<?xml version="1.0"?>
<?xml-stylesheet type="text/xsl" href="cfr.xsl"?>
<CFRDOC xmlns:xsi="http://www.w3.org/2001/XMLSchema-instance" xsi:noNamespaceSchemaLocation="CFRMergedXML.xsd">
  <AMDDATE>Oct. 1, 2003</AMDDATE>
  <FMTR>
    <TITLEPG>
      <CODE>CODE OF FEDERAL REGULATIONS</CODE>
      <PRTPAGE P="1"/>
      <TITLENUM>44</TITLENUM>
      <REVISED>Revised as of October 1, 2003</REVISED>
      <SUBJECT>Emergency Management and Assistance</SUBJECT>
      <CONTAINS>Containing a codification of documents of general applicability and future effect</CONTAINS>
      <DATE>As of October 1, 2003</DATE>
      <ANCIL>With Ancillaries</ANCIL>
      <PUB>
        <P>Published by</P>
        <P>Office of the Federal Register</P>
        <P>National Archives and Records</P>
        <P>Administration</P>
      </PUB>
      <SPECED>A Special Edition of the Federal Register</SPECED>
    </TITLEPG>
    <BTITLE>
      <PRTPAGE P="?ii"/>
      <GPO>U.S. GOVERNMENT PRINTING OFFICE</GPO>
      <CITY>WASHINGTON : 2003</CITY>
      <FORSALE>
        <P>For sale by the Superintendent of Documents, U.S. Government Printing Office</P>
        <P>Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; DC area (202) 512-1800</P>
        <P>Fax: (202) 512-2250 Mail: Stop SSOP, Washington, DC 20402-0001</P>
      </FORSALE>
    </BTITLE>
    <TOC>
      <PRTPAGE P="iii"/>
      <HD SOURCE="HED">Table of Contents</HD>
      <PGHD>Page</PGHD>
      <EXPL>
        <SUBJECT>Explanation</SUBJECT>
        <PG>v</PG>
      </EXPL>
      <TITLENO>
        <HD SOURCE="HED">Title 44:</HD>
        <CHAPTI>
          <SUBJECT>Chapter I—Federal Emergency Management Agency, Department of Homeland Security</SUBJECT>
          <PG>3</PG>
        </CHAPTI>
        <CHAPTI>
          <SUBJECT>Chapter IV—Department of Commerce and Department of Transportation</SUBJECT>
          <PG>613</PG>
        </CHAPTI>
      </TITLENO>
      <FAIDS>
        <HD SOURCE="HED">Finding Aids:</HD>
        <SUBJECT>Table of CFR Titles and Chapters</SUBJECT>
        <PG>621</PG>
        <SUBJECT>Alphabetical List of Agencies Appearing in the CFR</SUBJECT>
        <PG>639</PG>
        <SUBJECT>List of CFR Sections Affected</SUBJECT>
        <PG>649</PG>
      </FAIDS>
    </TOC>
    <CITE>
      <PRTPAGE P="iv"/>
      <P>Cite this Code:<E T="01">CFR</E>
      </P>

      <CITEP>To cite the regulations in this volume use title, part and section number. Thus, <E T="01">44 CFR 1.1</E> refers to title 44, part 1, section 1.</CITEP>
    </CITE>
    <EXPLA>
      <PRTPAGE P="v"/>
      <HD SOURCE="HED">Explanation</HD>
      <P>The Code of Federal Regulations is a codification of the general and permanent rules published in the Federal Register by the Executive departments and agencies of the Federal Government. The Code is divided into 50 titles which represent broad areas subject to Federal regulation. Each title is divided into chapters which usually bear the name of the issuing agency. Each chapter is further subdivided into parts covering specific regulatory areas.</P>
      <P>Each volume of the Code is revised at least once each calendar year and issued on a quarterly basis approximately as follows:</P>
      <IPAR>
        <P SOURCE="P1">Title 1 through Title 16 </P>
        <STUB>as of January 1</STUB>
        <P SOURCE="P1">Title 17 through Title 27 </P>
        <STUB>as of April 1</STUB>
        <P SOURCE="P1">Title 28 through Title 41 </P>
        <STUB>as of July 1</STUB>
        <P SOURCE="P1">Title 42 through Title 50 </P>
        <STUB>as of October 1</STUB>
      </IPAR>
      <P>The appropriate revision date is printed on the cover of each volume.</P>
      <SIDEHED>
        <HD SOURCE="HED">LEGAL STATUS</HD>
        <P>The contents of the Federal Register are required to be judicially noticed (44 U.S.C. 1507). The Code of Federal Regulations is prima facie evidence of the text of the original documents (44 U.S.C. 1510).</P>
      </SIDEHED>
      <SIDEHED>
        <HD SOURCE="HED">HOW TO USE THE CODE OF FEDERAL REGULATIONS</HD>
        <P>The Code of Federal Regulations is kept up to date by the individual issues of the Federal Register. These two publications must be used together to determine the latest version of any given rule.</P>
        <P>To determine whether a Code volume has been amended since its revision date (in this case, October 1, 2003), consult the “List of CFR Sections Affected (LSA),” which is issued monthly, and the “Cumulative List of Parts Affected,” which appears in the Reader Aids section of the daily Federal Register. These two lists will identify the Federal Register page number of the latest amendment of any given rule.</P>
      </SIDEHED>
      <SIDEHED>
        <HD SOURCE="HED">EFFECTIVE AND EXPIRATION DATES</HD>
        <P>Each volume of the Code contains amendments published in the Federal Register since the last revision of that volume of the Code. Source citations for the regulations are referred to by volume number and page number of the Federal Register and date of publication. Publication dates and effective dates are usually not the same and care must be exercised by the user in determining the actual effective date. In instances where the effective date is beyond the cut-off date for the Code a note has been inserted to reflect the future effective date. In those instances where a regulation published in the Federal Register states a date certain for expiration, an appropriate note will be inserted following the text.</P>
      </SIDEHED>
      <SIDEHED>
        <HD SOURCE="HED">OMB CONTROL NUMBERS</HD>

        <P>The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires Federal agencies to display an OMB control number with their information collection request. <PRTPAGE P="vi"/>Many agencies have begun publishing numerous OMB control numbers as amendments to existing regulations in the CFR. These OMB numbers are placed as close as possible to the applicable recordkeeping or reporting requirements.</P>
      </SIDEHED>
      <SIDEHED>
        <HD SOURCE="HED">OBSOLETE PROVISIONS</HD>
        <P>Provisions that become obsolete before the revision date stated on the cover of each volume are not carried. Code users may find the text of provisions in effect on a given date in the past by using the appropriate numerical list of sections affected. For the period before January 1, 2001, consult either the List of CFR Sections Affected, 1949-1963, 1964-1972, 1973-1985, or 1986-2000, published in 11 separate volumes. For the period beginning January 1, 2001, a “List of CFR Sections Affected” is published at the end of each CFR volume.</P>
      </SIDEHED>
      <SIDEHED>
        <HD SOURCE="HED">CFR INDEXES AND TABULAR GUIDES</HD>

        <P>A subject index to the Code of Federal Regulations is contained in a separate volume, revised annually as of January 1, entitled CFR <E T="04">Index and Finding Aids.</E> This volume contains the Parallel Table of Statutory Authorities and Agency Rules (Table I). A list of CFR titles, chapters, and parts and an alphabetical list of agencies publishing in the CFR are also included in this volume.</P>
        <P>An index to the text of “Title 3—The President” is carried within that volume.</P>
        <P>The Federal Register Index is issued monthly in cumulative form. This index is based on a consolidation of the “Contents” entries in the daily Federal Register.</P>
        <P>A List of CFR Sections Affected (LSA) is published monthly, keyed to the revision dates of the 50 CFR titles.</P>
      </SIDEHED>
      <SIDEHED>
        <HD SOURCE="HED">REPUBLICATION OF MATERIAL</HD>
        <P>There are no restrictions on the republication of material appearing in the Code of Federal Regulations.</P>
      </SIDEHED>
      <SIDEHED>
        <HD SOURCE="HED">INQUIRIES</HD>
        <P>For a legal interpretation or explanation of any regulation in this volume, contact the issuing agency. The issuing agency's name appears at the top of odd-numbered pages.</P>
        <P>For inquiries concerning CFR reference assistance, call 202-741-6000 or write to the Director, Office of the Federal Register, National Archives and Records Administration, Washington, DC 20408 or e-mail info@fedreg.nara.gov.</P>
      </SIDEHED>
      <SIDEHED>
        <HD SOURCE="HED">SALES</HD>
        <P>The Government Printing Office (GPO) processes all sales and distribution of the CFR. For payment by credit card, call toll free, 866-512-1800, or DC area, 202-512-1800, M-F 8 a.m. to 4 p.m. e.s.t. or fax your order to 202-512-2250, 24 hours a day. For payment by check, write to the Superintendent of Documents, Attn: New Orders, P.O. Box 371954, Pittsburgh, PA 15250-7954. For GPO Customer Service call 202-512-1803.</P>
      </SIDEHED>
      <SIDEHED>
        <HD SOURCE="HED">ELECTRONIC SERVICES</HD>

        <P>The full text of the Code of Federal Regulations, the LSA (List of CFR Sections Affected), The United States Government Manual, the Federal Register, Public Laws, Public Papers, Weekly Compilation of Presidential Documents and the Privacy Act Compilation are available in electronic format at www.access.gpo.gov/nara (“GPO Access”). For more information, contact Electronic Information Dissemination Services, U.S. Government Printing Office. Phone 202-512-1530, or 888-293-6498 (toll-free). E-mail, gpoaccess@gpo.gov.<PRTPAGE P="vii"/>
        </P>
        <P>The Office of the Federal Register also offers a free service on the National Archives and Records Administration's (NARA) World Wide Web site for public law numbers, Federal Register finding aids, and related information.  Connect to NARA's web site at www.archives.gov/federal_register. The NARA site also contains links to GPO Access.</P>
      </SIDEHED>
      <SIG>
        <NAME>Raymond A. Mosley,</NAME>
        <POSITION>Director,</POSITION>
        <OFFICE>Office of the Federal Register.</OFFICE>
      </SIG>
      <DATE>October 1, 2003.</DATE>
    </EXPLA>
    <THISTITL>
      <PRTPAGE P="ix"/>
      <HD SOURCE="HED">THIS TITLE</HD>
      <P>Title 44—<E T="04">Emergency Management and Assistance</E> is composed of one volume. The contents of this volume represent all current regulations codified under this title of the CFR as of October 1, 2003.</P>
      <GPH DEEP="532" SPAN="1">
        <PRTPAGE P="x"/>
        <GID>CFRORDR.FRM</GID>
      </GPH>
    </THISTITL>
  </FMTR>
  <TITLE>
    <LRH>44 CFR Ch. I (10-1-03 Edition)</LRH>
    <RRH>Federal Emergency Management Agency, DHS</RRH>
    <CFRTITLE>
      <TITLEHD>
        <PRTPAGE P="1"/>
        <HD SOURCE="HED">Title 44—Emergency Management and Assistance</HD>
      </TITLEHD>
      <CFRTOC>
        <PTHD>Part</PTHD>
        <CHAPTI>
          <SUBJECT>
            <E T="04">chapter i—</E> Federal Emergency Management Agency, Department of Homeland Security</SUBJECT>
          <PG>1</PG>
        </CHAPTI>
        <CHAPTI>
          <SUBJECT>
            <E T="04">chapter iv—</E> Department of Commerce and Department of Transportation</SUBJECT>
          <PG>401</PG>
        </CHAPTI>
      </CFRTOC>
    </CFRTITLE>
    <CHAPTER>
      <TOC>
        <TOCHD>
          <PRTPAGE P="3"/>
          <HD SOURCE="HED">CHAPTER I—FEDERAL EMERGENCY MANAGEMENT AGENCY, DEPARTMENT OF HOMELAND SECURITY</HD>
        </TOCHD>
        <SUBCHAP>
          <HD SOURCE="HED">SUBCHAPTER A—GENERAL</HD>
        </SUBCHAP>
        <PTHD>Part</PTHD>
        <PGHD>Page</PGHD>
        <CHAPTI>
          <PT>0</PT>
          <RESERVED>General statements of policy [Reserved]</RESERVED>
          <PT>1</PT>
          <SUBJECT>Rulemaking; policy and procedures</SUBJECT>
          <PG>7</PG>
          <PT>2</PT>
          <SUBJECT>Organization, functions, and delegations of authority</SUBJECT>
          <PG>13</PG>
          <PT>3</PT>
          <RESERVED>[Reserved]</RESERVED>
          <PT>4</PT>
          <SUBJECT>Intergovernmental review of Federal Emergency Management Agency (FEMA) programs and activities</SUBJECT>
          <PG>27</PG>
          <PT>5</PT>
          <SUBJECT>Production or disclosure of information</SUBJECT>
          <PG>30</PG>
          <PT>6</PT>
          <SUBJECT>Implementation of the Privacy Act of 1974</SUBJECT>
          <PG>46</PG>
          <PT>7</PT>
          <SUBJECT>Nondiscrimination in federally-assisted programs (FEMA Reg. 5)</SUBJECT>
          <PG>64</PG>
          <PT>8</PT>
          <SUBJECT>National security information</SUBJECT>
          <PG>80</PG>
          <PT>9</PT>
          <SUBJECT>Floodplain management and protection of wetlands</SUBJECT>
          <PG>81</PG>
          <PT>10</PT>
          <SUBJECT>Environmental considerations</SUBJECT>
          <PG>101</PG>
          <PT>11</PT>
          <SUBJECT>Claims</SUBJECT>
          <PG>111</PG>
          <PT>12</PT>
          <SUBJECT>Advisory committees</SUBJECT>
          <PG>138</PG>
          <PT>13</PT>
          <SUBJECT>Uniform administrative requirements for grants and cooperative agreements to State and local governments</SUBJECT>
          <PG>145</PG>
          <PT>14</PT>
          <SUBJECT>Administration of grants: Audits of State and local governments</SUBJECT>
          <PG>173</PG>
          <PT>15</PT>
          <SUBJECT>Conduct at the Mt. Weather Emergency Assistance Center and at the National Emergency Training Center</SUBJECT>
          <PG>179</PG>
          <PT>16</PT>
          <SUBJECT>Enforcement of nondiscrimination on the basis of handicap in programs or activities conducted by the Federal Emergency Management Agency</SUBJECT>
          <PG>182<PRTPAGE P="4"/>
          </PG>
          <PT>17</PT>
          <SUBJECT>Governmentwide debarment and suspension (nonprocurement) and governmentwide requirements for drug-free workplace (grants)</SUBJECT>
          <PG>188</PG>
          <PT>18</PT>
          <SUBJECT>New restrictions on lobbying</SUBJECT>
          <PG>207</PG>
          <PT>19</PT>
          <SUBJECT>Nondiscrimination on the basis of sex in education programs or activities receiving Federal financial assistance</SUBJECT>
          <PG>218</PG>
          <PT>20-24</PT>
          <RESERVED>[Reserved]</RESERVED>
          <PT>25</PT>
          <SUBJECT>Uniform relocation assistance and real property acquisition for Federal and federally assisted programs</SUBJECT>
          <PG>234</PG>
          <PT>26-49</PT>
          <RESERVED>[Reserved]</RESERVED>
        </CHAPTI>
        <SUBCHAP>
          <HD SOURCE="HED">SUBCHAPTER B—INSURANCE AND HAZARD MITIGATION</HD>
        </SUBCHAP>
        <CHAPTI>
          <PT>50-54</PT>
          <RESERVED>[Reserved]</RESERVED>
        </CHAPTI>
        <GROUPHD>
          <E T="04">National Insurance Development Program</E>
        </GROUPHD>
        <CHAPTI>
          <PT>55-58</PT>
          <RESERVED>[Reserved]</RESERVED>
        </CHAPTI>
        <GROUPHD>
          <E T="04">National Flood Insurance Program</E>
        </GROUPHD>
        <CHAPTI>
          <PT>59</PT>
          <SUBJECT>General provisions</SUBJECT>
          <PG>235</PG>
          <PT>60</PT>
          <SUBJECT>Criteria for land management and use</SUBJECT>
          <PG>250</PG>
          <PT>61</PT>
          <SUBJECT>Insurance coverage and rates</SUBJECT>
          <PG>266</PG>
          <PT>62</PT>
          <SUBJECT>Sale of insurance and adjustment of claims</SUBJECT>
          <PG>317</PG>
          <PT>63</PT>
          <SUBJECT>Implementation of section 1306(c) of the National Flood Insurance Act of 1968</SUBJECT>
          <PG>332</PG>
          <PT>64</PT>
          <SUBJECT>Communities eligible for the sale of insurance</SUBJECT>
          <PG>337</PG>
          <PT>65</PT>
          <SUBJECT>Identification and mapping of special hazard areas</SUBJECT>
          <PG>340</PG>
          <PT>66</PT>
          <SUBJECT>Consultation with local officials</SUBJECT>
          <PG>356</PG>
          <PT>67</PT>
          <SUBJECT>Appeals from proposed flood elevation determinations</SUBJECT>
          <PG>358</PG>
          <PT>68</PT>
          <SUBJECT>Administrative hearing procedures</SUBJECT>
          <PG>361</PG>
          <PT>69</PT>
          <RESERVED>[Reserved]</RESERVED>
          <PT>70</PT>
          <SUBJECT>Procedure for map correction</SUBJECT>
          <PG>363</PG>
          <PT>71</PT>
          <SUBJECT>Implementation of coastal barrier legislation</SUBJECT>
          <PG>366</PG>
          <PT>72</PT>
          <SUBJECT>Procedures and fees for processing map changes</SUBJECT>
          <PG>369</PG>
          <PT>73</PT>
          <SUBJECT>Implementation of section 1316 of the National Flood Insurance Act of 1968</SUBJECT>
          <PG>373</PG>
          <PT>74</PT>
          <RESERVED>[Reserved]</RESERVED>
          <PT>75</PT>
          <SUBJECT>Exemption of State-owned properties under self-insurance plan</SUBJECT>
          <PG>374</PG>
          <PT>76-77</PT>
          <RESERVED>[Reserved]</RESERVED>
          <PT>78</PT>
          <SUBJECT>Flood mitigation assistance</SUBJECT>
          <PG>376<PRTPAGE P="5"/>
          </PG>
          <PT>79</PT>
          <RESERVED>[Reserved]</RESERVED>
        </CHAPTI>
        <GROUPHD>
          <E T="04">Federal Crime Insurance Program</E>
        </GROUPHD>
        <CHAPTI>
          <PT>80-149</PT>
          <RESERVED>[Reserved]</RESERVED>
        </CHAPTI>
        <SUBCHAP>
          <HD SOURCE="HED">SUBCHAPTER C—FIRE PREVENTION AND CONTROL</HD>
        </SUBCHAP>
        <CHAPTI>
          <PT>150</PT>
          <SUBJECT>Public safety awards to public safety officers</SUBJECT>
          <PG>380</PG>
          <PT>151</PT>
          <SUBJECT>Reimbursement for costs of firefighting on Federal property</SUBJECT>
          <PG>383</PG>
          <PT>152</PT>
          <SUBJECT>Assistance to firefighters grant program</SUBJECT>
          <PG>388</PG>
          <PT>153-199</PT>
          <RESERVED>[Reserved]</RESERVED>
        </CHAPTI>
        <SUBCHAP>
          <HD SOURCE="HED">SUBCHAPTER D—DISASTER ASSISTANCE</HD>
        </SUBCHAP>
        <CHAPTI>
          <PT>200</PT>
          <RESERVED>[Reserved]</RESERVED>
          <PT>201</PT>
          <SUBJECT>Mitigation planning</SUBJECT>
          <PG>397</PG>
          <PT>202-203</PT>
          <RESERVED>[Reserved]</RESERVED>
          <PT>204</PT>
          <SUBJECT>Fire Management Assistance Grant Program</SUBJECT>
          <PG>403</PG>
          <PT>205</PT>
          <RESERVED>[Reserved]</RESERVED>
          <PT>206</PT>
          <SUBJECT>Federal Disaster Assistance for disasters declared on or after November 23, 1988</SUBJECT>
          <PG>413</PG>
          <PT>207-208</PT>
          <RESERVED>[Reserved]</RESERVED>
          <PT>209</PT>
          <SUBJECT>Supplemental property acquisition and elevation assistance</SUBJECT>
          <PG>514</PG>
          <PT>210-294</PT>
          <RESERVED>[Reserved]</RESERVED>
        </CHAPTI>
        <SUBCHAP>
          <HD SOURCE="HED">SUBCHAPTER E—CERRO GRANDE FIRE ASSISTANCE</HD>
        </SUBCHAP>
        <CHAPTI>
          <PT>295</PT>
          <SUBJECT>Cerro Grande fire assistance</SUBJECT>
          <PG>522</PG>
          <PT>296-299</PT>
          <RESERVED>[Reserved]</RESERVED>
        </CHAPTI>
        <SUBCHAP>
          <HD SOURCE="HED">SUBCHAPTER F—PREPAREDNESS</HD>
        </SUBCHAP>
        <CHAPTI>
          <PT>300</PT>
          <SUBJECT>Disaster preparedness assistance</SUBJECT>
          <PG>535</PG>
          <PT>301</PT>
          <RESERVED>[Reserved]</RESERVED>
          <PT>302</PT>
          <SUBJECT>Civil defense-State and local Emergency Management Assistance Program (EMA)</SUBJECT>
          <PG>536</PG>
          <PT>303</PT>
          <RESERVED>[Reserved]</RESERVED>
          <PT>304</PT>
          <SUBJECT>Consolidated grants to insular areas</SUBJECT>
          <PG>545</PG>
          <PT>305-311</PT>
          <RESERVED>[Reserved]</RESERVED>
          <PT>312</PT>
          <SUBJECT>Use of civil defense personnel, materials, and facilities for natural disaster purposes</SUBJECT>
          <PG>546</PG>
          <PT>313-320</PT>
          <RESERVED>[Reserved]</RESERVED>
          <PT>321</PT>
          <SUBJECT>Maintenance of the mobilization base (Department of Defense, Department of Energy, Maritime Administration)</SUBJECT>
          <PG>549</PG>
          <PT>323</PT>
          <SUBJECT>Guidance on priority use of resources in immediate post attack period (DMO-4)</SUBJECT>
          <PG>552</PG>
          <PT>324-326</PT>
          <RESERVED>[Reserved]<PRTPAGE P="6"/>
          </RESERVED>
          <PT>327</PT>
          <SUBJECT>Policy on use of Government-owned industrial plant equipment by private industry (DMO-10A)</SUBJECT>
          <PG>557</PG>
          <PT>328</PT>
          <RESERVED>[Reserved]</RESERVED>
          <PT>329</PT>
          <SUBJECT>Use of priorities and allocation authority for Federal supply classification (FSC) common use items (DMO-12)</SUBJECT>
          <PG>558</PG>
          <PT>330</PT>
          <SUBJECT>Policy guidance and delegation of authorities for use of priorities and allocations to maximize domestic energy supplies in accordance with subsection 101(c) of the Defense Production Act of 1950, as amended (DMO-13)</SUBJECT>
          <PG>560</PG>
          <PT>331</PT>
          <SUBJECT>Preservation of the mobilization base through the placement of procurement and facilities in labor surplus areas</SUBJECT>
          <PG>561</PG>
          <PT>332</PT>
          <SUBJECT>Voluntary agreements under section 708 of the Defense Production Act of 1950, as amended</SUBJECT>
          <PG>562</PG>
          <PT>333</PT>
          <RESERVED>[Reserved]</RESERVED>
          <PT>334</PT>
          <SUBJECT>Graduated mobilization response</SUBJECT>
          <PG>565</PG>
          <PT>335-349</PT>
          <RESERVED>[Reserved]</RESERVED>
          <PT>350</PT>
          <SUBJECT>Review and approval of State and local radiological emergency plans and preparedness</SUBJECT>
          <PG>569</PG>
          <PT>351</PT>
          <SUBJECT>Radiological emergency planning and preparedness</SUBJECT>
          <PG>579</PG>
          <PT>352</PT>
          <SUBJECT>Commercial Nuclear Power Plants: Emergency Preparedness Planning</SUBJECT>
          <PG>585</PG>
          <PT>353</PT>
          <SUBJECT>Fee for services in support, review and approval of State and local government or licensee radiological emergency plans and preparedness</SUBJECT>
          <PG>591</PG>
          <PT>354</PT>
          <SUBJECT>Fee for services to support FEMA'S offsite Radiological Emergency Preparedness Program</SUBJECT>
          <PG>599</PG>
          <PT>355-359</PT>
          <RESERVED>[Reserved]</RESERVED>
          <PT>360</PT>
          <SUBJECT>State assistance programs for training and education in comprehensive emergency management</SUBJECT>
          <PG>603</PG>
          <PT>361</PT>
          <SUBJECT>National earthquake hazards reduction assistance to State and local governments</SUBJECT>
          <PG>606</PG>
          <PT>362</PT>
          <SUBJECT>Criteria for acceptance of gifts, bequests, or services</SUBJECT>
          <PG>611</PG>
          <PT>363-399</PT>
          <RESERVED>[Reserved]</RESERVED>
        </CHAPTI>
      </TOC>
      <SUBCHAP TYPE="N">
        <PRTPAGE P="7"/>
        <HD SOURCE="HED">SUBCHAPTER A—GENERAL</HD>
        <PART>
          <RESERVED>PART 0—GENERAL STATEMENTS OF POLICY [RESERVED]</RESERVED>
        </PART>
        <PART>
          <EAR>Pt. 1</EAR>
          <HD SOURCE="HED">PART 1—RULEMAKING; POLICY AND PROCEDURES</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>Scope.</SUBJECT>
              <SECTNO>1.4</SECTNO>
              <SUBJECT>Policy and procedures.</SUBJECT>
              <SECTNO>1.5</SECTNO>
              <SUBJECT>Rules docket.</SUBJECT>
              <SECTNO>1.6</SECTNO>
              <SUBJECT>Ex parte communications.</SUBJECT>
              <SECTNO>1.7</SECTNO>
              <SUBJECT>Regulations agendas.</SUBJECT>
              <SECTNO>1.8</SECTNO>
              <SUBJECT>Regulations review.</SUBJECT>
              <SECTNO>1.9</SECTNO>
              <SUBJECT>Regulatory impact analyses.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart B—Procedures for Rulemaking</HD>
              <SECTNO>1.10</SECTNO>
              <SUBJECT>Initiation of rulemaking.</SUBJECT>
              <SECTNO>1.11</SECTNO>
              <SUBJECT>Advance notice of proposed rulemaking.</SUBJECT>
              <SECTNO>1.12</SECTNO>
              <SUBJECT>Notice of proposed rulemaking.</SUBJECT>
              <SECTNO>1.13</SECTNO>
              <SUBJECT>Participation by interested persons.</SUBJECT>
              <SECTNO>1.14</SECTNO>
              <SUBJECT>Additional rulemaking proceedings.</SUBJECT>
              <SECTNO>1.15</SECTNO>
              <SUBJECT>Hearings.</SUBJECT>
              <SECTNO>1.16</SECTNO>
              <SUBJECT>Adoption of a final rule.</SUBJECT>
              <SECTNO>1.17</SECTNO>
              <SUBJECT>Petitions for reconsideration.</SUBJECT>
              <SECTNO>1.18</SECTNO>
              <SUBJECT>Petition for rulemaking.</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>5 U.S.C. 551, 552, 553; 5 U.S.C. 601, <E T="03">et seq.;</E> E.O. 12291. Reorganization Plan No. 3 of 1978; E.O. 12127; E.O. 12148.</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>46 FR 32584, June 24, 1981, unless otherwise noted.</P>
          </SOURCE>
          <SUBPART>
            <HD SOURCE="HED">Subpart A—General</HD>
            <SECTION>
              <SECTNO>§ 1.1</SECTNO>
              <SUBJECT>Purpose.</SUBJECT>
              <P>(a) This part contains the basic policies and procedures of the Federal Emergency Management Agency (FEMA) for adoption of rules. These policies and procedures incorporate those provisions of section 4 of the Administrative Procedure Act (APA) (5 U.S.C. 553) which FEMA will follow. This part and internal FEMA Manuals implement Executive Order 12291.</P>
              <P>(b) Rules which must be published are described in section 3(a) of the APA, 5 U.S.C. 552(a). FEMA implementation of paragraph (a) is contained in 44 CFR part 5, subpart B.</P>
              <P>(c) This part contains policies and procedures for implementation of the Regulatory Flexibility Act which took effect January 1, 1981.</P>

              <P>(d) A FEMA Manual No. 1140.1, “The Formulation, Drafting, Clearance, and Publication of <E T="04">Federal Register</E> Documents” has been issued describing the internal procedures including policy level oversight of FEMA for:</P>
              <P>(1) Publishing the semiannual agenda of significant regulations under development and review;</P>
              <P>(2) Making initial determinations with respect to significance of proposed rulemaking;</P>
              <P>(3) Determining the need for regulatory analyses; and</P>
              <P>(4) Reviewing existing regulations, including the reviews required by the Regulatory Flexibility Act.</P>
              <P>(e) As the FEMA Manual deals with internal management it is not subject to the requirements either of 5 U.S.C. 552 or 553. Its provisions are not part of this rule and reference to it is informative only.</P>
              <CITA>[46 FR 32584, June 24, 1981, as amended at 49 FR 33878, Aug. 27, 1984]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>§ 1.2</SECTNO>
              <SUBJECT>Definitions.</SUBJECT>
              <P>(a) <E T="03">Rule</E> or <E T="03">regulation</E> means the whole or a part of any agency statement of general applicability and future effect designed to (1) implement, interpret, or prescribe law or policy, or (2) describe procedures or practice requirements. It includes any rule of general applicability governing Federal grants to State and local governments for which the agency provides an opportunity for notice and public comment, except that the term <E T="03">rule</E> does not include a rule of particular applicability relating to rates, wages, prices, facilities, appliances, services, or allowances therefor or to valuations, costs or accounting, or practices relating to such rates, wages, structures, prices, appliances, services, or allowances. For purposes of this part the term <E T="03">rule</E> does not include regulations issued with respect to a military or foreign affairs function of the United States.<PRTPAGE P="8"/>
              </P>
              <P>(b) <E T="03">Rulemaking</E> means the FEMA process for considering and formulating the issuance, amendment or repeal of a rule.</P>
              <P>(c) <E T="03">Director</E> means the Director, FEMA, or an official to whom the Director has expressly delegated authority to issue rules.</P>
              <P>(d) <E T="03">FEMA</E> means Federal Emergency Management Agency.</P>
              <P>(e) <E T="03">Major rule</E> means any regulation that is likely to result in:</P>
              <P>(1) An annual effect on the economy of $100 million or more;</P>
              <P>(2) A major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions; or</P>
              <P>(3) Significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based enterprises to compete with foreign-based enterprises in domestic or export markets.</P>
              <CITA>[46 FR 32584, June 24, 1981, as amended at 49 FR 38118, Sept. 27, 1984]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>§ 1.3</SECTNO>
              <SUBJECT>Scope.</SUBJECT>
              <P>(a) This part prescribes general rulemaking procedures for the issuance, amendment, or repeal of rules in which participation by interested persons is required by 5 U.S.C. 553 or other statutes, by Executive Order 12291, by FEMA policy, or by § 1.4 of this part.</P>
              <P>(b) Any delegation by the Director of authority to issue rules may not be further redelegated, unless expressly provided for in the delegation.</P>
              <P>(c) This part does not apply to rules issued in accordance with the formal rulemaking provisions of the Administrative Procedure Act (5 U.S.C. 556, 557).</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 1.4</SECTNO>
              <SUBJECT>Policy and procedures.</SUBJECT>
              <P>(a) In promulgating new regulations, reviewing existing regulations, and developing legislative proposals concerning regulation, FEMA, to the extent permitted by law, shall adhere to the following requirements:</P>
              <P>(1) Administrative decisions shall be based on adequate information concerning the need for and consequences of proposed government action;</P>
              <P>(2) Regulatory action shall not be undertaken unless the potential benefits to society for the regulation outweigh the potential costs to society;</P>
              <P>(3) Regulatory objectives shall be chosen to maximize the net benefits to society;</P>
              <P>(4) Among alternative approaches to any given regulatory objective, the alternative involving the least net cost to society shall be chosen; and</P>
              <P>(5) FEMA shall set regulatory priorities with the aim of maximizing the aggregate net benefits to society, taking into account the condition of the particular entities affected by regulations, the condition of the national economy, and other regulatory actions contemplated for the future.</P>
              <P>(b) It is the policy of FEMA to provide for public participation in rulemaking regarding its programs and functions, including matters that relate to public property, loans, grants, or benefits, or contracts, even though these matters are not subject to a requirement for notice and public comment rulemaking by law.</P>

              <P>(c) FEMA will publish notices of proposed rulemaking in the <E T="04">Federal Register</E> and will give interested persons an opportunity to participate in the rulemaking through submission of written data, views, and arguments with or without opportunity for oral presentation.</P>
              <P>(d) In order to give the public, including small entities and consumer groups, an early and meaningful opportunity to participate in the development of rules, for a number of regulations the Director will employ additional methods of inviting public participation. These methods include, but are not limited to, publishing advance Notices of Proposed Rulemaking (ANPR), which can include a statement with respect to the impact of the proposed rule on small entities; holding open conferences; convening public forums or panels, sending notices of proposed regulations to publications likely to be read by those affected and soliciting comment from interested parties by such means as direct mail. An ANPR should be used to solicit public comment early in the rulemaking process for significant rules.</P>

              <P>(e) It is the policy of FEMA that its notices of proposed rulemaking are to afford the public at least sixty days for <PRTPAGE P="9"/>submission of comments unless the Director makes an exception and sets forth the reasons for the exception in the preamble to the notice of proposed rulemaking. This period shall also include any period of review required by the Office of Management and Budget in accordance with the Paperwork Reduction Act of 1980.</P>
              <P>(f) Unless required by statute or Executive Order, notice and public procedure may be omitted if the Director, for good cause, determines in a particular case or class of cases that notice and public procedure is impractical, unnecessary or contrary to the public interest and sets forth the reason for the determination in the rulemaking document or, for a class of cases, in a published rule or statement of policy. In a particular case, the reasons for the determination will be stated in the rulemaking document. Notice and public procedure may also be omitted with respect to statements of policy, interpretative rules, rules governing FEMA's organization or its own internal practices or procedures, or if a statute expressly authorizes omission.</P>
              <P>(g) A final substantive rule will be published not less than 30 days before its effective date unless it grants or recognizes an exemption or relieves a restriction or unless the rulemaking document states good cause for its taking effect less than 30 days after publication. Statements of policy and interpretative rules will usually be made effective on the date of publication.</P>

              <P>(h) This part shall not apply to any regulation that responds to an emergency situation, provided that, any such regulation shall be reported to the Director, Office of Management and Budget, as soon as is practicable. FEMA shall publish in the <E T="04">Federal Register</E> a statement of the reasons why it is impracticable for the agency to follow the procedures of Executive Order 12291 with respect to such a rule, and the agency shall prepare and transmit, if needed, as soon as is practicable a Regulatory Impact Analysis of any such major rule.</P>
              <CITA>[46 FR 32584, June 24, 1981, as amended at 49 FR 38119, Sept. 27, 1984; 50 FR 40004, Oct. 1, 1985]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>§ 1.5</SECTNO>
              <SUBJECT>Rules docket.</SUBJECT>
              <P>(a) Documents which are public records and which are a part of a specific rulemaking procedure, including but not limited to, advance notices of proposed rulemaking, notices of proposed rulemaking, written comments addressed to the merits of a proposed rule, and comments received in response to notices, or withdrawals or terminations of proposed rulemaking, petitions for rulemaking, requests for oral argument in public participation cases, requests for extension of time, grants or denials of petitions or requests, transcripts or minutes of informal hearings, final rules and general notices shall be maintained in the Office of General Counsel. All public rulemaking comments should refer to the docket number which appears in the heading of the rule and should be addressed to the Rule Docket Clerk, Federal Emergency Management Agency, Office of General Counsel.</P>
              <P>(b) Documents which are a part of a specific rulemaking proceeding are public records. After a docket is established, any person may examine docketed material at any time during established hours of business and may obtain a copy of any docketed material upon payment of the prescribed fee. (See part 5 of this chapter.)</P>
              <CITA>[46 FR 32584, June 24, 1981, as amended at 48 FR 44542, Sept. 29, 1983]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>§ 1.6</SECTNO>
              <SUBJECT>Ex parte communications.</SUBJECT>
              <P>In rulemaking proceedings subject only to the procedural requirements of 5 U.S.C. 553:</P>
              <P>(a) All oral communications from outside FEMA of significant information and argument respecting the merits of a proposed rule, received after notice of proposed informal rulemaking and in its course by FEMA or its offices and divisions or their personnel participating in the decision, should be summarized in writing and placed promptly in the Rules Docket File available for public inspection.</P>
              <P>(b) FEMA may conclude that restrictions on ex parte communications in particular rulemaking proceedings are necessitated by consideration of fairness or for other reasons.</P>
            </SECTION>
            <SECTION>
              <PRTPAGE P="10"/>
              <SECTNO>§ 1.7</SECTNO>
              <SUBJECT>Regulations agendas.</SUBJECT>
              <P>(a) The FEMA semi-annual agenda called for by Executive Order 12291 will be part of the Unified Agenda of Federal Regulations published in April and October of each year.</P>
              <P>(b) In accordance with 5 U.S.C. 605, the regulatory flexibility agenda required by 5 U.S.C. 602 and the list of rules, if any, to be reviewed pursuant to 5 U.S.C. 610 shall be included in the FEMA semiannual agenda described in paragraph (a) of this section.</P>
              <P>(c) The semiannual agenda shall, among other items, include:</P>
              <P>(1) A summary of the nature of each major rule being considered, the objectives and legal basis for the issuance of the rule, and an approximate schedule for completing action on any major rule for which the agency has issued a notice of proposed rulemaking.</P>
              <P>(2) The name and telephone number of a knowledgeable agency official for each item on the agenda; and</P>
              <P>(3) A list of existing regulations to be reviewed under the terms of the Order and a brief discussion of each such regulation.</P>
              <CITA>[46 FR 32584, June 24, 1981, as amended at 49 FR 33878, Aug. 27, 1984]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>§ 1.8</SECTNO>
              <SUBJECT>Regulations review.</SUBJECT>

              <P>(a) As part of the semiannual agenda described in §1.7 of this part, FEMA will publish in the <E T="04">Federal Register</E> and keep updated a plan for periodic review of existing rules at least within 10 years from date of publication of a rule as final. This includes those that have significant impact on a substantial number of small entities.</P>
              <P>(b) The purpose of the review shall be to determine whether such rules should be continued without change, or should be amended or rescinded, consistent with the stated objectives of applicable statutes, including minimizing any significant economic impact of the rules upon a substantial number of small entities.</P>
              <P>(c) In reviewing rules FEMA shall consider the following factors:</P>
              <P>(1) The continued need for the rule;</P>
              <P>(2) The nature, type and number of complaints or comments received concerning the rule from the public;</P>
              <P>(3) The complexity of the rule, including need for review of language for clarity;</P>
              <P>(4) The extent to which the rule overlaps, duplicates or conflicts with other Federal rules, and, to the extent feasible, with State and local governmental rules; and</P>
              <P>(5) The length of time since the rule has been evaluated or the degree to which technology, economic conditions, or other factors have changed in the area affected by the rule.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 1.9</SECTNO>
              <SUBJECT>Regulatory impact analyses.</SUBJECT>
              <P>(a) FEMA shall, in connection with any major rule, prepare and consider a Regulatory Impact Analysis. Such analysis may be combined with the Regulatory Flexibility Analysis described in §§ 1.12(f) and 1.16(c) of this part.</P>
              <P>(b) FEMA shall initially determine whether a rule it intends to propose or to issue is a major rule and, if a major rule, shall prepare Regulatory Impact Analyses and transmit them, along with all notices of proposed rulemaking and all final rules, to the Director, Office of Management and Budget, as follows:</P>
              <P>(1) If no notice of proposed rulemaking is to be published for a proposed major rule that is not an emergency rule, the agency shall prepare only a final Regulatory Impact Analysis, which shall be transmitted, along with the proposed rule, to the Director, Office of Management and Budget, at least 60 days prior to the publication of the major rule as a final rule;</P>
              <P>(2) With respect to all other major rules, FEMA shall prepare a preliminary Regulatory Impact Analysis, which shall be transmitted, along with a notice of proposed rulemaking, to the Director, Office of Management and Budget, at least 60 days prior to the publication of a notice of proposed rulemaking, and a final Regulatory Impact Analysis, which shall be transmited along with the final rule at least 30 days prior to the publication of the major rule as a final rule;</P>

              <P>(3) For all rules other than major rules, FEMA shall, unless an exemption has been granted, submit to the Director, Office of Management and <PRTPAGE P="11"/>Budget, at least 10 days prior to publication, every notice of proposed rulemaking and final rule.</P>
              <P>(c) To permit each major rule to be analyzed in light of the requirements stated in section 2 of Executive Order 12291, each preliminary and final Regulatory Impact Analysis shall contain the following information:</P>
              <P>(1) A description of the potential benefits of the rule, including any beneficial effects that cannot be quantified in monetary terms, and the identification of those likely to receive the benefits;</P>
              <P>(2) A description of the potential costs of the rule, including any adverse effects that cannot be quantified in monetary terms, and the identification of those likely to bear the costs;</P>
              <P>(3) A determination of the potential net benefits of the rule, including an evaluation of effects that cannot be quantified in monetary terms;</P>
              <P>(4) A description of alternative approaches that could substantially achieve the same regulatory goal at lower cost, together with an analysis of this potential benefit and costs and a brief explanation of the legal reasons why such alternatives, if proposed, could not be adopted; and</P>
              <P>(5) Unless covered by the description required under paragraph (c)(4) of this section, an explanation of any legal reasons why the rule cannot be based on the requirements set forth in section 2 of Executive Order 12291.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart B—Procedures for Rulemaking</HD>
            <SECTION>
              <SECTNO>§ 1.10</SECTNO>
              <SUBJECT>Initiation of rulemaking.</SUBJECT>
              <P>Rulemaking may be initiated on the Director's motion or upon motion of an official to whom rulemaking authority has been delegated. Rulemaking may also be initiated on the petition of any interested person in accordance with the provisions of § 1.18. Interested person includes a Federal, State, or local government or government agency.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 1.11</SECTNO>
              <SUBJECT>Advance notice of proposed rulemaking.</SUBJECT>

              <P>An Advance Notice of Proposed Rulemaking will be published in the <E T="04">Federal Register</E> and contains:</P>
              <P>(a) A description of the proposed new program or program changes, and why they are needed;</P>
              <P>(b) A presentation of the major policy issues involved;</P>
              <P>(c) A request for comments, both specific and general, on the need for the proposed rule and the provisions that the rule might include;</P>
              <P>(d) If appropriate, a list of questions about the proposal which seeks to bring out detailed comments;</P>
              <P>(e) If known, an estimate of the reporting or recordkeeping requirements, if any, that the rule would impose; and</P>
              <P>(f) The time within which comments may be submitted to the Rules Docket Clerk, Federal Emergency Management Agency, Washington, DC 20472.</P>
              <CITA>[46 FR 32584, June 24, 1981, as amended at 48 FR 44542, Sept. 29, 1983; 49 FR 33879, Aug. 27, 1984]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>§ 1.12</SECTNO>
              <SUBJECT>Notice of proposed rulemaking.</SUBJECT>

              <P>Each notice of proposed rulemaking required by statute, executive order, or by § 1.4 will be published in the <E T="04">Federal Register</E> and will include:</P>
              <P>(a) The substance or terms of the proposed rule or a description of the subject matter and issues involved.</P>
              <P>(b) A statement of how and to what extent interested persons may participate in the proceeding.</P>
              <P>(c) Where participation is limited to written comments, a statement of the time within which such comments must be submitted.</P>
              <P>(d) A reference to the legal authority under which the proposal is issued.</P>
              <P>(e) In a proceeding which has provided Advance Notice of Proposed Rulemaking, an analysis of the principal issues and recommendations raised by the comments, and the manner in which they have been addressed in the proposed rulemaking.</P>
              <P>(f)(1) A brief statement setting forth the agency's initial determination whether the proposed rule is a major rule, together with the reasons underlying that determination;</P>
              <P>(2) For each proposed major rule, a brief summary of the agency's preliminary Regulatory Impact Analysis; and</P>

              <P>(3) The initial regulatory flexibility analysis or a summary thereof as required by the Regulatory Flexibility <PRTPAGE P="12"/>Act (5 U.S.C. 601, <E T="03">et seq.</E>), or a certification that the rule, if promulgated, will not have a significant economic impact on a significant number of small entities pursuant to 5 U.S.C. 605. Such certification may be made by any FEMA official with rulemaking authority.</P>
              <P>(g) It is desirable, but not required, that the notices contain a target deadline for issuance of the regulation, and that to the extent feasible, this deadline be met.</P>
              <P>(h) If the rule is one which contains a requirement for collection of information, a copy of the rule will be furnished OMB in accordance with 44 U.S.C. 3504(h).</P>
              <CITA>[46 FR 32584, June 24, 1981, as amended at 49 FR 38119, Sept. 27, 1984]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>§ 1.13</SECTNO>
              <SUBJECT>Participation by interested persons.</SUBJECT>
              <P>(a) Unless the notice otherwise provides, any interested person may participate in rulemaking proceedings by submitting written data, views or arguments within the comment time stated in the notice. In addition, the Director may permit the filing of comments in response to original comments.</P>
              <P>(b) In appropriate cases, the Director may provide for oral presentation of views in additional proceedings described in § 1.14.</P>
              <P>(c) Copies of regulatory flexibility analyses shall be furnished the Chief Counsel for Advocacy of the Small Business Administration.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 1.14</SECTNO>
              <SUBJECT>Additional rulemaking proceedings.</SUBJECT>
              <P>The Director may invite interested persons to present oral arguments, appear at informal hearings, or participate in any other procedure affording opportunity for oral presentation of views. The transcript or minutes of such meetings, as appropriate, will be kept and filed in the Rules Docket.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 1.15</SECTNO>
              <SUBJECT>Hearings.</SUBJECT>
              <P>(a) The provisions of 5 U.S.C. 556 and 557, which govern formal hearings in adjudicatory proceedings, do not apply to informal rulemaking proceedings described in this part. When opportunity is afforded for oral presentation, the informal “hearing” is a nonadversary, fact-finding proceeding. Any rule issued in a proceeding under this part in which a hearing is held need not be based exclusively on the record of such hearing.</P>
              <P>(b) When a hearing is provided, the Director will designate a representative to conduct the hearing.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 1.16</SECTNO>
              <SUBJECT>Adoption of a final rule.</SUBJECT>
              <P>(a) All timely comments will be considered in taking final action on a proposed rule. Each preamble to a final rule will contain a short analysis and evaluation of the relevant significant issues set forth in the comments submitted, and a clear concise statement of the basis and purpose of the rule.</P>
              <P>(b) When determined necessary by the Director in accordance with the provisions of 1 CFR 18.12, the preamble shall contain the following information:</P>
              <P>(1) A discussion of the background and major issues involved;</P>
              <P>(2) In the case of a final rule, any significant differences between it and the proposed rule;</P>
              <P>(3) A response to substantive public comments received; and</P>
              <P>(4) Any other information the Director considers appropriate.</P>
              <P>(c) At the time of publication of the final rule, a statement shall be published describing how the public may obtain copies of the final regulatory flexibility analysis which must be prepared in accordance with 5 U.S.C. 604 unless the procedure for waiver or delay of completion under 5 U.S.C. 608 is followed.</P>
              <P>(d) Before approving any final major rule FEMA will:</P>

              <P>(1) Make a determination that the regulation is clearly within the authority delegated by law and consistent with congressional intent and include in the <E T="04">Federal Register</E> at the time of promulgation a memorandum of law supporting that determination; and</P>
              <P>(2) Make a determination that the factual conclusions upon which the rule is based have substantial support in the agency record, viewed as a whole, with full attention to public comments in general and the comments of persons directly affected by the rule in particular.</P>
            </SECTION>
            <SECTION>
              <PRTPAGE P="13"/>
              <SECTNO>§ 1.17</SECTNO>
              <SUBJECT>Petitions for reconsideration.</SUBJECT>
              <P>Petitions for reconsideration of a final rule will not be considered. Such petitions, if filed, will be treated as petitions for rulemaking in accordance with § 1.18.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 1.18</SECTNO>
              <SUBJECT>Petition for rulemaking.</SUBJECT>

              <P>(a) Any interested person may petition the Director for the issuance, amendment, or repeal of a rule. For purposes of this section the term <E T="03">person</E> includes a Federal, State or local government or government agency. Each petition shall:</P>
              <P>(1) Be submitted to the Rules Docket Clerk;</P>
              <P>(2) Set forth the substance of the rule or amendment proposed or specify the rule sought to be repealed or amended;</P>
              <P>(3) Explain the interest of the petitioner in support of the action sought; and</P>
              <P>(4) Set forth all data and arguments available to the petitioner in support of the action sought.</P>
              <P>(b) No public procedures will be held directly on the petition before its disposition. If the Director finds that the petition contains adequate justification, a rulemaking proceeding will be initiated or a final rule will be issued as appropriate. If the Director finds that the petition does not contain adequate justification, the petition will be denied by letter or other notice, with a brief statement of the ground for denial. The Director may consider new evidence at any time; however, repetitious petitions for rulemaking will not be considered.</P>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 2</EAR>
          <HD SOURCE="HED">PART 2—ORGANIZATION, FUNCTIONS, AND DELEGATIONS OF AUTHORITY</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart A—Organization, Functions, and Delegations of Authority</HD>
              <SUBJGRP>
                <HD SOURCE="HED">General</HD>
                <SECHD>Sec.</SECHD>
                <SECTNO>2.1</SECTNO>
                <SUBJECT>Purpose.</SUBJECT>
                <SECTNO>2.2</SECTNO>
                <SUBJECT>Organization of FEMA.</SUBJECT>
                <SECTNO>2.3</SECTNO>
                <SUBJECT>Exercise of authority.</SUBJECT>
                <SECTNO>2.4</SECTNO>
                <SUBJECT>General limitations and reservations.</SUBJECT>
                <SECTNO>2.5</SECTNO>
                <SUBJECT>Delegations not included.</SUBJECT>
                <SECTNO>2.6</SECTNO>
                <SUBJECT>Redelegation of authority.</SUBJECT>
                <SECTNO>2.7</SECTNO>
                <SUBJECT>General delegations.</SUBJECT>
                <SECTNO>2.8</SECTNO>
                <SUBJECT>Designation of subordinates to act.</SUBJECT>
              </SUBJGRP>
              <SUBJGRP>
                <HD SOURCE="HED">FEMA Offices</HD>
                <SECTNO>2.11</SECTNO>
                <SUBJECT>Office of the Director.</SUBJECT>
                <SECTNO>2.12</SECTNO>
                <SUBJECT>Office of the Inspector General.</SUBJECT>
                <SECTNO>2.13</SECTNO>
                <SUBJECT>Office of the General Counsel.</SUBJECT>
                <SECTNO>2.14</SECTNO>
                <SUBJECT>Office of Congressional and Governmental Affairs.</SUBJECT>
                <SECTNO>2.15</SECTNO>
                <SUBJECT>Office of Emergency Information and Public Affairs.</SUBJECT>
                <SECTNO>2.16</SECTNO>
                <SUBJECT>Office of Policy and Assessment.</SUBJECT>
                <SECTNO>2.17</SECTNO>
                <SUBJECT>Office of Human Resources Management.</SUBJECT>
                <SECTNO>2.18</SECTNO>
                <SUBJECT>Office of Equal Rights.</SUBJECT>
                <SECTNO>2.19</SECTNO>
                <SUBJECT>Office of Financial Management.</SUBJECT>
                <SECTNO>2.20</SECTNO>
                <SUBJECT>Office of Regional Operations.</SUBJECT>
                <SECTNO>2.21</SECTNO>
                <SUBJECT>Ombudsman. [Reserved]</SUBJECT>
                <SECTNO>2.22</SECTNO>
                <SUBJECT>Regional Offices.</SUBJECT>
              </SUBJGRP>
              <SUBJGRP>
                <HD SOURCE="HED">Administrations</HD>
                <SECTNO>2.31</SECTNO>
                <SUBJECT>Federal Insurance Administration.</SUBJECT>
                <SECTNO>2.32</SECTNO>
                <SUBJECT>United States Fire Administration.</SUBJECT>
              </SUBJGRP>
              <SUBJGRP>
                <HD SOURCE="HED">Directorates</HD>
                <SECTNO>2.41</SECTNO>
                <SUBJECT>Mitigation Directorate.</SUBJECT>
                <SECTNO>2.42</SECTNO>
                <SUBJECT>Preparedness, Training, and Exercises Directorate.</SUBJECT>
                <SECTNO>2.43</SECTNO>
                <SUBJECT>Response and Recovery Directorate.</SUBJECT>
                <SECTNO>2.44</SECTNO>
                <SUBJECT>Operations Support Directorate.</SUBJECT>
              </SUBJGRP>
            </SUBPART>
            <SUBPART>
              <RESERVED>Subpart B [Reserved]</RESERVED>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart C—OMB Control Numbers</HD>
              <SECTNO>2.80</SECTNO>
              <SUBJECT>Purpose.</SUBJECT>
              <SECTNO>2.81</SECTNO>
              <SUBJECT>OMB control numbers assigned to information collections.</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>5 U.S.C. 552; Reorganization Plan No. 3 of 1978, 5 U.S.C. App. 1; E.O. 12127, 3 CFR, 1979 Comp., p. 376; E.O. 12148, as amended, 3 CFR, 1979 Comp., p. 412.</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>59 FR 26133, May 19, 1994, unless otherwise noted.</P>
          </SOURCE>
          <SUBPART>
            <HD SOURCE="HED">Subpart A—Organization, Functions, and Delegations of Authority</HD>
            <SUBJGRP>
              <HD SOURCE="HED">General</HD>
              <SECTION>
                <SECTNO>§ 2.1</SECTNO>
                <SUBJECT>Purpose.</SUBJECT>

                <P>This part describes the organization of the Federal Emergency Management Agency (FEMA), and the general course and method by which its functions are administered. It provides for the exercise by officials of FEMA of authorities that are vested in the Director specifically by statute, as head of an agency, or as a consequence of a law authorizing such exercise. It also provides for exercise of authorities that have been transferred to the Director by Reorganization Plan or delegated to <PRTPAGE P="14"/>the Director by Executive Order or other appropriate document.</P>
              </SECTION>
              <SECTION>
                <SECTNO>§ 2.2</SECTNO>
                <SUBJECT>Organization of FEMA.</SUBJECT>
                <P>(a) The Director is the head of FEMA. All authorities of FEMA are either vested in the Director by statute or have been transferred to or delegated to the Director. Notwithstanding any delegation by the Director to a subordinate officer of FEMA, the Director may also exercise such authority.</P>
                <P>(b) FEMA is composed of the Offices, Administrations, and Directorates, the responsibilities of which are described in §§ 2.11 through 2.44.</P>
                <P>(c) The Executive Board of FEMA consists of the senior managers appointed by the President and confirmed by the Senate as well as representatives of the Regional Directors and other senior managers as the Director shall designate from time to time. The principal function of the Executive Board is to review the Agency's overall direction, performance, and policies. The Executive Board will hold regular meetings on a quarterly basis and may hold special meetings at the discretion of the Director.</P>
              </SECTION>
              <SECTION>
                <SECTNO>§ 2.3</SECTNO>
                <SUBJECT>Exercise of authority.</SUBJECT>
                <P>Exercise of the authority delegated by this subpart or redelegated pursuant to this subpart is subject to the direction, control, and authority of the Director, and is governed by applicable laws, Executive Orders, Federal agency regulations or issuances applicable to FEMA. Such exercise is also governed by regulations issued by FEMA, and by policies, objectives, directives, manuals, instructions, plans, standards, procedures and limitations issued from time to time by or on behalf of the Director.</P>
              </SECTION>
              <SECTION>
                <SECTNO>§ 2.4</SECTNO>
                <SUBJECT>General limitations and reservations.</SUBJECT>
                <P>(a) All powers and duties not delegated by the Director in this subpart, nor otherwise provided for in Title 44, are reserved to the Director.</P>
                <P>(b) The following specific authorities are reserved to the Director:</P>
                <P>(1) Certain authorities relating to reporting to Congress and the President including those under:</P>
                <P>(i) Section 16 of the Federal Fire Prevention and Control Act of 1974 (15 U.S.C. 2215);</P>
                <P>(ii) Section 1320 of the National Flood Insurance Act (42 U.S.C. 4027);</P>
                <P>(iii) Section 1234 of the National Housing Act (12 U.S.C. 1749bbb-10d);</P>
                <P>(iv) Section 406 of the Federal Civil Defense Act of 1950, as amended (50 U.S.C. App. 2258);</P>
                <P>(v) Section 5(b)(1)(D) of the Earthquake Hazards Reduction Act of 1977 (42 U.S.C. 7704(b)(1)(D)); and</P>
                <P>(vi) Section 2-105 of Executive Order 12148 of July 20, 1979.</P>
                <P>(2) Authorities connected with declaration of major disasters and emergencies, and with delegations to other agencies including:</P>
                <P>(i) The authority to make recommendations to the President concerning the determination that an emergency exists pursuant to section 501 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5191);</P>
                <P>(ii) The authority to make recommendations to the President concerning the issuance of a major disaster declaration pursuant to section 401 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5170); and</P>
                <P>(iii) Provision is made in § 2.11 of this part for the Deputy Director to exercise the authorities set out in this paragraph when the Director is unavailable due to illness or incapacity.</P>
                <P>(3) Authorities relating to voluntary agreements under section 708 of the Defense Production Act (50 U.S.C. App. 2158) delegated to the Director in section 501 of Executive Order 10480.</P>
                <P>(4) Authority to make the determination concerning Federal operation of the program and the report to Congress under section 1340 of the National Flood Insurance Act (42 U.S.C. 4071).</P>
                <P>(5) Authority to appoint Federal Coordinating Officers under section 302 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5143).</P>
              </SECTION>
              <SECTION>
                <SECTNO>§ 2.5</SECTNO>
                <SUBJECT>Delegations not included.</SUBJECT>

                <P>Other delegations of authority have been and will be made in other FEMA regulations and by internal FEMA directives that concern internal FEMA <PRTPAGE P="15"/>policies and operations. These are valid delegations. Without in any way limiting the number of those delegations, and without describing all of them in this listing which is not complete, they include those:</P>
                <P>(a) Delegations concerning Federal personnel matters such as those concerning appointing authority, compensation, and so on. These are considered internal personnel rules and are not published in this chapter but are published in a FEMA Instruction.</P>
                <P>(b) Delegation to the General Counsel as Ethics Counselor under 5 CFR part 2638.</P>
                <P>(c) Delegations under parts 5 and 6 of this subchapter relating to the Freedom of Information Act and Privacy Act.</P>
                <P>(d) Delegations to several officials relating to authentication of records under 44 CFR 5.82.</P>
                <P>(e) Delegations to the General Counsel and Chief Financial Officer with respect to claims under part 11 of this subchapter.</P>
                <P>(f) Delegations to classify information originally as Secret or Confidential.</P>
                <P>(g) Delegations to make certifications and findings under the Regulatory Flexibility Act, 5 U.S.C. 601-612; the National Environmental Policy Act, 42 U.S.C. 4321-4335; the Paperwork Reduction Act, 44 U.S.C. 3501-3520; E.O. 12612 of October 26, 1987, 3 CFR, 1987 Comp., p. 252; E.O. 12778 of October 23, 1991, 3 CFR, 1991 Comp., p. 359; E.O. 12866 of September 30, 1993, 3 CFR, 1993 Comp., p. 638; and any other certifications or findings required by existing or future laws, executive orders, or other authorities;</P>
                <P>(h) Delegations concerning environmental matters under part 10 of this subchapter; and</P>
                <P>(i) Delegations concerning floodplain management and wetlands protection matters under part 9 of this subchapter.</P>
              </SECTION>
              <SECTION>
                <SECTNO>§ 2.6</SECTNO>
                <SUBJECT>Redelegation of authority.</SUBJECT>
                <P>(a) It is FEMA's policy that the authorities delegated by this chapter should, whenever appropriate, be redelegated to the manager or official who has immediate responsibility for the action. Authority delegated by this chapter, unless otherwise specifically provided, may be redelegated in whole or in part provided any such redelegation is in writing and approved by the officer to whom the authority is initially delegated. This restriction does not apply to a temporary redelegation of authority to a principal deputy or first assistant to be exercised during the absence of the delegating official.</P>

                <P>(b) The authority to issue regulations having general applicability and future effect designed to implement, interpret or prescribe law or policy, and which are to be published in the <E T="04">Federal Register,</E> may be delegated or redelegated only to positions for which it is required that the incumbent be confirmed by the United States Senate. This does not prohibit an acting official from issuing regulations. This paragraph does not apply to rules issued under parts 64, 65, 67, or 70 of this title.</P>
              </SECTION>
              <SECTION>
                <SECTNO>§ 2.7</SECTNO>
                <SUBJECT>General delegations.</SUBJECT>
                <P>(a) This section sets forth general delegations to the officers or employees named in paragraph (b) of this section.</P>
                <P>(b) The officers authorized to exercise authorities in paragraph (c) of this section are:</P>
                <P>(1) Deputy Director;</P>
                <P>(2) Chief of Staff;</P>
                <P>(3) Inspector General;</P>
                <P>(4) General Counsel;</P>
                <P>(5) Director of the Office of Congressional and Governmental Affairs;</P>
                <P>(6) Director of the Office of Emergency Information and Public Affairs;</P>
                <P>(7) Director of the Office of Policy and Assessment;</P>
                <P>(8) Director of the Office of Human Resources Management;</P>
                <P>(9) Director of the Office of Equal Rights;</P>
                <P>(10) Chief Financial Officer;</P>
                <P>(11) Director of the Office of Regional Operations;</P>
                <P>(12) Regional Directors;</P>
                <P>(13) Federal Insurance Administrator;</P>
                <P>(14) United States Fire Administrator;</P>
                <P>(15) Associate Director for Mitigation;</P>

                <P>(16) Associate Director for Preparedness, Training, and Exercises;<PRTPAGE P="16"/>
                </P>
                <P>(17) Associate Director for Response and Recovery; and</P>
                <P>(18) Associate Director for Operations Support.</P>
                <P>(c) Each officer named in paragraph (b) of this section is authorized to:</P>
                <P>(1) Approve official travel as temporary duty travel on official business and allowable expenses incidental thereto for employees of their respective organizational units, in accordance with the Federal Travel Regulations; except that travel to and from points outside of the United States is subject to prior notification to the Director and foreign travel (i.e., travel outside the United States and its insular areas) is subject to prior approval of the Director. However, no officer or employee may approve his or her own travel. Travel of officers named in paragraph (b) of this section is approved by the Deputy Director or the Chief of Staff, except that travel of a Regional Director may be approved by the Deputy Regional Director for that Region.</P>
                <P>(2) Approve travel advances of funds through disbursing officers or imprest fund cashiers for employees of the respective organizational units who are entitled to per diem or mileage allowance or subsistence expenses in accordance with the Federal Travel Regulations.</P>
                <P>(3) Approve travel vouchers for employees of their respective organizational units.</P>
                <P>(4) Approve travel by employees of their respective organizations at the invitation and expense of parties outside of the Federal Government, with the concurrence of the Designated Agency Ethics Officer (DAEO) or a Deputy DAEO;</P>
                <P>(5) Approve funding requisitions;</P>
                <P>(6) As appropriate, issue final agency decisions on individual or class complaints of discrimination because of race, color, national origin, religion, sex, disability, age, or economic status.</P>
                <P>(7) Promulgate internal guidance to cover areas of assigned responsibilities.</P>
                <P>(8) Approve training costing less than $2500 (all expenses) or training of less than 80 hours in duration, whichever is more restrictive, except that this authority does not include authority to approve training involving the use of facilities of foreign governments or international organizations, which must be approved by the Director; or the authority to approve acceptance by employees of contributions or awards from non-Government organizations, whether in cash or in kind, which must be approved by the Director.</P>
                <P>(9) Adjust working hours for individual employees when there is special justification therefor that it is in the interest of FEMA or to accommodate individual needs of employees for legitimate reasons where the work of the agency will not be impeded.</P>
                <P>(10) Approve incentive awards to subordinates, Public Service Awards, cash awards of $1,500 or less for individuals and quality within-grade salary increases.</P>
                <P>(11) Enter into and administer funded and unfunded memoranda of understanding with respect to assigned duties.</P>
                <P>(12) Classify documents derivatively, based on the original classification by other Federal agencies or the Director.</P>
              </SECTION>
              <SECTION>
                <SECTNO>§ 2.8</SECTNO>
                <SUBJECT>Designation of subordinates to act.</SUBJECT>
                <P>Each officer named in § 2.7(b) shall:</P>
                <P>(a) Submit to the Director, for approval, a list of three or more subordinates to act for such officer during his or her absence; and</P>
                <P>(b) Ensure that each Division Director, Branch Chief, or head of any other organizational unit under that officer's authority designate one or more subordinate employees to serve as acting head of the unit during the absence of the head of a unit or during a vacancy in the position.</P>
              </SECTION>
            </SUBJGRP>
            <SUBJGRP>
              <HD SOURCE="HED">FEMA Offices</HD>
              <SECTION>
                <SECTNO>§ 2.11</SECTNO>
                <SUBJECT>Office of the Director.</SUBJECT>

                <P>The Deputy Director is the first assistant to the Director under the Vacancies Act, 5 U.S.C. 3341 <E T="03">et seq.</E>, and acts in place of the Director when the Director is not available because of illness or incapacity. The Deputy Director is the Chief Operating Officer of the Agency, with the duties and powers set forth in Presidential Memorandum of October 1, 1993, “Implementing Reform in the Executive Branch.” The Deputy Director is authorized to exercise the <PRTPAGE P="17"/>duties and powers of the Director as necessary to carry out the responsibilities of the Chief Operating Officer and to act in place of the Director in the Director's unavailability.</P>
              </SECTION>
              <SECTION>
                <SECTNO>§ 2.12</SECTNO>
                <SUBJECT>Office of the Inspector General.</SUBJECT>
                <P>(a) <E T="03">Mission.</E> The Office of the Inspector General serves FEMA as an independent unit to promote economy, efficiency, and effectiveness; to prevent waste, fraud, and abuse; and to keep the Congress and the Director fully informed on these subjects.</P>
                <P>(b) <E T="03">Functions.</E> The principal functions of the Office of the Inspector General are:</P>
                <P>(1) Performance of all audit functions relating to programs and operations of FEMA;</P>
                <P>(2) Inspection of agency activities to identify actual or potential fraud, waste, abuse, or mismanagement and to develop recommendations for corrective action;</P>
                <P>(3) Investigation of allegations of illegal, unethical, or other activities that may lead to civil or criminal liability on the part of FEMA or its employees, contractors, or program participants; and</P>
                <P>(4) Referral of potential criminal prosecutions to the Department of Justice, under 28 U.S.C. 535.</P>
                <P>(c) <E T="03">Authority.</E> The position of Inspector General of FEMA is created by statute (The Inspector General Act of 1978, as amended, 5 U.S.C. App. 3 §§ 1-15). The Inspector General is authorized to exercise the duties and powers set forth in that statute.</P>
              </SECTION>
              <SECTION>
                <SECTNO>§ 2.13</SECTNO>
                <SUBJECT>Office of the General Counsel.</SUBJECT>
                <P>(a) <E T="03">Mission.</E> The Office of the General Counsel renders legal advice and assistance on all matters related to Agency programs and operation, and conducts the Agency's ethics program and Freedom of Information Act/Privacy Act program.</P>
                <P>(b) <E T="03">Functions.</E> The principal functions of the Office of the General Counsel are:</P>
                <P>(1) Rendering legal opinions and advice with respect to the duties, powers, and responsibilities of the Director, FEMA, and other Agency officers and employees and the applications of statutes, rules and regulations, other administrative issuances, and judicial precedents to Agency operations;</P>
                <P>(2) Review for legal sufficiency of all Agency documents requiring legal interpretation or opinion.</P>
                <P>(3) Establishment of Agency policy for and conduct of all appearances on behalf of FEMA in litigation or administrative proceedings and hearings;</P>
                <P>(4) Liaison to the Department of Justice except when otherwise provided by the Office of the Inspector General.</P>
                <P>(5) Coordination of the FEMA regulatory program, including liaison to the Office of Management and Budget and the Office of the Federal Register;</P>
                <P>(6) Operation of the FEMA legislative reference program, including liaison to the Office of Management and Budget and allied legislative proposals; and</P>
                <P>(7) Operation of FEMA's ethics program and Freedom of Information Act and Privacy Act program.</P>
                <P>(c) <E T="03">Delegated authorities.</E> The General Counsel is authorized to exercise the duties and powers of the Director to:</P>
                <P>(1) Accept service of process on behalf of the Agency, and on behalf of its officials and employees in connection with performance of their official duties;</P>
                <P>(2) Determine the agency's position with respect to litigation and refer matters directly to the Attorney General for prosecution or for initiation of litigation;</P>
                <P>(3) Determine the government's position in connection with any dispute before a Board of Contract Appeals, including the authority to settle or adjust any such claim.</P>
                <P>(4) Consider, compromise and settle tort claims against FEMA, but any award, compromise, or settlement of more than $25,000 requires the prior written approval of the Attorney General or designee;</P>
                <P>(5) Serve as the Designated Agency Ethics Officer;</P>

                <P>(6) Make technical corrections to all FEMA documents, including rules and regulations submitted to the <E T="04">Federal Register;</E>
                </P>
                <P>(7) Consider, compromise and settle personnel claims of less than $15,000 against FEMA;</P>

                <P>(8) Waive claims of the United States against a person arising out of pay and allowances to an employee of FEMA in amounts of not more than $1,500, and in <PRTPAGE P="18"/>accordance with the requirements of 5 U.S.C. 5584, and the implementing regulations and standards of the Comptroller General; and</P>
                <P>(9) Enter into ratification agreements at the direction of the Department of Justice in order to insure that FEMA's subrogation interest will be represented.</P>
              </SECTION>
              <SECTION>
                <SECTNO>§ 2.14</SECTNO>
                <SUBJECT>Office of Congressional and Governmental Affairs.</SUBJECT>
                <P>(a) <E T="03">Mission.</E> The Office of Congressional and Governmental Affairs coordinates FEMA's ongoing emergency management relationships with the Congress, public interest groups, and State and local organizations.</P>
                <P>(b) <E T="03">Functions.</E> The principal functions of the Office of Congressional and Governmental Affairs are:</P>
                <P>(1) Liaison with Congress, the Office of Management and Budget, and the White House on legislative matters directly affecting FEMA;</P>
                <P>(2) Advising the Director and other FEMA officials on actions pending or anticipated in Congress;</P>
                <P>(3) Liaison with Federal Coordinating Officers following declarations of disasters or emergencies under the Stafford Act, on matters requiring coordination with Congress; and</P>
                <P>(4) Liaison with FEMA's constituencies on FEMA legislative matters.</P>
                <P>(c) <E T="03">Delegated authorities.</E> The Director of the Office of Congressional and Governmental Affairs is authorized to exercise the duties and powers of the Director in the Director's capacity as agency head in support of the functions listed in paragraph (b) of this section.</P>
              </SECTION>
              <SECTION>
                <SECTNO>§ 2.15</SECTNO>
                <SUBJECT>Office of Emergency Information and Public Affairs.</SUBJECT>
                <P>(a) <E T="03">Mission.</E> The Office of Emergency Information and Public Affairs informs the public about FEMA's programs and activities, both in time of disaster and in other times.</P>
                <P>(b) <E T="03">Functions.</E> The principal functions of the Office of Emergency Information and Public Affairs are:</P>
                <P>(1) Gathering and dissemination of information about FEMA's programs and activities;</P>
                <P>(2) Liaison with news media;</P>
                <P>(3) Management of Joint Information Centers during disasters.</P>
                <P>(c) <E T="03">Delegated authorities.</E> The Director of the Office of Emergency Information and Public Affairs is authorized to exercise the duties and powers of the Director in the Director's capacity as agency head as set forth in paragraph (b) of this section.</P>
              </SECTION>
              <SECTION>
                <SECTNO>§ 2.16</SECTNO>
                <SUBJECT>Office of Policy and Assessment.</SUBJECT>
                <P>(a) <E T="03">Mission.</E> The Office of Policy and Assessment manages and facilitates policy development, strategic planning, planning, performance standards and assessment, innovation, and organizational development to achieve FEMA's overall mission.</P>
                <P>(b) <E T="03">Functions.</E> The principal functions of the Office of Policy and Assessment are:</P>
                <P>(1) Facilitation of the development and implementation of Agency policy, including systematic review and evaluation of that policy;</P>
                <P>(2) Development and coordination of FEMA's strategic planning process;</P>
                <P>(3) Development of standards and mechanisms for evaluation of Agency performance;</P>
                <P>(4) Development and implementation of a system for identifying shortfalls in Agency programs and performance and for monitoring progress towards their remediation;</P>
                <P>(5) Oversight of FEMA's implementation of the Government Performance and Results Act of 1993, Pub. L. 103-62, 107 Stat. 285.</P>
                <P>(6) Oversight of implementation of FEMA's environmental responsibilities;</P>
                <P>(7) Support of the FEMA Executive Board;</P>
                <P>(8) Oversight of, and provision of guidance for, FEMA's renewal and participation in the Reinvention Laboratory process; and</P>
                <P>(9) Facilitating institutional change and innovation.</P>
                <P>(c) <E T="03">Delegated authorities.</E> The Director of the Office of Policy and Assessment is authorized to exercise the duties and powers of the Director in the Director's capacity as agency head in support of the functions listed in paragraph (b) of this section.</P>
              </SECTION>
              <SECTION>
                <PRTPAGE P="19"/>
                <SECTNO>§ 2.17</SECTNO>
                <SUBJECT>Office of Human Resources Management.</SUBJECT>
                <P>(a) <E T="03">Mission.</E> The Office of Human Resources Management provides and maintains a workforce capable of carrying out FEMA's mission.</P>
                <P>(b) <E T="03">Functions.</E> The principal functions of the Office of Human Resources Management are:</P>
                <P>(1) Administration of FEMA's classification and position management programs;</P>
                <P>(2) Recruitment and placement of employees;</P>
                <P>(3) Administration of compensation and leave programs;</P>
                <P>(4) Management of FEMA's disaster personnel program;</P>
                <P>(5) Administration of workforce and workplace programs;</P>
                <P>(6) Management of FEMA's labor relations, employee relations, and employee benefit programs;</P>
                <P>(7) Administration of performance management and incentive awards programs;</P>
                <P>(8) Establishment and maintenance of personnel records; and</P>
                <P>(9) Coordination of affirmative employment programs with the Office of Equal Rights and support of FEMA's Offices, Administrations, and Directorates in meeting their affirmative actions goals.</P>
                <P>(c) <E T="03">Delegated authorities.</E> The Director of the Office of Human Resources Management is authorized to exercise the duties and powers of the Director in the Director's capacity as agency head in support of the functions listed in paragraph (b) of this section.</P>
              </SECTION>
              <SECTION>
                <SECTNO>§ 2.18</SECTNO>
                <SUBJECT>Office of Equal Rights.</SUBJECT>
                <P>(a) <E T="03">Mission.</E> The Office of Equal Rights assists management in fulfilling its responsibilities to ensure Equal Rights for all employees and applicants for employment, and to guarantee protection for the civil rights of every American receiving assistance from FEMA.</P>
                <P>(b) <E T="03">Functions.</E> The principal functions of the Office of Equal Rights are:</P>
                <P>(1) Development, in coordination with Agency management, of multi-year Affirmative Employment Plans and annual updates covering women, minority group members, and persons with disabilities;</P>
                <P>(2) Training regarding Equal Rights and Civil Rights and Responsibilities;</P>
                <P>(3) Investigation and non-adjudicatory resolution of complaints of discrimination and referral of unresolved complaints to the Equal Employment Opportunity Commission or the Department of Justice; and</P>
                <P>(4) Ensuring compliance with Civil Rights guidance in FEMA's programs and operations.</P>
                <P>(c) <E T="03">Delegated authorities.</E> The Director of the Office of Equal Rights is authorized to exercise the duties and powers of the Director as set forth in:</P>
                <P>(1) E.O. 12336, as amended;</P>
                <P>(2) E.O. 12250;</P>
                <P>(3) E.O. 12067, as amended;</P>
                <P>(4) E.O. 11478, as amended;</P>
                <P>(5) E.O. 11141; and</P>
                <P>(6) E.O. 11063, as amended.</P>
              </SECTION>
              <SECTION>
                <SECTNO>§ 2.19</SECTNO>
                <SUBJECT>Office of Financial Management.</SUBJECT>
                <P>(a) <E T="03">Mission.</E> The Office of Financial Management promotes sound financial management and accountability throughout the Agency by providing financial guidance, information, and services to FEMA management, its employees, and the Agency's customers.</P>
                <P>(b) <E T="03">Functions.</E> This office reports directly to the Director of FEMA regarding financial management matters and is headed by the Chief Financial Officer. The principal functions of the Office of Financial Management are:</P>
                <P>(1) Oversight of all financial management activities relating to the programs and operations of the Agency, including fund manager for all Agency funds;</P>
                <P>(2) Development, operation, and maintenance of an integrated Agency accounting and financial management system, including internal and external financial reporting;</P>
                <P>(3) Oversight of the Agency's internal control guidance and review program;</P>
                <P>(4) Direction, management, and provision of policy guidance and oversight of Agency financial management personnel, activities, and operations;</P>
                <P>(5) Preparation of the annual report described in 31 U.S.C. 902(a)(6) to the Director of FEMA and to the Office of Management and Budget;</P>

                <P>(6) Oversight of and responsibility for the formulation and execution of the <PRTPAGE P="20"/>Agency's budget and accounts for actual expenditures;</P>
                <P>(7) Preparation and submission of timely performance reports to the Director of FEMA and operating units;</P>
                <P>(8) Review, on a biennial basis, of the fees, royalties, rents, and other charges imposed by the Agency for services and things of value it provides, and recommendation of revision of those charges to reflect costs incurred by the Agency in providing those services and things of value.</P>
                <P>(c) <E T="03">Authority.</E> The position of Chief Financial Officer was created by statute (Agency Chief Financial Officers Act, as amended, 31 U.S.C. 901-1114, 3511-3521). The Chief Financial Officer is authorized to exercise the duties and powers set forth in that statute. The Chief Financial Officer is specifically authorized to:</P>
                <P>(1) Supervise the activities and functions of the Office of the Financial Management and oversee all financial management activities relating to the programs and operations of the Agency.</P>
                <P>(2) Direct, manage, and provide policy guidance and oversight of the Agency financial management personnel, activities and operations.</P>
                <P>(3) Establish and maintain an integrated Agency accounting and financial management system, including financial reporting and internal controls, that—</P>
                <P>(i) Complies with applicable accounting principles, standards, and requirements and standards prescribed by the Office of Management and Budget, the General Accounting Office, and the Department of the Treasury;</P>
                <P>(ii) Provides for complete, reliable and timely information, that is prepared on a uniform basis, and that is responsive to the financial management needs of the Agency; and,</P>
                <P>(iii) Complies with any other requirements applicable to such systems.</P>
                <P>(4) Prepare and submit a financial statement that conforms to the requirements of 31 U.S.C. 902 and 3515. Develop and implement the 5-year financial management plan as required by 31 U.S.C. 902(a)(5).</P>
                <P>(5) Develop the Agency's financial management plans and budgets, and review legislative proposals and other programmatic proposals to provide advice to the Director on the financial implications of such proposals.</P>
                <P>(6) Develop and implement Agency asset management systems, including systems for cash management, credit management, debt collection, and property and inventory management and control.</P>
                <P>(7) Review on a biennial basis the fees, royalties, rents and other charges imposed by the Agency for services and things of value it provides, and make recommendations to the Director on revising those charges to reflect actual costs incurred by the Agency in providing those services and things of value. Premiums and other policy holder charges that relate to the issuance of policies (National Flood Insurance and Crime Insurance programs) are set by the Federal Insurance Administrator pursuant to Federal law and regulation.</P>
                <P>(8) Develop, operate and maintain an Administrative Fund Control System that provides, for accurate and timely data on the status of each account. This Administrative Fund Control System shall comply with appropriate statutory requirements and regulations issued by General Accounting Office, Office of Management and Budget, the Department of the Treasury, and other central administrative agencies.</P>
                <P>(9) Establish and maintain the appropriate accounts designated by the Department of the Treasury, the General Accounting Office, and Office of Management and Budget and such subsidiary records as may be necessary for accounting, audit and management purposes. Establish and maintain controls for appropriations and other special limitations required by law. Maintain reliable accounting records that will be the basis for preparing and supporting the budget requests of the Agency, controlling the execution of the budget and providing financial information required by law and regulation.</P>

                <P>(10) Oversee the implementation of internal control systems that conform with rules, circulars, and other directives issued by General Accounting Office, Office of Management and Budget, and the Department of the Treasury. Report to the Director, as required by <PRTPAGE P="21"/>law and regulation, whether the Agency's internal control systems and other financial systems and processes comply with applicable law and regulation.</P>
                <P>(11) Develop and implement administrative standards and cost principles for the Agency's assistance programs in conformity with rules, circulars, and other directives that are issued by the General Accounting Office, the Office of Management and Budget, and the Department of the Treasury.</P>
                <P>(12) Develop and maintain procedures for approving requisitions for disbursing funds, reports of current accounts rendered by disbursing officers, and other financial and accounting documents involving FEMA, the General Accounting Office, the Department of the Treasury, and the Office of Management and Budget.</P>
                <P>(13) Certify to the General Accounting Office any charge against any officer or agent entrusted with public property, arising from any loss and accruing by this person's fault, to the Government as to the property so entrusted to this person.</P>
                <P>(14) Approve all expenditures and receipt all vouchers and other documents necessary to carry out FEMA's appropriations and programs.</P>
                <P>(15) Certify that all required documents, information and approvals respecting fiscal transactions are present; verify or cause to be verified the accuracy of the financial computations, the consistency of the information included in the various documents; and determine, or cause to be determined, that the financial transactions of the Agency are in strict accordance with the law, regulations and decisions.</P>
                <P>(16) Authorize officers and employees to certify vouchers.</P>
                <P>(17) Receive and credit amounts received to the applicable appropriation of FEMA or to the miscellaneous receipts account.</P>
                <P>(18) Request cashier designation and resolution from the Department of the Treasury, and designate cashiers to serve in FEMA.</P>
                <P>(19) Approve invitational travel for the Office of Financial Management.</P>
                <P>(20) Have access to records and documents as required by 31 U.S.C. 902(b) (1)(A), (1)(B), and (1)(C). Access to records and documents is subject to the limitations in 31 U.S.C. 902(b)(2).</P>
              </SECTION>
              <SECTION>
                <SECTNO>§ 2.20</SECTNO>
                <SUBJECT>Office of Regional Operations.</SUBJECT>
                <P>(a) <E T="03">Mission.</E> The Office of Regional Operations coordinates FEMA's policies, programs, and administrative and management guidance with Regional Directors and ensures that regional implementation is consistent with the Director's goals.</P>
                <P>(b) <E T="03">Functions.</E> The principal functions of the Office of Regional Operations are:</P>
                <P>(1) Liaison between the Regional Directors and the Director, Associate Directors, Administrators, and Office Directors;</P>
                <P>(2) Advising the Director, Associate Directors, Administrators, and Office Directors on regional matters; and</P>
                <P>(3) Providing guidance to Regional Directors on policy, programs, operations, and administrative matters.</P>
                <P>(c) <E T="03">Delegated authorities.</E> The Director of the Office of Regional Operations is authorized to exercise the duties and powers of the Director in the Director's capacity as agency head in support of the functions listed in paragraph (b) of this section.</P>
              </SECTION>
              <SECTION>
                <SECTNO>§ 2.21</SECTNO>
                <RESERVED>Ombudsman. [Reserved]</RESERVED>
              </SECTION>
              <SECTION>
                <SECTNO>§ 2.22</SECTNO>
                <SUBJECT>Regional Offices.</SUBJECT>
                <P>(a) <E T="03">Mission.</E> The Regional Offices implement FEMA's policies and programs at the regional level.</P>
                <P>(b) <E T="03">Functions.</E> The principal functions of the Regional Offices are:</P>
                <P>(1) Liaison, within the regions, with other Federal agencies, State and local governments, voluntary and other private organizations, and the public;</P>
                <P>(2) Recommendations to the Director on implementation of policy and improvement of the administration of FEMA's programs;</P>
                <P>(3) Administration of Comprehensive Cooperative Agreements, grants, and other financial assistance to State and local governments;</P>
                <P>(4) Response to disasters and emergencies declared under the Stafford Act, through Regional Response Teams;</P>

                <P>(5) Recovery activities under the Stafford Act;<PRTPAGE P="22"/>
                </P>
                <P>(6) Implementation of floodplain management aspects of the National Flood Insurance Program;</P>
                <P>(7) Management of training and field exercises; and</P>
                <P>(8) Technical assistance to Federal agencies, State and local governments, and voluntary and other private organizations regarding emergency response planning, preparedness, mitigation, response, and recovery.</P>
                <P>(c) <E T="03">Delegated authorities.</E> In general, Regional Directors are authorized, within their respective regions, to exercise the duties and powers of the Administrators and Associate Directors as set forth in §§ 2.32 through 2.44. However, the authorities of the Earthquake Hazards Reduction Act of 1977, as amended, 42 U.S.C. 7701 <E T="03">et seq.,</E> are not delegated to Regional Directors (except for the authority of 42 U.S.C. 7704(b)(2)(A)(i), which is delegated). In addition, the authorities of the Federal Insurance Administrator as set forth in § 2.31 are not delegated to the Regional Directors.</P>
              </SECTION>
            </SUBJGRP>
            <SUBJGRP>
              <HD SOURCE="HED">Administrations</HD>
              <SECTION>
                <SECTNO>§ 2.31</SECTNO>
                <SUBJECT>Federal Insurance Administration.</SUBJECT>
                <P>(a) <E T="03">Mission.</E> The Federal Insurance Administration markets, issues, and services insurance policies under the National Flood Insurance Program (NFIP) and the Federal Crime Insurance Program (FCIP), with assistance from private insurance companies and servicing contractors.</P>
                <P>(b) <E T="03">Functions.</E> The principal functions of the Federal Insurance Administration are:</P>
                <P>(1) Establishment of regulations, policy guidelines, standard contracts of insurance, and insurance rates for the NFIP and FCIP;</P>
                <P>(2) Establishment of policy, plans, and procedures for evaluation, payment, and review of insurance claims;</P>
                <P>(3) Oversight of servicing contracts for the NFIP and FCIP and the issuance and servicing of flood insurance policies by Write-Your-Own (WYO) carriers;</P>
                <P>(4) Studies of the costs and feasibility of proposed extensions of the National Flood Insurance Program or of the proposed establishment of Federal insurance programs for other natural hazards; and</P>
                <P>(5) Administration of the National Flood Insurance Fund and National Insurance Development Fund.</P>
                <P>(c) <E T="03">Delegated authorities.</E> The Federal Insurance Administrator is authorized to exercise the duties and powers of the Director as set forth in section 1-104 of E.O. 12127 insofar as it pertains to the marketing, issuance, and servicing of insurance under the NFIP and FCIP.</P>
              </SECTION>
              <SECTION>
                <SECTNO>§ 2.32</SECTNO>
                <SUBJECT>United States Fire Administration.</SUBJECT>
                <P>(a) <E T="03">Mission.</E> The United States Fire Administration works to reduce deaths, injuries, and property loss caused by fires in the United States.</P>
                <P>(b) <E T="03">Functions.</E> The principal functions of the United States Fire Administration are:</P>
                <P>(1) Education of the public about fire problems and high fire risk behaviors;</P>
                <P>(2) Providing training and technical assistance to fire and emergency services providers in incident response, mitigation and management;</P>
                <P>(3) Collection and analysis of fire incident information;</P>
                <P>(4) Investigation of technologies, equipment, and strategies for fire and emergency services providers;</P>
                <P>(5) Coordination with State and local fire and emergency agencies concerning arson investigation and mitigation, use of building and fire codes, fire protection and multi-agency cooperation; and</P>
                <P>(6) Management and operation of the National Emergency Training Center, Emmitsburg, Maryland.</P>
                <P>(c) <E T="03">Delegated authorities.</E> The United States Fire Administrator is authorized to exercise the duties and powers of the Director as set forth in section 1-103 of E.O. 12127.</P>
              </SECTION>
            </SUBJGRP>
            <SUBJGRP>
              <HD SOURCE="HED">Directorates</HD>
              <SECTION>
                <SECTNO>§ 2.41</SECTNO>
                <SUBJECT>Mitigation Directorate.</SUBJECT>
                <P>(a) <E T="03">Mission.</E> The Mitigation Directorate administers programs to reduce or eliminate loss of life and property from natural and technological hazards.</P>
                <P>(b) <E T="03">Functions.</E> The principal functions of the Mitigation Directorate are:<PRTPAGE P="23"/>
                </P>
                <P>(1) Identifying and assessing the risks posed by natural and technological hazards, except that, on issues of technological risk assessment, FEMA will defer to the Agency having primary responsibility in the specific area, notably the Nuclear Regulatory Commission (NRC) regarding accidents at commercial nuclear power plants, and the United States Army regarding chemical weapons;</P>
                <P>(2) Developing mitigation policies and strategies for implementing programs designed to reduce or eliminate loss of life and property from natural and technological hazards;</P>
                <P>(3) Coordinating with other Federal agencies and the scientific community on matters that will enhance FEMA'S ability to reduce or eliminate loss of life and property from natural and technological hazards;</P>
                <P>(4) Transferring information on the risks posed by natural and technological hazards to other Federal agencies and State and local government officials, and the public;</P>
                <P>(5) Promoting a multi-hazard approach to mitigation at State and local levels;</P>
                <P>(6) Coordinating with national associations whose membership, expertise, and standard-setting capabilities enhance the reduction of risks associated with natural and technological hazards;</P>
                <P>(7) Providing for the dissemination of information and delivery of technical assistance to build mitigation capabilities and promote mitigation activities;</P>
                <P>(8) Carrying out hazard mitigation activities of the Stafford Act, including the processing of applications for hazard mitigation grants, disbursement of funds under section 404 of the Stafford Act, and administrative responsibilities in support of these activities;</P>
                <P>(9) Management of Comprehensive Cooperative Agreements with the States, through which the Mitigation programs are implemented in the regions; and</P>
                <P>(10) Establishment of Agency Geographic Information Systems (GIS) requirements and an Agency-wide GIS policy.</P>
                <P>(c) <E T="03">Delegated authorities.</E> The Associate Director for Mitigation is authorized to exercise the duties and powers of the Director as set forth in:</P>
                <P>(1) 33 U.S.C. 467h, 709b, insofar as it pertains to the Dam Inspection Program;</P>
                <P>(2) Section 1-104 of E.O. 12127 insofar as it pertains to:</P>
                <P>(i) Determining the eligibility of communities to participate in the National Flood Insurance Program;</P>
                <P>(ii) Identification of flood-prone areas;</P>
                <P>(iii) Determination of inclusion or non-inclusion of properties within the Coastal Barrier Resources System established by 16 U.S.C. 3503 or within an otherwise protected area;</P>
                <P>(iv) Determination of projected flood elevations for State and local governments to use in adopting flood plain management laws, regulations or ordinances;</P>
                <P>(v) Establishment of criteria for land management and use, flood control, flood zoning, and flood damage protection; and</P>
                <P>(vi) Purchase of properties insured under the National Flood Insurance Program that have been damaged substantially beyond repair by flood;</P>
                <P>(3) E.O. 11988;</P>
                <P>(4) The following sections of E.O. 12148, as amended:</P>
                <P>(i) Section 4-203, insofar as it pertains to hurricane preparedness, as set forth in section 201 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5131;</P>
                <P>(ii) Section 4-203, insofar as it pertains to hazard mitigation set forth in sections 404, 406, 409, and 411 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5170, 5172, 5176, and 5178;</P>
                <P>(iii) Section 4-204, pertaining to earthquake hazards reduction as set forth in the Earthquake Hazards Reduction Act of 1977, as amended, 42 U.S.C. 7701-7706; and</P>
                <P>(5) E.O. 12699.</P>
              </SECTION>
              <SECTION>
                <SECTNO>§ 2.42</SECTNO>
                <SUBJECT>Preparedness, Training, and Exercises Directorate.</SUBJECT>
                <P>(a) <E T="03">Mission.</E> The Preparedness, Training, and Exercises Directorate supports the emergency preparedness, training, and exercises capabilities of Federal, State and local governments.<PRTPAGE P="24"/>
                </P>
                <P>(b) <E T="03">Functions.</E> The principal functions of the Preparedness, Training, and Exercises Directorate are:</P>
                <P>(1) Management of programs to establish, maintain, and enhance the capabilities of Federal, State, and local governments to prepare for, respond to, recover from a broad range of emergencies, including such programs as the Radiological Emergency Preparedness (REP) Program, Chemical Stockpile Emergency Preparedness Program (CSEPP), and the delegated responsibilities under the Federal Civil Defense Act of 1950, as amended (50 U.S.C. App. 2251-2303);</P>
                <P>(2) Management of Comprehensive Cooperative Agreements with the States, through which agreements the above programs are implemented in the regions;</P>
                <P>(3) Training of Federal, State, and local government employees to prepare for, respond to, recover from a broad range of emergencies;</P>
                <P>(4) Testing of Federal, State, and local emergency preparedness and response procedures through a comprehensive exercise, evaluation and corrective action program; and</P>
                <P>(5) Recommendation of policy for all-hazard emergency preparedness and provision of implementation guidance, as required by statute, international agreement, or executive order.</P>
                <P>(c) <E T="03">Delegated authorities.</E> The Associate Director for Preparedness, Training, and Exercises Directorate is authorized to exercise the duties and powers of the Director as set forth in:</P>
                <P>(1) E.O. 10480, as amended;</P>
                <P>(2) E.O. 11179, as amended;</P>
                <P>(3) Sections 1-103(b) and 1-105, E.O. 12127;</P>
                <P>(4) Section 1-101, E.O. 12148;</P>
                <P>(5) E.O. 12241;</P>
                <P>(6) E.O. 12656, other than section 202;</P>
                <P>(7) E.O. 12657; and</P>
                <P>(8) E.O. 12742.</P>
              </SECTION>
              <SECTION>
                <SECTNO>§ 2.43</SECTNO>
                <SUBJECT>Response and Recovery Directorate.</SUBJECT>
                <P>(a) <E T="03">Mission.</E> The Response and Recovery Directorate maintains an integrated operational capability to respond to and recover from the consequences of a disaster, regardless of its cause, in cooperation with other Federal agencies, State and local governments, volunteer organizations, and the private sector.</P>
                <P>(b) <E T="03">Functions.</E> The principal functions of the Response and Recovery Directorate are:</P>
                <P>(1) Management of Disaster Assistance, including damage assessment, recommendations to the President on declaration of disasters or emergencies under the Robert T. Stafford Disaster Relief and Emergency Assistance (Stafford) Act, 42 U.S.C. 5121-5201, processing of applications for disaster assistance and disbursement of Federal disaster assistance funds, except for hazard mitigation assistance provided under section 404 of the Stafford Act, 42 U.S.C. 5170c.</P>
                <P>(2) Coordination among Federal agencies, State and local governments, and the American Red Cross of the ongoing development and the implementation of the Federal Response Plan (for implementation of Pub. L. 93-288, as amended) and associated plans for response to and recovery from a broad range of disasters;</P>
                <P>(3) Support of communications and Automated Data Processing (ADP) capabilities for interagency operations during a wide range of emergencies; and</P>
                <P>(4) Maintaining the continuity of essential functions of the Federal Government during a wide range of emergencies.</P>
                <P>(c) <E T="03">Delegated authorities.</E> The Associate Director for Response and Recovery is authorized to exercise the duties and powers of the Director as set forth in:</P>
                <P>(1) Sections 2-102 and 4-203, Executive Order 12148, as amended, except insofar as they pertain to hazard mitigation assistance; and</P>
                <P>(2) Section 202, Executive Order 12656.</P>
              </SECTION>
              <SECTION>
                <SECTNO>§ 2.44</SECTNO>
                <SUBJECT>Operations Support Directorate.</SUBJECT>
                <P>(a) <E T="03">Mission.</E> The Operations Support Directorate provides direct support and services to FEMA's all-hazards emergency management program of mitigation, preparedness, response and recovery.</P>
                <P>(b) <E T="03">Functions.</E> The principal functions of the Operations Support Directorate are:</P>

                <P>(1) Services primarily for the support of internal functions, including:<PRTPAGE P="25"/>
                </P>
                <P>(i) Management and oversight of the Agency's procurement system, including acquisition of supplies and services;</P>
                <P>(ii) Printing and publications;</P>
                <P>(iii) Telecommunications operations;</P>
                <P>(iv) Automated data processing;</P>
                <P>(v) Software design and engineering;</P>
                <P>(vi) Records management;</P>
                <P>(vii) Agency-wide logistics and property management;</P>
                <P>(viii) Protection of personnel, facilities, and equipment;</P>
                <P>(ix) Management of transit subsidies;</P>
                <P>(x) Preparation of visual presentations materials;</P>
                <P>(xi) Placement of advertisements in general circulation newspapers; and</P>
                <P>(2) Services that support organizations outside of FEMA as well as the agency itself, including:</P>
                <P>(i) Telecommunications design and engineering;</P>
                <P>(ii) Resource and economic modeling;</P>
                <P>(iii) Management of data storage and production associated with Geographic Information Systems (GIS) and other analytic systems;</P>
                <P>(iv) Security of classified records;</P>
                <P>(v) Security of classified communications;</P>
                <P>(vi) Background investigations for the granting of security clearances;</P>
                <P>(vii) Determination of suitability for employment under 5 CFR part 731; and</P>
                <P>(viii) Control of public information collections.</P>
                <P>(c) <E T="03">Delegated authorities.</E> Subject to the qualifications of paragraph (d) of this section, the Associate Director for Operations Support is authorized to exercise the duties and powers of the Director as set forth in:</P>
                <P>(1) E.O. 10450, as amended;</P>
                <P>(2) E.O. 12046, as amended;</P>
                <P>(3) E.O. 12356; and</P>
                <P>(4) E.O. 12472.</P>
                <P>(d) <E T="03">Authorities delegated directly to the Director, Acquisition Services Division.</E> The Director, Acquisition Services Division, Operations Support Directorate, is authorized to:</P>
                <P>(1)(i) Exercise authority under section 104(h) of the Comprehensive Environmental Response, Compensation and Liability Act of 1980 delegated to the Director by section 2(f) of Executive Order 12316;</P>
                <P>(ii) Exercise authority of the Director concerning extraordinary contractual actions under paragraph 21 of Executive Order 10789.</P>
                <P>(iii) Exercise authority delegated to the Director by Executive Order 12352 and act as procurement executive.</P>
                <P>(2)(i) Make purchases and contracts by advertising for equipment and supplies, administrative equipment, office supplies, professional services, transportation of persons and property, and nonpersonal services, and determine that the rejection of any bid is in the public interest;</P>
                <P>(ii) Negotiate purchases and contracts for equipment and supplies, professional services, transportation of persons and property, and non-personal services without advertising; and make and issue determinations related thereto pursuant to section 302(c) (1)-(b)(10)(10), (14) and (15) of the Federal Property and Administrative Services Act of 1949 (41 U.S.C. 252(c) (1)-(10), (14) and (15)) and 40 U.S.C. 541-544 with respect to contracting for services of Architects Engineers;</P>
                <P>(iii) Enter into and administer interagency agreements under the Economy Act or any other such agreement involving obligation of funds;</P>
                <P>(3) Notwithstanding any general delegation of statutory authority in this part to another officer of FEMA, if the authority delegated in the general statutory delegation contains procurement authority that authority is delegated solely to the Director, Acquisition Services Division, with authority to redelegate to any employee of FEMA. As used in this paragraph (d) the term “procurement” includes acquisition from a recipient including a State or local government, of property or services for the direct benefit or use of the Federal Government. This includes authority under section 201(h) of the Federal Civil Defense Act but excludes authority under section 1362 of the National Flood Insurance Act.</P>

                <P>(4) Notwithstanding any general delegation of authority in this part to another officer of FEMA, other than the delegation to Regional Directors under § 2.22, if the authority delegated contains authority to award discretionary grants that authority is delegated to the Director, Acquisition Services Division, who is authorized to exercise <PRTPAGE P="26"/>the authority of the Director with respect thereto. The Director, Acquisition Services Division, may redelegate this authority to any employee of FEMA. Discretionary grants include those instruments that are awarded to a selected or limited number of recipients deemed best qualified based upon criteria designed for the conduct of a specific project. This can include governments. Discretionary grants do not include those awarded to recipients for which:</P>
                <P>(i) The recipient or class of recipient is mandated by legislation or regulation;</P>
                <P>(ii) The amount of the instrument or the amount of the program is established by legislation and discretion in the award process is limited; or</P>
                <P>(iii) There is no choice in the purpose of the award or whether to make the award. The delegation to the Regional Directors under § 2.22 to implement various programs is not affected by this delegation to the Director, Acquisition Services Division.</P>
              </SECTION>
            </SUBJGRP>
          </SUBPART>
          <SUBPART>
            <RESERVED>Subpart B [Reserved]</RESERVED>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart C—OMB Control Numbers</HD>
            <SECTION>
              <SECTNO>§ 2.80</SECTNO>
              <SUBJECT>Purpose.</SUBJECT>
              <P>The purpose of this subpart is to display OMB control numbers assigned to FEMA's information collection requirements.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 2.81</SECTNO>
              <SUBJECT>OMB control numbers assigned to information collections.</SUBJECT>
              <P>This section collects and displays the control numbers assigned to information collection requirements of FEMA by OMB pursuant to the Paperwork Reduction Act of 1980. FEMA intends that this section comply with the requirements of section 3507(f) of the Paperwork Reduction Act, which requires that agencies display a current control number assigned by the Director of the Office of Management and Budget for each agency information collection requirement.</P>
              <GPOTABLE CDEF="s50,10" COLS="2" OPTS="L2,i1">
                <BOXHD>
                  <CHED H="1"/>
                  <CHED H="1">Current OMB control No.</CHED>
                </BOXHD>
                <ROW>
                  <ENT I="22">44 CFR part or section where identified or described:</ENT>
                </ROW>
                <ROW>
                  <ENT I="02">7 subpart E</ENT>
                  <ENT>3067-0177</ENT>
                </ROW>
                <ROW>
                  <ENT I="02">11.36</ENT>
                  <ENT>3067-0122</ENT>
                </ROW>
                <ROW>
                  <ENT I="02">11.54</ENT>
                  <ENT>3067-0122</ENT>
                </ROW>
                <ROW>
                  <ENT I="02">11 subpart D</ENT>
                  <ENT>3067-0167</ENT>
                </ROW>
                <ROW>
                  <ENT I="02">59.22(a)</ENT>
                  <ENT>3067-0020</ENT>
                </ROW>
                <ROW>
                  <ENT I="02">59.22(b)(2)</ENT>
                  <ENT>3067-0018</ENT>
                </ROW>
                <ROW>
                  <ENT I="02">60.3, 60.4, 60.5</ENT>
                  <ENT>3067-0022</ENT>
                </ROW>
                <ROW>
                  <ENT I="02">61, 61 app. A(1), 61 app. B</ENT>
                  <ENT>3067-0022</ENT>
                </ROW>
                <ROW>
                  <ENT I="02">62 subpart C, 62 app. A, 62 app. B</ENT>
                  <ENT>3067-0169</ENT>
                </ROW>
                <ROW>
                  <ENT I="02">63 subpart B</ENT>
                  <ENT>3067-0196</ENT>
                </ROW>
                <ROW>
                  <ENT I="02">64.3(c)</ENT>
                  <ENT>3067-0020</ENT>
                </ROW>
                <ROW>
                  <ENT I="02">65</ENT>
                  <ENT>3067-0147</ENT>
                </ROW>
                <ROW>
                  <ENT I="02">66, 67</ENT>
                  <ENT>3067-0148</ENT>
                </ROW>
                <ROW>
                  <ENT I="02">70</ENT>
                  <ENT>3067-0147</ENT>
                </ROW>
                <ROW>
                  <ENT I="02">71</ENT>
                  <ENT>3067-0120</ENT>
                </ROW>
                <ROW>
                  <ENT I="02">75 subpart B</ENT>
                  <ENT>3067-0127</ENT>
                </ROW>
                <ROW>
                  <ENT I="02">80, 81, 83</ENT>
                  <ENT>3067-0031</ENT>
                </ROW>
                <ROW>
                  <ENT I="02">151 subpart B</ENT>
                  <ENT>3067-0141</ENT>
                </ROW>
                <ROW>
                  <ENT I="02">204</ENT>
                  <ENT>3067-0290</ENT>
                </ROW>
                <ROW>
                  <ENT I="02">205.33</ENT>
                  <ENT>3067-0113</ENT>
                </ROW>
                <ROW>
                  <ENT I="02">205.34</ENT>
                  <ENT>3067-0113</ENT>
                </ROW>
                <ROW>
                  <ENT I="02">205.52(e)</ENT>
                  <ENT>3067-0009</ENT>
                </ROW>
                <ROW>
                  <ENT I="02">205.54(e)</ENT>
                  <ENT>3067-0146</ENT>
                </ROW>
                <ROW>
                  <ENT I="02">205.54(f), 205.54(j)</ENT>
                  <ENT>3067-0163</ENT>
                </ROW>
                <ROW>
                  <ENT I="02">205.59</ENT>
                  <ENT>3067-0166</ENT>
                </ROW>
                <ROW>
                  <ENT I="02">205.94</ENT>
                  <ENT>3067-0034</ENT>
                </ROW>
                <ROW>
                  <ENT I="02">205.96</ENT>
                  <ENT>3067-0026</ENT>
                </ROW>
                <ROW>
                  <ENT I="02">205 subpart G</ENT>
                  <ENT>3067-0066</ENT>
                </ROW>
                <ROW>
                  <ENT I="02">205.116</ENT>
                  <ENT>3067-0151</ENT>
                </ROW>
                <ROW>
                  <ENT I="02">205.200(b)</ENT>
                  <ENT>3067-0048</ENT>
                </ROW>
                <ROW>
                  <ENT I="02">205.207</ENT>
                  <ENT>3067-0048</ENT>
                </ROW>
                <ROW>
                  <ENT I="02">205.208</ENT>
                  <ENT>3067-0048</ENT>
                </ROW>
                <ROW>
                  <ENT I="02">206.35</ENT>
                  <ENT>3067-0113</ENT>
                </ROW>
                <ROW>
                  <ENT I="02">206.36</ENT>
                  <ENT>3067-0113</ENT>
                </ROW>
                <ROW>
                  <ENT I="02">206.101(e)</ENT>
                  <ENT>3067-0009</ENT>
                </ROW>
                <ROW>
                  <ENT I="02">206.131(e)</ENT>
                  <ENT>3067-0146</ENT>
                </ROW>
                <ROW>
                  <ENT I="02">206.131(f), 206.131(j)</ENT>
                  <ENT>3067-0163</ENT>
                </ROW>
                <ROW>
                  <ENT I="02">206.171</ENT>
                  <ENT>3067-0166</ENT>
                </ROW>
                <ROW>
                  <ENT I="02">206.202(c)</ENT>
                  <ENT>3067-0033</ENT>
                </ROW>
                <ROW>
                  <ENT I="02">206.204</ENT>
                  <ENT>3067-0151</ENT>
                </ROW>
                <ROW>
                  <ENT I="02">206.364</ENT>
                  <ENT>3067-0034</ENT>
                </ROW>
                <ROW>
                  <ENT I="02">206.366</ENT>
                  <ENT>3067-0026</ENT>
                </ROW>
                <ROW>
                  <ENT I="02">206 subpart L</ENT>
                  <ENT>3067-0066</ENT>
                </ROW>
                <ROW>
                  <ENT I="02">206.436</ENT>
                  <ENT>3067-0207</ENT>
                </ROW>
                <ROW>
                  <ENT I="02">206.437</ENT>
                  <ENT>3067-0208</ENT>
                </ROW>
                <ROW>
                  <ENT I="02">206.405</ENT>
                  <ENT>3067-0212</ENT>
                </ROW>
                <ROW>
                  <ENT I="02">220.6</ENT>
                  <ENT>3067-0168</ENT>
                </ROW>
                <ROW>
                  <ENT I="02">220.19</ENT>
                  <ENT>3067-0156</ENT>
                </ROW>
                <ROW>
                  <ENT I="02">221.8</ENT>
                  <ENT>3067-0156</ENT>
                </ROW>
                <ROW>
                  <ENT I="02">222.5, 222.6</ENT>
                  <ENT>3067-0184</ENT>
                </ROW>
                <ROW>
                  <ENT I="02">302.3(a), 302.3(d)</ENT>
                  <ENT>3067-0138</ENT>
                </ROW>
                <ROW>
                  <ENT I="02">302.3(b)</ENT>
                  <ENT>3067-0123</ENT>
                </ROW>
                <ROW>
                  <ENT I="02">302.3(c)(1)</ENT>
                  <ENT>3067-0096</ENT>
                </ROW>
                <ROW>
                  <ENT I="02">302.3(c)(3)</ENT>
                  <ENT>3067-0090</ENT>
                </ROW>
                <ROW>
                  <ENT I="02">308.7</ENT>
                  <ENT>3067-0074</ENT>
                </ROW>
                <ROW>
                  <ENT I="02">352.4</ENT>
                  <ENT>3067-0201</ENT>
                </ROW>
                <ROW>
                  <ENT I="02">352.24</ENT>
                  <ENT>3067-0201</ENT>
                </ROW>
                <ROW>
                  <ENT I="02">360.4(c)</ENT>
                  <ENT>3067-0100</ENT>
                </ROW>
                <ROW>
                  <ENT I="22">48 CFR part or section where identified or described:</ENT>
                </ROW>
                <ROW>
                  <ENT I="02">4452.226-01(a)</ENT>
                  <ENT>3067-0213</ENT>
                </ROW>
              </GPOTABLE>
              <CITA>[59 FR 26133, May 19, 1994, as amended at 66 FR 57347, Nov. 14, 2001]</CITA>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <RESERVED>PART 3 [RESERVED]</RESERVED>
        </PART>
        <PART>
          <PRTPAGE P="27"/>
          <EAR>Pt. 4</EAR>
          <HD SOURCE="HED">PART 4—INTERGOVERNMENTAL REVIEW OF FEDERAL EMERGENCY MANAGEMENT AGENCY (FEMA) PROGRAMS AND ACTIVITIES</HD>
          <CONTENTS>
            <SECHD>Sec.</SECHD>
            <SECTNO>4.1</SECTNO>
            <SUBJECT>What is the purpose of these regulations?</SUBJECT>
            <SECTNO>4.2</SECTNO>
            <SUBJECT>What definitions apply to these regulations?</SUBJECT>
            <SECTNO>4.3</SECTNO>
            <SUBJECT>What programs and activities of FEMA are subject to these regulations?</SUBJECT>
            <SECTNO>4.4</SECTNO>
            <RESERVED>[Reserved]</RESERVED>
            <SECTNO>4.5</SECTNO>
            <SUBJECT>What is the Director's obligation with respect to Federal interagency coordination?</SUBJECT>
            <SECTNO>4.6</SECTNO>
            <SUBJECT>What procedures apply to the selection of programs and activities under these regulations?</SUBJECT>
            <SECTNO>4.7</SECTNO>
            <SUBJECT>How does the Director communicate with State and local officials concerning FEMA's programs and activities?</SUBJECT>
            <SECTNO>4.8</SECTNO>
            <SUBJECT>How does the Director provide an opportunity to comment on proposed Federal financial assistance and direct Federal development?</SUBJECT>
            <SECTNO>4.9</SECTNO>
            <SUBJECT>How does the Director receive and respond to comments?</SUBJECT>
            <SECTNO>4.10</SECTNO>
            <SUBJECT>How does the Director make efforts to accommodate intergovernmental concerns?</SUBJECT>
            <SECTNO>4.11</SECTNO>
            <SUBJECT>What are the Director's obligations in interstate situations?</SUBJECT>
            <SECTNO>4.12</SECTNO>
            <SUBJECT>How may a State simplify, consolidate, or substitute federally required State plans?</SUBJECT>
            <SECTNO>4.13</SECTNO>
            <SUBJECT>May the Director waive any provision of these regulations?</SUBJECT>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>E.O. 12372, July 14, 1982 (47 FR 30959), as amended April 8, 1983 (48 FR 15887); sec. 401, Intergovernmental Cooperation Act of 1968, as amended (31 U.S.C. 6506); sec. 204, Demonstration Cities and Metropolitan Development Act of 1966, as amended (42 U.S.C. 3334).</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>48 FR 29316, June 24, 1983, unless otherwise noted.</P>
          </SOURCE>
          <EDNOTE>
            <HD SOURCE="HED">Editorial Note:</HD>
            <P>For additional information, see related documents published at 47 FR 57369, Dec. 23, 1982; 48 FR 17101, Apr. 21, 1983; and 48 FR 29096, June 24, 1983.</P>
          </EDNOTE>
          <SECTION>
            <SECTNO>§ 4.1</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 FEMA, and are not intended to create any right or benefit enforceable at law by a party against FEMA or its officers.</P>
          </SECTION>
          <SECTION>
            <SECTNO>§ 4.2</SECTNO>
            <SUBJECT>What definitions apply to these regulations?</SUBJECT>
            <P>
              <E T="03">FEMA</E> means the Federal Emergency Management Agency.</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">Director</E> means the Director of FEMA or an official or employee of FEMA acting for the Director 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 Northern Mariana Islands, Guam, American Samoa, the U.S. Virgin Islands, or the Trust Territory of the Pacific Islands.</P>
          </SECTION>
          <SECTION>
            <SECTNO>§ 4.3</SECTNO>
            <SUBJECT>What programs and activities of FEMA are subject to these regulations?</SUBJECT>
            <P>The Director publishes in the <E T="04">Federal Register</E> a list of FEMA's programs and activities that are subject to these regulations and identifies which of these are subject to the requirements of section 204 of the Demonstration Cities and Metropolitan Development Act.</P>
          </SECTION>
          <SECTION>
            <SECTNO>§ 4.4</SECTNO>
            <RESERVED>[Reserved]</RESERVED>
          </SECTION>
          <SECTION>
            <SECTNO>§ 4.5</SECTNO>
            <SUBJECT>What is the Director's obligation with respect to Federal interagency coordination?</SUBJECT>

            <P>The Director, to the extent practicable, consults with and seeks advice from all other substantially affected Federal departments and agencies in <PRTPAGE P="28"/>an effort to assure full coordination between such agencies and FEMA regarding programs and activities covered under these regulations.</P>
          </SECTION>
          <SECTION>
            <SECTNO>§ 4.6</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 § 4.3 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 Director of FEMA's programs and activities selected for that process.</P>
            <P>(c) A State may notify the Director of changes in its selections at any time. For each change, the State shall submit to the Director an assurance that the State has consulted with local elected officials regarding the change. FEMA may establish deadlines by which States are required to inform the Director of changes in their program selections.</P>
            <P>(d) The Director uses a State's process as soon as feasible, depending on individual programs and activities, after the Director is notified of its selections.</P>
          </SECTION>
          <SECTION>
            <SECTNO>§ 4.7</SECTNO>
            <SUBJECT>How does the Director communicate with State and local officials concerning FEMA's programs and activities?</SUBJECT>
            <P>(a) For those programs and activities covered by a state process under § 4.6, the Director, 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 Director provides notice to directly affected State, areawide, regional, and local entities in a State of proposed Federal financial assistance or direct Federal development if:</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 FEMA in its discretion deems appropriate.</FP>
          </SECTION>
          <SECTION>
            <SECTNO>§ 4.8</SECTNO>
            <SUBJECT>How does the Director provide an opportunity to comment on proposed Federal financial assistance and direct Federal development?</SUBJECT>
            <P>(a) Except in unusual circumstances, the Director gives state processes or directly affected State, areawide, regional and local officials and entities at least 60 days from the date established by the Director to comment on proposed direct Federal development or Federal financial assistance.</P>
            <P>(b) This section also applies to comments in cases in which the review, coordination, and communication with FEMA 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>
            <SECTNO>§ 4.9</SECTNO>
            <SUBJECT>How does the Director receive and respond to comments?</SUBJECT>
            <P>(a) The Director follows the procedures in § 4.10 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 § 4.6.</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 to FEMA.<PRTPAGE P="29"/>
            </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 to FEMA. In addition, if a state process recommendation for a nonselected program or activity is transmitted to FEMA by the single point of contact,the Director follows the procedures of § 4.10 of this part.</P>
            <P>(e) The Director considers comments which do not constitute a state process recommendation submitted under these regulations and for which the Director is not required to apply the procedures of § 4.10 of this part, when such comments are provided by a single point of contact, by the applicant or directly to FEMA by a commenting party.</P>
          </SECTION>
          <SECTION>
            <SECTNO>§ 4.10</SECTNO>
            <SUBJECT>How does the Director make efforts to accommodate intergovernmental concerns?</SUBJECT>
            <P>(a) If a state process provides a state process recommendation to FEMA through its single point of contact, the Director 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 such written explanation of the decision, as the Director in his or her discretion deems appropriate. The Director may also supplement the written explanation by providing the explanation to the single point of contact by telephone, other telecommunication, or other means.</P>
            <P>(b) In any explanation under paragraph (a)(3) of this section, the Director informs the single point of contact that:</P>
            <P>(1) FEMA will not implement its decision for at least ten days after the single point of contact receives the explanation; or</P>
            <P>(2) The Director has reviewed the decision and determined that, because of unusual circumstances, the waiting period of at least ten days is not feasible.</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>§ 4.11</SECTNO>
            <SUBJECT>What are the Director's obligations in interstate situations?</SUBJECT>
            <P>(a) The Director 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 FEMA'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 FEMA's progam or activity;</P>
            <P>(4) Responding pursuant to § 4.10 of this part if the Director receives a recommendation from a designated areawide agency transmitted by a single point of contact, in cases in which the review, coordination, and communication with FEMA have been delegated.</P>
            <P>(b) The Director uses the procedures in § 4.10 if a state process provides a state process recommendation to FEMA through a single point of contact.</P>
          </SECTION>
          <SECTION>
            <SECTNO>§ 4.12</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 Director.</P>

            <P>(c) The Director reviews each state plan that a State has simplified, consolidated, or substituted and accepts <PRTPAGE P="30"/>the plan only if its contents meet Federal requirements.</P>
          </SECTION>
          <SECTION>
            <SECTNO>§ 4.13</SECTNO>
            <SUBJECT>May the Director waive any provision of these regulations?</SUBJECT>
            <P>In an emergency, the Director may waive any provision of these regulations.</P>
          </SECTION>
        </PART>
        <PART>
          <EAR>Pt. 5</EAR>
          <HD SOURCE="HED">PART 5—PRODUCTION OR DISCLOSURE OF INFORMATION</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart A—General Provisions</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>5.1</SECTNO>
              <SUBJECT>Scope and purposes of part.</SUBJECT>
              <SECTNO>5.2</SECTNO>
              <SUBJECT>Application.</SUBJECT>
              <SECTNO>5.3</SECTNO>
              <SUBJECT>Definitions.</SUBJECT>
              <SECTNO>5.4</SECTNO>
              <SUBJECT>Availability of records.</SUBJECT>
              <SECTNO>5.5</SECTNO>
              <SUBJECT>Exemptions.</SUBJECT>
              <SECTNO>5.6</SECTNO>
              <SUBJECT>Congressional information.</SUBJECT>
              <SECTNO>5.7</SECTNO>
              <SUBJECT>Records of other agencies.</SUBJECT>
              <SECTNO>5.8</SECTNO>
              <SUBJECT>Records involved in litigation or other judicial process.</SUBJECT>
              <SECTNO>5.9</SECTNO>
              <SUBJECT>Inconsistent issuances of FEMA and its predecessor agencies superseded.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart B—Publication of or Availability of General Agency Information, Rules, Orders, Policies, and Similar Material</HD>
              <SECTNO>5.20</SECTNO>
              <SUBJECT>Publication of rules and general policies.</SUBJECT>
              <SECTNO>5.21</SECTNO>
              <SUBJECT>Effect of failure to publish.</SUBJECT>
              <SECTNO>5.22</SECTNO>
              <SUBJECT>Coordination of publication.</SUBJECT>
              <SECTNO>5.23</SECTNO>
              <SUBJECT>Incorporation by reference.</SUBJECT>
              <SECTNO>5.24</SECTNO>
              <SUBJECT>Availability of opinions, orders, policies, interpretations, manuals, and instructions.</SUBJECT>
              <SECTNO>5.25</SECTNO>
              <SUBJECT>Available materials.</SUBJECT>
              <SECTNO>5.26</SECTNO>
              <SUBJECT>Rules for public inspection and copying.</SUBJECT>
              <SECTNO>5.27</SECTNO>
              <SUBJECT>Deletion of identifying details.</SUBJECT>
              <SECTNO>5.28</SECTNO>
              <SUBJECT>Indexes.</SUBJECT>
              <SECTNO>5.29</SECTNO>
              <SUBJECT>Effect of failure to make information materials available.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart C—Fees</HD>
              <SECTNO>5.40</SECTNO>
              <SUBJECT>Copies of FEMA records available at a fee.</SUBJECT>
              <SECTNO>5.41</SECTNO>
              <SUBJECT>FEMA publications.</SUBJECT>
              <SECTNO>5.42</SECTNO>
              <SUBJECT>Fees to be charged—categories of requesters.</SUBJECT>
              <SECTNO>5.43</SECTNO>
              <SUBJECT>Waiver or reduction of fees.</SUBJECT>
              <SECTNO>5.44</SECTNO>
              <SUBJECT>Prepayment of fees.</SUBJECT>
              <SECTNO>5.45</SECTNO>
              <SUBJECT>Form of payment.</SUBJECT>
              <SECTNO>5.46</SECTNO>
              <SUBJECT>Fee schedule.</SUBJECT>
              <SECTNO>5.47</SECTNO>
              <SUBJECT>Appeals regarding fees.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart D—Described Records</HD>
              <SECTNO>5.50</SECTNO>
              <SUBJECT>General.</SUBJECT>
              <SECTNO>5.51</SECTNO>
              <SUBJECT>Submission of requests for described records.</SUBJECT>
              <SECTNO>5.52</SECTNO>
              <SUBJECT>Review of requests.</SUBJECT>
              <SECTNO>5.53</SECTNO>
              <SUBJECT>Approval of request.</SUBJECT>
              <SECTNO>5.54</SECTNO>
              <SUBJECT>Denial of request of records.</SUBJECT>
              <SECTNO>5.55</SECTNO>
              <SUBJECT>Appeal within FEMA of denial of request.</SUBJECT>
              <SECTNO>5.56</SECTNO>
              <SUBJECT>Extension of time limits.</SUBJECT>
              <SECTNO>5.57</SECTNO>
              <SUBJECT>Predisclosure notification procedures for confidential commercial information.</SUBJECT>
              <SECTNO>5.58</SECTNO>
              <SUBJECT>Exhaustion of administrative remedies.</SUBJECT>
              <SECTNO>5.59</SECTNO>
              <SUBJECT>Judicial relief available to the public.</SUBJECT>
              <SECTNO>5.60</SECTNO>
              <SUBJECT>Disciplinary action against employees for “arbitrary or capricious” denial.</SUBJECT>
              <SECTNO>5.61</SECTNO>
              <SUBJECT>Contempt for noncompliance.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart E—Exemptions</HD>
              <SECTNO>5.70</SECTNO>
              <SUBJECT>General.</SUBJECT>
              <SECTNO>5.71</SECTNO>
              <SUBJECT>Categories of records exempt from disclosure under 5 U.S.C. 552.</SUBJECT>
              <SECTNO>5.72</SECTNO>
              <SUBJECT>Executive privilege exemption.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart F—Subpoenas or Other Legal Demands for Testimony or the Production or Disclosure of Records or Other Information</HD>
              <SECTNO>5.80</SECTNO>
              <SUBJECT>Scope and applicability.</SUBJECT>
              <SECTNO>5.81</SECTNO>
              <SUBJECT>Statement of policy.</SUBJECT>
              <SECTNO>5.82</SECTNO>
              <SUBJECT>Definitions.</SUBJECT>
              <SECTNO>5.83</SECTNO>
              <SUBJECT>Authority to accept service of subpoenas.</SUBJECT>
              <SECTNO>5.84</SECTNO>
              <SUBJECT>Production of documents in private litigation.</SUBJECT>
              <SECTNO>5.85</SECTNO>
              <SUBJECT>Authentication and attestation of copies.</SUBJECT>
              <SECTNO>5.86</SECTNO>
              <SUBJECT>Production of documents in litigation or other adjudicatory proceeding in which the United States is a party.</SUBJECT>
              <SECTNO>5.87</SECTNO>
              <SUBJECT>Testimony of FEMA employees in private litigation.</SUBJECT>
              <SECTNO>5.88</SECTNO>
              <SUBJECT>Testimony in litigation in which the United States is a party.</SUBJECT>
              <SECTNO>5.89</SECTNO>
              <SUBJECT>Waiver.</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>5 U.S.C. 552 as amended by sections 1801-1804 of the Omnibus Anti-Drug Abuse Act of 1986 which contains the Freedom of Information Reform Act of 1986 (Pub. L. 99-570); 5 U.S.C. 301 (Pub. L. 85-619); Reorganization Plan No. 3 of 1978; E.O. 12127; and E.O. 12148.</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>44 FR 50287, Aug. 27, 1979, unless otherwise noted.</P>
          </SOURCE>
          <SUBPART>
            <HD SOURCE="HED">Subpart A—General Provisions</HD>
            <SECTION>
              <SECTNO>§ 5.1</SECTNO>
              <SUBJECT>Scope and purposes of part.</SUBJECT>
              <P>This part sets forth policies and procedures concerning the availability of and disclosure of records and information held by the Federal Emergency Management Agency (FEMA) in accordance with 5 U.S.C. 552, popularly known as the “Freedom of Information Act,” (FOIA).</P>
            </SECTION>
            <SECTION>
              <PRTPAGE P="31"/>
              <SECTNO>§ 5.2</SECTNO>
              <SUBJECT>Application.</SUBJECT>
              <P>This part applies to all records and information materials generated, developed, or held by FEMA at Headquarters, in Regions, or in the field, or any component thereof.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 5.3</SECTNO>
              <SUBJECT>Definitions.</SUBJECT>
              <P>For purposes of this part, the following terms have the meanings ascribed to them in this section:</P>
              <P>(a) <E T="03">Records. Records</E> means all books, papers, maps, photographs, or other documentary materials, regardless of physical form or characteristics made or received by FEMA in pursuance of Federal Law or in connection with the transaction of public business and preserved, or appropriate for preservation, as evidence of the organization, functions, policies, decisions, procedures, operations, or other activities of FEMA or because of the information value of data contained therein. The term does not include:</P>
              <P>(1) Material made or acquired and preserved solely for reference or exhibition purposes, extra copies of documents preserved only for convenience of reference, and stocks of publications and of processed documents; or</P>
              <P>(2) Objects or articles, such as structures, furniture, paintings, sculpture, models, vehicles or equipment; or</P>

              <P>(3) Formulae, designs, drawings, research data, computer programs, technical data packages, and the like, which are not considered <E T="03">records</E> within the Congressional intent of reference because of development costs, utilization, or value. These items are considered exploitable resources to be utilized in the best interest of <E T="03">all</E> the public and are not preserved for informational value nor as evidence of agency functions. Requests for copies of such material shall be evaluated in accordance with policies expressly directed to the appropriate dissemination or use of these resources. Requests to inspect this material to determine its content for informational purposes shall normally be granted, unless inspection is inconsistent with the obligation to protect the property value of the material, as, for example, may be true for patent information and certain formulae, or is inconsistent with another significant and legitimate governmental purpose.</P>
              <P>(b) <E T="03">Reasonably Described. Reasonably described,</E> when applied to a request record, means identifying it to the extent that it will permit the location of the particular document with a reasonable effort.</P>
              <P>(c) <E T="03">Agency. Agency,</E> as defined in section 552(e) of title 5 U.S.C., includes any executive department, military department, government corporation, or other establishment in the executive branch of the Government (including the Executive Office of the President), or any independent regulatory agency.</P>
              <P>(d) <E T="03">Headquarters FOIA Officer.</E> The FOIA/Privacy Act Specialist or his/her designee.</P>
              <P>(e) <E T="03">Regional FOIA Officer.</E> The Regional Director, or his/her designee.</P>
              <CITA>[44 FR 50287, Aug. 27, 1979, as amended at 45 FR 1421, Jan. 7, 1980; 51 FR 34604, Sept. 30, 1986]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>§ 5.4</SECTNO>
              <SUBJECT>Availability of records.</SUBJECT>
              <P>(a) FEMA records are available to the greatest extent possible in keeping with the spirit and intent of FOIA and will be furnished promptly to any member of the public upon request addressed to the office designated in § 5.26. The person making the request need not have a particular interest in the subject matter, nor must he provide justification for the request.</P>
              <P>(b) The requirement of 5 U.S.C. 552 that records be available to the public refers only to records in being at the time the request for them is made. FOIA imposes no obligation to compile a record in response to a request.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 5.5</SECTNO>
              <SUBJECT>Exemptions.</SUBJECT>
              <P>Requests for FEMA records may be denied if disclosure is exempted under the provisions of 5 U.S.C. 552, as outlined in subpart E. Usually, except when a record is classified, or when disclosure would violate any other Federal statute, the authority to withhold a record from disclosure is permissive rather than mandatory. The authority for nondisclosure will not be invoked unless there is compelling reason to do so.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 5.6</SECTNO>
              <SUBJECT>Congressional information.</SUBJECT>

              <P>Nothing in this part authorizes withholding information from the Congress <PRTPAGE P="32"/>except when executive privilege is invoked by the President.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 5.7</SECTNO>
              <SUBJECT>Records of other agencies.</SUBJECT>
              <P>If a request is submitted to FEMA to make available current records whichare the primary responsibility of another agency, FEMA will refer the request to the agency concerned for appropriate action. FEMA will advise the requester that the request has been forwarded to the responsible agency.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 5.8</SECTNO>
              <SUBJECT>Records involved in litigation or other judicial process.</SUBJECT>
              <P>Where there is reason to believe that any records requested may be involved in litigation or other judicial process in which the United States is a party, including discovery procedures pursuant to the Federal Rules of Civil Procedure or Federal Rules of Criminal Procedure, the request shall be referred to the General Counsel.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 5.9</SECTNO>
              <SUBJECT>Inconsistent issuances of FEMA and its predecessor agencies superseded.</SUBJECT>
              <P>Policies and procedures of any of FEMA's predecessor agencies inconsistent with this regulation are superseded to the extent of that inconsistency.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart B—Publication of or Availability of General Agency Information, Rules, Orders, Policies, and Similar Material</HD>
            <SECTION>
              <SECTNO>§ 5.20</SECTNO>
              <SUBJECT>Publication of rules and general policies.</SUBJECT>

              <P>In accordance with 5 U.S.C. 552(a)(1), there are separately stated and currently published, or from time to time there will be published, in the <E T="04">Federal Register</E> for the guidance of the public, the following general information concerning FEMA:</P>
              <P>(a) Description of the organization of the Headquarters Office and regional and other offices and the established places at which, the employees from whom, and the methods whereby the public may obtain information, make submittals or requests, or obtain decisions.</P>
              <P>(b) Statement of the general course and method by which FEMA functions are channeled and determined, including the nature and requirements of all formal and informal procedures available.</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 FEMA.</P>
              <P>(e) Each amendment, revision, or repeal of the materials described in this section. Much of this information will also be codified in this subchapter A.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 5.21</SECTNO>
              <SUBJECT>Effect of failure to publish.</SUBJECT>

              <P>5 U.S.C. 552(a)(1) provides that, except to the extent that a person has actual and timely notice of the terms thereof, a person may not in any manner be required to resort to, or to be adversely affected by, a matter required to be published in the <E T="04">Federal Register</E> and not so published.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 5.22</SECTNO>
              <SUBJECT>Coordination of publication.</SUBJECT>

              <P>The General Counsel, FEMA, is responsible for coordination of FEMA materials required to be published in the <E T="04">Federal Register.</E>
              </P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 5.23</SECTNO>
              <SUBJECT>Incorporation by reference.</SUBJECT>

              <P>When deemed appropriate, matter covered by this subpart, which is reasonably available to the class of persons affected thereby may be incorporated by reference in the <E T="04">Federal Register</E> in accordance with standards prescribed from time to time by the Director of the Federal Register (see 1 CFR part 51).</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 5.24</SECTNO>
              <SUBJECT>Availability of opinions, orders, policies, interpretations, manuals, and instructions.</SUBJECT>
              <P>FEMA will make available for public inspection and copying the material described in 5 U.S.C. 552(a)(2) as enumerated in § 5.25 and an index of those materials as described in § 5.28, at convenient places and times.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 5.25</SECTNO>
              <SUBJECT>Available materials.</SUBJECT>

              <P>FEMA materials which are available under this subpart are as follows:<PRTPAGE P="33"/>
              </P>
              <P>(a) Final opinions and orders made in the adjudication of cases.</P>

              <P>(b) Those statements of policy and interpretations which have been adopted by FEMA and are not published in the <E T="04">Federal Register.</E>
              </P>
              <P>(c) Administrative staff manuals and instructions to staff that affect a member of the public, unless such materials are promptly published and copies offered for sale.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 5.26</SECTNO>
              <SUBJECT>Rules for public inspection and copying.</SUBJECT>
              <P>(a) <E T="03">Location.</E> Materials are available for public inspection and copying at the following locations:</P>
              <P>(1) Headquarters:
              </P>
              <EXTRACT>
                <FP SOURCE="FP-1">Federal Center Plaza, 500 C Street, SW, Washington, DC 20472</FP>
              </EXTRACT>
              
              <P>(2) <E T="03">Regional Offices</E>
                
              </P>
              <EXTRACT>
                <FP SOURCE="FP-1">Region I, Room 442, J. W. McCormack Post Office &amp; Court House, Boston, MA 02109;</FP>
                <FP SOURCE="FP-1">Region II, 26 Federal Plaza, New York, NY 10278;</FP>
                <FP SOURCE="FP-1">Region III, Liberty Square Bldg. (Second Floor), 105 South Seventh Street, Philadephia, PA 19106;</FP>
                <FP SOURCE="FP-1">Region IV, 1371 Peachtree Street, N.E., 7th Floor, Atlanta, GA 30309;</FP>
                <FP SOURCE="FP-1">Region V, 300 South Wacker Drive, 24th Floor, Chicago, IL 60606;</FP>
                <FP SOURCE="FP-1">Region VI, Federal Regional Center, Denton, TX 76201;</FP>
                <FP SOURCE="FP-1">Region VII, 911 Walnut Street, Room 300, Kansas City, MO 64106;</FP>
                <FP SOURCE="FP-1">Region VIII, Denver Federal Center, Bldg. 710, Denver, CO 80225-0267;</FP>
                <FP SOURCE="FP-1">Region XI, Building 105, Presidio of San Francisco, CA 94129;</FP>
                <FP SOURCE="FP-1">Region X, Federal Regional Center, 130-228th Street, SW., Bothell, WA 98021-9796.</FP>
              </EXTRACT>
              
              <P>(b) <E T="03">Time.</E> Materials will be made available for public inspection and copying during the normal hours of business.</P>
              <P>(c) FEMA will furnish reasonable copying services at fees specified in subpart C. Such reproduction services as are required will be arranged by the Office of Administrative Support in the headquarters or by regional offices as appropriate.</P>
              <P>(d) <E T="03">Handling of materials.</E> The unlawful removal or mutilation of materials is forbidden by law and is punishable by fine or imprisonment or both. FEMA personnel making materials available will ensure that all materials provided for inspection and copying are returned in the same condition as provided.</P>
              <CITA>[44 FR 50287, Aug. 27, 1979, as amended at 47 FR 13149, Mar. 29, 1982; 48 FR 44542, Sept. 29, 1983; 50 FR 40006, Oct. 1, 1985]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>§ 5.27</SECTNO>
              <SUBJECT>Deletion of identifying details.</SUBJECT>
              <P>To the extent required to prevent a clearly unwarranted invasion of personal privacy, FEMA may delete identifying details when making available or publishing an opinion, statement of policy, interpretation, or staff manual or instruction. However, the justification for each deletion will be explained fully in writing, and will require the concurrence of the General Counsel. A copy of the justification will be attached to the material containing the deletion and a copy will also be furnished to the Headquarters FOIA Officer or appropriate Regional Director.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 5.28</SECTNO>
              <SUBJECT>Indexes.</SUBJECT>
              <P>FEMA will maintain and make available for public inspection and copying current indexes arranged by subject matter providing identifying information for the public regarding any matter issued, adopted, or promulgated after July 4, 1967, and described in § 5.25. FEMA will publish quarterly and make available copies of each index or supplements thereto. The indexes will be maintained for public inspection at the location described in § 5.26.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 5.29</SECTNO>
              <SUBJECT>Effect of failure to make information materials available.</SUBJECT>
              <P>Materials requested to be made available pursuant to § 5.24 that affect a member of the public may be relied upon, used, or cited as precedent by FEMA against any private party only if (a) they have been indexed and either made available or published as required by 5 U.S.C. 552(a)(2), or (b) the private party has actual and timely notice of their terms.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart C—Fees</HD>
            <SECTION>
              <SECTNO>§ 5.40</SECTNO>
              <SUBJECT>Copies of FEMA records available at a fee.</SUBJECT>

              <P>One copy of FEMA records not available free of charge will be provided at a fee as provided in § 5.46. A reasonable number of additional copies will be provided for the applicable fee where <PRTPAGE P="34"/>reproduction services are not readily obtainable from private commercial sources.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 5.41</SECTNO>
              <SUBJECT>FEMA publications.</SUBJECT>
              <P>Anyone may obtain FEMA publications without charge from the FEMA Headquarters, Regional Offices and from FEMA, P.O. Box 8181, Washington, DC 20024 in accordance with standard operating procedures, including limitation on numbers of specific individual publications. FEMA Films may be obtained on loan or certain of these films may be purchased, in which case fees will be charged as set out in a FEMA catalogue. Non-exempt FEMA research reports are available from the National Technical Information Service, United States Department of Commerce, which establishes its own fee schedule. Charges, if any, for these items and similar user charges are established in accordance with other provisions of law as, for example, 31 U.S.C. 9701 and are not deemed search and duplication charges hereunder.</P>
              <CITA>[44 FR 50287, Aug. 27, 1979, as amended at 48 FR 44542, Sept. 29, 1983; 50 FR 40006, Oct. 1, 1985]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>§ 5.42</SECTNO>
              <SUBJECT>Fees to be charged—categories of requesters.</SUBJECT>
              <P>(a) There are four categories of FOIA requesters: Commercial use requesters; representatives of news media; educational and noncommercial scientific institutions; and all other requesters. The time limits for processing requests shall only begin upon receipt of a proper request which reasonably identifies records being sought. The Freedom of Information Reform Act of 1986 prescribes specific levels of fees for each of these categories:</P>
              <P>(1) When records are being requested for commercial use, the fee policy of FEMA is to levy full allowable direct cost of searching for, reviewing for release, and duplicating the records sought. Commercial users are not entitled to two hours of free search time nor 100 free pages of reproduction of documents. The full allowable direct cost of searching for and reviewing records will be charged even if there is ultimately no disclosure of records. Commercial use is defined as a use that furthers the commercial, trade or profit interests of the requester or person on whose behalf the request is made. In determining whether a requester falls within the commercial use category, FEMA will look to the use to which a requester will put the documents requested. Where a requester does not explain his/her use, or where his/her explanation is insufficient to permit a determination of the nature of the use, FEMA shall require the requester to provide information regarding the use to be made of the information and if the request does not include an agreement to pay all appropriate fees, FEMA will process such request only up to the $30.00 threshold which is the estimated cost to FEMA to collect fees which we are prohibited from charging by law. Requesters must reasonably describe the records sought.</P>

              <P>(2) When records are being requested by representatives of the news media, the fee policy of FEMA is to levy reproduction charges only, excluding charges for the first 100 pages. Representatives of the news media refers to any person actively gathering news for an entity that is organized and operated to publish or broadcast news to the public. The term <E T="03">news</E> means information that is about current events or that would be of current interest to the public. Examples of news media entities include television or radio stations broadcasting to the public at large, and publishers of periodicals (but only in those instances where they can qualify as disseminators of “news”) who make their products available for purchase or subscription by the general public. These examples are not intended to be all-inclusive. As traditional methods of news delivery evolve (i.e., electronic dissemination of newspapers through telecommunications services), such alternative media would be included in this category. In the case of “freelance” journalists, they may be regarded as working for a news organization if they can demonstrate a solid basis for expecting publication through that organization, even though not actually employed by it. For example, a publication contract would be the clearest proof, but FEMA may also look to the past publication record, press accreditation, guild membership, <PRTPAGE P="35"/>business registration, Federal Communications Commission licensing, or similar credentials of a requester inmaking this determination. To be eligible for inclusion in this category, requesters must meet the criteria specified in this section and his or her request must not be made for a commercial use basis as that term is defined under paragraph (a)(1) of this section. A request for records supporting the news dissemination function of the requester shall not be considered to be a request that is for a commercial use. Requesters must reasonably describe the records sought.</P>
              <P>(3) When records are being requested by an educational or noncommercial scientific institution whose purpose is scholarly or scientific research, the fee policy of FEMA is to levy reproduction charges only, excluding charges for the first 100 pages. Educational institution refers to a preschool, a public or private elementary or secondary school, an institution of graduate higher education, an institution of undergraduate higher education, an institution of professional education and an institution of vocational education, which operates a program or programs of scholarly research. Noncommercial scientific institution refers to an institution that is not operated on a commercial basis as that term is defined under paragraph (a)(1) of this section and which is operated solely for the purpose of conducting scientific research, the results of which are not intended to promote any particular product or industry. To be eligible for inclusion in this category, requesters must show that the request is being made under the auspices of a qualifying institution and that the records are not sought for a commercial use, but are sought in furtherance of scholarly (if the request is from an educational institution) or scientific (if the request is from a noncommercial scientific institution) research. Requesters must reasonably describe the records sought.</P>
              <P>(4) For any other request which does not meet the criteria contained in paragraphs (a)(1) through (3) of this section, the fee policy of FEMA is to levy full reasonable direct cost of searching for and duplicating the records sought, except that the first 100 pages of reproduction and the first two hours of search time shall be furnished without charge. The first two hours of computer search time is based on the hourly cost of operating the central processing unit and the operator's hourly salary plus 16 percent. When the cost of the computer search, including the operator time and the cost of operating the computer to process the request, equals the equivalent dollar amount of two hours of the salary of the person performing the search, i.e., the operator, FEMA shall begin assessing charges for computer search. Requests from individuals requesting records about themselves filed in FEMA's systems of records shall continue to be treated under the fee provisions of the Privacy Act of 1974 which permit fees only for reproduction. Requesters must reasonably describe the records sought.</P>
              <P>(b) Except for requests that are for a commercial use, FEMA may not charge for the first two hours of search time or for the first 100 pages of reproduction. However, a requester may not file multiple requests at the same time, each seeking portions of a document or documents, solely in order to avoid payment of fees. When FEMA believes that a requester or, on rare occasions, a group of requesters acting in concert, is attempting to break a request down into a series of requests for the purpose of evading the assessment of fees, FEMA may aggregate any such requests and charge accordingly. For example, it would be reasonable to presume that multiple requests of this type made within a 30-day period had been made to avoid fees. For requests made over a longer period, however, FEMA must have a solid basis for determining that aggregation is warranted in such cases. Before aggregating requests from more than one requester, FEMA must have a concrete basis on which to conclude that the requesters are acting in concert and are acting specifically to avoid payment of fees. In no case may FEMA aggregate multiple requests on unrelated subjects from one requester.</P>

              <P>(c) In accordance with the prohibition of section (4)(A)(iv) of the Freedom of Information Act, as amended, <PRTPAGE P="36"/>FEMA shall not charge fees to any requester, including commercial use requesters, if the cost of collecting a feewould be equal to or greater than the fee itself.</P>
              <P>(1) For commercial use requesters, if the direct cost of searching for, reviewing for release, and duplicating the records sought would not exceed $30.00, FEMA shall not charge the requester any costs.</P>
              <P>(2) For requests from representatives of news media or educational and noncommercial scientific institutions, excluding the first 100 pages which are provided at no charge, if the duplication cost would not exceed $30.00, FEMA shall not charge the requester any costs.</P>
              <P>(3) For all other requests not falling within the category of commercial use requests, representatives of news media, or educational and noncommercial scientific institutions, if the direct cost of searching for and duplicating the records sought, excluding the first two hours of search time and first 100 pages which are free of charge, would not exceed $30.00, FEMA shall not charge the requester any costs.</P>
              <CITA>[52 FR 13677, Apr. 24, 1987]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>§ 5.43</SECTNO>
              <SUBJECT>Waiver or reduction of fees.</SUBJECT>
              <P>(a) FEMA may waive all fees or levy a reduced fee when disclosure of the information requested is deemed to be in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the Federal Government and is not primarily in the commercial interest of the requester.</P>
              <P>(b) A fee waiver request shall indicate how the information will be used, to whom it will be provided, whether the requester intends to use the information for resale at a fee above actual cost, any personal or commercial benefits that the requester reasonably expects to receive by the disclosure, provide justification to support how release would benefit the general public, the requester's and/or intended user's identity and qualifications, expertise in the subject area and ability and intention to disseminate the information to the public.</P>
              <CITA>[52 FR 13678, Apr. 24, 1987]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>§ 5.44</SECTNO>
              <SUBJECT>Prepayment of fees.</SUBJECT>
              <P>(a) When FEMA estimates or determines that allowable charges that a requester may be required to pay are likely to exceed $250.00, FEMA may require a requester to make an advance payment of the entire fee before continuing to process the request.</P>
              <P>(b) When a requester has previously failed to pay a fee charged in a timely fashion (i.e., within 30 days of the date of the billing), FEMA may require the requester to pay the full amount owed plus any applicable interest as provided in § 5.46(d), and to make an advance payment of the full amount of the estimated fee before the agency begins to process a new request or a pending request from that requester.</P>
              <P>(c) When FEMA acts under paragraphs (a) or (b) of this section, the administrative time limits prescribed in subsection (a)(6) of the FOIA (i.e., 10 working days from the receipt of initial requests and 20 working days from receipt of appeals from initial denial, plus permissible extensions of these time limits) will begin only after FEMA has received fee payments described under paragraphs (a) or (b) of this section.</P>
              <CITA>[52 FR 13678, Apr. 24, 1987]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>§ 5.45</SECTNO>
              <SUBJECT>Form of payment.</SUBJECT>
              <P>Payment shall be by check or money order payable to the Federal Emergency Management Agency and shall be addressed to the official designated by FEMA in correspondence with the requestor or to the Headquarters FOIA Officer or Regional FOIA Officer, as appropriate.</P>
              <CITA>[44 FR 50287, Aug. 27, 1979, as amended at 48 FR 44542, Sept. 29, 1983]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>§ 5.46</SECTNO>
              <SUBJECT>Fee schedule.</SUBJECT>
              <P>(a) <E T="03">Manual searches for records.</E> FEMA will charge at the salary rate(s), (i.e., basic hourly pay rate plus 16 percent) of the employee(s) conducting the search. FEMA may assess charges for time spent searching, even if the agency fails to locate the records or if records located are determined to be exempt from disclosure. FEMA may assess charges for time spent searching, even if FEMA fails to locate the <PRTPAGE P="37"/>records or if records located are determined to be exempt from disclosure.</P>
              <P>(b) <E T="03">Computer searches for records.</E> FEMA will charge the actual direct cost of providing the service. This will include the cost of operating the central processing unit (CPU) for that portion of operating time that is directly attributable to searching for records responsive to a FOIA request and operator/programmer salary apportionable to the search. FEMA may assess charges for time spent searching, even if FEMA fails to locate the records or if records located are determined to be exempt from disclosure.</P>
              <P>(c) <E T="03">Duplication costs.</E> (1) For copies of documents reproduced on a standard office copying machine in sizes up to 8<FR>1/2</FR> x 14 inches, the charge will be $.15 per page.</P>
              <P>(2) The fee for reproducing copies of records over 8<FR>1/2</FR> x 14 inches or whose physical characteristics do not permit reproduction by routine electrostatic copying shall be the direct cost of reproducing the records through government or commercial sources. If FEMA estimates that the allowable duplication charges are likely to exceed $25, it shall notify the requester of the estimated amount of fees, unless the requester has indicated in advance his/her willingness to pay fees as high as those anticipated. Such a notice shall offer a requester the opportunity to confer with agency personnel with the objective of reformulating the request to meet his/her needs at a lower cost.</P>
              <P>(3) For copies prepared by computer, such as tapes or printouts, FEMA shall charge the actual cost, including operator time, of production of the tape or printout. If FEMA estimates that the allowable duplication charges are likely to exceed $25, it shall notify the requester of the estimated amount of fees, unless the requester has indicated in advance his/her willingness to pay fees as high as those anticipated. Such a notice shall offer a requester the opportunity to confer with agency personnel with the objective of reformulating the request to meet his/her needs at a lower cost.</P>
              <P>(4) For other methods of reproduction or duplication, FEMA shall charge the actual direct costs of producing the document(s). If FEMA estimates that the allowable duplication charges are likely to exceed $25, it shall notify the requester of the estimated amount of fees, unless the requester has indicated in advance his/her willingness to pay fees as high as those anticipated. Such a notice shall offer a requester the opportunity to confer with agency personnel with the objective of reformulating the request to meet his/her needs at a lower cost.</P>
              <P>(d) Interest may be charged to those requesters who fail to pay fees charged. FEMA may begin assessing interest charges on the amount billed starting on the 31st day following the day on which the billing was sent. Interest will be at the rate prescribed in section 3717 of Title 31 U.S.C. and will accrue from the date of the billing.</P>
              <P>(e) FEMA shall use the most efficient and least costly methods to comply with requests for documents made under the FOIA. FEMA may choose to contract with private sector services to locate, reproduce and disseminate records in response to FOIA requests when that is the most efficient and least costly method. When documents responsive to a request are maintained for distribution by agencies operating statutory-based fee schedule programs, such as but not limited to the Government Printing Office or the National Technical Information Service, FEMA will inform requesters of the steps necessary to obtain records from those sources.</P>
              <CITA>[52 FR 13678, Apr.24, 1987, as amended at 52 FR 33410, Sept. 3, 1987]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>§ 5.47</SECTNO>
              <SUBJECT>Appeals regarding fees.</SUBJECT>
              <P>A requestor whose application for a fee waiver or a fee reduction is denied may appeal that decision to the Deputy Director in the manner prescribed in subpart D.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart D—Described Records</HD>
            <SECTION>
              <SECTNO>§ 5.50</SECTNO>
              <SUBJECT>General.</SUBJECT>

              <P>(a) Except for records made available pursuant to subpart B, FEMA shall promptly make records available to a requestor pursuant to a request which <PRTPAGE P="38"/>reasonably described such records unless FEMA invokes an exemption pursuant to subpart E. Although the burden of reasonable description of the records rests with the requestor, FEMA will assist in identification to the extent practicable. Where requested records may be involved in litigation or other judicial proceedings in which the United States is a party, the procedures set forth under § 5.8 shall be followed.</P>
              <P>(b) Upon receipt of a request which does not reasonably describe the rec-ords requested, FEMA may contact the requestor to seek a more specific description. The 10-day time limit set forth in § 5.52 will not start until a request reasonably describing the records is received in the office of the appropriate official identified in § 5.51.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 5.51</SECTNO>
              <SUBJECT>Submission of requests for described records.</SUBJECT>
              <P>(a) For records located in the FEMA Headquarters, requests shall be submitted in writing, to the Headquarters FOIA Officer, Federal Emergency Management Agency, Washington, DC 20472. For records located in the FEMA Regional Offices, requests shall be submitted to the appropriate Regional FOIA Officer, at the address listed in § 5.26. Requests should bear the legend “Freedom of Information Request” prominently marked on both the face of the request letter and the envelope. The 10-day time limit for agency determinations set forth in § 5.52 shall not start until a request is received in the office of the appropriate official identified in this paragraph.</P>
              <P>(b) The Headquarters FOIA Officer shall respond to questions concerning the proper office to which Freedom of Information requests should be addressed.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 5.52</SECTNO>
              <SUBJECT>Review of requests.</SUBJECT>
              <P>(a) Upon receipt of a request for information, the Headquarters FOIA Officer, or the Regional FOIA Officer for a regional office, will forward the request to the FEMA office which has custody of the record.</P>
              <P>(b) Upon any request for records made pursuant to § 5.20, § 5.24, or § 5.51, the office having custody of the records shall determine within 10 workdays, after receipt of any such request in the office of the appropriate official identified in § 5.51 whether to comply with the request. If the request is approved, the office having custody of the record shall notify the requestor and the Headquarters FOIA Officer whether request originated in Headquarters, Region or field.</P>
              <CITA>[44 FR 50287, Aug. 27, 1979, as amended at 50 FR 40006, Oct. 1, 1985; 53 FR 2740, Feb. 1, 1988]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>§ 5.53</SECTNO>
              <SUBJECT>Approval of request.</SUBJECT>
              <P>When a request is approved, records will be made available promptly in accordance with the terms of the regulation. Copies may be furnished or the records may be inspected and copied as provided in § 5.26.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 5.54</SECTNO>
              <SUBJECT>Denial of request of records.</SUBJECT>
              <P>(a) Each of the following officials within FEMA, any official designated to act for the official, or any official redelegated authority by such officials shall have the authority to make initial denials of requests for disclosure of records in his or her custody, and shall, in accordance with 5 U.S.C. 552(a)(6)(C) be the responsible official for denial of records under this part.</P>
              <P>(1) Deputy Director</P>
              <P>(2) [Reserved]</P>
              <P>(3) Federal Insurance Administrator</P>
              <P>(4) Associate Directors</P>
              <P>(5) United States Fire Administrator</P>
              <P>(6) Chief of Staff</P>
              <P>(7) Office Directors</P>
              <P>(8) General Counsel</P>
              <P>(9) Inspector General</P>
              <P>(10) Comptroller</P>
              <P>(11) Regional Directors</P>
              <P>(b) If a request is denied, the appropriate official listed in paragraph (a) of this section shall except as provided in § 5.56 advise the requestor within 10 workdays of receipt of the request by the official specified in § 5.51 and furnish written reasons for the denial. The denial will (1) describe the record or records requested, (2) state the reasons for nondisclosure pursuant to subpart E, (3) state the name and title or position of the official responsible for the denial of such request, and (4) state the requestor's appeal rights.</P>

              <P>(c) In the event FEMA cannot locate requested records the appropriate official specified in paragraph (a) of this <PRTPAGE P="39"/>section will inform the requestor (1) that the agency has determined at the present time to deny the request because the records have not yet been found or examined, but (2) that the agency will review the request within a specified number of days, when the search or examination is expected to be complete. The denial letter will state the name and title or position of the official responsible for the denial of such request. In such event, the requestor may file an agency appeal immediately, pursuant to § 5.55.</P>
              <CITA>[44 FR 50287, Aug. 27, 1979, as amended at 48 FR 44542, Sept. 29, 1983; 50 FR 40006, Oct. 1, 1985; 51 FR 34604, Sept. 30, 1986]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>§ 5.55</SECTNO>
              <SUBJECT>Appeal within FEMA of denial of request.</SUBJECT>
              <P>(a) A requestor denied access, in whole or in part, to FEMA records may appeal that decision within FEMA. All appeals should be addressed to the Headquarters FOIA Officer, Federal Emergency Management Agency, Washington, DC, 20472 regardless of whether the denial being appealed was made at Headquarters, in a field office, or by a Regional Director.</P>
              <P>(b) An appeal must be received in the Headquarters FOIA Office no later than thirty calendar days after receipt by the requestor of the initial denial.</P>
              <P>(c) An appeal must be in writing and should contain a brief statement of the reasons why the records should be released and enclose copies of the initial request and denial. The appeal letter should bear the legend, “FREEDOM OF INFORMATION APPEAL,” conspicuously marked on both the face of the appeal letter and on the envelope. FEMA has twenty workdays after the receipt of an appeal to make a determination with respect to such appeal. The twenty day time limit shall not begin to run until the appeal is received by the Headquarters FOIA Officer. Misdirected appeals should be promptly forwarded to that office.</P>
              <P>(d) The Headquarters FOIA Officer will submit the appeal to the Deputy Director for final administrative determination.</P>
              <P>(e) The Deputy Director shall be the deciding official on all appeals except in those cases in which the initial denial was made by him/her. If the Deputy Director made the initial denial, the Director will be the deciding official on any appeal from that denial. In the absence of the Deputy Director, or in case of a vacancy in that office, the Director may designate another FEMA official to perform the Deputy's functions.</P>
              <P>(f) If an appeal is filed in response to a tentative denial pending locating and/or examination of records, as described in § 5.53(c), FEMA will continue to search for and/or examine the requested records and will issue a response immediately upon completion of the search and/or examination. Such action in no way suspends the time for FEMA's response to the requestor's appeal which FEMA will continue to process regardless of the response under this paragraph.</P>
              <P>(g) If a requestor files suit pending an agency appeal, FEMA nonetheless will continue to process the appeal, and will furnish a response within the twenty day time limit set out in paragraph (c) of this section.</P>
              <P>(h) If, on appeal, the denial of the request for records is in whole or in part upheld, the Deputy Director will promptly furnish the requestor a copy of the ruling in writing within the twenty day time limit set out in paragraph (c) of this section except as provided in § 5.55. The notification letter shall contain:</P>
              <P>(1) A brief description of the record or records requested;</P>
              <P>(2) A statement of the legal basis for nondisclosure;</P>
              <P>(3) A statement of the name and title or position of the official or officials responsible for the denial of the initial request as described in § 5.54 and the denial of the appeal as described in paragraph (f) of this section, and</P>
              <P>(4) A statement of the requestor's rights of judicial review.</P>
              <CITA>[44 FR 50287, Aug. 27, 1979, as amended at 45 FR 1422, Jan. 7, 1980; 50 FR 40006, Oct. 1, 1985]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>§ 5.56</SECTNO>
              <SUBJECT>Extension of time limits.</SUBJECT>

              <P>In unusual circumstances as specified in this section, the time limits prescribed in §§ 5.52 and 5.55 may be extended by an official named in § 5.54(a) who will provide written notice to the requestor setting forth the reasons for such extension and the date on which a <PRTPAGE P="40"/>determination is expected. Such notice will specify no date that would result in an extension of more than ten work days. In unusual circumstances, the Headquarters FOIA Officer may authorize more than one extension, divided between the initial request stage and the appeals stage, but in no event will the combined periods of extension exceed ten work days. As used in this section, “unusual circumstances” include only those circumstances where extension of time is reasonably necessary to the proper processing of the particular request. Examples include:</P>
              <P>(a) The need to search for and collect the requested records from field facilities or other establishments that are separate from the office processing the request; or</P>
              <P>(b) The need to search for, collect, and appropriately examine a voluminous amount of separate and distinct records which are demanded in a single request; or</P>
              <P>(c) The need for consultation, which shall be conducted with all practicable speed, with another agency or with a non-Federal source having a substantial interest in the determination of the request or among two or more components of FEMA having substantial subject matter interest therein.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 5.57</SECTNO>
              <SUBJECT>Predisclosure notification procedures for confidential commercial information.</SUBJECT>
              <P>(a) <E T="03">In general.</E> Business information provided to FEMA by a business submitter shall not be disclosed pursuant to a Freedom of Information Act (FOIA) request except in accordance with this section. For purposes of this section, the following definitions apply:</P>
              <P>(1) <E T="03">Confidential commercial information</E> means records provided to the government by a submitter that arguably contain material exempt from release under Exemption 4 of the Freedom of Information Act, 5 U.S.C 552(b)(4), because disclosure could reasonably be expected to cause substantial competitive harm.</P>
              <P>(2) <E T="03">Submitter</E> means any person or entity who provides confidential commercial information to the government. The term <E T="03">submitter</E> includes, but is not limited to, corporations, State governments, and foreign governments.</P>
              <P>(b) <E T="03">Notice to business submitters.</E> FEMA shall provide a submitter with prompt notice of receipt of a Freedom of Information Act request encompassing its business information whenever required in accordance with paragraph (c) of this section, and except as provided in paragraph (g) of this section. The written notice shall either describe the exact nature of the business information requested or provide copies of the records or portions of records containing the business information.</P>
              <P>(c) <E T="03">When notice is required.</E> (1) For confidential commercial information submitted prior to January 1, 1988, FEMA shall provide a submitter with notice of receipt of a FOIA request whenever:</P>
              <P>(i) The records are less than 10 years old and the information has been designated by the submitter as confidential commercial information;</P>
              <P>(ii) FEMA has reason to believe that disclosure of the information could reasonably result in commercial or financial injury to the submitter; or</P>
              <P>(iii) The information is subject to prior express commitment of confidentiality given by FEMA to the submitter.</P>
              <P>(2) For confidential commercial information submitted to FEMA on or after January 1, 1988, FEMA shall provide a submitter with notice of receipt of a FOIA request whenever:</P>
              <P>(i) The submitter has in good faith designated the information as commercially or financially sensitive information; or</P>
              <P>(ii) FEMA has reason to believe that disclosure of the information could reasonably result in commercial or financial injury to the submitter.</P>
              <P>(3) Notice of a request for confidential commercial information falling within paragraph (c)(2)(i) of this section shall be required for a period of not more than 10 years after the date of submission unless the submitter requests, and provides acceptable justification for, a specific notice period of greater duration.</P>

              <P>(4) Whenever possible, the submitter's claim of confidentiality shall be <PRTPAGE P="41"/>supported by a statement or certification by an officer or authorized representative of the company that the information in question is in fact confidential commercial or financial information and has not been disclosed to the public.</P>
              <P>(d) <E T="03">Opportunity to object to disclosure.</E> (1) Through the notice described in paragraph (b) of this section, FEMA shall afford a submitter 7 working days within which to provide FEMA with a detailed statement of any objection to disclosure. Such statement shall specify all grounds for withholding any of the information under any exemptions of the Freedom of Information Act and, in the case of Exemption 4, shall demonstrate why the information is contended to be a trade secret or commercial or financial information which is considered privileged or confidential. Information provided by a submitter pursuant to this paragraph may itself be subject to disclosure under the FOIA.</P>
              <P>(2) When notice is given to a submitter under this section, FEMA shall notify the requester that such notice has been given to the submitter. The requester will be further advised that a delay in responding to the request, i.e., 10 working days after receipt of the request by FEMA or 20 working days after receipt of the request by FEMA if the time limits are extended under unusual circumstances permitted by the FOIA, may be considered a denial of access to records and the requester may proceed with an adminstrative appeal or seek judicial review, if appropriate.</P>
              <P>(e) <E T="03">Notice of intent to disclose.</E> FEMA shall consider carefully a submitter's objections and specific grounds for nondisclosure prior to determining whether to disclose business information. Whenever FEMA decides to disclose business information over the objection of a submitter, FEMA shall forward to the submitter a written notice which shall include:</P>
              <P>(1) A statement of the reasons for which the submitter's disclosure objections were not sustained;</P>
              <P>(2) A description of the business information to be disclosed; and</P>
              <P>(3) A specified disclosure date, which is 7 working days after the notice of the final decision to release the requested information has been mailed to the submitter. FEMA shall inform the submitter that disclosure will be made by the specified disclosure date, unless the submitter seeks a court injunction to prevent its release by the date. When notice is given to a submitter under this section, FEMA shall notify the requester that such notice has been given to the submitter and the proposed date for disclosure.</P>
              <P>(f) <E T="03">Notice of lawsuit.</E> (1) Whenever a requester brings legal action seeking to compel disclosure of business information covered by paragraph (c) of this section, FEMA shall promptly notify the submitter.</P>
              <P>(2) Whenever a submitter brings legal action seeking to prevent disclosure of business information covered by paragraph (c) of this section, FEMA shall promptly notify the requester.</P>
              <P>(g) <E T="03">Exception to notice requirement.</E> The notice requirements of this section shall not apply if:</P>
              <P>(1) FEMA determines that the information shall not be disclosed;</P>
              <P>(2) The information has been published or otherwise officially made available to the public;</P>
              <P>(3) Disclosure of the information is required by law (other than 5 U.S.C. 552); or</P>
              <P>(4) The information was required in the course of a lawful investigation of a possible violation of criminal law.</P>
              <CITA>[53 FR 2740, Feb. 1, 1988]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>§ 5.58</SECTNO>
              <SUBJECT>Exhaustion of administrative remedies.</SUBJECT>
              <P>Any person making a request to FEMA for records under this part shall be deemed to have exhausted his administrative remedies with respect to the request if the agency fails to comply with the applicable time limit provisions set forth in §§ 5.52 and 5.55.</P>
              <CITA>[44 FR 50287, Aug. 27, 1979. Redesignated at 53 FR 2740, Feb. 1, 1988]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>§ 5.59</SECTNO>
              <SUBJECT>Judicial relief available to the public.</SUBJECT>

              <P>Upon denial of a requestor's appeal by the Deputy Director the requester may file a complaint in a district court of the United States in the district in which the complainant resides, or has his principal place of business, or in <PRTPAGE P="42"/>which the agency records are situated, or in the District of Columbia, pursuant to 5 U.S.C. 552(a)(4)(B).</P>
              <CITA>[44 FR 50287, Aug. 27, 1979. Redesignated at 53 FR 2740, Feb. 1, 1988]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>§ 5.60</SECTNO>
              <SUBJECT>Disciplinary action against employees for “arbitrary or capricious” denial.</SUBJECT>
              <P>Pursuant to 5 U.S.C. 552(a)(4)(F), whenever the district court, described in § 5.59 orders the production of any FEMA records improperly withheld from the complainant and assesses against the United States reasonable attorney fees and other litigation costs, and the court additionally issues a written finding that the circumstances surrounding the withholding raise questions whether FEMA personnel acted arbitrarily or capriciously with respect to the withholding, the Special Counsel in the Merit Systems Protection Board is required to initiate a proceeding to determine whether disciplinary action is warranted against the officer or employee who primarily was responsible for the withholding. The Special Counsel after investigation and consideration of the evidence submitted, submits findings and recommendations to the Director of FEMA and sends copies of the findings and recommendations to the officer or employee or his or her representative. The law requires the Director to take any corrective action which the Special Counsel recommends.</P>
              <CITA>[44 FR 50287, Aug. 27, 1979, as amended at 45 FR 1422, Jan. 7, 1980. Redesignated and amended at 53 FR 2740, Feb. 1, 1988]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>§ 5.61</SECTNO>
              <SUBJECT>Contempt for noncompliance.</SUBJECT>
              <P>In the event of noncompliance by FEMA with an order of a district court pursuant to § 5.60, the district court may punish for contempt the FEMA employee responsible for the noncompliance, pursuant to 5 U.S.C. 552(a)(4)(G).</P>
              <CITA>[44 FR 50287, Aug. 27, 1979, as amended at 45 FR 1422, Jan. 7, 1980; 50 FR 40006, Oct. 1, 1985. Redesignated and amended at 53 FR 2740, Feb. 1, 1988]</CITA>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart E—Exemptions</HD>
            <SECTION>
              <SECTNO>§ 5.70</SECTNO>
              <SUBJECT>General.</SUBJECT>
              <P>The exemptions enumerated in 5 U.S.C. 552(b), under which the provisions for availability of records and informational materials will not apply, are general in nature. FEMA will decide each case on its merits in accordance with the FEMA policy expressed in subpart A.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 5.71</SECTNO>
              <SUBJECT>Categories of records exempt from disclosure under 5 U.S.C. 552.</SUBJECT>
              <P>5 U.S.C. 552(b) provides that the requirements of the statute do not apply to matters that are:</P>
              <P>(a) Specifically authorized under criteria established by an Executive Order to be kept secret in the interest of national defense or foreign policy and are, in fact, properly classified pursuant to such Executive Order.</P>
              <P>(b) Related solely to the internal personnel rules and practices of an agency.</P>
              <P>(c) Specifically exempted from disclosure by statute other than section 552(b) of title 5, provided that such statute (1) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue or (2) establishes particular criteria for withholding or refers to particular types of matter to be withheld.</P>
              <P>(d) Trade secrets and commercial or financial information obtained from a person and privileged or confidential.</P>
              <P>(e) Inter-agency or intra-agency memoranda or letters which would not be available by law to a party other than an agency in litigation with the agency.</P>
              <P>(f) Personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.</P>
              <P>(g) Records or information compiled for law enforcment purposes, but only to the extent that the production of such law enforcement records or information:</P>
              <P>(1) Could reasonably be expected to interfere with enforcement proceedings;</P>

              <P>(2) Would deprive a person of a right to a fair trial or an impartial adjudication;<PRTPAGE P="43"/>
              </P>
              <P>(3) Could reasonably be expected to constitute an unwarranted invasion of personal privacy;</P>
              <P>(4) Could reasonably be expected to disclose the identity of a confidential source, including a State, local, or foreign agency or authority or any private institution which furnished information on a confidential basis, and, in the case of a record or information compiled by a criminal law enforcement authority in the course of a criminal investigation, or by an agency conducting a lawful national security intelligence investigation, information furnished by a confidential source;</P>
              <P>(5) Would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law; or</P>
              <P>(6) Could reasonably be expected to endanger the life or physical safety of any individual.</P>
              <P>(h) Contained in or related to examination, operating, or condition reports prepared by, on behalf of, or for the use of any agency responsible for the regulation or supervision of financial institutions.</P>
              <P>(i) Geological and geophysical information and data, including maps, concerning wells. Any reasonably segregable portion of a record shall be provided to any person requesting the record after deletion of the portions which are exempt under this section.</P>
              <P>(j) Whenever a request is made which involves access to records described in paragraph (g)(1) of this section and the investigation or proceeding involves a possible violation of criminal law; and there is reason to believe that the subject of the investigation or proceeding is not aware of its pendency, and disclosure of the existence of the records could reasonably be expected to interfere with enforcement proceedings, FEMA may, during only such time as that circumstance continues, treat the records as not subject to the requirements of 5 U.S.C. 552 and this subpart.</P>
              <CITA>[44 FR 50287, Aug. 27, 1979, as amended at 52 FR 13679, Apr. 24, 1987]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>§ 5.72</SECTNO>
              <SUBJECT>Executive privilege exemption.</SUBJECT>
              <P>Where application of the executive privilege exemption is desired, the matter shall be forwarded to the Director for consideration. If the request for information is Congressional, only the President may invoke the exemption. Presidential approval is not necessarily required if the request for information is in connection with judicial or adjudicatory proceedings or otherwise. In connection with judicial proceedings, the response shall be coordinated with the Department of Justice.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart F—Subpoenas or Other Legal Demands for Testimony or the Production or Disclosure of Records or Other Information</HD>
            <SOURCE>
              <HD SOURCE="HED">Source:</HD>
              <P>54 FR 11715, Mar. 22, 1989, unless otherwise noted.</P>
            </SOURCE>
            <SECTION>
              <SECTNO>§ 5.80</SECTNO>
              <SUBJECT>Scope and applicability.</SUBJECT>
              <P>(a) This subpart sets forth policies and procedures with respect to the disclosure or production by FEMA employees, in response to a subpoena, order or other demand of a court or other authority, of any material contained in the files of the Agency or any information relating to material contained in the files of the Agency or any information acquired by an employee as part of the performance of that person's official duties or because of that person's official status.</P>
              <P>(b) This subpart applies to State and local judicial, administrative and legislative proceedings, and Federal judicial and administrative proceedings.</P>
              <P>(c) This subpart does not apply to Congressional requests or subpoenas for testimony or documents, or to an employee making an appearance solely in his or her private capacity in judicial or administrative proceedings that do not relate to the Agency (such as cases arising out of traffic accidents, domestic relations, etc.).</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 5.81</SECTNO>
              <SUBJECT>Statement of policy.</SUBJECT>

              <P>(a) It is the policy of FEMA to make its records available to private litigants to the same extent and in the same manner as such records are made available to members of the general <PRTPAGE P="44"/>public, except where protected from disclosure by litigation procedural authority (e.g., Federal Rules of Civil Procedure) or other applicable law.</P>
              <P>(b) It is FEMA's policy and responsibility to preserve its human resources for performance of the official functions of the Agency and to maintain strict impartiality with respect to private litigants. Participation by FEMA employees in private litigation in their official capacities is generally contrary to this policy.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 5.82</SECTNO>
              <SUBJECT>Definitions.</SUBJECT>
              <P>For purposes of this subpart, the following terms have the meanings ascribed to them in this section:</P>
              <P>(a) <E T="03">Demand</E> refers to a subpoena, order, or other demand of a court of competent jurisdiction, or other specific authority (e.g., an administrative or State legislative body), signed by the presiding officer, for the production, disclosure, or release of FEMA records or information or for the appearance and testimony of FEMA personnel as witnesses in their official capacities.</P>
              <P>(b) <E T="03">Employee of the Agency</E> includes all officers and employees of the United States appointed by or subject to the supervision, jurisdiction or control of the Director of FEMA.</P>
              <P>(c) <E T="03">Private litigation</E> refers to any legal proceeding which does not involve as a named party the United States Government, or the Federal Emergency Management Agency, or any official thereof in his or her official capacity.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 5.83</SECTNO>
              <SUBJECT>Authority to accept service of subpoenas.</SUBJECT>
              <P>In all legal proceedings between private litigants, a subpoena duces tecum or subpoena ad testificandum or other demand by a court or other authority for the production of records held by FEMA Regional offices or for the oral or written testimony of FEMA Regional employees should be addressed to the appropriate Regional Director listed in § 5.26. For records or testimony of the Office of Inspector General, the subpoena should be addressed to the Inspector General, FEMA, Washington, DC 20472. For all other records or testimony, the subpoena should be addressed to the General Counsel, FEMA, Washington, DC 20472. No other official or employee of FEMA is authorized to accept service of subpoenas on behalf of the Agency.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 5.84</SECTNO>
              <SUBJECT>Production of documents in private litigation.</SUBJECT>
              <P>(a) The production of records held by FEMA in response to a subpoena duces tecum or other demand issued pursuant to private litigation, whether or not served in accordance with the provisions of § 5.83 of this subpart, is prohibited absent authorization by the General Counsel or, as to records of the Office of the Inspector General, by the Inspector General.</P>
              <P>(b) Whenever an official or employee of FEMA, including any Regional Director, receives a subpoena or other demand for the production of Agency documents or material, he or she shall immediately notify and provide a copy of the demand to the General Counsel, unless the subpoena or demand seeks the production of documents or material maintained by the Office of Inspector General, in which case a copy of the demand shall be provided to the Inspector General.</P>
              <P>(c) The General Counsel (or Inspector General), after consultation with other appropriate officials as deemed necessary, shall promptly determine whether to disclose the material or documents identified in the subpoena or other demand. Generally, authorization to furnish the requested material or documents shall not be withheld unless their disclosure is prohibited by relevant law or for other compelling reasons.</P>

              <P>(d) Whenever a subpoena or demand commanding the production of any record is served upon any Agency employee other than as provided in § 5.83 of this subpart, or the response to a demand is required before the receipt of instructions from the General Counsel (or Inspector General), such employee shall appear in response thereto, respectfully decline to produce therecord(s) on the ground that it is prohibited by this section and state that the demand has been referred for the prompt consideration of the General Counsel (or, where appropriate, the Inspector General).<PRTPAGE P="45"/>
              </P>
              <P>(e) Where the release of documents in response to a subpoena duces tecum is authorized by the General Counsel (or, as to documents maintained by the Office of Inspector General, the Inspector General), the official having custody of the requested records will furnish, upon the request of the party seeking disclosure, authenticated copies of the documents. No official or employee of FEMA shall respond in strict compliance with the terms of a subpoena duces tecum unless specifically authorized by the General Counsel (or Inspector General).</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 5.85</SECTNO>
              <SUBJECT>Authentication and attestation of copies.</SUBJECT>
              <P>The Director, Deputy Director, Associate Directors, Administrators, the General Counsel, the Docket Clerk, Inspector General, Regional Directors, and their designees, and other heads of offices having possession of records are authorized in the name of the Director to authenticate and attest for copies or reproductions of records. Appropriate fees will be charged for such copies or reproductions based on the fee schedule set forth in section 5.46 of this part.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 5.86</SECTNO>
              <SUBJECT>Production of documents in litigation or other adjudicatory proceeding in which the United States is a party.</SUBJECT>
              <P>Subpoenas duces tecum issued pursuant to litigation or any other adjudicatory proceeding in which the United States is a party shall be handled as provided at § 5.8.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 5.87</SECTNO>
              <SUBJECT>Testimony of FEMA employees in private litigation.</SUBJECT>
              <P>(a) No FEMA employee shall testify in response to a subpoena or other demand in private litigation as to any information relating to material contained in the files of the Agency, or any information acquired as part of the performance of that person's official duties or because of that person's official status, including the meaning of Agency documents.</P>
              <P>(b) Whenever a demand is made upon a FEMA employee, other than an employee of the Office of Inspector General, for the disclosure of information described in paragraph (a) of this section, that employee shall immediately notify the Office of General Counsel. Employees of the Office of Inspector General shall notify the Inspector General of such demands. The General Counsel (or Inspector General through designated legal counsel), upon receipt of such notice and absent waiver of the general prohibition against employee testimony at his or her discretion, shall arrange with the appropriate United States Attorney the taking of such steps as are necessary to quash the subpoena or seek a protective order.</P>
              <P>(c) In the event that an immediate demand for testimony or disclosure is made in circumstances which would preclude prior notice to and consultation with the General Counsel (or Inspector General), the employee shall respectfully request from the demanding authority a stay in the proceedings to allow sufficient time to obtain advice of counsel.</P>

              <P>(d) If the court or other authority declines to stay the effect of the demand in response to a request made in accordance with paragraph (c) of this section pending consultation with counsel, or if the court or other authority rules that the demand must be complied with irrespective of instructions not to testify or disclose the information sought, the employee upon whom the demand has been made shall respectfully decline to comply with the demand, citing these regulations and <E T="03">United States ex rel. Touhy</E> v. <E T="03">Ragen</E>, 340 U.S. 462 (1951).</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 5.88</SECTNO>
              <SUBJECT>Testimony in litigation in which the United States is a party.</SUBJECT>
              <P>(a) Whenever, in any legal proceeding in which the United States is a party, the attorney in charge of presenting the case for the United States requests it, the General Counsel shall arrange for an employee of the Agency to testify as a witness for the United States.</P>

              <P>(b) The attendance and testimony of named employees of the Agency may not be required in any legal proceeding by the judge or other presiding officer,by subpoena or otherwise. However, the judge or other presiding officer may, upon a showing of exceptional circumstances (such as a case in which a particular named FEMA employee has <PRTPAGE P="46"/>direct personal knowledge of a material fact not known to the witness made available by the Agency) require the attendance and testimony of named FEMA personnel.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 5.89</SECTNO>
              <SUBJECT>Waiver.</SUBJECT>
              <P>The General Counsel (or, as to employees of the Office of Inspector General, the Inspector General) may grant, in writing, a waiver of any policy or procedure prescribed by this subpart, where waiver is considered necessary to promote a significant interest of the Agency or for other good cause. In granting such waiver, the General Counsel (or Inspector General) shall attach to the waiver such reasonable conditions and limitations as are deemed appropriate in order that a response in strict compliance with the terms of a subpoena duces tecum or the providing of testimony will not interfere with the duties of the employee and will otherwise conform to the policies of this part. The Director may, in his or her discretion, review any decision to authorize a waiver of any policy or procedure prescribed by this subpart.</P>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 6</EAR>
          <HD SOURCE="HED">PART 6—IMPLEMENTATION OF THE PRIVACY ACT OF 1974</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart A—General</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>6.1</SECTNO>
              <SUBJECT>Purpose and scope of part.</SUBJECT>
              <SECTNO>6.2</SECTNO>
              <SUBJECT>Definitions.</SUBJECT>
              <SECTNO>6.3</SECTNO>
              <SUBJECT>Collection and use of information (Privacy Act statements).</SUBJECT>
              <SECTNO>6.4</SECTNO>
              <SUBJECT>Standards of accuracy.</SUBJECT>
              <SECTNO>6.5</SECTNO>
              <SUBJECT>Rules of conduct.</SUBJECT>
              <SECTNO>6.6</SECTNO>
              <SUBJECT>Safeguarding systems of records.</SUBJECT>
              <SECTNO>6.7</SECTNO>
              <SUBJECT>Records of other agencies.</SUBJECT>
              <SECTNO>6.8</SECTNO>
              <SUBJECT>Subpoena and other legal demands.</SUBJECT>
              <SECTNO>6.9</SECTNO>
              <SUBJECT>Inconsistent issuances of FEMA and/or its predecessor agencies superseded.</SUBJECT>
              <SECTNO>6.10</SECTNO>
              <SUBJECT>Assistance and referrals.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart B—Disclosure of Records</HD>
              <SECTNO>6.20</SECTNO>
              <SUBJECT>Conditions of disclosure.</SUBJECT>
              <SECTNO>6.21</SECTNO>
              <SUBJECT>Procedures for disclosure.</SUBJECT>
              <SECTNO>6.22</SECTNO>
              <SUBJECT>Accounting of disclosures.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart C—Individual Access to Records</HD>
              <SECTNO>6.30</SECTNO>
              <SUBJECT>Form of requests.</SUBJECT>
              <SECTNO>6.31</SECTNO>
              <SUBJECT>Special requirements for medical rec-ords.</SUBJECT>
              <SECTNO>6.32</SECTNO>
              <SUBJECT>Granting access.</SUBJECT>
              <SECTNO>6.33</SECTNO>
              <SUBJECT>Denials of access.</SUBJECT>
              <SECTNO>6.34</SECTNO>
              <SUBJECT>Appeal of denial of access within FEMA.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart D—Requests To Amend Records</HD>
              <SECTNO>6.50</SECTNO>
              <SUBJECT>Submission of requests to amend rec-ords.</SUBJECT>
              <SECTNO>6.51</SECTNO>
              <SUBJECT>Review of requests to amend records.</SUBJECT>
              <SECTNO>6.52</SECTNO>
              <SUBJECT>Approval of requests to amend records.</SUBJECT>
              <SECTNO>6.53</SECTNO>
              <SUBJECT>Denial of requests to amend records.</SUBJECT>
              <SECTNO>6.54</SECTNO>
              <SUBJECT>Agreement to alternative amendments.</SUBJECT>
              <SECTNO>6.55</SECTNO>
              <SUBJECT>Appeal of denial of request to amend a record.</SUBJECT>
              <SECTNO>6.56</SECTNO>
              <SUBJECT>Statement of disagreement.</SUBJECT>
              <SECTNO>6.57</SECTNO>
              <SUBJECT>Judicial review.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart E—Report on New Systems and Alterations of Existing Systems</HD>
              <SECTNO>6.70</SECTNO>
              <SUBJECT>Reporting requirement.</SUBJECT>
              <SECTNO>6.71</SECTNO>
              <SUBJECT>Federal Register notice of establishment of new system or alteration of existing system.</SUBJECT>
              <SECTNO>6.72</SECTNO>
              <SUBJECT>Effective date of new system of records or alteration of an existing system of records.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart F—Fees</HD>
              <SECTNO>6.80</SECTNO>
              <SUBJECT>Records available at fee.</SUBJECT>
              <SECTNO>6.81</SECTNO>
              <SUBJECT>Additional copies.</SUBJECT>
              <SECTNO>6.82</SECTNO>
              <SUBJECT>Waiver of fee.</SUBJECT>
              <SECTNO>6.83</SECTNO>
              <SUBJECT>Prepayment of fees.</SUBJECT>
              <SECTNO>6.84</SECTNO>
              <SUBJECT>Form of payment.</SUBJECT>
              <SECTNO>6.85</SECTNO>
              <SUBJECT>Reproduction fees.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart G—Exempt Systems of Records</HD>
              <SECTNO>6.86</SECTNO>
              <SUBJECT>General exemptions.</SUBJECT>
              <SECTNO>6.87</SECTNO>
              <SUBJECT>Specific exemptions.</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>5 U.S.C. 552a; Reorganization Plan No. 3 of 1978; and E.O. 12127.</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>44 FR 50293, Aug. 27, 1979, unless otherwise noted.</P>
          </SOURCE>
          <SUBPART>
            <HD SOURCE="HED">Subpart A—General</HD>
            <SECTION>
              <SECTNO>§ 6.1</SECTNO>
              <SUBJECT>Purpose and scope of part.</SUBJECT>

              <P>This part sets forth policies and procedures concerning the collection, use and dissemination of records maintained by the Federal Emergency Management Agency (FEMA) which are subject to the provision of 5 U.S.C. 552a, popularly known as the “Privacy Act of 1974” (hereinafter referred to as the Act). These policies and procedures govern only those records as defined in§ 6.2. Policies and procedures governing the disclosure and availability of records in general are in part 5 of this chapter. This part also covers: (a) Procedures for notification to individuals <PRTPAGE P="47"/>of a FEMA system of records pertaining to them; (b) guidance to individuals in obtaining information, including inspections of, and disagreement with, the content of records; (c) accounting of disclosure; (d) special requirements for medical records; and (e) fees.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 6.2</SECTNO>
              <SUBJECT>Definitions.</SUBJECT>
              <P>For the purpose of this part:</P>
              <P>(a) <E T="03">Agency</E> includes any executive department, military department, Government corporation, Government controlled corporation, or other establishment in the executive branch of the Government (including the Executive Office of the President), or any independent regulatory agency (see 5 U.S.C. 552(e)).</P>
              <P>(b) <E T="03">Individual</E> means a citizen of the United States or an alien lawfully admitted for permanent residence.</P>
              <P>(c) <E T="03">Maintain</E> includes maintain, collect, use, and disseminate.</P>
              <P>(d) <E T="03">Record</E> means any item, collection, or grouping of information about an individual that is maintained by an agency, including, but not limited to those concerning education, financial transactions, medical history, and criminal or employment history, and that contains the name or other identifying particular assigned to the individual, such as a fingerprint, voiceprint, or photograph.</P>
              <P>(e) <E T="03">System of records</E> means a group of any records under the control of an agency from which information is retrieved by the name of the individual or by some identifying number, symbol, or other identification assigned to that individual.</P>
              <P>(f) <E T="03">Statistical record</E> means a record in a system of records maintained for statistical research or reporting purposes only and not used in whole or in part in making any determination about an identifiable individual, except as provided by 13 U.S.C. 8.</P>
              <P>(g) <E T="03">Routine use</E> means, with respect to the disclosure of a record, the use of that record for a purpose which is compatible with the purpose for which it was collected.</P>
              <P>(h) <E T="03">System manager</E> means the employee of FEMA who is responsible for the maintenance of a system of records and for the collection, use, and dissemination of information therein.</P>
              <P>(i) <E T="03">Subject individual</E> means the individual named or discussed in a record of the individual to whom a record otherwise pertains.</P>
              <P>(j) <E T="03">Disclosure</E> means a transfer of a record, a copy of a record, or any or all of the information contained in a record to a recipient other than the subject individual, or the review of a record by someone other than the subject individual.</P>
              <P>(k) <E T="03">Access</E> means a transfer of a record, a copy of a record, or the information in a record to the subject individual, or the review of a record by the subject individual.</P>
              <P>(l) <E T="03">Solicitation</E> means a request by an officer or employee of FEMA that an individual provide information about himself or herself.</P>
              <P>(m) <E T="03">Director</E> means the Director, FEMA.</P>
              <P>(n) <E T="03">Deputy Director</E> means the Deputy Director, FEMA, or, in the case of the absence of the Deputy Director, or a vacancy in that office, a person designated by the Director to perform the functions under this regulation of the Deputy Director.</P>
              <P>(o) <E T="03">Privacy Appeals Officer</E> means the FOIA/Privacy Act Specialist or his/her designee.</P>
              <CITA>[44 FR 50293, Aug. 27, 1979, as amended at 45 FR 17152, Mar. 18, 1980; 51 FR 34604, Sept. 30, 1986]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>§ 6.3</SECTNO>
              <SUBJECT>Collection and use of information (Privacy Act statements).</SUBJECT>
              <P>(a) <E T="03">General.</E> Any information used in whole or in part in making a determination about an individual's rights, benefits, or privileges under FEMA programs will be collected directly from the subject individual to the extent practicable. The system manager also shall ensure that information collected is used only in conformance with the provisions of the Act and these regulations.</P>
              <P>(b) <E T="03">Solicitation of information.</E> System managers shall ensure that at the time information is solicited the solicited individual is informed of the authorityfor collecting that information, whether providing the information is mandatory or voluntary, the purpose for which the information will be used, the <PRTPAGE P="48"/>routine uses to be made of the information, and the effects on the individual, if any, of not providing the information. The Director, Office of Administrative Support and Regional Directors shall ensure that forms used to solicit information are in compliance with the Act and these regulations.</P>
              <P>(c) <E T="03">Solicitation of Social Security numbers.</E> Before an employee of FEMA can deny to any individual a right, benefit, or privilege provided by law because such individual refuses to disclose his/her social security account number, the employee of FEMA shall ensure that either:</P>
              <P>(1) The disclosure is required by Federal statute; or</P>
              <P>(2) The disclosure of a social security number was required under a statute or regulation adopted before January 1, 1975, to verify the identity of an individual, and the social security number will become a part of a system of records in existence and operating before January 1, 1975.</P>
              <FP>If solicitation of the social security number is authorized under paragraph (c) (1) or (2) of this section, the FEMA employee who requests an individual to disclose the social security account number shall first inform that individual whether that disclosure is mandatory or voluntary, by what statutory or other authority the number is solicited, and the use that will be made of it.</FP>
              <P>(d) <E T="03">Soliciting information from third parties.</E> An employee of FEMA shall inform third parties who are requested to provide information about another individual of the purposes for which the information will be used.</P>
              <CITA>[44 FR 50293, Aug. 27, 1979, as amended at 47 FR 13149, Mar. 29, 1982; 48 FR 12091, Mar. 23, 1983; 50 FR 40006, Oct. 1, 1985]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>§ 6.4</SECTNO>
              <SUBJECT>Standards of accuracy.</SUBJECT>
              <P>The system manager shall ensure that all records which are used by FEMA to make determinations about any individual are maintained with such accuracy, relevance, timeliness, and completeness as is reasonably necessary to ensure fairness to the individual.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 6.5</SECTNO>
              <SUBJECT>Rules of conduct.</SUBJECT>
              <P>Employees of FEMA involved in the design, development, operation, or maintenance of any system of records or in maintaining any record, shall conduct themselves in accordance with the rules of conduct concerning the protection of personal information in § 3.25 of this chapter.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 6.6</SECTNO>
              <SUBJECT>Safeguarding systems of records.</SUBJECT>
              <P>(a) Systems managers shall ensure that appropriate administrative, technical, and physical safeguards are established to ensure the security and confidentiality of records and to protect against any anticipated threats or hazards to their security or integrity which could result in substantial harm, embarrassment, inconvenience, or unfairness to any individual on whom information is maintained.</P>
              <P>(b) Personnel information contained in both manual and automated systems of records shall be protected by implementing the following safeguards:</P>
              <P>(1) Official personnel folders, authorized personnel operating or work folders and other records of personnel actions effected during an employee's Federal service or affecting the employee's status and service, including information on experience, education, training, special qualification, and skills, performance appraisals, and conduct, shall be stored in a lockable metal filing cabinet when not in use by an authorized person. A system manager may employ an alternative storage system providing that it furnished an equivalent degree of physical security as storage in a lockable metal filing cabinet.</P>
              <P>(2) System managers, at their discretion, may designate additional records of unusual sensitivity which require safeguards similar to those described in paragraph (a) of this section.</P>
              <P>(3) A system manager shall permit access to and use of automated or manual personnel records only to persons whose official duties require such access, or to a subject individual or his or her representative as provided by this part.</P>
            </SECTION>
            <SECTION>
              <PRTPAGE P="49"/>
              <SECTNO>§ 6.7</SECTNO>
              <SUBJECT>Records of other agencies.</SUBJECT>
              <P>If FEMA receives a request for access to records which are the primary responsibility of another agency, but which are maintained by or in the temporary possession of FEMA on behalf of that agency, FEMA will advise the requestor that the request has been forwarded to the responsible agency. Records in the custody of FEMA which are the primary responsibility of the Office of Personnel Management are governed by the rules promulgated by it pursuant to the Privacy Act.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 6.8</SECTNO>
              <SUBJECT>Subpoena and other legal demands.</SUBJECT>
              <P>Access to records in systems of records by subpoena or other legal process shall be in accordance with the provisions of part 5 of this chapter.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 6.9</SECTNO>
              <SUBJECT>Inconsistent issuances of FEMA and/or its predecessor agencies superseded.</SUBJECT>
              <P>Any policies and procedures in any issuances of FEMA or any of its predecessor agencies which are inconsistent with the policies and procedures in this part are superseded to the extent of that inconsistency.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 6.10</SECTNO>
              <SUBJECT>Assistance and referrals.</SUBJECT>
              <P>Requests for assistance and referral to the responsible system manager or other FEMA employee charged with implementing these regulations should be made to the Privacy Appeals Officer, Federal Emergency Management Agency, Washington, DC 20472.</P>
              <CITA>[45 FR 17152, Mar. 18, 1980]</CITA>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart B—Disclosure of Records</HD>
            <SECTION>
              <SECTNO>§ 6.20</SECTNO>
              <SUBJECT>Conditions of disclosure.</SUBJECT>
              <P>No employee of FEMA shall disclose any record to any person or to another agency without the express written consent of the subject individual unless the disclosure is:</P>
              <P>(a) To officers or employees of FEMA who have a need for the information in the official performance of their duties;</P>
              <P>(b) Required by the provisions of the Freedom of Information Act, 5 U.S.C. 552.</P>

              <P>(c) For a routine use as published in the notices in the <E T="04">Federal Register;</E>
              </P>
              <P>(d) To the Bureau of the Census for use pursuant to title 13, United States Code;</P>
              <P>(e) To a recipient who has provided FEMA with advance adequate written assurance that the record will be used solely as a statistical research or reporting record subject to the following: The record shall be transferred in a form that is not individually identifiable. The written statement should include as a minimum (1) a statement of the purpose for requesting the rec-ords; and (2) certification that the rec-ords will be used only for statistical purposes. These written statements should be maintained as accounting records. In addition to deleting personal identifying information from records released for statistical purposes, the system manager shall ensure that the identity of the individual cannot reasonably be deduced by combining various statistical records;</P>
              <P>(f) To the National Archives of the United States as a record which has sufficient historical or other value to warrant its continued preservation by the United States Government, or for evaluation by the Administrator of The National Archives and Records Administration or his designee to determine whether the record has such value;</P>
              <P>(g) To another agency or instrumentality of any governmental jurisdiction within or under the control of the United States for civil or criminal law enforcement activity, if the activity is authorized by law, and if the head of the agency or instrumentality or his designated representative has made a written request to the Director specifying the particular portion desired and the law enforcement activity for which the record is sought;</P>
              <P>(h) To a person showing compelling circumstances affecting the health and safety of an individual to whom the record pertains. (Upon such disclosure, a notification must be sent to the last known address of the subject individual.)</P>
              <P>(i) To either House of Congress or to a subcommittee or committee (joint or of either House, to the extent that the subject matter falls within their jurisdiction;</P>

              <P>(j) To the Comptroller General or any duly authorized representatives of the <PRTPAGE P="50"/>Comptroller General in the course of the performance of the duties of the General Accounting Office; or</P>
              <P>(k) Pursuant to the order of a court of competent jurisdiction.</P>
              <P>(l) To consumer reporting agencies as defined in the Fair Credit Reporting Act (35 U.S.C. 1681a(f) or the Debt Collection Act of 1982 (31 U.S.C. 3711(d)(4)).</P>
              <CITA>[44 FR 50293, Aug. 27, 1979, as amended at 48 FR 44543, Sept. 29, 1983; 50 FR 40006, Oct. 1, 1985]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>§ 6.21</SECTNO>
              <SUBJECT>Procedures for disclosure.</SUBJECT>
              <P>(a) Upon receipt of a request for disclosure, the system manager shall verify the right of the requestor to obtain disclosure pursuant to § 6.20. Upon that verification and subject to other requirements of this part, the system manager shall make the requested records available.</P>
              <P>(b) If the system manager determines that the disclosure is not permitted under the provisions of § 6.20 or other provisions of this part, the system manager shall deny the request in writing and shall inform the requestor of the right to submit a request for review and final determination to the Director or designee.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 6.22</SECTNO>
              <SUBJECT>Accounting of disclosures.</SUBJECT>
              <P>(a) Except for disclosures made pursuant to § 6.20 (a) and (b), an accurate accounting of each disclosure shall be made and retained for 5 years after the disclosure or for the life of the record, whichever is longer. The accounting shall include the date, nature, and purpose of each disclosure, and the name and address of the person or agency to whom the disclosure is made;</P>
              <P>(b) The system manager also shall maintain in conjunction with the accounting of disclosures;</P>
              <P>(1) A full statement of the justification for the disclosure.</P>
              <P>(2) All documentation surrounding disclosure of a record for statistical or law enforcement purposes; and</P>
              <P>(3) Evidence of written consent to a disclosure given by the subject individual.</P>
              <P>(c) Except for the accounting of disclosures made to agencies or instrumentalities in law enforcement activities in accordance with § 6.20 (g) or of disclosures made from exempt systems the accounting of disclosures shall be made available to the individual upon request. Procedures for requesting access to the accounting are in subpart C of this part.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart C—Individual Access to Records</HD>
            <SECTION>
              <SECTNO>§ 6.30</SECTNO>
              <SUBJECT>Form of requests.</SUBJECT>

              <P>(a) An individual who seeks access to his or her record or to any information pertaining to the individual which is contained in a system of records should notify the system manager at the address indicated in the <E T="04">Federal Register</E> notice describing the pertinent system. The notice should bear the legend “Privacy Act Request” both on the request letter and on the envelope. It will help in the processing of a request if the request letter contains the complete name and identifying number of the system as published in the <E T="04">Federal Register;</E> the full name and address of the subject individual; a brief description of the nature, time, place, and circumstances of the individual's association with FEMA; and any other information which the individual believes would help the system manager to determine whether the information about the individual is included in the system of records. The system manager shall answer or acknowledge the request within 10 workdays of its receipt by FEMA.</P>
              <P>(b) The system manager, at his discretion, may accept oral requests for access subject to verification of identity.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 6.31</SECTNO>
              <SUBJECT>Special requirements for medical records.</SUBJECT>

              <P>(a) A system manager who receives a request from an individual for access to those official medical records which belong to the U.S. Office of Personnel Management and are described in Chapter 339, Federal Personnel Manual (medical records about entrance qualifications or fitness for duty, or medical records which are otherwise filed in the Official Personnel Folder), shall refer the pertinent system of records to a Federal Medical Officer for review and determination in accordance with this section. If no Federal Medical Officer is available to make the determination <PRTPAGE P="51"/>required by this section, the system manager shall refer the request and the medical reports concerned to the Office of Personnel Management for determination.</P>
              <P>(b) If, in the opinion of a Federal Medical Officer, medical records requested by the subject individual indicate a condition about which a prudent physician would hesitate to inform a person suffering from such a condition of its exact nature and probable outcome, the system manager shall not release the medical information to the subject individual nor to any person other than a physician designated in writing by the subject individual, or the guardian or conservator of the individual.</P>
              <P>(c) If, in the opinion of a Federal Medical Officer, the medical information does not indicate the presence of any condition which would cause a prudent physician to hesitate to inform a person suffering from such a condition of its exact nature and probable outcome, the system manager shall release it to the subject individual or to any person, firm, or organization which the individual authorizes in writing to receive it.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 6.32</SECTNO>
              <SUBJECT>Granting access.</SUBJECT>
              <P>(a) Upon receipt of a request for access to non-exempt records, the system manager shall make these records available to the subject individual or shall acknowledge the request within 10 workdays of its receipt by FEMA. The acknowledgment shall indicate when the system manager will make the records available.</P>
              <P>(b) If the system manager anticipates more than a 10 day delay in making a record available, he or she also shall include in the acknowledgment specific reasons for the delay.</P>
              <P>(c) If a subject individual's request for access does not contain sufficient information to permit the system manager to locate the records, the system manager shall request additional information from the individual and shall have 10 workdays following receipt of the additional information in which to make the records available or to acknowledge receipt of the request and indicate when the records will be available.</P>
              <P>(d) Records will be available for authorized access during normal business hours at the offices where the records are located. A requestor should be prepared to identify himself or herself by signature; i.e., to note by signature the date of access and/or produce other identification verifying the signature.</P>
              <P>(e) Upon request, a system manager shall permit an individual to examine the original of a non-exempt record, shall provide the individual with a copy of the record, or both. Fees shall be charged in accordance with subpart F.</P>
              <P>(f) An individual may request to pick up a record in person or to receive it by mail, directed to the name and address provided by the individual in the request. A system manager shall not make a record available to a third party for delivery to the subject individual except for medical records as outlined in § 6.31.</P>
              <P>(g) An individual who selects another person to review, or to accompany the individual in reviewing or obtaining a copy of the record must, prior to the disclosure, sign a statement authorizing the disclosure of the record. The system manager shall maintain this statement with the record.</P>
              <P>(h) The procedure for access to an accounting of disclosure is identical to the procedure for access to a record as set forth in this section.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 6.33</SECTNO>
              <SUBJECT>Denials of access.</SUBJECT>

              <P>(a) A system manager may deny an individual access to that individual's record only upon the grounds that FEMA has published the rules in the <E T="04">Federal Register</E> exempting the pertinent system of records from the access requirement. These exempt systems of records are described in subpart G of this part.</P>
              <P>(b) Upon receipt of a request for access to a record which the system manager believes is contained within an exempt system of records he or she shall forward the request to the appropriate official listed below or to his or her delegate through normal supervisory channels.</P>
              <P>(1) Deputy Director</P>
              <P>(2) [Reserved]</P>
              <P>(3) Federal Insurance Administrator</P>
              <P>(4) Associate Directors<PRTPAGE P="52"/>
              </P>
              <P>(5) United States Fire Administrator</P>
              <P>(6) Chief of Staff</P>
              <P>(7) Office Directors</P>
              <P>(8) General Counsel</P>
              <P>(9) Inspector General</P>
              <P>(10) Comptroller</P>
              <P>(11) Regional Directors</P>
              <FP>The system manager shall append to the request an explanation of the determination that the requested record is contained within an exempt system of records and a recommendation that the request be denied or granted.</FP>
              <P>(c) In the event that the system manager serves in one of the positions listed in paragraph (b) of this section, he or she shall retain the responsibility for denying or granting the request.</P>
              <P>(d) The appropriate official listed in paragraph (b) of this section shall, in consultation with the Office of General Counsel and such other officials as deemed appropriate, determine if the request record is contained within an exempt system of records and:</P>
              <P>(1) If the record is not contained within an exempt system of records, the above official shall notify the system manager to grant the request in accordance with § 6.32, or</P>
              <P>(2) If the record is contained within an exempt system said official shall;</P>
              <P>(i) Notify the requestor that the request is denied, including a statement justifying the denial and advising the requestor of a right to judicial review of that decision as provided in § 6.57, or</P>
              <P>(ii) Notify the system manager to make record available to the requestor in accordance with § 6.31, notwithstanding the record's inclusion within an exempt system.</P>
              <P>(e) The appropriate official listed in paragraph (b) of this section shall provide the Privacy Appeals Office with a copy of any denial of a requested access.</P>
              <CITA>[44 FR 50293, Aug. 27, 1979, as amended at 48 FR 44543, Sept. 29, 1983; 50 FR 40006, Oct. 1, 1985; 51 FR 34604, Sept. 30, 1986]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>§ 6.34</SECTNO>
              <SUBJECT>Appeal of denial of access within FEMA.</SUBJECT>
              <P>A requestor denied access in whole or in part, to records pertaining to that individual, exclusive of those records for which the system manager is the Director, may file an administrative appeal of that denial. Appeals of denied access will be processed in the same manner as processing for appeals from a denial of a request to amend a record set out in § 6.55, regardless whether the denial being appealed is made at headquarters or by a regional official.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart D—Requests To Amend Records</HD>
            <SECTION>
              <SECTNO>§ 6.50</SECTNO>
              <SUBJECT>Submission of requests to amend records.</SUBJECT>

              <P>An individual who desires to amend any record containing personal information about the individual should direct a written request to the system manager specified in the pertinent <E T="04">Federal Register</E> notice concerning FEMA's systems of records. A current FEMA employee who desires to amend personnel records should submit a written request to the FEMA Director of Personnel, Washington, DC 20472. Each request should include evidence of and justification for the need to amend the pertinent record. Each request should bear the legend “Privacy Act—Request to Amend Record” prominently marked on both the face of the request letter and the envelope.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 6.51</SECTNO>
              <SUBJECT>Review of requests to amend rec-ords.</SUBJECT>
              <P>(a) The system manager shall acknowledge the receipt of a request to amend a record within 10 workdays. If possible, the acknowledgment shall include the system manager's determination either to amend the record or to deny the request to amend as provided in § 6.53.</P>
              <P>(b) When reviewing a record in response to a request to amend, the system manager shall assess the accuracy, relevance, timeliness, and completeness of the existing record in light of the proposed amendment and shall determine whether the request for the amendment is justified. With respect to a request to delete information, the system manager also shall review the request and the existing record to determine whether the information is relevant and necessary to accomplish an agency purpose required to be accomplished by statute or Executive Order.</P>
            </SECTION>
            <SECTION>
              <PRTPAGE P="53"/>
              <SECTNO>§ 6.52</SECTNO>
              <SUBJECT>Approval of requests to amend rec-ords.</SUBJECT>
              <P>If the system manager determines that amendment of a record is proper in accordance with the request to amend, he or she promptly shall make the necessary corrections to the record and shall send a copy of the corrected record to the individual. Where an accounting of disclosure has been maintained, the system manager shall advise all previous recipients of the record of the fact that a correction has been made and the substance of the correction. Where practicable, the system manager shall advise the Privacy Appeals Officer that a request to amend has been approved.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 6.53</SECTNO>
              <SUBJECT>Denial of requests to amend rec-ords.</SUBJECT>
              <P>(a) If the system manager determines that an amendment of a record is improper or that the record should be amended in a manner other than that requested by an individual, he shall refer the request to amend and his determinations and recommendations to the appropriate official listed in § 6.33(b) through normal supervisory channels.</P>
              <P>(b) If the official listed in § 6.33, after reviewing the request to amend a record, determines to amend the record in accordance with the request, said official promptly shall return the request to the system manager with instructions to make the requested amendments in accordance with § 6.52.</P>
              <P>(c) If the appropriate official listed in § 6.33, after reviewing the request to amend a record, determines not to amend the record in accordance with the request, the requestor shall be promptly advised in writing of the determination. The refusal letter (1) shall state the reasons for the denial of the request to amend; (2) shall include proposed alternative amendments, if appropriate; (3) shall state the requestor's right to appeal the denial of the request to amend; and (4) shall state the procedures for appealing and the name and title of the official to whom the appeal is to be addressed.</P>
              <P>(d) The appropriate official listed in § 6.33 shall furnish the Privacy Appeals Officer a copy of each initial denial of a request to amend a record.</P>
              <CITA>[44 FR 50293, Aug. 27, 1979, as amended at 45 FR 17152, Mar. 18, 1980]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>§ 6.54</SECTNO>
              <SUBJECT>Agreement to alternative amendments.</SUBJECT>
              <P>If the denial of a request to amend a record includes proposed alternative amendments, and if the requestor agrees to accept them, he or she must notify the official who signed the denial. That official immediately shall instruct the system manager to make the necessary amendments in accordance with § 6.52.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 6.55</SECTNO>
              <SUBJECT>Appeal of denial of request to amend a record.</SUBJECT>
              <P>(a) A requestor who disagrees with a denial of a request to amend a record may file an administrative appeal of that denial. The requestor should address the appeal to the FEMA Privacy Appeals Officer, Washington, DC 20472. If the requestor is an employee of FEMA and the denial to amend involves a record maintained in the employee's Official Personnel Folder covered by an Office of Personnel Management Government-wide system notice, the appeal should be addressed to the Assistant Director, Information Systems, Agency Compliance and Evaluation Group, Office of Personnel Management, Washington, DC 20415.</P>
              <P>(b) Each appeal to the Privacy Act Appeals Officer shall be in writing and must be received by FEMA no later than 30 calendar days from the requestor's receipt of a denial of a request to amend a record. The appeal should bear the legend “Privacy Act—Appeal,” both on the face of the letter and the envelope.</P>

              <P>(c) Upon receipt of an appeal, the Privacy Act Appeals Officer shall consult with the system manager, the official who made the denial, the General Counsel or a member of that office, and such other officials as may be appropriate. If the Privacy Act Appeals Officer in consultation with these officials, determines that the record should be amended, as requested, the system manager shall be instructed immediately to amend the record in accordance with § 6.52 and shall notify the requestor of that action.<PRTPAGE P="54"/>
              </P>
              <P>(d) If the Privacy Act Appeals Officer, in consultation with the officials specified in paragraph (c) of this section, determines that the appeal should be rejected, the Privacy Act Appeals Officer shall submit the file on the request and appeal, including findings and recommendations, to the Deputy Director for a final administrative determination.</P>
              <P>(e) If the Deputy Director determines that the record should be amended as requested, he or she immediately shall instruct the system manager in writing to amend the record in accordance with § 6.52. The Deputy Director shall send a copy of those instructions to the Privacy Act Appeals Officer, who shall notify the requester of that action.</P>
              <P>(f) If the Deputy Director determines to reject the appeal, the requestor shall immediately be notified in writing of that determination. This action shall constitute the final administrative determination on the request to amend the record and shall include:</P>
              <P>(1) The reasons for the rejection of the appeal.</P>
              <P>(2) Proposed alternative amendments, if appropriate, which the requestor subsequently may accept in accordance with § 6.54.</P>
              <P>(3) Notice of the requestor's right to file a Statement of Disagreement for distribution in accordance with § 6.56.</P>
              <P>(4) Notice of the requestor's right to seek judicial review of the final administrative determination, as provided in § 6.57.</P>
              <P>(g) The final agency determination must be made no later than 30 workdays from the date on which the appeal is received by the Privacy Act Appeals Officer.</P>
              <P>(h) In extraordinary circumstances, the Director may extend this time limit by notifying the requestor in writing before the expiration of the 30 workdays. The Director's notification will include a justification for the extension.</P>
              <CITA>[44 FR 50293, Aug. 27, 1979, as amended at 45 FR 17152, Mar. 18, 1980]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>§ 6.56</SECTNO>
              <SUBJECT>Statement of disagreement.</SUBJECT>
              <P>Upon receipt of a final administrative determination denying a request to amend a record, the requestor may file a Statement of Disagreement with the appropriate system manager. The Statement of Disagreement should include an explanation of why the requestor believes the record to be inaccurate, irrelevant, untimely, or incomplete. The system manager shall maintain the Statement of Disagreement in conjunction with the pertinent record, and shall include a copy of the Statement of Disagreement in any disclosure of the pertinent record. The system manager shall provide a copy of the Statement of Disagreement to any person or agency to whom the record has been disclosed only if the disclosure was subject to the accounting requirements of § 6.22.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 6.57</SECTNO>
              <SUBJECT>Judicial review.</SUBJECT>
              <P>Within 2 years of receipt of a final administrative determination as provided in § 6.34 or § 6.55, a requestor may seek judicial review of that determination. A civil action must be filed in the Federal District Court in which the requestor resides or has his or her principal place of business or in which the agency records are situated, or in the District of Columbia.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart E—Report on New Systems and Alterations of Existing Systems</HD>
            <SECTION>
              <SECTNO>§ 6.70</SECTNO>
              <SUBJECT>Reporting requirement.</SUBJECT>

              <P>(a) No later than 90 calendar days prior to the establishment of a new system of records, the prospective system manager shall notify the Privacy Appeals Officer of the proposed new system. The prospective system manager shall include with the notification a completed FEMA Form 11-2, System of Records Covered by the Privacy Act of 1974, and a justification for each system of records proposed to be established. If the Privacy Appeals Officer determines that the establishment of the proposed system is in the best interest of the Government, then no later than 60 calendar days prior to the establishment of that system of records, a report of the proposal shall be submitted by the Director or a designee thereof, to the President of the Senate, the Speaker of the House of Representatives, and the Administrator, Office of Information and Regulatory Affairs, Office of Management and Budget for <PRTPAGE P="55"/>their evaluation of the probable or potential effect of that proposal on the privacy and other personal or property rights of individuals.</P>
              <P>(b) No later than 90 calendar days prior to the alteration of a system of records, the system manager responsible for the maintenance of that system of records shall notify the Privacy Appeals Officer of the proposed alteration. The system manager shall include with the notification a completed FEMA Form 11-2. System of Records Covered by the Privacy Act of 1974, and a justification for each system of records he proposes to alter. If it is determined that the proposed alteration is in the best interest of the Government, then, the Director, or a designee thereof, shall submit, no later than 60 calendar days prior to the establishment of that alteration, a report of the proposal to the President of the Senate, the Speaker of the House of Representatives, and the Administrator, Office of Information and Regulatory Affairs, Office of Management and Budget for their evaluation of the probable or potential effect of that proposal on the privacy and other personal or property rights of individuals.</P>
              <P>(c) The reports required by this regulation are exempt from reports control.</P>
              <P>(d) The Administrator, Office of Information and Regulatory Affairs, Office of Management and Budget may waive the time requirements set out in this section upon a finding that a delay in the establishing or amending the system would not be in the public interest and showing how the public interest would be adversely affected if the waiver were not granted and otherwise complying with OMB Circular A-130.</P>
              <CITA>[44 FR 50293, Aug. 27, 1979, as amended at 45 FR 17152, Mar. 18, 1980; 51 FR 34604, Sept. 30, 1986]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>§ 6.71</SECTNO>
              <SUBJECT>Federal Register notice of establishment of new system or alteration of existing system.</SUBJECT>

              <P>Notice of the proposed establishment or alteration of a system of rec-ords shall be published in the <E T="04">Federal Register,</E> in accordance with FEMA procedures when:</P>
              <P>(a) Notice is received that the Senate, the House of Representatives, and the Office of Management and Budget do not object to the establishment of a new system or records or to the alteration of an existing system of records, or</P>
              <P>(b) No fewer than 30 calendar days elapse from the date of submission of the proposal to the Senate, the House of Representatives, and the Office of Management and Budget without receipt of an objection to the proposal. The notice shall include all of the information required to be provided in FEMA Form 11-2, System of Records Covered by the Privacy Act of 1974, and such other information as the Director deems necessary.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 6.72</SECTNO>
              <SUBJECT>Effective date of new system of records or alteration of an existing system of records.</SUBJECT>
              <P>Systems of records proposed to be established or altered in accordance with the provisions of this subpart shall be effective no sooner than 30 calendar days from the publication of the notice required by § 6.71.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart F—Fees</HD>
            <SECTION>
              <SECTNO>§ 6.80</SECTNO>
              <SUBJECT>Records available at fee.</SUBJECT>
              <P>The system manager shall provide a copy of a record to a requestor at a fee prescribed in § 6.85 unless the fee is waived under § 6.82.</P>
              <CITA>[44 FR 50293, Aug. 27, 1979, as amended at 45 FR 17152, Mar. 18, 1980]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>§ 6.81</SECTNO>
              <SUBJECT>Additional copies.</SUBJECT>
              <P>A reasonable number of additional copies shall be provided for the applicable fee to a requestor who indicates that he has no access to commercial reproduction services.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 6.82</SECTNO>
              <SUBJECT>Waiver of fee.</SUBJECT>

              <P>The system manager shall make one copy of a record, up to 300 pages, available without charge to a requestor who is an employee of FEMA. The system manager may waive the fee requirement for any other requestor if the cost of collecting the fee is an unduly large part of, or greater than, the fee, or when furnishing the record without <PRTPAGE P="56"/>charge conforms to generally established business custom or is in the public interest.</P>
              <CITA>[44 FR 50287, Aug. 27, 1979, as amended at 52 FR 13679, Apr. 24, 1987]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>§ 6.83</SECTNO>
              <SUBJECT>Prepayment of fees.</SUBJECT>
              <P>(a) When FEMA estimates or determines that allowable charges that a requester may be required to pay are likely to exceed $250.00, FEMA may require a requester to make an advance payment of the entire fee before continuing to process the request.</P>
              <P>(b) When a requester has previously failed to pay a fee charged in a timely fashion (i.e., within 30 days of the date of the billing), FEMA may require the requester to pay the full amount owed plus any applicable interest as provided in § 6.85(d), and to make an advance payment of the full amount of the estimated fee before the agency begins to process a new request or a pending request from that requester.</P>
              <P>(c) When FEMA acts under § 5.44 (a) or (b), the administrative time limits prescribed in subsection (a)(6) of the FOIA (i.e., 10 working days from the receipt of initial requests and 20 working days from receipt of appeals from initial denial, plus permissible extensions of these time limits) will begin only after FEMA has received fee payments described under § 5.44 (a) or (b).</P>
              <CITA>[52 FR 13679, Apr. 24, 1987]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>§ 6.84</SECTNO>
              <SUBJECT>Form of payment.</SUBJECT>
              <P>Payment shall be by check or money order payable to The Federal Emergency Management Agency and shall be addressed to the system manager.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 6.85</SECTNO>
              <SUBJECT>Reproduction fees.</SUBJECT>
              <P>(a) <E T="03">Duplication costs.</E> (1) For copies of documents reproduced on a standard office copying machine in sizes up to 8<FR>1/2</FR> x 14 inches, the charge will be $.15 per page.</P>
              <P>(2) The fee for reproducing copies of records over 8<FR>1/2</FR> x 14 inches or whose physical characteristics do not permit reproduction by routine electrostatic copying shall be the direct cost of reproducing the records through Government or commercial sources. If FEMA estimates that the allowable duplication charges are likely to exceed $25, it shall notify the requester of the estimated amount of fees, unless the requester has indicated in advance his/her willingness to pay fees as high as those anticipated. Such a notice shall offer a requester the opportunity to confer with agency personnel with the objective of reformulating the request to meet his/her needs at a lower cost.</P>
              <P>(3) For other methods of reproduction or duplication, FEMA shall charge the actual direct costs of producing the document(s). If FEMA estimates that the allowable duplication charges are likely to exceed $25, it shall notify the requester of the estimated amount of fees, unless the requester has indicated in advance his/her willingness to pay fees as high as those anticipated. Such a notice shall offer a requester the opportunity to confer with agency personnel with the objective of reformulating the request to meet his/her needs at a lower cost.</P>
              <P>(b) Interest may be charge to those requesters who fail to pay fees charged. FEMA may begin assessing interest charges on the amount billed starting on the 31st day following the day on which the billing was sent. Interest will be at the rate prescribed in section 3717 of title 31 U.S.C.</P>
              <CITA>[52 FR 13679, Apr. 24, 1987]</CITA>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart G—Exempt Systems of Records</HD>
            <SECTION>
              <SECTNO>§ 6.86</SECTNO>
              <SUBJECT>General exemptions.</SUBJECT>

              <P>(a) Whenever the Director, Federal Emergency Management Agency, determines it to be necessary and proper, with respect to any system of records maintained by the Federal Emergency Management Agency, to exercise the right to promulgate rules to exempt such systems in accordance with the provisions of 5 U.S.C. 552a (j) and (k), each specific exemption, including the parts of each system to be exempted, the provisions of the Act from which they are exempted, and the justification for each exemption shall be published in the <E T="04">Federal Register</E> as part of FEMA's Notice of Systems of Rec-ords.</P>

              <P>(b) Exempt under 5 U.S.C. 552a(j)(2) from the requirements of 5 U.S.C. 552a(c) (3) and (4), (d), (e) (1), (2), (3), <PRTPAGE P="57"/>(e)(4) (G), (H), and (I), (e) (5) and (8) (f) and (g) of the Privacy Act.</P>
              <P>(1) <E T="03">Exempt systems.</E> The following systems of records, which contain information of the type described in 5 U.S.C. 552(j)(2), shall be exempt from the provisions of 5 U.S.C. 552a listed in paragraph (b) of this section.
              </P>
              <EXTRACT>
                <FP SOURCE="FP-1">General Investigative Files (FEMA/IG-2)—Limited Access</FP>
              </EXTRACT>
              
              <P>(2) <E T="03">Reasons for exemptions.</E> (i) 5 U.S.C. 552a (e)(4)(G) and (f)(1) enable individuals to be notified whether a system of records contains records pertaining to them. The Federal Emergency Management Agency believes that application of these provisions to the above-listed system of records would give individuals an opportunity to learn whether they are of record either as suspects or as subjects of a criminal investigation; this would compromise the ability of the Federal Emergency Management Agency to complete investigations and identify or detect violators of laws administered by the Federal Emergency Management Agency or other Federal agencies. Individuals would be able (A) to take steps to avoid detection, (B) to inform co-conspirators of the fact that an investigation is being conducted, (C) to learn the nature of the investigation to which they are being subjected, (D) to learn the type of surveillance being utilized, (E) to learn whether they are only suspects or identified law violators, (F) to continue to resume their illegal conduct without fear of detection upon learning that they are not in a particular system of records, and (G) to destroy evidence needed to prove the violation.</P>
              <P>(ii) 5 U.S.C. 552a (d)(1), (e)(4)(H) and (f)(2), (3) and (5) enable individuals to gain access to records pertaining to them. The Federal Emergency Management Agency believes that application of these provisions to the above-listed system of records would compromise its ability to complete or continue criminal investigations and to detect or identify violators of laws administered by the Federal Emergency Management Agency or other Federal agencies. Permitting access to records contained in the above-listed system of records would provide individuals with significant information concerning the nature of the investigation, and this could enable them to avoid detection or apprehension in the following ways:</P>

              <P>(A) By discovering the collection of facts which would form the basis for their arrest, (B) by enabling them to destroy evidence of criminal conduct which would form the basis for their arrest, and (C) by learning that the criminal investigators had reason to believe that a crime was about to be committed, they could delay the commission of the crime or change the scene of the crime to a location which might not be under surveillance. Granting access to ongoing or closed investigative files would also reveal investigative techniques and procedures, the knowledge of which could enable individuals planning criminal activity to structure their future operations in such a way as to avoid detection or apprehension, thereby neutralizing law enforcement officers' established investigative tools and procedures. Further, granting access to investigative files and records could disclose the identity of confidential sources and other informers and the nature of the information which they supplied, thereby endangering the life or physical safety of those sources of information by exposing them to possible reprisals for having provided information relating to the criminal activities of those individuals who are the subjects of the investigative files and records; confidential sources and other informers might refuse to provide criminal investigators with valuable information if they could not be secure in the knowledge that their identities would not be revealed through disclosure of either their names or the nature of the information they supplied, and this would seriously impair the ability of the Federal Emergency Management Agency to carry out its mandate to enforce criminal and related laws. Additionally, providing access to records contained in the above-listed system of records could reveal the identities of undercover law enforcement personnel who compiled information regarding individual's criminal activities, thereby endangering the life or physical safety of those undercover personnel or their families by exposing them to possible reprisals.<PRTPAGE P="58"/>
              </P>
              <P>(iii) 5 U.S.C. 552a(d) (2), (3) and (4), (e)(4)(H) and (f)(4), which are dependent upon access having been granted to records pursuant to the provisions cited in paragraph (b)(2)(ii) of this section, enable individuals to contest (seek amendment to) the content of records contained in a system of rec-ords and require an agency to note an amended record and to provide a copy of an individual's statement (of disagreement with the agency's refusal to amend a record) to persons or other agencies to whom the record has been disclosed. The Federal Emergency Management Agency believes that the reasons set forth in paragraph (b)(2)(ii) of this section are equally applicable to this paragraph and, accordingly, those reasons are hereby incorporated herein by reference.</P>
              <P>(iv) 5 U.S.C. 552a(c)(3) requires that an agency make accountings of disclosures of records available to individuals named in the records at their request; such accountings must state the date, nature and purpose of each disclosure of a record and the name and address of the recipient. The Federal Emergency Management Agency believes that application of this provision to the above-listed system of rec-ords would impair the ability of other law enforcement agencies to make effective use of information provided by the Federal Emergency Management Agency in connection with the investigation, detection and apprehension of violators of the criminal laws enforced by those other law enforcement agencies. Making accountings of disclosure available to violators or possible violators would alert those individuals to the fact that another agency is conducting an investigation into their criminal activities, and this could reveal the geographic location of the other agency's investigation, the nature and purpose of that investigation, and the dates on which that investigation was active. Violators possessing such knowledge would thereby be able to take appropriate measures to avoid detection or apprehension by altering their operations, by transferring their criminal activities to other geographic areas or by destroying or concealing evidence which would form the basis for their arrest. In addition, providing violators with accountings of disclosure would alert those individuals to the fact that the Federal Emergency Management Agency has information regarding their criminal activities and could inform those individuals of the general nature of that information; this, in turn, would afford those individuals a better opportunity to take appropriate steps to avoid detection or apprehension for violations of criminal and related laws.</P>
              <P>(v) 5 U.S.C. 552a(c)(4) requires that an agency inform any person or other agency about any correction or notation of dispute made by the agency in accordance with 5 U.S.C. 552a(d) of any record that has been disclosed to the person or agency if an accounting of the disclosure was made. Since this provision is dependent on an individual's having been provided an opportunity to contest (seek amendment to) records pertaining to him/her, and since the above-listed system of records is proposed to be exempt from those provisions of 5 U.S.C. 552a relating to amendments of records as indicated in paragraph (b)(2)(iii) of this section, the Federal Emergency Management Agency believes that this provision should not be applicable to the above system of records.</P>

              <P>(vi) 5 U.S.C. 552a(e)(4)(I) requires that an agency publish a public notice listing the categories of sources for information contained in a system of rec-ords. The categories of sources of this system of records have been published in the <E T="04">Federal Register</E> in broad generic terms in the belief that this is all that subsection (e)(4)(I) of the Act requires. In the event, however, that this subsection should be interpreted to require more detail as to the identity of sources of the records in this system, exemption from this provision is necessary in order to protect the confidentiality of the sources of criminal and other law enforcement information. Such exemption is further necessary to protect the privacy and physical safety of witnesses and informants.</P>

              <P>(vii) 5 U.S.C. 552a(e)(1) requires that an agency maintain in its records only such information about an individual as is relevant and necessary to accomplish a purpose of the agency required <PRTPAGE P="59"/>to be accomplished by statute or executive order. The term <E T="03">maintain</E> as defined in 5 U.S.C. 552a(a)(3) includes “collect” and “disseminate.” At the time that information is collected by the Federal Emergency Management Agency, there is often insufficient time to determine whether the information is relevant and necessary to accomplish a purpose of the Federal Emergency Management Agency; in many cases information collected may not be immediately susceptible to a determination of whether the information is relevant and necessary, particularly in the early stages of an investigation, and in many cases, information which initially appears to be irrelevant or unnecessary may, upon further evaluation or upon continuation of the investigation, prove to have particular relevance to an enforcement program of the Federal Emergency Management Agency. Further, not all violations of law discovered during a criminal investigation fall within the investigative jurisdiction of the Federal Emergency Management Agency; in order to promote effective law enforcement, it often becomes necessary and desirable to disseminate information pertaining to such violations to other law enforcement agencies which have jurisdiction over the offense to which the information relates. The Federal Emergency Management Agency should not be placed in a position of having to ignore information relating to violations of law not within its jurisdiction when that information comes to the attention of the Federal Emergency Management Agency through the conduct of a lawful FEMA investigation. The Federal Emergency Management Agency, therefore, believes that it is appropriate to exempt the above-listed system of records from the provisions of 5 U.S.C. 552a(e)(1).</P>
              <P>(viii) 5 U.S.C. 552a(e)(2) requires that an agency collect information to the greatest extent practicable directly from the subject individual when the information may result in adverse determinations about an individual's rights, benefits, and privileges under Federal programs. The Federal Emergency Management Agency believes that application of this provision to the above-listed system of records would impair the ability of the Federal Emergency Management Agency to conduct investigations and to identify or detect violators of criminal or related laws for the following reasons:</P>
              <P>(A) Most information collected about an individual under criminal investigations is obtained from third parties such as witnesses and informers, and it is usually not feasible to rely upon the subject of the investigation as a source for information regarding his/her criminal activities, (B) an attempt to obtain information from the subject of a criminal investigation will often alert that individual to the existence of an investigation, thereby affording the individual an opportunity to attempt to conceal his/her criminal activities so as to avoid apprehension, (C) in certain instances, the subject of a criminal investigation is not required to supply information to criminal investigators as a matter of legal duty, and (D) during criminal investigations it is often a matter of sound investigative procedures to obtain information from a variety of sources in order to verify information already obtained.</P>

              <P>(ix) 5 U.S.C. 552a(e)(3) requires that an agency inform each individual whom it asks to supply information, either on the form which the agency uses to collect the information or on a separate form which can be retained by the individual, with the following information: The authority which authorizes the solicitation of the information and whether disclosure of such information is mandatory or voluntary; the principal purposes for which the information is intended to be used; the routine uses which may be made of the information; and the effects on the individual of not providing all or part of the requested information. The Federal Emergency Management Agency believes that the above-listed system of records should be exempted from this provision in order to avoid adverse effects on its ability to identify or detect violators of criminal or related laws. In many cases, information is obtained by confidential sources, other informers or undercover law enforcement officers under circumstances where it is necessary that the true purpose of their actions be kept secret so as to avoid <PRTPAGE P="60"/>alerting the subject of the investigation or his/her associates that a criminal investigation is in process. Further, if it became known that the undercover officer was assisting in a criminal investigation, that officer's life or physical safety could be endangered through reprisal, and, under such circumstances it may not be possible to continue to utilize that officer in the investigation. In many cases, individuals, for personal reasons, would feel inhibited in talking to a person representing a criminal law enforcement agency but would be willing to talk to a confidential source or undercover officer who they believe is not involved in law enforcement activities. In addition, providing a source of information with written evidence that he was a source, as required by this provision, could increase the likelihood that the source of information would be the subject of retaliatory action by the subject of the investigation. Further, application of this provision could result in an unwarranted invasion of the personal privacy of the subject of the criminal investigation, particularly where further investigation would result in a finding that the subject was not involved in any criminal activity.</P>
              <P>(x) 5 U.S.C. 552a(e)(5) requires that an agency maintain all records used by the agency in making any determination about any individual with such accuracy, relevance, timeliness and completeness as is reasonably necessary to assure fairness to the individual in the determination. Since 5 U.S.C. 552a(a)(3) defines “maintain” to include “collect” and “disseminate,” application of this provision to the above-listed system of records would hinder the initial collection of any information which could not, at the moment of collection, be determined to be accurate, relevant, timely and complete. Similarly, application of this provision would seriously restrict the necessary flow of information from the Federal Emergency Management Agency to other law enforcement agencies when a FEMA investigation revealed information pertaining to a violation of law which was under investigative jurisdiction of another agency. In collecting information during the course of a criminal investigation, it is not possible or feasible to determine accuracy, relevance, timeliness or completeness prior to collection of the information; in disseminating information to other law enforcement agencies it is often not possible to determine accuracy, relevance, timeliness or completeness prior to dissemination because the disseminating agency may not have the expertise with which to make such determinations. Further, information which may initially appear to be inaccurate, irrelevant, untimely or incomplete may, when gathered, grouped, and evaluated with other available information, become more pertinent as an investigation progresses. In addition, application of this provision could seriously impede criminal investigators and intelligence analysts in the exercise of their judgment in reporting on results obtained during criminal investigations. The Federal Emergency Management Agency believes that it is appropriate to exempt the above-listed system of records from the provisions of 5 U.S.C. 552a(e)(5).</P>
              <P>(xi) 5 U.S.C. 552a(e)(8) requires that an agency make reasonable effort to serve notice on an individual when any record on the individual is made available to any person under compulsory legal process when such process becomes a matter of public record. The Federal Emergency Management Agency believes that the above-listed system of records should be exempt from this provision in order to avoid revealing investigative techniques and procedures outlined in those records and in order to prevent revelation of the existence on an on-going investigation where there is a need to keep the existence of the investigation secret.</P>

              <P>(xii) 5 U.S.C. 552a(g) provides civil remedies to an individual for an agency's refusal to amend a record or to make a review of a request for amendment; for an agency's refusal to grant access to a record; for an agency's failure to maintain accurate, relevant, timely and complete records which are used to make a determination which is adverse to the individual; and for an agency's failure to comply with any other provision of 5 U.S.C. 552a in such a way as to have an adverse effect on an individual. The Federal Emergency Management Agency believes that the <PRTPAGE P="61"/>above-listed system of records should be exempted from this provision to the extent that the civil remedies provided therein may relate to provisions of 5 U.S.C. 552a from which the above-listed system of records is proposed to be exempt. Since the provisions of 5 U.S.C. 552a enumerated in paragraphs (b)(2)(i) through (xi) of this section are proposed to be inapplicable to the above-listed systems of records for the reasons stated therein, there should be no corresponding civil remedies for failure to comply with the requirements of those provisions to which the exemption is proposed to apply. Further, the Federal Emergency Management Agency believes that application of this provision to the above-listed system of records would adversely affect its ability to conduct criminal investigations by exposing to civil court action every stage of the criminal investigative process in which information is compiled or used in order to identify, detect, or otherwise investigate persons suspected or known to be engaged in criminal conduct.</P>
              <P>(xiii) Individuals may not have access to another agency's records, which are contained in files maintained by the Federal Emergency Management Agency, when that other agency's regulations provide that such records are subject to general exemption under 5 U.S.C. 552a(j). If such exempt records are within a request for access, FEMA will advise the individual of their existence and of the name and address of the source agency. For any further information concerning the record and the exemption, the individual must contact that source agency.</P>
              <CITA>[45 FR 64580, Sept. 30, 1980]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>§ 6.87</SECTNO>
              <SUBJECT>Specific exemptions.</SUBJECT>
              <P>(a) <E T="03">Exempt under 5 U.S.C. 552a(k)(1).</E> The Director, Federal Emergency Management Agency has determined that certain systems of records may be exempt from the requirements of (c)(3) and (d) pursuant to 5 U.S.C. 552a(k)(1) to the extent that the system contains any information properly classified under Executive Order 12356 or any subsequent Executive order and which are required to be kept secret in the interest of national defense or foreign policy. To the extent that this occurs, such records in the following systems would be exempt:
              </P>
              <EXTRACT>
                <FP SOURCE="FP-1">Claims (litigation) (FEMA/GC-1)—Limited Access</FP>
                <FP SOURCE="FP-1">FEMA Enforcement (Compliance) (FEMA/GC-2)—Limited Access</FP>
                <FP SOURCE="FP-1">General Investigative Files (FEMA/IG-1)—Limited Access</FP>
                <FP SOURCE="FP-1">Security Management Information System (FEMA/SEC-1)—Limited Access</FP>
              </EXTRACT>
              
              <P>(b) <E T="03">Exempt under 5 U.S.C. 552a(k)(2) from the requirements of 5 U.S.C. 552a (c)(3), (d), (e)(1), (e)(4) (G), (H), and (I), and (f).</E> The Federal Emergency Management Agency will not deny individuals access to information which has been used to deny them a right, privilege, or benefit to which they would otherwise be entitled.</P>
              <P>(1) <E T="03">Exempt systems.</E> The following systems of records, which contain information of the type described in 5 U.S.C. 552a(k)(2), shall be exempt from the provisions of 5 U.S.C. 552a(k)(2) listed in paragraph (b) of this section.
              </P>
              <EXTRACT>
                <FP SOURCE="FP-1">Claims (litigation) (FEMA/GC-1)—Limited Access</FP>
                <FP SOURCE="FP-1">FEMA Enforcement (Compliance) (FEMA/GC-2)—Limited Access</FP>
                <FP SOURCE="FP-1">General Investigative Files (FEMA/IG-1)—Limited Access</FP>
                <FP SOURCE="FP-1">Equal Employment Opportunity Complaints of Discrimination Files (FEMA/PER-2)—Limited Access</FP>
              </EXTRACT>
              
              <P>(2) <E T="03">Reasons for exemptions.</E> (i) 5 U.S.C. 552a (e)(4)(G) and (f)(1) enable individuals to be notified whether a system of records contains records pertaining to them. The Federal Emergency Management Agency believes that application of these provisions to the above-listed systems of records would impair the ability of FEMA to successfully complete investigations and inquiries of suspected violators of civil and criminal laws and regulations under its jurisdiction. In many cases investigations and inquiries into violations of civil and criminal laws and regulations involve complex and continuing patterns of behavior. Individuals, if informed, that they have been identified as suspected violators of civil or criminal laws and regulations, would have an opportunity to take measures to prevent detection of illegal action so as to avoid prosecution or the imposition of civil sanctions. They would also be able to learn the nature and location of <PRTPAGE P="62"/>the investigation or inquiry, the type of surveillance being utilized, and they would be able to transmit this knowledge to co-conspirators. Finally, violators might be given the opportunity to destroy evidence needed to prove the violation under investigation or inquiry.</P>
              <P>(ii) 5 U.S.C. 552a (d)(1), (e)(4)(H) and (f)(2), (3) and (5) enable individuals to gain access to records pertaining to them. The Federal Emergency Management Agency believes that application of these provisions to the above-listed systems of records would impair its ability to complete or continue civil or criminal investigations and inquiries and to detect violators of civil or criminal laws. Permitting access to records contained in the above-listed systems of records would provide violators with significant information concerning the nature of the civil or criminal investigation or inquiry. Knowledge of the facts developed during an investigation or inquiry would enable violators of criminal and civil laws and regulations to learn the extent to which the investigation or inquiry has progressed, and this could provide them with an opportunity to destroy evidence that would form the basis for prosecution or the imposition of civil sanctions. In addition, knowledge gained through access to investigatory material could alert a violator to the need to temporarily postpone commission of the violation or to change the intended point where the violation is to be committed so as to avoid detection or apprehension. Further, access to investigatory material would disclose investigative techniques and procedures which, if known, could enable violators to structure their future operations in such a way as to avoid detection or apprehension, thereby neutralizing investigators' established and effective investigative tools and procedures. In addition, investigatory material may contain the identity of a confidential source of information or other informer who would not want his/her identity to be disclosed for reasons of personal privacy or for fear of reprisal at the hands of the individual about whom he/she supplied information. In some cases mere disclosure of the information provided by an informer would reveal the identity of the informer either through the process of elimination or by virtue of the nature of the information supplied. If informers cannot be assured that their identities (as sources for information) will remain confidential, they would be very reluctant in the future to provide information pertaining to violations of criminal and civil laws and regulations, and this would seriously compromise the ability of the Federal Emergency Management Agency to carry out its mission. Further, application of 5 U.S.C. 552a (d)(1), (e)(4)(H) and (f)(2), (3) and (5) to the above-listed systems of records would make available attorney's work product and other documents which contain evaluations, recommendations, and discussions of on-going civil and criminal legal proceedings; the availability of such documents could have a chilling effect on the free flow of information and ideas within the Federal Emergency Management Agency which is vital to the agency's predecisional deliberative process, could seriously prejudice the agency's or the Government's position in a civil or criminal litigation, and could result in the disclosure of investigatory material which should not be disclosed for the reasons stated above. It is the belief of the Federal Emergency Management Agency that, in both civil actions and criminal prosecutions, due process will assure that individuals have a reasonable opportunity to learn of the existence of, and to challenge, investigatory records and related materials which are to be used in legal proceedings.</P>

              <P>(iii) 5 U.S.C. 552a (d)(2), (3) and (4), (e)(4)(H) and (f)(4) which are dependent upon access having been granted to records pursuant to the provisions cited in paragraph (b)(2)(ii) of this section, enable individuals to contest (seek amendment to) the content of records contained in a system of rec-ords and require an agency to note an amended record and to provide a copy of an individual's statement (of disagreement with the agency's refusal to amend a record) to persons or other agencies to whom the record has been disclosed. The Federal Emergency Management Agency believes that the reasons set forth in paragraphs (b)(2)(i) <PRTPAGE P="63"/>of this section are equally applicable to this paragraph, and, accordingly, those reasons are hereby incorporated herein by reference.</P>
              <P>(iv) 5 U.S.C. 552a(c)(3) requires that an agency make accountings of disclosures of records available to individuals named in the records at their request; such accountings must state the date, nature, and purpose of each disclosure of a record and the name and address of the recipient. The Federal Emergency Management Agency believes that application of this provision to the above-listed systems of rec-ords would impair the ability of the Federal Emergency Management Agency and other law enforcement agencies to conduct investigations and inquiries into civil and criminal violations under their respective jurisdictions. Making accountings available to violators would alert those individuals to the fact that the Federal Emergency Management Agency or another law enforcement authority is conducting an investigation or inquiry into their activities, and such accountings could reveal the geographic location of the investigation or inquiry, the nature and purpose of the investigation or inquiry and the nature of the information disclosed, and the date on which that investigation or inquiry was active. Violators possessing such knowledge would thereby be able to take appropriate measures to avoid detection or apprehension by altering their operations, transferring their activities to other locations or destroying or concealing evidence which would form the basis for prosecution or the imposition of civil sanctions.</P>

              <P>(v) 5 U.S.C. 552a(e)(1) requires that an agency maintain in its records only such information about an individual as is relevant and necessary to accomplish a purpose of the agency required to be accomplished by statute or executive order. The term <E T="03">maintain</E> as defined in 5 U.S.C. 552a(a)(3) includes “collect” and “disseminate.” At the time that information is collected by the Federal Emergency Management Agency there is often insufficient time to determine whether the information is relevant and necessary to accomplish a purpose of the Federal Emergency Management Agency; in many cases information collected may not be immediately susceptible to a determination of whether the information is relevant and necessary, particularly in the early stages of investigation or inquiry, and in many cases information which initially appears to be irrelevant or unnecessary may, upon further evaluation or upon continuation of the investigation or inquiry, prove to have particular relevance to an enforcement program of the Federal Emergency Management Agency. Further, not all violations of law uncovered during a Federal Emergency Management Agency inquiry fall within the civil or criminal jurisdiction of the Federal Emergency Management Agency; in order to promote effective law enforcement, it often becomes necessary and desirable to disseminate information pertaining to such violations to other law enforcement agencies which have jurisdiction over the offense to which the information relates. The Federal Emergency Management Agency should not be placed in a position of having to ignore information relating to violations of law not within its jurisdiction when that information comes to the attention of the Federal Emergency Management Agency through the conduct of a lawful FEMAs civil or criminal investigation or inquiry. The Federal Emergency Management Agency therefore believes that it is appropriate to exempt the above-listed systems of records from the provisions of 5 U.S.C. 552a(e)(1).</P>
              <P>(c) <E T="03">Exempt under 5 U.S.C. 552a(k)(5).</E> The Director, Federal Emergency Management Agency has determined that certain systems of records are exempt from the requirements of (c)(3) and (d) of 5 U.S.C. 552a.</P>
              <P>(1) <E T="03">Exempt systems.</E> The following systems of records, which contain information of the type described in 5 U.S.C. 552a(k)(5), shall be exempted from the provisions of 5 U.S.C. 552a listed in paragraph (c) of this section.
              </P>
              <EXTRACT>
                <FP SOURCE="FP-1">Claims (litigation) (FEMA/GC-1)—Limited Access</FP>
                <FP SOURCE="FP-1">FEMA Enforcement (Compliance) (FEMA/GC-2)—Limited Access</FP>
                <FP SOURCE="FP-1">General Investigative Files (FEMA/IG-2)—Limited Access</FP>
                <FP SOURCE="FP-1">Security Management Information Systems (FEMA/SEC-1)—Limited Access</FP>
              </EXTRACT>
              
              <PRTPAGE P="64"/>
              <P>(2) <E T="03">Reasons for exemptions.</E> All information about individuals in these records that meet the criteria stated in 5 U.S.C. 552a(k)(5) is exempt from the requirements of 5 U.S.C. 552a (c)(3) and (d). These provisions of the Privacy Act relate to making accountings of disclosure available to the subject and access to and amendment of records. These exemptions are claimed because the system of records entitled, FEMA/SEC-1, Security Management Information System, contains investigatory material compiled solely for the purpose of determining suitability, eligibility, or qualifications for access to classified information or classified Federal contracts, but only to the extent that the disclosure would reveal the identity of a source who furnished information to the Government under an express promise or, prior to September 27, 1975, under an implied promise that the identity of the source would be held in confidence. During the litigation process and investigations, it is possible that certain records from the system of records entitled, FEMA/SEC-1, Security Management System may be necessary and relevant to the litigation or investigation and included in these systems of records. To the extent that this occurs, the Director, FEMA, has determined that the records would also be exempted from subsections (c)(3) and (d) pursuant to 5 U.S.C. 552a(k)(5) to protect such records. A determination will be made at the time of the request for a record concerning whether specific information would reveal the identity of a source. This exemption is required in order to protect the confidentiality of the sources of information compiled for the purpose of determining access to classified information. This confidentiality helps maintain the Government's continued access to information from persons who would otherwise refuse to give it.</P>
              <CITA>[45 FR 64580, Sept. 30, 1980, as amended at 47 FR 54816, Dec. 6, 1982; 52 FR 5114, Feb. 19, 1987]</CITA>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 7</EAR>
          <HD SOURCE="HED">PART 7—NONDISCRIMINATION IN FEDERALLY-ASSISTED PROGRAMS (FEMA REG. 5)</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart A—Nondiscrimination in FEMA-Assisted Programs—General</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>7.1</SECTNO>
              <SUBJECT>Purpose.</SUBJECT>
              <SECTNO>7.2</SECTNO>
              <SUBJECT>Definitions.</SUBJECT>
              <SECTNO>7.3</SECTNO>
              <SUBJECT>Application of this regulation.</SUBJECT>
              <SECTNO>7.4</SECTNO>
              <SUBJECT>Further application of this regulation.</SUBJECT>
              <SECTNO>7.5</SECTNO>
              <SUBJECT>Specific discriminatory actions prohibited.</SUBJECT>
              <SECTNO>7.6</SECTNO>
              <SUBJECT>Life, health, and safety.</SUBJECT>
              <SECTNO>7.7</SECTNO>
              <SUBJECT>Assurances required.</SUBJECT>
              <SECTNO>7.8</SECTNO>
              <SUBJECT>Elementary and secondary schools.</SUBJECT>
              <SECTNO>7.9</SECTNO>
              <SUBJECT>Assurances from institutions.</SUBJECT>
              <SECTNO>7.10</SECTNO>
              <SUBJECT>Compliance information.</SUBJECT>
              <SECTNO>7.11</SECTNO>
              <SUBJECT>Conduct of investigations.</SUBJECT>
              <SECTNO>7.12</SECTNO>
              <SUBJECT>Procedure for effecting compliance.</SUBJECT>
              <SECTNO>7.13</SECTNO>
              <SUBJECT>Hearings.</SUBJECT>
              <SECTNO>7.14</SECTNO>
              <SUBJECT>Decisions and notices.</SUBJECT>
              <SECTNO>7.15</SECTNO>
              <SUBJECT>Judicial review.</SUBJECT>
              <SECTNO>7.16</SECTNO>
              <SUBJECT>Effect on other regulations; forms and instructions.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <RESERVED>Subparts B-D [Reserved]</RESERVED>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart E—Nondiscrimination on the Basis of Age in Programs or Activities Receiving Federal Financial Assistance From FEMA</HD>
              <SUBJGRP>
                <HD SOURCE="HED">General</HD>
                <SECTNO>7.910</SECTNO>
                <SUBJECT>What is the purpose of the Age Discrimination Act of 1975?</SUBJECT>
                <SECTNO>7.911</SECTNO>
                <SUBJECT>What is the purpose of FEMA's age discrimination regulation?</SUBJECT>
                <SECTNO>7.912</SECTNO>
                <SUBJECT>To what programs or activities does this regulation apply?</SUBJECT>
                <SECTNO>7.913</SECTNO>
                <SUBJECT>Definition of terms used in this regulation.</SUBJECT>
              </SUBJGRP>
              <SUBJGRP>
                <HD SOURCE="HED">Standards for Determining Age Discrimination</HD>
                <SECTNO>7.920</SECTNO>
                <SUBJECT>Rules against age discrimination.</SUBJECT>
                <SECTNO>7.921</SECTNO>
                <SUBJECT>Exceptions to the rules against age discrimination: Normal operation or statutory objective of any program or activity.</SUBJECT>
                <SECTNO>7.922</SECTNO>
                <SUBJECT>Exceptions to the rules against age discrimination: Reasonable factors other than age.</SUBJECT>
                <SECTNO>7.923</SECTNO>
                <SUBJECT>Burden of proof for exceptions.</SUBJECT>
                <SECTNO>7.924</SECTNO>
                <SUBJECT>Affirmative action by recipient.</SUBJECT>
                <SECTNO>7.925</SECTNO>
                <SUBJECT>Special benefits for children and the elderly.</SUBJECT>
                <SECTNO>7.926</SECTNO>
                <SUBJECT>Age distinctions contained in FEMA regulations.</SUBJECT>
              </SUBJGRP>
              <SUBJGRP>
                <PRTPAGE P="65"/>
                <HD SOURCE="HED">Duties of FEMA Recipients</HD>
                <SECTNO>7.930</SECTNO>
                <SUBJECT>General responsibilities.</SUBJECT>
                <SECTNO>7.931</SECTNO>
                <SUBJECT>Notice to subrecipients and beneficiaries.</SUBJECT>
                <SECTNO>7.932</SECTNO>
                <SUBJECT>Assurance of compliance and recipient assessment of age distinctions.</SUBJECT>
                <SECTNO>7.933</SECTNO>
                <SUBJECT>Information requirement.</SUBJECT>
              </SUBJGRP>
              <SUBJGRP>
                <HD SOURCE="HED">Investigation, Conciliation, and Enforcement Procedures</HD>
                <SECTNO>7.940</SECTNO>
                <SUBJECT>Compliance reviews.</SUBJECT>
                <SECTNO>7.941</SECTNO>
                <SUBJECT>Complaints.</SUBJECT>
                <SECTNO>7.942</SECTNO>
                <SUBJECT>Mediation.</SUBJECT>
                <SECTNO>7.943</SECTNO>
                <SUBJECT>Investigation.</SUBJECT>
                <SECTNO>7.944</SECTNO>
                <SUBJECT>Prohibition against intimidation or retaliation.</SUBJECT>
                <SECTNO>7.945</SECTNO>
                <SUBJECT>Compliance procedure.</SUBJECT>
                <SECTNO>7.946</SECTNO>
                <SUBJECT>Hearings, decisions, post-termination proceedings.</SUBJECT>
                <SECTNO>7.947</SECTNO>
                <SUBJECT>Remedial action by recipient.</SUBJECT>
                <SECTNO>7.948</SECTNO>
                <SUBJECT>Alternate funds disbursal procedure.</SUBJECT>
                <SECTNO>7.949</SECTNO>
                <SUBJECT>Exhaustion of administrative remedies.</SUBJECT>
                <SOURCE>
                  <HD SOURCE="HED">Source:</HD>
                  <P>30 FR 321, Jan. 9, 1965, unless otherwise noted. Redesignated at 45 FR 44575, July 1, 1980.</P>
                </SOURCE>
              </SUBJGRP>
            </SUBPART>
          </CONTENTS>
          <SUBPART>
            <HD SOURCE="HED">Subpart A—Nondiscrimination in FEMA-Assisted Programs—General</HD>
            <AUTH>
              <HD SOURCE="HED">Authority:</HD>
              <P>FEMA Reg. 5 issued under sec. 602, 78 Stat. 252; 42 U.S.C. 2000 d-1; 42 U.S.C. 1855-1885g; 50 U.S.C. 404.</P>
            </AUTH>
            <TEXT>
              <SOURCE>
                <HD SOURCE="HED">Source:</HD>
                <P>30 FR 321, Jan. 9, 1965, unless otherwise noted. Redesignated at 45 FR 44575, July 1, 1980, and further redesignated at 55 FR 23078, June 6, 1990.</P>
              </SOURCE>
            </TEXT>
            <SECTION>
              <SECTNO>§ 7.1</SECTNO>
              <SUBJECT>Purpose.</SUBJECT>
              <P>The purpose of this regulation is to effectuate the provisions of title VI of the Civil Rights Act of 1964 (hereafter referred to as the “Act”) to the end that no person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be otherwise subjected to discrimination under any program or activity receiving Federal financial assistance from the Federal Emergency Management Agency.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 7.2</SECTNO>
              <SUBJECT>Definitions.</SUBJECT>
              <P>As used in this regulation:</P>
              <P>(a) The term <E T="03">responsible agency official</E> with respect to any program receiving Federal financial assistance means the Director of the Federal Emergency Management Agency or other official of the agency who by law or by delegation has the principal responsibility within the agency for the administration of the law extending such assistance.</P>
              <P>(b) The term <E T="03">United States</E> means the States of the United States, the District of Columbia, Puerto Rico, the Virgin Islands, American Samoa, Guam, Wake Island, the Canal Zone, and the territories and possessions of the United States, and the term <E T="03">State</E> means any one of the foregoing.</P>
              <P>(c) The term <E T="03">Federal financial assistance</E> includes (1) grants and loans of Federal funds, (2) the grant or donation of Federal property and interests in property, (3) the detail of Federal personnel, (4) the sale and lease of, and the permission to use (on other than a casual or transient basis), Federal property or any interest in such property without consideration or at a nominal consideration, or at a consideration which is reduced for the purpose of assisting the recipient, or in recognition of the public interest to be served by such sale or lease to the recipient, and (5) any Federal agreement, arrangement, or other contract which has as one of its purposes the provision of assistance.</P>
              <P>(d) The terms <E T="03">program or activity</E> and <E T="03">program</E> mean all of the operations of any entity described in paragraphs (d)(1) through (4) of this section, any part of which is extended Federal financial assistance:</P>
              <P>(1)(i) A department, agency, special purpose district, or other instrumentality of a State or of a local government; or</P>
              <P>(ii) The entity of such State or local government that distributes such assistance and each such department or agency (and each other State or local government entity) to which the assistance is extended, in the case of assistance to a State or local government;</P>
              <P>(2)(i) A college, university, or other postsecondary institution, or a public system of higher education; or</P>
              <P>(ii) A local educational agency (as defined in 20 U.S.C. 7801), system of vocational education, or other school system;</P>

              <P>(3)(i) An entire corporation, partnership, or other private organization, or an entire sole proprietorship—<PRTPAGE P="66"/>
              </P>
              <P>(A) If assistance is extended to such corporation, partnership, private organization, or sole proprietorship as a whole; or</P>
              <P>(B) Which is principally engaged in the business of providing education, health care, housing, social services, or parks and recreation; or</P>
              <P>(ii) The entire plant or other comparable, geographically separate facility to which Federal financial assistance is extended, in the case of any other corporation, partnership, private organization, or sole proprietorship; or</P>
              <P>(4) Any other entity which is established by two or more of the entities described in paragraph (d)(1), (2), or (3) of this section.</P>
              <P>(e) The term <E T="03">facility</E> includes all or any portion of structure, equipment, or other real or personal property or interests therein, and the provision of facilities includes the construction, expansion, renovation, remodeling, alteration or acquisition of facilities.</P>
              <P>(f) The term <E T="03">recipient</E> means any State, political subdivision of any State, or instrumentality of any State or political subdivision, any public or private agency, institution, or organization, or other entity, or any individual, in any State, to whom Federal financial assistance is extended, directly or through another recipient, including any successor, assign, or transferee thereof, but such term does not include any ultimate beneficiary.</P>
              <P>(g) The term <E T="03">primary recipient</E> means any recipient which is authorized or required to extend Federal financial assistance to another recipient.</P>
              <P>(h) The term <E T="03">applicant</E> means one who submits an application, request, or plan required to be approved by a responsible agency official, or by a primary recipient, as a condition to eligibility for Federal financial assistance, and the term <E T="03">application</E> means such an application, request, or plan.</P>
              <CITA>[30 FR 321, Jan. 9, 1965. Redesignated at 45 FR 44575, July 1, 1980, and further redesignated at 55 FR 23078, June 6, 1990. 68 FR 51379, Aug. 26, 2003]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>§ 7.3</SECTNO>
              <SUBJECT>Application of this regulation.</SUBJECT>
              <P>No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be otherwise subjected to discrimination under any program to which this regulation applies.</P>
              <CITA>[68 FR 51379, Aug. 26, 2003]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>§ 7.4</SECTNO>
              <SUBJECT>Further application of this regulation.</SUBJECT>
              <P>This regulation applies to any program for which Federal financial assistance is authorized under a law administered by the Federal Emergency Management Agency. It applies to money paid, property transferred, or other Federal financial assistance extended after the effective date of the regulation pursuant to an application approved prior to such effective date. This regulation does not apply to (a) any Federal financial assistance by way of insurance or guaranty contracts, (b) money paid, property transferred, or other assistance extended before the effective date of this regulation, (c) any assistance to any individual who is the ultimate beneficiary, or (d) any employment practice, under such program, of any employer, employment agency, or labor organization.</P>
              <SECAUTH>(Reorganization Plan No. 3 of 1978, E.O. 12127 and E.O. 12148)</SECAUTH>
              <CITA>[30 FR 321, Jan. 9, 1965. Redesignated at 45 FR 44575, July 1, 1980, as amended at 48 FR 44543, Sept. 29, 1983; 68 FR 51379, Aug. 26, 2003]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>§ 7.5</SECTNO>
              <SUBJECT>Specific discriminatory actions prohibited.</SUBJECT>
              <P>(a) A recipient to which this regulation applies may not, directly or through contractual or other arrangements, on ground of race, color, or national origin:</P>
              <P>(1) Deny any individual any service, financial aid, or other benefit provided under the program;</P>
              <P>(2) Provide any service, financial aid, or other benefit to an individual which is different, or is provided in a different manner, from that provided to others under the program;</P>
              <P>(3) Subject an individual to segregation or separate treatment in any matter related to his receipt of any service, financial aid, or other benefit under the program;</P>

              <P>(4) Restrict an individual in any way in the enjoyment of any advantage or privilege enjoyed by others receiving <PRTPAGE P="67"/>any service, financial aid, or other benefit under the program;</P>
              <P>(5) Treat an individual differently from others in determining whether he satisfies any admission, enrollment, quota, eligibility, membership or other requirement or condition which individuals must meet in order to be provided any service, financial aid, or other benefit provided under the program;</P>
              <P>(6) Deny an individual an opportunity to participate in the program through the provision of services or otherwise or afford him an opportunity to do so which is different from that afforded others under the program.</P>
              <P>(b) A recipient, in determining the types of services, financial aid, or other benefits, or facilities which will be provided under any such program, or the class of individuals to whom, or the situations in which, such services, financial aid, other benefits, or facilities will be provided under any such program, or the class of individuals to be afforded an opportunity to participate in any such program, may not, directly or through contractual or other arrangements, utilize criteria or methods of administration which have the effect of subjecting individuals to discrimination because of their race, color, or national origin, or have the effect of defeating or substantially impairing accomplishment of the objectives of the program as respect individuals of a particular race, color, or national origin.</P>
              <P>(c) As used in this section the services, financial aid, or other benefits provided under a program receiving Federal financial assistance shall be deemed to include any service, financial aid, or other benefit provided in or through a facility provided with the aid of Federal financial assistance.</P>
              <P>(d) The enumeration of specific forms of prohibited discrimination in this section does not limit the generality of the prohibition in section 4.</P>
              <CITA>[30 FR 321, Jan. 9, 1965. Redesignated at 45 FR 44575, July 1, 1980, and further redesignated at 55 FR 23078, June 6, 1990. 68 FR 51379, Aug. 26, 2003]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>§ 7.6</SECTNO>
              <SUBJECT>Life, health, and safety.</SUBJECT>
              <P>Notwithstanding the provisions of section 5, a recipient of Federal financial assistance shall not be deemed to have failed to comply with section 3, if immediate provision of a service or other benefit to an individual is necessary to prevent his death or serious impairment of his health or safety.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 7.7</SECTNO>
              <SUBJECT>Assurances required.</SUBJECT>
              <P>Every application for Federal financial assistance to which this regulation applies, and every application for Federal financial assistance to provide a facility shall, as a condition to its approval and the extension of any Federal financial assistance pursuant to the application, contain or be accompanied by an assurance that the program will be conducted or the facility operated in compliance with all requirements imposed by or pursuant to this regulation. In the case of an application for Federal financial assistance to provide real property or structures thereon, the assurance shall obligate the recipient, or, in the case of a subsequent transfer, the transferee, for the period during which the real property or structures are used for a purpose for which the Federal financial assistance is extended or for another purpose involving the provision of similar services or benefits. In the case of personal property the assurance shall obligate the recipient for the period during which he retains ownership or possession of the property. In all other cases the assurance shall obligate the recipient for the period during which Federal financial assistance is extended pursuant to the application. The responsible agency official shall specify the form of the foregoing assurances and the extent to which like assurances will be required of subgrantee, contractors and subcontractors, transferees, successors in interest, and other participants. Any such assurance shall include provisions which give the United States a right to seek its judicial enforcement.</P>
              <CITA>[30 FR 321, Jan. 9, 1965. Redesignated at 45 FR 44575, July 1, 1980, and further redesignated at 55 FR 23078, June 6, 1990. 68 FR 51379, Aug. 26, 2003]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>§ 7.8</SECTNO>
              <SUBJECT>Elementary and secondary schools.</SUBJECT>

              <P>The requirements of section 7 with respect to any elementary or secondary school or school system shall be deemed to be satisfied if such school or <PRTPAGE P="68"/>school system (a) is subject to a final order of a court of the United States for the desegregation of such school or school system, and provides an assurance that it will comply with such order, including any future modification of such order, or (b) submits a plan for the desegregation of such school orschool system which the United States Commissioner of Education determines is adequate to accomplish the purpose of the Act and this regulation, and provides reasonable assurance that it will carry out such plans; in any case of continuing Federal financial assistance the responsible agency official may reserve the right to redetermine, after such period as may be specified by him, the adequacy of the plan to accomplish the purposes of the Act and this regulation. In any case to which a final order of a court of the United States for the desegregation of such school or school system is entered after submission of such a plan, such plan shall be revised to conform to such final order, including any future modification of such order.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 7.9</SECTNO>
              <SUBJECT>Assurances from institutions.</SUBJECT>
              <P>(a) In the case of any application for Federal financial assistance to an institution of higher education, the assurance required by section 7 shall extend to admission practices and to all other practices relating to the treatment of students.</P>
              <P>(b) The assurances required with respect to an institution of higher education, hospital, or any other institution, insofar as the assurance relates to the institution's practices with respect to admission or other treatment of individuals as students, patients, or clients of the institutions or to the opportunity to participate in the provision of services or other benefits to such individuals, shall be applicable to the entire institution.</P>
              <CITA>[30 FR 321, Jan. 9, 1965. Redesignated at 45 FR 44575, July 1, 1980, and further redesignated at 55 FR 23078, June 6, 1990. 68 FR 51379, Aug. 26, 2003]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>§ 7.10</SECTNO>
              <SUBJECT>Compliance information.</SUBJECT>
              <P>(a) <E T="03">Cooperation and assistance.</E> The responsible official in the Federal Emergency Management Agency shall to the fullest extent practicable seek the cooperation of recipients in obtaining compliance with this regulation and shall provide assistance and guidance to recipients to help them comply voluntarily with this regulation.</P>
              <P>(b) <E T="03">Compliance reports.</E> Each recipient shall keep such records and submit to the responsible agency official or his designee timely, complete, and accurate compliance reports at such times, and in such form and containing such information, as the responsible agency official or his designee may determine to be necessary to enable him to ascertain whether the recipient has complied or is complying with this regulation. In the case in which a primary recipient extends Federal financial assistance to any other recipient, such other recipient shall also submit such compliance reports to the primary recipient as may be necessary to enable the primary recipient to carry out its obligations under this regulation.</P>
              <P>(c) <E T="03">Access to sources of information.</E> Each recipient shall permit access by the responsible agency official or his designee during normal business hours to such of its books, records, accounts, and other sources of information, and its facilities as may be pertinent to ascertain compliance with this regulation. Where any information required of a recipient is in the exclusive possession of any other agency, institution or person and this agency, institution or person shall fail or refuse to furnish this information, the recipient shall so certify in its report and shall set forth what efforts it has made to obtain the information.</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 regulation and its applicability to the program for which the recipient receives Federal financial assistance, and make such information available to them in such manner, as the responsible agency official finds necessary to apprise such persons of the protectionagainst discrimination assured them by the Act and this regulation.</P>
              <CITA>[30 FR 321, Jan. 9, 1965. Redesignated at 45 FR 44575, July 1, 1980, and further redesignated at 55 FR 23078, June 6, 1990. 68 FR 51379, Aug. 26, 2003]</CITA>
            </SECTION>
            <SECTION>
              <PRTPAGE P="69"/>
              <SECTNO>§ 7.11</SECTNO>
              <SUBJECT>Conduct of investigations.</SUBJECT>
              <P>(a) <E T="03">Periodic compliance reviews.</E> The responsible agency official or his designee shall from time to time review the practices of recipients to determine whether they are complying with this regulation.</P>
              <P>(b) <E T="03">Complaints.</E> Any person who believes himself or any specific class of individuals to be subjected to discrimination prohibited by this regulation may by himself or by a representative file a written complaint with the National Headquarters or any Regional Office of the Federal Emergency Management Agency. A complaint must be filed not later than 180 days from the date of the alleged discrimination, unless the time for filing is extended by the responsible agency official or his designee.</P>
              <P>(c) <E T="03">Investigations.</E> The responsible agency official or his designee will make a prompt investigation whenever a compliance review, report, complaint, or any other information indicates a possible failure to comply with this regulation. The investigation should include, where appropriate, a review of the pertinent practices and policies of the recipient, the circumstances under which the possible noncompliance with this regulation occurred, and other factors relevant to a determination as to whether the recipient has failed to comply with this regulation.</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 regulation, the responsible agency official or his designee will so inform the recipient and the matter will be resolved by informal means whenever possible. If it has been determined that the matter cannot be resolved by informal means, action will be taken as provided for in section 12.</P>
              <P>(2) If an investigation does not warrant action pursuant to paragraph (d)(1) of this section the responsible agency official or his designee will so inform the recipient and the complainant, if any, in writing.</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 regulation, or because he has made a complaint, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this regulation. The identity of complainants shall be kept confidential except to the extent necessary to carry out the purposes of this regulation, including the conduct of any investigation, hearing, or judicial proceeding arising thereunder.</P>
              <CITA>[30 FR 321, Jan. 9, 1965. Redesignated at 45 FR 44575, July 1, 1980, and further redesignated at 55 FR 23078, June 6, 1990, as amended at 64 FR 38309, July 16, 1999]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>§ 7.12</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 regulation, and if the noncompliance or threatened noncompliance cannot be corrected by informal means, compliance with this regulation may be effected by the suspension or termination of or refusal to grant or to continue Federal financial assistance or by any other means authorized by law. Such other means may include, but are not limited to, (1) a reference to the Department of Justice with a recommendation that appropriate proceedings be brought to enforce any rights of the United States under any law of the United States (including other titles of the Act), or any assurance or other contractual undertaking, and (2) any applicable proceeding under state or local law.</P>
              <P>(b) <E T="03">Noncompliance with section 7.</E> If an applicant fails or refuses to furnish an assurance required under section 7 or otherwise fails or refuses to comply with a requirement imposed by or pursuant to that section Federal financial assistance may be refused in accordance with the procedures of paragraph (c) of this section. The agency shall not be required to provide assistance in such a case during the pendency of the administrative proceedings under such paragraph except that the agency shall continue assistance during the pendency of such proceedings where such assistance is due and payable pursuant to an application thereof approved <PRTPAGE P="70"/>prior to the effective date of this regulation.</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 (1) the responsible agency official has advised the applicant or recipient of his failure to comply and has determined that compliance cannot be secured by voluntary means, (2) there has been an express finding on the record, after opportunity for hearing, of a failure by the applicant or recipient to comply with a requirement imposed by or pursuant to this regulation, (3) the action has been approved by the Director of the Federal Emergency Management Agency pursuant to section 14, and (4) the expiration of 30 days after the Director has filed with the committee of the House and the committee of the Senate having legislative jurisdiction over the program involved, a full written report of the circumstances and the grounds for such action. Any action to suspend or terminate or to refuse to grant or to continue Federal financial assistance shall be limited to the particular political entity, or part thereof, or other applicant or recipient as to whom such a finding has been made and shall be limited in its effect to the particular program, or part thereof, in which such noncompliance has been so found.</P>
              <P>(d) <E T="03">Other means authorized by law.</E> No action to effect compliance by any other means authorized by law shall be taken until (1) the responsible agency official has determined that compliance cannot be secured by voluntary means, (2) the action has been approved by the Director of the Federal Emergency Management Agency, (3) the recipient or other person has been notified of its failure to comply and of the action to be taken to effect compliance, and (4) the expiration of at least 10 days from the mailing of such notice to the recipient or other person. During this period of at least 10 days additional efforts shall be made to persuade the recipient or other person to comply with the regulation and to take such corrective action as may be appropriate.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 7.13</SECTNO>
              <SUBJECT>Hearings.</SUBJECT>
              <P>(a) <E T="03">Opportunity for hearing.</E> Whenever an opportunity for a hearing is required by section 12(c), reasonable notice shall be given by registered or certified mail, return receipt requested, to the affected applicant or recipient. This notice shall advise the applicant or recipient of the action proposed to be taken, the specific provision under which the proposed action against it is to be taken, and the matters of fact or law asserted as the basis for this action, and either (1) fix a date not less than 20 days after the date of such notice within which the applicant or recipient may request of the responsible agency official that the matter be scheduled for hearing or (2) advise the applicant or recipient that the matter in question has been set down for hearing at a stated place and time. The time and place so fixed shall be reasonable and shall be subject to change for cause. The complainant, if any, shall be advised of the time and place of the hearing. An applicant or recipient may waive a hearing and submit written information and argument for the record. The failure of an applicant or recipient to request a hearing under this subsection or to appear at a hearing for which a date has been set shall be deemed to be a waiver of the right to a hearing under section 602 of the Act and section 12(c) of this regulation and consent to the making of a decision on the basis of such information as is available.</P>
              <P>(b) <E T="03">Time and place of hearing.</E> Hearings shall be held at the National Headquarters of the Federal Emergency Management Agency in Washington, DC, at a time fixed by the responsible agency official unless he determines that the convenience of the applicant or recipient or of the agency requires that another place be selected. Hearings shall be held before the responsible agency official or, at his discretion, before a hearing examiner designated in accordance with section 11 of the Administrative Procedure Act.</P>
              <P>(c) <E T="03">Right to counsel.</E> In all proceedings under this section, the applicant or recipient and the agency shall have the right to be represented by counsel.<PRTPAGE P="71"/>
              </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 5-8 of the Administrative Procedure Act, and in accordance with such rules of procedure as are proper (and not inconsistent with this section) relating to the conduct of the hearing, giving of notices subsequent to those provided for in paragraph (a) of this section, taking of testimony, exhibits, arguments and briefs, requests for findings, and other related matters. Both the agency and the applicant or recipient shall be entitled to introduce all relevant evidence on the issues as stated in the notice for hearing or as determined by the officer conducting the hearing at the outset of or during the hearing.</P>
              <P>(2) Technical rules of evidence shall not apply to hearings conducted pursuant to this regulation, but rules or principles designed to assure production of the most credible evidence available and to subject testimony to test by cross-examination shall be applied where reasonably necessary by the officer conducting the hearing. The hearing officer may exclude irrelevant, immaterial, or unduly repetitious evidence. All documents and other evidence offered or taken for the record shall be open to examination by the parties and opportunity shall be given to refute facts and arguments advanced on either side of the issues. A transcript shall be made of the oral evidence except to the extent the substance thereof is stipulated for the record. All decisions shall be based upon the hearing record and written findings shall be made.</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 regulation with respect to two or more Federal statutes, authorities, or other means by which Federal financial assistance is extended and to which this regulation applies, or noncompliance with this regulation and the regulations of one or more other Federal departments or agencies issued under title VI of the Act, the Director of the Federal Emergency Management Agency may, by agreement with such other departments or agencies where applicable, provide for the conduct of consolidated or joint hearings, and for the application to such hearings of rules of procedures not inconsistent with this regulation. Final decisions in such cases, insofar as this regulation is concerned, shall be made in accordance with section 14.</P>
              <CITA>[30 FR 321, Jan. 9, 1965. Redesignated at 45 FR 44575, July 1, 1980, and further redesignated at 55 FR 23078, June 6, 1990. 68 FR 51379, Aug. 26, 2003]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>§ 7.14</SECTNO>
              <SUBJECT>Decisions and notices.</SUBJECT>
              <P>(a) <E T="03">Decision by person other than the responsible agency official.</E> If the hearing is held by a hearing examiner such hearing examiner shall either make an initial decision, if so authorized, or certify the entire record including his recommended findings and proposed decision to the responsible agency official for a final decision, and a copy of such initial decision or certification shall be mailed to the applicant or recipient. Where the initial decision is made by the hearing examiner the applicant or recipient may within 30 days of the mailing of such notice of initial decision file with the responsible agency official his exceptions to the initial decision, with his reasons therefor. In the absence of exceptions, the responsible agency official may on his own motion within 45 days after the initial decision serve on the applicant or recipient a notice that he will review the decision. Upon the filing of such exceptions or of such notice of review the responsible agency official shall review the initial decision and issue his own decision thereon including the reasons therefor. In the absence of either exceptions or a notice of review the initial decision shall constitute the final decision of the responsible agency official.</P>
              <P>(b) <E T="03">Decisions on record or review by the responsible agency official.</E> Whenever a record is certified to the responsible agency official for decision or he reviews the decision of a hearing examiner pursuant to paragraph (a) of this section, or whenever he conducts the hearing, the applicant or recipient shall be given reasonable opportunity to file with him briefs or other written statements of its contentions, and a <PRTPAGE P="72"/>copy of his final decision shall be given in writing 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 section 13(a) a decisionshall be made by the responsible agency official on the record and a copy of such decision shall be given in writing to the applicant or recipient, and to the complainant, if any.</P>
              <P>(d) <E T="03">Rulings required.</E> Each decision of a hearing officer or responsible agency official shall set forth his ruling on each finding, conclusion, or exception presented, and shall identify the requirement or requirements imposed by or pursuant to this regulation with which it is found that the applicant or recipient has failed to comply.</P>
              <P>(e) <E T="03">Approval by Director.</E> Any final decision of a responsible agency official (other than the Director of the agency) which provides for the suspension or termination of, or the refusal to grant or continue Federal financial assistance, or the imposition of any other sanction available under this regulation or the Act, shall promptly be transmitted to the Director of the Federal Emergency Management Agency who may approve such decision, may vacate it, or remit or mitigate any sanction imposed.</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, to which this regulation applies, and may contain such terms, conditions, and other provisions as are consistent with and will effectuate the purposes of the Act and this regulation, including provisions designed to assure that no Federal financial assistance to which this regulation applies will thereafter be extended to the applicant or recipient determined by such decision to be in default in its performance of an assurance given by it pursuant to this regulation, or to have otherwise failed to comply with this regulation, unless and until it corrects its noncompliance and satisfies the Director of the Federal Emergency Management Agency that it will fully comply with this regulation.</P>
              <CITA>[30 FR 321, Jan. 9, 1965. Redesignated at 45 FR 44575, July 1, 1980, and further redesignated at 55 FR 23078, June 6, 1990. 68 FR 51379, Aug. 26, 2003]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>§ 7.15</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>§ 7.16</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 heretofore issued by any officer of the Federal Emergency Management Agency which impose requirements designed to prohibit any discrimination against individuals on the ground of race, color, or national origin under any program to which this regulation applies, and which authorize the suspension or termination of or refusal to grant or to continue Federal financial assistance to any applicant for or recipient of such assistance for failure to comply with such requirements, are hereby superseded to the extent that such discrimination is prohibited by this regulation, except that nothing in this regulation shall be deemed to relieve any person of any obligation assumed or imposed under any such superseded regulation, order, instruction, or like direction prior to the effective date of this regulation. Nothing in this regulation, however, shall be deemed to supersede Executive Orders 10925 and 11114 (including future amendments thereof) and regulations issued thereunder, or any other regulations or instructions, insofar as such regulations or instructions prohibit discrimination on the ground of race, color, or national origin in any program or situation to which this regulation is inapplicable, or prohibit discrimination on any other ground.</P>
              <P>(b) <E T="03">Forms and instructions.</E> Each responsible agency official shall issue and promptly make available to interested persons forms and detailed instructions and procedures for effectuating this regulation as applied to programs to which this regulation applies and for which he is responsible.<PRTPAGE P="73"/>
              </P>
              <P>(c) <E T="03">Supervision and coordination.</E> The Director of the Federal Emergency Management Agency may from time to time assign to officials of other departments or agencies of the Government with the consent of such departments or agencies, responsibilities in connection with the effectuation of the purposes of title VI of the Act and this regulation (other than responsibility for final decision as provided in section14), including the achievement of effective coordination and maximum uniformity within the agency and within the Executive Branch of the Government in the application of title VI and this regulation to similar programs and in similar situations.</P>
              <CITA>[30 FR 321, Jan. 9, 1965. Redesignated at 45 FR 44575, July 1, 1980, and further redesignated at 55 FR 23078, June 6, 1990. 68 FR 51379, Aug. 26, 2003]</CITA>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <RESERVED>Subparts B-D [Reserved]</RESERVED>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart E—Nondiscrimination on the Basis of Age in Programs or Activities Receiving Federal Financial Assistance From FEMA</HD>
            <AUTH>
              <HD SOURCE="HED">Authority:</HD>

              <P>Age Discrimination Act of 1975, as amended (42 U.S.C. 6101 <E T="03">et seq.</E>); 45 CFR part 90.</P>
            </AUTH>
            <TEXT>
              <SOURCE>
                <HD SOURCE="HED">Source:</HD>
                <P>55 FR 23078, June 6, 1990, unless otherwise noted.</P>
              </SOURCE>
            </TEXT>
            <SUBJGRP>
              <HD SOURCE="HED">General</HD>
              <SECTION>
                <SECTNO>§ 7.910</SECTNO>
                <SUBJECT>What is the purpose of the Age Discrimination Act of 1975?</SUBJECT>
                <P>The Age Discrimination Act of 1975 (the “Act”), as amended, is designed to prohibit discrimination on the basis of age in programs or activities receiving Federal financial assistance. The Act also permits federally-assisted programs or activities, and recipients of Federal funds, to continue to use certain age distinctions and factors other than age which meet the requirements of the Act and this regulation.</P>
                <CITA>[55 FR 23078, June 6, 1990, as amended at 68 FR 51380, Aug. 26, 2003]</CITA>
              </SECTION>
              <SECTION>
                <SECTNO>§ 7.911</SECTNO>
                <SUBJECT>What is the purpose of FEMA's age discrimination regulation?</SUBJECT>
                <P>The purpose of this regulation is to set out FEMA's policies and procedures under the Age Discrimination Act of 1975 and the general governmentwide regulations, 45 CFR part 90. The Act and the general regulations prohibit discrimination on the basis of age in programs or activities receiving Federal financial assistance. The Act and the general regulations permit federally-assisted programs or activities, and recipients of Federal funds, to continue to use age distinctions and factors other than age which meet the requirements of the Act and its implementing regulations.</P>
                <CITA>[55 FR 23078, June 6, 1990, as amended at 68 FR 51380, Aug. 26, 2003]</CITA>
              </SECTION>
              <SECTION>
                <SECTNO>§ 7.912</SECTNO>
                <SUBJECT>To what programs or activities does this regulation apply?</SUBJECT>
                <P>(a) The Act and this regulation apply to each FEMA recipient and to each program or activity operated by the recipient which receives Federal financial assistance provided by FEMA.</P>
                <P>(b) The Act and this regulation do not apply to:</P>
                <P>(1) An age distinction contained in that part of a Federal, State or local statute or ordinance adopted by an elected, general purpose legislative body which:</P>
                <P>(i) Provides any benefits or assistance to persons based on age; or</P>
                <P>(ii) Establishes criteria for participation in age-related terms; or</P>
                <P>(iii) Describes intended beneficiaries or target groups in age-related terms.</P>

                <P>(2) Any employment practice of any employer, employment agency, labor organization, or any labor-management joint apprenticeship training program, except for any program or activity receiving Federal financial assistance for public service employment under the Job Training Partnership Act (29 U.S.C. 150, <E T="03">et seq.</E>)</P>
                <CITA>[55 FR 23078, June 6, 1990, as amended at 68 FR 51380, Aug. 26, 2003]</CITA>
              </SECTION>
              <SECTION>
                <SECTNO>§ 7.913</SECTNO>
                <SUBJECT>Definition of terms used in this regulation.</SUBJECT>
                <P>As used in this regulation, the term <E T="03">Act</E> means the Age Discrimination Act <PRTPAGE P="74"/>of 1975 as amended (title III of Pub. L. 94-135).</P>
                <P>
                  <E T="03">Action</E> means any act, activity, policy, rule, standard, or method of administration; or the use of any policy, rule, standard or method of administration.</P>
                <P>
                  <E T="03">Age</E> means how old a person is, or the number of years from the date of a person's birth.</P>
                <P>
                  <E T="03">Age distinction</E> means any action using age or an age-related term.</P>
                <P>
                  <E T="03">Age-related term</E> means a word or words which necessarily imply a particular age or range of ages (for example, <E T="03">children, older persons,</E> but not <E T="03">student</E>).</P>
                <P>
                  <E T="03">Agency</E> means the Federal Emergency Management Agency.</P>
                <P>
                  <E T="03">Director</E> means the Director of the Federal Emergency Management Agency.</P>
                <P>
                  <E T="03">Federal financial assistance</E> means any grant, entitlement, loan, cooperativeagreement, contract (other than a procurement contract or a contract of insurance or guaranty), or any other arrangement by which the agency provides or otherwise makes available assistance in the form of:</P>
                <P>(a) Funds; or</P>
                <P>(b) Services or Federal personnel; or</P>
                <P>(c) Real and personal property or any interest in or use of property, including:</P>
                <P>(1) Transfers or leases of property for less than fair market value or for reduced consideration; and</P>
                <P>(2) Proceeds from a subsequent transfer or lease of property if the Federal share of its fair market value is not returned to the Federal Government.</P>
                <P>
                  <E T="03">Normal operation</E> means the operation of a program or activity without significant changes that would impair its ability to meet its objective.</P>
                <P>
                  <E T="03">Program or activity</E> means all of the operations of any entity described in paragraphs (1) through (4) of this definition, any part of which is extended Federal financial assistance:</P>
                <P>(1)(i) A department, agency, special purpose district, or other instrumentality of a State or of a local government; or</P>
                <P>(ii) The entity of such State or local government that distributes such assistance and each such department or agency (and each other State or local government entity) to which the assistance is extended, in the case of assistance to a State or local government;</P>
                <P>(2)(i) A college, university, or other postsecondary institution, or a public system of higher education; or</P>
                <P>(ii) A local educational agency (as defined in 20 U.S.C. 7801), system of vocational education, or other school system;</P>
                <P>(3)(i) An entire corporation, partnership, or other private organization, or an entire sole proprietorship—</P>
                <P>(A) If assistance is extended to such corporation, partnership, private organization, or sole proprietorship as a whole; or</P>
                <P>(B) Which is principally engaged in the business of providing education, health care, housing, social services, or parks and recreation; or</P>
                <P>(ii) The entire plant or other comparable, geographically separate facility to which Federal financial assistance is extended, in the case of any other corporation, partnership, private organization, or sole proprietorship; or</P>
                <P>(4) Any other entity which is established by two or more of the entities described in paragraph (1), (2), or (3) of this definition.</P>
                <P>
                  <E T="03">Recipient</E> means any State or its political subdivision, any instrumentality of a State or its political subdivision, institution, organization, or other entity, or any person to which Federal financial assistance is extended, directly or through another recipient. Recipient includes any successor, assignee, or transferee, but excludes the ultimate beneficiary of the assistance.</P>
                <P>
                  <E T="03">Statutory objective</E> means any purpose of a program or activity expressly stated in any Federal statute, State statute or local statute or ordinance adopted by an elected, general purpose legislative body.</P>
                <P>
                  <E T="03">Subrecipient</E> means any of the entities in the definition of “recipient” to which a recipient extends or passes on Federal financial assistance. A subrecipient is generally regarded as a recipient of Federal financial assistance and has all the duties of a recipient in these regulations.<PRTPAGE P="75"/>
                </P>
                <P>
                  <E T="03">United States</E> includes the States of the United States, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, American Samoa, Guam, the Commonwealth of the Northern Mariana Islands, Wake Island, the Canal Zone, the Trust Territory of the Pacific Islands and all other territories and possessions of the United States. The term “State” also includes any one of the foregoing.</P>
                <CITA>[55 FR 23078, June 6, 1990, as amended at 68 FR 51380, Aug. 26, 2003]</CITA>
              </SECTION>
            </SUBJGRP>
            <SUBJGRP>
              <HD SOURCE="HED">Standards for Determining Age Discrimination</HD>
              <SECTION>
                <SECTNO>§ 7.920</SECTNO>
                <SUBJECT>Rules against discrimination.</SUBJECT>
                <P>The rules stated in this section are limited by the exceptions contained in §§ 7.921 and 7.922 of these regulations.</P>
                <P>(a) <E T="03">General rule:</E> No person in the United States shall, on the basis of age, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under, any program or activity receiving Federal financial assistance.</P>
                <P>(b) <E T="03">Specific rules:</E> A recipient may not, in any program or activity receiving Federal financial assistance, directly or through contractual licensing, or other arrangements, use age distinctions or take any other actions which have the effect, on the basis of age, of:</P>
                <P>(1) Excluding individuals from, denying them the benefits of, subjecting them to discrimination under, a program or activity receiving Federal financial assistance; or</P>
                <P>(2) Denying or limiting individuals in their opportunity to participate in any program or activity receiving Federal financial assistance. The specific forms of age discrimination listed in paragraph (b) of this section do not necessarily constitute a complete list.</P>
              </SECTION>
              <SECTION>
                <SECTNO>§ 7.921</SECTNO>
                <SUBJECT>Exceptions to the rules against age discrimination: Normal operation or statutory objective of any program or activity.</SUBJECT>
                <P>A recipient is permitted to take an action, otherwise prohibited by § 7.920, if the action reasonably takes into account age as a factor necessary to the normal operation of the achievement of any statutory objective of a program or activity. An action reasonably takes into account age as a factor necessary to the normal operation or the achievement of any statutory objective of a program or activity, if:</P>
                <P>(a) Age is used as a measure or approximation of one or more other characteristics; and</P>
                <P>(b) The other characteristic(s) must be measured or approximated in order for the normal operation of the program or activity to continue, or to achieve any statutory objective of the program or activity; and</P>
                <P>(c) The other characteristic(s) can be reasonably measured or approximated by the use of age; and</P>
                <P>(d) The other characteristic(s) are impractical to measure directly on an individual basis.</P>
              </SECTION>
              <SECTION>
                <SECTNO>§ 7.922</SECTNO>
                <SUBJECT>Exceptions to the rules against age discrimination: Reasonable factors other than age.</SUBJECT>
                <P>A recipient is permitted to take an action otherwise prohibited by § 7.920 which is based on a factor other than age, even though that action may have a disproportionate effect on persons of different ages only if the factor bears a direct and substantial relationship to the normal operation of the program or activity or to the achievement of a statutory objective.</P>
              </SECTION>
              <SECTION>
                <SECTNO>§ 7.923</SECTNO>
                <SUBJECT>Burden of proof for exceptions.</SUBJECT>
                <P>The burden of proving that an age distinction or other action falls within the exceptions outlined in §§ 7.921 and 7.922 is on the recipient of Federal financial assistance.</P>
              </SECTION>
              <SECTION>
                <SECTNO>§ 7.924</SECTNO>
                <SUBJECT>Affirmative action by recipient.</SUBJECT>
                <P>Even in the absence of a finding of discrimination, a recipient may take affirmative action to overcome the effects of conditions that resulted in the limited participation in the recipient's program or activity on the basis of age.</P>
              </SECTION>
              <SECTION>
                <SECTNO>§ 7.925</SECTNO>
                <SUBJECT>Special benefits for children and the elderly.</SUBJECT>

                <P>If a recipient operating a program or activity provides special benefits to the elderly or to children, such use of age distinctions shall be presumed to be necessary to the normal operation <PRTPAGE P="76"/>of the program or activity, notwithstanding the provisions of § 7.921.</P>
                <CITA>[55 FR 23078, June 6, 1990, as amended at 68 FR 51380, Aug. 26, 2003]</CITA>
              </SECTION>
              <SECTION>
                <SECTNO>§ 7.926</SECTNO>
                <SUBJECT>Age distinctions contained in FEMA regulations.</SUBJECT>
                <P>Any age distinctions contained in a rule or regulation issued by FEMA shall be presumed to be necessary to the achievement of a statutory objective of the program or activity to which the rule or regulation applies, notwithstanding the provisions of § 7.921.</P>
                <CITA>[55 FR 23078, June 6, 1990, as amended at 68 FR 51380, Aug. 26, 2003]</CITA>
              </SECTION>
            </SUBJGRP>
            <SUBJGRP>
              <HD SOURCE="HED">Duties of FEMA Recipients</HD>
              <SECTION>
                <SECTNO>§ 7.930</SECTNO>
                <SUBJECT>General responsibilities.</SUBJECT>
                <P>Each FEMA recipient has primary responsibility to ensure that its programs or activities are in compliance with the Act and this regulation, and shall take steps to eliminate violations of the Act. A recipient also has responsibility to maintain records, provide information, and to afford FEMA access to its records to the extent FEMA finds necessary to determine whether the recipient is in compliance with the Act and this regulation.</P>
                <CITA>[55 FR 23078, June 6, 1990, as amended at 68 FR 51380, Aug. 26, 2003]</CITA>
              </SECTION>
              <SECTION>
                <SECTNO>§ 7.931</SECTNO>
                <SUBJECT>Notice to subrecipients and beneficiaries.</SUBJECT>
                <P>(a) Where a recipient passes on Federal financial assistance from FEMA to subrecipients, the recipient shall provide the subrecipients written notice of their obligations under the Act and this regulation.</P>
                <P>(b) Each recipient shall make necessary information about the Act and this regulation available to its beneficiaries in order to inform them about the protection against discrimination provided by the Act and this regulation.</P>
                <CITA>[55 FR 23078, June 6, 1990, as amended at 68 FR 51380, Aug. 26, 2003]</CITA>
              </SECTION>
              <SECTION>
                <SECTNO>§ 7.932</SECTNO>
                <SUBJECT>Assurance of compliance and recipient assessment of age distinctions.</SUBJECT>
                <P>(a) Each recipient of Federal financial assistance from FEMA shall sign a written assurance as specified by FEMA that it will comply with Act and this regulation.</P>
                <P>(b) Recipient assessment of age distinctions. (1) As part of the compliance review under § 7.940 or complaint investigation under § 7.943, FEMA may require a recipient employing the equivalent of fifteen or more employees to complete written evaluation, in a manner specified by the responsible Agency official, of any age distinction imposed in its program or activity receiving Federal financial assistance from FEMA to assess the recipient's compliance with the Act.</P>
                <P>(2) Whenever an assessment indicates a violation of the Act and the FEMA regulations, the recipient shall take corrective action.</P>
              </SECTION>
              <SECTION>
                <SECTNO>§ 7.933</SECTNO>
                <SUBJECT>Information requirement.</SUBJECT>
                <P>Each recipient shall:</P>
                <P>(a) Keep records in a form acceptable to FEMA and containing information which FEMA determines are necessary to ascertain whether the recipient is complying with the Act and this regulation.</P>
                <P>(b) Provide to FEMA, upon request, information and reports which FEMA determines are necessary to ascertain whether the recipient is complying with the Act and this regulation.</P>
                <P>(c) Permit FEMA reasonable access to the books, records, accounts, and other recipient facilities and sources of information to the extent FEMA determines is necessary to ascertain whether the recipient is complying with the Act and this regulation.</P>
              </SECTION>
            </SUBJGRP>
            <SUBJGRP>
              <HD SOURCE="HED">Investigation, Conciliation, and Enforcement Procedures</HD>
              <SECTION>
                <SECTNO>§ 7.940</SECTNO>
                <SUBJECT>Compliance reviews.</SUBJECT>

                <P>(a) FEMA may conduct compliance reviews and preaward reviews or use other similar procedures that will permit it to investigate and correct violations of the Act and this regulation. FEMA may conduct these reviews even <PRTPAGE P="77"/>in the absence of a complaint against a recipient. The reviews may be as comprehensive as necessary to determine whether a violation of the Act and this regulation has occurred.</P>
                <P>(b) If a compliance review or preaward review indicates a violation of the Act or this regulation, FEMA will attempt to achieve voluntary compliance with the Act. If voluntary compliance cannot be achieved, FEMA will arrange for enforcement as described in § 7.945.</P>
              </SECTION>
              <SECTION>
                <SECTNO>§ 7.941</SECTNO>
                <SUBJECT>Complaints.</SUBJECT>
                <P>(a) Any person, individually or as a member of a class or on behalf of others, may file a complaint with FEMA, alleging discrimination prohibited by the Act or these regulations occurring after the date of final adoption of this rule. A complainant shall file a complaint within 180 days from the date the complainant first had knowledge of the alleged act of discrimination. However, for good cause showing, FEMA may extend this time limit.</P>
                <P>(b) FEMA will consider the date a complaint is filed to be the date upon which the complaint is sufficient to be processed. A complaint is deemed “sufficient” when it contains particulars (e.g., names, addresses, and telephone numbers of parties involved; date(s) of alleged discrimination; kind(s) of alleged discrimination) upon which to begin an investigation.</P>
                <P>(c) FEMA will attempt to facilitate the filing of complaints wherever possible, including taking the following measures:</P>
                <P>(1) Accepting as a sufficient complaint any written statement which identifies the parties involved and the date the complainant first had knowledge of the alleged violation, describes generally the action or practice complained of, and is signed by the complainant.</P>
                <P>(2) Freely permitting a complainant to add information to the complaint to meet the requirements of a sufficient complaint.</P>
                <P>(3) Notifying the complainant and the recipient of their rights and obligations under the complaint procedure, including the right to have a representative at all stages of the complaint procedure.</P>
                <P>(4) Notifying the complainant and the recipient (or their representatives) of their right to contact FEMA for information and assistance regarding the complaint resolution process.</P>
                <P>(d) FEMA will return to the complainant any complaint outside the jurisdiction of this regulation, and will state the reason(s) why it is outside the jurisdiction of this regulation.</P>
              </SECTION>
              <SECTION>
                <SECTNO>§ 7.942</SECTNO>
                <SUBJECT>Mediation.</SUBJECT>
                <P>(a) FEMA will promptly refer to a mediation agency designated by the Director all sufficient complaints that:</P>
                <P>(1) Fall within the jurisdiction of the Act and this regulation, unless the age distinction complained of is clearly within an exception; and,</P>
                <P>(2) Contain all information necessary for further processing.</P>
                <P>(b) Both the complainant and the recipient shall participate in the mediation process to the extent necessary to reach an agreement or for the mediator to make an informed judgment that an agreement is not possible.</P>
                <P>(c) If the complainant and the recipient reach an agreement, the mediator shall prepare a written statement of the agreement and have the complainant and the recipient sign it. The mediator shall send a copy of the agreement to FEMA. FEMA will take no further action on the complaint unless the complainant or the recipient fails to comply with the agreement.</P>
                <P>(d) The mediator shall protect the confidentiality of all information obtained in the course of the mediation process. No mediator shall testify in any adjudicative proceeding, produce any document, or otherwise disclose any information obtained in the course of the mediation process without prior approval of the head of the mediation agency.</P>
                <P>(e) The mediation will proceed for a maximum of 60 days after a complaint is filed with FEMA. Mediation ends if:</P>
                <P>(1) Sixty days elapse from the time the complaint is filed; or</P>
                <P>(2) Prior to the end of that 60 day period, an agreement is reached; or</P>

                <P>(3) Prior to the end of that 60 day period, the mediator determines that an agreement cannot be reached. This 60 day period may be extended by the mediator, with the concurrence of FEMA, <PRTPAGE P="78"/>for not more than 30 days if the mediator determines agreement will likely be reached during such extended period.</P>
                <P>(f) The mediator shall return unresolved complaints to FEMA.</P>
              </SECTION>
              <SECTION>
                <SECTNO>§ 7.943</SECTNO>
                <SUBJECT>Investigation.</SUBJECT>
                <P>(a) <E T="03">Informal investigation.</E> (1) FEMA will investigate complaints that are unresolved after mediation or are reopened because of a violation of a mediation agreement.</P>
                <P>(2) As part of the initial investigation, FEMA will use informal fact finding methods, including joint or separate discussion with the complainant and recipient, to establish the facts and, if possible, settle the complaint on terms that are mutually agreeable to the parties. FEMA may seek the assistance of any involved state agency.</P>
                <P>(3) FEMA will put any agreement in writing and have it signed by the parties and an authorized official at FEMA.</P>
                <P>(4) The settlement shall not affect the operation of any other enforcement effort of FEMA, including compliance reviews and investigation of other complaints which may involve the recipient.</P>
                <P>(5) The settlement is not a finding of discrimination against a recipient.</P>
                <P>(b) <E T="03">Formal investigation.</E> If FEMA cannot resolve the complaint through informal investigation, it will begin to develop formal findings through further investigation of the complaint. If the investigation indicates a violation of this regulation, FEMA will attempt to obtain voluntary compliance, it will begin enforcement as described in § 7.945.</P>
                <CITA>[55 FR 23078, June 6, 1990, as amended at 68 FR 51380, Aug. 26, 2003]</CITA>
              </SECTION>
              <SECTION>
                <SECTNO>§ 7.944</SECTNO>
                <SUBJECT>Prohibition against intimidation or retaliation.</SUBJECT>
                <P>A recipient may not engage in acts of intimidation or retaliation against any person who:</P>
                <P>(a) Attempts to assert a right protected by the Act or this regulation; or</P>
                <P>(b) Cooperates in any mediation, investigation, hearing, or other part of FEMA's investigation, conciliation and enforcement process.</P>
              </SECTION>
              <SECTION>
                <SECTNO>§ 7.945</SECTNO>
                <SUBJECT>Compliance procedure.</SUBJECT>
                <P>(a) FEMA may enforce the Act and this regulation through:</P>
                <P>(1) Termination of a recipient's Federal financial assistance from FEMA under the program or activity involved where the recipient has violated the Act or this regulation. The determination of the recipient's violation may be made only after a recipient has had an opportunity for a hearing on the record before an administrative law judge.</P>
                <P>(2) Any other means authorized by law including but not limited to:</P>
                <P>(i) Referral to the Department of Justice for proceedings to enforce any rights of the United States or obligations of the recipient created by the Act or this regulation.</P>
                <P>(ii) Use of any requirement of or referral to any Federal, State or local government agency that will have the effect of correcting a violation of the Act or this regulation.</P>
                <P>(b) FEMA will limit any termination under § 7.945(a)(1) to the particular recipient and particular program or activity or part of such program or activity FEMA finds in violation of this regulation. FEMA will not base any part of a termination on a finding with respect to any program or activity of the recipient which does not receive Federal financial assistance from FEMA.</P>
                <P>(c) FEMA will take no action under paragraph (a) until:</P>
                <P>(1) The Director has advised the recipient of its failure to comply with the Act and this regulation and has determined that voluntary compliance cannot be obtained.</P>
                <P>(2) Thirty days have elapsed after the Director has sent a written report of the circumstances and grounds of the action to the committees of the Congress having legislative jurisdiction over the program or activity involved. The Director will file a report whenever any action is taken under paragraph (a).</P>
                <P>(d) FEMA also may defer granting new Federal financial assistance from FEMA to a recipient when a hearing under § 7.945(a)(1) is initiated.</P>

                <P>(1) New Federal financial assistance from FEMA includes all assistance for which FEMA requires an application or <PRTPAGE P="79"/>approval, including renewal or continuation of existing activities, or authorization of new activities, during the deferral period. New Federal financial assistance from FEMA does not include increases in funding as a result of changed computation of formula awards or assistance approved prior to the beginning of a hearing under § 7.945(a)(1).</P>
                <P>(2) FEMA will not begin a deferral until the recipient has received a notice of an opportunity for a hearing under § 7.945(a)(1). FEMA will not continue a deferral for more than 60 days unless a hearing has begun within that time or the time for beginning the hearing has been extended by mutual consent of the recipient for more than 30 days after the close of the hearing, unless the hearing results in a finding against the recipient.</P>
                <P>(3) FEMA will limit any deferral to the particular recipient and particular program or activity or part of such program or activity FEMA finds in violation of this regulation. FEMA will not base any part of a deferral on a finding with respect to any program or activity of the recipient which does not and would not, in connection with new funds, receive Federal financial assistance from FEMA.</P>
                <CITA>[55 FR 23078, June 6, 1990, as amended at 68 FR 51380, Aug. 26, 2003]</CITA>
              </SECTION>
              <SECTION>
                <SECTNO>§ 7.946</SECTNO>
                <SUBJECT>Hearings, decisions, post-termination proceedings.</SUBJECT>
                <P>Certain FEMA procedural provisions applicable to title VI of the Civil Rights Act of 1964 apply to FEMA enforcement of this regulation. They are found at 44 CFR 7.10 through 7.16.</P>
              </SECTION>
              <SECTION>
                <SECTNO>§ 7.947</SECTNO>
                <SUBJECT>Remedial action by recipient.</SUBJECT>
                <P>Where FEMA finds a recipient has discriminated on the basis of age, the recipient shall take any remedial action that FEMA may require to overcome the effects of the discrimination. If another recipient exercises control over the recipient that had discriminated, FEMA may require both recipients to take remedial action.</P>
              </SECTION>
              <SECTION>
                <SECTNO>§ 7.948</SECTNO>
                <SUBJECT>Alternate funds disbursal procedure.</SUBJECT>
                <P>(a) When FEMA withholds funds from recipient under this regulation, the Director may, if allowable under the statute governing the assistance, disburse the withheld funds directly to an alternate recipient: Any public or nonprofit private organization or agency, or State or political subdivision of the State.</P>
                <P>(b) The Director will require any alternate recipient to demonstrate:</P>
                <P>(1) The ability to comply with this regulation; and</P>
                <P>(2) The ability to achieve the goals of the Federal statute authorizing the Federal financial assistance.</P>
                <CITA>[55 FR 23078, June 6, 1990, as amended at 68 FR 51380, Aug. 26, 2003]</CITA>
              </SECTION>
              <SECTION>
                <SECTNO>§ 7.949</SECTNO>
                <SUBJECT>Exhaustion of administrative remedies.</SUBJECT>
                <P>(a) A complainant may file a civil action following the exhaustion of administrative remedies under the Act. Administrative remedies are exhausted if:</P>
                <P>(1) 180 days have elapsed since the complainant filed the complaint and FEMA had made no finding with regard to the complaint; or</P>
                <P>(2) FEMA issues any finding in favor of the recipient.</P>
                <P>(b) If FEMA fails to make a finding within 180 days or issues a finding in favor of the recipient, FEMA shall:</P>
                <P>(1) Promptly advise the complainant in writing of this fact; and</P>
                <P>(2) Advise the complainant of his or her right to bring a civil action for injunctive relief; and</P>
                <P>(3) Inform the complainant:</P>
                <P>(i) That the complainant may bring a civil action only in a United States District Court for the district in which the recipient is located or transacts business;</P>
                <P>(ii) That a complainant prevailing in a civil action has the right to be awarded the costs of the action, including reasonable attorney's fees, but that the complainant must demand these costs in the complaint at the time it is filed.</P>
                <P>(iii) That before commencing the action, the complainant shall give 30 days notice by registered mail to the Director, the Attorney General of the United States, and the recipient;</P>

                <P>(iv) That the notice must state: The alleged violation of the Act; the relief requested; the court in which the complainant is bringing the action; and <PRTPAGE P="80"/>whether or not attorney's fees are demanded in the event the complainant prevails; and</P>
                <P>(v) That the complainant may not bring an action if the same alleged violation of the Act by the same recipient is the subject of a pending action in any court (Federal or State) of the United States.</P>
              </SECTION>
            </SUBJGRP>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 8</EAR>
          <HD SOURCE="HED">PART 8—NATIONAL SECURITY INFORMATION</HD>
          <CONTENTS>
            <SECHD>Sec.</SECHD>
            <SECTNO>8.1</SECTNO>
            <SUBJECT>Purpose.</SUBJECT>
            <SECTNO>8.2</SECTNO>
            <SUBJECT>Original classification authority.</SUBJECT>
            <SECTNO>8.3</SECTNO>
            <SUBJECT>Senior FEMA official responsible for the information security program.</SUBJECT>
            <SECTNO>8.4</SECTNO>
            <SUBJECT>Mandatory declassification review procedures.</SUBJECT>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>Reorganization Plan No. 3 of 1978, E.O. 12148 and E.O. 12356.</P>
          </AUTH>
          <SECTION>
            <SECTNO>§ 8.1</SECTNO>
            <SUBJECT>Purpose.</SUBJECT>

            <P>(a) Section 5.3(b) of Executive Order (EO) 12356, “National Security Information” requires agencies to promulgate implementing policies and regulations. To the extent that these regulations affect members of the public, these policies are to be published in the <E T="04">Federal Register.</E>
            </P>
            <P>(b) This regulation provides public notification of the FEMA procedures for processing requests for the mandatory review of classified information pursuant to section 3.4(d) of E.O. 12356.</P>
            <CITA>[49 FR 24518, June 14, 1984, as amended at 49 FR 38119, Sept. 27, 1984; 50 FR 40006, Oct. 1, 1985]</CITA>
          </SECTION>
          <SECTION>
            <SECTNO>§ 8.2</SECTNO>
            <SUBJECT>Original classification authority.</SUBJECT>

            <P>(a) The Director, Federal Emergency Management Agency (FEMA), has the authority to classify information originally as TOP SECRET, as designated by the President in the <E T="04">Federal Register,</E> Vol 47, No. 91, May 11, 1982, in accordance with section 1.2(a)(2), E.O. 12356.</P>
            <P>(b) In accordance with section 1.2(d)(2), E.O. 12356, the following positions have been delegated ORIGINAL TOP SECRET CLASSIFICATION AUTHORITY by the Director, FEMA:</P>
            <P>(1) DEPUTY DIRECTOR, FEMA</P>
            <P>(2) ASSOCIATE DIRECTOR, NATIONAL PREPAREDNESS DIRECTORATE</P>
            <P>(3) DIRECTOR, OFFICE OF SECURITY</P>
            <P>(c) The positions delegated original Top Secret Classification Authority in paragraph (b) of this section, are also delegated Original Secret and Confidential Classification Authority by virtue of this delegation. The following positions have been delegated Original Secret and Original Confidential Classification Authority:</P>
            <P>(1) Associate Director, State and Local Programs and Support.</P>
            <P>(2) Regional Directors.</P>
            <FP>Any further delegation of original classification authority, for any classification level, will be accomplished only by the Director of the Federal Emergency Management Agency.</FP>
            <P>(d) The positions delegated ORIGINAL TOP SECRET CLASSIFICATION AUTHORITY in paragraph (b) of this section, are also delegated ORIGINAL SECRET and CONFIDENTIAL CLASSIFICATION AUTHORITY by virtue of this delegation. The positions delegated ORIGINAL SECRET CLASSIFICATION AUTHORITY in paragraph (c) of this section, are also delegatedORIGINAL CONFIDENTIAL CLASSIFICATION AUTHORITY by virtue of this delegation. Any further delegation of original classification authority, for any classification level, will be accomplished only by the Director of FEMA.</P>
            <CITA>[49 FR 24518, June 14, 1984 as amended at 51 FR 34605, Sept. 30, 1986; 53 FR 47210, Nov. 22, 1989; 56 FR 32328, July 16, 1991]</CITA>
          </SECTION>
          <SECTION>
            <SECTNO>§ 8.3</SECTNO>
            <SUBJECT>Senior FEMA official responsible for the information security program.</SUBJECT>
            <P>The Director of Security, FEMA, has been designated as the senior official to direct and administer the FEMA information security program, in accordance with section 5.3(a), E.O. 12356.</P>
            <CITA>[49 FR 24518, June 14, 1984]</CITA>
          </SECTION>
          <SECTION>
            <SECTNO>§ 8.4</SECTNO>
            <SUBJECT>Mandatory declassification review procedures.</SUBJECT>

            <P>(a) All information classified by FEMA under E.O. 12356 or predecessor orders shall be subject to a review for declassification if such a review is requested by a United States citizen or permanent resident alien, a Federal agency or a State or local government.<PRTPAGE P="81"/>
            </P>
            <P>(b) Requests for declassification review shall be submitted to the Office of Security, Federal Emergency Management Agency, Washington, DC 20472. All requests shall be in writing and reasonably describe the information sought with sufficient clarity to enable the appropriate FEMA component to identify the information sought. Any requests that do not sufficiently identify the information sought shall be returned to the requestor and he or she shall be asked to clarify the request and/or provide additional information.</P>
            <P>(c) If within 30 days the requestor does not respond to the agency's request for clarification or additional information, the FEMA Office of Security shall notify the requestor that no further action can be taken on the request. If the requestor's response to the agency's request for clarification and/or additional information is inadequate, the Office of Security shall notify him or her that no further action will be taken until such time as the agency is provided with adequate information concerning the request. In addition, the agency's response will set forth the agency's explanation of the deficiencies of the request.</P>
            <P>(d) Once a request meets the foregoing requirements for processing, it will be acted upon as follows:</P>
            <P>(1) Receipt of all requests shall be acknowledged within ten (10) working days.</P>
            <P>(2) FEMA action upon a request shall be completed within sixty (60) calendar days.</P>
            <P>(e) The Director of Security shall designate a FEMA component to conduct the declassification review. This will normally be the originating component. The designated program or staff office shall conduct the review and forward its recommendation(s) to the Office of Security. Information no longer requiring protection under E.O. 12356 shall be declassified and released unless withholding is otherwise authorized under applicable law. When information cannot be declassified in its entirety, FEMA will make a reasonable effort to release those declassified portions of the requested information that constitute a coherent segment. If the information may not be released in whole or part, the requestor shall be given a brief statement as to the reason for the denial, a notice of the right to appeal the determination to the Director of FEMA and a notice that such an appeal must be filed within sixty (60) calendar days to be considered.</P>
            <P>(f) If the request requires the rendering of services for which fees may be charged under 31 U.S.C. 9701, such fees may be imposed in accordance with the provisions of 44 CFR part 5, subpart C.</P>
            <P>(g) The following procedures shall be followed when denials of requests for declassification are appealed:</P>
            <P>(1) The Director shall, within fifteen (15) working days of receipt of the appeal, convene a meeting of the FEMA Information Security Oversight Committee (ISOC). Representation on the FEMA ISOC shall include the Director of Security or his/her representative, a representative of the component that denied the original request, a representative from the Office of General Counsel, a representative from the Office of External Affairs and the Chief of Staff or his/her representative.</P>
            <P>(2) If the ISOC upholds the appeal in its entirety, the information will be released in accordance with the provisions of paragraph (e) of this section.</P>
            <P>(3) If the ISOC denies the appeal, in part or in its entirety, then it will forward the appeal with its recommendation(s) to the Director of FEMA, for a final determination. A reply will be forwarded to the requestor enclosing the declassified releasable information if any, and an explanation for denying the request in whole or in part.</P>
            <P>(4) Final action on appeals shall be completed within thirty (30) working days of receipt of appeal.</P>
            <CITA>[49 FR 24518, June 14, 1984, as amended at 49 FR 38119, Sept. 27, 1984; 50 FR 40006, Oct. 1, 1985; 51 FR 34605, Sept. 30, 1986]</CITA>
          </SECTION>
        </PART>
        <PART>
          <EAR>Pt. 9</EAR>
          <HD SOURCE="HED">PART 9—FLOODPLAIN MANAGEMENT AND PROTECTION OF WETLANDS</HD>
          <CONTENTS>
            <SECHD>Sec.</SECHD>
            <SECTNO>9.1</SECTNO>
            <SUBJECT>Purpose of part.</SUBJECT>
            <SECTNO>9.2</SECTNO>
            <SUBJECT>Policy.</SUBJECT>
            <SECTNO>9.3</SECTNO>
            <SUBJECT>Authority.</SUBJECT>
            <SECTNO>9.4</SECTNO>
            <SUBJECT>Definitions.</SUBJECT>
            <SECTNO>9.5</SECTNO>
            <SUBJECT>Scope.</SUBJECT>
            <SECTNO>9.6</SECTNO>
            <SUBJECT>Decision-making process.</SUBJECT>
            <SECTNO>9.7</SECTNO>

            <SUBJECT>Determination of proposed action's location.<PRTPAGE P="82"/>
            </SUBJECT>
            <SECTNO>9.8</SECTNO>
            <SUBJECT>Public notice requirements.</SUBJECT>
            <SECTNO>9.9</SECTNO>
            <SUBJECT>Analysis and reevaluation of practicable alternatives.</SUBJECT>
            <SECTNO>9.10</SECTNO>
            <SUBJECT>Identify impacts of proposed actions.</SUBJECT>
            <SECTNO>9.11</SECTNO>
            <SUBJECT>Mitigation.</SUBJECT>
            <SECTNO>9.12</SECTNO>
            <SUBJECT>Final public notice.</SUBJECT>
            <SECTNO>9.13</SECTNO>
            <SUBJECT>Particular types of temporary housing.</SUBJECT>
            <SECTNO>9.14</SECTNO>
            <SUBJECT>Disposal of Agency property.</SUBJECT>
            <SECTNO>9.15</SECTNO>
            <SUBJECT>Planning programs affecting land use.</SUBJECT>
            <SECTNO>9.16</SECTNO>
            <SUBJECT>Guidance for applicants.</SUBJECT>
            <SECTNO>9.17</SECTNO>
            <SUBJECT>Instructions to applicants.</SUBJECT>
            <SECTNO>9.18</SECTNO>
            <SUBJECT>Responsibilities.</SUBJECT>
            <APP>Appendix A to Part 9—Decision-Making Process for E.O. 11988</APP>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>E.O. 11988 of May 24, 1977. 3 CFR, 1977 Comp., p. 117; E.O. 11990 of May 24 1977, 3 CFR, 1977 Comp. p. 121; Reorganization Plan No. 3 of 1978, 43 FR 41943, 3 CFR, 1978 Comp., p. 329; E.O. 12127 of March 31, 1979, 44 FR 19367, 3 CFR, 1979 Comp., p. 376; E.O. 12148 of July 20, 1979, 44 FR 43239, 3 CFR, 1979 Comp., p. 412, as amended.; E.O. 12127; E.O. 12148; 42 U.S.C. 5201.</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>45 FR 59526, Sept. 9, 1980, unless otherwise noted.</P>
          </SOURCE>
          <SECTION>
            <SECTNO>§ 9.1</SECTNO>
            <SUBJECT>Purpose of part.</SUBJECT>
            <P>This regulation sets forth the policy, procedure and responsibilities to implement and enforce Executive Order 11988, Floodplain Management, and Executive Order 11990, Protection of Wetlands.</P>
          </SECTION>
          <SECTION>
            <SECTNO>§ 9.2</SECTNO>
            <SUBJECT>Policy.</SUBJECT>
            <P>(a) FEMA shall take no action unless and until the requirements of this regulation are complied with.</P>
            <P>(b) It is the policy of the Agency to provide leadership in floodplain management and the protection of wetlands. Further, the Agency shall integrate the goals of the Orders to the greatest possible degree into its procedures for implementing NEPA. The Agency shall take action to:</P>
            <P>(1) Avoid long- and short-term adverse impacts associated with the occupancy and modification of floodplains and the destruction and modification of wetlands;</P>
            <P>(2) Avoid direct and indirect support of floodplain development and new construction in wetlands wherever there is a practicable alternative;</P>
            <P>(3) Reduce the risk of flood loss;</P>
            <P>(4) Promote the use of nonstructural flood protection methods to reduce the risk of flood loss;</P>
            <P>(5) Minimize the impact of floods on human health, safety and welfare;</P>
            <P>(6) Minimize the destruction, loss or degradation of wetlands;</P>
            <P>(7) Restore and preserve the natural and beneficial values served by floodplains;</P>
            <P>(8) Preserve and enhance the natural values of wetlands;</P>
            <P>(9) Involve the public throughout the floodplain management and wetlands protection decision-making process;</P>
            <P>(10) Adhere to the objectives of the Unified National Program for Floodplain Management; and</P>
            <P>(11) Improve and coordinate the Agency's plans, programs, functions and resources so that the Nation may attain the widest range of beneficial uses of the environment without degradation or risk to health and safety.</P>
          </SECTION>
          <SECTION>
            <SECTNO>§ 9.3</SECTNO>
            <SUBJECT>Authority.</SUBJECT>
            <P>The authority for these regulations is (a) Executive Order 11988, May 24, 1977, which replaced Executive Order 11296, August 10, 1966, (b) Executive Order 11990, May 24, 1977, (c) Reorganization Plan No. 3 of 1978 (43 FR 41943); and (d) Executive Order 12127, April 1, 1979 (44 FR 1936). E.O. 11988 was issued in furtherance of the National Flood Insurance Act of 1968, as amended (Pub.L. 90-488); the Flood Disaster Protection Act of 1973, as amended (Pub. L. 93-234); and the National Environmental Policy Act of 1969 (NEPA) (Pub. L. 91-190). Section 2(d) of Executive Order 11988 requires issuance of new or amended regulations and procedures to satisfy its substantive and procedural provisions. E.O. 11990 was issued in furtherance of NEPA, and at section 6 required issuance of new or amended regulations and procedures to satisfy its substantive and procedural provisions.</P>
            <CITA>[45 FR 59526, Sept. 9, 1980, as amended at 48 FR 44543, Sept. 29, 1983]</CITA>
          </SECTION>
          <SECTION>
            <SECTNO>§ 9.4</SECTNO>
            <SUBJECT>Definitions.</SUBJECT>
            <P>The following definitions shall apply throughout this regulation.</P>
            <P>
              <E T="03">Action</E> means any action or activity including: (a) Acquiring, managing and disposing of Federal lands and facilities; (b) providing federally undertaken, financed or assisted construction and improvements; and (c) conducting Federal activities and programs affecting land use, including, but not limited to, water and related <PRTPAGE P="83"/>land resources, planning, regulating and licensing activities.</P>
            <P>
              <E T="03">Actions Affecting or Affected by Floodplains or Wetlands</E> means actions which have the potential to result in the long- or short-term impacts associated with (a) the occupancy or modification of floodplains, and the direct or indirect support of floodplain development, or (b) the destruction and modification of wetlands and the direct or indirect support of new construction in wetlands.</P>
            <P>
              <E T="03">Agency</E> means the Federal Emergency Management Agency (FEMA).</P>
            <P>
              <E T="03">Agency Assistance</E> means grants for projects or planning activities, loans, and all other forms of financial or technical assistance provided by the Agency.</P>
            <P>
              <E T="03">Associate Director</E> means the head of any Office or Administration of the Federal Emergency Management Agency, who has programmatic responsibility for a particular action.</P>
            <P>
              <E T="03">Base Flood</E> means the flood which has a one percent chance of being equalled or exceeded in any given year (also known as a 100-year flood). This term is used in the National Flood Insurance Program (NFIP) to indicate the minimum level of flooding to be used by a community in its floodplain management regulations.</P>
            <P>
              <E T="03">Base Floodplain</E> means the 100-year floodplain (one percent chance floodplain).</P>
            <P>
              <E T="03">Coastal High Hazard Area</E> means the areas subject to high velocity waters including but not limited to hurricane wave wash or tsunamis. On a Flood Insurance Rate Map (FIRM), this appears as zone V1-30, VE or V.</P>
            <P>
              <E T="03">Critical Action</E> means an action for which even a slight chance of flooding is too great. The minimum floodplain of concern for critical actions is the 500-year floodplain, i.e., critical action floodplain. Critical actions include, but are not limited to, those which create or extend the useful life of structures or facilities:</P>
            <P>(a) Such as those which produce, use or store highly volatile, flammable, explosive, toxic or water-reactive materials;</P>
            <P>(b) Such as hospitals and nursing homes, and housing for the elderly, which are likely to contain occupants who may not be sufficiently mobile to avoid the loss of life or injury during flood and storm events;</P>
            <P>(c) Such as emergency operation centers, or data storage centers which contain records or services that may become lost or inoperative during flood and storm events; and</P>
            <P>(d) Such as generating plants, and other principal points of utility lines.</P>
            <P>
              <E T="03">Direct Impacts</E> means changes in floodplain or wetland values and functions and changes in the risk to lives and property caused or induced by an action or related activity. Impacts are caused whenever these natural values and functions are affected as a direct result of an action. An action which would result in the discharge of polluted storm waters into a floodplain or wetland, for example, would directly affect their natural values and functions. Construction-related activities, such as dredging and filling operations within the floodplain or a wetland would be another example of impacts caused by an action.</P>
            <P>
              <E T="03">Director</E> means the Director of the Federal Emergency Management Agency (FEMA).</P>
            <P>
              <E T="03">Emergency Actions</E> means emergency work essential to save lives and protect property and public health and safety performed under sections 305 and 306 of the Disaster Relief Act of 1974 (42 U.S.C. 5145 and 5146). See 44 CFR part 205, subpart E.</P>
            <P>
              <E T="03">Enhance</E> means to increase, heighten, or improve the natural and beneficial values associated with wetlands.</P>
            <P>
              <E T="03">Facility</E> means any man-made or man-placed item other than a structure.</P>
            <P>
              <E T="03">FEMA</E> means the Federal Emergency Management Agency.</P>
            <P>
              <E T="03">FIA</E> means the Federal Insurance Administration.</P>
            <P>
              <E T="03">Five Hundred Year Floodplain</E> (the 500-year floodplain or 0.2 percent change floodplain) means that area, including the base floodplain, which is subject to inundation from a flood having a 0.2 percent chance of being equalled or exceeded in any given year.</P>
            <P>
              <E T="03">Flood</E> or <E T="03">flooding</E> means a general and temporary condition of partial or complete inundation of normally dry land areas from the overflow of inland and/or tidal waters, and/or the unusual and <PRTPAGE P="84"/>rapid accumulation or runoff of surface waters from any source.</P>
            <P>
              <E T="03">Flood Fringe</E> means that portion of the floodplain outside of the floodway (often referred to as “floodway fringe”).</P>
            <P>
              <E T="03">Flood Hazard Boundary Map</E> (FHBM) means an offical map of a community, issued by the Director, where the boundaries of the flood, mudslide (i.e., mudflow) and related erosion areas having special hazards have been designated as Zone A, M, or E.</P>
            <P>
              <E T="03">Flood Insurance Rate Map</E> (FIRM) means an official map of a community on which the Director has delineated both the special hazard areas and the risk premium zones applicable to the community.</P>
            <P>
              <E T="03">Flood Insurance Study</E> (FIS) means an examination, evaluation and determination of flood hazards and, if appropriate, corresponding water surface elevations or an examination, evaluation and determination of mudslide (i.e., mudflow) and/or flood-related erosion hazards.</P>
            <P>
              <E T="03">Floodplain</E> means the lowland and relatively flat areas adjoining inland and coastal waters including, at a minimum, that area subject to a one percent or greater chance of flooding in any given year. Wherever in this regulation the term “floodplain” is used, if a critical action is involved, “floodplain” shall mean the area subject to inundation from a flood having a 0.2 percent chance of occurring in any given year (500-year floodplain). “Floodplain” does not include areas subject only to mudflow until FIA adopts maps identifying “M” Zones.</P>
            <P>
              <E T="03">Floodproofing</E> means the modification of individual structures and facilities, their sites, and their contents to protect against structural failure, to keep water out, or to reduce effects of water entry.</P>
            <P>
              <E T="03">Floodway</E> means that portion of the floodplain which is effective in carrying flow, within which this carrying capacity must be preserved and where the flood hazard is generally highest, i.e., where water depths and velocities are the greatest. It is that area which provides for the discharge of the base flood so the cumulative increase in water surface elevation is no more than one foot.</P>
            <P>
              <E T="03">Functionally Dependent Use</E> means a use which cannot perform its intended purpose unless it is located or carried out in close proximity to water, (e.g., bridges, and piers).</P>
            <P>
              <E T="03">Indirect Impacts</E> means an indirect result of an action whenever the action induces or makes possible related activities which effect the natural values and functions of floodplains or wetlands or the risk to lives and property. Such impacts occur whenever these values and functions are potentially affected, either in the short- or long-term, as a result of undertaking an action.</P>
            <P>
              <E T="03">Minimize</E> means to reduce to the smallest amount or degree possible.</P>
            <P>
              <E T="03">Mitigation</E> means all steps necessary to minimize the potentially adverse effects of the proposed action, and to restore and preserve the natural and beneficial floodplain values and to preserve and enhance natural values of wetlands.</P>
            <P>
              <E T="03">Natural Values of Floodplains and Wetlands</E> means the qualities of or functions served by floodplains and wetlands which include but are not limited to: (a) Water resource values (naturalmoderation of floods, water quality maintenance, groundwater recharge); (b) living resource values (fish, wildlife, plant resources and habitats); (c) cultural resource values (open space, natural beauty, scientific study, outdoor education, archeological and historic sites, recreation); and (d) cultivated resource values (agriculture, aquaculture, forestry).</P>
            <P>
              <E T="03">New Construction</E> means the construction of a new structure (including the placement of a mobile home) or facility or the replacement of a structure or facility which has been totally destroyed.</P>
            <P>
              <E T="03">New Construction in Wetlands</E> includes draining, dredging, channelizing, filling, diking, impounding, and related activities and any structures or facilities begun or authorized after the effective dates of the Orders, May 24, 1977.</P>
            <P>
              <E T="03">Orders</E> means Executive Orders 11988, Floodplain Management, and 11990, Protection of Wetlands.</P>
            <P>
              <E T="03">Practicable</E> means capable of being done within existing constraints. The test of what is practicable depends <PRTPAGE P="85"/>upon the situation and includes consideration of all pertinent factors, such as environment, cost and technology.</P>
            <P>
              <E T="03">Preserve</E> means to prevent alterations to natural conditions and to maintain the values and functions which operate the floodplains or wetlands in their natural states.</P>
            <P>
              <E T="03">Regional Director</E> means the Regional Director of the Federal Emergency Management Agency for the Region in which FEMA is acting or the Disaster Recovery Manager when one is designated.</P>
            <P>
              <E T="03">Regulatory Floodway</E> means the area regulated by federal, State or local requirements to provide for the discharge of the base flood so the cumulative increase in water surface elevation is no more than a designated amount (not to exceed one foot as set by the National Flood Insurance Program).</P>
            <P>
              <E T="03">Restore</E> means to reestablish a setting or environment in which the natural functions of the floodplain can again operate.</P>
            <P>
              <E T="03">SLPS</E> means the State and Local Programs and Support Directorate.</P>
            <P>
              <E T="03">Structures</E> means walled or roofed buildings, including mobile homes and gas or liquid storage tanks.</P>
            <P>
              <E T="03">Substantial Improvement</E> means any repair, reconstruction or other improvement of a structure or facility, which has been damaged in excess of, or the cost of which equals or exceeds, 50% of the market value of the structure or replacement cost of the facility (including all “public facilities” as defined in the Disaster Relief Act of 1974) (a) before the repair or improvement is started, or (b) if the structure or facility has been damaged and is proposed to be restored, before the damage occurred. If a facility is an essential link in a larger system, the percentage of damage will be based on the relative cost of repairing the damaged facility to the replacement cost of the portion of the system which is operationally dependent on the facility. The term “substantial improvement” does not include any alteration of a structure or facility listed on the National Register of Historic Places or a State Inventory of Historic Places.</P>
            <P>
              <E T="03">Support</E> means to encourage, allow, serve or otherwise facilitate floodplain or wetland development. Direct support results from actions within a floodplain or wetland, and indirect support results from actions outside of floodplains or wetlands.</P>
            <P>
              <E T="03">Wetlands</E> means those areas which are inundated or saturated by surface or ground water with a frequency sufficient to support, or that under normal hydrologic conditions does or would support, a prevalence of vegetation or aquatic life typically adapted for life in saturated or seasonally saturated soil conditions. Examples of wetlands include, but are not limited to, swamps, fresh and salt water marshes, estuaries, bogs, beaches, wet meadows, sloughs, potholes, mud flats, river overflows and other similar areas. This definition includes those wetlands areas separated from their natural supply of water as a result of activities such as the construction of structural flood protection methods or solid-fill road beds and activities such as mineral extraction and navigation improvements. This definition is intended to be consistent with the definition utilized by the U.S. Fish and Wildlife Service in the publication entitled <E T="03">Classification of Wetlands and DeepWater Habitats of the United States</E> (Cowardin, et al., 1977).</P>
            <CITA>[45 FR 59526, Sept. 9, 1980, as amended at 47 FR 13149, Mar. 29, 1982; 50 FR 40006, Oct. 1, 1985]</CITA>
          </SECTION>
          <SECTION>
            <SECTNO>§ 9.5</SECTNO>
            <SUBJECT>Scope.</SUBJECT>
            <P>(a) <E T="03">Applicability.</E> (1) These regulations apply to all Agency actions which have the potential to affect floodplains or wetlands or their occupants, or which are subject to potential harm by location in floodplains or wetlands.</P>
            <P>(2) The basic test of the potential of an action to affect floodplains or wetlands is the action's potential (both by itself and when viewed cumulatively with other proposed actions) to result in the long- or short-term adverse impacts associated with:</P>
            <P>(i) The occupancy or modification of floodplains, and the direct and indirect support of floodplain development; or</P>
            <P>(ii) The destruction or modification of wetlands and the direct or indirect support of new construction in wetlands.</P>

            <P>(3) This regulation applies to actions that were, on the effective date of the <PRTPAGE P="86"/>Orders (May 24, 1977), ongoing, in the planning and/or development stages, or undergoing implementation, and are incomplete as of the effective date of these regulations. The regulation also applies to proposed (new) actions. The Agency shall:</P>
            <P>(i) Determine the applicable provisions of the Orders by analyzing whether the action in question has progressed beyond critical stages in the floodplain management and wetlands protection decision-making process, as set out below in § 9.6. This determination need only be made at the time that followup actions are being taken to complete or implement the action in question; and</P>
            <P>(ii) Apply the provisions of the Orders and of this regulation to all such actions to the fullest extent practicable.</P>
            <P>(b) <E T="03">Limited exemption of ongoing actions involving wetlands located outside the floodplains.</E> (1) Executive Order 11990, Protection of Wetlands, contains a limited exemption not found in Executive Order 11988, Floodplain Management. Therefore, this exemption applies only to actions affecting wetlands which are located outside the floodplains, and which have no potential to result in harm to or within floodplains or to support floodplain development.</P>
            <P>(2) The following proposed actions that impact wetlands located outside of floodplains are exempt from this regulation:</P>
            <P>(i) Agency-assisted or permitted projects which were under construction before May 24, 1977; and</P>
            <P>(ii) Projects for which the Agency has proposed a draft of a final environmental impact statement (EIS) which adequately analyzes the action and which was filed before October 1, 1977. Proposed actions that impact wetlands outside of floodplains are not exempt if the EIS:</P>
            <P>(A) Only generally covers the proposed action;</P>
            <P>(B) Is devoted largely to related activities; or</P>
            <P>(C) Treats the project area or program without an adequate and specific analysis of the floodplain and wetland implications of the proposed action.</P>
            <P>(c) <E T="03">Decision-making involving certain categories of actions.</E> The provisions set forth in this regulation are <E T="03">not applicable</E> to the actions enumerated below except that the Regional Directors shall comply with the spirit of the Order to the extent practicable. For any action which is excluded from the actions enumerated below, the full 8-step process applies (see § 9.6) (except as indicated at paragraphs (d), (f) and (g) of this section regarding other categories of partial or total exclusions). The provisions of these regulations do not apply to the following (all references are to the Disaster Relief Act of 1974, Pub. L. 93-288, as amended, except as noted):</P>
            <P>(1) Assistance provided for emergency work essential to save lives and protect property and public health and safety performed pursuant to sections 305 and 306;</P>
            <P>(2) Emergency Support Teams (section 304);</P>
            <P>(3) Unemployment Assistance (section 407);</P>
            <P>(4) Emergency Communications (section 415);</P>
            <P>(5) Emergency Public Transportation (section 416);</P>
            <P>(6) Fire Management Assistance (Section 420);</P>
            <P>(7) Community Disaster Loans (section 414), except to the extent that the proceeds of the loan will be used for repair of facilities or structures or for construction of additional facilities or structures;</P>
            <P>(8) The following Individual and Family Grant Program (section 408) actions:</P>
            <P>(i) Housing needs or expenses, except for restoring, repairing or building private bridges, purchase of mobile homes and provision of structures as minimum protective measures;</P>
            <P>(ii) Personal property needs or expenses;</P>
            <P>(iii) Transportation expenses;</P>
            <P>(iv) Medical/dental expenses;</P>
            <P>(v) Funeral expenses;</P>
            <P>(vi) Limited home repairs;</P>
            <P>(vii) Flood insurance premium;</P>
            <P>(viii) Cost estimates;</P>
            <P>(ix) Food expenses; and</P>
            <P>(x) Temporary rental accommodations.</P>

            <P>(9) Mortgage and rental assistance under section 404(b);<PRTPAGE P="87"/>
            </P>
            <P>(10) Use of existing resources in the temporary housing assistance program [section 404(a)], except that Step 1 (§ 9.7) shall be carried out;</P>
            <P>(11) Minimal home repairs [section 404(c)];</P>
            <P>(12) Debris removal (section 403), except those grants involving non-emergency disposal of debris within a floodplain or wetland;</P>
            <P>(13) Repairs or replacements under section 402, of less than $5,000 to damaged structures or facilities.</P>
            <P>(14) Placement of families in existing resources and Temporary Relocation Assistance provided to those families so placed under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, Public Law 96-510.</P>

            <P>(d) For each action enumerated below, the Regional Director <E T="03">shall apply steps 1, 2, 4, 5 and 8</E> of the decision-making process (§§ 9.7, 9.8, 9.10 and 9.11, see § 9.6). Steps 3 and 6 (§ 9.9) shall be carried out except that alternative sites outside the floodplain or wetland need not be considered. After assessing impacts of the proposed action on the floodplain or wetlands and of the site on the proposed action, alternative actions to the proposed action, if any, and the “no action” alternative shall be considered. The Regional Director may also require certain other portions of the decision-making process to be carried out for individual actions as is deemed necessary. For any action which is excluded from the actions listed below. (except as indicated in paragraphs (c), (f) and (g) of this section regarding other categories of partial or total exclusion), the full 8-step process applies (see § 9.6). The references are to the Disaster Relief Act of 1974, Public Law 93-288, as amended.</P>
            <P>(1) Actions performed under the Individual and Family Grant Program (section 408) for restoring or repairing a private bridge, except where two or more individuals or families are authorized to pool their grants for this purpose.</P>
            <P>(2) Small project grants (section 419), except to the extent that Federal funding involved is used for construction of new facilities or structures.</P>
            <P>(3) Replacement of building contents, materials and equipment. (sections 402 and 419).</P>
            <P>(4) Repairs under section 402 to damaged facilities or structures, except any such action for which one or more of the following is applicable:</P>
            <P>(i) FEMA estimated cost of repairs is more than 50% of the estimated reconstruction cost of the entire facility or structure, or is more than $100,000, or</P>
            <P>(ii) The action is located in a floodway or coastal high hazard area, or</P>
            <P>(iii) The facility or structure is one which has previously sustained structural damage from flooding due to a major disaster or emergency or on which a flood insurance claim has been paid, or</P>
            <P>(iv) The action is a critical action.</P>
            <P>(e) <E T="03">Other categories of actions.</E> Based upon the completion of the 8-step decision-making process (§ 9.6), the Director may find that a specific category of actions either offers no potential for carrying out the purposes of the Orders and shall be treated as those actions listed in § 9.5(c), or has no practicable alternative sites and shall be treated as those actions listed in § 9.5(d), or has no practicable alternative actions or sitesand shall be treated as those actions listed in § 9.5(g). This finding will be made in consultation with the Federal Insurance Administration and the Council on Environmental Quality as provided in section 2(d) of E.O. 11988. Public notice of each of these determinations shall include publication in the <E T="04">Federal Register</E> and a 30-day comment period.</P>
            <P>(f) <E T="03">The National Flood Insurance Program (NFIP).</E> (1) Most of what is done by FIA or SLPS, in adminstering the National Flood Insurance Program is performed on a program-wide basis. For all regulations, procedures or other issuances making or amending program policy, FIA or SLPS, shall apply the 8-step decision-making process to that program-wide action. The action to which the 8-step process must be applied is the establishment of programmatic standards or criteria, not the application of programmatic standards or criteria to specific situations. Thus, for example, FIA or SLPS, would <PRTPAGE P="88"/>apply the 8-step process to a programmatic determination of categories of structures to be insured, but not to whether to insure each individual structure. The two prime examples of where FIA or SLPS, does take site specific actions which would require individual application of the 8-step process are property acquisition under section 1362 of the National Flood Insurance Act of 1968, as amended, and the issuance of an exception to a community under 44 CFR 60.6(b). (See also § 9.9(e)(6) and § 9.11(e).)</P>
            <P>(2) The provisions set forth in this regulation are not applicable to the actions enumerated below except that the Federal Insurance Administrator or the Associate Director, SLPS, as appropriate shall comply with the spirit of the Orders to the extent practicable:</P>
            <P>(i) The issuance of individual flood insurance policies and policy interpretations;</P>
            <P>(ii) The adjustment of claims made under the Standard Flood Insurance Policy;</P>
            <P>(iii) The hiring of independent contractors to assist in the implementation of the National Flood Insurance Program;</P>
            <P>(iv) The issuance of individual flood insurance maps, Map Information Facility map determinations, and map amendments; and</P>
            <P>(v) The conferring of eligibility for emergency or regular program (NFIP) benefits upon communities.</P>
            <P>(g) For the action listed below, the Regional Director <E T="03">shall apply steps 1, 4, 5 and 8</E> of the decision-making process (§§ 9.7, 9.10 and 9.11). For any action which is excluded from the actions listed below, (except as indicated in paragraphs (c), (d) and (f) of this section regarding other categories of partial or total exclusion), the full 8-step process applies (See § 9.6). The Regional Director may also require certain other portions of the decision-making process to be carried out for individual actions as is deemed necessary. The references are to the Disaster Relief Act of 1974, Public Law 93-288. The above requirements apply to repairs, under section 402, between $5,000 and $25,000 to damaged structures of facilities except for:</P>
            <P>(1) Actions in a floodway or coastal high hazard area; or</P>
            <P>(2) New or substantially improved structures or facilities; or</P>
            <P>(3) Facilities or structures which have previously sustained structural damage from flooding due to a major disaster or emergency.</P>
            <CITA>[45 FR 59526, Sept. 9, 1980, as amended at 47 FR 13149, Mar. 29, 1982; 49 FR 35583, Sept. 10, 1984; 50 FR 40006, Oct. 1, 1985; 51 FR 39531, Oct. 29, 1986; 66 FR 57347, Nov. 14, 2001]</CITA>
          </SECTION>
          <SECTION>
            <SECTNO>§ 9.6</SECTNO>
            <SUBJECT>Decision-making process.</SUBJECT>
            <P>(a) <E T="03">Purpose.</E> The purpose of this section is to set out the floodplain management and wetlands protection decision-making process to be followed by the Agency in applying the Orders to its actions. While the decision-making process was initially designed to address the floodplain Order's requirements, the process will also satisfy the wetlands Order's provisions due to the close similarity of the two directives. The numbering of Steps 1 through 8 does not firmly require that the steps be followed sequentially. As information is gathered throughout the decision-making process and as additional information is needed, reevaluation of lower numbered steps may be necessary.</P>
            <P>(b) Except as otherwise provided in § 9.5 (c), (d), (f), and (g) regarding categories of partial or total exclusion when proposing an action, the Agency shall apply the 8-step decision-making process. FEMA shall:</P>
            <P>
              <E T="03">Step 1.</E> Determine whether the proposed action is located in a wetland and/or the 100-year floodplain (500-year floodplain for critical actions); and whether it has the potential to affect or be affected by a floodplain or wetland (see § 9.7);</P>
            <P>
              <E T="03">Step 2.</E> Notify the public at the earliest possible time of the intent to carry out an action in a floodplain or wetland, and involve the affected and interested public in the decision-making process (see § 9.8);</P>
            <P>
              <E T="03">Step 3.</E> Identify and evaluate practicable alternatives to locating the proposed action in a floodplain or wetland (including alternative sites, actions and the “no action” option) (see § 9.9). If a practicable alternative exists outside the floodplain or wetland FEMA must locate the action at the alternative site.<PRTPAGE P="89"/>
            </P>
            <P>
              <E T="03">Step 4.</E> Identify the potential direct and indirect impacts associated with the occupancy or modification of floodplains and wetlands and the potential direct and indirect support of floodplain and wetland development that could result from the proposed action (see § 9.10);</P>
            <P>
              <E T="03">Step 5.</E> Minimize the potential adverse impacts and support to or within floodplains and wetlands to be identified under Step 4, restore and preserve the natural and beneficial values served by floodplains, and preserve and enhance the natural and beneficial values served by wetlands (see § 9.11);</P>
            <P>
              <E T="03">Step 6.</E> Reevaluate the proposed action to determine first, if it is still practicable in light of its exposure to flood hazards, the extent to which it will aggravate the hazards to others, and its potential to disrupt floodplain and wetland values and second, if alternatives preliminarily rejected at Step 3 are practicable in light of the information gained in Steps 4 and 5. FEMA shall not act in a floodplain or wetland unless it is the only practicable location (see § 9.9);</P>
            <P>
              <E T="03">Step 7.</E> Prepare and provide the public with a finding and public explanation of any final decision that the floodplain or wetland is the only practicable alternative (see § 9.12); and</P>
            <P>
              <E T="03">Step 8.</E> Review the implementation and post-implementation phases of the proposed action to ensure that the requirements stated in § 9.11 are fully implemented. Oversight responsibility shall be integrated into existing processes.</P>
            <CITA>[45 FR 59526, Sept. 9, 1980, as amended at 49 FR 35583, Sept. 10, 1984; 50 FR 40006, Oct. 1, 1985]</CITA>
          </SECTION>
          <SECTION>
            <SECTNO>§ 9.7</SECTNO>
            <SUBJECT>Determination of proposed action's location.</SUBJECT>
            <P>(a) The purpose of this section is to establish Agency procedures for determining whether any action as proposed is located in or affects (1) the base floodplain (the Agency shall substitute the 500-year floodplain for the base floodplain where the action being proposed involves a critical action), or (2) a wetland.</P>
            <P>(b) <E T="03">Information needed.</E> The Agency shall obtain enough information so that it can fulfill the requirements of the Orders to (1) avoid floodplain and wetland locations unless they are the only practicable alternatives; and (2) minimize harm to and within floodplains and wetlands. In all cases, FEMA shall determine whether the proposed action is located in a floodplain or wetland. In the absence of a finding to the contrary, FEMA may assume that a proposed action involving a facility or structure that has been flooded is in the floodplain. Information about the 100-year and 500-year floods and location of floodways and coastal high hazard areas may also be needed to comply with these regulations, especially § 9.11. The following additional flooding characteristics shall be identified by the Regional Director as appropriate:</P>
            <P>(i) Velocity of floodwater;</P>
            <P>(ii) Rate of rise of floodwater;</P>
            <P>(iii) Duration of flooding;</P>
            <P>(iv) Available warning and evacuation time and routes;</P>
            <P>(v) Special problems:</P>
            <P>(A) Levees;</P>
            <P>(B) Erosion;</P>
            <P>(C) Subsidence;</P>
            <P>(D) Sink holes;</P>
            <P>(E) Ice jams;</P>
            <P>(F) Debris load;</P>
            <P>(G) Pollutants;</P>
            <P>(H) Wave heights;</P>
            <P>(I) Groundwater flooding;</P>
            <P>(J) Mudflow.</P>
            <P>(c) <E T="03">Floodplain determination.</E> (1) In the search for flood hazard information, FEMA shall follow the sequence below:</P>
            <P>(i) The Regional Director shall consult the FEMA Flood Insurance Rate Map (FIRM) the Flood Boundary Floodway Map (FBFM) and the Flood Insurance Study (FIS).</P>
            <P>(ii) If a detailed map (FIRM or FBFM) is not available, the Regional Director shall consult an FEMA Flood Hazard Boundary Map (FHBM) . If data on flood elevations, floodways, or coastal high hazard areas are needed, or if the map does not delineate the flood hazard boundaries in the vicinity of the proposed site, the Regional Director shall seek the necessary detailed information and assistance from the sources listed below.</P>
            <EXTRACT>
              <PRTPAGE P="90"/>
              <HD SOURCE="HD1">Sources of Maps and Technical Information</HD>
              <FP SOURCE="FP-1">Department of Agriculture: Soil Conservation Service</FP>
              <FP SOURCE="FP-1">Department of the Army: Corps of Engineers</FP>
              <FP SOURCE="FP-1">Department of Commerce: National Oceanic and Atmospheric Administration</FP>
              <FP SOURCE="FP-1">Federal Insurance Administration</FP>
              <FP SOURCE="FP-1">FEMA Regional Offices/Natural and Technological Hazards Division</FP>
              <FP SOURCE="FP-1">Department of the Interior:</FP>
              <FP SOURCE="FP1-2">Geological Survey</FP>
              <FP SOURCE="FP1-2">Bureau of Land Management</FP>
              <FP SOURCE="FP1-2">Bureau of Reclamation</FP>
              <FP SOURCE="FP-1">Tennessee Valley Authority</FP>
              <FP SOURCE="FP-1">Delaware River Basin Commission</FP>
              <FP SOURCE="FP-1">Susquehanna River Basin Commission</FP>
              <FP SOURCE="FP-1">States</FP>
            </EXTRACT>
            
            <P>(iii) If the sources listed do not have or know of the information necessary to comply with the Orders' requirements, the Regional Director shall seek the services of a Federal or other engineer experienced in this type of work.</P>
            <P>(2) If a decision involves an area or location within extensive Federal or state holdings or a headwater area, and an FIS, FIRM, FBFM, or FHBM is not available, the Regional Director shall seek information from the land administering agency before information and/or assistance is sought from the sources listed in this section. If none of these sources has information or can provide assistance, the services of an experienced Federal or other engineer shall be sought as described above.</P>
            <P>(d) <E T="03">Wetland determination.</E> The following sequence shall be followed by the Agency in making the wetland determination.</P>
            <P>(1) The Agency shall consult with the U.S. Fish and Wildlife Service (FWS) for information concerning the location, scale and type of wetlands within the area which could be affected by the proposed action.</P>
            <P>(2) If the FWS does not have adequate information upon which to base the determination, the Agency shall consult wetland inventories maintained by the Army Corps of Engineers, the Environmental Protection Agency, various states, communities and others.</P>
            <P>(3) If state or other sources do not have adequate information upon which to base the determination, the Agency shall carry out an on-site analysis performed by a representative of the FWS or other qualified individual for wetlands characteristics based on the performance definition of what constitutes a wetland.</P>
            <P>(4) If an action is in a wetland but not in a floodplain, and the action is new construction, the provisions of this regulation shall apply. Even if the action is not in a wetland, the Regional Director shall determine if the action has the potential to result in indirect impacts on wetlands. If so, all adverse impacts shall be minimized. For actions which are in a wetland and the floodplain, completion of the decision-making process is required. (See § 9.6.) In such a case the wetland will be considered as one of the natural and beneficial values of floodplain.</P>
            <CITA>[45 FR 59526, Sept. 9, 1980, as amended at 47 FR 13149, Mar. 29, 1982; 49 FR 33879, Aug. 27, 1984; 50 FR 40006, Oct. 1, 1985; 51 FR 34605, Sept. 30, 1986]</CITA>
          </SECTION>
          <SECTION>
            <SECTNO>§ 9.8</SECTNO>
            <SUBJECT>Public notice requirements.</SUBJECT>
            <P>(a) <E T="03">Purpose.</E> The purpose of this section is to establish the initial notice procedures to be followed when proposing any action in or affecting floodplains or wetlands.</P>
            <P>(b) <E T="03">General.</E> The Agency shall provide adequate information to enable the public to have impact on the decisionoutcome for all actions having potential to affect, adversely, or be affected by floodplains or wetlands that it proposes. To achieve this objective, the Agency shall:</P>
            <P>(1) Provide the public with adequate information and opportunity for review and comment at the earliest possible time and throughout the decision-making process; and upon completion of this process, provide the public with an accounting of its final decisions (see § 9.12); and</P>
            <P>(2) Rely on its environmental assessment processes, to the extent possible, as vehicles for public notice, involvement and explanation.</P>
            <P>(c) <E T="03">Early public notice.</E> The Agency shall provide opportunity for public involvement in the decision-making process through the provision of public notice upon determining that the proposed action can be expected to affect or be affected by floodplains or wetlands. Whenever possible, notice shall <PRTPAGE P="91"/>precede major project site identification and analysis in order to preclude the foreclosure of options consistent with the Orders.</P>
            <P>(1) For an action for which an environmental impact statement is being prepared, the Notice of Intent to File an EIS is adequate to constitute the early public notice, if it includes the information required under paragraph (c)(5) of this section.</P>

            <P>(2) For each action having national significance for which notice is being provided, the Agency shall use the <E T="04">Federal Register</E> as the minimum means for notice, and shall provide notice by mail to national organizations reasonably expected to be interested in the action. The additional notices listed in paragraph (c)(4) of this section shall be used in accordance with the determination made under paragraph (c)(3) of this section.</P>
            <P>(3) The Agency shall base its determination of appropriate notices, adequate comment periods, and whether to issue cumulative notices (paragraphs (c)(4), (6) and (7) of this section) on factors which include, but are not limited to:</P>
            <P>(i) Scale of the action;</P>
            <P>(ii) Potential for controversy;</P>
            <P>(iii) Degree of public need;</P>
            <P>(iv) Number of affected agencies and individuals; and</P>
            <P>(v) Its anticipated potential impact.</P>
            <P>(4) For each action having primarily local importance for which notice is being provided, notice shall be made in accordance with the criteria under paragraph (c)(3) of this section, and shall entail as appropriate:</P>
            <P>(i) [Reserved]</P>
            <P>(ii) Notice to Indian tribes when effects may occur on reservations.</P>
            <P>(iii) Information required in the affected State's public notice procedures for comparable actions.</P>
            <P>(iv) Publication in local newspapers (in papers of general circulation rather than legal papers).</P>
            <P>(v) Notice through other local media.</P>
            <P>(vi) Notice to potentially interested community organizations.</P>
            <P>(vii) Publication in newsletters that may be expected to reach potentially interested persons.</P>
            <P>(viii) Direct mailing to owners and occupants of nearby or affected property.</P>
            <P>(ix) Posting of notice on and off site in the area where the action is to be located.</P>
            <P>(x) Holding a public hearing.</P>
            <P>(5) The notice shall include:</P>
            <P>(i) A description of the action, its purpose and a statement of the intent to carry out an action affecting or affected by a floodplain or wetland;</P>
            <P>(ii) Based on the factors in paragraph (c)(3) of this section, a map of the area or other indentification of the floodplain and/or wetland areas which is of adequate scale and detail so that the location is discernible; instead of publication of such map, FEMA may state that such map is available for public inspection, including the location at which such map may be inspected and a telephone number to call for information;</P>
            <P>(iii) Based on the factors in paragraph (c)(3) of this section, a description of the type, extent and degree of hazard involved and the floodplain or wetland values present; and</P>
            <P>(iv) Identification of the responsible official or organization for implementing the proposed action, and from whom further information can be obtained.</P>
            <P>(6) The Agency shall provide for an adequate comment period.</P>
            <P>(7) In a post-disaster situation in particular, the requirement for early public notice may be met in a cumulative manner based on the factors set out in paragraph (c)(3) of this section. Several actions may be addressed in one notice or series of notices. For some actions involving limited public interest a single notice in a local newspaper or letter to interested parties may suffice.</P>
            <P>(d) <E T="03">Continuing public notice.</E> The Agency shall keep the public informed of the progress of the decision-making process through additional public notices at key points in the process. The preliminary information provided under paragraph (c)(5) of this section shall be augmented by the findings of the adverse effects of the proposed actions and steps necessary to mitigate them. This responsibility shall be performed for actions requiring the preparation of an EIS, and all other actions <PRTPAGE P="92"/>having the potential for major adverse impacts, or the potential for harm to the health and safety of the general public.</P>
            <CITA>[45 FR 59526, Sept. 9, 1980, as amended at 48 FR 29318, June 24, 1983]</CITA>
          </SECTION>
          <SECTION>
            <SECTNO>§ 9.9</SECTNO>
            <SUBJECT>Analysis and reevaluation of practicable alternatives.</SUBJECT>
            <P>(a) <E T="03">Purpose.</E> (1) The purpose of this section is to expand upon the directives set out in § 9.6, of this part, in order to clarify and emphasize the Orders' key requirements to avoid floodplains and wetlands unless there is no practicable alternative.</P>
            <P>(2) Step 3 is a preliminary determination as to whether the floodplain is the only practicable location for the action. It is a preliminary determination because it comes early in the decision-making process when the Agency has a limited amount of information. If it is clear that there is a practicable alternative, or the floodplain or wetland is itself not a practicable location, FEMA shall then act on that basis. Provided that the location outside the floodplain or wetland does not indirectly impact floodplains or wetlands or support development therein (see § 9.10), the remaining analysis set out by this regulation is not required. If such location does indirectly impact floodplains or wetlands or support development therein, the remaining analysis set out by this regulation is required. If the preliminary determination is to act in the floodplain, FEMA shall gather the additional information required under Steps 4 and 5 and then reevaluate all the data to determine if the floodplain or wetland is the only practicable alternative.</P>
            <P>(b) <E T="03">Analysis of practicable alternatives.</E> The Agency shall identify and evaluate practicable alternatives to carrying out a proposed action in floodplains or wetlands, including:</P>
            <P>(1) Alternative sites outside the floodplain or wetland;</P>
            <P>(2) Alternative actions which serve essentially the same purpose as the proposed action, but which have less potential to affect or be affected by the floodplain or wetlands; and</P>
            <P>(3) <E T="03">No action.</E> The floodplain and wetland site itself must be a practicable location in light of the factors set out in this section.</P>
            <P>(c) The Agency shall analyze the following factors in determining the practicability of the alternatives set out in paragraph (b) of this section:</P>
            <P>(1) Natural environment (topography, habitat, hazards, etc.);</P>
            <P>(2) Social concerns (aesthetics, historical and cultural values, land patterns, etc.);</P>
            <P>(3) Economic aspects (costs of space, construction, services, and relocation); and</P>
            <P>(4) Legal constraints (deeds, leases, etc.).</P>
            <P>(d) <E T="03">Action following the analysis of practicable alternatives.</E> (1) The Agency shall not locate the proposed action in the floodplain or in a wetland if a practicable alternative exists outside the floodplain or wetland.</P>
            <P>(2) For critical actions, the Agency shall not locate the proposed action in the 500-year floodplain if a practicable alternative exists outside the 500-year floodplain.</P>
            <P>(3) Even if no practicable alternative exists outside the floodplain or wetland, in order to carry out the action the floodplain or wetland must itself be a practicable location in light of the review required in this section.</P>
            <P>(e) <E T="03">Reevaluation of alternatives.</E> Upon determination of the impact of the proposed action to or within the floodplain or wetland and of what measures are necessary to comply with the requirement to minimize harm to and within floodplains and wetlands (§ 9.11), FEMA shall:</P>
            <P>(1) Determine whether:</P>
            <P>(i) The action is still practicable at a floodplain or wetland site in light of the exposure to flood risk and the ensuing disruption of natural values;</P>
            <P>(ii) The floodplain or wetland site is the only practicable alternative;</P>
            <P>(iii) There is a potential for limiting the action to increase the practicability of previously rejected non-floodplain or wetland sites and alternative actions; and</P>
            <P>(iv) Minimization of harm to or within the floodplain can be achieved using all practicable means.</P>

            <P>(2) Take no action in a floodplain unless the importance of the floodplain <PRTPAGE P="93"/>site clearly outweighs the requirement of E.O. 11988 to:</P>
            <P>(i) Avoid direct or indirect support of floodplain development;</P>
            <P>(ii) Reduce the risk of flood loss;</P>
            <P>(iii) Minimize the impact of floods on human safety, health and welfare; and</P>
            <P>(iv) Restore and preserve floodplain values.</P>
            <P>(3) Take no action in a wetland unless the importance of the wetland site clearly outweighs the requirements of E.O. 11990 to:</P>
            <P>(i) Avoid the destruction or modification of the wetlands;</P>
            <P>(ii) Avoid direct or indirect support of new construction in wetlands;</P>
            <P>(iii) Minimize the destruction, loss or degradation of wetlands; and</P>
            <P>(iv) Preserve and enhance the natural and beneficial values of wetlands.</P>
            <P>(4) In carrying out this balancing process, give the factors in paragraphs (e)(2) and (3) of this section, the great weight intended by the Orders.</P>
            <P>(5) Choose the “no action” alternative where there are no practicable alternative actions or sites and where the floodplain or wetland is not itself a practicable alternative. In making the assessment of whether a floodplain or wetland location is itself a practicable alternative, the practicability of the floodplain or wetland location shall be balanced against the practicability of not carrying out the action at all. That is, even if there is no practicable alternative outside of the floodplain or wetland, the floodplain or wetland itself must be a practicable location in order for the action to be carried out there. To be a practicable location, the importance of carrying out the action must clearly outweigh the requirements of the Orders listed in paragraphs (e)(2) and (e)(3) of this section. Unless the importance of carrying out the action clearly outweighs those requirements, the “no action” alternative shall be selected.</P>
            <P>(6) In any case in which the Regional Director has selected the “no action” option, FIA may not provide a new or renewed contract of flood insurance for that structure.</P>
            <EFFDNOT>
              <HD SOURCE="HED">Effective Date Note:</HD>
              <P>At 45 FR 79070, Nov. 28, 1980, § 9.9(e)(6) was temporarily suspended until further notice.</P>
            </EFFDNOT>
          </SECTION>
          <SECTION>
            <SECTNO>§ 9.10</SECTNO>
            <SUBJECT>Identify impacts of proposed actions.</SUBJECT>
            <P>(a) <E T="03">Purpose.</E> The purpose of this section is to ensure that the effects of proposed Agency actions are identified.</P>
            <P>(b) The Agency shall identify the potential direct and indirect adverse impacts associated with the occupancy and modification of floodplains and wetlands and the potential direct and indirect support of floodplain and wetland development that could result from the proposed action. Such identification of impacts shall be to the extent necessary to comply with the requirements of the Orders to avoid floodplain and wetland locations unless they are the only practicable alternatives and to minimize harm to and within floodplains and wetlands.</P>
            <P>(c) This identification shall consider whether the proposed action will result in an increase in the useful life of any structure or facility in question, maintain the investment at risk and exposure of lives to the flood hazard or forego an opportunity to restore the natural and beneficial values served by floodplains or wetlands. Regional Offices of the U.S. Fish and Wildlife Service may be contacted to aid in the identification and evaluation of potential impacts of the proposed action on natural and beneficial floodplain and wetland values.</P>
            <P>(d) In the review of a proposed or alternative action, the Regional Director shall specifically consider and evaluate: impacts associated with modification of wetlands and floodplains regardless of its location; additional impacts which may occur when certain types of actions may support subsequent action which have additional impacts of their own; adverse impacts of the proposed actions on lives and property and on natural and beneficial floodplain and wetland values; and the three categories of factors listed below:</P>
            <P>(1) <E T="03">Flood hazard-related factors.</E> These include for example, the factors listed in § 9.7(b)(2);</P>
            <P>(2) <E T="03">Natural values-related factors.</E> These include, for example, the following: Water resource values (natural moderation of floods, water quality maintenance, and ground water recharge); living resource values (fish <PRTPAGE P="94"/>and wildlife and biological productivity); cultural resource values (archeological and historic sites, and open space recreation and green belts); and agricultural, aquacultural and forestry resource values.</P>
            <P>(3) <E T="03">Factors relevant to a proposed action's effects on the survival and quality of wetlands.</E> These include, for example, the following: Public health, safety, and welfare, including water supply, quality, recharge and discharge; pollution; flood and storm hazards; and sediment and erosion; maintenance of natural systems, including conservation and long term productivity of existing flora and fauna, species and habitat diversity and stability, hydrologic utility, fish, wildlife, timber, and food and fiber resources; and other uses of wetlands in the public interest, including recreational, scientific, and cultural uses.</P>
          </SECTION>
          <SECTION>
            <SECTNO>§ 9.11</SECTNO>
            <SUBJECT>Mitigation.</SUBJECT>
            <P>(a) <E T="03">Purpose.</E> The purpose of this section is to expand upon the directives set out in § 9.6 of this part, and to set out the mitigative actions required if the preliminary determination is made to carry out an action that affects or is in a floodplain or wetland.</P>
            <P>(b) <E T="03">General provisions.</E> (1) The Agency shall design or modify its actions so as to minimize harm to or within the floodplain;</P>
            <P>(2) The Agency shall minimize the destruction, loss or degradation of wetlands;</P>
            <P>(3) The Agency shall restore and preserve natural and beneficial floodplain values; and</P>
            <P>(4) The Agency shall preserve and enhance natural and beneficial wetland values.</P>
            <P>(c) <E T="03">Minimization provisions.</E> The Agency shall minimize:</P>
            <P>(1) Potential harm to lives and the investment at risk from the base flood, or, in the case of critical actions, from the 500-year flood;</P>
            <P>(2) Potential adverse impacts the action may have on others; and</P>
            <P>(3) Potential adverse impact the action may have on floodplain and wetland values.</P>
            <P>(d) <E T="03">Minimization Standards.</E> In its implementation of the Disaster Relief Act of 1974, the Agency shall apply at a minimum, the following standards to its actions to comply with the requirements of paragraphs (b) and (c), of this section, (except as provided in § 9.5 (c), (d), and (g) regarding categories of partial or total exclusion). Any Agency action to which the following specific requirements do not apply, shall nevertheless be subject to the full 8-step process (§ 9.6) including the general requirement to minimize harm to and within floodplains:</P>
            <P>(1) There shall be no new construction or substantial improvement in a floodway, and no new construction in a coastal high hazard area, except for:</P>
            <P>(i) A functionally dependent use; or</P>
            <P>(ii) A structure or facility which facilitates an open space use.</P>
            <P>(2) For a structure which is a functionally dependent use, or which facilitates an open space use, the following applies. There shall be no construction of a new or substantially improved structure in a coastal high hazard area unless it is elevated on adequately anchored pilings or columns, and securely anchored to such piles or columns so that the lowest portion of the structural members of the lowest floor (excluding the pilings or columns) is elevated to or above the base flood level(the 500-year flood level for critical actions) (including wave height). The structure shall be anchored so as to withstand velocity waters and hurricane wave wash. The Regional Director shall be responsible for determining the base flood level, including the wave height, in all cases. Where there is a FIRM in effect, it shall be the basis of the Regional Director's determination. If the FIRM does not reflect wave heights, or if there is no FIRM in effect, the Regional Director is responsible for delineating the base flood level, including wave heights.</P>
            <P>(3) <E T="03">Elevation of structures.</E> (i) There shall be no new construction or substantial improvement of structures unless the lowest floor of the structures (including basement) is at or above the level of the base flood.</P>

            <P>(ii) There shall be no new construction or substantial improvement of structures involving a critical action unless the lowest floor of the structure (including the basement) is at or above the level of the 500-year flood.<PRTPAGE P="95"/>
            </P>
            <P>(iii) If the subject structure is nonresidential, FEMA may, instead of elevating the structure to the 100-year or 500-year level, as appropriate, approve the design of the structure and its attendant utility and sanitary facilities so that below the flood level the structure is water tight with walls substantially impermeable to the passage of water and with structural components having the capability of resisting hydrostatic and hydrodynamic loads and effects of buoyancy.</P>
            <P>(iv) The provisions of paragraphs (d)(3)(i), (ii), and (iii) of this section do not apply to the extent that the Federal Insurance Administration has granted an exception under 44 CFR § 60.6(b) (formerly 24 CFR 1910.6(b)), or the community has granted a variance which the Regional Director determines is consistent with 44 CFR 60.6(a) (formerly 24 CFR 1910.6(a)). In a community which does not have a FIRM in effect, FEMA may approve a variance from the standards of paragraphs (d)(3)(i), (ii), and (iii) of this section, after compliance with the standards of 44 CFR 60.6(a).</P>
            <P>(4) There shall be no encroachments, including fill, new construction, substantial improvements of structures or facilities, or other development within a designated regulatory floodway that would result in any increase in flood levels within the community during the occurrence of the base flood discharge. Until a regulatory floodway is designated, no new construction, substantial improvements, or other development (including fill) shall be permitted within the base floodplain unless it is demonstrated that the cumulative effect of the proposed development, when combined with all other existing and anticipated development, will not increase the water surface elevation of the base flood more than one foot at any point within the community.</P>
            <P>(5) Even if an action is a functionally dependent use or facilitates open space uses (under paragraph (d) (1) or (2) of this section) and does not increase flood heights (under paragraph (d)(4) of this section), such action may only be taken in a floodway or coastal high hazard area if:</P>
            <P>(i) Such site is the only practicable alternative; and</P>
            <P>(ii) Harm to and within the floodplain is minimized.</P>

            <P>(6) In addition to standards (d)(1) through (d)(5) of this section, no action may be taken if it is inconsistent with the criteria of the National Flood Insurance Program (44 CFR part 59 <E T="03">et seq.</E>) or any more restrictive Federal, State or local floodplain management standards.</P>
            <P>(7) New construction and substantial improvement of structures shall be elevated on open works (walls, columns, piers, piles, etc.) rather than on fill, in all cases in coastal high hazard areas and elsewhere, where practicable.</P>
            <P>(8) To minimize the effect of floods on human health, safety and welfare, the Agency shall:</P>
            <P>(i) Where appropriate, integrate all of its proposed actions in floodplains into existing flood warning and preparedness plans and ensure that available flood warning time is reflected;</P>
            <P>(ii) Facilitate adequate access and egress to and from the site of the proposed action; and</P>
            <P>(iii) Give special consideration to the unique hazard potential in flash flood, rapid-rise or tsunami areas.</P>
            <P>(9) In the replacement of building contents, materials and equipment, the Regional Director shall require as appropriate, disaster proofing of the building and/or elimination of such future losses by relocation of those building contents, materials and equipment outside or above the base floodplain or the 500-year floodplain for critical actions.</P>
            <P>(e) <E T="03">In the implementation of the National Flood Insurance Program.</E> (1) The Federal Insurance Administration shall make identification of all coastal high hazard areas a priority;</P>
            <P>(2) Beginning October 1, 1981, the Federal Insurance Administration of FEMA may only provide flood insurance for new construction or substantial improvements in a coastal high hazard area if:</P>

            <P>(i) Wave heights have been designated for the site of the structure either by the Director of FEMA based upon data generated by FEMA or by another source, satisfactory to the Director; and<PRTPAGE P="96"/>
            </P>
            <P>(ii) The structure is rated by FEMA-FIA based on a system which reflects the capacity to withstand the effects of the 100-year frequency flood including, but not limited to, the following factors:</P>
            <P>(A) Wave heights;</P>
            <P>(B) The ability of the structure to withstand the force of waves.</P>
            <P>(3)(i) FEMA shall accept and take fully into account information submitted by a property owner indicating that the rate for a particular structure is too high based on the ability of the structure to withstand the force of waves. In order to obtain a rate adjustment, a property owner must submit to FEMA specific information regarding the structure and its immediate environment. Such information must be certified by a registered professional architect or engineer who has demonstrable experience and competence in the fields of foundation, soils, and structural engineering. Such information should include:</P>
            <P>(A) Elevation of the structure (bottom of lowest floor beam) in relation to the Base Flood Elevation including wave height;</P>
            <P>(B) Distance of the structure from the shoreline;</P>
            <P>(C) Dune protection and other environmental factors;</P>
            <P>(D) Description of the building support system; and</P>
            <P>(E) Other relevant building details.</P>
            <FP>Adequate completion of the “V-Zone Risk Factor Rating Form” is sufficient for FEMA to determine whether a rate adjustment is appropriate. The form is available from and applications for rate adjustments should be submitted to:</FP>
            
            <EXTRACT>
              <FP SOURCE="FP-1">National Flood Insurance Program</FP>
              <FP SOURCE="FP-1">Attention: V-Zone Underwriting Specialist</FP>
              <FP SOURCE="FP-1">9901-A George Palmer Highway</FP>
              <FP SOURCE="FP-1">Lanham, MD 20706</FP>
            </EXTRACT>
            

            <FP>Pending a determination on a rate adjustment, insurance will be issued at the class rate. If the rate adjustment is granted, a refund of the appropriate portion of the premium will be made. <E T="03">Unless a property owner is seeking an adjustment of the rate prescribed by FEMA-FIA, this information need not be submitted.</E>
            </FP>
            <P>(ii) FIA shall notify communities with coastal high hazard areas and federally related lenders in such communities, of the provisions of this paragraph. Notice to the lenders may be accomplished by the Federal instrumentalities to which the lenders are related.</P>
            <P>(4) In any case in which the Regional Director has been, pursuant to § 9.11(d)(1), precluded from providing assistance for a new or substantially improved structure in a floodway, FIA may not provide a new or renewed policy of flood insurance for that structure.</P>
            <P>(f) <E T="03">Restore and preserve.</E> (1) For any action taken by the Agency which affects the floodplain or wetland and which has resulted in, or will result in, harm to the floodplain or wetland, the Agency shall act to restore and preserve the natural and beneficial values served by floodplains and wetlands.</P>
            <P>(2) Where floodplain or wetland values have been degraded by the proposed action, the Agency shall identify, evaluate and implement measures to restore the values.</P>
            <P>(3) If an action will result in harm to or within the floodplain or wetland, the Agency shall design or modify the action to preserve as much of the naturaland beneficial floodplain and wetland values as is possible.</P>
            <CITA>[45 FR 59526, Sept. 9, 1980, as amended at 46 FR 51752, Oct. 22, 1981; 48 FR 44543, Sept. 29, 1983; 49 FR 33879, Aug. 27, 1984; 49 FR 35584, Sept. 10, 1984; 50 FR 40006, Oct. 1, 1985]</CITA>
            <EFFDNOT>
              <HD SOURCE="HED">Effective Date Note:</HD>
              <P>At 45 FR 79070, Nov. 28, 1980, § 9.11(e)(4) was temporarily suspended until further notice.</P>
            </EFFDNOT>
          </SECTION>
          <SECTION>
            <SECTNO>§ 9.12</SECTNO>
            <SUBJECT>Final public notice.</SUBJECT>
            <P>If the Agency decides to take an action in or affecting a floodplain or wetland, it shall provide the public with a statement of its final decision and shall explain the relevant factors considered by the Agency in making this determination.</P>
            <P>(a) In addition, those sent notices under § 9.8 shall also be provided the final notice.</P>

            <P>(b) For actions for which an environmental impact statement is being prepared, the FEIS is adequate to constitute final notice in all cases except where:<PRTPAGE P="97"/>
            </P>
            <P>(1) Significant modifications are made in the FEIS after its initial publication;</P>
            <P>(2) Significant modifications are made in the development plan for the proposed action; or</P>
            <P>(3) Significant new information becomes available in the interim between issuance of the FEIS and implementation of the proposed action.</P>
            <FP>If any of these situations develop, the Agency shall prepare a separate final notice that contains the contents of paragraph (e) of this section and shall make it available to those who received the FEIS. A minimum of 15 days shall, without good cause shown, be allowed for comment on the final notice.</FP>
            <P>(c) For actions for which an environmental assessment was prepared, the Notice of No Significant Impact is adequate to constitute final public notice, if it includes the information required under paragraph (e) of this section.</P>
            <P>(d) For all other actions, the finding shall be made in a document separate from those described in paragraphs (a), (b), and (c) of this section. Based on an assessment of the following factors, the requirement for final notice may be met in a cumulative manner:</P>
            <P>(1) Scale of the action;</P>
            <P>(2) Potential for controversy;</P>
            <P>(3) Degree of public need;</P>
            <P>(4) Number of affected agencies and individuals;</P>
            <P>(5) Its anticipated potential impact; and</P>
            <P>(6) Similarity of the actions, i.e., to the extent that they are susceptible of common descriptions and assessments.</P>
            <FP>When a damaged structure or facility is already being repaired by the State or local government at the time of the Damage Survey Report, the requirements of Steps 2 and 7 (§§ 9.8 and 9.12) may be met by a single notice. Such notice shall contain all the information required by both sections.</FP>
            <P>(e) The final notice shall include the following:</P>
            <P>(1) A statement of why the proposed action must be located in an area affecting or affected by a floodplain or a wetland;</P>
            <P>(2) A description of all significant facts considered in making this determination;</P>
            <P>(3) A list of the alternatives considered;</P>
            <P>(4) A statement indicating whether the action conforms to applicable state and local floodplain protection standards;</P>
            <P>(5) A statement indicating how the action affects or is affected by the floodplain and/or wetland, and how mitigation is to be achieved;</P>
            <P>(6) Identification of the responsible official or organization for implementation and monitoring of the proposed action, and from whom further information can be obtained; and</P>
            <P>(7) A map of the area or a statement that such map is available for public inspection, including the location at which such map may be inspected and a telephone number to call for information.</P>
            <P>(f) After providing the final notice, the Agency shall, without good cause shown, wait at least 15 days before carrying out the action.</P>
            <CITA>[45 FR 59526, Sept. 9, 1980, as amended at 48 FR 29318, June 24, 1983]</CITA>
          </SECTION>
          <SECTION>
            <SECTNO>§ 9.13</SECTNO>
            <SUBJECT>Particular types of temporary housing.</SUBJECT>
            <P>(a) The purpose of this section is to set forth the procedures whereby the Agency will provide certain specified types of temporary housing.</P>
            <P>(b) Prior to providing the types of temporary housing enumerated in paragraph (c) of this section, the Agency shall comply with the provisions of this section. For all temporary housing not enumerated below, the full 8-step process (see § 9.6) applies.</P>
            <P>(c) The following temporary housing actions are subject to the provisions of this section and not the full 8-step process:</P>
            <P>(1) [Reserved]</P>
            <P>(2) Placing a mobile home or readily fabricated dwelling on a private or commercial site, but not a group site.</P>
            <P>(d) The actions set out in paragraph (c) of this section are subject to the following decision-making process:</P>
            <P>(1) The temporary housing action shall be evaluated in accordance with the provisions of § 9.7 to determine if it is in or affects a floodplain or wetland.</P>

            <P>(2) No mobile home or readily fabricated dwelling may be placed on a <PRTPAGE P="98"/>private or commercial site in a floodway or coastal high hazard area.</P>
            <P>(3) An individual or family shall not be housed in a floodplain or wetland unless the Regional Director has complied with the provisions of § 9.9 to determine that such site is the only practicable alternative. The following factors shall be substituted for the factors in § 9.9 (c) and (e) (2) through (4):</P>
            <P>(i) Speedy provision of temporary housing;</P>
            <P>(ii) Potential flood risk to the temporary housing occupant;</P>
            <P>(iii) Cost effectiveness;</P>
            <P>(iv) Social and neighborhood patterns;</P>
            <P>(v) Timely availability of other housing resources; and</P>
            <P>(vi) Potential harm to the floodplain or wetland.</P>
            <P>(4) An individual or family shall not be housed in a floodplain or wetland (except in existing resources) unless the Regional Director has complied with the provisions of § 9.11 to minimize harm to and within floodplains and wetlands. The following provisions shall be substituted for the provisions of § 9.11(d) for mobile homes:</P>
            <P>(i) No mobile home or readily fabricated dwelling may be placed on a private or commercial site unless it is elevated to the fullest extent practicable up to the base flood level and adequately anchored.</P>

            <P>(ii) No mobile home or readily fabricated dwelling may be placed if such placement is inconsistent with the criteria of the National Flood Insurance Program (44 CFR part 59 <E T="03">et seq.)</E> or any more restrictive Federal, State or local floodplain management standard. Such standards may require elevation to the base flood level in the absence of a variance.</P>
            <P>(iii) Mobile homes shall be elevated on open works (walls, columns, piers, piles, etc.) rather than on fill where practicable.</P>
            <P>(iv) To minimize the effect of floods on human health, safety and welfare, the Agency shall:</P>
            <P>(A) Where appropriate, integrate all of its proposed actions in placing mobile homes for temporary housing in floodplains into existing flood warning and preparedness plans and ensure that available flood warning time is reflected;</P>
            <P>(B) Provide adequate access and egress to and from the proposed site of the mobile home; and</P>
            <P>(C) Give special consideration to the unique hazard potential in flash flood and rapid-rise areas.</P>
            <P>(5) FEMA shall comply with Step 2 Early Public Notice (§ 9.8(c)) and Step 7 Final Public Notice (§ 9.12). In providing these notices, the emergency nature of temporary housing shall be taken into account.</P>
            <P>(e) FEMA shall not sell or otherwise dispose of mobile homes or other readily fabricated dwellings which would be located in floodways or coastal high hazard areas. FEMA shall not sell or otherwise dispose of mobile homes or other readily fabricated dwellings which would be located in floodplains or wetlands unless there is full compliance with the 8-step process. Given the vulnerability of mobile homes to flooding, a rejection of a non-floodplain location alternative and of the no-action alternative shall be based on (1) a compelling need of the family or individual to buy a mobile home for permanent housing, and (2) a compelling requirement to locate the unit in a floodplain. Further, FEMA shall not sell or otherwise dispose of mobile homes or otherreadily fabricated dwellings in a floodplain unless they are elevated at least to the level of the 100-year flood. The Regional Director shall notify the Associate Director for State and Local Programs and Support of each instance where a floodplain location has been found to be the only practicable alternative for a mobile home sale.</P>
            <CITA>[45 FR 59526, Sept. 9, 1980, as amended at 47 FR 13149, Mar. 29, 1982; 49 FR 35584, Sept. 10, 1984; 50 FR 40006, Oct. 1, 1985]</CITA>
          </SECTION>
          <SECTION>
            <SECTNO>§ 9.14</SECTNO>
            <SUBJECT>Disposal of Agency property.</SUBJECT>
            <P>(a) The purpose of this section is to set forth the procedures whereby the Agency shall dispose of property.</P>
            <P>(b) Prior to its disposal by sale, lease or other means of disposal, property proposed to be disposed of by the Agency shall be reviewed according to the decision-making process set out in § 9.6 of this part, as follows:</P>

            <P>(1) The property shall be evaluated in accordance with the provisions of § 9.7 <PRTPAGE P="99"/>to determine if it affects or is affected by a floodplain or wetland;</P>
            <P>(2) The public shall be notified of the proposal and involved in the decision-making process in accordance with the provisions of § 9.8;</P>
            <P>(3) Practicable alternatives to disposal shall be evaluated in accordance with the provisions of § 9.9. For disposals, this evaluation shall focus on alternative actions (conveyance for an alternative use that is more consistent with the floodplain management and wetland protection policies set out in § 9.2 than the one proposed, e.g., open space use for park or recreational purposes rather than high intensity uses), and on the “no action” option (retain the property);</P>
            <P>(4) Identify the potential impacts and support associated with the disposal of the property in accordance with § 9.10;</P>
            <P>(5) Identify the steps necessary to minimize, restore, preserve and enhance in accordance with § 9.11. For disposals, this analysis shall address all four of these components of mitigation where unimproved property is involved, but shall focus on minimization through floodproofing and restoration of natural values where improved property is involved;</P>
            <P>(6) Reevaluate the proposal to dispose of the property in light of its exposure to the flood hazard and its natural values-related impacts, in accordance with § 9.9. This analysis shall focus on whether it is practicable in light of the findings from §§ 9.10 and 9.11 to dispose of the property, or whether it must be retained. If it is determined that it is practicable to dispose of the property, this analysis shall identify the practicable alternative that best achieves all of the components of the Orders' mitigation responsibility;</P>
            <P>(7) To the extent that it would decrease the flood hazard to lives and property, the Agency shall, wherever practicable, dispose of the properties according to the following priorities:</P>
            <P>(i) Properties located outside the floodplain;</P>
            <P>(ii) Properties located in the flood fringe; and</P>
            <P>(iii) Properties located in a floodway, regulatory floodway or coastal high hazard area.</P>
            <P>(8) The Agency shall prepare and provide the public with a finding and public explanation in accordance with § 9.12.</P>
            <P>(9) The Agency shall ensure that the applicable mitigation requirements are fully implemented in accordance with § 9.11.</P>
            <P>(c) At the time of disposal, for all disposed property, the Agency shall reference in the conveyance uses that are restricted under existing Federal, State and local floodplain management and wetland protection standards relating to flood hazards and floodplain and wetland values.</P>
          </SECTION>
          <SECTION>
            <SECTNO>§ 9.15</SECTNO>
            <SUBJECT>Planning programs affecting land use.</SUBJECT>
            <P>The Agency shall take floodplain management into account when formulating or evaluating any water and land use plans. No plan may be approved unless it:</P>
            <P>(a) Reflects consideration of flood hazards and floodplain management and wetlands protection; and</P>
            <P>(b) Prescribes planning procedures to implement the policies and requirements of the Orders and this regulation.</P>
          </SECTION>
          <SECTION>
            <SECTNO>§ 9.16</SECTNO>
            <SUBJECT>Guidance for applicants.</SUBJECT>
            <P>(a) The Agency shall encourage and provide adequate guidance to applicants for agency assistance to evaluate the effects of their plans and proposals in or affecting floodplains and wetlands.</P>
            <P>(b) This shall be accomplished primarily through amendment of all Agency instructions to applicants, e.g., program handbooks, contracts, application and agreement forms, etc., and also through contact made by agency staff during the normal course of their activities, to fully inform prospective applicants of:</P>
            <P>(1) The Agency's policy on floodplain management and wetlands protection as set out in § 9.2;</P>
            <P>(2) The decision-making process to be used by the Agency in making the determination of whether to provide the required assistance as set out in § 9.6;</P>
            <P>(3) The nature of the Orders' practicability analysis as set out in § 9.9;</P>

            <P>(4) The nature of the Orders' mitigation responsibilities as set out in § 9.11;<PRTPAGE P="100"/>
            </P>
            <P>(5) The nature of the Orders' public notice and involvement process as set out in §§ 9.8 and 9.12; and</P>
            <P>(6) The supplemental requirements applicable to applications for the lease or other disposal of Agency owned properties set out in § 9.14.</P>
            <P>(c) Guidance to applicants shall be provided where possible, prior to the time of application in order to minimize potential delays in process application due to failure of applicants to recognize and reflect the provisions of the Orders and this regulation.</P>
          </SECTION>
          <SECTION>
            <SECTNO>§ 9.17</SECTNO>
            <SUBJECT>Instructions to applicants.</SUBJECT>
            <P>(a) <E T="03">Purpose.</E> In accordance with Executive Orders 11988 and 11990, the Federal executive agencies must respond to a number of floodplain management and wetland protection responsibilities before carrying out any of their activities, including the provision of Federal financial and technical assistance. The purpose of this section is to put applicants for Agency assistance on notice concerning both the criteria that it is required to follow under the Orders, and applicants' responsibilities under this regulation.</P>
            <P>(b) <E T="03">Responsibilities of Applicants.</E> Based upon the guidance provided by the Agency under § 9.16, that guidance included in the U.S. Water Resources Council's <E T="03">Guidance for Implementing E.O. 11988,</E> and based upon the provisions of the Orders and this regulation, applicants for Agency assistance shall recognize and reflect in their application:</P>
            <P>(1) The Agency's policy on floodplain management and wetlands protection as set out in § 9.2;</P>
            <P>(2) The decision-making process to be used by the Agency in making the determination of whether to provide the requested assistance as set out in § 9.6;</P>
            <P>(3) The nature of the Orders' practicability analysis as set out in § 9.9;</P>
            <P>(4) The nature of the Orders' mitigation responsibilities as set out in § 9.11;</P>
            <P>(5) The nature of the Orders' public and involvement process as set out in §§ 9.8 and 9.12; and</P>
            <P>(6) The supplemental requirements for application for the lease or other disposal of Agency-owned properties, as set out in § 9.13.</P>
            <P>(c) <E T="03">Provision of supporting information.</E> Applicants for Agency assistance may be called upon to provide supporting information relative to the various responsibilities set out in paragraph (b) of this section as a prerequisite to the approval of their applications.</P>
            <P>(d) <E T="03">Approval of applications.</E> Applications for Agency assistance shall be reviewed for the recognition and reflection of the provisions of this regulation in addition to the Agency's existing approval criteria.</P>
          </SECTION>
          <SECTION>
            <SECTNO>§ 9.18</SECTNO>
            <SUBJECT>Responsibilities.</SUBJECT>
            <P>(a) <E T="03">Regional Directors' responsibilities.</E> Regional Directors shall, for all actions falling within their respective jurisdictions:</P>
            <P>(1) Implement the requirements of the Orders and this regulation. Anywhere in §§ 9.2, 9.6 through 9.13, and 9.15 where a direction is given to the Agency, it is the responsibility of the Regional Director.</P>
            <P>(2) Consult with the General Counsel regarding any question of interpretation concerning this regulation or the Orders.</P>
            <P>(b) <E T="03">Associate Directors' responsibilities.</E> Associate Directors/Administrators shall ensure that the offices/administrations under their jurisdiction:</P>
            <P>(1) Implement the requirements of the Orders and this regulation. When a decision of a Regional Director relating to disaster assistance is appealed, the Associate Director for State and Local Programs and Support may make determinations under these regulations on behalf of the Agency.</P>
            <P>(2) Identify within ninety (90) days of the effective date of this regulation:</P>
            <P>(i) The modifications that are necessary to make their existing floodplain management and wetlands protection procedures adequate to meet the directives of the Orders;</P>
            <P>(ii) Which of these modifications should be made a part of this regulation;</P>
            <P>(iii) Which of these modifications are to be included in program regulations other than this one; and</P>

            <P>(iv) The steps being taken to prepare and implement these modifications.<PRTPAGE P="101"/>
            </P>
            <P>(3) Are in full compliance with the Orders' provisions through the modification of their processes in accordance with paragraphs (b) (1) and (2) of this section.</P>
            <P>(4) Prepare and submit to the Office of General Counsel reports to the Office of Management and Budget in accordance with section 2(b) of E.O. 11988 and section 3 of E.O. 11990. If a proposed action is to be located in a floodplain or wetland, any requests to the Office of Management and Budget for new authorizations or appropriations shall be accompanied by a report indicating whether the proposed action is in accord with the Orders and these regulations.</P>
            <CITA>[45 FR 59526, Sept. 9, 1980, as amended at 49 FR 33879, Aug. 27, 1984]</CITA>
          </SECTION>
          <APPENDIX>
            <EAR>Pt. 9, App. A</EAR>
            <HD SOURCE="HED">Appendix A to Part 9—Decision-making Process for E.O. 11988</HD>
            <GPH DEEP="290" SPAN="2">
              <GID>EC02FE91.074</GID>
            </GPH>
          </APPENDIX>
        </PART>
        <PART>
          <EAR>Pt. 10</EAR>
          <HD SOURCE="HED">PART 10—ENVIRONMENTAL CONSIDERATIONS</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart A—General</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>10.1</SECTNO>
              <SUBJECT>Background and purpose.</SUBJECT>
              <SECTNO>10.2</SECTNO>
              <SUBJECT>Applicability and scope.</SUBJECT>
              <SECTNO>10.3</SECTNO>
              <SUBJECT>Definitions.</SUBJECT>
              <SECTNO>10.4</SECTNO>
              <SUBJECT>Policy.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart B—Agency Implementing Procedures</HD>
              <SECTNO>10.5</SECTNO>
              <SUBJECT>Responsibilities.</SUBJECT>
              <SECTNO>10.6</SECTNO>
              <SUBJECT>Making or amending policy.</SUBJECT>
              <SECTNO>10.7</SECTNO>
              <SUBJECT>Planning.</SUBJECT>
              <SECTNO>10.8</SECTNO>
              <SUBJECT>Determination of requirement for environmental review.</SUBJECT>
              <SECTNO>10.9</SECTNO>
              <SUBJECT>Preparation of environmental assessments.<PRTPAGE P="102"/>
              </SUBJECT>
              <SECTNO>10.10</SECTNO>
              <SUBJECT>Preparation of environmental impact statements.</SUBJECT>
              <SECTNO>10.11</SECTNO>
              <SUBJECT>Environmental information.</SUBJECT>
              <SECTNO>10.12</SECTNO>
              <SUBJECT>Pre-implementation actions.</SUBJECT>
              <SECTNO>10.13</SECTNO>
              <SUBJECT>Emergencies.</SUBJECT>
              <SECTNO>10.14</SECTNO>
              <SUBJECT>Flood plains and wetlands.</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>42 U.S.C. 4321 <E T="03">et seq.</E>; E.O. 11514 of March 7, 1970, 35 FR 4247, as amended by E. O. 11991 of March 24, 1977, 3 CFR, 1977 Comp., p. 123; Reorganization Plan No. 3 of 1978, 43 FR 41943, 3 CFR, 1978 Comp., p. 329; E.O. 12127 of March 31, 1979, 44 FR 19367, 3 CFR, 1979 Comp., p. 376; E.O. 12148 of July 20, 1979, 44 FR 43239, 3 CFR, 1979 Comp., p. 412, as amended.</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>45 FR 41142, June 18, 1980, unless otherwise noted.</P>
          </SOURCE>
          <SUBPART>
            <HD SOURCE="HED">Subpart A—General</HD>
            <SECTION>
              <SECTNO>§ 10.1</SECTNO>
              <SUBJECT>Background and purpose.</SUBJECT>

              <P>(a) This part implements the Council on Environmental Quality (CEQ) regulations (National Environmental Policy Act Regulations, 43 FR 55978 (1978)) and provides policy and procedures to enable Federal Emergency Management Agency (FEMA) officials to be informed of and take into account environmental considerations when authorizing or approving major FEMA actions that significantly affect the environment in the United States. The Council on Environmental Quality Regulations implement the procedural provisions, section 102(2), of the National Environmental Policy Act of 1969, as amended (hereinafter NEPA) (Pub. L. 91-190, 42 U.S.C. 4321 <E T="03">et seq.</E>), and Executive Order 11991, 42 FR 26967 (1977).</P>
              <P>(b) Section 1507.3, Council on Environmental Quality Regulations (National Environmental Policy Act Regulations, 43 FR 55978 (1978)) directs that Federal agencies shall adopt procedures to supplement the CEQ regulations. This regulation provides detailed FEMA implementing procedures to supplement the CEQ regulations.</P>
              <P>(c) The provisions of this part must be read together with those of the CEQ regulations and NEPA as a whole when applying the NEPA process.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 10.2</SECTNO>
              <SUBJECT>Applicability and scope.</SUBJECT>
              <P>The provisions of this part apply to the Federal Emergency Management Agency, (hereinafter referred to as FEMA) including any office or administration of FEMA, and the FEMA regional offices.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 10.3</SECTNO>
              <SUBJECT>Definitions.</SUBJECT>
              <P>(a) Regional Director means the Regional Director of the Federal Emergency Management Agency for the region in which FEMA is acting.</P>
              <P>(b) The other terms used in this part are defined in the CEQ regulations (40 CFR part 1508).</P>
              <P>(c) Environmental Officer means the Chief, Public Assistance Division, Office of Disaster Assistance Programs, State and Local Programs and Support Directorate.</P>
              <CITA>[45 FR 41142, June 18, 1980, as amended at 47 FR 13149, Mar. 29, 1982; 50 FR 40006, Oct. 1, 1985]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>§ 10.4</SECTNO>
              <SUBJECT>Policy.</SUBJECT>
              <P>(a) FEMA shall act with care to assure that, in carrying out its responsibilities, including disaster planning, response and recovery and hazard mitigation and flood insurance, it does so in a manner consistent with national environmental policies. Care shall be taken to assure, consistent with other considerations of national policy, that all practical means and measures are used to protect, restore, and enhance the quality of the environment, to avoid or minimize adverse environmental consequences, and to attain the objectives of:</P>
              <P>(1) Achieving use of the environment without degradation, or undesirable and unintended consequences;</P>
              <P>(2) Preserving historic, cultural and natural aspects of national heritage and maintaining, wherever possible, an environment that supports diversity and variety of individual choice;</P>
              <P>(3) Achieving a balance between resource use and development within the sustained carrying capacity of the ecosystem involved; and</P>
              <P>(4) Enhancing the quality of renewable resources and working toward the maximum attainable recycling of depletable resources.</P>
              <P>(b) <E T="03">FEMA shall:</E>
              </P>

              <P>(1) Assess environmental consequences of FEMA actions in accordance with §§ 10.9 and 10.10 of this part and parts 1500 through 1508 of the CEQ regulations;<PRTPAGE P="103"/>
              </P>
              <P>(2) Use a systematic, interdisciplinary approach that will ensure the integrated use of the natural and social sciences, and environmental considerations, in planning and decisionmaking where there is a potential for significant environmental impact;</P>
              <P>(3) Ensure that presently unmeasured environmental amenities are considered in the decisionmaking process;</P>
              <P>(4) Consider reasonable alternatives to recommended courses of action in any proposal that involves conflicts concerning alternative uses of resources; and</P>
              <P>(5) Make available to States, counties, municipalities, institutions and individuals advice and information useful in restoring, maintaining, and enhancing the quality of the environment.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart B—Agency Implementing Procedures</HD>
            <SECTION>
              <SECTNO>§ 10.5</SECTNO>
              <SUBJECT>Responsibilities.</SUBJECT>
              <P>(a) <E T="03">The Regional Directors shall,</E> for each action not categorically excluded from this regulation and falling within their respective jurisdictions:</P>
              <P>(1) Prepare an environmental assessment and submit such assessment to the Environmental Officer and the Office of General Counsel (OGC);</P>
              <P>(2) Prepare a finding of no significant impact, or prepare an environmental impact statement;</P>
              <P>(3) Coordinate and provide information regarding environmental review with applicants for FEMA assistance;</P>
              <P>(4) Prepare and maintain an administrative record for each proposal that is determined to be categorically excluded from this regulation;</P>
              <P>(5) Involve environmental agencies, applicants, and the public to the extent practicable in preparing environmental assessments;</P>
              <P>(6) Prepare, as required, a supplement to either the draft or final environmental impact statement;</P>
              <P>(7) Circulate draft and final environmental impact statements;</P>
              <P>(8) Ensure that decisions are made in accordance with the policies and procedures of NEPA and this part, and prepare a concise public record of such decisions;</P>
              <P>(9) Consider mitigating measures to avoid or minimize environmental harm, and, in particular, harm to and within floodplains and wetlands; and</P>
              <P>(10) Review and comment upon, as appropriate, environmental assessments and impact statements of other Federal agencies and of State and local entities within their respective regions.</P>
              <P>(b) <E T="03">The Environmental Officer shall:</E>
              </P>
              <P>(1) Determine, on the basis of the environmental assessment whether an environmental impact statement is required, or whether a finding of no significant impact shall be prepared;</P>
              <P>(2) Review all proposed changes or additions to the list of categorical exclusions;</P>
              <P>(3) Review all findings of no significant impact;</P>
              <P>(4) Review all proposed draft and final environmental statements;</P>
              <P>(5) Publish the required notices in the <E T="04">Federal Register;</E>
              </P>
              <P>(6) Provide assistance in the preparation of environmental assessments and impact statements and assign lead agency responsibility when more than one FEMA office or administration is involved;</P>
              <P>(7) Direct the preparation of environmental documents for specific actions when required;</P>
              <P>(8) Comply with the requirements of this part when the Director of FEMA promulgates regulations, procedures or other issuances making or amending Agency policy;</P>
              <P>(9) Provide, when appropriate, consolidated FEMA comments on draft and final impact statements prepared for the issuance of regulations and procedures of other agencies;</P>
              <P>(10) Review FEMA issuances that have environmental implications;</P>
              <P>(11) Maintain liaison with the Council on Environmental Quality, the Environmental Protection Agency, the Office of Management and Budget, other Federal agencies, and State and local groups, with respect to environmental analysis for FEMA actions affecting the environment.</P>
              <P>(c) <E T="03">The Heads of the Office and Administrations of FEMA shall:</E>
              </P>

              <P>(1) Assess environmental consequences of proposed and on-going <PRTPAGE P="104"/>programs within their respective organizational units;</P>
              <P>(2) Prepare and process environmental assessments and environmental impact statements for all regulations, procedures and other issuances making or amending program policy related to actions which do not qualify for categorical exclusions;</P>
              <P>(3) Integrate environmental considerations into their decisionmaking processes;</P>
              <P>(4) Ensure that regulations, procedures and other issuances making or amending program policy are reviewed for consistency with the requirements of this part;</P>
              <P>(5) Designate a single point of contact for matters pertaining to this part;</P>
              <P>(6) Provide applicants for FEMA assistance with technical assistance regarding FEMA's environmental review process.</P>
              <P>(d) <E T="03">The Office of General Counsel of FEMA shall:</E>
              </P>
              <P>(1) Provide advice and assistance concerning the requirements of this part;</P>
              <P>(2) Review all proposed changes or additions to the list of categorical exclusions;</P>
              <P>(3) Review all findings of no significant impact; and</P>
              <P>(4) Review all proposed draft and final environmental impact statements.</P>
              <CITA>[45 FR 41142, June 18, 1980, as amended at 47 FR 13149, Mar. 29, 1982]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>§ 10.6</SECTNO>
              <SUBJECT>Making or amending policy.</SUBJECT>
              <P>For all regulations, procedures, or other issuances making or amending policy, the head of the FEMA office or administration establishing such policy shall be responsible for application of this part to that action. This does not apply to actions categorically excluded. For all policy-making actions not categorically excluded, the head of the office or administration shall comply with the requirements of this part. Thus, for such actions, the office or administration head shall assume the responsibilities that a Regional Director assumes for a FEMA action in his/her respective region. For such policy-making actions taken by the Director of FEMA, the Environmental Officer shall assume the responsibilities that a Regional Director assumes for a FEMA action in his/her respective region.</P>
              <CITA>[45 FR 41142, June 18, 1980, as amended at 47 FR 13149, Mar. 29, 1982]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>§ 10.7</SECTNO>
              <SUBJECT>Planning.</SUBJECT>
              <P>(a) <E T="03">Early planning.</E> The Regional Director shall integrate the NEPA process with other planning at the earliest possible time to ensure that planning decisions reflect environmental values, to avoid delays later in the process, and to head off potential conflicts.</P>
              <P>(b) <E T="03">Lead agency.</E> To determine the lead agency for policy-making in which more than one FEMA office or administration is involved or any action in which another Federal agency is involved, FEMA offices and administrations shall apply criteria defined in § 1501.5 of the CEQ regulation. If there is disagreement, the FEMA offices and/or administrations shall forward a request for lead agency determination to the Environmental Officer;</P>
              <P>(1) The Environmental Officer will determine lead agency responsibility among FEMA offices and administration.</P>
              <P>(2) In those cases involving a FEMA office or administration and another Federal agency, the Environmental Officer will attempt to resolve the differences. If unsuccessful, the Environmental Officer will file the request with the Council on Environmental Quality for determination.</P>
              <P>(c) <E T="03">Technical assistance to applicants.</E> (1) Section 1501.2(d) of the CEQ regulations requires agencies to provide for early involvement in actions which, while planned by private applicants or other non-Federal entities, require some form of Federal approval. To implement the requirements of § 1501.2(d),</P>
              <P>(i) The heads of the FEMA offices and administration shall prepare where practicable, generic guidelines describing the scope and level of environmental information required from applicants as a basis for evaluating their proposed actions, and make these guidelines available upon request.</P>
              <P>(ii) The Regional Director shall provide such guidance on a project-by-project basis to applicants seeking assistance from FEMA.</P>

              <P>(iii) Upon receipt of an application for agency approval, or notification <PRTPAGE P="105"/>that an application will be filed, the Regional Director shall consult as required with other appropriate parties to initiate and coordinate the necessary environmental analyses.</P>
              <P>(2) To facilitate compliance with the requirements of paragraph (a) of this section, applicants and other non-Federal entities are expected to:</P>
              <P>(i) Contact the Regional Director as early as possible in the planning process for guidance on the scope and level of environmental information required to be submitted in support of their application;</P>
              <P>(ii) Conduct any studies which are deemed necessary and appropriate by FEMA to determine the impact of the proposed action on the human environment;</P>
              <P>(iii) Consult with appropriate Federal, regional, State, and local agencies and other potentially interested parties during preliminary planning stages to ensure that all environmental factors are identified;</P>
              <P>(iv) Submit applications for all Federal, regional, State, and local approv-als as early as possible in the planning process;</P>
              <P>(v) Notify the Regional Director as early as possible of all other Federal, regional, State, local, and Indian tribe actions required for project completion so that FEMA may coordinate all Federal environmental reviews; and</P>
              <P>(vi) Notify the Regional Director of all known parties potentially affected by or interested in the proposed action.</P>
              <CITA>[45 FR 41142, June 18, 1980, as amended at 47 FR 13149, Mar. 29, 1982]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>§ 10.8</SECTNO>
              <SUBJECT>Determination of requirement for environmental review.</SUBJECT>
              <P>The first step in applying the NEPA process is to determine whether to prepare an environmental assessment or an environmental impact statement. Early determination will help ensure that necessary environmental documentation is prepared and integrated into the decision-making process. Environmental impact statements will be prepared for all major Agency actions (see 40 CFR 1508.18) significantly (see 40 CFR 1508.27) affecting the quality of the human environment.</P>
              <P>(a) In determining whether to prepare an environmental impact statement (EIS) the Regional Director will first determine whether the proposal is one which:</P>
              <P>(1) Normally requires an environmental impact statement; or</P>
              <P>(2) Normally does not require either an environmental impact statement or an environmental assessment (categorical exclusion).</P>
              <P>(b) <E T="03">Actions that normally require an EIS.</E> (1) In some cases, it will be readily apparent that a proposed action will have significant impact on the environment. In that event, the Regional Director will, pursuant to § 10.9(g) of this part, submit the notice of preparation of an environmental impact statement to the Environmental Officer.</P>
              <P>(2) To assist in determining those actions that normally do require an environmental impact statement, the following criteria apply:</P>
              <P>(i) If an action will result in an extensive change in land use or the commitment of a large amount of land;</P>
              <P>(ii) If an action will result in a land use change which is incompatible with the existing or planned land use of the surrounding area;</P>
              <P>(iii) If many people will be affected;</P>
              <P>(iv) If the environmental impact of the project is likely to be controversial;</P>
              <P>(v) If an action will affect, in large measure, wildlife populations and their habitats, important natural resources, floodplains, wetlands, estuaries, beaches, dunes, unstable soils, steep slopes, aquifer recharge areas, or delicate or rare ecosystems, including endangered species;</P>
              <P>(vi) If an action will result in a major adverse impact upon air or water quality;</P>
              <P>(vii) If an action will adversely affect a property listed on the National Register of Historic Places or eligible for listing on the Register if, after consultation with the Advisory Council on Historic Preservation an environmental assessment is not deemed sufficient;</P>
              <P>(viii) If an action is one of several actions underway or planned for an area and the cumulative impact of these projects is considered significant in terms of the above criteria;</P>

              <P>(ix) If an action holds potential for threat or hazard to the public; or<PRTPAGE P="106"/>
              </P>
              <P>(x) If an action is similar to previous actions determined to require an environmental impact statement.</P>
              <P>(3) In any case involving an action that normally does require an environmental impact statement, the Regional Director may prepare an environmental assessment to determine if an environmental impact statement is required.</P>
              <P>(c) <E T="03">Statutory exclusions.</E> The following actions are statutorily excluded from NEPA and the preparation of environmental impact statements and environmental assessments by section 316 ofthe Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act), as amended, 42 U.S.C. 5159;</P>
              <P>(1) Action taken or assistance provided under sections 402, 403, 407, or 502 of the Stafford Act; and</P>
              <P>(2) Action taken or assistance provided under section 406 of the Stafford Act that has the effect of restoring facilities substantially as they existed before a major disaster or emergency.</P>
              <P>(d) <E T="03">Categorical Exclusions (CATEXs).</E> CEQ regulations at 40 CFR 1508.4 provide for the categorical exclusion of actions that do not individually or cumulatively have a significant impact on the human environment and for which, therefore, neither an environmental assessment nor an environmental impact statement is required. Full implementation of this concept will help FEMA avoid unnecessary or duplicate effort and concentrate resources on significant environmental issues.</P>
              <P>(1) <E T="03">Criteria.</E> The criteria used for determination of those categories of actions that normally do not require either an environmental impact statement or an environmental assessment include:</P>
              <P>(i) Minimal or no effect on environmental quality;</P>
              <P>(ii) No significant change to existing environmental conditions; and</P>
              <P>(iii) No significant cumulative environmental impact.</P>
              <P>(2) <E T="03">List of exclusion categories.</E> FEMA has determined that the following categories of actions have no significant effect on the human environment and are, therefore, categorically excluded from the preparation of environmental impact statements and environmental assessments except where extraordinary circumstances as defined in paragraph (d)(5) of this section exist. If the action is of an emergency nature as described in § 316 of the Stafford Act (42 U.S.C. 5159), it is statutorily excluded and is noted with [SE].</P>
              <P>(i) Administrative actions such as personnel actions, travel, procurement of supplies, etc., in support of normal day-to-day activities and disaster related activities;</P>
              <P>(ii) Preparation, revision, and adoption of regulations, directives, manuals, and other guidance documents related to actions that qualify for categorical exclusions;</P>
              <P>(iii) Studies that involve no commitment of resources other than manpower and associated funding;</P>
              <P>(iv) Inspection and monitoring activities, granting of variances, and actions to enforce Federal, state, or local codes, standards or regulations;</P>
              <P>(v) Training activities and both training and operational exercises utilizing existing facilities in accordance with established procedures and land use designations;</P>
              <P>(vi) Procurement of goods and services for support of day-to-day and emergency operational activities, and the temporary storage of goods other than hazardous materials, so long as storage occurs on previously disturbed land or in existing facilities;</P>
              <P>(vii) The acquisition of properties and the associated demolition/removal [see paragraph (d)(2)(xii) of this section] or relocation of structures [see paragraph (d)(2)(xiii) of this section] under any applicable authority when the acquisition is from a willing seller, the buyer coordinated acquisition planning with affected authorities, and the acquired property will be dedicated in perpetuity to uses that are compatible with open space, recreational, or wetland practices.</P>
              <P>(viii) Acquisition or lease of existing facilities where planned uses conform to past use or local land use requirements;</P>

              <P>(ix) Acquisition, installation, or operation of utility and communication systems that use existing distribution systems or facilities, or currently used infrastructure rights-of-way;<PRTPAGE P="107"/>
              </P>
              <P>(x) Routine maintenance, repair, and grounds-keeping activities at FEMA facilities;</P>
              <P>(xi) Planting of indigenous vegetation;</P>
              <P>(xii) Demolition of structures and other improvements or disposal of uncontaminated structures and other improvements to permitted off-site locations, or both;</P>
              <P>(xiii) Physical relocation of individual structures where FEMA has no involvement in the relocation site selection or development;</P>
              <P>(xiv) Granting of community-wide exceptions for floodproofed residentialbasements meeting the requirements of 44 CFR 60.6(c) under the National Flood Insurance Program;</P>
              <P>(xv) Repair, reconstruction, restoration, elevation, retrofitting, upgrading to current codes and standards, or replacement of any facility in a manner that substantially conforms to the preexisting design, function, and location; [SE, in part]</P>
              <P>(xvi) Improvements to existing facilities and the construction of small scale hazard mitigation measures in existing developed areas with substantially completed infrastructure, when the immediate project area has already been disturbed, and when those actions do not alter basic functions, do not exceed capacity of other system components, or modify intended land use; provided the operation of the completed project will not, of itself, have an adverse effect on the quality of the human environment;</P>
              <P>(xvii) Actions conducted within enclosed facilities where all airborne emissions, waterborne effluent, external radiation levels, outdoor noise, and solid and bulk waste disposal practices comply with existing Federal, state, and local laws and regulations;</P>
              <P>(xviii) The following planning and administrative activities in support of emergency and disaster response and recovery:</P>
              <P>(A) Activation of the Emergency Support Team and convening of the Catastrophic Disaster Response Group at FEMA headquarters;</P>
              <P>(B) Activation of the Regional Operations Center and deployment of the Emergency Response Team, in whole or in part;</P>
              <P>(C) Deployment of Urban Search and Rescue teams;</P>
              <P>(D) Situation Assessment including ground and aerial reconnaissance;</P>
              <P>(E) Information and data gathering and reporting efforts in support of emergency and disaster response and recovery and hazard mitigation; and</P>
              <P>(xix) The following emergency and disaster response, recovery and hazard mitigation activities under the Stafford Act:</P>
              <P>(A) General Federal Assistance (§ 402); [SE]</P>
              <P>(B) Essential Assistance (§ 403); [SE]</P>
              <P>(C) Debris Removal (§ 407) [SE]</P>
              <P>(D) Temporary Housing (§ 408), except locating multiple mobile homes or other readily fabricated dwellings on sites, other than private residences, not previously used for such purposes;</P>
              <P>(E) Unemployment Assistance (§ 410);</P>
              <P>(F) Individual and Family Grant Programs (§ 411), except for grants that will be used for restoring, repairing or building private bridges, or purchasing mobile homes or other readily fabricated dwellings;</P>
              <P>(G) Food Coupons and Distribution (§ 412);</P>
              <P>(H) Food Commodities (§ 413);</P>
              <P>(I) Legal Services (§ 415);</P>
              <P>(J) Crisis Counseling Assistance and Training (§ 416);</P>
              <P>(K) Community Disaster Loans (§ 417);</P>
              <P>(L) Emergency Communications (§ 418);</P>
              <P>(M) Emergency Public Transportation (§ 419);</P>
              <P>(N) Fire Management Assistance Grants; and</P>
              <P>(O) Federal Emergency Assistance (§ 502) [SE].</P>
              <P>(3) <E T="03">Extraordinary circumstances.</E> If extraordinary circumstances exist within an area affected by an action, such that an action that is categorically excluded from NEPA compliance may have a significant adverse environmental impact, an environmental assessment shall be prepared. Extraordinary circumstances that may have a significant environmental impact include:</P>

              <P>(i) Greater scope or size than normally experienced for a particular category of action;<PRTPAGE P="108"/>
              </P>
              <P>(ii) Actions with a high level of public controversy;</P>
              <P>(iii) Potential for degradation, even though slight, of already existing poor environmental conditions;</P>
              <P>(iv) Employment of unproven technology with potential adverse effects or actions involving unique or unknown environmental risks;</P>
              <P>(v) Presence of endangered or threatened species or their critical habitat, or archaeological, cultural, historical or other protected resources;</P>
              <P>(vi) Presence of hazardous or toxic substances at levels which exceed Federal, state or local regulations orstandards requiring action or attention;</P>
              <P>(vii) Actions with the potential to affect special status areas adversely or other critical resources such as wetlands, coastal zones, wildlife refuge and wilderness areas, wild and scenic rivers, sole or principal drinking water aquifers;</P>
              <P>(viii) Potential for adverse effects on health or safety; and</P>
              <P>(ix) Potential to violate a Federal, State, local or tribal law or requirement imposed for the protection of the environment.</P>
              <P>(x) Potential for significant cumulative impact when the proposed action is combined with other past, present and reasonably foreseeable future actions, even though the impacts of the proposed action may not be significant by themselves.</P>
              <P>(4) <E T="03">Documentation.</E> The Regional Director will prepare and maintain an administrative record of each proposal that is determined to be categorically excluded from the preparation of an environmental impact statement or an environmental assessment.</P>
              <P>(5) <E T="03">Revocation.</E> The Regional Director shall revoke a determination of categorical exclusion and shall require a full environmental review if, subsequent to the granting an exclusion, the Regional Director determines that due to changes in the proposed action or in light of new findings, the action no longer meets the requirements for a categorical exclusion.</P>
              <P>(6) <E T="03">Changes to the list of exclusion categories.</E> (i) The FEMA list of exclusion categories will be continually reviewed and refined as additional categories are identified and experience is gained in the categorical exclusion process. An office, directorate, or administration of FEMA may, at any time, recommend additions or changes to the FEMA list of exclusion categories.</P>
              <P>(ii) Offices, directorates, and administrations of FEMA are encouraged to develop additional categories of exclusions necessary to meet their unique operational and mission requirements.</P>
              <P>(iii) If an office, directorate, or administration of FEMA proposes to change or add to the list of exclusion categories, it shall first:</P>
              <P>(A) Obtain the approval of the Environmental Officer and the Office of the General Counsel; and</P>

              <P>(B) Publish notice of such proposed change or addition in the <E T="04">Federal Register</E> at least 60 days before the effective date of such change or addition.</P>
              <P>(e) <E T="03">Actions that normally require an environmental assessment.</E> When a proposal is not one that normally requires an environmental impact statement and does not qualify as a categorical exclusion, the Regional Director shall prepare an environmental assessment.</P>
              <P>(f) <E T="03">Documentation.</E> The Regional Director will prepare and maintain an administrative record of each proposal that is determined to be categorically excluded from the preparation of an environmental impact statement or an environmental assessment.</P>
              <P>(g) <E T="03">Actions that normally require an environmental assessment.</E> When a proposal is not one that normally requires an environmental impact statement and does not qualify as a categorical exclusion, the Regional Director shall prepare an environmental assessment.</P>
              <CITA>[45 FR 41142, June 18, 1980, as amended at 46 FR 2049, Jan. 8, 1981; 46 FR 54346, Nov. 3, 1981; 47 FR 13149, Mar. 29, 1982; 52 FR 5285, Feb. 20, 1987; 59 FR 954, Jan. 7, 1994; 61 FR 4230, Feb. 5, 1996; 61 FR 10688, Mar. 15, 1996; 66 FR 57347, Nov. 14, 2001]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>§ 10.9</SECTNO>
              <SUBJECT>Preparation of environmental assessments.</SUBJECT>
              <P>(a) <E T="03">When to prepare.</E> The Regional Director shall begin preparation of an environmental assessment as early as possible after the determination that <PRTPAGE P="109"/>an assessment is required. The Regional Director may prepare an environmental assessment at any time to assist planning and decision-making.</P>
              <P>(b) <E T="03">Content and format.</E> The environmental assessment is a concise public document to determine whether to prepare an environmental impact statement, aiding in compliance with NEPA when no EIS is necessary, and facilitating preparation of a statement when one is necessary. Preparation of an environmental assessment generally will not require extensive research or lengthy documentation. The environmental assessment shall contain brief discussion of the following:</P>
              <P>(1) Purpose and need for the proposed action.</P>
              <P>(2) Description of the proposed action.</P>
              <P>(3) Alternatives considered.</P>
              <P>(4) Environmental impact of the proposed action and alternatives.</P>
              <P>(5) Listing of agencies and persons consulted.</P>
              <P>(6) Conclusion of whether to prepare an environmental impact statement.</P>
              <P>(c) <E T="03">Public participation.</E> The Regional Director shall involve environmental agencies, applicants, and the public, to the extent practicable, in preparing environmental assessments. In determining “to the extent practicable,” the Regional Director shall consider:</P>
              <P>(1) Magnitude of the proposal;</P>
              <P>(2) Likelihood of public interest;</P>
              <P>(3) Need to act quickly;</P>
              <P>(4) Likelihood of meaningful public comment;</P>
              <P>(5) National security classification issues;</P>
              <P>(6) Need for permits; and</P>
              <P>(7) Statutory authority of environmental agency regarding the proposal.</P>
              <P>(d) <E T="03">When to prepare an EIS.</E> The Regional Director shall prepare an environmental impact statement for all major Agency actions significantly affecting the quality of the human environment. The test of what is a “significant” enough impact to require an EIS is found in the CEQ regulations at 40 CFR 1508.27.</P>
              <P>(e) <E T="03">Finding of No Significant Impact.</E> If the Regional Director determines on the basis of the environmental assessment not to prepare an environmental impact statement, the Regional Director shall prepare a finding of no significant impact in accordance with 40 CFR 1501.4(e) of the CEQ regulations. The assessment and the finding shall be submitted to the Environmental Officer and the Office of General Counsel (OGC) for approval. If Environmental Officer and OGC approval is obtained, the Regional Director shall then make the finding of no significant impact available to the public as specified in § 1506.6 of the CEQ regulations. A finding of no significant impact is not required when the decision not to prepare an environmental impact statement is based on a categorical exclusion.</P>
              <P>(f) <E T="03">Environmental Officer or OGC Disallowance.</E> If the Environmental Officer or OGC disagrees with the finding of no significant impact, the Regional Director shall prepare an environmental impact statement. Prior to preparation of an EIS, the Regional Director shall forward a notice of intent to prepare the EIS to the Environmental Officer who shall publish such notice in the <E T="04">Federal Register.</E>
              </P>
              <P>(g) <E T="03">EIS determination of Regional Director.</E> The Regional Director may decide on his/her own to prepare an environmental impact statement. In such case, the Regional Director shall forward a notice of intent to prepare the EIS to the Environmental Officer who shall publish such notice in the <E T="04">Federal Register.</E> The notice of intent shall be published before initiation of the scoping process.</P>
              <CITA>[45 FR 41142, June 18, 1980, as amended at 47 FR 13149, Mar. 29, 1982]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>§ 10.10</SECTNO>
              <SUBJECT>Preparation of environmental impact statements.</SUBJECT>
              <P>(a) <E T="03">Scoping.</E> After determination that an environmental impact statement will be prepared and publication of the notice of intent, the Regional Director will initiate the scoping process in accordance with § 1501.7 of the CEQ regulations.</P>
              <P>(b) <E T="03">Preparation.</E> Based on the scoping process, the Regional Director will begin preparation of the environmental impact statement. Detailed procedures for preparation of the environmental impact statement are provided in part 1502 of the CEQ regulations.</P>
              <P>(c) <E T="03">Supplemental Environmental Impact Statements.</E> The Regional Director may <PRTPAGE P="110"/>at any time supplement a draft or final environmental impact statement. The Regional Director shall prepare a supplement to either the draft or final environmental impact statement when required under the criteria set forth in § 1502.9(2). The Regional Director will prepare, circulate, and file a supplement to a statement in the same fashion (exclusive of scoping) as a draft or final statement and will introduce the supplement into their formal administrative record.</P>
              <P>(d) <E T="03">Circulation of Environmental Impact Statements.</E> The Regional Director shall circulate draft and final environmental impact statements as prescribed in § 1502.19 of CEQ regulations. Prior to signing off on a draft or final impactstatement, the Regional Director shall obtain the approval of the Environmental Officer and OGC.</P>
              <CITA>[45 FR 41142, June 18, 1980, as amended at 47 FR 13149, Mar. 29, 1982]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>§ 10.11</SECTNO>
              <SUBJECT>Environmental information.</SUBJECT>
              <P>Interested persons may contact the Environmental Officer or the Regional Director for information regarding FEMA's compliance with NEPA.</P>
              <CITA>[45 FR 41142, June 18, 1980, as amended at 47 FR 13149, Mar. 29, 1982]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>§ 10.12</SECTNO>
              <SUBJECT>Pre-implementation actions.</SUBJECT>
              <P>(a) <E T="03">Decision-making.</E> The Regional Director shall ensure that decisions are made in accordance with the policies and procedures of the Act and that the NEPA process is integrated into the decision-making process. Because of the diversity of FEMA, it is not feasible to describe in this part the decision-making process for each of the various FEMA programs. Proposals and actions may be initiated at any level. Similarly, review and approval authority may be exercised at various levels depending on the nature of the action, available funding, and statutory authority. FEMA offices and administrations shall provide further guidance, commensurate with their programs and organization, for integration of environmental considerations into the decision-making process. The Regional Director shall:</P>
              <P>(1) Consider all relevant environmental documents in evaluating proposals for Agency action;</P>
              <P>(2) Make all relevant environmental documents, comments, and responses part of the record in formal rulemaking or adjudicatory proceedings;</P>
              <P>(3) Ensure that all relevant environmental documents, comments and responses accompany the proposal through existing Agency review processes;</P>
              <P>(4) Consider only those alternatives encompassed by the range of alternatives discussed in the relevant environmental documents when evaluating proposals for Agency action;</P>
              <P>(5) Where an EIS has been prepared, consider the specific alternatives analyzed in the EIS when evaluating the proposal which is the subject of the EIS.</P>
              <P>(b) <E T="03">Record of decision.</E> In those cases requiring environmental impact statements, the Regional Director at the time of his/her decision, or if appropriate, his/her recommendation to Congress, shall prepare a concise public record of that decision. The record of decision is not intended to be an extensive, detailed document for the purpose of justifying the decision. Rather it is a concise document that sets forth the decision and describes the alternatives and relevant factors considered as specified in 40 CFR 1505.2. The record of decision will normally be less than three pages in length.</P>
              <P>(c) <E T="03">Mitigation.</E> Throughout the NEPA process, the Regional Director shall consider mitigating measures to avoid or minimize environmental harm and, in particular, harm to or within flood plains and wetlands. Mitigation measures or programs will be identified in the environmental impact statement and made available to decision-makers. Mitigation and other conditions established in the environmental impact statement or during its review and committed as part of the decision shall be implemented by the Regional Director.</P>
              <P>(d) <E T="03">Monitoring.</E> If a Regional Director determines that monitoring is applicable for established mitigation, a monitoring program will be adopted to assure the mitigation measures are accomplished. The Regional Director <PRTPAGE P="111"/>shall provide monitoring information, upon request, as specified in 40 CFR 1505.3. This does not, however, include standing or blanket requests for periodic reporting.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 10.13</SECTNO>
              <SUBJECT>Emergencies.</SUBJECT>
              <P>In the event of an emergency, the Regional Director may be required to take immediate action with significant environmental impact. The Regional Director shall notify the Environmental Officer of the emergency action at the earliest possible time so that the Environmental Officer may consult with the Council on Environmental Quality. In no event shall any Regional Director delay an emergency action necessary to the preservation of human life for the purpose of complying withthe provision of this directive or the CEQ regulations.</P>
              <CITA>[45 FR 41142, June 18, 1980, as amended at 47 FR 13149, Mar. 29, 1982]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>§ 10.14</SECTNO>
              <SUBJECT>Flood plains and wetlands.</SUBJECT>
              <P>For any action taken by FEMA in a flood plain or wetland, the provisions of this part are supplemental to, and not instead of, the provisions of the FEMA regulation implementing Executive Order 11988, Flood Plain Management, and Executive Order 11990, Protection of Wetlands (44 CFR part 9).</P>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 11</EAR>
          <HD SOURCE="HED">PART 11—CLAIMS</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart A—General</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>11.1</SECTNO>
              <SUBJECT>General collection standards.</SUBJECT>
              <SECTNO>11.2</SECTNO>
              <SUBJECT>Delegations of authority.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart B—Administrative Claims Under Federal Tort Claims Act</HD>
              <SECTNO>11.10</SECTNO>
              <SUBJECT>Scope of regulation.</SUBJECT>
              <SECTNO>11.11</SECTNO>
              <SUBJECT>Administrative claim; when presented; appropriate FEMA office.</SUBJECT>
              <SECTNO>11.12</SECTNO>
              <SUBJECT>Administrative claim; who may file.</SUBJECT>
              <SECTNO>11.13</SECTNO>
              <SUBJECT>Investigations.</SUBJECT>
              <SECTNO>11.14</SECTNO>
              <SUBJECT>Administrative claim; evidence and information to be submitted.</SUBJECT>
              <SECTNO>11.15</SECTNO>
              <SUBJECT>Authority to adjust, determine, compromise and settle.</SUBJECT>
              <SECTNO>11.16</SECTNO>
              <SUBJECT>Limitations on authority.</SUBJECT>
              <SECTNO>11.17</SECTNO>
              <SUBJECT>Referral to Department of Justice.</SUBJECT>
              <SECTNO>11.18</SECTNO>
              <SUBJECT>Final denial of claim.</SUBJECT>
              <SECTNO>11.19</SECTNO>
              <SUBJECT>Action on approved claim.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart C—Collection of Debts by the Government Under the Debt Collection Act of 1982</HD>
              <SECTNO>11.30</SECTNO>
              <SUBJECT>Scope of regulations.</SUBJECT>
              <SECTNO>11.31</SECTNO>
              <SUBJECT>Adoption of joint standards.</SUBJECT>
              <SECTNO>11.32</SECTNO>
              <SUBJECT>Subdivision and joining of debts.</SUBJECT>
              <SECTNO>11.33</SECTNO>
              <SUBJECT>Authority of offices to attempt collection of debts.</SUBJECT>
              <SECTNO>11.34</SECTNO>
              <SUBJECT>Referral of debts to the Chief Financial Officer, Federal Emergency Management Agency.</SUBJECT>
              <SECTNO>11.35</SECTNO>
              <SUBJECT>Authority of offices to compromise debts or suspend or terminate collection action.</SUBJECT>
              <SECTNO>11.36</SECTNO>
              <SUBJECT>Debt collection files.</SUBJECT>
              <SECTNO>11.37</SECTNO>
              <RESERVED>[Reserved]</RESERVED>
              <SECTNO>11.38</SECTNO>
              <SUBJECT>Annual reports to the Director, Office of Management and Budget, and the Secretary of the Treasury.</SUBJECT>
              <SECTNO>11.40</SECTNO>
              <SUBJECT>Records retention.</SUBJECT>
              <SECTNO>11.41</SECTNO>
              <SUBJECT>Suspension or revocation of eligibility.</SUBJECT>
              <SECTNO>11.42</SECTNO>
              <SUBJECT>Demand for payment of debts.</SUBJECT>
              <SECTNO>11.43</SECTNO>
              <SUBJECT>Collection by administrative offset.</SUBJECT>
              <SECTNO>11.44</SECTNO>
              <RESERVED>[Reserved]</RESERVED>
              <SECTNO>11.45</SECTNO>
              <SUBJECT>Collection by salary offset.</SUBJECT>
              <SECTNO>11.46</SECTNO>
              <SUBJECT>Liquidation of collateral.</SUBJECT>
              <SECTNO>11.47</SECTNO>
              <SUBJECT>Collection in installments.</SUBJECT>
              <SECTNO>11.48</SECTNO>
              <SUBJECT>Interest, penalties, and administrative charges.</SUBJECT>
              <SECTNO>11.49</SECTNO>
              <SUBJECT>Omission not a defense.</SUBJECT>
              <SECTNO>11.50</SECTNO>
              <SUBJECT>Standards for compromise of debts.</SUBJECT>
              <SECTNO>11.51</SECTNO>
              <SUBJECT>Standards for suspension or termination of collection.</SUBJECT>
              <SECTNO>11.52</SECTNO>
              <SUBJECT>Referral of delinquent debtors to consumer reporting agencies.</SUBJECT>
              <SECTNO>11.53</SECTNO>
              <SUBJECT>Securing debtor addresses from the Department of Treasury.</SUBJECT>
              <SECTNO>11.54</SECTNO>
              <SUBJECT>Contracts with debt collection agencies.</SUBJECT>
              <SECTNO>11.55</SECTNO>
              <SUBJECT>Referral to GAO or Justice Department.</SUBJECT>
              <SECTNO>11.56</SECTNO>
              <SUBJECT>Analysis of costs.</SUBJECT>
              <SECTNO>11.57</SECTNO>
              <SUBJECT>Automation.</SUBJECT>
              <SECTNO>11.58</SECTNO>
              <SUBJECT>Prevention of overpayments, delinquencies, and defaults.</SUBJECT>
              <SECTNO>11.59</SECTNO>
              <SUBJECT>Office of General Counsel.</SUBJECT>
              <SECTNO>11.60</SECTNO>
              <SUBJECT>Sale of debts due the United States arising under programs administered by the Agency.</SUBJECT>
              <SECTNO>11.61</SECTNO>
              <SUBJECT>Referral of delinquent debts to Department of the Treasury for offsets against tax refunds.</SUBJECT>
              <SECTNO>11.62</SECTNO>
              <SUBJECT>Administrative charges incurred in referrals for tax refund offset.</SUBJECT>
              <SECTNO>11.63</SECTNO>
              <SUBJECT>Notice to debtor before tax refund offset.</SUBJECT>
              <SECTNO>11.64</SECTNO>
              <SUBJECT>Review within Federal Emergency Management Agency.</SUBJECT>
              <SECTNO>11.65</SECTNO>
              <SUBJECT>Stay of tax refund offset action.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart D—Personnel Claims Regulations</HD>
              <SECTNO>11.70</SECTNO>
              <SUBJECT>Scope and purpose.<PRTPAGE P="112"/>
              </SUBJECT>
              <SECTNO>11.71</SECTNO>
              <SUBJECT>Claimants.</SUBJECT>
              <SECTNO>11.72</SECTNO>
              <SUBJECT>Time limitations.</SUBJECT>
              <SECTNO>11.73</SECTNO>
              <SUBJECT>Allowable claims.</SUBJECT>
              <SECTNO>11.74</SECTNO>
              <SUBJECT>Claims not allowed.</SUBJECT>
              <SECTNO>11.75</SECTNO>
              <SUBJECT>Claims involving carriers and insurers.</SUBJECT>
              <SECTNO>11.76</SECTNO>
              <SUBJECT>Claims procedures.</SUBJECT>
              <SECTNO>11.77</SECTNO>
              <SUBJECT>Settlement of claims.</SUBJECT>
              <SECTNO>11.78</SECTNO>
              <SUBJECT>Computation of amount of award.</SUBJECT>
              <SECTNO>11.79</SECTNO>
              <SUBJECT>Attorney's fees.</SUBJECT>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>31 U.S.C. 3701 <E T="03">et seq.</E>
            </P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>45 FR 15930, Mar. 12, 1980, unless otherwise noted.</P>
          </SOURCE>
          <SUBPART>
            <HD SOURCE="HED">Subpart A—General</HD>
            <SECTION>
              <SECTNO>§ 11.1</SECTNO>
              <SUBJECT>General collection standards.</SUBJECT>

              <P>The general standards and procedures governing the collection, compromise, termination and referral to the Department of Justice of claims for moneyand property that are prescribed in the regulations issued jointly by the General Accounting Office and the Department of Justice pursuant to the Federal Claims Collection Act of 1966 (4 CFR part 101 <E T="03">et seq.</E>), apply to the administrative claim collection activities of the Federal Emergency Management Agency (FEMA).</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 11.2</SECTNO>
              <SUBJECT>Delegations of authority.</SUBJECT>
              <P>Any and all claims that arise under subchapter III of chapter 83, chapter 87 and chapter 88 of title 5, the United States Code, the Retired Federal Employees Health Benefits Act (74 Stat. 849), the Panama Canal Construction Annuity Act (58 Stat. 257), and the Lighthouse Service Widow's Annuity Act (64 Stat. 465) shall be referred to the Director of the Bureau of Retirement and Insurance, Office of Personnel Management, for handling. The General Counsel, FEMA shall act on all other claims against FEMA for money and property.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart B—Administrative Claims Under Federal Tort Claims Act</HD>
            <SECTION>
              <SECTNO>§ 11.10</SECTNO>
              <SUBJECT>Scope of regulation.</SUBJECT>
              <P>This regulation applies to claims asserted under the Federal Tort Claims Act against the Federal Emergency Management Agency (FEMA). It does not include any contractor with FEMA.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 11.11</SECTNO>
              <SUBJECT>Administrative claim; when presented; appropriate FEMA office.</SUBJECT>
              <P>(a) For the purpose of this part, and the provisions of the Federal Tort Claims Act a claim is deemed to have been presented when FEMA receives, at a place designated in paragraph (b) or (c) of this section, an executed “Claim for Damage or Injury,” Standard Form 95, or other written notification of an incident, accompanied by a claim for money damages in a sum certain for injury to or loss of property, for personal injury, or for death alleged to have occurred by reason of the incident. A claim which should have been presented to FEMA, but which was mistakenly addressed to or filed with another Federal agency, is deemed to be presented to FEMA as of the date that the claim is received by FEMA. If a claim is mistakenly addressed to or filed with FEMA, the claim shall forthwith be transferred to the appropriate Federal Agency, if ascertainable, or returned to the claimant.</P>
              <P>(b) Except as provided in paragraph (c) of this section, a claimant shall mail or deliver his or her claim to the Office of General Counsel, Federal Emergency Management Agency, Washington, DC, 20472.</P>
              <P>(c) When a claim is for $200 or less, does not involve a personal injury, and involves a FEMA regional employee, the claimant shall mail or deliver the claim to the Director of the FEMA Regional Office in which is employed the FEMA employee whose negligence or wrongful act or omission is alleged to have caused the loss or injury complained of. The addresses of the Regional Offices of FEMA are set out in part 2 of this chapter.</P>

              <P>(d) A claim presented in compliance with paragraph (a) of this section may be amended by the claimant at any time prior to final FEMA action or prior to the exercise of the claimant's option under 28 U.S.C. 2675(a). Amendments shall be submitted in writing and signed by the claimant or his or her duly authorized agent or legal representative. Upon the timely filing of an amendment to a pending claim, FEMA shall have six months in which to make a final disposition of the claim as amended and the claimant's option <PRTPAGE P="113"/>under 28 U.S.C. 2675(a) shall not accrue until six months after the filing of an amendment.</P>
              <CITA>[45 FR 15930, Mar. 12, 1980, as amended at 48 FR 6711, Feb. 15, 1983; 49 FR 33879, Aug. 27, 1984]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>§ 11.12</SECTNO>
              <SUBJECT>Administrative claim; who may file.</SUBJECT>
              <P>(a) A claim for injury to or loss of property may be presented by the owner of the property interest which is the subject of the claim, his or her authorized agent, or legal representative.</P>
              <P>(b) A claim for personal injury may be presented by the injured person or, his or her authorized agent or legal representative.</P>
              <P>(c) A claim based on death may be presented by the executor or administrator of the decedent's estate or byany other person legally entitled to assert such a claim under applicable State law.</P>
              <P>(d) A claim for loss wholly compensated by an insurer with the rights of a subrogee may be presented by the insurer or the insured individually, as their respective interests appear, or jointly. When an insurer presents a claim asserting the rights of a subrogee, he or she shall present with the claim appropriate evidence that he or she has the rights of a subrogee.</P>
              <P>(e) A claim presented by an agent or legal representative shall be presented in the name of the claimant, be signed by the agent or legal representative, show the title of legal capacity of the person signing, and be accompanied by evidence of his or her authority to present a claim on behalf of the claimant as agent, executor, administrator, parent, guardian, or other representative.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 11.13</SECTNO>
              <SUBJECT>Investigations.</SUBJECT>
              <P>FEMA may investigate, or may request any other Federal agency to investigate, a claim filed under this part.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 11.14</SECTNO>
              <SUBJECT>Administrative claim; evidence and information to be submitted.</SUBJECT>
              <P>(a) <E T="03">Death.</E> In support of a claim based on death the claimant may be required to submit the following evidence or information:</P>
              <P>(1) An authenticated death certificate or other competent evidence showing cause of death, date of death, and age of the decedent.</P>
              <P>(2) Decedent's employment or occupation at time of death, including his or her monthly or yearly salary or earnings (if any), and the duration of his or her last employment or occupation.</P>
              <P>(3) Full names, addresses, birth dates, kinship, and marital status of the decedent's survivors, including identification of those survivors who were dependent for support on the decedent at the time of his or her death.</P>
              <P>(4) Degree of support afforded by the decedent to each survivor dependent on him or her for support at the time of death.</P>
              <P>(5) Decedent's general physical and mental condition before death.</P>
              <P>(6) Itemized bills or medical and burial expenses incurred by reason of the incident causing death, or itemized receipts of payment for such expenses.</P>
              <P>(7) If damages for pain and suffering before death are claimed, a physician's detailed statement specifying the injuries suffered, duration of pain and suffering, any drugs administered for pain, and the decedent's physical condition in the interval between injury and death.</P>
              <P>(8) Any other evidence or information which may have a bearing on either the responsibility of the United States for the death or the amount of damages claimed.</P>
              <P>(b) <E T="03">Personal injury.</E> In support of a claim for personal injury, including pain and suffering, the claimant may be required to submit the following evidence or information:</P>

              <P>(1) A written report by his or her attending physician or dentist setting forth the nature and extent of the injury, nature and extent of treatment, any degree of temporary or permanent disability, the prognosis, period of hospitalization, and any diminished earning capacity. In addition, the claimant may be required to submit to a physical or mental examination by a physician employed by FEMA or another Federal agency. FEMA shall make available to the claimant a copy of the report of the examining physician on written request by the claimant, if he or she has, on request, furnished the report referred to in the first sentence of <PRTPAGE P="114"/>this subparagraph and has made or agrees to make available to FEMA any other physician's reports previously or thereafter made of the physical or mental condition which is the subject matter of the claim.</P>
              <P>(2) Itemized bills for medical, dental, and hospital expenses incurred, or itemized receipts of payment of such expenses.</P>
              <P>(3) If the prognosis reveals the necessity for future treatment, a statement of expected expenses for such treatment.</P>
              <P>(4) If a claim is made for loss of time from employment, a written statement from the employer showing actual time lost from employment, whether he or she is a full- or part-time employee, and wages or salary actually lost.</P>
              <P>(5) If a claim is made for loss of income and the claimant is self-employed, documentary evidence showing the amount of earnings actually lost.</P>
              <P>(6) Any other evidence or information which may have a bearing on either the responsibility of the United States for the personal injury or the damages claimed.</P>
              <P>(c) <E T="03">Property damage.</E> In support of a claim for injury to or loss of property, real or personal, the claimant may be required to submit the following evidence or information:</P>
              <P>(1) Proof of ownership of the property interest which is the subject of the claim.</P>
              <P>(2) A detailed statement of the amount claimed with respect to each item of property.</P>
              <P>(3) An itemized receipt of payment for necessary repairs or itemized written estimates of the cost of such repairs.</P>
              <P>(4) A statement listing date of purchase, purchase price, and salvage value, where repair is not economical.</P>
              <P>(5) Any other evidence or information which may have a bearing on either the responsibility of the United States for the injury to or loss of property or the damages claimed.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 11.15</SECTNO>
              <SUBJECT>Authority to adjust, determine, compromise and settle.</SUBJECT>
              <P>(a) The General Counsel of FEMA, or a designee of the General Counsel, is delegated authority to consider, ascertain, adjust, determine, compromise, and settle claims under the provisions of section 2672 of title 28, United States Code, and this part.</P>
              <P>(b) Notwithstanding the delegation of authority in paragraph (a) of this section, a Regional Director is delegated authority to be exercised in his or her discretion, to consider, ascertain, adjust, determine, compromise, and settle under the provisions of section 2672 of title 28, United States Code, and this part, any claim for $200 or less which is based on alleged negligence or wrongful act or omission of an employee of the appropriate Region, except when:</P>
              <P>(1) There are personal injuries to either Government personnel or individuals not employed by the Government; or</P>
              <P>(2) All damage to Government property or to property being used by FEMA, or both, is more than $200, or all damage to non-Government property being used by individuals not employed by the Government is more than $200.</P>
              <CITA>[45 FR 15930, Mar. 12, 1980, as amended at 48 FR 6711, Feb. 15, 1983]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>§ 11.16</SECTNO>
              <SUBJECT>Limitations on authority.</SUBJECT>
              <P>(a) An award, compromise, or settlement of a claim under this part in excess of $25,000 may be effected only with the advance written approval of the Attorney General or his or her designee. For the purpose of this paragraph, a principal claim and any derivative or subrogated claim shall be treated as a single claim.</P>
              <P>(b) An administrative claim may be adjusted, determined, compromised, or settled under this part only after consultation with the Department of Justice, when, in the opinion of the General Counsel of FEMA or his or her designee:</P>
              <P>(1) A new precedent or a new point of law is involved; or</P>
              <P>(2) A question of policy is or may be involved; or</P>
              <P>(3) The United States is or may be entitled to indemnity or contribution from a third party and FEMA is unable to adjust the third party claim; or</P>

              <P>(4) The compromise of a particular claim, as a practical matter, will or may control the disposition of a related claim in which the amount to be paid may exceed $25,000.<PRTPAGE P="115"/>
              </P>
              <P>(c) An administrative claim may be adjusted, determined, compromised or settled under this part only after consultation with the Department of Justice when FEMA is informed or is otherwise aware that the United States or an employee, agent or cost-type contractor of the United States is involved in litigation based on a claim arising out of the same incident or transaction.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 11.17</SECTNO>
              <SUBJECT>Referral to Department of Justice.</SUBJECT>
              <P>When Department of Justice approval or consultation is required under § 11.16, the referral or request shall be transmitted to the Departmentof Justice by the General Counsel or his or her designee.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 11.18</SECTNO>
              <SUBJECT>Final denial of claim.</SUBJECT>
              <P>(a) Final denial of an administrative claim under this part shall be in writing and sent to the claimant, his or her attorney, or legal representative by certified or registered mail. The notification of final denial may include a statement of the reasons for the denial and shall include a statement that, if the claimant is dissatisfied with the FEMA action, he or she may file suit in an appropriate U.S. District Court not later than 6 months after the date of mailing of the notification.</P>
              <P>(b) Prior to the commencement of suit and prior to the expiration of the 6-month period provided in 28 U.S.C. 2401(b), a claimant, his or her duly authorized agent, or legal representative, may file a written request with FEMA for reconsideration of a final denial of a claim under paragraph (a) of this section. Upon the timely filing of a request for reconsideration the FEMA shall have 6 months from the date of filing in which to make a final FEMA disposition of the claim and the claimant's option under 28 U.S.C. 2675(a) shall not accrue until 6 months after the filing of a request for reconsideration. Final FEMA action on a request for reconsideration shall be effected in accordance with the provisions of paragraph (a) of this section.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 11.19</SECTNO>
              <SUBJECT>Action on approved claim.</SUBJECT>
              <P>(a) Payment of a claim approved under this part is contingent on claimant's execution of (1) a “Claim for Damage or Injury,” Standard Form 95, or a claims settlement agreement, and (2) a “Voucher for Payment,” Standard Form 1145, as appropriate. When a claimant is represented by an attorney, the voucher for payment shall designate both the claimant and his or her attorney as payees, and the check shall be delivered to the attorney, whose address shall appear on the voucher.</P>
              <P>(b) Acceptance by the claimant, his or her agenct, or legal representative, of an award, compromise, or settlement made under section 2672 or 2677 of title 28, United States Code, is final and conclusive on the claimant, his or her agent or legal representative, and any other person on whose behalf or for whose benefit the claim has been presented, and constitutes a complete release of any claim against the United States and against any employee of the Government whose act or omission gave rise to the claim, by reason of the same subject matter.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart C—Collection of Debts by the Government Under the Debt Collection Act of 1982</HD>
            <AUTH>
              <HD SOURCE="HED">Authority:</HD>
              <P>31 U.S.C. 3711 <E T="03">et seq.</E>
              </P>
            </AUTH>
            <SOURCE>
              <HD SOURCE="HED">Source:</HD>
              <P>49 FR 38267, Sept. 28, 1984, unless otherwise noted.</P>
            </SOURCE>
            <SECTION>
              <SECTNO>§ 11.30</SECTNO>
              <SUBJECT>Scope of regulations.</SUBJECT>
              <P>(a) <E T="03">Scope.</E> This regulation implements policies used by FEMA to collect debts under the Debt Collection Act of 1982, as amended, 31 U.S.C. 3701 <E T="03">et seq.</E> As amended, this Act:</P>
              <P>(1) Requires the Director or designee to attempt collection of all debts owed to the United States for money or property arising out of activities of the Agency; and</P>

              <P>(2) Authorizes the Director or his designee, for debts not exceeding $100,000 or such higher limit prescribed by the Attorney General of the United States, under the provisions of 31 U.S.C. 3711(a)(2), exclusive of interest, penalty, and administrative charges, to compromise such debts or terminate collection action where it appears that no person is liable on such debt or has the present or prospective financial <PRTPAGE P="116"/>ability to pay a significant sum thereon or that the cost of collecting such debt is likely to exceed the amount of the recovery.</P>
              <P>(b) <E T="03">Definitions.</E> For purposes of this subpart, the following definitions apply:</P>
              <P>(1) <E T="03">Office</E> means any of the following:</P>
              <P>(i) United States Fire Administration.</P>
              <P>(ii) Federal Insurance Administration.</P>
              <P>(iii) National Preparedness Directorate.</P>
              <P>(iv) State &amp; Local Programs &amp; Support Directorate.</P>
              <P>(v) U.S. Fire Academy/National Emergency Training Center.</P>
              <P>(vi) Office of Financial Management, which for purposes of this subpart shall include all FEMA Headquarters elements not included in paragraphs (b)(1)(ii) through (b)(1)(iv) of this section.</P>
              <P>(vii) FEMA Special Facility.</P>
              <P>(2) <E T="03">Employee</E> means those persons defined in 5 U.S.C. 2104, members of and retirees from the uniformed services of the United States and employees of and retirees from the United States Postal Service and the Postal Rate Commission.</P>
              <CITA>[57 FR 54714, Nov. 20, 1992]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>§ 11.31</SECTNO>
              <SUBJECT>Adoption of joint standards.</SUBJECT>
              <P>All administrative actions to collect debts arising out of activities of the Agency shall be performed in accordance with the applicable standards prescribed either in 4 CFR parts 101 through 105 or any standards promulgated jointly by the Attorney General and the Comptroller General. Such standards are adopted as a part of this subpart and are supplemented in this subpart. Additional guidance will be found in the GAO Policy and Procedures Manual for Guidance of Federal Agencies and in the Treasury Fiscal Requirements Manual.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 11.32</SECTNO>
              <SUBJECT>Subdivision and joining of debts.</SUBJECT>
              <P>(a) A debtor's liability arising from a particular transaction or contract shall be considered as a single debt in determining whether the debt is one not exceeding $100,000 or such higher limit prescribed by the Attorney General in accordance with 31 U.S.C. 3711(a)(2) exclusive of interest for the purpose of compromise or termination of collection action. Such a debt may not be subdivided to avoid the monetary ceiling established by the Act.</P>
              <P>(b) Joining of two or more single debts in a demand upon a particular debtor for payment totaling more than $100,000 or such higher limit prescribed by the Attorney General in accordance with 31 U.S.C. 3711(a)(2) does not preclude compromise or termination of collection action with respect to any one of such debts that do not exceed $100,000 or such higher limit prescribed by the Attorney General in accordance with 31 U.S.C. 3711(a)(2) exclusive of interest.</P>
              <CITA>[49 FR 38267, Sept. 28, 1984, as amended at 57 FR 54714, Nov. 20, 1992]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>§ 11.33</SECTNO>
              <SUBJECT>Authority of offices to attempt collection of debts.</SUBJECT>
              <P>The head of each office and each regional director shall designate a debt collections officer (DCO) who shall attempt to collect in full all debts of the Agency for money or property arising out of the activities of such office. Each DCO shall establish and currently maintain a file with regard to each debt for which collection activities are undertaken. Insofar as it is feasible, debt collection personnel shall have personal interviews or telephone contact with the debtor.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 11.34</SECTNO>
              <SUBJECT>Referral of debts to the Chief Financial Officer, Federal Emergency Management Agency.</SUBJECT>
              <P>(a) Authority of the Chief Financial Officer (CFO), Federal Emergency Management Agency.</P>

              <P>(1) The Chief Financial Officer, Federal Emergency Management Agency, is designated as the Agency Collections Officer (ACO). In this capacity he or she shall exercise such powers and perform duties of the Director in collecting debts owed FEMA. In this regard, the ACO may, after consultation with the Office of the General Counsel, compromise, suspend or terminate collection action on the debts owed the Agency, not exceeding $100,000, or such higher limit prescribed by the Attorney General in accordance with 31 U.S.C. 3711(a)(2), exclusive of interest, <PRTPAGE P="117"/>except as provided in § 11.35 and paragraph (b) of this section. In addition, the CFO is delegated all authority which may be exercised by the Director, Federal Emergency Management Agency in relation to:</P>
              <P>(i) Disclosure to a consumer reporting agency in accordance with 31 U.S.C. 3711(f),</P>
              <P>(ii) Instituting salary offset procedures in accordance with 5 U.S.C. 5514(a),</P>
              <P>(iii) Instituting administrative offset procedures in accordance with 31 U.S.C. 3716,</P>
              <P>(iv) Charging of interest and penalties in accordance with 31 U.S.C. 3717,</P>
              <P>(v) Entering into contracts for collection of debts in accordance with 31 U.S.C. 3718, except that the execution and administration of such contracts is delegated to Federal Emergency Management Agency contracting officers appointed under provisions of 48 CFR 1.603-3,</P>
              <P>(vi) Prescribe debt collection procedures and manage debt collection activities within the Agency.</P>
              <P>(2) When initial attempts at collection by the office originating such debt have not been fully successful, the debt file shall be forwarded to the ACO for further administrative collection procedures. Debts shall be referred to the ACO well within the applicable statute of limitations (28 U.S.C. 2415 and 2416).</P>
              <P>(b) <E T="03">Exclusions.</E> There shall be no compromised or terminated collection action with respect to any debt: (1) As to which there is an indication of fraud, the presentation of a false claim, or misrepresentation on the part of the debtor or any other party having an interest in the claim; (2) based in whole or in part on conduct in violation of the anti-trust laws; (3) based on tax statutes; or (4) arising from an exception made by the General Accounting Office in the account of an accountable officer. Such a debt shall be promptly referred to the Justice Department, or GAO, as appropriate, after ACO has consulted with the Inspector General and the Office of General Counsel.</P>
              <P>(c) <E T="03">Delegation.</E> The ACO may delegate his or her authority in the FEMA debt collection program and under this subpart to a Deputy or to others in the FEMA Office of Financial Management. However, the ACO must personally approve any compromise, suspension or termination of collection efforts on debts exceeding $10,000.00.</P>
              <CITA>[49 FR 38267, Sept. 28, 1984, as amended at 50 FR 40007, Oct. 1, 1985; 53 FR 47211, Nov. 22, 1988; 57 FR 54714, Nov. 20, 1992]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>§ 11.35</SECTNO>
              <SUBJECT>Authority of offices to compromise debts or suspend or terminate collection action.</SUBJECT>
              <P>Where it appears that the cost of collecting a debt of $2,500 or less will exceed the amount of recovery, the DCO is authorized to compromise the debt or to terminate collection action. Further, DCO's are authorized to compromise a debt or terminate or suspend collection action for debts of $2,500 or less where:</P>
              <P>(a) Debtor cannot be located despite vigorous efforts, including but not limited to, use of skip tracing services, have failed to ascertain the debtor's current address.</P>
              <P>(b) Debtor is financially unable to pay in full or in part. DCO's must obtain a financial statement from the debtor in such cases.</P>
              <P>(c) The debt is without merit or cannot be substantiated by evidence. In such cases, debt collection officers should secure the advice of counsel. DCO's must document the debt file to show all evidence and reasons for compromise or termination of such debts. The DCO must prepare a narrative report and forward a copy of the report to the ACO.</P>
              <CITA>[49 FR 38267, Sept. 28, 1984, as amended at 53 FR 47211, Nov. 22, 1988]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>§ 11.36</SECTNO>
              <SUBJECT>Debt collection files.</SUBJECT>
              <P>Each DCO is responsible for obtaining current credit data about each person against whom a debt is pending in his office. The files shall be kept up-to-date by the ACO for claims referred to his/her office for collection. Such credit data may take the form of:</P>
              <P>(a) A commercial credit report, showing the debtor's assets and liabilities and his income and expenses,</P>

              <P>(b) The individual debtor's own financial statement, executed under penalty for false claim, reflecting his assets and liabilities and his income and expenses, or<PRTPAGE P="118"/>
              </P>
              <P>(c) An audited balance sheet of a corporate debtor.</P>

              <FP>The file should also contain a checklist or brief summary of action taken to collect or compromise a debt. All debts files relating to debts owed by individuals are to be safeguarded in accordance with 5 U.S.C. 552a, popularly known as the “Privacy Act of 1974”; 31 U.S.C. 3711 <E T="03">et seq.,</E> popularly known at the “Debt Collection Act of 1982”; 44 CFR part 6 and this subpart. Each DCO is responsible for maintaining files on debtors with information sufficient toenable the Government to effectuate administrative or judicial collection.</FP>
              <APPRO>(Approved by the Office of Management and Budget under control number 3067-0122)</APPRO>
            </SECTION>
            <SECTION>
              <SECTNO>§ 11.37</SECTNO>
              <RESERVED>[Reserved]</RESERVED>
            </SECTION>
            <SECTION>
              <SECTNO>§ 11.38</SECTNO>
              <SUBJECT>Annual reports to the Director, Office of Management and Budget, and the Secretary of the Treasury.</SUBJECT>
              <P>(a) The ACO shall gather data on loans, accounts receivable, and debts which are required by 31 U.S.C. 3719 and shall transmit them to the Director, Federal Emergency Management Agency. Such data shall include:</P>
              <P>(1) The total amount of loans and accounts receivable owed to the Agency and when the funds owed to the Agency are due to be repaid;</P>
              <P>(2) The total amount of receivables and number of debts that are at least thirty days past due;</P>
              <P>(3) Total amount written off as uncollectable, actual, and allowed for;</P>
              <P>(4) The rate of interest charged for overdue debts and the amount of interest charged and collected on debts;</P>
              <P>(5) The total number of debts and total amount collected;</P>
              <P>(6) The number of debts and the total amount of debts referred to the Department of Justice for settlement or collection and the total number of debts and the total amount of debts settled or collected by that Department;</P>
              <P>(7) For each program or activity administered by the Agency, the data described in paragraphs (a) (1) through (6) of this section; and</P>
              <P>(8) Such other data as the Director, Office of Management and Budget, shall prescribe by regulations issued under authority of 31 U.S.C. 3719.</P>
              <P>(b) Data described in paragraph (a) of this section shall be collected on a calendar year basis and transmitted to the Director, FEMA not later than the end of January of the year following the year for which the data described in paragraph (a) of this section, were collected. The Director, FEMA, shall report these data to the Secretary of the Treasury and the Director, Office of Management and Budget in accordance with 31 U.S.C. 3719. If the Secretary of the Treasury and the Director, Office of Management and Budget prescribe, by regulation, a different annual reporting cycle, the Agency's reporting cycle, described in the first sentence of this subsection shall be changed to conform with the cycle prescribed by the Department of the Treasury and Office of Management and Budget regulation.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 11.40</SECTNO>
              <SUBJECT>Records retention.</SUBJECT>
              <P>The file of each debt on which administrative collection action has been completed shall be retained by the appropriate officer not less than 1 year after the applicable statute of limitations has run.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 11.41</SECTNO>
              <SUBJECT>Suspension or revocation of eligibility.</SUBJECT>
              <P>(a) Where a contractor, grantee, or other participant in programs sponsored by the Agency fails to pay his debts to the Agency within a reasonable time after demand, the fact shall be reported by the ACO to the Inspector General and to the Office of Acquisition Management, which shall place such defaulting participant's name on the Agency's list of debarred, suspended and ineligible contractors and grantees. The participant will be so advised. Suspension or revocation of eligibility may be waived in whole or in part in the case of grants for disaster programs administered by FEMA, if the Director FEMA, so directs.</P>

              <P>(b) The failure of any surety to honor its obligations in accordance with 6 U.S.C. 11 is to be reported at once to the ACO, who shall so advise the Treasury Department. That Department will notify this Agency when a surety's certificate of authority to do business with the Government has been revoked or forfeited.<PRTPAGE P="119"/>
              </P>
              <P>(c) Failure by a recipient of FEMA financial or nonfinancial assistance to pay a substantial debt or a number of outstanding debts being collected under this subpart may be ground for Government-wide debarment and suspension as described in 44 CFR 17.305(c)(3).</P>
              <CITA>[49 FR 38267, Sept. 28, 1984, as amended at 57 FR 54715, Nov. 20, 1992]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>§ 11.42</SECTNO>
              <SUBJECT>Demand for payment of debts.</SUBJECT>
              <P>(a) <E T="03">Initial demand.</E> An initial demand shall be made in writing and sent bycertified mail, return receipt requested, or delivered by hand to the debtor identifying the debt and advising that the full amount due should be paid by a specified date, not less than 30 days from the date of mailing or the hand delivery. If the debtor is other than a State or local government or an agency of the United States, the initial demand notice shall also advise the debtor that interest, calculated at rates provided by 31 U.S.C. 3717(a), shall be assessed if the debt is not paid in full by the due date. Interest shall be charged on the outstanding balance due at the rate prescribed by the Secretary of the Treasury in accordance with 31 U.S.C. 3717(a), beginning on the date that the first notice was mailed to the debtor. The debtor shall also be advised that if any portion of the debt remains unpaid for 90 days after the due date, without a repayment schedule satisfactory to the Agency being arranged, then additional penalties, as described in 31 U.S.C. 3717(e)(2), of 6 percent per year shall be charged on the unpaid balance of principal and interest.</P>
              <P>(b) <E T="03">Subsequent demands.</E> If the debt is not paid by the due date or if a repayment program acceptable to the ACO, has not been arranged with the debtor, then an initial demand shall be made followed by two progressively stronger written demands at not more than 30-day intervals, will be made unless a response to the initial or subsequent demands indicates that further demands would be futile and that the debtor's response does not require rebuttal.</P>
              <P>(c) <E T="03">Debts arising from contracts executed on or before October 25, 1982.</E> If the claim arises from a contract executed before October 25, 1982, then the initial and subsequent demands shall mention nothing about the imposition of penalties or interest, prior to rendering of judgment by a court of competent jurisdiction.</P>
              <P>(d) <E T="03">Waiver of subsequent written demands.</E> If there is valid reason, the sending of second and third demand letters may be waived. Such reasons may include, but are not be limited to, statute of limitations being about to run.</P>
              <CITA>[49 FR 38267, Sept. 28, 1984, as amended at 53 FR 47211, Nov. 22, 1988; 57 FR 54715, Nov. 20, 1992]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>§ 11.43</SECTNO>
              <SUBJECT>Collection by administrative offset.</SUBJECT>
              <P>(a) <E T="03">General.</E> The Agency Collections Officer (ACO) or the ACO's designee may collect debts owed to the United States by means of offsets against monies due from the United States under provisions of 31 U.S.C. 3716 and the procedures set forth below. Under provisions of 31 U.S.C. 3716(h)(1) and reciprocal agreements entered into by the Secretary of the Treasury and the States concerned, the ACO or the ACO's designee may institute administrative offsets covered in this section to collect debts that are owed to States and which arise under programs administered by FEMA. The procedures prescribed by this section shall not be used if the debtor has executed a written agreement satisfactory to the ACO or the ACO's designee for the payment of the debt so long as the debtor adheres to the provisions of the agreement. Before using the procedures of this section, the ACO or the ACO's designee shall examine the debt to determine whether the likelihood of collecting such a debt and the best interests of the United States justify the use of administrative offset. If the debt is over 6 years old but is not 10 years old, the ACO or the ACO's designee shall examine the debt and decide whether using these procedures is cost effective. Further, FEMA shall not use administrative offset procedures on debts existing for more than 10 years after the Government's right to collect the debt first accrued unless facts material to the Government's right to collect the debt were not known and could not have been known by the officials of <PRTPAGE P="120"/>the Government who were charged with responsibility to discover and collect the debt. FEMA may refer debts to the Department of the Treasury for Government-wide administrative offset under the provisions of 31 U.S.C. 3716(c) and for offsets against Federal tax refunds under provisions of 31 U.S.C. 3720A.</P>
              <P>(b) <E T="03">Written notice.</E> After the ACO or the ACO's designee has examined the debt under procedures set forth in paragraph (a) of this section, FEMA shall hand deliver or send by mail a notice to the debtor advising the debtor of:</P>
              <P>(1) Nature and amount of the debt determined by the Agency to be due, and of intention to collect by administrative offset;</P>
              <P>(2) Rights available under this section;</P>
              <P>(3) Opportunity to inspect and copy the records relating to the debt;</P>
              <P>(4) Opportunity for review within the Agency with respect to the debt; and</P>
              <P>(5) Opportunity to enter into an agreement with the ACO with respect to the debt. Such agreement may include voluntary but nonrevocable withholding of monies due from the United States to the debtor.</P>
              <P>(c) <E T="03">Review within the Federal Emergency Management Agency.</E> The debtor may request, within sixty calendar days after mailing or hand-delivery of the written notice specified in paragraph (b) of this section, review within the Agency as to the existence or amount of the debt or terms of repayment. An attorney in the Office of General Counsel, acting as an Administrative Review Official (ARO), shall conduct the review. The ARO may determine that no debt is due, that the amount of the debts should be reduced, that terms of repayment should be set, or that the demanded amount should be paid in full.</P>
              <P>(1) If the debtor has made a timely request for a review within the Agency, then FEMA shall stay any offsets until the ARO has rendered a decision. However, interest, penalties and administrative charges, as specified in § 11.48, shall continue to accrue during the pendency of the review within the Agency. If the debtor files a request for a review within the Agency after the 60 days specified above, then FEMA shall continue with the offset action. However, if the ARO finds that the debtor owes less than the amount offset, then FEMA will refund the amount over-withheld. For purposes of determining whether the debtor has filed a timely request for administrative review, the date of FEMA's receipt of the debtor's request establishes the time of filing.</P>
              <P>(2) The ARO shall transmit the decision on the debtor's request for review within the Agency. The ARO may contact the debtor directly to request additional information and data in order to allow the ARO to reach a knowledgeable decision. The ARO's decision shall be final insofar as FEMA's administrative processing of the debt is concerned.</P>
              <P>(3) FEMA shall use procedures in this section to decide debtors' requests for review within FEMA under the provisions of § 11.64(d).</P>
              <P>(d) If the debtor does not execute a written agreement, if the debtor does not request review within the Agency, or if the review within the Agency determines that a debt is due, then FEMA shall use administrative offset against monies payable by the United States in accordance with this section and appropriate regulations. However, if a statute or FEMA agreement either prohibits or explicitly provides for collection through administrative offset for the debt or the type of debt involved then the provisions of that statute or FEMA agreement rather than the provisions of this section shall be used for such offset.</P>
              <P>(e) If the debtor has a judgment against the United States, then notice shall be provided to the General Accounting Office for offset in accordance with 31 U.S.C. 3728.</P>
              <P>(f) In addition to administrative offset remedies described above, FEMA may use its rights to collect debts by offsets conducted under principles of common law.</P>
              <P>(g) The debtor's failure to receive notice, described in paragraph (b) of this section, mailed by FEMA to the debtor's last-known address, shall not impair the validity of offsets taken under this section.</P>

              <P>(h) If FEMA or any other Federal department or agency incurs costs in <PRTPAGE P="121"/>taking offsets to collect delinquent debts, then the debtor shall be liable for such costs as administrative costs in accordance with section 11.48(d).</P>
              <CITA>[63 FR 1066, Jan. 8, 1998]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>§ 11.44</SECTNO>
              <RESERVED>[Reserved]</RESERVED>
            </SECTION>
            <SECTION>
              <SECTNO>§ 11.45</SECTNO>
              <SUBJECT>Collection by salary offset.</SUBJECT>
              <P>(a) <E T="03">General.</E> Where an individual is an employee of the Federal Government or a member of the Armed Forces or a reserve component of the Armed Forces or is receiving retired or retainer pay for service as a Federal employee and where the individual is indebted to the United States and where the individual fails to satisfy his indebtedness voluntarily after the Agency has made demands in accordance with § 11.42 of this part, the ACO may institute collection action by salary or pay offset procedures in accordancewith 5 U.S.C. 5514, 5 CFR 550.1101 through 550.1106, 5 CFR part 845, 5 CFR 831.1301 et seq., and the procedures described below.</P>
              <P>(b) <E T="03">Notice to debtor.</E> At least 30 days prior to initiating salary offset, the ACO or his designee shall send notice by certified mail, return receipt requested, to the debtor advising him of:</P>
              <P>(1) Nature, origin and amount of indebtedness determined by the Agency to be due, the date that the debt was due, and a statement that FEMA has complied with applicable statutes, regulations and procedures,</P>
              <P>(2) Agency intention to initiate proceedings to collect the debt by deductions from pay,</P>
              <P>(3) Rights available under 5 U.S.C. 5514(a),</P>
              <P>(4) Debtor's opportunity to inspect and copy Government records relating to the debt,</P>
              <P>(5) Opportunity to enter into a written agreement, under terms satisfactory to the ACO, to establish terms for the repayment of the debt, and</P>
              <P>(6) Opportunity for a hearing, described in paragraph (c) of this section, concerning the existence or the amount of the debt or, if no repayment schedule has been established (in accordance with paragraph (b)(1) of this section) concerning the terms of the repayment schedule,</P>
              <P>(7) If there is a statutory provision authorizing waiver, remission, or forgiveness of the debt due the United States; the individual will be notified as to:</P>
              <P>(i) Nature of the provision,</P>
              <P>(ii) Explanation of the conditions under which the waiver shall be granted,</P>
              <P>(iii) Reasonable opportunity to request a waiver,</P>
              <P>(iv) If waiver is requested, then a written response will be given to the request.</P>
              <P>(c) <E T="03">Hearing.</E> The debtor shall file a written petition for hearing or for a waiver (if applicable) on or before the twentieth calendar day after receipt of notice, referred to in paragraph (b) of this section, addressed to the Agency Collections Officer, Federal Emergency Management Agency, Washington, DC 20472. The postmark or receipt date, if mail is not used, shall establish the date of petition.</P>
              <P>(1) The hearing official shall be an Administrative Law Judge or a person of grade GS/GM-14 or higher, not under the supervision or control of the Director, FEMA. The Director may enter into interagency support agreements with other Federal agencies or departments for providing hearing officials.</P>
              <P>(2) The hearing shall be informal but the debtor shall be given the basic safeguards of due process. The debtor shall have the right to be represented by an attorney. A summary record shall be made of the proceedings at the hearing. The hearing shall, insofar as possible, be conducted at a location and time convenient to the debtor.</P>
              <P>(3) As soon as practicable, but in no event later than 60 days after the filing of the petition for hearing, the hearing official shall render a final decision. If a hearing is requested, no further action shall be taken to collect the debt until the final decision is rendered.</P>
              <P>(d) <E T="03">Amount deducted.</E> The amount deducted from pay for any period shall not exceed 15 percent of disposable pay. However, the debtor may voluntarily agree to the deduction of a greater amount of pay. Disposable pay means that part of pay of any individual remainng after the deduction from those earnings of any amounts required <PRTPAGE P="122"/>by law to be withheld. However, installment payments of less than $25.00 will be accepted only in the most unusual circumstances. Disposable pay is defined in 5 CFR 550.1103 and 5 CFR 581.105(b) through (f).</P>
              <P>(e) Procedural requirements specified in paragraph (c) of this section shall not be used in cases of collections of such obligations as changes in coverage under a Federal benefits program or resulting from ministerial adjustments pay and allowances which cannot be placed in effect immediately because of normal processing delays.</P>
              <P>(f) When an employee, who is subject to salary offset in accordance with this section and who is making repayment in installments, finds that total repayment of the debt is about to be made, then the employee must notify the employee's payroll office, at least two pay periods before the final payment, that final payment is being made.</P>
              <P>(g) Debts arising from travel advances provided under 5 U.S. C. 5705 and for travel and transportation expenses for transferred employees under 5 U.S.C. 5724 may be collected by taking offsets in accordance with 44 CFR 11.43.</P>
              <CITA>[49 FR 38267, Sept. 28, 1984, as amended at 50 FR 40007, Oct. 1, 1985; 57 FR 54715, Nov. 20, 1992]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>§ 11.46</SECTNO>
              <SUBJECT>Liquidation of collateral.</SUBJECT>
              <P>Where FEMA holds security or collateral that may be liquidated and the proceeds applied on debts due it through the exercise of a power of sale in the security instrument or a nonjudicial foreclosure, such procedures should be followed if the debtor fails to pay his debt within a reasonable time after demand, unless the cost of disposing of the collateral will be disproportionate to its value or special circumstances require judicial foreclosure.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 11.47</SECTNO>
              <SUBJECT>Collection in installments.</SUBJECT>
              <P>Debts with accrued interest and penalties should be collected in full in one lump sum whenever this is possible. However, if the debtor is financially unable to pay the indebtedness in one lump sum, payment with applicable interest may be accepted in regular installments in accordance with a written agreement approved by the ACO or his designee. If possible, installment payments shall be sufficiently large to complete collection in the three years. Installment payments should not be less than $50.00 per month unless there are most unusual circumstances. The Agency may require the debtor to execute a confess-judgment, negotiable note for the amount of the indebtedness. The ACO or DCO may require the debtor to provide a statement as to financial condition.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 11.48</SECTNO>
              <SUBJECT>Interest, penalties, and administrative charges.</SUBJECT>
              <P>(a) <E T="03">Definition.</E> In § § 11.30 through 11.65 of this part, a debt is deemed to be delinquent if the debtor has not paid the debt by the collection due date and if the debtor has not entered into a repayment agreement satisfactory to FEMA. A debt is also deemed delinquent if the debtor has not made payment by the date specified in the applicable agreement.</P>
              <P>(b) <E T="03">Interest.</E> FEMA's delinquent debtors shall be charged interest on the outstanding principal balance due on debts owed the United States at the rate published by the Secretary of the Treasury under provisions of 31 U.S.C. 3717(a). The interest rate in effect at the time that FEMA first mailed or hand delivered to the debtor written notice, stating that the debt was due and that interest would be assessed on the debt, shall be the rate applied throughout the duration of the debt until the debt is paid in full.</P>
              <P>(1) However, if the debtor defaults on a debt repayment agreement made with the ACO or the ACO's designee, then interest shall accrue at the rate published by the Secretary of the Treasury under the provisions of 31 U.S.C. 3717(a)(1) that was in effect when the debtor defaulted on the repayment agreement. Interest shall accrue either from the date that FEMA first informed the debtor that the Agency would assess interest on the debt or some subsequent date specified in the written notice given by FEMA to the debtor stating that interest would be assessed.</P>

              <P>(2) However, where FEMA first sent the notice of indebtedness prior to October 25, 1982, interest shall run from <PRTPAGE P="123"/>the date on or after that date when FEMA first sent the debtor a letter notifying the debtor that the Agency would assess interest.</P>
              <P>(c) <E T="03">Exceptions to interest charges.</E> However, no interest, described in paragraph (a) of this section, shall be charged if:</P>
              <P>(1) The amount due is paid in full within 30 days of the mailing of the demand. However, the ACO or the ACO's designee, as documented by a memorandum in the debt collection file, may extend this 30-day period on a case-by-case basis for good cause shown in accordance with the Federal Claims Collection Standards (4 CFR 102.13(g)), or</P>
              <P>(2) The applicable statute, regulation required by statute, loan agreement or contract either prohibits the charging of interest or explicitly fixes interest or charges, which apply to the debt involved.</P>
              <P>(d) <E T="03">Penalty charges.</E> Except in the situation described in paragraph (c) of this section, the debtor shall be liable for a penalty of 6% annually on the unpaid principal, interest, and administrative charges if the debtor fails to pay the debt in full within 90 days of the date after the first written notice by FEMA that FEMA would assess penalty charges. However, if the debtor enters into a repayment agreement, satisfactory to the ACO or the ACO's designee within the 90-day period, then FEMA will not assess penalty so long as the debtor adheres to the provisions of the agreement. Penalty shall accrue starting on and including the day of FEMA's first written notice where FEMA mentioned that it would assess penalty charges on the debt. Penalty will not be assessed against Federal agencies. Penalty charges shall accrue on administrative charges, starting on the day that FEMA incurred the administrative charge. However, if the debtor pays the debt in full within 90 days of FEMA's first notice that the Agency would assess penalty charges or if the debtor enters into a repayment agreement satisfactory to the ACO or the ACO's designee within that time, then FEMA will not assess penalty on accrued administrative charges.</P>
              <P>(e) <E T="03">Administrative costs for processing delinquent debts.</E> Debtors shall pay the United States for costs incurred by the Government in collecting the debt in accordance with 31 U.S.C. 3717(e)(1). Administrative cost calculations will be based upon actual costs incurred by FEMA or upon analyses establishing an average of actual costs incurred by FEMA in processing debts in similar stages of delinquency.</P>
              <P>(f) <E T="03">Standards for waiver of interest, penalties, and administrative charges.</E> (1) The ACO or the ACO's designee may waive interest, penalties and administrative charges, either in whole or in part, if the ACO or the ACO's designee finds that:</P>
              <P>(i) The debtor is financially unable to pay;</P>
              <P>(ii) The Agency's enforcement policy will be adequately served if there is a waiver in whole or in part;</P>
              <P>(iii) The debtor has shown good cause, satisfactory to the ACO, that the claim was not timely paid. If waiver is granted, the administrative claims file shall be adequately documented; or</P>
              <P>(iv) The ACO or the ACO's designee may waive imposition of interest in accordance with standards set forth in 4 CFR 102.13 and § § 11.50 and 11.51 of this subpart.</P>
              <P>(2) The ACO, with the concurrence of the General Counsel, may waive interest, penalties and administrative costs based on criteria set forth in paragraphs (f)(3) through (f)(5) of this section. When such charges are waived, the Agency Collections Officer or the ACO's designee shall prepare a memorandum for the debt collection file stating the reasons for not collecting such charges.</P>
              <P>(3) If the costs of collection exceed the projected recovery then interest, penalties and administrative costs may be waived.</P>

              <P>(4) If FEMA determines that the debtor is unable to pay, as shown by complete and sworn statements as to his or her assets and projected income, then the ACO or the ACO's designee may waive interest, penalties and administrative charges in whole or in part. If the principal outstanding amount of the debt exceeds $5,000, the determination shall be made by the ACO. If the principal outstanding amount of the debt is $5,000 or less, the <PRTPAGE P="124"/>determination may be made by the DCO, the ACO, or a person designated by the ACO.</P>
              <P>(5) The ACO or the ACO's designee may waive assessing interest, penalty, and administrative charges if such assessment would be against equity and good conscience or not in the best interests of the United States. Examples include, but are not limited to:</P>
              <P>(i) FEMA's undue delay in rendering a decision where the debtor had requested an administrative review or review within the Agency. Under these circumstances, interest and penalty would be waived during the period of undue delay.</P>
              <P>(ii) The amount of interest is so large, in relation to the debtor's ability to pay that assessment of interest would leave the debtor perpetually indebted to the United States.</P>
              <P>(g) <E T="03">Nonapplicability.</E> The provisions of this section do not apply to debts owed by Federal agencies.</P>
              <P>(h) <E T="03">Installment collections or partial payments.</E> When a debtor pays a debt either partially or in installments, the payments shall first be applied to administrative costs, second to penalty charges, third to accrued interest, and finally to principal. Partial payments shall be deemed to be made when received at the FEMA office designated to receive the payments. If the debtor owes more than one debt, then the ACO or the ACO's designee will apply the partial payment to the oldest debt first unless the debtor is making a voluntary installment payment. Under voluntary circumstances, the debtor may designate to which debt the payment is to be applied.</P>
              <P>(i) <E T="03">Collection of interest, penalties, and administrative charges while an appeal is pending.</E> If the debtor requests administrative review of the existence or the amount of the debt, interest, penalties, and administrative charges may be waived or suspended by the ACO or the ACO's designee under the following circumstances:</P>
              <P>(1) If a State or local government requests review within the Agency of a proposed referral to the Treasury Offset Program or an administrative review of a proposed administrative offset, then the ACO or the ACO's designee may waive interest, penalty or administrative charges if the State or local government shows to the satisfaction of the ACO or the ACO's designee that its taxes and other revenues would be insufficient to allow the State or local government to provide essential public services if FEMA were to collect interest, penalty, administrative charges, or any two or more, either in whole or in part. The ACO or the ACO's designee may require that the State or local government provide FEMA with such economic, accounting, financial or demographic data as the ACO or the ACO's designee may deem necessary to reach an informed decision as to waiver.</P>
              <P>(2) If a debtor notes an appeal or requests an administrative review that is mandated by law, then FEMA shall not assess interest and penalties while the appeal is pending from the time that the debtor requests an administrative review or an appeal until the Agency has taken final action on the administrative review or the appeal.</P>
              <P>(3) When a debtor notes an appeal or requests an administrative review that is permissive under statute or regulation, then interest, penalties and administrative charges may be waived if:</P>
              <P>(i) There is no fault or lack of good faith on the part of the debtor and if the amount of interest, penalties and administrative charges is so high in relation to affordable installment repayments that the debt would never be repaid. In determining whether interest and penalties should be waived, the ACO, the ACO's designee, or the DCO may demand that the debtor provide such financial data as he or she may determine is necessary to reach an informed decision.</P>
              <P>(ii) FEMA unreasonably delays in rendering a decision on a debtor's request for an administrative review or review within the Agency, then the ACO or the ACO's designee may waive assessment of interest, penalty, and administrative charge during the period of the unreasonable delay.</P>

              <P>(iii) The ACO or the ACO's designee may waive or suspend the collection of interest, penalty and administrative charges, for good cause shown and if such waiver or suspension would serve FEMA's interests. The FEMA official making such a waiver shall prepare a <PRTPAGE P="125"/>memorandum describing the circumstances and stating the reasons for the grant of a waiver or suspension.</P>
              <P>(j) <E T="03">Accrual of interest and penalty.</E> Interest and penalty will accrue on delinquent FEMA debts until FEMA receives payment at the address designated by the ACO or the ACO's designee.</P>
              <CITA>[63 FR 1067, Jan. 8, 1998]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>§ 11.49</SECTNO>
              <SUBJECT>Omission not a defense.</SUBJECT>
              <P>Failure to comply with any standard prescribed in 4 CFR chapter 11, or in this subpart shall not be available as a defense to any debtor.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 11.50</SECTNO>
              <SUBJECT>Standards for compromise of debts.</SUBJECT>
              <P>(a) <E T="03">Compromise.</E> (1) A debt may be compromised if:</P>
              <P>(i) The debtor is not able to pay the full amount within a reasonable period of time;</P>
              <P>(ii) If the debtor refuses to pay the debt in full and the Agency is unable to enforce collection within a reasonable time by enforced collection proceeding;</P>
              <P>(iii) If there is real doubt concerning the Agency's ability to prove its case in court for the full amount claimed;</P>
              <P>(iv) If the cost of collecting the debt does not justify the enforced collection of the full amount;</P>
              <P>(v) If, in connection with statutory penalties or forfeitures established as an aid to enforcement and to compel compliance, the Agency's enforcement policy will be adequately served by acceptance of the sum to be agreed upon; or</P>
              <P>(vi) For other reasons deemed valid by the ACO after consultation with the General Counsel. The Standards set forth in 4 CFR 103.3 through 103.9 should be used.</P>
              <P>(2) <E T="03">Inability to pay.</E> If a debtor is unable to pay the full amount of the debt within a reasonable time or if the debtor refuses to pay and the Government is unable to collect the amount of the debt through enforcement proceedings then the Agency may compromise the claim either in whole or in part. The ACO may require that the debtor provide sworn information as to assets, actual or potential sources of income, liabilities and other financial data. The standards set forth in the GAO, Department of Justice guidelines prescribed in 4 CFR 103.2 should be used.</P>
              <P>(3) Compromises payable in installments will not normally be permitted by the Agency only if the debtor shows that full, immediate payment is impossible.</P>
              <P>(4) <E T="03">Litigative probabilities.</E> If there is a <E T="03">bona fide</E> dispute as to facts or if there is a valid legal defense raised which may limit or eliminate the possibility of recovery, then the Agency Collections Officer may, after receiving a legal analysis from the General Counsel, compromise the action in whole or in part.</P>
              <P>(b) <E T="03">Documentary evidence of compromise.</E> No compromise of a debt shall be final or binding on the Agency unless it is in writing and signed by the appropriate officer who has authority to compromise the claim pursuant to this subpart.</P>
              <P>(c) <E T="03">Authority.</E> Only the ACO may compromise debts of more than $2,500. Debts of $2,500 or less may be compromised by the ACO or the DCO. Debts exceeding $100,000 or such other limit prescribed by the Attorney General in accordance with 31 U.S.C. 3711(a)(2) may be compromised only after approval by the Department of Justice in accordance with 4 CFR 103.1(b).</P>
              <CITA>[49 FR 38267, Sept. 28, 1984, as amended at 53 FR 47212, Nov. 22, 1988; 57 FR 54715, Nov. 20, 1992]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>§ 11.51</SECTNO>
              <SUBJECT>Standards for suspension or termination of collection.</SUBJECT>
              <P>(a) <E T="03">Suspension of collection action.</E> (1) Collection action shall be suspended temporarily on a debt when the debtor cannot be located after diligent effort but there is reason to believe that future collection action may be sufficently productive to justify periodic review and action on the claim, making consideration for its size and the amount which may be realized. Collection action may be suspended temporarily on a debt when the debtor owns no subsantial equity in realty and is presently unable to make payment on the Agency's debt or effect a compromise, but his future prospects justify retention of the claim for periodic review and action, and, (i) the applicable statute of limitations has been <PRTPAGE P="126"/>tolled or started anew, or (ii) future collection can be effected by offset notwithstanding the statute of limitations. Suspension as to a particular debtor should not defer the early liquidation of security for the debt. Standards prescribed in 4 CFR part 104 shall be used in making determinations as to suspension as termination of collection efforts.</P>
              <P>(2) <E T="03">No substantial recovery possible.</E> If, at the time that collection is attempted, debtor is without assets or actual or potential income or if the debtor may have exemptions under the bankruptcy laws which make enforced collection of the debt not cost-effective, then collection action may be suspended. However, interest and other charges will accumulate unless waived.</P>
              <P>(3) <E T="03">Debtor cannot be located.</E> If the debtor cannot be located or is outside the United States, then collection action may be suspended until the debtor is located. The statute of limitations will be tolled during those periods that the debtor is outside the United States.</P>
              <P>(b) <E T="03">Termination of collection action.</E> (1) Collection action may be terminated and the Agency file closed for the following reasons: (i) No substantial amount can be collected; (ii) the debtor cannot be located; (iii) the cost will exceed recovery; (iv) the claim is legally without merit; or (v) the claim cannot be substantiated by evidence.</P>
              <P>(2) <E T="03">No substantial recovery possible.</E> If there is little likelihood that collection efforts will result in any substantial recovery, then collection efforts may be terminated. Costs of recovery may be a factor in determining whether any recovery would be substantial. Normally, costs of recovery would be more important in cases of small debts than in cases of large ones.</P>
              <P>(3) <E T="03">Debtor cannot be located.</E> Every effort, including, but not limited to, use of governmental records, Internal Revenue Service taxpayer information, private contractor skip tracer and credit agencies, shall be made to locate debtors in advance of the runnning of the statute of limitations. If the debtor cannot be located, then the Agency Collections Officer may determine, with the concurrence of the General Counsel, that collection efforts may be terminated.</P>
              <P>(4) <E T="03">Litigative possibilities.</E> The criteria and procedures of § 11.50(a)(4) of this subpart may be used to terminate collection efforts if it appears unlikely that the Government would prevail if it were to litigate collection of the debt.</P>
              <P>(c) <E T="03">Debts exceeding $100,000.</E> Debts exceeding $100,000 or higher limits prescribed by the Attorney General in accordance with 31 U.S.C. 3711(a)(2) (exclusive of interest, penalty charges and administrative charges) shall not be compromised by FEMA unless the proposed compromise has been referred for approval by the Department of Justicein accordance with 4 CFR 104.1(b). Such proposed compromises shall be referred to the Office of General Counsel, which shall review the proposal before being forwarded to the Department of Justice. However, where a debt claim is of no legal merit, the ACO may compromise such a debt without referral to the Department of Justice but only with the concurrence of the Office of General Counsel.</P>
              <P>(d) <E T="03">Enforcement policy.</E> Statutory penalties and forfeitures are used as an aid to secure compliance with FEMA requirements and to compel payment. These may be waived if the Agency's enforcement policy in terms of securing payment and securing compliance with FEMA regulations would be sreved by accepting a sum agreed upon. Mere accidental or technical violations will be dealt with less severly than willful or substantial violations.</P>
              <CITA>[49 FR 38267, Sept. 28, 1984, as amended at 53 FR 47212, Nov. 22, 1988; 57 FR 54715, Nov. 20, 1992]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>§ 11.52</SECTNO>
              <SUBJECT>Referral of delinquent debtors to consumer reporting agencies.</SUBJECT>
              <P>(a) <E T="03">General.</E> This section implements 31 U.S.C. 3711(f) concerning reporting of debtors having overdue debts to consumer reporting agencies.</P>
              <P>(b) <E T="03">Procedures.</E> When a debt is unpaid for 120 days after the initial demand letter has been sent and where the debtor has not repaid the amount due nor has the debtor entered into an agreement for repayment satisfactory to the ACO or his designee, or the debt is not subject to administrative offset (as described in § 11.43), the ACO may <PRTPAGE P="127"/>report the claim to consumer reporting agencies if:</P>
              <P>(1) The Agency Collections Officer or his designee has determined that the debt is overdue,</P>
              <P>(2) Notice has been sent certified mail, return receipt requested, to debtor informing him that:</P>
              <P>(i) Payment of the debt is overdue,</P>
              <P>(ii) The Agency intends to disclose the debtor's debt records to a consumer reporting agency within a stated period, not less than 60 days after the mailing of such debt,</P>
              <P>(iii) Specified items of information being released shall be listed in the notice. Such items will normally include the debtor's name, taxpayer account number, last known address, other information necessary to establish the identity of the individual, the nature, amount and status of the outstanding claim, and programs under which the claim arose, and</P>
              <P>(iv) The debtor has a right to a full explanation of the debt, to dispute any information in the records concerning the debt, and to have an administrative review. If the debtor petitions for administrative review, then no further action on referring debtor information to consumer reporting agencies shall be undertaken until the administrative review is completed.</P>
              <P>(c) <E T="03">Administrative review.</E> The debtor shall send with his petition arguments in writing and documentary evidence to the Agency Collection Officer, Office of Financial Management, Federal Emergency Management Agency, Washington, DC 20472. These shall be reviewed by the ACO or an official designated by him. The reviewing official shall prepare a reply, within 60 days after receipt of the petition, either accepting the debtor's assertions in whole or is part or rejecting them. If the debtor's assertions are rejected in whole or in part, then the debt data, described in paragraph (b)(2)(iii) of this section (with correction made as indicated by the reviewing official) shall be sent to consumer reporting agencies.</P>
              <P>(d) <E T="03">Information released.</E> Information released to consumer reporting agencies shall be limited to the following items:</P>
              <P>(1) Name of debtor, address, taxpayer identification number, and other information necessary to establish the identity of the debtor,</P>
              <P>(2) Amount, status and history of the debt and</P>
              <P>(3) Program under which the debt arose.</P>
              <CITA>[49 FR 38267, Sept. 28, 1984, as amended at 57 FR 54715, Nov. 20, 1992]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>§ 11.53</SECTNO>
              <SUBJECT>Securing debtor addresses from the Department of Treasury.</SUBJECT>
              <P>(a) If the ACO is unable to obtain a current address for the debtor, then a written request shall be sent to the Secretary of the Treasury asking for the debtor's most current mailing address from the Department of theTreasury taxpayer identity information files for Agency use in collecting claims. Any information so received from the Secretary of the Treausury shall be safeguarded in accordance with provisions of 26 U.S.C. 6103(p)(4) and 26 CFR parts 301 and 601.</P>
              <P>(b) Taxpayer identity information (which includes IRS current address and social security number) shall be released to consumer reporting agencies only for the purpose of preparation of commercial credit reports for use by Federal agencies in accordance with section 3 of the Debt Collection Act (31 U.S.C. 3711(f)). A notice to this effect shall be placed on each page containing taxpayer identitiy information which is sent to consumer reporting agencies.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 11.54</SECTNO>
              <SUBJECT>Contracts with debt collection agencies.</SUBJECT>
              <P>(a) <E T="03">General.</E> FEMA shall utilize mandatory, government-wide debt collection agency contracts negotiated by the General Services Administration or the Department of the Treasury to effect collection of debts owed FEMA.</P>
              <P>(b) <E T="03">Debt collection contract provisions.</E> Contracts entered into under authority of this secion shall have provisions relating to:</P>
              <P>(1) Protection of data relating to individuals which shall not be less than that provided under the terms of the Privacy Act (5 U.S.C. 552a).</P>

              <P>(2) Protection of data derived from Department of the Treasury taxpayer identity information files shall in accordance with 26 U.S.C. 6103(p)(4) and 26 CFR parts 301 and 601.<PRTPAGE P="128"/>
              </P>
              <P>(3) Authority to terminate collection action, settle or compromise claims shall remain with the Director of the Agency or the ACO rather than with the Contracting Officer.</P>
              <P>(4) Resolution of disputes relating to the claim shall remain with the ACO or the Agency Director. Resolution of disputes arising under the contract or with the contractor shall remain with the Agency Contracting Officer who shall handle such disputes in accordance with the Contract Disputes Act (Pub. L. 95-563).</P>
              <P>(5) Judicial enforcement of the claim shall be handled by the U.S. Department of Justice.</P>

              <P>(6) The contractor shall adhere to Federal and State laws and regulations pertaining to debt collection practices including the Fair Debt Collection Practices Act (15 U.S.C. 1692 <E T="03">et seq.</E>)</P>
              <P>(7) Contracts, entered into under provisions of this section, shall be subject to competition to the maximum practicable extent.</P>
              <P>(8) The contractor shall be required to strictly account for all amounts collected.</P>
              <P>(c) <E T="03">Collection fees.</E> Contracts entered into under this section may provide that fees payable to the contractor may be paid only from the amounts collected from the debtor as determined by the Contracting Officer. However, such contracts shall be funded only from funds available for the time period in which the contract is executed.</P>
              <APPRO>(Approved by the Office of Management and Budget under control number 3067-0122)</APPRO>
              <CITA>[49 FR 38267, Sept. 28, 1984; 50 FR 40007, Oct. 1, 1985; 50 FR 42023, Oct. 17, 1985; 51 FR 34605, Sept. 30, 1986; 53 FR 47212, Nov. 22, 1988]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>§ 11.55</SECTNO>
              <SUBJECT>Referral to GAO or Justice Department.</SUBJECT>
              <P>(a) <E T="03">Referral to the Department of Justice.</E> With the exception of debts described in paragraph (b), of this section, those debts which cannot be collected or compromised or terminated in accordance with 3 CFR parts 103 and 104 and §§ 11.50 and 11.51, shall be referred to the Department of Justice for collection action. All such referrals shall be done by the ACO, who shall consult with the FEMA Office of General Counsel. The referral shall be accompanied by a copy of the complete debt collection file. In addition, the following information shall be provided:</P>
              <P>(1) Current address of debtor. Effort shall be made to locate the debtor if he is missing. If the debtor is a corporation, then the name and address of the agent upon whom service of process may be made, shall be provided.</P>
              <P>(2) Credit data which may be in the form of a credit report or a statement, under oath, of the debtor's assets and liabilities.</P>
              <P>(3) History of prior collection actions.</P>
              <P>(4) Data required by the GAO Claims Collection Litigation Report form. If the debt is less than $600, exclusive of interest, then referral shall not be made to the Department of Justice, except in unusual cases.</P>
              <P>(b) <E T="03">Referral to the General Accounting Office.</E> Debts arising from audits exceptions taken by the General Accounting Office (GAO) shall be referred to GAO before referring such debts to the Department of Justice. If the merits of the debt or the propriety of a proposed compromise, suspension or termination are in doubt, then the matter should be referred to GAO prior to referral to the Department of Justice.</P>
              <P>(c) <E T="03">Prompt referral.</E> Such referrals shall be made as early as possible consistent with aggressive collection action, and, in any event, well within the statute of limitation for bringing suit against the debtor. Ordinarily, debt collection referrals will be made to the Department of Justice within six months after FEMA has determined that a debt is owing in an amount certain.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 11.56</SECTNO>
              <SUBJECT>Analysis of costs.</SUBJECT>

              <P>The ACO shall provide for periodic comparison of costs incurred and amounts collected. Data on costs and corresponding recovery rates for debts of different types and in various dollar ranges should be used to compare the cost effectiveness of alternative collection techniques, establish guidelines with respect to the points at which costs of further collection efforts are likely to exceed recoveries, assist in evaluating offers in compromise, and establish minimum debt amounts <PRTPAGE P="129"/>below which collection efforts need not be taken. Cost and recovery data should also be useful in justifying adequate resources for an effective collection action.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 11.57</SECTNO>
              <SUBJECT>Automation.</SUBJECT>
              <P>The ACO shall work to automate the Agency's debt collection operations to the extent that it is cost effective and feasible.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 11.58</SECTNO>
              <SUBJECT>Prevention of overpayments, delinquencies, and defaults.</SUBJECT>
              <P>The ACO shall establish procedures to identify the causes of overpayments, delinquencies, and defaults and the corrective actions needed. All debts or loans, when first established, may be reported to commercial credit bureaus.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 11.59</SECTNO>
              <SUBJECT>Office of General Counsel.</SUBJECT>
              <P>The Office of General Counsel shall provide legal advice on claims collection matters to all debt collection officers and the Agency Collection Officer, as needed.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 11.60</SECTNO>
              <SUBJECT>Sale of debts due the United States arising under programs administered by the Agency.</SUBJECT>
              <P>Where debts due the United States arising under programs administered by the Agency prove to be uncollectable or unresolvable through procedures described in §§ 11.33 through 11.35, 11.41 through 11.48, and 11.50 through 11.55 and where the stated value of the debt is less than $100,000 or such higher limit prescribed by the Attorney General in accordance with 31 U.S.C. 3711(a)(2), excluding penalties and interest, then the Agency may contract to sell or assign such debts under competitive sales procedures. The Agency may sell or assign debts valued at $600, or less, excluding penalties and interest, after decision by the ACO. Where the debt exceeds $600, but is less than $100,000 or such higher limit prescribed by the Attorney General in accordance with 31 U.S.C. 3711(a)(2), exclusive of interest and penalties, the Agency may sell or assign such debts only after the ACO has coordinated such action with the Department of Justice and the General Accounting Office.</P>
              <CITA>[49 FR 38267, Sept. 28, 1984, as amended at 57 FR 54715, Nov. 20, 1992]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>§ 11.61</SECTNO>
              <SUBJECT>Referral of delinquent debts to Department of the Treasury for offsets against tax refunds.</SUBJECT>
              <P>(a) FEMA may refer delinquent debts to the Department of the Treasury for offset against tax refunds in accordance with 31 U.S.C. 3720A and that Department's implementing regulations.</P>
              <P>(b) FEMA will provide information to the Department of the Treasury within time limits prescribed by the Secretary of the Treasury or his or her designee and in accordance with agreements entered into between FEMA and the Department of the Treasury and its constituent agencies.</P>
              <P>(1) Information submitted to the Department of the Treasury shall include a description of:</P>
              <P>(i) The size and age of FEMA's inventory of delinquent debts; and</P>
              <P>(ii) The prior collection efforts that the inventory reflects; and</P>
              <P>(2) In accordance with time limits and record transmission requirements established by the Department of the Treasury or its constituent agencies, FEMA may submit magnetic media containing information on debtors being referred to that Department for tax refund offset. FEMA may use the electronic data transmissions facilities of other federal agencies in transmitting data on debtors or for referral of debts to the Department of the Treasury.</P>
              <P>(c) FEMA shall establish a collect-call or toll-free telephone number that the Department of the Treasury or its constituent agencies will furnish to debtors whose refunds have been offset to obtain information from FEMA concerning the offsets taken.</P>
              <P>(d) Tax refund offset procedures described in §§ 11.61 through 11.64 shall apply to debts owed to the United States that are past-due and legally enforceable, and</P>
              <P>(1) Except in the case of a judgment debt, the debt has been delinquent for at least three months but has not been delinquent for more than ten years at the time the offset is made; and</P>

              <P>(2) Where FEMA has given the debtor at least 60 days from the date of mailing of the notification (described in § 11.63 of this part) to request a review within FEMA and to present evidence that all or part of the debt is not past-<PRTPAGE P="130"/>due or legally enforceable. If the debtor has requested a review and presented evidence, then FEMA has considered the debtor's evidence and reasons and has determined that all or a part of the debt is past-due and legally enforceable; and</P>
              <P>(3) With respect to which FEMA has notified or has made a reasonable attempt to notify the debtor that the debt is past-due and, unless repaid within 60 days of the mailing of the notification the debt will be referred to the Department of the Treasury for offset against any overpayment of tax; and</P>
              <P>(4) Is at least $25.00; and</P>
              <P>(5) Meets all other requirements of 31 U.S.C. 3720A and the Department of the Treasury regulations relating to the eligibility of a debt for tax refund offset have been satisfied.</P>
              <CITA>[63 FR 1068, Jan. 8, 1998]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>§ 11.62</SECTNO>
              <SUBJECT>Administrative charges incurred in referrals for tax refund offset.</SUBJECT>
              <P>In accordance with § 11.48(e), all administrative costs incurred in connection with the referral of the debts to the Department of the Treasury for collection by tax refund offset shall be added to the amount owed by the debtor. Such costs will include, but not be limited to, a pro-rata share of total costs of taking offsets incurred by the Department of the Treasury in accordance with agreements executed by FEMA, the Department of the Treasury and the Department's constituent agencies.</P>
              <CITA>[63 FR 1069, Jan. 8, 1998]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>§ 11.63</SECTNO>
              <SUBJECT>Notice to debtor before tax refund offset.</SUBJECT>
              <P>(a) FEMA will refer a debt to the Department of the Treasury for tax refund offset only after FEMA:</P>
              <P>(1) Makes a determination that the debt is owed to the United States;</P>
              <P>(2) Sends the debtor a notice of FEMA's intent to use Department of the Treasury tax refund offset that provides the debtor with items of information described in paragraphs (a)(2) (i) through (vii) as follows:</P>
              <P>(i) Debtor owes FEMA an amount due; and</P>
              <P>(ii) The debt is past due; and</P>
              <P>(iii) Unless the debt is repaid within 60 days of the date of FEMA's mailing the notice of intent described above, FEMA intends to collect the debt by requesting the Department of the Treasury to take offset to reduce the debtor's federal tax refund by the amount of the principal amount of the debt and all accumulated interest, penalty, and other charges; and</P>
              <P>(iv) Debtor has an opportunity to present arguments and evidence within 60 days of mailing of the notice of intent that all or a part of the debt is not due. A debtor requesting a review within the Agency shall send these arguments to the FEMA office that sent the notice of intent under § 11.63(a)(2); and</P>
              <P>(v) Debtor has had an opportunity to arrange to inspect and copy records relating to the debt by mailing a request to the FEMA office sending the notice of intent under § 11.63(a)(2); and</P>
              <P>(vi) If no reply is received from the debtor within 60 days of mailing of the notice, FEMA may refer the debt to the U.S. Department of the Treasury after reviewing the file and determining that the debt is due; and</P>
              <P>(vii) Debtor may negotiate a repayment agreement, satisfactory to FEMA, for the repayment of the debt.</P>
              <P>(b) If the debtor has presented evidence and arguments as described in subsection (a)(2)(iv) FEMA will refer the debt to the Department of the Treasury only after the FEMA Office of General Counsel has rendered a decision under provisions of §§ 11.64 and 11.65 of this subpart concerning the debtor's arguments and evidence, if any, and has determined that the debt is due either in whole or in part. If the debtor has submitted evidence in accordance with paragraph (a)(2)(iv)(g) of this section, the FEMA Office of General Counsel shall notify the debtor of the Agency's final determination.</P>
              <P>(c) If the debtor has questions concerning the debt or procedures being used, the debtor may contact FEMA at an address and telephone number provided in the notice of intent under § 11.63(a)(2).</P>
              <CITA>[63 FR 1069, Jan. 8, 1998]</CITA>
            </SECTION>
            <SECTION>
              <PRTPAGE P="131"/>
              <SECTNO>§ 11.64</SECTNO>
              <SUBJECT>Review within Federal Emergency Management Agency.</SUBJECT>
              <P>(a) <E T="03">Notification by debtor.</E> A debtor receiving notice of intent under § 11.63(a)(2) has the right to present evidence and arguments within 60 days of mailing of the notice of intent that all of the debt is not past-due or not legally enforceable. To exercise this right, the debtor must:</P>
              <P>(1) Send a written request for review of evidence to the FEMA office sending the notice of intent; and</P>
              <P>(2) State in the request the amount disputed and the reasons why the debtor believes that the debt is not past-due or is not legally enforceable; and</P>
              <P>(3) Include in the request any documents that the debtor wishes to be considered, or state that additional information will be submitted within the remainder of the 60-day period. FEMA is not obligated to consider any of debtor's evidence received after the 60-day period, except as specified in paragraph (c) of this section.</P>
              <P>(b) <E T="03">Submission of evidence.</E> The debtor may submit evidence that all or part of the debt is not past due or legally enforceable along with the notification required by paragraph (a) of this section. Debtor's failure to submit the notification and evidence within the 60-day period may result in FEMA's referral of the debt to the Department of the Treasury with only a review by the ACO or the ACO's designee that FEMA's records show that the debt is actually due FEMA.</P>
              <P>(c) <E T="03">Late filed requests for review within FEMA.</E> If the debtor submits a request for review after the 60-day time limit in paragraph (a) of this section, FEMA shall render a decision as described in paragraph (d) of this section, but FEMA shall not stay offset action as described in § 11.65. However, if FEMA, after the review of the debtor's evidence and arguments, determines that the debtor owes less than the amounts that FEMA has taken through offset, then FEMA shall refund any difference between any amounts offset and amounts that the review within the Agency determines is actually owed.</P>
              <P>(d) <E T="03">Review of the evidence.</E> FEMA will review the debtor's arguments and evidence in accordance with procedures set forth in § 11.43(c).</P>
              <CITA>[63 FR 1069, Jan. 8, 1998]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>§ 11.65</SECTNO>
              <SUBJECT>Stay of tax refund offset action.</SUBJECT>
              <P>If the debtor notifies FEMA that the debtor is exercising rights described in § 11.64 and submits evidence within time limits specified in § 11.64, any notice to the Department of the Treasury concerning tax refund offset will be stayed until the issuance of a written decision that sustains, amends, or ends collection action resulting from FEMA's original debt collection decision.</P>
              <CITA>[63 FR 1069, Jan. 8, 1998]</CITA>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart D—Personnel Claims Regulations</HD>
            <AUTH>
              <HD SOURCE="HED">Authority:</HD>
              <P>31 U.S.C. 3721.</P>
            </AUTH>
            <SOURCE>
              <HD SOURCE="HED">Source:</HD>
              <P>50 FR 8112, Feb. 28, 1985.</P>
            </SOURCE>
            <SECTION>
              <SECTNO>§ 11.70</SECTNO>
              <SUBJECT>Scope and purpose.</SUBJECT>
              <P>(a) The Director, Federal Emergency Management Agency (FEMA), is authorized by 31 U.S.C. 3721 to settle and pay (including replacement in kind) claims of officers and employees of FEMA, amounting to not more than $25,000 for damage to or loss of personal property incident to their service. Property may be replaced in-kind at the option of the Government. Claims are payable only for such types, quantities, or amounts of tangible personal property (including money) as the approving authority shall determine to be reasonable, useful, or proper under the circumstances existing at the time and place of the loss. In determining what is reasonable, useful, or proper, the approving authority will consider the type and quantity of property involved, circumstances attending acquisition and use of the property, and whether possession or use by the claimant at the time of damage or loss was incident to service.</P>

              <P>(b) The Government does not underwrite all personal property losses that a claimant may sustain and it does not underwrite individual tastes. While the Government does not attempt to limit possession of property by an individual, payment for damage or loss is made <PRTPAGE P="132"/>only to the extent that the possession of the property is determined to be reasonable, useful, or proper. If individuals possess excessive quantities of items, or expensive items, they should have such property privately insured. Failure of the claimant to comply with these procedures may reduce or preclude payment of the claim under this subpart.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 11.71</SECTNO>
              <SUBJECT>Claimants.</SUBJECT>
              <P>(a) A claim pursuant to this subpart may only be made by: (1) An employee of FEMA; (2) a former employee of FEMA whose claim arises out of an incident occurring before his/her separation from FEMA; (3) survivors of a person named in paragraph (a) (1) or (2) of this section, in the following order of precedence: (i) Spouse; (ii) children; (iii) father or mother, or both or (iv) brothers or sisters, or both; (4) the authorized agent or legal representative of a person named in paragraphs (a) (1), (2), and (3) of this section.</P>
              <P>(b) A claim may not be presented by or for the benefit of a subrogee, assignee, conditional vendor, or other third party.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 11.72</SECTNO>
              <SUBJECT>Time limitations.</SUBJECT>
              <P>(a) A claim under this part may be allowed only if it is in writing, specifies a sum certain and is received in the Office of General Counsel, Federal Emergency Management Agency, Washington, DC 20472: (1) Within 2 years after it accrues; (2) or if it cannot be filed within the time limits of paragraph (a)(1) of this section because it accrues in time of war or in time of armed conflict in which any armed force of the United States is engaged or if such a war or armed conflict intervenes within 2 years after the claim accrues, when the claimant shows good cause, the claim may be filed within 2 years after the cause ceases to exist but not more than 2 years after termination of the war or armed conflict.</P>
              <P>(b) For purposes of this subpart, a claim accrues at the time of the accident or incident causing the loss or damage, or at such time as the loss or damage should have been discovered by the claimant by the exercise of due diligence.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 11.73</SECTNO>
              <SUBJECT>Allowable claims.</SUBJECT>
              <P>(a) A claim may be allowed only if: (1) The damage or loss was not causedwholly or partly by the negligent or wrongful act of the claimant, his/her agent, the members of his/her family, or his/her private employee (the standard to be applied is that of reasonable care under the circumstances); and (2) the possession of the property lost or damaged and the quantity possessed is determined to have been reasonable, useful, or proper under the circumstances; and (3) the claim is substantiated by proper and convincing evidence.</P>
              <P>(b) Claims which are otherwise allowable under this subpart shall not be disallowed solely because the property was not in the possession of the claimant at the time of the damage or loss, or solely because the claimant was not the legal owner of the property for which the claim is made. For example, borrowed property may be the subject of a claim.</P>
              <P>(c) Subject to the conditions in paragraph (a) of this section, and the other provisions of this subpart, any claim for damage to, or loss of, personal property incident to service with FEMA may be considered and allowed. The following are examples of the principal types of claims which may be allowed, unless excluded by § 11.74.</P>
              <P>(1) <E T="03">Property loss or damage in quarters or other authorized places.</E> Claims may be allowed for damage to, or loss of, property arising from fire, flood, hurricane, other natural disaster, theft, or other unusual occurrence, while such property is located at:</P>
              <P>(i) Quarters within the 50 states or the District of Columbia that were assigned to the claimant or otherwise provided in-kind by the United States; or</P>
              <P>(ii) Any warehouse, office, working area, or other place (except quarters) authorized for the reception or storage of property.</P>
              <P>(2) <E T="03">Transportation or travel losses.</E> Claims may be allowed for damage to, or loss of, property incident to transportation or storage pursuant to orders, or in connection with travel under orders, including property in the custody of a carrier, an agent or agency of the Government, or the claimant.<PRTPAGE P="133"/>
              </P>
              <P>(3) <E T="03">Motor vehicles.</E> Claims may be allowed for automobiles and other motor vehicles damaged or lost by overseas shipments provided by the Government. “Shipments provided by the Government” means via Government vessels, charter of commercial vessels, or by Government bills of lading on commercial vessels, and includes storage, unloading, and offloading incident thereto. Other claims for damage to or loss of automobiles and other major vehicles may be allowed when use of the vehicles on a nonreimbursable basis was required by the claimant's supervisor, but these claims shall be limited to a maximum of $1,000.00.</P>
              <P>(4) <E T="03">Mobile homes.</E> Claims may be allowed for damage to or loss of mobile homes and their content under the provisions of paragraph (c)(2) of this section. Claims for structural damage to mobile homes resulting from such structural damage must contain conclusive evidence that the damage was not caused by structural deficiency of the mobile home and that it was not overloaded. Claims for damage to or loss of tires mounted on mobile homes may be allowed only in cases of collision, theft, or vandalism.</P>
              <P>(5) <E T="03">Money.</E> Claims for money in an amount that is determined to be reasonable for the claimant to possess at the time of the loss are payable:</P>
              <P>(i) Where personal funds were accepted by responsible Government personnel with apparent authority to receive them for safekeeping, deposit, transmittal, or other authorized disposition, but were neither applied as directed by the owner nor returned;</P>
              <P>(ii) When lost incident to a marine or aircraft disaster;</P>
              <P>(iii) When lost by fire, flood, hurricane, or other natural disaster;</P>
              <P>(iv) When stolen from the quarters of the claimant where it is conclusively shown that the money was in a locked container and that the quarters themselves were locked. Exceptions to the foregoing “double lock” rule are permitted when the adjudicating authority determines that the theft loss was not caused wholly or partly by the negligent or wrongful act of the claimant, their agent, or their employee. The adjudicating authority should use the test of whether the claimant did their best under the circumstances to protect the property; or</P>
              <P>(v) When taken by force from the claimant's person.</P>
              <P>(6) <E T="03">Clothing.</E> Claims may be allowed for clothing and accessories customarily worn on the person which are damaged or lost:</P>
              <P>(i) During the performance of official duties in an unusual or extraordinary-risk situation;</P>
              <P>(ii) In cases involving emergency action required by natural disaster such as fire, flood, hurricane, or by enemy or other belligerent action;</P>
              <P>(iii) In cases involving faulty equipment or defective furniture maintained by the Government and used by the claimant required by the job situation; or</P>
              <P>(iv) When using a motor vehicle.</P>
              <P>(7) <E T="03">Property used for benefit of the Government.</E> Claims may be allowed for damage to or loss of property (except motor vehicles, see §§ 11.73(c)(3) and 11.74(b)(13)) used for the benefit of the Government at the request of, or with the knowledge and consent of, superior authority or by reason of necessity.</P>
              <P>(8) <E T="03">Enemy action or public service.</E> Claims may be allowed for damage to or loss of property as a direct consequence of:</P>
              <P>(i) Enemy action or threat thereof, or combat, guerrilla, brigandage, or other belligerent activity, or unjust confiscation by a foreign power or its nation:</P>
              <P>(ii) Action by the claimant to quiet a civil disturbance or to alleviate a public disaster; or</P>
              <P>(iii) Efforts by the claimant to save human life or Government property.</P>
              <P>(9) <E T="03">Marine or aircraft disaster.</E> Claims may be allowed for personal property damaged or lost as a result of marine or aircraft disaster or accident.</P>
              <P>(10) <E T="03">Government property.</E> Claims may be allowed for property owned by the United States only when the claimant is financially responsible to an agency of the Government other than FEMA.</P>
              <P>(11) <E T="03">Borrowed property.</E> Claims may be allowed for borrowed property that has been damaged or lost.</P>

              <P>(12)(i) A claim against the Government may be made for not more than $40,000 by an officer or employee of the agency for damage to, or loss of, personal property in a foreign country <PRTPAGE P="134"/>that was incurred incident to service, and—</P>
              <P>(A) The officer, or employee was evacuated from the country on a recommendation or order of the Secretary of State or other competent authority that was made in responding to an incident of political unrest or hostile act by people in that country; and the damage or loss resulted from the evacuation, incident, or hostile act; or</P>
              <P>(B) The damage or loss resulted from a hostile act directed against the Government or its officers, or employees.</P>
              <P>(ii) On paying the claim under this section, the Government is subrogated for the amount of the payment to a right or claim that the claimant may have against the foreign country for the damage or loss for which the Government made the payment.</P>
              <P>(iii) Amounts may be obligated or expended for claims under this section only to the extent provided in advance in appropriation laws.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 11.74</SECTNO>
              <SUBJECT>Claims not allowed.</SUBJECT>
              <P>(a) A claim is not allowable if:</P>
              <P>(1) The damage or loss was caused wholly or partly by the negligent or wrongful act of the claimant, claimant's agent, claimant's employee, or a member of claimant's family;</P>
              <P>(2) The damage or loss occurred in quarters occupied by the claimant within the 50 states and the District of Columbia that were not assigned to the claimant or otherwise provided in-kind by the United States;</P>
              <P>(3) Possession of the property lost or damaged was not incident to service or not reasonable or proper under the circumstances.</P>
              <P>(b) In addition to claims falling within the categories of paragraph (a) of this section, the following are examples of claims which are not payable:</P>
              <P>(1) <E T="03">Claims not incident to service.</E> Claims which arose during the conduct of personal business are not payable.</P>
              <P>(2) <E T="03">Subrogation claims.</E> Claims based upon payment or other consideration to a proper claimant are not payable.</P>
              <P>(3) <E T="03">Assigned claims.</E> Claims based upon assignment of a claim by a proper claimant are not payable.</P>
              <P>(4) <E T="03">Conditional vendor claims.</E> Claims asserted by or on behalf of a conditional vendor are not payable.</P>
              <P>(5) <E T="03">Claims by improper claimants.</E> Claims by persons not designated in § 11.71 are not payable.</P>
              <P>(6) <E T="03">Articles of extraordinary value.</E> Claims are not payable for valuable or expensive articles, such as cameras, watches, jewelry, furs, or other articles of extraordinary value, when shipped with household goods or as unaccompanied baggage (shipment includes storage). This prohibition does not apply to articles in the personal custody of the claimant or articles properly checked, provided that reasonable protection or security measures have been taken, by the claimant.</P>
              <P>(7) <E T="03">Articles acquired for other persons.</E> Claims are not payable for articles intended directly or indirectly for persons other than the claimant or members of the claimants' immediate household. This prohibition includes articles acquired at the request of others and articles for sale.</P>
              <P>(8) <E T="03">Property used for business.</E> Claims are not payable for property normally used for business or profit.</P>
              <P>(9) <E T="03">Unserviceable property.</E> Claims are not payable for wornout or unserviceable property.</P>
              <P>(10) <E T="03">Violation of law or directive.</E> Claims are not payable for property acquired, possessed, or transported in violation of law, regulation, or other directive. This does not apply to limitation imposed on the weight of shipments of household goods.</P>
              <P>(11) <E T="03">Intangible property.</E> Claims are not payable for intangible property such as bank books, checks, promissory notes, stock certificates, bonds, bills of lading, warehouse receipts, baggage checks, insurance policies, money orders, and traveler's checks.</P>
              <P>(12) <E T="03">Government property.</E> Claims are not payable for property owned by the United States unless the claimant is financially responsible for the property to an agency of the Government other than FEMA.</P>
              <P>(13) <E T="03">Motor vehicles.</E> Claims for motor vehicles, except as provided for by § 11.73(c)(3), will ordinarily not be paid. However, in exceptional cases, meritorious claims for damage to or loss of motor vehicles, limited to a maximum of $1,000.00, may be recommended to the Office of General Counsel for consideration and approval for payment.<PRTPAGE P="135"/>
              </P>
              <P>(14) <E T="03">Enemy property.</E> Claims are not payable for enemy property, including war trophies.</P>
              <P>(15) <E T="03">Losses recoverable from carrier, insurer or contractor.</E> Claims are not payable for losses, or any portion thereof, which have been recovered or are recoverable from a carrier, insurer or under contract except as permitted under § 11.75.</P>
              <P>(16) <E T="03">Fees for estimates.</E> Claims are not normally payable for fees paid to obtain estimates of repair in conjunction with submitting a claim under this subpart. However, where, in the opinion of the adjudicating authority, the claimant could not obtain an estimate without paying a fee, such a claim may be considered in an amount reasonable in relation to the value for the cost of repairs of the articles involved, provided that the evidence furnished clearly indicates that the amount of the fee paid will not be deducted from the cost of repairs if the work is accomplished by the estimator.</P>
              <P>(17) <E T="03">Items fraudulently claimed.</E> Claims are not payable for items fraudulently claimed. When investigation discloses that a claimant, claimant's agent, claimant's employee, or member of claimant's family has intentionally misrepresented an item claimed as to cost, condition, costs to repair, etc., the item will be disallowed in its entirety even though some actual damage has been sustained. However, if the remainder of the claim is proper, it may be paid. This does not preclude appropriate disciplinary action if warranted.</P>
              <P>(18) <E T="03">Minimum amount.</E> Loss or damage amounting to less than $10.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 11.75</SECTNO>
              <SUBJECT>Claims involving carriers and insurers.</SUBJECT>
              <P>In the event the property which is the subject of a claim was lost or damaged while in the possession of a carrier or was insured, the following procedures will apply:</P>
              <P>(a) Whenever property is damaged, lost, or destroyed while being shipped pursuant to authorized travel orders, the owner must file a written claim for reimbursement with the last commercial carrier known or believed to have handled the goods, or the carrier known to be in possession of the property when the damage or loss occurred,according to the terms of its bill of lading or contract, before submitting a claim against the Government under this subpart.</P>
              <P>(1) If more than one bill of lading or contract was issued, a separate demand should be made against the last carrier on each such document.</P>
              <P>(2) The demand should be made within the time limit provided in the policy and prior to the filing of a claim against the Government.</P>
              <P>(3) If it is apparent that the damage or loss is attributable to packing, storage, or unpacking while in the custody of the Government, no demand need be made against the carrier.</P>
              <P>(b) Whenever property which is damaged, lost, or destroyed incident to the claimant's service is insured in whole or in part, the claimant must make demand in writing against the insurer for reimbursement under terms and conditions of the insurance coverage, prior to the filing of the concurrent claim against the Government.</P>
              <P>(c) Failure to make a demand on a carrier or insurer or to make all reasonable efforts to protect and prosecute rights available against a carrier or insurer and to collect the amount recoverable from the carrier or insurer may result in reducing the amount recoverable from the Government by the maximum amount which would have been recoverable from the carrier or insurer, had the claim been timely or diligently prosecuted. However, no deduction will be made where the circumstances of the claimant's service preclude reasonable filing of such a claim or diligent prosecution, or the evidence indicates a demand was impracticable or would have been unavailing.</P>
              <P>(d) Following the submission of the claim against the carrier or insurer, the claimant may immediately submit a claim against the Government in accordance with the provisions of this subpart, without waiting until either final approval or denial of the claim is made by the carrier or insurer.</P>

              <P>(1) Upon submission of a claim to the Government, the claimant must certify in the claim that no recovery (or the amount of recovery) has been gained from a carrier or insurer, and enclose all correspondence pertinent thereto.<PRTPAGE P="136"/>
              </P>
              <P>(2) If the carrier or insurer has not taken final action on the claim against them, by the time the claimant submits a claim to the Government, the claimant will immediately notify them to address all correspondence in regard to the claim to him/her, in care of the General Counsel of FEMA.</P>
              <P>(3) The claimant shall timely advise the General Counsel in writing, of any action which is taken by the carrier or insurer on the claim. On request, the claimant also will furnish such evidence as may be required to enable the United States to enforce the claim.</P>
              <P>(e) When a claim is paid by FEMA, the claimant will assign to the United States, to the extent of any payment on the claim accepted by claimant, all rights, title, and interest in any claim against the carrier, insurer, or other party arising out of the incident on which the claim against the Government is based. After payment of the claim by the Government, the claimant will, upon receipt of any payment from a carrier or insurer, pay the proceeds to the United States to the extent of the payment received by the claimant from the United States.</P>
              <P>(f) When a claimant recovers for the loss from the carrier or insurer before the claim against the Government under this subpart is settled, the amount or recovery shall be applied to the claim as follows:</P>
              <P>(1) When the amount recovered from a carrier, insurer, or other third party is greater than or equal to the claimant's total loss as determined under this subpart, no compensation is allowable under this subpart.</P>
              <P>(2) When the amount recovered is less than such total loss, the allowable amount is determined by deducting the recovery from the amount of such total loss;</P>
              <P>(3) For the purpose of this paragraph (f) the claimant's total loss is to be determined without regard to the $25,000 maximum set forth above. However, if the resulting amount, after making this deduction, exceeds $25,000, the claimant will be allowed only $25,000.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 11.76</SECTNO>
              <SUBJECT>Claims procedures.</SUBJECT>
              <P>(a) <E T="03">Filing a claim.</E> Applicants shall file claims in writing with the GeneralCounsel, Federal Emergency Management Agency, Washington, DC 20472. Each written claim shall contain, as a minimum:</P>
              <P>(1) Name, address, and place of employment of the claimant;</P>
              <P>(2) Place and date of the damage or loss:</P>
              <P>(3) A brief statement of the facts and circumstances surrounding the damage or loss;</P>
              <P>(4) Cost, date, and place of acquisition of each price of property damaged or lost;</P>
              <P>(5) Two itemized repair estimates, or value estimates, whichever is applicable;</P>
              <P>(6) Copies of police reports, if applicable;</P>
              <P>(7) A statement from the claimant's supervisor that the loss was incident to service;</P>
              <P>(8) A statement that the property was or was not insured;</P>
              <P>(9) With respect to claims involving thefts or losses in quarters or other places where the property was reasonably kept, a statement as to what security precautions were taken to protect the property involved;</P>
              <P>(10) With respect to claims involving property being used for the benefit of the Government, a statement by the claimant's supervisor that the claimant was required to provide such property or that the claimant's providing it was in the interest of the Government; and</P>
              <P>(11) Other evidence as may be required.</P>
              <P>(b) <E T="03">Single claim.</E> A single claim shall be presented for all lost or damaged property resulting from the same incident. If this procedure causes a hardship, the claimant may present an initial claim with notice that it is a partial claim, an explanation of the circumstances causing the hardship, and an estimate of the balance of the claim and the date it will be submitted. Payment may be made on a partial claim if the adjudicating authority determines that a genuine hardship exists.</P>
              <P>(c) <E T="03">Loss in quarters.</E> Claims for property loss in quarters or other authorized places should be accompanied by a statement indicating:</P>
              <P>(1) Geographical location;<PRTPAGE P="137"/>
              </P>
              <P>(2) Whether the quarters were assigned or provided in-kind by the Government;</P>
              <P>(3) Whether the quarters are regularly occupied by the claimant;</P>
              <P>(4) Names of the authority, if any, who designated the place of storage of the property if other than quarters;</P>
              <P>(5) Measures taken to protect the property; and</P>
              <P>(6) Whether the claimant is a local inhabitant.</P>
              <P>(d) <E T="03">Loss by theft or robbery.</E> Claims for property loss by theft or robbery should be accompanied by a statement indicating:</P>
              <P>(1) Geographical location;</P>
              <P>(2) Facts and circumstances surrounding the loss, including evidence of the crime such as breaking and entering, capture of the thief or robber, or recovery of part of the stolen goods; and</P>
              <P>(3) Evidence that the claimant exercised due care in protecting the property prior to the loss, including information as to the degree of care normally exercised in the locale of the loss due to any unusual risks involved.</P>
              <P>(e) <E T="03">Transportation losses.</E> Claims for transportation losses should be accompanied by the following:</P>
              <P>(1) Copies of orders authorizing the travel, transportation, or shipment or a certificate explaining the absence of orders and stating their substance;</P>
              <P>(2) Statement in cases where property was turned over to a shipping officer, supply officer, or contract packer indicating:</P>
              <P>(i) Name (or designation) and address of the shipping officer, supply officer, or contract packer indicating;</P>
              <P>(ii) Date the property was turned over;</P>
              <P>(iii) Inventoried condition when the property was turned over;</P>
              <P>(iv) When and where the property was packed and by whom;</P>
              <P>(v) Date of shipment;</P>
              <P>(vi) Copies of all bills of lading, inventories, and other applicable shipping documents;</P>
              <P>(vii) Date and place of delivery to the claimant;</P>
              <P>(viii) Date the property was unpacked by the carrier, claimant, or Government;</P>
              <P>(ix) Statement of disinterested witnesses as to the condition of the property when received and delivered, or as to handling or storage;</P>
              <P>(x) Whether the negligence of any Government employee acting within the scope of his/her employment caused the damage or loss;</P>
              <P>(xi) Whether the last common carrier or local carrier was given a clear receipt, except for concealed damages;</P>
              <P>(xii) Total gross, tare, and new weight of shipment;</P>
              <P>(xiii) Insurance certificate or policy if losses are privately insured;</P>
              <P>(xiv) Copy of the demand on carrier or insured, or both, when required, and the reply, if any;</P>
              <P>(xv) Action taken by the claimant to locate missing baggage or household effects, including related correspondence.</P>
              <P>(f) <E T="03">Marine or aircraft disaster.</E> Claims for property losses due to marine or aircraft disaster should be accompanied by a copy of orders or other evidence to establish the claimant's right to be, or to have property on board.</P>
              <P>(g) <E T="03">Enemy action, public disaster, or public service.</E> Claims for property losses due to enemy action, public disaster, or public service should be accompanied by:</P>
              <P>(1) Copies of orders or other evidence establishing the claimant's required presence in the area involved; and</P>
              <P>(2) A detailed statement of facts and circumstances showing an applicable case enumerated in § 11.73(c)(8).</P>
              <P>(h) <E T="03">Money.</E> Claims for loss of money deposited for safekeeping, transmittal, or other authorized disposition should be accompanied by:</P>
              <P>(1) Name, grade, and address of the person or persons who received money and any others involved;</P>
              <P>(2) Name and designation of the authority who authorized such person or persons to accept personal funds and the disposition required; and</P>
              <P>(3) Receipts and written sworn statements explaining the failure to account for funds or return them to the claimant.</P>
              <P>(i) <E T="03">Motor vehicles or mobile homes in transit.</E> Claims for damage to motor vehicles or mobile homes in transit <PRTPAGE P="138"/>should be accompanied by a copy of orders or other available evidence to establish the claimant's lawful right to have the property shipped and evidence to establish damage in transit.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 11.77</SECTNO>
              <SUBJECT>Settlement of claims.</SUBJECT>
              <P>(a) The General Counsel, FEMA, is authorized to settle (consider, ascertain, adjust, determine, and dispose of, whether by full or partial allowance or disallowance) any claim under this subpart.</P>
              <P>(b) The General Counsel may formulate such procedures and make such redelegations as may be required to fulfill the objectives of this subpart.</P>
              <P>(c) The General Counsel shall conduct or request the Office of Inspector General to conduct such investigation as may be appropriate in order to determine the validity of a claim.</P>
              <P>(d) The General Counsel shall notify a claimant in writing of action taken on their claim, and if partial or full disallowance is made, the reasons therefor.</P>
              <P>(e) In the event a claim submitted against a carrier under § 11.75 has not been settled, before settlement of the claim against the Government pursuant to this subpart, the General Counsel shall notify such carrier or insurer to pay the proceeds of the claim to FEMA to the extent FEMA has paid such to claimant in settlement.</P>
              <P>(f) The settlement of a claim under this subpart, whether by full or partial allowance or disallowance, is final and conclusive.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 11.78</SECTNO>
              <SUBJECT>Computation of amount of award.</SUBJECT>
              <P>(a) The amount allowed for damage to or loss of any items of property may not exceed the cost of the item (either the price paid in cash or property, or the value at the time of acquisition if not acquired by purchase or exchange), and there will be no allowance for replacement cost or for appreciation in the value of the property. Subject to these limitations, the amount allowable is either:</P>
              <P>(1) The depreciated value, immediately prior to the loss or damage, of property lost or damaged beyond economical repair, less any salvage value; or</P>
              <P>(2) The reasonable cost or repairs, when property is economically repairable, provided that the cost of repairs does not exceed the amount allowable under paragraph (a)(1) of this section.</P>
              <P>(b) Depreciation in value is determined by considering the type of article involved, its costs, its conditions when damaged or lost, and the time elapsed between the date of acquisition and the date of damage or loss.</P>
              <P>(c) Replacement of lost or damaged property may be made in-kind whenever appropriate.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 11.79</SECTNO>
              <SUBJECT>Attorney's fees.</SUBJECT>
              <P>No more than 10 per centum of the amount paid in settlement of each individual claim submitted and settled under this subpart shall be paid or delivered to or received by any agent or attorney on account of services rendered in connection with that claim. A person violating this section shall be fined not more than $1,000.</P>
              <APPRO>(Information collection approved by Office of Management and Budget under Control No. 3067-0167)</APPRO>
            </SECTION>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 12</EAR>
          <HD SOURCE="HED">PART 12—ADVISORY COMMITTEES</HD>
          <CONTENTS>
            <SECHD>Sec.</SECHD>
            <SECTNO>12.1</SECTNO>
            <SUBJECT>Purpose and applicability.</SUBJECT>
            <SECTNO>12.2</SECTNO>
            <SUBJECT>Definitions.</SUBJECT>
            <SECTNO>12.3</SECTNO>
            <SUBJECT>Policy.</SUBJECT>
            <SECTNO>12.4</SECTNO>
            <SUBJECT>Interpretations.</SUBJECT>
            <SECTNO>12.5</SECTNO>
            <SUBJECT>Advisory committee management officer.</SUBJECT>
            <SECTNO>12.6</SECTNO>
            <SUBJECT>Establishment of advisory committees.</SUBJECT>
            <SECTNO>12.7</SECTNO>
            <SUBJECT>Charter.</SUBJECT>
            <SECTNO>12.8</SECTNO>
            <SUBJECT>Meetings.</SUBJECT>
            <SECTNO>12.9</SECTNO>
            <SUBJECT>Closed meetings.</SUBJECT>
            <SECTNO>12.10</SECTNO>
            <SUBJECT>Designated Federal officer or employee.</SUBJECT>
            <SECTNO>12.11</SECTNO>
            <SUBJECT>Public notice.</SUBJECT>
            <SECTNO>12.12</SECTNO>
            <SUBJECT>Minutes.</SUBJECT>
            <SECTNO>12.13</SECTNO>
            <SUBJECT>Transcripts of the advisory committee meetings and agency proceedings.</SUBJECT>
            <SECTNO>12.14</SECTNO>
            <SUBJECT>Annual comprehensive review.</SUBJECT>
            <SECTNO>12.15</SECTNO>
            <SUBJECT>Termination and renewal of advisory committees.</SUBJECT>
            <SECTNO>12.16</SECTNO>
            <SUBJECT>Reports about the advisory committees.</SUBJECT>
            <SECTNO>12.17</SECTNO>
            <SUBJECT>Availability of documents and information on advisory committees.</SUBJECT>
            <SECTNO>12.18</SECTNO>
            <SUBJECT>Uniform pay guidelines.</SUBJECT>
            <SECTNO>12.19</SECTNO>
            <SUBJECT>Fiscal and administrative responsibilities.</SUBJECT>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>Federal Advisory Committee Act, 5 U.S.C. app. 1; Reorganization Plan No. 3 of 1978; E.O. 12127; E.O. 12148; E.O. 12024.</P>
          </AUTH>
          <SOURCE>
            <PRTPAGE P="139"/>
            <HD SOURCE="HED">Source:</HD>
            <P>45 FR 64180, Sept. 29, 1980, unless otherwise noted.</P>
          </SOURCE>
          <SECTION>
            <SECTNO>§ 12.1</SECTNO>
            <SUBJECT>Purpose and applicability.</SUBJECT>
            <P>(a) The regulations in this part implement the Federal Advisory Committee Act, Executive Order 12024 and General Services Administration Regulation 41 CFR part 101-6. The provisions of the Federal Advisory Committee Act in this part shall apply to all advisory committees established by the Federal Emergency Management Agency (FEMA), including advisory committees created pursuant to any act of Congress relating to the United States Fire Administration, Federal Insurance Administration, or any other component of the Federal Emergency Management Agency, except to the extent that any act of Congress establishing an advisory committee reporting to the agencies specifically provides otherwise.</P>
            <P>(b) This part does not apply to inter-agency advisory committees or advisory committees established by the President unless specifically made applicable by the establishing authority.</P>
            <P>(c) This part does not apply to any local group, contractor, grantee, or other organization whose primary function is to render public service with respect to a Federal program, or any state or local committee, counsel, board, commission, or similar group established to advise or make recommendations to State or local officials or agencies.</P>
            <CITA>[45 FR 64180, Sept. 29, 1980, as amended at 48 FR 44543, Sept. 29, 1983; 50 FR 40007, Oct. 1, 1985]</CITA>
          </SECTION>
          <SECTION>
            <SECTNO>§ 12.2</SECTNO>
            <SUBJECT>Definitions.</SUBJECT>
            <P>As used in this part—</P>
            <P>
              <E T="03">Act</E> means the Federal Advisory Committee Act (86 Stat. 770).</P>
            <P>
              <E T="03">Advisory Committee</E> is used as per the meaning set forth in section 3(2) of the Act.</P>
            <P>
              <E T="03">Agency</E> means the Federal Emergency Management Agency, established by Presidential Reorganization Plan No. 3 of 1978, or any component thereof.</P>
            <P>
              <E T="03">Administrator, GSA</E> means the Administrator of General Services.</P>
            <P>
              <E T="03">Director</E> means the Director of the Federal Emergency Management Agency.</P>
            <P>
              <E T="03">FEMA</E> means the Federal Emergency Management Agency.</P>
            <P>
              <E T="03">GSA</E> means the General Services Administration.</P>
            <P>
              <E T="03">Presidential Advisory Committee</E> means an advisory committee which advises the President of the United States.</P>
            <P>
              <E T="03">Secretariat</E> means the Committee Management Secretariat of the General Services Administration.</P>
            <P>
              <E T="03">Any officer of the Federal Government</E> means any agency official or employee of the Federal government designated to perform duties with respect to an advisory committee established under this part.</P>
            <P>
              <E T="03">Nonstatutory advisory committee</E> means an advisory committee not established by statute or reorganization plan.</P>
          </SECTION>
          <SECTION>
            <SECTNO>§ 12.3</SECTNO>
            <SUBJECT>Policy.</SUBJECT>
            <P>In determining whether an advisory committee should be created, and in reviewing the functions of operating advisory committees, the Agency will:</P>
            <P>(a) Establish new advisory committees only when they are determined to be essential, keeping their number to the minimum necessary to accomplish the assigned mission of the agency or its components;</P>
            <P>(b) Provide standards and uniform procedures to govern the establishment, operation, administration, and duration of the advisory committees;</P>
            <P>(c) Terminate the advisory committees when they are no longer necessary to carry out the purposes for which they were established; and</P>
            <P>(d) Keep the Congress and the public informed with respect to the number, purpose, membership, activity, and cost of the advisory committees.</P>
          </SECTION>
          <SECTION>
            <SECTNO>§ 12.4</SECTNO>
            <SUBJECT>Interpretations.</SUBJECT>
            <P>Except as specifically authorized in writing by the Director, including internal instructions, no interpretation of the meaning of the regulations in this part by any employee or officer of the Agency, other than a written interpretation by the General Counsel, will be recognized to be binding upon the Agency.</P>
          </SECTION>
          <SECTION>
            <SECTNO>§ 12.5</SECTNO>
            <SUBJECT>Advisory committee management officer.</SUBJECT>

            <P>(a) The Director will designate as advisory committee management officer <PRTPAGE P="140"/>the Chief, Staff Planning and Evaluation, Office of Administrative Support, who shall:</P>
            <P>(1) Exercise control and supervision over the establishment, procedures, and accomplishments of the advisory committees established by the Director; and</P>
            <P>(2) Assemble and maintain the reports, records, and other papers of any advisory committee during its existence.</P>
            <P>(b) The name of the Advisory Committee Management Officer designated in accordance with this part shall be provided to the Secretariat.</P>
            <CITA>[45 FR 64180, Sept. 29, 1980, as amended at 47 FR 13149, Mar. 29, 1982; 48 FR 44543, Sept. 29, 1983; 49 FR 33879, Aug. 27, 1984]</CITA>
          </SECTION>
          <SECTION>
            <SECTNO>§ 12.6</SECTNO>
            <SUBJECT>Establishment of advisory committees.</SUBJECT>
            <P>(a) No advisory committee shall be established under this part unless such establishment is:</P>
            <P>(1) Specifically authorized by statute or the President of the United States; or</P>

            <P>(2) Determined as a matter of formal record by the Director after consultation with the Secretariat, with timely notice published in the <E T="04">Federal Register</E> as a matter of the public interest, in connection with the performance of duties imposed on the agency by law.</P>
            <P>(b) The determination required by paragraph (a)(2) of this section shall:</P>
            <P>(1) Contain a clearly defined purpose for the advisory committee;</P>
            <P>(2) Require the membership of the advisory committee to be fairly balanced in terms of the points of view represented in the functions performed by the advisory committee;</P>
            <P>(3) Contain appropriate provisions to assure that the advice and recommendations of the advisory committee will not be inappropriately influenced by the appointing authority or by any special interest, but will instead be the result of the advisory committee's independent judgment;</P>
            <P>(4) Contain provisions dealing with the date for submission of reports (if any), the duration of the advisory committee, and the publication of reports and other materials, to the extent that the agency determines the provisionsof § 12.16 of this part to be inadequate; and</P>
            <P>(5) Contain provisions which will assure that the advisory committee will have adequate staff (either supplied by the Agency or employed by it), will be provided adequate quarters, and will have funds available to meet its other necessary expenses.</P>
            <P>(c) Consultation with the Secretariat may be in the form of a letter from the Agency describing the nature and purpose of the proposed advisory committee, including an explanation of why the functions of the proposed committee could not be performed by FEMA or by an existing committee. The letter should describe the Agency's plan to attain balanced membership on the proposed committee, as prescribed in paragraph (b)(2) of this section. If the Secretariat is satisfied that the establishment of the advisory committee will be in accord with the Act, the Agency shall certify in writing that creation of the advisory committee is in the public interest.</P>
            <P>(d) Unless otherwise specifically provided by statute or Presidential directive, advisory committees shall be utilized solely for advisory functions.</P>
          </SECTION>
          <SECTION>
            <SECTNO>§ 12.7</SECTNO>
            <SUBJECT>Charter.</SUBJECT>
            <P>(a) No advisory committee established under this part shall meet or take any action until an advisory committee charter has been filed with the Agency and the standing Committee or Committees of the Senate and House of Representatives having legislative jurisdiction over the FEMA component to which the advisory committee renders its advice.</P>
            <P>(b) The charter required by paragraph (a) of this section shall contain at least the following information:</P>
            <P>(1) The committee's official designations;</P>
            <P>(2) The committee's objectives and the scope of its activities;</P>
            <P>(3) The period of time necessary for the committee to carry out its purposes;</P>
            <P>(4) The FEMA component and official to whom the committee reports;</P>

            <P>(5) The FEMA component responsible for providing the necessary support for the committee;<PRTPAGE P="141"/>
            </P>
            <P>(6) A description of the duties for which the committee is responsible, and, if such duties are not solely advisory, specification of the authority for such functions;</P>
            <P>(7) The estimated annual operating cost in dollars and man years for the committee;</P>
            <P>(8) The estimated number in frequency of committee meetings;</P>
            <P>(9) The committee's termination date, if less than 2 years from the date of committee's establishment; and</P>
            <P>(10) The date the charter is filed.</P>
            <P>(c) A copy of the charter required by paragraph (a) of this section shall also be furnished at the time of filing to the Library of Congress, Exchange and Gift Division, Federal Advisory Committee, Washington, DC 20540.</P>
            <P>(d) An amendment to the charter may be filed whenever there is a substantial change regarding matters stated in the original charter.</P>
            <P>(e) The requirements of this section shall also apply to committees utilized as advisory committees, even though not expressly established for that purpose.</P>
          </SECTION>
          <SECTION>
            <SECTNO>§ 12.8</SECTNO>
            <SUBJECT>Meetings.</SUBJECT>
            <P>(a) Advisory committees established under this part shall not hold any meetings, nor shall they render any advice, except at the call of, or with the advice and approval of, the Federal Officer or employee designated in accordance with § 12.10 of this part, who shall also approve the agenda of such meetings. Timely notice of each meeting shall be provided in accordance with § 12.11 of this part.</P>
            <P>(b) The agenda required by paragraph (a) of this section shall list the matters to be considered at the meeting. It shall also indicate when any part of the meeting will concern matters within the exceptions of the (Government) Sunshine Act, 5 U.S.C. 552b, and § 12.9 of this part.</P>
            <P>(c) Subject to the provisions of § 12.9 of this part, each advisory committee meeting shall be open to the public. Meetings which are completely or partly open to the public shall be held at reasonable times and at such a place that is reasonably accessible to the public. The size of the meeting room should be determined by such factorsas the size of the committee, the number of members of the public who could reasonably be expected to attend, the number of persons who attended similar meetings in the past, and the resource facilities available.</P>
            <P>(d) Any member of the public shall be permitted to file a written statement with the committee related to any meeting that is completely or partly open to the public. Interested persons may also be permitted by the committee chairman to speak at such meetings in accordance with the procedures established by the committee.</P>
          </SECTION>
          <SECTION>
            <SECTNO>§ 12.9</SECTNO>
            <SUBJECT>Closed meetings.</SUBJECT>
            <P>(a) The requirements of § 12.8 (c) and (d) of this part that meetings shall be open to the public and that the public shall be afforded an opportunity to participate in such meetings shall not apply to any advisory committee meeting which the President or the Director determines is concerned with matters listed in 5 U.S.C. 552b(c).</P>
            <P>(b) An advisory committee which seeks to have all or part of its meetings closed shall notify the Director before the scheduled date of the meeting. The notification shall be in writing and shall specify the reasons why any part of the meeting should be closed.</P>
            <P>(c) A request that the meeting be closed will be granted upon determination by the Director that the request is in accordance with the policies of this part. The Director's determination will be in writing and will state the specific reasons for closing all or part of the meeting. The determination will be made available to the public upon request.</P>
            <P>(d) The Director may delegate responsibility for making the determination required by paragraph (c) of this section. In any case where the determination to close the meeting is made by the Director's delegate, the determination will be reviewed by the General Counsel.</P>

            <P>(e) When a meeting is closed to the public, the advisory committee shall issue a report, at least annually, setting forth a summary of its activities in such meetings, addressing those related matters as would be informative to the public and consistent with the policy of 5 U.S.C. 552b(c) and of this <PRTPAGE P="142"/>part. Notice of the availability of such annual reports shall be published in accordance with § 12.11 of this part.</P>
          </SECTION>
          <SECTION>
            <SECTNO>§ 12.10</SECTNO>
            <SUBJECT>Designated Federal officer or employee.</SUBJECT>
            <P>(a) The Agency will designate an officer or employee of the Federal Government to chair or attend each meeting of each advisory committee established under this part.</P>
            <P>(b) No advisory committee shall conduct any meeting in the absence of the Federal employee or officer designated in accordance with paragraph (a) of this section.</P>
            <P>(c) The Federal officer or employee designated in accordance with paragraph (a) of this section is authorized, whenever he/she determines it to be in the public interest, to adjourn any committee meeting he/she is designated to chair or attend.</P>
          </SECTION>
          <SECTION>
            <SECTNO>§ 12.11</SECTNO>
            <SUBJECT>Public notice.</SUBJECT>

            <P>(a) The Agency's determination procedure described by § 12.6 of this part for the creation of the advisory committee, and a description of the nature and purpose of the committee, should be published in the <E T="04">Federal Register</E> at least 15 days prior to the filing of the committee's charter, unless the Secretariat, for good cause, authorizes a shorter period of time between publication of the notice and the filing of the charter.</P>

            <P>(b) Except when the Administrator GSA determines contrarily for reasons of national security, timely notice of each advisory committee meeting, whether open or closed to the public, shall be published in the <E T="04">Federal Register</E> at least 15 days before the meeting date. Such notice should state the name of the advisory committee, the time, place and purpose of the meeting, and should include, where appropriate, a summary of the meeting agenda. Notice ordinarily should state that the meeting is open to the public or explain why the meeting or any portion of the meeting is to be closed. Notices shorter than the time prescribed by this paragraph may be provided in emergency situations, and the reasons for such emergency exceptions should be made part of the meeting notice. <E T="03">Due to the emergency nature of FEMA'smany programs, it is contemplated that advisory committees may have to be established or meetings called on fairly short notice; however, every effort should be made to comply with the notice requirement, except in cases where delay may result in harm to individuals or damage to property.</E> A request for a determination that notice of a meeting should not be published for reasons of national security shall be submitted to the Administrator GSA with a statement of reasons supporting such request at least 30 days before the meeting is scheduled. Where, however, there is a significant likelihood of severe damage to property or injury to individuals, the notice period may be reduced as necessary to minimize such damage or injury.</P>
            <P>(c) In addition to the notice required by paragraph (b) of this section, other forms of notice such as public releases and notices by mail should be used to inform the public of advisory committee meetings.</P>
            <P>(d) The Committee Management Officer, in coordination with the Office of Public Affairs, should, where practical, maintain lists of people and organizations interested in advisory committees and notify them of meetings by mail.</P>

            <P>(e) Notice of the availability of the annual reports required by § 12.9(e) of this part will be published in the <E T="04">Federal Register</E> no later than 60 days after their completion. Notice will include instructions which will allow the public access to the reports.</P>
          </SECTION>
          <SECTION>
            <SECTNO>§ 12.12</SECTNO>
            <SUBJECT>Minutes.</SUBJECT>

            <P>(a) Detailed minutes of each advisory committee meeting shall be kept and shall contain a record of the persons present, a complete summary of matters discussed and conclusions reached, and copies of all reports received, issued, or approved by the advisory committee. The record of persons present shall include the time and place of the meeting, a list of advisory committee members and staff and agency employees present at the meeting, a list of members of the public who presented oral or written statements, and an estimated number of members of the public who attended the meeting. The minutes shall describe the extent to which the meeting was open to <PRTPAGE P="143"/>the public and the extent of public participation. If it is impracticable to attach to the minutes of the meeting any report received, issued, or approved by the advisory committee, then the minutes will describe the report in sufficient detail to enable any person requesting the report to readily identify it.</P>

            <P>(b) The accuracy of all minutes shall be certified by the chairperson of the advisory committee concerned, except in the case of a subcommittee or subgroup of the advisory committee, in which case the accuracy of the minutes shall be certified by the chairperson of the subcommittee or subgroup concerned <E T="03">and co-signed by the chairperson of the advisory committee.</E>
            </P>
          </SECTION>
          <SECTION>
            <SECTNO>§ 12.13</SECTNO>
            <SUBJECT>Transcripts of the advisory committee meetings and agency proceedings.</SUBJECT>
            <P>Copies of transcripts of advisory committee meetings which have been prepared will be made available to any person at the actual cost of duplication, as prescribed in § 12.17 of this part.</P>
          </SECTION>
          <SECTION>
            <SECTNO>§ 12.14</SECTNO>
            <SUBJECT>Annual comprehensive review.</SUBJECT>
            <P>(a) The Agency will conduct an annual comprehensive review of the activities and responsibilities of each advisory committee to determine:</P>
            <P>(1) Whether such committee is carrying out its purpose;</P>
            <P>(2) Whether, consistent with the provisions of applicable statutes, the responsibilities assigned to it should be revised;</P>
            <P>(3) Whether it should be merged with any other advisory committee or committees; or</P>
            <P>(4) Whether it should be abolished.</P>
            <P>(b) Pertinent factors to be considered in the comprehensive review required by paragraph (a) of this section includes the following:</P>
            <P>(1) The number of times the committee has met in the past year;</P>
            <P>(2) The number of reports or recommendations submitted by the committee;</P>
            <P>(3) An evaluation of the substance of the reports or recommendations submitted by the committee, regarding the Agency's programs or operations;</P>
            <P>(4) An evaluation of the utilization by the Agency of the committee's policy formation recommendations in: program planning, decision making, more effective achievement of program objectives, and more economical accomplishment of programs in general, with emphasis in such evaluation on the preceding 12 month period of the committee's work;</P>
            <P>(5) Whether information or recommendations could be obtained from sources within the Agency or from other advisory committees already in existence;</P>
            <P>(6) The degree of duplication of effort by the committee as compared with that of other parts of the Agency or other advisory committees; and</P>
            <P>(7) The estimated annual cost of the committee.</P>
            <P>(c) The annual review required by this section shall be conducted on a calendar year basis, and results of the review shall be included in the annual report to the Secretariat required by § 12.16(b) of this part. The report shall contain a justification of each advisory committee which the Agency determines should be continued, making reference, as appropriate, to the factors specified in paragraph (b) of this section.</P>
            <P>(d) The review will examine all advisory committees, and committees found to be no longer needed shall be terminated. Advisory committees established by act of Congress or the President of the United States will be reviewed, and if appropriate, their termination will be recommended.</P>
          </SECTION>
          <SECTION>
            <SECTNO>§ 12.15</SECTNO>
            <SUBJECT>Termination and renewal of advisory committees.</SUBJECT>
            <P>(a) Each advisory committee shall terminate not later than the expiration of the 2 year period beginning on the date of its establishment, unless:</P>
            <P>(1) In the case of an advisory committee established by the President or an officer of the Federal Government, such advisory committee is renewed by the President or such officer by appropriate action prior to the end of such period; or</P>

            <P>(2) In the case of an advisory committee established by an Act of Congress, its duration is otherwise provided by law.<PRTPAGE P="144"/>
            </P>
            <P>(b) Any advisory committee which is renewed by the President or any officer of the Federal Government may be continued only for successive 2-year periods by appropriate action taken by the President or such officer prior to the date on which the advisory committee would otherwise terminate.</P>
            <P>(c) Before it renews a non-statutory advisory committee in accordance with paragraph (a) or (b) of this section, the Agency will inform the Secretariat by letter, not more than 60 days nor less than 30 days before the committee expires, of the following:</P>
            <P>(1) Its determination that a renewal is necessary and is in the public interest;</P>
            <P>(2) The reasons for its determination;</P>
            <P>(3) The Agency's plan to attain balanced membership on the committee;</P>
            <P>(4) An explanation of why the committee's functions cannot be performed by the Agency or by an existing advisory committee.</P>

            <P>(d) After concurrence by the Secretariat, the Agency will certify in writing that the renewal of the advisory committee is in the public interest, and will publish a notice of the renewal in the <E T="04">Federal Register,</E> and will file a new charter in accordance with § 12.7 of this part.</P>
            <P>(e) Any advisory committee established by an Act of Congress shall file a charter in accordance with § 12.7 of this part upon the expiration of each successive 2-year period following the date of enactment of the Act establishing such advisory committee.</P>
            <P>(f) No advisory committee required under this section to file a charter shall take any action, other than preparation and filing of such charter, between the date the new charter is required and the date on which such charter is actually filed.</P>
          </SECTION>
          <SECTION>
            <SECTNO>§ 12.16</SECTNO>
            <SUBJECT>Reports about the advisory committees.</SUBJECT>
            <P>(a) The Agency will furnish a report of the activities of the FEMA advisory committees annually to the Administrator, General Services Administration, in accordance with the Federal Property Management Regulations.</P>
            <P>(b) The Agency will furnish a report of the activities of FEMA advisorycommittees annually to the Secretariat.</P>
            <P>(c) The Agency will inform the Secretariat, by letter, of the termination of, or other significant changes with respect to, its advisory committees no later than 10 working days following the end of the month in which the committee is changed. If no changes are made during any given month the report of the Secretariat is not required.</P>
            <CITA>[45 FR 64180, Sept. 29, 1980, as amended at 48 FR 44543, Sept. 29, 1983]</CITA>
          </SECTION>
          <SECTION>
            <SECTNO>§ 12.17</SECTNO>
            <SUBJECT>Availability of documents and information on advisory committees.</SUBJECT>
            <P>(a) Subject to the provisions of §§ 12.12 and 12.13 of this part, the records, reports, transcripts, minutes, appendices, working papers, drafts, studies, agenda, or other documents which were made available to or prepared for by each advisory committee shall be available for public inspection and copying at a single location in the FEMA Headquarters, Washington, DC, in accordance with the regulations in part 5 of this chapter.</P>
            <P>(b) The Agency will maintain systematic information on the nature, functions, and operations of each of its advisory committees. A complete set of the charters of the Agency's advisory committees and copies of the annual reports required by § 12.16 will be maintained for public inspection in the FEMA Headquarters.</P>
            <CITA>[45 FR 64180, Sept. 29, 1980, as amended at 47 FR 13150, Mar. 29, 1982]</CITA>
          </SECTION>
          <SECTION>
            <SECTNO>§ 12.18</SECTNO>
            <SUBJECT>Uniform pay guidelines.</SUBJECT>
            <P>(a) <E T="03">Members.</E> Subject to the provisions of this section, the pay of any member of an advisory committee shall be fixed at the daily equivalent rate of the FEMA general salary schedule unless the member is appointed as a consultant, to be compensated as provided in paragraph (c) of this section. In determining an appropriate rate of pay for the members of an advisory committee, consideration shall be given to the significance, scope and technical complexity of the matters with which the advisory committee is concerned, and the qualifications required of the members of the advisory committee. The pay of the members of an advisory <PRTPAGE P="145"/>committee shall not be fixed at a rate higher than the daily equivalent of the maximum rate for GS-15 unless the Director has determined that, under the factors set forth in this paragraph, a higher rate of pay is justified and necessary. Such a determination will be reviewed annually by the Director.</P>
            <P>(b) <E T="03">Advisory committee staff.</E> The pay of each member of the staff of an advisory committee shall be fixed at a rate of the general salary schedule in which the staff member's position would be appropriately compensated for in the FEMA evaluation system applicable to the position. Pay of the member of the staff of an advisory committee shall not be fixed at a rate higher than the daily equivalent of the maximum rate for a GS-15 unless the Director or his designee has determined that, under its evaluation system, the staff member's position would appropriately be placed in the General Salary Schedule at a grade higher than GS-15. Such a determination will be reviewed by the Director annually.</P>
            <P>(c) <E T="03">Consultants.</E> The rate of pay of a consultant to an advisory committee shall not exceed the maximum rate of pay which FEMA may pay experts and consultants under 5 U.S.C. 3109. Consideration shall be given to the qualifications required of the consultant and the significance, scope, and technical complexity of the work in fixing the rate of pay for the consultants.</P>
            <P>(d) <E T="03">Voluntary services.</E> The provisions of this section shall not prevent FEMA from accepting the voluntary services of a member of an advisory committee, or a member of the staff of an advisory committee, provided that FEMA has the authority to accept such services without compensation.</P>
            <P>(e) <E T="03">Reimbursable travel expenses.</E> The members of an advisory committee and the staff thereof, while engaged in the performance of their duties away from their home or regular places of business, may be allowed travel expenses, including per diem and in lieu of subsistences, as authorized by 5 U.S.C. 5703 for persons employed intermittently in the government service.</P>
          </SECTION>
          <SECTION>
            <SECTNO>§ 12.19</SECTNO>
            <SUBJECT>Fiscal and administrative responsibilities.</SUBJECT>
            <P>(a) The Comptroller, FEMA, shall keep such records as will fully disclose the disposition of any funds which may be at the disposal of any FEMA advisory committee.</P>
            <P>(b) The FEMA Advisory Committee management officer or designee shall keep such records as are necessary to fully disclose the nature and extent of the activities of the FEMA advisory committees.</P>
            <P>(c) Support services shall be provided by FEMA for each advisory committee established by or reporting to it, unless the establishing authority provides otherwise. Where such advisory committee reports to more than one agency, only one agency or component thereof shall be responsible for support services at any one time, and the establishing authority shall designate the agency responsible for providing such services.</P>
            <CITA>[45 FR 64180, Sept. 29, 1980, as amended at 48 FR 44543, Sept. 29, 1983]</CITA>
          </SECTION>
        </PART>
        <PART>
          <EAR>Pt. 13</EAR>
          <HD SOURCE="HED">PART 13—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>13.1</SECTNO>
              <SUBJECT>Purpose and scope of this part.</SUBJECT>
              <SECTNO>13.2</SECTNO>
              <SUBJECT>Scope of subpart.</SUBJECT>
              <SECTNO>13.3</SECTNO>
              <SUBJECT>Definitions.</SUBJECT>
              <SECTNO>13.4</SECTNO>
              <SUBJECT>Applicability.</SUBJECT>
              <SECTNO>13.5</SECTNO>
              <SUBJECT>Effect on other issuances.</SUBJECT>
              <SECTNO>13.6</SECTNO>
              <SUBJECT>Additions and exceptions.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart B—Pre-Award Requirements</HD>
              <SECTNO>13.10</SECTNO>
              <SUBJECT>Forms for applying for grants.</SUBJECT>
              <SECTNO>13.11</SECTNO>
              <SUBJECT>State plans.</SUBJECT>
              <SECTNO>13.12</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>13.20</SECTNO>
                <SUBJECT>Standards for financial management systems.</SUBJECT>
                <SECTNO>13.21</SECTNO>
                <SUBJECT>Payment.</SUBJECT>
                <SECTNO>13.22</SECTNO>
                <SUBJECT>Allowable costs.</SUBJECT>
                <SECTNO>13.23</SECTNO>
                <SUBJECT>Period of availability of funds.</SUBJECT>
                <SECTNO>13.24</SECTNO>
                <SUBJECT>Matching or cost sharing.<PRTPAGE P="146"/>
                </SUBJECT>
                <SECTNO>13.25</SECTNO>
                <SUBJECT>Program income.</SUBJECT>
                <SECTNO>13.26</SECTNO>
                <SUBJECT>Non-Federal audit.</SUBJECT>
              </SUBJGRP>
              <SUBJGRP>
                <HD SOURCE="HED">Changes, Property, and Subawards</HD>
                <SECTNO>13.30</SECTNO>
                <SUBJECT>Changes.</SUBJECT>
                <SECTNO>13.31</SECTNO>
                <SUBJECT>Real property.</SUBJECT>
                <SECTNO>13.32</SECTNO>
                <SUBJECT>Equipment.</SUBJECT>
                <SECTNO>13.33</SECTNO>
                <SUBJECT>Supplies.</SUBJECT>
                <SECTNO>13.34</SECTNO>
                <SUBJECT>Copyrights.</SUBJECT>
                <SECTNO>13.35</SECTNO>
                <SUBJECT>Subawards to debarred and suspended parties.</SUBJECT>
                <SECTNO>13.36</SECTNO>
                <SUBJECT>Procurement.</SUBJECT>
                <SECTNO>13.37</SECTNO>
                <SUBJECT>Subgrants.</SUBJECT>
              </SUBJGRP>
              <SUBJGRP>
                <HD SOURCE="HED">Reports, Records Retention, and Enforcement</HD>
                <SECTNO>13.40</SECTNO>
                <SUBJECT>Monitoring and reporting program performance.</SUBJECT>
                <SECTNO>13.41</SECTNO>
                <SUBJECT>Financial reporting.</SUBJECT>
                <SECTNO>13.42</SECTNO>
                <SUBJECT>Retention and access requirements for records.</SUBJECT>
                <SECTNO>13.43</SECTNO>
                <SUBJECT>Enforcement.</SUBJECT>
                <SECTNO>13.44</SECTNO>
                <SUBJECT>Termination for convenience.</SUBJECT>
              </SUBJGRP>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart D—After-the-Grant Requirements</HD>
              <SECTNO>13.50</SECTNO>
              <SUBJECT>Closeout.</SUBJECT>
              <SECTNO>13.51</SECTNO>
              <SUBJECT>Later disallowances and adjustments.</SUBJECT>
              <SECTNO>13.52</SECTNO>
              <SUBJECT>Collection of amounts due.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <RESERVED>Subpart E—Entitlement [Reserved]</RESERVED>
            </SUBPART>
          </CONTENTS>
          <P>
            
          </P>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>Reorganization Plan No. 3 of 1978; 43 FR 41943, 3 CFR, 1978 Comp., p. 329; E.O. 12148, 44 FR 43239, 3 CFR, 1979 Comp., p. 412.</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>53 FR 8078, 8087, Mar. 11, 1988, unless otherwise noted.</P>
          </SOURCE>
          <EDNOTE>
            <HD SOURCE="HED">Editorial Note:</HD>
            <P>For additional information, see related documents published at 49 FR 24958, June 18, 1984; 52 FR 20178, May 29, 1987; and 53 FR 8028, Mar. 11, 1988.</P>
          </EDNOTE>
          <SUBPART>
            <HD SOURCE="HED">Subpart A—General</HD>
            <SECTION>
              <SECTNO>§ 13.1</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>§ 13.2</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>
              <SECTNO>§ 13.3</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 duringa 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, subgrantees, subcontractors, and other payees; and</P>
              <P>(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 <PRTPAGE P="147"/>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 <E T="03">grant</E> and <E T="03">subgrant</E> in this section and except where qualified by <E T="03">Federal</E>) 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 formof 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 <PRTPAGE P="148"/>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 <E T="03">grant</E> 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 <E T="03">equipment</E> 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 actionby 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>
              <PRTPAGE P="149"/>
              <SECTNO>§ 13.4</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 section 13.6, 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:</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 § 13.4(a) (3) through (8) are subject to subpart E.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 13.5</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 § 13.6.</P>
            </SECTION>
            <SECTION>
              <PRTPAGE P="150"/>
              <SECTNO>§ 13.6</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>(c) Exceptions on a case-by-case basis and for subgrantees may be authorized by the affected Federal agencies.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart B—Pre-Award Requirements</HD>
            <SECTION>
              <SECTNO>§ 13.10</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>(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 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 PaperworkReduction 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>
            </SECTION>
            <SECTION>
              <SECTNO>§ 13.11</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>
              <PRTPAGE P="151"/>
              <SECTNO>§ 13.12</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:</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>§ 13.20</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 <PRTPAGE P="152"/>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>
              </SECTION>
              <SECTION>
                <SECTNO>§ 13.21</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 accordancewith 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) <PRTPAGE P="153"/>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 § 13.43(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 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 <E T="03">et seq.)</E> 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. Thegrantee or subgrantee may keep interest amounts up to $100 per year for administrative expenses.</P>
              </SECTION>
              <SECTION>
                <SECTNO>§ 13.22</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>OBM 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>
              </SECTION>
              <SECTION>
                <SECTNO>§ 13.23</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.<PRTPAGE P="154"/>
                </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 (SF-269). The Federal agency may extend this deadline at the request of the grantee.</P>
              </SECTION>
              <SECTION>
                <SECTNO>§ 13.24</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 § 13.25, shall not count towards satisfying a cost sharing or matching requirement unless they are expressly permitted in the terms of the assistance agreement. (This use of general program income is described in § 13.25(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:<PRTPAGE P="155"/>
                </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.</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>(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>(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 ofdonation 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 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 § 13.22, in the same way as depreciation or use allowances for purchased equipment and buildings. The amount of depreciation or use allowances for donated equipment and buildings is based on the property's market value at the time it was donated.</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 <PRTPAGE P="156"/>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>
              </SECTION>
              <SECTION>
                <SECTNO>§ 13.25</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. <E T="03">During the grant period</E> 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 agreementor Federal agency regulations as program income. (See § 13.34.)</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 §§ 13.31 and 13.32.</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 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>(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) <PRTPAGE P="157"/>of this section), unless the terms of the agreement or the Federal agency regulations provide otherwise.</P>
              </SECTION>
              <SECTION>
                <SECTNO>§ 13.26</SECTNO>
                <SUBJECT>Non-Federal audit.</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 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, § 13.36 shall be followed.</P>
                <CITA>[53 FR 8079, 887, Mar. 11, 1988, as amended at 62 FR 45939, 45945, Aug. 29, 1997]</CITA>
              </SECTION>
            </SUBJGRP>
            <SUBJGRP>
              <HD SOURCE="HED">Changes, Property, and Subawards</HD>
              <SECTION>
                <SECTNO>§ 13.30</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 § 13.22) contain requirements for prior approval of certain types of costs. Except where waived, those requirements apply to all grants and subgrants even if paragraphs (c) through (f) of this section do not.</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).<PRTPAGE P="158"/>
                </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 § 13.36 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 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 § 13.22) 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 andshall 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>§ 13.31</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 <PRTPAGE P="159"/>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>
              </SECTION>
              <SECTION>
                <SECTNO>§ 13.32</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 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 § 13.25(a) to earn program income, the grantee or subgrantee must not use equipment acquired with grantfunds 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 <PRTPAGE P="160"/>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:</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 § 13.32(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>§ 13.33</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>§ 13.34</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>§ 13.35</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>§ 13.36</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 <PRTPAGE P="161"/>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 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 economicalpurchase. 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.<PRTPAGE P="162"/>
                </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 of section 13.36. 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 describingthe 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.<PRTPAGE P="163"/>
                </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 § 13.36(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</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 <PRTPAGE P="164"/>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.</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.<PRTPAGE P="165"/>
                </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 § 13.22). 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 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 theawarding 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 <PRTPAGE P="166"/>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)</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>
                <CITA>[53 FR 8078, 8087, Mar. 11, 1988, as amended at 60 FR 19639, 19645, Apr. 19, 1995]</CITA>
              </SECTION>
              <SECTION>
                <SECTNO>§ 13.37</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 <PRTPAGE P="167"/>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 § 13.42 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 13.10;</P>
                <P>(2) Section 13.11;</P>
                <P>(3) The letter-of-credit procedures specified in Treasury Regulations at 31 CFR part 205, cited in § 13.21; and</P>
                <P>(4) Section 13.50.</P>
              </SECTION>
            </SUBJGRP>
            <SUBJGRP>
              <HD SOURCE="HED">Reports, Records Retention, and Enforcement</HD>
              <SECTION>
                <SECTNO>§ 13.40</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 mustcover 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 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.<PRTPAGE P="168"/>
                </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>(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>
              </SECTION>
              <SECTION>
                <SECTNO>§ 13.41</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 extend required under the Paperwork Reduction Act of 1980 for use in connection with forms specified in paragraphs (b) through (e) of this section. Federal agencies may issue substantive supplementary instructions only with the approval of OMB. Federal agencies may shade out or instruct the grantee to disregard any line item that the Federal agency finds unnecessary for its decisionmaking purposes.</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 paragraph (e)(2)(iii) of this section.</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 <PRTPAGE P="169"/>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.)</P>
                <P>(3) The frequency for submitting payment requests is treated in paragraph (b)(3) of this section.</P>
                <P>(e) <E T="03">Outlay report and request for reimbursement for construction programs.</E> (1) Grants that support construction activities paid by reimbursement method.</P>
                <P>(i) Requests for reimbursement under construction grants will be submitted on Standard Form 271, Outlay Report and Request for Reimbursement for Construction Programs. Federal agencies may, however, prescribe the Request for Advance or Reimbursement form, specified in paragraph (d) of this section, instead of this form.</P>
                <P>(ii) The frequency for submitting reimbursement requests is treated in paragraph (b)(3) of this section.</P>
                <P>(2) Grants that support construction activities paid by letter of credit, electronic funds transfer or Treasury check advance.</P>

                <P>(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. <PRTPAGE P="170"/>However, frequency and due date shall be governed by paragraphs (b) (3) and (4) of this section.</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 paragraph (d) of this section.</P>
                <P>(iii) The Federal agency may substitute the Financial Status Report specified in paragraph (b) of this section for the Outlay Report and Request for Reimbursement for Construction Programs.</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 paragraph (b)(2) of this section.</P>
              </SECTION>
              <SECTION>
                <SECTNO>§ 13.42</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 § 13.36(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 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, <PRTPAGE P="171"/>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 end 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 rights of access in this section must not be limited to the required retention period but shall last as long as the records are retained.</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>§ 13.43</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.</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 § 13.35).</P>
              </SECTION>
              <SECTION>
                <SECTNO>§ 13.44</SECTNO>
                <SUBJECT>Termination for convenience.</SUBJECT>
                <P>Except as provided in § 13.43 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 <PRTPAGE P="172"/>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 § 13.43 or paragraph (a) of this section.</P>
              </SECTION>
            </SUBJGRP>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart D—After-The-Grant Requirements</HD>
            <SECTION>
              <SECTNO>§ 13.50</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 § 13.32(f), a grantee must submit an inventory of all federally owned property (as distinct from property acquired with grant funds) for which it is accountable and request disposition instructions from the Federal agency of property no longer needed.</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) cashadvanced that is not authorized to be retained for use on other grants.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 13.51</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;</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 § 13.42;</P>
              <P>(d) Property management requirements in §§ 13.31 and 13.32; and</P>
              <P>(e) Audit requirements in § 13.26.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 13.52</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 Chapter 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—Entitlement [Reserved]</RESERVED>
          </SUBPART>
        </PART>
        <PART>
          <PRTPAGE P="173"/>
          <EAR>Pt. 14</EAR>
          <HD SOURCE="HED">PART 14—ADMINISTRATION OF GRANTS: AUDITS OF STATE AND LOCAL GOVERNMENTS</HD>
          <CONTENTS>
            <SECHD>Sec.</SECHD>
            <SECTNO>14.1</SECTNO>
            <SUBJECT>Scope of part.</SUBJECT>
            <SECTNO>14.2</SECTNO>
            <SUBJECT>Non-Federal audits.</SUBJECT>
            <APP>Appendix A to Part 14—OMB Circular A-128, “Audits of State and Local Governments”</APP>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>Reorganization Plan No. 3 of 1978; E.O. 12127, E.O. 12148, 31 U.S.C. 7505.</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>51 FR 24347, July 3, 1986, unless otherwise noted.</P>
          </SOURCE>
          <SECTION>
            <SECTNO>§ 14.1</SECTNO>
            <SUBJECT>Scope of part.</SUBJECT>
            <P>(a) This part contains standards for non-Federal audits of recipients of financial assistance from the Federal Emergency Management Agency (herein called recipients). This includes, without limitation, assistance under the Disaster Relief Act of 1974 as amended, and the Federal Civil Defense Act of 1950, as amended.</P>
            <P>(b) FEMA may not impose on recipients additional requirements concerning non-Federal audits. However, it may provide recipients with suggestions and assistance on this subject.</P>
          </SECTION>
          <SECTION>
            <SECTNO>§ 14.2</SECTNO>
            <SUBJECT>Non-Federal audits.</SUBJECT>
            <P>(a) <E T="03">Governmental recipients.</E> Recipients that are governments shall comply with OMB Circular A-128 including any amendments published in the <E T="04">Federal Register</E> by OMB. The Circular is codified verbatim as Appendix A to this part.</P>
            <P>(b) <E T="03">Grant or contract audits.</E> Recipients of $25,000 or more, but less than $100,000 in Federal financial assistance that choose not to have an organization wide single audit must conduct individual grant or contract audits on all FEMA awards over $25,000.</P>
            <P>(c) <E T="03">Submission of audit reports.</E> All copies of audit reports that a recipient is required under OMB Circular A-128 to submit to FEMA shall be addressed to the FEMA District Inspector General responsible for the FEMA Region in which the recipient is located. The FEMA Office of Inspector General will distribute copies as appropriate within the Agency. Recipients therefore are not required to send their audit reports to any FEMA officials other than the responsible District Inspector General.</P>
          </SECTION>
          <APPENDIX>
            <EAR>Pt. 14, App. A</EAR>
            <HD SOURCE="HED">Appendix A to Part 14—OMB Circular A-128, “Audits of State and Local Governments”</HD>
            <HD SOURCE="HD1">EXECUTIVE OFFICE OF THE PRESIDENT</HD>
            <HD SOURCE="HD2">Office of Management and Budget</HD>
            <HD SOURCE="HD3">CIRCULAR NO. A-128</HD>
            <HD SOURCE="HD3">April 12, 1985</HD>
            <FP SOURCE="FP-2">To the Heads of Executive Departments and Establishments.</FP>
            <FP SOURCE="FP-2">Subject: Audits of State and Local Governments.</FP>
            
            <P>1. <E T="03">Purpose.</E> This Circular is issued pursuant to the Single Audit Act of 1984, Public Law 98-502. It establishes audit requirements for State and local governments that receive Federal aid, and defines Federal responsibilities for implementing and monitoring those requirements.</P>
            <P>2. <E T="03">Supersession.</E> The Circular supersedes Attachment P, “Audit Requirements,” of Circular A-102, “Uniform requirements for grants to State and local governments.”</P>
            <P>3. <E T="03">Background.</E> The Single Audit Act builds upon earlier efforts to improve audits of Federal aid programs. The Act requires State or local governments that receive $100,000 or more a year in Federal funds to have an audit made for that year. Section 7505 of the Act requires the Director of the Office of Management and Budget to prescribe policies, procedures and guidelines to implement the Act. It specifies that the Director shall designate “cognizant” Federal agencies, determine criteria for making appropriate charges to Federal programs for the cost of audits, and provide procedures to assure that small firms or firms owned and controlled by disadvantaged individuals have the opportunity to participate in contracts for single audits.</P>
            <P>4. <E T="03">Policy.</E> The Single Audit Act requires the following:</P>
            <P>a. State or local governments that receive $100,000 or more a year in Federal financial assistance shall have an audit made in accordance with this Circular.</P>
            <P>b. State or local governments that receive between $25,000 and $100,000 a year shall have an audit made in accordance with this Circular, or in accordance with Federal laws and regulations governing the programs they participate in.</P>

            <P>c. State or local governments that receive less than $25,000 a year shall be exempt from compliance with the Act and other Federal audit requirements. These State and local governments shall be governed by audit requirements prescribed by State or local law or regulation.<PRTPAGE P="174"/>
            </P>
            <P>d. Nothing in this paragraph exempts State or local governments from maintaining records of Federal financial assistance or from providing access to such records to Federal agencies, as provided for in Federal law or in Circular A-102, “Uniform requirements for grants to State or local governments.”</P>
            <P>5. <E T="03">Definitions.</E> For the purposes of this Circular the following definitions from the Single Audit Act apply:</P>
            <P>a. <E T="03">Cognizant agency</E> means the Federal agency assigned by the Office of Management and Budget to carry out the responsibilities described in paragraph 11 of this Circular.</P>
            <P>b. <E T="03">Federal financial assistance</E> means assistance provided by a Federal agency in the form of grants, contracts, cooperative agreements, loans, loan guarantees, property, interest subsidies, insurance, or direct appropriations, but does not include direct Federal cash assistance to individuals. It includes awards received directly from Federal agencies, or indirectly through other units of State and local governments.</P>
            <P>c. <E T="03">Federal agency</E> has the same meaning as the term <E T="03">agency</E> in section 551(1) of title 5, United States Code.</P>
            <P>d. <E T="03">Generally accepted accounting principles</E> has the meaning specified in the generally accepted government auditing standards.</P>
            <P>e. <E T="03">Generally accepted government auditing standards</E> means the <E T="03">Standards For Audit of Government Organizations, Programs, Activities, and Functions,</E> developed by the Comptroller General, dated Febuary 27, 1981.</P>
            <P>f. <E T="03">Independent auditor</E> means:</P>
            <P>(1) A State or local government auditor who meets the independence standards specified in generally accepted government auditing standards; or</P>
            <P>(2) A public accountant who meets such independence standards.</P>
            <P>g. <E T="03">Internal controls</E> means the plan of organization and methods and procedures adopted by management to ensure that:</P>
            <P>(1) Resource use is consistent with laws, regulations, and policies;</P>
            <P>(2) Resources are safeguarded against waste, loss, and misuse; and</P>
            <P>(3) Reliable data are obtained, maintained, and fairly disclosed in reports.</P>
            <P>h. <E T="03">Indian tribe</E> means any Indian tribe, band, nations, or other organized group or community, including any Alaskan Native village or regional or village corporations (as defined in, or established under, the Alaskan Native Claims Settlement Act) that is recognized by the United States as eligible for the special programs and services provided by the United States to Indians because of their status as Indians.</P>
            <P>i. <E T="03">Local government</E> means any unit of local government within a State, including a county, a borough, municipality, city, town, township, parish, local public authority, special district, school district, intrastate district, council of governments, and any other instrumentality of local government.</P>
            <P>j. <E T="03">Major Federal Assistance Program,</E> as defined by Public Law 98-502, is described in the Attachment to this Circular.</P>
            <P>k. <E T="03">Public accountants</E> means those individuals who meet the qualification standards included in generally accepted government auditing standards for personnel performing government audits.</P>
            <P>l. <E T="03">State</E> means any State of the United States, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, American Samoa, the Commonwealth of the Northern Mariana Islands,and the Trust Territory of the Pacific Islands, any instrumentality thereof, and any multi-State, regional, or interstate entity that has governmental functions and any Indian tribe.</P>
            <P>m. <E T="03">Subrecipient</E> means any person or government department, agency, or establishment that receives Federal financial assistance to carry out a program through a State or local government, but does not include an individual that is a beneficiary of such a program. A subrecipient may also be a direct recipient of Federal financial assistance.</P>
            <P>6. <E T="03">Scope of audit.</E> The Single Audit Act provides that:</P>
            <P>a. The audit shall be made by an independent auditor in accordance with generally accepted government auditing standards covering financial and compliance audits.</P>
            <P>b. The audit shall cover the entire operations of a State or local government or, at the option of that government, it may cover departments, agencies or establishments that received, expended, or otherwise administered Federal financial assistance during the year. However, if a State or local government receives $25,000 or more in General Revenue Sharing Funds in a fiscal year, it shall have an audit of its entire operations. A series of audits of individual departments, agencies, and establishments for the same fiscal year may be considered a single audit.</P>
            <P>c. Public hospitals and public colleges and universities may be excluded from State and local audits and the requirements of this Circular. However, if such entities are excluded, audits of these entities shall be made in accordance with statutory requirements and the provisions of Circular A-110, “Uniform requirements for grants to universities, hospitals, and other nonprofit organizations.”</P>
            <P>d. The auditor shall determine whether:</P>

            <P>(1) The financial statements of the government, department, agency or establishment present fairly its financial position and the results of its financial operations in accordance with generally accepted accounting principles;<PRTPAGE P="175"/>
            </P>
            <P>(2) The organization has internal accounting and other control systems to provide reasonable assurance that it is managing Federal financial assistance programs in compliance with applicable laws and regulations; and</P>
            <P>(3) The organization has complied with laws and regulations that may have material effect on its financial statements and on each major Federal assistance program.</P>
            <P>7. <E T="03">Frequency of audit.</E> Audits shall be made annually unless the State or local government has, by January 1, 1987, a constitutional or statutory requirement for less frequent audits. For those governments, the cognizant agency shall permit biennial audits, covering both years, if the government so requests. It shall also honor requests for biennial audits by governments that have an administrative policy calling for audits less frequent than annual, but only for fiscal years beginning before January 1, 1987.</P>
            <P>8. <E T="03">Internal control and compliance reviews.</E> The Single Audit Act requires that the independent auditor determine and report on whether the organization has internal control systems to provide reasonable assurance that it is managing Federal assistance programs in compliance with applicable laws and regulations.</P>
            <P>a. <E T="03">Internal control review.</E> In order to provide this assurance the auditor must make a study and evaluation of internal control systems used in administering Federal assistance programs. The study and evaluation must be made whether or not the auditor intends to place reliance on such systems. As part of this review, the auditor shall:</P>
            <P>(1) Test whether these internal control systems are functioning in accordance with prescribed procedures.</P>
            <P>(2) Examine the recipient's system for monitoring subrecipients and obtaining and acting on subrecipient audit reports.</P>
            <P>b. <E T="03">Compliance review.</E> The law also requires the auditor to determine whether the organization has complied with laws and regulations that may have a material effect on each major Federal assistance program.</P>
            <P>(1) In order to determine which major programs are to be tested for compliance, State and local governments shall identify in their accounts all Federal funds received and expended and the programs under which they were received. This shall include funds received directly from Federal agencies and through other State and local governments.</P>
            <P>(2) The review must include the selection and testing of a representative number of charges from each major Federal assistance program. The selection and testing of transactions shall be based on the auditor's professional judgment considering such factors as the amount of expeditures for the program and the individual awards; the newness of the program or changes in its conditions; prior experience with the program, particularly as revealed in audits and other evaluations (e.g., inspections, program reviews); the extent to which the program is carried out through subrecipients; the extent to which the program contracts for goods or services; the level to which the program is already subject to program reviews or other forms of independent oversight; the adequacy of the controls for ensuring compliance; the expectation of adherence or lack of adherence to the applicable laws and regulations; and the potential impact of adverse findings.</P>

            <P>(a) In making the test of transactions, the auditor shall determine whether:
            </P>
            <FP SOURCE="FP-1">—The amounts reported as expenditures were for allowable services, and</FP>
            <FP SOURCE="FP-1">—The records show that those who received services or benefits were eligible to receive them.</FP>
            

            <P>(b) In addition to transaction testing, the auditor shall determine whether:
            </P>
            <FP SOURCE="FP-1">—Matching requirements, levels of effort and earmarking limitations were met,</FP>
            <FP SOURCE="FP-1">—Federal financial reports and claims for advances and reimbursements contain information that is supported by the books and records from which the basic financial statements have been prepared, and</FP>
            <FP SOURCE="FP-1">—Amounts claimed or used for matching were determined in accordance with OMB Circular A-87, “Cost principles for State and local governments,” and Attachment F of Circular A-102, “Uniform requirements for grants to State and local governments.”</FP>
            

            <P>(c) The principal compliance requirements of the largest Federal aid programs may be ascertained by referring to the <E T="03">Compliance Supplement for Single Audits of State and Local Governments,</E> issued by OMB and available from the Government Printing Office. For those programs not covered in the Compliance Supplement, the auditor may ascertain compliance requirements by researching the statutes, regulations, and agreements governing individual programs.</P>
            <P>(3) Transactions related to other Federal assistance programs that are selected in connection with examinations of financial statements and evaluations of internal controls shall be tested for compliance with Federal laws and regulations that apply to such transactions.</P>
            <P>9. <E T="03">Subrecipients.</E> State or local governments that receive Federal financial assistance and provide $25,000 or more of it in a fiscal year to a subrecipient shall:</P>

            <P>a. Determine whether State or local subrecipients have met the audit requirements of this Circular and whether subrecipients covered by Circular A-110, “Uniform requirements for grants to universities, hospitals, and other nonprofit organizations,” have met that requirement;<PRTPAGE P="176"/>
            </P>
            <P>b. Determine whether the subrecipient spent Federal assistance funds provided in accordance with applicable laws and regulations. This may be accomplished by reviewing an audit of the subrecipient made in accordance with this Circular, Circular A-110, or through other means (e.g., program reviews) if the subrecipient has not yet had such an audit;</P>
            <P>c. Ensure that appropriate corrective action is taken within six months after receipt of the audit report in instances of noncompliance with Federal laws and regulations;</P>
            <P>d. Consider whether subrecipient audits necessitate adjustment of the recipient's own records; and</P>
            <P>e. Require each subrecipient to permit independent auditors to have access to the records and financial statements as necessary to comply with this Circular.</P>
            <P>10. <E T="03">Relation to other audit requirements.</E> The Single Audit Act provides that an audit made in accordance with this Circular shall be in lieu of any financial or financial compliance audit required under individual Federal assistance programs. To the extent that a single audit provides Federal agencies with information and assurances they need to carry out their overall responsibilities, they shall rely upon and use such information. However, a Federal agency shall make any additional audits which are necessary to carry out its responsibilities under Federal law and regulation. Any additional Federal audit effort shall be planned and carried out in such a way as to avoid duplication.</P>
            <P>a. The provisions of this Circular do not limit the authority of Federal agencies to make, or contract for audits and evaluations of Federal financial assistance programs, nor do they limit the authority of any Federal agency Inspector General or other Federal audit official.</P>
            <P>b. The provisions of this Circular do not authorize any State or local government or subrecipient thereof to constrain Federal agencies, in any manner, from carrying out additional audits.</P>
            <P>c. A Federal agency that makes or contracts for audits in addition to the audits made by recipients pursuant to this Circular shall, consistent with other applicable laws and regulations, arrange for funding the cost of such additional audits. Such additional audits include economy and efficiency audits, program results audits, and program evaluations.</P>
            <P>11. <E T="03">Cognizant agency responsibilities.</E> The Single Audit Act provides for cognizant Federal agencies to oversee the implementation of this Circular.</P>
            <P>a. The Office of Management and Budget will assign cognizant agencies for States and their subdivisions and larger local governments and their subdivisions. Other Federal agencies may participate with an assigned cognizant agency, in order to fulfill the cognizance responsibilities. Smaller governments not assigned a cognizant agency will be under the general oversight of the Federal agency that provides them the most funds whether directly or indirectly.</P>
            <P>b. A cognizant agency shall have the following responsibilities:</P>
            <P>(1) Ensure that audits are made and reports are received in a timely manner and in accordance with the requirements of this Circular.</P>
            <P>(2) Provide technical advice and liaison to State and local governments and independent auditors.</P>
            <P>(3) Obtain or make quality control reviews of selected audits made by non-Federal auditorganizations, and provide the results, when appropriate, to other interested organizations.</P>
            <P>(4) Promptly inform other affected Federal agencies and appropriate Federal law enforcement officials of any reported illegal acts or irregularities. They should also inform State or local law enforcement and prosecuting authorities, if not advised by the recipient, of any violation of law within their jurisdiction.</P>
            <P>(5) Advise the recipient of audits that have been found not to have met the requirements set forth in this Circular. In such instances, the recipient will be expected to work with the auditor to take corrective action. If corrective action is not taken, the cognizant agency shall notify the recipient and Federal awarding agencies of the facts and make recommendations for followup action. Major inadequacies or repetitive substandard performance of independent auditors shall be referred to appropriate professional bodies for disciplinary action.</P>
            <P>(6) Coordinate, to the extent practicable, audits made by or for Federal agencies that are in addition to the audits made pursuant to this Circular; so that the additional audits build upon such audits.</P>
            <P>(7) Oversee the resolution of audit findings that affect the programs of more than one agency.</P>
            <P>12. <E T="03">Illegal acts or irregularities.</E> If the auditor becomes aware of illegal acts or other irregularities, prompt notice shall be given to recipient management officials above the level of involvement. (See also paragraph 13(a)(3) of this appendix for the auditor's reporting responsibilities.) The recipient, in turn, shall promptly notify the cognizant agency of the illegal acts or irregularities and of proposed and actual actions, if any. Illegal acts and irregularities include such matters as conflicts of interest, falsification of records or reports, and misappropriations of funds or other assets.</P>
            <P>13. <E T="03">Audit Reports.</E> Audit reports must be prepared at the completion of the audit. Reports serve many needs of State and local <PRTPAGE P="177"/>governments as well as meeting the requirements of the Single Audit Act.</P>
            <P>a. The audit report shall state that the audit was made in accordance with the provisions of this Circular. The report shall be made up of at least:</P>

            <P>(1) The auditor's report on financial statements and on a schedule of Federal assistance; the financial statements; and a schedule of Federal assistance, showing the total expenditures for each Federal assistance program as identified in the <E T="03">Catalog of Federal Domestic Assistance.</E> Federal programs or grants that have not been assigned a catalog number shall be identified under the caption “other Federal assistance.”</P>
            <P>(2) The auditor's report on the study and evaluation of internal control systems must identify the organization's significant internal accounting controls, and those controls designed to provide reasonable assurance that Federal programs are being managed in compliance with laws and regulations. It must also identify the controls that were evaluated, the controls that were not evaluated, and the material weaknesses identified as a result of the evaluation.</P>
            <P>(3) The auditor's report on compliance containing:
            </P>
            <FP SOURCE="FP-1">—A statement of positive assurance with respect to those items tested for compliance, including compliance with law and regulations pertaining to financial reports and claims for advances and reimbursements;</FP>
            <FP SOURCE="FP-1">—Negative assurance on those items not tested;</FP>
            <FP SOURCE="FP-1">—A summary of all instances of noncompliance; and</FP>
            <FP SOURCE="FP-1">—An identification of total amounts questioned, if any, for each Federal assistance award, as a result of noncompliance.</FP>
            
            <P>b. The three parts of the audit report may be bound into a single report, or presented at the same time as separate documents.</P>
            <P>c. All fraud abuse, or illegal acts or indications of such acts, including all questioned costs found as the result of these acts that auditors become aware of, should normally be covered in a separate written report submitted in accordance with paragraph 13f of this appendix.</P>
            <P>d. In addition to the audit report, the recipient shall provide comments on the findings and recommendations in the report, including a plan for corrective action taken or planned and comments on the status of corrective action taken on prior findings. If corrective action is not necessary, a statement describing the reason it is not should accompany the audit report.</P>
            <P>e. The reports shall be made available by the State or local government for public inspection within 30 days after the completion of the audit.</P>
            <P>f. In accordance with generally accepted government audit standards, reports shall be submitted by the auditor to the organization audited and to those requiring or arranging for the audit. In addition, the recipient shall submit copies of the reports to each Federal department or agency that provided Federal assistance funds to the recipient. Subrecipients shall submit copies to recipients that provided them Federal assistance funds. The reports shall be sent within 30 days after the completion of the audit, but no later than one year after the end of the audit period unless a longer period is agreed to with the cognizant agency.</P>
            <P>g. Recipients of more than $100,000 in Federal funds shall submit one copy of the audit report within 30 days after issuance to a central clearinghouse to be designated by the Office of Management and Budget. Theclearinghouse will keep completed audits on file and follow up with State and local governments that have not submitted required audit reports.</P>
            <P>h. Recipients shall keep audit reports on file for three years from their issuance.</P>
            <P>14. <E T="03">Audit Resolution.</E> As provided in paragraph 11, the cognizant agency shall be responsible for monitoring the resolution of audit findings that affect the programs of more than one Federal agency. Resolution of findings that relate to the programs of a single Federal agency will be the responsibility of the recipient and that agency. Alternate arrangements may be made on a case-by-case basis by agreement among the agencies concerned.</P>
            <P>Resolution shall be made within six months after receipt of the report by the Federal departments and agencies. Corrective action should proceed as rapidly as possible.</P>
            <P>15. <E T="03">Audit workpapers and reports.</E> Workpapers and reports shall be retained for a minimum of three years from the date of the audit report, unless the auditor is notified in writing by the cognizant agency to extend the retention period. Audit workpapers shall be made available upon request to the cognizant agency or its designee or the General Accounting Office, at the completion of the audit.</P>
            <P>16. <E T="03">Audit Costs.</E> The cost of audits made in accordance with the provisions of this Circular are allowable charges to Federal assistance programs.</P>
            <P>a. The charges may be considered a direct cost or an allocated indirect cost, determined in accordance with the provision of Circular A-87, “Cost principles for State and local governments.”</P>

            <P>b. Generally, the percentage of costs charged to Federal assistance programs for a single audit shall not exceed the percentage that Federal funds expended represent of total funds expended by the recipient during the fiscal year. The percentage may be exceeded, however, if appropriate documentation demonstrates higher actual cost.<PRTPAGE P="178"/>
            </P>
            <P>17. <E T="03">Sanctions.</E> The Single Audit Act provides that no cost may be charged to Federal assistance programs for audits required by the Act that are not made in accordance with this Circular. In cases of continued inability or unwillingness to have a proper audit, Federal agencies must consider other appropriate sanctions including:
            </P>
            <FP SOURCE="FP-1">—Withholding a percentage of assistance payments until the audit is completed satisfactorily,</FP>
            <FP SOURCE="FP-1">—Withholding or disallowing overhead costs, and</FP>
            <FP SOURCE="FP-1">—Suspending the Federal assistance agreement until the audit is made.</FP>
            
            <P>18. <E T="03">Auditor Selection.</E> In arranging for audit services State and local governments shall follow the procurement standards prescribed by Attachment O of Circular A-102, “Uniform requirements for grants to State and local governments.” The standards provide that while recipients are encouraged to enter into intergovernmental agreements for audit and other services, analysis should be made to determine whether it would be more economical to purchase the services from private firms. In instances where use of such intergovernmental agreements are required by State statutes (e.g., audit services) these statutes will take precedence.</P>
            <P>19. <E T="03">Small and Minority Audit Firms.</E> Small audit firms and audit firms owned and controlled by socially and economically disadvantaged individuals shall have the maximum practicable opportunity to participate in contracts awarded to fulfill the requirements of this Circular. Recipients of Federal assistance shall take the following steps to further this goal:</P>
            <P>a. Assure that small audit firms and audit firms owned and controlled by socially and economically disadvantaged individuals are used to the fullest extent practicable.</P>
            <P>b. Make information on forthcoming opportunities available and arrange timeframes for the audit so as to encourage and facilitate participation by small audit firms and audit firms owned and controlled by socially and economically disadvantaged individuals.</P>
            <P>c. Consider in the contract process whether firms competing for larger audits intend to subcontract with small audit firms and audit firms owned and controlled by socially and economically disadvantaged individuals.</P>
            <P>d. Encourage contracting with small audit firms or audit firms owned and controlled by socially and economically disadvantaged individuals which have traditionally audited government programs and, in such cases where this is not possible, assure that these firms are given consideration for audit subcontracting opportunities.</P>
            <P>e. Encourage contracting with consortiums of small audit firms as described in paragraph (a) of section 19 of this appendix when a contract is too large for an individual small audit firm or audit firm owned and controlled by socially and economically disadvantaged individuals.</P>
            <P>f. Use the services and assistance, as appropriate, of such organizations as the Small Business Administration in the solicitation and utilization of small audit firms or audit firms owned and controlled by socially and economically disadvantaged individuals.</P>
            <P>20. <E T="03">Reporting.</E> Each Federal agency will report to the Director of OMB on or before March 1, 1987, and annually thereafter on the effectiveness of State and local governments in carrying out the provisions of this Circular. The report must identify each State or local government or Indian tribe that, in theopinion of the agency, is failing to comply with the Circular.</P>
            <P>21. <E T="03">Regulations.</E> Each Federal agency shall include the provisions of this Circular in its regulations implementing the Single Audit Act.</P>
            <P>22. <E T="03">Effective date.</E> This Circular is effective upon publication and shall apply to fiscal years of State and local governments that begin after December 31, 1984. Earlier implementation is encouraged. However, until it is implemented, the audit provisions of Attachment P to Circular A-102 shall continue to be observed.</P>
            <P>23. <E T="03">Inquiries.</E> All questions or inquiries should be addressed to Financial Management Division, Office of Management and Budget, telephone number 202/395-3993.</P>
            <P>24. <E T="03">Sunset review date.</E> This Circular shall have an independent policy review to ascertain its effectiveness three years from the date of issuance.
            </P>
            <FP SOURCE="FRP">
              <E T="04">David A. Stockman,</E>
            </FP>
            <FP SOURCE="FRP">
              <E T="03">Director.</E>
            </FP>
            <HD SOURCE="HD1">Attachment—Circular A-128</HD>
            <HD SOURCE="HD2">Definition of Major Program as Provided in Public Law 98-502</HD>
            <P>“Major Federal Assistance Program,” for State and local governments having Federal assistance expenditures between $100,000 and $100,000,000, means any program for which Federal expenditures during the applicable year exceed the larger of $300,000, or 3 percent of such total expenditures.</P>
            <P>Where total expenditures of Federal assistance exceed $100,000,000, the following criteria apply:</P>
            <GPOTABLE CDEF="s60,r35,r40" COLS="3" OPTS="L2,i1">
              <BOXHD>
                <CHED H="1">Total expenditures of Federal financial assistance for all programs</CHED>
                <CHED H="2">More than</CHED>
                <CHED H="2">But less than</CHED>
                <CHED H="1">Major Federal assistance program means any program that exceeds</CHED>
              </BOXHD>
              <ROW>
                <ENT I="01">$100 million</ENT>
                <ENT>$1 billion</ENT>
                <ENT>$3 million.</ENT>
              </ROW>
              <ROW>
                <ENT I="01">$1 billion</ENT>
                <ENT>$2 billion</ENT>
                <ENT>$4 million.</ENT>
              </ROW>
              <ROW>
                <ENT I="01">$2 billion</ENT>
                <ENT>$3 billion</ENT>
                <ENT>$7 million.</ENT>
              </ROW>
              <ROW>
                <ENT I="01">$3 billion</ENT>
                <ENT>$4 billion</ENT>
                <ENT>$10 million.</ENT>
              </ROW>
              <ROW>
                <ENT I="01">$4 billion</ENT>
                <ENT>$5 billion</ENT>
                <ENT>$13 million.</ENT>
              </ROW>
              <ROW>
                <PRTPAGE P="179"/>
                <ENT I="01">$5 billion</ENT>
                <ENT>$6 billion</ENT>
                <ENT>$16 million.</ENT>
              </ROW>
              <ROW>
                <ENT I="01">$6 billion</ENT>
                <ENT>$7 billion</ENT>
                <ENT>$19 million.</ENT>
              </ROW>
              <ROW>
                <ENT I="01">Over $7 billion</ENT>
                <ENT/>
                <ENT>$20 million.</ENT>
              </ROW>
            </GPOTABLE>
          </APPENDIX>
        </PART>
        <PART>
          <EAR>Pt. 15</EAR>
          <HD SOURCE="HED">PART 15—CONDUCT AT THE MT. WEATHER EMERGENCY ASSISTANCE CENTER AND AT THE NATIONAL EMERGENCY TRAINING CENTER</HD>
          <CONTENTS>
            <SECHD>Sec.</SECHD>
            <SECTNO>15.1</SECTNO>
            <SUBJECT>Applicability.</SUBJECT>
            <SECTNO>15.2</SECTNO>
            <SUBJECT>Definitions.</SUBJECT>
            <SECTNO>15.3</SECTNO>
            <SUBJECT>Access to Mt. Weather.</SUBJECT>
            <SECTNO>15.4</SECTNO>
            <SUBJECT>Inspection.</SUBJECT>
            <SECTNO>15.5</SECTNO>
            <SUBJECT>Preservation of property.</SUBJECT>
            <SECTNO>15.6</SECTNO>
            <SUBJECT>Compliance with signs and directions.</SUBJECT>
            <SECTNO>15.7</SECTNO>
            <SUBJECT>Disturbances.</SUBJECT>
            <SECTNO>15.8</SECTNO>
            <SUBJECT>Gambling.</SUBJECT>
            <SECTNO>15.9</SECTNO>
            <SUBJECT>Alcoholic beverages and narcotics.</SUBJECT>
            <SECTNO>15.10</SECTNO>
            <SUBJECT>Soliciting, vending, and debt collection.</SUBJECT>
            <SECTNO>15.11</SECTNO>
            <SUBJECT>Distribution of handbills.</SUBJECT>
            <SECTNO>15.12</SECTNO>
            <SUBJECT>Photographs and other depictions.</SUBJECT>
            <SECTNO>15.13</SECTNO>
            <SUBJECT>Dogs and other animals.</SUBJECT>
            <SECTNO>15.14</SECTNO>
            <SUBJECT>Vehicular and pedestrian traffic.</SUBJECT>
            <SECTNO>15.15</SECTNO>
            <SUBJECT>Weapons and explosives.</SUBJECT>
            <SECTNO>15.16</SECTNO>
            <SUBJECT>Penalties.</SUBJECT>
            <SECTNO>15.17</SECTNO>
            <SUBJECT>Other laws.</SUBJECT>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>

            <P>Reorganization Plan No. 3 of 1978, 43 FR 41943, 3 CFR, 1978 Comp., p. 329; E.O. 12127 of Mar. 31, 1979, 44 FR 19367, 3 CFR, 1979 Comp., p. 376; E.O. 12148, 44 FR 13239, 3 CFR, 1979 Comp., p. 412; Federal Fire Prevention and Control Act of 1974, 15 U.S.C. 2201 <E T="03">et seq.</E>; delegation of authority from the Administrator of General Services, dated July 18, 1979; Pub.L. 80-566, approved June 1, 1948, 40 U.S.C. 318-318d; and the Federal Property and Administrative Services Act of 1949, 40 U.S.C. 271 <E T="03">et seq.</E>
            </P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>64 FR 31137, June 10, 1999, unless otherwise noted.</P>
          </SOURCE>
          <SECTION>
            <SECTNO>§ 15.1</SECTNO>
            <SUBJECT>Applicability.</SUBJECT>
            <P>The rules and regulations in this part apply to all persons entering, while on, or leaving all the property known as the Mt. Weather Emergency Assistance Center (Mt. Weather) located at 19844 Blue Ridge Mountain Road, Bluemont, Virginia 20135, and all the property known as the National Emergency Training Center (NETC), located on 16825 South Seton Avenue in Emmitsburg, Maryland, which the Federal Emergency Management Agency (FEMA) owns, operates and controls.</P>
          </SECTION>
          <SECTION>
            <SECTNO>§ 15.2</SECTNO>
            <SUBJECT>Definitions.</SUBJECT>
            <P>Terms used in part 15 have these meanings:</P>
            <P>
              <E T="03">Administrator</E> means the Administrator, United States Fire Administration, FEMA.</P>
            <P>
              <E T="03">Director</E> means the Director of the Federal Emergency Management Agency.</P>
            <P>
              <E T="03">FEMA</E> means the Federal Emergency Management Agency.</P>
            <P>
              <E T="03">Mt. Weather</E> means the Mt. Weather Emergency Assistance Center, Bluemont, VA.</P>
            <P>
              <E T="03">NETC</E> means the National Emergency Training Center, Emmitsburg, MD.</P>
            <P>
              <E T="03">Senior Resident Manager</E> means the Senior Resident Manager, Mt. Weather Emergency Assistance Center.</P>
            <P>
              <E T="03">We</E> means the Federal Emergency Management Agency or FEMA.</P>
          </SECTION>
          <SECTION>
            <SECTNO>§ 15.3</SECTNO>
            <SUBJECT>Access to Mt. Weather.</SUBJECT>
            <P>Mt. Weather contains classified material and areas that we must protect in the interest of national security. The facility is a restricted area. We deny access to Mt. Weather to the general public and limit access to those persons having official business related to the missions and operations of Mt. Weather. The Director or the Senior Resident Manager must approve all persons and vehicles entering Mt. Weather. All persons must register with the Mt. Weather Police/Security Force and must receive a Mt. Weather identification badge and vehicle parking decal or permit to enter or remain on the premises. No person will enter or remain on Mt. Weather premises unless he or she has received permission from the Director or the Senior Resident Manager and has complied with these procedures.</P>
          </SECTION>
          <SECTION>
            <SECTNO>§ 15.4</SECTNO>
            <SUBJECT>Inspection.</SUBJECT>
            <P>(a) <E T="03">In general.</E> All vehicles, packages, handbags, briefcases, and other containers being brought into, while on or being removed from Mt. Weather or the NETC are subject to inspection by the Police/Security Force and other authorized officials. A full search of a vehicle or person may accompany an arrest.<PRTPAGE P="180"/>
            </P>
            <P>(b) <E T="03">Inspection at Mt. Weather.</E> We authorize inspection at Mt. Weather to prevent the possession and use of items prohibited by these rules and regulations or by other applicable laws, to prevent theft of property and to prevent the wrongful obtaining of defense information under 18 U.S.C. 793. If individuals object to such inspections they must tell the officer on duty at the entrance gate before entering Mt. Weather. The Police/Security Force and other authorized officials must not authorize or allow individuals who refuse to permit an inspection of their vehicle or possessions to enter the premises of Mt. Weather.</P>
          </SECTION>
          <SECTION>
            <SECTNO>§ 15.5</SECTNO>
            <SUBJECT>Preservation of property.</SUBJECT>
            <P>At both Mt. Weather and NETC we prohibit:</P>
            <P>(a) The improper disposal of rubbish;</P>
            <P>(b) Willful destruction of or damage to property;</P>
            <P>(c) Theft of property;</P>
            <P>(d) Creation of any hazard on the property to persons or things;</P>
            <P>(e) Throwing articles of any kind from or at a building;</P>
            <P>(f) Climbing upon a fence; or</P>
            <P>(g) Climbing upon the roof or any part of a building.</P>
          </SECTION>
          <SECTION>
            <SECTNO>§ 15.6</SECTNO>
            <SUBJECT>Compliance with signs and directions.</SUBJECT>
            <P>Persons at Mt. Weather and the NETC must comply at all times with official signs that prohibit, regulate, or direct, and with the directions of the Police/Security Force and other authorized officials.</P>
          </SECTION>
          <SECTION>
            <SECTNO>§ 15.7</SECTNO>
            <SUBJECT>Disturbances.</SUBJECT>
            <P>At both Mt. Weather and NETC we prohibit any unwarranted loitering, disorderly conduct, or other conduct at Mt. Weather and NETC that:</P>
            <P>(a) Creates loud or unusual noise or a nuisance;</P>
            <P>(b) Unreasonably obstructs the usual use of classrooms, dormitory rooms, entrances, foyers, lobbies, corridors, offices, elevators, stairways, roadways or parking lots;</P>
            <P>(c) Otherwise impedes or disrupts the performance of official duties by government employees or government contractors;</P>
            <P>(d) Interferes with the delivery of educational or other programs; or</P>
            <P>(e) Prevents persons from obtaining in a timely manner the administrative services provided at both facilities.</P>
          </SECTION>
          <SECTION>
            <SECTNO>§ 15.8</SECTNO>
            <SUBJECT>Gambling.</SUBJECT>
            <P>We prohibit participating in games for money or other personal property, including the operation of gambling devices, the conduct of a lottery or pool, or the sale or purchase of numbers tickets at both facilities.</P>
          </SECTION>
          <SECTION>
            <SECTNO>§ 15.9</SECTNO>
            <SUBJECT>Alcoholic beverages and narcotics.</SUBJECT>
            <P>At both Mt. Weather and the NETC we prohibit:</P>
            <P>(a) Operating a motor vehicle by any person under the influence of alcoholic beverages, narcotic drugs, hallucinogens, marijuana, barbiturates or amphetamines as defined in Title 21 of the Annotated Code of Maryland, Transportation, sec. 21-902 or in Title 18.2, ch. 7, Art. 2 of the Code of Virginia, secs. 18.2-266 and 18.2-266.1, as applicable;</P>
            <P>(b) Entering upon or while on either property being under the influence of or using or possessing any narcotic drug, marijuana, hallucinogen, barbiturate or amphetamine. This prohibition does not apply in cases where a licensed physician has prescribed the drug for the person;</P>
            <P>(c) Entering upon either property or being on either property under the influence of alcoholic beverages;</P>
            <P>(d) Bringing alcoholic beverages, narcotic drugs, hallucinogens, marijuana, barbiturates or amphetamines onto the premises unless the Director, the Senior Resident Manager, or the Administrator or designee for the NETC authorizes it in writing; and</P>
            <P>(e) Use of alcoholic beverages on the property except:</P>
            <P>(1) In the Balloon Shed Lounge at Mt. Weather and in other locations that the Director or the Senior Resident Manager authorizes in writing; and</P>
            <P>(2) In the Student Center at the NETC and other locations that the Director or the Administrator, or designee, authorizes in writing.</P>
          </SECTION>
          <SECTION>
            <PRTPAGE P="181"/>
            <SECTNO>§ 15.10</SECTNO>
            <SUBJECT>Soliciting, vending, and debt collection.</SUBJECT>
            <P>(a) We prohibit soliciting alms and contributions, commercial or political soliciting and vending of all kinds, displaying or distributing commercial advertising, or collecting private debts unless the Director for either facility or the Senior Resident Manager approve the activities in writing and in advance.</P>
            <P>(b) The prohibitions of this section do not apply to:</P>
            <P>(1) National or local drives for funds for welfare, health, or other purposes as authorized by 5 CFR part 950, Solicitation of Federal Civilian and Uniformed Service Personnel for Contributions to Private Voluntary Organizations. The Director, or the Senior Resident Manager, or the Administrator for the NETC or designee, must approve all such national or local drives before they are conducted on either premises;</P>
            <P>(2) Authorized concessions;</P>
            <P>(3) Personal notices posted by employees on authorized bulletin boards; and</P>

            <P>(4) Solicitation of labor organization membership or dues authorized by occupant agencies under the Civil Service Reform Act of 1978, 5 U.S.C. 7101 <E T="03">et seq.</E>
            </P>
          </SECTION>
          <SECTION>
            <SECTNO>§ 15.11</SECTNO>
            <SUBJECT>Distribution of handbills.</SUBJECT>
            <P>We prohibit the distribution of materials such as pamphlets, handbills or flyers, and the displaying of placards or posting of materials on bulletin boards or elsewhere at Mt. Weather and the NETC unless the Director, the Senior Resident Manager, or the Administrator for the NETC or designee, approves such distribution or display, or when such distribution or display is conducted as part of authorized government activities.</P>
          </SECTION>
          <SECTION>
            <SECTNO>§ 15.12</SECTNO>
            <SUBJECT>Photographs and other depictions.</SUBJECT>
            <P>(a) <E T="03">Photographs and other depictions at Mt. Weather.</E> We prohibit taking photographs and making notes, sketches, or diagrams of buildings, grounds or other features of Mt. Weather, or the possession of a camera while at Mt. Weather except when the Director or the Senior Resident Manager approves in advance.</P>
            <P>(b) <E T="03">Photographs and other depictions at the NETC.</E> (1) Photographs may be taken inside classroom or office areas of the NETC only with the consent of the occupants. Except where security regulations apply or a Federal court order or rule prohibits it, photographs may be taken in entrances, lobbies, foyers, corridors, or auditoriums when used for public meetings.</P>
            <P>(2) Subject to the foregoing prohibitions, photographs for advertising and commercial purposes may be taken only with written permission of the Assistant Administrator, Management Operations and Student Support, United States Fire Administration, Federal Emergency Management Agency, Emmitsburg, MD 21727, (telephone) (301) 447-1223, (facsimile) (301) 447-1052, or other authorized official where photographs are to be taken.</P>
          </SECTION>
          <SECTION>
            <SECTNO>§ 15.13</SECTNO>
            <SUBJECT>Dogs and other animals.</SUBJECT>
            <P>Dogs and other animals, except seeing-eye dogs, must not be brought onto Mt. Weather grounds or into the buildings at NETC for other than official purposes.</P>
          </SECTION>
          <SECTION>
            <SECTNO>§ 15.14</SECTNO>
            <SUBJECT>Vehicular and pedestrian traffic.</SUBJECT>
            <P>(a) Drivers of all vehicles entering or while at Mt. Weather or the NETC must drive carefully and safely at all times and must obey the signals and directions of the Police/Security Force or other authorized officials and all posted traffic signs;</P>
            <P>(b) Drivers must comply with NETC parking requirements and vehicle registration requirements;</P>
            <P>(c) At both Mt. Weather and the NETC we prohibit:</P>
            <P>(1) Blocking entrances, driveways, walks, loading platforms, or fire hydrants on the property; and</P>
            <P>(2) Parking without authority, parking in unauthorized locations or in locations reserved for other persons, or parking contrary to the direction of posted signs.</P>
            <P>(3) Where warning signs are posted vehicles parked in violation may be removed at the owners' risk and expense.</P>

            <P>(d) The Director or the Senior Resident Manager or the Administrator for the NETC or designee may issue and post specific supplemental traffic directives if needed. When issued and posted supplemental traffic directives <PRTPAGE P="182"/>will have the same force and effect as if they were in these rules. Proof that a parked motor vehicle violated these rules or directives may be taken as prima facie evidence that the registered owner was responsible for the violation.</P>
          </SECTION>
          <SECTION>
            <SECTNO>§ 15.15</SECTNO>
            <SUBJECT>Weapons and explosives.</SUBJECT>
            <P>No person entering or while at Mt. Weather or the NETC will carry or possess firearms, other dangerous or deadly weapons, explosives or items intended to be used or that could reasonably be used to fabricate an explosive or incendiary device, either openly or concealed, except:</P>
            <P>(a) For official purposes if the Director or the Senior Resident Manager or the Administrator for the NETC or designee approves; and</P>
            <P>(b) In accordance with FEMA policy governing the possession of firearms.</P>
          </SECTION>
          <SECTION>
            <SECTNO>§ 15.16</SECTNO>
            <SUBJECT>Penalties.</SUBJECT>
            <P>(a) <E T="03">Misconduct.</E> (1) Whoever is found guilty of violating any of these rules and regulations is subject to a fine of not more than $50 or imprisonment for not more than 30 days, or both. (See 40 U.S.C. 318c.)</P>
            <P>(2) We will process any misconduct at NETC according to FEMA/NETC policy or instructions.</P>
            <P>(b) <E T="03">Parking violations.</E> We may tow at the owner's expense any vehicles parked in violation of State law, FEMA, Mt. Weather, or NETC instructions.</P>
          </SECTION>
          <SECTION>
            <SECTNO>§ 15.17</SECTNO>
            <SUBJECT>Other laws.</SUBJECT>
            <P>Nothing in the rules and regulations in this part will be construed to abolish any other Federal laws or any State and local laws and regulations applicable to Mt. Weather or NETC premises. The rules and regulations in this part supplement penal provisions of Title 18, United States Code, relating to Crimes and Criminal Procedure, which apply without regard to the place of the offense and to those penal provisions that apply in areas under the special maritime and territorial jurisdiction of the United States, as defined in 18 U.S.C. 7. They supersede provisions of State law, however, that Federal law makes criminal offenses under the Assimilated Crimes Act (18 U.S.C. 13) to the extent that State laws conflict with these regulations. State and local criminal laws apply as such only to the extent that the State reserved such authority to itself by the State consent or cession statute or that a Federal statute vests such authority in the State.</P>
          </SECTION>
        </PART>
        <PART>
          <EAR>Pt. 16</EAR>
          <HD SOURCE="HED">PART 16—ENFORCEMENT OF NONDISCRIMINATION ON THE BASIS OF HANDICAP IN PROGRAMS OR ACTIVITIES CONDUCTED BY THE FEDERAL EMERGENCY MANAGEMENT AGENCY</HD>
          <CONTENTS>
            <SECHD>Sec.</SECHD>
            <SECTNO>16.101</SECTNO>
            <SUBJECT>Purpose.</SUBJECT>
            <SECTNO>16.102</SECTNO>
            <SUBJECT>Application.</SUBJECT>
            <SECTNO>16.103</SECTNO>
            <SUBJECT>Definitions.</SUBJECT>
            <SECTNO>16.104-16.109</SECTNO>
            <RESERVED>[Reserved]</RESERVED>
            <SECTNO>16.110</SECTNO>
            <SUBJECT>Self-evaluation.</SUBJECT>
            <SECTNO>16.111</SECTNO>
            <SUBJECT>Notice.</SUBJECT>
            <SECTNO>16.112-16.129</SECTNO>
            <RESERVED>[Reserved]</RESERVED>
            <SECTNO>16.130</SECTNO>
            <SUBJECT>General prohibitions against discrimination.</SUBJECT>
            <SECTNO>16.131-16.139</SECTNO>
            <RESERVED>[Reserved]</RESERVED>
            <SECTNO>16.140</SECTNO>
            <SUBJECT>Employment.</SUBJECT>
            <SECTNO>16.141-16.148</SECTNO>
            <RESERVED>[Reserved]</RESERVED>
            <SECTNO>16.149</SECTNO>
            <SUBJECT>Program accessibility: Discrimination prohibited.</SUBJECT>
            <SECTNO>16.150</SECTNO>
            <SUBJECT>Program accessibility: Existing facilities.</SUBJECT>
            <SECTNO>16.151</SECTNO>
            <SUBJECT>Program accessibility: New construction and alterations.</SUBJECT>
            <SECTNO>16.152-16.159</SECTNO>
            <RESERVED>[Reserved]</RESERVED>
            <SECTNO>16.160</SECTNO>
            <SUBJECT>Communications.</SUBJECT>
            <SECTNO>16.161-16.169</SECTNO>
            <RESERVED>[Reserved]</RESERVED>
            <SECTNO>16.170</SECTNO>
            <SUBJECT>Compliance procedures.</SUBJECT>
            <SECTNO>16.171-16.999</SECTNO>
            <RESERVED>[Reserved]</RESERVED>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>29 U.S.C. 794.</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>53 FR 25885, July 8, 1988, unless otherwise noted.</P>
          </SOURCE>
          <SECTION>
            <SECTNO>§ 16.101</SECTNO>
            <SUBJECT>Purpose.</SUBJECT>
            <P>The purpose of this regulation is to effectuate section 119 of the Rehabilitation, Comprehensive Services, and Developmental Disabilities Amendments of 1978, which amended section 504 of the Rehabilitation Act of 1973 to prohibit discrimination on the basis of handicap in programs or activities conducted by Executive agencies or the United States Postal Service.</P>
          </SECTION>
          <SECTION>
            <SECTNO>§ 16.102</SECTNO>
            <SUBJECT>Application.</SUBJECT>

            <P>This regulation (§§ 16.101 through 16.170) applies to all programs or activities conducted by the agency, except <PRTPAGE P="183"/>for programs or activities conducted outside the United States that do not involve individuals with handicaps in the United States.</P>
          </SECTION>
          <SECTION>
            <SECTNO>§ 16.103</SECTNO>
            <SUBJECT>Definitions.</SUBJECT>
            <P>For purposes of this regulation, the term—</P>
            <P>
              <E T="03">Assistant Attorney General</E> means the Assistant Attorney General, Civil Rights Division, United States Department of Justice.</P>
            <P>
              <E T="03">Auxiliary aids</E> means services or devices that enable persons with impaired sensory, manual, or speaking skills to have an equal opportunity to participate in, and enjoy the benefits of, programs or activities conducted by the agency. For example, auxiliary aids useful for persons with impaired vision include readers, Brailled materials, audio recordings, and other similar services and devices. Auxiliary aids useful for persons with impaired hearing include telephone handset amplifiers, telephones compatible with hearing aids, telecommunication devices for deaf persons (TDD's), interpreters, notetakers, written materials, and other similar services and devices.</P>
            <P>
              <E T="03">Complete complaint</E> means a written statement that contains the complainant's name and address and describes the agency's alleged discriminatory action in sufficient detail to inform the agency of the nature and date of the alleged violation of section 504. It shall be signed by the complainant or by someone authorized to do so on his or her behalf. Complaints filed on behalf of classes or third parties shall describe or identify (by name, if possible) the alleged victims of discrimination.</P>
            <P>
              <E T="03">Facility</E> means all or any portion of buildings, structures, equipment, roads, walks, parking lots, rolling stock or other conveyances, or other real or personal property.</P>
            <P>
              <E T="03">Historic preservation programs</E> means programs conducted by the agency that have preservation of historic properties as a primary purpose.</P>
            <P>
              <E T="03">Historic properties</E> means those properties that are listed or eligible for listing in the National Register of Historic Places or properties designated as historic under a statute of the appropriate State or local government body.</P>
            <P>
              <E T="03">Individual with handicaps</E> means any person who has a physical or mental impairment that substantially limits one or more major life activities, has a record of such an impairment, or is regarded as having such an impairment.</P>
            <P>As used in this definition, the phrase:</P>
            <P>(1) <E T="03">Physical or mental impairment</E> includes—</P>
            <P>(i) Any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: Neurological; musculoskeletal; special sense organs; respiratory, including speech organs; cardiovascular; reproductive; digestive; genitourinary; hemic and lymphatic; skin; and endocrine; or</P>

            <P>(ii) Any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities. The term <E T="03">physical or mental impairment</E> includes, but is not limited to, such diseases and conditions as orthopedic, visual, speech, and hearing impairments, cerebral palsy, epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, diabetes, mental retardation, emotional illness, and drug addiction and alcoholism.</P>
            <P>(2) <E T="03">Major life activities</E> includes functions such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.</P>
            <P>(3) <E T="03">Has a record of such an impairment</E> means has a history of, or has been misclassified as having, a mental or physical impairment that substantially limits one or more major life activities.</P>
            <P>(4) <E T="03">Is regarded as having an impairment</E> means—</P>
            <P>(i) Has a physical or mental impairment that does not substantially limit major life activities but is treated by the agency as constituting such a limitation;</P>
            <P>(ii) Has a physical or mental impairment that substantially limits major life activities only as a result of the attitudes of others toward such impairment; or</P>

            <P>(iii) Has none of the impairments defined in paragraph (1) of this definition but is treated by the agency as having such an impairment.<PRTPAGE P="184"/>
            </P>
            <P>
              <E T="03">Qualified individual with handicaps</E> means—</P>
            <P>(1) With respect to preschool, elementary, or secondary education services provided by the agency, an individual with handicaps who is a member of a class of persons otherwise entitled bystatute, regulation, or agency policy to receive education services from the agency;</P>
            <P>(2) With respect to any other agency program or activity under which a person is required to perform services or to achieve a level of accomplishment, an individual with handicaps who meets the essential eligibility requirements and who can achieve the purpose of the program or activity without modifications in the program or activity that the agency can demonstrate would result in a fundamental alteration in its nature;</P>
            <P>(3) With respect to any other program or activity, an individual with handicaps who meets the essential eligibility requirements for participation in, or receipt of benefits from, that program or activity; and</P>
            <P>(4) <E T="03">Qualified handicapped person</E> as that term is defined for purposes of employment in 29 CFR 1613.702(f), which is made applicable to this regulation by § 16.140.</P>
            <P>
              <E T="03">Section 504</E> means section 504 of the Rehabilitation Act of 1973 (Pub. L. 93-112, 87 Stat. 394 (29 U.S.C. 794)), as amended by the Rehabilitation Act Amendments of 1974 (Pub. L. 93-516, 88 Stat. 1617); the Rehabilitation, Comprehensive Services, and Developmental Disabilities Amendments of 1978 (Pub. L. 95-602, 92 Stat. 2955); and the Rehabilitation Act Amendments of 1986 (Pub. L. 99-506, 100 Stat. 1810). As used in this regulation, section 504 applies only to programs or activities conducted by Executive agencies and not to federally assisted programs.</P>
            <P>
              <E T="03">Substantial impairment</E> means a significant loss of the integrity of finished materials, design quality, or special character resulting from a permanent alteration.</P>
          </SECTION>
          <SECTION>
            <SECTNO>§§ 16.104-16.109</SECTNO>
            <RESERVED>[Reserved]</RESERVED>
          </SECTION>
          <SECTION>
            <SECTNO>§ 16.110</SECTNO>
            <SUBJECT>Self-evaluation.</SUBJECT>
            <P>(a) The agency shall, by September 6, 1989, evaluate its current policies and practices, and the effects thereof, that do not or may not meet the requirements of this regulation and, to the extent modification of any such policies and practices is required, the agency shall proceed to make the necessary modifications.</P>
            <P>(b) The agency shall provide an opportunity to interested persons, including individuals with handicaps or organizations representing individuals with handicaps, to participate in the self-evaluation process by submitting comments (both oral and written).</P>
            <P>(c) The agency shall, for at least three years following completion of the self-evaluation, maintain on file and make available for public inspection:</P>
            <P>(1) A description of areas examined and any problems identified; and</P>
            <P>(2) A description of any modifications made.</P>
          </SECTION>
          <SECTION>
            <SECTNO>§ 16.111</SECTNO>
            <SUBJECT>Notice.</SUBJECT>
            <P>The agency shall make available to employees, applicants, participants, beneficiaries, and other interested persons such information regarding the provisions of this regulation and its applicability to the programs or activities conducted by the agency, and make such information available to them in such manner as the head of the agency finds necessary to apprise such persons of the protections against discrimination assured them by section 504 and this regulation.</P>
          </SECTION>
          <SECTION>
            <SECTNO>§§ 16.112-16.129</SECTNO>
            <RESERVED>[Reserved]</RESERVED>
          </SECTION>
          <SECTION>
            <SECTNO>§ 16.130</SECTNO>
            <SUBJECT>General prohibitions against discrimination.</SUBJECT>
            <P>(a) No qualified individual with handicaps shall, on the basis of handicap, be excluded from participation in, be denied the benefits of, or otherwise be subjected to discrimination under any program or activity conducted by the agency.</P>
            <P>(b)(1) The agency, in providing any aid, benefit, or service, may not, directly or through contractual, licensing, or other arrangements, on the basis of handicap—</P>

            <P>(i) Deny a qualified individual with handicaps the opportunity to participate in or benefit from the aid, benefit, or service;<PRTPAGE P="185"/>
            </P>
            <P>(ii) Afford a qualified individual with handicaps an opportunity to participate in or benefit from the aid, benefit, or service that is not equal to that afforded others;</P>
            <P>(iii) Provide a qualified individual with handicaps with an aid, benefit, orservice that is not as effective in affording equal opportunity to obtain the same result, to gain the same benefit, or to reach the same level of achievement as that provided to others;</P>
            <P>(iv) Provide different or separate aid, benefits, or services to individuals with handicaps or to any class of individuals with handicaps than is provided to others unless such action is necessary to provide qualified individuals with handicaps with aid, benefits, or services that are as effective as those provided to others;</P>
            <P>(v) Deny a qualified individual with handicaps the opportunity to participate as a member of planning or advisory boards;</P>
            <P>(vi) Otherwise limit a qualified individual with handicaps in the enjoyment of any right, privilege, advantage, or opportunity enjoyed by others receiving the aid, benefit, or service.</P>
            <P>(2) The agency may not deny a qualified individual with handicaps the opportunity to participate in programs or activities that are not separate or different, despite the existence of permissibly separate or different programs or activities.</P>
            <P>(3) The agency may not, directly or through contractual or other arrangements, utilize criteria or methods of administration the purpose or effect of which would—</P>
            <P>(i) Subject qualified individuals with handicaps to discrimination on the basis of handicap; or</P>
            <P>(ii) Defeat or substantially impair accomplishment of the objectives of a program or activity with respect to individuals with handicaps.</P>
            <P>(4) The agency may not, in determining the site or location of a facility, make selections the purpose or effect of which would—</P>
            <P>(i) Exclude individuals with handicaps from, deny them the benefits of, or otherwise subject them to discrimination under any program or activity conducted by the agency; or</P>
            <P>(ii) Defeat or substantially impair the accomplishment of the objectives of a program or activity with respect to individuals with handicaps.</P>
            <P>(5) The agency, in the selection of procurement contractors, may not use criteria that subject qualified individuals with handicaps to discrimination on the basis of handicap.</P>
            <P>(6) The agency may not administer a licensing or certification program in a manner that subjects qualified individuals with handicaps to discrimination on the basis of handicap, nor may the agency establish requirements for the programs or activities of licensees or certified entities that subject qualified individuals with handicaps to discrimination on the basis of handicap. However, the programs or activities of entities that are licensed or certified by the agency are not, themselves, covered by this regulation.</P>
            <P>(c) The exclusion of nonhandicapped persons from the benefits of a program limited by Federal statute or Executive order to individuals with handicaps or the exclusion of a specific class of individuals with handicaps from a program limited by Federal statute or Executive order to a different class of individuals with handicaps is not prohibited by this regulation.</P>
            <P>(d) The agency shall administer programs and activities in the most integrated setting appropriate to the needs of qualified individuals with handicaps.</P>
          </SECTION>
          <SECTION>
            <SECTNO>§§ 16.131-16.139</SECTNO>
            <RESERVED>[Reserved]</RESERVED>
          </SECTION>
          <SECTION>
            <SECTNO>§ 16.140</SECTNO>
            <SUBJECT>Employment.</SUBJECT>
            <P>No qualified individual with handicaps shall, on the basis of handicap, be subject to discrimination in employment under any program or activity conducted by the agency. The definitions, requirements, and procedures of section 501 of the Rehabilitation Act of 1973 (29 U.S.C. 791), as established by the Equal Employment Opportunity Commission in 29 CFR part 1613, shall apply to employment in federally conducted programs or activities.</P>
          </SECTION>
          <SECTION>
            <SECTNO>§§ 16.141-16.148</SECTNO>
            <RESERVED>[Reserved]</RESERVED>
          </SECTION>
          <SECTION>
            <SECTNO>§ 16.149</SECTNO>
            <SUBJECT>Program accessibility: Discrimination prohibited.</SUBJECT>

            <P>Except as otherwise provided in § 16.150, no qualified individual with <PRTPAGE P="186"/>handicaps shall, because the agency's facilities are inaccessible to or unusable by individuals with handicaps, be denied the benefits of, be excluded fromparticipation in, or otherwise be subjected to discrimination under any program or activity conducted by the agency.</P>
          </SECTION>
          <SECTION>
            <SECTNO>§ 16.150</SECTNO>
            <SUBJECT>Program accessibility: Existing facilities.</SUBJECT>
            <P>(a) <E T="03">General.</E> The agency shall operate each program or activity so that the program or activity, when viewed in its entirety, is readily accessible to and usable by individuals with handicaps. This paragraph does not—</P>
            <P>(1) Necessarily require the agency to make each of its existing facilities accessible to and usable by individuals with handicaps;</P>
            <P>(2) In the case of historic preservation programs, require the agency to take any action that would result in a substantial impairment of significant historic features of an historic property; or</P>
            <P>(3) Require the agency to take any action that it can demonstrate would result in a fundamental alteration in the nature of a program or activity or in undue financial and administrative burdens. In those circumstances where agency personnel believe that the proposed action would fundamentally alter the program or activity or would result in undue financial and administrative burdens, the agency has the burden of proving that compliance with § 16.150(a) would result in such alteration or burdens. The decision that compliance would result in such alteration or burdens must be made by the agency head or his or her designee after considering all agency resources available for use in the funding and operation of the conducted program or activity, and must be accompanied by a written statement of the reasons for reaching that conclusion. If an action would result in such an alteration or such burdens, the agency shall take any other action that would not result in such an alteration or such burdens but would nevertheless ensure that individuals with handicaps receive the benefits and services of the program or activity.</P>
            <P>(b) <E T="03">Methods</E>—(1) <E T="03">General.</E> The agency may comply with the requirements of this section through such means as redesign of equipment, reassignment of services to accessible buildings, assignment of aides to beneficiaries, home visits, delivery of services at alternate accessible sites, alteration of existing facilities and construction of new facilities, use of accessible rolling stock, or any other methods that result in making its programs or activities readily accessible to and usable by individuals with handicaps. The agency is not required to make structural changes in existing facilities where other methods are effective in achieving compliance with this section. The agency, in making alterations to existing buildings, shall meet accessibility requirements to the extent compelled by the Architectural Barriers Act of 1968, as amended (42 U.S.C. 4151 through 4157), and any regulations implementing it. In choosing among available methods for meeting the requirements of this section, the agency shall give priority to those methods that offer programs and activities to qualified individuals with handicaps in the most integrated setting appropriate.</P>
            <P>(2) <E T="03">Historic preservation programs.</E> In meeting the requirements of § 16.150(a) in historic preservation programs, the agency shall give priority to methods that provide physical access to individuals with handicaps. In cases where a physical alteration to an historic property is not required because of § 16.150(a) (2) or (3), alternative methods of achieving program accessibility include—</P>
            <P>(i) Using audio-visual materials and devices to depict those portions of an historic property that cannot otherwise be made accessible;</P>
            <P>(ii) Assigning persons to guide individuals with handicaps into or through portions of historic properties that cannot otherwise be made accessible; or</P>
            <P>(iii) Adopting other innovative methods.</P>
            <P>(c) <E T="03">Time period for compliance.</E> The agency shall comply with the obligations established under this section by November 7, 1988, except that where structural changes in facilities are undertaken, such changes shall be made <PRTPAGE P="187"/>by September 6, 1991, but in any event as expeditiously as possible.</P>
            <P>(d) <E T="03">Transition plan.</E> In the event that structural changes to facilities will beundertaken to achieve program accessibility, the agency shall develop, by March 6, 1989, a transition plan setting forth the steps necessary to complete such changes. The agency shall provide an opportunity to interested persons, including individuals with handicaps or organizations representing individuals with handicaps, to participate in the development of the transition plan by submitting comments (both oral and written). A copy of the transition plan shall be made available for public inspection. The plan shall, at a minimum—</P>
            <P>(1) Identify physical obstacles in the agency's facilities that limit the accessibility of its programs or activities to individuals with handicaps;</P>
            <P>(2) Describe in detail the methods that will be used to make the facilities accessible;</P>
            <P>(3) Specify the schedule for taking the steps necessary to achieve compliance with this section and, if the time period of the transition plan is longer than one year, identify steps that will be taken during each year of the transition period; and</P>
            <P>(4) Indicate the official responsible for implementation of the plan.</P>
          </SECTION>
          <SECTION>
            <SECTNO>§ 16.151</SECTNO>
            <SUBJECT>Program accessibility: New construction and alterations.</SUBJECT>
            <P>Each building or part of a building that is constructed or altered by, on behalf of, or for the use of the agency shall be designed, constructed, or altered so as to be readily accessible to and usable by individuals with handicaps. The definitions, requirements, and standards of the Architectural Barriers Act (42 U.S.C. 4151-4157), as established in 41 CFR 101-19.600 to 101-19.607, apply to buildings covered by this section.</P>
          </SECTION>
          <SECTION>
            <SECTNO>§§ 16.152-16.159</SECTNO>
            <RESERVED>[Reserved]</RESERVED>
          </SECTION>
          <SECTION>
            <SECTNO>§ 16.160</SECTNO>
            <SUBJECT>Communications.</SUBJECT>
            <P>(a) The agency shall take appropriate steps to ensure effective communication with applicants, participants, personnel of other Federal entities, and members of the public.</P>
            <P>(1) The agency shall furnish appropriate auxiliary aids where necessary to afford an individual with handicaps an equal opportunity to participate in, and enjoy the benefits of, a program or activity conducted by the agency.</P>
            <P>(i) In determining what type of auxiliary aid is necessary, the agency shall give primary consideration to the requests of the individual with handicaps.</P>
            <P>(ii) The agency need not provide individually prescribed devices, readers for personal use or study, or other devices of a personal nature.</P>
            <P>(2) Where the agency communicates with applicants and beneficiaries by telephone, telecommunication devices for deaf persons (TDD's) or equally effective telecommunication systems shall be used to communicate with persons with impaired hearing.</P>
            <P>(b) The agency shall ensure that interested persons, including persons with impaired vision or hearing, can obtain information as to the existence and location of accessible services, activities, and facilities.</P>
            <P>(c) The agency shall provide signage at a primary entrance to each of its inaccessible facilities, directing users to a location at which they can obtain information about accessible facilities. The international symbol for accessibility shall be used at each primary entrance of an accessible facility.</P>

            <P>(d) This section does not require the agency to take any action that it can demonstrate would result in a fundamental alteration in the nature of a program or activity or in undue financial and administrative burdens. In those circumstances where agency personnel believe that the proposed action would fundamentally alter the program or activity or would result in undue financial and administrative burdens, the agency has the burden of proving that compliance with § 16.160 would result in such alteration or burdens. The decision that compliance would result in such alteration or burdens must be made by the agency head or his or her designee after considering all agency resources available for use in the funding and operation of the conducted program or activity and must be accompanied by a written statement of the reasons for reaching that conclusion. If <PRTPAGE P="188"/>an action required to comply with this section would result in such an alteration or such burdens, the agency shall take any other action that would notresult in such an alteration or such burdens but would nevertheless ensure that, to the maximum extent possible, individuals with handicaps receive the benefits and services of the program or activity.</P>
          </SECTION>
          <SECTION>
            <SECTNO>§§ 16.161-16.169</SECTNO>
            <RESERVED>[Reserved]</RESERVED>
          </SECTION>
          <SECTION>
            <SECTNO>§ 16.170</SECTNO>
            <SUBJECT>Compliance procedures.</SUBJECT>
            <P>(a) Except as provided in paragraph (b) of this section, this section applies to all allegations of discrimination on the basis of handicap in programs and activities conducted by the agency.</P>
            <P>(b) The agency shall process complaints alleging violations of section 504 with respect to employment according to the procedures established by the Equal Employment Opportunity Commission in 29 CFR part 1613 pursuant to section 501 of the Rehabilitation Act of 1973 (29 U.S.C. 791).</P>
            <P>(c) The Director of Personnel shall be responsible for coordinating implementation of this section. Complaints may be sent to Director of Personnel, Room 810, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472.</P>
            <P>(d) The agency shall accept and investigate all complete complaints for which it has jurisdiction. All complete complaints must be filed within 180 days of the alleged act of discrimination. The agency may extend this time period for good cause.</P>
            <P>(e) If the agency receives a complaint over which it does not have jurisdiction, it shall promptly notify the complainant and shall make reasonable efforts to refer the complaint to the appropriate Government entity.</P>
            <P>(f) The agency shall notify the Architectural and Transportation Barriers Compliance Board upon receipt of any complaint alleging that a building or facility that is subject to the Architectural Barriers Act of 1968, as amended (42 U.S.C. 4151-4157), is not readily accessible to and usable by individuals with handicaps.</P>
            <P>(g) Within 180 days of the receipt of a complete complaint for which it has jurisdiction, the agency shall notify the complainant of the results of the investigation in a letter containing—</P>
            <P>(1) Findings of fact and conclusions of law;</P>
            <P>(2) A description of a remedy for each violation found; and</P>
            <P>(3) A notice of the right to appeal.</P>
            <P>(h) Appeals of the findings of fact and conclusions of law or remedies must be filed by the complainant within 90 days of receipt from the agency of the letter required by paragraph (g) of this section. The agency may extend this time for good cause.</P>
            <P>(i) Timely appeals shall be accepted and processed by the head of the agency.</P>
            <P>(j) The head of the agency shall notify the complainant of the results of the appeal within 60 days of the receipt of the request. If the head of the agency determines that additional information is needed from the complainant, he or she shall have 60 days from the date of receipt of the additional information to make his or her determination on the appeal.</P>
            <P>(k) The time limits cited in paragraphs (g) and (j) of this section may be extended with the permission of the Assistant Attorney General.</P>
            <P>(l) The agency may delegate its authority for conducting complaint investigations to other Federal agencies, except that the authority for making the final determination may not be delegated to another agency.</P>
          </SECTION>
          <SECTION>
            <SECTNO>§§ 16.171-16.999</SECTNO>
            <RESERVED>[Reserved]</RESERVED>
          </SECTION>
        </PART>
        <PART>
          <EAR>Pt. 17</EAR>
          <HD SOURCE="HED">PART 17—GOVERNMENTWIDE DEBARMENT AND SUSPENSION (NONPROCUREMENT) AND GOVERNMENTWIDE REQUIREMENTS FOR DRUG-FREE WORKPLACE (GRANTS)</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart A—General</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>17.100</SECTNO>
              <SUBJECT>Purpose.</SUBJECT>
              <SECTNO>17.105</SECTNO>
              <SUBJECT>Definitions.</SUBJECT>
              <SECTNO>17.110</SECTNO>
              <SUBJECT>Coverage.</SUBJECT>
              <SECTNO>17.115</SECTNO>
              <SUBJECT>Policy.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart B—Effect of Action</HD>
              <SECTNO>17.200</SECTNO>
              <SUBJECT>Debarment or suspension.</SUBJECT>
              <SECTNO>17.205</SECTNO>
              <SUBJECT>Ineligible persons.</SUBJECT>
              <SECTNO>17.210</SECTNO>
              <SUBJECT>Voluntary exclusion.</SUBJECT>
              <SECTNO>17.215</SECTNO>
              <SUBJECT>Exception provision.<PRTPAGE P="189"/>
              </SUBJECT>
              <SECTNO>17.220</SECTNO>
              <SUBJECT>Continuation of covered transactions.</SUBJECT>
              <SECTNO>17.225</SECTNO>
              <SUBJECT>Failure to adhere to restrictions.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart C—Debarment</HD>
              <SECTNO>17.300</SECTNO>
              <SUBJECT>General.</SUBJECT>
              <SECTNO>17.305</SECTNO>
              <SUBJECT>Causes for debarment.</SUBJECT>
              <SECTNO>17.310</SECTNO>
              <SUBJECT>Procedures.</SUBJECT>
              <SECTNO>17.311</SECTNO>
              <SUBJECT>Investigation and referral.</SUBJECT>
              <SECTNO>17.312</SECTNO>
              <SUBJECT>Notice of proposed debarment.</SUBJECT>
              <SECTNO>17.313</SECTNO>
              <SUBJECT>Opportunity to contest proposed debarment.</SUBJECT>
              <SECTNO>17.314</SECTNO>
              <SUBJECT>Debarring official's decision.</SUBJECT>
              <SECTNO>17.315</SECTNO>
              <SUBJECT>Settlement and voluntary exclusion.</SUBJECT>
              <SECTNO>17.320</SECTNO>
              <SUBJECT>Period of debarment.</SUBJECT>
              <SECTNO>17.325</SECTNO>
              <SUBJECT>Scope of debarment.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart D—Suspension</HD>
              <SECTNO>17.400</SECTNO>
              <SUBJECT>General.</SUBJECT>
              <SECTNO>17.405</SECTNO>
              <SUBJECT>Causes for suspension.</SUBJECT>
              <SECTNO>17.410</SECTNO>
              <SUBJECT>Procedures.</SUBJECT>
              <SECTNO>17.411</SECTNO>
              <SUBJECT>Notice of suspension.</SUBJECT>
              <SECTNO>17.412</SECTNO>
              <SUBJECT>Opportunity to contest suspension.</SUBJECT>
              <SECTNO>17.413</SECTNO>
              <SUBJECT>Suspending official's decision.</SUBJECT>
              <SECTNO>17.415</SECTNO>
              <SUBJECT>Period of suspension.</SUBJECT>
              <SECTNO>17.420</SECTNO>
              <SUBJECT>Scope of suspension.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart E—Responsibilities of GSA, Agency and Participants</HD>
              <SECTNO>17.500</SECTNO>
              <SUBJECT>GSA responsibilities.</SUBJECT>
              <SECTNO>17.505</SECTNO>
              <SUBJECT>FEMA responsibilities.</SUBJECT>
              <SECTNO>17.510</SECTNO>
              <SUBJECT>Participants' responsibilities.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart F—Drug-Free Workplace Requirements (Grants)</HD>
              <SECTNO>17.600</SECTNO>
              <SUBJECT>Purpose.</SUBJECT>
              <SECTNO>17.605</SECTNO>
              <SUBJECT>Definitions.</SUBJECT>
              <SECTNO>17.610</SECTNO>
              <SUBJECT>Coverage.</SUBJECT>
              <SECTNO>17.615</SECTNO>
              <SUBJECT>Grounds for suspension of payments, suspension or termination of grants, or suspension or debarment.</SUBJECT>
              <SECTNO>17.620</SECTNO>
              <SUBJECT>Effect of violation.</SUBJECT>
              <SECTNO>17.625</SECTNO>
              <SUBJECT>Exception provision.</SUBJECT>
              <SECTNO>17.630</SECTNO>
              <SUBJECT>Certification requirements and procedures.</SUBJECT>
              <SECTNO>17.635</SECTNO>
              <SUBJECT>Reporting of and employee sanctions for convictions of criminal drug offenses.</SUBJECT>
              <APP>Appendix A to Part 17—Certification Regarding Debarment, Suspension, and Other Responsibility Matters—Primary Covered Transactions</APP>
              <APP>Appendix B to Part 17—Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion—Lower Tier Covered Transactions</APP>
              <APP>Appendix C to Part 17—Certification Regarding Drug-Free Workplace Requirements</APP>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>
            <P>41 U.S.C. 701 <E T="03">et seq.</E>; E.O. 12549, 51 FR 6370, 3 CFR, 1986 Comp., p. 189; E.O. 12689, 54 FR 34131, 3 CFR, 1989 Comp., p. 235.</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>53 FR 19199, and 19204, May 26, 1988, unless otherwise noted.</P>
          </SOURCE>
          <EDNOTE>
            <HD SOURCE="HED">Editorial Note:</HD>
            <P>For additional information, see related documents published at 50 FR 8953, Mar. 5, 1985; 52 FR 18768, May 19, 1987; and 52 FR 45667, Dec. 1, 1987.</P>
          </EDNOTE>
          <SUBPART>
            <HD SOURCE="HED">Subpart A—General</HD>
            <SECTION>
              <SECTNO>§ 17.100</SECTNO>
              <SUBJECT>Purpose.</SUBJECT>
              <P>(a) Executive Order (E.O.) 12549 provides that, to the extent permitted by law, Executive departments and agencies shall participate in a governmentwide system for nonprocurement debarment and suspension. A person who is debarred or suspended shall be excluded from Federal financial and nonfinancial assistance and benefits under Federal programs and activities. Debarment or suspension of a participant in a program by one agency shall have governmentwide effect.</P>
              <P>(b) These regulations implement section 3 of E.O. 12549 and the guidelines promulgated by the Office of Management and Budget under section 6 of the E.O. by:</P>
              <P>(1) Prescribing the programs and activities that are covered by the governmentwide system;</P>
              <P>(2) Prescribing the governmentwide criteria and governmentwide minimum due process procedures that each agency shall use;</P>
              <P>(3) Providing for the listing of debarred and suspended participants, participants declared ineligible (see definition of “ineligible” in § 17.105), and participants who have voluntarily excluded themselves from participation in covered transactions;</P>
              <P>(4) Setting forth the consequences of a debarment, suspension, determination of ineligibility, or voluntary exclusion; and</P>
              <P>(5) Offering such other guidance as necessary for the effective implementation and administration of the governmentwide system.</P>
              <P>(c) These regulations also implement Executive Order 12689 (3 CFR, 1989 Comp., p. 235) and 31 U.S.C. 6101 note (Public Law 103-355, sec. 2455, 108 Stat. 3327) by—</P>
              <P>(1) Providing for the inclusion in the <E T="03">List of Parties Excluded from Federal Procurement and Nonprocurement Programs</E> all persons proposed for debarment, debarred or suspended under the Federal Acquisition Regulation, 48 CFR <PRTPAGE P="190"/>Part 9, subpart 9.4; persons against which governmentwide exclusions havebeen entered under this part; and persons determined to be ineligible; and</P>
              <P>(2) Setting forth the consequences of a debarment, suspension, determination of ineligibility, or voluntary exclusion.</P>
              <P>(d) Although these regulations cover the listing of ineligible participants and the effect of such listing, they do not prescribe policies and procedures governing declarations of ineligibility.</P>
              <CITA>[60 FR 33040, 33061, June 26, 1995]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>§ 17.105</SECTNO>
              <SUBJECT>Definitions.</SUBJECT>
              <P>The following definitions apply to this part:</P>
              <P>
                <E T="03">Adequate evidence.</E> Information sufficient to support the reasonable belief that a particular act or omission has occurred.</P>
              <P>
                <E T="03">Affiliate.</E> Persons are affiliates of each other if, directly or indirectly, either one controls or has the power to control the other, <E T="03">or</E>, a third person controls or has the power to control both. Indicia of control include, but are not limited to: interlocking management or ownership, identity of interests among family members, shared facilities and equipment, common use of employees, or a business entity organized following the suspension or debarment of a person which has the same or similar management, ownership, or principal employees as the suspended, debarred, ineligible, or voluntarily excluded person.</P>
              <P>
                <E T="03">Agency.</E> Any executive department, military department or defense agency or other agency of the executive branch, excluding the independent regulatory agencies.</P>
              <P>
                <E T="03">Civil judgment.</E> The disposition of a civil action by any court of competent jurisdiction, whether entered by verdict, decision, settlement, stipulation, or otherwise creating a civil liability for the wrongful acts complained of; or a final determination of liability under the Program Fraud Civil Remedies Act of 1988 (31 U.S.C. 3801-12).</P>
              <P>
                <E T="03">Conviction.</E> A judgment or conviction of a criminal offense by any court of competent jurisdiction, whether entered upon a verdict or a plea, including a plea of nolo contendere.</P>
              <P>
                <E T="03">Debarment.</E> An action taken by a debarring official in accordance with these regulations to exclude a person from participating in covered transactions. A person so excluded is “debarred.”</P>
              <P>
                <E T="03">Debarring official.</E> An official authorized to impose debarment. The debarring official is either:</P>
              <P>The agency head, or</P>
              <P>An official designated by the agency head.</P>
              <P>
                <E T="03">Indictment.</E> Indictment for a criminal offense. An information or other filing by competent authority charging a criminal offense shall be given the same effect as an indictment.</P>
              <P>
                <E T="03">Ineligible.</E> Excluded from participation in Federal nonprocurement programs pursuant to a determination of ineligibility under statutory, executive order, or regulatory authority, other than Executive Order 12549 and its agency implementing regulations; for exemple, excluded pursuant to the Davis-Bacon Act and its implementing regulations, the equal employment opportunity acts and executive orders, or the environmental protection acts and executive orders. A person is ineligible where the determination of ineligibility affects such person's eligibility to participate in more than one covered transaction.</P>
              <P>
                <E T="03">Legal proceedings.</E> Any criminal proceeding or any civil judicial proceeding to which the Federal Government or a State or local government or quasi-governmental authority is a party. The term includes appeals from such proceedings.</P>
              <P>
                <E T="03">List of Parties Excluded from Federal Procurement and Nonprocurement Programs.</E> A list compiled, maintained and distributed by the General Services Administration (GSA) containing the names and other information about persons who have been debarred, suspended, or voluntarily excluded under Executive Orders 12549 and 12689 and these regulations or 48 CFR part 9, subpart 9.4, persons who have been proposed for debarment under 48 CFR part 9, subpart 9.4, and those persons who have been determined to be ineligible.</P>
              <P>
                <E T="03">Notice.</E> A written communication served in person or sent by certified mail, return receipt requested, or its equivalent, to the last known address <PRTPAGE P="191"/>of a party, its identified counsel, its agent for service of process, or any partner, officer, director, owner, orjoint venturer of the party. Notice, if undeliverable, shall be considered to have been received by the addressee five days after being properly sent to the last address known by the agency.</P>
              <P>
                <E T="03">Participant.</E> Any person who submits a proposal for, enters into, or reasonably may be expected to enter into a covered transaction. This term also includes any person who acts on behalf of or is authorized to commit a participant in a covered transaction as an agent or representative of another participant.</P>
              <P>
                <E T="03">Person.</E> Any individual, corporation, partnership, association, unit of government or legal entity, however organized, except: foreign governments or foreign governmental entities, public international organizations, foreign government owned (in whole or in part) or controlled entities, and entities consisting wholly or partially of foreign governments or foreign governmental entities.</P>
              <P>
                <E T="03">Preponderance of the evidence.</E> Proof by information that, compared with that opposing it, leads to the conclusion that the fact at issue is more probably true than not.</P>
              <P>
                <E T="03">Principal.</E> Officer, director, owner, partner, key employee, or other person within a participant with primary management or supervisory responsibilities; or a person who has a critical influence on or substantive control over a covered transaction, whether or not employed by the participant. Persons who have a critical influence on or substantive control over a covered transaction are:</P>
              <P>
                <E T="03">Principal investigators.</E> [Reserved]</P>
              <P>
                <E T="03">Proposal.</E> A solicited or unsolicited bid, application, request, invitation to consider or similar communication by or on behalf of a person seeking to participate or to receive a benefit, directly or indirectly, in or under a covered transaction.</P>
              <P>
                <E T="03">Respondent.</E> A person against whom a debarment or suspension action has been initiated.</P>
              <P>
                <E T="03">State.</E> Any of the States of the United States, the District of Columbia, the Commonwealth of Puerto Rico, any territory or possession of the United States, or any agency of a State, exclusive of institutions of higher education, hospitals, and units of local government. A State instrumentality will be considered part of the State government if it has a written determination from a State government that such State considers that instrumentality to be an agency of the State government.</P>
              <P>
                <E T="03">Suspending official.</E> An official authorized to impose suspension. The suspending official is either:</P>
              <P>The agency head, or</P>
              <P>An official designated by the agency head.</P>
              <P>
                <E T="03">Suspension.</E> An action taken by a suspending official in accordance with these regulations that immediately excludes a person from participating in covered transactions for a temporary period, pending completion of an investigation and such legal, debarment, or Program Fraud Civil Remedies Act proceedings as may ensue. A person so excluded is “suspended.”</P>
              <P>
                <E T="03">Voluntary exclusion or voluntarily excluded.</E> A status of nonparticipation or limited participation in covered transactions assumed by a person pursuant to the terms of a settlement.</P>
              <P>
                <E T="03">FEMA.</E> Federal Emergency Management Agency.</P>
              <CITA>[53 FR 19199, 19200, and 19204, May 26, 1988, as amended at 60 FR 33041, 33061, June 26, 1995]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>§ 17.110</SECTNO>
              <SUBJECT>Coverage.</SUBJECT>
              <P>(a) These regulations apply to all persons who have participated, are currently participating or may reasonably be expected to participate in transactions under Federal nonprocurement programs. For purposes of these regulations such transactions will be referred to as “covered transactions.”</P>
              <P>(1) <E T="03">Covered transaction.</E> For purposes of these regulations, a covered transaction is a primary covered transaction or a lower tier covered transaction. Covered transactions at any tier need not involve the transfer of Federal funds.</P>
              <P>(i) <E T="03">Primary covered transaction.</E> Except as noted in paragraph (a)(2) of this section, a primary covered transaction is <PRTPAGE P="192"/>any nonprocurement transaction between an agency and a person, regardless of type, including: grants, cooperative agreements, scholarships, fellowships, contracts of assistance, loans, loan guarantees, subsidies, insurance, payments for specified use, donationagreements and any other nonprocurement transactions between a Federal agency and a person. Primary covered transactions also include those transactions specially designated by the U.S. Department of Housing and Urban Development in such agency's regulations governing debarment and suspension.</P>
              <P>(ii) <E T="03">Lower tier covered transaction.</E> A lower tier covered transaction is:</P>
              <P>(A) Any transaction between a participant and a person other than a procurement contract for goods or services, regardless of type, under a primary covered transaction.</P>
              <P>(B) Any procurement contract for goods or services between a participant and a person, regardless of type, expected to equal or exceed the Federal procurement small purchase threshold fixed at 10 U.S.C. 2304(g) and 41 U.S.C. 253(g) (currently $25,000) under a primary covered transaction.</P>
              <P>(C) Any procurement contract for goods or services between a participant and a person under a covered transaction, regardless of amount, under which that person will have a critical influence on or substantive control over that covered transaction. Such persons are:</P>
              <P>(<E T="03">1</E>) Principal investigators.</P>
              <P>(<E T="03">2</E>) Providers of federally-required audit services.</P>
              <P>(2) <E T="03">Exceptions.</E> The following transactions are not covered:</P>
              <P>(i) Statutory entitlements or mandatory awards (but not subtier awards thereunder which are not themselves mandatory), including deposited funds insured by the Federal Government;</P>
              <P>(ii) Direct awards to foreign governments or public international organizations, or transactions with foreign governments or foreign governmental entities, public international organizations, foreign government owned (in whole or in part) or controlled entities, entities consisting wholly or partially of foreign governments or foreign governmental entities;</P>
              <P>(iii) Benefits to an individual as a personal entitlement without regard to the individual's present responsibility (but benefits received in an individual's business capacity are not excepted);</P>
              <P>(iv) Federal employment;</P>
              <P>(v) Transactions pursuant to national or agency-recognized emergencies or disasters;</P>
              <P>(vi) Incidental benefits derived from ordinary governmental operations; and</P>
              <P>(vii) Other transactions where the application of these regulations would be prohibited by law.</P>
              <P>(b) <E T="03">Relationship to other sections.</E> This section describes the types of transactions to which a debarment or suspension under the regulations will apply. Subpart B, “Effect of Action,” § 17.200, “Debarment or suspension,” sets forth the consequences of a debarment or suspension. Those consequences would obtain only with respect to participants and principals in the covered transactions and activities described in § 17.110(a). Sections 17.325, “Scope of debarment,” and 17.420, “Scope of suspension,” govern the extent to which a specific participant or organizational elements of a participant would be automatically included within a debarment or suspension action, and the conditions under which affiliates or persons associated with a participant may also be brought within the scope of the action.</P>
              <P>(c) <E T="03">Relationship to Federal procurement activities.</E> In accordance with E.O. 12689 and section 2455 of Public Law 103-355, any debarment, suspension, proposed debarment or other governmentwide exclusion initiated under the Federal Acquisition Regulation (FAR) on or after August 25, 1995 shall be recognized by and effective for Executive Branch agencies and participants as an exclusion under this regulation. Similarly, any debarment, suspension or other governmentwide exclusion initiated under this regulation on or after August 25, 1995 shall be recognized by and effective for those agencies as a debarment or suspension under the FAR.</P>
              <CITA>[53 FR 19199, and 19204, May 26, 1988, as amended at 60 FR 33041, 33061, June 26, 1995]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>§ 17.115</SECTNO>
              <SUBJECT>Policy.</SUBJECT>

              <P>(a) In order to protect the public interest, it is the policy of the Federal <PRTPAGE P="193"/>Government to conduct business only with responsible persons. Debarment and suspension are discretionary actions that, taken in accordance withExecutive Order 12549 and these regulations, are appropriate means to implement this policy.</P>
              <P>(b) Debarment and suspension are serious actions which shall be used only in the public interest and for the Federal Government's protection and not for purposes of punishment. Agencies may impose debarment or suspension for the causes and in accordance with the procedures set forth in these regulations.</P>
              <P>(c) When more than one agency has an interest in the proposed debarment or suspension of a person, consideration shall be given to designating one agency as the lead agency for making the decision. Agencies are encouraged to establish methods and procedures for coordinating their debarment or suspension actions.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart B—Effect of Action</HD>
            <SECTION>
              <SECTNO>§ 17.200</SECTNO>
              <SUBJECT>Debarment or suspension.</SUBJECT>
              <P>(a) <E T="03">Primary covered transactions.</E> Except to the extent prohibited by law, persons who are debarred or suspended shall be excluded from primary covered transactions as either participants or principals throughout the Executive Branch of the Federal Government for the period of their debarment, suspension, or the period they are proposed for debarment under 48 CFR part 9, subpart 9.4. Accordingly, no agency shall enter into primary covered transactions with such excluded persons during such period, except as permitted pursuant to § 17.215.</P>
              <P>(b) <E T="03">Lower tier covered transactions.</E> Except to the extent prohibited by law, persons who have been proposed for debarment under 48 CFR part 9, subpart 9.4, debarred or suspended shall be excluded from participating as either participants or principals in all lower tier covered transactions (see § 17.110(a)(1)(ii)) for the period of their exclusion.</P>
              <P>(c) <E T="03">Exceptions.</E> Debarment or suspension does not affect a person's eligibility for—</P>
              <P>(1) Statutory entitlements or mandatory awards (but not subtier awards thereunder which are not themselves mandatory), including deposited funds insured by the Federal Government;</P>
              <P>(2) Direct awards to foreign governments or public international organizations, or transactions with foreign governments or foreign governmental entities, public international organizations, foreign government owned (in whole or in part) or controlled entities, and entities consisting wholly or partially of foreign governments or foreign governmental entities;</P>
              <P>(3) Benefits to an individual as a personal entitlement without regard to the individual's present responsibility (but benefits received in an individual's business capacity are not excepted);</P>
              <P>(4) Federal employment;</P>
              <P>(5) Transactions pursuant to national or agency-recognized emergencies or disasters;</P>
              <P>(6) Incidental benefits derived from ordinary governmental operations; and</P>
              <P>(7) Other transactions where the application of these regulations would be prohibited by law.</P>
              <CITA>[60 FR 33041, 33061, June 26, 1995]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>§ 17.205</SECTNO>
              <SUBJECT>Ineligible persons.</SUBJECT>
              <P>Persons who are ineligible, as defined in § 17.105(i), are excluded in accordance with the applicable statutory, executive order, or regulatory authority.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 17.210</SECTNO>
              <SUBJECT>Voluntary exclusion.</SUBJECT>
              <P>Persons who accept voluntary exclusions under § 17.315 are excluded in accordance with the terms of their settlements. FEMA shall, and participants may, contact the original action agency to ascertain the extent of the exclusion.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 17.215</SECTNO>
              <SUBJECT>Exception provision.</SUBJECT>

              <P>FEMA may grant an exception permitting a debarred, suspended, or voluntarily excluded person, or a person proposed for debarment under 48 CFR part 9, subpart 9.4, to participate in a particular covered transaction upon a written determination by the agency head or an authorized designee stating the reason(s) for deviating from the <PRTPAGE P="194"/>Presidential policy established by Executive Order 12549 and § 17.200. However, in accordance with the President's stated intention in the Executive Order, exceptions shall be grantedonly infrequently. Exceptions shall be reported in accordance with § 17.505(a).</P>
              <CITA>[60 FR 33041, 33061, June 26, 1995]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>§ 17.220</SECTNO>
              <SUBJECT>Continuation of covered transactions.</SUBJECT>
              <P>(a) Notwithstanding the debarment, suspension, proposed debarment under 48 CFR part 9, subpart 9.4, determination of ineligibility, or voluntary exclusion of any person by an agency, agencies and participants may continue covered transactions in existence at the time the person was debarred, suspended, proposed for debarment under 48 CFR part 9, subpart 9.4, declared ineligible, or voluntarily excluded. A decision as to the type of termination action, if any, to be taken should be made only after thorough review to ensure the propriety of the proposed action.</P>
              <P>(b) Agencies and participants shall not renew or extend covered transactions (other than no-cost time extensions) with any person who is debarred, suspended, proposed for debarment under 48 CFR part 9, subpart 9.4, ineligible or voluntary excluded, except as provided in § 17.215.</P>
              <CITA>[60 FR 33041, 33061, June 26, 1995]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>§ 17.225</SECTNO>
              <SUBJECT>Failure to adhere to restrictions.</SUBJECT>
              <P>(a) Except as permitted under § 17.215 or § 17.220, a participant shall not knowingly do business under a covered transaction with a person who is—</P>
              <P>(1) Debarred or suspended;</P>
              <P>(2) Proposed for debarment under 48 CFR part 9, subpart 9.4; or</P>
              <P>(3) Ineligible for or voluntarily excluded from the covered transaction.</P>
              <P>(b) Violation of the restriction under paragraph (a) of this section may result in disallowance of costs, annulment or termination of award, issuance of a stop work order, debarment or suspension, or other remedies as appropriate.</P>
              <P>(c) A participant may rely upon the certification of a prospective participant in a lower tier covered transaction that it and its principals are not debarred, suspended, proposed for debarment under 48 CFR part 9, subpart 9.4, ineligible, or voluntarily excluded from the covered transaction (See Appendix B of these regulations), unless it knows that the certification is erroneous. An agency has the burden of proof that a participant did knowingly do business with a person that filed an erroneous certification.</P>
              <CITA>[60 FR 33041, 33061, June 26, 1995]</CITA>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart C—Debarment</HD>
            <SECTION>
              <SECTNO>§ 17.300</SECTNO>
              <SUBJECT>General.</SUBJECT>
              <P>The debarring official may debar a person for any of the causes in § 17.305, using procedures established in §§ 17.310 through 17.314. The existence of a cause for debarment, however, does not necessarily require that the person be debarred; the seriousness of the person's acts or omissions and any mitigating factors shall be considered in making any debarment decision.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 17.305</SECTNO>
              <SUBJECT>Causes for debarment.</SUBJECT>
              <P>Debarment may be imposed in accordance with the provisions of §§ 17.300 through 17.314 for:</P>
              <P>(a) Conviction of or civil judgment for:</P>
              <P>(1) Commission of fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a public or private agreement or transaction;</P>
              <P>(2) Violation of Federal or State antitrust statutes, including those proscribing price fixing between competitors, allocation of customers between competitors, and bid rigging;</P>
              <P>(3) Commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, receiving stolen property, making false claims, or obstruction of justice; or</P>
              <P>(4) Commission of any other offense indicating a lack of business integrity or business honesty that seriously and directly affects the present responsibility of a person.</P>

              <P>(b) Violation of the terms of a public agreement or transaction so serious as to affect the integrity of an agency program, such as:<PRTPAGE P="195"/>
              </P>
              <P>(1) A willful failure to perform in accordance with the terms of one or more public agreements or transactions;</P>
              <P>(2) A history of failure to perform or of unsatisfactory performance of one ormore public agreements or transactions; or</P>
              <P>(3) A willful violation of a statutory or regulatory provision or requirement applicable to a public agreement or transaction.</P>
              <P>(c) Any of the following causes:</P>
              <P>(1) A nonprocurement debarment by any Federal agency taken before October 1, 1988, the effective date of these regulations, or a procurement debarment by any Federal agency taken pursuant to 48 CFR subpart 9.4;</P>
              <P>(2) Knowingly doing business with a debarred, suspended, ineligible, or voluntarily excluded person, in connection with a covered transaction, except as permitted in § 17.215 or § 17.220;</P>
              <P>(3) Failure to pay a single substantial debt, or a number of outstanding debts (including disallowed costs and overpayments, but not including sums owed the Federal Government under the Internal Revenue Code) owed to any Federal agency or instrumentality, provided the debt is uncontested by the debtor or, if contested, provided that the debtor's legal and administrative remedies have been exhausted; or</P>
              <P>(4) Violation of a material provision of a voluntary exclusion agreement entered into under § 17.315 or of any settlement of a debarment or suspension action.</P>
              <P>(5) Violation of any requirement of subpart F of this part, relating to providing a drug-free workplace, as set forth in § 17.615 of this part.</P>
              <P>(d) Any other cause of so serious or compelling a nature that it affects the present responsibility of a person.</P>
              <CITA>[53 FR 19199, and 19204, May 26, 1988, as amended at 54 FR 4963, Jan. 31, 1989]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>§ 17.310</SECTNO>
              <SUBJECT>Procedures.</SUBJECT>
              <P>FEMA shall process debarment actions as informally as practicable, consistent with the principles of fundamental fairness, using the procedures in §§ 17.311 through 17.314.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 17.311</SECTNO>
              <SUBJECT>Investigation and referral.</SUBJECT>
              <P>Information concerning the existence of a cause for debarment from any source shall be promptly reported, investigated, and referred, when appropriate, to the debarring official for consideration. After consideration, the debarring official may issue a notice of proposed debarment.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 17.312</SECTNO>
              <SUBJECT>Notice of proposed debarment.</SUBJECT>
              <P>A debarment proceeding shall be initiated by notice to the respondent advising:</P>
              <P>(a) That debarment is being considered;</P>
              <P>(b) Of the reasons for the proposed debarment in terms sufficient to put the respondent on notice of the conduct or transaction(s) upon which it is based;</P>
              <P>(c) Of the cause(s) relied upon under § 17.305 for proposing debarment;</P>
              <P>(d) Of the provisions of §§ 17.311 through 17.314, and any other FEMA procedures, if applicable, governing debarment decisionmaking; and</P>
              <P>(e) Of the potential effect of a debarment.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 17.313</SECTNO>
              <SUBJECT>Opportunity to contest proposed debarment.</SUBJECT>
              <P>(a) <E T="03">Submission in opposition.</E> Within 30 days after receipt of the notice of proposed debarment, the respondent may submit, in person, in writing, or through a representative, information and argument in opposition to the proposed debarment.</P>
              <P>(b) <E T="03">Additional proceedings as to disputed material facts.</E> (1) In actions not based upon a conviction or civil judgment, if the debarring official finds that the respondent's submission in opposition raises a genuine dispute over facts material to the proposed debarment, respondent(s) shall be afforded an opportunity to appear with a representative, submit documentary evidence, present witnesses, and confront any witness the agency presents.</P>
              <P>(2) A transcribed record of any additional proceedings shall be made available at cost to the respondent, upon request, unless the respondent and the agency, by mutual agreement, waive the requirement for a transcript.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 17.314</SECTNO>
              <SUBJECT>Debarring official's decision.</SUBJECT>
              <P>(a) <E T="03">No additional proceedings necessary.</E> In actions based upon a conviction or civil judgment, or in which there is no <PRTPAGE P="196"/>genuine dispute over material facts,the debarring official shall make a decision on the basis of all the information in the administrative record, including any submission made by the respondent. The decision shall be made within 45 days after receipt of any information and argument submitted by the respondent, unless the debarring official extends this period for good cause.</P>
              <P>(b) <E T="03">Additional proceedings necessary.</E> (1) In actions in which additional proceedings are necessary to determine disputed material facts, written findings of fact shall be prepared. The debarring official shall base the decision on the facts as found, together with any information and argument submitted by the respondent and any other information in the administrative record.</P>
              <P>(2) The debarring official may refer disputed material facts to another official for findings of fact. The debarring official may reject any such findings, in whole or in part, only after specifically determining them to be arbitrary and capricious or clearly erroneous.</P>
              <P>(3) The debarring official's decision shall be made after the conclusion of the proceedings with respect to disputed facts.</P>
              <P>(c)(1) <E T="03">Standard of proof.</E> In any debarment action, the cause for debarment must be established by a preponderance of the evidence. Where the proposed debarment is based upon a conviction or civil judgment, the standard shall be deemed to have been met.</P>
              <P>(2) <E T="03">Burden of proof.</E> The burden of proof is on the agency proposing debarment.</P>
              <P>(d) <E T="03">Notice of debarring official's decision.</E> (1) If the debarring official decides to impose debarment, the respondent shall be given prompt notice:</P>
              <P>(i) Referring to the notice of proposed debarment;</P>
              <P>(ii) Specifying the reasons for debarment;</P>
              <P>(iii) Stating the period of debarment, including effective dates; and</P>
              <P>(iv) Advising that the debarment is effective for covered transactions throughout the executive branch of the Federal Government unless an agency head or an authorized designee makes the determination referred to in § 17.215.</P>
              <P>(2) If the debarring official decides not to impose debarment, the respondent shall be given prompt notice of that decision. A decision not to impose debarment shall be without prejudice to a subsequent imposition of debarment by any other agency.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 17.315</SECTNO>
              <SUBJECT>Settlement and voluntary exclusion.</SUBJECT>
              <P>(a) When in the best interest of the Government, FEMA may, at any time, settle a debarment or suspension action.</P>
              <P>(b) If a participant and the agency agree to a voluntary exclusion of the participant, such voluntary exclusion shall be entered on the Nonprocurement List (see subpart E).</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 17.320</SECTNO>
              <SUBJECT>Period of debarment.</SUBJECT>
              <P>(a) Debarment shall be for a period commensurate with the seriousness of the cause(s). If a suspension precedes a debarment, the suspension period shall be considered in determining the debarment period.</P>
              <P>(1) Debarment for causes other than those related to a violation of the requirements of subpart F of this part generally should not exceed three years. Where circumstances warrant, a longer period of debarment may be imposed.</P>

              <P>(2) In the case of a debarment for a violation of the requirements of subpart F of this part (<E T="03">see</E> 17.305(c)(5)), the period of debarment shall not exceed five years.</P>
              <CITA>[54 FR 4963, Jan. 31, 1989]</CITA>
            </SECTION>
            <SECTION>
              <SECTNO>§ 17.325</SECTNO>
              <SUBJECT>Scope of debarment.</SUBJECT>
              <P>(a) <E T="03">Scope in general.</E> (1) Debarment of a person under these regulations constitutes debarment of all its divisions and other organizational elements from all covered transactions, unless the debarment decision is limited by its terms to one or more specifically identified individuals, divisions or other organizational elements or to specific types of transactions.</P>

              <P>(2) The debarment action may include any affiliate of the participant that is specifically named and given notice of the proposed debarment and <PRTPAGE P="197"/>an opportunity to respond (see §§ 17.311 through 17.314).</P>
              <P>(b) <E T="03">Imputing conduct.</E> For purposes of determining the scope of debarment, conduct may be imputed as follows:</P>
              <P>(1) <E T="03">Conduct imputed to participant.</E> The fraudulent, criminal or other seriously improper conduct of any officer, director, shareholder, partner, employee, or other individual associated with a participant may be imputed to the participant when the conduct occurred in connection with the individual's performance of duties for or on behalf of the participant, or with the participant's knowledge, approval, or acquiescence. The participant's acceptance of the benefits derived from the conduct shall be evidence of such knowledge, approval, or acquiescence.</P>
              <P>(2) <E T="03">Conduct imputed to individuals associated with participant.</E> The fraudulent, criminal, or other seriously improper conduct of a participant may be imputed to any officer, director, shareholder, partner, employee, or other individual associated with the participant who participated in, knew of, or had reason to know of the participant's conduct.</P>
              <P>(3) <E T="03">Conduct of one participant imputed to other participants in a joint venture.</E> The fraudulent, criminal, or other seriously improper conduct of one participant in a joint venture, grant pursuant to a joint application, or similar arrangement may be imputed to other participants if the conduct occurred for or on behalf of the joint venture, grant pursuant to a joint application, or similar arrangement may be imputed to other participants if the conduct occurred for or on behalf of the joint venture, grant pursuant to a joint application, or similar arrangement or with the knowledge, approval, or acquiescence of these participants. Acceptance of the benefits derived from the conduct shall be evidence of such knowledge, approval, or acquiescence.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart D—Suspension</HD>
            <SECTION>
              <SECTNO>§ 17.400</SECTNO>
              <SUBJECT>General.</SUBJECT>
              <P>(a) The suspending official may suspend a person for any of the causes in § 17.405 using procedures established in §§ 17.410 through 17.413.</P>
              <P>(b) Suspension is a serious action to be imposed only when:</P>
              <P>(1) There exists adequate evidence of one or more of the causes set out in § 17.405, and</P>
              <P>(2) Immediate action is necessary to protect the public interest.</P>
              <P>(c) In assessing the adequacy of the evidence, the agency should consider how much information is available, how credible it is given the circumstances, whether or not important allegations are corroborated, and what inferences can reasonably be drawn as a result. This assessment should include an examination of basic documents such as grants, cooperative agreements, loan authorizations, and contracts.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 17.405</SECTNO>
              <SUBJECT>Causes for suspension.</SUBJECT>
              <P>(a) Suspension may be imposed in accordance with the provisions of §§ 17.400 through 17.413 upon adequate evidence:</P>
              <P>(1) To suspect the commission of an offense listed in § 17.305(a); or</P>
              <P>(2) That a cause for debarment under § 17.305 may exist.</P>
              <P>(b) Indictment shall constitute adequate evidence for purposes of suspension actions.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 17.410</SECTNO>
              <SUBJECT>Procedures.</SUBJECT>
              <P>(a) <E T="03">Investigation and referral.</E> Information concerning the existence of a cause for suspension from any source shall be promptly reported, investigated, and referred, when appropriate, to the suspending official for consideration. After consideration, the suspending official may issue a notice of suspension.</P>
              <P>(b) <E T="03">Decisionmaking process.</E> FEMA shall process suspension actions as informally as practicable, consistent with principles of fundamental fairness, using the procedures in § 17.411 through § 17.413.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 17.411</SECTNO>
              <SUBJECT>Notice of suspension.</SUBJECT>
              <P>When a respondent is suspended, notice shall immediately be given:</P>
              <P>(a) That suspension has been imposed;</P>

              <P>(b) That the suspension is based on an indictment, conviction, or other adequate evidence that the respondent has committed irregularities seriously reflecting on the propriety of further <PRTPAGE P="198"/>Federal Government dealings with the respondent;</P>
              <P>(c) Describing any such irregularities in terms sufficient to put the respondent on notice without disclosing the Federal Government's evidence;</P>
              <P>(d) Of the cause(s) relied upon under § 17.405 for imposing suspension;</P>
              <P>(e) That the suspension is for a temporary period pending the completion of an investigation or ensuing legal, debarment, or Program Fraud Civil Remedies Act proceedings;</P>
              <P>(f) Of the provisions of § 17.411 through § 17.413 and any other FEMA procedures, if applicable, governing suspension decisionmaking; and</P>
              <P>(g) Of the effect of the suspension.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 17.412</SECTNO>
              <SUBJECT>Opportunity to contest suspension.</SUBJECT>
              <P>(a) <E T="03">Submission in opposition.</E> Within 30 days after receipt of the notice of suspension, the respondent may submit, in person, in writing, or through a representative, information and argument in opposition to the suspension.</P>
              <P>(b) <E T="03">Additional proceedings as to disputed material facts.</E> (1) If the suspending official finds that the respondent's submission in opposition raises a genuine dispute over facts material to the suspension, respondent(s) shall be afforded an opportunity to appear with a representative, submit documentary evidence, present witnesses, and confront any witness the agency presents, unless:</P>
              <P>(i) The action is based on an indictment, conviction or civil judgment, or</P>
              <P>(ii) A determination is made, on the basis of Department of Justice advice, that the substantial interests of the Federal Government in pending or contemplated legal proceedings based on the same facts as the suspension would be prejudiced.</P>
              <P>(2) A transcribed record of any additional proceedings shall be prepared and made available at cost to the respondent, upon request, unless the respondent and the agency, by mutual agreement, waive the requirement for a transcript.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 17.413</SECTNO>
              <SUBJECT>Suspending official's decision.</SUBJECT>
              <P>The suspending official may modify or terminate the suspension (for example, see § 17.320(c) for reasons for reducing the period or scope of debarment) or may leave it in force. However, a decision to modify or terminate the suspension shall be without prejudice to the subsequent imposition of suspension by any other agency or debarment by any agency. The decision shall be rendered in accordance with the following provisions:</P>
              <P>(a) <E T="03">No additional proceedings necessary.</E> In actions: based on an indictment, conviction, or civil judgment; in which there is no genuine dispute over material facts; or in which additional proceedings to determine disputed material facts have been denied on the basis of Department of Justice advice, the suspending official shall make a decision on the basis of all the information in the administrative record, including any submission made by the respondent. The decision shall be made within 45 days after receipt of any information and argument submitted by the respondent, unless the suspending official extends this period for good cause.</P>
              <P>(b) <E T="03">Additional proceedings necessary.</E> (1) In actions in which additional proceedings are necessary to determine disputed material facts, written findings of fact shall be prepared. The suspending official shall base the decision on the facts as found, together with any information and argument submitted by the respondent and any other information in the administrative record.</P>
              <P>(2) The suspending official may refer matters involving disputed material facts to another official for findings of fact. The suspending official may reject any such findings, in whole or in part, only after specifically determining them to be arbitrary or capricious or clearly erroneous.</P>
              <P>(c) <E T="03">Notice of suspending official's decision.</E> Prompt written notice of the suspending official's decision shall be sent to the respondent.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 17.415</SECTNO>
              <SUBJECT>Period of suspension.</SUBJECT>

              <P>(a) Suspension shall be for a temporary period pending the completion of an investigation or ensuing legal, debarment, or Program Fraud Civil Remedies Act proceedings, unless terminated sooner by the suspending official or as provided in paragraph (b) of this section.<PRTPAGE P="199"/>
              </P>
              <P>(b) If legal or administrative proceedings are not initiated within 12 months after the date of the suspension notice,the suspension shall be terminated unless an Assistant Attorney General or United States Attorney requests its extension in writing, in which case it may be extended for an additional six months. In no event may a suspension extend beyond 18 months, unless such proceedings have been initiated within that period.</P>
              <P>(c) The suspending official shall notify the Department of Justice of an impending termination of a suspension, at least 30 days before the 12-month period expires, to give that Department an opportunity to request an extension.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 17.420</SECTNO>
              <SUBJECT>Scope of suspension.</SUBJECT>
              <P>The scope of a suspension is the same as the scope of a debarment (see § 17.325), except that the procedures of §§ 17.410 through 17.413 shall be used in imposing a suspension.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart E—Responsibilities of GSA, Agency and Participants</HD>
            <SECTION>
              <SECTNO>§ 17.500</SECTNO>
              <SUBJECT>GSA responsibilities.</SUBJECT>
              <P>(a) In accordance with the OMB guidelines, GSA shall compile, maintain, and distribute a list of all persons who have been debarred, suspended, or voluntarily excluded by agencies under Executive Order 12549 and these regulations, and those who have been determined to be ineligible.</P>
              <P>(b) At a minimum, this list shall indicate:</P>
              <P>(1) The names and addresses of all debarred, suspended, ineligible, and voluntarily excluded persons, in alphabetical order, with cross-references when more than one name is involved in a single action;</P>
              <P>(2) The type of action;</P>
              <P>(3) The cause for the action;</P>
              <P>(4) The scope of the action;</P>
              <P>(5) Any termination date for each listing; and</P>
              <P>(6) The agency and name and telephone number of the agency point of contact for the action.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 17.505</SECTNO>
              <SUBJECT>FEMA responsibilities.</SUBJECT>
              <P>(a) The agency shall provide GSA with current information concerning debarments, suspension, determinations of ineligibility, and voluntary exclusions it has taken. Until February 18, 1989, the agency shall also provide GSA and OMB with information concerning all transactions in which FEMA has granted exceptions under § 17.215 permitting participation by debarred, suspended, or voluntarily excluded persons.</P>
              <P>(b) Unless an alternative schedule is agreed to by GSA, the agency shall advise GSA of the information set forth in § 17.500(b) and of the exceptions granted under § 17.215 within five working days after taking such actions.</P>
              <P>(c) The agency shall direct inquiries concerning listed persons to the agency that took the action.</P>
              <P>(d) Agency officials shall check the Nonprocurement List before entering covered transactions to determine whether a participant in a primary transaction is debarred, suspended, ineligible, or voluntarily excluded (Tel. #).</P>
              <P>(e) Agency officials shall check the Nonprocurement List before approving principals or lower tier participants where agency approval of the principal or lower tier participant is required under the terms of the transaction, to determine whether such principals or participants are debarred, suspended, ineligible, or voluntarily excluded.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 17.510</SECTNO>
              <SUBJECT>Participants' responsibilities.</SUBJECT>
              <P>(a) <E T="03">Certification by participants in primary covered transactions.</E> Each participant shall submit the certification in appendix A to this part for it and its principals at the time the participant submits its proposal in connection with a primary covered transaction, except that States need only complete such certification as to their principals. Participants may decide the method and frequency by which they determine the eligibility of their principals. In addition, each participant may, but is not required to, check the Nonprocurement List for its principals (Tel. #). Adverse information on the certification will not necessarily result in denial of participation. However, the certification, and any additional information pertaining to the certification submitted by the participant, shall be <PRTPAGE P="200"/>considered in the administration of covered transactions.</P>
              <P>(b) <E T="03">Certification by participants in lower tier covered transactions.</E> (1) Eachparticipant shall require participants in lower tier covered transactions to include the certification in Appendix B to this part for it and its principals in any proposal submitted in connection with such lower tier covered transactions.</P>
              <P>(2) A participant may rely upon the certification of a prospective participant in a lower tier covered transaction that it and its principals are not debarred, suspended, ineligible, or voluntarily excluded from the covered transaction by any Federal agency, unless it knows that the certification is erroneous. Participants may decide the method and frequency by which they determine the eligiblity of their principals. In addition, a participant may, but is not required to, check the Nonprocurement List for its principals and for participants (Tel. #).</P>
              <P>(c) <E T="03">Changed circumstances regarding certification.</E> A participant shall provide immediate written notice to FEMA if at any time the participant learns that its certification was erroneous when submitted or has become erroneous by reason of changed circumstances. Participants in lower tier covered transactions shall provide the same updated notice to the participant to which it submitted its proposals.</P>
            </SECTION>
          </SUBPART>
          <SUBPART>
            <HD SOURCE="HED">Subpart F—Drug-Free Workplace Requirements (Grants)</HD>
            <SOURCE>
              <HD SOURCE="HED">Source:</HD>
              <P>55 FR 21702, May 25, 1990, unless otherwise noted.</P>
            </SOURCE>
            <SECTION>
              <SECTNO>§ 17.600</SECTNO>
              <SUBJECT>Purpose.</SUBJECT>
              <P>(a) The purpose of this subpart is to carry out the Drug-Free Workplace Act of 1988 by requiring that—</P>
              <P>(1) A grantee, other than an individual, shall certify to the agency that it will provide a drug-free workplace;</P>
              <P>(2) A grantee who is an individual shall certify to the agency that, as a condition of the grant, he or she will not engage in the unlawful manufacture, distribution, dispensing, possession or use of a controlled substance in conducting any activity with the grant.</P>
              <P>(b) Requirements implementing the Drug-Free Workplace Act of 1988 for contractors with the agency are found at 48 CFR subparts 9.4, 23.5, and 52.2.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 17.605</SECTNO>
              <SUBJECT>Definitions.</SUBJECT>
              <P>(a) Except as amended in this section, the definitions of § 17.105 apply to this subpart.</P>
              <P>(b) For purposes of this subpart—</P>
              <P>(1) <E T="03">Controlled substance</E> means a controlled substance in schedules I through V of the Controlled Substances Act (21 U.S.C. 812), and as further defined by regulation at 21 CFR 1308.11 through 1308.15;</P>
              <P>(2) <E T="03">Conviction</E> means a finding of guilt (including a plea of nolo contendere) or imposition of sentence, or both, by any judicial body charged with the responsibility to determine violations of the Federal or State criminal drug statutes;</P>
              <P>(3) <E T="03">Criminal drug statute</E> means a Federal or non-Federal criminal statute involving the manufacture, distribution, dispensing, use, or possession of any controlled substance;</P>
              <P>(4) <E T="03">Drug-free workplace</E> means a site for the performance of work done in connection with a specific grant at which employees of the grantee are prohibited from engaging in the unlawful manufacture, distribution, dispensing, possession, or use of a controlled substance;</P>
              <P>(5) <E T="03">Employee</E> means the employee of a grantee directly engaged in the performance of work under the grant, including:</P>
              <P>(i) All “direct charge” employees;</P>
              <P>(ii) All “indirect charge” employees, unless their impact or involvement is insignificant to the performance of the grant; and,</P>
              <P>(iii) Temporary personnel and consultants who are directly engaged in the performance of work under the grant and who are on the grantee's payroll.</P>

              <FP>This definition does not include workers not on the payroll of the grantee (e.g., volunteers, even if used to meet a matching requirement; consultants or independent contractors not on the payroll; or employees of subrecipients or subcontractors in covered workplaces);<PRTPAGE P="201"/>
              </FP>
              <P>(6) <E T="03">Federal agency</E> or <E T="03">agency</E> means any United States executive department, military department, government corporation, government controlled corporation, any other establishment in the executive branch (including the Executive Office of the President), or any independent regulatory agency;</P>
              <P>(7) <E T="03">Grant</E> means an award of financial assistance, including a cooperative agreement, in the form of money, or property in lieu of money, by a Federal agency directly to a grantee. The term grant includes block grant and entitlement grant programs, whether or not exempted from coverage under the grants management government-wide common rule on uniform administrative requirements for grants and cooperative agreements. The term does not include technical assistance that provides services instead of money, or other assistance in the form of loans, loan guarantees, interest subsidies, insurance, or direct appropriations; or any veterans' benefits to individuals, i.e., any benefit to veterans, their families, or survivors by virtue of the service of a veteran in the Armed Forces of the United States;</P>
              <P>(8) <E T="03">Grantee</E> means a person who applies for or receives a grant directly from a Federal agency (except another Federal agency);</P>
              <P>(9) <E T="03">Individual</E> means a natural person;</P>
              <P>(10) <E T="03">State</E> means any of the States of the United States, the District of Columbia, the Commonwealth of Puerto Rico, any territory or possession of the United States, or any agency of a State, exclusive of institutions of higher education, hospitals, and units of local government. A State instrumentality will be considered part of the State government if it has a written determination from a State government that such State considers the instrumentality to be an agency of the State government.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 17.610</SECTNO>
              <SUBJECT>Coverage.</SUBJECT>
              <P>(a) This subpart applies to any grantee of the agency.</P>
              <P>(b) This subpart applies to any grant, except where application of this subpart would be inconsistent with the international obligations of the United States or the laws or regulations of a foreign government. A determination of such inconsistency may be made only by the agency head or his/her designee.</P>
              <P>(c) The provisions of subparts A, B, C, D and E of this part apply to matters covered by this subpart, except where specifically modified by this subpart. In the event of any conflict between provisions of this subpart and other provisions of this part, the provisions of this subpart are deemed to control with respect to the implementation of drug-free workplace requirements concerning grants.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 17.615</SECTNO>
              <SUBJECT>Grounds for suspension of payments, suspension or termination of grants, or suspension or debarment.</SUBJECT>
              <P>A grantee shall be deemed in violation of the requirements of this subpart if the agency head or his or her official designee determines, in writing, that—</P>
              <P>(a) The grantee has made a false certification under § 17.630;</P>
              <P>(b) With respect to a grantee other than an individual—</P>
              <P>(1) The grantee has violated the certification by failing to carry out the requirements of subparagraphs (A.) (a)-(g) and/or (B.) of the certification (Alternate I to appendix C) or</P>
              <P>(2) Such a number of employees of the grantee have been convicted of violations of criminal drug statutes for violations occurring in the workplace as to indicate that the grantee has failed to make a good faith effort to provide a drug-free workplace.</P>
              <P>(c) With respect to a grantee who is an individual—</P>
              <P>(1) The grantee has violated the certification by failing to carry out its requirements (Alternate II to appendix C); or</P>
              <P>(2) The grantee is convicted of a criminal drug offense resulting from a violation occurring during the conduct of any grant activity.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 17.620</SECTNO>
              <SUBJECT>Effect of violation.</SUBJECT>

              <P>(a) In the event of a violation of this subpart as provided in § 17.615, and in accordance with applicable law, the grantee shall be subject to one or more of the following actions:<PRTPAGE P="202"/>
              </P>
              <P>(1) Suspension of payments under the grant;</P>
              <P>(2) Suspension or termination of the grant; and</P>
              <P>(3) Suspension or debarment of the grantee under the provisions of this part.</P>

              <P>(b) Upon issuance of any final decision under this part requiring debarment of a grantee, the debarred grantee shall be ineligible for award of any grant from any Federal agency for a period specified in the decision, not to exceed five years (<E T="03">see</E> § 17.320(a)(2) of this part).</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 17.625</SECTNO>
              <SUBJECT>Exception provision.</SUBJECT>
              <P>The agency head may waive with respect to a particular grant, in writing, a suspension of payments under a grant, suspension or termination of a grant, or suspension or debarment of a grantee if the agency head determines that such a waiver would be in the public interest. This exception authority cannot be delegated to any other official.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 17.630</SECTNO>
              <SUBJECT>Certification requirements and procedures.</SUBJECT>
              <P>(a)(1) As a prior condition of being awarded a grant, each grantee shall make the appropriate certification to the Federal agency providing the grant, as provided in appendix C to this part.</P>
              <P>(2) Grantees are not required to make a certification in order to continue receiving funds under a grant awarded before March 18, 1989, or under a no-cost time extension of such a grant. However, the grantee shall make a one-time drug-free workplace certification for a non-automatic continuation of such a grant made on or after March 18, 1989.</P>
              <P>(b) Except as provided in this section, all grantees shall make the required certification for each grant. For mandatory formula grants and entitlements that have no application process, grantees shall submit a one-time certification in order to continue receiving awards.</P>
              <P>(c) A grantee that is a State may elect to make one certification in each Federal fiscal year. States that previously submitted an annual certification are not required to make a certification for Fiscal Year 1990 until June 30, 1990. Except as provided in paragraph (d) of this section, this certification shall cover all grants to all State agencies from any Federal agency. The State shall retain the original of this statewide certification in its Governor's office and, prior to grant award, shall ensure that a copy is submitted individually with respect to each grant, unless the Federal agency has designated a central location for submission.</P>
              <P>(d)(1) The Governor of a State may exclude certain State agencies from the statewide certification and authorize these agencies to submit their own certifications to Federal agencies. The statewide certification shall name any State agencies so excluded.</P>
              <P>(2) A State agency to which the statewide certification does not apply, or a State agency in a State that does not have a statewide certification, may elect to make one certification in each Federal fiscal year. State agencies that previously submitted a State agency certification are not required to make a certification for Fiscal Year 1990 until June 30, 1990. The State agency shall retain the original of this State agency-wide certification in its central office and, prior to grant award, shall ensure that a copy is submitted individually with respect to each grant, unless the Federal agency designates a central location for submission.</P>
              <P>(3) When the work of a grant is done by more than one State agency, the certification of the State agency directly receiving the grant shall be deemed to certify compliance for all workplaces, including those located in other State agencies.</P>
              <P>(e)(1) For a grant of less than 30 days performance duration, grantees shall have this policy statement and program in place as soon as possible, but in any case by a date prior to the date on which performance is expected to be completed.</P>
              <P>(2) For a grant of 30 days or more performance duration, grantees shall have this policy statement and program in place within 30 days after award.</P>

              <P>(3) Where extraordinary circumstances warrant for a specific grant, the grant officer may determine a different date on which the policy <PRTPAGE P="203"/>statement and program shall be in place.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 17.635</SECTNO>
              <SUBJECT>Reporting of and employee sanctions for convictions of criminal drug offenses.</SUBJECT>
              <P>(a) When a grantee other than an individual is notified that an employee has been convicted for a violation of a criminal drug statute occurring in the workplace, it shall take the following actions:</P>
              <P>(1) Within 10 calendar days of receiving notice of the conviction, the grantee shall provide written notice, including the convicted employee's position title, to every grant officer, or other designee on whose grant activity the convicted employee was working, unless a Federal agency has designated a central point for the receipt of such notifications. Notification shall include the identification number(s) for each of the Federal agency's affected grants.</P>
              <P>(2) Within 30 calendar days of receiving notice of the conviction, the grantee shall do the following with respect to the employee who was convicted.</P>
              <P>(i) Take appropriate personnel action against the employee, up to and including termination, consistent with requirements of the Rehabilitation Act of 1973, as amended; or</P>
              <P>(ii) Require the employee to participate satisfactorily in a drug abuse assistance or rehabilitation program approved for such purposes by a Federal, State, or local health, law enforcement, or other appropriate agency.</P>
              <P>(b) A grantee who is an individual who is convicted for a violation of a criminal drug statute occurring during the conduct of any grant activity shall report the conviction, in writing, within 10 calendar days, to his or her Federal agency grant officer, or other designee, unless the Federal agency has designated a central point for the receipt of such notices. Notification shall include the identification number(s) for each of the Federal agency's affected grants.</P>
              <APPRO>(Approved by the Office of Management and Budget under control number 0991-0002)</APPRO>
            </SECTION>
            <APPENDIX>
              <EAR>Pt. 17, App. A</EAR>
              <HD SOURCE="HED">Appendix A to Part 17—Certification Regarding Debarment, Suspension, and Other Responsibility Matters—Primary Covered Transactions</HD>
              <HD SOURCE="HD1">Instructions for Certification</HD>
              <P>1. By signing and submitting this proposal, the prospective primary participant is providing the certification set out below.</P>
              <P>2. The inability of a person to provide the certification required below will not necessarily result in denial of participation in this covered transaction. The prospective participant shall submit an explanation of why it cannot provide the certification set out below. The certification or explanation will be considered in connection with the department or agency's determination whether to enter into this transaction. However, failure of the prospective primary participant to furnish a certification or an explanation shall disqualify such person from participation in this transaction.</P>
              <P>3. The certification in this clause is a material representation of fact upon which reliance was placed when the department or agency determined to enter into this transaction. If it is later determined that the prospective primary participant knowingly rendered an erroneous certification, in addition to other remedies available to the Federal Government, the department or agency may terminate this transaction for cause or default.</P>
              <P>4. The prospective primary participant shall provide immediate written notice to the department or agency to which this proposal is submitted if at any time the prospective primary participant learns that its certification was erroneous when submitted or has become erroneous by reason of changed circumstances.</P>
              <P>5. The terms <E T="03">covered transaction, debarred, suspended, ineligible, lower tier covered transaction, participant, person, primary covered transaction, principal, proposal, and voluntarily excluded</E>, as used in this clause, have the meanings set out in the Definitions and Coverage sections of the rules implementing Executive Order 12549. You may contact the department or agency to which this proposal is being submitted for assistance in obtaining a copy of those regulations.</P>

              <P>6. The prospective primary participant agrees by submitting this proposal that, should the proposed covered transaction be entered into, it shall not knowingly enter into any lower tier covered transaction with a person who is proposed for debarment under 48 CFR part 9, subpart 9.4, debarred, suspended, declared ineligible, or voluntarily excluded from participation in this covered <PRTPAGE P="204"/>transaction, unless authorized by the department or agency entering into this transaction.</P>
              <P>7. The prospective primary participant further agrees by submitting this proposal that it will include the clause titled “Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion-Lower Tier Covered Transaction,” provided by the department or agency entering into this covered transaction, without modification, in all lower tier covered transactions and in all solicitations for lower tier covered transactions.</P>
              <P>8. A participant in a covered transaction may rely upon a certification of a prospective participant in a lower tier covered transaction that it is not proposed for debarment under 48 CFR part 9, subpart 9.4, debarred, suspended, ineligible, or voluntarily excluded from the covered transaction, unless it knows that the certification is erroneous. A participant may decide the method and frequency by which it determines the eligibility of its principals. Each participant may, but is not required to, check the List of Parties Excluded from Federal Procurement and Nonprocurement Programs.</P>
              <P>9. Nothing contained in the foregoing shall be construed to require establishment of a system of records in order to render in good faith the certification required by this clause. The knowledge and information of a participant is not required to exceed that which is normally possessed by a prudent person in the ordinary course of business dealings.</P>
              <P>10. Except for transactions authorized under paragraph 6 of these instructions, if a participant in a covered transaction knowingly enters into a lower tier covered transaction with a person who is proposed for debarment under 48 CFR part 9, subpart 9.4, suspended, debarred, ineligible, or voluntarily excluded from participation in this transaction, in addition to other remedies available to the Federal Government, the department or agency may terminate this transaction for cause or default.</P>
              <HD SOURCE="HD1">Certification Regarding Debarment, Suspension, and Other Responsibility Matters—Primary Covered Transactions</HD>
              <P>(1) The prospective primary participant certifies to the best of its knowledge and belief, that it and its principals:</P>
              <P>(a) Are not presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded by any Federal department or agency;</P>
              <P>(b) Have not within a three-year period preceding this proposal been convicted of or had a civil judgment rendered against them for commission of fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a public (Federal, State or local) transaction or contract under a public transaction; violation of Federal or State antitrust statutes or commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, or receiving stolen property;</P>
              <P>(c) Are not presently indicted for or otherwise criminally or civilly charged by a governmental entity (Federal, State or local) with commission of any of the offenses enumerated in paragraph (1)(b) of this certification; and</P>
              <P>(d) Have not within a three-year period preceding this application/proposal had one or more public transactions (Federal, State or local) terminated for cause or default.</P>
              <P>(2) Where the prospective primary participant is unable to certify to any of the statements in this certification, such prospective participant shall attach an explanation to this proposal.</P>
              <CITA>[60 FR 33042, 33061, June 26, 1995]</CITA>
            </APPENDIX>
            <APPENDIX>
              <EAR>Pt. 17, App. B</EAR>
              <HD SOURCE="HED">Appendix B to Part 17—Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion—Lower Tier Covered Transactions</HD>
              <HD SOURCE="HD1">Instructions for Certification</HD>
              <P>1. By signing and submitting this proposal, the prospective lower tier participant is providing the certification set out below.</P>
              <P>2. The certification in this clause is a material representation of fact upon which reliance was placed when this transaction was entered into. If it is later determined that the prospective lower tier participant knowingly rendered an erroneous certification, in addition to other remedies available to the Federal Government the department or agency with which this transaction originated may pursue available remedies, including suspension and/or debarment.</P>
              <P>3. The prospective lower tier participant shall provide immediate written notice to the person to which this proposal is submitted if at any time the prospective lower tier participant learns that its certification was erroneous when submitted or had become erroneous by reason of changed circumstances.</P>
              <P>4. The terms <E T="03">covered transaction, debarred, suspended, ineligible, lower tier covered transaction, participant, person, primary covered transaction, principal, proposal,</E> and <E T="03">voluntarily excluded,</E> as used in this clause, have the meaning set out in the Definitions and Coverage sections of rules implementing Executive Order 12549. You may contact the person to which this proposal is submitted for assistance in obtaining a copy of those regulations.</P>

              <P>5. The prospective lower tier participant agrees by submitting this proposal that, <PRTPAGE P="205"/>should the proposed covered transaction beentered into, it shall not knowingly enter into any lower tier covered transaction with a person who is proposed for debarment under 48 CFR part 9, subpart 9.4, debarred, suspended, declared ineligible, or voluntarily excluded from participation in this covered transaction, unless authorized by the department or agency with which this transaction originated.</P>
              <P>6. The prospective lower tier participant further agrees by submitting this proposal that it will include this clause titled “Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion-Lower Tier Covered Transaction,” without modification, in all lower tier covered transactions and in all solicitations for lower tier covered transactions.</P>
              <P>7. A participant in a covered transaction may rely upon a certification of a prospective participant in a lower tier covered transaction that it is not proposed for debarment under 48 CFR part 9, subpart 9.4, debarred, suspended, ineligible, or voluntarily excluded from covered transactions, unless it knows that the certification is erroneous. A participant may decide the method and frequency by which it determines the eligibility of its principals. Each participant may, but is not required to, check the List of Parties Excluded from Federal Procurement and Nonprocurement Programs.</P>
              <P>8. Nothing contained in the foregoing shall be construed to require establishment of a system of records in order to render in good faith the certification required by this clause. The knowledge and information of a participant is not required to exceed that which is normally possessed by a prudent person in the ordinary course of business dealings.</P>
              <P>9. Except for transactions authorized under paragraph 5 of these instructions, if a participant in a covered transaction knowingly enters into a lower tier covered transaction with a person who is proposed for debarment under 48 CFR part 9, subpart 9.4, suspended, debarred, ineligible, or voluntarily excluded from participation in this transaction, in addition to other remedies available to the Federal Government, the department or agency with which this transaction originated may pursue available remedies, including suspension and/or debarment.</P>
              <HD SOURCE="HD2">Certification Regarding Debarment, Suspension, Ineligibility an Voluntary Exclusion—Lower Tier Covered Transactions</HD>
              <P>(1) The prospective lower tier participant certifies, by submission of this proposal, that neither it nor its principals is presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participation in this transaction by any Federal department or agency.</P>
              <P>(2) Where the prospective lower tier participant is unable to certify to any of the statements in this certification, such prospective participant shall attach an explanation to this proposal.</P>
              <CITA>[60 FR 33042, 33061, June 26, 1995]</CITA>
            </APPENDIX>
            <APPENDIX>
              <EAR>Pt. 17, App. C</EAR>
              <HD SOURCE="HED">Appendix C to Part 17—Certification Regarding Drug-Free Workplace Requirements</HD>
              <HD SOURCE="HD1">Instructions for Certification</HD>
              <P>1. By signing and/or submitting this application or grant agreement, the grantee is providing the certification set out below.</P>
              <P>2. The certification set out below is a material representation of fact upon which reliance is placed when the agency awards the grant. If it is later determined that the grantee knowingly rendered a false certification, or otherwise violates the requirements of the Drug-Free Workplace Act, the agency, in addition to any other remedies available to the Federal Government, may take action authorized under the Drug-Free Workplace Act.</P>
              <P>3. For grantees other than individuals, Alternate I applies.</P>
              <P>4. For grantees who are individuals, Alternate II applies.</P>
              <P>5. Workplaces under grants, for grantees other than individuals, need not be identified on the certification. If known, they may be identified in the grant application. If the grantee does not identify the workplaces at the time of application, or upon award, if there is no application, the grantee must keep the identity of the workplace(s) on file in its office and make the information available for Federal inspection. Failure to identify all known workplaces constitutes a violation of the grantee's drug-free workplace requirements.</P>
              <P>6. Workplace identifications must include the actual address of buildings (or parts of buildings) or other sites where work under the grant takes place. Categorical descriptions may be used (e.g., all vehicles of a mass transit authority or State highway department while in operation, State employees in each local unemployment office, performers in concert halls or radio studios).</P>
              <P>7. If the workplace identified to the agency changes during the performance of the grant, the grantee shall inform the agency of the change(s), if it previously identified the workplaces in question (see paragraph five).</P>
              <P>8. Definitions of terms in the Nonprocurement Suspension and Debarment common rule and Drug-Free Workplace common rule apply to this certification. Grantees' attention is called, in particular, to the following definitions from these rules:</P>
              <P>
                <E T="03">Controlled substance</E> means a controlled substance in Schedules I through V of the Controlled Substances Act (21 U.S.C. 812) and <PRTPAGE P="206"/>as further defined by regulation (21 CFR 1308.11 through 1308.15);</P>
              <P>
                <E T="03">Conviction</E> means a finding of guilt (including a plea of nolo contendere) or imposition of sentence, or both, by any judicial body charged with the responsibility to determine violations of the Federal or State criminal drug statutes;</P>
              <P>
                <E T="03">Criminal drug statute</E> means a Federal or non-Federal criminal statute involving the manufacture, distribution, dispensing, use, or possession of any controlled substance;</P>
              <P>
                <E T="03">Employee</E> means the employee of a grantee directly engaged in the performance of work under a grant, including: (i) All “direct charge” employees; (ii) all “indirect charge” employees unless their impact or involvement is insignificant to the performance of the grant; and, (iii) temporary personnel and consultants who are directly engaged in the performance of work under the grant and who are on the grantee's payroll. This definition does not include workers not on the payroll of the grantee (e.g., volunteers, even if used to meet a matching requirement; consultants or independent contractors not on the grantee's payroll; or employees of subrecipients or subcontractors in covered workplaces).</P>
              <HD SOURCE="HD1">Certification Reqardinq Druq-Free Workplace Requirements</HD>
              <HD SOURCE="HD2">Alternate I. (Grantees Other Than Individuals)</HD>
              <P>A. The grantee certifies that it will or will continue to provide a drug-free workplace by:</P>
              <P>(a) Publishing a statement notifying employees that the unlawful manufacture, distribution, dispensing, possession, or use of a controlled substance is prohibited in the grantee's workplace and specifying the actions that will be taken against employees for violation of such prohibition;</P>
              <P>(b) Establishing an ongoing drug-free awareness program to inform employees about—</P>
              <P>(1) The dangers of drug abuse in the workplace;</P>
              <P>(2) The grantee's policy of maintaining a drug-free workplace;</P>
              <P>(3) Any available drug counseling, rehabilitation, and employee assistance programs; and</P>
              <P>(4) The penalties that may be imposed upon employees for drug abuse violations occurring in the workplace;</P>
              <P>(c) Making it a requirement that each employee to be engaged in the performance of the grant be given a copy of the statement required by paragraph (a);</P>
              <P>(d) Notifying the employee in the statement required by paragraph (a) that, as a condition of employment under the grant, the employee will—</P>
              <P>(1) Abide by the terms of the statement; and</P>
              <P>(2) Notify the employer in writing of his or her conviction for a violation of a criminal drug statute occurring in the workplace no later than five calendar days after such conviction;</P>
              <P>(e) Notifying the agency in writing, within ten calendar days after receiving notice under subparagraph (d)(2) from an employee or otherwise receiving actual notice of such conviction. Employers of convicted employees must provide notice, including position title, to every grant officer or other designee on whose grant activity the convicted employee was working, unless the Federal agency has designated a central point for the receipt of such notices. Notice shall include the identification number(s) of each affected grant;</P>
              <P>(f) Taking one of the following actions, within 30 calendar days of receiving notice under subparagraph (d)(2), with respect to any employee who is so convicted—</P>
              <P>(1) Taking appropriate personnel action against such an employee, up to and including termination, consistent with the requirements of the Rehabilitation Act of 1973, as amended; or</P>
              <P>(2) Requiring such employee to participate satisfactorily in a drug abuse assistance or rehabilitation program approved for such purposes by a Federal, State, or local health, law enforcement, or other appropriate agency;</P>
              <P>(g) Making a good faith effort to continue to maintain a drug-free workplace through implementation of paragraphs (a), (b), (c), (d), (e) and (f).</P>

              <P>B. The grantee may insert in the space provided below the site(s) for the performance of work done in connection with the specific grant:
              </P>

              <P>Place of Performance (Street address, city, county, state, zip code)
              </P>
              <FP SOURCE="FP-DASH"/>
              
              <FP SOURCE="FP-DASH"/>
              
              <FP SOURCE="FP-DASH"/>
              
              <FP>Check □ if there are workplaces on file that are not identified here.</FP>
              <HD SOURCE="HD1">Alternate II. (Grantees Who Are Individuals)</HD>
              <P>(a) The grantee certifies that, as a condition of the grant, he or she will not engage in the unlawful manufacture, distribution, dispensing, possession, or use of a controlled substance in conducting any activity with the grant;</P>

              <P>(b) If convicted of a criminal drug offense resulting from a violation occurring during the conduct of any grant activity, he or she will report the conviction, in writing, within 10 calendar days of the conviction, to every grant officer or other designee, unless the Federal agency designates a central point for the receipt of such notices. When notice is <PRTPAGE P="207"/>made to such a central point, it shall include the identification number(s) of each affected grant.</P>
              <CITA>[55 FR 21702, May 25, 1990]</CITA>
            </APPENDIX>
          </SUBPART>
        </PART>
        <PART>
          <EAR>Pt. 18</EAR>
          <HD SOURCE="HED">PART 18—NEW RESTRICTIONS ON LOBBYING</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart A—General</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>18.100</SECTNO>
              <SUBJECT>Conditions on use of funds.</SUBJECT>
              <SECTNO>18.105</SECTNO>
              <SUBJECT>Definitions.</SUBJECT>
              <SECTNO>18.110</SECTNO>
              <SUBJECT>Certification and disclosure.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart B—Activities by Own Employees</HD>
              <SECTNO>18.200</SECTNO>
              <SUBJECT>Agency and legislative liaison.</SUBJECT>
              <SECTNO>18.205</SECTNO>
              <SUBJECT>Professional and technical services.</SUBJECT>
              <SECTNO>18.210</SECTNO>
              <SUBJECT>Reporting.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart C—Activities by Other Than Own Employees</HD>
              <SECTNO>18.300</SECTNO>
              <SUBJECT>Professional and technical services.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart D—Penalties and Enforcement</HD>
              <SECTNO>18.400</SECTNO>
              <SUBJECT>Penalties.</SUBJECT>
              <SECTNO>18.405</SECTNO>
              <SUBJECT>Penalty procedures.</SUBJECT>
              <SECTNO>18.410</SECTNO>
              <SUBJECT>Enforcement.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart E—Exemptions</HD>
              <SECTNO>18.500</SECTNO>
              <SUBJECT>Secretary of Defense.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart F—Agency Reports</HD>
              <SECTNO>18.600</SECTNO>
              <SUBJECT>Semi-annual compilation.</SUBJECT>
              <SECTNO>18.605</SECTNO>
              <SUBJECT>Inspector General report.</SUBJECT>
              <APP>Appendix A to Part 18—Certification Regarding Lobbying</APP>
              <APP>Appendix B to Part 18—Disclosure Form To Report Lobbying</APP>
            </SUBPART>
          </CONTENTS>
          <AUTH>
            <HD SOURCE="HED">Authority:</HD>

            <P>Section 319, Public Law 101-121 (31 U.S.C. 1352); 5 U.S.C. 551, 552, 553; 5 U.S.C. 601, <E T="03">et seq.;</E> E.O. 12291. Reorganization Plan No. 3 of 1978, E.O. 12127, E.O. 12148, E.O. 12657, E.O. 12699.</P>
          </AUTH>
          <SOURCE>
            <HD SOURCE="HED">Source:</HD>
            <P>55 FR 6737 and 6754, Feb. 26, 1990, unless otherwise noted.</P>
          </SOURCE>
          <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>
          <SUBPART>
            <HD SOURCE="HED">Subpart A—General</HD>
            <SECTION>
              <SECTNO>§ 18.100</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 <PRTPAGE P="208"/>Member of Congress in connection with that loan insurance or guarantee.</P>
            </SECTION>
            <SECTION>
              <SECTNO>§ 18.105</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.</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 <PRTPAGE P="209"/>normal compensation for such officeror 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 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>§ 18.110</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, unless such person previously filed a certification, and a disclosure form, if required, under paragraph (a) of this section.</P>
              <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,
                <PRTPAGE P="210"/>
              </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.</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>§ 18.200</SECTNO>
              <SUBJECT>Agency and legislative liaison.</SUBJECT>
              <P>(a) The prohibition on the use of appropriated funds, in § 18.100 (a), does not apply in the case of a payment of reasonable compensation made to an officer or employee of a person requesting or receiving a Federal contract, grant, loan, or cooperative agreement if the payment is for agency and legislative liaison activities not directly related to a covered Federal action.</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>§ 18.205</SECTNO>
              <SUBJECT>Professional and technical services.</SUBJECT>

              <P>(a) The prohibition on the use of appropriated funds, in § 18.100 (a), does not apply in the case of a payment of reasonable compensation made to an officer or employee of a person requesting or receiving a Federal contract, grant, loan, or cooperative agreement or an extension, continuation, renewal, <PRTPAGE P="211"/>amendment, or modification of a Federal contract, grant, loan, or cooperative agreement if payment is for professional or technical services rendered directly in the preparation, submission, or negotiation of any bid, proposal, or application for that Federal contract, grant, loan, or cooperative agreement or for meeting requirements imposed by or pursuant to law as a condition for receiving that Federal contract, grant, loan, or cooperative agreement.</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 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>§ 18.210</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>§ 18.300</SECTNO>
              <SUBJECT>Professional and technical services.</SUBJECT>
              <P>(a) The prohibition on the use of appropriated funds, in § 18.100 (a), does not apply in the case of any reasonable payment to a person, other than an officer or employee of a person requesting or receiving a covered Federal action, if the payment is for professional or technical services rendered directly in the preparation, submission, or negotiation of any bid, proposal, or application for that Federal contract, grant, loan, or cooperative agreement or for meeting requirements imposed by or pursuant to law as a condition for receiving that Federal contract, grant, loan, or cooperative agreement.</P>
              <P>(b) The reporting requirements in § 18.110 (a) and (b) regarding filing a disclosure form by each person, if required, shall not apply with respect to professional or technical services rendered directly in the preparation, submission, or negotiation of any commitment providing for the United States to insure or guarantee a loan.</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 <PRTPAGE P="212"/>contract is allowable. However, communications with the intent to influence made by a professional (such as a licensed lawyer) or a technical person (such as a licensed accountant) are not allowable under this section unless they provide advice and analysis directly applying their professional or technical expertise and unless the advice or analysis is rendered directly and solely in the preparation, submission or negotiation of a covered Federal action. Thus, for example, communications with the intent to influence made by a lawyer that do not provide legal advice or analysis directly and solely related to the legal aspects of his or her client's proposal, but generally advocate one proposal over another are not allowable under this section because the lawyer is not providing professional legal services. Similarly, communications with the intent to influence made by an engineer providing an engineering analysis prior to the preparation or submission of a bid or proposal are not allowable under this section since the engineer is providing technical services but not directly in the preparation, submission or negotiation of a covered Federal action.</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>§ 18.400</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>§ 18.405</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. 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>§ 18.410</SECTNO>
              <SUBJECT>Enforcement.</SUBJECT>

              <P>The head of each agency shall take such actions as are necessary to ensure <PRTPAGE P="213"/>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>§ 18.500</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>§ 18.600</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 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>§ 18.605</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.<PRTPAGE P="214"/>
              </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. 18, App. A</EAR>
              <HD SOURCE="HED">Appendix A to Part 18—Certification Regarding Lobbying</HD>
              <HD SOURCE="HD1">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 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="HD1">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="215"/>
              <EAR>Pt. 18, App. B</EAR>
              <HD SOURCE="HED">Appendix B to Part 18—Disclosure Form To Report Lobbying</HD>
              <GPH DEEP="470" SPAN="2">
                <GID>EC02FE91.075</GID>
              </GPH>
              <GPH DEEP="443" SPAN="2">
                <PRTPAGE P="216"/>
                <GID>EC02FE91.076</GID>
              </GPH>
              <GPH DEEP="468" SPAN="2">
                <PRTPAGE P="217"/>
                <GID>EC02FE91.077</GID>
              </GPH>
            </APPENDIX>
          </SUBPART>
        </PART>
        <PART>
          <PRTPAGE P="218"/>
          <EAR>Pt. 19</EAR>
          <HD SOURCE="HED">PART 19—NONDISCRIMINATION ON THE BASIS OF SEX IN EDUCATION PROGRAMS OR ACTIVITIES RECEIVING FEDERAL FINANCIAL ASSISTANCE</HD>
          <CONTENTS>
            <SUBPART>
              <HD SOURCE="HED">Subpart A—Introduction</HD>
              <SECHD>Sec.</SECHD>
              <SECTNO>19.100</SECTNO>
              <SUBJECT>Purpose and effective date.</SUBJECT>
              <SECTNO>19.105</SECTNO>
              <SUBJECT>Definitions.</SUBJECT>
              <SECTNO>19.110</SECTNO>
              <SUBJECT>Remedial and affirmative action and self-evaluation.</SUBJECT>
              <SECTNO>19.115</SECTNO>
              <SUBJECT>Assurance required.</SUBJECT>
              <SECTNO>19.120</SECTNO>
              <SUBJECT>Transfers of property.</SUBJECT>
              <SECTNO>19.125</SECTNO>
              <SUBJECT>Effect of other requirements.</SUBJECT>
              <SECTNO>19.130</SECTNO>
              <SUBJECT>Effect of employment opportunities.</SUBJECT>
              <SECTNO>19.135</SECTNO>
              <SUBJECT>Designation of responsible employee and adoption of grievance procedures.</SUBJECT>
              <SECTNO>19.140</SECTNO>
              <SUBJECT>Dissemination of policy.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart B—Coverage</HD>
              <SECTNO>19.200</SECTNO>
              <SUBJECT>Application.</SUBJECT>
              <SECTNO>19.205</SECTNO>
              <SUBJECT>Educational institutions and other entities controlled by religious organizations.</SUBJECT>
              <SECTNO>19.210</SECTNO>
              <SUBJECT>Military and merchant marine educational institutions.</SUBJECT>
              <SECTNO>19.215</SECTNO>
              <SUBJECT>Membership practices of certain organizations.</SUBJECT>
              <SECTNO>19.220</SECTNO>
              <SUBJECT>Admissions.</SUBJECT>
              <SECTNO>19.225</SECTNO>
              <SUBJECT>Educational institutions eligible to submit transition plans.</SUBJECT>
              <SECTNO>19.230</SECTNO>
              <SUBJECT>Transition plans.</SUBJECT>
              <SECTNO>19.235</SECTNO>
              <SUBJECT>Statutory amendments.</SUBJECT>
            </SUBPART>
            <SUBPART>
              <HD SOURCE="HED">Subpart C—Discrimination on the Basi