CODE OF FEDERAL REGULATIONS 49 Parts 1 to 99 Revised as of October 1, 2002 Transportation Containing a codification of documents of general applicability and future effect As of October 1, 2002 With Ancillaries

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 Table of Contents Page Explanation v Title 49: Subtitle A—Office of the Secretary of Transportation 3 Finding Aids: Material Approved for Incorporation by Reference 727 Table of CFR Titles and Chapters 729 Alphabetical List of Agencies Appearing in the CFR 747 List of CFR Sections Affected 757

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 INCORPORATION BY REFERENCE

What is incorporation by reference? Incorporation by reference was established by statute and allows Federal agencies to meet the requirement to publish regulations in the Federal Register by referring to materials already published elsewhere. For an incorporation to be valid, the Director of the Federal Register must approve it. The legal effect of incorporation by reference is that the material is treated as if it were published in full in the Federal Register (5 U.S.C. 552(a)). This material, like any other properly issued regulation, has the force of law.

What is a proper incorporation by reference? The Director of the Federal Register will approve an incorporation by reference only when the requirements of 1 CFR part 51 are met. Some of the elements on which approval is based are:

(a) The incorporation will substantially reduce the volume of material published in the Federal Register.

(b) The matter incorporated is in fact available to the extent necessary to afford fairness and uniformity in the administrative process.

(c) The incorporating document is drafted and submitted for publication in accordance with 1 CFR part 51.

Properly approved incorporations by reference in this volume are listed in the Finding Aids at the end of this volume.

What if the material incorporated by reference cannot be found? If you have any problem locating or obtaining a copy of material listed in the Finding Aids of this volume as an approved incorporation by reference, please contact the agency that issued the regulation containing that incorporation. If, after contacting the agency, you find the material is not available, please notify the Director of the Federal Register, National Archives and Records Administration, Washington DC 20408, or call (202) 523-4534.

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 Raymond A. Mosley, Director, Office of the Federal Register. October 1, 2002. THIS TITLE

Title 49—Transportation is composed of seven volumes. The parts in these volumes are arranged in the following order: Parts 1-99, parts 100-185, parts 186-199, parts 200-399, parts 400-999, parts 1000-1199, part 1200 to End. The first volume (parts 1-99) contains current regulations issued under subtitle A—Office of the Secretary of Transportation; the second volume (parts 100-185) and the third volume (parts 186-199) contain the current regulations issued under chapter I—Research and Special Programs Administration (DOT); the fourth volume (parts 200-399) contains the current regulations issued under chapter II—Federal Railroad Administration (DOT), and chapter III—Federal Motor Carrier Safety Administration (DOT); the fifth volume (parts 400-999) contains the current regulations issued under chapter IV—Coast Guard (DOT), chapter V—National Highway Traffic Safety Administration (DOT), chapter VI—Federal Transit Administration (DOT), chapter VII—National Railroad Passenger Corporation (AMTRAK), and chapter VIII—National Transportation Safety Board; the sixth volume (parts 1000-1199) contains the current regulations issued under chapter X—Surface Transportation Board and the seventh volume (part 1200 to End) contains the current regulations issued under chapter X—Surface Transportation Board, chapter XI—Bureau of Transportation Statistics, and chapter XII—Transportation Security Administration, Department of Transportation. The contents of these volumes represent all current regulations codified under this title of the CFR as of October 1, 2002.

In the volume containing parts 100-185, see § 172.101 for the Hazardous Materials Table. The Federal Motor Vehicle Safety Standards appear in part 571.

CFRORDR.FRM <LRH>49 CFR Subtitle A (10-1-02 Edition)</LRH> <RRH>Office of the Secretary of Transportation</RRH> <CFRTITLE> <TITLEHD> <PRTPAGE P="1"/> <HD SOURCE="HED">Title 49—Transportation</HD> <P>(This book contains parts 1 to 99)</P> </TITLEHD> <CFRTOC> <EDNOTE> <HD SOURCE="HED">Editorial Note:</HD> <P>Other regulations issued by the Department of Transportation appear in 14 CFR chapters I and II, 23 CFR, 33 CFR chapters I and IV, 44 CFR chapter IV, 46 CFR chapters I and II, 48 CFR chapter 12, and 49 CFR chapters I through VI.</P> </EDNOTE> <PTHD>Part</PTHD> <CHAPTI> <SUBJECT>SUBTITLE A—<E T="04">Office of the Secretary of Transportation</E> </SUBJECT> <PG>1</PG> </CHAPTI> </CFRTOC> </CFRTITLE> <SUBTITLE> <PRTPAGE P="3"/> <HD SOURCE="HED">Subtitle A—Office of the Secretary of Transportation</HD> <CHAPTER> <TOC> <TOCHD> <PRTPAGE P="5"/> <HD SOURCE="HED">SUBTITLE A—OFFICE OF THE SECRETARY OF TRANSPORTATION</HD> </TOCHD> <PTHD>Part</PTHD> <PGHD>Page</PGHD> <CHAPTI> <PT>1</PT> <SUBJECT>Organization and delegation of powers and duties</SUBJECT> <PG>7</PG> <PT>3</PT> <SUBJECT>Official seal</SUBJECT> <PG>57</PG> <PT>5</PT> <SUBJECT>Rulemaking procedures</SUBJECT> <PG>58</PG> <PT>6</PT> <SUBJECT>Implementation of Equal Access to Justice Act in agency proceedings</SUBJECT> <PG>60</PG> <PT>7</PT> <SUBJECT>Public availability of information</SUBJECT> <PG>66</PG> <PT>8</PT> <SUBJECT>Classified information: Classification/declassification/access</SUBJECT> <PG>81</PG> <PT>9</PT> <SUBJECT>Testimony of employees of the Department and production of records in legal proceedings</SUBJECT> <PG>89</PG> <PT>10</PT> <SUBJECT>Maintenance of and access to records pertaining to individuals</SUBJECT> <PG>93</PG> <PT>11</PT> <SUBJECT>Protection of human subjects</SUBJECT> <PG>107</PG> <PT>17</PT> <SUBJECT>Intergovernmental review of Department of Transportation programs and activities</SUBJECT> <PG>118</PG> <PT>18</PT> <SUBJECT>Uniform administrative requirements for grants and cooperative agreements to State and local governments</SUBJECT> <PG>121</PG> <PT>19</PT> <SUBJECT>Uniform administrative requirements for grants and agreements with institutions of higher education, hospitals, and other non-profit organizations</SUBJECT> <PG>150</PG> <PT>20</PT> <SUBJECT>New restrictions on lobbying</SUBJECT> <PG>178</PG> <PT>21</PT> <SUBJECT>Nondiscrimination in federally-assisted programs of the Department of Transportation—Effectuation of title VI of the Civil Rights Act of 1964</SUBJECT> <PG>190</PG> <PT>23</PT> <SUBJECT>Participation by disadvantaged business enterprise in airport concessions</SUBJECT> <PG>201</PG> <PT>24</PT> <SUBJECT>Uniform relocation assistance and real property acquisition for Federal and federally assisted programs</SUBJECT> <PG>210</PG> <PT>25</PT> <SUBJECT>Nondiscrimination on the basis of sex in education programs or activities receiving Federal financial assistance</SUBJECT> <PG>249<PRTPAGE P="6"/> </PG> <PT>26</PT> <SUBJECT>Participation by disadvantaged business enterprises in Department of Transportation financial assistance programs</SUBJECT> <PG>265</PG> <PT>27</PT> <SUBJECT>Nondiscrimination on the basis of disability in programs and activities receiving or benefitting from Federal financial assistance</SUBJECT> <PG>305</PG> <PT>28</PT> <SUBJECT>Enforcement of nondiscrimination on the basis of handicap in programs or activities conducted by the Department of Transportation</SUBJECT> <PG>317</PG> <PT>29</PT> <SUBJECT>Governmentwide debarment and suspension (nonprocurement) and governmentwide requirements for drug-free workplace (grants)</SUBJECT> <PG>325</PG> <PT>30</PT> <SUBJECT>Denial of public works contracts to suppliers of goods and services of countries that deny procurement market access to U.S. contractors</SUBJECT> <PG>344</PG> <PT>31</PT> <SUBJECT>Program fraud civil remedies</SUBJECT> <PG>349</PG> <PT>37</PT> <SUBJECT>Transportation services for individuals with disabilities (ADA)</SUBJECT> <PG>364</PG> <PT>38</PT> <SUBJECT>Americans With Disabilities Act (ADA) accessibility specifications for transportation vehicles</SUBJECT> <PG>542</PG> <PT>40</PT> <SUBJECT>Procedures for transportation workplace drug testing programs</SUBJECT> <PG>580</PG> <PT>41</PT> <SUBJECT>Seismic safety</SUBJECT> <PG>677</PG> <PT>71</PT> <SUBJECT>Standard time zone boundaries</SUBJECT> <PG>680</PG> <PT>79</PT> <SUBJECT>Medals of honor</SUBJECT> <PG>685</PG> <PT>80</PT> <SUBJECT>Credit assistance for surface transportation projects</SUBJECT> <PG>686</PG> <PT>89</PT> <SUBJECT>Implementation of the Federal Claims Collection Act</SUBJECT> <PG>692</PG> <PT>91</PT> <SUBJECT>International air transportation fair competitive practices</SUBJECT> <PG>698</PG> <PT>92</PT> <SUBJECT>Recovering debts to the United States by salary offset</SUBJECT> <PG>700</PG> <PT>93</PT> <SUBJECT>Aircraft allocation</SUBJECT> <PG>710</PG> <PT>95</PT> <SUBJECT>Advisory committees</SUBJECT> <PG>711</PG> <PT>98</PT> <SUBJECT>Enforcement of restrictions on post-employment activities</SUBJECT> <PG>714</PG> <PT>99</PT> <SUBJECT>Employee responsibilities and conduct</SUBJECT> <PG>716</PG> </CHAPTI> <APP>Appendix to Subtitle A—United States Railway Association—Employee Responsibilities and Conduct</APP> <PG>719</PG> </TOC> <PART> <PRTPAGE P="7"/> <EAR>Pt. 1</EAR> <HD SOURCE="HED">PART 1—ORGANIZATION AND DELEGATION OF POWERS AND DUTIES</HD> <CONTENTS> <SUBPART> <HD SOURCE="HED">Subpart A—General</HD> <SECHD>Sec.</SECHD> <SECTNO>1.1</SECTNO> <SUBJECT>Purpose.</SUBJECT> <SECTNO>1.2</SECTNO> <SUBJECT>Definitions.</SUBJECT> <SECTNO>1.3</SECTNO> <SUBJECT>Organization of the Department.</SUBJECT> <SECTNO>1.4</SECTNO> <SUBJECT>General responsibilities.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Office of the Secretary</HD> <SECTNO>1.21</SECTNO> <SUBJECT>Purpose.</SUBJECT> <SECTNO>1.22</SECTNO> <SUBJECT>Structure.</SUBJECT> <SECTNO>1.23</SECTNO> <SUBJECT>Spheres of primary responsibility.</SUBJECT> <SECTNO>1.24</SECTNO> <SUBJECT>Authority.</SUBJECT> <SECTNO>1.25</SECTNO> <SUBJECT>Relationships.</SUBJECT> <SECTNO>1.26</SECTNO> <SUBJECT>Secretarial succession.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—Delegations</HD> <SECTNO>1.41</SECTNO> <SUBJECT>Purpose.</SUBJECT> <SECTNO>1.42</SECTNO> <SUBJECT>Exercise of authority.</SUBJECT> <SECTNO>1.43</SECTNO> <SUBJECT>General limitations and reservations.</SUBJECT> <SECTNO>1.44</SECTNO> <SUBJECT>Reservation of authority.</SUBJECT> <SECTNO>1.45</SECTNO> <SUBJECT>Delegations to all Administrators.</SUBJECT> <SECTNO>1.46</SECTNO> <SUBJECT>Delegations to Commandant of the Coast Guard.</SUBJECT> <SECTNO>1.47</SECTNO> <SUBJECT>Delegations to Federal Aviation Administrator.</SUBJECT> <SECTNO>1.48</SECTNO> <SUBJECT>Delegations to Federal Highway Administrator.</SUBJECT> <SECTNO>1.49</SECTNO> <SUBJECT>Delegations to Federal Railroad Administrator.</SUBJECT> <SECTNO>1.50</SECTNO> <SUBJECT>Delegation to National Highway Traffic Safety Administrator.</SUBJECT> <SECTNO>1.51</SECTNO> <SUBJECT>Delegations to Urban Mass Transportation Administrator.</SUBJECT> <SECTNO>1.52</SECTNO> <SUBJECT>Delegations to Saint Lawrence Seaway Development Corporation Administrator.</SUBJECT> <SECTNO>1.53</SECTNO> <SUBJECT>Delegations to the Administrator of the Research and Special Programs Administration.</SUBJECT> <SECTNO>1.54</SECTNO> <SUBJECT>Delegations to all Secretarial Officers.</SUBJECT> <SECTNO>1.55</SECTNO> <SUBJECT>Delegations to Deputy Secretary.</SUBJECT> <SECTNO>1.56</SECTNO> <SUBJECT>Delegations to the Assistant Secretary for Transportation Policy.</SUBJECT> <SECTNO>1.56a</SECTNO> <SUBJECT>Delegations to the Assistant Secretary for Aviation and International Affairs.</SUBJECT> <SECTNO>1.56b</SECTNO> <SUBJECT>Delegations to the Designated Senior Career Official, Office of the Assistant Secretary for Aviation and International Affairs.</SUBJECT> <SECTNO>1.57</SECTNO> <SUBJECT>Delegations to General Counsel.</SUBJECT> <SECTNO>1.57a</SECTNO> <SUBJECT>Delegations to Deputy General Counsel.</SUBJECT> <SECTNO>1.57b</SECTNO> <SUBJECT>Delegations to the Assistant General Counsel for Environmental, Civil Rights, and General Law.</SUBJECT> <SECTNO>1.58</SECTNO> <SUBJECT>Delegations to Assistant Secretary for Budget and Programs.</SUBJECT> <SECTNO>1.59</SECTNO> <SUBJECT>Delegations to Assistant Secretary for Administration.</SUBJECT> <SECTNO>1.59a</SECTNO> <SUBJECT>Redelegations by the Assistant Secretary for Administration.</SUBJECT> <SECTNO>1.60</SECTNO> <SUBJECT>Delegations to the Inspector General.</SUBJECT> <SECTNO>1.61</SECTNO> <SUBJECT>Delegations to Assistant Secretary for Governmental Affairs.</SUBJECT> <SECTNO>1.62</SECTNO> <SUBJECT>Delegations to the Director of Small and Disadvantaged Business Utilization.</SUBJECT> <SECTNO>1.63</SECTNO> <SUBJECT>Delegations to Assistant to the Secretary and Director of Public Affairs.</SUBJECT> <SECTNO>1.64</SECTNO> <SUBJECT>Delegations to the Director, Transportation Administrative Service Center.</SUBJECT> <SECTNO>1.65</SECTNO> <SUBJECT>Authority to classify information.</SUBJECT> <SECTNO>1.66</SECTNO> <SUBJECT>Delegations to Maritime Administrator.</SUBJECT> <SECTNO>1.67</SECTNO> <SUBJECT>Delegations to Maritime Subsidy Board.</SUBJECT> <SECTNO>1.68</SECTNO> <SUBJECT>[Reserved]</SUBJECT> <SECTNO>1.69</SECTNO> <SUBJECT>Delegations to the Director of Intelligence and Security.</SUBJECT> <SECTNO>1.70</SECTNO> <SUBJECT>Delegations to the Director of the Departmental Office of Civil Rights.</SUBJECT> <SECTNO>1.71</SECTNO> <SUBJECT>Delegations to the Director of the Bureau of Transportation Statistics.</SUBJECT> <SECTNO>1.72</SECTNO> <SUBJECT>Delegations to the Office of the Chief Information Officer.</SUBJECT> <SECTNO>1.73</SECTNO> <SUBJECT>Delegation to the Administrator of the Federal Motor Carrier Safety Administration.</SUBJECT> <SECTNO>1.74</SECTNO> <SUBJECT>Delegations to the Associate Deputy Secretary and Director, Office of Intermodalism.</SUBJECT> <APP>Appendix A to Part 1—Delegations and Redelegations by Secretarial Officers</APP> </SUBPART> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>49 U.S.C. 322; 46 U.S.C. 2104(a); 28 U.S.C. 2672; 31 U.S.C. 3711(a)(2); Pub. L. 101-552, 104 Stat. 2736; Pub L. 106-159, 113 Stat. 1748; Pub. L. 107-71, 115 Stat. 597.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>Amdt. 1-113, 40 FR 43901, Sept. 24, 1975, unless otherwise noted.</P> </SOURCE> <SUBPART> <HD SOURCE="HED">Subpart A—General</HD> <SECTION> <SECTNO>§ 1.1</SECTNO> <SUBJECT>Purpose.</SUBJECT> <P>This part describes the organization of the Department of Transportation and provides for the performance of duties imposed upon, and the exercise of powers vested, in the Secretary of Transportation by law.</P> </SECTION> <SECTION> <SECTNO>§ 1.2</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>As used in this part, <E T="03">Administrator</E> includes:</P> <P>(a) The Coast Guard Commandant.</P> <P>(b) The Federal Aviation Administrator.</P> <P>(c) The Federal Highway Administrator.</P> <P>(d) The Federal Railroad Administrator.<PRTPAGE P="8"/> </P> <P>(e) The National Highway Traffic Safety Administrator.</P> <P>(f) The Urban Mass Transportation Administrator.</P> <P>(g) The Administrator of the St. Lawrence Seaway Development Corporation.</P> <P>(h) The Research and Special Programs Administrator.</P> <P>(i) The Maritime Administrator.</P> <P>(j) The Director of the Bureau of Transportation Statistics.</P> <P>(k) The Federal Motor Carrier Safety Administrator.</P> <P>(l) The Under Secretary of Transportation for Security.</P> <CITA>[Amdt. 1-113, 40 FR 43901, Sept. 24, 1975, as amended by Amdt. 1-157, 45 FR 83403, Dec. 18, 1980; Amdt. 1-164, 46 FR 47458, Sept. 28, 1981; Amdt. 1-270, 60 FR 30196, June 8, 1995; 65 FR 221, Jan. 4, 2000; 66 FR 67118, Dec. 28, 2001; 67 FR 629, Jan. 4, 2002]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.3</SECTNO> <SUBJECT>Organization of the Department.</SUBJECT> <P>(a) The Secretary of Transportation is the head of the Department.</P> <P>(b) The Department is comprised of the Office of the Secretary and the following operating elements, the heads of which report directly to the Secretary:</P> <P>(1) The U.S. Coast Guard, headed by the Commandant.</P> <P>(2) The Federal Aviation Administration, headed by the Administrator.</P> <P>(3) The Federal Highway Administration, headed by the Administrator.</P> <P>(4) The Federal Railroad Administration, headed by the Administrator.</P> <P>(5) The National Highway Traffic Safety Administration, headed by the Administrator.</P> <P>(6) The Urban Mass Transportation Administration, headed by the Administrator.</P> <P>(7) The St. Lawrence Seaway Development Corporation, headed by the Administrator.</P> <P>(8) The Research and Special Programs Administration, headed by the Administrator.</P> <P>(9) The Maritime Administration, headed by the Administrator and including within it the Maritime Subsidy Board composed of the Maritime Administrator, the Deputy Maritime Administrator, and the Chief Counsel of the Maritime Administration.</P> <P>(10) The Bureau of Transportation Statistics, headed by the Director.</P> <P>(11) The Federal Motor Carrier Safety Administration, headed by the Administrator.</P> <P>(12) The Transportation Security Administration, headed by the Under Secretary of Transportation for Security.</P> <CITA>[Amdt. 1-113, 40 FR 43901, Sept. 24, 1975, as amended by Amdt. 1-157, 45 FR 83403, Dec. 18, 1980; Amdt. 1-164, 46 FR 47458, Sept. 28, 1981; Amdt. 1-270, 60 FR 30196, June 8, 1995; 65 FR 221, Jan. 4, 2000; 66 FR 67118, Dec. 28, 2001]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.4</SECTNO> <SUBJECT>General responsibilities.</SUBJECT> <P>(a) <E T="03">Office of the Secretary.</E> Provides for:</P> <P>(1) Leadership in formulating and executing well-balanced national and international transportation objectives, policies, and programs;</P> <P>(2) Stimulating and promoting research and development in all modes and types of transportation, with special emphasis on transportation safety;</P> <P>(3) Coordinating the various transportation programs of the Federal Government;</P> <P>(4) Encouraging maximum private development of transportation services;</P> <P>(5) Responsive, timely, and effective liaison with Congress, and public and private organizations on transportation matters;</P> <P>(6) Innovative approaches to urban transportation and environmental enhancement programs; and</P> <P>(7) Effective management of the Department as a whole.</P> <P>(b) <E T="03">U.S. Coast Guard.</E> Is responsible for:</P> <P>(1) Upon the high seas and waters subject to the jurisdiction of the United States:</P> <P>(i) Enforcing or assistance in enforcing applicable Federal laws;</P> <P>(ii) Administering laws and promulgating and enforcing regulations for promoting safety of life and property, covering all matters not specifically delegated by law to some other executive department or reserved to the States;</P> <P>(iii) Developing, establishing, maintaining, and operating, with due regard to the requirements of national defense, aids to navigation, icebreaking <PRTPAGE P="9"/>facilities, and rescue facilities for promoting safety; and</P> <P>(2) Maintaining a state of readiness to function as a specialized service in the Navy, in time of war or when the President shall direct, as provided in section 3 of title 14, United States Code.</P> <P>(c) <E T="03">The Federal Aviation Administration.</E> Is responsible for:</P> <P>(1) Promulgating and enforcing regulations on all safety matters relating to the manufacture, operation, and maintenance of aircraft;</P> <P>(2) Registering aircraft and recording rights in aircraft;</P> <P>(3) Developing, modifying, testing, and evaluating systems, procedures, facilities, and devices needed for the safe and efficient navigation and traffic control of aircraft;</P> <P>(4) Locating, constructing or installing, maintaining, and operating Federal aids to air navigation, wherever necessary;</P> <P>(5) Developing air traffic regulations, and administering air traffic control of civil and military air operations within U.S. airspace;</P> <P>(6) Providing grants-in-aid for developing public airports;</P> <P>(7) Promoting and encouraging civil aviation abroad through technical aviation assistance to other governments; and</P> <P>(8) Promulgating and enforcing regulations on all safety matters relating to commercial launch activities.</P> <P>(d) <E T="03">The Federal Highway Administration.</E> Is responsible for:</P> <P>(1) Planning, in cooperation with the States, the national highway system;</P> <P>(2) Providing for improving, in cooperation with the States, roads on the Federal-aid primary, secondary, and interstate highway systems and urban extensions thereof;</P> <P>(3) Highway beautification and scenic enhancement of the Federal-aid highway systems;</P> <P>(4) Surveying and constructing forest highway system roads, defense highways and access roads, and parkways and roads in national parks and other federally administered areas;</P> <P>(5) Developing and administering uniform State standards for highway safety programs with respect to identification and surveillance of accident locations; highway design, construction, and maintenance, including highway related aspects of pedestrian safety; and traffic control devices.</P> <P>(e) <E T="03">The Federal Railroad Administration.</E> Is responsible for:</P> <P>(1) Operating and managing the Alaska Railroad;</P> <P>(2) Conducting research and development activity in support of improved rail transportation;</P> <P>(3) Regulating safety functions pertaining to railroads, express companies, and water carriers operating in connection with railroads under a common control, management, or arrangement for continuous carriage or shipment; and</P> <P>(4) Investigating and issuing reports concerning collisions, derailments, and other railroad accidents resulting in serious injury to persons or to the property of a railroad.</P> <P>(f) <E T="03">The National Highway Traffic Safety Administration.</E> Is responsible for:</P> <P>(1) Promulgating uniform standards for developing State highway safety programs, except for those standards the development and administration of which are delegated to the Federal Highway Administration.</P> <P>(2) Establishing, prescribing, and enforcing National standards for improving safety in the operation and performance of motor vehicles and equipment.</P> <P>(3) Informing the public of the comparative characteristics and operational cost of passenger motor vehicles and requiring display of comparative insurance costs by automobile dealers.</P> <P>(4) Administering a program of mandatory automotive fuel economy standards for passenger and non-passenger automobiles for model year 1978 and beyond.</P> <P>(5) Establishing safeguards for the protection of purchasers with respect to the sale of motor vehicles having altered or reset odometers and enforcing the prohibition against tampering with odometers.</P> <P>(g) <E T="03">The Urban Mass Transportation Administration.</E> Is responsible for:<PRTPAGE P="10"/> </P> <P>(1) Exercising the authority vested in the Secretary for developing comprehensive and coordinated mass transportation systems to serve metropolitan and other urban areas;</P> <P>(2) Administering urban mass transportation programs and functions; and</P> <P>(3) Assuring appropriate liaison and coordination with other governmental organization, with respect to the foregoing.</P> <P>(h) <E T="03">The St. Lawrence Seaway Development Corporation.</E> Is responsible for the development, operation, and maintenance of that part of the St. Lawrence Seaway within the territorial limits of the United States.</P> <P>(i) <E T="03">The Research and Special Programs Administration.</E> Is responsible for:</P> <P>(1) Planning, developing, initiating and managing programs in all fields of transportation research and development. Maintaining the capability to perform research and analysis in transportation planning and socioeconomic effects, program management, and technological support in response to request for line participation in DOT policy formulations. Particular efforts will be made on transportation systems problems, advanced transportation concepts, and on multimodal transportation. RSPA will develop and maintain a vital statistics and related transportation information data base;</P> <P>(2) Exercising for the Secretary the multimodal hazardous materials (HM) program and prescribing and enforcing safety regulations for the transportation of gases or hazardous liquids by pipeline;</P> <P>(3) Developing, managing, and evaluating programs and research activities for the security of passengers and cargo in the transportation systems and for the prevention of unlawful or other acts adversely affecting the efficiency or integrity of the Nation's transportation systems and providing leadership in the development and improvement of coordinated domestic and international transportation services;</P> <P>(4) Providing leadership on all technical, navigation and communication, and systems engineering activities;</P> <P>(5) Providing a point of contact for the Department with the academic community to encourage transportation research;</P> <P>(6) Overseeing the effective discharge of the Secretary's statutory and administrative transportation responsibilities in all emergencies affecting the national defense and in national or regional crises; and</P> <P>(7) Managing a Transportation Safety Institute which designs and conducts training programs responsible to the requirements of Government and industry as expressed by the operating elements of the Department.</P> <P>(j) <E T="03">The Maritime Administration.</E> Is responsible for:</P> <P>(1) Fostering the development and maintenance of an American merchant marine sufficient to meet the needs of the national security and of the domestic and foreign commerce of the United States;</P> <P>(2) Awarding and administering construction-differential subsidy contracts and operating-differential subsidy contracts to aid the American merchant marine, and trade-in allowances for new ship construction;</P> <P>(3) Entering into and administering agreements for capital contruction funds (excepting fishing vessels) and construction reserve funds;</P> <P>(4) Providing insurance on construction loans and ship mortgages or guarantees on ship financing obtained from private sources for ship construction and reconstruction (excepting fishing vessels);</P> <P>(5) Providing assistance to the shipping industry to generate increased trade and cargo shipments on U.S. flag ships;</P> <P>(6) Promoting development of ports and intermodal transportation systems;</P> <P>(7) Promoting development of the domestic waterborne commerce of the United States;</P> <P>(8) Overseeing the administration of cargo preference statutes;</P> <P>(9) Entering into and administering charters and general agency agreements for operation of Government-owned merchant ships;</P> <P>(10) Maintaining custody of, and preserving, ships in the National Defense Reserve Fleet;</P> <P>(11) Selling surplus Government-owned ships;</P> <P>(12) Supervising design and construction of ships for Government account;<PRTPAGE P="11"/> </P> <P>(13) Furnishing war risk insurance on privately owned merchant ships;</P> <P>(14) Administering the foreign transfer program regarding ships and other maritime properties;</P> <P>(15) Training merchant marine officers;</P> <P>(16) Conducting research and development to improve and promote the waterborne commerce of the United States; and</P> <P>(17) Issuing rules and regulations with respect to the foregoing functions.</P> <P>(k) <E T="03">The Maritime Subsidy Board (within the Maritime Administration).</E> Is responsible for:</P> <P>(1) Making, amending, and terminating subsidy contracts, which shall be deemed to include, in the case of construction-differential subsidy: (i) The contract for the construction, reconstruction, or reconditioning of a vessel, and (ii) the contract for the sale of the vessel to the subsidy applicant or the contract to pay a construction-differential subsidy and the cost of the national defense features, and, in the case of operating-differential subsidy, the contract with the subsidy applicant for the payment of the subsidy.</P> <P>(2) Conducting hearings and making determinations antecedent to making, amending, and terminating subsidy contracts, under the provisions of titles V, VI, and VII, and sections 301 (except investigations, hearings, and determinations, including changes in determinations, with respect to minimum manning scales, minimum wage scales, and minimum working conditions), 708, 805(a), and 805(f) of the Merchant Marine Act, 1936, as amended (the “Act”).</P> <P>(3) Approving the sale, assignment, or transfer of any operating subsidy contract under section 608 of the Act.</P> <P>(4) Performing so much of the functions with respect to adopting rules and regulations, subpoenaing witnesses, administering oaths, taking evidence, and requiring the production of books, papers, and documents, under sections 204 and 214 of the Act, as they relate to the functions of the Board.</P> <P>(5) Performing as much of the functions specified in section 12 of the Shipping Act, 1916, as amended, as the same relate to the functions of the Board under paragraphs (k) (1) through (4) of this section.</P> <P>(l) <E T="03">The Bureau of Transportation Statistics.</E> Is responsible for:</P> <P>(1) Compiling, analyzing, and publishing a comprehensive set of transportation statistics to provide timely summaries and total (including industrywide aggregates and multiyear averages) of transportation-related information;</P> <P>(2) Establishing and implementing, in cooperation with the modal administrators, the States, and other Federal officials, a comprehensive, long-term program for the collection and analysis of data relating to the performance of the national transportation system;</P> <P>(3) Issuing guidelines for the collection of information by the Department required for statistics to be compiled pursuant to 49 U.S.C. 111(c)(1) in order to ensure that such information is accurate, reliable, relevant, and in a form that permits systematic analysis;</P> <P>(4) Coordinating the collection of information by the Department required for statistics to be compiled pursuant to 49 U.S.C. 111(c)(1) with related information-gathering activities conducted by the other Federal departments and agencies collecting appropriate data not elsewhere gathered;</P> <P>(5) Making the statistics published under this subsection readily accessible, in compliance with all disclosure laws, regulations, and requirements; and.</P> <P>(6) Identifying information that is needed in accordance with 49 U.S.C. 111(c)(1) but which is not being collected, reviewing such needs at least annually with the Advisory Council on Transportation Statistics, and making recommendations to appropriate Department of Transportation research officials concerning extramural and intramural research programs to provide such information.</P> <P>(m) <E T="03">The Federal Motor Carrier Safety Administration.</E> Is responsible for:</P> <P>(1) Managing program and regulatory activities, including administering laws and promulgating and enforcing regulations on safety matters relating to motor carrier safety;</P> <P>(2) Carrying out motor carrier registration and authority to regulate household goods transportation;<PRTPAGE P="12"/> </P> <P>(3) Developing strategies for improving commercial motor vehicle, operator, and carrier safety;</P> <P>(4) Inspecting records and equipment of commercial motor carriers, and investigating accidents and reporting violations of motor carrier safety regulations; and</P> <P>(5) Carrying out research, development, and technology transfer activities to promote safety of operation and equipment of motor vehicles for the motor carrier transportation program.</P> <P>(n) The Transportation Security Administration. Is responsible for:</P> <P>(1) Security relating to civil aviation and all other modes of transportation within the Department of Transportation, including at transportation facilities;</P> <P>(2) Federal security screening operations for passenger air transportation and intrastate air transportation;</P> <P>(3) Managing and carrying out program and regulatory activities, including administering laws and promulgating and enforcing security-related regulations and requirements in all modes of transportation, including at transportation facilities;</P> <P>(4) Receiving, assessing, coordinating and distributing intelligence information related to transportation security;</P> <P>(5) Developing, coordinating and carrying out plans to discover, prevent and deal with threats to transportation security;</P> <P>(6) Identifying and undertaking research and development activities related to enhancing transportation security; and</P> <P>(7) Coordinating domestic transportation, including aviation, rail, and other surface transportation, and maritime transportation (including port security) and overseeing all transportation related responsibilities of the Federal Government, other than the Department of Defense and the military departments, during a national emergency.</P> <CITA>[Amdt. 1-113, 40 FR 43901, Sept. 24, 1975, as amended by Amdt. 1-120, 41 FR 42956, Sept. 29, 1976; Amdt. 1-125, 41 FR 53798, Dec. 9, 1976; Amdt. 1-157, 45 FR 83403, Dec. 18, 1980; Amdt. 1-164, 46 FR 47458, Sept. 28, 1981; Amdt. 1-211, 51 FR 29471, Aug. 18, 1986; Amdt. 1-270, 60 FR 30196, June 8, 1995; Amdt. 1-274, 60 FR 62762, Dec. 7, 1995; 64 FR 56270, Oct. 19, 1999; 65 FR 221, Jan. 4, 2000; 66 FR 67118, Dec. 28, 2001]</CITA> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Office of the Secretary</HD> <SECTION> <SECTNO>§ 1.21</SECTNO> <SUBJECT>Purpose.</SUBJECT> <P>This subpart establishes the basic organizational structure, spheres of primary responsibility, and lines of authority in the Office of the Secretary. It also describes the relationships between the Office of the Secretary and the operating administrations, and provides for succession to the position of Secretary in case of need.</P> </SECTION> <SECTION> <SECTNO>§ 1.22</SECTNO> <SUBJECT>Structure.</SUBJECT> <P>(a) <E T="03">Secretary and Deputy Secretary.</E> The Secretary and Deputy Secretary are assisted by the following, all of which report directly to the Secretary: The Associate Deputy Secretary and Director, Office of Intermodalism; the Executive Secretariat; the Board of Contract Appeals; the Departmental Office of Civil Rights; the Office of Small and Disadvantaged Business Utilization; the Office of Intelligence and Security; the Office of Public Affairs; and the Office of the Chief Information Officer. The Assistant Secretaries, the General Counsel, and the Inspector General also report directly to the Secretary.</P> <P>(b) <E T="03">Office of the Assistant Secretary for Transportation Policy.</E> This Office is composed of the Offices of Environment, Energy and Safety; and Economics.</P> <P>(c) <E T="03">Office of the Assistant Secretary for Aviation and International Affairs.</E> This Office is composed of the Offices of Aviation International Economics; International Transportation and Trade; International Aviation; and Aviation Analysis.</P> <P>(d) <E T="03">Office of the General Counsel.</E> This Office is composed of the Offices of Environmental, Civil Rights, and General Law; International Law; Litigation; Legislation; Regulation and Enforcement; the Board for Correction of Military Records; and Aviation Enforcement and Proceedings.</P> <P>(e) <E T="03">Office of the Assistant Secretary for Budget and Programs.</E> This Office is composed of the Offices of Programs and Evaluation; and Budget.</P> <P>(f) <E T="03">Office of the Assistant Secretary for Governmental Affairs.</E> This office is <PRTPAGE P="13"/>composed of the Offices of Congressional Affairs and Intergovernmental Affairs.</P> <P>(g) <E T="03">Office of the Assistant Secretary for Administration.</E> This Office is composed of the Offices of Personnel; Management Planning; Information Resource Management; Administrative Services and Property Management; Hearings; Acquisition and Grant Management; Security; Financial Management; and Administrative Systems Development.</P> <P>(h) <E T="03">Office of the Inspector General.</E> The duties and responsibilities of the Office of Inspector General are carried out by the Assistant Inspector General for Auditing; the Assistant Inspector General for Investigations; the Assistant Inspector General for Policy, Planning, and Resources; and the Assistant Inspector General for Inspections and Evaluations.</P> <CITA>[Amdt. 1-261, 59 FR 10061, Mar. 3, 1994, as amended by Amdt.1-268, 60 FR 14226, Mar. 16, 1995; Amdt. 1-269, 60 FR 15877, Mar. 28, 1995; Amdt. 1-274, 60 FR 62762, Dec. 7, 1995; Amdt. 1-290, 62 FR 51804, Oct. 3, 1997]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.23</SECTNO> <SUBJECT>Spheres of primary responsibility.</SUBJECT> <P>(a) <E T="03">Secretary and Deputy Secretary.</E> Overall planning, direction, and control of departmental affairs including civil rights, contract appeals, small and disadvantaged business participation in departmental programs, transportation research and technology, commercial space transportation, intelligence and security, and public affairs.</P> <P>(b) <E T="03">Associate Deputy Secretary and Director, Office of Intermodalism.</E> Assists the Secretary and Deputy Secretary in carrying out a variety of executive and managerial policies, programs and initiatives. Focal point within the Federal Government for coordination of intermodal transportation policy which brings together departmental intermodal perspectives, advocates intermodal interests, and provides secretarial leadership and visibility on issues that involve or affect more than one operating administration.</P> <P>(c) <E T="03">General Counsel.</E> Legal services as the chief legal officer of the Department, legal advisor to the Secretary and the Office of the Secretary; final authority within the Department on questions of law; professional supervision, including coordination and review, over the legal work of the legal offices of the Department; drafting of legislation and review of legal aspects of legislative matters; point of coordination for the Office of the Secretary and Department Regulations Council; advice on questions of international law; exercise of functions, powers, and duties as Judge Advocate General under the Uniform Code of Military Justice (Chapter 47 of Title 10, U.S.C.) with respect to the United States Coast Guard; advice and assistance with respect to uniform time matters; ensures uniform departmental implementation of the Freedom of Information Act (5 U.S.C. 552); responds to requests for records of the Office of the Secretary including the Office of the Inspector General, under that statute; review and final action on applications for reconsideration of initial decisions not to disclose unclassified records of the Office of the Secretary requested under 5 U.S.C. 552(a)(3); promotion and coordination of efficient use of Departmental legal resources; recommendation, in conjunction with the Assistant Secretary for Administration, of legal career development programs within the Department; review and final action on application for correction of military records of the United States Coast Guard.</P> <P>(d) <E T="03">Assistant Secretary for Transportation Policy.</E> Principal policy advisor to the Secretary and the Deputy Secretary. Public policy development, coordination, and evaluation for all aspects of transportation, with the goal of making the Nation's transportation resources function as an integrated national system; evaluation of private transportation sector operating and economic issues; evaluation of public transportation sector operating and economic issues; regulatory and legislative initiatives and review; energy, environmental, disability, and safety policy and program development and review; and transportation infrastructure assessment and review.</P> <P>(e) <E T="03">Assistant Secretary for Aviation and International Affairs.</E> Public policy assessment and review; private sector <PRTPAGE P="14"/>evaluation; international transportation and transport-related trade policy and issues; regulatory and legislative initiatives and review of maritime/shipbuilding policies and programs; transport-related trade promotion; coordination of land transport relations with Canada and Mexico; technical assistance and science and technology cooperation; international visitors’ programs; economic regulation of the airline industry; and essential air service program.</P> <P>(f) <E T="03">Assistant Secretary for Budget and Programs.</E> Preparation, review and presentation of Department budget estimates; liaison with OMB and Congressional Budget and Appropriations Committees; departmental financial plans, apportionments, reapportionments, reprogrammings, and allotments; program and systems evaluation and analysis; program evaluation criteria; program resource plans; analysis and review of legislative proposals and one-time reports and studies required by the Congress; budgetary and selected administrative matters relating to the Immediate Office of the Secretary.</P> <P>(g) <E T="03">Assistant Secretary for Governmental Affairs.</E> Coordination of legislative and non-legislative relationships; congressional affairs; communications and coordination with Federal, State and local governments, industry and labor, and with citizens and organizations representing consumers.</P> <P>(h) <E T="03">Assistant Secretary for Administration.</E> Organization; delegations of authority; personnel ceiling control; management studies; personnel management; acquisition and grant management (except for the responsibility listed for the Office of Small and Disadvantaged Business Utilization in this section); information resource management; financial management; development and implementation of a Departmental Accounting and Financial Information System (DAFIS); property management information; security; computer support; telecommunications; and administrative support services for the Office of the Secretary and certain other components of the Department.</P> <P>(i) <E T="03">Inspector General.</E> Conduct, supervise, and coordinate audits and investigations, review existing and proposed legislation and make recommendations to the Secretary and Congress (Semiannual reports) concerning their impact on the economy and efficiency of program administration, or the prevention and detection of fraud and abuse; recommend policies for and conduct, supervise, or coordinate other activities of the Department for the purpose of promoting economy and efficiency in program administration, or preventing and detecting fraud and abuse.</P> <P>(j) <E T="03">Executive Secretary.</E> Central facilitative staff for the Immediate Office of the Secretary and the Secretarial Officers.</P> <P>(k) <E T="03">Board of Contract Appeals.</E> Conducts trials and issues final decisions, which are appealable to the United States Court of Appeals for the Federal Circuit, on appeals from contracting officer decisions under contracts awarded by the Department and its constituent administrations in accordance with the Contract Disputes Act of l978, 41 U.S.C. 601 et seq.; sits as the Contract Adjustment Board with plenary authority to grant extraordinary contractual relief in accordance with 50 U.S.C. 1431-1435 and Executive Order 10789 (3 CFR, 1954-1958 comp., p. 426), as amended; hears and decides all contractor and subcontractor debarment, suspension, or ineligibility cases pursuant to the Federal Acquisition Regulation, 48 CFR 9.402; judges serve as “neutrals” under the Administrative Dispute Resolution Act, 5 U.S.C. 581 et seq., in contract-related matters; and performs such other adjudicatory functions assigned by the Secretary as are consistent with the duties and responsibilities of the Board as set forth in 41 U.S.C. 601 et seq.</P> <P>(l) <E T="03">Departmental Office of Civil Rights.</E> The Director of the Departmental Office of Civil Rights serves as the Department's Equal Employment Opportunity (EEO) Officer and Title VI Coordinator. The Director also serves as principal advisor to the Secretary and the Deputy Secretary on the civil rights and nondiscrimination statutes, regulations, and executive orders applicable to the Department, including titles VI and VII of the Civil Rights Act of 1964, as amended, the Age Discrimination in Employment Act of 1967, as amended, the Age Discrimination Act <PRTPAGE P="15"/>of 1975, as amended, section 504 of the Rehabilitation Act of 1973, as amended, the Americans with Disabilities Act of 1990, and the Equal Pay Act of 1963. The Office of Civil Rights also provides policy guidance to the operating administrations and Secretarial officers on these matters. Also, the Office periodically reviews and evaluates the civil rights programs of the operating administrations to ensure that recipients of DOT funds meet applicable Federal civil rights requirements.</P> <P>(m) <E T="03">Office of Small and Disadvantaged Business Utilization.</E> Responsible for the Department's implementation and execution of the functions and duties under sections 8 and 15 of the Small Business Act, as amended, (15 U.S.C. 637 and 644), and for other departmental small and disadvantaged business policy direction.</P> <P>(n) [Reserved]</P> <P>(o) <E T="03">Office of Intelligence and Security.</E> Focal point within the Department of Transportation for intelligence and security matters which affect the safety of the traveling public.</P> <P>(p) <E T="03">Office of Public Affairs.</E> Focal point for public information and departmental relations with the news media, the general public, and selected special publics.</P> <P>(q) <E T="03">Office of the Chief Information Officer.</E> Serves as principal advisor to the Secretary on matters involving information resources and information systems management.</P> <CITA>[Amdt. 1-261, 59 FR 10062, Mar. 3, 1994, as amended by Amdt. 265, 60 FR 2891, Jan. 12, 1995; Amdt. 1-274, 60 FR 62762, Dec. 7, 1995; Amdt. 1-290, 62 FR 51804, Oct. 3, 1997]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.24</SECTNO> <SUBJECT>Authority.</SUBJECT> <P>(a) The Deputy Secretary may exercise the authority of the Secretary, except where specifically limited by law, order, regulation, or instructions of the Secretary.</P> <P>(b) Acting in his or her own name and title, each Assistant Secretary, the Inspector General, or the General Counsel, within his or her sphere of responsibility, is authorized to identify and define the requirements for, and to recommend to the Secretary, new or revised Departmental policies, plans, and proposals. Each of these officers is authorized to issue Departmental standards, criteria, systems and procedures that are consistent with applicable laws, Executive Orders, Government-wide regulations and policies established by the Secretary, and to inspect, review, and evaluate Departmental program performance and effectiveness and advise the Secretary regarding the adequacy thereof.</P> <P>(c) Except for nondelegable statutory duties, including those which devolve as a result of succession to act as Secretary of Transportation, each Deputy Assistant Secretary, the Deputy Inspector General, and the Deputy General Counsel is authorized to act for and perform the duties of his or her principal in the absence or disability of the principal and as otherwise directed by the principal.</P> <P>(d) <E T="03">Inspector General.</E> The Inspector General shall report to and be under the general supervision of the Secretary and Deputy Secretary. In accordance with the statutory intent of the Inspector General Act to create an independent and objective unit, the Inspector General is authorized to make such investigations and reports relating to the administration of the programs and operations of the Department as are, in the judgment of the Inspector General, necessary and desirable. Neither the Secretary nor the Deputy Secretary shall prevent or prohibit the Inspector General from initiating, carrying out, or completing any audit or investigation, or from issuing any subpoena during the course of any audit or investigation.</P> <CITA>[Amdt. 1-113, 40 FR 43901, Sept. 24, 1975, as amended by Amdt. 1-157, 45 FR 83404, Dec. 18, 1980]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.25</SECTNO> <SUBJECT>Relationships.</SUBJECT> <P>(a) <E T="03">Normal staff role.</E> Normally, the functions of the Assistant Secretaries are staff and advisory in nature. In performing their functions, the Assistant Secretaries are responsible for continuing liaison and coordination among themselves and with the operating administrations to:</P> <P>(1) Avoid unnecessary duplication of effort by or in conflict with the performance of similar activities by the operating administrations and the other Assistant Secretaries pursuant <PRTPAGE P="16"/>to their Secretarial delegations of authority; and</P> <P>(2) Assure that the views of the operating administrations are considered in developing Departmental policies, plans, and proposals.</P> <FP>The Assistant Secretaries are also available to assist, as appropriate, the operating administrations in implementing Departmental policy and programs. As primary staff advisors to the Secretary, the Assistant Secretaries are concerned with transportation matters of the broadest scope, including modal, intermodal, and other matters of Secretarial interest.</FP> <P>(b) <E T="03">Exceptions.</E> There are exceptions to the normal staff role described in paragraph (a) of this section. In selected instances, the Secretary has specifically delegated to Assistant Secretaries authority which they may exercise on the Secretary's behalf. For example, the Secretary has delegated authority to the Assistant Secretary for Transportation Policy and the Assistant Secretary for Aviation and International Affairs, as appropriate, to decide on most requests to intervene or appear before administrative agencies, subject to the concurrence of the General Counsel. Also, from time to time, activities of an operational character may be delegated to an Assistant Secretary when the nature of the function or its stage of development makes it untimely to effect assignment to an operating administration.</P> <CITA>[Amdt. 1-113, 40 FR 43901, Sept. 24, 1975, as amended by Amdt. 1-157, 45 FR 83405, Dec. 18, 1980; Amdt. 1-261, 59 FR 10063, Mar. 3, 1994]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.26</SECTNO> <SUBJECT>Secretarial succession.</SUBJECT> <P>(a) The following officials, in the order indicated, shall act as Secretary of Transportation, in case of the absence or disability of the Secretary, until the absence or disability ceases, or, in case of a vacancy, until a successor is appointed:</P> <P>(1) Deputy Secretary.</P> <P>(2) General Counsel.</P> <P>(3) Assistant Secretary for Budget and Programs.</P> <P>(4) Assistant Secretary for Governmental Affairs.</P> <P>(5) Assistant Secretary for Transportation Policy.</P> <P>(6) Assistant Secretary for Aviation and International Affairs.</P> <P>(7) Assistant Secretary for Administration.</P> <P>(8) Associate Deputy Secretary.</P> <P>(9) Under Secretary of Transportation for Security.</P> <P>(10) Federal Aviation Administrator.</P> <P>(11) Federal Aviation Administration Regional Administrator, Southwest Region.</P> <P>(12) Federal Aviation Administration Regional Administrator, Great Lakes Region.</P> <P>(b) Without regard to the foregoing, a person directed to perform the duties of the Secretary pursuant to 5 U.S.C. 3347 shall act as Secretary of Transportation.</P> <CITA>[Amdt. 1-157, 45 FR 83405, Dec. 18, 1980, as amended by Amdt. 1-184, 48 FR 44079, Sept. 27, 1983; Amdt. 1-261, 59 FR 10063, Mar. 3, 1994; Amdt. 1-291, 62 FR 55357, Oct. 24, 1997 67 FR 47467; July 19, 2002]</CITA> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—Delegations</HD> <SECTION> <SECTNO>§ 1.41</SECTNO> <SUBJECT>Purpose.</SUBJECT> <P>(a) Except as provided in paragraph (b) of this section, this subpart provides for the exercise of the powers and performance of the duties vested in the Secretary of Transportation by law.</P> <P>(b) For delegations of authority vested in the Secretary by Executive Order 11652 originally to classify documents as secret or confidential, see § 8.11 of this subtitle.</P> </SECTION> <SECTION> <SECTNO>§ 1.42</SECTNO> <SUBJECT>Exercise of authority.</SUBJECT> <P>In exercising powers and performing duties delegated by this subpart or redelegated pursuant thereto, officials of the Department of Transportation are governed by applicable laws, Executive orders and regulations and by policies, objectives, plans, standards, procedures, and limitations as may be issued from time to time by or on behalf of the Secretary, or, with respect to matters under their jurisdictions, by or on behalf of the Deputy Secretary, an Assistant Secretary, the Inspector General, the General Counsel, or an Administrator. This includes, wherever specified, the requirement for advance notice to, prior coordination with, or prior approval by an authority other <PRTPAGE P="17"/>than that of the official proposing to act.</P> <CITA>[Amdt. 1-114, 41 FR 1288, Jan. 7, 1976, as amended by Amdt. 1-157, 45 FR 83405, Dec. 18, 1980]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.43</SECTNO> <SUBJECT>General limitations and reservations.</SUBJECT> <P>(a) All powers and duties that are not delegated by the Secretary in this subpart, or otherwise vested in officials other than the Secretary, are reserved to the Secretary. Except as otherwise provided, the Secretary may exercise powers and duties delegated or assigned to officials other than the Secretary.</P> <P>(b) Except as provided in § 1.42 and subject to paragraph (a) of this section and § 1.44, the Deputy Secretary, the Assistant Secretaries, the Inspector General, the General Counsel, and the Administrators exercise the powers and perform the duties delegated to them under this subpart.</P> <P>(c) Notwithstanding the provisions of paragraph (a), the delegation of authority in § 1.56b of this title to the Designated Senior Career Official in the Office of the Assistant Secretary for Aviation and International Affairs to make decisions in certain aviation hearing cases is exclusive, and may not be exercised by any other Departmental official, including the Secretary. The Secretary reserves (and delegates to the Assistant Secretary for Aviation and International Affairs) only the authority to make discretionary review of any such decision and to approve it or to remand it for reconsideration by the Designated Senior Career Official, with a full written explanation of the basis for the remand.</P> <CITA>[Amdt. 1-157, 45 FR 83405, Dec. 18, 1980, as amended by Amdt. 1-199, 49 FR 50996, Dec. 31, 1984; Amdt. 1-261, 59 FR 10061, 10063, Mar. 3, 1994]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.44</SECTNO> <SUBJECT>Reservation of authority.</SUBJECT> <P>The delegations of authority in §§ 1.45 through 1.53 and §§ 1.66 and § 1.67 do not extend to the following actions, authority for which is reserved to the Secretary or the Secretary's delegatee within the Office of the Secretary:</P> <P>(a) <E T="03">General transportation matters.</E> (1) Transportation leadership authority under section 4(a) of the Department of Transportation Act (49 U.S.C. 1653(a)).</P> <P>(2) Functions relating to transportation activities, plans, and programs under section 4(g) of the Department of Transportation Act (49 U.S.C. 1653(g)).</P> <P>(3) Authority to develop, prepare, coordinate, transmit, and revise transportation investment standards and criteria under section 7 of the Department of Transportation Act (49 U.S.C. 1656).</P> <P>(4) Authority relating to standard time zones and advanced (daylight) time (15 U.S.C. 260 <E T="03">et seq.</E>).</P> <P>(5) Authority related to national transportation policy under section 3 of the Airport and Airway Development Act of 1970 (84 Stat. 219).</P> <P>(b) <E T="03">Legislation and reports.</E> (1) Submission to the President, the Director of the Office of Management and Budget, or the Congress of proposals or recommendations for legislation, Executive orders, proclamations or reorganization plans or other Presidential action.</P> <P>(2) Submission to Congress or the President of any report or any proposed transportation policy or investment standards or criteria, except with the prior written approval of the Secretary.</P> <P>(3) Submission of the annual statement on systems of internal accounting and administrative control under the Federal Managers’ Financial Integrity Act of 1982 (Pub. L. 97-255).</P> <P>(c) <E T="03">Budget and finance.</E> (1) Approval and submission to the Office of Management and Budget of original or amended budget estimates or requests for allocations of personnel ceiling (31 U.S.C. 22-24).</P> <P>(2) Approval of requests for legislation which, if enacted, would authorize subsequent appropriations for the Department (31 U.S.C. 581b).</P> <P>(3) Transfer of the balance of an appropriation from one operating element to another within the Department (31 U.S.C. 581c).</P> <P>(4) Submission to the Director of the Office of Management and Budget of requests for the transfer of the balance or portions of an appropriation from one element to another within the Department (31 U.S.C. 665).<PRTPAGE P="18"/> </P> <P>(d) <E T="03">Interventions and appearances.</E> Except with respect to proceedings relating to safety fitness of an applicant (49 U.S.C. 1653(e)), the making of decisions on requests to intervene or appear before courts and administrative agencies to present the views of the Department.</P> <P>(e) <E T="03">Personnel.</E> (1) Recommendations to the Civil Service Commission of the allocation of a position to GS-16, 17, or 18 or an equivalent level (5 U.S.C. 5108).</P> <P>(2) Recommendations to the Civil Service Commission of approval of the qualifications of any candidate for a position at grade GS-16, 17, or 18 or an equivalent level (5 U.S.C. 3324), or to an executive level position.</P> <P>(3) Recommendations to the Civil Service Commission of a Lump-Sum Incentive Award in Excess of $5,000 (5 U.S.C. 4502).</P> <P>(4) Approval of the following actions relating to Schedules A, B, and C and noncareer executive assignment positions or incumbents, except for actions under Schedules A and B limited to one year or less at grade GS-9 or lower, or an equivalent level:</P> <P>(i) Establishment or abolition of positions;</P> <P>(ii) Hires;</P> <P>(iii) Promotions other than quality and periodic within-grade promotions;</P> <P>(iv) Transfer of personnel to Schedule A, B, or C positions or non-career executive assignment positions, either permanently or on detail; and</P> <P>(v) Transfer of personnel from Schedule A, B, or C or non-career executive assignment positions to career Civil Service positions.</P> <P>(5) Approval of employment of experts or consultants.</P> <P>(6) Authority relating to scientific and professional positions under section 6(a) (5) of the Department of Transportation Act (49 U.S.C. 1655(a)(5)).</P> <P>(7) Authority to determine the maximum limit of age for appointment of air traffic controllers as provided by 5 U.S.C. 3307(b) (86 Stat. 141).</P> <P>(8) Authority to develop, coordinate, and issue wage schedules under the Federal Wage system, except as delegated to the Commandant of the Coast Guard at § 1.46.</P> <P>(f) <E T="03">Security.</E> (1) Suspension or removal of an employee from a position in the Department for security reasons under Executive Order 10450 (3 CFR, 1949-53 Comp., p. 936) or the employment in the Department of a person who was previously separated for security reasons from any Federal agency.</P> <P>(2) Authorizing the filling of a critical-sensitive position for a limited period by a person on whom a preappointment full field investigation has not been completed (Executive Order 10450).</P> <P>(3) Requesting Presidential approval of a claim of executive privilege with respect to information requested by a congressional committee or Member of Congress.</P> <P>(4) Making determinations prescribed by sections 4(a)(2)(B), 4(b)(3), 5(b), and 9 of Executive Order 10865 (3 CFR, 1959-63 Comp., p. 398) relating to the adjudication and final denial of access to classified information to industry personnel.</P> <P>(5) Making those determinations or delegations prescribed by sections 2(B) (3), 5(E) (1) and (2) of Executive Order 11652 (37 FR 5209, March 10, 1972) which are reserved to the head of the Department.</P> <P>(g) <E T="03">Procurement.</E> Exercise of the extraordinary authority for defense contracts provided for in Public Law 85-804 (50 U.S.C. 1431-1435), and considerations and decisions on contract appeals and other matters pursuant to the Department of Transportation Contract Appeals Regulations (41 CFR part 12-60).</P> <P>(h) <E T="03">Printing.</E> Requesting approval of the Joint Committee on Printing for any procurement or other action requiring Committee approval.</P> <P>(i) <E T="03">Interagency agreements.</E> Execution of any written interdepartmental or interagency agreement with the head of another executive department or agency.</P> <P>(j) <E T="03">Withholding of funds.</E> Withholding or suspension of Federal-Aid Highway funds on a state-wide basis and the waiver or compromise of such withholding or suspension, except for the administration of 23 U.S.C. 141 and 154, which are specifically delegated in § 1.48(b) (23) and (28) and in § 1.50(i) (1) and (2).</P> <P>(k) <E T="03">Alaska Railroad.</E> Extension or abandonment of railroad service.<PRTPAGE P="19"/> </P> <P>(l) <E T="03">National Highway Safety Advisory Committee.</E> Directing the National Highway Safety Advisory Committee to meet (23 U.S.C. 404(c)).</P> <P>(m) <E T="03">Coast Guard.</E> The following powers relating to the Coast Guard:</P> <P>(1) Appointment of Advisory Committee to the Academy (14 U.S.C. 193).</P> <P>(2) Fixing date for visit to Academy by Board of Visitors (14 U.S.C. 194(b)).</P> <P>(3)-(4) [Reserved]</P> <P>(5) Responsibility for supervising activities of Reserve components (10 U.S.C. 264(b)).</P> <P>(6) Convening General Courts-Martial under the personal authority granted by law (10 U.S.C. 822(a)(2)).</P> <P>(7) Approval of execution of a sentence dismissing a commissioned officer or cadet (10 U.S.C. 871(b)).</P> <P>(8) Approval of vacation of a suspension of dismissal (10 U.S.C. 872(b)).</P> <P>(9) Establishing procedures for the correction of military records (10 U.S.C. 1552(a)).</P> <P>(10) Establishing a Discharge Review Board under 10 U.S.C. 1553 and reviewing and taking final action on its findings in the following cases:</P> <P>(i) Those cases in which a minority of the Board requests that their written opinion be forwarded to the Secretary for consideration;</P> <P>(ii) Those cases selected by the Commandant to inform the Secretary of aspects of the Board's functions which may be of interest to the Secretary;</P> <P>(iii) Any case in which the Secretary demonstrates an interest; and</P> <P>(iv) Any case which the president of the Board believes is of significant interest to the Secretary.</P> <P>(11) [Reserved]</P> <P>(12) Substitute administrative discharge for dismissal of an officer under 10 U.S.C. 804 (a) and (b).</P> <P>(13) Designation of commanding officers and officers in charge who may convene general, special and summary courts-martial. (10 U.S.C. 822(a)(6), 823(a)(7), and 824(a)(4).</P> <P>(14) In time of war certify cases to President to extend statute of limitations until after termination of hostilities. (10 U.S.C. 843(e)).</P> <P>(15) Direct Judge Advocate General to establish branch office. (10 U.S.C. 868).</P> <P>(16) Designate officers authorized to remit or suspend any part of amount of unexecuted part of any sentence. (10 U.S.C. 874(a)).</P> <P>(17) Substitute administrative form of discharge for discharge or dismissal executed in accordance with sentence of court-martial (10 U.S.C. 874(b)).</P> <P>(18) Substitute administrative discharge for previously executed sentence of dismissal when dismissal not imposed at new trial. (10 U.S.C. 875(c)).</P> <P>(19) Designate persons to convene courts of inquiry. (10 U.S.C. 935(a)).</P> <P>(n) <E T="03">Automatic data processing.</E> Approval authority relating to automatic data processing equipment and services as delimited by DOT 1370.2A, Procurement of Automatic Data Processing Equipment and Services, of 7.22.70.</P> <P>(o) <E T="03">Deepwater ports.</E> The authority to issue, transfer, or amend a license for the construction and operation of a deepwater port (33 U.S.C. 1503(b)).</P> <P>(p) [Reserved]</P> <P>(q) <E T="03">Review and finality of actions by Maritime Subsidy Board.</E> (1) Review of any decision, report, and/or order of the Maritime Subsidy Board, as described in 46 CFR part 202, as amended.</P> <P>(r) <E T="03">Approval of cash purchases of passenger transportation.</E> The authority under FPMR G-72, as amended, to authorize and approve cash purchases for emergency passenger transportation services costing more than $100.</P> <CITA>[Amdt. 1-113, 40 FR 43901, Sept. 24, 1975]</CITA> <EDNOTE> <HD SOURCE="HED">Editorial Note:</HD> <P>For <E T="04">Federal Register</E> citations affecting § 1.44, see the List of CFR Sections Affected which appears in the Finding Aids section of the printed volume and on GPO Access.</P> </EDNOTE> </SECTION> <SECTION> <SECTNO>§ 1.45</SECTNO> <SUBJECT>Delegations to all Administrators.</SUBJECT> <P>(a) Except as prescribed by the Secretary of Transportation, each Administrator is authorized to:</P> <P>(1) Exercise the authority of the Secretary over and with respect to any personnel within their respective organizations.</P> <P>(2) Exercise the authority of the Secretary as executive head of a department, under any statute, Executive order or regulation.</P> <P>(3) Request the Attorney General to approve the award, compromise, or settlement of any tort claim for an <PRTPAGE P="20"/>amount exceeding $100,000 (excluding interest) (28 U.S.C. 2672).</P> <P>(4) Carry out the functions vested in the Secretary concerning environmental enhancement by 49 U.S.C. 303.</P> <P>(5) Carry out the emergency preparedness functions assigned to the Secretary by Executive Order 12656 and by the Federal Emergency Management Agency, General Services Administration (FEMA/GSA) as they pertain to his administration, including those relating to continuity of operations, emergency resource management, associated Federal claimant procedures, facilities protection and warfare effects monitoring and reporting, research, stockpiling, financial aid, and training.</P> <P>(6) Enter into inter- and intradepartmental reimbursable agreements other than with the head of another department or agency (31 U.S.C. 686). This authority may be redelegated only to Office Directors, Regional Directors, District Commanders or other comparable levels and Contracting Officers.</P> <P>(7) Determine the existence and amount of indebtedness and the method of collecting repayments from employees and members within their respective administrations and collect repayments accordingly, as provided by 5 U.S.C. 5514. Redelegation of this authority may be made only to the principal officials responsible for financial management or such officials’ principal assistants.</P> <P>(8) Waive claims and make refunds in connection with claims of the United States for erroneous payment of pay and allowances or of travel, transportation, and relocation expenses and allowances in amounts aggregating not more than $1,500 without regard to any repayments, and deny requests for waiver of such claims regardless of the aggregate amount of the claim, as provided by 4 CFR parts 91, 92, and 93. Redelegation of this authority may be made only to the level of Regional Director or District Commander.</P> <P>(9) Settle and pay claims by employees for personal property losses as provided by 31 U.S.C. 3721. This authority may be redelegated only to Office Directors, Regional Directors, District Commanders, or other comparable levels and to those individuals that report to the above officials.</P> <P>(10) Exercise the authority of the Secretary to resolve informal allegations of discrimination arising in or relating to their respective organizations through Equal Employment Opportunity counseling or the Alternative Dispute Resolution process and to develop and implement affirmative action and diversity plans within their respective organizations. With regard to external civil rights programs, each Administrator exercises authority pursuant to statutes, regulations, executive orders, or delegations in subpart C of this part to carry out these programs, under the general policy guidance of the Director of the Departmental Office of Civil Rights, including conducting compliance reviews and other activities relating to the enforcement of these statutes, regulations, and executive orders.</P> <P>(11) Review and approve for payment any voucher for $25 or less the authority for payment of which is questioned by a certifying or disbursing officer.</P> <P>(12) Authorize and approve official non-foreign travel and transportation for themselves, their subordinates, and others performing services for, or in cooperation with, their operating administrations. Additionally, heads of operating administrations, through a redelegation from the Deputy Secretary, may authorize and approve routine operational foreign travel, as defined in DOT 1500.6A, Travel Manual, of 1-2-85. These authorities may be redelegated in accordance with regulations issued by the Assistant Secretary for Administration.</P> <P>(13) Exercise the authority of the Secretary to make certifications, findings and determinations under the Regulatory Flexibility Act (Pub. L. 96-354) with regard to any rulemaking document for which issuance authority is delegated by other sections in this part. This authority may be redelegated to those officials to whom document issuance authority has been delegated.</P> <P>(14) Carry out the functions vested in the Secretary by section 2 of the Federal Technology Transfer Act of 1986, (Pub. L. No. 99-502; 15 U.S.C. 3710a), which authorizes agencies to permit <PRTPAGE P="21"/>their laboratories to enter into cooperative research and development agreements.</P> <P>(15) Compromise, suspend collection action on, or terminate claims of the United States not exceeding $100,000 (excluding interest) that are referred to, or arise out of the activities of, his or her Operating Administration;</P> <P>(16) Compromise, suspend collection action on, or terminate claims against the United States not exceeding $100,000 (excluding interest) that are referred to, or arise out of the activities of, his or her Operating Administration; <E T="03">provided that</E> when the Administrator believes that a claim against the United States presents a novel question of law or of policy, he or she shall obtain the advice of the Assistant Attorney General in charge of the Civil Division; and <E T="03">provided further that</E> whenever he or she settles any administrative claim against the United States for an amount in excess of $50,000, the Administrator shall prepare a memorandum fully explaining the basis for the action taken and send a copy of the memorandum to the Director, Federal Torts Claims Act Staff, Torts Branch of the Civil Division, U.S. Department of Justice.</P> <P>(17) Enter into memoranda of understanding with the Occupational Safety and Health Administration (OSHA) in regard to setting and enforcing occupational safety or health standards for employees in DOT-regulated industries. The General Counsel shall concur in each memorandum of understanding with OSHA prior to its execution by the Administrator of the operating administration concerned.</P> <P>(18) Exercise the authority vested in the Secretary by Section 329A of the Department of Transportation and Related Agencies Appropriations Act, 1995, Pub. L. No. 103-331, § 329A, 108 Stat. 2471, 2493 (September 30, 1994), to enter into grants, cooperative agreements, and other transactions with any person, agency, or instrumentality of the United States, any unit of state or local government, any educational institution, and any other entity in execution of the Technology Reinvestment Project authorized under the Defense Conversion, Reinvestment, and Transition Assistance Act of 1992, Pub. L. No. 102-484, 106 Stat. 2658 (October 23, 1992), and related legislation.</P> <P>(b) Except as otherwise specifically provided, each official to whom authority is granted by §§ 1.45 through 1.53, 1.66, and 1.68 may redelegate and authorize successive redelegations of that authority within the organization under that official's jurisdiction.</P> <P>(c) Except as provided in §§ 1.48 and 1.59 and 49 CFR 25.302, the functions, powers, and duties of the Secretary of Transportation, with respect to the Uniform Relocation Assistance and Real Property Acquisition Act of 1970, Public Law 91-646, 84 Stat. 1984, are delegated to:</P> <P>(1) The head of each of the following Operating Administrations with respect to programs administered by their respective organizations:</P> <P>(i) U.S. Coast Guard;</P> <P>(ii) Federal Aviation Administration;</P> <P>(iii) Federal Highway Administration;</P> <P>(iv) Federal Railroad Administration;</P> <P>(v) Urban Mass Transportation Administration;</P> <P>(vi) National Highway Traffic Safety Administration;</P> <P>(vii) St. Lawrence Seaway Development Corporation;</P> <P>(viii) Maritime Administration; and</P> <P>(ix) Federal Motor Carrier Safety Administration.</P> <P>(2) [Reserved]</P> <P>(d) Each office to whom authority is delegated by either § 1.45(c) or § 1.59(p) may redelegate and authorize successive redelegations of that authority within the organization under the Administrators’ or Assistant Secretary for Administration's jurisdiction.</P> <P>(e) Each office to whom authority is delegated by either § 1.45(c) or § 1.59(p) may prescribe additional procedures, requirements and regulations that are appropriate to the particular programs administered by the preparing official's organization, provided:</P> <P>(1) Any such additional guidance is not inconsistent with the Act, 49 CFR part 25 or subpart C of this manual;</P> <P>(2) Any such additional guidance is approved prior to issuance by the Federal government's designated lead agency, the Federal Highway Administration (see § 1.48(cc)), in coordination <PRTPAGE P="22"/>with the Assistant Secretary for Transportation Policy.</P> <CITA>[Amdt. 1-113, 40 FR 43901, Sept. 24, 1975]</CITA> <EDNOTE> <HD SOURCE="HED">Editorial Note:</HD> <P>For <E T="04">Federal Register</E> citations affecting § 1.45, see the List of CFR Sections Affected which appears in the Finding Aids section of the printed volume and on GPO Access.</P> </EDNOTE> </SECTION> <SECTION> <SECTNO>§ 1.46</SECTNO> <SUBJECT>Delegations to Commandant of the Coast Guard.</SUBJECT> <P>The Commandant of the Coast Guard is delegated authority to:</P> <P>(a) [Reserved]</P> <P>(b) Carry out all the activities of the Coast Guard, including, but not limited to, law enforcement, safety of life and property at sea (excluding 46 U.S.C. 170 (7), (10) and (11)), aids to navigation, search and rescue, icebreaking, oceanographic research and military readiness functions (49 U.S.C. 1655(b)(1)).</P> <P>(c) Carry out the following laws relating generally to water vessel anchorages, drawbridge operating, regulations, obstructive bridges, pollution of the sea by oil and the locations and clearances of bridges and causeways over the navigable waters of the United States:</P> <P>(1) Section 7 of the Act of March 4, 1915, as amended (38 Stat. 1053; 33 U.S.C. 471);</P> <P>(2) Section 5 of the Act of August 18, 1894, as amended (28 Stat. 362; 33 U.S.C. 499);</P> <P>(3) The Act of June 21, 1940, as amended (54 Stat. 497; 33 U.S.C. 511 <E T="03">et seq.</E>);</P> <P>(4) The Oil Pollution Act, 1961, as amended (75 Stat. 402; 33 U.S.C. 1001 <E T="03">et seq.</E>);</P> <P>(5) Sections 9 and 18 of the Act of March 3, 1899, as amended (30 Stat. 1151; 33 U.S.C. 401, 502);</P> <P>(6) The Act of March 23, 1906, as amended (34 Stat. 84, 33 U.S.C. 491 <E T="03">et seq.</E>) except section 3 (33 U.S.C. 493) and that portion of section 4 (33 U.S.C. 494) that relates to tolls.</P> <P>(7) The General Bridge Act of 1946, as amended (60 Stat. 847, 33 U.S.C. 525 <E T="03">et seq.</E>) except sections 502(c) and 503.</P> <P>(d) Carry out the functions vested in the Secretary by the Vessel Documentation Act (94 Stat. 3453, 46 U.S.C. 65a <E T="03">et seq.</E>) and the Tonnage Measurement Simplification Act (94 Stat. 3461, 46 U.S.C. 71 <E T="03">et seq.</E>), and the functions assigned to the Secretary by Executive Order 12419 relating to admeasurement of ships; and carry out Reorganization Plan No. 1 of 1967, relating to ship mortgages.</P> <P>(e) Request the Secretary of the Navy to build at naval shipyards Coast Guard vessels not normally or economically obtainable from private contractors (14 U.S.C. 145(a)(1)).</P> <P>(f) Administer Executive Order 11459 (34 FR 5057), relating to approval of containers for transport under Customs seal.</P> <P>(g) Exchange information, through the Secretary of State, with foreign governments on matters dealing with the safety of life and property at sea, other than radio communications, but not including the submission of suggestions to the Secretary of State on international collaboration and conferences (14 U.S.C. 142).</P> <P>(h) Exchange personnel, vessels, facilities, and equipment with the Secretary of the Navy to facilitate operational readiness for wartime service with the Navy, and agree to undertake such assignments and functions for the mutual benefit of the Navy and Coast Guard as are necessary and advisable, except with respect to those exchanges and agreements which, in the Commandant's judgment, may have substantial political impact or adversely affect mission performance (14 U.S.C. 145(c)).</P> <P>(i) Approve retention of a rear admiral on active duty for a period not exceeding one year (14 U.S.C. 290(b)).</P> <P>(j) Through the Chief Counsel, U.S. Coast Guard, settle and pay claims against the United States as provided by 10 U.S.C. 2733.</P> <P>(k) Award life-saving medals and military decorations (except the Medal of Honor, the Distinguished Service Medal, and the Legion of Merit) and carry out the laws and Executive orders relating to those awards (14 U.S.C. 492a, 493, 494, 496, 497, 498, 500, 501, 502; Executive Order 4601, Mar. 1, 1926, as amended by Executive Order 7786 (3 FR 39); Executive Order 9158 (7 FR 3541), as amended by Executive Order 9242A (7 FR 7874); Executive Order 10637 (20 FR 7025); Executive Order 11016 (27 FR 4139); Executive Order 11046 (27 FR <PRTPAGE P="23"/>8575); Executive Order 11448 (34 FR 915)).</P> <P>(l) Carry out the functions vested in the Secretary by sections 104(i), 104(j), 311(b), 311(j) (2) and (3), 311(m)(2), 312, and 402(b)(6) of the Federal Water Pollution Control Act (33 U.S.C. 1321), as amended by the Oil Pollution Act of 1990 (August 18, 1990; Pub L. 101-380; 104 Stat. 484), and sections 4202(b) (2) and (3) of the Oil Pollution Act of 1990.</P> <P>(m) Carry out the functions assigned to the Secretary by Executive Order 12777 (3 CFR, 1991 Comp.; 56 FR 54757) in sections 1(b), 2(a), 2(b)(2), 2(c), 2(d)(2), 2(e)(2), 2(f), 2(g)(2), 3, 5(a)(2), 5(b)(1) and (3), 6, 7(a) (1) and (3), 7(b), 7(c), 7(d), 8(d), 8(f), 8(g), 8(h), 9, and 10(c), excepting that portion of section 2(b)(2) relating to the establishment of procedures, methods, and equipment and other requirements for equipment to prevent and to contain discharges of oil and hazardous substances from pipelines, motor carriers, and railroads; and further excepting the exercise of the authority in section 2(d)(2) over motor carriers and railroads, other than for operations incident to the transfer of oil or hazardous substances to or from vessels, and the exercise of the authority in section 2(d)(2) over pipelines.</P> <P>(n) Carry out the functions vested in the Secretary by the following statutes:</P> <P>(1) [Reserved]</P> <P>(2) Vessel Bridge-to-Bridge Radio-Telephone Act (85 Stat. 164);</P> <P>(3) Public Law 92-339, relating to the licensing of personnel on certain towing vessels (86 Stat. 423);</P> <P>(4) Port and Tanker Safety Act of 1978 (92 Stat. 1471), except sections 4, 5, 6, 7, 8, 12 and 13 of Sec. 2 to the extent that those sections pertain to the operation of the St. Lawrence Seaway;</P> <P>(5) Sections 104 (a) and (g), 107(c), 108, 201, and 302(a) of the Marine Protection, Research, and Sanctuaries Act of 1972 (Pub. L. 92-532) relating to ocean dumping;</P> <P>(6) [Reserved]</P> <P>(7) Intervention on the High Seas Act (Pub. L. 93-248) except section 13(a);</P> <P>(8) Public Law 93-524 (88 Stat. 1694) which relates to waste materials on vessels (46 U.S.C. 77(e));</P> <P>(9) Public Law 94-85 (89 Stat. 426), which relates to carriage of additional passengers on documented vessels in emergency situations;</P> <P>(10)(i) Section 304(a)(1) of the Independent Safety Board Act of 1974 (49 U.S.C. 1903(a)(1)) insofar as it relates to the promulgation of joint regulations with the National Transportation Safety Board (NTSB) governing investigations of major marine casualties and casualties involving public and non-public vessels, and the conduct of accident investigations upon request of the Board;</P> <P>(ii) Section 307 of the Independent Safety Board Act of 1974 (49 U.S.C. 1906) insofar as it relates to responses to NTSB recommendations regarding marine casualties;</P> <P>(11) International Navigational Rules Act of 1977 (Pub. L. 95-75, 91 Stat. 308);</P> <P>(12) International Safe Container Act (Pub. L. 95-208, 91 Stat. 1475), except section 4(e);</P> <P>(13) 14 U.S.C. 195, relating to instruction of foreign nationals at the Coast Guard academy; and</P> <P>(14) Inland Navigational Rules Act of 1980 (Pub. L. 96-591).</P> <P>(o) Carry out the functions vested in the Secretary by 14 U.S.C. 475 and Executive Order 11645, 3 CFR 371 (1973), 37 FR 2923, February 10, 1972, relating to the rental of housing facilities at or near Coast Guard installations.</P> <P>(p) Carry out the functions vested in the Secretary by Public Law 92-425 and Executive Order 11687 (37 FR 21479), relating to the Retired Serviceman's Survivor Benefit Plan.</P> <P>(q) Carry out the functions vested in the Secretary by section 5 of the International Bridge Act of 1972 (Pub. L. 92-434) as it relates to navigable waterways other than the St. Lawrence River.</P> <P>(r) Carry out the functions vested in the Secretary by 14 U.S.C. 657, relating to schooling and transportation to schools for dependents of Coast Guard personnel.</P> <P>(s) Carry out the following powers and duties vested in the Secretary by the Deepwater Port Act of 1974, as amended (33 U.S.C. 1501-1524):</P> <P>(1) The authority to process applications for the issuance, transfer or amendment of a license for the construction and operation of a deepwater port (33 U.S.C. 1503(b)) <E T="03">in coordination</E> <PRTPAGE P="24"/>with the Administrator of the Maritime Administration.</P> <P>(2) Carry out other functions and responsibilities vested in the Secretary by the Deepwater Port Act of 1974, as amended (33 U.S.C. 1501-1524), except as reserved by § 1.44(o) and delegated by §§ 1.53(a)(3) and 1.66(aa).</P> <P>(t) Carry out the functions vested in the Secretary by 49 U.S.C. 5101 <E T="03">et seq.</E> and 46 App. U.S.C. 3306(a)(5) to the extent they relate to regulations and exemptions governing the bulk transportation of hazardous materials that are loaded or carried on board a vessel without benefit of containers or labels, and received and handled by the vessel carrier without mark or count, and regulations and exemptions governing ships' stores and supplies.</P> <P>(u) Except as delegated by § 1.74, carry out the functions vested in the Secretary by 49 U.S.C. 5121(a), (b) and (c), 5122, 5123, and 5124 relating to investigations, records, inspections, penalties, and specific relief, with particular emphasis on the transportation or shipment of hazardous materials by water.</P> <P>(v) Carry out the functions vested in the Secretary by the Magnuson Fishery Conservation and Management Act (Pub. L. 94-265, as amended; 16 U.S.C. 1801 <E T="03">et seq.</E>) except that the authority to approve seizure of a foreign vessel may not be redelegated and shall be exercised in each instance only after consultation with the Department of State.</P> <P>(w) Issue wage schedules for trades, crafts, and laboring employees in nonappropriated fund activities.</P> <P>(x) Carry out the functions vested in the Secretary by 10 U.S.C. 2683 insofar as it relates to the relinquishment to a state of legislative jurisdiction of the United States over lands and interests under the control of the Coast Guard in that state.</P> <P>(y) Carry out the functions and responsibilities vested in the Secretary by the Natural Gas Pipeline Safety Act of 1968, as amended (49 U.S.C. 1671 <E T="03">et seq.</E>) relating to rulemaking so far as it applies to liquefied natural gas facilities adjacent to the navigable waters of the United States: <E T="03">Provided,</E> That such rulemaking is in accordance with the Memorandum of Understanding between the Coast Guard and Materials Transportation Bureau executed on February 7, 1978, for regulation of such facilities.</P> <P>(z) Carry out the functions vested in the Secretary by the Outer Continental Shelf Lands Act (43 U.S.C. 1331 <E T="03">et seq.</E>), as amended, title VI of the Outer Continental Shelf Lands Act Amendments of 1978 (September 18, 1978; Pub. L. 95-372; 92 Stat. 629), except as delegated by § 1.53(a)(6).</P> <P>(aa) Carry out the functions vested in the Secretary by the Federal Land Policy and Management Act of 1976 (43 U.S.C. 1714(i)) for lands under the administration of the U.S. Coast Guard.</P> <P>(bb) Carry out the functions vested in the Secretary by the Act of September 10, 1976 (90 Stat. 1236, 46 U.S.C. 420) relating to the issuance of permits exempting specific cargo-carrying vessels operating within the State of Alaska from all or part of 46 U.S.C. 88, 391, 391a, and 404 and the regulations issued thereunder.</P> <P>(cc) Carry out the requirements of section 146 of the Surface Transportation Assistance Act of 1978 (Pub. L. 95-599, 92 Stat. 2689) relating to foreign-built hovercraft in Alaska.</P> <P>(dd) Exercise all functions of the General Services Administrator pertaining to the acquisition of special purpose space in urban centers, as defined in 41 CFR 101-18.102, to house U.S. Coast Guard Recruiting Offices pursuant to the Federal Property and Administrative Services Act of 1949 (63 Stat. 377), as amended, and to acquire such space by firm term leases up to five (5) years in accordance with the authority contained in section 210(h) (1) of the Federal Property and Administrative Services Act of 1949, as amended. Provided, that such authority is exercised in accordance with the Memorandum of Understanding between the Department of Transportation and the General Services Administration executed on January 27, 1981, for implementation of this delegation.</P> <P>(ee) Carry out all functions vested in the Secretary in any capacity by the Ocean Thermal Energy Conversion Act of 1980 (Pub. L. 96-320, August 3, 1980), except title II.<PRTPAGE P="25"/> </P> <P>(ff) Carry out the functions vested in the Secretary by:</P> <P>(1) Section 108(a)(3) of the Comprehensive Environmental Response, Compensation, and Liability Act, as amended (42 U.S.C. 9608(a)(3)), and by sections 7(b)(1), 7(b)(2), and 7(c) (2) of Executive Order 12580 relating to vessel financial responsibility; and</P> <P>(2) Sections 2(e)(1), 2(e)(2), 2(i), 2(j)(1), 2(j)(2), 2(k), 3(a), 4(b)(1), 4(b)(2), 6(c), 9(d), 9(i), and 11(b)(2) of Executive Order 12580 relating to facilities and vessels under the jurisdiction, custody, or control of the Coast Guard.</P> <P>(gg) Carry out the functions, relating to releases or threatened releases involving the coastal zone, Great Lakes waters, and ports and harbors, vested in the Secretary by sections 2(f), 2(i), 2(j)(2), 2(k), 4(c)(1), 4(c)(2), 5(b), 6(c), 9(d), 9(i), and 11(b)(2) of Executive Order 12580 insofar as they relate to:</P> <P>(1) Responses to releases or threats of releases from vessels;</P> <P>(2) Emergency action concerning releases or threats of releases at facilities other than active or inactive “hazardous waste management facilities” (as defined in 40 CFR 270.2); and</P> <P>(3) Emergency action concerning releases or threats of releases at active or inactive “hazardous waste management facilities” only when the Coast Guard On-Scene Coordinator determines that such action must be taken pending the arrival on scene of an Environmental Protection Agency (EPA) On-Scene Coordinator (OSC). Unless otherwise agreed upon by the EPA and Coast Guard, this authority will not be exercised unless the EPA OSC is scheduled to arrive on scene within 48 hours of notification of the release or threat of release.</P> <FP>As used in this paragraph “emergency action” includes any removal action which, in the view of the Coast Guard On-Scene Coordinator, must be taken immediately to prevent or mitigate immediate and significant danger to the public health, welfare, or the environment. Situations in which such actions may be taken include, but are not limited to, fire, explosions, and other sudden releases; human, animal, or food chain exposure to acutely toxic substance; and the contamination of a drinking water supply. All functions listed in this paragraph include the authority to contract for, obligate monies for, and otherwise arrange for and coordinate the responses included within such functions.</FP> <P>(hh) Carry out the functions vested in the Secretary by the Act to Prevent Pollution from Ships (October 21, 1980; Pub. L. 96-478; 94 Stat. 2297) except section 10(b) and (c) and except as limited by § 1.47(n), § 1.52(c), and § 1.66(u) of this title.</P> <P>(ii) Carry out the functions vested in the Secretary by the Deep Seabed Hard Mineral Resources Act (June 21, 1980; Pub. L. 96-283; 94 Stat. 553), except section 118.</P> <P>(jj) Carry out the functions vested in the Secretary to convene and approve a Coast Guard Reserve Policy Board as provided in 14 U.S.C. 703.</P> <P>(kk) Carry out the functions vested in the Secretary by the Fisheries Amendments of 1982 (Pub. L. 97-389; 96 Stat. 1949) relating to implementation of the Convention for the Conservation of Salmon in the North Atlantic Ocean and to documentation and certification of inspection of certain vessels.</P> <P>(ll) Carry out the functions vested in the Secretary by sections 1004(d)(2)(C), 1015(b), 1016, 4107(b), 4109, 4110, 4111, 4114(a), 4115(b), 4115(e), 4116(c), 4118, 4203, 5002(c)(4), 5002(i), 5002(k), 5003, 5004, 5005(a)(5), 7001(a), 7001(b)(2) and 7001(c) (6) and (11) of the Oil Pollution Act of 1990 (August 18, 1990; Pub. L. 101-380; 104 Stat. 484). (See 49 CFR 1.53 and 1.66).</P> <P>(mm)-(oo) [Reserved]</P> <P>(pp) Except as specifically reserved in 49 CFR 1.44, carry out the responsibilities of, and exercise the authority of the Secretary contained in the Uniform Code of Military Justice, chapter 47 of title 10 United States Code, and the Manual for Courts-Martial, United States.</P> <P>(qq) Carry out the functions and exercise the authority vested in the Secretary by 14 U.S.C. 659 relating to providing assistance to film producers and obtaining reimbursement for assistance provided.</P> <P>(rr) Carry out the functions and exercise the authority vested in the Secretary by 10 U.S.C. 1588 to accept voluntary services.</P> <P>(ss) [Reserved]<PRTPAGE P="26"/> </P> <P>(tt) Carry out the functions and exercise the authority vested in the Secretary by chapter 19, title 14 U.S.C., to establish and carry out a program of environmental compliance and restoration at current and former Coast Guard facilities and to expend funds from the Environmental Compliance and Restoration Account.</P> <P>(uu) Carry out the functions and exercise the authorities vested in the Secretary by subtitle II of Title 46, United States Code, “Vessels and Seaman” as amended through Public Law 105-394, 112 Stat. 3627, as follows:</P> <P>(1) Part A, General Provisions, Section 2101 to end, without exception;</P> <P>(2) Part B, Inspection and Regulations, Section 3101 to end, except the authority under Section 3316(a) to appoint Government representatives to the executive committee of the American Bureau of Shipping; which is retained by the Secretary; and the authority under Section 4508 to establish, and appoint members to, the Commercial Fishing Industry Vessel Advisory Committee. Note that the authority under Section 3101 to suspend provisions of this part is vested in the President and is not redelegated;</P> <P>(3) Part C, Load Lines of Vessels, Section 5101 to end, without exception;</P> <P>(4) Part D, Marine Casualties, Section 6101 to end, without exception;</P> <P>(5) Part E, Merchant Seaman Licenses, Certificates, and Documents, Part 7101 to end, without exception;</P> <P>(6) Part F, Manning of Vessels, Section 8101 to end, except the authority to require federal pilots on the Saint Lawrence Seaway, which under Section 8503(c) may only be delegated to the Saint Lawrence Seaway Development Corporation, and the authority under Section 9307 to establish, and appoint members to, a Great Lakes Pilotage Advisory Committee, which is retained by the Secretary;</P> <P>(7) Part G, Merchant Seaman Protection and Relief, Section 10101 to end, without exception;</P> <P>(8) Part H, Identification of Vessels, Section 12101 to end, except that administration of Section 12102(c) with respect to fishing vessels 100 feet or greater in registered length has been delegated to the Maritime Administrator in accordance with the American Fisheries Act, Public Law 105-277, 112 Stat. 268, Section 203(c);</P> <P>(9) Part I, State Boating Safety Programs, Section 13101 to end, except the authority under 46 U.S.C. 13110 to appoint members to the National Boating Safety Advisory Council, which is retained by the Secretary; and</P> <P>(10) Part J, Measurement of Vessels, Section 14101 to end, without exception.</P> <P>(vv) Carry out the functions and exercise the authorities vested in the Secretary by 46 United States Code Subtitle III, “Maritime Liability” as amended through Public Law 105-394, except the following authorities:</P> <P>(1) Section 31308, which authorizes the Secretary to foreclose on certain liens when the Secretary of Commerce or Transportation is a mortgagee; and</P> <P>(2) Sections 31329(c) and (d), which authorize the Secretary to take certain actions with respect to mortgagees and other purchasers of vessels by court order.</P> <P>(ww) Carry out the functions and exercise the authority vested in the Secretary by 16 U.S.C. 4711, which pertain to establishing and enforcing regulations to prevent the introduction and spread of aquatic nuisance species into the Great Lakes and other waters of the United States through the ballast water of vessels. This authority may be redelegated.</P> <P>(xx) Carry out the functions and exercise the authority vested in the Secretary by 33 U.S.C. 1226 to prevent or respond to acts of terrorism and 46 U.S.C. app. 1803, subsections (a) and (b), to assess the state of security standards at foreign ports. This authority may be redelegated.</P> <P>(yy) Carry out the functions and exercise the authority vested in the Secretary by 42 U.S.C. 7511b(f), concerning tank vessel emissions, to promulgate safety regulations, to consult with the Administrator of the Environmental Protection Agency concerning emission standards, and to enforce compliance of emission standards as determined by such consultation. This authority may be redelegated.</P> <P>(zz) [Reserved]</P> <P>(aaa) Establish the promotion zone for rear admiral (lower half), provided all captains eligible for consideration <PRTPAGE P="27"/>under the provisions of section 257(a)(5), Title 14, U.S. Code, are placed in the zone.</P> <P>(bbb) Remove an officer from active duty under section 326, Title 14, U.S. Code.</P> <P>(ccc)-(ggg) [Reserved]</P> <P>(hhh) Carry out the functions and exercise the authority vested in the Secretary by 16 U.S.C. 2405 to issue such regulations as are necessary and appropriate to implement the Antarctic Science, Tourism, and Conservation Act of 1996, Pub. L. No. 104-227, 110 Stat. 3034.</P> <P>(iii) Carry out the functions and responsibilities and exercise the authorities vested in the Secretary by the Coast Guard Authorization Act of 1996, Pub. L. 104-324.</P> <P>(jjj) Carry out the functions and responsibilities and exercise the authorities vested in the Secretary by the National Defense Authorization Bill of Fiscal Year 1995, Pub. L. 103-337, pertaining to benefits for Coast Guard members that are being separated or have recently been separated (10 U.S.C. Chapter 58).</P> <P>(kkk) Carry out the functions and responsibilities and exercise the authorities vested in the Secretary by 14 U.S.C. 670 pertaining to procurement authority for Coast Guard family housing and by 14 U.S.C. 672 pertaining to long-term lease authority for navigation and communications systems sites.</P> <P>(lll) Carry out the functions and responsibilities and exercise the authorities vested in the Secretary by 33 U.S.C. 1908(b), that pertain to payments of civil penalties assessed for violations of the MARPOL Protocol, Annex IV to the Antarctic Protocol, or regulations issued thereunder, to persons who provide information leading to the assessment of such penalties.</P> <P>(mmm) [Reserved]</P> <P>(ooo) Carry out the functions and responsibilities and exercise the authorities vested in the Secretary by the National Defense Authorization Act for Fiscal Year 1998, Pub. L. 105-85, pertaining to authority for personnel to participate in management of certain non-Federal entities (10 U.S.C. Chapters 53 and 81).</P> <P>(ppp) Carry out the functions and exercise the authority vested in the Secretary by the following statutes:</P> <P>(1) 16 U.S.C. 5106(h), relating to authorization of a person to enforce a moratorium declared under 16 U.S.C. 5106(c), pursuant to the Atlantic Coastal Fisheries Cooperative Management Act of 1993, as amended, Pub. L. 103-206, 107 Stat. 2447.</P> <P>(2) 16 U.S.C. 3375(a), relating to the enforcement of the Lacey Act Amendments of 1981, as amended, Pub. L. 97-79, 95 Stat. 1073.</P> <P>(3) 16 U.S.C. 1540(e) and (f), relating to promulgation of regulations under, and the enforcement of the Endangered Species Act of 1973, as amended, Pub. L. 93-205, 81 Stat. 844.</P> <P>(4) 16 U.S.C. 971c and 971d, relating to the enforcement of the Atlantic Tunas Convention Act of 1975, as amended, Pub. L. 94-70, 89 Stat. 385.</P> <P>(5) 16 U.S.C. 972e and 972g, relating to promulgation of regulations under, and enforcement of the Eastern Pacific Tuna Licensing Act of 1984, as amended, Pub. L. 98-445, 98 Stat. 1715.</P> <P>(6) 16 U.S.C. 5008(a), relating to the enforcement of the North Pacific Anadromous Stocks Convention Act of 1992, as amended, Pub. L. 102-587, 106 Stat. 5098.</P> <P>(7) 16 U.S.C. 3636 and 3637, relating to promulgation of regulations under, and the enforcement of the Pacific Salmon Treaty Act of 1985, as amended, Pub. L. No. 99-5, 99 Stat. 7.</P> <P>(8) 16 U.S.C. 1156 and 1172(a), relating to the enforcement of the Fur Seal Act of 1966, as amended, Pub. L. 89-702, 80 Stat. 1091.</P> <P>(9) 16 U.S.C. 2409, relating to the enforcement of the Antarctic Conservation Act of 1978, as amended, Pub. L. 95-541, 92 Stat. 2048.</P> <P>(10) 16 U.S.C. 2434(b), 2436, and 2439, relating to conservation measures and promulgation of regulations under, and enforcement of the Antarctic Living Marine Resources Convention Act of 1984, as amended, Pub. L. 98-623, 98 Stat. 3398.</P> <P>(11) 16 U.S.C. 773i, relating to the enforcement of the North Pacific Halibut Act of 1982, as amended, Pub. L. 97-176, 96 Stat. 78.</P> <P>(12) 16 U.S.C. 5506, relating to the enforcement of the High Seas Fishing <PRTPAGE P="28"/>Compliance Act of 1995, as amended, Pub. L. 104-43, 109 Stat. 367.</P> <P>(13) 16 U.S.C. 5606(e), relating to the enforcement of the Northwest Atlantic Fisheries Compliance Act of 1995, as amended, Pub. L. 104-43, 109 Stat. 377.</P> <P>(qqq) Carry out the functions and exercise the authority vested in the Secretary by section 346 of Pub. L. 105-66, titled the Department of Transportation and Related Agencies Appropriations Act, 1998, to establish, operate, and manage the Nationwide Differential Global Positioning System (NDGPS), except for the related function of determining the Federal requirements for the NDGPS, which is delegated to the Federal Railroad Administrator, and except for the related function of acting as lead DOT agency in matters relating to the National Environmental Policy Act, which is delegated to the Federal Highway Administrator.</P> <P>(rrr) Implement and enforce two mandatory ship reporting systems, in cooperation with the International Maritime Organization, pursuant to the Coast Guard Authorization Act of 1998, (Pub. L. 105-383), section 313, codified at 33 U.S.C. 1230(d).</P> <P>(sss) Carry out the functions and exercise the authorities vested in the Secretary by sections 203(b), 203(d), and 213(g) of division c, title II, Public Law 105-277, which relate to ownership and control requirements for vessel fishery endorsements for vessels measuring less than 100 feet; and by 203(f) of division c, title II, Public Law 105-277.</P> <P>(ttt) Carry out the functions and exercise the authority vested in the Secretary by Title XIV—Certain Alaskan Cruise Ship Operations, Public Law 106-554 to regulate the discharge of sewage and graywater by cruise vessels into the waters of the Alexander Archipelago, as defined in that law, and the navigable waters of the United States within the State of Alaska and within Kachemak Bay National Estuarine Research Reserve.</P> <P>(uuu) Carry out the functions and responsibilities and exercise the authorities vested in the Secretary by Section 5001(c)(1)(B) of the Oil Pollution Act of 1990 (OPA 90), 33 U.S.C. 2731, pertaining to appointment authority for a representative to the Advisory Board of the Prince William Sound Spill Recovery Institute.</P> <P>(vvv) Carry out the functions and exercise the authority vested in the Secretary by 10 U.S.C. 1059 to establish a program to pay monthly transitional compensation to dependents of Coast Guard members who were separated for dependent abuse offenses.</P> <SECAUTH>(Sec. 9(e), Department of Transportation Act, 49 U.S.C. 1657(e); 49 CFR 1.57(l); 49 U.S.C. 322)</SECAUTH> <CITA>[Amdt. 1-113, 40 FR 43901, Sept. 24, 1975]</CITA> <EDNOTE> <HD SOURCE="HED">Editorial Note:</HD> <P>For <E T="04">Federal Register</E> citations affecting § 1.46, see the List of CFR Sections Affected which appears in the Finding Aids section of the printed volume and on GPO Access.</P> </EDNOTE> </SECTION> <SECTION> <SECTNO>§ 1.47</SECTNO> <SUBJECT>Delegations to Federal Aviation Administrator.</SUBJECT> <P>The Federal Aviation Administrator is delegated authority to:</P> <P>(a) Carry out the powers and duties transferred to the Secretary of Transportation by, or subsequently vested in the Secretary by virtue of, section 6(c)(1) of the Department of Transportation Act (49 U.S.C. 1655(c)(1)), including those pertaining to aviation safety (except those related to transportation, packaging, marking, or description of hazardous materials) and vested in the Secretary by section 308(b) of title 49 U.S.C. and sections 306-309, 312-314, 1101, 1105, and 1111 and titles VI, VII, IX (excluding section 902(h)), and XII of the Federal Aviation Act of 1958, as amended.</P> <P>(b) Carry out title XIII of the Federal Aviation Act of 1958, as amended (72 Stat. 800; 49 U.S.C. 1531 <E T="03">et seq.</E>), relating to aviation insurance.</P> <P>(c) Carry out the functions vested in the Secretary by the Act of September 7, 1957 (71 Stat. 629; 49 U.S.C. 1324 note), as amended by section 6(a)(3)(B) of the Department of Transportation Act, relating to the guarantee of aircraft purchase loans, and those functions which relate to the issuance of obligations to finance the expenses of such guarantees.</P> <P>(d) Administer Executive Orders 11419 and 11322 relating to prohibited aviation operations and the prohibited carriage of commodities and products to and from Southern Rhodesia. Carry out <PRTPAGE P="29"/>the functions vested in the Secretary by Executive Order 12183.</P> <P>(e) Provide certain facilities and services to FAA employees and their dependents at remote locations (49 U.S.C. 1659).</P> <P>(f) Carry out the functions vested in the Secretary by:</P> <P>(1) The Airport and Airway Development Act of 1970, as amended (49 U.S.C. 1701 <E T="03">et seq.</E>), except sections 3 and 4 (49 U.S.C. 1702, 1703).</P> <P>(2) Sections 208 and 209 of the Airport and Airway Revenue Act of 1970, as amended (49 U.S.C. 1742, 1742 note); and</P> <P>(3) Sections 21, 22, 23(b), 24, and 25 of the Airport and Airway Development Act Amendments of 1976 (49 U.S.C. 1346(a), 1348 note, 1713 note, 1356a, 1704).</P> <P>(g) Carry out the functions vested in the Secretary by part B of title II of the Clean Air Act, as amended (84 Stat. 1703), and by 40 CFR part 87 as it relates to exemptions from aircraft air pollution standards.</P> <P>(h) Carry out the functions of the Secretary under section 208 of the Appalachian Regional Development Act of 1965 (85 Stat. 168; 40 U.S.C. App. 208).</P> <P>(i) Carry out the functions vested in the Secretary by section 902(h)(2) of the Federal Aviation Act of 1958, as amended, as it relates to enforcement of hazardous materials regulations as they apply to the transportation or shipment of such materials by air.</P> <P>(j)(1) Except as delegated by § 1.74, carry out the functions vested in the Secretary by 49 U.S.C. 5121(a), (b) and (c), 5122, 5123, and 5124 relating to investigations, records, inspections, penalties, and specific relief, with particular emphasis on the transportation or shipment of hazardous materials by air, including the manufacture, fabrication, marking, maintenance, reconditioning, repair or test of containers which are represented, marked, certified, or sold for use in the bulk transportation of hazardous materials by air; and</P> <P>(2) Carry out the functions vested in the Secretary by 49 U.S.C. 5114 as it relates to the establishment of procedures for monitoring and enforcing provisions of regulations with respect to the transportation of radioactive materials on passenger-carrying aircraft.</P> <P>(k) Carry out the functions vested in the Secretary by 49 App. U.S.C. 1808 (a), (b), and (c), 1809 and 1810 relating to investigations, records, inspections, penalties and specific relief so far as they apply to the transportation or shipment of hazardous materials by air, including the manufacture, fabrication, marking, maintenance, reconditioning, repair, or test of containers which are represented, marked, certified, or sold for use in the bulk transportation of hazardous materials by air.</P> <P>(l) Serve, or designate a representative to serve, as Vice Chairman and alternate Department of Transportation member of the Interagency Group on International Aviation (IGIA) pursuant to interagency agreement of December 9, 1960, and Executive Order 11382, and provide for the administrative operation of the IGIA Secretariat.</P> <P>(m) Carry out the functions vested in the Secretary by sections 4(a) and 5(c) of Executive Order 12316 of August 14, 1981 (46 FR 42237, Aug. 20, 1981) (delegating sections 107(c)(1)(c) and 108(b), respectively, of the Comprehensive Environmental Response, Compensation, and Liability Act of 1981, Pub. L. 96-510), insofar as they relate to aircraft.</P> <P>(n) Carry out the functions vested in the Secretary by section 3(d) of the Act to Prevent Pollution from Ships (33 U.S.C. 1902(d)) as it relates to ships owned or operated by the Federal Aviation Administration when engaged in noncommercial service.</P> <P>(o) [Reserved]</P> <P>(p) Carry out the functions vested in the Secretary by:</P> <P>(1) Section 553(b) of Public Law 99-83 (99 Stat. 226), which relates to the authority of Federal Air Marshals to carry firearms and make arrests, in coordination with the General Counsel; and</P> <P>(2) The following subsections of section 1115 of the Federal Aviation Act of 1958, as amended, which relates to the security of foreign airports: Subsection 1115(a), in coordination with the General Counsel and the Assistant Secretary for Aviation and International Affairs; subsection 1115(b), in coordination with the Assistant Secretary for Aviation and International Affairs; and subsection 1115(e)(2)(A)(ii), in coordination with the General Counsel and the <PRTPAGE P="30"/>Assistant Secretary for Aviation and International Affairs.</P> <P>(q) Carry out all of the functions vested in the Secretary under section 404(d) of the Federal Aviation Act of 1958 (49 U.S.C. 1374(d)), as amended by section 328(a) of the Department of Transportation and Related Agencies Appropriations Act of 1988 (Pub. L. 100-202).</P> <P>(r) Carry out the functions vested in the Secretary by the Airport Safety and Capacity Expansion Act of 1990, title IX, subtitle B of the Omnibus Budget Reconciliation Act of 1990, Public Law 101-508 (except those functions vested in the Secretary by sections 9113, 9125, 9127 and 9130).</P> <P>(s) Carry out functions vested in the Secretary by Airport Noise and Capacity Act of 1990, title IX, subtitle D of the Omnibus Budget Reconciliation Act of 1990, Public Law 101-508.</P> <P>(t) Carry out the functions vested in the Secretary by sections 321 and 410 of the Federal Aviation Act, as amended by the Aviation Security Improvement Act of 1990, Public Law 101-604, November 16, 1990.</P> <P>(u) Carry out the functions assigned to the Secretary by Executive Order 12465 (February 24, 1984) (3 CFR, 1984 Comp., p. 163) relating to commercial expendable launch vehicle activities.</P> <P>(v) Carry out the functions vested in the Secretary by 49 U.S.C. Subtitle IX.</P> <P>(w) Carry out the functions vested in the Secretary by the National Aeronautics and Space Administration Authorization Act, Fiscal Year 1993 (Pub. L. 102-588, 106 Stat 5119, November 4, 1992). </P> <SECAUTH>(Secs. 3(e), 6(c), and 9(e), Department of Transportation Act (49 U.S.C. 1652(e), 1655(c), and 1657(e)); 49 U.S.C. 322; 49 CFR 1.57(l))</SECAUTH> <CITA>[Amdt. 1-113, 40 FR 43901, Sept. 24, 1975]</CITA> <EDNOTE> <HD SOURCE="HED">Editorial Note:</HD> <P>For <E T="04">Federal Register</E> citations affecting § 1.47, see the List of CFR Sections Affected which appears in the Finding Aids section of the printed volume and on GPO Access.</P> </EDNOTE> </SECTION> <SECTION> <SECTNO>§ 1.48</SECTNO> <SUBJECT>Delegations to Federal Highway Administrator.</SUBJECT> <P>The Federal Highway Administrator is delegated authority to:</P> <P>(a) Investigate and report on the safety compliance records of applicants seeking operating authority, or approval of transactions involving transfer of operating authority, from the Interstate Commerce Commission, and to intervene and present evidence concerning applicants’ fitness in Commission proceedings under 49 U.S.C. 307, so far as it relates to motor carriers.</P> <P>(b) Administer the following sections of title 23, U.S.C.:</P> <P>(1)(i) 101(a); and</P> <P>(ii) 101(b), (c), (d), and (e), except as they involve mass transportation projects authorized by sections 103(e)(4), 142(a)(2), or 142(c);</P> <P>(2) 103, except as it involves the substitution of non-highway public mass transit projects authorized by section (e)(4);</P> <P>(3) 104, including the apportionment of funds for Federal-aid highways once Congress approves estimates submitted by the Secretary;</P> <P>(4) 105, except as subsections (a) and (g) involve mass transportation projects authorized by sections 103(e)(4), 142(a)(2), or 142(c);</P> <P>(5) 106, except subsections (a), (c), and (d) as they involve mass transportation projects authorized by sections 103(e)(4), 142(a)(2), or 142(c);</P> <P>(6) 107;</P> <P>(7) 108, except as it involves mass transportation projects authorized by sections 103(e)(4), 142(a)(2), or 142(c);</P> <P>(8) 109, except subsections (a), (g), and (h) as they involve mass transportation projects authorized by sections 103(e) (4), 142(a)(2), or 142(c);</P> <P>(9) 110, except as it involves mass transportation projects authorized by sections 103(e)(4), 142(a)(2), or 142(c);</P> <P>(10) 111;</P> <P>(11) 112, 113, 114, except as they involve transportation projects authorized by sections 103(e)(4), 142(a)(2), or 142(c);</P> <P>(12) 115;</P> <P>(13) 116, except subsections (a) and (c) as they involve mass transportation projects authorized by sections 103(e)(4), 142(a)(2), or 142(c);</P> <P>(14) 117, except as it involves mass transportation projects authorized by sections 103(e)(4), 142(a)(2), or 142(c);</P> <P>(15) 118, 119, 120;<PRTPAGE P="31"/> </P> <P>(16) 121 and 122, except as they involve mass transportation projects authorized by sections 103(e)(4), 142(a)(2), or 142(c);</P> <P>(17) 123;</P> <P>(18) 124, except as it involves mass transportation projects authorized by sections 103(e)(4), 142(a)(2), or 142(c);</P> <P>(19) 125, 126, and 127;</P> <P>(20) 128, except as it involves mass transportation projects authorized by sections 103(e)(4), 142(a)(2), or 142(c);</P> <P>(21) 129, 130, 131, 132, 134, 135, 136, 137, 138, and 139;</P> <P>(22) 140, except paragraph (a) of this section, as it involved mass transportation projects authorized by sections 103(e)(4), 142(a)(2), or 142(c);</P> <P>(23) 141, with the concurrence of the National Highway Traffic Safety Administrator as it relates to certification of the enforcement of speed limits;</P> <P>(24) 142, except as it involves mass transportation projects authorized by subsections (a)(2) and (c) and by 103(e)(4);</P> <P>(25) 143 and 144;</P> <P>(26) 145, except as it involves mass transportation projects authorized by sections 103(e)(4), 142(a)(2), or 142(c);</P> <P>(27) 146 through 152 and 155 through 157, inclusive;</P> <P>(28) 154 and 158 each with the concurrence of the National Highway Traffic Safety Administrator;</P> <P>(29) 201 through 205, 210, 212, 214 through 218, (Chapter 2);</P> <P>(30) 301, 302, and 303;</P> <P>(31) 304, 305, 306, except as they involve mass transportation projects authorized by sections 103(e)(4), 142(a)(2), or 142(c);</P> <P>(32) 307 through 314 inclusive;</P> <P>(33) 315 and 317, except as they involve mass transportation projects authorized by sections 103(e)(4), 142(a)(2), or 142(c);</P> <P>(34) 318 through 321, inclusive; and</P> <P>(35) 323 and 324, except as they involve mass transportation projects authorized by sections 103(e)(4), 142(a)(2), or 142(c).</P> <P>(c) Administer the following laws relating generally to highways:</P> <P>(1) Sections 105, 107(c) through (e), 123(a) and (b), 124(c), 126(d) through (g), 138(c), 140, 142 through 145, 147 through 154, 167, and 171, and title IV, as amended (as it relates to matters within the primary responsibility of the Federal Highway Administrator), of the Surface Transportation Assistance Act of 1978, Public Law 95-599, 92 Stat. 2689; and sections 502-504, title V, of the Highway Revenue Act of 1978.</P> <P>(2) Sections 103, 104, 111(b), 128(b), 131, 135, 136, 141, 147, 149, 154, 158 through 161, 163, 203, 206, 401, and 402 of the Federal-Aid Highway Act of 1973, as amended (Pub. L. 93-87, 87 Stat. 250; Pub. L. 93-643, 88 Stat. 2281).</P> <P>(3) The Federal-Aid Highway Act of 1970, as amended (except section 118) (84 Stat. 1713).</P> <P>(4) The Federal-Aid Highway Act of 1968, as amended (82 Stat. 815);</P> <P>(5) The Federal-Aid Highway Act of 1966, as amended (80 Stat. 766);</P> <P>(6) The Federal-Aid Highway Act of 1962, as amended (76 Stat. 1145, 23 U.S.C. 307 note);</P> <P>(7) The Federal-Aid Highway Act of 1956, as amended (70 Stat. 374);</P> <P>(8) The Federal-Aid Highway Act of 1954, as amended (68 Stat. 70);</P> <P>(9) The Act of September 26, 1961, as amended (75 Stat. 670);</P> <P>(10) The Highway Revenue Act of 1956, as amended (70 Stat. 387, 23 U.S.C. 120 note);</P> <P>(11) The Highway Beautification Act of 1965, as amended (79 Stat. 1028, 23 U.S.C. 131 <E T="03">et seq.</E>, notes);</P> <P>(12) The Alaska Omnibus Act, as amended (73 Stat. 141, 48 U.S.C. 21 note prec.);</P> <P>(13) The Joint Resolution of August 28, 1965, as amended (79 Stat. 578, 23 U.S.C. 101 <E T="03">et seq.</E>, notes);</P> <P>(14) Section 502(c) of the General Bridge Act of 1946, as amended (60 Stat. 847, 33 U.S.C. 525(c));</P> <P>(15) The Act of April 27, 1962 (76 Stat. 59);</P> <P>(16) Reorganization Plan No. 7 of 1949 (63 Stat. 1070); and</P> <P>(17) Sections 102(b) (except subparagraph (2)) and (c); 105 (b)(1) and (c); 141; 146; 147; and 152 of the Federal-Aid Highway Act of 1976 (Pub. L. 94-280; 90 Stat. 425).</P> <P>(18) The Federal-Aid Highway Act of 1982 (Pub. L. 97-327), except section 6 as it relates to matters within the primary responsibility of the Urban Mass Transportation Administrator.<PRTPAGE P="32"/> </P> <P>(19) The Surface Transportation Assistance Act of 1982, Public Law 97-424, as amended,</P> <P>(i) Except sections 165 and 531 as they relate to matters within the primary responsibility of the Urban Mass Transportation Administrator; 105(f), 413; 414(b)(1) and (2); 421, 426, and title III; and</P> <P>(ii) Section 414(b)(1), with the concurrence of the National Highway Traffic Safety Administrator.</P> <P>(20) Sections 103(e), 105(a) through (g), 106(a), and (b), 110(b), 114(d), 117(f), 120(c) and (d), 123(g) and (i), 133(f), 134, 136, 137, 139 through 145, 146(b), 147(c), 149(a) through (f), (h), (i), (k), 151 through 157, 164, and 208 of the Surface Transportation and Uniform Relocation Assistance Act of 1987 (Pub. L. 100-17, 101 Stat. 132).</P> <P>(d) Carry out the functions vested in the Secretary of Transportation by section 601 of the Pipeline Safety Act of 1992, Public Law 102-508, relating to construction of the Page Avenue Extension Project in Missouri.</P> <P>(e)-(i) [Reserved]</P> <P>(j) Carry out the functions of the Secretary under the Appalachian Regional Development Act of 1965 (79 Stat. 5; 40 U.S.C. App.) except section 208.</P> <P>(k) Initiate proceedings as a complainant under 49 U.S.C. 10925 to revoke, suspend or amend the certificates, permits or licenses of a motor carrier.</P> <P>(l) Carry out the Act of September 21, 1966, Public Law 89-599, relating to certain approvals concerned with a compact between the States of Missouri and Kansas.</P> <P>(m) Carry out the law relating to the Chamizal border highway (80 Stat. 1477).</P> <P>(n) Carry out the Highway Safety Act of 1966, as amended (80 Stat. 731) and chapter 4 of title 23 U.S.C. as amended by section 207 of the Surface Transportation Assistance Act of 1978 for highway safety programs, research and development relating to highway design, construction and maintenance, traffic control devices, identification and surveillance of accident locations, and highway-related aspects of pedestrian and bicycle safety.</P> <P>(o) Exercise the authority vested in the Secretary by section 204(b) of the Federal Railroad Safety Act of 1970 (84 Stat. 972, 45 U.S.C. 433(b)) with respect to the laws administered by the Federal Highway Administrator pertaining to highway safety and highway construction.</P> <P>(p) [Reserved]</P> <P>(q) Carry out the functions vested in the Secretary by section 5 (as it relates to bridges, other than railroad bridges, not over navigable waters), and section 8(a) (as it relates to all bridges other than railroad bridges) of the International Bridge Act of 1972 (Pub. L. 92-434, 86 Stat. 731).</P> <P>(r) Carry out the functions vested in the Secretary by the following sections of the Urban Mass Transportation Act of 1964 as amended (78 Stat. 302, 49 U.S.C. 1601 <E T="03">et seq.</E>):</P> <P>(1) Sections 3(a)(3), 3(e)(1), 5(g)(1), and 8 as they relate to urban planning (49 U.S.C. 1602 (a)(3) and (e)(1), 1603(a), and 1604(g)(1); and 1604(l)).</P> <P>(2) Section 12(c)(11) relating to approval of boundaries of urbanized areas (49 U.S.C. 1608(c)(11));</P> <P>(3) Section 18 as it relates to the formula grant program for non-urbanized areas in the Commonwealth of Puerto Rico.</P> <P>(s) Exercise the authority vested in the Secretary by sections 101, 118, 120(b), 123 and 124 of the Federal-Aid Highway Amendments of 1974 (Pub. L. 93-643, January 4, 1975, 88 Stat. 2281).</P> <P>(t)-(w) [Reserved]</P> <P>(x) Carry out the functions vested in the Secretary by sections 4(a) and (5)(c) of Executive Order 12316 of August 14, 1981 (46 FR 42237, August 20, 1981) (delegating sections 107(c)(1)(C) and 108(b), respectively, of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, Public Law 96-510, 94 Stat. 2781), insofar as they relate to motor carriers.</P> <P>(y) Carry out the functions vested in the Secretary by section 118 of the National Visitor Center Facilities Act of 1968 (Pub. L. 90-264, 82 Stat. 43), as added by the Union Station Redevelopment Act of 1981 (Pub. L. 97-125; 95 Stat. 1672), with respect to the completion of the parking facility and associated ramps at Union Station in Washington, DC (40 U.S.C. 818).</P> <P>(z)-(aa) [Reserved]<PRTPAGE P="33"/> </P> <P>(bb) Carry out the functions vested in the Secretary by Public Law 98-229, 98 Stat. 55, insofar as it relates to apportioning certain funds for construction of the Interstate Highway System in Fiscal Year 1985, apportioning certain funds for Interstate substitute highway projects, and increasing amounts available for emergency highway relief.</P> <P>(cc) Prescribe regulations, as necessary, at parts 24 and 25 of this title, to implement Public Law 91-646, 84 Stat. 1894, and any amendments thereto, as appropriate, in coordination with the Assistant Secretary for Transportation Policy, and carry out all other functions vested in the Secretary by the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, Public Law 91-646, 84 Stat. 1894, and any amendments thereto.</P> <P>(dd)-(ee) [Reserved]</P> <P>(ff) Carry out the functions vested in the Secretary of Transportation by section 114 of the “Act Making Continuing Appropriations for Fiscal Year 1987 and for Other Purposes,” Public Law 99-591, October 30, 1986, relating to construction of Interstate Highway H-3 in Hawaii.</P> <P>(gg) Carry out all of the functions vested in the Secretary under section 324 of the Fiscal Year 1986 Department of Transportation Appropriations Act (Pub. L. 99-190, 99 Stat. 1288), notwithstanding the reservation of authority under § 1.44(j) of this part.</P> <P>(hh)-(jj) [Reserved]</P> <P>(kk) Carry out the functions vested in the Secretary of Transportation by section 505 of the Railroad Revitalization and Regulatory Reform Act of 1976, as amended, relating to the Alameda Corridor Project in consultation with the Federal Railroad Administrator.</P> <P>(ll) Carry out the function of acting as the lead DOT agency in matters relating to the National Environmental Policy Act pertinent to the authority vested in the Secretary to establish, operate, and manage the Nationwide Differential Global Positioning System (NDGPS) by section 346 of Pub. L. 105-66, titled the Department of Transportation and Related Agencies Appropriations Act, 1998.</P> <P>(mm) [Reserved]</P> <P>(nn) Carry out the functions and exercise the authority vested in the Secretary by sections 1501-1504 of Public Law 105-178, 112 Stat. 241, titled Transportation Infrastructure Finance and Innovation Act of 1998 (TIFIA), to manage the day-to-day activities associated with implementation of the TIFIA program. The Federal Highway Administrator may further delegate this authority.</P> <P>(oo) Exercise the authority vested in the Secretary by subsection 5001(b) of the Transportation Equity Act for the 21st Century (TEA-21), Public Law 105-178, 112 Stat. 107, 420, titled Applicability of Title 23, United States Code to determine a Federal share of the costs, other than 80 percent, for a transportation research project or activity administered by the FHWA that is funded under section 5001 of TEA-21. This authority may be redelegated.</P> <SECAUTH>(49 U.S.C. 322, 49 CFR 1.57(l))</SECAUTH> <CITA>[Amdt. 1-157, 45 FR 83405, Dec. 18, 1980]</CITA> <EDNOTE> <HD SOURCE="HED">Editorial Note:</HD> <P>For <E T="04">Federal Register</E> citations affecting § 1.48, see the List of CFR Sections Affected which appears in the Finding Aids section of the printed volume and on GPO Access.</P> </EDNOTE> </SECTION> <SECTION> <SECTNO>§ 1.49</SECTNO> <SUBJECT>Delegations to Federal Railroad Administrator.</SUBJECT> <P>The Federal Railroad Administrator is delegated authority to:</P> <P>(a) Investigate and report on safety compliance records of applicants seeking railroad operating authority from the Interstate Commerce Commission, and to intervene and present evidence concerning applicants’ fitness in Commission proceedings under 49 U.S.C. 1653(e), relating to railroads.</P> <P>(b) Carry out the Act of September 30, 1965, as amended (79 Stat. 893, 49 U.S.C. 1631 <E T="03">et seq.</E>), relating generally to high speed ground transportation, except issuance of reports required by section 13(c) (49 U.S.C. 1643(c)).</P> <P>(c) Carry out the following laws relating generally to safety appliances and equipment on railroad engines and cars, and protection of employees and travelers:</P> <P>(1) The Act of March 2, 1893, as amended (27 Stat. 531, 45 U.S.C. 1 <E T="03">et seq.</E>);<PRTPAGE P="34"/> </P> <P>(2) The Act of March 2, 1903, as amended (32 Stat. 943, 45 U.S.C. 8 <E T="03">et seq.</E>);</P> <P>(3) The Act of April 14, 1910, as amended (36 Stat. 298, 45 U.S.C. 11 <E T="03">et seq.</E>);</P> <P>(4) The Act of May 30, 1908, as amended (35 Stat. 476, 45 U.S.C. 17 <E T="03">et seq.</E>);</P> <P>(5) The Act of February 17, 1911, as amended (36 Stat. 913, 45 U.S.C. 22 <E T="03">et seq.</E>);</P> <P>(6) The Act of March 4, 1915, as amended (38 Stat. 1192, 45 U.S.C. 30);</P> <P>(7) Reorganization Plan No. 3 of 1965 (79 Stat. 1320, 45 U.S.C. 22 note);</P> <P>(8) Joint Resolution of June 30, 1906, as amended (34 Stat. 838, 45 U.S.C. 35);</P> <P>(9) The Act of May 27, 1908, as amended (35 Stat. 325, 45 U.S.C. 36 <E T="03">et seq.</E>);</P> <P>(10) The Act of March 4, 1909, as amended (35 Stat. 965, 45 U.S.C. 37); and</P> <P>(11) The Act of May 6, 1910, as amended (36 Stat. 350, 45 U.S.C. 38 <E T="03">et seq.</E>).</P> <P>(d) Carry out the Act of March 4, 1907, as amended (34 Stat. 1415, 45 U.S.C. 61 <E T="03">et seq.</E>), relating generally to hours of service of railroad employees.</P> <P>(e) Carry out the functions vested in the Secretary by section 5 of the International Bridge Act of 1972 (Pub. L. 92-434) as it relates to railroad bridges not over navigable waterways.</P> <P>(f) Carry out section 25 of the Interstate Commerce Act, as amended (49 U.S.C. 26), relating generally to railroad safety appliances, methods, and systems.</P> <P>(g) Exercise the administrative powers under the Interstate Commerce Act with respect to powers and duties pertaining to railroad safety transferred to the Secretary (49 U.S.C. 1655(f)).</P> <P>(h) Operate and administer the Alaska Railroad under the Act of March 12, 1914, as amended (38 Stat. 305), and Executive Order 11107 (28 FR 4225 (1963)).</P> <P>(i) Make individual and general changes in freight rates and passenger fares for the Alaska Railroad, without power to redelegate authority for general changes in freight rates and passenger fares.</P> <P>(j) Promote and undertake research and development relating to rail matters generally (49 U.S.C. 1653(a), 1657(e)(1), 1657(n)(1), and 1657(q)(1)).</P> <P>(k) Carry out the functions vested in the Secretary by subtitle B of the National Visitor Center Facilities Act of 1968, as added by the Union Station Redevelopment Act of 1981 (Pub. L. 97-125; 95 Stat. 1667) except section 114(e) and such parts of section 118 as provided for the completion of the parking facility and associated ramps at Union Station in Washington, DC.</P> <P>(l) Exercise the authority vested in the Secretary by the Emergency Rail Services Act of 1970 (Pub. L. 91-663) except the authority to make findings required by section 3(a) of that Act and the authority to sign guarantees of certificates issued by trustees.</P> <P>(m) Carry out the functions vested in the Secretary by the Federal Railroad Safety Act of 1970 (title II of Pub. L. 91-458); 84 Stat. 971, 45 U.S.C. 421 et. seq.), except section 204(b) (84 Stat. 972, 45 U.S.C. 433(b)) with respect to highway, traffic, and motor vehicle safety and highway construction.</P> <P>(n) Carry out the functions vested in the Secretary by the Emergency Rail Facilities Restoration Act of 1972 (Pub. L. 92-591).</P> <P>(o) Carry out the functions vested in the Secretary by subsection (b) (except as it relates to conducting consultations with the Administrator of the Environmental Protection Agency) and (c) of section 17 of the Noise Control Act of 1972 (Pub. L. 92-574).</P> <P>(p) Carry out the functions vested in the Secretary by sections 201(i)(3); 202(b)(7); 203, except authority to issue subpoenas; 210; 212; 213; 215; 402; 403; and 601 of the Regional Rail Reorganization Act of 1973 (Pub. L. 93-236) as amended by the Rail Transportation Improvement Act (Pub. L. 94-555).</P> <P>(q) Carry out the functions vested in the Secretary by subsections 4 (h) and (i) of the Department of Transportation Act, as amended (49 U.S.C. 1653(h), (i)).</P> <P>(r) [Reserved]</P> <P>(s)(1) Except as delegated by § 1.74, carry out the functions vested in the Secretary by 49 U.S.C. 5121(a), (b) and (c), 5122, 5123, and 5124 relating to investigations, records, inspections, penalties, and specific relief, with particular emphasis on the transportation or shipment of hazardous materials by railroad, including the manufacture, fabrication, marking, maintenance, reconditioning, repair or test of containers which are represented, marked, <PRTPAGE P="35"/>certified, or sold for use in the bulk transportation of hazardous materials by railroad.</P> <P>(2) Carry out the functions vested in the Secretary by 49 U.S.C. 5105(b) relating to a rail transportation safety study and 5111 relating to rail tank cars.</P> <P>(t) Carry out the functions vested in the Secretary by sections 204(c); except authority to issue subpoenas; 402; 403; 502; 503; 504; 505; 506, except (c); 507; 508; 511; 512; 513; 515; 517; 606; 610; 703; 704, except (c)(1); and 705; 707; 901; 905, as applicable, of the Railroad Revitalization and Regulatory Reform Act of 1976, as amended, section 5 of the Department of Transportation Act (49 U.S.C. 1654), except authority to issue subpoenas.</P> <P>(u) Carry out functions vested in the Secretary by sections 17(a) and (b) (as they relate to consultations with the Administrator of the Environmental Protection Agency) of the Noise Control Act of 1972 (Pub. L. 92-574, 49 U.S.C. 1431).</P> <P>(v) Carry out the functions vested in the Secretary by the Rock Island Railroad Transition and Employee Assistance Act (title I of Pub. L. 96-254) and by section 18 of the Milwaukee Railroad Restructuring Act (49 U.S.C. 916).</P> <P>(w) Carry out the functions vested in the Secretary by section 305 of the Regional Rail Reorganization Act of 1973, as amended (45 U.S.C. 745).</P> <P>(x) Carry out the functions vested in the Secretary by sections 4(a) and 5(c) of Executive Order 12316 of August 14, 1981 (46 FR 42237, Aug. 20, 1981) (delegating sections 107(c)(1)(c) and 108(b), respectively, of the Comprehensive Environmental Response, Compensation, and Liability Act of 1981, Pub. L. 96-510), insofar as they relate to rolling stock.</P> <P>(y) Carry out the functions vested in the Secretary by the Northeast Rail Service Act of 1981 (Pub. L. 97-35).</P> <P>(z) Carry out the functions vested in the Secretary by section 3 of the Bridge Act of 1906, as amended (33 U.S.C. 493), relating to disputes over the terms and compensation for use of railroad bridges built under the Act.</P> <P>(aa) Carry out the functions vested in the Secretary by titles II through VII of the Rail Safety and Service Improvement Act of 1982 (Pub. L. 97-468), which relates to rail safety, rail finances, and the transfer of The Alaska Railroad to the State of Alaska.</P> <P>(bb) Carry out the functions vested in the Secretary by section 4031 of the Budget Reconciliation Act of 1986 (Pub. L. 99-509), which relates to the abolition of the United States Railway Association, and the execution of the functions and duties of the Association transferred to the Secretary, effective April 1, 1987.</P> <P>(cc) Carry out the functions vested in the Secretary by section 18 (g) and (h) of the Rail Safety Improvement Act of 1988 (Pub. L. 100-342).</P> <P>(dd) Carry out the function vested in the Secretary by section 1163 of the Bankruptcy Code (11 U.S.C. 1163), which relates to the nomination of trustee for rail carriers in reorganization, with the concurrence of the Office of the General Counsel.</P> <P>(ee) Carry out the functions vested in the Secretary by sections 9, 10, 11, 12, and 13 of the Sanitary Food Transportation Act of 1990 (Pub. L. 101-500; 104 Stat. 1213), with respect to transportation by railroad.</P> <P>(ff) Exercise the authority vested in the Secretary by the Crime Control Act of 1990 (Pub. L. 101-647) as it relates to a railroad police officer's authority to enforce the laws of any jurisdiction in which the police officer's rail carrier employer owns property.</P> <P>(gg) Carry out the functions vested in the Secretary by sections 16 and 21 of the Hazardous Materials Transportation Uniform Safety Act of 1990 (Pub. L. 101-615; 104 Stat. 3244 (49 App. U.S.C. 1813 note and 1817 note)).</P> <P>(hh) Exercise the authority vested in the Secretary by Section 601 (d) and (e) of the National and Community Service Act of 1990 (45 U.S.C. 546 note) as it relates to the discharge of human waste from railroad passenger cars.</P> <P>(ii) Carry out the functions and exercise the authority delegated to the Secretary in section 2(d)(2) of Executive Order 12777 (3 CFR, 1991 Comp.; 56 FR 54757), with respect to rail transportation, relating to the approval of <PRTPAGE P="36"/>means to ensure the availability of private personnel and equipment to remove, to the maximum extent practicable, a worst case discharge, the review and approval of response plans, and the authorization of railroads, subject to the Federal Water Pollution Control Act (33 U.S.C. 1321), to operate without approved response plans, except as delegated in § 1.46(m).</P> <P>(jj) Exercise the authority vested in the Secretary by the Swift Rail Development Act of 1994, being Title I—High-Speed Rail of Public Law 103-440 (108 Stat. 4615), as it relates to the provision of financial assistance for high-speed rail corridor planning and technology improvements, the promulgation of necessary safety regulations, and the redemption of outstanding obligations and liabilities with respect to the Columbus and Greenville Railway under Sections 505 and 511 of the Railroad Revitalization and Regulatory Reform Act of 1976 (45 U.S.C. 825 and 831, respectively).</P> <P>(kk) Carry out the functions and exercise the authority vested in the Secretary by 23 U.S.C. 322, titled the Magnetic Levitation Transportation Technology Deployment Program.</P> <P>(ll) Carry out the function of determining the Federal requirements for the Nationwide Differential Global Positioning System (NDGPS) as a necessary part of the Secretary's authority to establish, operate, and manage the NDGPS granted by Section 346 of Public Law 105-66, titled the Department of Transportation and Related Agencies Appropriations Act, 1998.</P> <CITA>[Amdt. 1-113, 40 FR 43901, Sept. 24, 1975]</CITA> <EDNOTE> <HD SOURCE="HED">Editorial Note:</HD> <P>For <E T="04">Federal Register</E> citations affecting § 1.49, see the List of CFR Sections Affected which appears in the Finding Aids section of the printed volume and on GPO Access.</P> </EDNOTE> </SECTION> <SECTION> <SECTNO>§ 1.50</SECTNO> <SUBJECT>Delegation to the National Highway Traffic Safety Administrator.</SUBJECT> <P>The National Highway Traffic Safety Administrator is delegated authority to:</P> <P>(a) Carry out the National Traffic and Motor Vehicle Safety Act of 1966, as amended (15 U.S.C. 1381 <E T="03">et seq.</E>).</P> <P>(b) Carry out the Highway Safety Act of 1966, as amended (23 U.S.C. 401 <E T="03">et seq.</E>), except for highway safety programs, research and development relating to highway design, construction and maintenance, traffic control devices, identification and surveillance of accident locations, and highway-related aspects of pedestrian and bicycle safety.</P> <P>(c) Exercise the authority vested in the Secretary by section 210(2) of the Clean Air Act, as amended (42 U.S.C. 7544(2)).</P> <P>(d) Exercise the authority vested in the Secretary by section 204(b) of the Federal Railroad Safety Act of 1970 (45 U.S.C. 433(b)) with respect to laws administered by the National Highway Traffic Safety Administrator pertaining to highway, traffic and motor vehicle safety.</P> <P>(e) Carry out the Act of July 14, 1960, as amended (23 U.S.C. 313 note) and the National Driver Register Act of 1982 (23 U.S.C. 401 note).</P> <P>(f) Carry out the functions vested in the Secretary by the Motor Vehicle Information and Cost Savings Act of 1972, as amended (15 U.S.C. 1901 <E T="03">et seq.</E>), except section 512.</P> <P>(g) Administer the following sections of title 23, United States Code, with the concurrence of the Federal Highway Administrator:</P> <P>(1) 141, as it relates to certification of the enforcement of speed limits;</P> <P>(2) 154 (a), (b), (d), (e), (f), (g) and (h); and</P> <P>(3) 158.</P> <P>(h) Carry out the consultation functions vested in the Secretary by Executive Order 11912, as amended.</P> <P>(i) Carry out section 209 of the Surface Transportation Assistance Act of 1978, as amended (23 U.S.C. 401 note) and section 165 of the Surface Transportation Assistance Act of 1982, as amended (23 U.S.C. 101 note), with respect to matters within the primary responsibility of the National Highway Traffic Safety Administrator.</P> <P>(j) Administer section 414(b)(1) of the Surface Transportation Assistance Act of 1982, as amended (49 U.S.C. 2314) with the concurrence of the Federal Highway Administrator, and section 414(b)(2).</P> <P>(k) Carry out section 2(c) of the Truth in Mileage Act of 1986 (15 U.S.C. 1988 note).<PRTPAGE P="37"/> </P> <P>(l) Carry out section 204(b) of the Surface Transportation and Uniform Relocation Assistance Act of 1987, Public Law 100-17 (101 Stat. 132) with the coordination of the Federal Highway Administrator.</P> <P>(m) Carry out the functions vested in the Secretary by section 15(f) of the Sanitary Food Transportation Act of 1990 (Pub. L. 101-500; 104 Stat. 1213).</P> <P>(n) Carry out, in coordination with the Federal Motor Carrier Safety Administrator, the authority vested in the Secretary by subchapter III of chapter 311 and section 31502 of title 49, U.S.C., to promulgate safety standards for commercial motor vehicles and equipment subsequent to initial manufacture when the standards are based upon and similar to a Federal Motor Vehicle Safety Standard promulgated, either simultaneously or previously, under chapter 301 of title 49, U.S.C.</P> <CITA>[Amdt. 1-226, 53 FR 23122, June 20, 1988, as amended by Amdt. 1-239, 56 FR 6810, Feb. 20, 1991; 65 FR 41015, July 3, 2000]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.51</SECTNO> <SUBJECT>Delegations to Urban Mass Transportation Administrator.</SUBJECT> <P>The Urban Mass Transportation Administrator is delegated authority to exercise the functions vested in the Secretary by:</P> <P>(a) The Urban Mass Transportation Act of 1964, as amended (78 Stat. 302, 49 U.S.C. 1601 <E T="03">et seq.</E>), except section 18 as it relates to the formula grant program for non-urbanized areas in the Commonwealth of Puerto Rico and section 22, relating to intercity bus service.</P> <P>(b) Section 1 of Reorganization Plan No. 2 of 1968 (84 Stat. 1369).</P> <P>(c) Section 10 of the Urban Mass Transportation Assistance Act of 1970, Public Law 91-453, 84 Stat. 962, 968).</P> <P>(d) Sections 3 and 9 through 15 of the National Capital Transportation Assistance Act of 1969, as amended (D.C. Code, § 1-2441 <E T="03">et seq</E>).</P> <P>(e) The following sections of title 23, United States Code:</P> <P>(1) 103 as it involves the withdrawal of Interstate routes and the substitution of non-highway public mass transit projects authorized by subsection (e)(4);</P> <P>(2) 101(a) as it involves approval of boundaries of urban and urbanized areas, 104(f)(4), 105(d), 106(b) as it involves the Federal-aid urban system, and 134; and</P> <P>(3) 101 (b), (c), (d), and (e); 105 (a) and (g); 106 (a), (c) and (d); 108; 109 (a), (g), and (h); 110; 112; 113; 114; 116 (a) and (c); 117; 121; 122; 124; 128; 140(a); 142; and 145 as they involve mass transportation projects authorized by sections 103(e)(4), 142(a)(2), or 142(c).</P> <P>(f) Sections 140, 146, 147, 164 and 165 of the Federal-Aid Highway Act of 1973, as amended (Pub. L. 93-87, title I, 87 Stat. 250; Pub. L. 93-643, 88 Stat. 2281).</P> <P>(g) Section 813 of the Housing and Community Development Act of 1974 (Pub. L. 93-383).</P> <P>(h) Section 107 of the National Mass Transportation Assistance Act of 1974 (Pub. L. 93-503, November 26, 1974).</P> <P>(i) Title II of the National Mass Transportation Assistance Act of 1974 (Pub. L. 93-503, November 26, 1974), except sections 204 and 205.</P> <P>(j) Sections 804, insofar as it relates to 45 U.S.C. 744(e)(5); and 805, as applicable, of the Railroad Revitalization and Regulatory Reform Act of 1976 (Pub. L. 94-210).</P> <P>(k) Section 148 of the Federal-Aid Highway Act of 1976 (Pub. L. 94-280, 90 Stat. 425).</P> <P>(l) The following sections of the Surface Transportation Assistance Act of 1978 (Pub. L. 95-599, 92 Stat. 2689): 155, 316, 320, and title IV, as amended (as it relates to matters within the primary responsibility of the Urban Mass Transportation Administrator).</P> <P>(m) Section 601(d) of the Rail Passenger Service Act, as amended.</P> <P>(n) Section 2 of Public Law 98-229, 98 Stat. 55, insofar as it relates to apportioning certain funds for Interstate substitute transit projects.</P> <CITA>[Amdt. 1-157, 45 FR 83408, Dec. 18, 1980, as amended by Amdt. 1-168, 47 FR 16632, Apr. 19, 1982; Amdt. 1-180, 48 FR 15476, Apr. 11, 1983; Amdt. 1-187, 48 FR 52678, Nov. 21, 1983; Amdt. 1-191, 49 FR 6908, Feb. 24, 1984; Amdt. 1-203, 50 FR 30275, July 25, 1985]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.52</SECTNO> <SUBJECT>Delegations to Saint Lawrence Seaway Development Corporation Administrator.</SUBJECT> <P>The Administrator of the Saint Lawrence Seaway Development Corporation is delegated authority to:</P> <P>(a) Carry out the functions vested in the Secretary by sections 4, 5, 6, 7, 8, 12 and 13 of section 2 of the Port and <PRTPAGE P="38"/>Tanker Safety Act of 1978 (92 Stat. 1471) as they relate to the operation of the St. Lawrence Seaway.</P> <P>(b) Carry out the functions vested in the Secretary by section 5 of the International Bridge Act of 1972 (Pub. L. 92-434) as it relates to the St. Lawrence River.</P> <P>(c) Carry out the functions vested in the Secretary by section 3(d) of the Act to Prevent Pollution from Ships (33 U.S.C. 1902(d)) as it relates to ships owned or operated by the Corporation when engaged in noncommercial service.</P> <P>(d)-(e) [Reserved]</P> <CITA>[Amdt. 1-113, 40 FR 43901, Sept. 24, 1975, as amended by 45 FR 48630, July 21, 1980; Amdt. 1-167, 47 FR 11677, Mar. 18, 1982; 60 FR 38971, July 31, 1995; Amdt. 1-272, 60 FR 63450, Dec. 11, 1995; Amdt. 1-292, 63 FR 10782, Mar. 5, 1998]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.53</SECTNO> <SUBJECT>Delegations to the Administrator of the Research and Special Programs Administration.</SUBJECT> <P> <E T="03">Administration.</E> The Administrator of the Research and Special Programs Administration is delegated authority to exercise powers and perform duties, including duties under the specified statutes as follows:</P> <P>(a) <E T="03">Pipelines.</E> (1) Natural Gas Pipeline Safety Act of 1968, as amended (49 U.S.C. 1671 <E T="03">et seq.</E>).</P> <P>(2) Mineral Leasing Act, as amended (Pub. L. 93-153, 30 U.S.C. 185).</P> <P>(3) Deepwater Port Act of 1974 (Pub. L. 93-627, 33 U.S.C. 1501 <E T="03">et seq.</E>) relating to the establishment, enforcement and review of regulations concerning the safe construction, operation or maintenance of pipelines on Federal lands and the Outer Continental Shelf (33 U.S.C. 1520).</P> <P>(4) Section 5 of the International Bridge Act of 1972 (Pub. L. 92-434, 33 U.S.C. 535) as it relates to pipelines not over navigable waterways.</P> <P>(5) Hazardous Liquid Pipeline Safety Act of 1979, as amended (49 U.S.C. 2001 <E T="03">et seq.</E>).</P> <P>(6) Outer Continental Shelf Lands Act (43 U.S.C. 1331 <E T="03">et seq.</E>) as amended, with respect to establishment, enforcement and review of regulations concerning pipeline safety.</P> <P>(7) Sections 4(a) and 5(c) of Executive Order 12316 of August 14, 1981 (46 FR 42237, August 20, 1981) (delegating sections 107(c)(1)(c) and 108(b), respectively, of the Comprehensive Environmental Response, Compensation, and Liability Act of 1981, Pub. L. 96-510), insofar as they relate to pipelines.</P> <P>(8) Section 7005 of the Consolidated Omnibus Budget Reconciliation Act of 1985, as it relates to pipeline safety user fees.</P> <P>(b) <E T="03">Hazardous materials.</E> Except as delegated by § 1.74:</P> <P>(1) Carry out the functions vested in the Secretary by 49 U.S.C. 5121(a), (b) and (c), 5122, 5123, and 5124 relating to investigations, records, inspections, penalties, and specific relief, with particular emphasis on the shipment of hazardous materials and the manufacture, fabrication, marking, maintenance, reconditioning, repair or test of multi-modal containers that are represented, marked, certified, or sold for use in the transportation of hazardous materials; and</P> <P>(2) Carry out the functions vested in the Secretary by all other provisions of the Federal hazardous material transportation law, 49 U.S.C. 5101 <E T="03">et seq.</E>, except as delegated by §§ 1.46(t), 1.47(j)(2), 1.49(s)(2), and 1.73(d)(2).</P> <P>(c) <E T="03">Passenger and cargo security.</E> (1) Serve as the Department's point of contact in relationships with Government, state, regional, local and private groups and organizations in matters relative to the Department-wide program for enhancing the safety and security of passengers and cargo in transit.</P> <P>(d) <E T="03">Intermodal transport.</E> (1) Section 4(e) of the International Safe Container Act (Pub. L. 95-208, 91 Stat. 1475).</P> <P>(2) [Reserved]</P> <P>(e) <E T="03">Emergency preparedness.</E> Carry out the functions related to emergency preparedness vested in the Secretary by 49 U.S.C. 101 and 301 or delegated to the Secretary by or through the Defense Production Act of 1950, 50 U.S.C. App. 2061 <E T="03">et seq.;</E> Executive Order 10480, as amended; Executive Order 12148; Executive Order 12656; Executive Order 12742; Reorganization Plan No. 3 of 1978; and such other statutes, executive orders, and other directives as may pertain to emergency preparedness.</P> <P>(f) <E T="03">Working Capital Fund for Financing the Activities of the Transportation Systems Center.</E> (1) Section 207 of Public <PRTPAGE P="39"/>Law 96-254 (49 U.S.C. 1657(r)), authorizing the Secretary to establish a working capital fund for financing the activities of the Transportation Systems Center.</P> <P>(2) [Reserved]</P> <P>(g) [Reserved]</P> <P>(h) <E T="03">Science and technology.</E> (1) With respect to scientific and technological matters, serve as principal advisor to the Secretary and representative of the Department to the academic community, the private sector, professional organizations, and other Government agencies.</P> <P>(2) Serve as principal liaison official for the Department of Transportation with the Office of Science and Technology Policy in the Executive Office of the President.</P> <P>(3) Serve as Chairperson of the Department of Transportation's Research and Development Coordinating Council.</P> <P>(4) Serve as Chairperson of the Department of Transportation Navigation Council.</P> <P>(5) Serve as primary official responsible for coordination and oversight of the Department's implementation of section 2 of the Federal Technology Transfer Act of 1986 (Pub. L. No. 99-502; 15 U.S.C. 3710a), relating to the transfer of Federal technology to the marketplace.</P> <P>(i) Carry out the functions vested in the Secretary by sections 4, 5, 6, 7, and 8 of the Sanitary Food Transportation Act of 1990 (Pub. L. 101-500; 104 Stat. 1213).</P> <P>(j) Section 8 of the Independent Safety Board Act Amendments of 1990 (Pub. L. 101-641; 104 Stat. 4654 (49 app. U.S.C. 1804 note)).</P> <P>(k)(1) Carry out the functions and exercise the authority delegated to the Secretary in Executive Order 12777 (3 CFR, 1991 Comp.; 56 FR 54757) in section 2(b)(2) relating to the establishment of procedures, methods, and equipment and other requirements for equipment to prevent discharges from, and to contain oil and hazardous substances in, pipelines, motor carriers, and railroads. (See 49 CFR 1.46 and 1.66.)</P> <P>(2) Carry out the functions and exercise the authority delegated to the Secretary in section 2(d)(2) of Executive Order 12777 (3 CFR, 1991 Comp.; 56 FR 54757) relating to the issuance of regulations requiring the owners or operators of pipelines, motor carriers, and railroads, subject to the Federal Water Pollution Control Act (33 U.S.C. 1321), to prepare and submit response plans, except as delegated in section 1.46(m). For pipelines subject to the Federal Water Pollution Control Act (33 U.S.C. 1321), this authority includes the approval of means to ensure the availability of private personnel and equipment to remove, to the maximum extent practicable, a worst case discharge, the review and approval of response plans, and the authorization of pipelines to operate without approved response plans.</P> <P>(l) University Grants Program. Sections 11(b) and 11(c) of the Federal Transit Act, as amended, 49 U.S.C. App. 1607c(b) and 1607c(c), except for the provisions in sections 11(b)(8)(b) and 11(b)(10).</P> <CITA>[Amdt. 1-130, 43 FR 5516, Feb. 9, 1978]</CITA> <EDNOTE> <HD SOURCE="HED">Editorial Note:</HD> <P>For <E T="04">Federal Register</E> citations affecting § 1.53, see the List of CFR Sections Affected which appears in the Finding Aids section of the printed volume and on GPO Access.</P> </EDNOTE> </SECTION> <SECTION> <SECTNO>§ 1.54</SECTNO> <SUBJECT>Delegations to all Secretarial Officers.</SUBJECT> <P>(a) This section sets forth general delegations to the Deputy Secretary, the Deputy Under Secretary, the General Counsel, the Inspector General and the Assistant Secretaries.</P> <P>(b) Each officer named in paragraph (a) of this section is delegated authority to:</P> <P>(1) Redelegate and authorize successive redelegations of authority granted by the Secretary within their respective organizations, except as limited by law or specific administrative reservation, including authority to publish those redelegations in appendix A of this part.</P> <P>(2) Authorize and approve official travel (except foreign travel) and transportation for themselves, their subordinates, and others performing services for, or in cooperation with, the Office of the Secretary. This authority may be redelegated in accordance with regulations issued by the Assistant Secretary for Administration.<PRTPAGE P="40"/> </P> <P>(3) Communicate directly with chairmen of Field Coordination Groups provided such communications are largely informational in character and do not conflict with program responsibilities of the operating administrations.</P> <P>(4) Establish ad hoc committees for specific tasks within their assigned staff area.</P> <P>(5) Establish, modify, extend, or terminate standing committees within their specific areas of responsibility when directed or authorized to do so by the Secretary.</P> <P>(6) Designate members of interagency committees when such committees are specifically concerned with responsibilities of direct interest to their office.</P> <P>(7) Exercise the following authorities with respect to executive level positions (GS-16, 17, or 18 or equivalent) within their respective areas of responsibility:</P> <P>(i) Determine how executive level positions will be filled; i.e., by reassignment, promotion, appointment.</P> <P>(ii) Establish selection criteria to be used in identifying eligible candidates.</P> <P>(iii) Confer with the Administrators on selection criteria and candidates for an executive level position that is a counterpart of an activity or position in the Office of the Secretary.</P> <P>(iv) Recommend final selection for executive level positions, subject to review by the Executive Committee of the Departmental Executive Personnel Board and approval by the Secretary and the Civil Service Commission.</P> <P>(v) Serve as ad hoc member of the Departmental Executive Personnel Board at the call of the Chairman and serve on the Board's Executive Committee whenever matters involving their respective offices or a functional counterpart thereof in an operating administration are presented to the Executive Committee for its consideration.</P> <P>(8) Enter into inter- and intra-departmental reimbursable agreements other than with the head of another department or agency (31 U.S.C. 686). This authority may be redelegated only to office directors or other comparable levels and to contracting officers.</P> <P>(9) Administer and perform the functions described in their respective functional statements.</P> <P>(10) Exercise the authority of the Secretary to make certifications, findings and determinations under the Regulatory Flexibility Act (Pub. L. 96-354) with regard to any rulemaking document for which issuance authority is delegated by other sections in this part. This authority may be redelegated to those officials to whom document issuance authority has been delegated.</P> <P>(11) Exercise the authority of the Secretary to resolve informal allegations of discrimination arising in or relating to their respective organizations through Equal Employment Opportunity counseling or the Alternative Dispute Resolution process and to develop and implement affirmative action and diversity plans within their respective organizations. </P> <SECAUTH>(49 U.S.C. 1657(e)(1))</SECAUTH> <CITA>[Amdt. 1-113, 40 FR 43901, Sept. 24, 1975, as amended by Amdt. 1-114, 41 FR 1288, Jan. 7, 1976; Amdt. 1-157, 45 FR 83408, Dec. 18, 1980; Amdt. 1-159, 46 FR 22593, Apr. 20, 1981; Amdt. 265, 60 FR 2891, Jan. 12, 1995]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.55</SECTNO> <SUBJECT>Delegations to Deputy Secretary.</SUBJECT> <P>The Deputy Secretary may exercise the authority of the Secretary except where specifically limited by law, order, regulations, or instructions of the Secretary. In addition, the Deputy Secretary is delegated authority to:</P> <P>(a) Exercise executive control over the Departmental Planning-Programming-Budgeting System.</P> <P>(b) Serve as Chairman of the Departmental Executive Personnel Board and its Executive Committee.</P> <P>(c) Originate direct correspondence to chairmen of Field Coordination Groups on overall Departmental matters.</P> <P>(d) Approve the establishment, modification, extension, or termination of:</P> <P>(1) Department-wide (intra-department) committees affecting more than one program.</P> <P>(2) OST-sponsored interagency committees.</P> <P>(3) All advisory committees (including industry advisory committees) except those sponsored by field activities of the operating administrations.</P> <P>(e) Approve the designation of:<PRTPAGE P="41"/> </P> <P>(1) Departmental representatives and the chairman for interagency committees sponsored by the Office of the Secretary.</P> <P>(2) Departmental representatives on all advisory committees except those sponsored by a field component of one of the operating administrations or the Materials Transportation Bureau.</P> <P>(3) Departmental members for international committees.</P> <P>(f) Authorize and approve official travel and transportation for self, subordinates, and others performing services for or in cooperation with the Office of the Secretary; and authorize and approve official foreign travel of all Departmental personnel and others performing travel for the Department.</P> <P>(g) Serve as the representative of the Secretary on the board of directors of the National Railroad Passenger Corporation and carry out the functions vested in the Secretary as a member of the board by section 303 of the Rail Passenger Service Act of 1970 (84 Stat. 1330).</P> <P>(h) Serve as the representative of the Secretary as incorporator, member of the acting board of directors, member of the board of directors, and member of the executive committee of the board of directors, of the United States Railway Association and when so serving carry out the functions vested in the Secretary in each capacity by title II of the Regional Rail Reorganization Act of 1973 (Pub. L. 93-236), as amended.</P> <P>(i) Serve as the representative of the Secretary as incorporator, member of the interim board of directors established by section 301(c) of the Regional Rail Reorganization Act of 1973 (Pub. L. 93-236), and member of the board of directors, of the Consolidated Rail Corporation and when so serving carry out the functions vested in the Secretary in each capacity by title III of the Regional Rail Reorganization Act of 1973 (Pub. L. 93-236).</P> <CITA>[Amdt. 1-113, 40 FR 43901, Sept. 24, 1975, as amended by Amdt. 1-114, 41 FR 1288, Jan. 7, 1976; Amdt. 1-116, 41 FR 20680, May 20, 1976; Amdt. 1-126, 41 FR 56327, Dec. 28, 1976; Amdt. 1-157, 45 FR 83408, Dec. 18, 1980; Amdt. 1-165, 46 FR 55266, Nov. 9, 1981]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.56</SECTNO> <SUBJECT>Delegations to the Assistant Secretary for Transportation Policy.</SUBJECT> <P>The Assistant Secretary for Transportation Policy is delegated authority to:</P> <P>(a) Establish policy and maintain oversight of implementation of the National Environmental Policy Act of 1969, as amended (42 U.S.C. 4321-4347) within the Department of Transportation.</P> <P>(b) Oversee the implementation of section 4(f) of the Department of Transportation Act of 1969 (49 U.S.C. 303).</P> <P>(c) Represent the Secretary of Transportation on various interagency boards, committees, and commissions to include the Architectural and Transportation Barriers Compliance Board and the Advisory Council on Historic Preservation.</P> <P>(d) Except with respect to proceedings under section 4(e) of the Department of Transportation Act (49 U.S.C. 307) relating to safety fitness of an applicant, decide on requests to intervene or appear before administrative agencies to present the views of the Department subject to concurrence by the General Counsel.</P> <P>(e) Carry out the functions vested in the Secretary by section 656 of the Department of Energy Organization Act (42 U.S.C. 7266) which pertains to planning and implementing energy conservation matters with the Department of Energy. Serves as the Department's principal conservation officer.</P> <CITA>[Amdt. 1-261, 59 FR 10063, Mar. 3, 1994]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.56a</SECTNO> <SUBJECT>Delegations to the Assistant Secretary for Aviation and International Affairs.</SUBJECT> <P>The Assistant Secretary for Aviation and International Affairs is delegated authority to:</P> <P>(a) Represent the Secretary of Transportation on various interagency boards, committees, and commissions to include the Trade Policy Review Group and the Trade Policy Staff Committee.</P> <P>(b) Except with respect to proceedings under section 4(e) of the Department of Transportation Act (49 U.S.C. 307) relating to safety fitness of <PRTPAGE P="42"/>an applicant, decide on requests to intervene or appear before administrative agencies to present the views of the Department subject to concurrence by the General Counsel.</P> <P>(c) Carry out the functions of the Secretary pertaining to aircraft with respect to Transportation Orders T-1 and T-2 (44 CFR chapter IV) under the Act of September 8, 1950, as amended (50 U.S.C. app. 2061 <E T="03">et seq.</E>) and Executive Order No. 10480 (3 CFR, 1949-1953 comp., p. 962), as amended.</P> <P>(d) Serve as Department of Transportation member of the Interagency Group on International Aviation, and pursuant to Executive Order No. 11382 (3 CFR, 1966-1970 comp., p. 691), as amended, serve as Chair of the Group.</P> <P>(e) Serve as second alternate representing the Secretary of Transportation to the Trade Policy Committee as mandated by Reorganization Plan No. 3 of 1979 (5 U.S.C. app. at 1381 (1988)) and Executive Order No. 12188 (3 CFR, 1980 comp., p. 131), as amended.</P> <P>(f)(1) As supplemented by 14 CFR part 385, as limited by paragraph (f)(2) of this section, and except as provided in §§ 1.53(g), 1.57(a), and 1.57(s) of this title, carry out the functions transferred to the Department from the Civil Aeronautics Board under the following statutes:</P> <P>(i) 49 U.S.C. app. 1551(b); and</P> <P>(ii) Section 4(a)(1) through (4), (6), and (8) through (10) of the Civil Aeronautics Board Sunset Act of 1984 (49 U.S.C. app. 1553(a)(1) through (4), (6), and (8) through (10)).</P> <P>(2) Insofar as the delegation in this paragraph (f) authorizes review of decisions of the Designated Senior Career Official in the Office of the Assistant Secretary for Aviation and International Affairs under § 1.56b of this title, the authority is limited to approving any such decision or remanding it for reconsideration by the Designated Senior Career Official, with a full written explanation of the basis for the remand.</P> <P>(g) Carry out the functions vested in the Secretary by the following subsections of section 1115 of the Federal Aviation Act of 1958, as amended, which relates to the security of foreign airports:</P> <P>(1) Subsection 1115(e)(1), in coordination with the General Counsel, and the Federal Aviation Administrator; and</P> <P>(2) Subsection 1115(e)(3), in coordination with the General Counsel, the Federal Aviation Administrator, the Assistant Secretary for Governmental Affairs, and the Assistant Secretary for Administration.</P> <P>(h) Carry out the following statutory provisions relating to consumer protection:</P> <P>(1) Section 4(a)(5) of the Civil Aeronautics Board Sunset Act of 1984 (49 U.S.C. app. 1553(a)(5)) relating to enforcement of the Consumer Credit Protection Act;</P> <P>(2) Sections 101(3) (relating to relieving certain carriers from provisions of the Federal Aviation Act), 204 (relating to taking such actions and issuing such regulations as may be necessary to carry out responsibilities under the Act), 404 (relating to enforcing the duty of carriers to provide safe and adequate service), 407(a) (relating to requiring the production of information), 407(e) (relating to entering carrier property, and inspecting records), 411 (relating to determining whether any carrier or ticket agent is engaged in unfair or deceptive practices or unfair methods of competition), and 416 (relating to establishing just and reasonable classifications of carriers and rules to be followed by each) of the Federal Aviation Act of 1958, as amended, (49 U.S.C. 1301(3), 1324, 1374, 1377 (a) and (e), 1381, and 1386) as appropriate to the consumer protection functions in this paragraph.</P> <P>(i) Carry out the functions of the Secretary pertaining to a determination of whether a fee imposed upon one or more air carriers by the owner or operator of an airport is reasonable under section 113 of the Federal Aviation Administration Authorization Act of 1994 (August 23, 1994; Pub. L. 103-305; 108 Stat. 1577-1579).</P> <P>(j) Carry out section 101(a)(2) of the Air Transportation Safety and System Stabilization Act (Public Law 107-42, <PRTPAGE P="43"/>115 Stat. 230), as delegated to the Secretary of Transportation by the President pursuant to a Presidential Memorandum dated September 25, 2001.</P> <CITA>[Amdt. 1-261, 59 FR 10063, Mar. 3, 1994, as amended by Amdt. 1-266, 60 FR 11046, Mar. 1, 1995; Amdt. 1-269, 60 FR 15877, Mar. 28, 1995; 66 FR 55599, Nov. 2, 2001]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.56b</SECTNO> <SUBJECT>Delegations to the Designated Senior Career Official, Office of the Assistant Secretary for Aviation and International Affairs.</SUBJECT> <P>The Designated Senior Career Official in the Office of the Assistant Secretary for Aviation and International Affairs is delegated exclusive authority to make decisions in all hearing cases to select a carrier for limited-designation international route authority, and in any other case that the Secretary designates, under the authority transferred to the Department from the Civil Aeronautics Board described in §§ 1.56a(f) and 1.57(s) of this title; this includes the authority to adopt, reject or modify recommended decisions of administrative law judges.</P> <CITA>[Amdt. 1-261, 59 FR 10064, Mar. 3, 1994, as amended by Amdt. 1-269, 60 FR 15877, Mar. 28, 1995]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.57</SECTNO> <SUBJECT>Delegations to General Counsel.</SUBJECT> <P>The General Counsel is delegated authority to:</P> <P>(a) Conduct all rule-making proceedings, except the issuance of final rules, under specific laws relating generally to standard time zones and daylight saving (advanced standard) time.</P> <P>(b) Determine the practicability of applying the standard time of any standard time zone to the movements of any common carrier engaged in interstate or foreign commerce and issue operating exceptions in any case in which the General Counsel determines that it is impractical to apply the standard time.</P> <P>(c) Provide and coordinate the Department's counseling service to employees on questions of conflict of interest and other matters of legal import covered by Departmental regulations on employee responsibility and conduct. Assure that counseling and interpretations on these matters are available to designated Deputy Counselors of the Department. Serve as the Department's designee to the Civil Service Commission on these matters.</P> <P>(d) Serve as the alternate representative of the Secretary on the Board of Directors of the National Railroad Passenger Corporation when so designated by the Secretary or Deputy Secretary and carry out the functions vested in the Secretary as a member of the board by section 303 of the Rail Passenger Service Act of 1970 (84 Stat. 1330).</P> <P>(e) Review and take final action on referrals of the findings of the Board for Correction of Military Records of the Coast Guard (except with respect to those matters on which the Secretary's authority to take final action is exercised by the Board pursuant to 33 CFR 52.35-15) and the Coast Guard Discharge Review Board.</P> <P>(f) Approve vacation of suspension of dismissal of military personnel (10 U.S.C. 872(b)).</P> <P>(g) Grant permission, under specific circumstances, to deviate from a policy or procedure prescribed by part 9 of the regulations of the Office of the Secretary (part 9 of this subtitle) with respect to testimony of OST employees as witnesses in legal proceedings, the serving of legal process and pleadings in legal proceedings involving the Secretary or his Office, and the production of records of that Office pursuant to subpoena.</P> <P>(h) Prepare proposed Executive orders and proclamations (including transmittal documents), effect appropriate Departmental coordination, and determine whether the transmittal to the Office of Management and Budget should be submitted over the Secretary's signature or the General Counsel's.</P> <P>(i) Emboss and affix the official Departmental seal to appropriate documents and other materials, for all purposes for which authentication by seal is required.</P> <P>(j) Except with respect to proceedings under section 4(e) of the Department of Transportation Act (80 Stat. 934) relating to safety fitness of an applicant, decide on requests to intervene or appear before courts or agencies to present the views of the Department, subject to the concurrence of other interested staff elements in the Office of the Secretary.<PRTPAGE P="44"/> </P> <P>(k) Exercise the authority delegated to the Department by the Assistant Attorney General, Land and Natural Resources Division, in his order of October 2, 1970, to approve the sufficiency of the title to land being acquired by purchase or condemnation by the United States for the use of the Department. Redelegation and successive redelegations of this authority may only be made to attorneys within the Department.</P> <P>(l) Issue regulations making editorial changes or corrections in the Regulations of the Office of the Secretary.</P> <P>(m) Review and take final action on applications for reconsideration of initial decisions not to disclose unclassified records of the Office of the Secretary requested under 5 U.S.C. 552(a)(3).</P> <P>(n) Consider, ascertain, adjust, determine, compromise, and settle for an amount not exceeding $25,000, any tort claim arising from the activities of any employee of the Office of the Secretary. Request the approval of the Attorney General for any such award, compromise, or settlement in excess of $25,000 (28 U.S.C. 2672).</P> <P>(o) Conduct coordination with foreign governments under section 118 of the Deep Seabed Hard Mineral Resources Act (June 21, 1980).</P> <P>(p) Grant or deny petitions for extension of time to file a document under part 202 of title 46.</P> <P>(q) Deny petitions for rulemaking or petitions for exemptions in accordance with § 5.13(c) of this title, and notify petitioners of denials in accordance with § 5.13(d) of this title.</P> <P>(r) Exercise the review authority delegated to the Secretary by the President in Executive Order 12597 of May 13, 1987.</P> <P>(s) Assist and protect consumers in their dealings with the air transportation industry and assist state and local organizations in handling airline consumer complaints. Carry out 49 U.S.C. 40113 and 41771 as appropriate to those functions. </P> <SECAUTH>(10 U.S.C. 1552; 49 U.S.C. 1655(b); 49 U.S.C. 322; 49 CFR 1.57(l))</SECAUTH> <CITA>[Amdt. 1-113, 40 FR 43901, Sept. 24, 1975]</CITA> <EDNOTE> <HD SOURCE="HED">Editorial Note:</HD> <P>For <E T="04">Federal Register</E> citations affecting § 1.57, see the List of CFR Sections Affected which appears in the Finding Aids section of the printed volume and on GPO Access.</P> </EDNOTE> </SECTION> <SECTION> <SECTNO>§ 1.57a</SECTNO> <SUBJECT>Delegations to Deputy General Counsel.</SUBJECT> <P>The Deputy General Counsel is delegated authority to:</P> <P>(a) Appear on behalf of the Department on the record in hearing cases, and to initiate and carry out enforcement actions on behalf of the Department, under the authority transferred to the Department from the Civil Aeronautics Board as described in §§ 1.56a(f) and 1.57(s). This includes the authority to compromise penalties under 49 U.S.C. 46301; to issue appropriate orders, including cease and desist orders, under 49 U.S.C. 46101; and to require the production of information, enter carrier property and inspect records and inquire into the management of the business of a carrier under 49 U.S.C. 41711, as appropriate to the enforcement responsibilities. In carrying out these functions, the Deputy General Counsel is not subject to the supervision of the General Counsel.</P> <P>(b) Initiate and carry out enforcement actions relating to:</P> <P>(1) Foreign airport security on behalf of the Department under 49 U.S.C. 44907; and</P> <P>(2) The Consumer Credit Protection Act under section 4(a)(5) of the Civil Aeronautics Board Sunset Act of 1984 (October 4, 1984; Pub. L. 98-443). In carrying out these functions, the Deputy General Counsel is not subject to the supervision of the General Counsel.</P> <CITA>[Amdt. 1-269, 60 FR 15877, Mar. 28, 1995]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.57b</SECTNO> <SUBJECT>Delegations to the Assistant General Counsel for Environmental, Civil Rights, and General Law.</SUBJECT> <P>Administer 5 U.S.C. 552 and 49 CFR part 7 in connection with the records of the Office of the Secretary (including the Office of the Inspector General) and issue procedures to ensure uniform Departmental implementation of statutes and regulations regarding public access to records.</P> <CITA>[Amdt. 1-228, 54 FR 10010, Mar. 9, 1989, as amended by Amdt. 1-261, 59 FR 10064, Mar. 3, 1994]</CITA> </SECTION> <SECTION> <PRTPAGE P="45"/> <SECTNO>§ 1.58</SECTNO> <SUBJECT>Delegations to Assistant Secretary for Budget and Programs.</SUBJECT> <P>The Assistant Secretary for Budget and Programs is delegated authority to:</P> <P>(a) Exercise day-to-day operating management responsibility over the Office of Programs and Evaluation and the Office of Budget.</P> <P>(b) Direct and manage the Departmental planning, evaluation, and budget activities.</P> <P>(c) Request apportionment or reapportionment of funds by the Office of Management and Budget, provided that no request for apportionment or reapportionment which anticipates the need for a supplemental appropriation shall be submitted to the Office of Management and Budget without appropriate certification by the Secretary.</P> <P>(d) Issue allotments or allocations of funds to components of the Department.</P> <P>(e) Authorize and approve official travel and transportation for staff members of the Immediate Office of the Secretary including authority to sign and approve related travel orders and travel vouchers, but not including requests for overseas travel.</P> <P>(f) Issue monetary authorizations for use of reception and representation funds.</P> <P>(g) Act for the Secretary and Deputy Secretary with respect to certain budgetary and administrative matters relating to the Immediate Office of the Secretary.</P> <P>(h) Provide Congressional Notification for Energy Savings Performance Contracts (ESPCs) with cancellation ceilings in excess of $750,000, pursuant to the National Energy Conservation Policy Act, as amended, 42 U.S.C. 8287 et seq.</P> <CITA>[Amdt. 1-130, 42 FR 58754, Nov. 11, 1977. Redesignated by Amdt. 1-157, 45 FR 83409, Dec. 18, 1980, as amended by Amdt. 1-293, 63 FR 33589, June 19, 1998]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.59</SECTNO> <SUBJECT>Delegations to the Assistant Secretary for Administration.</SUBJECT> <P>The Assistant Secretary for Administration is delegated authority for the following:</P> <P>(a) <E T="03">Acquisition.</E> (1) Exercise procurement authority with respect to requirements of the Office of the Secretary.</P> <P>(2) Make the required determinations with respect to mistakes in bids relative to sales of personal property conducted by the Office of the Secretary without power of redelegation.</P> <P>(3) Carry out the functions vested in the Secretary by sections 3 and 4(b) (as appropriate) of Executive Order 11912.</P> <P>(4) Carry out the functions delegated to the Secretary from time to time by the Administrator of General Services to lease real property for Department use.</P> <P>(b) <E T="03">Personnel.</E> (1) Conduct a personnel management program for the Office of the Secretary with authority to take, direct others to take, recommend or approve any personnel action with respect to such authority.</P> <P>(2) Serve as Vice Chairman of the Departmental Executive Resources Board and its Executive Resources Review Committee.</P> <P>(3) Exercise emergency authority to hire without the prior approval of the Deputy Secretary normally required by Departmental procedures implementing general employment limitations when in the judgment of the Assistant Secretary immediate action is necessary to effect the hire and avoid the loss of a well-qualified job applicant, and for similar reasons.</P> <P>(4) Review proposals of the Office of the Secretary for each new appointment or transfer to:</P> <P>(i) Verify the essentiality of the position, and</P> <P>(ii) [Reserved]</P> <P>(5) Approve employment of experts and consultants in accordance with 5 U.S.C. 3109.</P> <P>(6) Serve as Vice Chairman of the Departmental Executive Personnel Board and its Executive Committee.</P> <P>(7) Issue final interpretations for the Department and its administrations on matters arising under section 7117 of title VII of the Civil Service Reform Act of 1978.</P> <P>(8) Develop, coordinate, and issue wage schedules for Department employees under the Federal Wage System, except as delegated to the Commandant of the Coast Guard at § 1.46.</P> <P>(c) <E T="03">Finance.</E> (1) Administer the financial and fiscal affairs of the Office of <PRTPAGE P="46"/>the Secretary (other than those for which the Assistant Secretary for Budget and Programs is responsible), in accordance with 31 U.S.C. 3512.</P> <P>(2) Designate to the Treasury Department certifying officers and designated agents for the Office of the Secretary and imprest fund cashiers for the Departmental headquarters. (Redelegation to the Director of Financial Management is contained in subpart C, § 1.59a.)</P> <P>(3) In accordance with 31 U.S.C. 3527, grant or recommend relief from accountability for losses or deficiencies of disbursing officers, cashiers, or other accountable officers as follows:</P> <P>(i) Grant relief for losses or deficiencies of less than $500 for which charges or exceptions have not been raised by the General Accounting Office.</P> <P>(ii) Recommend relief by the Comptroller General for all other losses or deficiencies.</P> <P>(4) Settle and pay claims by employees of the Office of the Secretary, except at the Transportation System Center, for personal property losses, as provided by 31 U.S.C. 241(b).</P> <P>(5) Waive claims and make refunds in connection with claims of the United States for erroneous payment of pay and allowances or of travel, transportation, and relocation expenses and allowances to an employee of the Office of the Secretary in amounts aggregating not more than $1,500 without regard to any repayments, and deny requests for waiver of such claims regardless of the aggregate amount of the claim, as provided by 4 CFR parts 91, 92, and 93. This authority may be redelgated only to the Director of Financial Management.</P> <P>(6) Compromise, suspend collection action on, or terminate claims of the United States not exceeding $100,000 (excluding interest) which are referred to, or arise out of the activities of, the Office of the Secretary.</P> <P>(7) Determine the existence and amount of indebtedness and the method of collecting repayments from employees of the Office of the Secretary and collect repayments accordingly, as provided by 5 U.S.C. 5514. This authority may be redelegated only to the Director of Financial Management.</P> <P>(8) Sign Budget Execution reports required by OMB Circular A-34, for the Office of the Secretary. (Redelegation to the Director of Financial Management is contained in subpart C, § 1.59a.)</P> <P>(9) Review and approve for payment any voucher for $25 or less the authority for payment of which is questioned by a certifying or disbursing officer. (Redelegation to the Director of Financial Management is contained in subpart C, § 1.59a.)</P> <P>(10) Approve cash purchases of emergency passenger transportation services costing over $100 under FPMR G-72, as amended.</P> <P>(11) Perform accounting and related functions in support of the essential air service program.</P> <P>(12) Carry out the functions and obligations assigned to the Secretary with respect to the Prompt Payment Act, Public Law 97-177.</P> <P>(13) Carry out the functions and duties assigned to the Secretary with respect to the Debt Collection Act of 1982, Public Law 97-365.</P> <P>(d) <E T="03">Special funds.</E> Except as otherwise delegated, establish or operate, or both, such special funds as may be required by statute or by administrative determination. This excludes the Working Capital Fund (49 U.S.C. 327).</P> <P>(e) <E T="03">Security.</E> (1) Represent the Secretary on the National Communications Security Committee and Interdepartmental Committee on Internal Security.</P> <P>(2) Issue identification media “by direction of the Secretary”.</P> <P>(3) Classify information in the interests of national defense.</P> <P>(4) Take certain classified actions on behalf of the Department in connection with counter-audio programs.</P> <P>(5) Authorize exceptions to investigative standards for National Defense Executive Reservists.</P> <P>(6) Determine when emergencies, other than attack on the United States, justify activation of Personnel Security Regulations issued by the Secretary.</P> <P>(7) Approve exceptions to the Personnel Security regulations issued by the Secretary.</P> <P>(8) Request the Office of Personnel Management to modify investigative requirements in other areas.<PRTPAGE P="47"/> </P> <P>(9) Ensure Department-wide compliance with Executive Orders 10450, 12829, 12958, 12968, and related regulations and issuances.</P> <P>(f) <E T="03">Printing.</E> (1) Request approval of the Joint Committee on Printing, Congress of the United States, for any procurement or other action requiring Committee approval.</P> <P>(2) Certify the necessity for Departmental periodicals and request approval of the Director of the Office of Management and Budget (OMB Circular No. A-3 Revised as of Sept. 8, 1960).</P> <P>(g) <E T="03">Document authentication.</E> Emboss and affix the official Departmental seal to appropriate documents and other materials, for all purposes for which authentication by seal is required.</P> <P>(h) <E T="03">Foreign travel.</E> Review written requests for modification to the Department's foreign travel plan approved by the Office of Management and Budget.</P> <P>(i) <E T="03">Gifts and bequests.</E> Carry out the functions vested in the Secretary by section 9(m) of the Department of Transportation Act (Pub. L. 89-670).</P> <P>(j) <E T="03">Building management.</E> Carry out the functions vested in the Secretary by sections 1(b) and 4(b) (as appropriate) of Executive Order 11912.</P> <P>(k) <E T="03">Privacy.</E> Issue notices of Department of Transportation systems of records as required by the Privacy Act of 1974 (5 U.S.C. 552a(e)(4), (11)).</P> <P>(l) <E T="03">Hearings.</E> Provide logistical and administrative support to the Department's Office of Hearings.</P> <P>(m) <E T="03">Paperwork reduction.</E> Carry out the functions and responsibilities assigned to the Secretary with respect to the Paperwork Reduction Act of 1980, Public Law 96-511.</P> <P>(n) <E T="03">Federal real property management.</E> Carry out the functions assigned to the Secretary with respect to Executive Order 12512 of April 28, 1985.</P> <P>(o) <E T="03">The Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, Public Law 91-646, 84 Stat. 1894.</E> Except as provided in §§ 1.45, 1.48 and 49 CFR 25.302, the functions, powers, and duties of the Secretary of Transportation, with respect to the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, are delegated to the Assistant Secretary for Administration with respect to programs administered by the Office of the Secretary. This authority is subject to the requirements listed in § 1.45 that govern all Operating Administrations’ authority with respect to the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970.</P> <P>(p) <E T="03">Regulations.</E> Issue Department of Transportation procurement regulations, subject to the following limitation:</P> <P>(1) <E T="03">Coordination.</E> The views of the General Counsel, the interested administrations and other offices will be solicited in the development of the procurement regulations. In commenting upon proposed provisions for the procurement regulations, the administrations will indicate the nature and purpose of any additional implementing or supplementing policy guidances which they propose to issue at the administration level.</P> <P>(2) [Reserved]</P> <CITA>[Amdt. 1-113, 40 FR 43901, Sept. 24, 1975]</CITA> <EDNOTE> <HD SOURCE="HED">Editorial Note:</HD> <P>For <E T="04">Federal Register</E> citations affecting § 1.59, see the List of CFR Sections Affected which appears in the Finding Aids section of the printed volume and on GPO Access.</P> </EDNOTE> </SECTION> <SECTION> <SECTNO>§ 1.59a</SECTNO> <SUBJECT>Redelegations by the Assistant Secretary for Administration.</SUBJECT> <P>(a) The Assistant Secretary for Administration has redelegated to the Director of Acquisition and Grant Management authority to procure and authorize payment for property and services for the Office of the Secretary, with power to redelegate and authorize successive redelegations.</P> <P>(b) The Assistant Secretary for Administration has redelegated to the Director of Personnel authority to:</P> <P>(1) Conduct a personnel management program for the Office of the Secretary with authority to take, direct others to take, recommend or approve any personnel action with respect to such authority.</P> <P>(2) Develop, coordinate, and issue wage schedules for Department employees under the Federal Wage System, except as delegated to the Commandant of the Coast Guard at § 1.46 of this part.<PRTPAGE P="48"/> </P> <P>(c) The Assistant Secretary for Administration has redelegated to the Director of Financial Management authority to:</P> <P>(1) Designate to the Treasury Department certifying officers and designated agents for the Office of the Secretary and imprest fund cashiers for the Departmental Headquarters.</P> <P>(2) Certify to the validity of obligations as required by 31 U.S.C. 200 and to the adequacy of bond coverage for the designations under section 160(c)(2).</P> <P>(3) Sign reports on Budget Execution as required by OMB Circular A-34 (Revised).</P> <P>(4) Review and approve for payment any voucher for $25 or less the authority for payment of which is questioned by a certifying or disbursing officer.</P> <P>(5) Process essential air service payments.</P> <P>(6) Approve claims of OST employees allowable under 31 U.S.C. 3721 for amounts of $500 or less.</P> <CITA>[Amdt. 1-209, 51 FR 29233, Aug. 15, 1986, as amended by Amdt. 1-232, 54 FR 46616, Nov. 6, 1989]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.60</SECTNO> <SUBJECT>Delegations to the Inspector General.</SUBJECT> <P>The Inspector General is delegated, and has agreed to carry out, the following:</P> <P>(a) <E T="03">Aviation economics.</E> The conduct of audits under 49 U.S.C. 1389; and 49 U.S.C. 1377(e).</P> <P>(b) [Reserved]</P> <CITA>[Amdt. 1-199, 49 FR 50997, Dec. 31, 1984]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.61</SECTNO> <SUBJECT>Delegations to Assistant Secretary for Governmental Affairs.</SUBJECT> <P>The Assistant Secretary for Governmental Affairs is delegated authority to:</P> <P>(a) Establish procedures for responding to Congressional correspondence.</P> <P>(b) Serve as the Department's point of contact in relationships with public and private organizations and groups devoted to consumer and community services or affairs.</P> <P>(c) Serve as coordinator for intra-Departmental consumer affairs programs.</P> <CITA>[Amdt. 1-157, 45 FR 83409, Dec. 18, 1980, as amended by Amdt. 1-199, 49 FR 50997, Dec. 31, 1984; Amdt. 1-205, 50 FR 52468, Dec. 24, 1985; Amdt. 1-269, 60 FR 15877, Mar. 28, 1995]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.62</SECTNO> <SUBJECT>Delegations to the Director of Small and Disadvantaged Business Utilization.</SUBJECT> <P>The Director of Small and Disadvantaged Business Utilization is delegated authority to:</P> <P>(a) Exercise Departmental responsibility for the implementation and execution of functions and duties under sections 8 and 15 of the Small Business Investment Act, as amended (15 U.S.C. 637 and 644).</P> <P>(b) Carry out the functions vested in the Secretary by section 906 of the Railroad Revitalization and Regulatory Reform Act of 1976 (Pub. L. 94-210), as amended.</P> <CITA>[Amdt. 1-157, 45 FR 83409, Dec. 18, 1980]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.63</SECTNO> <SUBJECT>Delegations to Assistant to the Secretary and Director of Public Affairs.</SUBJECT> <P>The Assistant to the Secretary and Director of Public Affairs is delegated authority to:</P> <P>(a) [Reserved]</P> <P>(b) Monitor the overall public information program and review and approve Departmental informational materials having policy-making ramifications before they are printed and disseminated.</P> <P>(c) Carry out the functions vested in the Secretary by section 4(b) (as appropriate) of Executive Order 11912.</P> <P>(d) Carry out the functions to promote carpooling and vanpooling which were vested in the Federal Energy Administration by section 381(b)(1)(B) of the Energy Policy and Conservation Act and transferred to the Department of Transportation by section 310 of the Department of Energy Organization Act of 1977.</P> <CITA>[Amdt. 1-113, 40 FR 43901, Sept. 24, 1975, as amended by Amdt. 1-118, 41 FR 35849, Aug. 25, 1976; Amdt. 1-157, 45 FR 83409, Dec. 18, 1980; Amdt. 1-184, 48 FR 44079, Sept. 27, 1983; Amdt. 1-228, 54 FR 10010, Mar. 9, 1989; Amdt. 1-261, 59 FR 10064, Mar. 3, 1994]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.64</SECTNO> <SUBJECT>Delegations to the Director, Transportation Administrative Service Center.</SUBJECT> <P>The Director, Transportation Administrative Service Center (TASC), is delegated authority to operate the Working Capital Fund (49 U.S.C. 327).</P> <CITA>[Amdt. 1-285, 62 FR 16499, Apr. 7, 1997]</CITA> </SECTION> <SECTION> <PRTPAGE P="49"/> <SECTNO>§ 1.65</SECTNO> <SUBJECT>Authority to classify information.</SUBJECT> <P>(a) E.O. 12356 confers upon the Secretary of Transportation authority to originally classify information as Secret and Confidential with further authorization to delegate this authority. (No official of the Department of Transportation has authority to originally classify information as Top Secret.)</P> <P>(b) The following delegations of this authority, which may not be redelegated, are hereby made:</P> <P>(1) <E T="03">Office of the Secretary (OST).</E> Chief, Security Staff.</P> <P>(2) <E T="03">U.S. Coast Guard (USCG).</E> The Commandant; Chief, Office of Operations.</P> <P>(3) <E T="03">Federal Aviation Administration (FAA).</E> The Administrator; Director of Civil Aviation Security.</P> <P>(4) <E T="03">Maritime Administration (MARAD).</E> The Administrator; Associate Administrator for Policy and Administration (Confidential only); Director, Office of International Activities (Confidential only); Chief, Division of National Security Plans (Confidential only).</P> <P>(c) Authority to originally classify information as Secret or Confidential is delegated to the following officials to become effective automatically upon declaration of civil readiness level Initial Alert or the comparable military readiness level. If invoked, this authority is automatically terminated when both civil and military levels return to the level of Communications Watch or comparable readiness state.</P> <P>(1) <E T="03">OST.</E> Deputy Secretary; Assistant Secretary for Transportation Policy; Assistant Secretary for Aviation and International Affairs; Assistant Secretary for Administration.</P> <P>(2) <E T="03">USCG.</E> Vice Commandant; Chief of Staff; Commander, Atlantic Area; Commander, Pacific Area; Commanders, Coast Guard Districts; Commander, Coast Guard Activities, Europe; Chief, Intelligence and Security Division.</P> <P>(3) <E T="03">FAA.</E> Deputy Administrator; Directors, FAA Regions and Centers.</P> <P>(4) <E T="03">MARAD.</E> Deputy Administrator; Region Directors; Heads of ALFA, BRAVO, and CHARLIE Emergency Teams when activated.</P> <P>(d) Although the delegations of authority are expressed above in terms of positions, the authority is personal and is vested only in the individual occupying the position. The authority may not be exercised “by direction of” a designated official. The formal appointment or assignment of an individual to one of the identified positions, a designation in writing of an individual to act in the absence of one of these officials, or the exercise by an individual of the powers of one of these officials by operation of law, however, conveys the authority to originally classify information.</P> <P>(e) Previous delegations of authority to Department of Transportation officials to originally classify information as Secret and Confidential are hereby rescinded.</P> <CITA>[Amdt. 1-195, 49 FR 26594, June 28, 1984, as amended by Amdt. 1-261, 59 FR 10061, 10064, Mar. 3, 1994]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.66</SECTNO> <SUBJECT>Delegations to Maritime Administrator.</SUBJECT> <P>With the exception of those authorities delegated to the Maritime Subsidy Board in § 1.67 of this title, the Maritime Administrator is delegated authority to:</P> <P>(a) Carry out sections 9, 12, 14a, 21a, 37, 38, 40, 41, and 42 of the Shipping Act, 1916, as amended (46 App. U.S.C. 801 <E T="03">et seq.</E>);</P> <P>(b) Carry out the Merchant Marine Act, 1920, as amended (46 App. U.S.C. 861 <E T="03">et seq.</E>), including the Ship Mortgage Act, 1920, as amended (46 App. U.S.C. 921 <E T="03">et seq.</E>);</P> <P>(c) Carry out the Merchant Marine Act, 1928, as amended (46 App. U.S.C. 891 <E T="03">et seq.</E>);</P> <P>(d) Carry out section 7 of the Intercoastal Shipping Act, 1933, as amended (46 App. U.S.C. 843 <E T="03">et seq.</E>);</P> <P>(e) Carry out the Merchant Marine Act, 1936, as amended (46 App. U.S.C. 1101 <E T="03">et seq.</E>); except the authority delegated to the Administrator of the National Oceanic and Atmospheric Administration relating to the establishment of capital construction fund agreements under section 607 thereof and the granting of financing guarantees under title XI thereof, with respect to vessels in the fishing trade or industry;<PRTPAGE P="50"/> </P> <P>(f) Carry out the Merchant Ship Sales Act of 1946, as amended (50 U.S.C. App. 1735 <E T="03">et seq.</E>);</P> <P>(g) Carry out the Suits in Admiralty Act (1920), as amended (46 App. U.S.C. 741 <E T="03">et seq.</E>);</P> <P>(h) Carry out the Civilian Nautical School Act, 1940 (46 App. U.S.C. 1331 <E T="03">et seq.</E>);</P> <P>(i) Carry out the Act of June 2, 1951 (46 App. U.S.C. 1241a) regarding the “Vessel Operations Revolving Fund”;</P> <P>(j) Carry out the Act of August 9, 1954 (50 U.S.C. 196 <E T="03">et seq.</E>) commonly called the Emergency Foreign Vessels Acquisition Act;</P> <P>(k) Carry out the Merchant Marine Decorations and Medals Act of 1988 (46 App. U.S.C. 2001 <E T="03">et seq</E>.);</P> <P>(l) Carry out the Maritime Academy Act of 1958, as amended (46 App. U.S.C. 1381 <E T="03">et seq.</E>);</P> <P>(m) Carry out the Act of May 16, 1972, as amended (86 Stat. 140) authorizing sale or purchase of certain passenger vessels;</P> <P>(n) Carry out the Act of August 22, 1972 (86 Stat. 618) authorizing sale of Liberty ships for use as artificial reefs;</P> <P>(o) Carry out section 717 of the Act of October 26, 1972 (86 Stat. 1184) commonly known as the Department of Defense Appropriations Act, 1973, and similar subsequent enactments, with respect to transferring or otherwise making available vessels under the jurisdiction of the Maritime Administration to another Federal agency or, similarly, accepting vessels from another Federal agency;</P> <P>(p) Carry out the provisions of sections 10 through 13 of Public Law 103-451, the National Maritime Heritage Act of 1994, 108 Stat. 4769, 4778-4782;</P> <P>(q) Exercise the authority vested in the Administrator of General Services by the Act of June 1, 1948, Public Law 80-566, 62 Stat. 281, 40 U.S.C. 318-318c and the Federal Property and Administrative Services Act of 1949, as amended, 63 Stat. 377, and delegated to the Secretary of Transportation by the Administrator of General Services on March 23, 2000, relating to the enforcement of laws for the protection of property and persons at the United States Merchant Marine Academy, located in Kings Point, New York. This may be accomplished through appointment of uniformed personnel as special police, establishment of rules and regulations governing conduct on the affected property, and execution of agreements with other Federal, State, or local authorities.</P> <P>(r) Carry out the responsibilities of the National Shipping Authority (initially established by the Secretary of Commerce effective March 13, 1951) in the capacity of Director, National Shipping Authority;</P> <P>(s) Carry out the Maritime Education and Training Act of 1980 (46 App. U.S.C. 1295), as amended;</P> <P>(t) Carry out all other activities previously vested in the Secretary of Commerce and transferred pursuant to Public Law 97-31;</P> <P>(u) Carry out the functions vested in the Secretary by section 3(d) of the Act to Prevent Pollution from Ships (33 U.S.C. 1902(d)) as it relates to ships owned or operated by the Maritime Administration when engaged in noncommercial service;</P> <P>(v) Carry out the responsibilities and exercise the authorities of the Secretary of Transportation under the Maritime Security Act of 1996, Public Law 104-239;</P> <P>(w) Carry out the provisions of subtitle B of Public Law 101-624;</P> <P>(x) Carry out the responsibilities and exercise the authorities of the Secretary of Transportation under sections 1008, 1009, and 1013 of Public Law 104-324;</P> <P>(y) Carry out the functions vested in the Secretary by the Oil Pollution Act of 1990 (August 18, 1990; Pub. L. 101-380; 104 Stat. 484) in sections 4115(f) relating to vessel financing and 4117 relating to a feasibility study of an oil pollution prevention program. (See 49 CFR 1.46 and 1.53).</P> <P>(z) Carry out the functions vested in the Secretary by Section 2927, Title XXIX of the National Defense Authorization Act of 1994 (Public Law 103-160; November 30, 1993) relating to authority to convey surplus real property to public entities for use in the development or operation of port facilities.</P> <P>(aa) Carry out the following powers and duties vested in the Secretary by the Deepwater Port Act of 1974, as amended (33 U.S.C. 1501-1524):<PRTPAGE P="51"/> </P> <P>(1) The authority to process applications for the issuance, transfer, or amendment of a license for the construction and operation of a deepwater port (33 U.S.C. 1503(bb)) in coordination with the Commandant of the Coast Guard.</P> <P>(2) Approval of fees charged by adjacent coastal States for use of a deepwater port and directly related land-based facilities (33 U.S.C. 1504(h)(2)).</P> <P>(3) In collaboration with the Assistant Secretary for Aviation and International Affairs and the Assistant Secretary for Transportation Policy, consultation with the Secretary of State relating to international actions and cooperation in the economic, trade and general transportation policy aspects of the ownership and operation of deepwater ports (33 U.S.C. 1510).</P> <P>(4) Submission of notice of the commencement of a civil suit (33 U.S.C. 1515(b)(2)).</P> <P>(5) Intervention in any civil action to which the Secretary is not a party (33 U.S.C. 15150).</P> <P>(6) Authority to request the Attorney General to seek the suspension or termination of a deepwater port license and to initiate a proceeding before the Surface Transportation Board (33 U.S.C. 1507, 1511(a)).</P> <P>(bb) Carry out the functions and exercise the authorities vested in the Secretary by sections 3602, 3603, and 3605 of Public Law 105-261, titled the Strom Thurmond National Defense Authorization; and sections 427 and 428 of Public Law 105-383, titled the Coast Guard Authorization Act of 1998.</P> <P>(cc) Carry out the functions and exercise the authority vested in the Secretary to make the necessary determinations concerning the employment of a vessel under sections 502 and 503 of title V, Pub. L. 105-383, titled the Coast Guard Authorization Act of 1998.</P> <P>(dd) Carry out the functions and exercise the authorities vested in the Secretary by sections 202(b), 203(b), 203(g), and 213(g) of division c, title II, Public Law 105-277, which relate to ownership and control requirements for vessel fishery endorsements for vessels measuring 100 feet and greater.</P> <CITA>[Amdt. 1-164, 46 FR 47459, Sept. 28, 1981]</CITA> <EDNOTE> <HD SOURCE="HED">Editorial Note:</HD> <P>For <E T="04">Federal Register</E> citations affecting § 1.66, see the List of CFR Sections Affected which appears in the Finding Aids section of the printed volume and on GPO Access.</P> </EDNOTE> </SECTION> <SECTION> <SECTNO>§ 1.67</SECTNO> <SUBJECT>Delegations to Maritime Subsidy Board.</SUBJECT> <P>(a) The Maritime Subsidy Board is delegated authority to:</P> <P>(1) Carry out all functions previously vested in the Secretary of Commerce pursuant to section 105(1) (except the last proviso thereto and readjustments in determinations of operating cost differentials not requiring a hearing and contractual changes reducing or realigning service requirements not involving additional subsidy or requiring a section 605(c) hearing under the Act (46 App. U.S.C. 1175(c)), section 105(2), and, insofar as applicable to these functions, section 105(3) of Reorganization Plan No. 21 of 1950, and section 202(b)(1) of Reorganization Plan No. 7 of 1961, except investigations, hearings and determinations, including changes in determinations, with respect to minimum manning scales, minimum wage scales, and minimum working conditions referred to in section 301(a) of the Merchant Marine Act, 1936, as amended (46 App. U.S.C. 1101 <E T="03">et seq.</E>).</P> <P>(2) Carry out all functions previously vested in the Secretary of Commerce pursuant to section 103(e) of Reorganization Plan No. 7 of 1961 and section 202(b)(2) (except requiring the filing of reports, accounts, records, rates, charges, and memoranda under section 21 of the Shipping Act, 1916, as amended, and making reports and recommendations to Congress) and section 202(b)(3) of Reorganization Plan No. 7 of 1961, insofar as said functions relate to the functions described in paragraph (a)(1) of this section.</P> <P>(3) Execute and sign, by and through any member of the Board or the Secretary or an Assistant Secretary of the Board, contracts and other documents authorized or approved by the Board pursuant to paragraphs (a)(1) and (a)(2) of this section. The execution of such contracts or documents may be attested, under the seal of the Department of Transportation, by the Secretary or an Assistant Secretary of the Maritime Subsidy Board.</P> <P>(b) The Maritime Subsidy Board may exercise other authorities of the Secretary of Transportation as applicable <PRTPAGE P="52"/>to performing the functions assigned to the Board in this part.</P> <P>(c) The Board is composed of the Maritime Administrator, the Deputy Maritime Administrator, and the Chief Counsel of the Administration, and during a vacancy in any one of those offices, the person acting in such capacity shall be a member of the Board, unless the Secretary of Transportation designates another person. In case there still is a vacancy in the Board or in the absence or disability of one of its members, the Secretary of the Maritime Administration and Maritime Subsidy Board, or any other persons designated by the Secretary of Transportation, shall act as a member or members of the Board. Each member of the Board, while serving in that capacity, shall act pursuant to direct authority from the Secretary of Transportation and exercise judgment independent of authority otherwise delegated to the Maritime Administrator. The Maritime Administrator or the Acting Maritime Administrator serves as Chairperson of the Board. The concurring votes of two members shall be sufficient for the disposition of any matter which may come before the Board.</P> <P>(d) The Chairperson of the Maritime Subsidy Board may make use of officers and employees of the Maritime Administration to perform activities for the Board. Employees of the Maritime Administration may be designated as the Secretary or Assistant Secretaries of the Board.</P> <CITA>[Amdt. 1-164, 46 FR 47460, Sept. 28, 1981, as amended by Amdt. 1-211, 51 FR 29471, Aug. 18, 1986; Amdt. 1-247, 56 FR 59893, Nov. 26, 1991]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.68</SECTNO> <RESERVED>[Reserved]</RESERVED> </SECTION> <SECTION> <SECTNO>§ 1.69</SECTNO> <SUBJECT>Delegations to the Director of Intelligence and Security.</SUBJECT> <P>The Director of Intelligence and Security is delegated authority to:</P> <P>(a) Carry out the functions assigned to the Secretary by the Aviation Security Improvement Act of 1990, section 101 (Pub. L. 101-508; November 16, 1990) relating to intelligence and security matters for all modes of transportation.</P> <P>(b) [Reserved]</P> <CITA>[Amdt. 1-237, 56 FR 5958, Feb 14, 1991]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.70</SECTNO> <SUBJECT>Delegations to the Director of the Departmental Office of Civil Rights.</SUBJECT> <P>The Director of the Departmental Office of Civil Rights is delegated authority to conduct all stages of the formal internal discrimination complaint process (including the acceptance or rejection of complaints); to provide policy guidance to the operating administrations and Secretarial officers concerning the implementation and enforcement of all civil rights laws, regulations and executive orders for which the Department is responsible; to otherwise perform activities to ensure compliance with external civil rights programs; and to review and evaluate the operating administrations’ enforcement of these authorities.</P> <P>These authorities include:</P> <P>(a) Title VII of the Civil Rights Act of 1964, <E T="03">as amended,</E> 42 U.S.C. 2000e <E T="03">et seq.</E> </P> <P>(b) Title VI of the Civil Rights Act of 1964, <E T="03">as amended,</E> 42 U.S.C. 2000d <E T="03">et seq.</E> </P> <P>(c) Section 504 of the Rehabilitation Act of 1973, <E T="03">as amended,</E> 29 U.S.C. 794 and 794a.</P> <P>(d) Section 501 of the Rehabilitation Act of 1973, <E T="03">as amended,</E> 29 U.S.C. 791.</P> <P>(e) Age Discrimination in Employment Act of 1967, <E T="03">as amended,</E> 29 U.S.C. 621 <E T="03">et seq.</E> </P> <P>(f) Age Discrimination Act of 1975, <E T="03">as amended,</E> 42 U.S.C. 6101.</P> <P>(g) Americans with Disabilities Act of 1990, Pub. L. No. 101-336, 104 Stat. 327 (1990) (codified at 42 U.S.C. 12101-121213).</P> <P>(h) Equal Pay Act of 1963 (enacted as section 6(d) of the Fair Labor Standards Act of 1938, 29 U.S.C. 206(d)).</P> <P>(i) Alcohol, Drug Abuse, and Mental Health Administration Reorganization Act, 42 U.S.C. 290dd(b).</P> <P>(j) 29 CFR Parts 1600 through 1691 (Equal Employment Opportunity Commission Regulations).</P> <P>(k) Department of Transportation Coast Guard Military Justice Manual, CG-488, Part 700-9 (Civil Rights Complaints).</P> <P>(l) Title VIII of the Civil Rights Act of 1968, <E T="03">as amended,</E> 42 U.S.C. 3601 <E T="03">et seq.</E> (fair housing provisions).</P> <P>(m) The Federal Property and Administrative Services Act of 1949, 40 U.S.C. 476.<PRTPAGE P="53"/> </P> <P>(n) Title IX of the Education Amendments Act of 1972, 20 U.S.C. 1681.</P> <P>(o) Executive Order No. 12898, Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations. (In coordination with the Assistant Secretary for Transportation Policy.)</P> <P>(p) 49 U.S.C. 47113, 47107, and 47123 (formerly sections 505(f), 511(a)(17), and 520 of the Airport and Airway Improvement Act of 1982, <E T="03">as amended</E>).</P> <P>(q) 49 U.S.C. 41705 (formerly the Air Carrier Access Act of 1986, <E T="03">as amended</E>).</P> <P>(r) The Federal-Aid Highway Act, <E T="03">as amended,</E> 23 U.S.C. 140 and 324.</P> <P>(s) 49 U.S.C. 306.</P> <P>(t) 49 U.S.C. 5310, 5332 (formerly sections 16 and 19 of the Federal Transit Act, <E T="03">as amended</E>).</P> <P>(u) The Intermodal Surface Transportation Efficiency Act of 1991, Pub. L. 102-240, 105 Stat. 1919, section 1003.</P> <P>(v) The Highway Safety Act of 1966, <E T="03">as amended,</E> 23 U.S.C. 402(b)(1)(D).</P> <CITA>[Amdt. 265, 60 FR 2891, Jan. 12, 1995]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.71</SECTNO> <SUBJECT>Delegations to the Director of the Bureau of Transportation Statistics.</SUBJECT> <P>The Director of the Bureau of Transportation Statistics is delegated authority to exercise powers and perform duties under the following statutes:</P> <P>(a) <E T="03">Aviation information.</E> (1) 49 U.S.C. 329(b)(1), relating to collection and dissemination of information on civil aeronautics;</P> <P>(2) Section 4(a)(7) of the Civil Aeronautics Board Sunset Act of 1984 (October 4, 1984; Pub. L. 98-443), relating to the reporting of the extension of unsecured credit to political candidates (section 401, Federal Election Campaign Act of 1971; 2 U.S.C. 451), in conjunction with the General Counsel and the Assistant Secretary for Aviation and International Affairs; and</P> <P>(3) 49 U.S.C. 40113 (relating to taking such actions and issuing such regulations as may be necessary to carry out responsibilities under the Act), 49 U.S.C. 41702 (relating to the duty of carriers to provide safe and adequate service), 49 U.S.C. 41708 and 41709 (relating to the requirement to keep information and the forms in which it is to be kept), and 49 U.S.C. 41701 (relating to establishing just and reasonable classifications of carriers and rules to be followed by each) as appropriate to carry out the responsibilities under this paragraph in conjunction with the General Counsel and the Assistant Secretary for Aviation and International Affairs.</P> <P>(b) <E T="03">Motor carrier information.</E> 49 U.S.C. 14123, relating to the collection and dissemination of information on motor carriers.</P> <P>(c) <E T="03">Hazardous materials information.</E> In coordination with the Associate Deputy Secretary and Director, Office of Intermodalism, work with the Operating Administrations to determine data needs, collection strategies, and analytical techniques appropriate for implementing 49 U.S.C. 5101 <E T="03">et seq.</E> </P> <CITA>[Amdt. 1-270, 60 FR 30196, June 8, 1995, as amended by Amdt. 282, 61 FR 68163, Dec. 27, 1996; 65 FR 49765, Aug. 15, 2000]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.72</SECTNO> <SUBJECT>Delegations to the Office of the Chief Information Officer.</SUBJECT> <P>(a) Carry out all functions and responsibilities assigned to the Secretary with respect to the Paperwork Reduction Act of 1995 (44 U.S.C. 3506);</P> <P>(b) Carry out all functions and responsibilities assigned to the Secretary with respect to the Clinger-Cohen Act of 1996 (40 U.S.C. 1422 to 1424, 1427);</P> <P>(c) Carry out all functions and responsibilities assigned to the Secretary with respect to the Computer Security Act of 1987 (40 U.S.C. 759, 759 notes);</P> <P>(d) Approve waivers to Federal Information Processing Standards (FIPS) under Section 5131 of the Clinger-Cohen Act of 1996 (40 U.S.C. 1441); and</P> <P>(e) Carry out all the functions and responsibilities assigned to the Secretary with respect to Executive Order 13011, Federal Information Technology, Section 2, paragraphs (a), (b), (d), (e), and (f).</P> <CITA>[Amdt. 1-290, 62 FR 51804, Oct. 3, 1997]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.73</SECTNO> <SUBJECT>Delegation to the Administrator of the Federal Motor Carrier Safety Administration.</SUBJECT> <P>The Administrator of the Federal Motor Carrier Safety Admnistration is delegated authority to:</P> <P>(a) Carry out the functions and exercise the authority vested in the Secretary by 49 U.S.C., Subtitle IV, part B:<PRTPAGE P="54"/> </P> <P>(1) Chapter 131, relating to general provisions on transportation policy;</P> <P>(2) Chapter 133, relating to administrative provisions;</P> <P>(3) Chapter 135, relating to jurisdiction;</P> <P>(4) Chapter 137, sections 13702(a), 13702(c)(1), 13702(c)(2), 13702(c)(3), 13704, 13707, and 13708, relating to rates, routes, and services;</P> <P>(5) Chapter 139, relating to registration and financial responsibility requirements;</P> <P>(6) Chapter 141, subchapter I and sections 14121 and 14122 of subchapter II, relating to operations of motor carriers;</P> <P>(7) Chapter 145, sections 14501, 14502, and 14504, relating to Federal-State relations;</P> <P>(8) Chapter 147, sections 14701 through 14708, relating to enforcement remedies, investigations, and motor carrier liability; and</P> <P>(9) Chapter 149, sections 14901 through 14913, relating to civil and criminal penalties for violations of 49 U.S.C., Subtitle IV, part B.</P> <P>(b) Carry out the functions and exercise the authority vested in the Secretary by sections 104, 403(a), and 408 of the ICC Termination Act of 1995, Public Law 104-88, 109 Stat. 803, relating to miscellaneous motor carrier provisions, railroad-highway grade crossing regulation and fatigue-related issues pertaining to commercial motor vehicle safety.</P> <P>(c) Carry out the functions vested in the Secretary by 42 U.S.C. 4917 relating to procedures for the inspection, surveillance and measurement of commercial motor vehicles for compliance with interstate motor carrier noise emission standards and related enforcement activities including the promulgation of necessary regulations.</P> <P>(d)(1) Except as delegated by § 1.74, carry out the functions vested in the Secretary by 49 U.S.C. 5121(a), (b) and (c), 5122, 5123, and 5124 relating to investigations, records, inspections, penalties, and specific relief with particular emphasis on the transportation or shipment of hazardous materials by highway, including the manufacture, fabrication, marking, maintenance, reconditioning, repair or test of containers which are represented, marked, certified, or sold for use in the bulk transportation of hazardous materials by highway.</P> <P>(2) Carry out the functions vested in the Secretary by 49 U.S.C. 5103a relating to limitations on issuance of licenses to operate motor vehicles transporting hazardous materials in commerce; 49 U.S.C. 5112 relating to highway routing of hazardous materials; 49 U.S.C. 5109 relating to motor carrier safety permits, except subsection (f); 49 U.S.C. 5113 relating to unsatisfactory safety ratings of motor carriers; 49 U.S.C. 5125(a) and (c)-(f), relating to preemption determinations or waivers of preemption of hazardous materials highway routing requirements; 49 U.S.C. 5105(e) relating to inspections of motor vehicles carrying hazardous material; and 49 U.S.C. 5119 relating to uniform forms and procedures.</P> <P>(e) Carry out the functions vested in the Secretary by 49 U.S.C. chapter 313 relating to commercial motor vehicle operators.</P> <P>(f) Carry out the functions vested in the Secretary by 49 U.S.C. 13906, 31138 and 31139 relating to financial responsibility requirements for motor carriers, brokers, and freight forwarders.</P> <P>(g) Carry out the functions vested in the Secretary by subchapters I and III of chapter 311, title 49, U.S.C., relating to commercial motor vehicle programs and safety regulation, except that the authority to promulgate safety standards for commercial motor vehicles and equipment subsequent to initial manufacture is limited to standards that are not based upon and similar to a Federal Motor Vehicle Safety Standard promulgated under chapter 301 of title 49, U.S.C.</P> <P>(h) Carry out the functions vested in the Secretary by 49 U.S.C. 5708 relating to food transportation inspections; 5710 relating to the Secretary's powers to administer the sanitary food transportation regulations; 5711 relating to enforcement of sanitary food transportation regulations and applicable penalties; 5712 and 5714 relating to Federal-State relations; and 5113 and 31144 relating to safety fitness of owners and operators.</P> <P>(i) Carry out the functions vested in the Secretary by 49 U.S.C. 5118 relating to the use of inspectors to promote <PRTPAGE P="55"/>safety in the highway transportation of radioactive material; and 49 U.S.C. 31142(f) relating to application of State regulations to government-leased vehicles and operators.</P> <P>(j) Carry out the functions and exercise the authority delegated to the Secretary in section 2(d)(2) of Executive Order 12777 (3 CFR, 1992 Comp., p. 351), with respect to highway transportation, relating to the approval of means to ensure the availability of private personnel and equipment to remove, to the maximum extent practicable, a worst case discharge, the review and approval of response plans, and the authorization of motor carriers, subject to the Federal Water Pollution Control Act (33 U.S.C. 1321), to operate without approved response plans, except as delegated in 49 CFR 1.46(m).</P> <P>(k) Carry out 49 U.S.C. 31503 as it relates to investigation of the need for regulation of qualifications and maximum hours of service of employees of motor carriers and motor private carriers.</P> <P>(l) Carry out 49 U.S.C. 31502 relating generally to qualifications and maximum hours of service of employees and safety of operation and equipment of motor carriers, motor private carriers and motor carriers of migrant workers, except that the authority to promulgate safety standards for commercial motor vehicles and equipment subsequent to initial manufacture is limited to standards that are not based upon and similar to a Federal Motor Vehicle Safety Standard promulgated under chapter 301 of title 49, U.S.C.</P> <P>(m) Carry out 49 U.S.C. 503 and 31504 relating generally to service of process, designation of agents to receive service of process, and identification of interstate motor vehicles so far as they pertain to motor private carriers of property and motor carriers of migrant workers (except motor contract carriers).</P> <P>(n) Carry out 49 U.S.C. 502, 504, 506, and 523 to the extent they relate to motor carriers, motor carriers of migrant workers, and motor private carriers; 49 U.S.C. 507 to the extent it relates to motor carriers, motor carries of migrant workers, motor private carriers, or freight forwarders; and 49 U.S.C. 505, 508, and 521(b)(1), (2), (3), (4), (5), and (7).</P> <P>(o) Carry out the functions and exercise the authority vested in the Secretary by 23 U.S.C. 502(a)(1)(A).</P> <CITA>[64 FR 56270, Oct. 19, 1999, as amended at 64 FR 58357, Oct. 29, 1999; 65 FR 221, Jan. 4, 2000; 65 FR 41015, July 3, 2000; 65 FR 49765, Aug. 15, 2000; 67 FR 11582, Mar. 15, 2002]</CITA> </SECTION> <SECTION> <SECTNO>§ 1.74</SECTNO> <SUBJECT>Delegations to the Associate Deputy Secretary and Director, Office of Intermodalism.</SUBJECT> <P>The Associate Deputy Secretary and Director, Office of Intermodalism is delegated authority under the Federal hazardous material transportation law, 49 U.S.C. 5101 <E T="03">et seq.</E>, to:</P> <P>(a) Serve as the principal adviser to the Secretary on all intermodal and cross-modal hazardous materials matters;</P> <P>(b) Act as the focal point for review of hazardous materials policies, priorities, and objectives;</P> <P>(c) Provide oversight for planning and budgeting strategies for all departmental hazardous materials activities;</P> <P>(d) Resolve disputes among Operating Administrations on hazardous materials issues;</P> <P>(e) Provide external reviews and continual monitoring of all departmental hazardous materials activities;</P> <P>(f) In coordination with the Assistant Secretary for Budget and Programs, direct that the Operating Administrations apply resources to specific cross-modal initiatives;</P> <P>(g) Coordinate DOT-wide hazardous materials outreach and data activities; and</P> <P>(h) Address other regulatory and programmatic cross-modal issues related to hazardous materials as warranted.</P> <CITA>[65 FR 49765, Aug. 15, 2000]</CITA> </SECTION> <APPENDIX> <EAR>Pt. 1, App. A</EAR> <HD SOURCE="HED">Appendix A to Part 1—Delegations and Redelegations by Secretarial Officers</HD> <P>1. <E T="03">Director of Budget.</E> The Assistant Secretary for Budget and Programs has redelegated to the Director of Budget authority to:</P> <P>(a) Request apportionment and reapportionment of funds by the Office of Management and Budget, provided that no request for apportionment or reapportionment which anticipates the need for a supplemental appropriation shall be submitted to the Office <PRTPAGE P="56"/>of Management and Budget without appropriate certification by the Secretary.</P> <P>(b) Issue allotments or allocations of funds to components of the Department.</P> <P>2. <E T="03">Chief Counsel, U.S. Coast Guard.</E> (a) The General Counsel, as Judge Advocate General for the U.S. Coast Guard, has delegated to the Chief Counsel, U.S. Coast Guard, pursuant to the Uniform Code of Military Justice, chapter 47 of title 10, United States Code, authority to exercise the following powers and duties:</P> <P>(1) The authority to recommend assignment for duty of judge advocates under Article 6(a), section 806(a) of title 10, United States Code.</P> <P>(2) The authority to make field inspections in connection with the administration of military justice under Article 6(a) section 806(a) of Title 10, United States Code.</P> <P>(3) The authority to designate military judges; to make assignments of, and exercise direct responsibility for, military judges; and to assign, or approve the performance of, other duties of a judicial or nonjudicial nature by military judges under Article 26(c), section 826(c) of title 10, United States Code.</P> <P>(4) The authority to forward to a Court of Military Review records that must be referred to a Court of Military Review under Article 66(b), section 866(b) of title 10, United States Code.</P> <P>(5) The authority to instruct the convening authority to take action in accordance with the decision of the Court of Military Review or dismiss the charges under Article 66(e), section 866(e) of title 10, United States Code.</P> <P>(6) The authority to modify or vacate findings and sentences in cases not reviewed by a Court of Military Review under Article 69, section 869 of title 10, United States Code.</P> <P>(7) The authority to certify counsel as competent to perform the duties of trial counsel and defense counsel of a general court-martial under 10 U.S.C. 827(b), Art. 27(b) UCMJ.</P> <P>(8) The authority to detail appellate Government counsel and appellate defense counsel to perform duties in connection with the review of court-martial cases by the Court of Military Review, the Court of Military Appeals and the Supreme Court.</P> <P>(9) The authority to perform any other duty and exercise any other power which the General Counsel is authorized or required to perform under the Uniform Code of Military Justice or the Manual for Courts-Martial, with the exception of the following which are reserved to the General Counsel or his or her delegatee within the Office of the General Counsel:</P> <P>(i) Authority to certify commissioned officers as qualified for duty as military judges under Article 26(b), section 826(b) of title 10, United States Code.</P> <P>(ii) Authority to establish a Court of Military Review and designate a chief judge of the court under Article 66(a), section 866(a) of title 10, United States Code.</P> <P>(iii) Authority to order cases sent to the Court of Military Appeals under Article 67(b)(2), section 867(b)(2) of title 10, United States Code.</P> <P>(iv) Authority to examine records of general courts-martial not reviewed under Article 66, section 866 of title 10, United States Code, and modify or set aside the findings or the sentence, or refer the record to the Court of Military Review under Article 69(a), section 869(a) of title 10, United States Code.</P> <P>(v) Authority to prescribe rules not inconsistent with the Manual for Courts-Martial to govern the professional supervision and discipline of military trial and appellate judges, judge advocates, and other lawyers who practice in proceedings governed by the UCMJ and Manual for Courts-Martial.</P> <P>(vi) Authority to make the recommendation of the Judge Advocate General in a court-martial case requiring approval by the Secretary or the President.</P> <P>(vii) Authority to approve a vacation of supension of dismissal of military personnel.</P> <P>(b) The authority delegated by paragraph (a)(3) of this section may be redelegated only to the Deputy Chief Counsel.</P> <P>(c) The Chief Counsel shall make an annual summary report of his actions taken under paragraph (a)(6) of this section of this delegation to the General Counsel of the Department of Transportation (including the number of cases subject to that authority, the number of applications for review filed, and the disposition thereof) for inclusion, as appropriate, in the Judge Advocates General and Court of Military Appeals report to Congress required by Article 67(g), section 867(g) of title 10, United States Code.</P> <P>3. <E T="03">Chief Counsels.</E> The General Counsel has delegated to the Chief Counsels the authority delegated to the General Counsel by Amendment 1-41 to part 1 of title 49, Code of Federal Regulations, 35 FR 17653, November 17, 1970, as follows:</P> <P>Section 855 of the Revised Statutes, as amended by Public Law 91-393, 84 Stat. 835 (40 U.S.C. 255) authorizes the Attorney General to delegate to other departments and agencies his authority to give written approval of the sufficiency to the title to land being acquired by the United States. The Attorney General has delegated to the Assistant Attorney General in charge of the Land and Natural Resources Division the authority to make delegations under that law to other Federal departments and agencies (35 FR 16084; 28 CFR 0.66). The Assistant Attorney General, Land and Natural Resources Division, has further delegated certain responsibilities in connection with the approval of the sufficiency of the title to land to the Department of Transportation as follows:<PRTPAGE P="57"/> </P> <HD SOURCE="HD1">delegation to the department of transportation for the approval of the title to lands being acquired for federal public purposes</HD> <P>Pursuant to the provision of Public Law 91-393, approved September 1, 1970, 84 Stat. 835, amending R.S. 355 (40 U.S.C. 255), and acting under the provisions of Order No. 440-70 of the Attorney General, dated October 2, 1970, the responsibility for the approval of the sufficiency of the title to land for the purpose for which the property is being acquired by purchase or condemnation by the United States for the use of your Department is, subject to the general supervision of the Attorney General and to the following conditions, hereby delegated to your Department.</P> <P>This delegation of authority is further subject to:</P> <P>1. Compliance with the regulations issued by the Assistant Attorney General on October 2, 1970, a copy of which is enclosed.</P> <P>2. This delegation is limited to:</P> <P>(a) The acquisition of land for which the title evidence, prepared in compliance with these regulations, consists of a certificate of title, title insurance policy, or an owner's duplicate Torrens certificate of title.</P> <P>(b) The acquisition of lands valued at $100,000 or less, for which the title evidence consists of abstracts of title or other types of title evidence prepared in compliance with said regulations.</P> <P>As stated in the above-mentioned Act, any Federal department or agency which has been delegated the responsibility to approve land titles under the Act may request the Attorney General to render his opinion as to the validity of the title to any real property or interest therein, or may request the advice or assistance of the Attorney General in connection with determinations as to the sufficiency of titles.</P> <P>The Chief Counsels of the United States Coast Guard, Federal Aviation Administration, Federal Highway Administration, Federal Railroad Administration, National Highway Traffic Safety Administration, Urban Mass Transportation Administration, the St. Lawrence Seaway Development Corporation, Maritime Administration, and Research and Special Programs Administration are hereby authorized to approve the sufficiency of the title to land being acquired by purchase or condemnation by the United States for the use of their respective organizations. This delegation is subject to the limitations imposed by the Assistant Attorney General, Land and Natural Resources Division, in his delegation to the Department of Transportation. Redelegation of this authority may only be made by the Chief Counsels to attorneys within their respective organizations.</P> <P>If his organization does not have an attorney experienced and capable in the examination of title evidence, a Chief Counsel may, with the concurrence of the General Counsel, request the Attorney General to (1) furnish an opinion as to the validity of a title to real property or interest therein, or (2) provide advice or assistance in connection with determining the sufficiency of the title.</P> <SECAUTH>(49 CFR 1.45(a) and 1.53(a); 49 U.S.C. 322)</SECAUTH> <CITA>[Amdt. 1-113, 40 FR 43901, Sept. 24, 1975]</CITA> <EDNOTE> <HD SOURCE="HED">Editorial Note:</HD> <P>For <E T="04">Federal Register</E> citations affecting appendix A to part 1, see the List of CFR Sections Affected which appears in the Finding Aids section of the printed volume and on GPO Access.</P> </EDNOTE> </APPENDIX> </SUBPART> </PART> <PART> <EAR>Pt. 3</EAR> <HD SOURCE="HED">PART 3—OFFICIAL SEAL</HD> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>49 U.S.C. 102(e).</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>Amdt. 3-3, 45 FR 75666, Nov. 17, 1980, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 3.1</SECTNO> <SUBJECT>Description.</SUBJECT> <P>The official seal of the Department of Transportation is described as follows: A white abstract triskelion figure signifying motion appears within a circular blue field. The figure is symmetrical. The three branches of the figure curve outward in a counter-clockwise direction, each tapering almost to a point at the edge of the field. Surrounding the blue circle is a circular ring of letters. The upper half of the ring shows the words “Department of Transportation”. The lower half of the ring shows the words “United States of America”. The letters may be shown in either black or medium gray. The official seal of the Department is modified when embossed. It appears below in black and white.</P> <GPH DEEP="162" SPAN="1"> <PRTPAGE P="58"/> <GID>EC02FE91.096</GID> </GPH> </SECTION> </PART> <PART> <EAR>Pt. 5</EAR> <HD SOURCE="HED">PART 5—RULEMAKING PROCEDURES</HD> <CONTENTS> <SUBPART> <HD SOURCE="HED">Subpart A—General</HD> <SECHD>Sec.</SECHD> <SECTNO>5.1</SECTNO> <SUBJECT>Applicability.</SUBJECT> <SECTNO>5.3</SECTNO> <SUBJECT>Initiation of rulemaking.</SUBJECT> <SECTNO>5.5</SECTNO> <SUBJECT>Participation by interested persons.</SUBJECT> <SECTNO>5.7</SECTNO> <SUBJECT>Regulatory docket.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Petitions for Rulemaking or Exemptions</HD> <SECTNO>5.11</SECTNO> <SUBJECT>Filing of petitions.</SUBJECT> <SECTNO>5.13</SECTNO> <SUBJECT>Processing of petitions.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—Procedures</HD> <SECTNO>5.21</SECTNO> <SUBJECT>General.</SUBJECT> <SECTNO>5.23</SECTNO> <SUBJECT>Contents of notices.</SUBJECT> <SECTNO>5.25</SECTNO> <SUBJECT>Petitions for extension of time to comment.</SUBJECT> <SECTNO>5.27</SECTNO> <SUBJECT>Consideration of comments received.</SUBJECT> <SECTNO>5.29</SECTNO> <SUBJECT>Additional rulemaking proceedings.</SUBJECT> <SECTNO>5.31</SECTNO> <SUBJECT>Hearings.</SUBJECT> <SECTNO>5.33</SECTNO> <SUBJECT>Adoption of final rules.</SUBJECT> <APP>Appendix A to Part 5</APP> </SUBPART> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>Sec. 9, 80 Stat. 944 (49 U.S.C. 1657).</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>32 FR 10363, July 14, 1967, unless otherwise noted.</P> </SOURCE> <SUBPART> <HD SOURCE="HED">Subpart A—General</HD> <SECTION> <SECTNO>§ 5.1</SECTNO> <SUBJECT>Applicability.</SUBJECT> <P>(a) This part prescribes general rulemaking procedures that apply to the issue, amendment, and repeal of rules of the Secretary of Transportation. It does not apply to rules issued by the National Transportation Safety Board, U.S. Coast Guard, Federal Aviation Administration, Federal Highway Administration, Federal Railroad Administration, Urban Mass Transportation Administration, National Highway Traffic Safety Administration, or St. Lawrence Seaway Development Corporation.</P> <P>(b) For the purposes of this part, <E T="03">Secretary</E> means the Secretary of Transportation or the Under Secretary of Transportation, or any of the following to whom the Secretary has delegated authority to conduct rulemaking proceedings:</P> <P>(1) Any Assistant Secretary.</P> <P>(2) The General Counsel.</P> <FP>Any of these officers may redelegate that authority to the head of any office who reports to him.</FP> <P>(c) Records relating to rulemaking proceedings are available for inspection as provided in part 7 of this subtitle.</P> <CITA>[32 FR 10363, July 14, 1967, as amended by Amdt. 5-2, 35 FR 5331, Mar. 31, 1970; Amdt. 5-3, 36 FR 430, Jan. 13, 1971]</CITA> </SECTION> <SECTION> <SECTNO>§ 5.3</SECTNO> <SUBJECT>Initiation of rulemaking.</SUBJECT> <P>The Secretary initiates rulemaking on his own motion. However, in doing so, he may, in his discretion, consider the recommendations of other agencies of the United States and of other interested persons.</P> </SECTION> <SECTION> <SECTNO>§ 5.5</SECTNO> <SUBJECT>Participation by interested persons.</SUBJECT> <P>Any person may participate in rulemaking proceedings by submitting written information or views. The Secretary may also allow any person to participate in additional rulemaking proceedings, such as informal appearances or hearings, held with respect to any rule.</P> </SECTION> <SECTION> <SECTNO>§ 5.7</SECTNO> <SUBJECT>Regulatory docket.</SUBJECT> <P>(a) Records of the Office of the Secretary of Transportation concerning rulemaking actions, including notices of proposed rule making, comments received in response to those notices, petitions for rulemaking or exemption, petitions for rehearing or reconsideration, grants and denials of exemptions, denials of petitions for rule making, and final rules are maintained in <PRTPAGE P="59"/>current docket form in the Office of the General Counsel.</P> <P>(b) Any person may examine any docketed material at that office and may obtain a copy of any docketed material upon payment of the prescribed fee.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Petitions for Rulemaking or Exemptions</HD> <SECTION> <SECTNO>§ 5.11</SECTNO> <SUBJECT>Filing of petitions.</SUBJECT> <P>(a) Any person may petition the Secretary to issue, amend, or repeal a rule, or for a permanent or temporary exemption from any rule.</P> <P>(b) Each petition filed under this section must:</P> <P>(1) Be submitted in duplicate to the Docket Clerk, Office of the General Counsel, Department of Transportation, Washington, DC 20590;</P> <P>(2) Set forth the text or substance of the rule or amendment proposed, or of the rule from which the exemption is sought, or specify the rule that the petitioner seeks to have repealed, as the case may be;</P> <P>(3) Explain the interest of the petitioner in the action requested including, in the case of a petition for an exemption, the nature and extent of the relief sought and a description of the persons to be covered by the exemption;</P> <P>(4) Contain any information and arguments available to the petitioner to support the action sought; and</P> <P>(5) In the case of a petition for exemption, unless good cause is shown in that petition, be submitted at least 60 days before the proposed effective date of the exemption.</P> </SECTION> <SECTION> <SECTNO>§ 5.13</SECTNO> <SUBJECT>Processing of petitions.</SUBJECT> <P>(a) <E T="03">General.</E> Each petition received under § 5.11 of this part is referred to the head of the office responsible for the subject matter of that petition. No public hearing, argument, or other proceeding is held directly on a petition before its disposition under this section.</P> <P>(b) <E T="03">Grants.</E> If the Secretary determines that the petition contains adequate justification, he initiates rulemaking action under subpart C of this part or grants the exemption, as the case may be.</P> <P>(c) <E T="03">Denials.</E> If the Secretary determines that the petition does not justify initiating rule-making action or granting the exemption, he denies the petition.</P> <P>(d) <E T="03">Notification.</E> Whenever the Secretary determines that a petition should be granted or denied, the office concerned and the Office of the General Counsel prepare a notice of that grant or denial for issuance to the petitioner, and the Secretary issues it to the petitioner.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—Procedures</HD> <SECTION> <SECTNO>§ 5.21</SECTNO> <SUBJECT>General.</SUBJECT> <P>(a) Unless the Secretary finds, for good cause, that notice is impractical, unnecessary, or contrary to the public interest, a notice of proposed rule making is issued and interested persons are invited to participate in the rulemaking proceedings with respect to each substantive rule.</P> <P>(b) Unless the Secretary determines that notice and public rulemaking proceedings are necessary or desirable, interpretive rules, general statements of policy, and rules relating to organization, procedure, or practice are prescribed as final without notice or other public rulemaking proceedings.</P> <P>(c) In his discretion, the Secretary may invite interested persons to participate in the rulemaking proceedings described in § 5.29 of this subpart.</P> </SECTION> <SECTION> <SECTNO>§ 5.23</SECTNO> <SUBJECT>Contents of notices.</SUBJECT> <P>(a) Each notice of proposed rulemaking is published in the <E T="04">Federal Register,</E> unless all persons subject to it are named and are personally served with a copy of it.</P> <P>(b) Each notice, whether published in the <E T="04">Federal Register</E> or personally served, includes:</P> <P>(1) A statement of the time, place, and nature of the proposed rule-making proceeding;</P> <P>(2) A reference to the authority under which it is issued;</P> <P>(3) A description of the subjects or issues involved or the substance or terms of the proposed rule;</P> <P>(4) A statement of the time within which written comments must be submitted and the required number of copies; and<PRTPAGE P="60"/> </P> <P>(5) A statement of how and to what extent interested persons may participate in the proceeding.</P> </SECTION> <SECTION> <SECTNO>§ 5.25</SECTNO> <SUBJECT>Petitions for extension of time to comment.</SUBJECT> <P>(a) Any person may petition the Secretary for an extension of time to submit comments in response to a notice of proposed rulemaking. The petition must be submitted in duplicate not later than 3 days before expiration of the time stated in the notice. The filing of the petition does not automatically extend the time for petitioner's comments.</P> <P>(b) The Secretary grants the petition only if the petitioner shows a substantive interest in the proposed rule and good cause for the extension, and if the extension is in the public interest. If an extension is granted, it is granted as to all persons and is published in the <E T="04">Federal Register</E>.</P> </SECTION> <SECTION> <SECTNO>§ 5.27</SECTNO> <SUBJECT>Consideration of comments received.</SUBJECT> <P>All timely comments are considered before final action is taken on a rule-making proposal. Late filed comments may be considered so far as possible without incurring additional expense or delay.</P> </SECTION> <SECTION> <SECTNO>§ 5.29</SECTNO> <SUBJECT>Additional rulemaking proceedings.</SUBJECT> <P>The Secretary may initiate any further rulemaking proceedings that he finds necessary or desirable. For example, he may invite interested persons to present oral arguments, participate in conferences, appear at informal hearings, or participate in any other proceeding.</P> </SECTION> <SECTION> <SECTNO>§ 5.31</SECTNO> <SUBJECT>Hearings.</SUBJECT> <P>(a) Sections 556 and 557 of title 5, United States Code, do not apply to hearings held under this part. As a fact-finding proceeding, each hearing is nonadversary and there are no formal pleadings or adverse parties. Any rule issued in a case in which a hearing is held is not necessarily based exclusively on the record of the hearing.</P> <P>(b) The Secretary designates a representative to conduct any hearing held under this part. The General Counsel designates a member of his staff to serve as legal officer at the hearing.</P> </SECTION> <SECTION> <SECTNO>§ 5.33</SECTNO> <SUBJECT>Adoption of final rules.</SUBJECT> <P>Final rules are prepared by representatives of the office concerned and the Office of the General Counsel. The rule is then submitted to the Secretary for his consideration. If the Secretary adopts the rule, it is published in the <E T="04">Federal Register</E>, unless all persons subject to it are named and are personally served with a copy of it.</P> </SECTION> <APPENDIX> <EAR>Pt. 5, App. A</EAR> <HD SOURCE="HED">Appendix A to Part 5</HD> <P>Pursuant to § 5.1(b), the following officials of the Office of the Secretary of Transportation are authorized to conduct rulemaking proceedings under this part, as specified in this appendix:</P> <P>(1) The General Counsel is authorized to conduct all rule-making proceedings, except the issuance of final rules, under the Act of March 19, 1918, ch. 24, as amended (15 U.S.C. 261-264); the Uniform Time Act of 1966 (80 Stat. 107, 15 U.S.C. 260-267); and section 6(e)(5) of the Department of Transportation Act (80 Stat. 939, 49 U.S.C. 1655 (e)(5)).</P> <P>(2) The General Counsel is authorized to determine the practicability of applying the standard time of any standard time zone to the movements of any common carrier engaged in interstate or foreign commerce, and, under section 2 of the Act of March 19, 1918, ch. 24, as amended (15 U.S.C. 262), to issue operating exceptions in any case in which he determines that it is impractical to apply the standard time.</P> <CITA>[Amdt. 5-1, 32 FR 11473, Aug. 9, 1967]</CITA> </APPENDIX> </SUBPART> </PART> <PART> <EAR>Pt. 6</EAR> <HD SOURCE="HED">PART 6—IMPLEMENTATION OF EQUAL ACCESS TO JUSTICE ACT IN AGENCY PROCEEDINGS</HD> <CONTENTS> <SUBPART> <HD SOURCE="HED">Subpart A—General Provisions</HD> <SECHD>Sec.</SECHD> <SECTNO>6.1</SECTNO> <SUBJECT>Purpose of these rules.</SUBJECT> <SECTNO>6.3</SECTNO> <SUBJECT>Applicability.</SUBJECT> <SECTNO>6.5</SECTNO> <SUBJECT>Proceedings covered.</SUBJECT> <SECTNO>6.7</SECTNO> <SUBJECT>Eligibility of applications.</SUBJECT> <SECTNO>6.9</SECTNO> <SUBJECT>Standards for awards.</SUBJECT> <SECTNO>6.11</SECTNO> <SUBJECT>Allowable fees and expenses.</SUBJECT> <SECTNO>6.13</SECTNO> <SUBJECT>Delegations of authority.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Information Required from Applicants</HD> <SECTNO>6.17</SECTNO> <SUBJECT>Contents of application.</SUBJECT> <SECTNO>6.19</SECTNO> <SUBJECT>Net worth exhibit.</SUBJECT> <SECTNO>6.21</SECTNO> <SUBJECT>Documentation of fees and expenses.</SUBJECT> </SUBPART> <SUBPART> <PRTPAGE P="61"/> <HD SOURCE="HED">Subpart C—Procedures for Considering Applications</HD> <SECTNO>6.23</SECTNO> <SUBJECT>Filing and service of documents.</SUBJECT> <SECTNO>6.25</SECTNO> <SUBJECT>Answer to application.</SUBJECT> <SECTNO>6.27</SECTNO> <SUBJECT>Comments by other parties.</SUBJECT> <SECTNO>6.29</SECTNO> <SUBJECT>Settlement.</SUBJECT> <SECTNO>6.31</SECTNO> <SUBJECT>Further proceedings.</SUBJECT> <SECTNO>6.33</SECTNO> <SUBJECT>Decision.</SUBJECT> <SECTNO>6.35</SECTNO> <SUBJECT>Agency review.</SUBJECT> <SECTNO>6.37</SECTNO> <SUBJECT>Judicial review.</SUBJECT> <SECTNO>6.39</SECTNO> <SUBJECT>Payment of award.</SUBJECT> </SUBPART> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>5 U.S.C. 504; 28 U.S.C. 2412.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>48 FR 1070, Jan. 10, 1983, unless otherwise noted.</P> </SOURCE> <SUBPART> <HD SOURCE="HED">Subpart A—General Provisions</HD> <SECTION> <SECTNO>§ 6.1</SECTNO> <SUBJECT>Purpose of these rules.</SUBJECT> <P>The Equal Access to Justice Act, 5 U.S.C. 504 (called “the Act” in this part), provides for the award of attorney fees and other expenses to eligible individuals and entities who are parties to certain administrative proceedings (called “adversary adjudications”) before government agencies, such as the Department of Transportation or any of its operating administrations. The rules in this part describe the parties eligible for awards and the proceedings that are covered. They also explain how to apply for awards, and the procedures and standards that this agency will use to make them. The use of the term “Department”, in this rule, will be understood to mean the Department of Transportation or any of its operating administrations, unless otherwise specified. The term “agency counsel” will be understood to mean counsel for the Department of Transportation or any of its operating administrations.</P> <CITA>[48 FR 1070, Jan. 10, 1983, as amended at 62 FR 19233, Apr. 21, 1997]</CITA> </SECTION> <SECTION> <SECTNO>§ 6.3</SECTNO> <SUBJECT>Applicability.</SUBJECT> <P>Section 6.9(a) applies to any adversary adjudication pending before the Department on or after October 1, 1981. In addition, applicants for awards must also meet the standards of § 6.9(b) for any adversary adjudication commenced on or after March 29, 1996.</P> <CITA>[62 FR 19233, Apr. 21, 1997]</CITA> </SECTION> <SECTION> <SECTNO>§ 6.5</SECTNO> <SUBJECT>Proceedings covered.</SUBJECT> <P>(a) The Act applies to adversary adjudications conducted by the Department of Transportation. These are adjudications under 5 U.S.C. 554 in which the position of the Department is represented by an attorney or other representative who enters an appearance and participates in the proceeding. Coverage of the Act begins at designation of a proceeding or issuance of a charge sheet. Any proceeding in which the Department may prescribe or establish a lawful present or future rate is not covered by the Act. Proceedings to grant or renew licenses are also excluded, but proceedings to modify, suspend, or revoke licenses are covered if they are otherwise “adversary adjudications.” For the Department of Transportation, the types of proceedings covered include, but may not be limited to: Coast Guard suspension or revocation of licenses, certificates or documents under 46 U.S.C. 7701 <E T="03">et seq.</E>; Coast Guard class II civil penalty proceedings under the Clean Water Act, 33 U.S.C. 1321(b)(6)(B)(ii); Coast Guard class II penalty proceedings under the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. 9609(b); suspension and revocation of Certificates of Registry proceedings for Great Lakes Pilots pursuant to 46 CFR Part 401; National Highway Traffic Safety Administration (NHTSA) automotive fuel economy enforcement under 49 U.S.C. Chapter 329 (49 CFR Part 511); Federal Highway Administration (FHWA) enforcement of motor carrier safety regulations under 49 U.S.C. 521 and 5123 (49 CFR 386); the Department's aviation economic enforcement proceedings conducted by its Office of Aviation Enforcement and Proceedings pursuant to 49 U.S.C. Subtitle VII, 14 CFR Chapter II. Also covered are any appeal of a decision made pursuant to section 6 of the Contract Disputes Act of 1978 (41 U.S.C. 605) before an agency board of contract appeals as provided in section 8 of that Act (41 U.S.C. 607), any hearing conducted under Chapter 38 of title 31, and the Religious Freedom Restoration Act of 1993, 42 U.S.C. 2000bb <E T="03">et seq.</E> </P> <P>(b) If a proceeding includes both matters covered by the Act and matters specifically excluded from coverage, <PRTPAGE P="62"/>any award made will include only fees and expenses related to covered issues.</P> <CITA>[48 FR 1070, Jan. 10, 1983, as amended at 62 FR 19233, Apr. 21, 1997]</CITA> </SECTION> <SECTION> <SECTNO>§ 6.7</SECTNO> <SUBJECT>Eligibility of applications.</SUBJECT> <P>(a) To be eligible for an award of attorney fees and other expenses under the Act, the applicant must be a party to an adversary adjudication for which it seeks an award. The term “party” is defined in 5 U.S.C. 504(b)(1)(B). The applicant must show that it meets all conditions of eligibility set out in this subpart and in paragraph (b) of this section.</P> <P>(b) The types of eligible applicants are as follows:</P> <P>(1) An individual with a net worth of not more than $2 million;</P> <P>(2) The sole owner of an unincorporated business who has a net worth of not more than $7 million, including both personal and business interests, and not more than 500 employees.</P> <P>(3) A charitable or other tax-exempt organization as described in section 501(c)(3) of the Internal Revenue Code (26 U.S.C. 501(c)(3)) with not more than 500 employees;</P> <P>(4) A cooperative association as defined in section 15(a) of the Agricultural Marketing Act (12 U.S.C. 1141j(a)) with a net worth of not more than $5 million and not more than 500 employees.</P> <P>(5) Any other partnership, corporation, association, or public or private organization with a net worth of not more than $7 million and not more than 500 employees.</P> <P>(6) For the purposes of § 6.9(b), eligible applicants include small entities as defined in 5 U.S.C. 601.</P> <P>(c) For the purpose of eligibility, the net worth and number of employees of an applicant shall be determined as of the date the proceeding was designated.</P> <P>(d) An applicant who owns an unincorporated business will be considered an “individual” rather than a “sole owner of an unincorporated business” if the issues on which the applicant prevails are related primarily to personal interests rather than to business interests.</P> <P>(e) The number of employees of an applicant includes all persons who regularly perform services for remuneration for the applicant, under the applicant's direction and control. Part-time employees shall be included on a proportional basis.</P> <P>(f) The net worth and number of employees of the applicant and all of its affiliates shall be aggregated to determine eligibility. Any individual, corporation or other entity that directly or indirectly controls or owns a majority of the voting shares or other interest of the applicant, or any corporation or other entity of which the applicant directly or indirectly owns or controls a majority of the voting shares or other interest, will be considered an affiliate for purposes of this part, unless the administrative law judge determines that such treatment would be unjust and contrary to the purposes of the Act in light of the actual relationship between the affiliated entities. In addition, the administrative law judge may determine that financial relationships of the applicant other than those described in this paragraph constitute special circumstances that would make an award unjust.</P> <P>(g) An applicant that participates in a proceeding primarily on behalf of one or more other persons or entities that would be ineligible is not itself eligible for an award.</P> <P>(h) An applicant who appears <E T="03">pro se</E> in a proceeding is ineligible for award of attorney fees. However, eligibility for other expenses is not affected by <E T="03">pro se</E> representation.</P> <CITA>[48 FR 1070, Jan. 10, 1983, as amended at 62 FR 19234, Apr. 21, 1997]</CITA> </SECTION> <SECTION> <SECTNO>§ 6.9</SECTNO> <SUBJECT>Standards for awards.</SUBJECT> <P>(a) An eligible applicant may receive an award for fees and expenses incurred by that party in connection with a decision in favor of the applicant in a proceeding covered by this Part, unless the position of the Department over which the applicant has prevailed was substantially justified or special circumstances make the award sought unjust. The burden of proof that an award should not be made to an eligible applicant is on the Department where it has initiated the proceeding. No presumption arises that the Department's position was not substantially justified simply because the Department did not <PRTPAGE P="63"/>prevail. Whether or not the position of the Department was substantially justified shall be determined on the basis of the administrative record, as a whole, in the adversary adjudication for which fees and other expenses are sought. The “position of the Department” means, in addition to the position taken by the agency in the adversary adjudication, the action or failure to act by the Department upon which the adversary adjudication may be based.</P> <P>(b) In the context of a Departmental proceeding to enforce a party's compliance with a statutory or regulatory requirement, if the demand by the Department is substantially in excess of the amount awarded to the government pursuant to the decision of the adjudicative officer and is unreasonable when compared with such decision, under the facts and circumstances of the case, the adjudicative officer shall award to an eligible applicant party the fees and expenses related to defending against the excessive demand, unless the applicant party has committed a willful violation of law or otherwise acted in bad faith, or special circumstances make an award unjust. Fees and expenses awarded under this paragraph shall be paid only as a consequence of appropriations provided in advance. As used in this section, “demand” means the express demand of the Department which led to the adversary adjudication, but does not include a recitation by the Department of the maximum statutory penalty</P> <P>(i) In the administrative complaint, or</P> <P>(ii) Elsewhere when accompanied by an express demand for a lesser amount.</P> <P>(c) The decision of the Department on the application for fees and other expenses shall be the final administrative decision under this section.</P> <P>(d) An award will be reduced or denied if the applicant has unduly or unreasonably protracted the proceeding.</P> <CITA>[62 FR 19234, Apr. 21, 1997]</CITA> </SECTION> <SECTION> <SECTNO>§ 6.11</SECTNO> <SUBJECT>Allowable fees and expenses.</SUBJECT> <P>(a) Awards will be based on rates customarily charged by persons engaged in the business of acting as attorneys, agents or expert witnesses.</P> <P>(b) No award for the fee of an attorney or agent under these rules may exceed $125.00 per hour. This amount shall include all other expenses incurred by the attorney or agent in connection with the case. No award to compensate an expert witness may exceed the highest market rate at which the Department pays expert witnesses, or $24.09 per hour, whichever is less.</P> <P>(c) In determining the reasonableness of the fee sought for an attorney, agent or expert witness, the administrative law judge shall consider the following:</P> <P>(1) If the attorney, agent or witness is in private practice, his or her customary fee for similar services, or, if an employee of the applicant, the fully allocated cost of the services;</P> <P>(2) The prevailing rate for similar services in the community in which the attorney, agent or witness ordinarily performs services;</P> <P>(3) The time actually spent in the representation of the applicant;</P> <P>(4) The time reasonably spent in light of the difficulty or complexity of the issues in the proceeding; and</P> <P>(5) Such other factors as may bear on the value of the services provided.</P> <P>(d) The reasonable cost of any study, analysis, engineering report, test, project or similar matter prepared on behalf of a party may be awarded, to the extent that the charge for the service does not exceed the prevailing rate for similar services, and the study or other matter was necessary for preparation of the applicant's case.</P> <P>(e) Fees may be awarded only for work performed after designation of a proceeding.</P> <CITA>[48 FR 1070, Jan. 10, 1983, as amended at 62 FR 19234, Apr. 21, 1997]</CITA> </SECTION> <SECTION> <SECTNO>§ 6.13</SECTNO> <SUBJECT>Delegations of authority.</SUBJECT> <P>The Secretary of Transportation delegates to the head of each operating administration of this Department the authority to take final action, other than rulemaking, on matters pertaining to the Act in actions that require section 554 proceedings. The head of each operating administration may redelegate this authority.</P> </SECTION> </SUBPART> <SUBPART> <PRTPAGE P="64"/> <HD SOURCE="HED">Subpart B—Information Required from Applicants</HD> <SECTION> <SECTNO>§ 6.17</SECTNO> <SUBJECT>Contents of application.</SUBJECT> <P>(a) An application for an award of fees and expenses under the Act shall identify the applicant and the proceeding for which an award is sought. The application shall show that the applicant has prevailed and identify the position of an agency or agencies in the proceeding that the applicant alleges was not substantially justified. Unless the applicant is an individual, the application shall also state that it did not have more than 500 employees at the time the proceeding was initiated, giving the number of employees of the applicant and describing briefly the type and purpose of its organization or business.</P> <P>(b) The application shall also include a statement that the applicant's net worth does not exceed $1 million (if an individual) or $5 million (for all other applicants, including their affiliates). However, an applicant may omit this statement if:</P> <P>(1) It attaches a copy of a ruling by the Internal Revenue Service that it qualifies as an organization described in section 501(c)(3) of the Internal Revenue Code (26 U.S.C. 501(c)(3)) or, in the case of a tax-exempt organization not required to obtain a ruling from the Internal Revenue Service on its exempt status, a statement that describes the basis for the applicant's belief that it qualifies under such section; or</P> <P>(2) It states that it is a cooperative association as defined in section 15(a) of the Agricultural Marketing Act (12 U.S.C. 114j(a)).</P> <P>(c) The application shall state the amount of fees and expenses for which an award is sought.</P> <P>(d) The application may also include any other matters that the applicant wishes this agency to consider in determining whether and in what amount an award should be made.</P> <P>(e) The application shall be signed by the applicant or an authorized officer or attorney of the applicant. It shall also contain or be accompanied by a written verification under oath or under penalty of perjury that the information provided in the application is true and correct.</P> <P>(f) If the applicant is a partnership, corporation, association, or organization, or a sole owner of an unincorporated business, the application shall state that it did not have more than 500 employees at the time the proceeding was initiated, giving the number of its employees and describing briefly the type and purpose of its organization or business.</P> </SECTION> <SECTION> <SECTNO>§ 6.19</SECTNO> <SUBJECT>Net worth exhibit.</SUBJECT> <P>(a) Each applicant except a qualified tax-exempt organization or cooperative association must provide with its application a detailed exhibit showing the net worth of the applicant and any affiliates (as defined in this part) when the proceeding was designated. If any individual, corporation, or other entity directly or indirectly controls or owns a majority of the voting shares or other interest of the applicant, or if the applicant directly or indirectly owns or controls a majority of the voting shares or other interest of any corporation or other entity, the exhibit must include a showing of the net worth of all such affiliates or of the applicant including the affiliates. The exhibit may be in any form convenient to the applicant that provides full disclosure of the applicant's and its affiliates’ assets and liabilities and is sufficient to determine whether the applicant qualifies under the standards in this subpart. The administrative law judge may require an applicant to file additional information to determine its eligibility for an award.</P> <P>(b) The net worth exhibit shall describe any transfers of assets from, or obligations incurred by, the applicant or any affiliate, occurring in the one-year period prior to the date on which the proceeding was initiated, that reduced the net worth of the applicant and its affiliates below the applicable net worth ceiling. If there were no such transactions, the applicant shall so state.</P> <P>(c) The net worth exhibit shall be included in the public record of the proceeding.</P> </SECTION> <SECTION> <SECTNO>§ 6.21</SECTNO> <SUBJECT>Documentation of fees and expenses.</SUBJECT> <P>(a) The application shall be accompanied by full documentation of the <PRTPAGE P="65"/>fees and expenses, including the cost of any study, analysis, engineering report, test, project or similar matter, for which an award is sought.</P> <P>(b) The documentation shall include an affidavit from any attorney, agent, or expert witness representing or appearing in behalf of the party, stating the actual time expended and the rate at which fees and other expenses were computed and describing the specific services performed.</P> <P>(1) The affidavit shall state the services performed. In order to establish the hourly rate, the affidavit shall state the hourly rate which is billed and paid by the majority of clients during the relevant time periods.</P> <P>(2) If no hourly rate is paid by the majority of clients because, for instance, the attorney or agent represents most clients on a contingency basis, the attorney or agent shall provide information about two attorneys or agents with similar experience, who perform similar work, stating their hourly rate.</P> <P>(c) The documentation shall also include a description of any expenses for which reimbursement is sought and a statement of the amounts paid and payable by the applicant or by any other person or entity for the services provided.</P> <P>(d) The administrative law judge may require the applicant to provide vouchers, receipts, or other substantiation for any expenses claimed.</P> <P>(e) The administrative law judge may, within his or her discretion, make a determination as to whether a study, conducted by the applicant, was necessary to the preparation of the applicant's case.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—Procedures for Considering Applications</HD> <SECTION> <SECTNO>§ 6.23</SECTNO> <SUBJECT>Filing and service of documents.</SUBJECT> <P>Any application for an award or other pleading or document related to an application shall be filed and served on all parties to the proceeding in the same manner as other pleadings in the proceeding.</P> </SECTION> <SECTION> <SECTNO>§ 6.25</SECTNO> <SUBJECT>Answer to application.</SUBJECT> <P>(a) Within 30 calendar days after service of an application, the agency counsel may file an answer to the application. Unless the agency counsel requests an extension of time for filing or files a statement of intent to negotiate under paragraph (b) of this section, failure to file an answer within the 30-day period may be treated as a consent to the award request.</P> <P>(b) If agency counsel and applicant believe that they can reach a settlement concerning the award, the agency counsel may file a statement of intent to negotiate. The filing of such a statement shall extend the time for filing an answer an additional 30 days.</P> <P>(c) The answer shall explain in detail any objections to the award requested and identify the facts relied on in support of the Department's position. If the answer is based on any alleged facts not already in the record of the proceeding, the Department shall include with the answer either supporting affidavits or a request for further proceedings under § 6.3.</P> <CITA>[48 FR 1070, Jan. 10, 1983, as amended at 62 FR 19234, Apr. 21, 1997]</CITA> </SECTION> <SECTION> <SECTNO>§ 6.27</SECTNO> <SUBJECT>Comments by other parties.</SUBJECT> <P>Any party to a proceeding, other than the applicant and the Department may file comments on an application within 30 days after it is served or on an answer within 15 days after it is served. A commenting party may not participate further in proceedings on the application.</P> </SECTION> <SECTION> <SECTNO>§ 6.29</SECTNO> <SUBJECT>Settlement.</SUBJECT> <P>The applicant and agency counsel may agree on a proposed settlement of the award before final action on the application, either in connection with a settlement of the underlying proceeding, or after the underlying proceeding has been concluded, in accordance with the agency's standard settlement procedure. If a prevailing party and the agency counsel agree on a proposed settlement of an award before an application has been filed the application shall be filed with the proposed settlement.</P> </SECTION> <SECTION> <SECTNO>§ 6.31</SECTNO> <SUBJECT>Further proceedings.</SUBJECT> <P>(a) Ordinarily, the determination of an award will be made on the basis of the written record. However, on request of either the applicant or agency <PRTPAGE P="66"/>counsel, or on his or her own initiative, the administrative law judge may order further proceedings, such as an informal conference, oral argument, additional written submissions or an evidentiary hearing.</P> <FP>Such further proceedings shall be held only when necessary for full and fair resolution of the issues arising from the application, and shall be conducted as promptly as possible.</FP> <P>(b) A request that the administrative law judge order further proceedings under this section shall specifically identify the information sought or the disputed issues and shall explain why the additional proceedings are necessary to resolve the issues.</P> </SECTION> <SECTION> <SECTNO>§ 6.33</SECTNO> <SUBJECT>Decision.</SUBJECT> <P>The administrative law judge shall issue an initial decision on the application as soon as possible after completion of proceedings on the application. The decision shall also include, if at issue, findings on whether the Department's position was substantially justified, whether the applicant unduly protracted the proceedings, or whether special circumstances make an award unjust. If the applicant has sought an award against more than one agency, the decision shall allocate responsibility for payment or any award made among the agencies, and shall explain the reasons for the allocation made.</P> </SECTION> <SECTION> <SECTNO>§ 6.35</SECTNO> <SUBJECT>Agency review.</SUBJECT> <P>Where Department review of the underlying decision is permitted, either the applicant or agency counsel, may seek review of the initial decision on the fee application, or the Department may decide to review the decision on its own initiative. If neither the applicant nor the agency counsel seeks review within 30 days after the decision is issued, it shall become final.</P> </SECTION> <SECTION> <SECTNO>§ 6.37</SECTNO> <SUBJECT>Judicial review.</SUBJECT> <P>Judicial review of final agency decisions on awards may be sought as provided in 5 U.S.C. 504(c)(2).</P> </SECTION> <SECTION> <SECTNO>§ 6.39</SECTNO> <SUBJECT>Payment of award.</SUBJECT> <P>An applicant seeking payment of an award from the Department of Transportation or any of its operating administrations under this part shall submit a copy of the Department of Transportation's or any of its operating administration's final decisions granting the award, accompanied by a statement that the applicant will not seek review of the decision in the United States courts. The copy of the decision and the statement should be submitted to the head of the affected operating administration or the Secretary of Transportation, where the Department of Transportation, Office of the Secretary, has initiated the proceedings.</P> </SECTION> </SUBPART> </PART> <PART> <EAR>Pt. 7</EAR> <HD SOURCE="HED">PART 7—PUBLIC AVAILABILITY OF INFORMATION</HD> <CONTENTS> <SUBPART> <HD SOURCE="HED">Subpart A—General Provisions</HD> <SECHD>Sec.</SECHD> <SECTNO>7.1</SECTNO> <SUBJECT>General.</SUBJECT> <SECTNO>7.2</SECTNO> <SUBJECT>Definitions.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Information Required To Be Made Public by DOT</HD> <SECTNO>7.3</SECTNO> <SUBJECT>Publication in the <E T="04">Federal Register</E>.</SUBJECT> <SECTNO>7.4</SECTNO> <SUBJECT>Publication required.</SUBJECT> <SECTNO>7.5</SECTNO> <SUBJECT>Availability of opinions, orders, staff manuals, statements of policy, and interpretations and indices.</SUBJECT> <SECTNO>7.6</SECTNO> <SUBJECT>Deletion of identifying detail.</SUBJECT> <SECTNO>7.7</SECTNO> <SUBJECT>Access to materials and indices.</SUBJECT> <SECTNO>7.8</SECTNO> <SUBJECT>Copies.</SUBJECT> <SECTNO>7.9</SECTNO> <SUBJECT>Protection of records.</SUBJECT> <SECTNO>7.10</SECTNO> <SUBJECT>Public records.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—Availability of Reasonably Described Records Under the Freedom of Information Act</HD> <SECTNO>7.11</SECTNO> <SUBJECT>Applicability.</SUBJECT> <SECTNO>7.12</SECTNO> <SUBJECT>Administration of subpart.</SUBJECT> <SECTNO>7.13</SECTNO> <SUBJECT>Records available.</SUBJECT> <SECTNO>7.14</SECTNO> <SUBJECT>Requests for records.</SUBJECT> <SECTNO>7.15</SECTNO> <SUBJECT>Contacts for records requested under the FOIA.</SUBJECT> <SECTNO>7.16</SECTNO> <SUBJECT>Requests for records of concern to more than one government organization.</SUBJECT> <SECTNO>7.17</SECTNO> <SUBJECT>Consultation with submitters of commercial and financial information.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart D—Procedures for Appealing Decisions Not to Disclose Records and/or Waive Fees</HD> <SECTNO>7.21</SECTNO> <SUBJECT>General.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart E—Time Limits</HD> <SECTNO>7.31</SECTNO> <SUBJECT>Initial determinations.</SUBJECT> <SECTNO>7.32</SECTNO> <SUBJECT>Final determinations.</SUBJECT> <SECTNO>7.33</SECTNO> <SUBJECT>Extension.</SUBJECT> </SUBPART> <SUBPART> <PRTPAGE P="67"/> <HD SOURCE="HED">Subpart F—Fees</HD> <SECTNO>7.41</SECTNO> <SUBJECT>General.</SUBJECT> <SECTNO>7.42</SECTNO> <SUBJECT>Payment of fees.</SUBJECT> <SECTNO>7.43</SECTNO> <SUBJECT>Fee schedule.</SUBJECT> <SECTNO>7.44</SECTNO> <SUBJECT>Services performed without charge or at a reduced charge.</SUBJECT> <SECTNO>7.45</SECTNO> <SUBJECT>Transcripts.</SUBJECT> <SECTNO>7.46</SECTNO> <SUBJECT>Alternative sources of information.</SUBJECT> </SUBPART> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>5 U.S.C. 552; 31 U.S.C. 9701; 49 U.S.C. 322; E.O. 12600, 3 CFR, 1987 Comp., p. 235.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>Amdt. 1, 63 FR 38331, July 16, 1998, unless otherwise noted.</P> </SOURCE> <SUBPART> <HD SOURCE="HED">Subpart A—General Provisions</HD> <SECTION> <SECTNO>§ 7.1</SECTNO> <SUBJECT>General.</SUBJECT> <P>(a) This part implements 5 U.S.C. 552, and prescribes rules governing the availability to the public of DOT records. Many documents are made available to the public for inspection and copying through DOT's Primary Electronic Access Facility and public record unit locations that are discussed in subpart B of this part, which contains the DOT regulations concerning the availability to the public of opinions issued in the adjudication of cases, policy issuances, administrative manuals, and other information made available to the public, without need for a specific request.</P> <P>(b) Subpart C of this part describes the records that are not required to be disclosed on DOT's own action under this part, but that may be available upon request under FOIA.</P> <P>(c) Indices are maintained to reflect all records subject to subpart B of this part, and are available for public inspection and copying as provided in subpart B.</P> </SECTION> <SECTION> <SECTNO>§ 7.2</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>Unless the context requires otherwise, the following definitions apply in this part:</P> <P> <E T="03">Act</E> and <E T="03">FOIA</E> mean the Freedom of Information Act, 5 U.S.C. 552, as amended.</P> <P> <E T="03">Administrator</E> means the head of each component of DOT and includes the Under Secretary for Security, the Commandant of the Coast Guard, the Inspector General, and the Director of the Bureau of Transportation Statistics.</P> <P> <E T="03">Concurrence</E> means that the approval of the person being consulted is required in order for the subject action to be taken.</P> <P> <E T="03">Consultation</E> means that the approval of the person being consulted is not required in order for the subject action to be taken.</P> <P> <E T="03">Department</E> means the Department of Transportation, including the Office of the Secretary, the Office of Inspector General, and the following DOT components, all of which may be referred to as DOT components. Means of contacting each of these DOT components appear in § 7.15. This definition specifically excludes the Surface Transportation Board, which has its own FOIA regulations (49 CFR Part 1001):</P> <P>(1) United States Coast Guard,</P> <P>(2) Federal Aviation Administration,</P> <P>(3) Federal Highway Administration,</P> <P>(4) Federal Railroad Administration,</P> <P>(5) National Highway Traffic Safety Administration,</P> <P>(6) Federal Transit Administration,</P> <P>(7) Saint Lawrence Seaway Development Corporation,</P> <P>(8) Maritime Administration,</P> <P>(9) Research and Special Programs Administration, and</P> <P>(10) Bureau of Transportation Statistics.</P> <P>(11) Transportation Security Administration.</P> <P> <E T="03">Primary Electronic Access Facility</E> means the electronic docket facility in the DOT Headquarters Building, 400 7th Street, S.W., Washington, D.C. 20590.</P> <P> <E T="03">Reading room records</E> are those records required to be made available to the public under 5 U.S.C. 552(a)(2) as described in § 7.5 of Subpart B of this part. These records are made available through DOT's Primary Electronic Access Facility. Other records may also be made available at DOT's discretion at DOT inspection facilities, including DOT's Primary Electronic Access Facility.</P> <P> <E T="03">Record</E> includes any writing, drawing, map, recording, tape, film, photograph, or other documentary material by which information is preserved. The term also includes any such documentary material stored by computer.</P> <P> <E T="03">Responsible DOT official</E> means the head of the DOT component concerned, or the General Counsel or the Inspector <PRTPAGE P="68"/>General, as the case may be, or the designee of any of them, authorized to take an action under this part.</P> <P> <E T="03">Secretary</E> means the Secretary of Transportation or any person to whom the Secretary has delegated authority in the matter concerned.</P> <CITA>[Amdt. 1, 63 FR 38331, July 16, 1998, as amended at 67 FR 54746, Aug. 26, 2002]</CITA> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Information Required To Be Made Public by DOT</HD> <SECTION> <SECTNO>§ 7.3</SECTNO> <SUBJECT>Publication in the Federal Register.</SUBJECT> <P>This section implements 5 U.S.C. 552(a)(1), and prescribes rules governing publication in the <E T="04">Federal Register</E> of the following:</P> <P>(a) Descriptions of DOT's organization, including its DOT components and the established places at which, the officers from whom, and the methods by which, the public may secure information and make submittals or obtain decisions;</P> <P>(b) Statements of the general course and methods by which DOT's functions are channeled and determined, including the nature and requirements of all formal and informal procedures available;</P> <P>(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;</P> <P>(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 DOT; and</P> <P>(e) Each amendment, revision, or repeal of any material listed in paragraphs (a) through (d) of this section.</P> </SECTION> <SECTION> <SECTNO>§ 7.4</SECTNO> <SUBJECT>Publication required.</SUBJECT> <P>(a) <E T="03">General.</E> The material described in § 7.3 will be published in the <E T="04">Federal Register</E>. For the purposes of this paragraph, material that will reasonably be available to the class of persons affected by it will be considered to be published in the <E T="04">Federal Register</E> if it has been incorporated by reference with the approval of the Director of the Federal Register.</P> <P>(b) <E T="03">Effect of nonpublication.</E> Except to the extent that he/she has actual and timely notice of the terms thereof, a person may not in any manner be required to resort to, or be adversely affected by, any procedure or matter required to be published in the <E T="04">Federal Register</E>, but not so published.</P> </SECTION> <SECTION> <SECTNO>§ 7.5</SECTNO> <SUBJECT>Availability of opinions, orders, staff manuals, statements of policy, and interpretations and indices.</SUBJECT> <P>(a) This section implements 5 U.S.C. 552(a)(2). It prescribes the rules governing the availability for public inspection and copying of the following reading room materials:</P> <P>(1) Any final opinion (including a concurring or dissenting opinion) or order made in the adjudication of a case.</P> <P>(2) Any policy or interpretation that has been adopted under DOT authority, including any policy or interpretation concerning a particular factual situation, if that policy or interpretation can reasonably be expected to have precedential value in any case involving a member of the public in a similar situation.</P> <P>(3) Any administrative staff manual or instruction to staff that affects any member of the public, including the prescribing of any standard, procedure, or policy that, when implemented, requires or limits any action of any member of the public or prescribes the manner of performance of any activity by any member of the public. However, this does not include staff manuals or instructions to staff concerning internal operating rules, practices, guidelines, and procedures for DOT inspectors, investigators, law enforcement officers, examiners, auditors, and negotiators and other information developed predominantly for internal use, the release of which could significantly risk circumvention of agency regulations or statutes.</P> <P>(4) Copies of all records, regardless of form or format, that have been released to any person under subpart C of this part and which, because of the nature of their subject matter, a DOT component determines have become or are likely to become the subject of subsequent requests for substantially the same records.<PRTPAGE P="69"/> </P> <P>(5) A general index of the records listed in this paragraph.</P> <P>(b) Any material listed in paragraph (a) of this section that is not made available for public inspection and copying, or that is not indexed as required by § 7.7, may not be cited, relied on, or used as precedent by DOT to affect any member of the public adversely unless the person to whose detriment it is relied on, used, or cited has had actual timely notice of the material.</P> <P>(c) This section does not apply to material that is published in the <E T="04">Federal Register</E> or covered by subpart C of this part.</P> </SECTION> <SECTION> <SECTNO>§ 7.6</SECTNO> <SUBJECT>Deletion of identifying detail.</SUBJECT> <P>Whenever it is determined to be necessary to prevent a clearly unwarranted invasion of personal privacy, identifying details will be deleted from any record covered by this subpart that is published or made available for inspection. Whenever it is determined to be necessary to prevent the disclosure of information required or authorized to be withheld by another Federal statute, such information shall be deleted from any record covered by this subpart that is published or made available for inspection. A full explanation of the justification for the deletion will accompany the record published or made available for inspection.</P> </SECTION> <SECTION> <SECTNO>§ 7.7</SECTNO> <SUBJECT>Access to materials and indices.</SUBJECT> <P>(a) Except as provided in paragraph (b) of this section, material listed in § 7.5 will be made available for inspection and copying to any member of the public at DOT document inspection facilities. It has been determined that it is unnecessary and impracticable to publish the index of materials in the <E T="04">Federal Register</E>. Information as to the kinds of materials available at each facility may be obtained from the facility or the headquarters of the DOT component of which it is a part.</P> <P>(b) The material listed in § 7.5 that is published and offered for sale will be indexed, but is not required to be kept available for public inspection. Whenever practicable, however, it will be made available for public inspection at the appropriate DOT reading room.</P> <P>(c) Each DOT component will also make the reading room records identified in section 7.5(a) that are created by DOT on or after November 1, 1996, available electronically. This includes indices of its reading room records as required by law after December 1, 1999.</P> </SECTION> <SECTION> <SECTNO>§ 7.8</SECTNO> <SUBJECT>Copies</SUBJECT> <P>Copies of any material covered by this subpart that is not published and offered for sale may be ordered, upon payment of the appropriate fee, from the Docket Offices listed in § 7.10. Copies will be certified upon request and payment of the fee prescribed in § 7.43(f).</P> </SECTION> <SECTION> <SECTNO>§ 7.9</SECTNO> <SUBJECT>Protection of records.</SUBJECT> <P>(a) Records made available for inspection and copying may not be removed, altered, destroyed, or mutilated.</P> <P>(b) 18 U.S.C. 641 provides for criminal penalties for embezzlement or theft of government records.</P> <P>(c) 18 U.S.C. 2071 provides for criminal penalties for the willful and unlawful concealment, mutilation or destruction of, or the attempt to conceal, mutilate, or destroy, government records.</P> </SECTION> <SECTION> <SECTNO>§ 7.10</SECTNO> <SUBJECT>Public records.</SUBJECT> <P>Publicly available records are located in DOT's Primary Electronic Access Facility at 400 7th Street, S.W., Washington, D.C. 20590.</P> <P>(a) The Primary Electronic Access Facility maintains materials for the Office of the Secretary, including former Civil Aeronautics Board material, and materials for the DOT components. This facility is located at Plaza Level 401, and the hours of operation are 10:00-17:00.</P> <P>(b) Certain DOT components also maintain public record units at regional offices and at the offices of the Commandant and District Commanders of the United States Coast Guard. These facilities are open to the public Monday through Friday except Federal holidays, during regular working hours. The Saint Lawrence Seaway Development Corporation has facilities at 180 Andrews Street, Massena, New York 13662-0520.<PRTPAGE P="70"/> </P> <P>(c) Operating Administrations may have separate facilities for manual records. Additional information on the location and hours of operations for Docket Offices and inspection facilities can be obtained through DOT's Primary Electronic Access Facility, at (202) 366-9322.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—Availability of Reasonably Described Records Under the Freedom of Information Act</HD> <SECTION> <SECTNO>§ 7.11</SECTNO> <SUBJECT>Applicability.</SUBJECT> <P>(a) This subpart implements 5 U.S.C 552(a)(3), and prescribes the regulations governing public inspection and copying of reasonably described records under FOIA.</P> <P>(b) This subpart does not apply to:</P> <P>(1) Records published in the <E T="04">Federal Register</E>, opinions in the adjudication of cases, statements of policy and interpretations, and administrative staff manuals that have been published or made available under subpart B of this part.</P> <P>(2) Records or information compiled for law enforcement purposes and covered by the disclosure exemption described in § 7.13(c)(7) if—</P> <P>(i) The investigation or proceeding involves a possible violation of criminal law; and</P> <P>(ii) There is reason to believe that—</P> <P>(A) The subject of the investigation or proceeding is not aware of its pendency, and</P> <P>(B) Disclosure of the existence of the records could reasonably be expected to interfere with enforcement proceedings.</P> <P>(3) Informant records maintained by a criminal law enforcement component of DOT under an informant's name or personal identifier, if requested by a third party according to the informant's name or personal identifier, unless the informant's status as an informant has been officially confirmed.</P> </SECTION> <SECTION> <SECTNO>§ 7.12</SECTNO> <SUBJECT>Administration of subpart.</SUBJECT> <P>Authority to administer this subpart and to issue determinations with respect to initial requests is delegated as follows:</P> <P>(a) To the General Counsel for the records of the Office of the Secretary other than the Office of Inspector General.</P> <P>(b) To the Inspector General for records of the Office of Inspector General.</P> <P>(c) To the Administrator of each DOT component, who may redelegate to officers of that administration the authority to administer this part in connection with defined groups of records. However, each Administrator may redelegate the duties under subpart D of this part to consider appeals of initial denials of requests for records only to his or her deputy or to not more than one other officer who reports directly to the Administrator and who is located at the headquarters of that DOT component.</P> </SECTION> <SECTION> <SECTNO>§ 7.13</SECTNO> <SUBJECT>Records available.</SUBJECT> <P>(a) <E T="03">Policy.</E> It is DOT policy to make its records available to the public to the greatest extent possible, in keeping with the spirit of FOIA. This includes providing reasonably segregable information from documents that contain information that may be withheld.</P> <P>(b) <E T="03">Statutory disclosure requirement.</E> FOIA requires that DOT, on a request from a member of the public submitted in accordance with this subpart, make requested records available for inspection and copying.</P> <P>(c) <E T="03">Statutory exemptions.</E> Exempted from FOIA's statutory disclosure requirement are matters that are:</P> <P>(1)(i) Specifically authorized under criteria established by Executive Order to be kept secret in the interest of national defense or foreign policy, and</P> <P>(ii) In fact properly classified pursuant to such Executive order;</P> <P>(2) Related solely to the internal personnel rules and practices of an agency;</P> <P>(3) Specifically exempted from mandatory disclosure by statute (other than the Privacy Act or the Government in the Sunshine Act), provided that such statute—</P> <P>(i) Requires that the matters be withheld from the public in such a manner as to leave not any discretion on the issue, or<PRTPAGE P="71"/> </P> <P>(ii) Establishes particular criteria for withholding or refers to particular criteria for withholding or refers to particular types of matters to be withheld;</P> <P>(4) Trade secrets and commercial or financial information obtained from a person and privileged or confidential;</P> <P>(5) Inter-agency or intra-agency memorandums or letters that would not be available by law to a party other than an agency in litigation with the agency;</P> <P>(6) Personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy;</P> <P>(7) Records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information—</P> <P>(i) Could reasonably be expected to interfere with enforcement proceedings,</P> <P>(ii) Would deprive a person of a right to a fair or an impartial adjudication,</P> <P>(iii) Could reasonably be expected to constitute an unwarranted invasion of personal privacy,</P> <P>(iv) Could reasonably be expected to disclose the identity of a confidential source, including a State, local, Tribal, or foreign agency or authority or any private institution that 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,</P> <P>(v) 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</P> <P>(vi) Could reasonably be expected to endanger the life or physical safety of any individual;</P> <P>(8) Contained in or related to examination, operating, or condition reports prepared by, on behalf of, or for the use of an agency responsible for the regulation or supervision of financial institutions; or</P> <P>(9) Geological and geophysical information and data, including maps, concerning wells.</P> <P>(d) <E T="03">Deleted information.</E> The amount of information deleted from frequently-requested electronic records that are available in a public reading room will be indicated on the released portion of the record, unless doing so would harm an interest protected by the exemption concerned. If technically feasible, the amount of information deleted will be indicated at the place in the record where the deletion is made.</P> </SECTION> <SECTION> <SECTNO>§ 7.14</SECTNO> <SUBJECT>Requests for records.</SUBJECT> <P>(a) Each person desiring access to or a copy of a record covered by this subpart shall comply with the following provisions:</P> <P>(1) A written request must be made for the record.</P> <P>(2) Such request should indicate that it is being made under FOIA.</P> <P>(3) The envelope in which a mailed request is sent should be prominently marked: “FOIA.”</P> <P>(4) The request should be addressed to the appropriate office as set forth in § 7.15.</P> <P>(5) The request should state the format (<E T="03">e.g.,</E> paper, microfiche, computer diskette, etc.) in which the information is sought, if the requestor has a preference.</P> <P>(b) If the requirements of paragraph (a) of this section are not met, treatment of the request will be at the discretion of the agency. The twenty-day limit for responding to requests, described in § 7.31, will not start to run until the request has been identified, or would have been identified with the exercise of due diligence, by an employee of DOT as a request pursuant to FOIA and has been received by the office to which it should have been originally sent.</P> <P>(c) <E T="03">Form of requests.</E> (1) Each request should describe the particular record to the fullest extent possible. The request should describe the subject matter of the record, and, if known, indicate the date when it was made, the place where it was made, and the person or office that made it. If the description does not enable the office handling the request to identify or locate the record <PRTPAGE P="72"/>sought, that office will notify the requestor and, to the extent possible, indicate the additional data required.</P> <P>(2) Each request shall—</P> <P>(i) Specify the fee category (commercial use, news media, educational institution, noncommercial scientific institution, or other) in which the requestor claims the request to fall and the basis of this claim (see subpart F of this part for fees and fee waiver requirements),</P> <P>(ii) State the maximum amount of fees that the requestor is willing to pay or include a request for a fee waiver, and</P> <P>(iii) A request seeking a fee waiver shall, to the extent possible, address why the requestor believes that the criteria for fee waivers set out in § 7.44(f) are met.</P> <P>(3) Requesters are advised that the time for responding to requests set forth in subpart E will not begin to run—</P> <P>(i) If a requestor has not sufficiently identified the fee category applicable to the request,</P> <P>(ii) If a requestor has not stated a willingness to pay fees as high as anticipated by DOT,</P> <P>(iii) If a fee waiver request is denied and the requestor has not included an alternative statement of willingness to pay fees as high as anticipated by DOT, or</P> <P>(iv) If a fee waiver request does not address fee waiver criteria.</P> <P>(d) <E T="03">Creation of records.</E> A request may seek only records that are in existence at the time the request is received. A request may not seek records that come into existence after the date on which it is received and may not require that new records be created in response to the request by, for example, combining or compiling selected items from manual files, preparing a new computer program, or calculating proportions, percentages, frequency distributions, trends, or comparisons. In those instances where DOT determines that creating a new record will be less burdensome than disclosing large volumes of unassembled material, DOT may, in its discretion, agree to creation of a new record as an alternative to disclosing existing records. Records will be provided in the form or format sought by the requestor if the record is readily reproducible in the requested format.</P> <P>(e) <E T="03">Search for records.</E> (1) Each record made available under this subpart will be made available for inspection and copying during regular business hours at the place where it is located, or photocopying may be arranged with the copied materials being mailed to the requestor upon payment of the appropriate fee. Original records ordinarily will be copied except in this instance where, in DOT's judgment, copying would endanger the quality of the original or raise the reasonable possibility of irreparable harm to the record. In these instances, copying of the original would not be in the public interest. In any event, original records will not be released from DOT custody. Original records, regardless of format, may be returned to agency service upon provision of a copy of the record to the requestor, or, in the case of a denial, upon creation and retention of a copy of the original for purposes of FOIA processing.</P> <P>(2) DOT will make a reasonable effort to search for requested records in electronic form or format, unless doing so would significantly interfere with operation of the affected automated information system.</P> <P>(f) If a requested record is known not to exist in the files of the agency, or to have been destroyed or otherwise disposed of, the requestor will be so notified.</P> <P>(g) Fees will be determined in accordance with subpart F of this part.</P> <P>(h) Notwithstanding paragraphs (a) through (g) of this section, informational material, such as news releases, pamphlets, and other materials of that nature that are ordinarily made available to the public as a part of any information program of the Government will be available upon oral or written request. A fee will be not be charged for individual copies of that material so long as the material is in supply. In addition DOT will continue to respond, without charge, to routine oral or written inquiries that do not involve the furnishing of records.</P> </SECTION> <SECTION> <PRTPAGE P="73"/> <SECTNO>§ 7.15</SECTNO> <SUBJECT>Contacts for records requested under the FOIA.</SUBJECT> <P>Each person desiring a record under this subpart should submit a request in writing (via paper, facsimile, or electronic mail) to the DOT component where the records are located:</P> <P>(a) FOIA Offices at 400 7th Street, S.W., Washington, DC 20590:</P> <P>(1) Office of the Secretary of Transportation, Room 5432.</P> <P>(2) Federal Highway Administration, Room 4428.</P> <P>(3) National Highway Traffic Safety Administration, Room 5221.</P> <P>(4) Federal Transit Administration, Room 9400.</P> <P>(5) Maritime Administration, Room 7221.</P> <P>(6) Research and Special Programs Administration, Room 8419.</P> <P>(7) Bureau of Transportation Statistics, Room 3430.</P> <P>(8) Office of Inspector General, Room 9210.</P> <P>(b) Federal Aviation Administration, 800 Independence Avenue, S.W., Room 906A, Washington, DC 20591.</P> <P>(c) United States Coast Guard, 2100 2nd Street, S.W., Room 6106, Washington, DC 20593-0001.</P> <P>(d) Director, Office of Finance, Saint Lawrence Seaway Development Corporation, 180 Andrews Street, P.O. Box 520, Massena, New York 13662-0520.</P> <P>(e) Federal Railroad Administration, 1120 Vermont Avenue NW, 7th Floor, Washington, DC. (Mailing address: 400 Seventh St., SW, Washington, DC 20590.)</P> <P>(f) Transportation Security Administration, 301 Seventh Street, SW. (General Services Administration Regional Office Building), Room 3624, Washington, DC (Mailing address: 400 Seventh Street, SW., Washington, DC 20590).</P> <P>(g) Certain DOT components also maintain FOIA contacts at regional offices and at the offices of the Commandant and District Commanders of the United States Coast Guard. Additional information on the location of these offices can be obtained through the FOIA contact offices listed in this section.</P> <P>(h) If the person making the request does not know where in DOT the record is located, he or she may make an inquiry to the Chief, FOIA Division, Office of the General Counsel (voice: 202.366.4542; facsimile: 202.366.8536).</P> <P>(i) Requests for records under this part, and Freedom of Information Act inquiries generally, may be made by accessing the DOT Home Page on the Internet (www.dot.gov) and clicking on the Freedom of Information Act link (www.dot.gov/foia).</P> <CITA>[Amdt. 1, 63 FR 38331, July 16, 1998, 67 FR 54746, Aug. 26, 2002]</CITA> </SECTION> <SECTION> <SECTNO>§ 7.16</SECTNO> <SUBJECT>Requests for records of concern to more than one government organization.</SUBJECT> <P>(a) If the release of a record covered by this subpart would be of concern to both DOT and another Federal agency, the determination as to release will be made by DOT only after consultation with the other interested agency.</P> <P>(b) If the release of the record covered by this subpart would be of concern to both DOT and a State, local, or Tribal government, a territory or possession of the United States, or a foreign government, the determination as to release will be made by DOT only after consultation with the interested government.</P> <P>(c) Alternatively, DOT may refer the request (or relevant portion thereof) for decision by a Federal agency that originated or is substantially concerned with the records, but only if that agency is subject to FOIA. Such referrals will be made expeditiously and the requestor notified in writing that a referral has been made.</P> </SECTION> <SECTION> <SECTNO>§ 7.17</SECTNO> <SUBJECT>Consultation with submitters of commercial and financial information.</SUBJECT> <P>(a) If a request is received for information that has been designated by the submitter as confidential commercial information, or which DOT has some other reason to believe may contain information of the type described in § 7.13(c)(4), the submitter of such information will, except as is provided in paragraphs (c) and (d) of this section, be notified expeditiously and asked to submit any written objections to release. At the same time, the requestor will be notified that notice and an opportunity to comment are being provided to the submitter. The submitter <PRTPAGE P="74"/>will, to the extent permitted by law, be afforded a reasonable period of time within which to provide a detailed statement of any such objections. The submitter's statement shall specify all grounds for withholding any of the information. The burden shall be on the submitter to identify all information for which exempt treatment is sought and to persuade the agency that the information should not be disclosed.</P> <P>(b) The responsible DOT component will, to the extent permitted by law, consider carefully a submitter's objections and specific grounds for nondisclosure prior to determining whether to disclose business information. Whenever a decision is made to disclose such information over the objection of a submitter, the office responsible for the decision will forward to the submitter a written notice of intent to disclose that will, to the extent permitted by law, be forwarded to the submitter a reasonable number of days prior to the specified date upon which disclosure is intended. At the same time the submitter is notified, the requestor will be notified of the decision to disclose information. The written notice will include:</P> <P>(1) A statement of the reasons for which the submitter's disclosure objections were not accepted;</P> <P>(2) A description of the business information to be disclosed; and</P> <P>(3) A specific disclosure date.</P> <P>(c) The notice requirements of this section will not apply if:</P> <P>(1) The office responsible for the decision determines that the information should not be disclosed;</P> <P>(2) The information lawfully has been published or otherwise made available to the public; or</P> <P>(3) Disclosure of the information is required by law (other than 5 U.S.C. 552).</P> <P>(d) The procedures established in this section will not apply in the case of:</P> <P>(1) Business information submitted to the National Highway Traffic Safety Administration and addressed in 49 CFR Part 512.</P> <P>(2) Information contained in a document to be filed or in oral testimony that is sought to be withheld pursuant to Rule 39 of the Rules of Practice in Aviation Economic Proceedings (14 CFR 302.39).</P> <P>(e) Whenever a requestor brings suit seeking to compel disclosure of confidential commercial information, the responsible DOT component will promptly notify the submitter.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart D—Procedures for Appealing Decisions Not to Disclose Records and/or Waive Fees</HD> <SECTION> <SECTNO>§ 7.21</SECTNO> <SUBJECT>General.</SUBJECT> <P>(a) Each officer or employee of DOT who, upon a request by a member of the public for a record under this part, makes a determination that the record is not to be disclosed, either because it is subject to an exemption or not in DOT's custody and control, will give a written statement of the reasons for that determination to the person making the request; and indicate the names and titles or positions of each person responsible for the initial determination not to comply with such request, and the availability of an appeal within DOT. The denial letter will include an estimate of the volume of records or information withheld, in number of pages or in some other reasonable form of estimation. This estimate does not need to be provided if the volume is otherwise indicated through deletions on records disclosed in part, or if providing an estimate would harm an interest protected by an applicable exemption. Records disclosed in part will be marked or annotated to show both the amount and the location of the information deleted whenever practicable.</P> <P>(b) When a request for a waiver of fees pursuant to § 7.44 has been denied in whole or in part, the requestor may appeal the denial.</P> <P>(c) Any person to whom a record has not been made available within the time limits established by § 7.31 and any person who has been given a determination pursuant to paragraph (a) of this section that a record will not be disclosed may appeal to the responsible DOT official. Any person who has not received an initial determination on his or her request within the time limits established by § 7.31 can seek immediate judicial review, which may be <PRTPAGE P="75"/>sought without the need first to submit an administrative appeal. Judicial review may be sought in the United States District Court for the judicial district in which the requestor resides or has his or her principal place of business, the judicial district in which the records are located, or in the District of Columbia. A determination that a record will not be disclosed and/or that a request for a fee waiver or reduction will not be granted does not constitute final agency action for the purposes of judicial review unless:</P> <P>(1) It was made by the responsible DOT official; or</P> <P>(2) The applicable time limit has passed without a determination on the initial request or the appeal, as the case may be, having been made.</P> <P>(d) Each appeal must be made in writing within thirty days from the date of receipt of the original denial and should include the DOT file or reference number assigned to the request and all information and arguments relied upon by the person making the request. (Appeals may be submitted via facsimile and conventional mail, but not via electronic mail.) Such letter should indicate that it is an appeal from a denial of a request made under FOIA. The envelope in which a mailed appeal is sent should be prominently marked: “FOIA Appeal.” If these requirements are not met, the twenty-day limit described in § 7.32 will not begin to run until the appeal has been identified, or would have been identified with the exercise of due diligence, by a DOT employee as an appeal under FOIA, and has been received by the appropriate office.</P> <P>(e) Whenever the responsible DOT official determines it necessary, he/she may require the requestor to furnish additional information, or proof of factual allegations, and may order other proceedings appropriate in the circumstances; in any case in which a request or order is made, DOT's time for responding ceases to count while the requestor responds to the request or order. The decision of the responsible DOT official as to the availability of the record or the appropriateness of a fee waiver or reduction constitutes final agency action for the purpose of judicial review.</P> <P>(f) The decision of the responsible DOT official not to disclose a record under this part or not to grant a request for a fee waiver or reduction is considered to be a denial by the Secretary for the purpose of 5 U.S.C. 552(a)(4)(B).</P> <P>(g) Any final determination by the head of an DOT component not to disclose a record under this part, or not to grant a request for a fee waiver or reduction, is subject to concurrence by a representative of the General Counsel.</P> <P>(h) Upon a determination that an appeal will be denied, the requestor will be informed in writing of the reasons for the denial of the request and the names and titles or positions of each person responsible for the determination, and that judicial review of the determination is available in the United States District Court for the judicial district in which the requestor resides or has his or her principal place of business, the judicial district in which the requested records are located, or the District of Columbia.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart E—Time Limits</HD> <SECTION> <SECTNO>§ 7.31</SECTNO> <SUBJECT>Initial determinations.</SUBJECT> <P>An initial determination whether to release a record requested pursuant to subpart C of this part will be made within twenty Federal working days after the request is received by the appropriate office in accordance with § 7.14, except that this time limit may be extended by up to ten Federal working days in accordance with § 7.33. The person making the request will be notified immediately of such determination. If the determination is to grant the request, the desired record will be made available as promptly as possible. If the determination is to deny the request, the person making the request will be notified in writing, at the same time he or she is notified of such determination, of the reason for the determination, the right of such person to appeal the determination, and the name and title of each person responsible for the initial determination to deny the request.</P> <P>(a) <E T="03">In general</E>. Components ordinarily will respond to requests according to their order of receipt.<PRTPAGE P="76"/> </P> <P>(b) <E T="03">Multitrack processing</E>. (1) A component may use two or more processing tracks by distinguishing between simple and more complex requests based on the amount of work and/or time needed to process the request, or on the number of pages involved.</P> <P>(2) A component using multitrack processing may provide requesters in its slower track(s) with an opportunity to limit the scope of their requests in order to qualify for faster processing within the specified limits of the component's faster track(s). A component doing so will contact the requestor either by telephone, letter, facsimile, or electronic mail, whichever is most efficient in each case.</P> <P>(c) <E T="03">Expedited processing</E>. (1) Requests and appeals will be taken out of order and given expedited treatment whenever a compelling need is demonstrated and it is determined that the compelling need involves:</P> <P>(i) Circumstances in which the lack of expedited treatment could reasonably be expected to pose an imminent threat to the life or physical safety of an individual;</P> <P>(ii) Requests made by a person primarily engaged in disseminating information, with an urgency to inform the public of actual or alleged Federal Government activity.</P> <P>(2) A request for expedited processing may be made at the time of the initial request for records or at any later time. For a prompt determination, a request for expedited processing must be received by the proper component. Requests must be submitted to the component that maintains the records requested.</P> <P>(3) A requestor who seeks expedited processing must submit a statement, certified to be true and correct to the best of that person's knowledge and belief, explaining in detail the basis for requesting expedited processing. For example, a requestor within the category in paragraph (c)(1)(ii) of this section, if not a full-time member of the news media, must establish that he or she is a person whose main professional activity or occupation is information dissemination, though it need not be his or her sole occupation. A requestor within the category in paragraph (c)(1)(ii) of this section also must establish a particular urgency to inform the public about the government activity involved in the request, beyond the public's right to know about government activity generally. The formality of certification may be waived as a matter of discretion.</P> <P>(4) Within ten calendar days of receipt of a request for expedited processing, the proper component will decide whether to grant it and will notify the requestor of the decision. If a request for expedited treatment is granted, the request will be given priority and will be processed as soon as practicable. If a request for expedited processing is denied, any appeal of that decision will be acted on expeditiously.</P> </SECTION> <SECTION> <SECTNO>§ 7.32</SECTNO> <SUBJECT>Final determinations.</SUBJECT> <P>(a) A determination with respect to any appeal made pursuant to § 7.21 will be made within twenty Federal working days after receipt of such appeal except that this time limit may be extended by up to ten Federal working days in accordance with § 7.33. The person making the request will be notified immediately of such determination pursuant to § 7.21.</P> <P>(b)<E T="03"> In general</E>. Components ordinarily will respond to appeals according to their order of receipt.</P> <P>(c)<E T="03"> Multitrack processing</E>. (1) A component may use two or more processing tracks by distinguishing between simple and more complex appeals based on the amount of work and/or time needed to process the appeal, or on the number of pages involved.</P> <P>(2) A component using multitrack processing may provide persons making appeals in its slower track(s) with an opportunity to limit the scope of their appeals in order to qualify for faster processing within the specified limits of the component's faster track(s). A component doing so will contact the person making the appeal either by telephone, letter, facsimile, or electronic mail, whichever is most efficient in each case.</P> <P>(d) <E T="03">Expedited processing</E>. (1) An appeal will be taken out of order and given expedited treatment whenever a compelling need is demonstrated and it is determined that the compelling need involves:<PRTPAGE P="77"/> </P> <P>(i) Circumstances in which the lack of expedited treatment could reasonably be expected to pose an imminent threat to the life or physical safety of an individual;</P> <P>(ii) A request made by a person primarily engaged in disseminating information, with an urgency to inform the public of actual or alleged Federal Government activity.</P> <P>(2) A request for expedited processing may be made at the time of the appeal or at any later time. For a prompt determination, a request for expedited processing must be received by the proper component, which is the component that is processing the appeal for the records requested.</P> <P>(3) A requestor who seeks expedited processing must submit a statement, certified to be true and correct to the best of that person's knowledge and belief, explaining in detail the basis for requesting expedited processing. For example, a requestor within the category in § 7.31(c)(1)(ii), if not a full-time member of the news media, must establish that he or she is a person whose main professional activity or occupation is information dissemination, though it need not be his or her sole occupation. A requestor within the category in § 7.31(c)(1)(ii) also must establish a particular urgency to inform the public about the government activity involved in the request, beyond the public's right to know about government activity generally. The formality of certification may be waived as a matter of discretion. A person who was granted expedited processing under § 7.31 need merely certify that the same circumstances apply.</P> <P>(4) Within ten calendar days of receipt of a request for expedited processing, the proper component will decide whether to grant it and will notify the requestor of the decision. If a request for expedited treatment is granted, the appeal will be given priority and will be processed as soon as practicable. If a request for expedited processing of an appeal is denied, no further administrative recourse is available.</P> </SECTION> <SECTION> <SECTNO>§ 7.33</SECTNO> <SUBJECT>Extension.</SUBJECT> <P>(a) In unusual circumstances as specified in this section, the time limits prescribed in § 7.31 and § 7.32 may be extended by written notice to the person making the request setting forth the reasons for such extension and the date on which a determination is expected to be dispatched. Such notice may not specify a date that would result in a cumulative extension of more than 10 Federal working days without providing the requestor an opportunity to modify the request as noted in this section. As used in this paragraph, “unusual circumstances” means, but only to the extent reasonably necessary to the proper processing of the particular request:</P> <P>(1) 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.</P> <P>(2) The need to search for, collect, and appropriately examine a voluminous amount of separate and distinct records that are demanded in a single request; or</P> <P>(3) The need for consultation, which will be conducted with all practicable speed, with any other agency or DOT component having a substantial interest in the determination of the request or among two or more components of the agency having substantial subject-matter interest therein.</P> <P>(b) Where the extension is for more than 10 working days, the DOT component will provide the requestor with an opportunity either to modify the request so that it may be processed within the time limits or to arrange an alternative time period with the component for processing the request or a modified request.</P> <P>(c) Where a component reasonably believes that multiple requests submitted by a requestor, or by a group of requesters acting in concert, constitute a single request that would otherwise involve unusual circumstances, and the requests involve clearly related matters, they may be aggregated for the purposes of fees and processing activities. Multiple requests involving unrelated matters will not be aggregated.</P> </SECTION> </SUBPART> <SUBPART> <PRTPAGE P="78"/> <HD SOURCE="HED">Subpart F—Fees</HD> <SECTION> <SECTNO>§ 7.41</SECTNO> <SUBJECT>General.</SUBJECT> <P>(a) This subpart prescribes fees for services performed for the public under subparts B and C of this part by DOT.</P> <P>(b) All terms defined by FOIA apply to this subpart, and the term “hourly rate” means the actual hourly base pay for a civilian employee or, for members of the Coast Guard, the equivalent hourly pay rate computed using a 40-hour week and the member's normal basic pay and allowances.</P> <P>(c) This subpart applies to all employees of DOT, including those of non-appropriated fund activities of the Coast Guard and the Maritime Administration.</P> <P>(d) This subpart does not apply to any special study, special statistical compilation, table, or other record requested under 49 U.S.C. 329(c). The fee for the performance of such a service is the actual cost of the work involved in compiling the record. All such fees received by DOT in payment of the cost of such work are deposited in a separate account administered under the direction of the Secretary, and may be used for the ordinary expenses incidental to providing the information.</P> <P>(e) This subpart does not apply to requests from record subjects for records about themselves in DOT systems of records, which are determined in accordance with the Privacy Act, as implemented by DOT regulations (49 CFR part 10).</P> </SECTION> <SECTION> <SECTNO>§ 7.42</SECTNO> <SUBJECT>Payment of fees.</SUBJECT> <P>(a) The fees prescribed in this subpart may be paid by check, draft, or money order, payable to the DOT component where fees were incurred, for deposit in the General Fund of the Treasury of the United States, <E T="03">e.g.</E> DOT/FAA.</P> <P>(b) Charges may be assessed by DOT for time spent searching for requested records even if the search fails to locate records or the records located are determined to be exempt from disclosure. In addition, if records are requested for commercial use, DOT may assess a fee for time spent reviewing any responsive records located to determine whether they are exempt from disclosure.</P> <P>(c) When it is estimated that the search charges, review charges, duplication fees, or any combination of fees that could be charged to the requestor will likely exceed US $25, the requestor will be notified of the estimated amount of the fees, unless the requestor has indicated in advance his or her willingness to pay fees as high as those anticipated. In cases where a requestor has been notified that actual or estimated fees may amount to more than US $25, the request will be deemed not to have been received until the requestor has agreed to pay the anticipated total fee. The notice will also inform the requestor how to consult with the appropriate DOT officials with the object of reformulating the request to meet his or her needs at a lower cost.</P> <P>(d) Payment of fees may be required prior to actual duplication or delivery of any releasable records to a requestor. However, advance payment, <E T="03">i.e.</E>, before work is commenced or continued on a request, may not be required unless:</P> <P>(1) Allowable charges that a requestor may be required to pay are likely to exceed US $250; or</P> <P>(2) The requestor has failed to pay within 30 days of the billing date fees charged for a previous request to any part of DOT.</P> <P>(e) When paragraph (d)(1) of this section applies, the requestor will be notified of the likely cost and, where he/she has a history of prompt payment of FOIA fees, requested to furnish satisfactory assurance of full payment of FOIA fees. Where the requestor does not have any history of payment, he or she may be required to make advance payment of any amount up to the full estimated charges.</P> <P>(f) When paragraph (d)(2) of this section applies, the requestor will be required to demonstrate that the fee has, in fact, been paid or to pay the full amount owed, including any applicable interest, late handling charges, and penalty charges as discussed in paragraphs (g) and (h) of this section. The requestor will also be required to make an advance payment of the full amount of the estimated fee before processing of a new request or continuation of a pending request is begun.<PRTPAGE P="79"/> </P> <P>(g) DOT will assess interest on an unpaid bill starting on the 31st day following the day on which the notice of the amount due is first mailed to the requestor. Interest will accrue from the date of the notice of amount due and will be at the rate prescribed in 31 U.S.C. 3717. Receipt by DOT of a payment for the full amount of the fees owed within 30 calendar days after the date of the initial billing will stay the accrual of interest, even if the payment has not been processed.</P> <P>(h) If payment of fees charged is not received within 30 calendar days after the date the initial notice of the amount due is first mailed to the requestor, an administrative charge will be assessed by DOT to cover the cost of processing and handling the delinquent claim. In addition, a penalty charge will be applied with respect to any principal amount of a debt that is more than 90 days past due. Where appropriate, other steps permitted by Federal debt collection statutes, including disclosure to consumer reporting agencies and use of collection agencies, will be used by DOT to encourage payment of amounts overdue.</P> <P>(i) Notwithstanding any other provision of this subpart, when the total amount of fees that could be charged for a particular request (or aggregation of requests) under subpart C of this part, after taking into account all services that must be provided free of, or at a reduced, charge, is less than US $10.00 DOT will not make any charge for fees.</P> </SECTION> <SECTION> <SECTNO>§ 7.43</SECTNO> <SUBJECT>Fee schedule.</SUBJECT> <P>The rates for manual searching, computer operator/programmer time and time spent reviewing records will be calculated based on the grades and rates established by the Washington-Baltimore Federal White-Collar Pay Schedule or equivalent grades, as follows:</P> <P>When performed by employees: </P> <EXTRACT> <FP SOURCE="FP-1">GS-1 through GS-8—Hourly rate of GS-5 step 7 plus 16%</FP> <FP SOURCE="FP-1">GS-9 through GS-14—Hourly rate of GS-12 step 7 plus 16%</FP> <FP SOURCE="FP-1">GS-15 and above—Hourly rate of GS-15 step 7 plus 16%</FP> </EXTRACT> <P>(a) The standard fee for a manual search to locate a record requested under subpart C of this part, including making it available for inspection, will be determined by multiplying the searcher's rate as calculated from the chart in this section and the time spent conducting the search.</P> <P>(b) The standard fee for a computer search for a record requested under subpart C of this part is the actual cost. This includes the cost of operating the central processing unit for the time directly attributable to searching for records responsive to a FOIA request and the operator/programmer's rate as calculated from the chart for costs apportionable to the search.</P> <P>(c) The standard fee for review of records requested under subpart C of this part is the reviewer's rate as calculated from the chart multiplied by the time he/she spent determining whether the requested records are exempt from mandatory disclosure.</P> <P>(d) The standard fee for duplication of a record requested under subpart C of this part is determined as follows:</P> <P>(1) Per copy of each page (not larger than 8.5 x 14 inches) reproduced by photocopy or similar means (includes costs of personnel and equipment)—US $0.10.</P> <P>(2) Per copy prepared by computer such as tapes or printout—actual costs, including operator time.</P> <P>(3) Per copy prepared by any other method of duplication—actual direct cost of production.</P> <P>(e) Depending upon the category of requestor, and the use for which the records are requested, in some cases the fees computed in accordance with the standard fee schedule in paragraph (d) of this section will either be reduced or not charged, as prescribed by other provisions of this subpart.</P> <P>(f) The following special services not required by FOIA may be made available upon request, at the stated fees: Certified copies of documents, with DOT or DOT component seal (where authorized)—US $4.00; or true copy, without seal—US $2.00.</P> </SECTION> <SECTION> <SECTNO>§ 7.44</SECTNO> <SUBJECT>Services performed without charge or at a reduced charge.</SUBJECT> <P>(a) A fee is not to be charged to any requestor making a request under subpart C of this part for the first two hours of search time unless the records are requested for commercial use. For <PRTPAGE P="80"/>purposes of this subpart, when a computer search is required two hours of search time will be considered spent when the hourly costs of operating the central processing unit used to perform the search added to the computer operator's salary cost (hourly rate plus 16 percent) equals two hours of the computer operator's salary costs (hourly rate plus 16 percent).</P> <P>(b) A fee is not to be charged for any time spent searching for a record requested under subpart C if the records are not for commercial use and the requestor is a representative of the news media, an educational institution whose purpose is scholarly research, or a non-commercial scientific institution whose purpose is scientific research.</P> <P>(c) A fee is not to be charged for duplication of the first 100 pages (standard paper, not larger than 8.5 x 14 inches) of records provided to any requestor in response to a request under Subpart C unless the records are requested for commercial use.</P> <P>(d) A fee is not to be charged to any requestor under subpart C to determine whether a record is exempt from mandatory disclosure unless the record is requested for commercial use. A review charge may not be charged except with respect to an initial review to determine the applicability of a particular exemption to a particular record or portion of a record. A review charge may not be assessed for review at the administrative appeal level. When records or portions of records withheld in full under an exemption that is subsequently determined not to apply are reviewed again to determine the applicability of other exemptions not previously considered, this is considered an initial review for purposes of assessing a review charge.</P> <P>(e) Documents will be furnished without charge or at a reduced charge if the official having initial denial authority determines that disclosure of the information is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requestor.</P> <P>(f) Factors to be considered by DOT officials authorized to determine whether a waiver or reduction of fees will be granted include:</P> <P>(1) Whether the subject matter of the requested records concerns the operations or activities of the Federal government;</P> <P>(2) Whether the disclosure is likely to contribute to an understanding of Federal government operations or activities;</P> <P>(3) Whether disclosure of the requested information will contribute to the understanding of the public at large, as opposed to the individual understanding of the requestor or a narrow segment of interested persons;</P> <P>(4) Whether the contribution to public understanding of Federal government operations or activities will be significant;</P> <P>(5) Whether the requestor has a commercial interest that would be furthered by the requested disclosure; and</P> <P>(6) Whether the magnitude of any identified commercial interest to the requestor is sufficiently large in comparison with the public interest in disclosure that disclosure is primarily in the commercial interest of the requestor.</P> <P>(g) Documents will be furnished without charge or at a reduced charge if the official having initial denial authority determines that the request concerns records related to the death of an immediate family member who was, at the time of death, a DOT employee or a member of the Coast Guard.</P> <P>(h) Documents will be furnished without charge or at a reduced charge if the official having initial denial authority determines that the request is by the victim of a crime who seeks the record of the trial or court-martial at which the requestor testified.</P> </SECTION> <SECTION> <SECTNO>§ 7.45</SECTNO> <SUBJECT>Transcripts.</SUBJECT> <P>Transcripts of hearings or oral arguments are available for inspection. Where transcripts are prepared by a nongovernmental contractor, and the contract permits DOT to handle the reproduction of further copies, § 7.43 applies. Where the contract for transcription services reserves the sales privilege to the reporting service, any duplicate copies must be purchased directly from the reporting service.</P> </SECTION> <SECTION> <PRTPAGE P="81"/> <SECTNO>§ 7.46</SECTNO> <SUBJECT>Alternative sources of information.</SUBJECT> <P>In the interest of making documents of general interest publicly available at as low a cost as possible, alternative sources will be arranged whenever possible. In appropriate instances, material that is published and offered for sale may be obtained from the Superintendent of Documents, U.S. Government Printing Office, Washington, DC 20402; U.S. Department of Commerce's National Technical Information Service (NTIS), Springfield, Virginia 22151; or National Audio-Visual Center, National Archives and Records Administration, Capital Heights, MD 20743-3701.</P> </SECTION> </SUBPART> </PART> <PART> <EAR>Pt. 8</EAR> <HD SOURCE="HED">PART 8—CLASSIFIED INFORMATION: CLASSIFICATION/DECLASSIFICATION/ACCESS</HD> <CONTENTS> <SUBPART> <HD SOURCE="HED">Subpart A—General</HD> <SECHD>Sec.</SECHD> <SECTNO>8.1</SECTNO> <SUBJECT>Scope.</SUBJECT> <SECTNO>8.3</SECTNO> <SUBJECT>Applicability.</SUBJECT> <SECTNO>8.5</SECTNO> <SUBJECT>Definitions.</SUBJECT> <SECTNO>8.7</SECTNO> <SUBJECT>Spheres of responsibility.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Classification/Declassification of Information</HD> <SECTNO>8.9</SECTNO> <SUBJECT>Information Security Review Committee.</SUBJECT> <SECTNO>8.11</SECTNO> <SUBJECT>Authority to classify information.</SUBJECT> <SECTNO>8.13</SECTNO> <SUBJECT>Authority to downgrade or declassify.</SUBJECT> <SECTNO>8.15</SECTNO> <SUBJECT>Mandatory review for classification.</SUBJECT> <SECTNO>8.17</SECTNO> <SUBJECT>Classification challenges.</SUBJECT> <SECTNO>8.19</SECTNO> <SUBJECT>Procedures for submitting and processing requests for classification reviews.</SUBJECT> <SECTNO>8.21</SECTNO> <SUBJECT>Burden of proof.</SUBJECT> <SECTNO>8.23</SECTNO> <SUBJECT>Classified information transferred to the Department of Transportation.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—Access to Information</HD> <SECTNO>8.25</SECTNO> <SUBJECT>Personnel Security Review Board.</SUBJECT> <SECTNO>8.27</SECTNO> <SUBJECT>Public availability of declassified information.</SUBJECT> <SECTNO>8.29</SECTNO> <SUBJECT>Access by historical researchers and former Presidential appointees.</SUBJECT> <SECTNO>8.31</SECTNO> <SUBJECT>Industrial security.</SUBJECT> </SUBPART> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>E. O. 10450, 3 CFR, 1949-1953 Comp., p. 936; E. O. 12829, 3 CFR, 1993 Comp., p. 570; E. O. 12958, 3 CFR, 1995 Comp., p. 333; E. O. 12968, 3 CFR, 1995 Comp., p. 391.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>62 FR 23661, May 1, 1997, unless otherwise noted.</P> </SOURCE> <SUBPART> <HD SOURCE="HED">Subpart A—General</HD> <SECTION> <SECTNO>§ 8.1</SECTNO> <SUBJECT>Scope.</SUBJECT> <P>This part sets forth procedures for the classification, declassification, and availability of information that must be protected in the interest of national security, in implementation of Executive Order 12958 of April 17, 1995, “Classified National Security Information;” and for the review of decisions to revoke, or not to issue, national security information clearances, or to deny access to classified information, under Executive Order 12968 of August 2, 1995, “Access to National Security Information”.</P> </SECTION> <SECTION> <SECTNO>§ 8.3</SECTNO> <SUBJECT>Applicability.</SUBJECT> <P>This part applies to all elements of the Department of Transportation.</P> </SECTION> <SECTION> <SECTNO>§ 8.5</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>As used in this part:</P> <P> <E T="03">Classification</E> means the act or process by which information is determined to be classified information.</P> <P> <E T="03">Classification levels</E> means the following three levels at which information may be classified:</P> <P>(a) Top secret. Information that requires the highest degree of protection, and the unauthorized disclosure of which could reasonably be expected to cause exceptionally grave damage to the national security that the original classification authority is able to identify or describe.</P> <P>(b) Secret. Information that requires a substantial degree of protection, and the unauthorized disclosure of which could reasonably be expected to cause serious damage to the national security that the original classification authority is able to identify or describe.</P> <P>(c) Confidential. Information that requires protection and the unauthorized disclosure of which could reasonably be expected to cause damage to the national security that the original classification authority is able to identify or describe.</P> <P> <E T="03">Classified information</E> or “classified national security information” means information that has been determined under Executive Order 12958, or any predecessor or successor order, to require protection against unauthorized disclosure, and is marked to indicate <PRTPAGE P="82"/>its classified status when in documentary form.</P> <P> <E T="03">Clearance</E> means that an individual is eligible, under the standards of Executive Orders 10450 and 12968 and appropriate DOT regulations, for access to classified information.</P> <P> <E T="03">Damage to the national security</E> means harm to the national defense or foreign relations of the United States from the unauthorized disclosure of information, to include the sensitivity, value, and utility of that information.</P> <P> <E T="03">Declassification</E> means the authorized change in the status of information from classified information to unclassified information.</P> <P> <E T="03">Downgrading</E> means a determination by a declassification authority that information classified and safeguarded at a specific level shall be classified and safeguarded at a lower level.</P> <P> <E T="03">Information</E> means any knowledge that can be communicated, or documentary material, regardless of its physical form or characteristics, that is owned by, produced by or for, or is under the control of the United States Government. “Control” means the authority of the agency that originates information, or its successor in function, to regulate access to the information.</P> <P> <E T="03">Mandatory declassification review</E> means the review for declassification of classified information in response to a request for declassification that qualifies under Section 3.6 of Executive Order 12958.</P> <P> <E T="03">Original classification</E> means an initial determination that information requires, in the interest of national security, protection against unauthorized disclosure.</P> <P> <E T="03">Original classification authority</E> means an individual authorized in writing, either by the President or by agency heads or other officials designated by the President, to classify information in the first instance.</P> </SECTION> <SECTION> <SECTNO>§ 8.7</SECTNO> <SUBJECT>Spheres of responsibility.</SUBJECT> <P>(a) Pursuant to Section 5.6(c) of Executive Order 12958, and to section 6.1 of Executive Order 12968, the Assistant Secretary for Administration is hereby designated as the senior agency official of the Department of Transportation with assigned responsibilities to assure effective compliance with and implementation of Executive Order 12958, Executive Order 12968, Office of Management and Budget Directives, the regulations in this part, and related issuances.</P> <P>(b) In the discharge of these responsibilities, the Assistant Secretary for Administration will be assisted by the Director of Security and Administrative Management, who, in addition to other actions directed by this part, will evaluate the overall application of and adherence to the security policies and requirements prescribed in this part and who will report his/her findings and recommendations to the Assistant Secretary for Administration, heads of Departmental elements, and, as appropriate, to the Secretary.</P> <P>(c) Secretarial Officers and heads of Departmental elements will assure that the provisions in this part are effectively administered, that adequate personnel and funding are provided for this purpose, and that corrective actions that may be warranted are taken promptly.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Classification/Declassification of Information</HD> <SECTION> <SECTNO>§ 8.9</SECTNO> <SUBJECT>Information Security Review Committee.</SUBJECT> <P>(a) There is hereby established a Department of Transportation Information Security Review Committee, which will have authority to:</P> <P>(1) Act on all suggestions and complaints not otherwise resolved with respect to the Department's administration of Executive Order 12958 and implementing directives, including those regarding overclassification, failure to declassify, or delay in declassifying;</P> <P>(2) Act on appeals of requests for classification reviews, and appeals of requests for records under 5 U.S.C. 552 (Freedom of Information Act) when the initial, and proposed final, denials are based on continued classification of the record; and</P> <P>(3) Recommend to the Secretary, when necessary, appropriate administrative action to correct abuse or violation of any provision of Executive Order 12598 and implementing directives.<PRTPAGE P="83"/> </P> <P>(b) The Information Security Review Committee will be composed of the Assistant Secretary for Administration, who will serve as Chair; the General Counsel; and the Director of Security and Administrative Management. When matters affecting a particular Departmental agency are at issue, the Associate Administrator for Administration for that agency, or the Chief of Staff for the U.S. Coast Guard, as the case may be, will participate as an ad hoc member, together with the Chief Counsel of that agency. Any regular member may designate a representative with full power to serve in his/her place.</P> <P>(c) In carrying out its responsibilities to review decisions to revoke or not to issue clearances, or to deny access to classified information, the Committee will establish whatever procedures it deems fit.</P> </SECTION> <SECTION> <SECTNO>§ 8.11</SECTNO> <SUBJECT>Authority to classify information.</SUBJECT> <P>(a) Executive Order 12958 confers upon the Secretary of Transportation the authority to originally classify information as SECRET or CONFIDENTIAL with further authorization to delegate this authority.</P> <P>(b) The following delegations of authority originally to classify information as “Secret” or “Confidential”, which may not be redelegated, are hereby made:</P> <P>(1) <E T="03">Office of the Secretary of Transportation.</E> The Deputy Secretary; Assistant Secretary for Administration; Director of Intelligence and Security; Director of Security and Administrative Management.</P> <P>(2) <E T="03">United States Coast Guard.</E> Commandant; Chief, Office of Law Enforcement and Defense Operations.</P> <P>(3) <E T="03">Federal Aviation Administration.</E> Administrator; Assistant Administrator for Civil Aviation Security.</P> <P>(4) <E T="03">Maritime Administration.</E> Administrator.</P> <P>(c) Although the delegations of authority set out in paragraph (b) of this section are expressed in terms of positions, the authority is personal and is invested only in the individual occupying the position. The authority may not be exercised “by direction of” a designated official. The formal appointment or assignment of an individual to one of the identified positions or a designation in writing to act in the absence of one of these officials, however, conveys the authority originally to classify information as “SECRET”.</P> <P>(d) Previous delegations and redelegations of authority within the Department of Transportation originally to classify information are hereby rescinded.</P> </SECTION> <SECTION> <SECTNO>§ 8.13</SECTNO> <SUBJECT>Authority to downgrade or declassify.</SUBJECT> <P>Information originally classified by the Department may be specifically downgraded or declassified by either the official authorizing the original classification, if that official is still serving in the same position, the originator's current successor in function, a supervisory official of either, officials delegated declassification authority in writing by the Secretary, or by the Departmental Information Security Review Committee.</P> </SECTION> <SECTION> <SECTNO>§ 8.15</SECTNO> <SUBJECT>Mandatory review for classification.</SUBJECT> <P>(a) All information classified by the Department of Transportation under Executive Order 12958 or predecessor orders shall be subject to a review for declassification if:</P> <P>(1) The request for review describes the information with sufficient specificity to enable its location with a reasonable amount of effort; and</P> <P>(2) The information has not been reviewed for declassification within the prior two years. If the information has been reviewed within the prior two years, or the information is the subject of pending litigation, the requestor will be informed of this fact, and of the Department's decision not to declassify the information and of his/her right to appeal the Department's decision not to declassify the information to the Interagency Security Classification Appeals Panel.</P> <P>(b) All information reviewed for declassification because of a mandatory review will be declassified if it does not meet the standards for classification in Executive Order 12958. The information <PRTPAGE P="84"/>will then be released unless withholding is otherwise authorized and warranted under applicable law.</P> </SECTION> <SECTION> <SECTNO>§ 8.17</SECTNO> <SUBJECT>Classification challenges.</SUBJECT> <P>(a) Authorized holders of information classified by the Department of Transportation who, in good faith, believe that its classification status is improper are encouraged and expected to challenge the classification status of the information before the Departmental Information Security Review Committee.</P> <P>(1) No individual will be subject to retribution for bringing such a challenge; and</P> <P>(2) Each individual whose challenge is denied will be advised that he/she may appeal to the Interagency Security Classification Appeals Panel established by section 5.4 of Executive Order 12958.</P> <P>(b) This classification challenge provision is not intended to prevent an authorized holder of information classified by the Department of Transportation from informally questioning the classification status of particular information. Such information inquiries should be encouraged as means to resolve classification concerns and reduce the administrative burden of formal challenges.</P> </SECTION> <SECTION> <SECTNO>§ 8.19</SECTNO> <SUBJECT>Procedures for submitting and processing requests for classification reviews.</SUBJECT> <P>(a) The Director of Security and Administrative Management is hereby designated as the official to whom a member of the public or another department or agency should submit a request for a classification review of classified information produced by or under the primary cognizance of the Department. Elements of the Department that receive a request directly will immediately notify the Director.</P> <P>(b) If the request for classification review involves material produced by or under the cognizance of the U.S. Coast Guard or the Federal Aviation Administration, the Director will forward the request to the headquarters security staff of the element concerned for action. If the request involves material produced by other Departmental elements, the Director will serve as the office acting on the request.</P> <P>(c) The office acting on the request will:</P> <P>(1) Immediately acknowledge receipt of the request and provide a copy of the correspondence to the Director. If a fee for search of records is involved pursuant to 49 CFR Part 7, the requester will be so notified;</P> <P>(2) Conduct a security review, which will include consultation with the office that produced the material and with source authorities when the classification, or exemption of material from automatic declassification, was based upon determinations by an original classifying authority; and</P> <P>(3) Assure that the requester is notified of the determination within 30 calendar days or given an explanation as to why further time is necessary, and provide a copy of the notification to the Director.</P> <P>(d) If the determination reached is that continued classification is required, the notification to the requester will include, whenever possible, a brief statement as to why the requested material cannot be declassified. The notification will also advise the requester of the right to appeal the determination to the Departmental Information Security Review Committee. A requester who wishes to appeal a classification review decision, or who has not been notified of a decision after 60 calendar days, may submit an appeal to the Departmental Information Security Review Committee.</P> <P>(e) If the determination reached is that continued classification is not required, the information will be declassified and the material remarked accordingly. The office acting on the request will then refer the request to the office originating the material or higher authority to determine if it is otherwise withholdable from public release under the Freedom of Information Act (5 U.S.C. 552) and the Department's implementing regulations (49 CFR Part 7).</P> <P>(1) If the material is available under the Freedom of Information Act, the requester will be advised that the material has been declassified and is available. If the request involves the furnishing of copies and a fee is to be <PRTPAGE P="85"/>collected, the requester will be so advised pursuant to 49 CFR Part 7, Departmental regulations implementing the Freedom of Information Act.</P> <P>(2) If the material is not available under the Freedom of Information Act, the requester will be advised that the material has been declassified but that the record is unavailable pursuant to the Freedom of Information Act, and that the provisions concerning procedures for reconsidering decisions not to disclose records, contained in 49 CFR Part 7, apply.</P> <P>(f) Upon receipt of an appeal from a classification review determination based upon continued classification, the Departmental Information Security Review Committee will acknowledge receipt immediately and act on the matter within 30 calendar days. With respect to information originally classified by or under the primary cognizance of the Department, the Committee, acting for the Secretary, has authority to overrule previous determinations in whole or in part when, in its judgment, continued protection in the interest of national security is no longer required. When the classification of the material produced in the Department is based upon a classification determination made by another department or agency, the Committee will immediately consult with its counterpart committee for that department or agency.</P> <P>(1) If it is determined that the material produced in the Department requires continued classification, the requester will be so notified and advised of the right to appeal the decision to the Interagency Classification Review Committee.</P> <P>(2) If it is determined that the material no longer requires classification, it will be declassified and remarked. The Committee will refer the request to the General Counsel, or to the head of the Departmental agency concerned, as the case may be, to determine if the material is otherwise withholdable from the public under the Freedom of Information Act (5 U.S.C. 552) and Departmental regulations, (49 CFR Part 7), and paragraphs (f)(1) and (2) of this section will be followed. A copy of the response to the requester will be provided to the Committee.</P> <P>(g) Requests for a classification review of material more than 25 years old will be referred directly to the Archivist of the United States and the requester will be notified of the referral. In this event, the provisions of this section apply.</P> <P>(h) Whenever a request is insufficient in the description of the record sought, the requester will be asked to limit his request to records that are reasonably obtainable. If, in spite of these steps, the requester does not describe the records with sufficient particularity, or the record requested cannot be obtained with a reasonable amount of effort, the requester will be notified of the reasons why the request is denied and of his/her right to appeal the determination to the Departmental Information Security Review Committee.</P> </SECTION> <SECTION> <SECTNO>§ 8.21</SECTNO> <SUBJECT>Burden of proof.</SUBJECT> <P>For the purpose of determinations to be made under §§ 8.13, 8.15, and 8.17, the burden of proof is on the originating Departmental agency to show that continued classification is warranted.</P> </SECTION> <SECTION> <SECTNO>§ 8.23</SECTNO> <SUBJECT>Classified information transferred to the Department of Transportation.</SUBJECT> <P>(a) Classified information officially transferred to the Department in conjunction with a transfer of function, and not merely for storage purposes, will be considered to have been originated by the Department.</P> <P>(b) Classified information in the custody of the Department originated by a department or agency that has ceased to exist and for whom there is no successor agency will be deemed to have been originated by the Department. This information may be declassified or downgraded by the Department after consultation with any other agency that has an interest in the subject matter of the information. Such agency will be allowed 30 calendar days in which to express an objection, if it so desires, before action is taken. A difference of opinion that cannot be resolved will be referred to the Departmental Information Security Review Committee, which will consult with its counterpart committee for the other agency.<PRTPAGE P="86"/> </P> <P>(c) Classified information transferred to the National Archives and Records Administration (NARA) will be declassified or downgraded by the Archivist of the United States in accordance with Executive Order 12958, Departmental classification guides, and any existing procedural agreement between NARA and the Department. The Department will take all reasonable steps to declassify information contained in records determined to have permanent historical value before they are accessioned in NARA.</P> <P>(d) To the extent practicable, the Department will adopt a system of records management that will facilitate the public release of documents at the time such documents are declassified under the provisions of this part for automatic declassification. To the maximum extent possible without destroying the integrity of the Department's files, all such material will be segregated or set aside for public release upon request. The Department will cooperate with the Archivist in efforts to establish a Government-wide database of information that has been declassified.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—Access to Information</HD> <SECTION> <SECTNO>§ 8.25</SECTNO> <SUBJECT>Personnel Security Review Board.</SUBJECT> <P>(a) There is hereby established a Department of Transportation Personnel Security Review Board, which will, on behalf of the Secretary of Transportation (except in any case in which the Secretary personally makes the decision), make the administratively final decision on an appeal arising in any part of the Department from:</P> <P>(1) A decision not to grant access to classified information;</P> <P>(2) A decision to revoke access to classified information; or</P> <P>(3) A decision under § 8.29 to deny access to classified information.</P> <P>(b) The Personnel Security Review Board will be composed of:</P> <P>(1) Two persons appointed by the Assistant Secretary for Administration: one from the Office of Personnel and Training, and one, familiar with personnel security adjudication, from the Office of Security and Administrative Management, who will serve as Chair;</P> <P>(2) One person appointed by the General Counsel, who, in addition to serving as a member of the Board, will provide to the Board whatever legal services it may require; and</P> <P>(3) One person appointed by each of the Commandant of the Coast Guard and the Federal Aviation Administrator.</P> <P>(4) Any member may designate a representative, meeting the same criteria as the member, with full power to serve in his/her place.</P> <P>(c) In carrying out its responsibilities to review final decisions to revoke or deny access to classified information, the Board will establish whatever procedures it deems fit.</P> </SECTION> <SECTION> <SECTNO>§ 8.27</SECTNO> <SUBJECT>Public availability of declassified information.</SUBJECT> <P>(a) It is a fundamental policy of the Department to make information available to the public to the maximum extent permitted by law. Information that is declassified for any reason loses its status as material protected in the interest of national security. Accordingly, declassified information will be handled in every respect on the same basis as all other unclassified information. Declassified information is subject to the Departmental public information policies and procedures, with particular reference to the Freedom of Information Act (5 U.S.C. 552) and implementing Departmental regulations (49 CFR Part 7).</P> <P>(b) In furtherance of this policy, all classified material produced after June 1, 1972 that is of sufficient historical or other value to warrant preservation as permanent records in accordance with appropriate records administrative standards, and that becomes declassified, will be systematically reviewed prior to the end of each calendar year for the purpose of making the material publicly available. To the maximum extent possible without destroying the integrity of the Department's files, all such material will be segregated or set aside for public release upon request.</P> </SECTION> <SECTION> <SECTNO>§ 8.29</SECTNO> <SUBJECT>Access by historical researchers and former Presidential appointees.</SUBJECT> <P>(a) <E T="03">Historical researchers.</E> (1) Persons outside the executive branch who are engaged in historical research projects <PRTPAGE P="87"/>may have access to classified information provided that:</P> <P>(i) Access to the information is clearly consistent with the interests of national security; and</P> <P>(ii) The person to be granted access is trustworthy.</P> <P>(2) The provisions of this paragraph apply only to persons who are conducting historical research as private individuals or under private sponsorship and do not apply to research conducted under Government contract or sponsorship. The provisions are applicable only to situations where the classified information concerned, or any part of it, was originated by the Department or its contractors, or where the information, if originated elsewhere, is in the sole custody of the Department. Any person requesting access to material originated in another agency or to information under the exclusive jurisdiction of the National Archives and Records Administration (NARA) will be referred to the other agency or to NARA, as appropriate.</P> <P>(3) When a request for access to classified information for historical research is received, it will be referred to the appropriate local security office. That office will obtain from the applicant completed Standard Form 86, Questionnaire for National Security Positions, in triplicate, and Standard Form 87, Fingerprint Chart; a statement in detail to justify access, including identification of the kind of information desired and the organization or organizations, if any, sponsoring the research; and a written statement (signed, dated, and witnessed) with respect to the following:</P> <P>(i) That the applicant will abide by regulations of the Department:</P> <P>(A) To safeguard classified information; and</P> <P>(B) To protect information that has been determined to be proprietary or privileged and is therefore not eligible for public dissemination.</P> <P>(ii) That the applicant understands that any classified information that the applicant receives affects the security of the United States.</P> <P>(iii) That the applicant acknowledges an obligation to safeguard classified information or privileged information of which the applicant gains possession or knowledge as a result of the applicant's access to files of the Department.</P> <P>(iv) That the applicant agrees not to reveal to any person or agency any classified information or privileged information obtained as a result of the applicant's access except as specifically authorized in writing by the Department, and further agrees that the applicant shall not use the information for purposes other than those set forth in the applicant's application.</P> <P>(v) That the applicant agrees to authorize a review of the applicant's notes and manuscript for the sole purpose of determining that no classified information or material is contained therein.</P> <P>(vi) That the applicant understands that failure to abide by conditions of this statement will constitute sufficient cause for canceling the applicant's access to classified information and for denying the applicant any future access, and may subject the applicant to criminal provisions of Federal law as referred to in this statement.</P> <P>(vii) That the applicant is aware and fully understands that title 18, United States Code, Crimes and Criminal Procedures, and the Internal Security Act of 1950, as amended, title 50, United States Code, prescribe, under certain circumstances, criminal penalties for the unauthorized disclosure of information respecting the national security, and for loss, destruction, or compromise of such information.</P> <P>(viii) That this statement is made to the U.S. Government to enable it to exercise its responsibilities for the protection of information affecting the national security.</P> <P>(ix) That the applicant understands that any material false statement that the applicant makes knowingly and willfully will subject the applicant to the penalties of 18 U.S.C. 1001.</P> <P>(4) The security office will process the forms in the same manner as specified for a preappointment national agency check for a critical-sensitive position. Upon receipt of the completed national agency check, the security office, if warranted, may determine that access by the applicant to the information will be clearly consistent with the interests of national security and the <PRTPAGE P="88"/>person to be granted access is trustworthy. If deemed necessary, before making its determination, the office may conduct or request further investigation. Before access is denied in any case, the matter will be referred through channels to the Director of Security and Administrative Management for review and submission to the Personnel Security Review Board for final review.</P> <P>(5) If access to TOP SECRET or intelligence or communications security information is involved a special background investigation is required. However, this investigation will not be requested until the matter has been referred through channels to the Director of Security and Administrative Management for determination as to adequacy of the justification and the consent of other agencies as required.</P> <P>(6) When it is indicated that an applicant's research may extend to material originating in the records of another agency, approval must be obtained from the other agency prior to the grant of access.</P> <P>(7) Approvals for access will be valid for the duration of the current research project but no longer than 2 years from the date of issuance, unless renewed. If a subsequent request for similar access is made by the individual within one year from the date of completion of the current project, access may again be granted without obtaining a new National Agency Check. If more than one year has elapsed, a new National Agency Check must be obtained. The local security office will promptly advise its headquarters security staff of all approvals of access granted under the provisions of this section.</P> <P>(8) An applicant may be given access only to that classified information that is directly pertinent to the applicant's approved project. The applicant may review files or records containing classified information only in offices under the control of the Department. Procedures must be established to identify classified material to which the applicant is given access. The applicant must be briefed on local procedures established to prevent unauthorized access to the classified material while in the applicant's custody, for the return of the material for secure storage at the end of the daily working period, and for the control of the applicant's notes until they have been reviewed. In addition to the security review of the applicant's manuscript, the manuscript must be reviewed by appropriate offices to assure that it is technically accurate insofar as material obtained from the Department is concerned, and is consistent with the Department's public release policies.</P> <P>(b) <E T="03">Former Presidential appointees.</E> Persons who previously occupied policymaking positions to which they were appointed by the President may be granted access to classified information or material that they originated, reviewed, signed, or received, while in public office, provided that:</P> <P>(1) It is determined that such access is clearly consistent with the interests of national security; and</P> <P>(2) The person agrees to safeguard the information, to authorize a review of the person's notes to assure that classified information is not contained therein, and that the classified information will not be further disseminated or published.</P> </SECTION> <SECTION> <SECTNO>§ 8.31</SECTNO> <SUBJECT>Industrial security.</SUBJECT> <P>(a) <E T="03">Background.</E> The National Industrial Security Program was established by Executive Order 12829 of January 6, 1993 for the protection of information classified pursuant to Executive Order 12356 of April 2, 1982, National Security Information, or its predecessor or successor orders, and the Atomic Energy Act of 1954, as amended. The Secretary of Defense serves as the Executive Agent for inspecting and monitoring contractors, licensees, grantees, and certificate holders that require or will require access to, or that store or will store, classified information, and for determining the eligibility for access to classified information of contractors, licensees, certificate holders, and grantees, and their respective employees.</P> <P>(b) <E T="03">Implementing regulations.</E> The Secretary of Transportation has entered into agreement for the Secretary of Defense to render industrial security services for the Department of Transportation. Regulations prescribed by the Secretary of Defense to fulfill the provisions of Executive Order 12829 <PRTPAGE P="89"/>have been extended to protect release of classified information for which the Secretary of Transportation is responsible. Specifically, this regulation is DOD 5220.22-M, National Industrial Security Program Operating Manual. This regulation is effective within the Department of Transportation, which functions as a User Agency as prescribed in the regulation. Appropriate security staffs, project personnel, and contracting officers assure that actions required by the regulation are taken.</P> </SECTION> </SUBPART> </PART> <PART> <EAR>Pt. 9</EAR> <HD SOURCE="HED">PART 9—TESTIMONY OF EMPLOYEES OF THE DEPARTMENT AND PRODUCTION OF RECORDS IN LEGAL PROCEEDINGS</HD> <CONTENTS> <SECHD>Sec.</SECHD> <SECTNO>9.1</SECTNO> <SUBJECT>Purpose.</SUBJECT> <SECTNO>9.2</SECTNO> <SUBJECT>Applicability.</SUBJECT> <SECTNO>9.3</SECTNO> <SUBJECT>Definitions.</SUBJECT> <SECTNO>9.5</SECTNO> <SUBJECT>General prohibition of production or disclosure in legal proceedings.</SUBJECT> <SECTNO>9.7</SECTNO> <SUBJECT>Testimony by employees before the Department or in other legal proceedings in which the United States is a party.</SUBJECT> <SECTNO>9.9</SECTNO> <SUBJECT>Legal proceedings between private litigants: General rules.</SUBJECT> <SECTNO>9.11</SECTNO> <SUBJECT>Legal proceedings between private litigants: Demands.</SUBJECT> <SECTNO>9.13</SECTNO> <SUBJECT>Legal proceedings between private litigants: Procedures to request records.</SUBJECT> <SECTNO>9.15</SECTNO> <SUBJECT>Legal proceedings between private litigants: Procedures to request testimony.</SUBJECT> <SECTNO>9.17</SECTNO> <SUBJECT>Legal proceedings between private litigants: Procedures for taking testimony.</SUBJECT> <SECTNO>9.19</SECTNO> <SUBJECT>Acceptance of service on behalf of Secretary.</SUBJECT> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>5 U.S.C. 301; 45 U.S.C. 41-42; 49 U.S.C. 322; 49 U.S.C. 504(f); 23 U.S.C. 409.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>58 FR 6724, Feb. 2, 1993, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 9.1</SECTNO> <SUBJECT>Purpose.</SUBJECT> <P>(a) This part sets forth procedures governing the testimony of an employee in legal proceedings in which the United States is a party. It also sets forth procedures to be followed when an employee is issued a subpoena, order or other demand (collectively referred to in this part as a “demand”) by a court or other competent authority, or is requested by a private litigant, to provide testimony or produce records concerning information acquired in the course of performing official duties or because of the employee's official status. It also prescribes the policies and procedures of the Department with respect to the acceptance of service of legal process and pleadings in legal proceedings involving the Department.</P> <P>(b) The purposes of this part are to:</P> <P>(1) Conserve the time of employees for conducting official business;</P> <P>(2) Minimize the possibility of involving the Department in controversial issues not related to its mission;</P> <P>(3) Maintain the impartiality of the Department among private litigants;</P> <P>(4) Avoid spending the time and money of the United States for private purposes; and</P> <P>(5) To protect confidential, sensitive information and the deliberative processes of the Department.</P> <P>(c) Agency counsel, in his or her discretion, may permit an exception from any requirement in this part. The exception may be granted only when the deviation will not interfere with matters of operational or military necessity, and when agency counsel determines that:</P> <P>(1) It is necessary to prevent a miscarriage of justice;</P> <P>(2) The Department has an interest in the decision that may be rendered in the legal proceeding; or</P> <P>(3) The exception is in the best interest of the Department or the United States.</P> <FP>For Office of Inspector General employees and documents, the Inspector General, in conjunction with the General Counsel of the Department, may permit an exception from any requirement of this part if the Inspector General determines, based on the Inspector General Act of 1978, as amended, that application of the requirement would be inappropriate.</FP> </SECTION> <SECTION> <SECTNO>§ 9.2</SECTNO> <SUBJECT>Applicability.</SUBJECT> <P>This part applies to the testimony of an employee in legal proceedings in which the United States is a party. It also applies in legal proceedings between private litigants to requests or demands for testimony or records concerning information acquired in the course of an employee performing official duties or because of the employee's official status. This part does not apply to any legal proceeding in which an <PRTPAGE P="90"/>employee is to testify as to facts or events that are in no way related to the employee's official duties or the functions of the Department. Nor does it apply to Congressional demands for testimony or documents.</P> </SECTION> <SECTION> <SECTNO>§ 9.3</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>For purposes of this part:</P> <P> <E T="03">Department</E> means the Department of Transportation (DOT), including the Office of the Secretary (which encompasses the Office of the Inspector General) and the following operating administrations while they are part of DOT:</P> <P>(a) The U.S. Coast Guard.</P> <P>(b) The Federal Aviation Administration.</P> <P>(c) The Federal Highway Administration.</P> <P>(d) The Federal Railroad Administration.</P> <P>(e) The Federal Transit Administration.</P> <P>(f) The St. Lawrence Seaway Development Corporation.</P> <P>(g) The National Highway Traffic Safety Administration.</P> <P>(h) The Maritime Administration.</P> <P>(i) The Research and Special Programs Administration.</P> <P>(j) Any DOT operating administration established after the effective date of this part.</P> <P> <E T="03">Legal proceeding</E> means any case or controversy pending before any federal, state, or local court (including grand jury proceedings), any administrative proceeding pending before any federal, state, or local agency, or any legislative proceeding pending before any state or local agency.</P> <P> <E T="03">Legal proceeding between private litigants</E> means any legal proceeding in which neither the Department of Transportation nor the United States (including any federal agency or officer of the United States in his or her official capacity) is a party.</P> <P> <E T="03">Employee of the Department</E> or <E T="03">Employee</E> means any current or former officer or employee of the Department; any active duty, retired, or former officer or enlisted member of the Coast Guard; or any current or former contractor (including any corporation or other entity and any employee or subcontractor).</P> <P> <E T="03">Agency counsel</E> means the General Counsel of the Department or the Chief Counsel of any operating administration of the Department concerned, any person to whom the General Counsel or Chief Counsel has delegated authority, or any person who is authorized to represent the Department in a specific legal proceeding.</P> <P> <E T="03">Testimony</E> means any written or oral statement by a witness, including depositions, answers to interrogatories, affidavits, declarations, and statements at a hearing or trial.</P> </SECTION> <SECTION> <SECTNO>§ 9.5</SECTNO> <SUBJECT>General prohibition of production or disclosure in legal proceedings.</SUBJECT> <P>No employee of the Department may provide testimony or produce any material contained in the files of the Department, or disclose any information relating to, or based upon, material contained in the files of the Department, or disclose any information or produce any material acquired as part of the performance of that employee's official duties or because of that employee's official status unless authorized in accordance with this part, or by other applicable law.</P> </SECTION> <SECTION> <SECTNO>§ 9.7</SECTNO> <SUBJECT>Testimony by employees before the Department or in other legal proceedings in which the United States is a party.</SUBJECT> <P>In any legal proceeding before the Department or in which the United States (including any federal agency or officer of the United States) is a party:</P> <P>(a) Agency counsel shall arrange for an employee to testify as a witness for the United States whenever the attorney representing the United States requests it.</P> <P>(b) An employee may testify for the United States both as to facts within the employee's personal knowledge and as an expert or opinion witness. Except as provided in paragraph (c) of this section, an employee may not testify as an expert or opinion witness, with regard to any matter arising out of the employee's official duties or the functions of the Department, for any party other than the United States in any legal proceeding in which the United States is a party. An employee who receives a demand to testify on behalf of a party other than the United States <PRTPAGE P="91"/>may testify as to facts within the employee's personal knowledge, provided that the testimony be subject to the prior approval of agency counsel and to the Federal Rules of Civil Procedure and any applicable claims of privilege.</P> <P>(c) An employee may testify as an expert or opinion witness on behalf of an officer or enlisted member of the Coast Guard in any legal proceeding conducted by the Coast Guard.</P> </SECTION> <SECTION> <SECTNO>§ 9.9</SECTNO> <SUBJECT>Legal proceedings between private litigants: General rules.</SUBJECT> <P>In legal proceedings between private litigants:</P> <P>(a) The proper method for obtaining testimony or records from an employee is to submit a request to agency counsel as provided in §§ 9.13 and 9.15 of this part, not to serve a demand on the employee. Whenever, in a legal proceeding between private litigants, an employee is served with a demand, or receives a request, to testify in that employee's official capacity or produce records, the employee shall immediately notify agency counsel.</P> <P>(b) If authorized to testify pursuant to these rules, an employee may testify only as to facts within that employee's personal knowledge with regard to matters arising out of his or her official duties.</P> <P>(1) When the proceeding arises from an accident, an employee may testify only as to personally known facts, not reasonably available from other sources, observed by the employee or uncovered during the employee's investigation of the accident or observed by the employee even if he or she did not investigate the accident. The employee shall decline to testify regarding facts beyond the scope of his or her official duties.</P> <P>(2) The employee shall not testify to facts that are contained in a report, or any part of a report, unless the employee has obtained permission from agency counsel to disclose the information.</P> <P>(3) The employee shall not disclose confidential or privileged information unless the employee has obtained permission from agency counsel to disclose the information.</P> <P>(4) The employee shall not testify as to facts when agency counsel determines that the testimony would not be in the best interest of the Department or the United States if disclosed.</P> <P>(c) An employee shall not testify as an expert or opinion witness with regard to any matter arising out of the employee's official duties or the functions of the Department. An employee who is asked questions that call for expert or opinion testimony shall decline to answer on the grounds that it is forbidden by this part. Agency counsel shall advise the employee on how to proceed if the presiding officer directs the employee to provide expert or opinion testimony.</P> <P>(d) An employee shall not provide testimony at a trial or hearing. An employee's testimony shall be limited to a single deposition, affidavit, or set of interrogatories, concerning the circumstances (e.g. an accident) from which the proceeding arose. Where multiple legal proceedings concerning those circumstances are pending, or can occur, it shall be the duty of the private litigant seeking the testimony to ascertain, to the extent feasible, the identities of all parties, or potential parties, to those proceedings and notify them that a deposition has been granted and that they have the opportunity to participate. The private litigant shall submit an affidavit or certification describing the extent of the search for parties and potential parties and listing the names of the parties and potential parties notified.</P> <P>(e) Where an employee has already provided testimony, any party wishing to obtain further testimony from that employee concerning the same matter or occurrence, whether in the same or a different private legal proceeding, may submit a request to agency counsel to waive the restrictions of paragraph (d) of this section. The request shall, in addition to meeting the requirements of § 9.15 of this part, state why the requester should be permitted to gather additional information despite not having previously requested the information when it had an opportunity to do so, and why the additional testimony is now required and the prior testimony or previously supplied documents are insufficient.</P> </SECTION> <SECTION> <PRTPAGE P="92"/> <SECTNO>§ 9.11</SECTNO> <SUBJECT>Legal proceedings between private litigants: Demands.</SUBJECT> <P>(a) If an employee receives a demand that has not been validly issued or served, agency counsel may instruct the employee not to comply with the demand.</P> <P>(b) If an employee receives a demand (validly issued and served) to testify or produce records, agency counsel, in his or her discretion, may grant the employee permission to testify or produce records only if the purposes of this part are met or agency counsel determines that an exception is appropriate.</P> <P>(c) If a demand is issued to an employee, agency counsel shall contact the requester of the demand, inform that person of the requirements of this part, and may, in agency counsel's discretion, ask that the demand be withdrawn.</P> <P>(d) If the requester of the demand refuses to have it withdrawn or fails to comply with this part, the Department may seek to quash the demand.</P> <P>(e) If the court or other competent authority declines to grant the Department's motion to quash, agency counsel shall instruct the employee whether to testify or produce documents pursuant to the demand. Agency counsel may permit the testimony under § 9.1(c) of this part. If response to a demand is required before the court or other competent authority rules on the motion to quash and the court fails to stay the demand, the employee must appear at the stated time and place, produce a copy of this part, and respectfully refuse to provide any testimony or produce any documents. Agency counsel shall take steps to arrange for legal representation for the employee. Agency counsel shall advise the employee how to respond, including not to testify, if the court or other competent authority rules that the demand must be complied with irrespective of these regulations.</P> </SECTION> <SECTION> <SECTNO>§ 9.13</SECTNO> <SUBJECT>Legal proceedings between private litigants: Procedures to request records.</SUBJECT> <P>(a) In a legal proceeding between private litigants, a party who wishes to obtain records from the Department shall submit to agency counsel a request for the records. The request will ordinarily be handled in accordance with the Department's procedures concerning requests for records found at 49 CFR part 7. If the party does not follow the procedures specified in that part, the request must be accompanied by a statement setting forth the relevance of the records to the proceeding. The request should be resolved before any request for testimony under § 9.15 is submitted. Where a request for testimony includes a request for additional records, it shall indicate precisely how this new request differs in scope from any previous request in order to avoid agency duplication of effort. Agency counsel shall notify the requester of the approval or denial of the request.</P> <P>(b) [Reserved]</P> </SECTION> <SECTION> <SECTNO>§ 9.15</SECTNO> <SUBJECT>Legal proceedings between private litigants: Procedures to request testimony.</SUBJECT> <P>(a) Any party seeking the testimony of an employee in a legal proceeding between private litigants, concerning facts within the employee's personal knowledge with regard to matters arising out of the employee's official duties, shall, rather than serving a demand for the testimony, request the testimony at least 30 days before it is intended to be taken or received. The request must be submitted to agency counsel and must include:</P> <P>(1) The title of the case, docket number, and the court, or otherwise clearly identify the legal proceeding involved;</P> <P>(2) A statement setting forth the basic facts in the proceeding, such as the type, date, and location of an accident;</P> <P>(3) A summary of the unresolved issues applicable to the testimony sought;</P> <P>(4) A summary of the testimony sought and its relevant to the proceeding;</P> <P>(5) A certification with support, that the information desired is not reasonably available from other sources, including Departmental documents;</P> <P>(6) Pursuant to § 9.9(d) of this part, an affidavit or certification describing the extent of a search of parties and potential parties and listing the names of the parties and potential parties notified; and<PRTPAGE P="93"/> </P> <P>(7) A declaration that the party will not seek expert or opinion testimony from the witness or seek the testimony of the witness at a hearing or trial in the proceeding.</P> <FP>The request shall specify which form of testimony (deposition, affidavit, declaration, or answers to interrogatories) is desired and the date by which it is desired; however, only one form, the one least burdensome to the Department that will provide the needed information, will be permitted for each witness.</FP> <P>(b) The party seeking the testimony shall include with its request for testimony a copy of any prior request(s) made by the same requester to the Department or other agency of the United States for records pertaining to the matter being litigated and of the response (not including the records themselves) to the request(s). The party seeking the testimony shall also comply with any agency counsel request that copies of the records previously disclosed by the Department, or a list of those records, be furnished.</P> <P>(c) In accordance with the requirement of this section and the general provisions of this part, agency counsel shall notify the requester of the approval or denial of the request. Agency counsel may attach special conditions to its approval.</P> </SECTION> <SECTION> <SECTNO>§ 9.17</SECTNO> <SUBJECT>Legal proceedings between private litigants: Procedures for taking testimony.</SUBJECT> <P>(a) Testimony of an employee of the Department may be taken only at the office to which the employee is assigned, or any other place designated by agency counsel. Additional conditions may be specified under § 9.15(c) of this part. The time shall be reasonably fixed to avoid substantial interference with the performance of the employee's or agency counsel's official duties.</P> <P>(b) Upon completion of the testimony of an employee of the Department, a copy of the transcript of the testimony shall be furnished, at the expense of the party requesting the testimony, to agency counsel for the Department's files.</P> </SECTION> <SECTION> <SECTNO>§ 9.19</SECTNO> <SUBJECT>Acceptance of service on behalf of Secretary.</SUBJECT> <P>In any legal proceeding, at the option of the server, process or pleadings may be served on agency counsel, with the same effect as if served upon the Secretary or the head of the operating administration concerned, as the case may be. The official accepting service under this section shall acknowledge the service and take appropriate action. This section does not in any way abrogate or modify the requirements of Rule 4(d)(4) and 4(d)(5) of the Federal Rules of Civil Procedure regarding service of summons and complaint.</P> </SECTION> </PART> <PART> <EAR>Pt. 10</EAR> <HD SOURCE="HED">PART 10—MAINTENANCE OF AND ACCESS TO RECORDS PERTAINING TO INDIVIDUALS</HD> <CONTENTS> <SUBPART> <HD SOURCE="HED">Subpart A—Applicability and Policy</HD> <SECHD>Sec.</SECHD> <SECTNO>10.1</SECTNO> <SUBJECT>Applicability.</SUBJECT> <SECTNO>10.3</SECTNO> <SUBJECT>Policy.</SUBJECT> <SECTNO>10.5</SECTNO> <SUBJECT>Definitions.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—General</HD> <SECTNO>10.11</SECTNO> <SUBJECT>Administration of part.</SUBJECT> <SECTNO>10.13</SECTNO> <SUBJECT>Privacy Act Officer.</SUBJECT> <SECTNO>10.15</SECTNO> <SUBJECT>Protection of records.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—Maintenance of Records</HD> <SECTNO>10.21</SECTNO> <SUBJECT>General.</SUBJECT> <SECTNO>10.23</SECTNO> <SUBJECT>Accounting of disclosures.</SUBJECT> <SECTNO>10.25</SECTNO> <SUBJECT>Mailing lists.</SUBJECT> <SECTNO>10.27</SECTNO> <SUBJECT>Government contractors.</SUBJECT> <SECTNO>10.29</SECTNO> <SUBJECT>Social Security numbers.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart D—Availability of Records</HD> <SECTNO>10.31</SECTNO> <SUBJECT>Requests for records.</SUBJECT> <SECTNO>10.33</SECTNO> <SUBJECT>Acknowledgment and access.</SUBJECT> <SECTNO>10.35</SECTNO> <SUBJECT>Conditions of disclosure.</SUBJECT> <SECTNO>10.37</SECTNO> <SUBJECT>Identification of individual making request.</SUBJECT> <SECTNO>10.39</SECTNO> <SUBJECT>Location of records.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart E—Correction of Records</HD> <SECTNO>10.41</SECTNO> <SUBJECT>Requests for correction of records.</SUBJECT> <SECTNO>10.43</SECTNO> <SUBJECT>Time limits.</SUBJECT> <SECTNO>10.45</SECTNO> <SUBJECT>Statement of disagreement.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart F—Procedures for Reconsidering Decisions not to Grant Access to or Amend Records</HD> <SECTNO>10.51</SECTNO> <SUBJECT>General.</SUBJECT> </SUBPART> <SUBPART> <PRTPAGE P="94"/> <HD SOURCE="HED">Subpart G—Exemptions</HD> <SECTNO>10.61</SECTNO> <SUBJECT>General exemptions.</SUBJECT> <SECTNO>10.63</SECTNO> <SUBJECT>Specific exemptions.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart H—Fees</HD> <SECTNO>10.71</SECTNO> <SUBJECT>General.</SUBJECT> <SECTNO>10.73</SECTNO> <SUBJECT>Payment of fees.</SUBJECT> <SECTNO>10.75</SECTNO> <SUBJECT>Fee schedule.</SUBJECT> <SECTNO>10.77</SECTNO> <SUBJECT>Services performed without charge.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart I—Criminal Penalties</HD> <SECTNO>10.81</SECTNO> <SUBJECT>Improper disclosure.</SUBJECT> <SECTNO>10.83</SECTNO> <SUBJECT>Improper maintenance of records.</SUBJECT> <SECTNO>10.85</SECTNO> <SUBJECT>Wrongfully obtaining records.</SUBJECT> <APP>Appendix to Part 10—Exemptions</APP> </SUBPART> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>5 U.S.C. 552a; 49 U.S.C. 322.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>45 FR 8993, Feb. 11, 1980, unless otherwise noted.</P> </SOURCE> <SUBPART> <HD SOURCE="HED">Subpart A—Applicability and Policy</HD> <SECTION> <SECTNO>§ 10.1</SECTNO> <SUBJECT>Applicability.</SUBJECT> <P>This part implements section 552a of title 5, United States Code, as well as other provisions of the Privacy Act of 1974, and prescribes rules governing the availability of those records of the Department of Transportation which relate to citizens of the United States and aliens lawfully admitted for permanent residence.</P> <CITA>[45 FR 8993, Feb. 11, 1980, as amended at 62 FR 23666, May 1, 1997]</CITA> </SECTION> <SECTION> <SECTNO>§ 10.3</SECTNO> <SUBJECT>Policy.</SUBJECT> <P>It is the policy of the Department of Transportation to comply with the letter and the spirit of the Privacy Act (the Act). Therefore, personal data contained in each system of records is afforded adequate protection against unauthorized access, is as accurate as is feasible, and is limited to that necessary to accomplish the stated use or uses of the system. Further, no system of records is exempted from the requirements of the Act unless it is determined that to do so is in the best interest of the government with due concern for individual rights.</P> </SECTION> <SECTION> <SECTNO>§ 10.5</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>Unless the context requires otherwise, the following definitions apply in this part:</P> <P> <E T="03">Administrator</E> means the head of an operating administration and includes the Under Secretary for Security and the Commandant of the Coast Guard.</P> <P> <E T="03">Department</E> means the Department of Transportation, including the Office of the Secretary, the Office of Inspector General, and the following operating administrations: This definition specifically excludes the Surface Transportation Board, which has its own Privacy Act regulations (49 CFR Part 1007), except to the extent that any system of records notice provides otherwise.</P> <P>(a) The United States Coast Guard.</P> <P>(b) The Federal Aviation Administration.</P> <P>(c) The Federal Highway Administration.</P> <P>(d) The Federal Railroad Administration.</P> <P>(e) The National Highway Traffic Safety Administration.</P> <P>(f) Federal Transit Administration.</P> <P>(g) The St. Lawrence Seaway Development Corporation.</P> <P>(h) The Research and Special Programs Administration.</P> <P>(i) Bureau of Transportation Statistics.</P> <P>(j) Maritime Administration.</P> <P>(k) Transportation Security Administration.</P> <P> <E T="03">General Counsel</E> means the General Counsel of the Department.</P> <P> <E T="03">Includes</E> means “includes but is not limited to;”</P> <P> <E T="03">Individual</E> means a citizen of the United States or an alien lawfully admitted;</P> <P> <E T="03">Maintain</E> includes maintain, collect, use, or disseminate;</P> <P> <E T="03">May</E> is used in a permissive sense to state authority or permission to do the act prescribed;</P> <P> <E T="03">Record</E> means any item, collection, or grouping of information about an individual that is maintained by the Department including, but not limited to, education, financial transactions, medical history, and criminal or employment history and that contains the name of, or an identifying number, symbol, or other identifying particular assigned to, the individual, such as a finger or voice print or a photograph;</P> <P> <E T="03">Secretary</E> means the Secretary of Transportation or any person to whom <PRTPAGE P="95"/>has been delegated authority in the matter concerned;</P> <P> <E T="03">System of records</E> means a group of any records under the control of the Department from which information is retrieved by the name of the individual or by some identifying number, symbol, or other identifying particular assigned to the individual;</P> <P> <E T="03">Statistical record</E> means a record in a system of records maintained for statistical research or reporting purposes only and not in whole or in part in making any determination about an identifiable individual, except as provided by section 8 of title 13, United States Code; and</P> <P> <E T="03">Routine use</E> means, with respect to the disclosure of a record, the use of such record for a purpose which is compatible with the purpose for which it was collected.</P> <CITA>[45 FR 8993, Feb. 11, 1980, as amended at 62 FR 23667, May 1, 1997; 65 FR 48184, Aug. 7, 2000; 67 FR 54746, Aug. 26, 2002]</CITA> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—General</HD> <SECTION> <SECTNO>§ 10.11</SECTNO> <SUBJECT>Administration of part.</SUBJECT> <P>Authority to administer this part in connection with the records of the Office of the Secretary is delegated to the Assistant Secretary for Administration. Authority to administer this part in connection with records in each operating administration is delegated to the Administrator concerned. An Administrator may redelegate to officers of that administration the authority to administer this part in connection with defined systems of records. An Administrator, however, may redelegate his or her duties under subparts F and G of this part only to his or her deputy and to not more than one other officer who reports directly to the Administrator and who is located at the headquarters of that administration or at the same location as the majority of that administration's systems of records.</P> <CITA>[45 FR 8993, Feb. 11, 1980, as amended at 62 FR 23667, May 1, 1997]</CITA> </SECTION> <SECTION> <SECTNO>§ 10.13</SECTNO> <SUBJECT>Privacy Act Officer.</SUBJECT> <P>(a) To assist with implementation, evaluation, and administration issues, the Chief Information Officer appoints a principal coordinating official with the title Privacy Act Officer, and one Privacy Act Coordinator from his/her staff.</P> <P>(b) Inquiries concerning Privacy Act matters, or requests for assistance, may be addressed to the Privacy Act Officer (S-80), Department of Transportation, 400 Seventh Street, S.W., Washington, DC 20590.</P> <P>(c) Administrators may designate Privacy Act Officers or Coordinators to act as central coordinators within their administrations to assist them in administering the Act.</P> <CITA>[45 FR 8993, Feb. 11, 1980, as amended by Amdt. 1-290, 62 FR 51804, Oct. 3, 1997]</CITA> </SECTION> <SECTION> <SECTNO>§ 10.15</SECTNO> <SUBJECT>Protection of records.</SUBJECT> <P>(a) No person may, without permission, remove any record made available for inspection or copying under this part from the place where it is made available. In addition, no person may steal, alter, mutilate, obliterate, or destroy, in whole or in part, such a record.</P> <P>(b) Section 641 of title 18 of the United States Code provides, in pertinent part, as follows: </P> <EXTRACT> <P>Whoever * * * steals, purloins, or knowingly converts to his use or the use of another, or without authority, sells, conveys or disposes of any record * * * or thing of value of the United States or of any department or agency thereof * * * shall be fined not more than $10,000 or imprisoned not more than 10 years or both; but if the value of such property does not exceed the sum of $100, he shall be fined not more than $1,000 or imprisoned not more than one year or both * * *.</P> </EXTRACT> <P>(c) Section 2071 of title 18 of the United States Code provides, in pertinent part, as follows: </P> <EXTRACT> <P>Whoever willfully and unlawfully conceals, removes, mutilates, obliterates, or destroys, or attempts to do so, or with intent to do so takes and carries away any record, proceeding, map, book, paper, document, or other thing, filed or deposited * * * in any public office, or with any * * * public officer of the United States, shall be fined not more than $2,000 or imprisoned not more than 3 years, or both.</P> </EXTRACT> </SECTION> </SUBPART> <SUBPART> <PRTPAGE P="96"/> <HD SOURCE="HED">Subpart C—Maintenance of Records</HD> <SECTION> <SECTNO>§ 10.21</SECTNO> <SUBJECT>General.</SUBJECT> <P>Except to the extent that a system of records is exempt in accordance with subpart G of this part, the Department, with respect to each system of records:</P> <P>(a) Maintains in its records only such information about an individual as is relevant and necessary to accomplish a purpose of the Department required to be accomplished by statute or by executive order of the President;</P> <P>(b) Collects 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, or privileges under Federal programs;</P> <P>(c) Informs each individual whom it asks to supply information, on the form which it uses to collect the information or on a separate form that can be retained by the individual of:</P> <P>(1) The authority (whether granted by statute, or by executive order of the President) which authorizes the solicitation of the information and whether disclosure of such information is mandatory or voluntary;</P> <P>(2) The principal purpose or purposes for which the information is intended to be used;</P> <P>(3) The routine uses, as published pursuant to paragraph (d)(4) of this section, which may be made of the information; and</P> <P>(4) The effects, if any, on the individual of not providing all or any part of the requested information;</P> <P>(d) Publishes in the <E T="04">Federal Register</E> at least annually a notice of the existence and character of the system of records, including:</P> <P>(1) The name and location of the system;</P> <P>(2) The categories of individuals on whom records are maintained in the system;</P> <P>(3) The categories of records maintained in the system;</P> <P>(4) Each routine use of the records contained in the system, including the categories of users and the purpose of such use;</P> <P>(5) The policies and practices regarding storage, retrievability, access controls, retention, and disposal of the rec-ords;</P> <P>(6) The title and business address of the official responsible for the system of records;</P> <P>(7) The procedures whereby an individual can be notified upon request if the system of records contains a record pertaining to that individual;</P> <P>(8) The procedures whereby an individual can be notified upon request how to gain access to any record pertaining to that individual contained in the system of records, and how to contest its content; and</P> <P>(9) The categories of sources of rec-ords in the system;</P> <P>(e) Maintains all records which are used in making any determination about any individual with such accuracy, relevancy, timeliness, and completeness as is reasonably necessary to assure fairness to the individual in the determination;</P> <P>(f) Prior to disseminating any record about an individual to any person other than an agency, unless the dissemination is made pursuant to § 10.35(a)(2), makes reasonable efforts to assure that such records are accurate, complete, timely, and relevant for the Department's purposes;</P> <P>(g) Maintains no record describing how any individual exercises rights guaranteed by the First Amendment unless:</P> <P>(1) Expressly authorized by the General Counsel; and</P> <P>(2) Expressly authorized by statute or by the individual about whom the record is maintained or unless pertinent to and within the scope of an authorized law enforcement activity;</P> <P>(h) Makes reasonable efforts to serve notice on an individual when any record on such individual is made available to any person under compulsory legal process when such process becomes a matter of public record.</P> </SECTION> <SECTION> <SECTNO>§ 10.23</SECTNO> <SUBJECT>Accounting of disclosures.</SUBJECT> <P>Each operating administration, the Office of Inspector General, and the Office of the Secretary, with respect to each system of records under its control:</P> <P>(a) Except for disclosures made under § 10.35(a) (1) or (2) of this part, keep an accurate accounting of:<PRTPAGE P="97"/> </P> <P>(1) The date, nature, and purpose of each disclosure of a record to any person or to another agency made under § 10.33; and</P> <P>(2) The name and address of the person or agency to whom the disclosure is made;</P> <P>(b) Retains the accounting made under paragraph (a) of this section for at least five years or the life of the record, whichever is longer, after the disclosure for which the accounting is made;</P> <P>(c) Except for disclosures made under § 10.33(a)(7) of this part, makes the accounting made under paragraph (a)(1) of this section available to the individual named in the record at his request; and</P> <P>(d) Informs any person or other agency about any correction or notation of dispute made by the agency in accordance with § 10.45 of any record that has been disclosed to the person or agency if an accounting of the disclosure was made.</P> <CITA>[45 FR 8993, Feb. 11, 1980, as amended at 62 FR 23667, May 1, 1997]</CITA> </SECTION> <SECTION> <SECTNO>§ 10.25</SECTNO> <SUBJECT>Mailing lists.</SUBJECT> <P>An individual's name and address is not sold or rented unless such action is specifically authorized by law. This provision shall not be construed to require the withholding of names and addresses otherwise permitted to be made public.</P> </SECTION> <SECTION> <SECTNO>§ 10.27</SECTNO> <SUBJECT>Government contractors.</SUBJECT> <P>When the Department provides by a contract for the operation by or on behalf of the Department of a system of records to accomplish a function of the Department, the requirements of this part are applied to such system. For purposes of subpart I, Criminal Penalties, any such contractor and any employee of the contractor are considered, in accordance with section 3(m) of the Privacy Act, to be employees of the Department.</P> </SECTION> <SECTION> <SECTNO>§ 10.29</SECTNO> <SUBJECT>Social Security numbers.</SUBJECT> <P>(a) No individual is denied any right, benefit, or privilege provided by law because of such individual's refusal to disclose his Social Security account number.</P> <P>(b) The provisions of paragraph (a) of this section do not apply to:</P> <P>(1) Any disclosure which is required by Federal statute; or</P> <P>(2) The disclosure of a Social Security number when such disclosure was required under statute or regulation adopted prior to January 1, 1975, to verify the identity of an individual.</P> <P>(c) When an individual is requested to disclose his or her Social Security account number, that individual is informed whether that disclosure is mandatory or voluntary, by what statutory or other authority such number is solicited, what uses are made of it, and what detriments, including delay in the location of records, are incurred if the number is not provided.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart D—Availability of Records</HD> <SECTION> <SECTNO>§ 10.31</SECTNO> <SUBJECT>Requests for records.</SUBJECT> <P>(a) Ordinarily, each person desiring to determine whether a record pertaining to him/her is contained in a system of records covered by this part or desiring access to a record covered by this part, or to obtain a copy of such a record, shall make a request in writing addressed to the system manager. The “Privacy Act Issuances” published by the Office of the <E T="04">Federal Register</E>, National Archives and Records Administration, describes the systems of records maintained by all Federal agencies, including the Department and its components. In exceptional cases oral requests are accepted. A description of DOT Privacy Act systems notices is available through the Internet free of charge at http://www.access.gpo.gov/su—docs/aces/PrivacyAct. shtml?desc015.html. See § 10.13(b) regarding inquiries concerning Privacy Act matters or requests for assistance.</P> <P>(b) Each request shall specify the name of the requesting individual and the system of records in which the subject record is located or thought to be located. If assistance is required to determine the system of records identification number assigned in the systems notices, such assistance may be obtained from the appropriate Privacy Act officer or his assistant. Refer to <PRTPAGE P="98"/>§ 10.13 for procedures for requesting assistance.</P> <CITA>[45 FR 8993, Feb. 11, 1980, as amended at 62 FR 23667, May 1, 1997]</CITA> </SECTION> <SECTION> <SECTNO>§ 10.33</SECTNO> <SUBJECT>Acknowledgment and access.</SUBJECT> <P>(a) Requests by an individual to determine whether he or she is the subject of a record in a system of records, or requesting access to a record in a system of records, should be acknowledged within 10 working days, where the request is by mail. For requests in person, an immediate response is given, either granting access or informing such individual when notification or access may be expected.</P> <P>(b) If the response granting access or copies of the record is made within 10 working days, separate acknowledgment is not required.</P> <P>(c) Although requests for access to a record are normally in writing, <E T="03">e.g.,</E> by filing a written form or letter, it is the option of the individual to mail or present the request form in person.</P> </SECTION> <SECTION> <SECTNO>§ 10.35</SECTNO> <SUBJECT>Conditions of disclosure.</SUBJECT> <P>(a) No record that is contained within a system of records of the Department is disclosed by any means of communication to any person, or to another agency, except pursuant to a written request by, or with the prior written consent of, the individual to whom the record pertains, unless disclosure of the record would be:</P> <P>(1) To those officers and employees of the Department who have a need for the record in the performance of their duties;</P> <P>(2) Required under part 7 of this title which implements the Freedom of Information Act;</P> <P>(3) For a routine use as defined in § 10.5 and described pursuant to § 10.21(d)(4);</P> <P>(4) To the Bureau of the Census for purposes of planning or carrying out a census or survey or related activity pursuant to the provisions of title 13, United States Code;</P> <P>(5) To a recipient who has provided the Department with advance adequate written assurance that the record will be used solely as a statistical research or reporting record, and the record is to be transferred in a form that is not individually identifiable;</P> <P>(6) 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 U.S. Government, or for evaluation by the Administrator of General Services or his designee to determine whether the record has such value;</P> <P>(7) To another agency or to an instrumentality of any governmental jurisdiction within or under the control of the United States for a civil or criminal law enforcement activity if the activity is authorized by law, and if the head of the agency or instrumentality has made a written request to the agency which maintains the record specifying the particular portion desired and the law enforcement activity for which the record is sought;</P> <P>(8) To a person pursuant to a showing of compelling circumstances affecting the health or safety of an individual if upon such disclosure notification is transmitted to the last known address of such individual;</P> <P>(9) To either House of the Congress, or to the extent of matters within its jurisdiction, any committee or subcommittee thereof, any joint committee of the Congress or subcommittee of any such joint committee;</P> <P>(10) To the Comptroller General, or any authorized representatives, in the course of the performance of the duties of the General Accounting Office; or</P> <P>(11) Pursuant to the order of a court of competent jurisdiction.</P> <P>(12) To a consumer reporting agency in accordance with 31 U.S.C. 3711(f).</P> <P>(b) Any individual requesting access to his or her record or to any information pertaining to that individual which is contained within a system of records within the Department has access to that record or information unless the system of records within which the record or information is contained is exempted from disclosure in accordance with subpart G, provided, however, that nothing in this part is deemed to require that an individual be given access to any information compiled in reasonable anticipation of a civil action or proceeding. No exemption contained in subpart G of part 7 of the regulations of the Office of the Secretary is relied upon to withhold from <PRTPAGE P="99"/>an individual any record which is otherwise accessible to such individual under the provisions of this part. Any individual who is given access to a record or information pertaining to him is permitted to have a person of his or her own choosing accompany him and to have a copy made of all or any portion of the record or information in a form comprehensible to the individual. When deemed appropriate, the individual may be required to furnish a written statement authorizing discussion of his record in the accompanying person's presence.</P> <P>(c) <E T="03">Medical records.</E> Where requests are for access to medical records, including psychological records, the decision to release directly to the individual, or to withhold direct release, shall be made by a medical practitioner. Where the medical practitioner has ruled that direct release will do harm to the individual who is requesting access, normal release through the individual's chosen medical practitioner will be recommended. Final review and decision on appeals of disapprovals of direct release will rest with the General Counsel.</P> <P>(d) Any person requesting access to records or to any information pertaining to other individuals is not granted such access unless that person can show that he or she has obtained permission for such access from the individual to whom the record pertains, unless the request comes within one of the exceptions of paragraph (a) of this section.</P> <CITA>[45 FR 8993, Feb. 11, 1980, as amended at 62 FR 23667, May 1, 1997]</CITA> </SECTION> <SECTION> <SECTNO>§ 10.37</SECTNO> <SUBJECT>Identification of individual making request.</SUBJECT> <P>No record or information contained in a system of records is disclosed to an individual nor is any correction of a record in accordance with subpart E made at the request of an individual unless that individual demonstrates that he or she is who he or she claims to be. Normally, identity can be proven for individuals who appear in person by the presentation of an identifying document issued by a recognized organization (<E T="03">e.g.,</E> a driver's license or a credit card) and which contains a means of verification such as a photograph or a signature. For requests by mail, the unique identifier used in the system should be included if known. Responses to mail requests are normally sent only to the name and address listed in the system of records. In the case of particularly sensitive records, additional identification requirements may be imposed. In such cases, these additional requirements are listed in the public notice for the system.</P> <CITA>[45 FR 8993, Feb. 11, 1980, as amended at 62 FR 23667, May 1, 1997]</CITA> </SECTION> <SECTION> <SECTNO>§ 10.39</SECTNO> <SUBJECT>Location of records.</SUBJECT> <P>Each record made available under this subpart is available for inspection and copying during regular working hours at the place where it is located, or, upon reasonable notice, at the document inspection facilities of the Office of the Secretary or each administration. Original records may be copied but may not be released from custody. Upon payment of the appropriate fee, copies are mailed to the requester.</P> <CITA>[62 FR 23667, May 1, 1997]</CITA> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart E—Correction of Records</HD> <SECTION> <SECTNO>§ 10.41</SECTNO> <SUBJECT>Requests for correction of records.</SUBJECT> <P>Any person who desires to have a record pertaining to that person corrected shall submit a written request detailing the correction and the reasons the record should be so corrected. Requests for correction of records shall be submitted to the System Manager.</P> <CITA>[62 FR 23667, May 1, 1997]</CITA> </SECTION> <SECTION> <SECTNO>§ 10.43</SECTNO> <SUBJECT>Time limits.</SUBJECT> <P>Within ten days (excluding Saturday, Sunday, and legal holidays) of the receipt in accordance with § 10.41 of a request by an individual to amend a record pertaining to him, the receipt of the request is acknowledged in writing. If a determination is made to correct the record as requested, the correction is promptly made. If a determination is made not to correct a record the individual is informed promptly of the right to appeal in accordance with subpart F. If an appeal of a refusal to correct a record is in accordance with subpart F, a determination whether to <PRTPAGE P="100"/>correct the record is made within thirty days (excluding Saturday, Sunday, and legal holidays) of the receipt of the appeal unless, for good cause shown the Administrator concerned, or in the case of the Office of the Secretary, the General Counsel, extends such period. Where an extension is taken, the party taking the appeal is promptly notified of such fact.</P> </SECTION> <SECTION> <SECTNO>§ 10.45</SECTNO> <SUBJECT>Statement of disagreement.</SUBJECT> <P>If a determination is made not to amend a record, the requester is informed of the right to file a concise statement setting forth the reasons for disagreement with the refusal to amend. In any disclosure containing information about which an individual has filed such a statement of disagreement, the portions of the record which are disputed are noted clearly and copies of the statement of disagreement provided. If the Administrator concerned or his or her delegee, or in the case of the Office of the Secretary, the General Counsel or his or her delegee, deems it appropriate, copies of a concise statement of the reasons for not making the amendments requested may be provided along with the statement of disagreement.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart F—Procedures for Reconsidering Decisions not to Grant Access to or Amend Records</HD> <SECTION> <SECTNO>§ 10.51</SECTNO> <SUBJECT>General.</SUBJECT> <P>(a) Each officer or employee of the Department who, upon a request by a member of the public for a record under this part, makes a determination that access is not to be granted or who determines not to amend a record in a requested manner, gives a written statement of the reasons for that determination to the person making the request and indicates the name and title or position of each person responsible for the denial of such request and the procedure for appeal within the Department.</P> <P>(b) Any person:</P> <P>(1) Who has been given a determination pursuant to paragraph (a) of this section, that access will not be granted; or</P> <P>(2) Who has been informed that an amendment to a requested record will not be made; may apply to the Administrator concerned, or in the case of the Office of the Secretary, to the General Counsel for review of that decision. A determination that access will not be granted or a record amended is not administratively final for the purposes of judicial review unless it was made by the Administrator concerned or his or her delegee, or the General Counsel or his or her delegee, as the case may be. Upon a determination that an appeal will be denied, the requester is informed in writing of the reasons for the determination, and the names and titles or positions of each person responsible for the determination, and that the determination may be appealed to the District Court of the United States in the district in which the complainant resides, or has his or her principal place of business, or in which the records are located, or in the District of Columbia.</P> <P>(c) Each application for review must be made in writing and must include all information and arguments relied upon by the person making the request, and be submitted within 30 days of the date of the initial denial; exceptions to this time period are permitted for good reason.</P> <P>(d) Upon a determination that a request for the correction of a record will be denied, the requester is informed that he may file a concise statement in accordance with § 10.45.</P> <P>(e) Each application for review must indicate that it is an appeal from a denial of a request made under the Privacy Act. The envelope in which the application is sent should be marked prominently with the words “Privacy Act.” If these requirements are not met, the time limits described in § 10.43 do not begin to run until the application has been identified by an employee of the Department as an application under the Privacy Act and has been received by the appropriate office.</P> <P>(f) The Administrator concerned, or the General Counsel, as the case may be, may require the person making the request to furnish additional information, or proof of factual allegations, <PRTPAGE P="101"/>and may order other proceedings appropriate in the circumstances. The decision of the Administrator concerned, or the General Counsel, as the case may be, as to the availability of the record or whether to amend the record is administratively final.</P> <P>(g) The decision by the Administrator concerned, or the General Counsel, as the case may be, not to disclose a record under this part is considered a determination for the purposes of section 552a(g) of title 5, United States Code, “Civil Remedies.”</P> <P>(h) Any final decision by an Administrator or his/her delegate not to grant access to or amend a record under this part is subject to concurrence by the General Counsel or his or her delegate.</P> <CITA>[45 FR 8993, Feb. 11, 1980, as amended at 62 FR 23667, May 1, 1997]</CITA> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart G—Exemptions</HD> <SECTION> <SECTNO>§ 10.61</SECTNO> <SUBJECT>General exemptions.</SUBJECT> <P>(a) The Assistant Secretary for Administration, with regard to the Investigations Divisions; the Federal Aviation Administrator, with regard to the FAA's Investigative Record System (DOT/FAA 815) and also with regard to the police functions of the National Capital Airport Police; and the Commandant of U.S. Coast Guard, with regard to the Intelligence and Security Division, may exempt from any part of the Act and this part except subsections (b), (c)(1) and (2), (e)(4)(A) through (F), (e)(6), (7), (9), (10), and (11), and (i) of the Act, and implementing §§ 10.35, 10.23(a) and (b), 10.21(d)(1) through (6), 10.81, 10.83, and 10.85, any systems of records, or portions thereof, which they maintain which consist wholly of;</P> <P>(1) Information compiled for the purpose of identifying individual criminal offenders and alleged offenders and consisting only of identifying data and notations of arrests, the nature and disposition of criminal charges, sentencing, confinement, release, and parole and probation status;</P> <P>(2) Information compiled for the purpose of a criminal investigation, including reports of informants and investigators, and associated with an identifiable individual; or</P> <P>(3) Reports identifiable to an individual compiled at any stage of the process of enforcement of the criminal laws from arrest or indictment through release from supervision.</P> <P>(b) The requirements (including general notice) of sections 553(b)(1), (2) and (3), and (c) and (e) of title 5, United States Code, will be met by publication in appendix A to this part, which must, at a minimum, specify:</P> <P>(1) The name of the system; and</P> <P>(2) The specific provisions of the Act from which the system is to be exempted and the reasons therefor.</P> <P>(c) Any decision to exempt a system of records under this section is subject to concurrence by the General Counsel.</P> <P>(d) Any person may petition the Secretary in accordance with the provisions of part 5 of this title, to institute a rulemaking proceeding for the amendment or repeal of any exemptions established under this section.</P> <CITA>[45 FR 8993, Feb. 11, 1980, as amended at 58 FR 67697, Dec. 22, 1993]</CITA> </SECTION> <SECTION> <SECTNO>§ 10.63</SECTNO> <SUBJECT>Specific exemptions.</SUBJECT> <P>The Secretary or his or her delegee, in the case of the Office of the Secretary; or the Administrator or his or deluge, in the case of an operating administration; or the Inspector General or his or her deluge, in the case of the Office of Inspector General, may exempt any system of records that is maintained by the Office of the Secretary, an operating administration, or the Office of Inspector General, as the case may be, from subsections (c)(3), (d), (e)(1), (e)(4)(G), (H), and (I), and (f) of the Act and implementing §§ 10.23(c); 10.35(b); 10.41; 10.43; 10.45; 10.21(a) and 10.21(d)(6), (7), and (8), under the following conditions:</P> <P>(a) The system of records must consist of:</P> <P>(1) Records subject to the provisions of section 552(b)(1) of title 5, United States Code;</P> <P>(2) Investigatory material compiled for law enforcement purposes, other than material within the scope of § 10.61(a)(2): Provided, however, That if any individual is denied any right, privilege, or benefit to which that individual would otherwise be entitled by Federal law, or for which that individual would otherwise be eligible, as a <PRTPAGE P="102"/>result of the maintenance of such material, such material is provided to such individual, except to the extent that the disclosure of such material would reveal the identity of a source who furnished information to the Government under an express promise that the identity of the source would be held in confidence, or, prior to September 27, 1975, the effective date of the Privacy Act of 1974, under an implied promise that the identity of the source would be held in confidence;</P> <P>(3) Records maintained in connection with providing protective services to the President of the United States or other individuals pursuant to section 3056 of title 18, United States Code;</P> <P>(4) Records required by statute to be maintained and used solely as statistical records;</P> <P>(5) Investigatory material compiled solely for the purpose of determining suitability, eligibility, or qualifications for Federal civilian employment, military service, Federal contracts, or access to classified information, but only to the extent that the disclosure of such material would reveal the identity of a source who furnished information to the Government under an express promise that the identity of the source would be held in confidence, or, prior to September 27, 1975, the effective date of the Privacy Act of 1974, under an implied promise that the identity of the source would be held in confidence;</P> <P>(6) Testing or examination material used solely to determine individual qualifications for appointment or promotion in the Federal service the disclosure of which would compromise the objectivity or fairness of the testing or examination process; or</P> <P>(7) Evaluation material used to determine potential for promotion in the armed services, but only to the extent that the disclosure of such material would reveal the identity of a source who furnished information to the Government under an express promise that the identity of the source would be held in confidence, or, prior to the effective date of this section, under an implied promise that the identity of the source would be held in confidence.</P> <P>(b) The requirements (including general notice) of sections 553 (b) (1), (2) and (3), and (c) and (e) of title 5, United States Code, will be met by publication in appendix A to this part, which must, at a minimum, specify:</P> <P>(1) The name of the systems; and</P> <P>(2) The specific provisions of the Act from which the system is to be exempted and the reasons therefor.</P> <P>(c) Any decision to exempt a system of records under this section is subject to the concurrence of the General Counsel.</P> <P>(d) Any person may petition the Secretary in accordance with the provisions of 49 CFR part 5, to institute a rulemaking for the amendment or repeal of any exemptions established under this section.</P> <CITA>[45 FR 8993, Feb. 11, 1980, as amended at 62 FR 23667, May 1, 1997]</CITA> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart H—Fees</HD> <SECTION> <SECTNO>§ 10.71</SECTNO> <SUBJECT>General.</SUBJECT> <P>This subpart prescribes fees for services performed for the public under this part by the Department.</P> </SECTION> <SECTION> <SECTNO>§ 10.73</SECTNO> <SUBJECT>Payment of fees.</SUBJECT> <P>The fees prescribed in this subpart may be paid by check, draft, or postal money order payable to the Treasury of the United States.</P> </SECTION> <SECTION> <SECTNO>§ 10.75</SECTNO> <SUBJECT>Fee schedule.</SUBJECT> <GPOTABLE CDEF="s50,6" COLS="2" OPTS="L0,6/7"> <ROW> <ENT I="11">(a) Copies of documents by photocopy or similar method:</ENT> </ROW> <ROW> <ENT I="12">Each page not larger than 11 x 17 inches:</ENT> </ROW> <ROW> <ENT I="03">First page</ENT> <ENT>$.25</ENT> </ROW> <ROW> <ENT I="03">Each page</ENT> <ENT>.05</ENT> </ROW> <ROW> <ENT I="01">(b) Copies of documents by typewriter: Each page</ENT> <ENT>2.00</ENT> </ROW> <ROW> <ENT I="11">(c) Certified copies of documents:</ENT> </ROW> <ROW> <ENT I="02">(1) With Department of Transportation seal</ENT> <ENT>3.00</ENT> </ROW> <ROW> <ENT I="02">(2) True copy, without seal</ENT> <ENT>1.00</ENT> </ROW> <ROW> <ENT I="11">(d) Photographs:</ENT> </ROW> <ROW> <ENT I="02">(1) Black and white print (from negative)</ENT> <ENT>1.25</ENT> </ROW> <ROW> <ENT I="02">(2) Black and white print (from print)</ENT> <ENT>3.15</ENT> </ROW> <ROW> <ENT I="02">(3) Color print (from negative)</ENT> <ENT>3.50</ENT> </ROW> <ROW> <ENT I="02">(4) Color print (from print)</ENT> <ENT>6.25</ENT> </ROW> <ROW> <ENT I="01">(e) Duplicate data tapes—each reel of tape or fraction thereof</ENT> <ENT>36.00</ENT> </ROW> </GPOTABLE> <FP>The applicant must furnish the necessary number of blank magnetic tapes. The tapes must be compatible for use in the supplier's computer system, <FR>1/2</FR> inch wide and 2,400 feet long, and must be capable of recording data at a density of 556 or 800 characters per inch. Unless otherwise designated, the <PRTPAGE P="103"/>tapes will be recorded at 556 CPI density. The Department of Transportation is not responsible for damaged tape. However, if the applicant furnishes a replacement for a damaged tape, the duplication process is completed at no additional charge.</FP> <GPOTABLE CDEF="s50,6" COLS="2" OPTS="L0,6/7"> <ROW> <ENT I="11">(f) Microreproduction fees are as follows:</ENT> </ROW> <ROW> <ENT I="02">(1) Microfilm copies, each 100 foot roll or less</ENT> <ENT>$3.75</ENT> </ROW> <ROW> <ENT I="02">(2) Microfiche copies, each standard size sheet (4″×6″ containing up to 65 frames)</ENT> <ENT>.15</ENT> </ROW> <ROW> <ENT I="02">(3) Apertune card to hard copy, each copy</ENT> <ENT>.50</ENT> </ROW> <ROW> <ENT I="12">(4) 16mm microfilm to hard copy:</ENT> </ROW> <ROW> <ENT I="03">First</ENT> <ENT>.25</ENT> </ROW> <ROW> <ENT I="03">Additional</ENT> <ENT>.07</ENT> </ROW> <ROW> <ENT I="01">(g) Computerline printer output, each 1,000 lines or fraction thereof</ENT> <ENT>1.00</ENT> </ROW> </GPOTABLE> </SECTION> <SECTION> <SECTNO>§ 10.77</SECTNO> <SUBJECT>Services performed without charge.</SUBJECT> <P>(a) No fee is charged for time spent in searching for records or reviewing or preparing correspondence related to records subject to this part.</P> <P>(b) No fee is charged for documents furnished in response to:</P> <P>(1) A request from an employee or former employee of the Department for copies of personnel records of the employee;</P> <P>(2) A request from a Member of Congress for official use;</P> <P>(3) A request from a State, territory, U.S. possession, county or municipal government, or an agency thereof;</P> <P>(4) A request from a court that will serve as a substitute for the personal court appearance of an officer or employee of the Department;</P> <P>(5) A request from a foreign government or an agency thereof, or an international organization.</P> <P>(c) Documents are furnished without charge or at a reduced charge, if the Assistant Secretary of Administration or the Administrator concerned, as the case may be, determines that waiver or reduction of the fee is in the public interest, because furnishing the information can be considered as primarily benefiting the general public.</P> <P>(d) When records are maintained in computer-readable form rather than human-readable form, one printed copy is made available which has been translated to human-readable form without a charge for translation but in accordance with § 10.75(g), regarding computer line-printed charges.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart I—Criminal Penalties</HD> <SECTION> <SECTNO>§ 10.81</SECTNO> <SUBJECT>Improper disclosure.</SUBJECT> <P>Any officer or employee of the Department who by virtue of his or her employment or official position, has possession of, or access to, agency records which contain individually identifiable information the disclosure of which is prohibited by this part and who knowing that disclosure of the specific material is so prohibited, willfully discloses the material in any manner to any person or agency not entitled to receive it, is guilty of a misdemeanor and fined not more than $5,000 in accordance with 5 U.S.C. 552a(i)(1).</P> </SECTION> <SECTION> <SECTNO>§ 10.83</SECTNO> <SUBJECT>Improper maintenance of records.</SUBJECT> <P>Any officer or employee of the Department who willfully maintains a system of records without meeting the notice requirements of § 10.21(d) of this part is guilty of a misdemeanor and fined not more than $5,000 in accordance with 5 U.S.C. 552a(i)(2).</P> </SECTION> <SECTION> <SECTNO>§ 10.85</SECTNO> <SUBJECT>Wrongfully obtaining records.</SUBJECT> <P>Any person who knowingly and willfully requests or obtains any record concerning an individual from the Department under false pretenses is guilty of a misdemeanor and fined not more than $5,000 in accordance with 5 U.S.C. 552a(i)(3).</P> </SECTION> <APPENDIX> <EAR>Pt. 10, App.</EAR> <HD SOURCE="HED">Appendix to Part 10—Exemptions</HD> <HD SOURCE="HD2">Part I. General Exemptions</HD> <P>Those portions of the following systems of records that consist of (a) Information compiled for the purpose of identifying individual criminal offenders and alleged offenders and consisting only of identifying data and notations of arrests, the nature and disposition of criminal charges, sentencing, confinement, release, and parole and probation status; (b) information compiled for the purpose of a criminal investigation, including reports of informants and investigators, and associated with an identifiable individual; or (c) reports identifiable to an individual compiled at any stage of the process of enforcement of the criminal laws from arrest or indictment through release from supervision, are exempt from all parts of 5 U.S.C. 552a except subsections (b) (Conditions of disclosure); (c) (1) and (2) (Accounting of certain disclosures); (e)(4) (A) through <PRTPAGE P="104"/>(F) (Publication of existence and character of system); (e)(6) (Ensure records are accurate, relevant, timely, and complete before disclosure to person other than an agency and other than pursuant to a Freedom of Information Act request), (7) (Restrict recordkeeping on First Amendment rights), (9) (Rules of conduct), (10) (Safeguards), and (11) (Routine use publication); and (i) (Criminal penalties):</P> <P>A. The Investigative Records System maintained by the Assistant Inspector General for Investigations, Office of the Inspector General, Office of the Secretary (DOT/OST 100).</P> <P>B. Police Warrant Files and Central Files maintained by the Federal Aviation Administration (DOT/FAA 807).</P> <P>C. Law Enforcement Information System, maintained by the Office of Law Enforcement and Defense Operations, U.S. Coast Guard (DOT/CG 613).</P> <P>D. Investigations and Security Investigative Case Systems, maintained by the Investigations and Security Division, U.S. Coast Guard (DOT/CG 611).</P> <P>E. The Investigative Records System maintained by the Federal Aviation Administration regarding criminal investigations conducted by offices of Investigations and Security at headquarters and FAA Regional and Center Security Divisions (DOT/FAA 815).</P> <P>F. Joint Maritime Intelligence Element (JMIE) Support System, maintained by the Operations Systems, Center, US Coast Guard (DOT/CG 642).</P> <P>These exemptions are justified for the following reasons:</P> <P>1. From subsection (c)(3), because making available to a record subject the accounting of disclosures from records concerning him/her would reveal investigative interest by not only DOT but also the recipient agency, thereby permitting the record subject to take appropriate measures to impede the investigation, as by destroying evidence, intimidating potential witnesses, fleeing the area to avoid the thrust of the investigation, etc.</P> <P>2. From subsections (d), (e)(4) (G) and (H), (f), and (g), because granting an individual access to investigative records, and granting him/her rights to amend/contest that information, interfere with the overall law enforcement process by revealing a pending sensitive investigation, possibly identify a confidential source, disclose information that would constitute an unwarranted invasion of another individual's personal privacy, reveal a sensitive investigative technique, or constitute a potential danger to the health or safety of law enforcement personnel.</P> <P>3. From subsection (e)(1), because it is often impossible to determine relevancy or necessity of information in the early stages of an investigation. The value of such information is a question of judgement and timing: what appears relevant and necessary when collected may ultimately be evaluated and viewed as irrelevant and unnecessary to an investigation. In addition, DOT may obtain information concerning the violation of laws other than those within the scope of its jurisdiction. In the interest of effective law enforcement, DOT should retain this information because it may aid in establishing patterns of unlawful activity and provide leads for other law enforcement agencies. Further, in obtaining evidence during an investigation, information may be provided to DOT that relates to matters incidental to the main purpose of the investigation but that may be pertinent to the investigative jurisdiction of another agency. Such information cannot readily be identified.</P> <P>4. From subsection (e)(2), because in a law enforcement investigation it is usually counterproductive to collect information to the greatest extent practicable directly from the subject of the information. It is not always feasible to rely upon the subject of an investigation as a source for information that may implicate him/her in illegal activities. In addition, collecting information directly from the subject could seriously compromise an investigation by prematurely revealing its nature and scope, or could provide the subject with an opportunity to conceal criminal activities, or intimidate potential sources, in order to avoid apprehension.</P> <P>5. From subsection (e)(3), because providing such notice to the subject of an investigation, or to other individual sources, could seriously compromise the investigation by prematurely revealing its nature and scope, or could inhibit cooperation, permit the subject to evade apprehension, or cause interference with undercover activities.</P> <HD SOURCE="HD2">Part II. Specific Exemptions</HD> <P>A. The following systems of records are exempt from subsection (c)(3) (Accounting of Certain Disclosures), (d) (Access to Records), (e)(4)(G), (H), and (I) (Agency Requirements), and (f) (Agency Rules) of 5 USC 552a, to the extent that they contain investigatory material compiled for law enforcement purposes in accordance with 5 USC 552a(k)(2):</P> <P>1. Investigative Record System (DOT/FAA 815) maintained by the Federal Aviation Administration at the Office of Civil Aviation Security in Washington, DC; the FAA regional Civil Aviation Security Divisions; the Civil Aviation Security Division at the Mike Monroney Aeronautical Center in Oklahoma City, Oklahoma; the FAA Civil Aviation Security Staff at the FAA Technical Center in Atlantic City, New Jersey; and the various Federal Records Centers located throughout the country.</P> <P>2. FHWA Investigations Case File System, maintained by the Office of Program Review and Investigations, Federal Highway Administration (DOT/FHWA 214).<PRTPAGE P="105"/> </P> <P>3. FHWA Motor Carrier Safety Proposed Civil and Criminal Enforcement Cases, maintained by the Bureau of Motor Carrier Safety, Federal Highway Administration (DOT/FHWA 204).</P> <P>4. Recreational Boating and Law Enforcement Cases (DOT/CG 505), maintained by the Office of Boating Safety, U.S. Coast Guard.</P> <P>5. Port Safety Reporting System—Individual Violation Histories (DOT/CG 561), maintained by the Office of Marine Environment and Systems, U.S. Coast Guard.</P> <P>6. Merchant Vessel Casualty Reporting System (DOT/CG 590), maintained by the Office of Merchant Marine Safety, U.S. Coast Guard.</P> <P>7. U.S. Merchant Seaman's Records (DOT/CG 589), maintained by the Office of Merchant Marine Safety, U.S. Coast Guard.</P> <P>8. Intelligence and Security Investigative Case Systems (DOT/CG 611), maintained by the Office of Operations, U.S. Coast Guard.</P> <P>9. Port Security Case System (DOT/CG 612), maintained by the Office of Operations, U.S. Coast Guard.</P> <P>10. DOT/NHTSA Investigations of Alleged Misconduct or Conflict of Interest, maintained by the Associate Administrator for Administration, National Highway Traffic Safety Administration (DOT/NHTSA 458).</P> <P>11. Investigations of Violations of Marine Safety Laws (DOT/CG 587), maintained by the Office of Merchant Marine Safety, U.S. Coast Guard.</P> <P>12. Civil Aviation Security System (DOT/FAA 813), maintained by the Office of Civil Aviation Security Policy and Planning, Federal Aviation Administration.</P> <P>13. Law Enforcement Information System, maintained by the Office of Law Enforcement and Defense Operations, U.S. Coast Guard (DOT/CG 613).</P> <P>14. Joint Maritime Intelligence Element (JMIE) Support System, maintained by the Operations Systems, Center, US Coast Guard (DOT/CG 642).</P> <P>15. Vessel Identification System, maintained by the Operations Systems Center, U.S. Coast Guard (DOT/CG 590). The purpose of this exemption is to prevent persons who are the subjects of criminal investigations from learning too early in the investigative process that they are subjects, what information there is in Coast Guard files that indicates that they may have committed unlawful conduct, and who provided such information.</P> <P>16. Marine Safety Information System, maintained by the Operations Systems Center, U.S. Coast Guard (DOT/CG 588). The purpose of this exemption is to prevent persons who are the subjects of criminal investigations from learning too early in the investigative process that they are subjects, what information there is in Coast Guard files that indicates that they may have committed unlawful conduct, and who provided such information.</P> <P>17. Suspected Unapproved Parts (SUP) Program, maintained by the Federal Aviation Administration (DOT/FAA 852).</P> <P>18. Motor Carrier Management Information System (MCMIS), maintained by the Federal Motor Carrier Safety Administration (DOT/FMCSA 001). These exemptions are justified for the following reasons:</P> <P>These exemptions are justified for the following reasons:</P> <P>1. From subsection (c)(3), because making available to a record subject the accounting of disclosures from records concerning him/her would reveal investigative interest by not only DOT but also the recipient agency, thereby permitting the record subject to take appropriate measures to impede the investigation, as by destroying evidence, intimidating potential witnesses, fleeing the area to avoid the thrust of the investigation, etc.</P> <P>2. From subsections (d), (e)(4)(G), (H), and (I), and (f), because granting an individual access to investigative records, and granting him/her access to investigative records with that information, could interfere with the overall law enforcement process by revealing a pending sensitive investigation, possibly identify a confidential source, disclose information that would constitute an unwarranted invasion of another individual's personal privacy, reveal a sensitive investigative technique, or constitute a potential danger to the health or safety of law enforcement personnel.</P> <P>B. The following systems of records are exempt from subsections (c)(3) (Accounting of Certain Disclosures) and (d) (Access to Records) of 5 U.S.C. 552a, in accordance with 5 U.S.C. 552a(k)(2):</P> <P>1. General Air Transportation Records on Individuals, maintained by various offices in the Federal Aviation Administration (DOT/FAA 847).</P> <P>2. Investigative Records System, maintained by the Assistant Inspector General for Investigations in the Office of the Inspector General (DOT/OST 100).</P> <P>These exemptions are justified for the following reasons:</P> <P>1. From subsection (c)(3), because making available to a record subject the accounting of disclosures from records concerning him/her would reveal investigative interest by not only DOT but also the recipient agency, thereby permitting the record subject to take appropriate measures to impede the investigation, as by destroying evidence, intimidating potential witnesses, fleeing the area to avoid the thrust of the investigation, etc.</P> <P>2. From subsection (d), because granting an individual access to investigative records <PRTPAGE P="106"/>could interfere with the overall law enforcement process by revealing a pending sensitive investigation, possibly identify a confidential source, disclose information that would constitute an unwarranted invasion of another individual's personal privacy, reveal a sensitive investigative technique, or constitute a potential danger to the health or safety of law enforcement personnel.</P> <P>C. The system of records known as the Alaska Railroad Examination of Operating Personnel, maintained by the Alaska Railroad, Federal Railroad Administration (DOT/FRA 100), is exempt from the provisions of subsection (d) of 5 U.S.C. 552a. The release of these records would compromise their value as impartial measurement standards for appointment and promotion within the Federal Service.</P> <P>D. Those portions of the following systems of records consisting of investigatory material compiled for the purpose of determining suitability, eligibility, or qualifications for Federal civilian employment, military service, or access to classified information or used to determine potential for promotion in the armed services, are exempt from sections (c)(3) (Accounting of Certain Disclosures), (d) (Access to Records), (e)(4) (G), (H), and (I) (Agency Requirements), and (f) (Agency Rules) of 5 U.S.C. 552a to the extent that disclosure of such material would reveal the identity of a source who provided information to the Government under an express or, prior to September 27, 1975, an implied promise of confidentiality (5 U.S.C. 552a(k) (5) and (7)):</P> <P>1. Investigative Records System, maintained by the Assistant Inspector General for Investigations in the Office of the Inspector General (DOT/OST 100).</P> <P>2. Intelligence and Security Investigative Case System (DOT/CG 611), maintained by the Office of Operations, U.S. Coast Guard.</P> <P>3. Officer Selection and Appointment System (DOT/CG 625), maintained by the Office of Personnel, U.S. Coast Guard.</P> <P>4. Official Officer Service Records (DOT/CG 626), maintained by the Office of Personnel, U.S. Coast Guard.</P> <P>5. Enlisted Recruiting Selection Record System maintained by the Office of Personnel, U.S. Coast Guard.</P> <P>6. Officer, Enlisted, and Recruiting Selection Test Files (DOT/CG 628), maintained by the Office of Personnel, U.S. Coast Guard.</P> <P>7. Enlisted Personnel Record System, (DOT/CG 629), maintained by the Office of Personnel, U.S. Coast Guard.</P> <P>8. Coast Guard Personnel Security Program (DOT/CG 633), maintained by the Office of Personnel, U.S. Coast Guard.</P> <P>9. Official Coast Guard Reserve Service Record System (DOT/CG 676), maintained by the Office of Reserve, U.S. Coast Guard.</P> <P>10. Investigative Record System, maintained by the Federal Aviation Administration at FAA Regional and Center Air Transportation Security Divisions; the Investigations and Security Division, Aeronautical Center; and Office of Investigations and Security, Headquarters, Washington, D.C. (DOT/FAA 815).</P> <P>11. Military Training and Education Rec-ords (DOT/CG 622), maintained by the Office of Personnel, U.S. Coast Guard.</P> <P>12. Files pursuant to suitability for employment with National Highway Traffic Safety Administration (DOT/NHTSA-457) containing confidential investigatory reports.</P> <P>The purpose of these exemptions is to prevent disclosure of the identities of sources who provide information to the government concerning the suitability, eligibility, or qualifications of individuals for Federal civilian employment, contracts, access to classified information, or appointment or promotion in the armed services, and who are expressly or, prior to September 27, 1975, implied promised confidentiality (5 U.S.C. 552a(k) (5) and (7)).</P> <P>E. Those portions of the following systems of records consisting of testing or examination material used solely to determine individual qualifications for appointment or promotion in the Federal Service are exempt from subsections (c)(3) (Accounting of Certain Disclosures), (d) (Access to Rec-ords), (e)(4) (G), (H) and (I) (Agency Requirements), and (f) (Agency Rules) of 5 U.S.C. 552a:</P> <P>1. Officer, Enlisted and Recruiting Selection Test Files (DOT/CG 628), maintained by the Office of Personnel, U.S. Coast Guard.</P> <P>2. Official Coast Guard Reserve Service Record System (DOT/CG 676), maintained by the Office of Reserve, U.S. Coast Guard.</P> <P>3. Military Training and Education Rec-ords (DOT/CG 622), maintained by the Office of Personnel, U.S. Coast Guard.</P> <P>4. Reference Files (DOT/NHTSA 457), maintained by the National Highway Traffic Safety Administration personnel offices to determine fitness for employment prior to hiring.</P> <P>The purpose of these exemptions is to preserve the value of these records as impartial measurement standards for appointment and promotion within the Federal service.</P> <P>F. Those portions of the following systems of records which consist of information properly classified in the interest of national defense or foreign policy in accordance with 5 U.S.C. 552(b)(1) are exempt from sections (c)(3) (Accounting of Certain Disclosures), (d) (Access to Records), (e)(4) (G), (H) and (I) (Agency Requirements), and (f) (Agency Rules) of 5 U.S.C. 552a:</P> <P>1. Investigative Record System maintained by the Assistant Inspector General for Investigations in the Office of the Inspector General (DOT/OST 100).</P> <P>2. Personnel Security Records System, maintained by the Office of Investigations <PRTPAGE P="107"/>and Security, Office of the Secretary (DOT/OST 016).</P> <P>3. Civil Aviation Security System (DOT/FAA 813), maintained by the Office of Civil Aviation Security, Federal Aviation Administration.</P> <P>4. Joint Maritime Intelligence Element (JMIE) Support System, maintained by the Operations Systems Center, US Coast Guard (DOT/CG 642).</P> <P>The purpose of these exemptions is to prevent the disclosure of material authorized to be kept secret in the interest of national defense or foreign policy, in accordance with 5 U.S.C. 552(b)(1) and 552a(k)(1).</P> <P>G. Those portions of the following systems of records which consist of information properly classified in the interest of national defense or foreign policy in accordance with 5 U.S.C. 552a(b)(1) are exempt from subsections (c)(3) (Accounting of Certain Disclosures) and (d) (Access to Records) of 5 U.S.C. 552a:</P> <P>1. Investigative Record System (DOT/FAA 815) maintained by the Federal Aviation Administration at the Office of Civil Aviation Security in Washington, DC; the FAA regional Civil Aviation Security Divisions; the Civil Aviation Security Division at the Mike Monroney Aeronautical Center in Oklahoma City, Oklahoma; the FAA Civil Aviation Security Staff at the FAA Technical Center in Atlantic City, New Jersey; and the various Federal Records Centers located throughout the country.</P> <P>The purpose of these exemptions is to prevent the disclosure of material authorized to be kept secret in the interest of national defense or foreign policy, in accordance with 5 U.S.C. 552(b)(1) and 552a(k)(1).</P> <CITA>[45 FR 8993, Feb. 11, 1980, as amended at 58 FR 67697, Dec. 22, 1993; 59 FR 13662, Mar. 23, 1994; 60 FR 43983, Aug. 24, 1995. Redesignated at 62 FR 23667, May 1, 1997, as amended at 63 FR 2172, Jan. 14, 1998; 63 FR 4197, Jan. 28, 1998; 66 FR 20407, Apr. 23, 2001]</CITA> </APPENDIX> </SUBPART> </PART> <PART> <EAR>Pt. 11</EAR> <HD SOURCE="HED">PART 11—PROTECTION OF HUMAN SUBJECTS</HD> <CONTENTS> <SECHD>Sec.</SECHD> <SECTNO>11.101</SECTNO> <SUBJECT>To what does this policy apply?</SUBJECT> <SECTNO>11.102</SECTNO> <SUBJECT>Definitions.</SUBJECT> <SECTNO>11.103</SECTNO> <SUBJECT>Assuring compliance with this policy—research conducted or supported by any Federal Department or Agency.</SUBJECT> <SECTNO>11.104-11.106</SECTNO> <SUBJECT>[Reserved]</SUBJECT> <SECTNO>11.107</SECTNO> <SUBJECT>IRB membership.</SUBJECT> <SECTNO>11.108</SECTNO> <SUBJECT>IRB functions and operations.</SUBJECT> <SECTNO>11.109</SECTNO> <SUBJECT>IRB review of research.</SUBJECT> <SECTNO>11.110</SECTNO> <SUBJECT>Expedited review procedures for certain kinds of research involving no more than minimal risk, and for minor changes in approved research.</SUBJECT> <SECTNO>11.111</SECTNO> <SUBJECT>Criteria for IRB approval of research.</SUBJECT> <SECTNO>11.112</SECTNO> <SUBJECT>Review by institution.</SUBJECT> <SECTNO>11.113</SECTNO> <SUBJECT>Suspension or termination of IRB approval of research.</SUBJECT> <SECTNO>11.114</SECTNO> <SUBJECT>Cooperative research.</SUBJECT> <SECTNO>11.115</SECTNO> <SUBJECT>IRB records.</SUBJECT> <SECTNO>11.116</SECTNO> <SUBJECT>General requirements for informed consent.</SUBJECT> <SECTNO>11.117</SECTNO> <SUBJECT>Documentation of informed consent.</SUBJECT> <SECTNO>11.118</SECTNO> <SUBJECT>Applications and proposals lacking definite plans for involvement of human subjects.</SUBJECT> <SECTNO>11.119</SECTNO> <SUBJECT>Research undertaken without the intention of involving human subjects.</SUBJECT> <SECTNO>11.120</SECTNO> <SUBJECT>Evaluation and disposition of applications and proposals for research to be conducted or supported by a Federal Department or Agency.</SUBJECT> <SECTNO>11.121</SECTNO> <SUBJECT>[Reserved]</SUBJECT> <SECTNO>11.122</SECTNO> <SUBJECT>Use of Federal funds.</SUBJECT> <SECTNO>11.123</SECTNO> <SUBJECT>Early termination of research support: Evaluation of applications and proposals.</SUBJECT> <SECTNO>11.124</SECTNO> <SUBJECT>Conditions.</SUBJECT> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>5 U.S.C. 301; 42 U.S.C. 300v-1(b).</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>56 FR 28012, 28023, June 18, 1991, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 11.101</SECTNO> <SUBJECT>To what does this policy apply?</SUBJECT> <P>(a) Except as provided in paragraph (b) of this section, this policy applies to all research involving human subjects conducted, supported or otherwise subject to regulation by any federal department or agency which takes appropriate administrative action to make the policy applicable to such research. This includes research conducted by federal civilian employees or military personnel, except that each department or agency head may adopt such procedural modifications as may be appropriate from an administrative standpoint. It also includes research conducted, supported, or otherwise subject to regulation by the federal government outside the United States.</P> <P>(1) Research that is conducted or supported by a federal department or agency, whether or not it is regulated as defined in § 11.102(e), must comply with all sections of this policy.</P> <P>(2) Research that is neither conducted nor supported by a federal department or agency but is subject to regulation as defined in § 11.102(e) must be reviewed and approved, in compliance with § 11.101, § 11.102, and § 11.107 through § 11.117 of this policy, by an institutional review board (IRB) that operates in accordance with the pertinent requirements of this policy.<PRTPAGE P="108"/> </P> <P>(b) Unless otherwise required by department or agency heads, research activities in which the only involvement of human subjects will be in one or more of the following categories are exempt from this policy:</P> <P>(1) Research conducted in established or commonly accepted educational settings, involving normal educational practices, such as (i) research on regular and special education instructional strategies, or (ii) research on the effectiveness of or the comparison among instructional techniques, curricula, or classroom management methods.</P> <P>(2) Research involving the use of educational tests (cognitive, diagnostic, aptitude, achievement), survey procedures, interview procedures or observation of public behavior, unless:</P> <P>(i) Information obtained is recorded in such a manner that human subjects can be identified, directly or through identifiers linked to the subjects; and</P> <P>(ii) Any disclosure of the human subjects’ responses outside the research could reasonably place the subjects at risk of criminal or civil liability or be damaging to the subjects’ financial standing, employability, or reputation.</P> <P>(3) Research involving the use of educational tests (cognitive, diagnostic, aptitude, achievement), survey procedures, interview procedures, or observation of public behavior that is not exempt under paragraph (b)(2) of this section, if:</P> <P>(i) The human subjects are elected or appointed public officials or candidates for public office; or (ii) federal statute(s) require(s) without exception that the confidentiality of the personally identifiable information will be maintained throughout the research and thereafter.</P> <P>(4) Research, involving the collection or study of existing data, documents, records, pathological specimens, or diagnostic specimens, if these sources are publicly available or if the information is recorded by the investigator in such a manner that subjects cannot be identified, directly or through identifiers linked to the subjects.</P> <P>(5) Research and demonstration projects which are conducted by or subject to the approval of department or agency heads, and which are designed to study, evaluate, or otherwise examine:</P> <P>(i) Public benefit or service programs; (ii) procedures for obtaining benefits or services under those programs; (iii) possible changes in or alternatives to those programs or procedures; or (iv) possible changes in methods or levels of payment for benefits or services under those programs.</P> <P>(6) Taste and food quality evaluation and consumer acceptance studies, (i) if wholesome foods without additives are consumed or (ii) if a food is consumed that contains a food ingredient at or below the level and for a use found to be safe, or agricultural chemical or environmental contaminant at or below the level found to be safe, by the Food and Drug Administration or approved by the Environmental Protection Agency or the Food Safety and Inspection Service of the U.S. Department of Agriculture.</P> <P>(c) Department or agency heads retain final judgment as to whether a particular activity is covered by this policy.</P> <P>(d) Department or agency heads may require that specific research activities or classes of research activities conducted, supported, or otherwise subject to regulation by the department or agency but not otherwise covered by this policy, comply with some or all of the requirements of this policy.</P> <P>(e) Compliance with this policy requires compliance with pertinent federal laws or regulations which provide additional protections for human subjects.</P> <P>(f) This policy does not affect any state or local laws or regulations which may otherwise be applicable and which provide additional protections for human subjects.</P> <P>(g) This policy does not affect any foreign laws or regulations which may otherwise be applicable and which provide additional protections to human subjects of research.</P> <P>(h) When research covered by this policy takes place in foreign countries, procedures normally followed in the foreign countries to protect human subjects may differ from those set forth in this policy. [An example is a foreign institution which complies with guidelines consistent with the <PRTPAGE P="109"/>World Medical Assembly Declaration (Declaration of Helsinki amended 1989) issued either by sovereign states or by an organization whose function for the protection of human research subjects is internationally recognized.] In these circumstances, if a department or agency head determines that the procedures prescribed by the institution afford protections that are at least equivalent to those provided in this policy, the department or agency head may approve the substitution of the foreign procedures in lieu of the procedural requirements provided in this policy. Except when otherwise required by statute, Executive Order, or the department or agency head, notices of these actions as they occur will be published in the <E T="04">Federal Register</E> or will be otherwise published as provided in department or agency procedures.</P> <P>(i) Unless otherwise required by law, department or agency heads may waive the applicability of some or all of the provisions of this policy to specific research activities or classes of research activities otherwise covered by this policy. Except when otherwise required by statute or Executive Order, the department or agency head shall forward advance notices of these actions to the Office for Protection from Research Risks, Department of Health and Human Services (HHS), and shall also publish them in the <E T="04">Federal Register</E> or in such other manner as provided in department or agency procedures.<SU>1</SU> <FTREF/> </P> <FTNT> <P> <SU>1</SU> Institutions with HHS-approved assurances on file will abide by provisions of title 45 CFR part 46 subparts A-D. Some of the other Departments and Agencies have incorporated all provisions of title 45 CFR part 46 into their policies and procedures as well. However, the exemptions at 45 CFR 46.101(b) do not apply to research involving prisoners, fetuses, pregnant women, or human in vitro fertilization, subparts B and C. The exemption at 45 CFR 46.101(b)(2), for research involving survey or interview procedures or observation of public behavior, does not apply to research with children, subpart D, except for research involving observations of public behavior when the investigator(s) do not participate in the activities being observed.</P> </FTNT> <CITA>[56 FR 28012, 28023, June 18, 1991; 56 FR 29756, June 28, 1991]</CITA> </SECTION> <SECTION> <SECTNO>§ 11.102</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>(a) <E T="03">Department or agency head</E> means the head of any federal department or agency and any other officer or employee of any department or agency to whom authority has been delegated.</P> <P>(b) <E T="03">Institution</E> means any public or private entity or agency (including federal, state, and other agencies).</P> <P>(c) <E T="03">Legally authorized representative</E> means an individual or judicial or other body authorized under applicable law to consent on behalf of a prospective subject to the subject's participation in the procedure(s) involved in the research.</P> <P>(d) <E T="03">Research</E> means a systematic investigation, including research development, testing and evaluation, designed to develop or contribute to generalizable knowledge. Activities which meet this definition constitute research for purposes of this policy, whether or not they are conducted or supported under a program which is considered research for other purposes. For example, some demonstration and service programs may include research activities.</P> <P>(e) <E T="03">Research subject to regulation</E>, and similar terms are intended to encompass those research activities for which a federal department or agency has specific responsibility for regulating as a research activity, (for example, Investigational New Drug requirements administered by the Food and Drug Administration). It does not include research activities which are incidentally regulated by a federal department or agency solely as part of the department's or agency's broader responsibility to regulate certain types of activities whether research or non-research in nature (for example, Wage and Hour requirements administered by the Department of Labor).</P> <P>(f) <E T="03">Human subject</E> means a living individual about whom an investigator (whether professional or student) conducting research obtains</P> <P>(1) Data through intervention or interaction with the individual, or</P> <P>(2) Identifiable private information.</P> <FP> <E T="03">Intervention</E> includes both physical procedures by which data are gathered (for <PRTPAGE P="110"/>example, venipuncture) and manipulations of the subject or the subject's environment that are performed for research purposes. Interaction includes communication or interpersonal contact between investigator and subject. “Private information” includes information about behavior that occurs in a context in which an individual can reasonably expect that no observation or recording is taking place, and information which has been provided for specific purposes by an individual and which the individual can reasonably expect will not be made public (for example, a medical record). Private information must be individually identifiable (i.e., the identity of the subject is or may readily be ascertained by the investigator or associated with the information) in order for obtaining the information to constitute research involving human subjects.</FP> <P>(g) <E T="03">IRB</E> means an institutional review board established in accord with and for the purposes expressed in this policy.</P> <P>(h) <E T="03">IRB approval</E> means the determination of the IRB that the research has been reviewed and may be conducted at an institution within the constraints set forth by the IRB and by other institutional and federal requirements.</P> <P>(i) <E T="03">Minimal risk</E> means that the probability and magnitude of harm or discomfort anticipated in the research are not greater in and of themselves than those ordinarily encountered in daily life or during the performance of routine physical or psychological examinations or tests.</P> <P>(j) <E T="03">Certification</E> means the official notification by the institution to the supporting department or agency, in accordance with the requirements of this policy, that a research project or activity involving human subjects has been reviewed and approved by an IRB in accordance with an approved assurance.</P> </SECTION> <SECTION> <SECTNO>§ 11.103</SECTNO> <SUBJECT>Assuring compliance with this policy—research conducted or supported by any Federal Department or Agency.</SUBJECT> <P>(a) Each institution engaged in research which is covered by this policy and which is conducted or supported by a federal department or agency shall provide written assurance satisfactory to the department or agency head that it will comply with the requirements set forth in this policy. In lieu of requiring submission of an assurance, individual department or agency heads shall accept the existence of a current assurance, appropriate for the research in question, on file with the Office for Protection from Research Risks, HHS, and approved for federalwide use by that office. When the existence of an HHS-approved assurance is accepted in lieu of requiring submission of an assurance, reports (except certification) required by this policy to be made to department and agency heads shall also be made to the Office for Protection from Research Risks, HHS.</P> <P>(b) Departments and agencies will conduct or support research covered by this policy only if the institution has an assurance approved as provided in this section, and only if the institution has certified to the department or agency head that the research has been reviewed and approved by an IRB provided for in the assurance, and will be subject to continuing review by the IRB. Assurances applicable to federally supported or conducted research shall at a minimum include:</P> <P>(1) A statement of principles governing the institution in the discharge of its responsibilities for protecting the rights and welfare of human subjects of research conducted at or sponsored by the institution, regardless of whether the research is subject to federal regulation. This may include an appropriate existing code, declaration, or statement of ethical principles, or a statement formulated by the institution itself. This requirement does not preempt provisions of this policy applicable to department- or agency-supported or regulated research and need not be applicable to any research exempted or waived under § 11.101 (b) or (i).</P> <P>(2) Designation of one or more IRBs established in accordance with the requirements of this policy, and for which provisions are made for meeting space and sufficient staff to support the IRB's review and recordkeeping duties.<PRTPAGE P="111"/> </P> <P>(3) A list of IRB members identified by name; earned degrees; representative capacity; indications of experience such as board certifications, licenses, etc., sufficient to describe each member's chief anticipated contributions to IRB deliberations; and any employment or other relationship between each member and the institution; for example: full-time employee, part-time employee, member of governing panel or board, stockholder, paid or unpaid consultant. Changes in IRB membership shall be reported to the department or agency head, unless in accord with § 11.103(a) of this policy, the existence of an HHS-approved assurance is accepted. In this case, change in IRB membership shall be reported to the Office for Protection from Research Risks, HHS.</P> <P>(4) Written procedures which the IRB will follow (i) for conducting its initial and continuing review of research and for reporting its findings and actions to the investigator and the institution; (ii) for determining which projects require review more often than annually and which projects need verification from sources other than the investigators that no material changes have occurred since previous IRB review; and (iii) for ensuring prompt reporting to the IRB of proposed changes in a research activity, and for ensuring that such changes in approved research, during the period for which IRB approval has already been given, may not be initiated without IRB review and approval except when necessary to eliminate apparent immediate hazards to the subject.</P> <P>(5) Written procedures for ensuring prompt reporting to the IRB, appropriate institutional officials, and the department or agency head of (i) any unanticipated problems involving risks to subjects or others or any serious or continuing noncompliance with this policy or the requirements or determinations of the IRB and (ii) any suspension or termination of IRB approval.</P> <P>(c) The assurance shall be executed by an individual authorized to act for the institution and to assume on behalf of the institution the obligations imposed by this policy and shall be filed in such form and manner as the department or agency head prescribes.</P> <P>(d) The department or agency head will evaluate all assurances submitted in accordance with this policy through such officers and employees of the department or agency and such experts or consultants engaged for this purpose as the department or agency head determines to be appropriate. The department or agency head's evaluation will take into consideration the adequacy of the proposed IRB in light of the anticipated scope of the institution's research activities and the types of subject populations likely to be involved, the appropriateness of the proposed initial and continuing review procedures in light of the probable risks, and the size and complexity of the institution.</P> <P>(e) On the basis of this evaluation, the department or agency head may approve or disapprove the assurance, or enter into negotiations to develop an approvable one. The department or agency head may limit the period during which any particular approved assurance or class of approved assurances shall remain effective or otherwise condition or restrict approval.</P> <P>(f) Certification is required when the research is supported by a federal department or agency and not otherwise exempted or waived under § 11.101 (b) or (i). An institution with an approved assurance shall certify that each application or proposal for research covered by the assurance and by § 11.103 of this Policy has been reviewed and approved by the IRB. Such certification must be submitted with the application or proposal or by such later date as may be prescribed by the department or agency to which the application or proposal is submitted. Under no condition shall research covered by § 11.103 of the Policy be supported prior to receipt of the certification that the research has been reviewed and approved by the IRB. Institutions without an approved assurance covering the research shall certify within 30 days after receipt of a request for such a certification from the department or agency, that the application or proposal has been approved by the IRB. If the certification is not submitted within these time limits, the <PRTPAGE P="112"/>application or proposal may be returned to the institution.</P> <APPRO>(Approved by the Office of Management and Budget under control number 9999-0020)</APPRO> <CITA>[56 FR 28012, 28023, June 18, 1991; 56 FR 29756, June 28, 1991]</CITA> </SECTION> <SECTION> <SECTNO>§§ 11.104-11.106</SECTNO> <RESERVED>[Reserved]</RESERVED> </SECTION> <SECTION> <SECTNO>§ 11.107</SECTNO> <SUBJECT>IRB membership.</SUBJECT> <P>(a) Each IRB shall have at least five members, with varying backgrounds to promote complete and adequate review of research activities commonly conducted by the institution. The IRB shall be sufficiently qualified through the experience and expertise of its members, and the diversity of the members, including consideration of race, gender, and cultural backgrounds and sensitivity to such issues as community attitudes, to promote respect for its advice and counsel in safeguarding the rights and welfare of human subjects. In addition to possessing the professional competence necessary to review specific research activities, the IRB shall be able to ascertain the acceptability of proposed research in terms of institutional commitments and regulations, applicable law, and standards of professional conduct and practice. The IRB shall therefore include persons knowledgeable in these areas. If an IRB regularly reviews research that involves a vulnerable category of subjects, such as children, prisoners, pregnant women, or handicapped or mentally disabled persons, consideration shall be given to the inclusion of one or more individuals who are knowledgeable about and experienced in working with these subjects.</P> <P>(b) Every nondiscriminatory effort will be made to ensure that no IRB consists entirely of men or entirely of women, including the institution's consideration of qualified persons of both sexes, so long as no selection is made to the IRB on the basis of gender. No IRB may consist entirely of members of one profession.</P> <P>(c) Each IRB shall include at least one member whose primary concerns are in scientific areas and at least one member whose primary concerns are in nonscientific areas.</P> <P>(d) Each IRB shall include at least one member who is not otherwise affiliated with the institution and who is not part of the immediate family of a person who is affiliated with the institution.</P> <P>(e) No IRB may have a member participate in the IRB's initial or continuing review of any project in which the member has a conflicting interest, except to provide information requested by the IRB.</P> <P>(f) An IRB may, in its discretion, invite individuals with competence in special areas to assist in the review of issues which require expertise beyond or in addition to that available on the IRB. These individuals may not vote with the IRB.</P> </SECTION> <SECTION> <SECTNO>§ 11.108</SECTNO> <SUBJECT>IRB functions and operations.</SUBJECT> <P>In order to fulfill the requirements of this policy each IRB shall:</P> <P>(a) Follow written procedures in the same detail as described in § 11.103(b)(4) and, to the extent required by, § 11.103(b)(5).</P> <P>(b) Except when an expedited review procedure is used (see § 11.110), review proposed research at convened meetings at which a majority of the members of the IRB are present, including at least one member whose primary concerns are in nonscientific areas. In order for the research to be approved, it shall receive the approval of a majority of those members present at the meeting.</P> </SECTION> <SECTION> <SECTNO>§ 11.109</SECTNO> <SUBJECT>IRB review of research.</SUBJECT> <P>(a) An IRB shall review and have authority to approve, require modifications in (to secure approval), or disapprove all research activities covered by this policy.</P> <P>(b) An IRB shall require that information given to subjects as part of informed consent is in accordance with § 11.116. The IRB may require that information, in addition to that specifically mentioned in § 11.116, be given to the subjects when in the IRB's judgment the information would meaningfully add to the protection of the rights and welfare of subjects.</P> <P>(c) An IRB shall require documentation of informed consent or may waive documentation in accordance with § 11.117.<PRTPAGE P="113"/> </P> <P>(d) An IRB shall notify investigators and the institution in writing of its decision to approve or disapprove the proposed research activity, or of modifications required to secure IRB approval of the research activity. If the IRB decides to disapprove a research activity, it shall include in its written notification a statement of the reasons for its decision and give the investigator an opportunity to respond in person or in writing.</P> <P>(e) An IRB shall conduct continuing review of research covered by this policy at intervals appropriate to the degree of risk, but not less than once per year, and shall have authority to observe or have a third party observe the consent process and the research.</P> <APPRO>(Approved by the Office of Management and Budget under control number 9999-0020)</APPRO> </SECTION> <SECTION> <SECTNO>§ 11.110</SECTNO> <SUBJECT>Expedited review procedures for certain kinds of research involving no more than minimal risk, and for minor changes in approved research.</SUBJECT> <P>(a) The Secretary, HHS, has established, and published as a Notice in the <E T="04">Federal Register</E>, a list of categories of research that may be reviewed by the IRB through an expedited review procedure. The list will be amended, as appropriate after consultation with other departments and agencies, through periodic republication by the Secretary, HHS, in the <E T="04">Federal Register</E>. A copy of the list is available from the Office for Protection from Research Risks, National Institutes of Health, HHS, Bethesda, Maryland 20892.</P> <P>(b) An IRB may use the expedited review procedure to review either or both of the following:</P> <P>(1) Some or all of the research appearing on the list and found by the reviewer(s) to involve no more than minimal risk,</P> <P>(2) Minor changes in previously approved research during the period (of one year or less) for which approval is authorized. </P> <FP>Under an expedited review procedure, the review may be carried out by the IRB chairperson or by one or more experienced reviewers designated by the chairperson from among members of the IRB. In reviewing the research, the reviewers may exercise all of the authorities of the IRB except that the reviewers may not disapprove the research. A research activity may be disapproved only after review in accordance with the non-expedited procedure set forth in § 11.108(b).</FP> <P>(c) Each IRB which uses an expedited review procedure shall adopt a method for keeping all members advised of research proposals which have been approved under the procedure.</P> <P>(d) The department or agency head may restrict, suspend, terminate, or choose not to authorize an institution's or IRB's use of the expedited review procedure.</P> </SECTION> <SECTION> <SECTNO>§ 11.111</SECTNO> <SUBJECT>Criteria for IRB approval of research.</SUBJECT> <P>(a) In order to approve research covered by this policy the IRB shall determine that all of the following requirements are satisfied:</P> <P>(1) Risks to subjects are minimized: (i) By using procedures which are consistent with sound research design and which do not unnecessarily expose subjects to risk, and (ii) whenever appropriate, by using procedures already being performed on the subjects for diagnostic or treatment purposes.</P> <P>(2) Risks to subjects are reasonable in relation to anticipated benefits, if any, to subjects, and the importance of the knowledge that may reasonably be expected to result. In evaluating risks and benefits, the IRB should consider only those risks and benefits that may result from the research (as distinguished from risks and benefits of therapies subjects would receive even if not participating in the research). The IRB should not consider possible long-range effects of applying knowledge gained in the research (for example, the possible effects of the research on public policy) as among those research risks that fall within the purview of its responsibility.</P> <P>(3) Selection of subjects is equitable. In making this assessment the IRB should take into account the purposes of the research and the setting in which the research will be conducted and should be particularly cognizant of the special problems of research involving vulnerable populations, such as children, prisoners, pregnant women, <PRTPAGE P="114"/>mentally disabled persons, or economically or educationally disadvantaged persons.</P> <P>(4) Informed consent will be sought from each prospective subject or the subject's legally authorized representative, in accordance with, and to the extent required by § 11.116.</P> <P>(5) Informed consent will be appropriately documented, in accordance with, and to the extent required by § 11.117.</P> <P>(6) When appropriate, the research plan makes adequate provision for monitoring the data collected to ensure the safety of subjects.</P> <P>(7) When appropriate, there are adequate provisions to protect the privacy of subjects and to maintain the confidentiality of data.</P> <P>(b) When some or all of the subjects are likely to be vulnerable to coercion or undue influence, such as children, prisoners, pregnant women, mentally disabled persons, or economically or educationally disadvantaged persons, additional safeguards have been included in the study to protect the rights and welfare of these subjects.</P> </SECTION> <SECTION> <SECTNO>§ 11.112</SECTNO> <SUBJECT>Review by institution.</SUBJECT> <P>Research covered by this policy that has been approved by an IRB may be subject to further appropriate review and approval or disapproval by officials of the institution. However, those officials may not approve the research if it has not been approved by an IRB.</P> </SECTION> <SECTION> <SECTNO>§ 11.113</SECTNO> <SUBJECT>Suspension or termination of IRB approval of research.</SUBJECT> <P>An IRB shall have authority to suspend or terminate approval of research that is not being conducted in accordance with the IRB's requirements or that has been associated with unexpected serious harm to subjects. Any suspension or termination of approval shall include a statement of the reasons for the IRB's action and shall be reported promptly to the investigator, appropriate institutional officials, and the department or agency head.</P> <APPRO>(Approved by the Office of Management and Budget under control number 9999-0020)</APPRO> </SECTION> <SECTION> <SECTNO>§ 11.114</SECTNO> <SUBJECT>Cooperative research.</SUBJECT> <P>Cooperative research projects are those projects covered by this policy which involve more than one institution. In the conduct of cooperative research projects, each institution is responsible for safeguarding the rights and welfare of human subjects and for complying with this policy. With the approval of the department or agency head, an institution participating in a cooperative project may enter into a joint review arrangement, rely upon the review of another qualified IRB, or make similar arrangements for avoiding duplication of effort.</P> </SECTION> <SECTION> <SECTNO>§ 11.115</SECTNO> <SUBJECT>IRB records.</SUBJECT> <P>(a) An institution, or when appropriate an IRB, shall prepare and maintain adequate documentation of IRB activities, including the following:</P> <P>(1) Copies of all research proposals reviewed, scientific evaluations, if any, that accompany the proposals, approved sample consent documents, progress reports submitted by investigators, and reports of injuries to subjects.</P> <P>(2) Minutes of IRB meetings which shall be in sufficient detail to show attendance at the meetings; actions taken by the IRB; the vote on these actions including the number of members voting for, against, and abstaining; the basis for requiring changes in or disapproving research; and a written summary of the discussion of controverted issues and their resolution.</P> <P>(3) Records of continuing review activities.</P> <P>(4) Copies of all correspondence between the IRB and the investigators.</P> <P>(5) A list of IRB members in the same detail as described is § 11.103(b)(3).</P> <P>(6) Written procedures for the IRB in the same detail as described in § 11.103(b)(4) and § 11.103(b)(5).</P> <P>(7) Statements of significant new findings provided to subjects, as required by § 11.116(b)(5).</P> <P>(b) The records required by this policy shall be retained for at least 3 years, and records relating to research which is conducted shall be retained for at least 3 years after completion of <PRTPAGE P="115"/>the research. All records shall be accessible for inspection and copying by authorized representatives of the department or agency at reasonable times and in a reasonable manner.</P> <APPRO>(Approved by the Office of Management and Budget under control number 9999-0020)</APPRO> </SECTION> <SECTION> <SECTNO>§ 11.116</SECTNO> <SUBJECT>General requirements for informed consent.</SUBJECT> <P>Except as provided elsewhere in this policy, no investigator may involve a human being as a subject in research covered by this policy unless the investigator has obtained the legally effective informed consent of the subject or the subject's legally authorized representative. An investigator shall seek such consent only under circumstances that provide the prospective subject or the representative sufficient opportunity to consider whether or not to participate and that minimize the possibility of coercion or undue influence. The information that is given to the subject or the representative shall be in language understandable to the subject or the representative. No informed consent, whether oral or written, may include any exculpatory language through which the subject or the representative is made to waive or appear to waive any of the subject's legal rights, or releases or appears to release the investigator, the sponsor, the institution or its agents from liability for negligence.</P> <P>(a) Basic elements of informed consent. Except as provided in paragraph (c) or (d) of this section, in seeking informed consent the following information shall be provided to each subject:</P> <P>(1) A statement that the study involves research, an explanation of the purposes of the research and the expected duration of the subject's participation, a description of the procedures to be followed, and identification of any procedures which are experimental;</P> <P>(2) A description of any reasonably foreseeable risks or discomforts to the subject;</P> <P>(3) A description of any benefits to the subject or to others which may reasonably be expected from the research;</P> <P>(4) A disclosure of appropriate alternative procedures or courses of treatment, if any, that might be advantageous to the subject;</P> <P>(5) A statement describing the extent, if any, to which confidentiality of records identifying the subject will be maintained;</P> <P>(6) For research involving more than minimal risk, an explanation as to whether any compensation and an explanation as to whether any medical treatments are available if injury occurs and, if so, what they consist of, or where further information may be obtained;</P> <P>(7) An explanation of whom to contact for answers to pertinent questions about the research and research subjects’ rights, and whom to contact in the event of a research-related injury to the subject; and</P> <P>(8) A statement that participation is voluntary, refusal to participate will involve no penalty or loss of benefits to which the subject is otherwise entitled, and the subject may discontinue participation at any time without penalty or loss of benefits to which the subject is otherwise entitled.</P> <P>(b) Additional elements of informed consent. When appropriate, one or more of the following elements of information shall also be provided to each subject:</P> <P>(1) A statement that the particular treatment or procedure may involve risks to the subject (or to the embryo or fetus, if the subject is or may become pregnant) which are currently unforeseeable;</P> <P>(2) Anticipated circumstances under which the subject's participation may be terminated by the investigator without regard to the subject's consent;</P> <P>(3) Any additional costs to the subject that may result from participation in the research;</P> <P>(4) The consequences of a subject's decision to withdraw from the research and procedures for orderly termination of participation by the subject;</P> <P>(5) A statement that significant new findings developed during the course of the research which may relate to the subject's willingness to continue participation will be provided to the subject; and</P> <P>(6) The approximate number of subjects involved in the study.<PRTPAGE P="116"/> </P> <P>(c) An IRB may approve a consent procedure which does not include, or which alters, some or all of the elements of informed consent set forth above, or waive the requirement to obtain informed consent provided the IRB finds and documents that:</P> <P>(1) The research or demonstration project is to be conducted by or subject to the approval of state or local government officials and is designed to study, evaluate, or otherwise examine: (i) public benefit of service programs; (ii) procedures for obtaining benefits or services under those programs; (iii) possible changes in or alternatives to those programs or procedures; or (iv) possible changes in methods or levels of payment for benefits or services under those programs; and</P> <P>(2) The research could not practicably be carried out without the waiver or alteration.</P> <P>(d) An IRB may approve a consent procedure which does not include, or which alters, some or all of the elements of informed consent set forth in this section, or waive the requirements to obtain informed consent provided the IRB finds and documents that:</P> <P>(1) The research involves no more than minimal risk to the subjects;</P> <P>(2) The waiver or alteration will not adversely affect the rights and welfare of the subjects;</P> <P>(3) The research could not practicably be carried out without the waiver or alteration; and</P> <P>(4) Whenever appropriate, the subjects will be provided with additional pertinent information after participation.</P> <P>(e) The informed consent requirements in this policy are not intended to preempt any applicable Federal, state, or local laws which require additional information to be disclosed in order for informed consent to be legally effective.</P> <P>(f) Nothing in this policy is intended to limit the authority of a physician to provide emergency medical care, to the extent the physician is permitted to do so under applicable Federal, state, or local law.</P> <APPRO>(Approved by the Office of Management and Budget under control number 9999-0020)</APPRO> </SECTION> <SECTION> <SECTNO>§ 11.117</SECTNO> <SUBJECT>Documentation of informed consent.</SUBJECT> <P>(a) Except as provided in paragraph (c) of this section, informed consent shall be documented by the use of a written consent form approved by the IRB and signed by the subject or the subject's legally authorized representative. A copy shall be given to the person signing the form.</P> <P>(b) Except as provided in paragraph (c) of this section, the consent form may be either of the following:</P> <P>(1) A written consent document that embodies the elements of informed consent required by § 11.116. This form may be read to the subject or the subject's legally authorized representative, but in any event, the investigator shall give either the subject or the representative adequate opportunity to read it before it is signed; or</P> <P>(2) A short form written consent document stating that the elements of informed consent required by § 11.116 have been presented orally to the subject or the subject's legally authorized representative. When this method is used, there shall be a witness to the oral presentation. Also, the IRB shall approve a written summary of what is to be said to the subject or the representative. Only the short form itself is to be signed by the subject or the representative. However, the witness shall sign both the short form and a copy of the summary, and the person actually obtaining consent shall sign a copy of the summary. A copy of the summary shall be given to the subject or the representative, in addition to a copy of the short form.</P> <P>(c) An IRB may waive the requirement for the investigator to obtain a signed consent form for some or all subjects if it finds either:</P> <P>(1) That the only record linking the subject and the research would be the consent document and the principal risk would be potential harm resulting from a breach of confidentiality. Each subject will be asked whether the subject wants documentation linking the subject with the research, and the subject's wishes will govern; or</P> <P>(2) That the research presents no more than minimal risk of harm to subjects and involves no procedures for <PRTPAGE P="117"/>which written consent is normally required outside of the research context.</P> <P>In cases in which the documentation requirement is waived, the IRB may require the investigator to provide subjects with a written statement regarding the research.</P> <APPRO>(Approved by the Office of Management and Budget under control number 9999-0020)</APPRO> </SECTION> <SECTION> <SECTNO>§ 11.118</SECTNO> <SUBJECT>Applications and proposals lacking definite plans for involvement of human subjects.</SUBJECT> <P>Certain types of applications for grants, cooperative agreements, or contracts are submitted to departments or agencies with the knowledge that subjects may be involved within the period of support, but definite plans would not normally be set forth in the application or proposal. These include activities such as institutional type grants when selection of specific projects is the institution's responsibility; research training grants in which the activities involving subjects remain to be selected; and projects in which human subjects’ involvement will depend upon completion of instruments, prior animal studies, or purification of compounds. These applications need not be reviewed by an IRB before an award may be made. However, except for research exempted or waived under § 11.101 (b) or (i), no human subjects may be involved in any project supported by these awards until the project has been reviewed and approved by the IRB, as provided in this policy, and certification submitted, by the institution, to the department or agency.</P> </SECTION> <SECTION> <SECTNO>§ 11.119</SECTNO> <SUBJECT>Research undertaken without the intention of involving human subjects.</SUBJECT> <P>In the event research is undertaken without the intention of involving human subjects, but it is later proposed to involve human subjects in the research, the research shall first be reviewed and approved by an IRB, as provided in this policy, a certification submitted, by the institution, to the department or agency, and final approval given to the proposed change by the department or agency.</P> </SECTION> <SECTION> <SECTNO>§ 11.120</SECTNO> <SUBJECT>Evaluation and disposition of applications and proposals for research to be conducted or supported by a Federal Department or Agency.</SUBJECT> <P>The department or agency head will evaluate all applications and proposals involving human subjects submitted to the department or agency through such officers and employees of the department or agency and such experts and consultants as the department or agency head determines to be appropriate. This evaluation will take into consideration the risks to the subjects, the adequacy of protection against these risks, the potential benefits of the research to the subjects and others, and the importance of the knowledge gained or to be gained.</P> <P>(b) On the basis of this evaluation, the department or agency head may approve or disapprove the application or proposal, or enter into negotiations to develop an approvable one.</P> </SECTION> <SECTION> <SECTNO>§ 11.121</SECTNO> <RESERVED>[Reserved]</RESERVED> </SECTION> <SECTION> <SECTNO>§ 11.122</SECTNO> <SUBJECT>Use of Federal funds.</SUBJECT> <P>Federal funds administered by a department or agency may not be expended for research involving human subjects unless the requirements of this policy have been satisfied.</P> </SECTION> <SECTION> <SECTNO>§ 11.123</SECTNO> <SUBJECT>Early termination of research support: Evaluation of applications and proposals.</SUBJECT> <P>(a) The department or agency head may require that department or agency support for any project be terminated or suspended in the manner prescribed in applicable program requirements, when the department or agency head finds an institution has materially failed to comply with the terms of this policy.</P> <P>(b) In making decisions about supporting or approving applications or proposals covered by this policy the department or agency head may take into account, in addition to all other eligibility requirements and program criteria, factors such as whether the applicant has been subject to a termination or suspension under paragarph (a) of this section and whether the applicant or the person or persons who would direct or has/have directed the <PRTPAGE P="118"/>scientific and technical aspects of an activity has/have, in the judgment of the department or agency head, materially failed to discharge responsibility for the protection of the rights and welfare of human subjects (whether or not the research was subject to Federal regulation).</P> </SECTION> <SECTION> <SECTNO>§ 11.124</SECTNO> <SUBJECT>Conditions.</SUBJECT> <P>With respect to any research project or any class of research projects the department or agency head may impose additional conditions prior to or at the time of approval when in the judgment of the department or agency head additional conditions are necessary for the protection of human subjects.</P> </SECTION> </PART> <PART> <EAR>Pt. 17</EAR> <HD SOURCE="HED">PART 17—INTERGOVERNMENTAL REVIEW OF DEPARTMENT OF TRANSPORTATION PROGRAMS AND ACTIVITIES</HD> <CONTENTS> <SECHD>Sec.</SECHD> <SECTNO>17.1</SECTNO> <SUBJECT>What is the purpose of these regulations?</SUBJECT> <SECTNO>17.2</SECTNO> <SUBJECT>What definitions apply to these regulations?</SUBJECT> <SECTNO>17.3</SECTNO> <SUBJECT>What programs and activities of the Department are subject to these regulations?</SUBJECT> <SECTNO>17.4</SECTNO> <SUBJECT>[Reserved]</SUBJECT> <SECTNO>17.5</SECTNO> <SUBJECT>What is the Secretary's obligation with respect to Federal interagency coordination?</SUBJECT> <SECTNO>17.6</SECTNO> <SUBJECT>What procedures apply to the selection of programs and activities under these regulations?</SUBJECT> <SECTNO>17.7</SECTNO> <SUBJECT>How does the Secretary communicate with state and local officials concerning the Department's programs and activities?</SUBJECT> <SECTNO>17.8</SECTNO> <SUBJECT>How does the secretary provide states an opportunity to comment on proposed Federal financial assistance and direct Federal development?</SUBJECT> <SECTNO>17.9</SECTNO> <SUBJECT>How does the Secretary receive and respond to comments?</SUBJECT> <SECTNO>17.10</SECTNO> <SUBJECT>How does the Secretary make efforts to accommodate intergovernmental concerns?</SUBJECT> <SECTNO>17.11</SECTNO> <SUBJECT>What are the Secretary's obligations in interstate situations?</SUBJECT> <SECTNO>17.12</SECTNO> <SUBJECT>How may a state simplify, consolidate, or substitute federally required state plans?</SUBJECT> <SECTNO>17.13</SECTNO> <SUBJECT>May the Secretary waive any provision of these regulations?</SUBJECT> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>Executive Order 12372, July 14, 1982 (47 FR 30959), as amended April 8, 1983 (48 FR 15887): sec. 401 of the Intergovernmental Cooperation Act of 1968, as amended (31 U.S.C. 6506); sec. 204 of the Demonstration Cities and Metropolitan Development Act of 1966, as amended (42 U.S.C. 3334).</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>48 FR 29272, June 24, 1983, unless otherwise noted</P> </SOURCE> <SECTION> <SECTNO>§ 17.1</SECTNO> <SUBJECT>What is the purpose of these regulations?</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(c) These regulations are intended to aid the internal management of the Department, and are not intended to create any right or benefit enforceable at law by a party against the Department or its officers.</P> </SECTION> <SECTION> <SECTNO>§ 17.2</SECTNO> <SUBJECT>What definitions apply to these regulations?</SUBJECT> <P> <E T="03">Department</E> means the U.S. Department of Transportation.</P> <P> <E T="03">Order</E> means Executive Order 12372, issued July 14, 1982, and amended April 8, 1983, and titled “Intergovernmental Review of Federal Programs.”</P> <P> <E T="03">Secretary</E> means the Secretary of the U.S. Department of Transportation or an official or employee of the Department acting for the Secretary under a delegation of authority.</P> <P> <E T="03">State</E> means any of the 50 states, the District of Columbia, the Commonwealth of Puerto Rico, the Commonwealth of the Northern Mariana Islands, Guam, American Samoa, the U.S. Virgin Islands, or the Trust Territory of the Pacific Islands.</P> </SECTION> <SECTION> <PRTPAGE P="119"/> <SECTNO>§ 17.3</SECTNO> <SUBJECT>What programs and activities of the Department are subject to these regulations?</SUBJECT> <P>The Secretary publishes in the <E T="04">Federal Register</E> a list of the Department'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.</P> </SECTION> <SECTION> <SECTNO>§ 17.4</SECTNO> <RESERVED>[Reserved]</RESERVED> </SECTION> <SECTION> <SECTNO>§ 17.5</SECTNO> <SUBJECT>What is the Secretary's obligation with respect to Federal interagency coordination?</SUBJECT> <P>The Secretary, to the extent practicable, consults with and seeks advice from all other substantially affected Federal departments and agencies in an effort to assure full coordination between such agencies and the Department regarding programs and activities covered under these regulations.</P> </SECTION> <SECTION> <SECTNO>§ 17.6</SECTNO> <SUBJECT>What procedures apply to the selection of programs and activities under these regulations?</SUBJECT> <P>(a) A state may select any program or activity published in the <E T="04">Federal Register</E> in accordance with § 17.3 of this part for intergovernmental review under these regulations. Each state, before selecting programs and activities shall consult with local elected officials.</P> <P>(b) Each state that adopts a process shall notify the Secretary of the Department's programs and activities selected for that process.</P> <P>(c) A state may notify the Secretary of changes in its selections at any time. For each change, the state shall submit to the Secretary an assurance that the state has consulted with elected local elected officials regarding the change. The Department may establish deadlines by which states are required to inform the Secretary of changes in their program selections.</P> <P>(d) The Secretary uses a state's process as soon as feasible, depending on individual programs, and activities, after the Secretary is notified of its selections.</P> </SECTION> <SECTION> <SECTNO>§ 17.7</SECTNO> <SUBJECT>How does the Secretary communicate with state and local officials concerning the Department's programs and activities?</SUBJECT> <P>(a) For those programs and activities covered by a state process under § 17.6, the Secretary, to the extent permitted by law:</P> <P>(1) Uses the state process to determine views of state and local elected officials; and,</P> <P>(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.</P> <P>(b) The Secretary provides notice to directly affected state, areawide, regional, and local entities in a state of proposed Federal financial assistance or direct Federal development if:</P> <P>(1) The state has not adopted a process under the Order; or</P> <P>(2) The assistance or development involves a program or activity not selected for the state process. </P> <FP>This notice may be made by publication in the <E T="04">Federal Register</E> or other appropriate means, which the Department in its discretion deems appropriate.</FP> </SECTION> <SECTION> <SECTNO>§ 17.8</SECTNO> <SUBJECT>How does the Secretary provide states an opportunity to comment on proposed Federal financial assistance and direct Federal development?</SUBJECT> <P>(a) Except in unusual circumstances, the Secretary gives state processes or state, areawide, regional and local officials and entities at least:</P> <P>(1) [Reserved]</P> <P>(2) 60 days from the date established by the Secretary to comment on proposed direct Federal development or Federal financial assistance.</P> <P>(b) This section also applies to comments in cases in which the review, coordination, and communication with the Department have been delegated.</P> <P>(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.</P> </SECTION> <SECTION> <PRTPAGE P="120"/> <SECTNO>§ 17.9</SECTNO> <SUBJECT>How does the Secretary receive and respond to comments?</SUBJECT> <P>(a) The Secretary follows the procedures in § 17.10 if:</P> <P>(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</P> <P>(2) That office or official transmits a state process recommendation for a program selected under § 17.6.</P> <P>(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.</P> <P>(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.</P> <P>(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 either to the applicant or to the Department.</P> <P>(d) If a program or activity is not selected for a state process, state, areawide, regional and local officials and entities may submit comments either to the applicant or to the Department. In addition, if a state process recommendation for a nonselected program or activity is transmitted to the Department by the single point of contact, the Secretary follows the procedures of § 17.10 of this part.</P> <P>(e) The Secretary considers comments which do not constitute a state process recommendation submitted under these regulations and for which the Secretary is not required to apply the procedures of § 17.10 of this part, when such comments are provided by a single point of contact, by the applicant, or directly to the Department by a commenting party.</P> </SECTION> <SECTION> <SECTNO>§ 17.10</SECTNO> <SUBJECT>How does the Secretary make efforts to accommodate intergovernmental concerns?</SUBJECT> <P>(a) If a state process provides a state process recommendation to the Department through its single point of contact, the Secretary either:</P> <P>(1) Accepts the recommendation;</P> <P>(2) Reaches a mutually agreeable solution with the state process; or</P> <P>(3) Provides the single point of contact with a written explanation of the decision, in such form as the Secretary in his or her discretion deems appropriate. The Secretary may also supplement the written explanation by providing the explanation to the single point of contact by telephone, other telecommunication, or other means.</P> <P>(b) In any explanation under paragraph (a)(3) of this section, the Secretary informs the single point of contact that:</P> <P>(1) The Department will not implement its decision for at least ten days after the single point of contact receives the explanation; or</P> <P>(2) The Secretary has reviewed the decision and determined that, because of unusual circumstances, the waiting period of at least ten days is not feasible.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 17.11</SECTNO> <SUBJECT>What are the Secretary's obligations in interstate situations?</SUBJECT> <P>(a) The Secretary is responsible for:</P> <P>(1) Identifying proposed federal financial assistance and direct federal development that have an impact on interstate areas;</P> <P>(2) Notifying appropriate officials and entities in states which have adopted a process and which select the Department's program or activity.</P> <P>(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 the Department's program or activity;</P> <P>(4) Responding pursuant to § 17.10 of this part if the Secretary 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 the Department have been delegated.</P> <P>(b) The Secretary uses the procedures in § 17.10 if a state process provides a <PRTPAGE P="121"/>state process recommendation to the Department through a single point of contact.</P> </SECTION> <SECTION> <SECTNO>§ 17.12</SECTNO> <SUBJECT>How may a state simplify, consolidate, or substitute federally required state plans?</SUBJECT> <P>(a) As used in this section:</P> <P>(1) <E T="03">Simplify</E> means that a state may develop its own format, choose its own submission date, and select the planning period for a state plan.</P> <P>(2) <E T="03">Consolidate</E> 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.</P> <P>(3) <E T="03">Substitute</E> means that a state may use a plan or other document that it has developed for its own purposes to meet Federal requirements.</P> <P>(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 Secretary.</P> <P>(c) The Secretary reviews each state plan that a state has simplified, consolidated, or substituted and accepts the plan only if its contents meet federal requirements.</P> </SECTION> <SECTION> <SECTNO>§ 17.13</SECTNO> <SUBJECT>May the Secretary waive any provision of these regulations?</SUBJECT> <P>In an emergency, the Secretary may waive any provision of these regulations.</P> </SECTION> </PART> <PART> <EAR>Pt. 18</EAR> <HD SOURCE="HED">PART 18—UNIFORM ADMINISTRATIVE REQUIREMENTS FOR GRANTS AND COOPERATIVE AGREEMENTS TO STATE AND LOCAL GOVERNMENTS</HD> <CONTENTS> <SUBPART> <HD SOURCE="HED">Subpart A—General</HD> <SECHD>Sec.</SECHD> <SECTNO>18.1</SECTNO> <SUBJECT>Purpose and scope of this part.</SUBJECT> <SECTNO>18.2</SECTNO> <SUBJECT>Scope of subpart.</SUBJECT> <SECTNO>18.3</SECTNO> <SUBJECT>Definitions.</SUBJECT> <SECTNO>18.4</SECTNO> <SUBJECT>Applicability.</SUBJECT> <SECTNO>18.5</SECTNO> <SUBJECT>Effect on other issuances.</SUBJECT> <SECTNO>18.6</SECTNO> <SUBJECT>Additions and exceptions.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Pre-Award Requirements</HD> <SECTNO>18.10</SECTNO> <SUBJECT>Forms for applying for grants.</SUBJECT> <SECTNO>18.11</SECTNO> <SUBJECT>State plans.</SUBJECT> <SECTNO>18.12</SECTNO> <SUBJECT>Special grant or subgrant conditions for “high risk” grantees.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—Post-Award Requirements</HD> <SUBJGRP> <HD SOURCE="HED">Financial Administration</HD> <SECTNO>18.20</SECTNO> <SUBJECT>Standards for financial management systems.</SUBJECT> <SECTNO>18.21</SECTNO> <SUBJECT>Payment.</SUBJECT> <SECTNO>18.22</SECTNO> <SUBJECT>Allowable costs.</SUBJECT> <SECTNO>18.23</SECTNO> <SUBJECT>Period of availability of funds.</SUBJECT> <SECTNO>18.24</SECTNO> <SUBJECT>Matching or cost sharing.</SUBJECT> <SECTNO>18.25</SECTNO> <SUBJECT>Program income.</SUBJECT> <SECTNO>18.26</SECTNO> <SUBJECT>Non-Federal audits.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Changes, Property, and Subawards</HD> <SECTNO>18.30</SECTNO> <SUBJECT>Changes.</SUBJECT> <SECTNO>18.31</SECTNO> <SUBJECT>Real property.</SUBJECT> <SECTNO>18.32</SECTNO> <SUBJECT>Equipment.</SUBJECT> <SECTNO>18.33</SECTNO> <SUBJECT>Supplies.</SUBJECT> <SECTNO>18.34</SECTNO> <SUBJECT>Copyrights.</SUBJECT> <SECTNO>18.35</SECTNO> <SUBJECT>Subawards to debarred and suspended parties.</SUBJECT> <SECTNO>18.36</SECTNO> <SUBJECT>Procurement.</SUBJECT> <SECTNO>18.37</SECTNO> <SUBJECT>Subgrants.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Reports, Records, Retention, and En-force-ment</HD> <SECTNO>18.40</SECTNO> <SUBJECT>Monitoring and reporting program performance.</SUBJECT> <SECTNO>18.41</SECTNO> <SUBJECT>Financial reporting.</SUBJECT> <SECTNO>18.42</SECTNO> <SUBJECT>Retention and access requirements for records.</SUBJECT> <SECTNO>18.43</SECTNO> <SUBJECT>Enforcememt.</SUBJECT> <SECTNO>18.44</SECTNO> <SUBJECT>Termination for convenience.</SUBJECT> </SUBJGRP> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart D—After-The-Grant Requirements</HD> <SECTNO>18.50</SECTNO> <SUBJECT>Closeout.</SUBJECT> <SECTNO>18.51</SECTNO> <SUBJECT>Later disallowances and adjustments.</SUBJECT> <SECTNO>18.52</SECTNO> <SUBJECT>Collection of amounts due.</SUBJECT> </SUBPART> <SUBPART> <RESERVED>Subpart E—Entitlements [Reserved]</RESERVED> </SUBPART> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>49 U.S.C. 322(a).</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>53 FR 8086 and 8087, Mar. 11, 1988, unless otherwise noted.</P> </SOURCE> <SUBPART> <HD SOURCE="HED">Subpart A—General</HD> <SECTION> <SECTNO>§ 18.1</SECTNO> <SUBJECT>Purpose and scope of this part.</SUBJECT> <P>This part establishes uniform administrative rules for Federal grants and cooperative agreements and subawards to State, local and Indian tribal governments.</P> </SECTION> <SECTION> <SECTNO>§ 18.2</SECTNO> <SUBJECT>Scope of subpart.</SUBJECT> <P>This subpart contains general rules pertaining to this part and procedures for control of exceptions from this part.</P> </SECTION> <SECTION> <PRTPAGE P="122"/> <SECTNO>§ 18.3</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>As used in this part:</P> <P> <E T="03">Accrued expenditures</E> 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.</P> <P> <E T="03">Accrued income</E> 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.</P> <P> <E T="03">Acquisition cost</E> 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.</P> <P> <E T="03">Administrative</E> 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.</P> <P> <E T="03">Awarding agency</E> means (1) with respect to a grant, the Federal agency, and (2) with respect to a subgrant, the party that awarded the subgrant.</P> <P> <E T="03">Cash contributions</E> 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.</P> <P> <E T="03">Contract</E> 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.</P> <P> <E T="03">Cost sharing or matching</E> means the value of the third party in-kind contributions and the portion of the costs of a federally assisted project or program not borne by the Federal Government.</P> <P> <E T="03">Cost-type contract</E> 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.</P> <P> <E T="03">Equipment</E> 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.</P> <P> <E T="03">Expenditure report</E> 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).</P> <P> <E T="03">Federally recognized Indian tribal government</E> 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.</P> <P> <E T="03">Government</E> means a State or local government or a federally recognized Indian tribal government.</P> <P> <E T="03">Grant</E> 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 <PRTPAGE P="123"/>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.</P> <P> <E T="03">Grantee</E> 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.</P> <P> <E T="03">Local government</E> 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.</P> <P> <E T="03">Obligations</E> 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.</P> <P> <E T="03">OMB</E> means the United States Office of Management and Budget.</P> <P> <E T="03">Outlays</E> (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.</P> <P> <E T="03">Percentage of completion method</E> 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.</P> <P> <E T="03">Prior approval</E> means documentation evidencing consent prior to incurring specific cost.</P> <P> <E T="03">Real property</E> means land, including land improvements, structures and appurtenances thereto, excluding movable machinery and equipment.</P> <P> <E T="03">Share</E>, 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.</P> <P> <E T="03">State</E> 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.</P> <P> <E T="03">Subgrant</E> 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.</P> <P> <E T="03">Subgrantee</E> 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.</P> <P> <E T="03">Supplies</E> means all tangible personal property other than “equipment” as defined in this part.</P> <P> <E T="03">Suspension</E> means depending on the context, either (1) temporary withdrawal of the authority to obligate grant funds pending corrective action <PRTPAGE P="124"/>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.</P> <P> <E T="03">Termination</E> 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.</P> <P> <E T="03">Terms of a grant or subgrant</E> mean all requirements of the grant or subgrant, whether in statute, regulations, or the award document.</P> <P> <E T="03">Third party in-kind contributions</E> 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.</P> <P> <E T="03">Unliquidated obligations</E> 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.</P> <P> <E T="03">Unobligated balance</E> 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.</P> </SECTION> <SECTION> <SECTNO>§ 18.4</SECTNO> <SUBJECT>Applicability.</SUBJECT> <P>(a) <E T="03">General.</E> 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 § 18.6, or:</P> <P>(1) Grants and subgrants to State and local institutions of higher education or State and local hospitals.</P> <P>(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).</P> <P>(3) Entitlement grants to carry out the following programs of the Social Security Act:</P> <P>(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);</P> <P>(ii) Child Support Enforcement and Establishment of Paternity (title IV-D of the Act);</P> <P>(iii) Foster Care and Adoption Assistance (title IV-E of the Act);</P> <P>(iv) Aid to the Aged, Blind, and Disabled (titles I, X, XIV, and XVI-AABD of the Act); and</P> <P>(v) Medical Assistance (Medicaid) (title XIX of the Act) not including the State Medicaid Fraud Control program authorized by section 1903(a)(6)(B).</P> <P>(4) Entitlement grants under the following programs of The National School Lunch Act:<PRTPAGE P="125"/> </P> <P>(i) School Lunch (section 4 of the Act),</P> <P>(ii) Commodity Assistance (section 6 of the Act),</P> <P>(iii) Special Meal Assistance (section 11 of the Act),</P> <P>(iv) Summer Food Service for Children (section 13 of the Act), and</P> <P>(v) Child Care Food Program (section 17 of the Act).</P> <P>(5) Entitlement grants under the following programs of The Child Nutrition Act of 1966:</P> <P>(i) Special Milk (section 3 of the Act), and</P> <P>(ii) School Breakfast (section 4 of the Act).</P> <P>(6) Entitlement grants for State Administrative expenses under The Food Stamp Act of 1977 (section 16 of the Act).</P> <P>(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;</P> <P>(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;</P> <P>(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</P> <P>(10) Payments under the Veterans Administration's State Home Per Diem Program (38 U.S.C. 641(a)).</P> <P>(b) <E T="03">Entitlement programs.</E> Entitlement programs enumerated above in § 18.4(a) (3) through (8) are subject to subpart E.</P> </SECTION> <SECTION> <SECTNO>§ 18.5</SECTNO> <SUBJECT>Effect on other issuances.</SUBJECT> <P>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 § 18.6.</P> </SECTION> <SECTION> <SECTNO>§ 18.6</SECTNO> <SUBJECT>Additions and exceptions.</SUBJECT> <P>(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 <E T="04">Federal Register</E>.</P> <P>(b) Exceptions for classes of grants or grantees may be authorized only by OMB.</P> <P>(1) All Departmental requests for exceptions shall be processed through the Assistant Secretary of Administration.</P> <P>(2) [Reserved]</P> <P>(c) Exceptions on a case-by-case basis and for subgrantees may be authorized by the affected Federal agencies.</P> <P>(1) All case-by-case exceptions may be authorized by the affected operating administrations or departmental offices, with the concurrence of the Assistant Secretary for Administration.</P> <P>(2) [Reserved]</P> <CITA>[53 FR 8086 and 8087, Mar. 11, 1988, as amended at 60 FR 19646, Apr. 19, 1995]</CITA> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Pre-Award Requirements</HD> <SECTION> <SECTNO>§ 18.10</SECTNO> <SUBJECT>Forms for applying for grants.</SUBJECT> <P>(a) <E T="03">Scope.</E> (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.</P> <P>(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.</P> <P>(3) Forms and procedures for Federal Highway Administration (FHWA) projects are contained in 23 CFR part 630, subpart B, 23 CFR part 420, subpart A, and 49 CFR part 450.</P> <P>(b) <E T="03">Authorized forms and instructions for governmental organizations.</E> (1) In applying for grants, applicants shall only use standard application forms or those prescribed by the granting agency with <PRTPAGE P="126"/>the approval of OMB under the Paperwork Reduction Act of 1980.</P> <P>(2) Applicants are not required to submit more than the original and two copies of preapplications or applications.</P> <P>(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.</P> <P>(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.</P> <CITA>[53 FR 8086 and 8087, Mar. 11, 1988, as amended at 53 FR 8086, Mar. 11, 1988]</CITA> </SECTION> <SECTION> <SECTNO>§ 18.11</SECTNO> <SUBJECT>State plans.</SUBJECT> <P>(a) <E T="03">Scope.</E> 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.</P> <P>(b) <E T="03">Requirements.</E> A State need meet only Federal administrative or programmatic requirements for a plan that are in statutes or codified regulations.</P> <P>(c) <E T="03">Assurances.</E> 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:</P> <P>(1) Cite by number the statutory or regulatory provisions requiring the assurances and affirm that it gives the assurances required by those provisions,</P> <P>(2) Repeat the assurance language in the statutes or regulations, or</P> <P>(3) Develop its own language to the extent permitted by law.</P> <P>(d) <E T="03">Amendments.</E> 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.</P> </SECTION> <SECTION> <SECTNO>§ 18.12</SECTNO> <SUBJECT>Special grant or subgrant conditions for “high-risk” grantees.</SUBJECT> <P>(a) A grantee or subgrantee may be considered “high risk” if an awarding agency determines that a grantee or subgrantee:</P> <P>(1) Has a history of unsatisfactory performance, or</P> <P>(2) Is not financially stable, or</P> <P>(3) Has a management system which does not meet the management standards set forth in this part, or</P> <P>(4) Has not conformed to terms and conditions of previous awards, or</P> <P>(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.</P> <P>(b) Special conditions or restrictions may include:</P> <P>(1) Payment on a reimbursement basis;</P> <P>(2) Withholding authority to proceed to the next phase until receipt of evidence of acceptable performance within a given funding period;</P> <P>(3) Requiring additional, more detailed financial reports;</P> <P>(4) Additional project monitoring;</P> <P>(5) Requiring the grante or subgrantee to obtain technical or management assistance; or</P> <P>(6) Establishing additional prior approvals.</P> <P>(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:<PRTPAGE P="127"/> </P> <P>(1) The nature of the special conditions/restrictions;</P> <P>(2) The reason(s) for imposing them;</P> <P>(3) The corrective actions which must be taken before they will be removed and the time allowed for completing the corrective actions; and</P> <P>(4) The method of requesting reconsideration of the conditions/restrictions imposed.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—Post-Award Requirements</HD> <SUBJGRP> <HD SOURCE="HED">Financial Administration</HD> <SECTION> <SECTNO>§ 18.20</SECTNO> <SUBJECT>Standards for financial management systems.</SUBJECT> <P>(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—</P> <P>(1) Permit preparation of reports required by this part and the statutes authorizing the grant, and</P> <P>(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.</P> <P>(b) The financial management systems of other grantees and subgrantees must meet the following standards:</P> <P>(1) <E T="03">Financial reporting.</E> 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.</P> <P>(2) <E T="03">Accounting records.</E> 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.</P> <P>(3) <E T="03">Internal control.</E> 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.</P> <P>(4) <E T="03">Budget control.</E> 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.</P> <P>(5) <E T="03">Allowable cost.</E> 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.</P> <P>(6) <E T="03">Source documentation.</E> Accounting records must be supported by such source documentation as cancelled checks, paid bills, payrolls, time and attendance records, contract and subgrant award documents, etc.</P> <P>(7) <E T="03">Cash management.</E> 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.</P> <P>(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.</P> <P>(d) Certain Urban Mass Transportation Administration (UMTA) grantees shall comply with the requirements <PRTPAGE P="128"/>of section 15 of the Urban Mass Transportation (UMT) Act of 1964, as amended, as implemented by 49 CFR part 630, regarding a uniform system of accounts and records and a uniform reporting system for certain grantees.</P> <CITA>[53 FR 8086 and 8087, Mar. 11, 1988, as amended at 53 FR 8086, Mar. 11, 1988]</CITA> </SECTION> <SECTION> <SECTNO>§ 18.21</SECTNO> <SUBJECT>Payment.</SUBJECT> <P>(a) <E T="03">Scope.</E> 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.</P> <P>(b) <E T="03">Basic standard.</E> 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.</P> <P>(c) <E T="03">Advances.</E> 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.</P> <P>(d) <E T="03">Reimbursement.</E> 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.</P> <P>(e) <E T="03">Working capital advances.</E> 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.</P> <P>(f) <E T="03">Effect of program income, refunds, and audit recoveries on payment.</E> (1) Grantees and subgrantees shall disburse repayments to and interest earned on a revolving fund before requesting additional cash payments for the same activity.</P> <P>(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.</P> <P>(g) <E T="03">Withholding payments.</E> (1) Unless otherwise required by Federal statute, awarding agencies shall not withhold payments for proper charges incurred by grantees or subgrantees unless—</P> <P>(i) The grantee or subgrantee has failed to comply with grant award conditions or</P> <P>(ii) The grantee or subgrantee is indebted to the United States.</P> <P>(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 § 18.43(c).</P> <P>(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.</P> <P>(h) <E T="03">Cash depositories.</E> (1) Consistent with the national goal of expanding the opportunities for minority business enterprises, grantees and subgrantees are <PRTPAGE P="129"/>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.</P> <P>(2) A grantee or subgrantee shall maintain a separate bank account only when required by Federal-State agreement.</P> <P>(i) <E T="03">Interest earned on advances.</E> 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.</P> <P>(j) 23 U.S.C. 121 limits payments to States for highway construction projects to the Federal share of the costs of construction incurred to date, plus the Federal share of the value of stockpiled materials.</P> <P>(k) Section 404 of the Surface Transportation Assistance Act of 1982 directs the Secretary to reimburse States for the Federal share of costs incurred.</P> <CITA>[53 FR 8086 and 8087, Mar. 11, 1988, as amended at 53 FR 8086, Mar. 11, 1988]</CITA> </SECTION> <SECTION> <SECTNO>§ 18.22</SECTNO> <SUBJECT>Allowable costs.</SUBJECT> <P>(a) <E T="03">Limitation on use of funds.</E> Grant funds may be used only for:</P> <P>(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</P> <P>(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.</P> <P>(b) <E T="03">Applicable cost principles.</E> 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.</P> <GPOTABLE CDEF="s25,r25" COLS="2" OPTS="L2,i1"> <BOXHD> <CHED H="1">For the costs of a—</CHED> <CHED H="1">Use the principles in—</CHED> </BOXHD> <ROW> <ENT I="01">State, local or Indian tribal government</ENT> <ENT>OMB Circular A-87.</ENT> </ROW> <ROW> <ENT I="01">Private nonprofit organization other than an (1) institution of higher education, (2) hospital, or (3) organization named in OMB Circular A-122 as not subject to that circular</ENT> <ENT>OMB Circular A-122.</ENT> </ROW> <ROW> <ENT I="01">Educational institutions.</ENT> <ENT>OMB Circular A-21.</ENT> </ROW> <ROW> <ENT I="01">For-profit organization other than a hospital and an organization named in OBM Circular A-122 as not subject to that circular</ENT> <ENT>48 CFR part 31. Contract Cost Principles and Procedures, or uniform cost accounting standards that comply with cost principles acceptable to the Federal agency.</ENT> </ROW> </GPOTABLE> <P>(c) The overhead cost principles of OMB Circular A-87 shall not apply to State highway agencies for FHWA funded grants.</P> <P>(d) Sections 3(1) and 9(p) of the UMT Act of 1964, as amended, authorize the Secretary to include in the net project cost eligible for Federal assistance, the amount of interest earned and payable on bonds issued by the State or local public body to the extent that the proceeds of such bonds have actually been expended in carrying out such project or portion thereof. Limitations are established in sections 3 and 9 of the UMT Act of 1964, as amended.</P> <P>(e) Section 9 of the UMT Act of 1964, as amended, authorizes grants to finance the leasing of facilities and equipment for use in mass transportation services provided leasing is more cost effective than acquisition or construction.</P> <CITA>[53 FR 8086 and 8087, Mar. 11, 1988, as amended at 53 FR 8086, Mar. 11, 1988]</CITA> </SECTION> <SECTION> <SECTNO>§ 18.23</SECTNO> <SUBJECT>Period of availability of funds.</SUBJECT> <P>(a) <E T="03">General.</E> 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.</P> <P>(b) <E T="03">Liquidation of obligations.</E> 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 <PRTPAGE P="130"/>(SF-269). The Federal agency may extend this deadline at the request of the grantee.</P> </SECTION> <SECTION> <SECTNO>§ 18.24</SECTNO> <SUBJECT>Matching or cost sharing.</SUBJECT> <P>(a) <E T="03">Basic rule: Costs and contributions acceptable.</E> 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:</P> <P>(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.</P> <P>(2) The value of third party in-kind contributions applicable to the period to which the cost sharing or matching requirements applies.</P> <P>(b) <E T="03">Qualifications and exceptions</E>—(1) <E T="03">Costs borne by other Federal grant agreements.</E> 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.</P> <P>(2) <E T="03">General revenue sharing.</E> For the purpose of this section, general revenue sharing funds distributed under 31 U.S.C. 6702 are not considered Federal grant funds.</P> <P>(3) <E T="03">Cost or contributions counted towards other Federal costs-sharing requirements.</E> 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.</P> <P>(4) <E T="03">Costs financed by program income.</E> Costs financed by program income, as defined in § 18.25, 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 § 18.25(g).)</P> <P>(5) <E T="03">Services or property financed by income earned by contractors.</E> 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.</P> <P>(6) <E T="03">Records.</E> 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.</P> <P>(7) <E T="03">Special standards for third party in-kind contributions.</E> (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.</P> <P>(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.</P> <P>(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:</P> <P>(A) An increase in the services or property provided under the contract (without additional cost to the grantee or subgrantee) or</P> <P>(B) A cost savings to the grantee or subgrantee.<PRTPAGE P="131"/> </P> <P>(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.</P> <P>(8) 23 U.S.C. 121(a) permits reimbursement for actual construction cost incurred by States for highway construction projects. Except for private donations of right-of-way, contributions and donations shall not be considered State costs, and shall not be allowable for matching purposes for highway construction contracts. 23 U.S.C. 323 permits private donations of right-of-way to be used for a State's matching share, and establishes procedures for determining the fair market value of such donated right-of-way.</P> <P>(9) Section 4(a) of the UMT Act of 1964, as amended, provides that the Federal grant for any project to be assisted under section 3 of the UMT Act of 1964, as amended, shall be in an amount equal to 75 percent of the net project costs. Net project cost is defined as that portion of the cost of the project which cannot be reasonably financed from revenues.</P> <P>(10) Section 18(e) of the UMT Act of 1964, as amended, limits the Federal share to 80 percent of the net cost of construction, as determined by the Secretary of Transportation. The Federal share for the payment of subsidies for operating expenses, as defined by the Secretary, shall not exceed 50 percent of the net cost of such operating expense projects.</P> <P>(c) <E T="03">Valuation of donated services</E>—(1) <E T="03">Volunteer services.</E> 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.</P> <P>(2) <E T="03">Employees of other organizations.</E> 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.</P> <P>(3) Section 5(g) of the Department of Transportation Act (49 U.S.C. 1654(g)) limits in-kind service contributions under the local Rail Service Assistance Program to “the cash equivalent of State salaries for State public employees working in the State rail assistance program, but not including overhead and general administrative costs.”</P> <P>(d) <E T="03">Valuation of third party donated supplies and loaned equipment or space.</E> (1) If a third party donates supplies, the contribution will be valued at the market value of the supplies at the time of donation.</P> <P>(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.</P> <P>(e) <E T="03">Valuation of third party donated equipment, buildings, and land.</E> 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:</P> <P>(1) <E T="03">Awards for capital expenditures.</E> 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,</P> <P>(2) <E T="03">Other awards.</E> 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:</P> <P>(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 <PRTPAGE P="132"/>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.</P> <P>(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 § 18.22, 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.</P> <P>(f) <E T="03">Valuation of grantee or subgrantee donated real property for construction/acquisition.</E> 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.</P> <P>(g) <E T="03">Appraisal of real property.</E> In some cases under paragraphs (d), (e) and (f) of this section, it will be necessary to establish the market value of land or a building or the fair rental rate of land or of space in a building. In these cases, the Federal agency may require the market value or fair rental value be set by an independent appraiser, and that the value or rate be certified by the grantee. This requirement will also be imposed by the grantee on subgrantees.</P> <CITA>[53 FR 8086 and 8087, Mar. 11, 1988, as amended at 53 FR 8086, Mar. 11, 1988]</CITA> </SECTION> <SECTION> <SECTNO>§ 18.25</SECTNO> <SUBJECT>Program income.</SUBJECT> <P>(a) <E T="03">General.</E> 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.</P> <P>(b) <E T="03">Definition of program income.</E> 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.</P> <P>(c) <E T="03">Cost of generating program income.</E> 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.</P> <P>(d) <E T="03">Governmental revenues.</E> 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.</P> <P>(e) <E T="03">Royalties.</E> 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 § 18.34.)</P> <P>(f) <E T="03">Property.</E> Proceeds from the sale of real property or equipment will be handled in accordance with the requirements of §§ 18.31 and 18.32.</P> <P>(g) <E T="03">Use of program income.</E> 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 <PRTPAGE P="133"/>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.</P> <P>(1) <E T="03">Deduction.</E> 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.</P> <P>(2) <E T="03">Addition.</E> 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.</P> <P>(3) <E T="03">Cost sharing or matching.</E> 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.</P> <P>(4) Section 3(a)(1)(D) of the UMT Act of 1964, as amended, provides that the Secretary shall establish requirements for the use of income derived from appreciated land values for certain UMTA grants. Specific requirements shall be contained in grant agreements.</P> <P>(5) UMTA grantees may retain program income for allowable capital or operating expenses.</P> <P>(6) For grants awarded under section 9 of the UMT Act of 1964, as amended, any revenues received from the sale of advertising and concessions in excess of fiscal year 1985 levels shall be excluded from program income.</P> <P>(7) 23 U.S.C. 156 requires that States shall charge fair market value for the sale, lease, or use of right-of-way airspace for non-transportation purposes and that such income shall be used for projects eligible under 23 U.S.C.</P> <P>(h) <E T="03">Income after the award period.</E> 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.</P> <CITA>[53 FR 8086 and 8087, Mar. 11, 1988, as amended at 53 FR 8087, Mar. 11, 1988]</CITA> </SECTION> <SECTION> <SECTNO>§ 18.26</SECTNO> <SUBJECT>Non-Federal audits.</SUBJECT> <P>(a) <E T="03">Basic rule.</E> Grantees and subgrantees are responsible for obtaining audits in accordance with the Single Audit Act Amendments of 1996 (31 U.S.C. 7501-7507) and revised OMB Circular A-133, “Audits of States, Local Governments, and Non-Profit Organizations.” The audits shall be made by an independent auditor in accordance with generally accepted government auditing standards covering financial audits.</P> <P>(b) <E T="03">Subgrantees.</E> 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:</P> <P>(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;</P> <P>(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 <PRTPAGE P="134"/>through other means (e.g., program reviews) if the subgrantee has not had such an audit;</P> <P>(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;</P> <P>(4) Consider whether subgrantee audits necessitate adjustment of the grantee's own records; and</P> <P>(5) Require each subgrantee to permit independent auditors to have access to the records and financial statements.</P> <P>(c) <E T="03">Auditor selection.</E> In arranging for audit services, § 18.36 shall be followed.</P> <CITA>[53 FR 8086 and 8087, Mar. 11, 1988, as amended at 61 FR 21387, May 10, 1996; 62 FR 45939, 45947, Aug. 29, 1997]</CITA> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Changes, Property, and Subawards</HD> <SECTION> <SECTNO>§ 18.30</SECTNO> <SUBJECT>Changes.</SUBJECT> <P>(a) <E T="03">General</E>. 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.</P> <P>(b) <E T="03">Relation to cost principles.</E> The applicable cost principles (see § 18.22) 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.</P> <P>(c) <E T="03">Budget changes—</E>(1) <E T="03">Nonconstruction projects.</E> 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:</P> <P>(i) Any revision which would result in the need for additional funding.</P> <P>(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.</P> <P>(iii) Transfer of funds allotted for training allowances (i.e., from direct payments to trainees to other expense categories).</P> <P>(2) <E T="03">Construction projects.</E> Grantees and subgrantees shall obtain prior written approval for any budget revision which would result in the need for additional funds.</P> <P>(3) <E T="03">Combined construction and nonconstruction projects.</E> When a grant or subgrant provides funding for both construction and nonconstruction activities, the grantee or subgrantee must obtain prior written approval from the awarding agency before making any fund or budget transfer from nonconstruction to construction or vice versa.</P> <P>(d) <E T="03">Programmatic changes.</E> Grantees or subgrantees must obtain the prior approval of the awarding agency whenever any of the following actions is anticipated:</P> <P>(1) Any revision of the scope or objectives of the project (regardless of whether there is an associated budget revision requiring prior approval).</P> <P>(2) Need to extend the period of availability of funds.</P> <P>(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.</P> <P>(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 § 18.36 but does not apply to the procurement of equipment, supplies, and general support services.</P> <P>(e) <E T="03">Additional prior approval requirements.</E> The awarding agency may not require prior approval for any budget revision which is not described in paragraph (c) of this section.</P> <P>(f) <E T="03">Requesting prior approval.</E> (1) A request for prior approval of any budget revision will be in the same budget formal the grantee used in its application <PRTPAGE P="135"/>and shall be accompanied by a narrative justification for the proposed revision.</P> <P>(2) A request for a prior approval under the applicable Federal cost principles (see § 18.22) may be made by letter.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 18.31</SECTNO> <SUBJECT>Real property.</SUBJECT> <P>(a) <E T="03">Title.</E> 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.</P> <P>(b) <E T="03">Use.</E> 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.</P> <P>(c) <E T="03">Disposition.</E> 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:</P> <P>(1) <E T="03">Retention of title.</E> 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.</P> <P>(2) <E T="03">Sale of property.</E> 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.</P> <P>(3) <E T="03">Transfer of title.</E> 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.</P> <P>(d) If the conditions in 23 U.S.C. 103(e) (5), (6), or (7), as appropriate, are met and approval is given by the Secretary, States shall not be required to repay the Highway Trust Fund for the cost of right-of-way and other items when certain segments of the Interstate System are withdrawn.</P> <CITA>[53 FR 8086 and 8087, Mar. 11, 1988, as amended at 53 FR 8087, Mar. 11, 1988]</CITA> </SECTION> <SECTION> <SECTNO>§ 18.32</SECTNO> <SUBJECT>Equipment.</SUBJECT> <P>(a) <E T="03">Title.</E> 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.</P> <P>(b) <E T="03">States.</E> 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.</P> <P>(c) <E T="03">Use.</E> (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 <PRTPAGE P="136"/>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.</P> <P>(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.</P> <P>(3) Notwithstanding the encouragement in § 18.25(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.</P> <P>(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.</P> <P>(d) <E T="03">Management requirements.</E> 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:</P> <P>(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.</P> <P>(2) A physical inventory of the property must be taken and the results reconciled with the property records at least once every two years.</P> <P>(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.</P> <P>(4) Adequate maintenance procedures must be developed to keep the property in good condition.</P> <P>(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.</P> <P>(e) <E T="03">Disposition.</E> 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:</P> <P>(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.</P> <P>(2) Items of equipment with a current per unit fair market value in excess of $5,000 may be retained or sold and the awarding agency shall have a right to an amount calculated by multiplying the current market value or proceeds from sale by the awarding agency's share of the equipment.</P> <P>(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.</P> <P>(f) <E T="03">Federal equipment.</E> In the event a grantee or subgrantee is provided federally-owned equipment:</P> <P>(1) Title will remain vested in the Federal Government.</P> <P>(2) Grantees or subgrantees will manage the equipment in accordance with Federal agency rules and procedures, and submit an annual inventory listing.</P> <P>(3) When the equipment is no longer needed, the grantee or subgrantee will request disposition instructions from the Federal agency.</P> <P>(g) <E T="03">Right to transfer title.</E> 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:<PRTPAGE P="137"/> </P> <P>(1) The property shall be identified in the grant or otherwise made known to the grantee in writing.</P> <P>(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 § 18.32(e).</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 18.33</SECTNO> <SUBJECT>Supplies.</SUBJECT> <P>(a) <E T="03">Title.</E> Title to supplies acquired under a grant or subgrant will vest, upon acquisition, in the grantee or subgrantee respectively.</P> <P>(b) <E T="03">Disposition.</E> 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.</P> </SECTION> <SECTION> <SECTNO>§ 18.34</SECTNO> <SUBJECT>Copyrights.</SUBJECT> <P>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:</P> <P>(a) The copyright in any work developed under a grant, subgrant, or contract under a grant or subgrant; and</P> <P>(b) Any rights of copyright to which a grantee, subgrantee or a contractor purchases ownership with grant support.</P> </SECTION> <SECTION> <SECTNO>§ 18.35</SECTNO> <SUBJECT>Subawards to debarred and suspended parties.</SUBJECT> <P>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.”</P> </SECTION> <SECTION> <SECTNO>§ 18.36</SECTNO> <SUBJECT>Procurement.</SUBJECT> <P>(a) <E T="03">States.</E> 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.</P> <P>(b) <E T="03">Procurement standards.</E> (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.</P> <P>(2) Grantees and subgrantees will maintain a contract administration system which ensures that contractors perform in accordance with the terms, conditions, and specifications of their contracts or purchase orders.</P> <P>(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:</P> <P>(i) The employee, officer or agent,</P> <P>(ii) Any member of his immediate family,</P> <P>(iii) His or her partner, or</P> <P>(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 <PRTPAGE P="138"/>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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(10) Grantees and subgrantees will use time and material type contracts only—</P> <P>(i) After a determination that no other contract is suitable, and</P> <P>(ii) If the contract includes a ceiling price that the contractor exceeds at its own risk.</P> <P>(11) Grantees and subgrantees alone will be responsible, in accordance with good administrative practice and sound business judgment, for the settlement of all contractual and administrative issues arising out of procurements. These issues include, but are not limited to source evaluation, protests, disputes, and claims. These standards do not relieve the grantee or subgrantee of any contractual responsibilities under its contracts. Federal agencies will not substitute their judgment for that of the grantee or subgrantee unless the matter is primarily a Federal concern. Violations of law will be referred to the local, State, or Federal authority having proper jurisdiction.</P> <P>(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:</P> <P>(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</P> <P>(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.</P> <P>(c) <E T="03">Competition</E>. (1) All procurement transactions will be conducted in a manner providing full and open competition consistent with the standards <PRTPAGE P="139"/>of § 18.36. Some of the situations considered to be restrictive of competition include but are not limited to:</P> <P>(i) Placing unreasonable requirements on firms in order for them to qualify to do business,</P> <P>(ii) Requiring unnecessary experience and excessive bonding,</P> <P>(iii) Noncompetitive pricing practices between firms or between affiliated companies,</P> <P>(iv) Noncompetitive awards to consultants that are on retainer contracts,</P> <P>(v) Organizational conflicts of interest,</P> <P>(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</P> <P>(vii) Any arbitrary action in the procurement process.</P> <P>(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.</P> <P>(3) Grantees will have written selection procedures for procurement transactions. These procedures will ensure that all solicitations:</P> <P>(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</P> <P>(ii) Identify all requirements which the offerors must fulfill and all other factors to be used in evaluating bids or proposals.</P> <P>(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.</P> <P>(d) <E T="03">Methods of procurement to be followed—</E>(1) <E T="03">Procurement by small purchase procedures.</E> Small purchase procedures are those relatively simple and informal procurement methods for securing services, supplies, or other property that do not cost more than the simplified acquisition threshold fixed at 41 U.S.C. 403(11) (currently set at $100,000). If small purchase procedures are used, price or rate quotations shall be obtained from an adequate number of qualified sources.</P> <P>(2) Procurement by <E T="03">sealed bids</E> (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 § 18.36(d)(2)(i) apply.</P> <P>(i) In order for sealed bidding to be feasible, the following conditions should be present:</P> <P>(A) A complete, adequate, and realistic specification or purchase description is available;</P> <P>(B) Two or more responsible bidders are willing and able to compete effectively and for the business; and<PRTPAGE P="140"/> </P> <P>(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.</P> <P>(ii) If sealed bids are used, the following requirements apply:</P> <P>(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;</P> <P>(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;</P> <P>(C) All bids will be publicly opened at the time and place prescribed in the invitation for bids;</P> <P>(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</P> <P>(E) Any or all bids may be rejected if there is a sound documented reason.</P> <P>(3) Procurement by <E T="03">competitive proposals.</E> 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:</P> <P>(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;</P> <P>(ii) Proposals will be solicited from an adequate number of qualified sources;</P> <P>(iii) Grantees and subgrantees will have a method for conducting technical evaluations of the proposals received and for selecting awardees;</P> <P>(iv) Awards will be made to the responsible firm whose proposal is most advantageous to the program, with price and other factors considered; and</P> <P>(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.</P> <P>(4) Procurement by <E T="03">noncompetitive proposals</E> is procurement through solicitation of a proposal from only one source, or after solicitation of a number of sources, competition is determined inadequate.</P> <P>(i) Procurement by noncompetitive proposals may be used only when the award of a contract is infeasible under small purchase procedures, sealed bids or competitive proposals and one of the following circumstances applies:</P> <P>(A) The item is available only from a single source;</P> <P>(B) The public exigency or emergency for the requirement will not permit a delay resulting from competitive solicitation;</P> <P>(C) The awarding agency authorizes noncompetitive proposals; or</P> <P>(D) After solicitation of a number of sources, competition is determined inadequate.</P> <P>(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.</P> <P>(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.</P> <P>(e) <E T="03">Contracting with small and minority firms, women's business enterprise and labor surplus area firms.</E> (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.<PRTPAGE P="141"/> </P> <P>(2) Affirmative steps shall include:</P> <P>(i) Placing qualified small and minority businesses and women's business enterprises on solicitation lists;</P> <P>(ii) Assuring that small and minority businesses, and women's business enterprises are solicited whenever they are potential sources;</P> <P>(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;</P> <P>(iv) Establishing delivery schedules, where the requirement permits, which encourage participation by small and minority business, and women's business enterprises;</P> <P>(v) Using the services and assistance of the Small Business Administration, and the Minority Business Development Agency of the Department of Commerce; and</P> <P>(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.</P> <P>(f) <E T="03">Contract cost and price.</E> (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.</P> <P>(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.</P> <P>(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 § 18.22). Grantees may reference their own cost principles that comply with the applicable Federal cost principles.</P> <P>(4) The cost plus a percentage of cost and percentage of construction cost methods of contracting shall not be used.</P> <P>(g) <E T="03">Awarding agency review.</E> (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.</P> <P>(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:</P> <P>(i) A grantee's or subgrantee's procurement procedures or operation fails to comply with the procurement standards in this section; or</P> <P>(ii) The procurement is expected to exceed the simplified acquisition <PRTPAGE P="142"/>threshold and is to be awarded without competition or only one bid or offer is received in response to a solicitation; or</P> <P>(iii) The procurement, which is expected to exceed the simplified acquisition threshold, specifies a “brand name” product; or</P> <P>(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</P> <P>(v) A proposed contract modification changes the scope of a contract or increases the contract amount by more than the simplified acquisition threshold.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(h) <E T="03">Bonding requirements.</E> 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:</P> <P>(1) <E T="03">A bid guarantee from each bidder equivalent to five percent of the bid price.</E> 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.</P> <P>(2) <E T="03">A performance bond on the part of the contractor for 100 percent of the contract price.</E> A “performance bond” is one executed in connection with a contract to secure fulfillment of all the contractor's obligations under such contract.</P> <P>(3) <E T="03">A payment bond on the part of the contractor for 100 percent of the contract price.</E> 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.</P> <P>(i) <E T="03">Contract provisions.</E> 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.</P> <P>(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)</P> <P>(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)</P> <P>(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)<PRTPAGE P="143"/> </P> <P>(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)</P> <P>(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)</P> <P>(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)</P> <P>(7) Notice of awarding agency requirements and regulations pertaining to reporting.</P> <P>(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.</P> <P>(9) Awarding agency requirements and regulations pertaining to copyrights and rights in data.</P> <P>(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.</P> <P>(11) Retention of all required records for three years after grantees or subgrantees make final payments and all other pending matters are closed.</P> <P>(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)</P> <P>(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).</P> <P>(j) 23 U.S.C. 112(a) directs the Secretary to require recipients of highway construction grants to use bidding methods that are “effective in securing competition.” Detailed construction contracting procedures are contained in 23 CFR part 635, subpart A.</P> <P>(k) Section 3(a)(2)(C) of the UMT Act of 1964, as amended, prohibits the use of grant or loan funds to support procurements utilizing exclusionary or discriminatory specifications.</P> <P>(l) 46 U.S.C. 1241(b)(1) and 46 CFR part 381 impose cargo preference requirements on the shipment of foreign made goods.</P> <P>(m) Section 165 of the Surface Transportation Assistance Act of 1982, 49 U.S.C. 1601, section 337 of the Surface Transportation and Uniform Relocation Assistance Act of 1987, and 49 CFR parts 660 and 661 impose Buy America provisions on the procurement of foreign products and materials.</P> <P>(n) Section 105(f) of the Surface Transportation Assistance Act of 1982, section 106(c) of the Surface Transportation and Uniform Relocation Assistance Act of 1987, and 49 CFR part 23 impose requirements for the participation of disadvantaged business enterprises.</P> <P>(o) Section 308 of the Surface Transportation Assistance Act of 1982, 49 U.S.C. 1068(b)(2), authorizes the use of competitive negotiation for the purchase of rolling stock as appropriate.</P> <P>(p) 23 U.S.C. 112(b) provides for an exemption to competitive bidding requirements for highway construction contracts in emergency situations.</P> <P>(q) 23 U.S.C. 112 requires concurrence by the Secretary before highway construction contracts can be awarded, except for projects authorized under the provisions of 23 U.S.C. 17l.</P> <P>(r) 23 U.S.C. 112(e) requires standardized contract clauses concerning site conditions, suspension or work, and material changes in the scope of the work for highway construction contracts.<PRTPAGE P="144"/> </P> <P>(s) 23 U.S.C. 140(b) authorizes the preferential employment of Indians on Indian Reservation road projects and contracts.</P> <P>(t) FHWA, UMTA, and Federal Aviation Administration (FAA) grantees and subgrantees shall extend the use of qualifications-based (e.g., architectural and engineering services) contract selection procedures to certain other related areas and shall award such contracts in the same manner as Federal contracts for architectural and engineering services are negotiated under Title IX of the Federal Property and Administrative Services Act of 1949, or equivalent State (or airport sponsor for FAA) qualifications-based requirements. For FHWA and UMTA programs, this provision applies except to the extent that a State adopts or has adopted by statute a formal procedure for the procurement of such services.</P> <CITA>[53 FR 8086 and 8087, Mar. 11, 1988, as amended at 53 FR 8087, Mar. 11, 1988; 60 FR 19639, 19647, Apr. 19, 1995]</CITA> </SECTION> <SECTION> <SECTNO>§ 18.37</SECTNO> <SUBJECT>Subgrants.</SUBJECT> <P>(a) <E T="03">States.</E> 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:</P> <P>(1) Ensure that every subgrant includes any clauses required by Federal statute and executive orders and their implementing regulations;</P> <P>(2) Ensure that subgrantees are aware of requirements imposed upon them by Federal statute and regulation;</P> <P>(3) Ensure that a provision for compliance with § 18.42 is placed in every cost reimbursement subgrant; and</P> <P>(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.</P> <P>(b) <E T="03">All other grantees.</E> 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:</P> <P>(1) Ensure that every subgrant includes a provision for compliance with this part;</P> <P>(2) Ensure that every subgrant includes any clauses required by Federal statute and executive orders and their implementing regulations; and</P> <P>(3) Ensure that subgrantees are aware of requirements imposed upon them by Federal statutes and regulations.</P> <P>(c) <E T="03">Exceptions.</E> By their own terms, certain provisions of this part do not apply to the award and administration of subgrants:</P> <P>(1) Section 18.10;</P> <P>(2) Section 18.11;</P> <P>(3) The letter-of-credit procedures specified in Treasury Regulations at 31 CFR part 205, cited in § 18.21; and</P> <P>(4) Section 18.50.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Reports, Records, Retention, and Enforcement</HD> <SECTION> <SECTNO>§ 18.40</SECTNO> <SUBJECT>Monitoring and reporting program performance.</SUBJECT> <P>(a) <E T="03">Monitoring by grantees.</E> 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.</P> <P>(b) <E T="03">Nonconstruction performance reports.</E> 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.</P> <P>(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 <PRTPAGE P="145"/>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.</P> <P>(2) Performance reports will contain, for each grant, brief information on the following:</P> <P>(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.</P> <P>(ii) The reasons for slippage if established objectives were not met.</P> <P>(iii) Additional pertinent information including, when appropriate, analysis and explanation of cost overruns or high unit costs.</P> <P>(3) Grantees will not be required to submit more than the original and two copies of performance reports.</P> <P>(4) Grantees will adhere to the standards in this section in prescribing performance reporting requirements for subgrantees.</P> <P>(c) <E T="03">Construction performance reports.</E> 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.</P> <P>(1) Section 12(h) of the UMT Act of 1964, as amended, requires pre-award testing of new buses models.</P> <P>(2) [Reserved]</P> <P>(d) <E T="03">Significant developments.</E> 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:</P> <P>(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.</P> <P>(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.</P> <P>(e) Federal agencies may make site visits as warranted by program needs.</P> <P>(f) <E T="03">Waivers, extensions.</E> (1) Federal agencies may waive any performance report required by this part if not needed.</P> <P>(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.</P> <CITA>[53 FR 8086 and 8087, Mar. 11, 1988, as amended at 53 FR 8087, Mar. 11, 1988]</CITA> </SECTION> <SECTION> <SECTNO>§ 18.41</SECTNO> <SUBJECT>Financial reporting.</SUBJECT> <P>(a) <E T="03">General.</E> (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:</P> <P>(i) Submitting financial reports to Federal agencies, or</P> <P>(ii) Requesting advances or reimbursements when letters of credit are not used.</P> <P>(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.</P> <P>(3) Grantees shall follow all applicable standard and supplemental Federal agency instructions approved by OMB to the extent 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.<PRTPAGE P="146"/> </P> <P>(4) Grantees will not be required to submit more than the original and two copies of forms required under this part.</P> <P>(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.</P> <P>(6) Federal agencies may waive any report required by this section if not needed.</P> <P>(7) Federal agencies may extend the due date of any financial report upon receiving a justified request from a grantee.</P> <P>(b) <E T="03">Financial Status Report</E>—(1) <E T="03">Form.</E> 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 § 18.41(e)(2)(iii).</P> <P>(2) <E T="03">Accounting basis.</E> 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.</P> <P>(3) <E T="03">Frequency.</E> 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.</P> <P>(4) <E T="03">Due date.</E> When reports are required on a quarterly or semiannual basis, they will be due 30 days after the reporting period. When required on an annual basis, they will be due 90 days after the grant year. Final reports will be due 90 days after the expiration or termination of grant support.</P> <P>(c) <E T="03">Federal Cash Transactions Report</E>—(1) <E T="03">Form.</E> (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.</P> <P>(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.</P> <P>(2) <E T="03">Forecasts of Federal cash requirements.</E> Forecasts of Federal cash requirements may be required in the “Remarks” section of the report.</P> <P>(3) <E T="03">Cash in hands of subgrantees.</E> 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.</P> <P>(4) <E T="03">Frequency and due date.</E> 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.</P> <P>(d) <E T="03">Request for advance or reimbursement</E>—(1) <E T="03">Advance payments.</E> 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.)</P> <P>(2) <E T="03">Reimbursements.</E> 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.)<PRTPAGE P="147"/> </P> <P>(3) The frequency for submitting payment requests is treated in § 18.41(b)(3).</P> <P>(e) <E T="03">Outlay report and request for reimbursement for construction programs.</E> (1) <E T="03">Grants that support construction activities paid by reimbursement method.</E> (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 § 18.41(d), instead of this form.</P> <P>(ii) The frequency for submitting reimbursement requests is treated in § 18.41(b)(3).</P> <P>(2) <E T="03">Grants that support construction activities paid by letter of credit, electronic funds transfer or Treasury check advance.</E> (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 § 18.41(b) (3) and (4).</P> <P>(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 § 18.41(d).</P> <P>(iii) The Federal agency may substitute the Financial Status Report specified in § 18.41(b) for the Outlay Report and Request for Reimbursement for Construction Programs.</P> <P>(3) <E T="03">Accounting basis.</E> The accounting basis for the Outlay Report and Request for Reimbursement for Construction Programs shall be governed by § 18.41(b)(2).</P> <P>(f) Notwithstanding the provisions of paragraphs (a)(1) of this section, recipients of FHWA and National Highway Traffic Safety Administration (NHTSA) grants shall use FHWA, NHTSA or State financial reports.</P> <CITA>[53 FR 8086 and 8087, Mar. 11, 1988, as amended at 53 FR 8087, Mar. 11, 1988]</CITA> </SECTION> <SECTION> <SECTNO>§ 18.42</SECTNO> <SUBJECT>Retention and access requirements for records.</SUBJECT> <P>(a) <E T="03">Applicability.</E> (1) This section applies to all financial and programmatic records, supporting documents, statistical records, and other records of grantees or subgrantees which are:</P> <P>(i) Required to be maintained by the terms of this part, program regulations or the grant agreement, or</P> <P>(ii) Otherwise reasonably considered as pertinent to program regulations or the grant agreement.</P> <P>(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 § 18.36(i)(10).</P> <P>(b) <E T="03">Length of retention period.</E> (1) Except as otherwise provided, records must be retained for three years from the starting date specified in paragraph (c) of this section.</P> <P>(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.</P> <P>(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.</P> <P>(c) <E T="03">Starting date of retention period</E>—(1) <E T="03">General.</E> 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 <PRTPAGE P="148"/>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.</P> <P>(2) <E T="03">Real property and equipment records.</E> 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.</P> <P>(3) <E T="03">Records for income transactions after grant or subgrant support.</E> 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.</P> <P>(4) <E T="03">Indirect cost rate proposals, cost allocations plans, etc.</E> 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).</P> <P>(i) <E T="03">If submitted for negotiation.</E> 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.</P> <P>(ii) <E T="03">If not submitted for negotiation.</E> 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 theend of the fiscal year (or other accounting period) covered by the proposal, plan, or other computation.</P> <P>(d) <E T="03">Substitution of microfilm.</E> Copies made by microfilming, photocopying, or similar methods may be substituted for the original records.</P> <P>(e) <E T="03">Access to records—</E>(1) <E T="03">Records of grantees and subgrantees.</E> 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.</P> <P>(2) <E T="03">Expiration of right of access.</E> The right of access in this section must not be limited to the required retention period but shall last as long as the records are retained.</P> <P>(f) <E T="03">Restrictions on public access.</E> 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.</P> </SECTION> <SECTION> <SECTNO>§ 18.43</SECTNO> <SUBJECT>Enforcement.</SUBJECT> <P>(a) <E T="03">Remedies for noncompliance.</E> 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:</P> <P>(1) Temporarily withhold cash payments pending correction of the deficiency by the grantee or subgrantee or more severe enforcement action by the awarding agency,</P> <P>(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,</P> <P>(3) Wholly or partly suspend or terminate the current award for the grantee's or subgrantee's program,</P> <P>(4) Withhold further awards for the program, or</P> <P>(5) Take other remedies that may be legally available.</P> <P>(b) <E T="03">Hearings, appeals.</E> 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.<PRTPAGE P="149"/> </P> <P>(c) <E T="03">Effects of suspension and termination.</E> 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:</P> <P>(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,</P> <P>(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.</P> <P>(d) <E T="03">Relationship to debarment and suspension.</E> 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 § 18.35).</P> </SECTION> <SECTION> <SECTNO>§ 18.44</SECTNO> <SUBJECT>Termination for convenience.</SUBJECT> <P>Except as provided in § 18.43 awards may be terminated in whole or in part only as follows:</P> <P>(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</P> <P>(b) By the grantee or subgrantee upon written notification to the awarding agency, setting forth the reasons for such termination, the effective date, and in the case of partial termination, the portion to be terminated. However, if, in the case of a partial termination, the awarding agency determines that the remaining portion of the award will not accomplish the purposes for which the award was made, the awarding agency may terminate the award in its entirety under either § 18.43 or paragraph (a) of this section.</P> </SECTION> </SUBJGRP> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart D—After-The-Grant Requirements</HD> <SECTION> <SECTNO>§ 18.50</SECTNO> <SUBJECT>Closeout.</SUBJECT> <P>(a) <E T="03">General.</E> 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.</P> <P>(b) <E T="03">Reports.</E> 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:</P> <P>(1) <E T="03">Final performance or progress report.</E> </P> <P>(2) <E T="03">Financial Status Report (SF 269) or Outlay Report and Request for Reimbursement for Construction Programs (SF-271) (as applicable).</E> </P> <P>(3) <E T="03">Final request for payment (SF-270) (if applicable).</E> </P> <P>(4) <E T="03">Invention disclosure (if applicable).</E> </P> <P>(5) <E T="03">Federally-owned property report:</E> </P> <FP>In accordance with § 18.32(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.</FP> <P>(c) <E T="03">Cost adjustment.</E> 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.</P> <P>(d) <E T="03">Cash adjustments.</E> (1) The Federal agency will make prompt payment to the grantee for allowable reimbursable costs.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 18.51</SECTNO> <SUBJECT>Later disallowances and adjustments.</SUBJECT> <P>The closeout of a grant does not affect:</P> <P>(a) The Federal agency's right to disallow costs and recover funds on the basis of a later audit or other review;<PRTPAGE P="150"/> </P> <P>(b) The grantee's obligation to return any funds due as a result of later refunds, corrections, or other transactions;</P> <P>(c) Records retention as required in § 18.42;</P> <P>(d) Property management requirements in §§ 18.31 and 18.32; and</P> <P>(e) Audit requirements in § 18.26.</P> </SECTION> <SECTION> <SECTNO>§ 18.52</SECTNO> <SUBJECT>Collection of amounts due.</SUBJECT> <P>(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:</P> <P>(1) Making an adminstrative offset against other requests for reimbursements,</P> <P>(2) Withholding advance payments otherwise due to the grantee, or</P> <P>(3) Other action permitted by law.</P> <P>(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 Ch. II). The date from which interest is computed is not extended by litigation or the filing of any form of appeal.</P> </SECTION> </SUBPART> <SUBPART> <RESERVED>Subpart E—Entitlements [Reserved]</RESERVED> </SUBPART> </PART> <PART> <EAR>Pt. 19</EAR> <HD SOURCE="HED">PART 19—UNIFORM ADMINISTRATIVE REQUIREMENTS FOR GRANTS AND AGREEMENTS WITH INSTITUTIONS OF HIGHER EDUCATION, HOSPITALS, AND OTHER NON-PROFIT ORGANIZATIONS</HD> <CONTENTS> <SUBPART> <HD SOURCE="HED">Subpart A—General</HD> <SECHD>Sec.</SECHD> <SECTNO>19.1</SECTNO> <SUBJECT>Purpose.</SUBJECT> <SECTNO>19.2</SECTNO> <SUBJECT>Definitions.</SUBJECT> <SECTNO>19.3</SECTNO> <SUBJECT>Effect on other issuances.</SUBJECT> <SECTNO>19.4</SECTNO> <SUBJECT>Deviations.</SUBJECT> <SECTNO>19.5</SECTNO> <SUBJECT>Subawards.</SUBJECT> <SECTNO>19.6</SECTNO> <SUBJECT>Availability of material referenced in this part.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Pre-Award Requirements</HD> <SECTNO>19.10</SECTNO> <SUBJECT>Purpose.</SUBJECT> <SECTNO>19.11</SECTNO> <SUBJECT>Pre-award policies.</SUBJECT> <SECTNO>19.12</SECTNO> <SUBJECT>Forms for applying for Federal assistance.</SUBJECT> <SECTNO>19.13</SECTNO> <SUBJECT>Debarment and suspension.</SUBJECT> <SECTNO>19.14</SECTNO> <SUBJECT>Special award conditions.</SUBJECT> <SECTNO>19.15</SECTNO> <SUBJECT>Metric system of measurement.</SUBJECT> <SECTNO>19.16</SECTNO> <SUBJECT>Resource Conservation and Recovery Act.</SUBJECT> <SECTNO>19.17</SECTNO> <SUBJECT>Certifications and representations.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—Post-Award Requirements</HD> <SUBJGRP> <HD SOURCE="HED">Financial and Program Management</HD> <SECTNO>19.20</SECTNO> <SUBJECT>Purpose of financial and program management.</SUBJECT> <SECTNO>19.21</SECTNO> <SUBJECT>Standards for financial management systems.</SUBJECT> <SECTNO>19.22</SECTNO> <SUBJECT>Payment.</SUBJECT> <SECTNO>19.23</SECTNO> <SUBJECT>Cost sharing or matching.</SUBJECT> <SECTNO>19.24</SECTNO> <SUBJECT>Program income.</SUBJECT> <SECTNO>19.25</SECTNO> <SUBJECT>Revision of budget and program plans.</SUBJECT> <SECTNO>19.26</SECTNO> <SUBJECT>Non-Federal audits.</SUBJECT> <SECTNO>19.27</SECTNO> <SUBJECT>Allowable costs.</SUBJECT> <SECTNO>19.28</SECTNO> <SUBJECT>Period of availability of funds.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Property Standards</HD> <SECTNO>19.30</SECTNO> <SUBJECT>Purpose of property standards.</SUBJECT> <SECTNO>19.31</SECTNO> <SUBJECT>Insurance coverage.</SUBJECT> <SECTNO>19.32</SECTNO> <SUBJECT>Real property.</SUBJECT> <SECTNO>19.33</SECTNO> <SUBJECT>Federally-owned and exempt property.</SUBJECT> <SECTNO>19.34</SECTNO> <SUBJECT>Equipment.</SUBJECT> <SECTNO>19.35</SECTNO> <SUBJECT>Supplies and other expendable property.</SUBJECT> <SECTNO>19.36</SECTNO> <SUBJECT>Intangible property.</SUBJECT> <SECTNO>19.37</SECTNO> <SUBJECT>Property trust relationship.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Procurement Standards</HD> <SECTNO>19.40</SECTNO> <SUBJECT>Purpose of procurement standards.</SUBJECT> <SECTNO>19.41</SECTNO> <SUBJECT>Recipient responsibilities.</SUBJECT> <SECTNO>19.42</SECTNO> <SUBJECT>Codes of conduct.</SUBJECT> <SECTNO>19.43</SECTNO> <SUBJECT>Competition.</SUBJECT> <SECTNO>19.44</SECTNO> <SUBJECT>Procurement procedures.</SUBJECT> <SECTNO>19.45</SECTNO> <SUBJECT>Cost and price analysis.</SUBJECT> <SECTNO>19.46</SECTNO> <SUBJECT>Procurement records.</SUBJECT> <SECTNO>19.47</SECTNO> <SUBJECT>Contract administration.</SUBJECT> <SECTNO>19.48</SECTNO> <SUBJECT>Contract provisions.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Reports and Records</HD> <SECTNO>19.50</SECTNO> <SUBJECT>Purpose of reports and records.</SUBJECT> <SECTNO>19.51</SECTNO> <SUBJECT>Monitoring and reporting program performance.</SUBJECT> <SECTNO>19.52</SECTNO> <SUBJECT>Financial reporting.</SUBJECT> <SECTNO>19.53</SECTNO> <SUBJECT>Retention and access requirements for records.</SUBJECT> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Termination and Enforcement</HD> <SECTNO>19.60</SECTNO> <SUBJECT>Purpose of termination and enforcement.</SUBJECT> <SECTNO>19.61</SECTNO> <SUBJECT>Termination.</SUBJECT> <SECTNO>19.62</SECTNO> <SUBJECT>Enforcement.</SUBJECT> </SUBJGRP> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart D—After-the-Award Requirements</HD> <SECTNO>19.70</SECTNO> <SUBJECT>Purpose.</SUBJECT> <SECTNO>19.71</SECTNO> <SUBJECT>Closeout procedures.</SUBJECT> <SECTNO>19.72</SECTNO> <SUBJECT>Subsequent adjustments and continuing responsibilities.<PRTPAGE P="151"/> </SUBJECT> <SECTNO>19.73</SECTNO> <SUBJECT>Collection of amounts due.</SUBJECT> <APP>Appendix A to Part 19—Contract Provisions</APP> </SUBPART> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>49 U.S.C. 322(a).</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>59 FR 15639, Apr. 4, 1994, unless otherwise noted.</P> </SOURCE> <SUBPART> <HD SOURCE="HED">Subpart A—General</HD> <SECTION> <SECTNO>§ 19.1</SECTNO> <SUBJECT>Purpose.</SUBJECT> <P>This part establishes uniform administrative requirements for Federal grants and agreements awarded to institutions of higher education, hospitals, and other non-profit organizations. Federal awarding agencies shall not impose additional or inconsistent requirements, except as provided in §§ 19.4 and 19.14 or unless specifically required by Federal statute or executive order. Non-profit organizations that implement Federal programs for the States are also subject to State requirements.</P> </SECTION> <SECTION> <SECTNO>§ 19.2</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>(a) <E T="03">Accrued expenditures</E> means the charges incurred by the recipient during a given period requiring the provision of funds for:</P> <P>(1) Goods and other tangible property received;</P> <P>(2) Services performed by employees, contractors, subrecipients, and other payees; and,</P> <P>(3) Other amounts becoming owed under programs for which no current services or performance is required.</P> <P>(b) <E T="03">Accrued income</E> means the sum of: (1) Earnings during a given period from:</P> <P>(i) Services performed by the recipient, and</P> <P>(ii) Goods and other tangible property delivered to purchasers; and</P> <P>(2) Amounts becoming owed to the recipient for which no current services or performance is required by the recipient.</P> <P>(c) <E T="03">Acquisition cost of equipment</E> means the net invoice price of the equipment,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 recipient's regular accounting practices.</P> <P>(d) <E T="03">Advance</E> means a payment made by Treasury check or other appropriate payment mechanism to a recipient upon its request either before outlays are made by the recipient or through the use of predetermined payment schedules.</P> <P>(e) <E T="03">Award</E> means financial assistance that provides support or stimulation to accomplish a public purpose. Awards include grants and other agreements in the form of money or property in lieu of money, by the Federal Government to an eligible recipient. The term does not include: Technical assistance, which provides services instead of money; other assistance in the form of loans, loan guarantees, interest subsidies, or insurance; direct payments of any kind to individuals; and, contracts which are required to be entered into and administered under procurement laws and regulations.</P> <P>(f) <E T="03">Cash contributions</E> means the recipient's cash outlay, including the outlay of money contributed to the recipient by third parties.</P> <P>(g) <E T="03">Closeout</E> means the process by which a Federal awarding agency determines that all applicable administrative actions and all required work of the award have been completed by the recipient and Federal awarding agency.</P> <P>(h) <E T="03">Contract</E> means a procurement contract under an award or subaward, and a procurement subcontract under a recipient's or subrecipient's contract.</P> <P>(i) <E T="03">Cost sharing or matching</E> means that portion of project or program costs not borne by the Federal Government.</P> <P>(j) <E T="03">Date of completion</E> means the date on which all work under an award is completed or the date on the award document, or any supplement or amendment thereto, on which Federal sponsorship ends.</P> <P>(k) <E T="03">Disallowed costs</E> means those charges to an award that the Federal awarding agency determines to be unallowable, in accordance with the applicable Federal cost principles or other terms and conditions contained in the award.<PRTPAGE P="152"/> </P> <P>(l) <E T="03">Equipment</E> means tangible nonexpendable personal property including exempt property charged directly to the award having a useful life of more than one year and an acquisition cost of $5,000 or more per unit. However, consistent with recipient policy, lower limits may be established.</P> <P>(m) <E T="03">Excess property</E> means property under the control of any Federal awarding agency that, as determined by the head thereof, is no longer required for its needs or the discharge of its responsibilities.</P> <P>(n) <E T="03">Exempt property</E> means tangible personal property acquired in whole or in part with Federal funds, where the Federal awarding agency has statutory authority to vest title in the recipient without further obligation to the Federal Government. An example of exempt property authority is contained in the Federal Grant and Cooperative Agreement Act (31 U.S.C. 6306), for property acquired under an award to conduct basic or applied research by a non-profit institution of higher education or non-profit organization whose principal purpose is conducting scientific research.</P> <P>(o) <E T="03">Federal awarding agency</E> means the Federal agency that provides an award to the recipient. Except for the specific review requirements for deviations in § 19.4, for Department of Transportation (DOT) awards, it means the DOT operating administration or departmental office that made the award.</P> <P>(p) <E T="03">Federal funds authorized</E> means the total amount of Federal funds obligated by the Federal Government for use by the recipient. This amount may include any authorized carryover of unobligated funds from prior funding periods when permitted by agency regulations or agency implementing instructions.</P> <P>(q) <E T="03">Federal share</E> of real property, equipment, or supplies means that percentage of the property's acquisition costs and any improvement expenditures paid with Federal funds.</P> <P>(r) <E T="03">Funding period</E> means the period of time when Federal funding is available for obligation by the recipient.</P> <P>(s) <E T="03">Intangible property and debt instruments</E> means, but is not limited to, trademarks, copyrights, patents and patent applications and such property as loans, notes and other debt instruments, lease agreements, stock and other instruments of property ownership, whether considered tangible or intangible.</P> <P>(t) <E T="03">Obligations</E> means the amounts of orders placed, contracts and grants awarded, services received and similar transactions during a given period that require payment by the recipient during the same or a future period.</P> <P>(u) <E T="03">Outlays or expenditures</E> means 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 cash disbursements for direct charges for goods and services, the amount of indirect expense charged, the value of third party in-kind contributions applied and the amount of cash advances and payments made to subrecipients. For reports prepared on an accrual basis, outlays are the sum of cash disbursements for direct charges for goods and services, the amount of indirect expense incurred, the value of in-kind contributions applied, and the net increase (or decrease) in the amounts owed by the recipient for goods and other property received, for services performed by employees, contractors, subrecipients and other payees and other amounts becoming owed under programs for which no current services or performance are required.</P> <P>(v) <E T="03">Personal property</E> means property of any kind except real property. It may be tangible, having physical existence, or intangible, having no physical existence, such as copyrights, patents, or securities.</P> <P>(w) <E T="03">Prior approval</E> means written approval by an authorized official evidencing prior consent.</P> <P>(x) <E T="03">Program income</E> means gross income earned by the recipient that is directly generated by a supported activity or earned as a result of the award (see exclusions in §§ 19.24 (e) and (h)). Program income includes, but is not limited to, income from fees for services performed, the use or rental of real or personal property acquired under federally-funded projects, the sale of commodities or items fabricated under an award, license fees and royalties on patents and copyrights, and interest on <PRTPAGE P="153"/>loans made with award funds. Interest earned on advances of Federal funds is not program income. Except as otherwise provided in Federal awarding agency regulations or the terms and conditions of the award, program income does not include the receipt of principal on loans, rebates, credits, discounts, etc., or interest earned on any of them.</P> <P>(y) <E T="03">Project costs</E> means all allowable costs, as set forth in the applicable Federal cost principles, incurred by a recipient and the value of the contributions made by third parties in accomplishing the objectives of the award during the project period.</P> <P>(z) <E T="03">Project period</E> means the period established in the award document during which Federal sponsorship begins and ends.</P> <P>(aa) <E T="03">Property</E> means, unless otherwise stated, real property, equipment, intangible property and debt instruments.</P> <P>(bb) <E T="03">Real property</E> means land, including land improvements, structures and appurtenances thereto, but excludes movable machinery and equipment.</P> <P>(cc) <E T="03">Recipient</E> means an organization receiving financial assistance directly from Federal awarding agencies to carry out a project or program. The term includes public and private institutions of higher education, public and private hospitals, and other quasi-public and private non-profit organizations such as, but not limited to, community action agencies, research institutes, educational associations, and health centers. The term may include commercial organizations, foreign or international organizations (such as agencies of the United Nations) which are recipients, subrecipients, or contractors or subcontractors of recipients or subrecipients at the discretion of the Federal awarding agency. The term does not include government-owned contractor-operated facilities or research centers providing continued support for mission-oriented, large-scale programs that are government-owned or controlled, or are designated as federally-funded research and development centers.</P> <P>(dd) <E T="03">Research and development</E> means all research activities, both basic and applied, and all development activities that are supported at universities, colleges, and other non-profit institutions. “Research” is defined as a systematic study directed toward fuller scientific knowledge or understanding of the subject studied. “Development” is the systematic use of knowledge and understanding gained from research directed toward the production of useful materials, devices, systems, or methods, including design and development of prototypes and processes. The term research also includes activities involving the training of individuals in research techniques where such activities utilize the same facilities as other research and development activities and where such activities are not included in the instruction function.</P> <P>(ee) <E T="03">Small awards</E> means a grant or cooperative agreement not exceeding the small purchase threshold fixed at 41 U.S.C. 403(11) (currently $25,000).</P> <P>(ff) <E T="03">Subaward</E> means an award of financial assistance in the form of money, or property in lieu of money, made under an award by a recipient to an eligible subrecipient or by a subrecipient to a lower tier subrecipient. The term includes financial assistance when provided by any legal agreement, even if the agreement is called a contract, but does not include procurement of goods and services nor does it include any form of assistance which is excluded from the definition of “award” in paragraph (e) of this section.</P> <P>(gg) <E T="03">Subrecipient</E> means the legal entity to which a subaward is made and which is accountable to the recipient for the use of the funds provided. The term may include foreign or international organizations (such as agencies of the United Nations) at the discretion of the Federal awarding agency.</P> <P>(hh) <E T="03">Supplies</E> means all personal property excluding equipment, intangible property, and debt instruments as defined in this section, and inventions of a contractor conceived or first actually reduced to practice in the performance of work under a funding agreement (“subject inventions”), as defined in 37 CFR part 401, “Rights to Inventions Made by Nonprofit Organizations and <PRTPAGE P="154"/>Small Business Firms Under Government Grants, Contracts, and Cooperative Agreements.”</P> <P>(ii) <E T="03">Suspension</E> means an action by a Federal awarding agency that temporarily withdraws Federal sponsorship under an award, pending corrective action by the recipient or pending a decision to terminate the award by the Federal awarding agency. Suspension of an award is a separate action from suspension under Federal agency regulations implementing E.O.s 12549 and 12689, “Debarment and Suspension.”</P> <P>(jj) <E T="03">Termination</E> means the cancellation of Federal sponsorship, in whole or in part, under an agreement at any time prior to the date of completion.</P> <P>(kk) <E T="03">Third party in-kind contributions</E> means the value of non-cash contributions provided by non-Federal third parties. Third party in-kind contributions may be in the form of real property, equipment, supplies and other expendable property, and the value of goods and services directly benefiting and specifically identifiable to the project or program.</P> <P>(ll) <E T="03">Unliquidated obligations,</E> for financial reports prepared on a cash basis, means the amount of obligations incurred by the recipient that have not been paid. For reports prepared on an accrued expenditure basis, they represent the amount of obligations incurred by the recipient for which an outlay has not been recorded.</P> <P>(mm) <E T="03">Unobligated balance</E> means the portion of the funds authorized by the Federal awarding agency that has not been obligated by the recipient and is determined by deducting the cumulative obligations from the cumulative funds authorized.</P> <P>(nn) <E T="03">Unrecovered indirect cost</E> means the difference between the amount awarded and the amount which could have been awarded under the recipient's approved negotiated indirect cost rate.</P> <P>(oo) <E T="03">Working capital advance</E> means a procedure whereby funds are advanced to the recipient to cover its estimated disbursement needs for a given initial period.</P> </SECTION> <SECTION> <SECTNO>§ 19.3</SECTNO> <SUBJECT>Effect on other issuances.</SUBJECT> <P>For awards subject to this part, all administrative requirements of codified program regulations, program manuals, handbooks and other non-regulatory materials which are inconsistent with the requirements of this part are superseded, except to the extent they are required by statute, or authorized in accordance with the deviations provision in § 19.4.</P> </SECTION> <SECTION> <SECTNO>§ 19.4</SECTNO> <SUBJECT>Deviations.</SUBJECT> <P>The Office of Management and Budget (OMB) may grant exceptions for classes of grants or recipients subject to the requirements of this part when exceptions are not prohibited by statute. However, in the interest of maximum uniformity, exceptions from the requirements of this part shall be permitted only in unusual circumstances. Federal awarding agencies may apply more restrictive requirements to a class of recipients when approved by OMB. All requests for class deviations shall be processed through the Assistant Secretary for Administration. Federal awarding agencies may apply less restrictive requirements when awarding small awards, except for those requirements which are statutory, subject to the concurrence of the Assistant Secretary for Administration. Exceptions on a case-by-case basis may also be made by Federal awarding agencies, with the concurrence of the Assistant Secretary for Administration to ensure conformance with Department of Transportation grant administration policies.</P> </SECTION> <SECTION> <SECTNO>§ 19.5</SECTNO> <SUBJECT>Subawards.</SUBJECT> <P>Unless sections of this part specifically exclude subrecipients from coverage, the provisions of this part shall be applied to subrecipients performing work under awards if such subrecipients are institutions of higher education, hospitals or other non-profit organizations. State and local government subrecipients are subject to the provisions of 49 CFR part 18, “Uniform Administrative Requirements for Grants and Cooperative Agreements to State and Local Governments.”</P> </SECTION> <SECTION> <SECTNO>§ 19.6</SECTNO> <SUBJECT>Availability of material referenced in this part.</SUBJECT> <P>(a) Copies of Federal Transit Administration (FTA) documents identified in this part may be obtained by calling <PRTPAGE P="155"/>the FTA Administrative Services Division at (202) 366-4865.</P> <P>(b) Copies of Federal Aviation Administration (FAA) documents identified in this part may be obtained by calling the FAA Program Guidance Branch at (202) 267-3831.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Pre-Award Requirements</HD> <SECTION> <SECTNO>§ 19.10</SECTNO> <SUBJECT>Purpose.</SUBJECT> <P>Sections 19.11 through 19.17 prescribes forms and instructions and other pre-award matters to be used in applying for Federal awards.</P> </SECTION> <SECTION> <SECTNO>§ 19.11</SECTNO> <SUBJECT>Pre-award policies.</SUBJECT> <P>(a) <E T="03">Use of grants and cooperative agreements, and contracts.</E> In each instance, the Federal awarding agency shall decide on the appropriate award instrument (i.e., grant, cooperative agreement, or contract). The Federal Grant and Cooperative Agreement Act (31 U.S.C. 6301-08) governs the use of grants, cooperative agreements and contracts. A grant or cooperative agreement shall be used only when the principal purpose of a transaction is to accomplish a public purpose of support or stimulation authorized by Federal statute. The statutory criterion for choosing between grants and cooperative agreements is that for the latter, “substantial involvement is expected between the executive agency and the State, local government, or other recipient when carrying out the activity contemplated in the agreement.” Contracts shall be used when the principal purpose is acquisition of property or services for the direct benefit or use of the Federal Government.</P> <P>(b) <E T="03">Public notice and priority setting.</E> Federal awarding agencies shall notify the public of its intended funding priorities for discretionary grant programs, unless funding priorities are established by Federal statute.</P> </SECTION> <SECTION> <SECTNO>§ 19.12</SECTNO> <SUBJECT>Forms for applying for Federal assistance.</SUBJECT> <P>(a) Federal awarding agencies shall comply with the applicable report clearance requirements of 5 CFR part 1320, “Controlling Paperwork Burdens on the Public,” with regard to all forms used by the Federal awarding agency in place of or as a supplement to the Standard Form 424 (SF-424) series.</P> <P>(b) Applicants shall use the SF-424 series or those forms and instructions prescribed by the Federal awarding agency.</P> <P>(c) For Federal programs covered by E.O. 12372, “Intergovernmental Review of Federal Programs,” as implemented at 49 CFR part 17, Intergovernmental review of Department of Transportation programs and activities, the applicant shall complete the appropriate sections of the SF-424 (Application for Federal Assistance) indicating whether the application was subject to review by the State Single Point of Contact (SPOC). The name and address of the SPOC for a particular State can be obtained from the Federal awarding agency or the Catalog of Federal Domestic Assistance. The SPOC shall advise the applicant whether the program for which application is made has been selected by that State for review.</P> <P>(d) Federal awarding agencies that do not use the SF-424 form should indicate whether the application is subject to review by the State under E.O. 12372.</P> </SECTION> <SECTION> <SECTNO>§ 19.13</SECTNO> <SUBJECT>Debarment and suspension.</SUBJECT> <P>Federal awarding agencies and recipients shall comply with the nonprocurement debarment and suspension rule, 49 CFR part 29, “Governmentwide Debarment and Suspension (Nonprocurement) and Governmentwide Requirements for Drug-Free Workplace (Grants),” implementing E.O.s 12549 and 12689, “Debarment and Suspension.” This rule restricts subawards and contracts with certain parties that are debarred, suspended or otherwise excluded from or ineligible for participation in Federal assistance programs or activities.</P> </SECTION> <SECTION> <SECTNO>§ 19.14</SECTNO> <SUBJECT>Special award conditions.</SUBJECT> <P>(a) Federal awarding agencies may impose additional requirements as needed, if an applicant or recipient:</P> <P>(1) Has a history of poor performance,</P> <P>(2) Is not financially stable,</P> <P>(3) Has a management system that does not meet the standards prescribed in this part,</P> <P>(4) Has not conformed to the terms and conditions of a previous award, or<PRTPAGE P="156"/> </P> <P>(5) Is not otherwise responsible.</P> <P>(b) Additional requirements may only be imposed provided that such applicant or recipient is notified in writing as to:</P> <P>(1) The nature of the additional requirements,</P> <P>(2) The reason why the additional requirements are being imposed,</P> <P>(3) The nature of the corrective action needed,</P> <P>(4) The time allowed for completing the corrective actions, and</P> <P>(5) The method for requesting reconsideration of the additional requirements imposed.</P> <P>(c) A copy of such notices shall be sent to the Assistant Secretary for Administration. Any special conditions shall be promptly removed once the conditions that prompted them have been corrected.</P> </SECTION> <SECTION> <SECTNO>§ 19.15</SECTNO> <SUBJECT>Metric system of measurement.</SUBJECT> <P>The Metric Conversion Act, as amended by the Omnibus Trade and Competitiveness Act (15 U.S.C. 205), declares that the metric system is the preferred measurement system for U.S. trade and commerce. The Act requires each Federal agency to establish a date or dates in consultation with the Secretary of Commerce, when the metric system of measurement will be used in the agency's procurements, grants, and other business-related activities. Metric implementation may take longer where the use of the system is initially impractical or likely to cause significant inefficiencies in the accomplishment of federally-funded activities. Federal awarding agencies shall follow the provisions of E.O. 12770, “Metric Usage in Federal Government Programs.”</P> </SECTION> <SECTION> <SECTNO>§ 19.16</SECTNO> <SUBJECT>Resource Conservation and Recovery Act.</SUBJECT> <P>Under the Act, any State agency or agency of a political subdivision of a State which is using appropriated Federal funds must comply with section 6002. Section 6002 requires that preference be given in procurement programs to the purchase of specific products containing recycled materials identified in guidelines developed by the Environmental Protection Agency (EPA) (40 CFR parts 247-254). Accordingly, State and local institutions of higher education, hospitals, and non-profit organizations that receive direct Federal awards or other Federal funds shall give preference in their procurement programs funded with Federal funds to the purchase of recycled products pursuant to the EPA guidelines.</P> </SECTION> <SECTION> <SECTNO>§ 19.17</SECTNO> <SUBJECT>Certifications and representations.</SUBJECT> <P>Unless prohibited by statute or codified regulation, each Federal awarding agency is authorized and encouraged to allow recipients to submit certifications and representations required by statute, executive order, or regulation on an annual basis, if the recipients have ongoing and continuing relationships with the agency. Annual certifications and representations shall be signed by responsible officials with the authority to ensure recipients’ compliance with the pertinent requirements.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—Post-Award Requirements</HD> <HD SOURCE="HD1">Financial and Program Management</HD> <SECTION> <SECTNO>§ 19.20</SECTNO> <SUBJECT>Purpose of financial and program management.</SUBJECT> <P>Sections 19.21 through 19.28 prescribe standards for financial management systems, methods for making payments and rules for: satisfying cost sharing and matching requirements, accounting for program income, budget revision approvals, making audits, determining allowability of cost, and establishing fund availability.</P> </SECTION> <SECTION> <SECTNO>§ 19.21</SECTNO> <SUBJECT>Standards for financial management systems.</SUBJECT> <P>(a) Federal awarding agencies shall require recipients to relate financial data to performance data and develop unit cost information whenever practical.</P> <P>(b) Recipients’ financial management systems shall provide for the following.</P> <P>(1) Accurate, current and complete disclosure of the financial results of each federally-sponsored project or program in accordance with the reporting requirements set forth in § 19.52. If a Federal awarding agency requires reporting on an accrual basis from a recipient that maintains its records on <PRTPAGE P="157"/>other than an accrual basis, the recipient shall not be required to establish an accrual accounting system. These recipients may develop such accrual data for its reports on the basis of an analysis of the documentation on hand.</P> <P>(2) Records that identify adequately the source and application of funds for federally-sponsored activities. These records shall contain information pertaining to Federal awards, authorizations, obligations, unobligated balances, assets, outlays, income and interest.</P> <P>(3) Effective control over and accountability for all funds, property and other assets. Recipients shall adequately safeguard all such assets and assure they are used solely for authorized purposes.</P> <P>(4) Comparison of outlays with budget amounts for each award. Whenever appropriate, financial information should be related to performance and unit cost data.</P> <P>(5) Written procedures to minimize the time elapsing between the transfer of funds to the recipient from the U.S. Treasury and the issuance or redemption of checks, warrants or payments by other means for program purposes by the recipient. To the extent that the provisions of the Cash Management Improvement Act (CMIA) (Pub. L. 101-453) govern, payment methods of State agencies, instrumentalities, and fiscal agents shall be consistent with CMIA Treasury-State Agreements or the CMIA default procedures codified at 31 CFR part 205, “Withdrawal of Cash from the Treasury for Advances under Federal Grant and Other Programs.”</P> <P>(6) Written procedures for determining the reasonableness, allocability and allowability of costs in accordance with the provisions of the applicable Federal cost principles and the terms and conditions of the award.</P> <P>(7) Accounting records including cost accounting records that are supported by source documentation.</P> <P>(c) Where the Federal Government guarantees or insures the repayment of money borrowed by the recipient, the Federal awarding agency, at its discretion, may require adequate bonding and insurance if the bonding and insurance requirements of the recipient are not deemed adequate to protect the interest of the Federal Government.</P> <P>(d) The Federal awarding agency may require adequate fidelity bond coverage where the recipient lacks sufficient coverage to protect the Federal Government's interest.</P> <P>(e) Where bonds are required in the situations described above, the bonds shall be obtained from companies holding certificates of authority as acceptable sureties, as prescribed in 31 CFR part 223, “Surety Companies Doing Business with the United States.”</P> </SECTION> <SECTION> <SECTNO>§ 19.22</SECTNO> <SUBJECT>Payment.</SUBJECT> <P>(a) Payment methods shall minimize the time elapsing between the transfer of funds from the United States Treasury and the issuance or redemption of checks, warrants, or payment by other means by the recipients. Payment methods of State agencies or instrumentalities shall be consistent with Treasury-State CMIA agreements or default procedures codified at 31 CFR part 205.</P> <P>(b)(1) Recipients are to be paid in advance, provided they maintain or demonstrate the willingness to maintain:</P> <P>(i) Written procedures that minimize the time elapsing between the transfer of funds and disbursement by the recipient, and</P> <P>(ii) Financial management systems that meet the standards for fund control and accountability as established in section § 19.21.</P> <P>(2) Cash advances to a recipient organization shall be limited to the minimum amounts needed and be timed to be in accordance with the actual, immediate cash requirements of the recipient organization in carrying out the purpose of the approved program or project. The timing and amount of cash advances shall be as close as is administratively feasible to the actual disbursements by the recipient organization for direct program or project costs and the proportionate share of any allowable indirect costs.</P> <P>(c) Whenever possible, advances shall be consolidated to cover anticipated cash needs for all awards made by the Federal awarding agency to the recipient.<PRTPAGE P="158"/> </P> <P>(1) Advance payment mechanisms include, but are not limited to, Treasury check and electronic funds transfer.</P> <P>(2) Advance payment mechanisms are subject to 31 CFR part 205.</P> <P>(3) Recipients shall be authorized to submit requests for advances and reimbursements at least monthly when electronic fund transfers are not used.</P> <P>(d) Requests for Treasury check advance payment shall be submitted on SF-270, “Request for Advance or Reimbursement,” or other forms as may be authorized by OMB. This form is not to be used when Treasury check advance payments are made to the recipient automatically through the use of a predetermined payment schedule or if precluded by special Federal awarding agency instructions for electronic funds transfer.</P> <P>(e) Reimbursement is the preferred method when the requirements in paragraph (b) cannot be met. Federal awarding agencies may also use this method on any construction agreement, or if the major portion of the construction project is accomplished through private market financing or Federal loans, and the Federal assistance constitutes a minor portion of the project.</P> <P>(1) When the reimbursement method is used, the Federal awarding agency shall make payment within 30 days after receipt of the billing, unless the billing is improper.</P> <P>(2) Recipients shall be authorized to submit request for reimbursement at least monthly when electronic funds transfers are not used.</P> <P>(f) If a recipient cannot meet the criteria for advance payments and the Federal awarding agency has determined that reimbursement is not feasible because the recipient lacks sufficient working capital, the Federal awarding agency may provide cash on a working capital advance basis. Under this procedure, the Federal awarding agency shall advance cash to the recipient to cover its estimated disbursement needs for an initial period generally geared to the awardee's disbursing cycle. Thereafter, the Federal awarding agency shall reimburse the recipient for its actual cash disbursements. The working capital advance method of payment shall not be used for recipients unwilling or unable to provide timely advances to their subrecipient to meet the subrecipient's actual cash disbursements.</P> <P>(g) To the extent available, recipients shall disburse funds available from repayments to and interest earned on a revolving fund, program income, rebates, refunds, contract settlements, audit recoveries and interest earned on such funds before requesting additional cash payments.</P> <P>(h) Unless otherwise required by statute, Federal awarding agencies shall not withhold payments for proper charges made by recipients at any time during the project period unless the conditions in paragraphs (h)(1) or (2) of this section apply.</P> <P>(1) A recipient has failed to comply with the project objectives, the terms and conditions of the award, or Federal reporting requirements.</P> <P>(2) The recipient or subrecipient is delinquent in a debt to the United States as defined in OMB Circular A-129, “Managing Federal Credit Programs.” Under such conditions, the Federal awarding agency may, upon reasonable notice, inform the recipient that payments shall not be made for obligations incurred after a specified date until the conditions are corrected or the indebtedness to the Federal Government is liquidated.</P> <P>(i) Standards governing the use of banks and other institutions as depositories of funds advanced under awards are as follows.</P> <P>(1) Except for situations described in paragraph (i)(2) of this section, Federal awarding agencies shall not require separate depository accounts for funds provided to a recipient or establish any eligibility requirements for depositories for funds provided to a recipient. However, recipients must be able to account for the receipt, obligation and expenditure of funds.</P> <P>(2) Advances of Federal funds shall be deposited and maintained in insured accounts whenever possible.</P> <P>(j) Consistent with the national goal of expanding the opportunities for women-owned and minority-owned business enterprises, recipients shall be encouraged to use women-owned and minority-owned banks (a bank which is <PRTPAGE P="159"/>owned at least 50 percent by women or minority group members).</P> <P>(k) Recipients shall maintain advances of Federal funds in interest bearing accounts, unless the conditions in paragraphs (k)(1), (2) or (3) of this section apply.</P> <P>(1) The recipient receives less than $120,000 in Federal awards per year.</P> <P>(2) The best reasonably available interest bearing account would not be expected to earn interest in excess of $250 per year on Federal cash balances.</P> <P>(3) The depository would require an average or minimum balance so high that it would not be feasible within the expected Federal and non-Federal cash resources.</P> <P>(l) For those entities where CMIA and its implementing regulations do not apply, interest earned on Federal advances deposited in interest bearing accounts shall be remitted annually to Department of Health and Human Services, Payment Management System, P.O. Box 6021, Rockville, MD 20852. Interest amounts up to $250 per year may be retained by the recipient for administrative expense. In keeping with Electric Funds Transfer rules, (31 CFR part 206), interest should be remitted to the HHS Payment Management System through an electric medium such as the FEDWIRE Deposit system. Recipients which do not have this capability should use a check. State universities and hospitals shall comply with CMIA, as it pertains to interest. If an entity subject to CMIA uses its own funds to pay pre-award costs for discretionary awards without prior written approval from the Federal awarding agency, it waives its right to recover the interest under CMIA.</P> <P>(m) Except as noted elsewhere in this part, only the following forms shall be authorized for the recipients in requesting advances and reimbursements. Federal agencies shall not require more than an original and two copies of these forms.</P> <P>(1) SF-270, Request for Advance or Reimbursement. Each Federal awarding agency shall adopt the SF-270 as a standard form for all nonconstruction programs when electronic funds transfer or predetermined advance methods are not used. Federal awarding agencies, however, have the option of using this form for construction programs in lieu of the SF-271, “Outlay Report and Request for Reimbursement for Construction Programs.”</P> <P>(2) SF-271, Outlay Report and Request for Reimbursement for Construction Programs. Each Federal awarding agency shall adopt the SF-271 as the standard form to be used for requesting reimbursement for construction programs. However, a Federal awarding agency may substitute the SF-270 when the Federal awarding agency determines that it provides adequate information to meet Federal needs.</P> </SECTION> <SECTION> <SECTNO>§ 19.23</SECTNO> <SUBJECT>Cost sharing or matching.</SUBJECT> <P>(a) All contributions, including cash and third party in-kind, shall be accepted as part of the recipient's cost sharing or matching when such contributions meet all of the following criteria.</P> <P>(1) Are verifiable from the recipient's records.</P> <P>(2) Are not included as contributions for any other federally-assisted project or program.</P> <P>(3) Are necessary and reasonable for proper and efficient accomplishment of project or program objectives.</P> <P>(4) Are allowable under the applicable cost principles.</P> <P>(5) Are not paid by the Federal Government under another award, except where authorized by Federal statute to be used for cost sharing or matching.</P> <P>(6) Are provided for in the approved budget when required by the Federal awarding agency.</P> <P>(7) Conform to other provisions of this part, as applicable.</P> <P>(b) Unrecovered indirect costs may be included as part of cost sharing or matching only with the prior approval of the Federal awarding agency.</P> <P>(c) Values for recipient contributions of services and property shall be established in accordance with the applicable cost principles. If a Federal awarding agency authorizes recipients to donate buildings or land for construction/facilities acquisition projects or long-term use, the value of the donated property for cost sharing or matching shall be the lesser of (1) or (2).</P> <P>(1) The certified value of the remaining life of the property recorded in the <PRTPAGE P="160"/>recipient's accounting records at the time of donation.</P> <P>(2) The current fair market value. However, when there is sufficient justification, the Federal awarding agency may approve the use of the current fair market value of the donated property, even if it exceeds the certified value at the time of donation to the project.</P> <P>(d) Volunteer services furnished by professional and technical personnel, consultants, and other skilled and unskilled labor may be counted as cost sharing or matching if the service is an integral and necessary part of an approved project or program. Rates for volunteer services shall be consistent with those paid for similar work in the recipient's organization. In those instances in which the required skills are not found in the recipient organization, rates shall be consistent with those paid for similar work in the labor market in which the recipient competes for the kind of services involved. In either case, paid fringe benefits that are reasonable, allowable, and allocable may be included in the valuation.</P> <P>(e) When an employer other than the recipient furnishes the services of an employee, these services shall be valued at the employee's regular rate of pay (plus an amount of fringe benefits that are reasonable, allowable, and allocable, but exclusive of overhead costs), provided these services are in the same skill for which the employee is normally paid.</P> <P>(f) Donated supplies may include such items as expendable equipment, office supplies, laboratory supplies or workshop and classroom supplies. Value assessed to donated supplies included in the cost sharing or matching share shall be reasonable and shall not exceed the fair market value of the property at the time of the donation.</P> <P>(g) The method used for determining cost sharing or matching for donated equipment, buildings and land for which title passes to the recipient may differ according to the purpose of the award, if the conditions in paragraph (g)(1) or (2) of this section apply.</P> <P>(1) If the purpose of the award is to assist the recipient in the acquisition of equipment, buildings or land, the total value of the donated property may be claimed as cost sharing or matching.</P> <P>(2) If the purpose of the award is to support activities that require the use of equipment, buildings or land, normally only depreciation or use charges for equipment and buildings may be made. However, the full value of equipment or other capital assets and fair rental charges for land may be allowed, provided that the Federal awarding agency has approved the charges.</P> <P>(h) The value of donated property shall be determined in accordance with the usual accounting policies of the recipient, with the following qualifications.</P> <P>(1) The value of donated land and buildings shall not exceed its fair market value at the time of donation to the recipient as established by an independent appraiser (e.g., certified real property appraiser or General Services Administration representative) and certified by a responsible official of the recipient.</P> <P>(2) The value of donated equipment shall not exceed the fair market value of equipment of the same age and condition at the time of donation.</P> <P>(3) The value of donated space shall not exceed the fair rental value of comparable space as established by an independent appraisal of comparable space and facilities in a privately-owned building in the same locality.</P> <P>(4) The value of loaned equipment shall not exceed its fair rental value.</P> <P>(5) The following requirements pertain to the recipient's supporting records for in-kind contributions from third parties.</P> <P>(i) Volunteer services shall be documented and, to the extent feasible, supported by the same methods used by the recipient for its own employees.</P> <P>(ii) The basis for determining the valuation for personal service, material, equipment, buildings and land shall be documented.</P> <P>(iii) Section 18(e) of the Federal Transit Act, as amended, (49 U.S.C. app. 1614(e)) provides that the Federal share for operating assistance shall not exceed 50 percent of the net cost. At least 50 percent of the remainder (the local share) must be derived from sources other than Federal funds or revenues of the system; and up to half <PRTPAGE P="161"/>of the local share may be derived from other Federal funds. For purposes of determining local share for section 18 operating assistance, the term “Federal funds or revenues” does not include funds received pursuant to a service agreement with a State or local service agency or a private social service organization. Nonregulatory guidance is contained in FTA Circular 9040.1B, section 18 Program Guidance and Grant Application Instructions, Chapter III, section 7.</P> </SECTION> <SECTION> <SECTNO>§ 19.24</SECTNO> <SUBJECT>Program income.</SUBJECT> <P>(a) Federal awarding agencies shall apply the standards set forth in this section in requiring recipient organizations to account for program income related to projects financed in whole or in part with Federal funds.</P> <P>(b) Except as provided in paragraph (h) of this section, program income earned during the project period shall be retained by the recipient and, in accordance with Federal awarding agency regulations or the terms and conditions of the award, shall be used in one or more of the ways listed in the following.</P> <P>(1) Added to funds committed to the project by the Federal awarding agency and recipient and used to further eligible project or program objectives.</P> <P>(2) Used to finance the non-Federal share of the project or program.</P> <P>(3) Deducted from the total project or program allowable cost in determining the net allowable costs on which the Federal share of costs is based.</P> <P>(c) When an agency authorizes the disposition of program income as described in paragraph (b)(1) or (b)(2) of this section, program income in excess of any limits stipulated shall be used in accordance with paragraph (b)(3) of this section.</P> <P>(d) In the event that the Federal awarding agency does not specify in its regulations or the terms and conditions of the award how program income is to be used, paragraph (b)(3) of this section shall apply automatically to all projects or programs except research. For awards that support research, paragraph (b)(1) of this section shall apply automatically unless the awarding agency indicates in the terms and conditions another alternative on the award or the recipient is subject to special award conditions, as indicated in § 19.14.</P> <P>(e) Unless Federal awarding agency regulations or the terms and conditions of the award provide otherwise, recipients shall have no obligation to the Federal Government regarding program income earned after the end of the project period.</P> <P>(f) If authorized by Federal awarding agency regulations or the terms and conditions of the award, costs incident to the generation of program income may be deducted from gross income to determine program income, provided these costs have not been charged to the award.</P> <P>(g) Proceeds from the sale of property shall be handled in accordance with the requirements of the Property Standards (See §§ 19.30 through 19.37).</P> <P>(h) Unless Federal awarding agency regulations or the terms and condition of the award provide otherwise, recipients shall have no obligation to the Federal Government with respect to program income earned from license fees and royalties for copyrighted material, patents, patent applications, trademarks, and inventions produced under an award. However, Patent and Trademark Amendments (35 U.S.C. 18) apply to inventions made under an experimental, developmental, or research award.</P> <P>(i) Section 4(a) of the Federal Transit Act, as amended, (49 U.S.C. app. 1603(a)) allows FTA recipients to retain program income for allowable capital or operating expenses, but program income may not be used to refund or reduce the local share of a grant. The section 16 and 18 programs, however, operate differently. Under the special authority to set appropriate terms and conditions for the section 16(b)(2) program, program income in the form of contract service revenue may be used as local share without a proportionate reduction in the Federal share. Similarly, section 18 allows the use of program income in the form of contract service revenue as local share without requiring a proportionate reduction in the Federal share. Grantees must account for program income in their accounting systems, which are subject to audit. The accounting system must be <PRTPAGE P="162"/>capable of identifying program income and the purpose for which it was used. Nonregulatory guidance is contained in FTA notice N 5.5005.1, Guidance on Program Income and Sales Proceeds.</P> </SECTION> <SECTION> <SECTNO>§ 19.25</SECTNO> <SUBJECT>Revision of budget and program plans.</SUBJECT> <P>(a) The budget plan is the financial expression of the project or program as approved during the award process. It may include either the Federal and non-Federal share, or only the Federal share, depending upon Federal awarding agency requirements. It shall be related to performance for program evaluation purposes whenever appropriate.</P> <P>(b) Recipients are required to report deviations from budget and program plans, and request prior approvals for budget and program plan revisions, in accordance with this section.</P> <P>(c) For nonconstruction awards, recipients shall request prior approvals from Federal awarding agencies for one or more of the following program or budget related reasons.</P> <P>(1) Change in the scope or the objective of the project or program (even if there is no associated budget revision requiring prior written approval).</P> <P>(2) Change in a key person specified in the application or award document.</P> <P>(3) The absence for more than three months, or a 25 percent reduction in time devoted to the project, by the approved project director or principal investigator.</P> <P>(4) The need for additional Federal funding.</P> <P>(5) The transfer of amounts budgeted for indirect costs to absorb increases in direct costs, or vice versa, if approval is required by the Federal awarding agency.</P> <P>(6) The inclusion, unless waived by the Federal awarding agency, of costs that require prior approval in accordance with OMB Circular A-21, “Cost Principles for Institutions of Higher Education,” OMB Circular A-122, “Cost Principles for Non-Profit Organizations,” or 45 CFR part 74 Appendix E, “Principles for Determining Costs Applicable to Research and Development under Grants and Contracts with Hospitals,” or 48 CFR part 31, “Contract Cost Principles and Procedures,” as applicable.</P> <P>(7) The transfer of funds allotted for training allowances (direct payment to trainees) to other categories of expense.</P> <P>(8) Unless described in the application and funded in the approved awards, the subaward, transfer or contracting out of any work under an award. This provision does not apply to the purchase of supplies, material, equipment or general support services.</P> <P>(d) No other prior approval requirements for specific items may be imposed unless a deviation has been approved by OMB.</P> <P>(e) Except for requirements listed in paragraphs (c)(1) and (c)(4) of this section, Federal awarding agencies are authorized, at their option, to waive cost-related and administrative prior written approvals required by this part and OMB Circulars A-21 and A-122. Such waivers may include authorizing recipients to do any one or more of the following:</P> <P>(1) Incur pre-award costs 90 calendar days prior to award or more than 90 calendar days with the prior approval of the Federal awarding agency. All pre-award costs are incurred at the recipient's risk (i.e., the Federal awarding agency is under no obligation to reimburse such costs if for any reason the recipient does not receive an award or if the award is less than anticipated and inadequate to cover such costs).</P> <P>(2) Initiate a one-time extension of the expiration date of the award of up to 12 months unless one or more of the following conditions apply. For one-time extensions, the recipient must notify the Federal awarding agency in writing with the supporting reasons and revised expiration date at least 10 days before the expiration date specified in the award. This one-time extension may not be exercised merely for the purpose of using unobligated balances.</P> <P>(i) The terms and conditions of award prohibit the extension.</P> <P>(ii) The extension requires additional Federal funds.</P> <P>(iii) The extension involves any change in the approved objectives or scope of the project.</P> <P>(3) Carry forward unobligated balances to subsequent funding periods.<PRTPAGE P="163"/> </P> <P>(4) For awards that support research, unless the Federal awarding agency provides otherwise in the award or in the agency's regulations, the prior approval requirements described in paragraph (e) of this section are automatically waived (i.e., recipients need not obtain such prior approvals) unless one of the conditions included in paragraph (e)(2) of this section applies.</P> <P>(f) The Federal awarding agency may, at its option, restrict the transfer of funds among direct cost categories or programs, functions and activities for awards in which the Federal share of the project exceeds $100,000 and the cumulative amount of such transfers exceeds or is expected to exceed 10 percent of the total budget as last approved by the Federal awarding agency. No Federal awarding agency shall permit a transfer that would cause any Federal appropriation or part thereof to be used for purposes other than those consistent with the original intent of the appropriation.</P> <P>(g) All other changes to nonconstruction budgets, except for the changes described in paragraph (j) of this section, do not require prior approval.</P> <P>(h) For construction awards, recipients shall request prior written approval promptly from Federal awarding agencies for budget revisions whenever the conditions in paragraphs (h) (1), (2) or (3) of this section apply.</P> <P>(1) The revision results from changes in the scope or the objective of the project or program.</P> <P>(2) The need arises for additional Federal funds to complete the project.</P> <P>(3) A revision is desired which involves specific costs for which prior written approval requirements may be imposed consistent with applicable OMB cost principles listed in § 19.27.</P> <P>(i) No other prior approval requirements for specific items may be imposed unless a deviation has been approved by OMB.</P> <P>(j) When a Federal awarding agency makes an award that provides support for both construction and nonconstruction work, the Federal awarding agency may require the recipient to request prior approval from the Federal awarding agency before making any fund or budget transfers between the two types of work supported.</P> <P>(k) For both construction and nonconstruction awards, Federal awarding agencies shall require recipients to notify the Federal awarding agency in writing promptly whenever the amount of Federal authorized funds is expected to exceed the needs of the recipient for the project period by more than $5,000 or five percent of the Federal award, whichever is greater. This notification shall not be required if an application for additional funding is submitted for a continuation award.</P> <P>(l) When requesting approval for budget revisions, recipients shall use the budget forms that were used in the application unless the Federal awarding agency indicates a letter of request suffices.</P> <P>(m) Within 30 calendar days from the date of receipt of the request for budget revisions, Federal awarding agencies shall review the request and notify the recipient whether the budget revisions have been approved. If the revision is still under consideration at the end of 30 calendar days, the Federal awarding agency shall inform the recipient in writing of the date when the recipient may expect the decision.</P> </SECTION> <SECTION> <SECTNO>§ 19.26</SECTNO> <SUBJECT>Non-Federal audits.</SUBJECT> <P>(a) Recipients and subrecipients that are institutions of higher education or other non-profit organizations (including hospitals) shall be subject to the audit requirements contained in 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.”</P> <P>(b) State and local governments shall be subject to the audit requirements contained in 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.”</P> <P>(c) For-profit hospitals not covered by the audit provisions of revised OMB Circular A-133 shall be subject to the audit requirements of the Federal awarding agencies.</P> <P>(d) Commercial organizations shall be subject to the audit requirements of the Federal awarding agency or the <PRTPAGE P="164"/>prime recipient as incorporated into the award document.</P> <CITA>[59 FR 15639, Apr. 4, 1994, as amended at 62 FR 45939, 45947, Aug. 29, 1997]</CITA> </SECTION> <SECTION> <SECTNO>§ 19.27</SECTNO> <SUBJECT>Allowable costs.</SUBJECT> <P>For each kind of recipient, there is a set of Federal principles for determining allowable costs. Allowability of costs shall be determined in accordance with the cost principles applicable to the entity incurring the costs. Thus, allowability of costs incurred by State, local or federally-recognized Indian tribal governments is determined in accordance with the provisions of OMB Circular A-87, “Cost Principles for State and Local Governments.” The allowability of costs incurred by non-profit organizations is determined in accordance with the provisions of OMB Circular A-122, “Cost Principles for Non-Profit Organizations.” The allowability of costs incurred by institutions of higher education is determined in accordance with the provisions of OMB Circular A-21, “Cost Principles for Educational Institutions.” The allowability of costs incurred by hospitals is determined in accordance with the provisions of Appendix E of 45 CFR part 74, “Principles for Determining Costs Applicable to Research and Development Under Grants and Contracts with Hospitals.” The allowability of costs incurred by commercial organizations and those non-profit organizations listed in Attachment C to Circular A-122 is determined in accordance with the provisions of the Federal Acquisition Regulation (FAR) at 48 CFR part 31.</P> </SECTION> <SECTION> <SECTNO>§ 19.28</SECTNO> <SUBJECT>Period of availability of funds.</SUBJECT> <P>Where a funding period is specified, a recipient may charge to the grant only allowable costs resulting from obligations incurred during the funding period and any pre-award costs authorized by the Federal awarding agency.</P> </SECTION> <SUBJGRP> <HD SOURCE="HED">Property Standards</HD> <SECTION> <SECTNO>§ 19.30</SECTNO> <SUBJECT>Purpose of property standards.</SUBJECT> <P>(a) Sections 19.31 through 19.37 set forth uniform standards governing management and disposition of property furnished by the Federal Government whose cost was charged to a project supported by a Federal award. Federal awarding agencies shall require recipients to observe these standards under awards and shall not impose additional requirements, unless specifically required by Federal statute. The recipient may use its own property management standards and procedures provided it observes the provisions of §§ 19.31 through 19.37.</P> <P>(b) Transfer of capital assets. Section 12(k) of the Federal Transit Act, as amended, (49 U.S.C. app. 1608(k)) allows the transfer without compensation of real property (including land) and equipment acquired under the Act for another public purpose under certain conditions. Procedures to allow these transfers have not been issued.</P> </SECTION> <SECTION> <SECTNO>§ 19.31</SECTNO> <SUBJECT>Insurance coverage.</SUBJECT> <P>Recipients shall, at a minimum, provide the equivalent insurance coverage for real property and equipment acquired with Federal funds as provided to property owned by the recipient. Federally-owned property need not be insured unless required by the terms and conditions of the award.</P> </SECTION> <SECTION> <SECTNO>§ 19.32</SECTNO> <SUBJECT>Real property.</SUBJECT> <P>Each Federal awarding agency shall prescribe requirements for recipients concerning the use and disposition of real property acquired in whole or in part under awards. Unless otherwise provided by statute, such requirements, at a minimum, shall contain the following.</P> <P>(a) Title to real property shall vest in the recipient subject to the condition that the recipient shall use the real property for the authorized purpose of the project as long as it is needed and shall not encumber the property without approval of the Federal awarding agency.</P> <P>(b) The recipient shall obtain written approval by the Federal awarding agency for the use of real property in other federally-sponsored projects when the recipient determines that the property is no longer needed for the purpose of the original project. Use in other projects shall be limited to those under federally-sponsored projects (i.e., awards) or programs that have purposes consistent with those authorized for support by the Department of Transportation.<PRTPAGE P="165"/> </P> <P>(c) When the real property is no longer needed as provided in paragraphs (a) and (b) of this section, the recipient shall request disposition instructions from the Federal awarding agency or its successor Federal awarding agency. The Federal awarding agency shall observe one or more of the following disposition instructions.</P> <P>(1) The recipient may be permitted to retain title without further obligation to the Federal Government after it compensates the Federal Government for that percentage of the current fair market value of the property attributable to the Federal participation in the project.</P> <P>(2) The recipient may be directed to sell the property under guidelines provided by the Federal awarding agency and pay the Federal Government for that percentage of the current fair market value of the property attributable to the Federal participation in the project (after deducting actual and reasonable selling and fix-up expenses, if any, from the sales proceeds). When the recipient is authorized or required to sell the property, proper sales procedures shall be established that provide for competition to the extent practicable and result in the highest possible return.</P> <P>(3) The recipient may be directed to transfer title to the property to the Federal Government or to an eligible third party provided that, in such cases, the recipient shall be entitled to compensation for its attributable percentage of the current fair market value of the property.</P> </SECTION> <SECTION> <SECTNO>§ 19.33</SECTNO> <SUBJECT>Federally-owned and exempt property.</SUBJECT> <P>(a) <E T="03">Federally-owned property.</E> (1) Title to federally-owned property remains vested in the Federal Government. Recipients shall submit annually an inventory listing of federally-owned property in their custody to the Federal awarding agency. Upon completion of the award or when the property is no longer needed, the recipient shall report the property to the Federal awarding agency for further Federal agency utilization.</P> <P>(2) If the Federal awarding agency has no further need for the property, it shall be declared excess and reported to the General Services Administration, unless the Federal awarding agency has statutory authority to dispose of the property by alternative methods (e.g., the authority provided by the Federal Technology Transfer Act (15 U.S.C. 3710(I)) to donate research equipment to educational and non-profit organizations in accordance with E.O. 12821, “Improving Mathematics and Science Education in Support of the National Education Goals.”) Appropriate instructions shall be issued to the recipient by the Federal awarding agency.</P> <P>(b) <E T="03">Exempt property.</E> When statutory authority exists, the Federal awarding agency has the option to vest title to property acquired with Federal funds in the recipient without further obligation to the Federal Government and under conditions the Federal awarding agency considers appropriate. Such property is “exempt property.” Should a Federal awarding agency not establish conditions, title to exempt property upon acquisition shall vest in the recipient without further obligation to the Federal Government.</P> </SECTION> <SECTION> <SECTNO>§ 19.34</SECTNO> <SUBJECT>Equipment.</SUBJECT> <P>(a) Title to equipment acquired by a recipient with Federal funds shall vest in the recipient, subject to conditions of this section.</P> <P>(b) The recipient shall not use equipment acquired with Federal funds to provide services to non-Federal outside organizations for a fee that is less than private companies charge for equivalent services, unless specifically authorized by Federal statute, for as long as the Federal Government retains an interest in the equipment.</P> <P>(c) The recipient shall use the equipment in the project or program for which it was acquired as long as needed, whether or not the project or program continues to be supported by Federal funds and shall not encumber the property without approval of the Federal awarding agency. When no longer needed for the original project or program, the recipient shall use the equipment in connection with its other federally-sponsored activities, in the following order of priority:<PRTPAGE P="166"/> </P> <P>(1) Activities sponsored by the Federal awarding agency which funded the original project, then</P> <P>(2) Activities sponsored by other Federal awarding agencies.</P> <P>(d) During the time that equipment is used on the project or program for which it was acquired, the recipient shall make it available for use on other projects or programs if such other use will not interfere with the work on the project or program for which the equipment was originally acquired. First preference for such other use shall be given to other projects or programs sponsored by the Federal awarding agency that financed the equipment; second preference shall be given to projects or programs sponsored by other Federal awarding agencies. If the equipment is owned by the Federal Government, use on other activities not sponsored by the Federal Government shall be permissible if authorized by the Federal awarding agency. User charges shall be treated as program income.</P> <P>(e) When acquiring replacement equipment, the recipient may use the equipment to be replaced as trade-in or sell the equipment and use the proceeds to offset the costs of the replacement equipment subject to the approval of the Federal awarding agency.</P> <P>(f) The recipient's property management standards for equipment acquired with Federal funds and federally-owned equipment shall include all of the following.</P> <P>(1) Equipment records shall be maintained accurately and shall include the following information.</P> <P>(i) A description of the equipment.</P> <P>(ii) Manufacturer's serial number, model number, Federal stock number, national stock number, or other identification number.</P> <P>(iii) Source of the equipment, including the award number.</P> <P>(iv) Whether title vests in the recipient or the Federal Government.</P> <P>(v) Acquisition date (or date received, if the equipment was furnished by the Federal Government) and cost.</P> <P>(vi) Information from which one can calculate the percentage of Federal participation in the cost of the equipment (not applicable to equipment furnished by the Federal Government).</P> <P>(vii) Location and condition of the equipment and the date the information was reported.</P> <P>(viii) Unit acquisition cost.</P> <P>(ix) Ultimate disposition data, including date of disposal and sales price or the method used to determine current fair market value where a recipient compensates the Federal awarding agency for its share.</P> <P>(2) Equipment owned by the Federal Government shall be identified to indicate Federal ownership.</P> <P>(3) A physical inventory of equipment shall be taken and the results reconciled with the equipment records at least once every two years. Any differences between quantities determined by the physical inspection and those shown in the accounting records shall be investigated to determine the causes of the difference. The recipient shall, in connection with the inventory, verify the existence, current utilization, and continued need for the equipment.</P> <P>(4) A control system shall be in effect to insure adequate safeguards to prevent loss, damage, or theft of the equipment. Any loss, damage, or theft of equipment shall be investigated and fully documented; if the equipment was owned by the Federal Government, the recipient shall promptly notify the Federal awarding agency.</P> <P>(5) Adequate maintenance procedures shall be implemented to keep the equipment in good condition.</P> <P>(6) Where the recipient is authorized or required to sell the equipment, proper sales procedures shall be established which provide for competition to the extent practicable and result in the highest possible return.</P> <P>(g) When the recipient no longer needs the equipment, the equipment may be used for other activities in accordance with the following standards. For equipment with a current per unit fair market value of $5,000 or more, the recipient may retain the equipment for other uses provided that compensation is made to the original Federal awarding agency or its successor. The amount of compensation shall be computed by applying the percentage of Federal participation in the cost of the <PRTPAGE P="167"/>original project or program to the current fair market value of the equipment. If the recipient has no need for the equipment, the recipient shall request disposition instructions from the Federal awarding agency. The Federal awarding agency shall determine whether the equipment can be used to meet the agency's requirements. If no requirement exists within that agency, the availability of the equipment shall be reported to the General Services Administration by the Federal awarding agency to determine whether a requirement for the equipment exists in other Federal agencies. The Federal awarding agency shall issue instructions to the recipient no later than 120 calendar days after the recipient's request and the following procedures shall govern.</P> <P>(1) If so instructed or if disposition instructions are not issued within 120 calendar days after the recipient's request, the recipient shall sell the equipment and reimburse the Federal awarding agency an amount computed by applying to the sales proceeds the percentage of Federal participation in the cost of the original project or program. However, the recipient shall be permitted to deduct and retain from the Federal share $500 or ten percent of the proceeds, whichever is less, for the recipient's selling and handling expenses.</P> <P>(2) If the recipient is instructed to ship the equipment elsewhere, the recipient shall be reimbursed by the Federal Government by an amount which is computed by applying the percentage of the recipient's participation in the cost of the original project or program to the current fair market value of the equipment, plus any reasonable shipping or interim storage costs incurred.</P> <P>(3) If the recipient is instructed to otherwise dispose of the equipment, the recipient shall be reimbursed by the Federal awarding agency for such costs incurred in its disposition.</P> <P>(4) The Federal awarding agency may reserve the right to transfer the title to the Federal Government or to a third party named by the Federal Government when such third party is otherwise eligible under existing statutes. Such transfer shall be subject to the following standards.</P> <P>(i) The equipment shall be appropriately identified in the award or otherwise made known to the recipient in writing.</P> <P>(ii) The Federal awarding agency shall issue disposition instructions within 120 calendar days after receipt of a final inventory. The final inventory shall list all equipment acquired with grant funds and federally-owned equipment. If the Federal awarding agency fails to issue disposition instructions within the 120 calendar day period, the recipient shall apply the standards of this section, as appropriate.</P> <P>(iii) When the Federal awarding agency exercises its right to take title, the equipment shall be subject to the provisions for federally-owned equipment.</P> </SECTION> <SECTION> <SECTNO>§ 19.35</SECTNO> <SUBJECT>Supplies and other expendable property.</SUBJECT> <P>(a) Title to supplies and other expendable property shall vest in the recipient upon acquisition. If there is a residual inventory of unused supplies exceeding $5000 in total aggregate value upon termination or completion of the project or program and the supplies are not needed for any other federally-sponsored project or program, the recipient shall retain the supplies for use on non-Federal sponsored activities or sell them, but shall, in either case, compensate the Federal Government for its share. The amount of compensation shall be computed in the same manner as for equipment.</P> <P>(b) The recipient shall not use supplies acquired with Federal funds to provide services to non-Federal outside organizations for a fee that is less than private companies charge for equivalent services, unless specifically authorized by Federal statute as long as the Federal Government retains an interest in the supplies.</P> </SECTION> <SECTION> <SECTNO>§ 19.36</SECTNO> <SUBJECT>Intangible property.</SUBJECT> <P>(a) The recipient may copyright any work that is subject to copyright and was developed, or for which ownership was purchased, under an award. The Federal awarding agency(ies) reserve a royalty-free, nonexclusive and irrevocable right to reproduce, publish, or <PRTPAGE P="168"/>otherwise use the work for Federal purposes, and to authorize others to do so.</P> <P>(b) Recipients are subject to applicable regulations governing patents and inventions, including government-wide regulations issued by the Department of Commerce at 37 CFR part 401, “Rights to Inventions Made by Nonprofit Organizations and Small Business Firms Under Government Grants, Contracts and Cooperative Agreements.”</P> <P>(c) The Federal Government has the right to:</P> <P>(1) Obtain, reproduce, publish or otherwise use the data first produced under an award; and</P> <P>(2) Authorize others to receive, reproduce, publish, or otherwise use such data for Federal purposes.</P> <P>(d)(1) In addition, in response to a Freedom of Information Act (FOIA) request for research data relating to published research findings produced under an award that were used by the Federal Government in developing an agency action that has the force and effect of law, the Federal awarding agency shall request, and the recipient shall provide, within a reasonable time, the research data so that they can be made available to the public through the procedures established under the FOIA. If the Federal awarding agency obtains the research data solely in response to a FOIA request, the agency may charge the requester a reasonable fee equaling the full incremental cost of obtaining the research data. This fee should reflect costs incurred by the agency, the recipient, and applicable subrecipients. This fee is in addition to any fees the agency may assess under the FOIA (5 U.S.C. 552(a)(4)(A)).</P> <P>(2) The following definitions apply for purposes of this paragraph (d):</P> <P>(i) <E T="03">Research data</E> is defined as the recorded factual material commonly accepted in the scientific community as necessary to validate research findings, but not any of the following: preliminary analyses, drafts of scientific papers, plans for future research, peer reviews, or communications with colleagues. This “recorded” material excludes physical objects (e.g., laboratory samples). <E T="03">Research data</E> also do not include:</P> <P>(A) Trade secrets, commercial information, materials necessary to be held confidential by a researcher until they are published, or similar information which is protected under law; and</P> <P>(B) Personnel and medical information and similar information the disclosure of which would constitute a clearly unwarranted invasion of personal privacy, such as information that could be used to identify a particular person in a research study.</P> <P>(ii) <E T="03">Published</E> is defined as either when:</P> <P>(A) Research findings are published in a peer-reviewed scientific or technical journal; or</P> <P>(B) A Federal agency publicly and officially cites the research findings in support of an agency action that has the force and effect of law.</P> <P>(iii) <E T="03">Used by the Federal Government in developing an agency action that has the force and effect of law</E> is defined as when an agency publicly and officially cites the research findings in support of an agency action that has the force and effect of law.</P> <P>(e) Title to intangible property and debt instruments acquired under an award or subaward vests upon acquisition in the recipient. The recipient shall use that property for the originally-authorized purpose, and the recipient shall not encumber the property without approval of the Federal awarding agency. When no longer needed for the originally authorized purpose, disposition of the intangible property shall occur in accordance with the provisions of paragraph § 19.34(g).</P> <CITA>[59 FR 15639, Apr. 4, 1994, as amended at 65 FR 14407, 14419, Mar. 16, 2000]</CITA> </SECTION> <SECTION> <SECTNO>§ 19.37</SECTNO> <SUBJECT>Property trust relationship.</SUBJECT> <P>Real property, equipment, intangible property and debt instruments that are acquired or improved with Federal funds shall be held in trust by the recipient as trustee for the beneficiaries of the project or program under which the property was acquired or improved. Agencies may require recipients to record liens or other appropriate notices of record to indicate that personal or real property has been acquired or improved with Federal funds and that use and disposition conditions apply to the property.</P> </SECTION> </SUBJGRP> <SUBJGRP> <PRTPAGE P="169"/> <HD SOURCE="HED">Procurement Standards</HD> <SECTION> <SECTNO>§ 19.40</SECTNO> <SUBJECT>Purpose of procurement standards.</SUBJECT> <P>Sections 19.41 through 19.48 set forth standards for use by recipients in establishing procedures for the procurement of supplies and other expendable property, equipment, real property and other services with Federal funds. These standards are furnished to ensure that such materials and services are obtained in an effective manner and in compliance with the provisions of applicable Federal statutes and executive orders. No additional procurement standards or requirements shall be imposed by the Federal awarding agencies upon recipients, unless specifically required by Federal statute or executive order or approved by OMB.</P> </SECTION> <SECTION> <SECTNO>§ 19.41</SECTNO> <SUBJECT>Recipient responsibilities.</SUBJECT> <P>The standards contained in this section do not relieve the recipient of the contractual responsibilities arising under its contract(s). The recipient is the responsible authority, without recourse to the Federal awarding agency, regarding the settlement and satisfaction of all contractual and administrative issues arising out of procurements entered into in support of an award or other agreement. This includes disputes, claims, protests of award, source evaluation or other matters of a contractual nature. Matters concerning violation of statute are to be referred to such Federal, State or local authority as may have proper jurisdiction.</P> </SECTION> <SECTION> <SECTNO>§ 19.42</SECTNO> <SUBJECT>Codes of conduct.</SUBJECT> <P>The recipient shall maintain written standards of conduct governing the performance of its employees engaged in the award and administration of contracts. No employee, officer, or agent shall participate in the selection, award, or administration of a contract supported by Federal funds if a real or apparent conflict of interest would be involved. Such a conflict would arise when the employee, officer, or agent, any member of his or her immediate family, his or her partner, or an organization which employs or is about to employ any of the parties indicated herein, has a financial or other interest in the firm selected for an award. The officers, employees, and agents of the recipient shall neither solicit nor accept gratuities, favors, or anything of monetary value from contractors, or parties to subagreements. However, recipients may set standards for situations in which the financial interest is not substantial or the gift is an unsolicited item of nominal value. The standards of conduct shall provide for disciplinary actions to be applied for violations of such standards by officers, employees, or agents of the recipient.</P> </SECTION> <SECTION> <SECTNO>§ 19.43</SECTNO> <SUBJECT>Competition.</SUBJECT> <P>All procurement transactions shall be conducted in a manner to provide, to the maximum extent practical, open and free competition. The recipient shall be alert to organizational conflicts of interest as well as noncompetitive practices among contractors that may restrict or eliminate competition or otherwise restrain trade. In order to ensure objective contractor performance and eliminate unfair competitive advantage, contractors that develop or draft specifications, requirements, statements of work, invitations for bids and/or requests for proposals shall be excluded from competing for such procurements. Awards shall be made to the bidder or offeror whose bid or offer is responsive to the solicitation and is most advantageous to the recipient, price, quality and other factors considered. Solicitations shall clearly set forth all requirements that the bidder or offeror shall fulfill in order for the bid or offer to be evaluated by the recipient. Any and all bids or offers may be rejected when it is in the recipient's interest to do so.</P> </SECTION> <SECTION> <SECTNO>§ 19.44</SECTNO> <SUBJECT>Procurement procedures.</SUBJECT> <P>(a) All recipients shall establish written procurement procedures. These procedures shall provide for, at a minimum, that the conditions in paragraphs (a)(1), (2) and (3) of this section apply.</P> <P>(1) Recipients avoid purchasing unnecessary items.</P> <P>(2) Where appropriate, an analysis is made of lease and purchase alternatives to determine which would be the most economical and practical procurement for the Federal Government.<PRTPAGE P="170"/> </P> <P>(3) Solicitations for goods and services provide for all of the following:</P> <P>(i) A clear and accurate description of the technical requirements for the material, product or service to be procured. In competitive procurements, such a description shall not contain features which unduly restrict competition.</P> <P>(ii) Requirements which the bidder/offeror must fulfill and all other factors to be used in evaluating bids or proposals.</P> <P>(iii) A description, whenever practicable, of technical requirements in terms of functions to be performed or performance required, including the range of acceptable characteristics or minimum acceptable standards.</P> <P>(iv) The specific features of “brand name or equal” descriptions that bidders are required to meet when such items are included in the solicitation.</P> <P>(v) The acceptance, to the extent practicable and economically feasible, of products and services dimensioned in the metric system of measurement.</P> <P>(vi) Preference, to the extent practicable and economically feasible, for products and services that conserve natural resources and protect the environment and are energy efficient.</P> <P>(b) Positive efforts shall be made by recipients to utilize small businesses, minority-owned firms, and women's business enterprises, whenever possible. Recipients of Federal awards shall take all of the following steps to further this goal.</P> <P>(1) Ensure that small businesses, minority-owned firms, and women's business enterprises are used to the fullest extent practicable.</P> <P>(2) Make information on forthcoming opportunities available and arrange timeframes for purchases and contracts to encourage and facilitate participation by small businesses, minority-owned firms, and women's business enterprises.</P> <P>(3) Consider in the contract process whether firms competing for larger contracts intend to subcontract with small businesses, minority-owned firms, and women's business enterprises.</P> <P>(4) Encourage contracting with consortiums of small businesses, minority-owned firms and women's business enterprises when a contract is too large for one of these firms to handle individually.</P> <P>(5) Use the services and assistance, as appropriate, of such organizations as the Small Business Administration and the Department of Commerce's Minority Business Development Agency in the solicitation and utilization of small businesses, minority-owned firms, and women's business enterprises.</P> <P>(c) The type of procuring instruments used (e.g., fixed price contracts, cost reimbursable contracts, purchase orders, and incentive contracts) shall be determined by the recipient but shall be appropriate for the particular procurement and for promoting the best interest of the program or project involved. The “cost-plus-a-percentage-of-cost” or “percentage of construction cost” methods of contracting shall not be used.</P> <P>(d) Contracts shall be made only with responsible contractors who possess the potential ability to perform successfully under the terms and conditions of the proposed procurement. Consideration shall be given to such matters as contractor integrity, record of past performance, financial and technical resources or accessibility to other necessary resources. In certain circumstances, contracts with certain parties are restricted by 49 CFR part 29, the implementation of E.O.'s 12549 and 12689, “Debarment and Suspension.”</P> <P>(e) Recipients shall, on request, make available for the Federal awarding agency, pre-award review and procurement documents, such as request for proposals or invitations for bids, independent cost estimates, etc., when any of the following conditions apply.</P> <P>(1) A recipient's procurement procedures or operation fails to comply with the procurement standards in this part.</P> <P>(2) The procurement is expected to exceed the small purchase threshold fixed at 41 U.S.C. 403 (11) (currently $25,000) and is to be awarded without competition or only one bid or offer is received in response to a solicitation.</P> <P>(3) The procurement, which is expected to exceed the small purchase threshold, specifies a “brand name” product.<PRTPAGE P="171"/> </P> <P>(4) The proposed award over the small purchase threshold is to be awarded to other than the apparent low bidder under a sealed bid procurement.</P> <P>(5) A proposed contract modification changes the scope of a contract or increases the contract amount by more than the amount of the small purchase threshold.</P> <P>(f) Additional procurement procedures.</P> <P>(1) Section 165 of the STAA of 1982, as amended; section 337 of the Surface Transportation and Uniform Relocation Assistance Act (STURAA) of 1987, 49 U.S.C. 1601, section 1048 of the Intermodal Surface Transportation Efficiency Act of 1991, and section 9129 of the Aviation Safety and Capacity Expansion Act of 1990, 49 U.S.C. app. 2226, impose Buy America requirements on the procurement of foreign products and materials by all recipients of FHWA, FTA, and Federal Aviation Administration (FAA) funds. Procedures are contained in 49 CFR part 660, Buy America Requirements and part 661, Buy America Requirements—STAA of 1982. In addition, for FTA recipients, nonregulatory guidance is contained in FTA Circular 4220.1B, Third Party Contracting Guidelines, Chapter I, section 11. Non-regulatory guidance for FAA programs is contained in FAA Order 5100.38A and special conditions in grant awards.</P> <P>(2) Section 511(a)(16) of the Airport and Airway Improvement Act of 1982, 49 U.S.C. app. 2210, requires FAA recipients and subrecipients to extend the use of qualifications-based (e.g., architectural and engineering services) contract selection procedures to certain other related areas and to award such contracts in the same manner as Federal contracts for architectural and engineering services are negotiated under Title IX of the 1949 Federal Property and Administrative Services Act, or equivalent airport sponsor qualifications based requirements. Non-regulatory guidance for FAA programs is contained in FAA Order 5100.38A and special conditions in grant awards.</P> <P>(3) Section 3(a)(2)(C) of the Federal Transit Act, as amended, (49 U.S.C. app. 1602(a)(2)(C)) prohibits the use of grant or loan funds to support procurements utilizing exclusionary or discriminatory specifications. Nonregulatory guidance is contained in FTA Circular 4220.1B, Third Party Contracting Guidelines, Chapter I, section 15 and Attachment A.</P> <P>(4) Section 1241(b)(1) of 46 U.S.C. and 46 CFR part 381, Cargo Preference—U.S. Flag Vessels impose cargo preference requirements on the shipment of foreign made goods for FTA recipients. Nonregulatory guidance is contained in FTA Circular 4220.1B, Third Party Contracting Guidelines, Chapter I, section 10.</P> </SECTION> <SECTION> <SECTNO>§ 19.45</SECTNO> <SUBJECT>Cost and price analysis.</SUBJECT> <P>Some form of cost or price analysis shall be made and documented in the procurement files in connection with every procurement action. Price analysis may be accomplished in various ways, including the comparison of price quotations submitted, market prices and similar indicia, together with discounts. Cost analysis is the review and evaluation of each element of cost to determine reasonableness, allocability and allowability.</P> </SECTION> <SECTION> <SECTNO>§ 19.46</SECTNO> <SUBJECT>Procurement records.</SUBJECT> <P>Procurement records and files for purchases in excess of the small purchase threshold shall include the following at a minimum:</P> <P>(a) Basis for contractor selection,</P> <P>(b) Justification for lack of competition when competitive bids or offers are not obtained, and</P> <P>(c) Basis for award cost or price.</P> </SECTION> <SECTION> <SECTNO>§ 19.47</SECTNO> <SUBJECT>Contract administration.</SUBJECT> <P>A system for contract administration shall be maintained to ensure contractor conformance with the terms, conditions and specifications of the contract and to ensure adequate and timely follow up of all purchases. Recipients shall evaluate contractor performance and document, as appropriate, whether contractors have met the terms, conditions, and specifications of the contract.</P> </SECTION> <SECTION> <SECTNO>§ 19.48</SECTNO> <SUBJECT>Contract provisions.</SUBJECT> <P>The recipient shall include, in addition to provisions to define a sound and complete agreement, the following provisions in all contracts. The following <PRTPAGE P="172"/>provisions shall also be applied to subcontracts.</P> <P>(a) Contracts in excess of the small purchase threshold shall contain contractual provisions or conditions that allow for administrative, contractual, or legal remedies in instances in which a contractor violates or breaches the contract terms, and provide for such remedial actions as may be appropriate.</P> <P>(b) All contracts in excess of the small purchase threshold shall contain suitable provisions for termination by the recipient, including the manner by which termination shall be effected and the basis for settlement. In addition, such contracts shall describe conditions under which the contract may be terminated for default as well as conditions where the contract may be terminated because of circumstances beyond the control of the contractor.</P> <P>(c) Except as otherwise required by statute, an award that requires the contracting (or subcontracting) for construction or facility improvements shall provide for the recipient to follow its own requirements relating to bid guarantees, performance bonds, and payment bonds unless the construction contract or subcontract exceeds $100,000. For those contracts or subcontracts exceeding $100,000, the Federal awarding agency may accept the bonding policy and requirements of the recipient, provided the Federal awarding agency has made a determination that the Federal Government's interest is adequately protected. If such a determination has not been made, the minimum requirements shall be as follows:</P> <P>(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 shall, upon acceptance of his bid, execute such contractual documents as may be required within the time specified.</P> <P>(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.</P> <P>(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 statute of all persons supplying labor and material in the execution of the work provided for in the contract.</P> <P>(4) Where bonds are required in the situations described herein, the bonds shall be obtained from companies holding certificates of authority as acceptable sureties pursuant to 31 CFR part 223, “Surety Companies Doing Business with the United States.”</P> <P>(d) All negotiated contracts (except those for less than the small purchase threshold) awarded by recipients shall include a provision to the effect that the recipient, the Federal awarding agency, the Comptroller General of the United States, or any of their duly authorized representatives, shall have access to any books, documents, papers and records of the contractor which are directly pertinent to a specific program for the purpose of making audits, examinations, excerpts and transcriptions.</P> <P>(e) All contracts, including small purchases, awarded by recipients and their contractors shall contain the procurement provisions of appendix A to this part, as applicable.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Reports and Records</HD> <SECTION> <SECTNO>§ 19.50</SECTNO> <SUBJECT>Purpose of reports and records.</SUBJECT> <P>Sections 19.51 through 19.53 set forth the procedures for monitoring and reporting on the recipient's financial and program performance and the necessary standard reporting forms. They also set forth record retention requirements.</P> </SECTION> <SECTION> <SECTNO>§ 19.51</SECTNO> <SUBJECT>Monitoring and reporting program performance.</SUBJECT> <P>(a) Recipients are responsible for managing and monitoring each project, program, subaward, function or activity supported by the award. Recipients shall monitor subawards to ensure subrecipients have met the audit requirements as delineated in § 19.26.</P> <P>(b) The Federal awarding agency shall prescribe the frequency with <PRTPAGE P="173"/>which the performance reports shall be submitted. Except as provided in § 19.51(f), performance reports shall not be required more frequently than quarterly or, less frequently than annually. Annual reports shall be due 90 calendar days after the grant year; quarterly or semi-annual reports shall be due 30 days after the reporting period. The Federal awarding agency may require annual reports before the anniversary dates of multiple year awards in lieu of these requirements. The final performance reports are due 90 calendar days after the expiration or termination of the award.</P> <P>(c) If inappropriate, a final technical or performance report shall not be required after completion of the project.</P> <P>(d) When required, performance reports shall generally contain, for each award, brief information on each of the following:</P> <P>(1) A comparison of actual accomplishments with the goals and objectives established for the period, the findings of the investigator, or both. Whenever appropriate and the output of programs or projects can be readily quantified, such quantitative data should be related to cost data for computation of unit costs.</P> <P>(2) Reasons why established goals were not met, if appropriate.</P> <P>(3) Other pertinent information including, when appropriate, analysis and explanation of cost overruns or high unit costs.</P> <P>(e) Recipients shall not be required to submit more than the original and two copies of performance reports.</P> <P>(f) Recipients shall immediately notify the Federal awarding agency of developments that have a significant impact on the award-supported activities. Also, notification shall be given in the case of problems, delays, or adverse conditions which materially impair the ability to meet the objectives of the award. This notification shall include a statement of the action taken or contemplated, and any assistance needed to resolve the situation.</P> <P>(g) Federal awarding agencies may make site visits, as needed.</P> <P>(h) Federal awarding agencies shall comply with clearance requirements of 5 CFR part 1320 when requesting performance data from recipients.</P> </SECTION> <SECTION> <SECTNO>§ 19.52</SECTNO> <SUBJECT>Financial reporting.</SUBJECT> <P>(a) The following forms or such other forms as may be approved by OMB are authorized for obtaining financial information from recipients.</P> <P>(1) SF-269 or SF-269A, Financial Status Report.</P> <P>(i) Each Federal awarding agency shall require recipients to use the SF-269 or SF-269A to report the status of funds for all nonconstruction projects or programs. A Federal awarding agency may, however, have the option of not requiring the SF-269 or SF-269A when the SF-270, Request for Advance or Reimbursement, or SF-272, Report of Federal Cash Transactions, is determined to provide adequate information to meet its needs, except that a final SF-269 or SF-269A shall be required at the completion of the project when the SF-270 is used only for advances.</P> <P>(ii) The Federal awarding agency shall prescribe whether the report shall be on a cash or accrual basis. If the Federal awarding agency requires accrual information and the recipient's accounting records are not normally kept on the accrual basis, the recipient shall not be required to convert its accounting system, but shall develop such accrual information through best estimates based on an analysis of the documentation on hand.</P> <P>(iii) The Federal awarding agency shall determine the frequency of the Financial Status Report for each project or program, considering the size and complexity of the particular project or program. However, the report shall not be required more frequently than quarterly or less frequently than annually. A final report shall be required at the completion of the agreement.</P> <P>(iv) The Federal awarding agency shall require recipients to submit the SF-269 or SF-269A (an original and no more than two copies) no later than 30 days after the end of each specified reporting period for quarterly and semi-annual reports, and 90 calendar days for annual and final reports. Extensions of reporting due dates may be approved by the Federal awarding agency upon request of the recipient.</P> <P>(2) SF-272, Report of Federal Cash Transactions.<PRTPAGE P="174"/> </P> <P>(i) When funds are advanced to recipients the Federal awarding agency shall require each recipient to submit the SF-272 and, when necessary, its continuation sheet, SF-272a. The Federal awarding agency shall use this report to monitor cash advanced to recipients and to obtain disbursement information for each agreement with the recipients.</P> <P>(ii) Federal awarding agencies may require forecasts of Federal cash requirements in the “Remarks” section of the report.</P> <P>(iii) When practical and deemed necessary, Federal awarding agencies may require recipients to report in the “Remarks” section the amount of cash advances received in excess of three days. Recipients shall provide short narrative explanations of actions taken to reduce the excess balances.</P> <P>(iv) Recipients shall be required to submit not more than the original and two copies of the SF-272 15 calendar days following the end of each quarter. The Federal awarding agencies may require a monthly report from those recipients receiving advances totaling $1 million or more per year.</P> <P>(v) Federal awarding agencies may waive the requirement for submission of the SF-272 for any one of the following reasons:</P> <P>(A) When monthly advances do not exceed $25,000 per recipient, provided that such advances are monitored through other forms contained in this section;</P> <P>(B) If, in the Federal awarding agency's opinion, the recipient's accounting controls are adequate to minimize excessive Federal advances; or,</P> <P>(C) When the electronic payment mechanisms provide adequate data.</P> <P>(b) When the Federal awarding agency needs additional information or more frequent reports, the following shall be observed.</P> <P>(1) When additional information is needed to comply with legislative requirements, Federal awarding agencies shall issue instructions to require recipients to submit such information under the “Remarks” section of the reports.</P> <P>(2) When a Federal awarding agency determines that a recipient's accounting system does not meet the standards in § 19.21, additional pertinent information to further monitor awards may be obtained upon written notice to the recipient until such time as the system is brought up to standard. The Federal awarding agency, in obtaining this information, shall comply with report clearance requirements of 5 CFR part 1320.</P> <P>(3) Federal awarding agencies are encouraged to shade out any line item on any report if not necessary.</P> <P>(4) Federal awarding agencies may accept the identical information from the recipients in machine readable format or computer printouts or electronic outputs in lieu of prescribed formats.</P> <P>(5) Federal awarding agencies may provide computer or electronic outputs to recipients when such expedites or contributes to the accuracy of reporting.</P> </SECTION> <SECTION> <SECTNO>§ 19.53</SECTNO> <SUBJECT>Retention and access requirements for records.</SUBJECT> <P>(a) This section sets forth requirements for record retention and access to records for awards to recipients. Federal awarding agencies shall not impose any other record retention or access requirements upon recipients.</P> <P>(b) Financial records, supporting documents, statistical records, and all other records pertinent to an award shall be retained for a period of three years from the date of submission of the final expenditure report or, for awards that are renewed quarterly or annually, from the date of the submission of the quarterly or annual financial report, as authorized by the Federal awarding agency. The only exceptions are the following.</P> <P>(1) If any litigation, claim, or audit is started before the expiration of the 3-year period, the records shall be retained until all litigation, claims or audit findings involving the records have been resolved and final action taken.</P> <P>(2) Records for real property and equipment acquired with Federal funds shall be retained for 3 years after final disposition.</P> <P>(3) When records are transferred to or maintained by the Federal awarding agency, the 3-year retention requirement is not applicable to the recipient.<PRTPAGE P="175"/> </P> <P>(4) Indirect cost rate proposals, cost allocations plans, etc. as specified in paragraph § 19.53(g).</P> <P>(c) Copies of original records may be substituted for the original records if authorized by the Federal awarding agency.</P> <P>(d) The Federal awarding agency shall request transfer of certain records to its custody from recipients when it determines that the records possess long term retention value. However, in order to avoid duplicate recordkeeping, a Federal awarding agency may make arrangements for recipients to retain any records that are continuously needed for joint use.</P> <P>(e) The Federal awarding agency, the Inspector General, Comptroller General of the United States, or any of their duly authorized representatives, have the right of timely and unrestricted access to any books, documents, papers, or other records of recipients that are pertinent to the awards, in order to make audits, examinations, excerpts, transcripts and copies of such documents. This right also includes timely and reasonable access to a recipient's personnel for the purpose of interview and discussion related to such documents. The rights of access in this paragraph are not limited to the required retention period, but shall last as long as records are retained.</P> <P>(f) Unless required by statute, no Federal awarding agency shall place restrictions on recipients that limit public access to the records of recipients that are pertinent to an award, except when the Federal awarding agency can demonstrate that such records shall be kept confidential and would have been exempted from disclosure pursuant to the Freedom of Information Act (5 U.S.C. 552) if the records had belonged to the Federal awarding agency.</P> <P>(g) Indirect cost rate proposals, cost allocations plans, etc. Paragraphs (g)(1) and (g)(2) of this section apply 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).</P> <P>(1) <E T="03">If submitted for negotiation.</E> If the recipient submits to the Federal awarding agency or the subrecipient submits to the recipient the proposal, plan, or other computation to form the basis for negotiation of the rate, then the 3-year retention period for its supporting records starts on the date of such submission.</P> <P>(2) <E T="03">If not submitted for negotiation.</E> If the recipient is not required to submit to the Federal awarding agency or the subrecipient is not required to submit to the recipient the proposal, plan, or other computation for negotiation purposes, then the 3-year retention period for the proposal, plan, or other computation and its supporting records starts at the end of the fiscal year (or other accounting period) covered by the proposal, plan, or other computation.</P> </SECTION> </SUBJGRP> <SUBJGRP> <HD SOURCE="HED">Termination and Enforcement</HD> <SECTION> <SECTNO>§ 19.60</SECTNO> <SUBJECT>Purpose of termination and enforcement.</SUBJECT> <P>Sections 19.61 and 19.62 set forth uniform suspension, termination and enforcement procedures.</P> </SECTION> <SECTION> <SECTNO>§ 19.61</SECTNO> <SUBJECT>Termination.</SUBJECT> <P>(a) Awards may be terminated in whole or in part only if the conditions in paragraph (a) (1), (2) or (3) of this section apply.</P> <P>(1) By the Federal awarding agency, if a recipient materially fails to comply with the terms and conditions of an award.</P> <P>(2) By the Federal awarding agency with the consent of the recipient, 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.</P> <P>(3) By the recipient upon sending to the Federal awarding agency written notification setting forth the reasons for such termination, the effective date, and, in the case of partial termination, the portion to be terminated. However, if the Federal awarding agency determines in the case of partial <PRTPAGE P="176"/>termination that the reduced or modified portion of the grant will not accomplish the purposes for which the grant was made, it may terminate the grant in its entirety under either paragraph (a) (1) or (2) of this section.</P> <P>(b) If costs are allowed under an award, the responsibilities of the recipient referred to in § 19.71(a), including those for property management as applicable, shall be considered in the termination of the award, and provision shall be made for continuing responsibilities of the recipient after termination, as appropriate.</P> </SECTION> <SECTION> <SECTNO>§ 19.62</SECTNO> <SUBJECT>Enforcement.</SUBJECT> <P>(a) Remedies for noncompliance. If a recipient materially fails to comply with the terms and conditions of an award, whether stated in a Federal statute, regulation, assurance, application, or notice of award, the Federal awarding agency may, in addition to imposing any of the special conditions outlined in § 19.14, take one or more of the following actions, as appropriate in the circumstances.</P> <P>(1) Temporarily withhold cash payments pending correction of the deficiency by the recipient or more severe enforcement action by the Federal awarding agency.</P> <P>(2) Disallow (that is, deny both use of funds and any applicable matching credit for) all or part of the cost of the activity or action not in compliance.</P> <P>(3) Wholly or partly suspend or terminate the current award.</P> <P>(4) Withhold further awards for the project or program.</P> <P>(5) Take other remedies that may be legally available.</P> <P>(b) Hearings and appeals. In taking an enforcement action, the awarding agency shall provide the recipient an opportunity for hearing, appeal, or other administrative proceeding to which the recipient is entitled under any statute or regulation applicable to the action involved.</P> <P>(c) Effects of suspension and termination. Costs of a recipient resulting from obligations incurred by the recipient 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 recipient costs during suspension or after termination which are necessary and not reasonably avoidable are allowable if the conditions in paragraph (c) (1) or (2) of this section apply.</P> <P>(1) The costs result from obligations which were properly incurred by the recipient before the effective date of suspension or termination, are not in anticipation of it, and in the case of a termination, are noncancellable.</P> <P>(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.</P> <P>(d) Relationship to debarment and suspension. The enforcement remedies identified in this section, including suspension and termination, do not preclude a recipient from being subject to debarment and suspension under E.O.s 12549 and 12689 and 49 CFR part 29 (see § 19.13).</P> </SECTION> </SUBJGRP> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart D—After-the-Award Requirements</HD> <SECTION> <SECTNO>§ 19.70</SECTNO> <SUBJECT>Purpose.</SUBJECT> <P>Sections 19.71 through 19.73 contain closeout procedures and other procedures for subsequent disallowances and adjustments.</P> </SECTION> <SECTION> <SECTNO>§ 19.71</SECTNO> <SUBJECT>Closeout procedures.</SUBJECT> <P>(a) Recipients shall submit, within 90 calendar days after the date of completion of the award, all financial, performance, and other reports as required by the terms and conditions of the award. The Federal awarding agency may approve extensions when requested by the recipient.</P> <P>(b) Unless the Federal awarding agency authorizes an extension, a recipient shall liquidate all obligations incurred under the award not later than 90 calendar days after the funding period or the date of completion as specified in the terms and conditions of the award or in agency implementing instructions.</P> <P>(c) The Federal awarding agency shall make prompt payments to a recipient for allowable reimbursable costs under the award being closed out.</P> <P>(d) The recipient shall promptly refund any balances of unobligated cash <PRTPAGE P="177"/>that the Federal awarding agency has advanced or paid and that is not authorized to be retained by the recipient for use in other projects. OMB Circular A-129 governs unreturned amounts that become delinquent debts.</P> <P>(e) When authorized by the terms and conditions of the award, the Federal awarding agency shall make a settlement for any upward or downward adjustments to the Federal share of costs after closeout reports are received.</P> <P>(f) The recipient shall account for any real and personal property acquired with Federal funds or received from the Federal Government in accordance with §§ 19.31 through 19.37.</P> <P>(g) In the event a final audit has not been performed prior to the closeout of an award, the Federal awarding agency shall retain the right to recover an appropriate amount after fully considering the recommendations on disallowed costs resulting from the final audit.</P> </SECTION> <SECTION> <SECTNO>§ 19.72</SECTNO> <SUBJECT>Subsequent adjustments and continuing responsibilities.</SUBJECT> <P>(a) The closeout of an award does not affect any of the following.</P> <P>(1) The right of the Federal awarding agency to disallow costs and recover funds on the basis of a later audit or other review.</P> <P>(2) The obligation of the recipient to return any funds due as a result of later refunds, corrections, or other transactions.</P> <P>(3) Audit requirements in § 19.26.</P> <P>(4) Property management requirements in §§ 19.31 through 19.37.</P> <P>(5) Records retention as required in § 19.53.</P> <P>(b) After closeout of an award, a relationship created under an award may be modified or ended in whole or in part with the consent of the Federal awarding agency and the recipient, provided the responsibilities of the recipient referred to in § 19.73(a), including those for property management as applicable, are considered and provisions made for continuing responsibilities of the recipient, as appropriate.</P> </SECTION> <SECTION> <SECTNO>§ 19.73</SECTNO> <SUBJECT>Collection of amounts due.</SUBJECT> <P>(a) Any funds paid to a recipient in excess of the amount to which the recipient is finally determined to be entitled under the terms and conditions of the award constitute a debt to the Federal Government. If not paid within a reasonable period after the demand for payment, the Federal awarding agency may reduce the debt by the provisions of paragraph (a) (1), (2) or (3) of this section.</P> <P>(1) Making an administrative offset against other requests for reimbursements.</P> <P>(2) Withholding advance payments otherwise due to the recipient.</P> <P>(3) Taking other action permitted by statute.</P> <P>(b) Except as otherwise provided by law, the Federal awarding agency shall charge interest on an overdue debt in accordance with 4 CFR chapter II, “Federal Claims Collection Standards.”</P> </SECTION> <APPENDIX> <EAR>Pt. 19, App. A</EAR> <HD SOURCE="HED">Appendix A to Part 19—Contract Provisions</HD> <P>All contracts, awarded by a recipient including small purchases, shall contain the following provisions as applicable:</P> <P>1. <E T="03">Equal Employment Opportunity</E>—All contracts shall contain a provision requiring compliance with E.O. 11246, “Equal Employment Opportunity,” as amended by E.O. 11375, “Amending Executive Order 11246 Relating to Equal Employment Opportunity,” and as supplemented by regulations at 41 CFR part 60, “Office of Federal Contract Compliance Programs, Equal Employment Opportunity, Department of Labor.”</P> <P>2. <E T="03">Copeland “Anti-Kickback” Act (18 U.S.C. 874 and 40 U.S.C. 276c)</E>—All contracts and subgrants in excess of $2,000 for construction or repair awarded by recipients and subrecipients shall include a provision for compliance with the Copeland “Anti-Kickback” Act (18 U.S.C. 874), as supplemented by Department of Labor regulations (29 CFR part 3, “Contractors and Subcontractors on Public Building or Public Work Financed in Whole or in part by Loans or Grants from the United States”). The Act provides that each contractor or subrecipient shall be prohibited from inducing, by any means, any person employed in the construction, completion, or repair of public work, to give up any part of the compensation to which he is otherwise entitled. The recipient shall report all suspected or reported violations to the Federal awarding agency.</P> <P>3. <E T="03">Davis-Bacon Act, as amended (40 U.S.C. 276a to a-7)</E>—When required by Federal program legislation, all construction contracts awarded by the recipients and subrecipients of more than $2000 shall include a provision for compliance with the Davis-Bacon Act (40 <PRTPAGE P="178"/>U.S.C. 276a to a(7) and as supplemented by Department of Labor regulations (29 CFR part 5, “Labor Standards Provisions Applicable to Contracts Governing Federally Financed and Assisted Construction”). Under this Act, contractors shall be required to pay wages to laborers and mechanics at a rate not less than the minimum wages specified in a wage determination made by the Secretary of Labor. In addition, contractors shall be required to pay wages not less than once a week. The recipient shall place a copy of the current prevailing wage determination issued by the Department of Labor in each solicitation and the award of a contract shall be conditioned upon the acceptance of the wage determination. The recipient shall report all suspected or reported violations to the Federal awarding agency.</P> <P>4. <E T="03">Contract Work Hours and Safety Standards Act (40 U.S.C. 327-333)</E>—Where applicable, all contracts awarded by recipients in excess of $2,000 for construction contracts and in excess of $2,500 for other contracts that involve the employment of mechanics or laborers shall include a provision for compliance with sections 102 and 107 of the Contract Work Hours and Safety Standards Act (40 U.S.C. 327-333), as supplemented by Department of Labor regulations (29 CFR part 5). Under section 102 of the Act, each contractor shall be required to compute the wages of every mechanic and laborer on the basis of a standard work week of 40 hours. Work in excess of the standard work week is permissible provided that the worker is compensated at a rate of not less than 1<FR>1/2</FR> times the basic rate of pay for all hours worked in excess of 40 hours in the work week. Section 107 of the Act is applicable to construction work and provides that no laborer or mechanic shall be required to work in surroundings or under working conditions which are unsanitary, hazardous or dangerous. These requirements do not apply to the purchases of supplies or materials or articles ordinarily available on the open market, or contracts for transportation or transmission of intelligence.</P> <P>5. <E T="03">Rights to Inventions Made Under a Contract or Agreement</E>—Contracts or agreements for the performance of experimental, developmental, or research work shall provide for the rights of the Federal Government and the recipient in any resulting invention in accordance with 37 CFR part 401, “Rights to Inventions Made by Nonprofit Organizations and Small Business Firms Under Government Grants, Contracts and Cooperative Agreements,” and any implementing regulations issued by the awarding agency.</P> <P>6. <E T="03">Clean Air Act (42 U.S.C. 7401 et seq.) and the Federal Water Pollution Control Act (33 U.S.C. 1251 et seq.), as amended</E>—Contracts and subgrants of amounts in excess of $100,000 shall contain a provision that requires the recipient to agree to comply with all applicable standards, orders or regulations issued pursuant to the Clean Air Act (42 U.S.C. 7401 et seq.) and the Federal Water Pollution Control Act as amended (33 U.S.C. 1251 et seq.). Violations shall be reported to the Federal awarding agency and the Regional Office of the Environmental Protection Agency (EPA).</P> <P>7. <E T="03">Byrd Anti-Lobbying Amendment (31 U.S.C. 1352)</E>—Contractors who apply or bid for an award of $100,000 or more shall file the certification required by 49 CFR part 20, “New Restrictions on Lobbying.” Each tier certifies to the tier above that it will not and has not used Federal appropriated funds to pay any person or organization for influencing or attempting to influence an officer or employee of any agency, a member of Congress, officer or employee of Congress, or an employee of a member of Congress in connection with obtaining any Federal contract, grant or any other award covered by 31 U.S.C. 1352. Each tier shall also disclose any lobbying with non-Federal funds that takes place in connection with obtaining any Federal award. Such disclosures are forwarded from tier to tier up to the recipient.</P> <P>8. <E T="03">Debarment and Suspension (E.O.s 12549 and 12689)</E>—No contract shall be made to parties listed on the General Services Administration's List of Parties Excluded from Federal Procurement or Nonprocurement Programs in accordance with E.O.s 12549 and 12689, “Debarment and Suspension” and 49 CFR part 29. This list contains the names of parties debarred, suspended, or otherwise excluded by agencies, and contractors declared ineligible under statutory or regulatory authority other than E.O. 12549. Contractors with awards that exceed the small purchase threshold shall provide the required certification regarding its exclusion status and that of its principal employees.</P> </APPENDIX> </SUBPART> </PART> <PART> <EAR>Pt. 20</EAR> <HD SOURCE="HED">PART 20—NEW RESTRICTIONS ON LOBBYING</HD> <CONTENTS> <SUBPART> <HD SOURCE="HED">Subpart A—General</HD> <SECHD>Sec.</SECHD> <SECTNO>20.100</SECTNO> <SUBJECT>Conditions on use of funds.</SUBJECT> <SECTNO>20.105</SECTNO> <SUBJECT>Definitions.</SUBJECT> <SECTNO>20.110</SECTNO> <SUBJECT>Certification and disclosure.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B-Activities by Own Employees</HD> <SECTNO>20.200</SECTNO> <SUBJECT>Agency and legislative liaison.</SUBJECT> <SECTNO>20.205</SECTNO> <SUBJECT>Professional and technical services.</SUBJECT> <SECTNO>20.210</SECTNO> <SUBJECT>Reporting.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—Activities by Other Than Own Employees</HD> <SECTNO>20.300</SECTNO> <SUBJECT>Professional and technical services.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart D—Penalties and Enforcement</HD> <SECTNO>20.400</SECTNO> <SUBJECT>Penalties.<PRTPAGE P="179"/> </SUBJECT> <SECTNO>20.405</SECTNO> <SUBJECT>Penalty procedures.</SUBJECT> <SECTNO>20.410</SECTNO> <SUBJECT>Enforcement.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart E—Exemptions</HD> <SECTNO>20.500</SECTNO> <SUBJECT>Secretary of Defense.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart F—Agency Reports</HD> <SECTNO>20.600</SECTNO> <SUBJECT>Semi-annual compilation.</SUBJECT> <SECTNO>20.605</SECTNO> <SUBJECT>Inspector General report.</SUBJECT> <APP>Appendix A to Part 20—Certification Regarding Lobbying</APP> <APP>Appendix B to Part 20—Disclosure Form to Report Lobbying</APP> </SUBPART> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>Sec. 319, Public Law 101-121 (31 U.S.C. 1352); 49 U.S.C. 322(a).</P> </AUTH> <CROSSREF> <HD SOURCE="HED">Cross Reference:</HD> <P>See also Office of Management and Budget notice published at 54 FR 52306, December 20, 1989.</P> </CROSSREF> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>55 FR 6737 and 6756, Feb. 26, 1990, unless otherwise noted.</P> </SOURCE> <SUBPART> <HD SOURCE="HED">Subpart A—General</HD> <SECTION> <SECTNO>§ 20.100</SECTNO> <SUBJECT>Conditions on use of funds.</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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 Member of Congress in connection with that loan insurance or guarantee.</P> </SECTION> <SECTION> <SECTNO>§ 20.105</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>For purposes of this part:</P> <P>(a) <E T="03">Agency,</E> 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).</P> <P>(b) <E T="03">Covered Federal action</E> means any of the following Federal actions:</P> <P>(1) The awarding of any Federal contract;</P> <P>(2) The making of any Federal grant;</P> <P>(3) The making of any Federal loan;</P> <P>(4) The entering into of any cooperative agreement; and,</P> <P>(5) The extension, continuation, renewal, amendment, or modification of any Federal contract, grant, loan, or cooperative agreement.</P> <FP>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.<PRTPAGE P="180"/> </FP> <P>(c) <E T="03">Federal contract</E> 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.</P> <P>(d) <E T="03">Federal cooperative agreement</E> means a cooperative agreement entered into by an agency.</P> <P>(e) <E T="03">Federal grant</E> 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.</P> <P>(f) <E T="03">Federal loan</E> means a loan made by an agency. The term does not include loan guarantee or loan insurance.</P> <P>(g) <E T="03">Indian tribe</E> and <E T="03">tribal organization</E> 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.</P> <P>(h) <E T="03">Influencing or attempting to influence</E> 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.</P> <P>(i) <E T="03">Loan guarantee</E> and <E T="03">loan insurance</E> means an agency's guarantee or insurance of a loan made by a person.</P> <P>(j) <E T="03">Local government</E> 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.</P> <P>(k) <E T="03">Officer or employee of an agency</E> includes the following individuals who are employed by an agency:</P> <P>(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;</P> <P>(2) A member of the uniformed services as defined in section 101(3), title 37, U.S. Code;</P> <P>(3) A special Government employee as defined in section 202, title 18, U.S. Code; and,</P> <P>(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.</P> <P>(l) <E T="03">Person</E> 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.</P> <P>(m) <E T="03">Reasonable compensation</E> means, with respect to a regularly employed officer or employee of any person, compensation that is consistent with the 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.</P> <P>(n) <E T="03">Reasonable payment</E> 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.</P> <P>(o) <E T="03">Recipient</E> 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> <P>(p) <E T="03">Regularly employed</E> 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 <PRTPAGE P="181"/>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.</P> <P>(q) <E T="03">State</E> 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.</P> </SECTION> <SECTION> <SECTNO>§ 20.110</SECTNO> <SUBJECT>Certification and disclosure.</SUBJECT> <P>(a) Each person shall file a certification, and a disclosure form, if required, with each submission that initiates agency consideration of such person for:</P> <P>(1) Award of a Federal contract, grant, or cooperative agreement exceeding $100,000; or</P> <P>(2) An award of a Federal loan or a commitment providing for the United States to insure or guarantee a loan exceeding $150,000.</P> <P>(b) Each person shall file a certification, and a disclosure form, if required, upon receipt by such person of:</P> <P>(1) A Federal contract, grant, or cooperative agreement exceeding $100,000; or</P> <P>(2) A Federal loan or a commitment providing for the United States to insure or guarantee a loan exceeding $150,000,</P> <FP>Unless such person previously filed a certification, and a disclosure form, if required, under paragraph (a) of this section.</FP> <P>(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:</P> <P>(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</P> <P>(2) A change in the person(s) or individual(s) influencing or attempting to influence a covered Federal action; or,</P> <P>(3) A change in the officer(s), employee(s), or Member(s) contacted to influence or attempt to influence a covered Federal action.</P> <P>(d) Any person who requests or receives from a person referred to in paragraphs (a) or (b) of this section:</P> <P>(1) A subcontract exceeding $100,000 at any tier under a Federal contract;</P> <P>(2) A subgrant, contract, or subcontract exceeding $100,000 at any tier under a Federal grant;</P> <P>(3) A contract or subcontract exceeding $100,000 at any tier under a Federal loan exceeding $150,000; or,</P> <P>(4) A contract or subcontract exceeding $100,000 at any tier under a Federal cooperative agreement,</P> <FP>Shall file a certification, and a disclosure form, if required, to the next tier above.</FP> <P>(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.</P> <P>(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.<PRTPAGE P="182"/> </P> <P>(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.</P> <P>(h) No reporting is required for an activity paid for with appropriated funds if that activity is allowable under either subpart B or C.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Activities by Own Employees</HD> <SECTION> <SECTNO>§ 20.200</SECTNO> <SUBJECT>Agency and legislative liaison.</SUBJECT> <P>(a) The prohibition on the use of appropriated funds, in § 20.100 (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.</P> <P>(b) For purposes of paragraph (a) of this section, providing any information specifically requested by an agency or Congress is allowable at any time.</P> <P>(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:</P> <P>(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,</P> <P>(2) Technical discussions and other activities regarding the application or adaptation of the person's products or services for an agency's use.</P> <P>(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:</P> <P>(1) Providing any information not specifically requested but necessary for an agency to make an informed decision about initiation of a covered Federal action;</P> <P>(2) Technical discussions regarding the preparation of an unsolicited proposal prior to its official submission; and,</P> <P>(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.</P> <P>(e) Only those activities expressly authorized by this section are allowable under this section.</P> </SECTION> <SECTION> <SECTNO>§ 20.205</SECTNO> <SUBJECT>Professional and technical services.</SUBJECT> <P>(a) The prohibition on the use of appropriated funds, in § 20.100 (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, 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.</P> <P>(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 <PRTPAGE P="183"/>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.</P> <P>(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.</P> <P>(d) Only those services expressly authorized by this section are allowable under this section.</P> </SECTION> <SECTION> <SECTNO>§ 20.210</SECTNO> <SUBJECT>Reporting.</SUBJECT> <P>No reporting is required with respect to payments of reasonable compensation made to regularly employed officers or employees of a person.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—Activities by Other Than Own Employees</HD> <SECTION> <SECTNO>§ 20.300</SECTNO> <SUBJECT>Professional and technical services.</SUBJECT> <P>(a) The prohibition on the use of appropriated funds, in § 20.100 (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.</P> <P>(b) The reporting requirements in § 20.110 (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.</P> <P>(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 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 <PRTPAGE P="184"/>or negotiation of a covered Federal action.</P> <P>(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.</P> <P>(e) Persons other than officers or employees of a person requesting or receiving a covered Federal action include consultants and trade associations.</P> <P>(f) Only those services expressly authorized by this section are allowable under this section.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart D—Penalties and Enforcement</HD> <SECTION> <SECTNO>§ 20.400</SECTNO> <SUBJECT>Penalties.</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> </SECTION> <SECTION> <SECTNO>§ 20.405</SECTNO> <SUBJECT>Penalty procedures.</SUBJECT> <P>Agencies shall impose and collect civil penalties pursuant to the provisions of the Program Fraud and Civil Remedies Act, 31 U.S.C. sections 3803 (except subsection (c)), 3804, 3805, 3806, 3807, 3808, and 3812, insofar as these provisions are not inconsistent with the requirements herein.</P> </SECTION> <SECTION> <SECTNO>§ 20.410</SECTNO> <SUBJECT>Enforcement.</SUBJECT> <P>The head of each agency shall take such actions as are necessary to ensure that the provisions herein are vigorously implemented and enforced in that agency.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart E—Exemptions</HD> <SECTION> <SECTNO>§ 20.500</SECTNO> <SUBJECT>Secretary of Defense.</SUBJECT> <P>(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.</P> <P>(b) The Department of Defense may issue supplemental regulations to implement paragraph (a) of this section.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart F—Agency Reports</HD> <SECTION> <SECTNO>§ 20.600</SECTNO> <SUBJECT>Semi-annual compilation.</SUBJECT> <P>(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 <PRTPAGE P="185"/>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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(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.</P> <P>(h) Agencies shall keep the originals of all disclosure reports in the official files of the agency.</P> </SECTION> <SECTION> <SECTNO>§ 20.605</SECTNO> <SUBJECT>Inspector General report.</SUBJECT> <P>(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.</P> <P>(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.</P> <P>(c) The annual report shall be submitted at the same time the agency submits its annual budget justifications to Congress.</P> <P>(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.</P> </SECTION> <APPENDIX> <EAR>Pt. 20, App. A</EAR> <HD SOURCE="HED">Appendix A to Part 20—Certification Regarding Lobbying</HD> <HD SOURCE="HD2">Certification for Contracts, Grants, Loans, and Cooperative Agreements</HD> <P>The undersigned certifies, to the best of his or her knowledge and belief, that:</P> <P>(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 <PRTPAGE P="186"/>extension, continuation, renewal, amendment, or modification of any Federal contract, grant, loan, or cooperative agreement.</P> <P>(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.</P> <P>(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.</P> <P>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.</P> <HD SOURCE="HD2">Statement for Loan Guarantees and Loan Insurance</HD> <P>The undersigned states, to the best of his or her knowledge and belief, that:</P> <P>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.</P> <P>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.</P> </APPENDIX> <APPENDIX> <PRTPAGE P="187"/> <EAR>Pt. 20, App. B</EAR> <WHED>Disclosure Form to Report Lobbying</WHED> <GPH DEEP="470" SPAN="2"> <GID>EC02FE91.097</GID> </GPH> <GPH DEEP="423" SPAN="2"> <PRTPAGE P="188"/> <GID>EC02FE91.098</GID> </GPH> <GPH DEEP="470" SPAN="2"> <PRTPAGE P="189"/> <GID>EC02FE91.099</GID> </GPH> </APPENDIX> </SUBPART> </PART> <PART> <PRTPAGE P="190"/> <EAR>Pt. 21</EAR> <HD SOURCE="HED">PART 21—NONDISCRIMINATION IN FEDERALLY-ASSISTED PROGRAMS OF THE DEPARTMENT OF TRANSPORTATION—EFFECTUATION OF TITLE VI OF THE CIVIL RIGHTS ACT OF 1964</HD> <CONTENTS> <SECHD>Sec.</SECHD> <SECTNO>21.1</SECTNO> <SUBJECT>Purpose.</SUBJECT> <SECTNO>21.3</SECTNO> <SUBJECT>Application of this part.</SUBJECT> <SECTNO>21.5</SECTNO> <SUBJECT>Discrimination prohibited.</SUBJECT> <SECTNO>21.7</SECTNO> <SUBJECT>Assurances required.</SUBJECT> <SECTNO>21.9</SECTNO> <SUBJECT>Compliance information.</SUBJECT> <SECTNO>21.11</SECTNO> <SUBJECT>Conduct of investigations.</SUBJECT> <SECTNO>21.13</SECTNO> <SUBJECT>Procedure for effecting compliance.</SUBJECT> <SECTNO>21.15</SECTNO> <SUBJECT>Hearings.</SUBJECT> <SECTNO>21.17</SECTNO> <SUBJECT>Decisions and notices.</SUBJECT> <SECTNO>21.19</SECTNO> <SUBJECT>Judicial review.</SUBJECT> <SECTNO>21.21</SECTNO> <SUBJECT>Effect on other regulations, forms, and instructions.</SUBJECT> <SECTNO>21.23</SECTNO> <SUBJECT>Definitions.</SUBJECT> <APP>Appendix A to Part 21—Activities to Which This Part Applies</APP> <APP>Appendix B to Part 21—Activities to Which This Part Applies When a Primary Objective of the Federal Financial Assistance is to Provide Employment</APP> <APP>Appendix C to Part 21—Application of Part 21 to Certain Federal Financial Assistance of the Department of Transportation</APP> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>Sec. 602, 42 U.S.C. 2000d-1.</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>35 FR 10080, June 18, 1970, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 21.1</SECTNO> <SUBJECT>Purpose.</SUBJECT> <P>The purpose of this part 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 grounds 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 Department of Transportation.</P> </SECTION> <SECTION> <SECTNO>§ 21.3</SECTNO> <SUBJECT>Application of this part.</SUBJECT> <P>(a) This part applies to any program for which Federal financial assistance is authorized under a law administered by the Department, including the federally assisted programs and activities listed in appendix A to this part. It also applies to money paid, property transferred, or other Federal financial assistance extended under any such program after the effective date of this part pursuant to an application approved before that effective date. This part does not apply to:</P> <P>(1) Any Federal financial assistance by way of insurance or guaranty contracts;</P> <P>(2) Money paid, property transferred, or other assistance extended under any such program before the effective date of this part, except where such assistance was subject to the title VI regulations of any agency whose responsibilities are now exercised by this Department;</P> <P>(3) Any assistance to any individual who is the ultimate beneficiary under any such program; or</P> <P>(4) Any employment practice, under any such program, of any employer, employment agency, or labor organization, except to the extent described in § 21.5(c).</P> <FP>The fact that a program or activity is not listed in appendix A to this part shall not mean, if title VI of the Act is otherwise applicable, that such program is not covered. Other programs under statutes now in force or hereinafter enacted may be added to appendix A to this part.</FP> <P>(b) In any program receiving Federal financial assistance in the form, or for the acquisition, of real property or an interest in real property, to the extent that rights to space on, over, or under any such property are included as part of the program receiving that assistance, the nondiscrimination requirement of this part shall extend to any facility located wholly or in part in that space.</P> </SECTION> <SECTION> <SECTNO>§ 21.5</SECTNO> <SUBJECT>Discrimination prohibited.</SUBJECT> <P>(a) <E T="03">General.</E> No person in the United States shall, on the grounds 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 to which this part applies.</P> <P>(b) Specific discriminatory actions prohibited:</P> <P>(1) A recipient under any program to which this part applies may not, directly or through contractual or other arrangements, on the grounds of race, color, or national origin.<PRTPAGE P="191"/> </P> <P>(i) Deny a person any service, financial aid, or other benefit provided under the program;</P> <P>(ii) Provide any service, financial aid, or other benefit to a person which is different, or is provided in a different manner, from that provided to others under the program;</P> <P>(iii) Subject a person to segregation or separate treatment in any matter related to his receipt of any service, financial aid, or other benefit under the program;</P> <P>(iv) Restrict a person 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;</P> <P>(v) Treat a person differently from others in determining whether he satisfies any admission, enrollment, quota, eligibility, membership, or other requirement or condition which persons must meet in order to be provided any service, financial aid, or other benefit provided under the program;</P> <P>(vi) Deny a person 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; or</P> <P>(vii) Deny a person the opportunity to participate as a member of a planning, advisory, or similar body which is an integral part of the program.</P> <P>(2) 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 person 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 persons 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 persons 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 with respect to individuals of a particular race, color, or national origin.</P> <P>(3) In determining the site or location of facilities, a recipient or applicant may not make selections with the purpose or effect of excluding persons from, denying them the benefits of, or subjecting them to discrimination under any program to which this regulation applies, on the grounds of race, color, or national origin; or with the purpose or effect of defeating or substantially impairing the accomplishment of the objectives of the Act or this part.</P> <P>(4) As used in this section the services, financial aid, or other benefits provided under a program receiving Federal financial assistance include any service, financial aid, or other benefit provided in or through a facility provided with the aid of Federal financial assistance.</P> <P>(5) The enumeration of specific forms of prohibited discrimination in this paragraph does not limit the generality of the prohibition in paragraph (a) of this section.</P> <P>(6) Examples demonstrating the application of the provisions of this section to certain programs of the Department of Transportation are contained in appendix C of this part.</P> <P>(7) This part does not prohibit the consideration of race, color, or national origin if the purpose and effect are to remove or overcome the consequences of practices or impediments which have restricted the availability of, or participation in, the program or activity receiving Federal financial assistance, on the grounds of race, color, or national origin. Where prior discriminatory practice or usage tends, on the grounds of race, color, or national origin to exclude individuals from participation in, to deny them the benefits of, or to subject them to discrimination under any program or activity to which this part applies, the applicant or recipient must take affirmative action to remove or overcome the effects of the prior discriminatory practice or usage. Even in the absence of prior discriminatory practice or usage, a recipient in administering a program or activity to which this part applies, is expected to take affirmative action to assure that no person is excluded from participation in or denied the benefits of the program or activity on the grounds of race, color, or national origin.<PRTPAGE P="192"/> </P> <P>(c) Employment practices:</P> <P>(1) Where a primary objective of a program of Federal financial assistance to which this part applies is to provide employment, a recipient or other party subject to this part shall not, directly or through contractual or other arrangements, subject a person to discrimination on the ground of race, color, or national origin in its employment practices under such program (including recruitment or recruitment advertising, hiring, firing, upgrading, promotion, demotion, transfer, layoff, termination, rates of pay or other forms of compensation or benefits, selection for training or apprenticeship, use of facilities, and treatment of employees). Such recipient shall take affirmative action to insure that applicants are employed, and employees are treated during employment, without regard to their race, color, or national origin. The requirements applicable to construction employment under any such program shall be those specified in or pursuant to Part III of Executive Order 11246 or any Executive order which supersedes it.</P> <P>(2) Federal financial assistance to programs under laws funded or administered by the Department which have as a primary objective the providing of employment include those set forth in appendix B to this part.</P> <P>(3) Where a primary objective of the Federal financial assistance is not to provide employment, but discrimination on the grounds of race, color, or national origin in the employment practices of the recipient or other persons subject to the regulation tends, on the grounds of race, color, or national origin, to exclude individuals from participation in, to deny them the benefits of, or to subject them to discrimination under any program to which this regulation applies, the provisions of paragraph (c)(1) of this section shall apply to the employment practices of the recipient or other persons subject to the regulation, to the extent necessary to assure equality of opportunity to, and nondiscriminatory treatment of, beneficiaries.</P> <P>(d) A recipient may not make a selection of a site or location of a facility if the purpose of that selection, or its effect when made, is to exclude individuals from participation in, to deny them the benefits of, or to subject them to discrimination under any program or activity to which this rule applies, on the grounds of race, color, or national origin; or if the purpose is to, or its effect when made will, substantially impair the accomplishment of the objectives of this part.</P> <CITA>[35 FR 10080, June 18, 1970, as amended by Amdt. 72-2, 38 FR 17997, July 5, 1973]</CITA> </SECTION> <SECTION> <SECTNO>§ 21.7</SECTNO> <SUBJECT>Assurances required.</SUBJECT> <P>(a) <E T="03">General.</E> (1) Every application for Federal financial assistance to carry out a program to which this part applies, except a program to which paragraph (b) of this section 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 part. Every program of Federal financial assistance shall require the submission of such an assurance. In the case where the Federal financial assistance is to provide or is in the form of personal property, or real property or interest therein 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 property is used for a purpose for which the Federal financial assistance is extended or for another purpose involving the provision of similar services or benefits, or for as long as the recipient retains ownership or possession of the property, whichever is longer. In all other cases the assurance shall obligate the recipient for the period during which Federal financial assistance is extended to the program. In the case where the assistance is sought 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. The Secretary shall specify the form of the foregoing assurances for each program, and the extent to which like assurances will be required <PRTPAGE P="193"/>of subgrantees, 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.</P> <P>(2) In the case where Federal financial assistance is provided in the form of a transfer of real property, structures, or improvements thereon, or interest therein, from the Federal Government, the instrument effecting or recording the transfer shall contain a covenant running with the land assuring nondiscrimination for the period during which the real property is used for a purpose for which the Federal financial assistance is extended or for another purpose involving the provision of similar services or benefits. Where no transfer of property or interest therein from the Federal Government is involved, but property is acquired or improved under a program of Federal financial assistance, the recipient shall agree to include such covenant in any subsequent transfer of such property. When the property is obtained from the Federal Government, such covenant may also include a condition coupled with a right to be reserved by the Department to revert title to the property in the event of a breach of the covenant where, in the discretion of the Secretary, such a condition and right of reverter is appropriate to the program under which the real property is obtained and to the nature of the grant and the grantee. In such event if a transferee of real property proposes to mortgage or otherwise encumber the real property as security for financing construction of new, or improvement of existing, facilities on such property for the purposes for which the property was transferred, the Secretary may agree, upon request of the transferee and if necessary to accomplish such financing, and upon such conditions as he deems appropriate, to subordinate such right of reversion to the lien of such mortgage or other encumbrance.</P> <P>(b) <E T="03">Continuing State programs.</E> Every application by a State or a State agency to carry out a program involving continuing Federal financial assistance to which this part applies (including the programs listed in appendix A to this part) shall as a condition to its approval and the extension of any Federal financial assistance pursuant to the application: (1) Contain or be accompanied by a statement that the program is (or, in the case of a new program, will be) conducted in compliance with all requirements imposed by or pursuant to this part, and (2) provide or be accompanied by provision for such methods of administration for the program as are found by the Secretary to give reasonable guarantee that the applicant and all recipients of Federal financial assistance under such program will comply with all requirements imposed by or pursuant to this part.</P> </SECTION> <SECTION> <SECTNO>§ 21.9</SECTNO> <SUBJECT>Compliance information.</SUBJECT> <P>(a) <E T="03">Cooperation and assistance.</E> The Secretary shall to the fullest extent practicable seek the cooperation of recipients in obtaining compliance with this part and shall provide assistance and guidance to recipients to help them comply voluntarily with this part.</P> <P>(b) <E T="03">Compliance reports.</E> Each recipient shall keep such records and submit to the Secretary timely, complete, and accurate compliance reports at such times, and in such form and containing such information, as the Secretary may determine to be necessary to enable him to ascertain whether the recipient has complied or is complying with this part. 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 part. In general recipients should have available for the Secretary racial and ethnic data showing the extent to which members of minority groups are beneficiaries of programs receiving Federal financial assistance.</P> <P>(c) <E T="03">Access to sources of information.</E> Each recipient shall permit access by the Secretary during normal business <PRTPAGE P="194"/>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 part. 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 fails or refuses 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.</P> <P>(d) <E T="03">Information to beneficiaries and participants.</E> Each recipient shall make available to participants, beneficiaries, and other interested persons such information regarding the provisions of this part 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 Secretary finds necessary to apprise such persons of the protections against discrimination assured them by the Act and this part.</P> <CITA>[35 FR 10080, June 18, 1970, as amended by Amdt. 72-2, 38 FR 17997, July 5, 1973]</CITA> </SECTION> <SECTION> <SECTNO>§ 21.11</SECTNO> <SUBJECT>Conduct of investigations.</SUBJECT> <P>(a) <E T="03">Periodic compliance reviews.</E> The Secretary shall from time to time review the practices of recipients to determine whether they are complying with this part.</P> <P>(b) <E T="03">Complaints.</E> Any person who believes himself or any specific class of persons to be subjected to discrimination prohibited by this part may by himself or by a representative file with the Secretary a written complaint. A complaint must be filed not later than 180 days after the date of the alleged discrimination, unless the time for filing is extended by the Secretary.</P> <P>(c) <E T="03">Investigations.</E> The Secretary will make a prompt investigation whenever a compliance review, report, complaint, or any other information indicates a possible failure to comply with this part. The investigation will include, where appropriate, a review of the pertinent practices and policies of the recipient, the circumstances under which the possible noncompliance with this part occurred, and other factors relevant to a determination as to whether the recipient has failed to comply with this part.</P> <P>(d) <E T="03">Resolution of matters.</E> (1) If an investigation pursuant to paragraph (c) of this section indicates a failure to comply with this part, the Secretary 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 § 21.13.</P> <P>(2) If an investigation does not warrant action pursuant to paragraph (d)(1) of this section the Secretary will so inform the recipient and the complainant, if any, in writing.</P> <P>(e) <E T="03">Intimidatory or retaliatory acts prohibited.</E> 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 part, or because he has made a complaint, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this part. The identity of complainants shall be kept confidential except to the extent necessary to carry out the purposes of this part, including the conduct of any investigation, hearing, or judicial proceeding arising thereunder.</P> <CITA>[35 FR 10080, June 18, 1970, as amended by Amdt. 72-2, 38 FR 17997, July 5, 1973]</CITA> </SECTION> <SECTION> <SECTNO>§ 21.13</SECTNO> <SUBJECT>Procedure for effecting compliance.</SUBJECT> <P>(a) <E T="03">General.</E> If there appears to be a failure or threatened failure to comply with this part, and if the noncompliance or threatened noncompliance cannot be corrected by informal means, compliance with this part 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, <PRTPAGE P="195"/>and (2) any applicable proceeding under State or local law.</P> <P>(b) <E T="03">Noncompliance with § 21.7.</E> If an applicant fails or refuses to furnish an assurance required under § 21.7 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 Department shall not be required to provide assistance in such a case during the pendency of the administrative proceedings under such paragraph. However, subject to § 21.21, the Department shall continue assistance during the pendency of such proceedings where such assistance is due and payable pursuant to an application approved prior to the effective date of this part.</P> <P>(c) <E T="03">Termination of or refusal to grant or to continue Federal financial assistance.</E> No order suspending, terminating, or refusing to grant or continue Federal financial assistance shall become effective until:</P> <P>(1) The Secretary has advised the applicant or recipient of his failure to comply and has determined that compliance cannot be secured by voluntary means;</P> <P>(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 part;</P> <P>(3) The action has been approved by the Secretary pursuant to § 21.17(e); and</P> <P>(4) The expiration of 30 days after the Secretary 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.</P> <FP>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.</FP> <P>(d) <E T="03">Other means authorized by law.</E> No action to effect compliance with title VI of the Act by any other means authorized by law shall be taken by this Department until:</P> <P>(1) The Secretary has determined that compliance cannot be secured by voluntary means;</P> <P>(2) The recipient or other person has been notified of its failure to comply and of the action to be taken to effect compliance; and</P> <P>(3) 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.</P> </SECTION> <SECTION> <SECTNO>§ 21.15</SECTNO> <SUBJECT>Hearings.</SUBJECT> <P>(a) <E T="03">Opportunity for hearing.</E> Whenever an opportunity for a hearing is required by § 21.13(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 Secretary 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 paragraph 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 § 21.13(c) and consent to the making of a decision on the basis of such information as is available.</P> <P>(b) <E T="03">Time and place of hearing.</E> Hearings shall be held at the offices of the Department in Washington, D.C., at a <PRTPAGE P="196"/>time fixed by the Secretary unless he determines that the convenience of the applicant or recipient or of the Department requires that another place be selected. Hearings shall be held before the Secretary, or at his discretion, before a hearing examiner appointed in accordance with section 3105 of title 5, United States Code, or detailed under section 3344 of title 5, United States Code.</P> <P>(c) <E T="03">Right to counsel.</E> In all proceedings under this section, the applicant or recipient and the Department shall have the right to be represented by counsel.</P> <P>(d) <E T="03">Procedures, evidence, and record.</E> (1) The hearing, decision, and any administrative review thereof shall be conducted in conformity with sections 554 through 557 of title 5, United States Code, 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 Department 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.</P> <P>(2) Technical rules of evidence do not apply to hearings conducted pursuant to this part, 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.</P> <P>(e) <E T="03">Consolidated or joint hearings.</E> In cases in which the same or related facts are asserted to constitute noncompliance with this part with respect to two or more programs to which this part applies, or noncompliance with this part and the regulations of one or more other Federal departments or agencies issued under title VI of the Act, the Secretary 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 or procedures not inconsistent with this part. Final decisions in such cases, insofar as this regulation is concerned, shall be made in accordance with § 21.17.</P> </SECTION> <SECTION> <SECTNO>§ 21.17</SECTNO> <SUBJECT>Decisions and notices.</SUBJECT> <P>(a) <E T="03">Procedure on decisions by hearing examiner.</E> If the hearing is held by a hearing examiner, the 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 Secretary 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 after the mailing of such notice of initial decision, file with the Secretary his exceptions to the initial decision, with his reasons therefor. In the absence of exceptions, the Secretary 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 notice of review, the Secretary 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, subject to paragraph (e) of this section, constitute the final decision of the Secretary.</P> <P>(b) <E T="03">Decisions on record or review by the Secretary.</E> Whenever a record is certified to the Secretary for decision or he reviews the decision of a hearing examiner pursuant to paragraph (a) of this section, or whenever the Secretary conducts the hearing, the applicant or <PRTPAGE P="197"/>recipient shall be given reasonable opportunity to file with him briefs or other written statements of its contentions, and a written copy of the final decision of the Secretary shall be sent to the applicant or recipient and to the complainant, if any.</P> <P>(c) <E T="03">Decisions on record where a hearing is waived.</E> Whenever a hearing is waived pursuant to § 21.15, a decision shall be made by the Secretary on the record and a written copy of such decision shall be sent to the applicant or recipient, and to the complainant, if any.</P> <P>(d) <E T="03">Rulings required.</E> Each decision of a hearing examiner or the Secretary 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 part with which it is found that the applicant or recipient has failed to comply.</P> <P>(e) <E T="03">Approval by Secretary.</E> Any final decision by an official of the Department, other than the Secretary personally, 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 part or the Act, shall promptly be transmitted to the Secretary personally, who may approve such decision, may vacate it, or remit or mitigate any sanction imposed.</P> <P>(f) <E T="03">Content of orders.</E> 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 part, including provisions designed to assure that no Federal financial assistance will thereafter be extended under such programs 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 part, or to have otherwise failed to comply with this part, unless and until it corrects its noncompliance and satisfies the Secretary that it will fully comply with this part.</P> <P>(g) <E T="03">Post termination proceedings.</E> (1) An applicant or recipient adversely affected by an order issued under paragraph (f) of this section shall be restored to full eligibility to receive Federal financial assistance if it satisfies the terms and conditions of that order for such eligibility or if it brings itself into compliance with this part and provides reasonable assurance that it will fully comply with this part.</P> <P>(2) Any applicant or recipient adversely affected by an order entered pursuant to paragraph (f) of this section may at any time request the Secretary to restore fully its eligibility to receive Federal financial assistance. Any such request shall be supported by information showing that the applicant or recipient has met the requirements of paragraph (g)(1) of this section. If the Secretary determines that those requirements have been satisfied, he shall restore such eligibility.</P> <P>(3) If the Secretary denies any such request, the applicant or recipient may submit a request for a hearing in writing, specifying who it believes such official to have been in error. It shall thereupon be given an expeditious hearing, with a decision on the record in accordance with rules or procedures issued by the Secretary. The applicant or recipient will be restored to such eligibility if it proves at such a hearing that it satisfied the requirements of paragraph (g)(1) of this section.</P> <FP>While proceedings under this paragraph are pending, the sanctions imposed by the order issued under paragraph (f) of this section shall remain in effect.</FP> </SECTION> <SECTION> <SECTNO>§ 21.19</SECTNO> <SUBJECT>Judicial review.</SUBJECT> <P>Action taken pursuant to section 602 of the Act is subject to judicial review as provided in section 603 of the Act.</P> </SECTION> <SECTION> <SECTNO>§ 21.21</SECTNO> <SUBJECT>Effect on other regulations, forms, and instructions.</SUBJECT> <P>(a) <E T="03">Effect on other regulations.</E> All regulations, orders, or like directions issued before the effective date of this part by any officer of the Department which impose requirements designed to prohibit any discrimination against individuals on the grounds of race, color, or national origin under any program to which this part applies, and which authorize the suspension or termination of or refusal to grant or to continue Federal financial assistance to <PRTPAGE P="198"/>any applicant for a 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 part, except that nothing in this part may be considered to relieve any person of any obligation assumed or imposed under any such superseded regulation, order, instruction, or like direction before the effective date of this part. Nothing in this part, however, supersedes any of the following (including future amendments thereof): (1) Executive Order 11246 (3 CFR, 1965 Supp., p. 167) and regulations issued thereunder or (2) any other orders, regulations, or instructions, insofar as such orders, regulations, or instructions prohibit discrimination on the ground of race, color, or national origin in any program or situation to which this part is inapplicable, or prohibit discrimination on any other ground.</P> <P>(b) <E T="03">Forms and instructions.</E> The Secretary shall issue and promptly make available to all interested persons forms and detailed instructions and procedures for effectuating this part as applied to programs to which this part applies and for which he is responsible.</P> <P>(c) <E T="03">Supervision and coordination.</E> The Secretary may from time to time assign to officials of the Department, or 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 part (other than responsibility for final decision as provided in § 21.17), including the achievement of effective coordination and maximum uniformity within the Department and within the Executive Branch of the Government in the application of title VI and this part to similar programs and in similar situations. Any action taken, determination made or requirement imposed by an official of another department or agency acting pursuant to an assignment of responsibility under this paragraph shall have the same effect as though such action had been taken by the Secretary of this Department.</P> </SECTION> <SECTION> <SECTNO>§ 21.23</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P>Unless the context requires otherwise, as used in this part:</P> <P>(a) <E T="03">Applicant</E> means a person who submits an application, request, or plan required to be approved by the Secretary, or by a primary recipient, as a condition to eligibility for Federal financial assistance, and “application” means such an application, request, or plan.</P> <P>(b) <E T="03">Facility</E> includes all or any part of structures, 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.</P> <P>(c) <E T="03">Federal financial assistance</E> includes:</P> <P>(1) Grants and loans of Federal funds;</P> <P>(2) The grant or donation of Federal property and interests in property;</P> <P>(3) The detail of Federal personnel;</P> <P>(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</P> <P>(5) Any Federal agreement, arrangement, or other contract which has as one of its purposes the provision of assistance.</P> <P>(d) <E T="03">Primary recipient</E> means any recipient that is authorized or required to extend Federal financial assistance to another recipient for the purpose of carrying out a program.</P> <P>(e) <E T="03">Program</E> 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), or for the provision of facilities for furnishing services, financial aid or other benefits to individuals. The services, financial aid, or <PRTPAGE P="199"/>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 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.</P> <P>(f) <E T="03">Recipient</E> may mean any State, territory, possession, the District of Columbia, or Puerto Rico, or any political subdivision thereof, or instrumentality thereof, any public or private agency, institution, or organization, or other entity, or any individual, in any State, territory, possession, the District of Columbia, or Puerto Rico, to whom Federal financial assistance is extended, directly or through another recipient, for any program, including any successor, assignee, or transferee thereof, but such term does not include any ultimate beneficiary under any such program.</P> <P>(g) <E T="03">Secretary</E> means the Secretary of Transportation or, except in § 21.17 (e), any person to whom he has delegated his authority in the matter concerned.</P> </SECTION> <APPENDIX> <EAR>Pt. 21, App. A</EAR> <HD SOURCE="HED">Appendix A to Part 21—Activities to which This Part Applies</HD> <P>1. Use of grants made in connection with Federal-aid highway systems (23 U.S.C. 101 <E T="03">et seq.</E>).</P> <P>2. Use of grants made in connection with the Highway Safety Act of 1966 (23 U.S.C. 401 <E T="03">et seq.</E>).</P> <P>3. Use of grants in connection with the National Traffic and Motor Vehicle Safety Act of 1966 (15 U.S.C. 1391-1409, 1421-1425).</P> <P>4. Lease of real property and the grant of permits, licenses, easements and rights-of-way covering real property under control of the Coast Guard (14 U.S.C. 93 (n) and <E T="03">(o)</E>).</P> <P>5. Utilization of Coast Guard personnel and facilities by any State, territory, possession, or political subdivision thereof (14 U.S.C. 141(a)).</P> <P>6. Use of Coast Guard personnel for duty in connection with maritime instruction and training by the States, territories, and Puerto Rico (14 U.S.C. 148).</P> <P>7. Use of obsolete and other Coast Guard material by sea scout service of Boy Scouts of America, any incorporated unit of the Coast Guard auxiliary, and public body or private organization not organized for profit (14 U.S.C. 641(a)).</P> <P>8. U.S. Coast Guard Auxiliary Program (14 U.S.C. 821-832).</P> <P>9. Use of grants for the support of basic scientific research by nonprofit institutions of higher education and nonprofit organizations whose primary purpose is conduct of scientific research (42 U.S.C. 1891).</P> <P>10. Use of grants made in connection with the Federal-aid Airport Program (secs. 1-15 and 17-20 of the Federal Airport Act, 49 U.S.C. 1101-1114, 1116-1120).</P> <P>11. Use of U.S. land acquired for public airports under:</P> <P>a. Section 16 of the Federal Airport Act, 49 U.S.C. 1115; and</P> <P>b. Surplus Property Act (sec. 13(g) of the Surplus Property Act of 1944, 50 U.S.C. App. 1622(g), and sec. 3 of the Act of Oct. 1, 1949, 50 U.S.C. App. 1622b).</P> <P>12. Activities carried out in connection with the Aviation Education Program of the Federal Aviation Administration under sections 305, 311, and 313(a) of the Federal Aviation Act of 1958, as amended (49 U.S.C. 1346, 1352, and 1354(a)).</P> <P>13. Use of grants and loans made in connection with Urban Mass Transportation Capital Facilities Grant and Loan Program—Urban Mass Transportation Act of 1964, as amended (49 U.S.C. 1602).</P> <P>14. Use of grants made in connection with Urban Mass Transportation Research and Demonstration Grant Program—Urban Mass Transportation Act of 1964, as amended (49 U.S.C. 1605).</P> <P>15. Use of grants made in connection with Urban Mass Transportation Technical Studies Grant Program—Urban Mass Transportation Act of 1964, as amended (49 U.S.C. 1607a).</P> <P>16. Use of grants made in connection with Urban Mass Transportation Managerial Training Grant Program—Urban Mass Transportation Act of 1964, as amended (49 U.S.C. 1607b).</P> <P>17. Use of grants made in connection with Urban Mass Transportation Grants for Research and Training Programs in Institutions of Higher Learning—Urban Mass Transportation Act of 1964, as amended (49 U.S.C. 1607c).</P> <P>18. Use of grants made in connection with the High Speed Ground Transportation Act, as amended (49 U.S.C. 631-642).</P> </APPENDIX> <APPENDIX> <PRTPAGE P="200"/> <EAR>Pt. 21, App. B</EAR> <HD SOURCE="HED">Appendix B to Part 21—Activities to Which This Part Applies When a Primary Objective of the Federal Financial Assistance is to Provide Employment</HD> <P>1. Appalachia Regional Development Act of 1965 (40 U.S.C. App. 1 <E T="03">et seq.</E>).</P> </APPENDIX> <APPENDIX> <EAR>Pt. 21, App. C</EAR> <HD SOURCE="HED">Appendix C to Part 21—Application of Part 21 to Certain Federal Financial Assistance of the Department of Transportation</HD> <HD SOURCE="HD1">Nondiscrimination on Federally Assisted Projects</HD> <P>(a) <E T="03">Examples.</E> The following examples, without being exhaustive, illustrate the application of the nondiscrimination provisions of this part on projects receiving Federal financial assistance under the programs of certain Department of Transportation operating administrations:</P> <P>(1) <E T="03">Federal Aviation Administration.</E> (i) The airport sponsor or any of his lessees, concessionaires, or contractors may not differentiate between members of the public because of race, color, or national origin in furnishing, or admitting to, waiting rooms, passenger holding areas, aircraft tiedown areas, restaurant facilities, restrooms, or facilities operated under the compatible land use concept.</P> <P>(ii) The airport sponsor and any of his lessees, concessionaires, or contractors must offer to all members of the public the same degree and type of service without regard to race, color, or national origin. This rule applies to fixed base operators, restaurants, snack bars, gift shops, ticket counters, baggage handlers, car rental agencies, limousines and taxis franchised by the airport sponsor, insurance underwriters, and other businesses catering to the public at the airport.</P> <P>(iii) An aircraft operator may not be required to park his aircraft at a location that is less protected, or less accessible from the terminal facilities, than locations offered to others, because of his race, color, or national origin.</P> <P>(iv) The pilot of an aircraft may not be required to help more extensively in fueling operations, and may not be offered less incidental service (such as windshield wiping), than other pilots, because of his race, color, or national origin.</P> <P>(v) No pilot or crewmember eligible for access to a pilot's lounge or to unofficial communication facilities such as a UNICOM frequency may be restricted in that access because of his race, color, or national origin.</P> <P>(vi) Access to facilities maintained at the airport by air carriers or commercial operators for holders of first-class transportation tickets or frequent users of the carrier's or operator's services may not be restricted on the basis of race, color, or national origin.</P> <P>(vii) Passengers and crewmembers seeking ground transportation from the airport may not be assigned to different vehicles, or delayed or embarrassed in assignment to vehicles, by the airport sponsor or his lessees, concessionaires, or contractors, because of race, color, or national origin.</P> <P>(viii) Where there are two or more sites having equal potential to serve the aeronautical needs of the area, the airport sponsor shall select the site least likely to adversely affect existing communities. Such site selection shall not be made on the basis of race, color, or national origin.</P> <P>(ix) Employment at obligated airports, including employment by tenants and concessionaires shall be available to all regardless of race, creed, color, sex, or national origin. The sponsor shall coordinate his airport plan with his local transit authority and the Urban Mass Transportation Administration to assure public transportation, convenient to the disadvantaged areas of nearby communities to enhance employment opportunities for the disadvantaged and minority population.</P> <P>(x) The sponsor shall assure that the minority business community in his area is advised of the opportunities offered by airport concessions, and that bids are solicited from such qualified minority firms, and awards made without regard to race, color, or national origin.</P> <P>(2) <E T="03">Federal Highway Administration.</E> (i) The State, acting through its highway department, may not discriminate in its selection and retention of contractors, including without limitation, those whose services are retained for, or incidental to, construction, planning, research, highway safety, engineering, property management, and fee contracts and other commitments with person for services and expenses incidental to the acquisition of right-of-way.</P> <P>(ii) The State may not discriminate against eligible persons in making relocation payments and in providing relocation advisory assistance where relocation is necessitated by highway right-of-way acquisitions.</P> <P>(iii) Federal-aid contractors may not discriminate in their selection and retention of first-tier subcontractors, and first-tier subcontractors may not discriminate in their selection and retention of second-tier subcontractors, who participate in Federal-aid highway construction, acquisition of right-of-way and related projects, including those who supply materials and lease equipment.</P> <P>(iv) The State may not discriminate against the traveling public and business users of the federally assisted highway in their access to and use of the facilities and services provided for public accommodations (such as eating, sleeping, rest, recreation, <PRTPAGE P="201"/>and vehicle servicing) constructed on, over or under the right-of-way of such highways.</P> <P>(v) Neither the State, any other persons subject to this part, nor its contractors and subcontractors may discriminate in their employment practices in connection with highway construction projects or other projects assisted by the Federal Highway Administration.</P> <P>(vi) The State shall not locate or design a highway in such a manner as to require, on the basis of race, color, or national origin, the relocation of any persons.</P> <P>(vii) The State shall not locate, design, or construct a highway in such a manner as to deny reasonable access to, and use thereof, to any persons on the basis of race, color, or national origin.</P> <P>(3) <E T="03">Urban Mass Transportation Administration.</E> (i) Any person who is, or seeks to be, a patron of any public vehicle which is operated as a part of, or in conjunction with, a project shall be given the same access, seating, and other treatment with regard to the use of such vehicle as other persons without regard to their race, color, or national origin.</P> <P>(ii) No person who is, or seeks to be, an employee of the project sponsor or lessees, concessionaires, contractors, licensees, or any organization furnishing public transportation service as a part of, or in conjunction with, the project shall be treated less favorably than any other employee or applicant with regard to hiring, dismissal, advancement, wages, or any other conditions and benefits of employment, on the basis of race, color, or national origin.</P> <P>(iii) No person or group of persons shall be discriminated against with regard to the routing, scheduling, or quality of service of transportation service furnished as a part of the project on the basis of race, color, or national origin. Frequency of service, age and quality of vehicles assigned to routes, quality of stations serving different routes, and location of routes may not be determined on the basis of race, color, or national origin.</P> <P>(iv) The location of projects requiring land acquisition and the displacement of persons from their residences and businesses may not be determined on the basis of race, color, or national origin.</P> <P>(b) <E T="03">Obligations of the airport operator—</E> (1) <E T="03">Tenants, contractors, and concessionaires.</E> Each airport operator shall require each tenant, contractor, and concessionaire who provides any activity, service, or facility at the airport under lease, contract with, or franchise from the airport, to covenant in a form specified by the Administrator, Federal Aviation Administration, that he will comply with the nondiscrimination requirements of this part.</P> <P>(2) <E T="03">Notification of beneficiaries.</E> The airport operator shall: (i) Make a copy of this part available at his office for inspection during normal working hours by any person asking for it, and (ii) conspicuously display a sign, or signs, furnished by the FAA, in the main public area or areas of the airport, stating that discrimination based on race, color, or national origin is prohibited on the airport.</P> <P>(3) <E T="03">Reports.</E> Each airport owner subject to this part shall, within 15 days after he receives it, forward to the Area Manager of the FAA Area in which the airport is located a copy of each written complaint charging discrimination because of race, color, or national origin by any person subject to this part, together with a statement describing all actions taken to resolve the matter, and the results thereof. Each airport operator shall submit to the area manager of the FAA area in which the airport is located a report for the preceding year on the date and in a form prescribed by the Federal Aviation Administrator.</P> <CITA>[35 FR 10080, June 18, 1970, as amended by Amdt. 21-1, 38 FR 5875, Mar. 5, 1973; Amdt. 21-3, 40 FR 14318, Mar. 31, 1975]</CITA> </APPENDIX> </PART> <PART> <EAR>Pt. 23</EAR> <HD SOURCE="HED">PART 23—PARTICIPATION BY DISADVANTAGED BUSINESS ENTERPRISE IN AIRPORT CONCESSIONS</HD> <CONTENTS> <SUBPART> <RESERVED>Subparts A-E [Reserved]</RESERVED> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart F—Implementation of Section 511(a)(17) of the Airport and Airway Improvement Act of 1982, as Amended</HD> <SECHD>Sec.</SECHD> <SECTNO>23.89</SECTNO> <SUBJECT>Definitions.</SUBJECT> <SECTNO>23.91</SECTNO> <SUBJECT>Applicability.</SUBJECT> <SECTNO>23.93</SECTNO> <SUBJECT>Requirements for airport sponsors.</SUBJECT> <SECTNO>23.95</SECTNO> <SUBJECT>Elements of Disadvantaged Business Enterprise (DBE) concession plan.</SUBJECT> <SECTNO>23.97</SECTNO> <SUBJECT>Appeals of certification denials.</SUBJECT> <SECTNO>23.99</SECTNO> <SUBJECT>Rationale for basing overall goals on the number of concession agreements.</SUBJECT> <SECTNO>23.101</SECTNO> <SUBJECT>Information required when none of the overall annual goals is 10 percent or more.</SUBJECT> <SECTNO>23.103</SECTNO> <SUBJECT>Obligations of concessionaires and competitors.</SUBJECT> <SECTNO>23.105</SECTNO> <SUBJECT>Privately-owned terminal buildings.</SUBJECT> <SECTNO>23.107</SECTNO> <SUBJECT>Prohibition on long-term, exclusive concession agreements.</SUBJECT> <SECTNO>23.109</SECTNO> <SUBJECT>Compliance procedures.</SUBJECT> <APP>Appendix A to Subpart F—Size Standards for Airport Concessionaires</APP> <APP>Schedule A—Information for Determining Minority Business Enterprise Eligibility</APP> <APP>Schedule B—Information for Determining Joint Venture Eligibility</APP> </SUBPART> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>42 U.S.C. 200d <E T="03">et seq.</E>; 49 U.S.C. 47107 and 47123; Executive Order 12138, 3 CFR, 1979 Comp., p. 393.</P> </AUTH> <SOURCE> <PRTPAGE P="202"/> <HD SOURCE="HED">Source:</HD> <P>45 FR 21184, Mar. 31, 1980, unless otherwise noted.</P> </SOURCE> <SUBPART> <RESERVED>Subparts A-E [Reserved]</RESERVED> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart F—Implementation of Section 511(a)(17) of the Airport and Airway Improvement Act of 1982, as Amended</HD> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>Amdt. 1, 57 FR 18410, Apr. 30, 1992, unless otherwise noted.</P> </SOURCE> <SECTION> <SECTNO>§ 23.89</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P> <E T="03">Affiliation</E> has the same meaning the term has in regulations of the Small Business Administration, 13 CFR part 121. Except as otherwise provided in 13 CFR part 121, concerns are affiliates of each other when, either directly or indirectly</P> <P>(a) One concern controls or has the power to control the other, or</P> <P>(b) A third party or parties controls or has the power to control both, or</P> <P>(c) An “identity of interest” between or among parties exists such that affiliation may be found.</P> <P>In determining whether affiliation exists, consideration shall be given to all appropriate factors, including common ownership, common management, and contractual relationships.</P> <P> <E T="03">Concession</E> means a for-profit business enterprise, located on an airport subject to this subpart, that is engaged in the sale of consumer goods or services to the public under an agreement with the sponsor, another concessionaire, or the owner of a terminal, if other than the sponsor. Businesses which conduct an aeronautical activity are not considered concessionaires for purposes of this subpart. Aeronautical activities include scheduled and nonscheduled air carriers, air taxis, air charters, and air couriers, in their normal passenger or freightcarrying capacities; fixed base operators, flight schools; and sky-diving, parachute-jumping, flying guide services, and helicopter or other air tours.</P> <P>(a) Appendix A to this subpart contains a listing of the types of businesses that are frequently operated as concessions.</P> <P>(b) Examples of entities that do not meet the definition of a concession include suppliers, flight kitchens and in-flight caterers servicing air carriers, government agencies, industrial plants, farm leases, individuals leasing hangar space, custodial and security contracts, individual taxis with permits, telephone and electric utilities, skycap services under contract with an air carrier, and management contracts.</P> <P>(c) Concessions may be operated under the following types of agreements:</P> <P>(1) Leases.</P> <P>(2) Subleases.</P> <P>(3) Permits.</P> <P>(4) Contracts.</P> <P>(5) Other instruments or arrangements.</P> <P> <E T="03">Concessionaire</E> means one who operates a concession.</P> <P> <E T="03">Disadvantaged business</E> shall have the same meaning as set forth in 49 CFR part 26, except it shall be a small business concern, as defined in this subpart, not as defined in 49 CFR part 26.</P> <P> <E T="03">Material amendment</E> means a substantial change to the basic rights or obligations of the parties to a concession agreement. Examples of material amendments include an extension to the term not provided for in the original agreement or a substantial increase in the scope, of the concession privilege. Examples of nonmaterial amendments include a change in the name of the concessionaire or a change to the payment due dates.</P> <P> <E T="03">Primary airport</E> means a commercial service airport which is determined by the Secretary to have more than 10,000 passengers enplaned annually.</P> <P> <E T="03">Small business concern</E> means a firm, including all its domestic and foreign affiliates, that qualifies under the applicable size standard set forth in appendix A to this subpart. In making a size determination, all affiliates, regardless of whether organized for profit, must be included. A firm qualifying under this definition that exceeds the size standard after entering a concession agreement, but that otherwise remains eligible, may continue to be counted as DBE participation until the current agreement, including the exercise of options, expires.</P> <P>(a) The Secretary may periodically adjust the size standards in appendix A to this subpart for inflation.<PRTPAGE P="203"/> </P> <P>(b) A firm that was certified as a minority/woman/or disadvantaged business enterprise (MBE/WBE/DBE) prior to the effective date of this subpart, pursuant to a requirement in § 23.43(d) in effect prior to March 4, 1999 (See 49 CFR Parts 1 to 99 revised as of October 1, 1998.) or FAA guidance implementing section 511(a)(17) of the Airport and Airway Improvement Act of 1982, as amended, that has exceeded the size standard, may be counted as DBE participation until the current agreement, including the exercise of options, expires, provided that the firm remains otherwise eligible.</P> <P> <E T="03">Socially and economically disadvantaged individuals</E> shall have the same meaning as set forth in 49 CFR part 26.</P> <P> <E T="03">Sponsor</E> means the recipient of an FAA grant.</P> <CITA>[Amdt. 1, 57 FR 18410, Apr. 30, 1992, as amended at 64 FR 5126, Feb. 2, 1999]</CITA> </SECTION> <SECTION> <SECTNO>§ 23.91</SECTNO> <SUBJECT>Applicability.</SUBJECT> <P>This subpart applies to any sponsor that has received a grant for airport development authorized by the Airport and Airway Improvement Act of 1982, as amended by the Airport and Airway Safety and Capacity Expansion Act of 1987.</P> </SECTION> <SECTION> <SECTNO>§ 23.93</SECTNO> <SUBJECT>Requirements for airport sponsors.</SUBJECT> <P>(a) <E T="03">General requirements.</E> (1) Each sponsor shall abide by the nondiscrimination requirements of § 26.7 with respect to the award and performance of any concession agreement covered by this subpart.</P> <P>(2) Each sponsor shall take all necessary and reasonable steps to foster participation by DBE's in its airport concession activities.</P> <P>(3) The following statements shall be included in all concession agreements executed between the sponsor and any firm after the effective date of this subpart.</P> <P>(i) “This agreement is subject to the requirements of the U.S. Department of Transportation's regulations, 49 CFR part 23, subpart F. The concessionaire agrees that it will not discriminate against any business owner because of the owner's race, color, national origin, or sex in connection with the award or performance of any concession agreement covered by 49 CFR part 23, subpart F.</P> <P>(ii) “The concessionaire agrees to include the above statements in any subsequent concession agreements that it enters and cause those businesses to similarly include the statements in further agreements.”</P> <P>(b) <E T="03">Additional requirements for primary airports</E> (1) Sponsors of primary airports shall implement a disadvantaged business enterprise (DBE) concession plan containing the elements listed in § 23.95. Sponsors of more than one primary airport shall implement a separate plan for each location that has received assistance for airport development. The plan shall be submitted to the appropriate FAA Regional Office for approval.</P> <P>(2) The sponsor shall review and update the plan at least annually. The updated plan shall include any information required under § 23.95 that was not available to the sponsor when the previous submission was made. Updated plans shall be submitted to the appropriate FAA Regional Office for approval.</P> <P>(c) <E T="03">Additional requirements for nonprimary airports.</E> Sponsors of commercial service airports (except primary), general aviation and reliever airports are not required to implement a DBE concession plan but shall take appropriate outreach steps to encourage available DBE's to participate as concessionaires whenever there is a concession opportunity.</P> <CITA>[Amdt. 1, 57 FR 18410, Apr. 30, 1992, as amended at 64 FR 5126, Feb. 2, 1999]</CITA> </SECTION> <SECTION> <SECTNO>§ 23.95</SECTNO> <SUBJECT>Elements of Disadvantaged Business Enterprise (DBE) concession plan.</SUBJECT> <P>(a) <E T="03">Overall annual DBE goals.</E> (1) The sponsor shall establish an overall goal for the participation of DBE's in concessions for each 12-month period covered by the plan. The goals shall be consistent with the process for setting overall goals set forth in 49 CFR 26.45.</P> <P>(2) Sponsors shall calculate the overall DBE goal as a percentage of one of the following bases:</P> <P>(i) The estimated gross receipts that will be earned by all concessions operating at the airport during the goal period. (Where the terms of a concession <PRTPAGE P="204"/>agreement do not provide for the sponsor to know the gross receipts, the sponsor shall use the net payment to the airport for such agreements and combine these figures with the estimated gross receipts from other agreements, for purposes of making this calculation. The plan shall indicate which concession agreements do not provide for the sponsor to know the gross receipts.)</P> <P>(ii) The total number of concession agreements operating at the airport during the goal period.</P> <P>(3) The plan shall state which base the sponsor proposes to use for calculating the overall goals. Sponsors proposing to use the base described in paragraph (a)(2)(ii) of this section shall submit a rationale as required by § 23.99.</P> <P>(4) Sponsors who will employ the procedures of paragraph (a)(2)(i) of this section shall exclude from the overall goal any portion of a firm's estimated gross receipts that will not be generated from a concession activity. </P> <EXAMPLE> <HD SOURCE="HED">Example.</HD> <P>A firm operates a restaurant in the airport terminal which services the travelling public and under the same lease agreement, provides in-flight catering service to the air carriers. The projected gross receipts from the restaurant are included in the overall goal calculation, while the gross receipts to be earned by the in-flight catering service are excluded.</P> </EXAMPLE> <P>(5) Sponsors who will employ the procedures of paragraph (a)(2)(i) of this section shall use the net payment to the airport for banks and banking services, including automated teller machines (ATM) and foreign currency exchanges.</P> <P>(6) To the extent practicable, sponsors shall seek to obtain DBE participation in all types of concession activities and not concentrate participation in one category or a few categories to the exclusion of others.</P> <P>(7) Airport sponsors may establish an overall annual goal exceeding 10 percent.</P> <P>(b) <E T="03">Goal methodology.</E> (1) The plan shall contain a description of the methodology used in establishing each of the overall DBE goals. The methodology shall include information on the concessions that will operate at the airport during the period covered by the plan and the potential for DBE participation. For each concession agreement, the sponsor shall provide the following information, together with an additional information requested by the Regional Civil Rights Officer:</P> <P>(i) Name of firm.</P> <P>(ii) Type of business (e.g. bookstore, car rental, baggage carts).</P> <P>(iii) Beginning and expiration dates of agreement, including options to renew.</P> <P>(iv) For new agreements, method of solicitation proposed by sponsor (e.g. request for proposals, invitation for bids).</P> <P>(v) Dates that material amendments will be made to the agreement (if known).</P> <P>(vi) Estimated gross receipts for each goal period established in the plan.</P> <P>(vii) Identification of those concessionaires that have been certified under this subpart as DBE's.</P> <P>(viii) An indication of those concessions having potential for participation by DBE's.</P> <P>(2) The plan shall include a narrative description of the types of efforts the sponsor intends to make, in accordance with paragraph (h) of this session, to achieve the overall annual goals.</P> <P>(3) Sponsors who will include a DBE contract goal or other requirements in solicitations for concession agreements shall state those requirements in the plan.</P> <P>(4) If none of the overall goals set under paragraph (a)(2)(i) or (a)(2)(ii) of this section is 10 percent or more, the sponsor shall submit the information and follow the procedures outlined in § 23.101.</P> <P>(c) <E T="03">DBE set-asides.</E> (1) Where not prohibited by state or local law and determined by the sponsor to be necessary to meet DBE goals, procedures to implement DBE set-asides shall be established. The DBE plan shall specify the concessions to be set-aside.</P> <P>(2) If a state or local law prohibits the use of set-asides in the award of concessions, a citation of the appropriate authority shall be included in the plan.</P> <P>(d) <E T="03">Accomplishments in achieving DBE goals.</E> The plan shall contain an analysis of the accomplishments made by <PRTPAGE P="205"/>the sponsor toward achieving the previous year's goal. The plan shall show the effect of those results on the overall level of DBE participation in the airport's concessions.</P> <P>(e) <E T="03">Explanation for not achieving a goal.</E> (1) If the analysis required under paragraph (d) of this section indicates that the sponsor failed to meet the previous year's overall goal, the plan shall include a statement of the reasons demonstrating why failure to meet the goal was beyond the sponsor's control.</P> <P>(2) If the FAA determines that the reasons given by the sponsor are not sufficient justification, or if the sponsor fails to state any reasons, the FAA may require the sponsor to implement appropriate remedial measures. Such measures may include an adjustment to the overall goals of the concession plan.</P> <P>(f) <E T="03">Certification procedures.</E> (1) The certification procedures set forth in 49 CFR part 26, subpart E are applicable to this subpart. Sponsors may count toward their overall goals only those firms that have been certified in accordance with the procedures of that section.</P> <P>(2)-(3) [Reserved]</P> <P>(4) Prior to making a certification determination, the sponsor shall perform an on-site visit to the offices of the firm and to any of its facilities that may be necessary to validate the certification information obtained from the firm.</P> <P>(g) <E T="03">Certification standards.</E> (1) Sponsors shall use the same standards for ownership and control as contained in 49 CFR part 26, subpart D in determining whether a firm may be certified as a DBE.</P> <P>(2) Businesses operating under the following structures may be eligible for certification as DBE's under this subpart:</P> <P>(i) Sole proprietorships.</P> <P>(ii) Corporations.</P> <P>(iii) Partnerships.</P> <P>(iv) Other structures that provide for ownership and control by the socially and economically disadvantaged owners.</P> <P>(3) A business operating under a franchise (or license) agreement may be certified if it meets the standards in this section and the franchisor is not affiliated with the franchisee.</P> <FP>In determining whether affiliation, as defined in § 23.89, exists, the restraints relating to standardized quality, advertising, accounting format, and other provisions imposed on a franchisee by its franchise agreement generally shall not be considered, provided that the franchisee has the right to profit from its efforts and bears the risk of loss commensurate with ownership. Alternatively, even though a franchisee may not be controlled by the franchisor by virtue of such provisions in the franchise agreement, control, and, thus, affiliation could arise through other means, such as common management or excessive restrictions upon the sale of the franchise interest.</FP> <P>(4) Joint ventures described in § 23.53(d) are eligible for certification as DBE's under this subpart.</P> <P>(h) Businesses operating under the following arrangements are not eligible for certification as DBE's under this subpart:</P> <P>(1) Limited partnerships, in which a non-DBE is the general partner.</P> <P>(2) Other arrangements that do not provide for ownership and control by the socially and economically disadvantaged owners.</P> <P>(i) <E T="03">Good faith efforts.</E> The sponsor shall make good faith efforts to achieve the overall goals of the approved plan. The efforts shall include:</P> <P>(1) Locating and identifying DBE's who may be interested in participating as concessionaires;</P> <P>(2) Notifying DBE's and other organizations of concession opportunities and encouraging them to compete, when appropriate;</P> <P>(3) Informing competitors for concession opportunities of any DBE requirements during pre-solicitation meetings;</P> <P>(4) Providing information concerning the availability of DBE firms to competitors to assist them in meeting DBE requirements; and</P> <P>(5) When practical, structuring contracting activities so as to encourage and facilitate the participation of DBE's.</P> <CITA>[Amdt. 1, 57 FR 18410, Apr. 30, 1992, as amended at 64 FR 5126, Feb. 2, 1999; 64 FR 34570, June 28, 1999]</CITA> </SECTION> <SECTION> <PRTPAGE P="206"/> <SECTNO>§ 23.97</SECTNO> <SUBJECT>Appeals of certification denials.</SUBJECT> <P>The procedures concerning the appeal of a denial of certification set forth in 49 CFR 26.89 are applicable to this subpart.</P> <CITA>[Amdt. 1, 57 FR 18410, Apr. 30, 1992, as amended at 64 FR 5126, Feb. 2, 1999]</CITA> </SECTION> <SECTION> <SECTNO>§ 23.99</SECTNO> <SUBJECT>Rationale for basing overall goals on the number of concession agreements.</SUBJECT> <P>(a) A sponsor who proposes to calculate the overall DBE goals as a percentage of the number of concession agreements shall submit information with the DBE plan to demonstrate that one of the following applies to the airport:</P> <P>(1) In order to attain an overall DBE goal of 10 percent on the basis of gross receipts, the airport would need to award a disproportionate percentage of the opportunities to DBE's. This rationale may address a time period that extends beyond that covered by the current plan; or</P> <P>(2) Other circumstances at the airport exist that do not make it feasible to use gross receipts as the basis for calculating the goals.</P> <P>(b) If the FAA approves of the request, the sponsor shall not be required to provide further justification during subsequent years of the plan, unless requested by the FAA to do so.</P> <P>(c) If the FAA determines that the information submitted by the sponsor fails to justify the requested goal-setting procedure, the sponsor shall resubmit the plan. The goals in the revised plan shall be calculated as a percentage of gross receipts, as outlined in paragraph (a)(2)(i) of § 23.95.</P> </SECTION> <SECTION> <SECTNO>§ 23.101</SECTNO> <SUBJECT>Information required when none of the overall annual goals is 10 percent or more.</SUBJECT> <P>(a) A sponsor requesting approval for a concession plan in which none of the overall annual DBE goals is 10 percent or more shall provide information on the following points:</P> <P>(1) The sponsor's efforts to locate DBE's in the relevant geographic area that are capable of operating the concessions that will become available;</P> <P>(2) The sponsor's efforts to notify DBE's of concession opportunities and to encourage them to compete;</P> <P>(3) Any consideration given by the sponsor, when practical, to structuring contracting procedures so as to encourage and facilitate DBE participation. For example, a sponsor may consider using competitive means to award a concession that would otherwise be renegotiated without competition.</P> <P>(4) If appropriate, an explanation why the nature of a particular concession makes DBE participation through a sublease, joint venture, partnership, or other arrangement not economically feasible.</P> <P>(b) The FAA regional civil rights officer approves a plan which does not contain any overall goals of at least 10 percent if he or she determines that based on the information submitted by the sponsor under paragraph (a) of this section and any other available information;</P> <P>(1) The sponsor is making all appropriate efforts to increase DBE participation in its concessions to a level of 10 percent; and</P> <P>(2) Despite the sponsor's efforts, the goals submitted by the sponsor represent the reasonable expectation for DBE participation, given the availability of DBE's.</P> </SECTION> <SECTION> <SECTNO>§ 23.103</SECTNO> <SUBJECT>Obligations of concessionaires and competitors.</SUBJECT> <P>(a) Sponsors may impose requirements on competitors for concession agreements as a means of achieving the DBE goals or a portion of the goals established under paragraph (a) of § 23.91 of this subpart, provided that the DBE participation specified in the solicitation or other request is an eligible arrangement, as defined in this subpart.</P> <P>(b) Nothing in this subpart shall require any sponsor to modify or abrogate an existing concession agreement (one executed prior to the date the sponsor became subject to this subpart) during its term. When options to renew such agreements are exercised or when a material amendment is made to the agreement, the sponsor shall assess the potential for DBE participation and include any opportunities in the goals established under paragraph (a) of § 23.95.</P> </SECTION> <SECTION> <PRTPAGE P="207"/> <SECTNO>§ 23.105</SECTNO> <SUBJECT>Privately-owned terminal buildings.</SUBJECT> <P>(a) Awards of concession agreements that are made by private owners of terminal buildings are covered by this subpart. Airport sponsors subject to this subpart shall levy the applicable requirements on the terminal owner through the agreement with the owner or by other means, except that certification shall, in the case of primary airports, be performed by the airport sponsor. The sponsor shall ensure that the terminal owner complies with these requirements.</P> <P>(b) If the terminal building is at a primary airport, the sponsor shall obtain from the terminal owner the overall goals and other elements of the DBE concession plan required under § 23.95. This information shall be incorporated into the concession plan and goals established by the sponsor and submitted to the FAA in accordance with this subpart.</P> <P>(c) If the terminal building is at a commercial service airport (except primary), general aviation, or reliever airport, the sponsor shall ensure that the owner complies with the requirements in paragraph (c) of § 23.93.</P> </SECTION> <SECTION> <SECTNO>§ 23.107</SECTNO> <SUBJECT>Prohibition on long-term, exclusive concession agreements.</SUBJECT> <P>(a) Except as provided in paragraph (b) of this section, sponsors shall not enter into long-term, exclusive agreements for the operation of concessions. For purposes of this section, a long-term agreement is one having a term in excess of five years. Guidelines for determining whether an agreement is exclusive, as used in this section, have been included in the FAA's “DBE Program Development Kit for Airport Grant-in-Aid Recipients.” This publication can be obtained from any FAA Regional Civil Rights Officer or from the FAA Office of Civil Rights, 800 Independence Avenue, SW., Washington, DC 20591, Attention, -ACR-4.</P> <P>(b) A long-term, exclusive agreement is permitted under this subpart, provided that;</P> <P>(1) Special local circumstances exist that make it important to enter such agreement, and</P> <P>(2) The responsible FAA regional civil rights officer approves of a plan for ensuring adequate DBE participation throughout the term of the agreement.</P> <P>(c) Approval of the plan referenced in paragraph (b)(2) of this section relieves the sponsor of the need to obtain an exemption under the procedures of § 23.41(f) and the Notice of Policy (45 FR 45281, July 3, 1980). The Notice of Policy can be obtained from the FAA Office of Civil Rights at the address given in paragraph (a) of this section.</P> <P>(d) Sponsors shall submit the following information with the plan referenced in paragraph (b)(2) of this section:</P> <P>(1) A description of the special local circumstances that warrant a long-term, exclusive agreement, e.g., a requirement to make certain capital improvements to a leasehold facility.</P> <P>(2) A copy of the draft and final leasing and subleasing or other agreements. The long-term, exclusive agreement shall provide that:</P> <P>(i) One or more DBE's will participate throughout the term of the agreement and account for at least 10 percent of the annual estimated gross receipts.</P> <P>(ii) The extent of DBE participation will be reviewed prior to the exercise of each renewal option to consider whether an increase is warranted. (In some instances, a decrease may be warranted.)</P> <P>(iii) A DBE that is unable to perform successfully will be replaced by another DBE, if the remaining term of the agreement makes this feasible.</P> <P>(3) Assurances that the DBE participation will be in an acceptable form, such as a sublease, joint venture, or partnership.</P> <P>(4) Documents used by the sponsor in certifying the DBE's.</P> <P>(5) A description of the type of business or businesses to be operated, location, storage and delivery space, “back-of-the-house facilities” such as kitchens, window display space, advertising space, and other amenities that will increase the DBE's chance to succeed.</P> <P>(6) Information on the investment required on the part of the DBE and any unusual management or financial arrangements between the prime concessionaire and DBE.<PRTPAGE P="208"/> </P> <P>(7) Information on the estimated gross receipts and net profit to be earned by the DBE.</P> </SECTION> <SECTION> <SECTNO>§ 23.109</SECTNO> <SUBJECT>Compliance procedures.</SUBJECT> <P>In the event of noncompliance with this subpart by a sponsor, the FAA Administrator may take any action provided for in section 519 of the Airport and Airway Improvement Act of 1982, as amended.</P> </SECTION> <APPENDIX> <EAR>Pt. 23, Subpt. F, App. A</EAR> <HD SOURCE="HED">Appendix A to Subpart F of Part 23—Size Standards for Airport Concessionaires</HD> <GPOTABLE CDEF="s50,10" COLS="2" OPTS="L2"> <TTITLE>Maximum Average Annual Gross Receipts in Preceding 3 Years</TTITLE> <TDESC>[In millions of dollars]</TDESC> <BOXHD> <CHED H="1">Concession</CHED> <CHED H="1">Amount</CHED> </BOXHD> <ROW> <ENT I="01">Food and beverage</ENT> <ENT>30.00</ENT> </ROW> <ROW> <ENT I="01">Book stores</ENT> <ENT>30.00</ENT> </ROW> <ROW> <ENT I="01">Auto rental</ENT> <ENT>40.00</ENT> </ROW> <ROW> <ENT I="01">Banks</ENT> <ENT> <SU>1</SU> 100.00</ENT> </ROW> <ROW> <ENT I="01">Hotels and motels</ENT> <ENT>30.00</ENT> </ROW> <ROW> <ENT I="01">Insurance machines and counters</ENT> <ENT>30.00</ENT> </ROW> <ROW> <ENT I="01">Gift, novelty, and souvenir shop</ENT> <ENT>30.00</ENT> </ROW> <ROW> <ENT I="01">Newstands</ENT> <ENT>30.00</ENT> </ROW> <ROW> <ENT I="01">Shoe shine stands</ENT> <ENT>30.00</ENT> </ROW> <ROW> <ENT I="01">Barber shops</ENT> <ENT>30.00</ENT> </ROW> <ROW> <ENT I="01">Automobile parking</ENT> <ENT>30.00</ENT> </ROW> <ROW> <ENT I="01">Jewelry stores</ENT> <ENT>30.00</ENT> </ROW> <ROW> <ENT I="01">Liquor stores</ENT> <ENT>30.00</ENT> </ROW> <ROW> <ENT I="01">Travel agencies</ENT> <ENT>30.00</ENT> </ROW> <ROW> <ENT I="01">Drug stores</ENT> <ENT>30.00</ENT> </ROW> <ROW> <ENT I="01">Pastries and baked goods</ENT> <ENT>30.00</ENT> </ROW> <ROW> <ENT I="01">Luggage cart rental</ENT> <ENT>30.00</ENT> </ROW> <ROW> <ENT I="01">Coin-operated T.V.'s</ENT> <ENT>30.00</ENT> </ROW> <ROW> <ENT I="01">Game rooms</ENT> <ENT>30.00</ENT> </ROW> <ROW> <ENT I="01">Luggage and leather goods stores</ENT> <ENT>30.00</ENT> </ROW> <ROW> <ENT I="01">Candy, nut, and confectionery stores</ENT> <ENT>30.00</ENT> </ROW> <ROW> <ENT I="01">Toy stores</ENT> <ENT>30.00</ENT> </ROW> <ROW> <ENT I="01">Beauty shops</ENT> <ENT>30.00</ENT> </ROW> <ROW> <ENT I="01">Vending machines</ENT> <ENT>30.00</ENT> </ROW> <ROW> <ENT I="01">Coin-operated lockers</ENT> <ENT>30.00</ENT> </ROW> <ROW> <ENT I="01">Florists</ENT> <ENT>30.00</ENT> </ROW> <ROW> <ENT I="01">Advertising</ENT> <ENT>30.00</ENT> </ROW> <ROW> <ENT I="01">Taxicab</ENT> <ENT>30.00</ENT> </ROW> <ROW> <ENT I="01">Limousines</ENT> <ENT>30.00</ENT> </ROW> <ROW> <ENT I="01">Duty free shops</ENT> <ENT>30.00</ENT> </ROW> <ROW> <ENT I="01">Pay telephones</ENT> <ENT> <SU>2</SU>1,500</ENT> </ROW> <ROW> <ENT I="01">Gambling machines</ENT> <ENT>30.00</ENT> </ROW> <ROW> <ENT I="01">Other concessions not shown above</ENT> <ENT>30.00</ENT> </ROW> <TNOTE> <SU>1</SU> As measured by total assets</TNOTE> <TNOTE> <SU>2</SU> As measured by number of employees.</TNOTE> </GPOTABLE> </APPENDIX> <APPENDIX> <EAR>Pt. 23, Schedule A</EAR> <HD SOURCE="HED">Schedule A to Part 23—Information for Determining Minority Business Enterprise Eligibility</HD> <FP SOURCE="FP-DASH">1. Name of firm</FP> <FP SOURCE="FP-DASH">2. Address of firm</FP> <FP SOURCE="FP-DASH">3. Phone Number of firm</FP> <FP SOURCE="FP-DASH">4. Indicate whether firm is sole proprietorship, partnership, joint venture, corporation or other business entity (please specify)</FP> <FP SOURCE="FP-DASH">—</FP> <FP SOURCE="FP-DASH">5. Nature of firm's business</FP> <FP SOURCE="FP-DASH">6. Years firm has been in business</FP> <P>7. Ownership of firm: Identify those who own 5 percent or more of the firm's ownership. Columns e and f need be filled out only if the firm is less than 100 percent minority owned.</P> <GPOTABLE CDEF="xl20,r20,r20,r20,r30,r20" COLS="6" OPTS="L2"> <BOXHD> <CHED H="1">a—Name</CHED> <CHED H="1">b—Race</CHED> <CHED H="1">c—Sex</CHED> <CHED H="1">d—Years of ownership</CHED> <CHED H="1">e—Ownership percentage</CHED> <CHED H="1">f—Voting percentage</CHED> </BOXHD> <ROW> <ENT I="01"/> </ROW> <ROW> <ENT I="01"/> </ROW> </GPOTABLE> <FP>With firms less than 100 percent minority owned, list the contributions of money, equipment, real estate, or expertise of each of the owners.</FP> <P>8. Control of firm: (a) Identify by name, race, sex, and title in the firm those individuals (including owners and non-owners) who are responsible for day-to-day management and policy decisionmaking, including, but not limited to, those with prime responsibility for:</P> <FP SOURCE="FP-DASH">(1) Financial decisions</FP> <P>(2) Management decisions, such as—</P> <FP SOURCE="FP-DASH">a. Estimating</FP> <FP SOURCE="FP-DASH">b. Marketing and sales</FP> <FP SOURCE="FP-DASH">c. Hiring and firing of management personnel</FP> <FP SOURCE="FP-DASH">d. Purchases of major items or supplies</FP> <FP SOURCE="FP-DASH">(3) Supervision of field operations</FP> <P>9. For each of those listed in question 8, provide a <E T="03">brief</E> summary of the person's experience and number of years with the firm, indicating the person's qualifications for the responsibilities given him or her.</P> <P>10. Describe or attach a copy of any stock options or other ownership options that are outstanding, and any agreements between owners or between owners and third parties which restrict ownership or control of minority owners.</P> <P>11. Identify any owner (see item 7) or management official (see item 8) of the named firm who is or has been an employee of another firm that has an ownership interest in or a present business relationship with the named firm. Present business relationships include shared space, equipment, financing, or employees as well as both firms having some of the same owners.</P> <P>12. What are the gross receipts of the firm for each of the last two years? </P> <FP SOURCE="FP-DASH">Year ending</FP> <FP SOURCE="FP-DASH">$</FP> <FP SOURCE="FP-DASH">Year ending</FP> <FP SOURCE="FP-DASH">$</FP> <FP SOURCE="FP-DASH">13. Name of bonding company, if any:</FP> <FP SOURCE="FP-DASH">—</FP> <FP SOURCE="FP-DASH">Bonding limit</FP> <FP SOURCE="FP-DASH">Source of letters of credit, if any<PRTPAGE P="209"/> </FP> <P>14. Are you authorized to do business in the state as well as locally, including all necessary business licenses?</P> <P>15. Indicate if this firm or other firms with any of the same officers have previously received or been denied certification or participation as an MBE and describe the circumstances. Indicate the name of the certifying authority and the date of such certification or denial.</P> <HD SOURCE="HD1">Affidavit</HD> <P>“The undersigned swears that the foregoing statements are true and correct and include all material information necessary to identify and explain the operations of ———— (name of firm) as well as the ownership thereof. Further, the undersigned agrees to provide through the prime contractor or, if no prime, directly to the grantee current, complete and accurate information regarding actual work performed on the project, the payment therefor and any proposed changes, if any, of the foregoing arrangements and to permit the audit and examination of books, records and files of the named firm. Any material misrepresentation will be grounds for terminating any contract which may be awarded and for initiating action under Federal or State laws concerning false statements.” </P> <NOTE> <HD SOURCE="HED">Note:</HD> <P>If, after filing this Schedule A and before the work of this firm is completed on the contract covered by this regulation, there is any significant change in the information submitted, you must inform the grantee of the change through the prime contractor or, if no prime contractor, inform the grantee directly.</P> </NOTE> <FP SOURCE="FP-DASH">Signature</FP> <FP SOURCE="FP-DASH">Name</FP> <FP SOURCE="FP-DASH">Title</FP> <FP SOURCE="FP-DASH">Date</FP> <P>Corporate Seal (where appropriate).</P> <FP SOURCE="FP-DASH">Date</FP> <FP SOURCE="FP-DASH">State of</FP> <FP SOURCE="FP-DASH">County of</FP> <P>On this — day of ——, 19—, before me appeared (Name) ————, to me personally known, who, being duly sworn, did execute the foregoing affidavit, and did state that he or she was properly authorized by (Name of firm) ———— to execute the affidavit and did so as his or her free act and deed.</P> <FP>[Seal]</FP> <FP SOURCE="FP-DASH">Notary Public</FP> <FP SOURCE="FP-DASH">Commission expires</FP> <EAR>Pt. 23, Schedule B</EAR> <HD SOURCE="HD1">Schedule B—Information for Determining Joint Venture Eligibility</HD> <P>(This form need not be filled in if all joint venture firms are minority owned.)</P> <FP SOURCE="FP-DASH">1. Name of joint venture</FP> <FP SOURCE="FP-DASH">2. Address of joint venture</FP> <FP SOURCE="FP-DASH">3. Phone number of joint venture</FP> <FP SOURCE="FP-DASH">4. Identify the firms which comprise the joint venture. (The MBE partner must complete Schedule A.)</FP> <FP SOURCE="FP-DASH">(a) Describe the role of the MBE firm in the joint venture.</FP> <FP SOURCE="FP-DASH"/> <FP SOURCE="FP-DASH">(b) Describe very briefly the experience and business qualifications of each non-MBE joint venturer:</FP> <FP SOURCE="FP-DASH"/> <FP SOURCE="FP-DASH">5. Nature of the joint venture's business</FP> <FP SOURCE="FP-DASH"/> <P>6. Provide a copy of the joint venture agreement.</P> <FP SOURCE="FP-DASH">7. What is the claimed percentage of MBE ownership?</FP> <P>8. Ownership of joint venture: (This need not be filled in if described in the joint venture agreement, provided by question 6.)</P> <P>(a) Profit and loss sharing.</P> <P>(b) Capital contributions, including equipment.</P> <P>(c) Other applicable ownership interests.</P> <P>9. Control of and participation in this contract. Identify by name, race, sex, and “firm” those individuals (and their titles) who are responsible for day-to-day management and policy decisionmaking, including, but not limited to, those with prime responsibility for:</P> <FP SOURCE="FP-DASH">(a) Financial decisions</FP> <P>(b) Management decisions, such as:</P> <FP SOURCE="FP-DASH">(1) Estimating</FP> <FP SOURCE="FP-DASH">(2) Marketing and sales</FP> <FP SOURCE="FP-DASH">(3) Hiring and firing of management personnel</FP> <FP SOURCE="FP-DASH">(4) Purchasing of major items or supplies</FP> <FP SOURCE="FP-DASH"/> <P>(c) Supervision of field operations </P> <NOTE> <HD SOURCE="HED">Note:</HD> <P>If, after filing this Schedule B and before the completion of the joint venture's work on the contract covered by this regulation, there is any significant change in the information submitted, the joint venture must inform the grantee, either directly or through the prime contractor if the joint venture is a subcontractor.</P> </NOTE> <HD SOURCE="HD1">Affidavit</HD> <P>“The undersigned swear that the foregoing statements are correct and include all material information necessary to identify and explain the terms and operation of our joint venture and the intended participation by each joint venturer in the undertaking. Further, the undersigned covenant and agree to provide to the grantee current, complete and accurate information regarding actual joint venture work and the payment therefor and any proposed changes in any of the joint venture arrangements and to permit the audit and examination of the books, records and files of the joint venture, or those of each joint venturer relevant to the joint venture, by authorized representatives of the grantee or the Federal funding agency. Any material <PRTPAGE P="210"/>misrepresentation will be grounds for terminating any contract which may be awarded and for initiating action under Federal or State laws concerning false statements.”</P> <GPOTABLE CDEF="s50,r50" COLS="2" OPTS="L0,7/8,g1,t1"> <ROW> <ENT I="21">————————— </ENT> <ENT O="oi0">—————————</ENT> </ROW> <ROW> <ENT I="21">Name of Firm </ENT> <ENT O="oi0">Name of Firm </ENT> </ROW> <ROW> <ENT I="21">————————— </ENT> <ENT O="oi0">—————————</ENT> </ROW> <ROW> <ENT I="21">Signature </ENT> <ENT O="oi0">Signature </ENT> </ROW> <ROW> <ENT I="21">————————— </ENT> <ENT O="oi0">—————————</ENT> </ROW> <ROW> <ENT I="21">Name </ENT> <ENT O="oi0">Name </ENT> </ROW> <ROW> <ENT I="21">————————— </ENT> <ENT O="oi0">—————————</ENT> </ROW> <ROW> <ENT I="21">Title </ENT> <ENT O="oi0">Title </ENT> </ROW> <ROW> <ENT I="21">————————— </ENT> <ENT O="oi0">—————————</ENT> </ROW> <ROW> <ENT I="21">Date </ENT> <ENT O="oi0">Date</ENT> </ROW> </GPOTABLE> <FP SOURCE="FP-DASH">Date</FP> <FP SOURCE="FP-DASH">State of</FP> <FP SOURCE="FP-DASH">County of</FP> <P>On this — day of ——, 19—, before me appeared (Name) ————, to me personally known, who, being duly sworn, did execute the foregoing affidavit, and did state that he or she was properly authorized by (Name of firm) ———— to execute the affidavit and did so as his or her free act and deed.</P> <FP SOURCE="FP-DASH">Notary Public</FP> <FP SOURCE="FP-DASH">Commission expires</FP> <FP>[Seal]</FP> <FP SOURCE="FP-DASH">Date</FP> <FP SOURCE="FP-DASH">State of</FP> <FP SOURCE="FP-DASH">County of</FP> <P>On this — day of ——, 19—, before me appeared (Name) ————, to me personally known, who, being duly sworn, did execute the foregoing affidavit, and did state that he or she was properly authorized by (Name of firm) ———— to execute the affidavit and did so as his or her free act and deed.</P> <FP SOURCE="FP-DASH">Notary Public</FP> <FP SOURCE="FP-DASH">Commission expires</FP> <FP>[Seal]</FP> </APPENDIX> </SUBPART> </PART> <PART> <EAR>Pt. 24</EAR> <HD SOURCE="HED">PART 24—UNIFORM RELOCATION ASSISTANCE AND REAL PROPERTY ACQUISITION FOR FEDERAL AND FEDERALLY ASSISTED PROGRAMS</HD> <CONTENTS> <SUBPART> <HD SOURCE="HED">Subpart A—General</HD> <SECHD>Sec.</SECHD> <SECTNO>24.1</SECTNO> <SUBJECT>Purpose.</SUBJECT> <SECTNO>24.2</SECTNO> <SUBJECT>Definitions.</SUBJECT> <SECTNO>24.3</SECTNO> <SUBJECT>No duplication of payments.</SUBJECT> <SECTNO>24.4</SECTNO> <SUBJECT>Assurances, monitoring and corrective action.</SUBJECT> <SECTNO>24.5</SECTNO> <SUBJECT>Manner of notices.</SUBJECT> <SECTNO>24.6</SECTNO> <SUBJECT>Administration of jointly-funded projects.</SUBJECT> <SECTNO>24.7</SECTNO> <SUBJECT>Federal agency waiver of regulations.</SUBJECT> <SECTNO>24.8</SECTNO> <SUBJECT>Compliance with other laws and regulations.</SUBJECT> <SECTNO>24.9</SECTNO> <SUBJECT>Recordkeeping and reports.</SUBJECT> <SECTNO>24.10</SECTNO> <SUBJECT>Appeals.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Real Property Acquisition</HD> <SECTNO>24.101</SECTNO> <SUBJECT>Applicability of acquisition requirements.</SUBJECT> <SECTNO>24.102</SECTNO> <SUBJECT>Basic acquisition policies.</SUBJECT> <SECTNO>24.103</SECTNO> <SUBJECT>Criteria for appraisals.</SUBJECT> <SECTNO>24.104</SECTNO> <SUBJECT>Review of appraisals.</SUBJECT> <SECTNO>24.105</SECTNO> <SUBJECT>Acquisition of tenant-owned improvements.</SUBJECT> <SECTNO>24.106</SECTNO> <SUBJECT>Expenses incidental to transfer of title to the Agency.</SUBJECT> <SECTNO>24.107</SECTNO> <SUBJECT>Certain litigation expenses.</SUBJECT> <SECTNO>24.108</SECTNO> <SUBJECT>Donations.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart C—General Relocation Requirements</HD> <SECTNO>24.201</SECTNO> <SUBJECT>Purpose.</SUBJECT> <SECTNO>24.202</SECTNO> <SUBJECT>Applicability.</SUBJECT> <SECTNO>24.203</SECTNO> <SUBJECT>Relocation notices.</SUBJECT> <SECTNO>24.204</SECTNO> <SUBJECT>Availability of comparable replacement dwelling before displacement.</SUBJECT> <SECTNO>24.205</SECTNO> <SUBJECT>Relocation planning, advisory services, and coordination.</SUBJECT> <SECTNO>24.206</SECTNO> <SUBJECT>Eviction for cause.</SUBJECT> <SECTNO>24.207</SECTNO> <SUBJECT>General requirements—claims for relocation payments.</SUBJECT> <SECTNO>24.208</SECTNO> <SUBJECT>Aliens not lawfully present in the United States.</SUBJECT> <SECTNO>24.209</SECTNO> <SUBJECT>Relocation payments not considered as income.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart D—Payments for Moving and Related Expenses</HD> <SECTNO>24.301</SECTNO> <SUBJECT>Payment for actual reasonable moving and related expenses—residential moves.</SUBJECT> <SECTNO>24.302</SECTNO> <SUBJECT>Fixed payment for moving expenses—residential moves.</SUBJECT> <SECTNO>24.303</SECTNO> <SUBJECT>Payment for actual reasonable moving and related expenses—nonresidential moves.</SUBJECT> <SECTNO>24.304</SECTNO> <SUBJECT>Reestablishment expenses—nonresidential moves.</SUBJECT> <SECTNO>24.305</SECTNO> <SUBJECT>Ineligible moving and related expenses.</SUBJECT> <SECTNO>24.306</SECTNO> <SUBJECT>Fixed payment for moving expenses—nonresidentia1 moves.</SUBJECT> <SECTNO>24.307</SECTNO> <SUBJECT>Discretionary utility relocation payments.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart E—Replacement Housing Payments</HD> <SECTNO>24.401</SECTNO> <SUBJECT>Replacement housing payment for 180-day homeowner-occupants.</SUBJECT> <SECTNO>24.402</SECTNO> <SUBJECT>Replacement housing payment for 90-day occupants.</SUBJECT> <SECTNO>24.403</SECTNO> <SUBJECT>Additional rules governing replacement housing payments.</SUBJECT> <SECTNO>24.404</SECTNO> <SUBJECT>Replacement housing of last resort.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart F—Mobile Homes</HD> <SECTNO>24.501</SECTNO> <SUBJECT>Applicability.</SUBJECT> <SECTNO>24.502</SECTNO> <SUBJECT>Moving and related expenses—mobile homes.<PRTPAGE P="211"/> </SUBJECT> <SECTNO>24.503</SECTNO> <SUBJECT>Replacement housing payment for 180-day mobile homeowner-occupants.</SUBJECT> <SECTNO>24.504</SECTNO> <SUBJECT>Replacement housing payment for 90-day mobile home occupants.</SUBJECT> <SECTNO>24.505</SECTNO> <SUBJECT>Additional rules governing relocation payments to mobile home occupants.</SUBJECT> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart G—Certification</HD> <SECTNO>24.601</SECTNO> <SUBJECT>Purpose.</SUBJECT> <SECTNO>24.602</SECTNO> <SUBJECT>Certification application.</SUBJECT> <SECTNO>24.603</SECTNO> <SUBJECT>Monitoring and corrective action.</SUBJECT> <APP>Appendix A to Part 24—Additional Information</APP> <APP>Appendix B to Part 24—Statistical Report Form</APP> </SUBPART> </CONTENTS> <AUTH> <HD SOURCE="HED">Authority:</HD> <P>42 U.S.C. 4601 <E T="03">et seq.</E>; 49 CFR 1.48(cc).</P> </AUTH> <SOURCE> <HD SOURCE="HED">Source:</HD> <P>54 FR 8928, Mar. 2, 1989, unless otherwise noted.</P> </SOURCE> <SUBPART> <HD SOURCE="HED">Subpart A—General</HD> <SECTION> <SECTNO>§ 24.1</SECTNO> <SUBJECT>Purpose.</SUBJECT> <P>The purpose of this part is to promulgate rules to implement the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, as amended (42 U.S.C. 4601 <E T="03">et seq.</E>), in accordance with the following objectives:</P> <P>(a) To ensure that owners of real property to be acquired for Federal and federally-assisted projects are treated fairly and consistently, to encourage and expedite acquisition by agreements with such owners, to minimize litigation and relieve congestion in the courts, and to promote public confidence in Federal and federally-assisted land acquisition programs;</P> <P>(b) To ensure that persons displaced as a direct result of Federal or federally-assisted projects are treated fairly, consistently, and equitably so that such persons will not suffer disproportionate injuries as a result of projects designed for the benefit of the public as a whole; and</P> <P>(c) To ensure that Agencies implement these regulations in a manner that is efficient and cost effective.</P> <CITA>[54 FR 8928, Mar. 2, 1989; 54 FR 24712, June 9, 1989]</CITA> </SECTION> <SECTION> <SECTNO>§ 24.2</SECTNO> <SUBJECT>Definitions.</SUBJECT> <P> <E T="03">Agency.</E> The term <E T="03">Agency</E> means the Federal agency, State, State agency, or person that acquires real property or displaces a person.</P> <P>(1) <E T="03">Acquiring agency.</E> The term <E T="03">acquiring agency</E> means a State agency, as defined in paragraph (a)(4) of this section, which has the authority to acquire property by eminent domain under State law, and a State agency or person which does not have such authority. Any Agency or person solely acquiring property pursuant to the provisions of § 24.101(a) (1), (2), (3), or (4) need not provide the assurances required by § 24.4(a)(1) or (2).</P> <P>(2) <E T="03">Displacing agency.</E> The term <E T="03">displacing agency</E> means any Federal agency carrying out a program or project, and any State, State agency, or person carrying out a program or project with Federal financial assistance, which causes a person to be a displaced person.</P> <P>(3) <E T="03">Federal agency.</E> The term <E T="03">Federal agency</E> means any department, Agency, or instrumentality in the executive branch of the Government, any wholly owned Government corporation, the Architect of the Capitol, the Federal Reserve Banks and branches thereof, and any person who has the authority to acquire property by eminent domain under Federal law.</P> <P>(4) <E T="03">State agency.</E> The term <E T="03">State agency</E> means any department, Agency or instrumentality of a State or of a political subdivision of a State, any department, Agency, or instrumentality of two or more States or of two or more political subdivisions of a State or States, and any person who has the authority to acquire property by eminent domain under State law.</P> <P> <E T="03">Alien not lawfully present in the United States.</E> The phrase “alien not lawfully present in the United States” means an alien who is not “lawfully present” in the United States as defined in 8 CFR 103.12 and includes:</P> <P>(1) An alien present in the United States who has not been admitted or paroled into the United States pursuant to the Immigration and Nationality Act and whose stay in the United States has not been authorized by the United States Attorney General, and</P> <P>(2) An alien who is present in the United States after the expiration of the period of stay authorized by the United States Attorney General or who <PRTPAGE P="212"/>otherwise violates the terms and conditions of admission, parole or authorization to stay in the United States.</P> <P> <E T="03">Appraisal.</E> The term <E T="03">appraisal</E> means a written statement independently and impartially prepared by a qualified appraiser setting forth an opinion of defined value of an adequately described property as of a specific date, supported by the presentation and analysis of relevant market information.</P> <P> <E T="03">Business.</E> The term <E T="03">business</E> means any lawful activity, except a farm operation, that is conducted:</P> <P>(1) Primarily for the purchase, sale, lease and/or rental of personal and/or real property, and/or for the manufacture, processing, and/or marketing of products, commodities, and/or any other personal property; or</P> <P>(2) Primarily for the sale of services to the public; or</P> <P>(3) Primarily for outdoor advertising display purposes, when the display must be moved as a result of the project; or</P> <P>(4) By a nonprofit organization that has established its nonprofit status under applicable Federal or State law.</P> <P> <E T="03">Citizen.</E> The term “citizen,” for purposes of this part, includes both citizens of the United States and noncitizen nationals.</P> <P> <E T="03">Comparable replacement dwelling.</E> The term <E T="03">comparable replacement dwelling</E> means a dwelling which is:</P> <P>(1) Decent, safe and sanitary as described in paragraph (f) of this section;</P> <P>(2) Functionally equivalent to the displacement dwelling. The term <E T="03">functionally equivalent</E> means that it performs the same function, provides the same utility, and is capable of contributing to a comparable style of living. While a comparable replacement dwelling need not possess every feature of the displacement dwelling, the principal features must be present. Generally, functional equivalency is an objective standard, reflecting the range of purposes for which the various physical features of a dwelling may be used. However, in determining whether a replacement dwelling is functionally equivalent to the displacement dwelling, the Agency may consider reasonable trade-offs for specific features when the replacement unit is <E T="03">equal to or better than</E> the displacement dwelling. (See appendix A of this part);</P> <P>(3) Adequate in size to accommodate the occupants;</P> <P>(4) In an area not subject to unreasonable adverse environmental conditions;</P> <P>(5) In a location generally not less desirable than the location of the displaced person's dwelling with respect to public utilities and commercial and public facilities, and reasonably accessible to the person's place of employment;</P> <P>(6) On a site that is typical in size for residential development with normal site improvements, including customary landscaping. The site need not include special improvements such as outbuildings, swimming pools, or greenhouses. (See also § 24.403(a)(2).);</P> <P>(7) Currently available to the displaced person on the private market. However, a comparable replacement dwelling for a person receiving government housing assistance before displacement may reflect similar government housing assistance. (See appendix A of this part.); and</P> <P>(8) Within the financial means of the displaced person.</P> <P>(i) A replacement dwelling purchased by a homeowner in occupancy at the displacement dwelling for at least 180 days prior to initiation of negotiations (180-day homeowner) is considered to be within the homeowner's financial means if the homeowner will receive the full price differential as described in § 24.401(c), all increased mortgage interest costs as described at § 24.401(d) and all incidental expenses as described at § 24.401(e), plus any additional amount required to be paid under § 24.404, Replacement housing of last resort.</P> <P>(ii) A replacement dwelling rented by an eligible displaced person is considered to be within his or her financial means if, after receiving rental assistance under this part, the person's monthly rent and estimated average monthly utility costs for the replacement dwelling do not exceed the person's base monthly rental for the displacement dwelling as described at § 24.402(b)(2).<PRTPAGE P="213"/> </P> <P>(iii) For a displaced person who is not eligible to receive a replacement housing payment because of the person's failure to meet length-of-occupancy requirements, comparable replacement rental housing is considered to be within the person's financial means if an Agency pays that portion of the monthly housing costs of a replacement dwelling which exceeds 30 percent of such person's gross monthly household income or, if receiving a welfare assistance payment from a program that designates amounts for shelter and utilities, the total of the amounts designated for shelter and utilities. Such rental assistance must be paid under § 24.404, Replacement housing of last resort.</P> <P> <E T="03">Contribute materially.</E> The term <E T="03">contribute materially</E> means that during the 2 taxable years prior to the taxable year in which displacement occurs, or during such other period as the Agency determines to be more equitable, a business or farm operation:</P> <P>(1) Had average annual gross receipts of at least $5000; or</P> <P>(2) Had average annual net earnings of at least $1000; or</P> <P>(3) Contributed at least 33<FR>1/3</FR> percent of the owner's or operator's average annual gross income from all sources.</P> <P>(4) If the application of the above criteria creates an inequity or hardship in any given case, the Agency may approve the use of other criteria as determined appropriate.</P> <P> <E T="03">Decent, safe, and sanitary dwelling.</E> The term <E T="03">decent, safe, and sanitary dwelling</E> means a dwelling which meets applicable housing and occupancy codes. However, any of the following standards which are not met by an applicable code shall apply unless waived for good cause by the Federal agency funding the project. The dwelling shall:</P> <P>(1) Be structurally sound, weathertight, and in good repair.</P> <P>(2) Contain a safe electrical wiring system adequate for lighting and other devices.</P> <P>(3) Contain a heating system capable of sustaining a healthful temperature (of approximately 70 degrees) for a displaced person, except in those areas where local climatic conditions do not require such a system.</P> <P>(4) Be adequate in size with respect to the number of rooms and area of living space needed to accommodate the displaced person. There shall be a separate, well lighted and ventilated bathroom that provides privacy to the user and contains a sink, bathtub or shower stall, and a toilet, all in good working order and properly connected to appropriate sources of water and to a sewage drainage system. In the case of a housekeeping dwelling, there shall be a kitchen area that contains a fully usable sink, properly connected to potable hot and cold water and to a sewage drainage system, and adequate space and utility service connections for a stove and refrigerator.</P> <P>(5) Contains unobstructed egress to safe, open space at ground level. If the replacement dwelling unit is on the second story or above, with access directly from or through a common corridor, the common corridor must have at least two means of egress.</P> <P>(6) For a displaced person who is handicapped, be free of any barriers which would preclude reasonable ingress, egress, or use of the dwelling by such displaced person.</P> <P> <E T="03">Displaced person</E>—(1) <E T="03">General.</E> The term “displaced person” means, except as provided in paragraph (2) of this definition, any person who moves from the real property or moves his or her personal property from the real property: (This includes a person who occupies the real property prior to its acquisition, but who does not meet the length of occupancy requirements of the Uniform Act as described at §§ 24.401(a) and 24.402(a)):</P> <P>(i) As a direct result of a written notice of intent to acquire, the initiation of negotiations for, or the acquisition of, such real property in whole or in part for a project.</P> <P>(ii) As a direct result of rehabilitation or demolition for a project; or</P> <P>(iii) As a direct result of a written notice of intent to acquire, or the acquisition, rehabilitation or demolition of, in whole or in part, other real property on which the person conducts a business or farm operation, for a project. However, eligibility for such person under this paragraph applies only for purposes of obtaining relocation assistance advisory services under <PRTPAGE P="214"/>§ 24.205(c), and moving expenses under § 24.301, § 24.302 or § 24.303.</P> <P>(2) <E T="03">Persons not displaced.</E> The following is a nonexclusive listing of persons who do not qualify as displaced persons under this part:</P> <P>(i) A person who moves before the initiation of negotiations (see also § 24.403(d)), unless the Agency determines that the person was displaced as a direct result of the program or project; or</P> <P>(ii) A person who initially enters into occupancy of the property after the date of its acquisition for the project; or</P> <P>(iii) A person who has occupied the property for the purpose of obtaining assistance under the Uniform Act;</P> <P>(iv) A person who is not required to relocate permanently as a direct result of a project. Such determination shall be made by the Agency in accordance with any guidelines established by the Federal agency funding the project (see also appendix A of this part); or</P> <P>(v) An owner-occupant who moves as a result of an acquisition as described at §§ 24.101(a) (1) and (2) , or as a result of the rehabilitation or demolition of the real property. (However, the displacement of a tenant as a direct result of any acquisition, rehabilitation or demolition for a Federal or federally-assisted project is subject to this part.); or</P> <P>(vi) A person whom the Agency determines is not displaced as a direct result of a partial acquisition; or</P> <P>(vii) A person who, after receiving a notice of relocation eligibility (described at § 24.203(b)), is notified in writing that he or she will not be displaced for a project. Such notice shall not be issued unless the person has not moved and the Agency agrees to reimburse the person for any expenses incurred to satisfy any binding contractual relocation obligations entered into after the effective date of the notice of relocation eligibility; or</P> <P>(viii) An owner-occupant who voluntarily conveys his or her property, as described at § 24.101(a) (1) and (2), after being informed in writing that if a mutually satisfactory agreement on terms of the conveyance cannot be reached, the Agency will not acquire the property. In such cases, however, any resulting displacement of a tenant is subject to the regulations in this part; or</P> <P>(ix) A person who retains the right of use and occupancy of the real property for life following its acquisition by the Agency; or</P> <P>(x) An owner who retains the right of use and occupancy of the real property for a fixed term after its acquisition by the Department of the Interior under Public Law 93-477 or Public Law 93-303, except that such owner remains a displaced person for purposes of subpart D of this part; or</P> <P>(xi) A person who is determined to be in unlawful occupancy prior to the initiation of negotiations (see paragraph (y) of this section), or a person who has been evicted for cause, under applicable law, as provided for in § 24.206.</P> <P>(xii) A person who is not lawfully present in the United States and who has been determined to be ineligible for relocation benefits in accordance with § 24.208.</P> <P> <E T="03">Dwelling.</E> The term <E T="03">dwelling</E> means the place of permanent or customary and usual residence of a person, according to local custom or law, including a single family house; a single family unit in a two-family, multi-family, or multi-purpose property; a unit of a condominium or cooperative housing project; a non-housekeeping unit; a mobile home; or any other residential unit.</P> <P> <E T="03">Farm operation.</E> The term <E T="03">farm operation</E> means any activity conducted solely or primarily for the production of one or more agricultural products or commodities, including timber, for sale or home use, and customarily producing such products or commodities in sufficient quantity to be capable of contributing materially to the operator's support.</P> <P> <E T="03">Federal financial assistance.</E> The term <E T="03">Federal financial assistance</E> means a grant, loan, or contribution provided by the United States, except any Federal guarantee or insurance and any interest reduction payment to an individual in connection with the purchase and occupancy of a residence by that individual.</P> <P> <E T="03">Initiation of negotiations.</E> Unless a different action is specified in applicable Federal program regulations, the term <PRTPAGE P="215"/> <E T="03">initiation of negotiations</E> means the following:</P> <P>(1) Whenever the displacement results from the acquisition of the real property by a Federal agency or State agency, the <E T="03">initiation of negotiations</E> means the delivery of the initial written offer of just compensation by the Agency to the owner or the owner's representative to purchase the real property for the project. However, if the Federal agency or State agency issues a notice of its intent to acquire the real property, and a person moves after that notice, but before de1ivery to the initial written purchase offer, the <E T="03">initiation of negotiations</E> means the actual move of the person from the property.</P> <P>(2) Whenever the displacement is caused by rehabilitation, demolition or privately undertaken acquisition of the real property (and there is no related acquisition by a Federal agency or a State agency), the <E T="03">initiation of negotiations</E> means the notice to the person that he or she will be displaced by the project or, if there is no notice, the actual move of the person from the property.</P> <P>(3) In the case of a permanent relocation to protect the public health and welfare, under the Comprehensive Environmental Response Compensation and Liability Act of 1980 (Pub. L. 96-510, or <E T="03">Superfund</E>) the <E T="03">initiation of negotiations</E> means the formal announcement of such relocation or the Federal or federally-coordinated health advisory where the Federal Government later decides to conduct a permanent relocation.</P> <P> <E T="03">Lead agency.</E> The term <E T="03">lead agency</E> means the Department of Transportation acting through the Federal Highway Administration.</P> <P> <E T="03">Mortgage.</E> The term <E T="03">mortgage</E> means such classes of liens as are commonly given to secure advances on, or the unpaid purchase price of, real property, under the laws of the State in which the real property is located, together with the credit instruments, if any, secured thereby.</P> <P> <E T="03">Nonprofit organization.</E> The term <E T="03">nonprofit organization</E> means an organization that is incorporated under the applicable laws of a State as a non-profit organization, and exempt from paying Federal income taxes under section 501 of the Internal Revenue Code (26 U.S.C. 501).</P> <P> <E T="03">Notice of intent to acquire or notice of eligibility for relocation assistance.</E> Written notice furnished to a person to be displaced, including those to be displaced by rehabilitation or demolition activities from property acquired prior to the commitment of Federal financial assistance to the activity, that establishes eligibility for relocation benefits prior to the initiation of negotiation and/or prior to the commitment of Federal financial assistance.</P> <P> <E T="03">Owner of a dwelling.</E> A person is considered to have met the requirement to own a dwelling if the person purchases or holds any of the following interests in real property;</P> <P>(1) Fee title, a life estate, a land contract, a 99-year lease, or a lease including any options for extension with at least 50 years to run from the date of acquisition; or</P> <P>(2) An interest in a cooperative housing project which includes the right to occupy a dwelling; or</P> <P>(3) A contract to purchase any of the interests or estates described in paragraphs (p) (1) or (2) of this section, or</P> <P>(4) Any other interest, including a partial interest, which in the judgment of the Agency warrants consideration as ownership.</P> <P> <E T="03">Person.</E> The term <E T="03">person</E> means any individual, family, partnership, corporation, or association.</P> <P> <E T="03">Program or project.</E> The phrase <E T="03">program or project</E> means any activity or series of activities undertaken by a Federal agency or with Federal financial assistance received or anticipated in any phase of an undertaking in accordance with the Federal funding agency guidelines.</P> <P> <E T="03">Salvage value.</E> The term <E T="03">salvage value</E> means the probable sale price of an item, if offered for sale on the condition that it will be removed from the property at the buyer's expense, allowing a reasonable period of time to find a person buying with knowledge of the uses and purposes for which it is adaptable and capable of being used, including separate use of serviceable components and scrap when there is no reasonable prospect of sale except on that basis.<PRTPAGE P="216"/> </P> <P> <E T="03">Small business.</E> A business having not more than 500 employees working at the site being acquired or displaced by a program or project, which site is the location of economic activity. Sites occupied solely by outdoor advertising signs, displays, or devices do not qualify as a business for purposes of § 24.304.</P> <P> <E T="03">State.</E> Any of the several States of the United States or the District of Columbia, the Commonwealth of Puerto Rico, any territory or possession of the United States, or a political subdivision of any of these jurisdictions.</P> <P> <E T="03">Tenant.</E> The term <E T="03">tenant</E> means a person who has the temporary use and occupancy of real property owned by another.</P> <P> <E T="03">Uneconomic remnant.</E> The term <E T="03">uneconomic remnant</E> means a parcel of real property in which the owner is left with an interest after the partial acquisition of the owner's property, and which the acquiring agency has determined has little or no value or utility to the owner.</P> <P> <E T="03">Uniform Act.</E> The term <E T="03">Uniform Act</E> means the Uniform Relocation Assistance and Real Property Acquisition Policy Act of 1970 (84 Stat. 1894; 42 U.S.C. 4601 <E T="03">et seq.</E>; Pub. L. 91-646), and amendments thereto.</P> <P> <E T="03">Unlawful occupancy.</E> A person is considered to be in unlawful occupancy if the person has been ordered to move by a court of competent jurisdiction prior to the initiation of negotiations or is determined by the Agency to be a squatter who is occupying the real property without the permission of the owner and otherwise has no legal right to occupy the property under State law. A displacing agency may, at its discretion, consider such a squatter to be in lawful occupancy.</P> <P> <E T="03">Utility costs.</E> The term <E T="03">utility costs</E> means expenses for heat, lights, water and sewer.</P> <P> <E T="03">Utility facility.</E> The term <E T="03">utility facility</E> means any electric, gas, water, steampower, or materials transmission or distribution system; any transportation system; any communications system, including cable television; and any fixtures, equipment, or other property associated with the operation, maintenance, or repair of any such system. A utility facility may be publicly, privately, or cooperatively owned.</P> <P> <E T="03">Utility relocation.</E> The term <E T="03">utility relocation</E> means the adjustment of a utility facility required by the program or project undertaken by the displacing agency. It includes removing and reinstalling the facility, including necessary temporary facilities; acquiring necessary right-of-way on new location; moving, rearranging or changing the type of existing facilities; and taking any necessary safety and protective measures. It shall also mean constructing a replacement facility that has the functional equivalency of the existing facility and is necessary for the continued operation of the utility service, the project economy, or sequence of project construction.</P> <CITA>[54 FR 8928, Mar. 2, 1989; 54 FR 24712, June 9, 1989; 58 FR 26072, Apr. 30, 1993; 64 FR 7131, Feb. 12, 1999]</CITA> </SECTION> <SECTION> <SECTNO>§ 24.3</SECTNO> <SUBJECT>No duplication of payments.</SUBJECT> <P>No person shall receive any payment under this part if that person receives a payment under Federal, State, or local law which is determined by the Agency to have the same purpose and effect as such payment under this part. (See appendix A of this part, § 24.3.)</P> </SECTION> <SECTION> <SECTNO>§ 24.4</SECTNO> <SUBJECT>Assurances, monitoring and corrective action.</SUBJECT> <P>(a) <E T="03">Assurances</E>—(1) Before a Federal agency may approve any grant to, or contract, or agreement with, a State agency under which Federal financial assistance will be made available for a project which results in real property acquisition or displacement that is subject to the Uniform Act, the State agency must provide appropriate assurances that it will comply with the Uniform Act and this part. A displacing agency's assurances shall be in accordance with section 210 of the Uniform Act. An acquiring agency's assurances shall be in accordance with section 305 of the Uniform Act and must contain specific reference to any State law which the Agency believes provides an exception to section 301 or 302 of the Uniform Act. If, in the judgment of the Federal agency, Uniform Act compliance will be served, a State agency may provide these assurances at one time to cover all subsequent federally-assisted programs or projects. An <PRTPAGE P="217"/>Agency which both acquires real property and displaces persons may combine its section 210 and section 305 assurances in one document.</P> <P>(2) If a Federal agency or State agency provides Federal financial assistance to a “person” causing displacement, such Federal or State agency is responsible for ensuring compliance with the requirements of this part, notwithstanding the person's contractual obligation to the grantee to comply.</P> <P>(3) As an alternative to the assurance requirement described in paragraph (a)(1) of this section, a Federal agency may provide Federal financial assistance to a State agency after it has accepted a certification by such State agency in accordance with the requirements in subpart G of this part.</P> <P>(b) <E T="03">Monitoring and corrective action.</E> The Federal agency will monitor compliance with this part, and the State agency shall take whatever corrective action is necessary to comply with the Uniform Act and this part. The Federal agency may also apply sanctions in accordance with applicable program regulations. (Also see § 24.603, subpart G.)</P> <P>(c) <E T="03">Prevention of fraud, waste, and mismanagement.</E> The Agency shall take appropriate measures to carry out this part in a manner that minimizes fraud, waste, and mismanagement.</P> </SECTION> <SECTION> <SECTNO>§ 24.5</SECTNO> <SUBJECT>Manner of notices.</SUBJECT> <P>Each notice which the Agency is required to provide to a property owner or occupant under this part, except the notice described at § 24.102(b), shall be personally served or sent by certified or registered first-class mail, return receipt requested, and documented in Agency files. Each notice shall be written in plain, understandable language. Persons who are unable to read and understand the notice must be provided with appropriate translation and counseling. Each notice shall indicate the name and telephone number of a person who may be contacted for answers to questions or other needed help.</P> </SECTION> <SECTION> <SECTNO>§ 24.6</SECTNO> <SUBJECT>Administration of jointly-funded projects.</SUBJECT> <P>Whenever two or more Federal agencies provide financial assistance to an Agency or Agencies, other than a Federal agency, to carry out functionally or geographically related activities which will result in the acquisition of property or the displacement of a person, the Federal agencies may by agreement designate one such agency as the cognizant Federal agency. In the unlikely event that agreement among the Agencies cannot be reached as to which agency shall be the cognizant Federal agency, then the lead agency shall designate one of such agencies to assume the cognizant role. At a minimum, the agreement shall set forth the federally assisted activities which are subject to its terms and cite any policies and procedures, in addition to this part, that are applicable to the activities under the agreement. Under the agreement, the cognizant Federal agency shall assure that the project is in compliance with the provisions of the Uniform Act and this part. All federally assisted activities under the agreement shall be deemed a project for the purposes of this part.</P> </SECTION> <SECTION> <SECTNO>§ 24.7</SECTNO> <SUBJECT>Federal agency waiver of regulations.</SUBJECT> <P>The Federal agency funding the project may waive any requirement in this part not required by law if it determines that the waiver does not reduce any assistance or protection provided to an owner or displaced person under this part. Any request for a waiver shall be justified on a case-by-case basis.</P> </SECTION> <SECTION> <SECTNO>§ 24.8</SECTNO> <SUBJECT>Compliance with other laws and regulations.</SUBJECT> <P>The implementation of this part must be in compliance with other applicable Federal laws and implementing regulations, including, but not limited to, the following:</P> <P>(a) Section I of the Civil Rights Act of 1866 (42 U.S.C. 1982 <E T="03">et seq.</E>).</P> <P>(b) Title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d <E T="03">et seq.</E>).</P> <P>(c) Title VIII of the Civil Rights Act of 1968 (42 U.S.C. 3601 <E T="03">et seq.</E>), as amended.</P> <P>(d) The National Environmental Policy Act of 1969 (42 U.S.C. 4321 <E T="03">et seq.</E>).</P> <P>(e) Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 790 <E T="03">et seq.</E>).</P> <P>(f) The Flood Disaster Protection Act of 1973 (Pub. L. 93-234).<PRTPAGE P="218"/> </P> <P>(g) The Age Discrimination Act of 1975 (42 U.S.C. 6101 <E T="03">et seq.</E>).</P> <P>(h) Executive Order 11063—Equal Opportunity and Housing, as amended by Executive Order l2259.</P> <P>(i) Executive Order 11246—Equal Employment Opportunity.</P> <P>(j) Executive Order 11625—Minority Business Enterprise.</P> <P>(k) Executive Orders 11988, Floodplain Management, and 11990, Protection of Wetlands.</P> <P>(l) Executive Order 12250—Leadership and Coordination of Non-Discrimination Laws.</P> <P>(m) Executive Order 12259—Leadership and Coordination of Fair Housing in Federal Programs.</P> <P>(n) Executive Order 12630—Governmental Actions and Interference with Constitutionally Protected Property Rights.</P> </SECTION> <SECTION> <SECTNO>§ 24.9</SECTNO> <SUBJECT>Recordkeeping and reports.</SUBJECT> <P>(a) <E T="03">Records.</E> The Agency shall maintain adequate records of its acquisition and displacement activities in sufficient detail to demonstrate compliance with this part. These records shall be retained for at least 3 years after each owner of a property and each person displaced from the property receives the final payment to which he or she is entitled under this part, or in accordance with the applicable regulations of the Federal funding agency, whichever is later.</P> <P>(b) <E T="03">Confidentiality of records.</E> Records maintained by an Agency in accordance with this part are confidential regarding their use as public information, unless applicable law provides otherwise.</P> <P>(c) <E T="03">Reports.</E> The Agency shall submit a report of its real property acquisition and displacement activities under this part if required by the Federal agency funding the project. A report will not be required more frequently than every 3 years, or as the Uniform Act provides, unless the Federal funding agency shows good cause. The report shall be prepared and submitted in the format contained in appendix B of this part.</P> </SECTION> <SECTION> <SECTNO>§ 24.10</SECTNO> <SUBJECT>Appeals.</SUBJECT> <P>(a) <E T="03">General.</E> The Agency shall promptly review appeals in accordance with the requirements of applicable law and this part.</P> <P>(b) <E T="03">Actions which may be appealed.</E> Any aggrieved person may file a written appeal with the Agency in any case in which the person believes that the Agency has failed to properly consider the person's application for assistance under this part. Such assistance may include, but is not limited to, the person's eligibility for, or the amount of, a payment required under § 24.106 or § 24.107, or a relocation payment required under this part. The Agency shall consider a written appeal regardless of form.</P> <P>(c) <E T="03">Time limit for initiating appeal.</E> The Agency may set a reasonable time limit for a person to file an appeal. The time limit shall not be less than 60 days after the person receives written notification of the Agency's determination on the person's claim.</P> <P>(d) <E T="03">Right to representation.</E> A person has a right to be represented by legal counsel or other representative in connection with his or her appeal, but solely at the person's own expense.</P> <P>(e) <E T="03">Review of files by person making appeal.</E> The Agency shall permit a person to inspect and copy all materials pertinent to his or her appeal, except materials which are classified as confidential by the Agency. The Agency may, however, impose reasonable conditions on the person's right to inspect, consistent with applicable laws.</P> <P>(f) <E T="03">Scope of review of appeal.</E> In deciding an appeal, the Agency shall consider all pertinent justification and other material submitted by the person, and all other available information that is needed to ensure a fair and full review of the appeal.</P> <P>(g) <E T="03">Determination and notification after appeal.</E> Promptly after receipt of all information submitted by a person in support of an appeal, the Agency shall make a written determination on the appeal, including an explanation of the basis on which the decision was made, and furnish the person a copy. If the full relief requested is not granted, the Agency shall advise the person of his or her right to seek judicial review.</P> <P>(h) <E T="03">Agency official to review appeal.</E> The Agency official conducting the review of the appeal shall be either the <PRTPAGE P="219"/>head of the Agency or his or her authorized designee. However, the official shall not have been directly involved in the action appealed.</P> </SECTION> </SUBPART> <SUBPART> <HD SOURCE="HED">Subpart B—Real Property Acquisition</HD> <SECTION> <SECTNO>§ 24.101</SECTNO> <SUBJECT>Applicability of acquisition requirements.</SUBJECT> <P>(a) <E T="03">General.</E> The requirements of this subpart apply to any acquisition of real property for a Federal program or project, and to programs and projects where there is Federal financial assistance in any part of project costs except for:</P> <P>(1) Voluntary transactions that meet all of the following conditions:</P> <P>(i) No specific site or property needs to be acquired, although the Agency may limit its search for alternative sites to a general geographic area. Where an Agency wishes to purchase more than one site within a geographic area on this basis, all owners are to be treated similarly.</P> <P>(ii) The property to be acquired is not part of an intended, planned, or designated project area where all or substantially all of the property within the area is to be acquired within specific time limits.</P> <P>(iii) The Agency will not acquire the property in the event negotiations fail to result in an amicable agreement, and the owner is so informed in writing.</P> <P>(iv) The Agency will inform the owner of what it believes to be the fair market value of the property.</P> <P>(2) Acquisitions for programs or projects undertaken by an Agency or person that receives Federal financial assistance but does not have authority to acquire property by eminent domain, provided that such Agency or person shall:</P> <P>(i) Prior to making an offer for the property, clearly advise the owner that it is unable to acquire the property in the event negotiations fail to result in an amicable agreement; and</P> <P>(ii) Inform the owner of what it believes to be fair market value of the property.</P> <P>(3) The acquisition of real property from a Federal agency, State, or State agency, if the Agency desiring to make the purchase does not have authority to acquire the property through condemnation.</P> <P>(4) The acquisition of real property by a cooperative from a person who, as a condition of membership in the cooperative, has agreed to provide without charge any real property that is needed by the cooperative.</P> <P>(5) Acquisition for a program or project which is undertaken by, or receives Federal financial assistance from, the Tennessee Valley Authority or the Rural Electrification Administration.</P> <P>(b) <E T="03">Less-than-full-fee interest in real property.</E> In addition to fee simple title, the provisions of this subpart apply when acquiring fee title subject to retention of a life estate or a life use; to acquisition by leasing where the lease term, including option(s) for extension, is 50 years or more; and to the acquisition of permanent easements. (See appendix A of this part, § 24.101(b).)</P> <P>(c) <E T="03">Federally-assisted projects.</E> For projects receiving Federal financial assistance, the provisions of §§ 24.102, 24.103, 24.104, and 24.105 apply to the greatest extent practicable under State law. (See § 24.4(a).)</P> <CITA>[54 FR 8928, Mar. 2, 1989; 54 FR 24712, June 9, 1989; 58 FR 26072, Apr. 30, 1993]</CITA> </SECTION> <SECTION> <SECTNO>§ 24.102</SECTNO> <SUBJECT>Basic acquisition policies.</SUBJECT> <P>(a) <E T="03">Expeditious acquisition.</E> The Agency shall make every reasonable effort to acquire the real property expeditiously by negotiation.</P> <P>(b) <E T="03">Notice to owner.</E> As soon as feasible, the owner shall be notified of the Agency's interest in acquiring the real property and the basic protections, including the agency's obligation to secure an appraisal, provided to the owner by law and this part. (See also § 24.203.)</P> <P>(c) <E T="03">Appraisal, waiver thereof, and invitation to owner.</E> (1) Before the initiation of negotiations the real property to be acquired shall be appraised, except as provided in § 24.102(c)(2), and the owner, or the owner's designated representative, shall