-30 zones, AE zones, A zones, AH zones, and AO zones, on the 
community's FIRM;
    (2) Require that all new construction and substantial improvements 
of residential structures within Zones A1-30, AE and AH zones on the 
community's FIRM have the lowest floor (including basement) elevated to 
or above the base flood level, unless the community is granted an 
exception by the Administrator for the allowance of basements in 
accordance with Sec. 60.6 (b) or (c);
    (3) Require that all new construction and substantial improvements 
of non-residential structures within Zones A1-30, AE and AH zones on the 
community's firm (i) have the lowest floor (including basement) elevated 
to or above the base flood level or, (ii) together with attendant 
utility and sanitary facilities, be designed so that below the base 
flood level the structure is watertight with walls substantially 
impermeable to the passage of water and with structural components 
having the capability of resisting hydrostatic and hydrodynamic loads 
and effects of buoyancy;
    (4) Provide that where a non-residential structure is intended to be 
made watertight below the base flood level, (i) a registered 
professional engineer or architect shall develop and/or review 
structural design, specifications, and plans for the construction, and 
shall certify that the design and methods of construction are in 
accordance with accepted standards of practice for meeting the 
applicable provisions of paragraph (c)(3)(ii) or (c)(8)(ii) of this 
section, and (ii) a record of such certificates which includes the 
specific elevation (in relation to mean sea level) to which such 
structures are floodproofed shall be maintained with the official 
designated by the community under Sec. 59.22(a)(9)(iii);
    (5) Require, for all new construction and substantial improvements, 
that fully enclosed areas below the lowest floor that are usable solely 
for parking of vehicles, building access or storage in an area other 
than a basement and which are subject to flooding shall be designed to 
automatically equalize hydrostatic flood forces on exterior walls by 
allowing for the entry and exit of floodwaters. Designs for meeting this 
requirement must either be certified by a registered professional 
engineer or architect or meet or exceed the following minimum criteria: 
A minimum of two openings having a total net area of not less than one 
square inch for every square foot of enclosed area subject to flooding 
shall be provided. The bottom of all openings shall be no higher than 
one foot above grade. Openings

[[Page 255]]

may be equipped with screens, louvers, valves, or other coverings or 
devices provided that they permit the automatic entry and exit of 
floodwaters.
    (6) Require that manufactured homes that are placed or substantially 
improved within Zones A1-30, AH, and AE on the community's FIRM on sites
    (i) Outside of a manufactured home park or subdivision,
    (ii) In a new manufactured home park or subdivision,
    (iii) In an expansion to an existing manufactured home park or 
subdivision, or
    (iv) In an existing manufactured home park or subdivision on which a 
manufactured home has incurred ``substantial damage'' as the result of a 
flood, be elevated on a permanent foundation such that the lowest floor 
of the manufactured home is elevated to or above the base flood 
elevation and be securely anchored to an adequately anchored foundation 
system to resist floatation collapse and lateral movement.
    (7) Require within any AO zone on the community's FIRM that all new 
construction and substantial improvements of residential structures have 
the lowest floor (including basement) elevated above the highest 
adjacent grade at least as high as the depth number specified in feet on 
the community's FIRM (at least two feet if no depth number is 
specified);
    (8) Require within any AO zone on the community's FIRM that all new 
construction and substantial improvements of nonresidential structures 
(i) have the lowest floor (including basement) elevated above the 
highest adjacent grade at least as high as the depth number specified in 
feet on the community's FIRM (at least two feet if no depth number is 
specified), or (ii) together with attendant utility and sanitary 
facilities be completely floodproofed to that level to meet the 
floodproofing standard specified in Sec. 60.3(c)(3)(ii);
    (9) Require within any A99 zones on a community's FIRM the standards 
of paragraphs (a)(1) through (a)(4)(i) and (b)(5) through (b)(9) of this 
section;
    (10) Require until a regulatory floodway is designated, that no new 
construction, substantial improvements, or other development (including 
fill) shall be permitted within Zones A1-30 and AE on the community's 
FIRM, unless it is demonstrated that the cumulative effect of the 
proposed development, when combined with all other existing and 
anticipated development, will not increase the water surface elevation 
of the base flood more than one foot at any point within the community.
    (11) Require within Zones AH and AO, adequate drainage paths around 
structures on slopes, to guide floodwaters around and away from proposed 
structures.
    (12) Require that manufactured homes to be placed or substantially 
improved on sites in an existing manufactured home park or subdivision 
within Zones A-1-30, AH, and AE on the community's FIRM that are not 
subject to the provisions of paragraph (c)(6) of this section be 
elevated so that either
    (i) The lowest floor of the manufactured home is at or above the 
base flood elevation, or
    (ii) The manufactured home chassis is supported by reinforced piers 
or other foundation elements of at least equivalent strength that are no 
less than 36 inches in height above grade and be securely anchored to an 
adequately anchored foundation system to resist floatation, collapse, 
and lateral movement.
    (13) Notwithstanding any other provisions of Sec. 60.3, a community 
may approve certain development in Zones Al-30, AE, and AH, on the 
community's FIRM which increase the water surface elevation of the base 
flood by more than one foot, provided that the community first applies 
for a conditional FIRM revision, fulfills the requirements for such a 
revision as established under the provisions of Sec. 65.12, and receives 
the approval of the Administrator.
    (14) Require that recreational vehicles placed on sites within Zones 
A1-30, AH, and AE on the community's FIRM either
    (i) Be on the site for fewer than 180 consecutive days,
    (ii) Be fully licensed and ready for highway use, or
    (iii) Meet the permit requirements of paragraph (b)(1) of this 
section and the

[[Page 256]]

elevation and anchoring requirements for ``manufactured homes'' in 
paragraph (c)(6) of this section.

A recreational vehicle is ready for highway use if it is on its wheels 
or jacking system, is attached to the site only by quick disconnect type 
utilities and security devices, and has no permanently attached 
additions.
    (d) When the Administrator has provided a notice of final base flood 
elevations within Zones A1-30 and/or AE on the community's FIRM and, if 
appropriate, has designated AO zones, AH zones, A99 zones, and A zones 
on the community's FIRM, and has provided data from which the community 
shall designate its regulatory floodway, the community shall:
    (1) Meet the requirements of paragraphs (c) (1) through (14) of this 
section;
    (2) Select and adopt a regulatory floodway based on the principle 
that the area chosen for the regulatory floodway must be designed to 
carry the waters of the base flood, without increasing the water surface 
elevation of that flood more than one foot at any point;
    (3) Prohibit encroachments, including fill, new construction, 
substantial improvements, and other development within the adopted 
regulatory floodway unless it has been demonstrated through hydrologic 
and hydraulic analyses performed in accordance with standard engineering 
practice that the proposed encroachment would not result in any increase 
in flood levels within the community during the occurrence of the base 
flood discharge;
    (4) Notwithstanding any other provisions of Sec. 60.3, a community 
may permit encroachments within the adopted regulatory floodway that 
would result in an increase in base flood elevations, provided that the 
community first applies for a conditional FIRM and floodway revision, 
fulfills the requirements for such revisions as established under the 
provisions of Sec. 65.12, and receives the approval of the 
Administrator.
    (e) When the Administrator has provided a notice of final base flood 
elevations within Zones A1-30 and/or AE on the community's FIRM and, if 
appropriate, has designated AH zones, AO zones, A99 zones, and A zones 
on the community's FIRM, and has identified on the community's FIRM 
coastal high hazard areas by designating Zones V1-30, VE, and/or V, the 
community shall:
    (1) Meet the requirements of paragraphs (c)(1) through (14) of this 
section;
    (2) Within Zones V1-30, VE, and V on a community's FIRM, (i ) obtain 
the elevation (in relation to mean sea level) of the bottom of the 
lowest structural member of the lowest floor (excluding pilings and 
columns) of all new and substantially improved structures, and whether 
or not such structures contain a basement, and (ii) maintain a record of 
all such information with the official designated by the community under 
Sec. 59.22(a)(9)(iii);
    (3) Provide that all new construction within Zones V1-30, VE, and V 
on the community's FIRM is located landward of the reach of mean high 
tide;
    (4) Provide that all new construction and substantial improvements 
in Zones V1-30 and VE, and also Zone V if base flood elevation data is 
available, on the community's FIRM, are elevated on pilings and columns 
so that (i) the bottom of the lowest horizontal structural member of the 
lowest floor (excluding the pilings or columns) is elevated to or above 
the base flood level; and (ii) the pile or column foundation and 
structure attached thereto is anchored to resist flotation, collapse and 
lateral movement due to the effects of wind and water loads acting 
simultaneously on all building components. Water loading values used 
shall be those associated with the base flood. Wind loading values used 
shall be those required by applicable State or local building standards. 
A registered professional engineer or architect shall develop or review 
the structural design, specifications and plans for the construction, 
and shall certify that the design and methods of construction to be used 
are in accordance with accepted standards of practice for meeting the 
provisions of paragraphs (e)(4) (i) and (ii) of this section.
    (5) Provide that all new construction and substantial improvements 
within Zones V1-30, VE, and V on the community's FIRM have the space 
below the

[[Page 257]]

lowest floor either free of obstruction or constructed with non-
supporting breakaway walls, open wood lattice-work, or insect screening 
intended to collapse under wind and water loads without causing 
collapse, displacement, or other structural damage to the elevated 
portion of the building or supporting foundation system. For the 
purposes of this section, a breakway wall shall have a design safe 
loading resistance of not less than 10 and no more than 20 pounds per 
square foot. Use of breakway walls which exceed a design safe loading 
resistance of 20 pounds per square foot (either by design or when so 
required by local or State codes) may be permitted only if a registered 
professional engineer or architect certifies that the designs proposed 
meet the following conditions:
    (i) Breakaway wall collapse shall result from a water load less than 
that which would occur during the base flood; and,
    (ii) The elevated portion of the building and supporting foundation 
system shall not be subject to collapse, displacement, or other 
structural dama