[Title 22 CFR ]
[Code of Federal Regulations (annual edition) - April 1, 2007 Edition]
[From the U.S. Government Printing Office]



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          22


          Part 300 to End

                         Revised as of April 1, 2007


          Foreign Relations
          



________________________

          Containing a codification of documents of general 
          applicability and future effect

          As of April 1, 2007
          With Ancillaries
                    Published by
                    Office of the Federal Register
                    National Archives and Records
                    Administration
                    A Special Edition of the Federal Register

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                            Table of Contents



                                                                    Page
  Explanation.................................................      vi

  Title 22:
          Chapter III--Peace Corps                                   3
          Chapter IV--International Joint Commission, United 
          States and Canada                                         67
          Chapter V--Broadcasting Board of Governors                77
          Chapter VII--Overseas Private Investment Corporation     201
          Chapter IX--Foreign Service Grievance Board              245
          Chapter X--Inter-American Foundation                     261
          Chapter XI--International Boundary and Water 
          Commission, United States and Mexico, United States 
          Section                                                  313
          Chapter XII--United States International Development 
          Cooperation Agency                                       351
          Chapter XIV--Foreign Service Labor Relations Board; 
          Federal Labor Relations Authority; General Counsel 
          of the Federal Labor Relations Authority; and the 
          Foreign Service Impasse Disputes Panel                   371
          Chapter XV--African Development Foundation               425
          Chapter XVI--Japan-United States Friendship 
          Commission                                               479
          Chapter XVII--United States Institute of Peace           489

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  Finding Aids:
      Table of CFR Titles and Chapters........................     501
      Alphabetical List of Agencies Appearing in the CFR......     519
      List of CFR Sections Affected...........................     529

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

                     Cite this Code: CFR
                     To cite the regulations in 
                       this volume use title, 
                       part and section number. 
                       Thus, 22 CFR 301.1 refers 
                       to title 22, part 301, 
                       section 1.

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

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                               EXPLANATION

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

Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1

    The appropriate revision date is printed on the cover of each 
volume.

LEGAL STATUS

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

HOW TO USE THE CODE OF FEDERAL REGULATIONS

    The Code of Federal Regulations is kept up to date by the individual 
issues of the Federal Register. These two publications must be used 
together to determine the latest version of any given rule.
    To determine whether a Code volume has been amended since its 
revision date (in this case, April 1, 2007), consult the ``List of CFR 
Sections Affected (LSA),'' which is issued monthly, and the ``Cumulative 
List of Parts Affected,'' which appears in the Reader Aids section of 
the daily Federal Register. These two lists will identify the Federal 
Register page number of the latest amendment of any given rule.

EFFECTIVE AND EXPIRATION DATES

    Each volume of the Code contains amendments published in the Federal 
Register since the last revision of that volume of the Code. Source 
citations for the regulations are referred to by volume number and page 
number of the Federal Register and date of publication. Publication 
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instances where the effective date is beyond the cut-off date for the 
Code a note has been inserted to reflect the future effective date. In 
those instances where a regulation published in the Federal Register 
states a date certain for expiration, an appropriate note will be 
inserted following the text.

OMB CONTROL NUMBERS

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

[[Page vii]]

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

OBSOLETE PROVISIONS

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

CFR INDEXES AND TABULAR GUIDES

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

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appearing in the Code of Federal Regulations.

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mail, gpoaccess@gpo.gov.

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

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

April 1, 2007.

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                               THIS TITLE

    Title 22--Foreign Relations is composed of two volumes. The first 
volume, Parts 1 to 299 contains Chapter I--Department of State 
regulations and Chapter II--Agency for International Development 
regulations. The second volume, Part 300 to End is composed of Chapter 
III--Peace Corps; Chapter IV--International Joint Commission, United 
States and Canada; Chapter V--Broadcasting Board of Governors; Chapter 
VII--Overseas Private Investment Corporation; Chapter IX--Foreign 
Service Grievance Board ; Chapter X--Inter-American Foundation; Chapter 
XI--International Boundary and Water Commission, United States and 
Mexico, United States Section; Chapter XII--United States International 
Development Cooperation Agency; Chapter XIV--Foreign Service Labor 
Relations Board; Federal Labor Relations Authority; General Counsel of 
the Federal Labor Relations Authority; and the Foreign Service Impasse 
Disputes Panel; Chapter XV--African Development Foundation; Chapter 
XVI--Japan-United States Friendship Commission; and Chapter XVII--United 
States Institute of Peace. The contents of these volumes represent all 
current regulations codified under this title of the CFR as of April 1, 
2007.

    For this volume, Robert J. Sheehan was Chief Editor. The Code of 
Federal Regulations publication program is under the direction of 
Frances D. McDonald, assisted by Ann Worley.


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                       TITLE 22--FOREIGN RELATIONS




                  (This book contains part 300 to End)

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

chapter iii--Peace Corps....................................         301

chapter iv--International Joint Commission, United States 
  and Canada................................................         401

chapter v--Broadcasting Board of Governors..................         501

chapter vii--Overseas Private Investment Corporation........         705

chapter ix--Foreign Service Grievance Board.................         901

chapter x--Inter-American Foundation........................        1001

chapter xi--International Boundary and Water Commission, 
  United States and Mexico, United States Section...........        1100

chapter xii--United States International Development 
  Cooperation Agency........................................        1201

chapter xiv--Foreign Service Labor Relations Board; Federal 
  Labor Relations Authority; General Counsel of the Federal 
  Labor Relations Authority; and the Foreign Service Impasse 
  Disputes Panel............................................        1411

chapter xv--African Development Foundation..................        1500

chapter xvi--Japan-United States Friendship Commission......        1600

chapter xvii--United States Institute of Peace..............        1701

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                        CHAPTER III--PEACE CORPS




  --------------------------------------------------------------------
Part                                                                Page
301             Public access to classified material........           5
303             Procedures for disclosure of information 
                    under the Freedom of Information Act....           5
304             Claims against Government under Federal Tort 
                    Claims Act..............................          16
305             Eligibility and standards for Peace Corps 
                    volunteer service.......................          20
306             Volunteer discrimination complaint procedure          22
308             Implementation of the Privacy Act of 1974...          22
309             Claims collection...........................          32
311             New restrictions on lobbying................          49
312             Governmentwide requirements for drug--free 
                    workplace (financial assistance)........          61

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PART 301_PUBLIC ACCESS TO CLASSIFIED MATERIAL--Table of Contents




Sec.
301.1 Introduction.
301.2 Requests for mandatory declassification review.
301.3 Action on requests for declassification review.

    Authority: E.O. 12356, 43 FR 14874 dated April 2, 1982.

    Source: 49 FR 13692, Apr. 6, 1984, unless otherwise noted.



Sec. 301.1  Introduction.

    The following regulations implement Executive Order 12356 and 
provide guidance for members of the public desiring a review for 
declassification of a document of the Peace Corps.



Sec. 301.2  Requests for mandatory declassification review.

    (a) All information originally classified by the Peace Corps shall 
be subject to review for declassification.
    (b) Requests for review of such information for declassification 
shall be in writing, addressed to the Peace Corps Director of Security, 
Peace Corps, Washington, DC 20526, and reasonably describe the 
information sought with sufficient specificity to enable its location 
with a reasonable amount of effort. Only requests made by a United 
States citizen or a permanent resident alien, a Federal agency or a 
State or local government will be considered.
    (c) Requests relating to information, either derivatively classified 
by the Peace Corps or originally classified by another agency but in the 
possession of the Peace Corps, shall be forwarded, together with a copy 
of the record, to the originating agency. The transmittal may contain in 
Peace Corps recommendation for action.



Sec. 301.3  Action on requests for declassification review.

    (a) The Director of Security shall present each request for 
declassification to the Peace Corps Classification Review Committee, 
which shall consist of the Associate Director for International 
Operations, the Associate Director for Management and the General 
Counsel, or their designees, together with his or her recommendation for 
action.
    (b) Every effort will be made to complete action on each request 
within 60 days of receipt thereof.
    (c) Information shall be declassified or downgraded as soon as 
national security considerations permit. If the Classification Review 
Committee determines that the material for which review is requested no 
longer requires this protection, it shall be declassified and made 
available to the requester unless withholding is otherwise authorized by 
law.
    (d) If the Peace Corps Classification Review Committee determines 
that requested information must remain classified, the requester shall 
be given prompt notice of the decision and, if possible, a brief 
explanation of why the information cannot be declassified.
    (e) The Peace Corps may refuse to confirm or deny the existence or 
non-existence of requested information whenever the fact of its 
existence or non-existence is itself classified under E.O. 12356.
    (f) A requester may appeal a refusal to declassify information to 
the Director of the Peace Corps, or the Director's designee. Appeals 
shall be in writing, addressed to the Director of the Peace Corps, 
Washington, DC 20526, and shall briefly state the reasons why the 
requester believes that the Peace Corps Classification Review Committee 
decision is in error. Appeals must be submitted within 30 days after 
receipt of notice of the Classification Review Committee decision. The 
decision of the Peace Corps Director, or designee, will be based on the 
entire record, and will be rendered in writing within 60 days after 
receipt of an appeal. The decision of the Director or Director's 
designee is the final Peace Corps action on a request.



PART 303_PROCEDURES FOR DISCLOSURE OF INFORMATION UNDER THE FREEDOM OF 

INFORMATION ACT--Table of Contents




Sec.
303.1 Purpose.
303.2 Definitions.
303.3 Policy.

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303.4 Records published in the Federal Register.
303.5 Public reading room.
303.6 Procedures for use of public reading room.
303.7 Index of records.
303.8 Requests for records.
303.9 Exemptions for withholding records.
303.10 Responsibilities and authorities.
303.11 Denials.
303.12 Appeals.
303.13 Fees.
303.14 Procedures for responding to a subpoena.

    Authority: 5 U.S.C. 552; 22 U.S.C. 2501, et. seq.; E.O. 12137, 44 FR 
29023, 3 CFR, 1979 Comp., p. 389; E.O. 12600, 52 FR 23781, 3 CFR, 1987 
Comp., p. 235.

    Source: 68 FR 66008, Nov. 25, 2003, unless otherwise noted.



Sec. 303.1  Purpose.

    This part sets out the rules and procedures the Peace Corps follows 
in making records available to the public under the Freedom of 
Information Act (FOIA).



Sec. 303.2  Definitions.

    As used in this part--
    (a) Commercial use request means a request from or on behalf of one 
who seeks information for a use or purpose that furthers the commercial, 
trade, or profit interests of the requester or the person on whose 
behalf the request is made. In determining whether a requester has made 
a commercial use request, the Peace Corps will look to the use to which 
a requester will put the documents requested. When the Peace Corps has 
reasonable cause to doubt the requester's stated use of the records 
sought, or where the use is not clear from the request itself, it will 
seek additional clarification before assigning the request to a 
category.
    (b) Duplication means the process of making a copy of a record 
requested pursuant to this part. Such copies can take the form of paper 
copy, microform, audio-visual materials, or machine readable electronic 
documents, among others.
    (c) Educational institution means a preschool, a public or private 
elementary or secondary school, an institution of undergraduate or 
graduate higher education, or an institution of professional or 
vocational education which operates a program or programs of scholarly 
research.
    (d) Non-commercial scientific institution means an institution that 
is not operated on a ``commercial'' basis 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.
    (e) OIG records means those records as defined generally in this 
section which originated with or are in the possession and control of 
the Office of Inspector General (OIG) of the Peace Corps which have been 
compiled for law enforcement, audit, and investigative functions and/or 
any other purpose authorized under the IG Act of 1978, as amended.
    (f) Records means books, papers, maps, photographs, or other 
documentary materials, regardless of whether the format is physical or 
electronic, made or received by the Peace Corps in connection with the 
transaction of Peace Corps' business and preserved by the Peace Corps as 
evidence of the organization, functions, policies, decisions, 
procedures, operations, or other activities of the Peace Corps, or 
because of the informational value of data in them. The term does not 
include, inter alia, books, magazines, or other materials acquired 
solely for library purpose, or that are otherwise publicly available.
    (g) Representative of the news media means any person actively 
gathering news for an entity that is organized and operated to publish 
or broadcast news to the public. The term ``news'' means information 
that is about current events or that would be of current interest to the 
public. Examples of news media entities include television or radio 
stations broadcasting to the public at large and publishers of 
periodicals (but only in those instances when 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. Moreover, as traditional methods of news 
delivery evolve (e.g., electronic dissemination of newspapers through 
telecommunications services), such alternative media would be included 
in

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this category. In the case of ``freelance'' journalists, they will 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.
    (h) Review means the process of examining a document located in 
response to a request to determine whether any portion of such document 
is exempt from disclosure. It also includes processing any such document 
for disclosure. Review does not include time spent resolving general 
legal or policy issues regarding the application of exemptions.
    (i) Search means the process of looking for and retrieving records 
that are responsive to a request for records. It includes page-by-page 
or line-by-line identification of material within documents and also 
includes reasonable efforts to locate and retrieve information from 
records maintained in electronic form or format. Searches may be 
conducted manually or by automated means and will be conducted in the 
most efficient and least expensive manner. If the Agency cannot identify 
the requested records after a 2 hour search, it can determine that the 
records were not adequately described and ask the requester to provide a 
more specific request.



Sec. 303.3  Policy.

    The Peace Corps will make its records concerning its operations, 
activities, and business available to the public consistent with the 
requirements of the FOIA. Records exempt from disclosure under the FOIA 
may be made available at the discretion of the Peace Corps.



Sec. 303.4  Records published in the Federal Register.

    The Peace Corps publishes its notices and substantive regulations in 
the Federal Register. It also publishes information on its basic 
structure and operations necessary to inform the public how to deal 
effectively with the Peace Corps in the United States Government Manual, 
a special publication of the Federal Register. The Peace Corps will make 
reasonable efforts to currently update such information, which includes 
information on Peace Corps' location and functions, and how the public 
may obtain information or forms, or make submittals or requests. The 
Peace Corps' published regulations are at 22 CFR Chapter III.



Sec. 303.5  Public reading room.

    (a) The Peace Corps will maintain a public reading room at its 
headquarters at 1111 20th Street, NW., Washington, DC 20526. This room 
will be supervised and will be open to the public during Peace Corps' 
regular business hours for inspecting and copying records described in 
paragraph (b) of this section.
    (b) Subject to the limitation stated in paragraph (c) of this 
section, the following records will be made available in the public 
reading room:
    (1) All final public opinions, including concurring and dissenting 
opinions, and orders issued in the adjudication of cases that involve 
the Peace Corps;
    (2) Statements of policy and interpretations adopted by the Peace 
Corps that are not published in the Federal Register;
    (3) Administrative staff manuals and instructions to the staff that 
affect the public;
    (4) Copies of records, regardless of form or format, released to any 
person in response to a public request for records which the Peace Corps 
determines are likely to become subject to subsequent requests for 
substantially the same records, and a general index of such records;
    (5) The index required by Sec. 303.7; and
    (6) Other records the Peace Corps has determined are of general 
interest to members of the public in understanding activities of the 
Peace Corps or in dealing with the Peace Corps in connection with those 
activities.
    (c) Certain records otherwise required by FOIA to be available in 
the public reading room may be exempt from mandatory disclosure pursuant 
to Sec. 552(b) of the FOIA. Such record will not be made available in 
the public reading room. Other records maintained in the public reading 
room may be edited by the deletion of identifying details concerning 
individuals to prevent a clearly unwarranted invasion of personal 
privacy. In such cases, the

[[Page 8]]

record shall have attached to it an explanation of the deletion. The 
extent of the deletion shall be indicated, unless doing so would harm an 
interest protected by the exemption under which the deletion is made. It 
technically feasible, the extent of the deletion shall be indicated at 
the place in the record where the deletion was made.
    (d) Electronic reading room. Records required by the FOIA to be 
maintain and made available in the public reading room created by the 
Peace Corps on or after November 1, 1996, shall be made available 
electronically.
    (e) Most electronic public reading room records will also be made 
available to the public on the Peace Corps Web site at http://
www.peacecorps.gov.



Sec. 303.6  Procedures for use of public reading room.

    Any member of the public may inspect or copy records described in 
Sec. 303.5(b) in the public reading room during regular business hours. 
Because it will sometimes be impossible to produce records or copies of 
records on short notice, a person who wishes to inspect or copy records 
shall arrange a time in advance, by telephone or letter request made to 
the Peace Corps FOIA Officer. Persons submitting request by telephone 
will be notified whether a written request would be advisable to aid in 
the identification and expeditious processing or the records sought. 
Written request should identify the records sought in the manner 
described in Sec. 303.8(b) and should request a specific date for 
inspecting the records. The requester will be advised as promptly as 
possible if, for any reason, it may not be possible to make the records 
sought available on the date requested.



Sec. 303.7  Index of records.

    The Peace Corps will maintain a current index identifying any matter 
within the scope of Sec. 303.4 or Sec. 303.5(b)(1) through (5). The 
index will be maintained and made available for public inspection and 
copying at the Peace Corps' headquarters in Washington, DC. The cost of 
a copy of the index will not exceed the standard charge for duplication 
set out in Sec. 303.13(e). The Peace Corps will also make the index 
available on its public Web site.



Sec. 303.8  Requests for records.

    (a) Except for records required by the FOIA to be published in the 
Federal Register or to be made available in the public reading room, 
Peace Corps records will be made promptly available, upon request, to 
any person in accordance with this section, unless it is determined that 
such records should be withheld and are exempt form mandatory disclosure 
under the FOIA.
    (b) Requests. Requests for records under this section shall be made 
in writing, shall include the signature of the requester, and the 
envelope and the letter shall be clearly marked ``Freedom of Information 
Request.'' No e-mail requests will be accepted. All such requested shall 
be addressed to the FOIA Officer. Requests by letter shall use the 
address given in Sec. 303.5(a). Any request not marked and addressed as 
specified in this paragraph will be so marked by Peace Corps personnel 
as soon as it is properly identified, and will be forwarded immediately 
to the FOIA Officer. A request improperly addressed will not be deemed 
to have been received for purposes of the time period set out in 
paragraph (h) of this section until it has been received by the FOIA 
Officer. Upon receipt of an improperly addressed request, the FOIA 
Officer shall notify the requester of the date on which the time period 
began. The request shall be stamped ``received'' on the date it is 
received by the FOIA Office.
    (c) A request must reasonably describe the records requested so that 
employees of the Peace Corps who are familiar with the subject area of 
the request are able, with a reasonable amount of effort, to determine 
which particular records are within the scope of the request. If it is 
determined that a request does not reasonably describe the records 
sought, the requester shall be so informed and provided an opportunity 
to confer with Peace Corps personnel in order to attempt to reformulate 
the request in a manner that will meet the needs of the requester and 
the requirements of this paragraph. If the Agency cannot identify the 
requested

[[Page 9]]

records after a 2 hour search, it can determine that the records were 
not adequately described and ask the requester to provide a more 
specific request.
    (d) To facilitate the location of records by the Peace Corps, a 
requester should try to provide the following kinds of information, if 
known;
    (1) The specific event or action to which the record refers;
    (2) The unit or program of the Peace Corps which may be responsible 
for or may have produced the record;
    (3) The date of the record or the date or period to which it refers 
or relates;
    (4) The type of record, such as an application, a particular form, a 
contract, or a report;
    (5) Personnel of the Peace Corps who may have prepared or have 
knowledge of the record; or
    (6) Citations to newspapers or publications which have referred to 
the record.
    (e) The Peace Corps is not required to create a record or to perform 
research to satisfy a request.
    (f) Any request for a waiver or reduction of fees should be included 
in the FOIA request, and any such request should indicate the grounds 
for a waiver or reduction of fees, as set out in Sec. 303.13(f). The 
Peace Corps shall respond to such request as promptly as possible.
    (g) Format. The Peace Corps will provide records in the form or 
format indicated by the requester to the extent such records are readily 
reproducible in the requested form or format.
    (h) Initial response/delays. (1) The FOIA Officer, upon request for 
any records made in accordance with this section, except in the case of 
a request for OIG records, shall make an initial determination of 
whether to comply with or deny such request and dispatch such 
determination to the requester within 20 business days after receipt of 
such request, except for unusual circumstances, in which case the time 
limit may be extended for up to 10 business days by written notice to 
the requester setting forth the reasons for such extension and the date 
on which a determination is expected to be dispatched.
    (2) If the FOIA Officer determines that a request or portion thereof 
is for OIG records, the FOIA Officer shall promptly refer the request or 
portion thereof to the OIG and send notice of such referral to the 
requester. In such case, the OIG FOIA Officer shall make an initial 
determination of whether to comply with or deny such request and 
dispatch such determination to the requester within 20 business days 
after receipt of such request, except for unusual circumstances, in 
which case the time limit may be extended for up to 10 business days by 
written notice to the requester setting forth the reasons for such 
extension and the date on which a determination is expected to be 
dispatched. If for any reason, a request for Agency information goes 
directly to the OIG rather than through the FOIA Officer, the OIG shall 
provide notice to the FOIA Officer of its receipt of the request. The 
FOIA Office and the OIG should normally consult with each other whenever 
they receive requests for the same or similar records.
    (3) Unusual circumstances. As used in this part, ``unusual 
circumstances'' are limited to the following, but only to the extent 
reasonably necessary for the proper processing of the particular 
request:
    (i) The need to search for and collect the requested records from 
components or locations that are separate from the office processing the 
request;
    (ii) The need to search for, collect, and appropriately examine a 
voluminous amount of separate and distinct records which are demanded in 
a single request; or
    (iii) The need for consultation, which shall be conducted with all 
practicable speed, with another agency or organization having a 
substantial interest in the determination of the request or among two or 
more components of the Peace Corps having a substantial subject matter 
interest therin.
    (i) If a request is particularly broad or complex so that it cannot 
be completed within the time periods stated in paragraph (h) of this 
section, the Peace Corps may ask the requester to narrow the request or 
agree to an additional delay.
    (j) When no determination can be dispatched within the applicable 
time

[[Page 10]]

limit, the FOIA Officer or the OIG FOIA Officer shall inform the 
requester of the reason for the delay, the date on which a determination 
may be expected to be dispatched, and the requester's right to treat the 
delay as a denial and to appeal to the Associate Director for the Office 
of Management or the Inspector General, in accordance with Sec. 303.12. 
If no determination has been dispatched by the end of the 20-day period, 
or the last extension thereof, the requester may deem the request 
denied, and exercise a right of appeal in accordance with Sec. 303.12. 
The FOIA Officer or the OIG FOIA Officer may ask the requester to forego 
an appeal until a determination is made.
    (k) After it has been determined that a request will be granted, the 
responsible official will act with due diligence in providing a prompt 
response.
    (l) Expedited treatment. (1) Requests and appeals will be taken out 
of order and given expedited treatment whenever the requester 
demonstrates a compelling need. A compelling need means:
    (i) Circumstances in which the lack of expedited treatment could 
reasonably be expected to pose an imminent threat to the life or 
physical safety of an individual;
    (ii) An urgency to inform the public about an actual or alleged 
Peace Corps or Federal government activity and the request is made by a 
person primarily engaged in disseminating information;
    (iii) The loss of substantial due process rights; or
    (iv) a matter of widespread and exceptional media interest in which 
there exist possible questions about the Peace Corps' or the Federal 
government's integrity which affect public confidence.
    (2) A request for expedited processing may be made at the time of 
the initial request for records or at any later time. For a prompt 
determination, a request for expedited processing must be properly 
addressed and marked and received by the Peace Corps pursuant to 
paragraph (b) of this section.
    (3) A requester who seeks expedited processing must submit a 
statement demonstrating a compelling need that is certified by the 
requester to be true and correct to the best of that person's knowledge 
and belief, explaining in detail the basis for requesting expedited 
processing.
    (4) Within ten business days of its receipt of a request for 
expedited processing, the FOIA Officer or the OIG FOIA Officer shall 
decide whether to grant the request and shall notify the requester of 
the decision. If a request for expedited treatment is granted, the 
request shall be given priority and shall be processed as soon as 
practicable. If a request for expedited processing is denied, any appeal 
of that decision shall be acted on expeditiously by the Peace Corps.
    (5) Appeals shall be made to the Associate Director for the Office 
of Management, who shall respond within 10 business days of receipt of 
the appeal.



Sec. 303.9  Exemptions for withholding records.

    (a) The Peace Corps may withhold a requested record from public 
disclosure only if the record fits within one or more of the following 
FOIA exemptions:
    (1) Matter specifically authorized under criteria established by an 
Executive Order to be kept secret in the interest of national defense or 
foreign policy and is in fact properly classified pursuant to such 
Executive Order;
    (2) Matter which is related solely to the internal personnel rules 
and practices of the Peace Corps;
    (3) Matter which is specifically exempted from disclosure by statute 
(other than exemptions under FOIA at 5 U.S.C. 552(b)), provided that 
such statute requires that the matter be withheld from the public in 
such a manner as to leave no discretion on the issue, or establishes 
particular criteria for withholding, or refers to particular types of 
matters to be withheld;
    (4) Trade secrets and commercial or financial information obtained 
from a person and privileged or confidential;
    (5) 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 Peace Corps;
    (6) Personnel and medical files and similar files, the disclosure of 
which would constitute a clearly unwarranted invasion of personal 
privacy;

[[Page 11]]

    (7) Records or information compiled for law enforcement purposes 
including enforcing the Peace Corps Act or any other law, but only to 
the extent that the production of such law enforcement records or 
information:
    (i) Could reasonably be expected to interfere with enforcement 
proceedings;
    (ii) Would deprive a person or a recipient of a right to a fair 
trial or an impartial adjudication;
    (iii) Could reasonably be expected to constitute an unwarranted 
invasion of personal privacy;
    (iv) 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, information furnished by a confidential source;
    (v) Would disclose techniques and procedures for law enforcement 
investigations or prosecutions, or would disclose guidelines for law 
enforcement investigations or prosecutions if such disclosure could 
reasonably be expected to risk circumvention of the law; or
    (vi) Could reasonably be expected to endanger the life or physical 
safety of any individual.
    (b) In the event that one or more of the above exemptions in 
paragraph (a) of this section apply, any reasonably segregable portion 
of a record shall be provided to the requester after deletion of the 
portions that are exempt. The amount of information deleted shall be 
indicated on the released portion of the record, unless doing so would 
harm the interest protected by the exemption under which the deletion is 
made. If technically feasible, the amount of information deleted shall 
be indicated at the place in the record where the deletion is made. At 
the discretion of the Peace Corps officials authorized to grant or deny 
a request for records, it may be possible to provide a requester with:
    (1) A summary of information in the exempt portion of a record; or
    (2) An oral description of the exempt portion of a record.
    (c) No requester shall have a right to insist that any or all of the 
techniques in paragraph (b) of this section should be employed in order 
to satisfy a request.
    (d) Records that may be exempt from disclosure pursuant to paragraph 
(a) of this section may be made available at the discretion of the Peace 
Corps.
    (e) Proprietary information. (1) It is the policy of the Peace Corps 
to withhold proprietary information that falls within the protection of 
paragraph (a)(4) of this section. Proprietary information includes trade 
secrets, or commercial or financial information obtained from a person, 
the disclosure of which could reasonably be expected to cause 
substantial competitive harm.
    (2) It is also the policy of the Peace Corps to give submitters of 
arguably proprietary information an adequate opportunity to provide 
information to the Peace Corps to establish that the information 
constitutes protected proprietary information.
    (3) A person submitting arguably proprietary information to the 
Peace Corps will be notified in writing by the Peace Corps if there is a 
FOIA request for the information, unless:
    (i) The Peace Corps has already decided that the information should 
be withheld;
    (ii) The information has been lawfully published or has been 
officially made available to the public; or
    (iii) Disclosure of the information is required by law.
    (4) The notice shall afford the submitter at least ten business days 
in which to object to the disclosure of any requested information. 
Whenever the Peace Corps provides such notice to the submitter, it shall 
also notify the requester that notice and an opportunity to comment are 
being provided to the submitter.
    (5) A submitter's request for protection for information under 
paragraph (a)(4) of this section shall:
    (i) Specifically identify the exact material claimed to be 
confidential proprietary information;
    (ii) State whether the information identified has ever been released 
to a

[[Page 12]]

person who is not in a confidential relationship with the submitter;
    (iii) State the basis for the submitter's belief that the 
information is not commonly known or readily ascertainable by outside 
persons; and
    (iv) State how release of the information would cause harm to the 
submitter's competitive position.
    (6) The Peace Corps shall consider the submitter's objections and 
specific grounds for non-disclosure when deciding whether to disclose 
the information. If the Peace Corps decides to disclose the information, 
it shall, to the extent permitted by law, provide the submitter at least 
ten business days notice of its decision before the information is 
disclosed and a statement of its reasons for not sustaining the 
objection to disclosure. Whenever the Peace Corps notifies the submitter 
of its final decision, it shall also notify the requester.
    (7) Whenever a FOIA requester brings suit seeking to compel 
disclosure of proprietary information, the Peace Corps shall promptly 
notify the submitter.

[68 FR 66008, Nov. 25, 2003; 69 FR 68695, Dec. 9, 2003]



Sec. 303.10  Responsibilities and authorities.

    (a) Legal counsel. The General Counsel shall furnish legal advice to 
Peace Corps officials and staff as to their obligations under this part 
and shall take such other actions as may be necessary or appropriate to 
assure a consistent and equitable application of the provisions of this 
part by and within the Peace Corps.
    (b) Authority to grant or deny requests. The FOIA Officer is 
authorized to grant or deny requests for records, except for OIG 
records, under this part. The OIG FOIA Officer is authorized to grant or 
deny requests for OIG records under this part. The FOIA Officer and the 
OIG FOIA Officer shall consult with each other when a request includes 
both Peace Corps and OIG records in order to ensure consistency and lack 
of duplication in processing the request.
    (c)(1) Records received from other agencies. When the Peace Corps 
receives a request for a record in its possession that it has received 
from another agency, it shall determine whether the other agency is 
better qualified to decide whether the record is exempt from disclosure 
and, if so, whether it should be disclosed as a matter of discretion. If 
the Peace Corps determines it is better qualified to process the record 
in response to the request, then it shall do so. If the Peace Corps 
determines it is not better qualified to process the request, it shall 
either:
    (i) Consult with the other agency before responding to the request; 
or
    (ii) Refer the responsibility for responding to the request for the 
record to the other agency (but only if the agency is subject to FOIA). 
Ordinarily, the agency that originated a record will be presumed to be 
best able to determine whether to disclose it.
    (2) Law enforcement and classified information. Notwithstanding 
paragraph (c)(1) of this section:
    (i) Whenever the Peace Corps receives a request for a record 
containing information that relates to an investigation of a possible 
violation of law that was originated by another agency, the Peace Corps 
will either consult with the other agency before responding or refer the 
responsibility for responding to the request to the other agency; and
    (ii) Whenever a request is made for a record containing information 
that has been classified by another agency or may be appropriate for 
classification under Executive Order 12958 or any other executive order 
concerning the classification of records, the Peace Corps shall refer 
the responsibility for responding to the request regarding that 
information to the agency that classified the information, should 
consider the information for classification, or has the primary interest 
in the information, as appropriate.
    (3) Notice of referral. Whenever the Peace Corps refers all or any 
part of the responsibility for responding to a request to another 
agency, it ordinarily shall notify the requester of the referral and 
inform the requester of the name of the agency to which the request has 
been referred and the part of the request that has been referred.
    (4) Effect of consultations and referrals on timing of response. All 
consultations and referrals will be handled according

[[Page 13]]

to the date the FOIA request was initially received by the Peace Corps.
    (5) Agreements with other agencies. The Peace Corps may make 
agreements with other agencies to eliminate the need for consultations 
or referrals for particular types of records.



Sec. 303.11  Denials.

    (a) A denial of a written request for a record that complies with 
the requirements of Sec. 303.8 shall be in writing and shall include, 
as applicable:
    (1) A reference to the applicable exemption or exemptions in Sec. 
303.9(a) upon which the denial is based;
    (2) An explanation of how the exemption applies to the requested 
records;
    (3) A statement explaining why it is deemed unreasonable to provide 
segregable portions of the record after deleting the exempt portions;
    (4) An estimate of the volume of requested matter denied unless 
providing such estimate would harm the interest protected by the 
exemption under which the denial is made, if other than the FOIA 
Officer;
    (5) The name and title of the person or persons responsible for 
denying the request, if other than the FOIA Officer; and
    (6) An explanation of the right to appeal the denial and the 
procedures for submitting an appeal, including the address of the 
official to whom appeals should be submitted.
    (b) A partial deletion of a record made available to a requester 
shall be deemed a denial of a record for purposes of paragraph (a) of 
this section. All denials shall be treated as final opinions under Sec. 
303.5(b).



Sec. 303.12  Appeals.

    (a) Any person whose written request has been denied is entitled to 
appeal the denial within 20 business days by writing to the Associate 
Director of the Office of Management or, in the case of a denial of a 
request for OIG Records, the Inspector General, at the address given in 
Sec. 303.5(a). The envelope and letter should be clearly marked 
``Freedom of Information Act Appeal.'' An appeal need not be in any 
particular form, but should adequately identify the denial, if possible, 
by describing the requested record, identifying the official who issued 
the denial, and providing the date on which the denial was issued.
    (b) The decision of the Associate Director for the Office of 
Management or the Inspector General on an appeal shall be in writing 
and, in the event the denial is in whole or in part upheld, shall 
contain an explanation responsive to the arguments advanced by the 
requester, the matters described in Sec. 303.11(a)(1) through (4), and 
the provisions for judicial review of such decision under section 
552(a)(4) of the FOIA. The decision shall be dispatched to the requester 
within 20 business days after receipt of the appeal, unless an 
additional period is justified pursuant to Sec. 303.8(i) and such 
period taken together with any earlier extension does not exceed 10 
business days. The decision by the Associate Director for the Office of 
Management or the Inspector General shall constitute the final action of 
the Peace Corps. All such decisions shall be treated as final opinions 
under Sec. 303.5(b).



Sec. 303.13  Fees.

    (a) For information routinely provided by the Peace Corps to the 
public in the normal course of doing business, such as informational or 
recruiting brochures, no fees will be charged.
    (b) For each a commercial use request, fees will be limited to 
reasonable standard charges for document search, review, and 
duplication.
    (c) For each request for records sought by a representative of the 
news media or by an educational or non-commercial scientific 
institution, fees shall be limited to reasonable standard charges for 
document duplication after the first 100 pages.
    (d) For all other requests, fees shall be limited to reasonable 
standard charges for search time after the first 2 hours and duplication 
after the first 100 pages.
    (e) The schedule of reasonable standard charges for services 
regarding the production or disclosure of the Peace Corps records is as 
follows:
    (1) Manual search and review of records: Salary rate of employee[s] 
performing the search and review plus 16%. Charges for search and review

[[Page 14]]

time less than a full hour will be billed by quarter-hour segments;
    (2) Computer time: Actual costs as incurred;
    (3) Duplication by paper copy: 10 cents per page;
    (4) Duplication by other methods: Actual costs as incurred;
    (5) Certification of true copies: $1.00 each;
    (6) Packing and mailing records: Actual costs as incurred; and
    (7) Special delivery or express mail: Actual charges as incurred.
    (f) Fee waivers: Fees will be waived or reduced below the fees 
established under paragraph (e) of this section if disclosure of the 
information is in the public interest because it is likely to contribute 
significantly to public understanding of the operations or activities of 
the Peace Corps or Federal government and is not primarily in the 
commercial interest of the requester.
    (1) In order to determine whether the disclosure of the information 
is in the public interest because it is likely to contribute 
significantly to public understanding of the operations or activities of 
the Federal government, the Peace Corps shall consider the following 
four criteria:
    (i) The subject of the request: Whether the subject of the requested 
records concerns the operations or activities of the Peace Corps or 
Federal government;
    (ii) The informative value of the information to be disclosed: 
Whether the disclosure is ``likely to contribute'' to an understanding 
of Peace Corps or Federal government operations or activities;
    (iii) The contribution to an understanding of the subject by the 
general public likely to result from disclosure: Whether disclosure of 
the requested information will contribute to ``public understanding;'' 
and
    (iv) The significance of the contribution to public understanding: 
Whether the disclosure is likely to contribute ``significantly'' to 
public understanding of Peace Corps or Federal government operations or 
activities.
    (2) In order to determine whether disclosure of the information is 
not primarily in the commercial interest of the requester, the Peace 
Corps shall consider the following two factors:
    (i) The existence and magnitude of a commercial interest: Whether 
the requester has a commercial interest that would be furthered by the 
requested disclosure; and if so,
    (ii) The primary interest in disclosure: Whether the magnitude of 
the identified commercial interest of the requester is sufficiently 
large, in comparison with the public interest in disclosure, that 
disclosure is ``primarily in the commercial interest of the requester.''
    (3) These fee waiver/reduction provisions will be subject to appeal 
in the same manner as appeals from denial under Sec. 303.12.
    (g) No fee will be charged under this section unless the cost of 
routine collection and processing of the fee payment is likely to exceed 
the average cost of processing a payment.
    (h) Requesters must agree to pay all fees charged for services 
associated with their requests. The Peace Corps will assume that 
requesters agree to pay all charges for services associated with their 
requests up to $25 unless otherwise indicated by the requester.
    (i) No requester will be required to make an advance payment of any 
fee unless:
    (1) The requester has previously failed to pay a required fee to 
another federal agency or to Peace Corps within 30 days of the date of 
billing, in which case an advance deposit of the full amount of the 
anticipated fee together with the fee then due plus interest accrued may 
be required. (The request will not be deemed to have been received by 
the Peace Corps until such payment is made.); or
    (2) The Peace Corps determines that an estimated fee will exceed 
$250, in which case the requester shall be notified of the amount of the 
anticipated fee or such portion thereof as can readily be estimated. 
Such notification shall be transmitted as soon as possible, but in any 
event within 5 business days of receipt of the request by the Peace 
Corps. The notification shall offer the requester the opportunity to 
confer with appropriate representatives of the Peace Corps for the 
purpose of reformulating the request so as to

[[Page 15]]

meet the needs of the requester at a reduced cost. The request will not 
be deemed to have been received by the Peace Corps for purposes of the 
initial 20-day response period until the requester makes a deposit on 
the fee in an amount determined by the Peace Corps.
    (j) Interest may be charged to those requesters who fail to pay the 
fees charged. Interest will be assessed on the amount billed, starting 
on the 31st day following the day on which the billing was sent. The 
rate charged will be as prescribed in 31 U.S.C. 3717.
    (k) The Agency is not required to process a request for a requester 
who has not paid FOIA fees owed to another Federal agency.
    (l) If the Peace Corps reasonably believes that a requester or group 
of requesters is attempting to break a request into a series of requests 
for the purpose of evading the assessment of fees, the Peace Corps shall 
aggregate such requests and charge accordingly. Likewise, the Peace 
Corps will aggregate multiple requests for documents received from the 
same requester within 45 business days.
    (m) The Peace Corps reserves the right to limit the number of copies 
of any document that will be provided to any one requester or to require 
that special arrangements for duplication be made in the case of bound 
volumes or other records representing unusual problems of handling or 
reproduction.



Sec. 303.14  Procedures for responding to a subpoena.

    (a) Purpose and scope. (1) This part sets forth the procedures to be 
followed in proceedings in which the Peace Corps is not a party, 
whenever a subpoena, order or other demand (collectively referred to as 
a ``demand'') of a court or other authority is issued for:
    (i) The production or disclosure of any material contained in the 
files of the Agency;
    (ii) The production or disclosure of any information relating to 
material contained in the files of the Agency;
    (iii) The production or disclosure of any information or material 
acquired by any person while such person was an employee of the Agency 
as a part of the performance of his official duties or because of his 
official status, or
    (iv) The production of an employee of the Agency for the deposition 
or an appearance as a witness in a legal action or proceeding.
    (2) For purposes of this part, the term ``employee of the Agency'' 
includes all officers and employees of the Agency appointed by, or 
subject to the supervision, jurisdiction or control of, the director of 
the Agency, including personal services contractors. Also for purposes 
of this part, records of the Agency do not include records of the Office 
of Inspector General.
    (3) This part is intended to provide instructions regarding the 
internal operations of the Agency, and is not intended, and does not and 
may not be relied upon, to create any right or benefit, substantive or 
procedural, enforceable at law by a party against the Agency.
    (4) This part applies to:
    (i) State and local court, administrative and legislative 
proceedings; and
    (ii) Federal court and administrative proceedings.
    (5) This part does not apply to:
    (i) Congressional requests or subpoenas for testimony or documents:
    (ii) Employees or former employees making appearances solely in 
their private capacity in legal or administrative proceedings that do 
not relate to the Agency (such as cases arising out of traffic accidents 
or domestic relations); Any questions whether the appearance relates 
solely to the employee's or former employee's private capacity should be 
referred to the Office of the General Counsel.
    (6) Nothing in this part otherwise permits disclosure of information 
by the Agency except as is provided by statute or other applicable law.
    (b) Procedure in the event of a demand for production or disclosure. 
(1) No employee or former employee of the Agency shall, in response to a 
demand of a court or other authority set forth in Sec. 303.14(a) 
produce any material, disclose any information or appear in any 
proceeding, described in Sec. 303.14(a) without the approval of the 
General Counsel or designee.
    (2) Whenever an employee or former employee of the Peace Corps 
receives a

[[Page 16]]

demand for the production of material or the disclosure of information 
described in Sec. 303.14(a) he shall immediately notify and provide a 
copy of the demand to the General Counsel or designee. The General 
Counsel, or designee, shall be furnished by the party causing the demand 
to be issued or served a written summary of the information sought, its 
relevance to the proceeding in connection with which it was served and 
why the information sought is unavailable by any other means or from any 
other sources.
    (3) The General Counsel, or designee, in consultation with 
appropriate Agency officials, including the Agency's FOIA Officer, or 
designee, and in light of the considerations listed in Sec. 303.14(d), 
will determine whether the person on whom the demand was served should 
respond to the demand.
    (4) To the extent he deems it necessary or appropriate, the General 
Counsel or designee, may also require from the party causing such demand 
to be issued or served a plan of all reasonably foreseeable demands, 
including but not limited to names of all employees and former employees 
from whom discovery will be sought, areas of inquiry, length of time of 
proceedings requiring oral testimony and identification of documents to 
be used or whose production is sought.
    (c) Considerations in determining whether production or disclosure 
should be made pursuant to a demand. (1) In deciding whether to make 
disclosures pursuant to a demand, the General Counsel or designee, may 
consider, among things:
    (i) Whether such disclosure is appropriate under the rules of 
procedure governing the case or matter in which the demand arose; and
    (ii) Whether disclosure is appropriate under the relevant 
substantive law concerning privilege.
    (2) Among the demands in response to which disclosure will not be 
made are those demands with respect to which any of the following 
factors exist:
    (i) Disclosure would violate a statute or a rule of procedure;
    (ii) Disclosure would violate the privacy rights of an individual;
    (iii) Disclosure would violate a specific regulation;
    (iv) Disclosure would reveal classified information, unless 
appropriately declassified by the originating agency;
    (v) Disclosure would reveal trade secrets or proprietary information 
without the owner's consent;
    (vi) Disclosure would otherwise adversely affect the interests of 
the United States or the Peace Corps; or
    (vii) Disclosure would impair an ongoing Inspector General or 
Department of Justice investigation.



PART 304_CLAIMS AGAINST GOVERNMENT UNDER FEDERAL TORT CLAIMS ACT--Table of 

Contents




                           General Provisions

Sec.
304.1 Scope; definitions.

                               Procedures

304.2 Administrative claim; when presented; appropriate Peace Corps 
          Office.
304.3 Administrative claim; who may file.
304.4 Administrative claim; evidence and information to be submitted.
304.5 Investigations.
304.6 Claims investigation.
304.7 Authority to adjust, determine, compromise, and settle claims.
304.8 Limitations on authority.
304.9 Referral to the Department of Justice.
304.10 Review of claim.
304.11 Final denial of claim.
304.12 Action on approved claim.

    Authority: 28 U.S.C. 2672; 22 U.S.C. 2503(b); E.O. 12137, as 
amended.

    Source: 34 FR 5840, Mar. 28, 1969, unless otherwise noted.

                           General Provisions



Sec. 304.1  Scope; definitions.

    (a) This subpart applies to claims asserted under the Federal Tort 
Claims Act, as amended, accruing on or after January 18, 1967, for money 
damages against the United States for injury to or loss of property or 
personal injury or death caused by the negligent or wrongful act or 
omission of an officer or employee of the Peace Corps, a person serving 
the Peace Corps under invitational travel orders, or a Peace Corps 
Volunteer or trainee while acting within the scope of his office or 
employment.

[[Page 17]]

    (b) This subpart is not applicable to claims arising in a foreign 
country; it is applicable to claims arising in Puerto Rico and the 
Virgin Islands.
    (c) This subpart is issued subject to and consistent with applicable 
regulations on administrative claims under the Federal Tort Claims Act 
issued by the Attorney General (28 CFR part 14).
    (d) For the purposes of this subpart, the term ``General Counsel'' 
means the General Counsel of the Peace Corps or his designee.

[34 FR 5840, Mar. 28, 1969, as amended at 72 FR 4205, Jan. 30, 2007]

                               Procedures



Sec. 304.2  Administrative claim; when presented; appropriate Peace Corps 

Office.

    (a) For purposes of this subpart, a claim shall be deemed to have 
been presented when the Peace Corps receives, at a place designated in 
paragraph (b) of this section, an executed ``Claim for Damages 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 the Peace Crops, but which was mistakenly addressed to 
or filed with another Federal agency, is deemed to have been presented 
to the Peace Corps as of the date that the claim is received by the 
Peace Corps. If a claim is mistakenly addressed to or filed with the 
Peace Corps, the Peace Corps shall forthwith transfer it to the 
appropriate Federal agency, if ascertainable, or return it to the 
claimant.
    (b) A claimant shall mail or deliver his claim to the General 
Counsel, Peace Corps, 1111 20th Street, NW., Washington, DC 20526.

[34 FR 5840, Mar. 28, 1969, as amended at 72 FR 4206, Jan. 30, 2007]



Sec. 304.3  Administrative claim; who may file.

    (a) A claim for injury to or loss of property may be presented by 
the owner of the property, his duly authorized agent, or his legal 
representative.
    (b) A claim for personal injury may be presented by the injured 
person, his duly authorized agent, or his legal representative.
    (c) A claim based on death may be presented by the executor or 
administrator of the decedent's estate, or by any other person legally 
entitled to assert such a claim in accordance with applicable State law.
    (d) A claim for loss wholly compensated by an insurer with the 
rights of a subrogee may be presented by the insurer. Claim for loss 
partially 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. Whenever an insurer presents a 
claim asserting the rights of a subrogee, he shall present with his 
claim appropriate evidence that he has the rights of a subrogee.
    (e) A claim presented by an agent or legal representative shall be 
presented in the name of the claimant, be signed by the agent or legal 
representative, show the title or legal capacity of the person signing, 
and be accompanied by evidence of his authority to present a claim on 
behalf of the claimant.



Sec. 304.4  Administrative claim; evidence and information to be submitted.

    (a) Personal injury. In support of a claim for personal injury, 
including pain and suffering, the claimant may be required to submit the 
following evidence or information:
    (1) A written report by his 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 or designated by 
the Peace Corps or another Federal agency. A copy of the report of the 
examining physician shall be made available to the claimant upon the 
claimant's written request provided that he has, upon request, furnished 
the report referred to in the first sentence of this paragraph and has 
made or agrees to make available to the Peace Corps any other

[[Page 18]]

physician's report previously or thereafter made of the physical or 
mental condition which is the subject matter of his claim.
    (2) Itemized bills for medical, dental, and hospital expenses 
incurred, or itemized receipts of payment for such expenses.
    (3) If the prognosis reveals the necessity for future treatment, a 
statement of expected expenses for such treatment.
    (4) If a claim is made for loss of time from employment, a written 
statement from his employer showing actual time lost from employment, 
whether he is a full-or part-time employee, and wages or salary actually 
lost;
    (5) If a claim is made for loss of income and the claimant is self-
employed, documentary evidence showing the amount of earnings actually 
lost.
    (6) Any other evidence or information which may have a bearing on 
either the responsibility of the United States for the personal injury 
or the damages claimed.
    (b) Death. In support of a claim based on death, the claimant may be 
required to submit the following evidence or information:
    (1) An authenticated death certificate or other competent evidence 
showing cause of death, date of death, and age of the decedent.
    (2) Decedent's employment or occupation at the time of death, 
including his monthly or yearly salary or earnings (if any), and the 
duration of his last employment or occupation.
    (3) Full names, addresses, birth dates, kinship, and marital status 
of decedent's survivors, including identification of those survivors who 
were dependent for support upon decedent at the time of his death.
    (4) Degree of support afforded by decedent to each survivor 
dependent upon him for support at the time of his death.
    (5) Decedent's general physical and mental condition before death.
    (6) Itemized bills for medical and burial expenses incurred by 
reason of the incident causing death, or itemized receipts of payment 
for such expenses.
    (7) If damages for pain and suffering prior to death are claimed, a 
physician's detailed statement specifying the injuries suffered, 
duration of pain and suffering, any drugs administered for pain, and 
decedent's physical condition in the interval between injury and death.
    (8) Any other evidence or information which may have a bearing on 
either the responsibility of the United States for the death or the 
damages claimed.
    (c) Property damage. In support of a claim for injury to or loss of 
property, real or personal, the claimant may be required to submit the 
following evidence or information.
    (1) Proof of ownership.
    (2) A detailed statement of the amount claimed with respect to each 
item of property.
    (3) Two or more itemized written estimates of the cost of such 
repairs and any itemized receipt of payment for necessary repairs.
    (4) A statement listing date of purchase, purchase price, and 
salvage value where repair is not economical.
    (5) Any other evidence or information which may have a bearing on 
either the responsibility of the United States for the injury to or loss 
of property or the damages claimed.



Sec. 304.5  Investigations.

    The Peace Corps may investigate, or the General Counsel may request 
any other Federal agency to investigate, a claim filed under this 
subpart.



Sec. 304.6  Claims investigation.

    (a) When a claim has been filed with the Peace Corps, the General 
Counsel will send a copy of the claim to the head of the office 
concerned and ask him to designate one employee of that office who shall 
act as, and who shall be referred to herein as, the Claims Investigating 
Officer for that particular claim. The Claims Investigating Officer 
shall, with the advice of the General Counsel, where necessary:
    (1) Investigate as completely as is practicable the nature and 
circumstances of the occurrence causing the loss or damage of the 
claimant's property.
    (2) Ascertain the extent of loss or damage to the claimant's 
property.
    (3) Assemble the necessary forms with required data contained 
therein.

[[Page 19]]

    (4) Prepare a brief statement setting forth the facts relative to 
the claim (in the case of motor vehicle accidents, facts should be 
recorded on Standard Form 91-A), a statement whether the claim satisfies 
the requirements of this subpart, and a recommendation as to the amount 
to be paid in settlement of the claim.
    (5) The head of the office concerned will be responsible for 
assuring that all necessary forms, statements, and all supporting papers 
have been procured for the file and will transmit the entire file to the 
General Counsel.



Sec. 304.7  Authority to adjust, determine, compromise, and settle claims.

    The authority to consider, ascertain, adjust, determine, compromise 
and settle claims of less than $5,000 under 28 U.S.C. 2672, and this 
subpart, rests with the Chief Financial Officer, as the designee of the 
head of the agency. For claims under 28 U.S.C. 2672 and this subpart, 
subject to Sec. 304.8, the Director of the Peace Corps retains 
authority to consider, ascertain, adjust, determine, compromise and 
settle claims of $5,000 or more.

[72 FR 4206, Jan. 30, 2007]



Sec. 304.8  Limitations on authority.

    (a) An award, compromise, or settlement of a claim under section 
2672 of title 28, United States Code, and this subpart in excess of 
$25,000 may be effected only with the prior written approval of the 
Attorney General or his designee. For the purpose of this paragraph, a 
principal claim and any derivative or subrogated claim shall be treated 
as a single claim.
    (b) An administrative claim may be adjusted, determined, 
compromised, or settled only after consultation with the Department of 
Justice when, in the opinion of the General Counsel:
    (1) A new precedent or a new point of law is involved; or
    (2) A question of policy is or may be involved; or
    (3) The United States is or may be entitled to indemnity or 
contribution from a third party, and the Peace Corps is unable to adjust 
the third party claim; or
    (4) The compromise of a particular claim, as a practical matter, 
will or may control the disposition of a related claim in which the 
amount to be paid may exceed $25,000.
    (c) An administrative claim may be adjusted, determined, 
compromised, or settled only after consultation with the Department of 
Justice when the Peace Corps is informed or is otherwise aware that the 
United States or an officer, employee, agent, or cost-type contractor of 
the United States is involved in litigation based on a claim arising out 
of the same incident or transaction.



Sec. 304.9  Referral to the Department of Justice.

    When Department of Justice approval or consultation is required 
under Sec. 304.8, the referral or request shall be transmitted to the 
Department of Justice by the General Counsel.

[72 FR 4206, Jan. 30, 2007]



Sec. 304.10  Review of claim.

    (a) Upon receipt of the claim file from the head of the office 
concerned, the General Counsel will ascertain that all supporting papers 
are contained in the file.
    (b) After legal review and recommendation by the General Counsel, 
the Director of the Peace Corps will make a written determination on the 
claim.



Sec. 304.11  Final denial of claim.

    The General Counsel will send notification of the final denial of an 
administrative claim to the claimant, his 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 
Peace Corps action, he may file suit in an appropriate U.S. District 
Court not later than 6 months after the date of mailing of the 
notification.



Sec. 304.12  Action on approved claim.

    (a) Payment of a claim approved under this subpart is contingent on 
claimant's execution of (1) a ``Claim for Damage or Injury,'' Standard 
From 95; and (2) a ``Voucher for Payment,'' Standard Form 1145, as 
appropriate.

[[Page 20]]

When a claimant is represented by an attorney, the voucher for payment 
shall designate the claimant and his attorney as copayees, and the check 
shall be delivered to the attorney, whose address shall appear on the 
voucher.
    (b) Acceptance by the claimant, his agent, 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 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 officer or employee of the Government whose act or 
omission gave rise to the claim, by reason of the same subject matter.



PART 305_ELIGIBILITY AND STANDARDS FOR PEACE CORPS VOLUNTEER SERVICE--Table of 

Contents




Sec.
305.1 Purpose and general guideline.
305.2 Eligibility.
305.3 Background investigations.
305.4 Selection standards.
305.5 Procedures.

    Authority: Sec. 4(b), 5(a) and 22, 75 Stat. 612, 22 U.S.C. 2504; 
E.O. 12137, May 16, 1979, sec. 601, International Security and 
Development Cooperation Act of 1981; 95 Stat. 1519 at 1540, sec. 
417(c)(1), Domestic Volunteer Service Act (42 U.S.C. 5057(c)(1)).

    Source: 49 FR 38939, Oct. 2, 1984, unless otherwise noted.



Sec. 305.1  Purpose and general guideline.

    This subpart states the requirements for eligibility for Peace Corps 
Volunteer service and the factors considered in the assessment and 
selection of eligible applicants for training and service. In selecting 
individuals for Peace Corps Volunteer service under this subpart, as 
required by section 5(a) of the Peace Corps Act, as amended, ``no 
political test shall be required to be taken into consideration, nor 
shall there be any discrimination against any person on account of race, 
sex, creed, or color.'' Further, in accordance with section 417(c)(1) of 
the Domestic Volunteer Service Act, as amended (42 U.S.C. 5057 (c)(1)) 
the nondiscrimination policies and authorities set forth in section 717 
of the Civil Rights Act of 1964 (42 U.S.C. 2000e-16), title V of the 
Rehabilitation Act of 1973 (29 U.S.C. 791 et seq.) and the Age 
Discrimination Act of 1975 (42 U.S.C. 6101 et seq.), are also applicable 
to the selection, placement, service and termination of Peace Corps 
Volunteers.



Sec. 305.2  Eligibility.

    In addition to those skills, personal attributes and aptitudes 
required for available Volunteer assignments, the following are the 
basic requirements that an applicant must satisfy in order to receive an 
invitation to train for Peace Corps Volunteer service.
    (a) Citizenship. The applicant must be a citizen of the United 
States or have made arrangements satisfactory to the Office of 
Marketing, Recruitment, Placement and Staging (MRPS) and the Office of 
General Counsel (D/GC) to be naturalized prior to taking the oath 
prescribed for enrollment as a Peace Corps Volunteer. (See section 5[a] 
of the Peace Corps Act, as amended).
    (b) Age. The applicant must be at least 18 years old.
    (c) Medical status. The applicant must, with reasonable 
accommodation, have the physical and mental capacity required of a 
Volunteer to perform the essential functions of the Peace Corps 
Volunteer assignment for which he or she is otherwise eligible, and be 
able to complete an agreed upon tour of service, ordinarily two years, 
without unreasonable disruption due to health problems. In determining 
what is a reasonable accommodation, the Peace Corps may take into 
account the adequacy of local medical facilities. In determining whether 
an accommodation would impose an undue hardship on the operation of the 
Peace Corps, factors to be considered include: (1) The overall size of 
the Peace Corps program with respect to the number of employees and/or 
Volunteers, size of budget, and size and composition of staff at post of 
assignment, (2) the nature and cost of the accommodation, and (3) the 
capacity of the host country agency to which

[[Page 21]]

the applicant would be assigned to provide any special accommodation 
necessary for the applicant to carry out the assignment.
    (d) Legal status. The applicant must not be on parole or probation 
to any court or have any court established or acknowledged financial or 
other legal obligation which, in the opinion of D/GC and MRPS, cannot be 
satisfied or postponed during the period of Peace Corps service.
    (e) Intelligence background. In accordance with longstanding Peace 
Corps policy, prior employment by any agency of the United States 
Government, civilian or military, or division of such an agency, whose 
exclusive or principle function is the performance of intelligence 
activities; or engaging in intelligence activities or related work may 
disqualify a person from eligibility for Peace Corps service. See 
section 611 of the Peace Corps Manual.
    (f) Marital status. (1) Ordinarily, if an applicant is married or 
intends to marry prior to Peace Corps service, both husband and wife 
must apply and qualify for assignment at the same location. Exceptions 
to this rule will be considered by the Office of Volunteer Placement 
(MRPS/P) under the following conditions:
    (2)(i) Unaccompanied married applicant. In order to qualify for 
consideration for Peace Corps service, a married applicant whose spouse 
does not wish to accompany him/her overseas must provide the Office of 
Placement (MRPS/P) with a notarized letter from the spouse acknowledging 
that he or she is aware of the applicant spouse's intention to serve as 
a Peace Corps Volunteer for two years or more and that any financial and 
legal obligations of the applicant to his or her spouse can be met 
during the period of Peace Corps service. In determining eligibility in 
such cases, MRPS/P will also consider whether the service of one spouse 
without the accompaniment of the other can reasonably be anticipated to 
disrupt the applicant spouse's service overseas.
    (ii) In addition to satisfying the above requirements, a married 
applicant who is legally, or in fact, separated from his or her spouse, 
must provide MRPS/P with copies of any agreements or other documentation 
setting forth any legal and financial responsibilities which the parties 
have to one another during any period of separation.
    (3) Divorced applicants. Applicants who have been divorced must 
provide MRPS/P with copies of all legal documents related to the 
divorce.
    (g) Dependents. Peace Corps has authority to provide benefits and 
allowances for the dependent children of Peace Corps Volunteers who are 
under the age of 18. However, applicants with dependent children under 
the age of 18 will not be considered eligible for Peace Corps service 
unless MRPS/P determines that the skills of the applicants are essential 
to meet the requirements of a Volunteer project, and that qualified 
applicants without minor dependents are not available to fill the 
assignment.
    (1) Procedures for placing volunteers with children. The placement 
of any couple with dependent children must have the concurrence of the 
appropriate Country and Regional Director.
    (2) If the applicant has any dependents who will not accompany him 
or her overseas, the applicant must satisfy MRPS/P and the General 
Counsel that adequate arrangements have been made for the care and 
support of the dependent during any period of training and Peace Corps 
service; that such service will not adversely affect the relationship 
between the applicant and dependent in such a way as to disrupt his or 
her service; and that he or she is not using Peace Corps service to 
escape responsibility for the welfare of any dependents under the age of 
18.
    (3) Married couples with more than two children or with children who 
are below two years of age are not eligible for Peace Corps service 
except in extraordinary circumstances as approved by the Director of the 
Peace Corps or designee.
    (h) Military service. Applicants with military or national guard 
obligation must provide MRPS/P with a written statement from their 
commanding officer that their presence will not be required by their 
military unit for the duration of their Peace Corps service, except in 
case of national emergency.

[[Page 22]]

    (i) Failure to disclose requested information. Failure to disclose, 
and/or the misrepresentation of material information requested by the 
Peace Corps regarding any of the above described standards of 
eligibility may be grounds for disqualification or separation from Peace 
Corps Volunteer service. (See section 284 of the Peace Corps Manual.)



Sec. 305.3  Background investigations.

    Section 22 of the Peace Corps Act states that to ensure enrollment 
of a Volunteer is consistent with the national interest, no applicant is 
eligible for Peace Corps Volunteer service without a background 
investigation. The Peace Corps requires that all applicants accepted for 
training have as a minimum a National Agency Check. Information revealed 
by the investigation may be grounds for disqualification from Peace 
Corps service.



Sec. 305.4  Selection standards.

    To qualify for selection for overseas service as a Peace Corps 
Volunteer, applicants must demonstrate that they possess the following 
personal attributes:
    (a) Motivation. A sincere desire to carry out the goals of Peace 
Corps service, and a commitment to serve a full term as a Volunteer.
    (b) Productive competence. The intelligence and educational 
background to meet the needs of the individual's assignment.
    (c) Emotional maturity/adaptability. The maturity, flexibility, and 
self-sufficiency to adapt successfully to life in another culture, and 
to interact and communicate with other people regardless of cultural, 
social, and economic differences.
    (d) Skills. By the end of training, in addition to the attributes 
mentioned above, a Trainee must demonstrate competence in the following 
areas:
    (1) Language. The ability to communicate in the language of the 
country of service with the fluency required to meet the needs of the 
overseas assignment.
    (2) Technical competence. Proficiency in the technical skills needed 
to carry out the assignment.
    (3) Knowledge. Adequate knowledge of the culture and history of the 
country of assignment to ensure a successful adjustment to, and 
acceptance by, the host country society. The Trainee must also have an 
awareness of the history and government of the United States which 
qualifies the individual to represent the United States abroad.
    (e) Failure to meet standards. Failure to meet any of the selection 
standards by the completion of training may be grounds for deselection 
and disqualification from Peace Corps service.



Sec. 305.5  Procedures.

    Procedures for filing, investigating, and determining allegations of 
discrimination on the basis of race, color, national origin, religion, 
age, sex, handicap or political affiliation in the application of any 
provision of this part are contained in MS 293 (45 CFR part 1225).



PART 306_VOLUNTEER DISCRIMINATION COMPLAINT PROCEDURE--Table of Contents




    Cross Reference: ACTION regulations concerning the volunteer 
discrimination complaint procedure, appearing in 45 CFR part 1225, are 
applicable to Peace Corps volunteers. Part 1225 appears at 46 FR 1609, 
Jan. 6, 1981.



PART 308_IMPLEMENTATION OF THE PRIVACY ACT OF 1974--Table of Contents




Sec.
308.1 Purpose.
308.2 Policy.
308.3 Definitions.
308.4 Disclosure of records.
308.5 New uses of information.
308.6 Reports regarding changes in systems.
308.7 Use of social security account number in records systems. 
          [Reserved]
308.8 Rules of conduct.
308.9 Records systems--management and control.
308.10 Security of records systems--manual and automated.
308.11 Accounting for disclosure of records.
308.12 Contents of records systems.
308.13 Access to records.
308.14 Specific exemptions.
308.15 Identification of requesters.
308.16 Amendment of records and appeals with respect thereto.
308.17 Denial of access and appeals with respect thereto.
308.18 Fees.


[[Page 23]]


    Authority: 5 U.S.C. 552a.

    Source: 50 FR 1844, Jan. 14, 1985, unless otherwise noted.



Sec. 308.1  Purpose.

    The purpose of this part is to set forth the basic policies of the 
Peace Corps governing the maintenance of systems of records containing 
personal information as defined in the Privacy Act of 1974 (5 U.S.C. 
552a). Records included in this part are those described in the 
aforesaid Act and maintained by the Peace Corps and/or any component 
thereof.



Sec. 308.2  Policy.

    It is the policy of the Peace Corps to protect, preserve and defend 
the right of privacy of any individual as to whom the agency maintains 
personal information in any records system and to provide appropriate 
and complete access to such records including adequate opportunity to 
correct any errors in said records. It is further the policy of the 
agency to maintain its records in such a fashion that the information 
contained therein is and remains material and relevant to the purposes 
for which it is collected in order to maintain its records with fairness 
to the individuals who are the subject of such records.



Sec. 308.3  Definitions.

    (a) Record means any document, collection, or grouping of 
information about an individual maintained by the agency, including but 
not limited to information regarding education, financial transactions, 
medical history, criminal or employment history, or any other personal 
information which contains the name or personal identification number, 
symbol, photograph, or other identifying particular assigned to such 
individual, such as a finger or voiceprint.
    (b) System of Records means a group of any records under the control 
of the agency from which information is retrieved by use of the name of 
an individual or by some identifying number, symbol, or other 
identifying particular assigned to the individual.
    (c) Routine Use means, with respect to the disclosure of a record, 
the use of such record for a purpose which is compatible with the 
purpose for which it was collected.
    (d) The term agency means the Peace Corps or any component thereof.
    (e) The term individual means any citizen of the United States or an 
alien lawfully admitted to permanent residence.
    (f) The term maintain includes the maintenance, collection, use or 
dissemination of any record.
    (g) The term Act means the Privacy Act of 1974 (5 U.S.C. 552a) as 
amended from time to time.



Sec. 308.4  Disclosure of records.

    The agency will not disclose any personal information from systems 
of records it maintains to any individual other than the individual to 
whom the record pertains, or to another agency, without the express 
written consent of the individual to whom the record pertains, or his or 
her agent or attorney, except in the following instances:
    (a) To officers or employees of the Peace Corps having a need for 
such record in the official performance of their duties.
    (b) When required under the provisions of the Freedom of Information 
Act (5 U.S.C. 552).
    (c) For routine uses as published in the Federal Register.
    (d) To the Bureau of the Census for uses pursuant to title 13.
    (e) To an individual or agency having a proper need for such record 
for statistical research provided that such record is transmitted in a 
form which is not individually identifiable and that an appropriate 
written statement is obtained from the person to whom the record is 
transmitted stating the purpose for the request and a certification 
under oath that the records will be used only for statistical purposes.
    (f) To the National Archives of the United States as a record of 
historical value under rules and regulations of the Archives or to the 
Administrator of General Services or his designee to determine if it has 
such value.
    (g) To an agency or instrumentality of any governmental jurisdiction 
within the control of the United States for civil or criminal law 
enforcement activities, if the activity is authorized by law, and the 
head of any such agency

[[Page 24]]

or instrumentality has made a written request for such records 
specifying the particular portion desired and the law enforcement 
activity for which the record is sought. Such a record may also be 
disclosed by the agency to the law enforcement agency on its own 
initiative in situations in which criminal conduct is suspected: 
Provided, That such disclosure has been established as a routine use or 
in situations in which the misconduct is directly related to the purpose 
for which the record is maintained.
    (h) In emergency situations upon a showing of compelling 
circumstances affecting the health or safety of any individual provided 
that after such disclosure, notification of such disclosure must be 
promptly sent to the last known address of the individual to whom the 
record pertains.
    (i) To either House of Congress or to a subcommittee or committee 
(joint or of either house) to the extent the subject matter falls within 
their jurisdiction.
    (j) To the Comptroller General, or any of his authorized 
representatives, in the course of the performance of the duties of the 
General Accounting Office.
    (k) Pursuant to an order by the presiding judge of a court of 
competent jurisdiction. If any record is disclosed under such compulsory 
legal process and subsequently made public by the court which issued it, 
the agency must make a reasonable effort to notify the individual to 
whom the record pertains of such disclosure.
    (l) To consumer reporting agencies as defined in 31 U.S.C. 
3701(a)(3) in accordance with 31 U.S.C. 3711, and under contracts for 
collection services as authorized in 31 U.S.C. 3718.



Sec. 308.5  New uses of information.

    The agency shall publish in the Federal Register a notice of its 
intention to establish a new or revised routine use of any system of 
records maintained by it with an opportunity for public comments on such 
use. Such notice shall contain the following:
    (a) The name of the system of records for which the new or revised 
routine use is to be established.
    (b) The authority for maintaining the system of records.
    (c) The categories of records maintained in the system.
    (d) The purpose for which the record is to be maintained.
    (e) The proposed routine use(s).
    (f) The purpose of the routine use(s).
    (g) The categories of recipients of such use.


In the event of any request for an addition to the routine uses of the 
systems which the agency maintains, such request may be sent to the 
following officer: Director, Office of Administrative Services, Peace 
Corps, 806 Connecticut Avenue, NW., Washington, DC 20526.



Sec. 308.6  Reports regarding changes in systems.

    The agency shall provide to Congress and the Office of Management 
and Budget advance notice of any proposal to establish or alter any 
system of records as defined herein. This report will be submitted in 
accord with guidelines provided by the Office of Management and Budget.



Sec. 308.7  Use of social security account number in records systems. [Reserved]



Sec. 308.8  Rules of conduct.

    (a) The head of the agency shall assure that all persons involved in 
the design, development, operation or maintenance of any systems of 
records as defined herein are informed of all requirements necessary to 
protect the privacy of individuals who are the subject of such records. 
All employees shall be informed of all implications of the Act in this 
area including the criminal penalties provided under the Act, and the 
fact the agency may be subject to civil suit for failure to comply with 
the provisions of the Privacy Act and these regulations.
    (b) The head of the agency shall also ensure that all personnel 
having access to records receive adequate training in the protection of 
the security of personal records and that adequate and proper storage is 
provided for all such records with sufficient security to assure the 
privacy of such records.

[[Page 25]]



Sec. 308.9  Records systems--management and control.

    (a) The Director, Office of Administrative Services, shall have 
overall control and supervision of the security of all records keeping 
systems and shall be responsible for monitoring the security standards 
set forth in these regulations.
    (b) A designated official (System Manager) shall be named who shall 
have management responsibility for each record system maintained by the 
agency and who shall be responsible for providing protection and 
accountability for such records at all times and for insuring that such 
records are secured in appropriate containers wherever not in use or in 
the direct control of authorized personnel.



Sec. 308.10  Security of records systems--manual and automated.

    The head of the agency has the responsibility of maintaining 
adequate technical, physical, and security safeguards to prevent 
unauthorized disclosure or destruction of manual and automatic record 
systems. These security safeguards shall apply to all systems in which 
identifiable personal data are processed or maintained including all 
reports and outputs from such systems which contain identifiable 
personal information. Such safeguards must be sufficient to prevent 
negligent, accidental, or unintentional disclosure, modification or 
destruction of any personal records or data and must furthermore 
minimize the extent technicians or knowledgeable persons could 
improperly obtain access to modify or destroy such records or data and 
shall further insure against such casual entry by unskilled persons 
without official reasons for access to such records or data.
    (a) Manual systems. (1) Records contained in records systems as 
defined herein may be used, held or stored only where facilities are 
adequate to prevent unauthorized access by persons within or without the 
agency.
    (2) All records systems when not under the personal control of the 
employees authorized to use same must be stored in an appropriate metal 
filing cabinet. Where appropriate, such cabinet shall have a three 
position dial-type combination lock, and/or be equipped with a steel 
lock bar secured by a GSA approved changeable combination padlock or in 
some such other securely locked cabinet as may be approved by GSA for 
the storage of such records. Certain systems are not of such 
confidential nature that their disclosure would harm an individual who 
is the subject of such record. Records in this category shall be 
maintained in steel cabinets without the necessity of combination locks.
    (3) Access to and use of systems of records shall be permitted only 
to persons whose official duties require such access within the agency, 
for routine use as defined in Sec. 308.4 and in the Peace Corps' 
published systems of records notices, or for such other uses as may be 
provided herein.
    (4) Other than for access within the agency to persons needing such 
records in the performance of their official duties or routine uses as 
defined herein and in the Peace Corps' systems of records notices or 
such other uses as provided herein, access to records within systems of 
records shall be permitted only to the individual to whom the record 
pertains or upon his or her written request to a designated personal 
representative.
    (5) Access to areas where records systems are stored will be limited 
to those persons whose official duties require work in such areas and 
proper accounting of removal of any records from storage areas shall be 
maintained at all times in the form directed by the Director, 
Administrative Services.
    (6) The agency shall assure that all persons whose official duties 
require access to and use of records contained in records systems are 
adequately trained to protect the security and privacy of such records.
    (7) The disposal and destruction of records within records systems 
shall be in accord with rules promulgated by the General Services 
Administration.
    (b) Automated systems. (1) Identifiable personal information may be 
processed, stored or maintained by automatic data systems only where 
facilities or conditions are adequate to prevent unauthorized access to 
such systems in any form. Whenever such data contained in punch cards, 
magnetic tapes

[[Page 26]]

or discs are not under the personal control of an authorized person such 
information must be stored in a metal filing cabinet having a built-in 
three position combination lock, a metal filing cabinet equipped with a 
steel lock, a metal filing cabinet equipped with a steel lock bar 
secured with a General Services Administration (GSA) approved 
combination padlock, or in adequate containers or in a secured room or 
in such other facility having greater safeguards than those provided for 
herein.
    (2) Access to and use of identifiable personal data associated with 
automated data systems shall be limited to those persons whose official 
duties require such access. Proper control of personal data in any form 
associated with automated data systems shall be maintained at all times 
including maintenance of accountability records showing disposition of 
input and output documents.
    (3) All persons whose official duties require access to processing 
and maintenance of identifiable personal data and automated systems 
shall be adequately trained in the security and privacy of personal 
data.
    (4) The disposal and disposition of identifiable personal data and 
automated systems shall be carried on by shredding, burning or in the 
case of tapes of discs, degaussing, in accord with any regulations now 
or hereafter proposed by the GSA or other appropriate authority.



Sec. 308.11  Accounting for disclosure of records.

    Each office maintaining a system of records shall keep a written 
account of routine disclosures (see paragraphs (a) through (e) of this 
section) for all records within such system in the form prescribed by 
the Director, Office of Administrative Services. Disclosure made to 
employees of the agency in the normal course of their official duties or 
pursuant to the provisions of the Freedom of Information Act need not be 
accounted for. Such written account shall contain the following:
    (a) The date, nature, and purpose of each disclosure of a record to 
any person or to another agency.
    (b) The name and address of the person or agency to whom the 
disclosure was made.
    (c) Sufficient information to permit the construction of a listing 
of all disclosures at appropriate periodic intervals.
    (d) The justification or basis upon which any release was made 
including any written documentation required when records are released 
for statistical or law enforcement purposes under the provisions of 
subsection (b) of the Act.
    (e) For the purpose of this part, the system of accounting for 
disclosure is not a system of records under the definitions hereof and 
no accounting need be maintained for the disclosure of accounting of 
disclosures.



Sec. 308.12  Contents of records systems.

    (a) The agency shall maintain in any records contained in any 
records system hereunder only such information about an individual as is 
accurate, relevant, and necessary to accomplish the purpose for which 
the agency acquired the information as authorized by statute or 
executive order.
    (b) In situations in which the information may result in adverse 
determinations about such individual's rights, benefits and privileges 
under any Federal program, all information placed in records systems 
shall, to the greatest extent practicable, be collected from the 
individual to whom the record pertains.
    (c) Each form or other document which an individual is expected to 
complete in order to provide information for any records system shall 
have appended thereto, or in the body of the document:
    (1) An indication of the authority authorizing the solicitation of 
the information and whether the provision of the information is 
mandatory or voluntary.
    (2) The purpose or purposes for which the information is intended to 
be used.
    (3) Routine uses which may be made of the information and published 
pursuant to Sec. 308.7 of this regulation.
    (4) The effect on the individual, if any, of not providing all or 
part of the required or requested information.

[[Page 27]]

    (d) Records maintained in any system of records used by the agency 
to make any determinatioin about any individual shall be maintained with 
such accuracy, relevancy, timeliness, and completeness as is reasonably 
necessary to assure fairness to the individual in the making of any 
determination about such individual: Provided, however, That the agency 
shall not be required to update or keep current retired records.
    (e) Before disseminating any record about an individual to any 
person other than an agency as defined in 5 U.S.C. 552(e) or pursuant to 
the provsions of the Freedom of Information Act (5 U.S.C. 552), the 
agency shall make reasonable efforts to assure that such records are 
accurate, complete, timely and relevant for agency purposes.
    (f) Under no circumstances shall the agency maintain any record 
about an individual with respect to or describing how such individual 
exercises rights guaranteed by the first amendment of the Constitution 
of the United States unless expressly authorized by statute or by the 
individual about whom the record is maintained or unless pertinent to 
and within the scope of an authorized law enforcement activity.
    (g) In the event any record is disclosed as a result of the order of 
a presiding judge of a court of competent jurisdiction, the agency shall 
make reasonable efforts to notify the individual whose record was so 
disclosed after the process becomes a matter of public record.



Sec. 308.13  Access to records.

    (a) The Director, Administrative Services, shall keep a current list 
of systems of records maintained by the agency and published in 
accordance with the provisions of these regulations.
    (b) Individuals requesting access to any record the agency maintains 
about him or her in a system of records shall be provided access to such 
records. Such requests shall be submitted in writing by mail, or in 
person during regular business hours, to the System Managers identified 
in the specific system notices. Systems maintained at overseas and 
dometic field offices may be addressed to the Country Director or 
Regional Service Center Manager. If assistance is needed, the Director, 
Office of Administrative Services, will provide agency addresses.
    (c) Requests for records from more than one system of records shall 
be directed to the Director, Office of Administrative Services, Peace 
Crops, 806 Connecticut Avenue, NW., Washington, DC 20526.
    (d) Requests for access to or copies of records should contain, at a 
minimum, identifying information needed to locate any given record and a 
brief description of the item or items of information required. If the 
individual wishes access to specific documents the request should 
identify or describe as nearly as possible such documents.
    (e) A record may be disclosed to a representative of the person to 
whom a record relates who is authorized in writing to have access to the 
record by the person to whom it relates.
    (f) A request made in person will be promptly complied with if the 
records sought are in the immediate custody of the Peace Corps. Mailed 
or personal request for documents in storage which must be complied from 
more than one location, or which are otherwise not immediately 
available, will be acknowledge within ten working days, and the records 
requested will be provided as promptly thereafter as possible.
    (g) Medical or psychological records shall be disclosed to an 
individual unless in the judgment of the agency, access to such records 
might have an adverse effect upon such individual. When such 
determination has been made, the agency may require that the information 
be disclosed only to a physician chosen by the requesting individual. 
Such physician shall have full authority to disclose all or any portion 
of such record to the requesting individual in the exercise of his or 
her professional judgment.



Sec. 308.14  Specific exemptions.

    Records or portions of records in certain record systems specified 
in paragraphs (a) through (c) of this section shall be exempt from 
disclosure: Provided, however, That no such exemption shall apply to the 
provisions of

[[Page 28]]

Sec. 308.12(a) (maintaining records with accuracy, completeness, etc. 
as reasonably necessary for agency purposes); Sec. 308.12(b) 
(collecting information directly from the individual to whom it 
pertains); Sec. 308.12(c) (informing individuals asked to supply 
information of the purposes for which it is collected and whether it is 
mandatory); Sec. 308.12(g) (notifying the subjects of records disclosed 
under compulsory court process); Sec. 308.16(d)(3) (informing prior 
recipient of corrected or disputed records); Sec. 308.16(g) (civil 
remedies). With the above exceptions the following material shall be 
exempt from disclosure to the extent indicated:
    (a) Material in any system of records considered classified and 
exempt from disclosure under provisions of section 552(b)(1) of the 
Freedom of Information Act. Agency systems of records now containing 
such material are: Legal Files--Staff, Volunteers and Applicants; 
Security Records Peace Corps Staff/Volunteers and ACTION staff.
    (1) Authority: 5 U.S.C. 552a (k)(1)
    (2) Reasons: To protect information classified in the interest of 
national defense or foreign policy.
    (b) Investigatory material compiled for the purposes of law 
enforcement: Provided, however, That if any individual is denied any 
right, privilege, or benefit that he or she would otherwise be entitled 
to by Federal law, or for which he or she would otherwise be eligible, 
as a result of the maintenance of such material, such material shall be 
provided to such individual except to the extent necessary to protect 
the identity of a source who furnished information to the government 
under an express promise that his or her identity would be held in 
confidence, or prior to the effective date of the Privacy Act of 1974, 
under an implied promise of such confidentiality of the identity of such 
source. Agency systems of records containing such investigatory material 
are: Discrimination Complaint Files; Employee Occupational Injury and 
Illness Reports; Legal Files--Staff, Volunteers and Applicants; Security 
Records--Peace Corps Staff/Volunteers and ACTION Staff.
    (1) Authority: 5 U.S.C. 552a(k)(2)
    (2) Reasons: To protect the identity of sources to whom proper 
promises of confidentiality have been made during investigations. 
Without these promises, sources will often be unwilling to provide 
information essential in adjudicating access in a fair and impartial 
manner.
    (c) Investigatory material compiled solely for the purpose of 
determining suitability, eligibility or qualification for service as an 
employee or volunteer or for the obtaining of a Federal contract or for 
access to classified information: Provided, however, That such material 
shall be disclosed to the extent possible without revealing the identity 
of a source who furnished information to the government under an express 
promise of the confidentiality of his or her identity or, prior to the 
effective date of the Privacy Act of 1974, under an implied promise of 
such confidentiality of identity. Agency systems of records containing 
such material are: Contractors and Consultant Files; Discrimination 
Complaint Files; Legal Files--Staff, Volunteers and Applicants; Personal 
Service Contract Records--Peace Corps Staff/Volunteers and ACTION Staff; 
Staff Applicant and Personnel Records; Talent Bank; Volunteer Applicant 
and Service Record Systems.
    (1) Authority: 5 U.S.C. 552a(k)(5)
    (2) Reasons: To ensure the frankness of information used to 
determine whether Peace Corps Volunteers applicants and Peace Corps 
Staff applicants are qualified for service with the agency.
    (d) Records in the Office of Inspector General Investigative Files 
and Records system of records are exempt from certain provisions to the 
extent provided hereinafter.
    (1) To the extent that the system of records pertains to the 
enforcement of criminal laws, the Office of Inspector General 
Investigative Files and Records system of records is exempt from all 
sections of the Privacy Act (5 U.S.C. 552a) except the following 
sections: (b) relating to conditions of disclosure; (c)(1) and (2) 
relating to keeping and maintaining a disclosure accounting; (e)(4)(A) 
through (F) relating to publishing a system notice setting the name, 
location, categories of individuals and records, routine uses, and 
policies regarding storage,

[[Page 29]]

retrievability, access controls, retention and disposal of the records; 
(e)(6), (7), (9), (10), and (11) relating to dissemination and 
maintenance of records and (i) relating to criminal penalties. This 
system of records is also exempt from the provisions of Sec. 308.11 
through Sec. 308.17 to the extent that the provisions of these sections 
conflict with this paragraph.
    (i) Authority: 5 U.S.C. 552a(j)(2).
    (ii) Reasons:
    (A) To prevent interference with law enforcement proceedings.
    (B) To avoid unwarranted invasion of personal privacy, by disclosure 
of information about third parties, including other subjects of 
investigations, investigators, and witnesses.
    (C) To protect the identity of Federal employees who furnish a 
complaint or information to OIG, consistent with section 7(b) of the 
Inspector General Act of 1978, as amended, 5 U.S.C. App. 3.
    (D) To protect the confidentiality of non-Federal employee sources 
of information.
    (E) To assure access to sources of confidential information, 
including those contained in Federal, State, and local criminal law 
enforcement information systems.
    (F) To prevent disclosure of law enforcement techniques and 
procedures.
    (G) To avoid endangering the life or physical safety of confidential 
sources.
    (2) To the extent that there may exist within this system of records 
investigative files compiled for law enforcement purposes, other than 
material within the scope of subsection (j)(2) of the Privacy Act, the 
OIG Investigative Files and Records system of records is exempt from the 
following sections of the Privacy Act: (c)(3) relating to access to the 
disclosure accounting; (d) relating to access to records; (e)(1) 
relating to the type of information maintained in the records; (e)(4) 
(G), (H), and (I) relating to publishing the system notice information 
as to agency procedures for access and amendment, and information as to 
the categories of sources or records; and (f) relating to developing 
agency rules for gaining access and making corrections. Provided, 
however, That if any individual is denied any right, privilege, or 
benefit that they would otherwise be entitled by Federal law, or for 
which they would otherwise be eligible, as a result of the maintenance 
of such material, such material shall be provided to such individual 
except to the extent that the disclosure of such material would reveal 
the identity of a source who furnished information to the Government 
under an express promise that the identity of the source would be held 
in confidence, or, prior to January 1, 1975, under an implied promise 
that the identity of the source would be held in confidence. This system 
of records is also exempt from the provisions of Sec. 308.11 through 
Sec. 308.17 to the extent that the provisions of these sections 
conflict with this paragraph.
    (i) Authority: 5 U.S.C. 552a(k)(2)
    (ii) Reasons:
    (A) To prevent interference with law enforcement proceedings.
    (B) To protect investigatory material compiled for law enforcement 
purposes.
    (C) To avoid unwarranted invasion of personal privacy, by disclosure 
of information about third parties, including other subjects of 
investigation, law enforcement personnel, and sources of information.
    (D) To fulfill commitments made to protect the confidentiality of 
sources.
    (E) To protect the identity of Federal employees who furnish a 
complaint or information to the OIG, consistent with Section 7(b) of the 
Inspector General Act of 1978, as amended, 5 U.S.C. App. 3.
    (F) To assure access to sources of confidential information, 
including those contained in Federal, State, and local criminal law 
enforcement systems.
    (G) [Reserved]
    (H) To prevent disclosure of law enforcement techniques and 
procedures.
    (I) To avoid endangering the life or physical safety of confidential 
sources and law enforcement personnel.

[50 FR 1844, Jan. 14, 1985, as amended at 58 FR 39657, July 26, 1993]



Sec. 308.15  Identification of requesters.

    The agency shall require reasonable identification of all 
individuals who request access to records to assure that records are not 
disclosed to persons not entitled to such access.

[[Page 30]]

    (a) In the event an individual requests disclosure in person, such 
individual shall be required to show an identification card such as a 
driver's license, etc., containing a photo and a sample signature of 
such individual. Such individual may also be required to sign a 
statement under oath as to his or her identity acknowledging that he or 
she is aware of the penalties for improper disclosure under the 
provisions of the Privacy Act of 1974.
    (b) In the event that disclosure is requested by mail, the agency 
may request such information as may be necessary to reasonably assure 
that the individual making such request is properly identified. In 
certain cases, the agency may require that a mail request be notarized 
with an indication that the notary received an acknowledgment of 
identity from the individual making such request.
    (c) In the event an individual is unable to provide suitable 
documentation or identification, the agency may require a signed 
notarized statement asserting the identity of the individual and 
stipulating that the individual understands that knowingly or willfully 
seeking or obtaining access to records about another person under false 
pretenses is punishable by a fine of up to $5,000.
    (d) In the event a requester wishes to be accompanied by another 
person while reviewing his or her records, the agency may require a 
written statement authorizing discussion of his or her records in the 
presence of the accompanying representative or other persons.



Sec. 308.16  Amendment of records and appeals with respect thereto.

    (a) In the event an individual desires to request an amendment of 
his or her record, he or she may do so by submitting such written 
request to the Director, Administrative Services, Peace Corps, 806 
Connecticut Avenue, NW., Washington, DC 20526. The Director, 
Administrative Services, shall provide assistance in preparing any 
amendment upon request and a written acknowledgment of receipt of such 
request within 10 working days after the receipt thereof from the 
individual who requested the amendment. Such acknowledgment may, if 
necessary, request any additional information needed to make a 
determination with respect to such request. If the agency decides to 
comply with the request within the 10 day period, no written 
acknowledgment is necessary: Provided, however, That a certification of 
the change shall be provided to such individual within such period.
    (b) Promptly after acknowledgment of the receipt of a request for an 
amendment the agency shall take one of the following actions:
    (1) Make any corrections of any portion of the record which the 
individual believes is not accurate, relevant, timely or complete.
    (2) Inform the individual of its refusal to amend the record in 
accord with the request together with the reason for such refusal and 
the procedures established for requesting review of such refusal by the 
head of the agency or his or her designee. Such notice shall include the 
name and business address of the reviewing official.
    (3) Refer the request to the agency that has control of and 
maintains the record in those instances where the record requested 
remains the property of the controlling agency and not of the Peace 
Corps.
    (c) In reviewing a request to amend the record the agency shall 
assess the accuracy, relevance, timeliness and completeness of the 
record with due and appropriate regard for fairness to the individual 
about whom the record is maintained. In making such determination, the 
agency shall consult criteria for determining record quality published 
in pertinent chapters of the Federal Personnel Manual and to the extent 
possible shall accord therewith.
    (d) In the event the agency agrees with the individual's request to 
amend such record it shall:
    (1) Advise the individual in writing,
    (2) Correct the record accordingly, and
    (3) Advise all previous recipients of a record which was corrected 
of the correction and its substance.
    (e) In the event the agency, after an initial review of the request 
to amend a record, disagrees with all or a portion of it, the agency 
shall:

[[Page 31]]

    (1) Advise the individual of its refusal and the reasons therefore,
    (2) Inform the individual that he or she may request further review 
in accord with the provisions of these regulations, and
    (3) Specify The name and address of the person to whom the request 
should be directed.
    (f) In the event an individual requester disagrees with the initial 
agency determination, he or she may appeal such determination to the 
Director of the Peace Corps or his or her designee. Such request for 
review must be made within 30 days after receipt by the requester of the 
initial refusal to amend.
    (g) If after review the Director or designee refuses to amend the 
record as requested he or she shall advise the individual requester of 
such refusal and the reasons for same; of his or her right to file a 
concise statement in the record of the reasons for disagreeing with the 
decision of the agency; of the procedures for filing a statement of 
disagreement and of the fact that such statement so filed will be made 
available to anyone to whom the record is subsequently disclosed 
together with a brief statement of the agency summarizing its reasons 
for refusal, if the agency decides to place such brief statement in the 
record. The agency shall have the authority to limit the length of any 
statement to be filed, such limit to depend upon the record involved. 
The agency shall also inform such individual that prior recipients of 
the disputed record will be provided a copy of both statements of the 
dispute to the extent that the accounting of disclosures has been 
maintained and of the individual's right to seek judicial review of the 
agency's refusal to amend the record.
    (h) If after review the official determines that the record should 
be amended in accordance with the individual's request, the agency shall 
proceed as provided above in the event a request is granted upon initial 
demand.
    (i) Final agency determination of an individual's request for a 
review shall be concluded with 30 working days from the date of receipt 
of the review request: Provided, however, That the Director or designee 
may determine that fair and equitable review cannot be made within that 
time. If such circumstances occur, the individual shall be notified in 
writing of the additional time required and of the approximate date on 
which determination of the review is expected to be completed.



Sec. 308.17  Denial of access and appeals with respect thereto.

    In the event that the agency finds it necessary to deny any 
individual access to a record about such individual pursuant to 
provisions of the Privacy Act or of these regulations, a response to the 
original request shall be made in writing within ten working days after 
the date of such initial request. The denial shall specify the reasons 
for such refusal or denial and advise the individual of the reasons 
therefore, and of his or her right to an appeal within the agency and/or 
judicial review under the provisions of the Act.
    (a) In the event an individual desires to appeal any denial of 
access, he or she may do so in writing by addressing such appeal to the 
attention of the Director, Peace Corps, or designee identified in such 
denial. Such appeal should be addressed to Director, Peace Corps, c/o 
Office of Administrative Services, Room P-314, 806 Connecticut Avenue, 
NW., Washington, DC 20526.
    (b) The Director, or designee, shall review a request from a denial 
of access and shall make a determination with respect to such appeal 
within 30 days after receipt thereof. Notice of such determination shall 
be provided to the individual making the request in writing. If such 
appeal is denied in whole or in part, such notice shall include 
notification of the right of the person making such request to have 
judicial review of the denial as provided in the Act.



Sec. 308.18  Fees.

    No fees shall be charged for search time or for any other time 
expended by the agency to produce a record. Copies of records may be 
charged for at the rate of 10 cents per page provided that one copy of 
any record shall be provided free of charge.

[[Page 32]]



PART 309_CLAIMS COLLECTION--Table of Contents




                      Subpart A_General Provisions

Sec.
309.1 General purpose.
309.2 Scope.
309.3 Definitions.
309.4 Interest, penalties, and administrative costs.
309.5 Designation.

                         Subpart B_Salary Offset

309.6 Purpose.
309.7 Scope.
309.8 Applicability of regulations.
309.9 Waiver requests and claims to the General Accounting Office.
309.10 Notice requirements before offset.
309.11 Review.
309.12 Certification.
309.13 Voluntary repayment agreements as an alternative to salary 
          offset.
309.14 Special review.
309.15 Notice of salary offset.
309.16 Procedures for salary offset.
309.17 Coordinating salary offset with other agencies.
309.18 Interest, penalties and administrative costs.
309.19 Refunds.
309.20 Request for the services of a hearing official from the creditor 
          agency.
309.21 Non-waiver of rights by payments.

                       Subpart C_Tax Refund Offset

309.22 Applicability and scope.
309.23 Past-due legally enforceable debt.
309.24 Definitions.
309.25 Peace Corps' participation in the IRS tax refund offset program.
309.26 Procedures.
309.27 Referral of debts for offset.
309.28 Notice requirements before offset.

                     Subpart D_Administrative Offset

309.29 Applicability and scope.
309.30 Definitions.
309.31 General.
309.32 Demand for payment--notice.
309.33 Debtor's failure to respond.
309.34 Agency review.
309.35 Hearing.
309.36 Written agreement for repayment.
309.37 Administrative offset procedures.
309.38 Civil and Foreign Service Retirement Fund.
309.39 Jeopardy procedure.

Subpart E_Use of Consumer Reporting Agencies and Referrals to Collection 
                                Agencies

309.40 Use of consumer reporting agencies.
309.41 Referrals to collection agencies.

 Subpart F_Compromise, Suspension or Termination and Referral of Claims

309.42 Compromise.
309.43 Suspending or terminating collection.
309.44 Referral of claims.

    Authority: 31 U.S.C. 3701-3719; 5 U.S.C. 5514; 22 U.S.C. 2503(b); 31 
U.S.C. 3720A; 4 CFR parts 101-105; 5 CFR part 550; 26 CFR 301.6402-6T.

    Source: 58 FR 2978, Jan. 7, 1993, unless otherwise noted.



                      Subpart A_General Provisions



Sec. 309.1  General purpose.

    This part prescribes the procedures to be used by the Peace Corps of 
the United States (Peace Corps) in the collection of claims owed to 
Peace Corps and to the United States.



Sec. 309.2  Scope.

    (a) Applicability of Federal Claims Collection Standards (FCCS). 
Except as set forth in this part or otherwise provided by law, Peace 
Corps will conduct administrative actions to collect claims (including 
offset, compromise, suspension, termination, disclosure and referral) in 
accordance with the Federal Claims Collection Standards of the General 
Accounting Office and the Department of Justice, 4 CFR parts 101 through 
105.
    (b) This part is not applicable to:
    (1) Claims against any foreign country or any political subdivision 
thereof, or any public international organization.
    (2) Claims where the Peace Corps Director (or designee) determines 
that the achievement of the purposes of the Peace Corps Act, as amended, 
22 U.S.C. 2501 et seq., or any other provision of law administered by 
the Peace Corps require a different course of action.



Sec. 309.3  Definitions.

    As used in this part (except where the context clearly indicates, or 
where the term is otherwise defined elsewhere in this part) the 
following definitions shall apply:
    (a) Agency means:
    (1) An Executive Agency as defined by section 105 of title 5, United 
States

[[Page 33]]

Code, including the U.S. Postal Service and the U.S. Postal Rate 
Commission;
    (2) A military department as defined by section 102 of title 5, 
United States Code.
    (3) An agency or court of the judicial branch including a court as 
defined in section 610 of title 28, United States Code, the District 
Court for the Northern Mariana Islands and the Judicial Panel on 
Multidistrict Litigation;
    (4) An agency of the legislative branch, including the U.S. Senate 
and the U.S. House of Representatives; and
    (5) Other independent establishments that are entities of the 
Federal Government.
    (b) Certification means a written debt claim form received from a 
creditor agency which requests the paying agency to offset the salary of 
an employee.
    (c) Consumer reporting agency means a reporting agency as defined in 
31 U.S.C. 3701(a)(3).
    (d) Creditor agency means the agency to which the debt is owed.
    (e) The term debt and claim refers to an amount of money or property 
which has been determined by an appropriate agency official to be owed 
to the United States from any person, organization or entity, except 
another Federal agency. A debtor's liability arising from a particular 
contract or transaction shall be considered a single claim for purposes 
of monetary ceilings of the FCCS.
    (f) Delinquent debt means any debt which has not been paid by the 
date specified by the Government in writing or in an applicable 
contractual agreement for payment or which has not been satisfied in 
accordance with a repayment agreement.
    (g) Disposable pay means that part of current basic pay, special 
pay, incentive pay, retired pay, retainer pay, or, in the case of an 
employee not entitled to basic pay, other authorized pay remaining after 
the deduction of any amount required by law to be withheld. These 
deductions are described in 5 CFR 581.105(b) through (f). These 
deductions include, but are not limited to: Social Security 
withholdings; Federal, State and local tax withholdings; retirement 
contributions; and life insurance premiums.
    (h) Employee means a current or former employee of the Peace Corps 
or other agency, including a member of the Armed Forces or Reserve of 
the Armed Forces of the United States.
    (i) FCCS means the Federal Claims Collection Standards jointly 
published by the Department of Justice and the General Accounting Office 
at 4 CFR parts 101 through 105.
    (j) Hearing official means an individual responsible for conducting 
any hearing with respect to the existence or amount of a debt claimed, 
and rendering a decision on the basis of such hearing. Except in the 
case of an administrative law judge, a hearing official may not be under 
the supervision or control of the Peace Corps when the Peace Corps is 
the creditor agency.
    (k) Paying agency means the agency which employs the individual and 
authorizes the payment of his or her current pay. In some cases, the 
Peace Corps may be both the creditor and the paying agency.
    (l) Notice of intent to offset or notice of intent means a written 
notice from a creditor agency to an employee which alleges that the 
employee owes a debt to the creditor agency and apprising the employee 
of certain administrative rights.
    (m) Notice of salary offset means a written notice from the paying 
agency to an employee after a certification has been issued by a 
creditor agency, informing the employee that salary offset will begin at 
the next officially established pay interval.
    (n) Payroll office means the payroll office in the paying agency 
which is primarily responsible for the payroll records and the 
coordination of pay matters with the appropriate personnel office with 
respect to an employee.
    (o) Salary offset means an administrative offset to collect a debt 
under 5 U.S.C. 5514 by deduction at one or more officially established 
pay intervals from the current pay account of an employee, without the 
employee's consent.
    (p) Salary Offset Coordination Officer means an official designated 
by the Director who is responsible for coordinating debt collection 
activities for the Peace Corps.

[[Page 34]]

    (q) Waiver means the cancellation, remission, forgiveness, or 
nonrecovery of a debt or debt related charge as permitted or required by 
law.



Sec. 309.4  Interest, penalties, and administrative costs.

    (a) Except as otherwise provided by statute, contract or excluded in 
accordance with FCCS, Peace Corps will assess:
    (1) Interest on unpaid claims in accordance with existing Treasury 
rules and regulations, unless the agency determines that a higher rate 
is necessary to protect the interests of the United States.
    (2) Penalty charges at a rate of 6 percent a year on any portion of 
a claim that is delinquent for more than 90 days.
    (3) Administrative charges to cover the costs of processing and 
handling the debt beyond the payment due date.
    (b) Late payment charges shall be computed from the date of mailing 
or hand delivery of the notice of the claim and interest requirements.
    (c) When a debt is paid in partial or installment payments, amounts 
received shall be applied first to outstanding penalty and 
administrative cost charges, second to accrued interest, and then to 
outstanding principal.
    (d) Waiver. Peace Corps will consider waiver of interest, penalties 
and/or administrative costs in accordance with the FCCS, 4 CFR 
102.13(g).



Sec. 309.5  Designation.

    The Chief Financial Officer and his or her delegates, or any person 
discharging the functions presently vested in the Chief Financial 
Officer, are designated to perform all the duties for which the Director 
is responsible under the foregoing statutes and Joint Regulations: 
Provided, however, That no compromise of a claim shall be effected or 
collection action terminated except with the concurrence of the General 
Counsel. No such concurrence shall be required with respect to the 
compromise or termination of collection activity on any claim in which 
the unpaid amount of the debt is $300 or less.



                         Subpart B_Salary Offset



Sec. 309.6  Purpose.

    The purpose of the Debt Collection Act of 1982 (Pub. L. 97-365), is 
to provide a comprehensive statutory approach to the collection of debts 
due the United States Government. This subpart implements section 5 
thereof which authorizes the collection of debts owed by Federal 
employees to the Federal Government by means of salary offsets. No claim 
may be collected by salary offset if the debt has been outstanding for 
more than 10 years after the agency's right to collect the debt first 
accrued, unless facts material to the Government's right to collect were 
not known and could not reasonably have been known by the official or 
officials who were charged with the responsibility for discovery and 
collection of such debts.



Sec. 309.7  Scope.

    (a) This subpart provides Peace Corps' procedures for the collection 
by salary offset of a Federal employee's pay to satisfy certain past due 
debts owed the United States Government.
    (b) This subpart applies to collections by the Peace Corps from:
    (1) Federal employees who owe debts to the Peace Corps; and
    (2) Employees of the Peace Corps who owe debts to other agencies.
    (c) This subpart does not apply to debts or claims arising under the 
Internal Revenue Code of 1954, as amended (26 U.S.C. 1 et seq.); the 
Social Security Act (42 U.S.C. 301 et seq.); the tariff laws of the 
United States; or to any case where collection of a debt by salary 
offset is explicitly provided for or prohibited by another statute 
(e.g., travel advances in 5 U.S.C. 5705 and employee training expenses 
in 5 U.S.C. 4108).
    (d) This subpart does not apply to any adjustment to pay arising out 
of an employee's election of coverage or a change in coverage under a 
Federal benefits program requiring periodic deductions from pay, if the 
amount to be recovered was accumulated over four pay periods or less.

[[Page 35]]

    (e) Nothing in this subpart precludes the compromise, suspension, or 
termination of collection actions where appropriate under the standards 
implementing the Federal Claims Collection Act (31 U.S.C. 3711 et seq.; 
4 CFR parts 101 through 105).



Sec. 309.8  Applicability of regulations.

    The provisions of this subpart are to be followed in instances 
where:
    (a) The Peace Corps is owed a debt by an individual currently 
employed by another agency;
    (b) The Peace Corps is owed a debt by an individual who is a current 
employee of the Peace Corps; or
    (c) The Peace Corps currently employs an individual who owes a debt 
to another Federal agency. Upon receipt of proper certification from the 
creditor agency, the Peace Corps will offset the debtor-employee's 
salary in accordance with these regulations.



Sec. 309.9  Waiver requests and claims to the General Accounting Office.

    The provisions of this subpart do not preclude an employee from 
requesting waiver of an overpayment under 5 U.S.C. 5584 or 8346(b), 10 
U.S.C. 2774, 32 U.S.C. 716, or in any way questioning the amount or 
validity of a debt by submitting a subsequent claim to the General 
Accounting Office in accordance with the procedures prescribed by the 
General Accounting Office. This subpart also does not preclude an 
employee from requesting a waiver pursuant to other statutory provisions 
pertaining to the particular debts being collected.



Sec. 309.10  Notice requirements before offset.

    (a) Deductions under the authority of 5 U.S.C. 5514 shall not be 
made unless the creditor agency first provides the employee with written 
notice that he/she owes a debt to the Federal Government at least 30 
calendar days before salary offset is to be initiated. When Peace Corps 
is the creditor agency this notice of intent to offset an employee's 
salary shall be hand-delivered or sent by certified mail to the most 
current address that is available. The written notice will state:
    (1) That Peace Corps has reviewed the records relating to the claim 
and has determined that a debt is owed, its origin and nature, and the 
amount of the debt;
    (2) The intention of Peace Corps to collect the debt by means of 
deduction from the employee's current disposable pay account until the 
debt and all accumulated interest is paid in full;
    (3) The amount, frequency, approximate beginning date, and duration 
of the intended deductions;
    (4) An explanation of the Peace Corps' policy concerning interest, 
penalties and administrative costs, including a statement that such 
assessments must be made unless excused in accordance with Sec. 
309.4(d);
    (5) The employee's right to inspect and copy all records of the 
Peace Corps pertaining to the debt claimed or to receive copies of such 
records if personal inspection is impractical;
    (6) The right to a hearing conducted by a hearing official (an 
administrative law judge, or alternatively, a hearing official not under 
the supervision or control of the Peace Corps) with respect to the 
existence and amount of the debt claimed, or the repayment schedule 
(i.e., the percentage of disposable pay to be deducted each pay period), 
so long as a petition is filed by the employee as prescribed in Sec. 
309.11;
    (7) If not previously provided, the opportunity (under terms 
agreeable to the Peace Corps) to establish a schedule for the voluntary 
repayment of the debt or to enter into a written agreement to establish 
a schedule for repayment of the debt in lieu of offset. The agreement 
must be in writing, signed by both the employee and the creditor agency 
(4 CFR 102.2(e));
    (8) The name, address and telephone number of an officer or employee 
of the Peace Corps who may be contacted concerning procedures for 
requesting a hearing;
    (9) The method and time period for requesting a hearing;
    (10) That the timely filing of a petition for hearing within 15 
calendar days after delivery of the notice of intent to offset will stay 
the commencement of collection proceedings;

[[Page 36]]

    (11) The name and address of the office to which the petition should 
be sent;
    (12) That the Peace Corps will initiate certification procedures to 
implement a salary offset, as appropriate, (which may not exceed 15 
percent of the employee's disposable pay) not less than 30 calendar days 
from the date of delivery of the notice of debt, unless the employee 
files a timely petition for a hearing;
    (13) That a final decision on the hearing (if one is requested) will 
be issued at the earliest practical date, but not later than 60 calendar 
days after the filing of the petition requesting the hearing, unless the 
employee requests and the hearing official grants a delay in the 
proceedings;
    (14) That any knowingly false or frivolous statements, 
representations or evidence may subject the employee to:
    (i) Disciplinary procedures appropriate under chapter 75 of 5 
U.S.C., 5 CFR 752, or any other applicable statutes or regulations;
    (ii) Penalties under the False Claims Act, Sec. Sec. 3729-3731 of 
title 31, United States Code, or any other applicable statutory 
authority; and
    (iii) Criminal penalties under 18 U.S.C. sections 286, 287, 1001, 
and 1002 or any other applicable authority;
    (15) Any other rights and remedies available to the employee under 
statutes or regulations governing the program for which the collection 
is being made;
    (16) That unless there are applicable contractual or statutory 
provisions to the contrary, amounts paid on or deducted for the debt 
which are later waived or found not owed to the United States will be 
promptly refunded to the employee; and
    (17) That proceedings with respect to such debt are governed by 
section 5 of the Debt Collection Act of 1982 (5 U.S.C. 5514).
    (b) The Peace Corps is not required to comply with paragraph (a) of 
this section for any adjustment to pay arising out of an employee's 
election of coverage or a change in coverage under a Federal benefits 
program requiring periodic deductions from pay if the amount to be 
recovered was accumulated over four pay periods or less.



Sec. 309.11  Review.

    (a) Request for review. Except as provided in paragraph (b) of this 
section, an employee who desires a review concerning the existence or 
amount of the debt or the proposed offset schedule must send a request 
to the office designated in the notice of intent. See Sec. 
309.10(a)(8). The request for review must be received by the designated 
office not later than 15 calendar days after the date of delivery of the 
notice as provided in Sec. 309.10(a). The request must be signed by the 
employee and should identify and explain with reasonable specificity and 
brevity the facts, evidence and witnesses which the employee believes 
support his or her position. If the employee objects to the percentage 
of disposable pay to be deducted from each check, the request should 
state the objection and the reasons for it. The employee must also 
specify whether an oral hearing or a review of the documentary evidence 
is requested. If an oral hearing is desired, the request should explain 
why the matter cannot be resolved by review of the documentary evidence 
alone.
    (b) Failure to timely submit. (1) If the employee files a petition 
for a review after the expiration of the 15 calendar day period provided 
for in paragraph (a) of this section, the designated office may accept 
the request if the employee can show that the delay was the result of 
circumstances beyond his or her control, or because of a failure to 
receive the notice of the filing deadline (unless the employee has 
actual knowledge of the filing deadline).
    (2) An employee waives the right to a review, and will have his or 
her disposable pay offset in accordance with Peace Corps' offset 
schedule, if the employee fails to file a request for a hearing unless 
such failure is excused as provided in paragraph (b)(1) of this section.
    (3) If the employee fails to appear at an oral hearing of which he 
or she was notified, unless the hearing official determines failure to 
appear was due to circumstances beyond the employee's control, his or 
her appeal will be decided on the basis of the documents then available 
to the hearing official.
    (c) Representation at the hearing. The creditor agency may be 
represented by

[[Page 37]]

a representative of its choice. The employee may represent himself or 
herself or may be represented by an individual of his or her choice and 
at his or her expense.
    (d) Review of Peace Corps records related to the debt.
    (1) An employee who intends to inspect or copy creditor agency 
records related to the debt in accordance with Sec. 309.10(a)(5), must 
send a letter to the official designated in the notice of intent to 
offset stating his or her intention. The letter must be sent within 15 
calendar days after receipt of the notice.
    (2) In response to a timely request submitted by the debtor, the 
designated official will notify the employee of the location and time 
when the employee may inspect and copy records related to the debt.
    (3) If personal inspection is impractical, copies of such records 
shall be sent to the employee.
    (e) Hearing official. Unless the Peace Corps appoints an 
administrative law judge to conduct the hearing, the Peace Corps must 
obtain a hearing official who is not under the supervision or control of 
the Peace Corps.
    (f) Obtaining the services of a hearing official when the Peace 
Corps is the creditor agency.
    (1) When the debtor is not a Peace Corps employee, and in the event 
that the Peace Corps cannot provide a prompt and appropriate hearing 
before an administrative law judge or before a hearing official 
furnished pursuant to another lawful arrangement, the Peace Corps may 
contact an agent of the paying agency designated in appendix A to part 
581 of title 5, Code of Federal Regulations or as otherwise designated 
by the agency, and request a hearing official.
    (2) When the debtor is a Peace Corps employee, the Peace Corps may 
contact any agent of another agency designated in appendix A to part 581 
of title 5, Code of Federal Regulations or otherwise designated by that 
agency, to request a hearing official.
    (g) Procedure. (1) If the employee requests a review, the hearing 
official or administrative law judge shall notify the employee of the 
form of the review to be provided. If an oral hearing is authorized, the 
notice shall set forth the date, time and location of the hearing. If 
the review will be on documentary evidence, the employee shall be 
notified that he or she should submit arguments in writing to the 
hearing official or administrative law judge by a specified date, after 
which the record will be closed. This date shall give the employee 
reasonable time (not less than 14 calendar days) to submit 
documentation.
    (2) Oral hearing. An employee who requests an oral hearing shall be 
provided an oral hearing if the hearing official or administrative law 
judge determines that the matter cannot be resolved by review of 
documentary evidence alone (e.g. when an issue of credibility or 
veracity is involved). The hearing is not an adversarial adjudication, 
and need not take the form of an evidentiary hearing. Oral hearings may 
take the form of, but are not limited to:
    (i) Informal conferences with the hearing official or administrative 
law judge, in which the employee and agency representative will be given 
full opportunity to present evidence, witnesses and argument;
    (ii) Informal meetings with an interview of the employee; or
    (iii) Formal written submissions, with an opportunity for oral 
presentation.
    (3) Paper review. If the hearing official or administrative law 
judge determines that an oral hearing is not necessary, he or she will 
make the determination based upon a review of the available written 
record.
    (4) Record. The hearing official must maintain a summary record of 
any hearing provided by this subpart. See 4 CFR 102.3. Witnesses who 
testify in oral hearings will do so under oath or affirmation.
    (h) Date of decision. The hearing official or administrative law 
judge shall issue a written opinion stating his or her decision, based 
upon documentary evidence and information developed at the hearing, as 
soon as practicable after the hearing, but not later than 60 calendar 
days after the date on which the petition was received by the creditor 
agency, unless the employee requests a delay in the proceedings. In

[[Page 38]]

such case the 60 day decision period shall be extended by the number of 
days by which the hearing was postponed.
    (i) Content of decision. The written decision shall include:
    (1) A statement of the facts presented to support the origin, 
nature, and amount of the debt;
    (2) The hearing official's findings, analysis and conclusions; and
    (3) The terms of any repayment schedules, if applicable.
    (j) Failure to appear. In the absence of good cause shown (e.g., 
excused illness), an employee who fails to appear at a hearing shall be 
deemed, for the purpose of this subpart, to admit the existence and 
amount of the debt as described in the notice of intent. If the 
representative of the creditor agency fails to appear, the hearing 
official shall schedule a new hearing date upon the request of the 
agency representative upon showing of good cause. Both parties shall be 
given the time and place of the new hearing.



Sec. 309.12  Certification.

    (a) The Peace Corps salary offset coordination officer shall provide 
a certification to the paying agency in all cases where:
    (1) The hearing official determines that a debt exists;
    (2) The employee admits the existence and amount of the debt by 
failing to request a review; or
    (3) The employee admits the existence of the debt by failing to 
appear at a hearing.
    (b) The certification must be in writing and must state:
    (1) That the employee owes the debt;
    (2) The amount and basis of the debt;
    (3) The date the Government's right to collect the debt first 
accrued;
    (4) That the Peace Corps' regulations have been approved by OPM 
pursuant to 5 CFR part 550, subpart K;
    (5) The amount and date of any lump sum payment;
    (6) If the collection is to be made in installments, the number of 
installments to be collected, the amount of each installment, and the 
date of the first installment, if a date other than the next officially 
established pay period is required; and
    (7) The date the action was taken and that it was taken pursuant to 
5 U.S.C. 5514.



Sec. 309.13  Voluntary repayment agreements as an alternative to salary 

offset.

    (a) In response to a notice of intent, an employee may propose a 
written agreement to repay the debt as an alternative to salary offset. 
Any employee who wishes to repay a debt without salary offset shall 
submit in writing a proposed agreement to repay the debt. The proposal 
shall admit the existence of the debt and set forth a proposed repayment 
schedule. Any proposal under this paragraph must be received by the 
official designated in that notice within 15 calendar days after receipt 
of the notice of intent.
    (b) When the Peace Corps is the creditor agency, in response to a 
timely proposal by the debtor the agency will notify the employee 
whether the employee's proposed written agreement for repayment is 
acceptable. It is within the agency's discretion to accept a repayment 
agreement instead of proceeding by offset.
    (c) If the Peace Corps decides that the proposed repayment agreement 
is unacceptable, the employee will have 15 calendar days from the date 
he or she received notice of the decision to file a petition for a 
review.
    (d) If the Peace Corps decides that the proposed repayment agreement 
is acceptable, the alternative arrangement must be in writing and signed 
by both the employee and a designated agency official.



Sec. 309.14  Special review.

    (a) An employee subject to salary offset or a voluntary repayment 
agreement, may at any time request a special review by the creditor 
agency of the amount of the salary offset or voluntary payment, based on 
materially changed circumstances such as, but not limited to, 
catastrophic illness, divorce, death, or disability.
    (b) In determining whether an offset would prevent the employee from 
meeting essential subsistence expenses (costs for food, housing, 
clothing, transportation and medical care), the

[[Page 39]]

employee shall submit a detailed statement and supporting documents for 
the employee, his or her spouse and dependents indicating:
    (1) Income from all sources;
    (2) Assets;
    (3) Liabilities;
    (4) Number of dependents;
    (5) Expenses for food, housing, clothing and transportation;
    (6) Medical expenses; and
    (7) Exceptional expenses, if any.
    (c) If the employee requests a special review under this section, 
the employee shall file an alternative proposed offset or payment 
schedule and a statement, with supporting documents, showing why the 
current salary offset or payments result in significant financial 
hardship to the employee.
    (d) The Peace Corps shall evaluate the statement and supporting 
documents, and determine whether the original offset or repayment 
schedule imposes significant financial hardship on the employee. The 
Peace Corps shall notify the employee in writing of such determination, 
including, if appropriate, a revised offset or payment schedule.
    (e) If the special review results in a revised offset or repayment 
schedule, the Peace Corps salary offset coordination officer shall 
provide a new certification to the paying agency.



Sec. 309.15  Notice of salary offset.

    (a) Upon receipt of proper certification of the creditor agency, the 
Peace Corps payroll office will send the employee a written notice of 
salary offset. Such notice shall, at a minimum:
    (1) Contain a copy of the certification received from the creditor 
agency; and
    (2) Advise the employee that salary offset will be initiated at the 
next officially established pay interval.
    (b) The payroll office shall provide a copy of the notice to the 
creditor agency and advise such agency of the dollar amount to be offset 
and the pay period when the offset will begin.



Sec. 309.16  Procedures for salary offset.

    (a) The Director (or designee) shall coordinate salary deductions 
under this subpart.
    (b) The payroll office shall determine the amount of the employee's 
disposable pay and will implement the salary offset.
    (c) Deductions shall begin within 3 official pay periods following 
receipt by the payroll office of certification.
    (d) Types of collection. (1) Lump-sum payment. If the amount of the 
debt is equal to or less than 15 percent of disposable pay, such debt 
generally will be collected in one lump-sum payment.
    (2) Installment deductions. Installment deductions will be made over 
a period not greater than the anticipated period of employment. The size 
and frequency of installment deductions will bear a reasonable relation 
to the size of the debt and the employee's ability to pay. However, the 
amount deducted from any period may not exceed 15 percent of the 
disposable pay from which the deduction is made unless the employee has 
agreed in writing to the deduction of a greater amount.
    (3) Lump-sum deductions from final check. A lump-sum deduction 
exceeding the 15 percent of disposable pay limitation may be made from 
any final salary payment pursuant to 31 U.S.C. 3716 in order to 
liquidate the debt, whether the employee is being separated voluntarily 
or involuntarily.
    (4) Lump-sum deductions from other sources. Whenever an employee 
subject to salary offset is separated from the Peace Corps, and the 
balance of the debt cannot be liquidated by offset of the final salary 
check, the Peace Corps, pursuant to 31 U.S.C. 3716, may offset any later 
payments of any kind against the balance of the debt.
    (e) Multiple debts. In instances where two or more creditor agencies 
are seeking salary offsets, or where two or more debts are owed to a 
single creditor agency, the payroll office may, at its discretion, 
determine whether one or more debts should be offset simultaneously 
within the 15 percent limitation.
    (f) Precedence of debts owed to the Peace Corps. For Peace Corps 
employees, debts owed to the agency generally take precedence over debts 
owed to other agencies. In the event that a debt to the Peace Corps is 
certified while an employee is subject to a salary offset to repay 
another agency, the payroll office may decide whether to have that debt 
repaid in full before collecting its

[[Page 40]]

claim or whether changes should be made in the salary deduction being 
sent to the other agency. If debts owed the Peace Corps can be collected 
in one pay period, the payroll office may suspend the salary offset to 
the other agency for that pay period in order to liquidate the Peace 
Corps' debt. When an employee owes two or more debts, the best interests 
of the Government shall be the primary consideration in the 
determination by the payroll office of the order of the debt collection.



Sec. 309.17  Coordinating salary offset with other agencies.

    (a) Responsibility of the Peace Corps as the creditor agency. (1) 
The Director or Director's designee shall coordinate debt collections 
and shall, as appropriate:
    (i) Arrange for a hearing upon proper petition by a federal 
employee; and
    (ii) Prescribe such practices and procedures as may be necessary to 
carry out the intent of this subpart.
    (2) Designate a salary offset coordination officer who will be 
responsible for:
    (i) Ensuring that each notice of intent to offset is consistent with 
the requirements of Sec. 309.10;
    (ii) Ensuring that each certification of debt sent to a paying 
agency is consistent with the requirements of Sec. 309.12;
    (iii) Obtaining hearing officials from other agencies pursuant to 
Sec. 309.11(f); and
    (iv) Ensuring that hearings are properly scheduled.
    (3) Request recovery from current paying agency. Upon completion of 
the procedures established in these regulations and pursuant to 5 U.S.C. 
5514, the Peace Corps must:
    (i) Certify, in writing, that the employee owes the debt, the amount 
and basis of the debt, the date on which payments are due, the date the 
Government's right to collect the debt first accrued, and that the Peace 
Corps' regulations implementing 5 U.S.C. 5514 have been approved by the 
Office of Personnel Management;
    (ii) Advise the paying agency of the actions taken under 5 U.S.C. 
5514(a) and give the dates the actions were taken (unless the employee 
has consented to the salary offset in writing or signed a statement 
acknowledging receipt of the required procedures and the written consent 
or statement is forwarded to the paying agency);
    (iii) Except as otherwise provided in paragraph (a)(3) of this 
section, submit a debt claim containing the information specified in 
paragraphs (a)(3) (i) and (ii) of this section and an installment 
agreement (or other instruction on the payment schedule), if applicable, 
to the employee's paying agency;
    (iv) If the employee is in the process of separating, the Peace 
Corps must submit its debt claim to the employee's paying agency for 
collection as provided in Sec. 309.16. The paying agency must certify 
the total amount of its collection and notify the creditor agency and 
the employee as provided in paragraph (b)(4) of this section. If the 
paying agency is aware that the employee is entitled to payments from 
the Civil Service Retirement and Disability Fund, or other similar 
payments, it must provide written notification to the agency responsible 
for making such payments that the debtor owes a debt (including the 
amount) and that the provisions of this section have been fully complied 
with. However, the Peace Corps must submit a properly certified claim to 
the agency responsible for making such payments before the collection 
can be made.
    (v) If the employee is already separated and all payments due from 
his or her former paying agency have been paid, the Peace Corps may 
request, unless otherwise prohibited, that money due and payable to the 
employee from the Civil Service Retirement and Disability Fund (5 CFR 
831.1801 et seq.) or other similar funds, be administratively offset to 
collect the debt (See 31 U.S.C. 3716 and 41 CFR 102.4).
    (4) When an employee transfers to another paying agency, the Peace 
Corps need not repeat the due process procedures described in 5 U.S.C. 
5514 and this subpart to continue the collection. The Peace Corps must 
review the debt upon receiving the former paying agency's notice of the 
employee's transfer to make sure the collection is continued by the new 
paying agency.
    (b) Responsibility of the Peace Corps as the paying agency--(1) 
Complete claim.

[[Page 41]]

When the Peace Corps receives a certified claim from a creditor agency, 
deductions should be scheduled to begin at the next officially 
established pay interval. The employee must receive written notice that 
the Peace Corps has received a certified debt claim from the creditor 
agency (including the amount) and written notice of the date salary 
offset will begin and the amount of such deductions.
    (2) Incomplete claim. When the Peace Corps receives an incomplete 
certification of debt from a creditor agency, the Peace Corps must 
return the debt claim with notice that procedures under 5 U.S.C. 5514 
and this subpart must be followed and a properly certified debt claim 
received before action will be taken to collect from the employee's 
current pay account.
    (3) Review. The Peace Corps is not authorized to review the merits 
of the creditor agency's determination with respect to the amount or 
validity of the debt certified by the creditor agency.
    (4) Employees who transfer from one paying agency to another. If, 
after the creditor agency has submitted the debt claim to the Peace 
Corps, the employee transfers to another agency before the debt is 
collected in full, the Peace Corps must certify the total amount 
collected on the debt. One copy of the certification must be furnished 
to the employee and one copy to the creditor agency along with notice of 
the employee's transfer.



Sec. 309.18  Interest, penalties and administrative costs.

    The Peace Corps shall assess interest, penalties and administrative 
costs on debts owed pursuant to 31 U.S.C. 3717 and 4 CFR 102.13.



Sec. 309.19  Refunds.

    (a) In instances where the Peace Corps is the creditor agency, it 
shall promptly refund any amounts deducted under the authority of 5 
U.S.C. 5514 when:
    (1) The debt is waived or otherwise found not to be owed to the 
United States; or
    (2) An administrative or judicial order directs the Peace Corps to 
make a refund.
    (b) Unless required or permitted by law or contract, refunds under 
this subpart shall not bear interest.



Sec. 309.20  Request for the services of a hearing official from the creditor 

agency.

    (a) The Peace Corps will provide a hearing official upon request of 
the creditor agency when the debtor is employed by the Peace Corps and 
the creditor agency cannot provide a prompt and appropriate hearing 
before an administrative law judge or before a hearing official 
furnished pursuant to another lawful arrangement.
    (b) The Peace Corps will provide a hearing official upon request of 
a creditor agency when the debtor works for the creditor agency and that 
agency cannot arrange for a hearing official.
    (c) The salary offset coordination officer will appoint qualified 
personnel to serve as hearing officials.
    (d) Services rendered under this section will be provided on a fully 
reimbursable basis pursuant to the Economy Act of 1932, as amended, 31 
U.S.C. 1535.



Sec. 309.21  Non-waiver of rights by payments.

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



                       Subpart C_Tax Refund Offset



Sec. 309.22  Applicability and scope.

    This subpart implements 31 U.S.C. 3720A which authorizes the 
Internal Revenue Service (IRS) to reduce a tax refund by the amount of a 
past-due legally enforceable debt owed to the United States.



Sec. 309.23  Past-due legally enforceable debt.

    For purposes of this subpart, a past-due legally enforceable debt 
referable to the IRS is a debt which is owed to the United States and:

[[Page 42]]

    (a) Except in the case of a judgment debt, has been delinquent for 
at least 3 months and will not have been delinquent more than 10 years 
at the time offset is made;
    (b) Cannot be currently collected pursuant to the salary offset 
provisions of 5 U.S.C. 5514;
    (c) Is ineligible for administrative offset under 31 U.S.C. 3716(a) 
by reason of 31 U.S.C. 3716(c)(2) or cannot be collected by 
administrative offset under 31 U.S.C. 3716(a) by the Peace Corps against 
amounts payable to the debtor by the Peace Corps;
    (d) With respect to which the Peace Corps has given the taxpayer at 
least 60 days to present evidence that all or part of the debt is not 
past-due or legally enforceable, has considered evidence presented by 
such taxpayer, and determined that an amount of such debt is past-due 
and legally enforceable;
    (e) Has been disclosed by the Peace Corps to a consumer reporting 
agency as authorized by 31 U.S.C. 3711(f), unless the consumer reporting 
agency would be prohibited from reporting information concerning the 
debt by reason of 15 U.S.C. 1681c, or unless the amount of the debt does 
not exceed $100;
    (f) Is at least $25; and
    (g) With respect to which the Peace Corps has notified or has made a 
reasonable attempt to notify the taxpayer that:
    (1) The debt is past due, and
    (2) Unless repaid within 60 days thereafter, the debt will be 
referred to the IRS for offset against any overpayment of tax. For the 
purposes of paragraph (g) of this section, in order to make a reasonable 
attempt to notify the debtor, Peace Corps must use such address for the 
debtor as may be obtainable from IRS pursuant to section 6103(m)(2), 
(m)(4), or (m)(5) of the Internal Revenue Code.



Sec. 309.24  Definitions.

    For purpose of this subpart: Commissioner means the Commissioner of 
the Internal Revenue Service.
    Memorandum of Understanding (MOU or agreement) means the agreement 
between the IRS and the Peace Corps which prescribes the specific 
conditions the Peace Corps must meet before the IRS will accept 
referrals for tax refund offsets.



Sec. 309.25  Peace Corps' participation in the IRS tax refund offset program.

    (a) The Peace Corps will provide information to the IRS within the 
time frame prescribed by the Commissioner of the IRS to enable the 
Commissioner to make a final determination as to the Peace Corps' 
participation in the tax refund offset program. Such information will 
include a description of:
    (1) The size and age of the Peace Corps' inventory of delinquent 
debts;
    (2) The prior collection efforts that the inventory reflects; and
    (3) The quality controls the Peace Corps maintains to assure that 
any debt that may be submitted for tax refund offset will be valid and 
enforceable.
    (b) In accordance with the timetable specified by the Commissioner, 
the Peace Corps will submit test magnetic media to the IRS, in such form 
and containing such data as the IRS shall specify.
    (c) The Peace Corps will provide the IRS with a telephone number 
which the IRS may furnish to individuals whose refunds have been offset 
to obtain information concerning the offset.



Sec. 309.26  Procedures.

    (a) The Chief Financial Officer (or designee) shall be the point of 
contact with the IRS for administrative matters regarding the offset 
program.
    (b) The Peace Corps shall ensure that:
    (1) Only those past-due legally enforceable debts described in Sec. 
309.23 are forwarded to the IRS for offset; and
    (2) The procedures prescribed in the MOU between the Peace Corps and 
the IRS are followed in developing past-due debt information and 
submitting the debts to the IRS.
    (c) The Peace Corps shall submit a notification of a taxpayer's 
liability for past-due legally enforceable debt to the IRS on magnetic 
media as prescribed by the IRS. Such notification shall contain:
    (1) The name and taxpayer identifying number (as defined in section 
6109

[[Page 43]]

of the Internal Revenue Code) of the individual who is responsible for 
the debt;
    (2) The dollar amount of such past-due and legally enforceable debt;
    (3) The date on which the original debt became past due;
    (4) A statement accompanying each magnetic tape certifying that, 
with respect to each debt reported on the tape, all of the requirements 
of eligibility of the debt for referral for the refund offset have been 
satisfied. See Sec. 309.23.
    (d) The Peace Corps shall promptly notify the IRS to correct data 
submitted when the Peace Corps:
    (1) Determines that an error has been made with respect to a debt 
that has been referred;
    (2) Receives or credits a payment on such debt; or
    (3) Receives notification that the individual owing the debt has 
filed for bankruptcy under title 11 of the United States Code or has 
been adjudicated bankrupt and the debt has been discharged.
    (e) When advising debtors of an intent to refer a debt to the IRS 
for offset, the Peace Corps shall also advise the debtors of all 
remedial actions available to defer or prevent the offset from taking 
place.



Sec. 309.27  Referral of debts for offset.

    (a) The Peace Corps shall refer to the IRS for collection by tax 
refund offset, from refunds otherwise payable, only such past-due 
legally enforceable debts owed to the Peace Corps:
    (1) That are eligible for offset under the terms of 31 U.S.C. 3720A, 
section 6402(d) of the Internal Revenue Code, 26 CFR 301.6402-6T and the 
MOU; and
    (2) That information will be provided for each such debt as is 
required by the terms of the MOU.
    (b) Such referrals shall be made by submitting to the IRS a magnetic 
tape pursuant to Sec. 309.26(c), together with a written certification 
that the conditions or requirements specified in 26 CFR 301.6402-6T and 
the MOU have been satisfied with respect to each debt included in the 
referral on such tape. The certification shall be in the form specified 
in the MOU.



Sec. 309.28  Notice requirements before offset.

    (a) The Peace Corps must notify, or make a reasonable attempt to 
notify, the individual that:
    (1) The debt is past due; and
    (2) Unless repaid within 60 days thereafter, the debt will be 
referred to the IRS for offset against any refund of overpayment of tax.
    (b) The Peace Corps shall provide a mailing address for forwarding 
any correspondence and a contact name and telephone number for any 
questions.
    (c) The Peace Corps shall give the individual debtor at least 60 
days from the date of the notification to present evidence that all or 
part of the debt is not past due or legally enforceable. The Peace Corps 
shall consider the evidence presented by the individual and shall make a 
determination whether any part of such debt is past due and legally 
enforceable. For purposes of this subpart, evidence that collection of 
the debt is affected by a bankruptcy proceeding involving the individual 
shall bar referral of the debt to the IRS.
    (d) Notification given to a debtor pursuant to paragraphs (a), (b), 
and (c) of this section shall advise the debtor of how he or she may 
present evidence to the Peace Corps that all or part of the debt is not 
past due or legally enforceable. Such evidence may not be referred to, 
or considered by, individuals who are not officials, employees, or 
agents of the United States in making the determination required under 
paragraph (c) of this section. Unless such evidence is directly 
considered by an official or employee of the Peace Corps, and the 
determination required under paragraph (c) of this section has been made 
by an official or employee of the Peace Corps, any unresolved dispute 
with the debtor as to whether all or part of the debt is past due or 
legally enforceable must be referred to the Peace Corps for ultimate 
administrative disposition, and the Peace Corps must directly notify the 
debtor of its determination.



                     Subpart D_Administrative Offset



Sec. 309.29  Applicability and scope.

    The provisions of this subpart apply to the collection of debts owed 
to the

[[Page 44]]

United States arising from transactions with the Peace Corps. 
Administrative offset is authorized under section 5 of the Federal 
Claims Collection Act of 1966, as amended by the Debt Collection Act of 
1982 (31 U.S.C. 3716). These regulations are consistent with the Federal 
Claims Collection Standards on administrative offset issued jointly by 
the Department of Justice and the General Accounting Office as set forth 
in 4 CFR part 102.



Sec. 309.30  Definitions.

    (a) Administrative offset, as defined in 31 U.S.C. 3701(a)(1), means 
withholding money payable by the United States Government to, or held by 
the Government for, a person to satisfy a debt the person owes the 
Government.
    (b) Person includes a natural person or persons, profit or nonprofit 
corporation, partnership, association, trust, estate, consortium, or 
other entity which is capable of owing a debt to the United States 
Government except that agencies of the United States, or of any State or 
local government shall be excluded.



Sec. 309.31  General.

    (a) The Director of the Peace Corps (or designee) will determine the 
feasibility of collection by administrative offset on a case-by-case 
basis for each claim established. The Director (or designee) will 
consider the following issues in making a determination to collect a 
claim by administrative offset:
    (1) Can administrative offset be accomplished?
    (2) Is administrative offset practical and legal?
    (3) Does administrative offset best serve and protect the interest 
of the U.S. Government?
    (4) Is administrative offset appropriate given the debtor's 
financial condition?
    (b) The Director (or designee) may initiate administrative offset 
with regard to debts owed by a person to another agency of the United 
States Government, upon receipt of a request from the head of another 
agency or his or her designee, and a certification that the debt exists 
and that the person has been afforded the necessary due process rights.
    (c) The Director (or designee) may request another agency that holds 
funds payable to a Peace Corps debtor to offset the debt against the 
funds held and will provide certification that:
    (1) The debt exists; and
    (2) The person has been afforded the necessary due process rights.
    (d) No collection by administrative offset shall be made on any debt 
that has been outstanding for more than 10 years unless facts material 
to the Government's right to collect the debt were not known, and 
reasonably could not have been known, by the official or officials 
responsible for discovering the debt.
    (e) Administrative offset under this subpart may not be initiated 
against:
    (1) A debt in which administrative offset of the type of debt 
involved is explicitly provided for or prohibited by another statute;
    (2) Debts owed by other agencies of the United States or by any 
State or local Government; or
    (3) Debts arising under the Internal Revenue Code of 1954; the 
Social Security Act; or the tariff laws of the United States.
    (f) The procedures for administrative offset in this subpart do not 
apply to the offset of Federal salaries under 5 U.S.C. 5514.



Sec. 309.32  Demand for payment--notice.

    (a) Whenever possible, the Peace Corps will seek written consent 
from the debtor to initiate immediate collection before starting the 
formal notification process.
    (b) In cases where written agreement to collect cannot be obtained 
from the debtor, a formal notification process shall be followed, 4 CFR 
102.2. Prior to collecting a claim by administrative offset, the Peace 
Corps shall send to the debtor, by certified or registered mail with 
return receipt, written demands for payment in terms which inform the 
debtor of the consequences of failure to cooperate. A total of 3 
progressively stronger written demands at not more than 30 day intervals 
will normally be made unless a response to the first or second demand 
indicates that a further demand would be futile

[[Page 45]]

or the debtor's response does not require rebuttal, or other pertinent 
information indicates that additional written demands would be 
unnecessary. In determining the timing of the demand letters, the Peace 
Corps should give due regard to the need to act promptly so that, as a 
general rule, if necessary to refer the debt to the Department of 
Justice for litigation, such referral can be made within 1 year of the 
final determination of the fact and the amount of the debt. When 
appropriate to protect the Government's interests (for example, to 
prevent the statute of limitations from expiring), written demand may be 
preceded by other appropriate actions, including immediate referral for 
litigation.
    (c) Before offset is made, a written notice will be sent to the 
debtor. This notice will include:
    (1) The nature and amount of the debt;
    (2) The date when payment is due (not less than 30 days from the 
date of mailing or hand delivery of the notice);
    (3) The agency's intention to collect the debt by administrative 
offset, including asking the assistance of other Federal agencies to 
help in the offset whenever possible, if the debtor has not made payment 
by the payment due date or has not made an arrangement for payment by 
the payment due date;
    (4) Any provision for interest, late payment penalties and 
administrative charges, if payment is not received by the due date;
    (5) The possible reporting of the claim to consumer reporting 
agencies and the possibility that Peace Corps will forward the claim to 
a collection agency;
    (6) The right of the debtor to inspect and copy Peace Corps' records 
related to the claim;
    (7) The right of the debtor to request a review of the determination 
of indebtedness and, in the circumstances described below, to request an 
oral hearing from the Peace Corps;
    (8) The right of the debtor to enter into a written agreement with 
the agency to repay the debt in some other way; and
    (9) In appropriate cases, the right of the debtor to request a 
waiver.
    (d) Claims for payment of travel advances and employee training 
expenses require notification prior to administrative offset as 
described in this section. Because no oral hearing is required, notice 
of the right to a hearing need not be included in the notification.



Sec. 309.33  Debtor's failure to respond.

    If the debtor fails to respond to the notice described in Sec. 
309.32 (c) by the proposed effective date specified in the notice, the 
Peace Corps may take further action under this part or the FCCS under 4 
CFR parts 101 through 105. Peace Corps may collect by administrative 
offset if the debtor:
    (a) Has not made payment by the payment due date;
    (b) Has not requested a review of the claim within the agency as set 
out in Sec. 309.34; or
    (c) Has not made an arrangement for payment by the payment due date.



Sec. 309.34  Agency review.

    (a) A debtor may dispute the existence of the debt, the amount of 
the debt, or the terms of repayment. A request to review a disputed debt 
must be submitted to the Peace Corps official who provided notification 
within 30 calendar days of the receipt of the written notice described 
in Sec. 309.32(c).
    (b) The Peace Corps will provide a copy of the record to the debtor 
and advise him/her to furnish available evidence to support his or her 
position. Upon receipt of the evidence, the Peace Corps will review the 
written record of indebtedness and inform the debtor of its findings.
    (c) Pending the resolution of a dispute by the debtor, transactions 
in any of the debtor's accounts maintained by the Peace Corps may be 
temporarily suspended. Depending on the type of transaction the 
suspension could preclude its payment, removal, or transfer, as well as 
prevent the payment of interest or discount due thereon. Should the 
dispute be resolved in the debtor's favor, the suspension will be 
immediately lifted.
    (d) During the review period, interest, penalties, and 
administrative costs authorized under the Federal Claims

[[Page 46]]

Collection Act of 1966, as amended, will continue to accrue.



Sec. 309.35  Hearing.

    (a) A debtor will be provided a reasonable opportunity for an oral 
hearing when:
    (1)(i) By statute, consideration must be given to a request to waive 
the indebtedness;
    (ii) The debtor requests waiver of the indebtedness; and
    (iii) The waiver determination rests on an issue of creditability or 
veracity; or
    (2) The debtor requests reconsideration and the Peace Corps 
determines that the question of indebtedness cannot be resolved by 
reviewing the documentary evidence.
    (b) In cases where an oral hearing is provided to the debtor, the 
Peace Corps will conduct the hearing, and provide the debtor with a 
written decision.



Sec. 309.36  Written agreement for repayment.

    If the debtor requests a repayment agreement in place of offset, the 
Peace Corps has discretion and should use sound judgment to determine 
whether to accept a repayment agreement in place of offset. If the debt 
is delinquent and the debtor has not disputed its existence or amount, 
the Peace Corps will not accept a repayment agreement in place of offset 
unless the debtor is able to establish that offset would cause undue 
financial hardship or be unjust. No repayment arrangement will be 
considered unless the debtor submits a financial statement, executed 
under penalty of perjury, reflecting the debtor's assets, liabilities, 
income, and expenses. The financial statement must be submitted within 
10 business days of the Peace Corps' request for the statement. At the 
Peace Corps' option, a confess-judgment note or bond of indemnity with 
surety may be required for installment agreements. Notwithstanding the 
provisions of this section, any reduction or compromise of a claim will 
be governed by 4 CFR part 103 and 31 CFR 5.3.



Sec. 309.37  Administrative offset procedures.

    (a) If the debtor does not exercise the right to request a review 
within the time specified in Sec. 309.34, or if as a result of the 
review, it is determined that the debt is due and no written agreement 
is executed, then administrative offset shall be ordered in accordance 
with this subpart without further notice.
    (b) Travel advance. The Peace Corps will deduct outstanding advances 
provided to Peace Corps travelers from other amounts owed the traveler 
by the agency whenever possible and practicable. Monies owed by an 
employee for outstanding travel advances which cannot be deducted from 
other travel amounts due that employee, will be collected through salary 
offset as described in subpart B of this part.
    (c) Volunteer allowances. The Peace Corps may deduct through 
administrative offset amounts owed the U.S. Government by Volunteers and 
Trainees from the readjustment allowance account.
    (1) Overseas posts will obtain written consent from Volunteers or 
Trainees who are indebted to the agency upon close of service or 
termination, to deduct amounts owed from their readjustment allowances. 
Posts will immediately submit the written consent to Volunteer and Staff 
Payroll Services Division (VSPS).
    (2) In cases where written consent from indebted Volunteers or 
Trainees cannot be obtained, overseas posts will immediately report the 
documented debts to VSPS. VSPS may then initiate offset against the 
readjustment allowance. Prior to offset action, VSPS will notify the 
debtor Volunteer or Trainee of their rights as required in Sec. 309.32.
    (d) Requests for offset to other Federal agencies. The Director or 
his or her designee may request that a debt owed to the Peace Corps be 
administratively offset against funds due and payable to a debtor by 
another Federal agency. In requesting administrative offset, the Peace 
Corps, as creditor, will certify in writing to the Federal agency 
holding funds of the debtor;
    (1) That the debtor owes the debt;

[[Page 47]]

    (2) The amount and basis of the debt; and
    (3) That the Peace Corps has complied with the requirements of 31 
U.S.C. 3716, its own administrative offset regulations and the 
applicable provisions of 4 CFR part 102 with respect to providing the 
debtor with due process.
    (e) Requests for offset from other Federal agencies. Any Federal 
agency may request that funds due and payable to its debtor by the Peace 
Corps be administratively offset in order to collect a debt owed to such 
Federal agency by the debtor. The Peace Corps shall initiate the 
requested offset only upon:
    (1) Receipt of written certification from the creditor agency:
    (i) That the debtor owes the debt;
    (ii) The amount and basis of the debt;
    (iii) That the agency has prescribed regulations for the exercise of 
administrative offset; and
    (iv) That the agency has complied with its own administrative offset 
regulations and with the applicable provisions of 4 CFR part 102, 
including providing any required hearing or review.
    (2) A determination by the Peace Corps that collection by offset 
against funds payable by the Peace Corps would be in the best interest 
of the United States as determined by the facts and circumstances of the 
particular case, and that such offset would not otherwise be contrary to 
law.



Sec. 309.38  Civil and Foreign Service Retirement Fund.

    (a) Unless otherwise prohibited by law, Peace Corps may request that 
monies that are due and payable to a debtor from the Civil Service 
Retirement and Disability Fund, the Foreign Service Retirement Fund or 
any other Federal retirement fund be administratively offset in 
reasonable amounts in order to collect in one full payment or a minimal 
number of payments, debts owed the United States by the debtor. Such 
requests shall be made to the appropriate officials of the respective 
fund servicing agency in accordance with such regulations as may be 
prescribed by the Director of that agency. The requests for 
administrative offset will certify in writing the following:
    (1) The debtor owes the United States a debt and the amount of the 
debt;
    (2) The Peace Corps has complied with applicable regulations and 
procedures;
    (3) The Peace Corps has followed the requirements of the FCCS as 
described in this subpart.
    (b) Once Peace Corps decides to request offset under paragraph (a) 
of this section, it will make the request as soon as practical after 
completion of the applicable procedures in order that the fund servicing 
agency may identify and flag the debtor's account in anticipation of the 
time when the debtor requests or becomes eligible to receive payments 
from the fund. This will satisfy any requirements that offset will be 
initiated prior to expiration of the statute of limitations.
    (c) If Peace Corps collects part or all of the debt by other means 
before deductions are made or completed pursuant to paragraph (a) of 
this section, Peace Corps shall act promptly to modify or terminate its 
request for offset.
    (d) This section does not require or authorize the fund servicing 
agency to review the merits of Peace Corps' determination relative to 
the debt.



Sec. 309.39  Jeopardy procedure.

    The Peace Corps may effect an administrative offset against a 
payment to be made to the debtor prior to the completion of the 
procedures required by Sec. 309.32(c) of this subpart if failure to 
take the offset would substantially jeopardize the Peace Corps' ability 
to collect the debt, and the time available before the payment is to be 
made does not reasonably permit the completion of those procedures. Such 
prior offset shall be promptly followed by the completion of those 
procedures. Amounts recovered by offset but later found not to be owed 
to the Peace Corps shall be promptly refunded.



Subpart E_Use of Consumer Reporting Agencies and Referrals to Collection 
                                Agencies



Sec. 309.40  Use of consumer reporting agencies.

    (a) The Peace Corps may report delinquent debts to consumer 
reporting agencies (see 31 U.S.C. 3701(a)(3)). Sixty

[[Page 48]]

days prior to release of information to a consumer reporting agency, the 
debtor shall be notified, in writing, of the intent to disclose the 
existence of the debt to a consumer reporting agency. Such notice of 
intent may be separate correspondence or included in correspondence 
demanding direct payment. The notice shall be in conformance with 31 
U.S.C. 3711(f) and the Federal Claims Collection Standards.
    (b) The information that may be disclosed to the consumer reporting 
agency is limited to:
    (1) The debtor's name, address, social security number or taxpayer 
identification number, and any other information necessary to establish 
the identity of the individual;
    (2) The amount, status, and history of the claim; and
    (3) The Peace Corps program or activity under which the claim arose.



Sec. 309.41  Referrals to collection agencies.

    (a) Peace Corps has authority to contract for collection services to 
recover delinquent debts in accordance with 31 U.S.C. 3718(c) and the 
FCCS (4 CFR 102.6).
    (b) Peace Corps will use private collection agencies where it 
determines that their use is in the best interest of the Government. 
Where Peace Corps determines that there is a need to contract for 
collection services, the contract will provide that:
    (1) The authority to resolve disputes, compromise claims, suspend or 
terminate collection action, and refer the matter to the Department of 
Justice for litigation or to take any other action under this Part will 
be retained by the Peace Corps;
    (2) Contractors are subject to the Privacy Act of 1974, as amended, 
to the extent specified in 5 U.S.C. 552a(m) and to applicable Federal 
and State laws and regulations pertaining to debt collection practices, 
such as the Fair Debt Collection Practices Act, 15 U.S.C. 1692;
    (3) The contractor is required to strictly account for all amounts 
collected;
    (4) The contractor must agree that uncollectible accounts shall be 
returned with appropriate documentation to enable Peace Corps to 
determine whether to pursue collection through litigation or to 
terminate collection;
    (5) The contractor must agree to provide any data in its files 
relating to paragraphs (a) (1), (2) and (3) of section 105.2 of the 
Federal Claims Collection Standards upon returning the account to Peace 
Corps for subsequent referral to the Department of Justice for 
litigation.
    (c) Peace Corps will not use a collection agency to collect a debt 
owed by a current employed or retired Federal employee, if collection by 
salary or annuity offset is available.



 Subpart F_Compromise, Suspension or Termination and Referral of Claims



Sec. 309.42  Compromise.

    Peace Corps may attempt to effect compromise in accordance with the 
standards set forth in part 103 of the FCCS (4 CFR part 103).



Sec. 309.43  Suspending or terminating collection.

    Suspension or termination of collection action shall be made in 
accordance with the standards set forth in Part 104 of the FCCS (4 CFR 
104)



Sec. 309.44  Referral of claims.

    Claims on which an aggressive collection action has been taken and 
which cannot be collected, compromised or on which collection action 
cannot be suspended or terminated under parts 103 and 104 of the FCCS (4 
CFR parts 103 and 104), shall be referred to the General Accounting 
Office or the Department of Justice, as appropriate, in accordance with 
the procedures set forth in part 105 of the FCCS (4 CFR part 105).

[[Page 49]]

               Appendix to Part 310--Covered Transactions
[GRAPHIC] [TIFF OMITTED] TR26NO03.000



PART 311_NEW RESTRICTIONS ON LOBBYING--Table of Contents




                            Subpart A_General

Sec.
311.100 Conditions on use of funds.
311.105 Definitions.
311.110 Certification and disclosure.

                  Subpart B_Activities by Own Employees

311.200 Agency and legislative liaison.
311.205 Professional and technical services.
311.210 Reporting.

            Subpart C_Activities by Other Than Own Employees

311.300 Professional and technical services.

                   Subpart D_Penalties and Enforcement

311.400 Penalties.
311.405 Penalty procedures.
311.410 Enforcement.

                          Subpart E_Exemptions

311.500 Secretary of Defense.

                        Subpart F_Agency Reports

311.600 Semi-annual compilation.
311.605 Inspector General report.

Appendix A to Part 311--Certification Regarding Lobbying
Appendix B to Part 311--Disclosure Form To Report Lobbying

    Authority: Section 319, Public Law 101-121 (31 U.S.C. 1352); 22 
U.S.C. 2503.

[[Page 50]]


    Cross Reference: See also Office of Management and Budget notice 
published at 54 FR 52306, December 20, 1989.

    Source: 55 FR 6737, 6749, Feb. 26, 1990, unless otherwise noted.



                            Subpart A_General



Sec. 311.100  Conditions on use of funds.

    (a) No appropriated funds may be expended by the recipient of a 
Federal contract, grant, loan, or cooperative ageement to pay any person 
for influencing or attempting to influence an officer or employee of any 
agency, a Member of Congress, an officer or employee of Congress, or an 
employee of a Member of Congress in connection with any of the following 
covered Federal actions: the awarding of any Federal contract, the 
making of any Federal grant, the making of any Federal loan, the 
entering into of any cooperative agreement, and the extension, 
continuation, renewal, amendment, or modification of any Federal 
contract, grant, loan, or cooperative agreement.
    (b) Each person who requests or receives from an agency a Federal 
contract, grant, loan, or cooperative agreement shall file with that 
agency a certification, set forth in appendix A, that the person has not 
made, and will not make, any payment prohibited by paragraph (a) of this 
section.
    (c) Each person who requests or receives from an agency a Federal 
contract, grant, loan, or a cooperative agreement shall file with that 
agency a disclosure form, set forth in appendix B, if such person has 
made or has agreed to make any payment using nonappropriated funds (to 
include profits from any covered Federal action), which would be 
prohibited under paragraph (a) of this section if paid for with 
appropriated funds.
    (d) Each person who requests or receives from an agency a commitment 
providing for the United States to insure or guarantee a loan shall file 
with that agency a statement, set forth in Appendix A, whether that 
person has made or has agreed to make any payment to influence or 
attempt to influence an officer or employee of any agency, a Member of 
Congress, an officer or employee of Congress, or an employee of a Member 
of Congress in connection with that loan insurance or guarantee.
    (e) Each person who requests or receives from an agency a commitment 
providing for the United States to insure or guarantee a loan shall file 
with that agency a disclosure form, set forth in appendix B, if that 
person has made or has agreed to make any payment to influence or 
attempt to influence an officer or employee of any agency, a Member of 
Congress, an officer or employee of Congress, or an employee of a Member 
of Congress in connection with that loan insurance or guarantee.



Sec. 311.105  Definitions.

    For purposes of this part:
    (a) Agency, as defined in 5 U.S.C. 552(f), includes Federal 
executive departments and agencies as well as independent regulatory 
commissions and Government corporations, as defined in 31 U.S.C. 
9101(1).
    (b) Covered Federal action means any of the following Federal 
actions:
    (1) The awarding of any Federal contract;
    (2) The making of any Federal grant;
    (3) The making of any Federal loan;
    (4) The entering into of any cooperative agreement; and,
    (5) The extension, continuation, renewal, amendment, or modification 
of any Federal contract, grant, loan, or cooperative agreement.


Covered Federal action does not include receiving from an agency a 
commitment providing for the United States to insure or guarantee a 
loan. Loan guarantees and loan insurance are addressed independently 
within this part.
    (c) Federal contract means an acquisition contract awarded by an 
agency, including those subject to the Federal Acquisition Regulation 
(FAR), and any other acquisition contract for real or personal property 
or services not subject to the FAR.
    (d) Federal cooperative agreement means a cooperative agreement 
entered into by an agency.
    (e) Federal grant means an award of financial assistance in the form 
of money, or property in lieu of money, by the Federal Government or a 
direct

[[Page 51]]

appropriation made by law to any person. The term does not include 
technical assistance which provides services instead of money, or other 
assistance in the form of revenue sharing, loans, loan guarantees, loan 
insurance, interest subsidies, insurance, or direct United States cash 
assistance to an individual.
    (f) Federal loan means a loan made by an agency. The term does not 
include loan guarantee or loan insurance.
    (g) Indian tribe and tribal organization have the meaning provided 
in section 4 of the Indian Self-Determination and Education Assistance 
Act (25 U.S.C. 450B). Alaskan Natives are included under the definitions 
of Indian tribes in that Act.
    (h) Influencing or attempting to influence means making, with the 
intent to influence, any communication to or appearance before an 
officer or employee or any agency, a Member of Congress, an officer or 
employee of Congress, or an employee of a Member of Congress in 
connection with any covered Federal action.
    (i) Loan guarantee and loan insurance means an agency's guarantee or 
insurance of a loan made by a person.
    (j) Local government means a unit of government in a State and, if 
chartered, established, or otherwise recognized by a State for the 
performance of a governmental duty, including a local public authority, 
a special district, an intrastate district, a council of governments, a 
sponsor group representative organization, and any other instrumentality 
of a local government.
    (k) Officer or employee of an agency includes the following 
individuals who are employed by an agency:
    (1) An individual who is appointed to a position in the Government 
under title 5, U.S. Code, including a position under a temporary 
appointment;
    (2) A member of the uniformed services as defined in section 101(3), 
title 37, U.S. Code;
    (3) A special Government employee as defined in section 202, title 
18, U.S. Code; and,
    (4) An individual who is a member of a Federal advisory committee, 
as defined by the Federal Advisory Committee Act, title 5, U.S. Code 
appendix 2.
    (l) Person means an individual, corporation, company, association, 
authority, firm, partnership, society, State, and local government, 
regardless of whether such entity is operated for profit or not for 
profit. This term excludes an Indian tribe, tribal organization, or any 
other Indian organization with respect to expenditures specifically 
permitted by other Federal law.
    (m) Reasonable compensation means, with respect to a regularly 
employed officer or employee of any person, compensation that is 
consistent with the normal compensation for such officer or employee for 
work that is not furnished to, not funded by, or not furnished in 
cooperation with the Federal Government.
    (n) Reasonable payment means, with respect to perfessional and other 
technical services, a payment in an amount that is consistent with the 
amount normally paid for such services in the private sector.
    (o) Recipient includes all contractors, subcontractors at any tier, 
and subgrantees at any tier of the recipient of funds received in 
connection with a Federal contract, grant, loan, or cooperative 
agreement. The term excludes an Indian tribe, tribal organization, or 
any other Indian organization with respect to expenditures specifically 
permitted by other Federal law.
    (p) Regularly employed means, with respect to an officer or employee 
of a person requesting or receiving a Federal contract, grant, loan, or 
cooperative agreement or a commitment providing for the United States to 
insure or guarantee a loan, an officer or employee who is employed by 
such person for at least 130 working days within one year immediately 
preceding the date of the submission that initiates agency consideration 
of such person for receipt of such contract, grant, loan, cooperative 
agreement, loan insurance commitment, or loan guarantee commitment. An 
officer or employee who is employed by such person for less than 130 
working days within one year immediately preceding the date of the 
submission that initiates agency consideration of such person shall be 
considered to be regularly employed as

[[Page 52]]

soon as he or she is employed by such person for 130 working days.
    (q) State means a State of the United States, the District of 
Columbia, the Commonwealth of Puerto Rico, a territory or possession of 
the United States, an agency or instrumentality of a State, and a multi-
State, regional, or interstate entity having governmental duties and 
powers.



Sec. 311.110  Certification and disclosure.

    (a) Each person shall file a certification, and a disclosure form, 
if required, with each submission that initiates agency consideration of 
such person for:
    (1) Award of a Federal contract, grant, or cooperative agreement 
exceeding $100,000; or
    (2) An award of a Federal loan or a commitment providing for the 
United States to insure or guarantee a loan exceeding $150,000.
    (b) Each person shall file a certification, and a disclosure form, 
if required, upon receipt by such person of:
    (1) A Federal contract, grant, or cooperative agreement exceeding 
$100,000; or
    (2) A Federal loan or a commitment providing for the United States 
to insure or guarantee a loan exceeding $150,000, unless such person 
previously filed a certification, and a disclosure form, if required, 
under paragraph (a) of this section.
    (c) Each person shall file a disclosure form at the end of each 
calendar quarter in which there occurs any event that requires 
disclosure or that materially affects the accuracy of the information 
contained in any disclosure form previously filed by such person under 
paragraphs (a) or (b) of this section. An event that materially affects 
the accuracy of the information reported includes:
    (1) A cumulative increase of $25,000 or more in the amount paid or 
expected to be paid for influencing or attempting to influence a covered 
Federal action; or
    (2) A change in the person(s) or individual(s) influencing or 
attempting to influence a covered Federal action; or,
    (3) A change in the officer(s), employee(s), or Member(s) contacted 
to influence or attempt to influence a covered Federal action.
    (d) Any person who requests or receives from a person referred to in 
paragraphs (a) or (b) of this section:
    (1) A subcontract exceeding $100,000 at any tier under a Federal 
contract;
    (2) A subgrant, contract, or subcontract exceeding $100,000 at any 
tier under a Federal grant;
    (3) A contract or subcontract exceeding $100,000 at any tier under a 
Federal loan exceeding $150,000; or,
    (4) A contract or subcontract exceeding $100,000 at any tier under a 
Federal cooperative agreement, shall file a certification, and a 
disclosure form, if required, to the next tier above.
    (e) All disclosure forms, but not certifications, shall be forwarded 
from tier to tier until received by the person referred to in paragraphs 
(a) or (b) of this section. That person shall forward all disclosure 
forms to the agency.
    (f) Any certification or disclosure form filed under paragraph (e) 
of this section shall be treated as a material representation of fact 
upon which all receiving tiers shall rely. All liability arising from an 
erroneous representation shall be borne solely by the tier filing that 
representation and shall not be shared by any tier to which the 
erroneous representation is forwarded. Submitting an erroneous 
certification or disclosure constitutes a failure to file the required 
certification or disclosure, respectively. If a person fails to file a 
required certification or disclosure, the United States may pursue all 
available remedies, including those authorized by section 1352, title 
31, U.S. Code.
    (g) For awards and commitments in process prior to December 23, 
1989, but not made before that date, certifications shall be required at 
award or commitment, covering activities occurring between December 23, 
1989, and the date of award or commitment. However, for awards and 
commitments in process prior to the December 23, 1989 effective date of 
these provisions, but not made before December 23, 1989, disclosure 
forms shall not be required at time of award or commitment but shall be 
filed within 30 days.
    (h) No reporting is required for an activity paid for with 
appropriated funds

[[Page 53]]

if that activity is allowable under either subpart B or C.



                  Subpart B_Activities by Own Employees



Sec. 311.200  Agency and legislative liaison.

    (a) The prohibition on the use of appropriated funds, in Sec. 
311.100 (a), does not apply in the case of a payment of reasonable 
compensation made to an officer or employee of a person requesting or 
receiving a Federal contract, grant, loan, or cooperative agreement if 
the payment is for agency and legislative liaison activities not 
directly related to a covered Federal action.
    (b) For purposes of paragraph (a) of this section, providing any 
information specifically requested by an agency or Congress is allowable 
at any time.
    (c) For purposes of paragraph (a) of this section, the following 
agency and legislative liaison activities are allowable at any time only 
where they are not related to a specific solicitation for any covered 
Federal action:
    (1) Discussing with an agency (including individual demonstrations) 
the qualities and characteristics of the person's products or services, 
conditions or terms of sale, and service capabilities; and,
    (2) Technical discussions and other activities regarding the 
application or adaptation of the person's products or services for an 
agency's use.
    (d) For purposes of paragraph (a) of this section, the following 
agencies and legislative liaison activities are allowable only where 
they are prior to formal solicitation of any covered Federal action:
    (1) Providing any information not specifically requested but 
necessary for an agency to make an informed decision about initiation of 
a covered Federal action;
    (2) Technical discussions regarding the preparation of an 
unsolicited proposal prior to its official submission; and,
    (3) Capability presentations by persons seeking awards from an 
agency pursuant to the provisions of the Small Business Act, as amended 
by Public Law 95-507 and other subsequent amendments.
    (e) Only those activities expressly authorized by this section are 
allowable under this section.



Sec. 311.205  Professional and technical services.

    (a) The prohibition on the use of appropriated funds, in Sec. 
311.100 (a), does not apply in the case of a payment of reasonable 
compensation made to an officer or employee of a person requesting or 
receiving a Federal contract, grant, loan, or cooperative agreement or 
an extension, continuation, renewal, amendment, or modification of a 
Federal contract, grant, loan, or cooperative agreement if payment is 
for professional or technical services rendered directly in the 
preparation, submission, or negotiation of any bid, proposal, or 
application for that Federal contract, grant, loan, or cooperative 
agreement or for meeting requirements imposed by or pursuant to law as a 
condition for receiving that Federal contract, grant, loan, or 
cooperative agreement.
    (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

[[Page 54]]

his or her client's proposal, but generally advocate one proposal over 
another are not allowable under this section because the lawyer is not 
providing professional legal services. Similarly, communications with 
the intent to influence made by an engineer providing an engineering 
analysis prior to the preparation or submission of a bid or proposal are 
not allowable under this section since the engineer is providing 
technical services but not directly in the preparation, submission or 
negotiation of a covered Federal action.
    (c) Requirements imposed by or pursuant to law as a condition for 
receiving a covered Federal award include those required by law or 
regulation, or reasonably expected to be required by law or regulation, 
and any other requirements in the actual award documents.
    (d) Only those services expressly authorized by this section are 
allowable under this section.



Sec. 311.210  Reporting.

    No reporting is required with respect to payments of reasonable 
compensation made to regularly employed officers or employees of a 
person.



            Subpart C_Activities by Other Than Own Employees



Sec. 311.300  Professional and technical services.

    (a) The prohibition on the use of appropriated funds, in Sec. 
311.100 (a), does not apply in the case of any reasonable payment to a 
person, other than an officer or employee of a person requesting or 
receiving a covered Federal action, if the payment is for professional 
or technical services rendered directly in the preparation, submission, 
or negotiation of any bid, proposal, or application for that Federal 
contract, grant, loan, or cooperative agreement or for meeting 
requirements imposed by or pursuant to law as a condition for receiving 
that Federal contract, grant, loan, or cooperative agreement.
    (b) The reporting requirements in Sec. 311.110 (a) and (b) 
regarding filing a disclosure form by each person, if required, shall 
not apply with respect to professional or technical services rendered 
directly in the preparation, submission, or negotiation of any 
commitment providing for the United States to insure or guarantee a 
loan.
    (c) For purposes of paragraph (a) of this section, professional and 
technical services shall be limited to advice and analysis directly 
applying any professional or technical discipline. For example, drafting 
or a legal document accompanying a bid or proposal by a lawyer is 
allowable. Similarly, technical advice provided by an engineer on the 
performance or operational capability of a piece of equipment rendered 
directly in the negotiation of a contract is allowable. However, 
communications with the intent to influence made by a professional (such 
as a licensed lawyer) or a technical person (such as a licensed 
accountant) are not allowable under this section unless they provide 
advice and analysis directly applying their professional or technical 
expertise and unless the advice or analysis is rendered directly and 
solely in the preparation, submission or negotiation of a covered 
Federal action. Thus, for example, communications with the intent to 
influence made by a lawyer that do not provide legal advice or analysis 
directly and solely related to the legal aspects of his or her client's 
proposal, but generally advocate one proposal over another are not 
allowable under this section because the lawyer is not providing 
professional legal services. Similarly, communications with the intent 
to influence made by an engineer providing an engineering analysis prior 
to the preparation or submission of a bid or proposal are not allowable 
under this section since the engineer is providing technical services 
but not directly in the preparation, submission or negotiation of a 
covered Federal action.
    (d) Requirements imposed by or pursuant to law as a condition for 
receiving a covered Federal award include those required by law or 
regulation, or reasonably expected to be required by law or regulation, 
and any other requirements in the actual award documents.

[[Page 55]]

    (e) Persons other than officers or employees of a person requesting 
or receiving a covered Federal action include consultants and trade 
associations.
    (f) Only those services expressly authorized by this section are 
allowable under this section.



                   Subpart D_Penalties and Enforcement



Sec. 311.400  Penalties.

    (a) Any person who makes an expenditure prohibited herein shall be 
subject to a civil penalty of not less than $10,000 and not more than 
$100,000 for each such expenditure.
    (b) Any person who fails to file or amend the disclosure form (see 
appendix B) to be filed or amended if required herein, shall be subject 
to a civil penalty of not less than $10,000 and not more than $100,000 
for each such failure.
    (c) A filing or amended filing on or after the date on which an 
administrative action for the imposition of a civil penalty is commenced 
does not prevent the imposition of such civil penalty for a failure 
occurring before that date. An administrative action is commenced with 
respect to a failure when an investigating official determines in 
writing to commence an investigation of an allegation of such failure.
    (d) In determining whether to impose a civil penalty, and the amount 
of any such penalty, by reason of a violation by any person, the agency 
shall consider the nature, circumstances, extent, and gravity of the 
violation, the effect on the ability of such person to continue in 
business, any prior violations by such person, the degree of culpability 
of such person, the ability of the person to pay the penalty, and such 
other matters as may be appropriate.
    (e) First offenders under paragraphs (a) or (b) of this section 
shall be subject to a civil penalty of $10,000, absent aggravating 
circumstances. Second and subsequent offenses by persons shall be 
subject to an appropriate civil penalty between $10,000 and $100,000, as 
determined by the agency head or his or her designee.
    (f) An imposition of a civil penalty under this section does not 
prevent the United States from seeking any other remedy that may apply 
to the same conduct that is the basis for the imposition of such civil 
penalty.



Sec. 311.405  Penalty procedures.

    Agencies shall impose and collect civil penalties pursuant to the 
provisions of the Program Fraud and Civil Remedies Act, 31 U.S.C. 
sections 3803 (except subsection (c)), 3804, 3805, 3806, 3807, 3808, and 
3812, insofar as these provisions are not inconsistent with the 
requirements herein.



Sec. 311.410  Enforcement.

    The head of each agency shall take such actions as are necessary to 
ensure that the provisions herein are vigorously implemented and 
enforced in that agency.



                          Subpart E_Exemptions



Sec. 311.500  Secretary of Defense.

    (a) The Secretary of Defense may exempt, on a case-by-case basis, a 
covered Federal action from the prohibition whenever the Secretary 
determines, in writing, that such an exemption is in the national 
interest. The Secretary shall transmit a copy of each such written 
exemption to Congress immediately after making such a determination.
    (b) The Department of Defense may issue supplemental regulations to 
implement paragraph (a) of this section.



                        Subpart F_Agency Reports



Sec. 311.600  Semi-annual compilation.

    (a) The head of each agency shall collect and compile the disclosure 
reports (see appendix B) and, on May 31 and November 30 of each year, 
submit to the Secretary of the Senate and the Clerk of the House of 
Representatives a report containing a compilation of the information 
contained in the disclosure reports received during the six-month period 
ending on March 31 or September 30, respectively, of that year.
    (b) The report, including the compilation, shall be available for 
public inspection 30 days after receipt of the report by the Secretary 
and the Clerk.

[[Page 56]]

    (c) Information that involves intelligence matters shall be reported 
only to the Select Committee on Intelligence of the Senate, the 
Permanent Select Committee on Intelligence of the House of 
Representatives, and the Committees on Appropriations of the Senate and 
the House of Representatives in accordance with procedures agreed to by 
such committees. Such information shall not be available for public 
inspection.
    (d) Information that is classified under Executive Order 12356 or 
any successor order shall be reported only to the Committee on Foreign 
Relations of the Senate and the Committee on Foreign Affairs of the 
House of Representatives or the Committees on Armed Services of the 
Senate and the House of Representatives (whichever such committees have 
jurisdiction of matters involving such information) and to the 
Committees on Appropriations of the Senate and the House of 
Representatives in accordance with procedures agreed to by such 
committees. Such information shall not be available for public 
inspection.
    (e) The first semi-annual compilation shall be submitted on May 31, 
1990, and shall contain a compilation of the disclosure reports received 
from December 23, 1989 to March 31, 1990.
    (f) Major agencies, designated by the Office of Management and 
Budget (OMB), are required to provide machine-readable compilations to 
the Secretary of the Senate and the Clerk of the House of 
Representatives no later than with the compilations due on May 31, 1991. 
OMB shall provide detailed specifications in a memorandum to these 
agencies.
    (g) Non-major agencies are requested to provide machine-readable 
compilations to the Secretary of the Senate and the Clerk of the House 
of Representatives.
    (h) Agencies shall keep the originals of all disclosure reports in 
the official files of the agency.



Sec. 311.605  Inspector General report.

    (a) The Inspector General, or other official as specified in 
paragraph (b) of this section, of each agency shall prepare and submit 
to Congress each year, commencing with submission of the President's 
Budget in 1991, an evaluation of the compliance of that agency with, and 
the effectiveness of, the requirements herein. The evaluation may 
include any recommended changes that may be necessary to strengthen or 
improve the requirements.
    (b) In the case of an agency that does not have an Inspector 
General, the agency official comparable to an Inspector General shall 
prepare and submit the annual report, or, if there is no such comparable 
official, the head of the agency shall prepare and submit the annual 
report.
    (c) The annual report shall be submitted at the same time the agency 
submits its annual budget justifications to Congress.
    (d) The annual report shall include the following: All alleged 
violations relating to the agency's covered Federal actions during the 
year covered by the report, the actions taken by the head of the agency 
in the year covered by the report with respect to those alleged 
violations and alleged violations in previous years, and the amounts of 
civil penalties imposed by the agency in the year covered by the report.

        Appendix A to Part 311--Certification Regarding Lobbying

 Certification for Contracts, Grants, Loans, and Cooperative Agreements

    The undersigned certifies, to the best of his or her knowledge and 
belief, that:
    (1) No Federal appropriated funds have been paid or will be paid, by 
or on behalf of the undersigned, to any person for influencing or 
attempting to influence an officer or employee of an agency, a Member of 
Congress, an officer or employee of Congress, or an employee of a Member 
of Congress in connection with the awarding of any Federal contract, the 
making of any Federal grant, the making of any Federal loan, the 
entering into of any cooperative agreement, and the extension, 
continuation, renewal, amendment, or modification of any Federal 
contract, grant, loan, or cooperative agreement.
    (2) If any funds other than Federal appropriated funds have been 
paid or will be paid to any person for influencing or attempting to 
influence an officer or employee of any agency, a Member of Congress, an 
officer or employee of Congress, or an employee of a Member of Congress 
in connection with this Federal contract, grant, loan, or cooperative 
agreement, the undersigned shall complete and submit Standard Form-LLL, 
``Disclosure

[[Page 57]]

Form to Report Lobbying,'' in accordance with its instructions.
    (3) The undersigned shall require that the language of this 
certification be included in the award documents for all subawards at 
all tiers (including subcontracts, subgrants, and contracts under 
grants, loans, and cooperative agreements) and that all subrecipients 
shall certify and disclose accordingly.
    This certification is a material representation of fact upon which 
reliance was placed when this transaction was made or entered into. 
Submission of this certification is a prerequisite for making or 
entering into this transaction imposed by section 1352, title 31, U.S. 
Code. Any person who fails to file the required certification shall be 
subject to a civil penalty of not less than $10,000 and not more than 
$100,000 for each such failure.

            Statement for Loan Guarantees and Loan Insurance

    The undersigned states, to the best of his or her knowledge and 
belief, that:
    If any funds have been paid or will be paid to any person for 
influencing or attempting to influence an officer or employee of any 
agency, a Member of Congress, an officer or employee of Congress, or an 
employee of a Member of Congress in connection with this commitment 
providing for the United States to insure or guarantee a loan, the 
undersigned shall complete and submit Standard Form-LLL, ``Disclosure 
Form to Report Lobbying,'' in accordance with its instructions.
    Submission of this statement is a prerequisite for making or 
entering into this transaction imposed by section 1352, title 31, U.S. 
Code. Any person who fails to file the required statement shall be 
subject to a civil penalty of not less than $10,000 and not more than 
$100,000 for each such failure.

[[Page 58]]

       Appendix B to Part 311--Disclosure Form To Report Lobbying
[GRAPHIC] [TIFF OMITTED] TC13OC91.000


[[Page 59]]


[GRAPHIC] [TIFF OMITTED] TC13OC91.001


[[Page 60]]


[GRAPHIC] [TIFF OMITTED] TC13OC91.002


[[Page 61]]





PART 312_GOVERNMENTWIDE REQUIREMENTS FOR DRUG_FREE WORKPLACE (FINANCIAL 

ASSISTANCE)--Table of Contents




                     Subpart A_Purpose and Coverage

Sec.
312.100 What does this part do?
312.105 Does this part apply to me?
312.110 Are any of my federal assistance awards exempt from this part?
312.115 Does this part affect the federal contracts that I receive?

      Subpart B_Requirements for Recipients Other Than Individuals

312.200 What must I do to comply with this part?
312.205 What must I include in my drug-free workplace statement?
312.210 To whom must I distribute my drug-free workplace statement?
312.215 What must I include in my drug-free awareness program?
312.220 By when must I publish my drug-free workplace statement and 
          establish my drug-free awareness program?
312.225 What actions must I take concerning employees who are convicted 
          of drug violations in the workplace?
312.230 How and when must I identify workplaces?

        Subpart C_Requirements for Recipients Who Are Individuals

312.300 What must I do to comply with this part if I am an individual 
          recipient?
312.301 [Reserved]

      Subpart D_Responsibilities of Peace Corps Awarding Officials

312.400 What are my responsibilities as a Peace Corps awarding official?

           Subpart E_Violations of This Part and Consequences

312.500 How are violations of this part determined for recipients other 
          than individuals?
312.505 How are violations of this part determined for recipients who 
          are individuals?
312.510 What actions will the Federal Government take against a 
          recipient determined to have violated this part?
312.515 Are there any exceptions to those actions?

                          Subpart F_Definitions

312.605 Award.
312.610 Controlled substance.
312.615 Conviction.
312.620 Cooperative agreement.
312.625 Criminal drug statute.
312.630 Debarment.
312.635 Drug-free workplace.
312.640 Employee.
312.645 Federal agency or agency.
312.650 Grant.
312.655 Individual.
312.660 Recipient.
312.665 State.
312.670 Suspension.

    Authority: 22 U.S.C. 2503 (b); 41 U.S.C. 701 et seq.

    Source: 68 FR 66588, Nov. 26, 2003, unless otherwise noted.



                     Subpart A_Purpose and Coverage



Sec. 312.100  What does this part do?

    This part carries out the portion of the Drug-Free Workplace Act of 
1988 (41 U.S.C. 701 et seq., as amended) that applies to grants. It also 
applies the provisions of the Act to cooperative agreements and other 
financial assistance awards, as a matter of Federal Government policy.



Sec. 312.105  Does this part apply to me?

    (a) Portions of this part apply to you if you are either--
    (1) A recipient of an assistance award from the Peace Corps; or
    (2) A(n) Peace Corps awarding official. (See definitions of award 
and recipient in Sec. Sec. 312.605 and 312.660, respectively.)
    (b) The following table shows the subparts that apply to you:

------------------------------------------------------------------------
            If you are . . .                    see subparts . . .
------------------------------------------------------------------------
(1) A recipient who is not an            A, B and E.
 individual.
(2) A recipient who is an individual...  A, C and E.
(3) A(n) Peace Corps awarding official.  A, D and E.
------------------------------------------------------------------------


[[Page 62]]



Sec. 312.110  Are any of my Federal assistance awards exempt from this part?

    This part does not apply to any award that the Peace Corps Director 
or designee determines that the application of this part would be 
inconsistent with the international obligations of the United States or 
the laws or regulations of a foreign government.



Sec. 312.115  Does this part affect the Federal contracts that I receive?

    It will affect future contract awards indirectly if you are debarred 
or suspended for a violation of the requirements of this part, as 
described in Sec. 312. 510(c). However, this part does not apply 
directly to procurement contracts. The portion of the Drug-Free 
Workplace Act of 1988 that applies to Federal procurement contracts is 
carried out through the Federal Acquisition Regulation in chapter 1 of 
Title 48 of the Code of Federal Regulations (the drug-free workplace 
coverage currently is in 48 CFR part 23, subpart 23.5).



      Subpart B_Requirements for Recipients Other Than Individuals



Sec. 312.200  What must I do to comply with this part?

    There are two general requirements if you are a recipient other than 
an individual.
    (a) First, you must make a good faith effort, on a continuing basis, 
to maintain a drug-free workplace. You must agree to do so as a 
condition for receiving any award covered by this part. The specific 
measures that you must take in this regard are described in more detail 
in subsequent sections of this subpart. Briefly, those measures are to--
    (1) Publish a drug-free workplace statement and establish a drug-
free awareness program for your employees (see Sec. Sec. 312.205 
through 312.220); and
    (2) Take actions concerning employees who are convicted of violating 
drug statutes in the workplace (see Sec. 312.225).
    (b) Second, you must identify all known workplaces under your 
Federal awards (see Sec. 312.230).



Sec. 312.205  What must I include in my drug-free workplace statement?

    You must publish a statement that--
    (a) Tells your employees that the unlawful manufacture, 
distribution, dispensing, possession, or use of a controlled substance 
is prohibited in your workplace;
    (b) Specifies the actions that you will take against employees for 
violating that prohibition; and
    (c) Lets each employee know that, as a condition of employment under 
any award, he or she:
    (1) Will abide by the terms of the statement; and
    (2) Must notify you in writing if he or she is convicted for a 
violation of a criminal drug statute occurring in the workplace and must 
do so no more than five calendar days after the conviction.



Sec. 312.210  To whom must I distribute my drug-free workplace statement?

    You must require that a copy of the statement described in Sec. 
312.205 be given to each employee who will be engaged in the performance 
of any Federal award.



Sec. 312.215  What must I include in my drug-free awareness program?

    You must establish an ongoing drug-free awareness program to inform 
employees about--
    (a) The dangers of drug abuse in the workplace;
    (b) Your policy of maintaining a drug-free workplace;
    (c) Any available drug counseling, rehabilitation, and employee 
assistance programs; and
    (d) The penalties that you may impose upon them for drug abuse 
violations occurring in the workplace.



Sec. 312.220  By when must I publish my drug-free workplace statement and 

establish my drug-free awareness program?

    If you are a new recipient that does not already have a policy 
statement as described in Sec. 312.205 and an ongoing awareness program 
as described in Sec. 312.215, you must publish the statement and 
establish the program by the time given in the following table:

[[Page 63]]



------------------------------------------------------------------------
                If . . .                          then you . . .
------------------------------------------------------------------------
(a) The performance period of the award  must have the policy statement
 is less than 30 days.                    and program in place as soon
                                          as possible, but before the
                                          date on which performance is
                                          expected to be completed.
(b) The performance period of the award  must have the policy statement
 is 30 days or more.                      and program in place within 30
                                          days after award.
(c) You believe there are extraordinary  may ask the Peace Corps
 circumstances that will require more     awarding official to give you
 than 30 days for you to publish the      more time to do so. The amount
 policy statement and establish the       of additional time, if any, to
 awareness program.                       be given is at the discretion
                                          of the awarding official.
------------------------------------------------------------------------



Sec. 312.225  What actions must I take concerning employees who are convicted 

of drug violations in the workplace?

    There are two actions you must take if an employee is convicted of a 
drug violation in the workplace:
    (a) First, you must notify Federal agencies if an employee who is 
engaged in the performance of an award informs you about a conviction, 
as required by Sec. 312.205(c)(2), or you otherwise learn of the 
conviction. Your notification to the Federal agencies must--
    (1) Be in writing;
    (2) Include the employee's position title;
    (3) Include the identification number(s) of each affected award;
    (4) Be sent within ten calendar days after you learn of the 
conviction; and
    (5) Be sent to every Federal agency on whose award the convicted 
employee was working. It must be sent to every awarding official or his 
or her official designee, unless the Federal agency has specified a 
central point for the receipt of the notices.
    (b) Second, within 30 calendar days of learning about an employee's 
conviction, you must either--
    (1) Take appropriate personnel action against the employee, up to 
and including termination, consistent with the requirements of the 
Rehabilitation Act of 1973 (29 U.S.C. 794), as amended; or
    (2) Require the employee to participate satisfactorily in a drug 
abuse assistance or rehabilitation program approved for these purposes 
by a Federal, State or local health, law enforcement, or other 
appropriate agency.



Sec. 312.230  How and when must I identify workplaces?

    (a) You must identify all known workplaces under each Peace Corps 
award. A failure to do so is a violation of your drug-free workplace 
requirements. You may identify the workplaces--
    (1) To the Peace Corps official that is making the award, either at 
the time of application or upon award; or
    (2) In documents that you keep on file in your offices during the 
performance of the award, in which case you must make the information 
available for inspection upon request by Peace Corps officials or their 
designated representatives.
    (b) Your workplace identification for an award must include the 
actual address of buildings (or parts of buildings) or other sites where 
work under the award 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).
    (c) If you identified workplaces to the Peace Corps awarding 
official at the time of application or award, as described in paragraph 
(a)(1) of this section, and any workplace that you identified changes 
during the performance of the award, you must inform the Peace Corps 
awarding official.



        Subpart C_Requirements for Recipients Who Are Individuals



Sec. 312.300  What must I do to comply with this part if I am an individual 

recipient?

    As a condition of receiving a(n) Peace Corps award, if you are an 
individual recipient, you must agree that--
    (a) You will not engage in the unlawful manufacture, distribution, 
dispensing, possession, or use of a controlled substance in conducting 
any activity related to the award; and
    (b) If you are convicted of a criminal drug offense resulting from a 
violation occurring during the conduct of any

[[Page 64]]

award activity, you will report the conviction:
    (1) In writing.
    (2) Within 10 calendar days of the conviction.
    (3) To the Peace Corps awarding official or other designee for each 
award that you currently have, unless Sec. 312.301 or the award 
document designates a central point for the receipt of the notices. When 
notice is made to a central point, it must include the identification 
number(s) of each affected award.



Sec. 312.301  [Reserved]



      Subpart D_Responsibilities of Peace Corps Awarding Officials



Sec. 312.400  What are my responsibilities as a(n) Peace Corps awarding 

official?

    As a(n) Peace Corps awarding official, you must obtain each 
recipient's agreement, as a condition of the award, to comply with the 
requirements in--
    (a) Subpart B of this part, if the recipient is not an individual; 
or
    (b) Subpart C of this part, if the recipient is an individual.



           Subpart E_Violations of this Part and Consequences



Sec. 312.500  How are violations of this part determined for recipients other 

than individuals?

    A recipient other than an individual is in violation of the 
requirements of this part if the Peace Corps Director or designee 
determines, in writing, that--
    (a) The recipient has violated the requirements of subpart B of this 
part; or
    (b) The number of convictions of the recipient's employees for 
violating criminal drug statutes in the workplace is large enough to 
indicate that the recipient has failed to make a good faith effort to 
provide a drug-free workplace.



Sec. 312.505  How are violations of this part determined for recipients who 

are individuals?

    An individual recipient is in violation of the requirements of this 
part if the Peace Corps Director or designee determines, in writing, 
that--
    (a) The recipient has violated the requirements of subpart C of this 
part; or
    (b) The recipient is convicted of a criminal drug offense resulting 
from a violation occurring during the conduct of any award activity.



Sec. 312.510  What actions will the Federal Government take against a 

recipient determined to have violated this part?

    If a recipient is determined to have violated this part, as 
described in Sec. 312.500 or Sec. 312.505, the Peace Corps may take 
one or more of the following actions--
    (a) Suspension of payments under the award;
    (b) Suspension or termination of the award; and
    (c) Suspension or debarment of the recipient under 22 CFR part 310, 
for a period not to exceed five years.



Sec. 312.515  Are there any exceptions to those actions?

    The Peace Corps Director may waive with respect to a particular 
award, in writing, a suspension of payments under an award, suspension 
or termination of an award, or suspension or debarment of a recipient if 
the Peace Corps Director determines that such a waiver would be in the 
public interest. This exception authority cannot be delegated to any 
other official.



                          Subpart F_Definitions



Sec. 312.605  Award.

    Award means an award of financial assistance by the Peace Corps or 
other Federal agency directly to a recipient.
    (a) The term award includes:
    (1) A Federal grant or cooperative agreement, in the form of money 
or property in lieu of money.
    (2) A block grant or a grant in an entitlement program, whether or 
not the grant is exempted from coverage under the Governmentwide rule 
[Agency-specific CFR citation] that implements OMB Circular A-102 (for 
availability, see 5 CFR 1310.3) and specifies uniform administrative 
requirements.
    (b) The term award does not include:
    (1) Technical assistance that provides services instead of money.
    (2) Loans.

[[Page 65]]

    (3) Loan guarantees.
    (4) Interest subsidies.
    (5) Insurance.
    (6) Direct appropriations.
    (7) 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).
    (c) Notwithstanding paragraph (a)(2) of this section, this paragraph 
is not applicable for the Peace Corps.



Sec. 312.610  Controlled substance.

    Controlled substance means a controlled substance in schedules I 
through V of the Controlled Substances Act (21 U.S.C. 812), and as 
further defined by regulation at 21 CFR 1308.11 through 1308.15.



Sec. 312.615  Conviction.

    Conviction means a finding of guilt (including a plea of nolo 
contendere) or imposition of sentence, or both, by any judicial body 
charged with the responsibility to determine violations of the Federal 
or State criminal drug statutes.



Sec. 312.620  Cooperative agreement.

    Cooperative agreement means an award of financial assistance that, 
consistent with 31 U.S.C. 6305, is used to enter into the same kind of 
relationship as a grant (see definition of grant in Sec. 312.650), 
except that substantial involvement is expected between the Federal 
agency and the recipient when carrying out the activity contemplated by 
the award. The term does not include cooperative research and 
development agreements as defined in 15 U.S.C. 3710a.



Sec. 312.625  Criminal drug statute.

    Criminal drug statute means a Federal or non-Federal criminal 
statute involving the manufacture, distribution, dispensing, use, or 
possession of any controlled substance.



Sec. 312.630  Debarment.

    Debarment means an action taken by a Federal agency to prohibit a 
recipient from participating in Federal Government procurement contracts 
and covered nonprocurement transactions. A recipient so prohibited is 
debarred, in accordance with the Federal Acquisition Regulation for 
procurement contracts (48 CFR part 9, subpart 9.4) and the common rule, 
Government-wide Debarment and Suspension (Nonprocurement), that 
implements Executive Order 12549 and Executive Order 12689.



Sec. 312.635  Drug-free workplace.

    Drug-free workplace means a site for the performance of work done in 
connection with a specific award at which employees of the recipient are 
prohibited from engaging in the unlawful manufacture, distribution, 
dispensing, possession, or use of a controlled substance.



Sec. 312.640  Employee.

    (a) Employee means the employee of a recipient directly engaged in 
the performance of work under the award, including--
    (1) All direct charge employees;
    (2) All indirect charge employees, unless their impact or 
involvement in the performance of work under the award is insignificant 
to the performance of the award; and
    (3) Temporary personnel and consultants who are directly engaged in 
the performance of work under the award and who are on the recipient's 
payroll.
    (b) This definition does not include workers not on the payroll of 
the recipient (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).



Sec. 312.645  Federal agency or agency.

    Federal agency or agency means any United States executive 
department, military department, government corporation, government 
controlled corporation, any other establishment in the executive branch 
(including the Executive Office of the President), or any independent 
regulatory agency.



Sec. 312.650  Grant.

    Grant means an award of financial assistance that, consistent with 
31 U.S.C. 6304, is used to enter into a relationship--

[[Page 66]]

    (a) The principal purpose of which is to transfer a thing of value 
to the recipient to carry out a public purpose of support or stimulation 
authorized by a law of the United States, rather than to acquire 
property or services for the Federal Government's direct benefit or use; 
and
    (b) In which substantial involvement is not expected between the 
Federal agency and the recipient when carrying out the activity 
contemplated by the award.



Sec. 312.655  Individual.

    Individual means a natural person.



Sec. 312.660  Recipient.

    Recipient means any individual, corporation, partnership, 
association, unit of government (except a Federal agency) or legal 
entity, however organized, that receives an award directly from a 
Federal agency.



Sec. 312.665  State.

    State means any of the States of the United States, the District of 
Columbia, the Commonwealth of Puerto Rico, or any territory or 
possession of the United States.



Sec. 312.670  Suspension.

    Suspension means an action taken by a Federal agency that 
immediately prohibits a recipient from participating in Federal 
Government procurement contracts and covered nonprocurement transactions 
for a temporary period, pending completion of an investigation and any 
judicial or administrative proceedings that may ensue. A recipient so 
prohibited is suspended, in accordance with the Federal Acquisition 
Regulation for procurement contracts (48 CFR part 9, subpart 9.4) and 
the common rule, Government-wide Debarment and Suspension 
(Nonprocurement), that implements Executive Order 12549 and Executive 
Order 12689. Suspension of a recipient is a distinct and separate action 
from suspension of an award or suspension of payments under an award.

[[Page 67]]



  CHAPTER IV--INTERNATIONAL JOINT COMMISSION, UNITED STATES AND CANADA




  --------------------------------------------------------------------
Part                                                                Page
401             Rules of procedure..........................          69

[[Page 69]]



PART 401_RULES OF PROCEDURE--Table of Contents




                            Subpart A_General

Sec.
401.1 Definitions.
401.2 Chairmen.
401.3 Permanent offices.
401.4 Duties of secretaries.
401.5 Meetings.
401.6 Service of documents.
401.7 Conduct of hearings.
401.8 Decision by the whole Commission.
401.9 Suspension or amendment of rules.
401.10 General rule.
401.11 Availability of records.

                         Subpart B_Applications

401.12 Presentation to Commission.
401.13 Copies required.
401.14 Authorization by Government.
401.15 Notice of publication.
401.16 Statement in response
401.17 Statement in reply.
401.18 Supplemental or amended applications and statements.
401.19 Reducing or extending time and dispensing with statements.
401.20 Interested persons and counsel.
401.21 Consultation.
401.22 Attendance of witnesses and production of documents.
401.23 Hearings.
401.24 Expenses of proceedings.
401.25 Government brief regarding navigable waters.

                          Subpart C_References

401.26 Presentation to Commission.
401.27 Notice and publication.
401.28 Advisory boards.
401.29 Hearings.
401.30 Proceedings under Article X.

    Authority: Art. XII, 36 Stat. 2453.

    Source: 30 FR 3379, Mar. 13, 1965, unless otherwise noted.



                            Subpart A_General



Sec. 401.1  Definitions.

    (a) In the construction of the regulations in this part, unless the 
context otherwise requires, words importing the singular number shall 
include the plural and words importing the plural number shall include 
the singular; and,
    (b) Applicant means the Government or person on whose behalf on 
application is presented to the Commission in accordance with Sec. 
401.12;
    (c) Government means the Government of Canada or the Government of 
the United States of America;
    (d) Person includes Province, State, department or agency of a 
Province or State, municipality, individual, partnership, corporation 
and association, but does not include the Government of Canada or the 
Government of the United States of America;
    (e) Oath includes affirmation;
    (f) Reference means the document by which a question or matter of 
difference is referred to the Commission pursuant to Article IX of the 
Treaty;
    (g) The Treaty means the Treaty between the United States of America 
and His Majesty the King, dated the 11th day of January 1909;
    (h) Canadian section consists of the commissioners appointed by Her 
Majesty on the recommendation of the Governor in Council of Canada;
    (i) United States section consists of the Commissioners appointed by 
the President of the United States.



Sec. 401.2  Chairmen.

    (a) The commissioners of the United States section of the Commission 
shall appoint one of their number as chairman, to be known as the 
Chairman of the United States Section of the International Joint 
Commission, and he shall act as chairman at all meetings of the 
Commission held in the United States and in respect to all matters 
required to be done in the United States by the chairman of the 
Commission.
    (b) The commissioners of the Canadian section of the Commission 
shall appoint one of their number as chairman, to be known as the 
Chairman of the Canadian Section of the International Joint Commission, 
and he shall act as chairman at all meetings of the Commission held in 
Canada and in respect to all matters required to be done in Canada by 
the chairman of the Commission.
    (c) In case it shall be impracticable for the chairman of either 
section to act in any matter, the commissioner of such section who is 
senior in order of appointment shall act in his stead.



Sec. 401.3  Permanent offices.

    The permanent offices of the Commission shall be at Washington, in 
the

[[Page 70]]

District of Columbia, and at Ottawa, in the Province of Ontario, and, 
subject to the directions of the respective chairmen acting for their 
respective sections, the secretaries of the United States and Canadian 
sections of the Commission shall have full charge and control of said 
offices, respectively.



Sec. 401.4  Duties of secretaries.

    (a) The secretaries shall act as joint secretaries at all meetings 
and hearings of the Commission. The secretary of the section of the 
Commission of the country in which a meeting or hearing is held shall 
prepare a record thereof and each secretary shall preserve an authentic 
copy of the same in the permanent offices of the Commission.
    (b) Each secretary shall receive and file all applications, 
references and other papers properly presented to the Commission in any 
proceeding instituted before it and shall number in numerical order all 
such applications and references; the number given to an application or 
reference shall be the primary file number for all papers relating to 
such application or reference.
    (c) Each secretary shall forward to the other for filing in the 
office of the other copies of all official letters, documents, records 
or other papers received by him or filed in his office, pertaining to 
any proceeding before the Commission, to the end that there shall be on 
file in each office either the original or a copy of all official 
letters and other papers, relating to the said proceeding.
    (d) Each secretary shall also forward to the other for filing in the 
office of the other copies of any letters, documents or other papers 
received by him or filed in his office which are deemed by him to be of 
interest to the Commission.



Sec. 401.5  Meetings.

    (a) Subject at all times to special call or direction by the two 
Governments, meetings of the Commission shall be held at such times and 
places in the United States and Canada as the Commission or the Chairman 
may determine and in any event shall be held each year at Washington in 
April and at Ottawa in October, beginning ordinarily on the first 
Tuesday of the said months.
    (b) If the Commission determines that a meeting shall be open to the 
public, it shall give such advance notice to this effect as it considers 
appropriate in the circumstances.



Sec. 401.6  Service of documents.

    (a) Where the secretary is required by the regulations in this part 
to give notice to any person, this shall be done by delivering or 
mailing such notice to the person at the address for service that the 
said person has furnished to the Commission, or if no such address has 
been furnished, at the dwelling house or usual place of abode or usual 
place of business of such person.
    (b) Where the secretary is required by the regulations in this part 
to give notice to a Government, this shall be done by delivering or 
mailing such notice to the Secretary of State for External Affairs of 
Canada or to the Secretary of State of the United States of America, as 
the case may be.
    (c) Service of any document pursuant to Sec. 401.22 shall be by 
delivering a copy thereof to the person named therein, or by leaving the 
same at the dwelling house or usual place of abode or usual place of 
business of such person. The person serving the notice or request shall 
furnish an affidavit to the secretary stating the time and place of such 
service.



Sec. 401.7  Conduct of hearings.

    Hearings may be conducted, testimony received and arguments thereon 
heard by the whole Commission or by one or more Commissioners from each 
section of the Commission, designated for that purpose by the respective 
sections or the Chairman thereof.



Sec. 401.8  Decision by the whole Commission.

    The whole Commission shall consider and determine any matter or 
question which the Treaty or any other treaty or international 
agreement, either in terms or by implication, requires or makes it the 
duty of the Commission to determine. For the purposes of this section 
and Sec. 401.7, ``the whole Commission'' means all of the commissioners 
appointed pursuant to Article VII of the Treaty whose terms of office 
have not expired and who are not prevented

[[Page 71]]

by serious illness or other circumstances beyond their control from 
carrying out their functions as commissioners. In no event shall a 
decision be made without the concurrence of at least four commissioners.



Sec. 401.9  Suspension or amendment of rules.

    The commission may suspend, repeal, or amend all or any of the rules 
of procedure at any time, with the concurrence of at least four 
commissioners. Both Governments shall be informed forthwith of any such 
action.



Sec. 401.10  General rule.

    The Commission may, at any time, adopt any procedure which it deems 
expedient and necessary to carry out the true intent and meaning of the 
Treaty.



Sec. 401.11  Availability of records.

    (a) The following items in the official records of the Commission 
shall be available for public information at the permanent offices of 
the Commission.

Applications.
References.
Public Notices.
Press Releases.
Statements in Response.
Statements in Reply.
Records of hearings, including exhibits filed.
Brief and formal Statements submitted at hearings or at other times.

    (b) Decisions rendered and orders issued by the Commission and 
formal opinions of any of the Commissioners with relation thereto, shall 
be available similarly for public information after duplicate originals 
of the decisions or orders have been transmitted to and filed with the 
Governments pursuant to Article XI of the Treaty.
    (c) Copies of reports submitted to one or both of the Governments 
pursuant to the Treaty shall be available similarly for public 
information only with the consent of the Government or Governments to 
whom the reports are addressed.
    (d) Reports, letters, memoranda and other communications addressed 
to the Commissions, by boards or committees created by or at the request 
of the Commission, are privileged and shall become available for public 
information only in accordance with a decision of the Commission to that 
effect.
    (e) Except as provided in the preceding paragraphs of this section, 
records of deliberations, and documents, letters, memoranda and 
communications of every nature and kind in the official records of the 
Commission, whether addressed to or by the Commission, commissioners, 
secretaries, advisers or any of them, are privileged and shall become 
available for public information only in accordance with a decision of 
the Commission to that effect.
    (f) A copy of any document, report, record or other paper which 
under this section is available for public information may be furnished 
to any person upon payment of any cost involved in its reproduction.



                         Subpart B_Applications



Sec. 401.12  Presentation to Commission.

    (a) Where one or the other of the Governments on its own initiative 
seeks the approval of the commission for the use, obstruction or 
diversion of waters with respect to which under Articles III or IV of 
the Treaty the approval of the Commission is required, it shall present 
to the Commission an application setting forth as fully as may be 
necessary for the information of the Commission the facts upon which the 
application is based and the nature of the order of approval desired.
    (b) Where a person seeks the approval of the Commission for the use, 
obstruction or diversion of waters with respect to which under Articles 
III or IV of the Treaty the approval of the Commission is required, he 
shall prepare an application to the Commission and forward it to the 
Government within whose jurisdiction such use, obstruction or diversion 
is to be made, with the request that the said application be transmitted 
to the Commission. If such Government transmits the application to the 
Commission with a request that it take appropriate action thereon, the 
same shall be filed by the Commission in the same manner as an 
application presented in accordance with paragraph (a) of this section. 
Transmittal of the application to the Commission shall not be construed 
as authorization

[[Page 72]]

by the Government of the use, obstruction or diversion proposed by the 
applicant. All applications by persons shall conform, as to their 
contents, to the requirements of paragraph (a) of this section.
    (c) Where the Commission has issued an Order approving a particular 
use, obstruction or diversion, in which it has specifically retained 
jurisdiction over the subject matter of an application and has reserved 
the right to make further orders relating thereto, any Government or 
person entitled to request the issuance of such further order may 
present to the Commission a request, setting forth the facts upon which 
it is based and the nature of the further order desired. On receipt of 
the request, the Commission shall proceed in accordance with the terms 
of the Order in which the Commission specifically retained jurisdiction. 
In each case the secretaries shall notify both Governments and invite 
their comments before the request is complied with.



Sec. 401.13  Copies required.

    (a) Subject to paragraph (c) of this section, two duplicate 
originals and fifty copies of the application and of any supplemental 
application, statement in response, supplemental statement in response, 
statement in reply and supplemental statement in reply shall be 
delivered to either secretary. On receipt of such documents, the 
secretary shall forthwith send one duplicate original and twenty-five 
copies to the other secretary.
    (b) Subject to paragraph (c) of this section, two copies of such 
drawings, profiles, plans or survey, maps and specifications as may be 
necessary to illustrate clearly the matter of the application shall be 
delivered to either secretary and he shall send one copy forthwith to 
the other secretary.
    (c) Notwithstanding paragraphs (a) and (b) of this section, such 
additional copies of the documents mentioned therein as may be requested 
by the Commission shall be provided forthwith.



Sec. 401.14  Authorization by Government.

    (a) Where the use, obstruction or diversion of waters for which the 
Commission's approval is sought has been authorized by or on behalf of a 
Government or by or on behalf of a State or Province or other competent 
authority, two copies of such authorization and of any plans approved 
incidental thereto shall accompany the application when it is presented 
to the Commission in accordance with Sec. 401.12.
    (b) Where such a use, obstruction or diversion of waters is 
authorized by or on behalf of a Government or by or on behalf of a State 
or Province or other competent authority after an application has been 
presented to the Commission in accordance with Sec. 401.12, the 
applicant shall deliver forthwith to the Commission two copies of such 
authorization and of any plans approved incidental thereto.



Sec. 401.15  Notice of publication.

    (a) As soon as practicable after an application is presented or 
transmitted in accordance with Sec. 401.12, the secretary of the 
section of the Commission appointed by the other Government shall send a 
copy of the application to such Government.
    (b) Except as otherwise provided pursuant to Sec. 401.19, the 
secretaries, as soon as practicable after the application is received, 
shall cause a notice to be published in the Canada Gazette and the 
Federal Register and once each week for three successive weeks in two 
newspapers, published one in each country and circulated in or near the 
localities which, in the opinion of the Commission, are most likely to 
be affected by the proposed use, obstruction or diversion. Subject to 
paragraph (c) of this section, the notice shall state that the 
application has been received, the nature and locality of the proposed 
use, obstruction or diversion, the time within which any person 
interested may present a statement in response to the Commission and 
that the Commission will hold a hearing or hearings at which all persons 
interested are entitled to be heard with respect thereto.
    (c) If the Commission so directs, the notice referred to in 
paragraph (b) of this section, appropriately modified, may be combined 
with the notice of hearing referred to in Sec. 401.24 and published 
accordingly.

[[Page 73]]



Sec. 401.16  Statement in response.

    (a) Except as otherwise provided pursuant to Sec. 410.19, a 
Government and any interested person, other than the applicant, may 
present a statement in response to the Commission within thirty days 
after the filing of an application. A statement in response shall set 
forth facts and arguments bearing on the subject matter of the 
application and tending to oppose or support the application, in whole 
or in part. If it is desired that conditional approval be granted, the 
statement in response should set forth the particular condition or 
conditions desired. An address for service of documents should be 
included in the statement in response.
    (b) When a statement in response has been filed, the secretaries 
shall send a copy forthwith to the applicant and to each Government 
except the Government which presented the said statement in response. If 
so directed by the Commission, the secretaries shall inform those who 
have presented statements in response, of the nature of the total 
response.



Sec. 401.17  Statement in reply.

    (a) Except as otherwise provided pursuant to Sec. 410.19, the 
applicant and, if he is a person, the Government which transmitted the 
application on his behalf, one or both may present a statement or 
statements in reply to the Commission within thirty days after the time 
provided for presenting statements in response. A statement in reply 
shall set forth facts and arguments bearing upon the allegations and 
arguments contained in the statements in response.
    (b) When a statement in reply has been filed, the secretary shall 
send a copy forthwith to each Government except the Government which 
presented the said statement in reply, and to all persons who presented 
statements in response.



Sec. 401.18  Supplemental or amended applications and statements.

    (a) If it appears to the Commission that either an application, a 
statement in response or a statement in reply is not sufficiently 
definite and complete, the Commission may require a more definite and 
complete application, statement in response or statement in reply, as 
the case may be, to be presented.
    (b) Where substantial justice requires it, the Commission with the 
concurrence of at least four Commissioners may allow the amendment of 
any application, statement in response, statement in reply and any 
document or exhibit which has been presented to the Commission.



Sec. 401.19  Reducing or extending time and dispensing with statements.

    In any case where the Commission considers that such action would be 
in the public interest and not prejudicial to the right of interested 
persons to be heard in accordance with Article XII of the Treaty, the 
Commission may reduce or extend the time for the presentation of any 
paper or the doing of any act required by these rules or may dispense 
with the presentation of statements in response and statements in reply.



Sec. 401.20  Interested persons and counsel.

    Governments and persons interested in the subject matter of an 
application, whether in favor of or opposed to is, are entitled to be 
heard in person or by counsel at any hearing thereof held by the 
Commission.



Sec. 401.21  Consultation.

    The Commission may meet or consult with the applicant, the 
Governments and other persons or their counsel at any time regarding the 
plan of hearing, the mode of conducting the inquiry, the admitting or 
proof of certain facts or for any other purpose.



Sec. 401.22  Attendance of witnesses and production of documents.

    (a) Requests for the attendance and examination of witnesses and for 
the production and inspection of books, papers and documents may be 
issued over the signature of the secretary of the section of the 
Commission of the country in which the witnesses reside or the books, 
papers or documents may be, when so authorized by the Chairman of that 
section.
    (b) All applications for subpoena or other process to compel the 
attendance

[[Page 74]]

of witnesses or the production of books, papers and documents before the 
Commission shall be made to the proper courts of either country, as the 
case may be, upon the order of the Commission.



Sec. 401.23  Hearings.

    (a) The time and place of the hearing or hearings of an application 
shall be fixed by the Chairmen of the two sections.
    (b) The secretaries shall forthwith give written notice of the time 
and place of the hearing or hearings to the applicant, the Governments 
and all persons who have presented statements in response to the 
Commission. Except as otherwise provided by the Commission, the 
secretaries shall also cause such notice to be published in the Canada 
Gazette and the Federal Register and once each week for three successive 
weeks in two newspapers, published one in each country and circulated in 
or near the localities which, in the opinion of the Commission, are most 
likely to be affected by the proposed use, obstruction or diversion of 
water.
    (c) All hearings shall be open to the public.
    (d) The applicant, the Governments and persons interested are 
entitled to present oral and documentary evidence and argument that is 
relevant and material to any issue that is before the Commission in 
connection with the application.
    (e) The presiding chairman may require that evidence to be under 
oath.
    (f) Witnesses may be examined and cross-examined by the 
Commissioners and by counsel for the applicant, the Governments and the 
Commission. With the consent of the presiding chairman, cousel for a 
person other than the applicant may also examine or cross-examine 
witnesses.
    (g) The Commission may require further evidence to be given and may 
require printed briefs to be submitted at or subsequent to the hearing.
    (h) The Commissioners shall be free to determine the probative value 
of the evidence submitted to it.
    (i) A verbatim transcript of the proceedings at the hearing shall be 
prepared.
    (j) The hearing of the application, when once begun, shall proceed 
at the times and places determined by the Chairmen of the two sections 
to ensure the greatest practicable continuity and dispatch of 
proceedings.



Sec. 401.24  Expenses of proceedings.

    (a) The expenses of those participating in any proceeding under this 
subpart B shall be borne by the participants.
    (b) The Commission, after due notice to the participant or 
participants concerned, may require that any unusual cost or expense to 
the Commission shall be paid by the person on whose behalf or at whose 
request such unusual cost or expense has been or will be incurred.



Sec. 401.25  Government brief regarding navigable waters.

    When in the opinion of the Commission it is desirable that a 
decision should be rendered which affects navigable waters in a manner 
or to an extent different from that contemplated by the application and 
plans presented to the Commission, the Commission will, before making a 
final decision, submit to the Government presenting or transmitting the 
application a draft of the decision, and such Government may transmit to 
the Commission a brief or memorandum thereon which will receive due 
consideration by the Commission before its decision is made final.



                          Subpart C_References



Sec. 401.26  Presentation to Commission.

    (a) Where a question or matter of difference arising between the two 
Governments involving the rights, obligations, or interests of either in 
relation to the other or to the inhabitants of the other along the 
common frontier between the United States of America and Canada is to be 
referred to the Commission under Article IX of the Treaty, the method of 
brining such question or matter to the attention of the Commission and 
invoking its action ordinarily will be as set forth in this section.

[[Page 75]]

    (b) Where both Governments have agreed to refer such a question or 
matter to the Commission, each Government will present to the 
Commission, at the permanent office in its country, a reference in 
similar or identical terms setting forth as fully as may be necessary 
for the information of the Commission the question or matter which it is 
to examine into the report upon and any restrictions or exceptions which 
may be imposed upon the Commission with respect thereto.
    (c) Where one of the Governments, on its own initiative, has decided 
to refer such a question or matter to the Commission, it will present a 
reference to the Commission at the permanent office in its country. All 
such references should conform, as to their contents, to the 
requirements of paragraph (b) of this section.
    (d) Such drawings, plans of survey and maps as may be necessary to 
illustrate clearly the question or matter referred should accompany the 
reference when it is presented to the Commission.



Sec. 401.27  Notice and publication.

    (a) The secretary to whom a reference is presented shall receive and 
file the same and shall send a copy forthwith to the other secretary for 
filing in the office of the latter. If the reference is presented by one 
Government only, the other secretary shall send a copy forthwith to his 
Government.
    (b) Subject to any restrictions or exceptions which may be imposed 
upon the Commission by the terms of the reference, and unless otherwise 
provided by the Commission, the secretaries, as soon as practicable 
after the reference is received, shall cause a notice to be published in 
the Canada Gazette, the Federal Register and in two newspapers, 
published one in each country and circulated in or near the localities 
which, in the opinion of the Commission, are most likely to be 
interested in the subject matter of the reference. The notice shall 
describe the subject matter of reference in general terms invite 
interested persons to inform the Commission of the nature of their 
interest and state that the Commission will provide convenient 
opportunity for interested persons to be heard with respect thereto.



Sec. 401.28  Advisory boards.

    (a) The Commission may appoint a board or boards, composed of 
qualified persons, to conduct on its behalf investigations and studies 
that may be necessary or desirable and to report to the Commission 
regarding any questions or matters involved in the subject matter of the 
reference.
    (b) Such board ordinarily will have an equal number of members from 
each country.
    (c) The Commission ordinarily will make copies of the main or final 
report of such board or a digest thereof available for examination by 
the Governments and interested persons prior to holding the final 
hearing or hearings referred to in Sec. 401.29.



Sec. 401.29  Hearings.

    (a) A hearing or hearings may be held whenever in the opinion of the 
Commission such action would be helpful to the Commission in complying 
with the terms of a reference. Subject to any restrictions or exceptions 
which may be imposed by the terms of the reference, a final hearing or 
hearings shall be held before the Commission reports to Government in 
accordance with the terms of the reference.
    (b) The time, place and purpose of the hearing or hearings on a 
reference shall be fixed by the chairmen of the two sections.
    (c) The secretaries shall forthwith give written notice of the time, 
place and purpose of the hearing or hearings to each Government and to 
persons who have advised the Commission of their interest. Unless 
otherwise directed by the Commission, the secretaries shall also cause 
such notice to be published in the Canada Gazette, the Federal Register 
and once each week for three successive weeks in two newspapers, 
published one in each country and circulated in or near the localities 
which, in the opinion of the Commission, are most likely to be 
interested in the subject matter of the reference.
    (d) All hearings shall be open to the public, unless otherwise 
determined by the Commission.

[[Page 76]]

    (e) At a hearing, the Governments and persons interested are 
entitled to present, in person or by counsel, oral and documentary 
evidence and argument that is relevant and material to any matter that 
is within the published purpose of the hearing.
    (f) The presiding chairman may require that evidence be under oath.
    (g) Witnesses may be examined and cross-examined by the 
Commissioners and by counsel for the Governments and the Commission. 
With the consent of presiding chairman, counsel for any interested 
person may also examine or cross-examine witnesses.
    (h) The Commission may require further evidence to be given and may 
require printed briefs to be submitted at or subsequent to the hearing.
    (i) A verbatim transcript of the proceedings at the hearing shall be 
prepared.



Sec. 401.30  Proceedings under Article X.

    When a question or matter of difference arising between the two 
Governments involving the rights, obligations or interests of either in 
relation to the other or to their respective inhabitants has been or is 
to be referred to the Commission for decision under Article X of the 
Treaty, the Commission, after consultation with the said Governments, 
will adopt such rules of procedure as may be appropriate to the question 
or matter referred or to be referred.

[[Page 77]]



               CHAPTER V--BROADCASTING BOARD OF GOVERNORS




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


  Editorial Note: Nomenclature changes to Chapter V appear at 64 FR 
54539, Oct. 7, 1999.
Part                                                                Page
501             Appointment of Foreign Service officers.....          79
503             Freedom of Information Act regulation.......          86
505             Privacy Act regulation......................          99
506             Part-time career employment program.........         105
507             Rules for implementing open meetings under 
                    the Sunshine Act for the Broadcasting 
                    Board of Governors......................         106
510             Service of process..........................         109
511             Federal tort claims procedure...............         109
512             Collection of debts under the Debt 
                    Collection Act of 1982..................         111
513             Government debarment and suspension 
                    (nonprocurement) and governmentwide 
                    requirements for drug-free workplace 
                    (grants)................................         122
518             Uniform administrative requirements for 
                    grants and agreements with institutions 
                    of higher education, hospitals, and 
                    other non-profit organizations..........         141
519             New restrictions on lobbying................         167
521             Implementation of the Program Fraud Civil 
                    Remedies Act............................         178
530             Enforcement of nondiscrimination on the 
                    basis of handicap in programs or 
                    activities conducted by the Broadcasting 
                    Board of Governors......................         194

[[Page 79]]



PART 501_APPOINTMENT OF FOREIGN SERVICE OFFICERS--Table of Contents




Sec.
501.1 Policy.
501.2 Eligibility for appointment as Foreign Service Officer.
501.3 Noncompetitive interchange between Civil Service and Foreign 
          Service.
501.4 Junior Level Career Candidate Program (Class 6, 5, or 4).
501.5 Mid-Level FSO Candidate Program (Class 3, 2, or 1).
501.6 Appointment of Overseas Specialists.
501.7 Appointment as Chief of Mission.
501.8 Reappointment of Foreign Service Officers and Career Overseas 
          Specialists.
501.9 Interchange of FSOs between Broadcasting Board of Governors and 
          other Foreign Affairs Agencies.

    Authority: Foreign Service Act of 1980 (22 U.S.C. 3901 et seq.).

    Source: 50 FR 27423, July 3, 1985, unless otherwise noted.



Sec. 501.1  Policy.

    It is the policy of the Broadcasting Board of Governors that Foreign 
Service Officers occupy positions in which there is a need and 
reasonable opportunity for interchangeability of personnel between the 
Board and posts abroad, and which are concerned with (a) the conduct, 
observation, or analysis of information and cultural activities, or (b) 
the executive management of, or administrative responsibility for, the 
overseas operations of the Board's program.



Sec. 501.2  Eligibility for appointment as Foreign Service Officer.

    Cross-reference: The regulations governing eligibility for 
appointment as a Foreign Service Officer are codified in part 11 of this 
title.



Sec. 501.3  Noncompetitive interchange between Civil Service and Foreign 

Service.

    (a) An agreement between the Office of Personnel Management and the 
Board under the provisions of Executive Order 11219 (3 CFR 1964-65 Comp. 
p. 303) provides for the noncompetitive appointment of present or former 
Foreign Service employees as career or career conditional Civil Service 
employees.
    (b) Under this agreement former career personnel of the Board's 
Foreign Service (FSCR, FSRU, FSIO, FSS, FSO, or FP) and such present 
personnel desiring to transfer, are eligible, under certain conditions, 
for noncompetitive career or career-conditional appointment in any 
Federal agency that desires to appoint them. The President has 
authorized the Office of Personnel Management by executive order to 
waive the requirements for competitive examination and appointment for 
such Board career Foreign Service personnel.
    (c) A present or former Civil Service employee may be appointed on a 
competitive basis in any Foreign Service class for which the employee 
has qualified under the provisions of section 3947 of title 22, United 
States Code.



Sec. 501.4  Junior Level Career Candidate Program (Class 6, 5, or 4).

    Cross-reference: The regulations governing the junior level Career 
Candidate program are codified in part 11 of this title.



Sec. 501.5  Mid-level FSO Candidate Program (Class 3, 2, or 1).

    (a) General. The mid-level FSO Candidate program, under the 
provisions of section 306 of the Foreign Service Act of 1980, 
supplements the junior-level Career Candidate program to meet total 
requirements for Foreign Service Officers at the mid-level in the 
Foreign Service. Foreign Service limited appointments of FSO Candidates 
are made to Class 3, 2, or 1 for a period not to exceed five years. 
Occasionally, appointments may be offered at the Class 4 level. The FSO 
Commissioning Board will determine whether FSO Candidates have performed 
at a satisfactory level and demonstrated the required level of growth 
potential and competence, and will make a recommendation on 
commissioning as Foreign Service Officers. FSO Candidates who are not 
recommended for commissioning prior to the expiration of their limited 
appointment will be separated from the mid-level program.
    (b) Sources of applicants. (1) The Broadcasting Board of Governors 
draws a significant number of FSO Candidates from Board employees who

[[Page 80]]

apply, and are found qualified by the Board of Examiners for the Foreign 
Service (BEX).
    (2) The Board also draws Candidates from outside applicants who 
possess skills and abilities in short supply in the Foreign Service and 
who have capabilities, insights, techniques, experiences, and 
differences of outlook which would serve to enrich the Foreign Service 
and enable them to perform effectively in assignments both abroad and in 
the United States. Minority applicants are recruited for mid-level entry 
under the COMRAT program. Appointment from sources outside the Board is 
limited and based on intake levels established in accordance with total 
Broadcasting Board of Governors FSO workforce and functional 
requirements. Such appointments are based on successful completion of 
the examination process, and existing assignment vacancies.
    (c) Eligibility requirement--(1) Broadcasting Board of Governors 
Employees. On the date of application, employees must have at least 
three years of Federal Government service in a position of 
responsibility in the Board. A position of responsibility is defined as 
service as an Overseas Specialist at Class 4 or above or as a Domestic 
Specialist at GS-11 or above within the Board. The duties and 
responsibilities of the position occupied by the applicant must have 
been similar or closely related to those of a Foreign Service Officer in 
terms of knowledge, skills, abilities, and overseas experience. Board 
Domestic and Overseas Specialists must be no more than 58 years of age 
on the date of redesignation or appointment as an FSO Candidate.
    (2) Applicants Under Special Recruitment Programs. Minority and 
women applicants must be no more than 58 years of age, must have 
approximately nine years of education or experience relevant to work 
performed in Broadcasting Board of Governors, must be knowledgeable in 
the social, political and cultural history of the U.S. and be able to 
analyze and interpret this in relation to U.S. Government policy and 
American life.
    (3) Outside Applicants. On the date of appointment, applicants must 
be no more than 58 years of age, with nine years of relevant work 
experience and/or education, or proficiency in a language for which the 
Board has a need, or substantial management expertise. Relevant work 
experience is defined as public relations work, supervisory or 
managerial positions in communications media, program director for a 
museum or university-level teacher of political science, history, 
English or other relevant disciplines. Appointments from these sources 
for the limited vacancies available are made on a competitive basis to 
fill specific Service needs after ensuring that the vacancies cannot be 
filled by Foreign Service Officers already in the Foreign Service 
Officer Corps.
    (d) Application Procedures. (1) Applicants must complete Standard 
Form 171, Application for Federal Employment; Form DSP-34, Supplement to 
Application for Federal Employment; a 1,000 word autobiography; a 
statement affirming willingness and capacity to serve at any post 
worldwide; and transcripts of all graduate and undergraduate course work 
and forward them to the Special Recruitment Branch, Office of Personnel 
(M/PDSE).
    (2) The filing of an application for the Foreign Service does not in 
itself entitle an applicant to examination. The decision to proceed with 
an oral examination is made by a Qualifications Evaluation Panel after 
determining the applicant's eligibility for appointment and reviewing 
the applicant's qualifications including his/her performance, and 
administrative files (or equivalents), claimed language proficiency and 
other background or factors which may be related to the work performed 
by FSOs. An oral examination is given only in those cases where the 
applicant is found to possess superior qualifications, proven ability, 
and high potential for success in the Foreign Service.
    (e) Examination process--(1) Written Examination. A written 
examination will not normally be required of applicants for FSO 
Candidate appointments. However, if the volume of applications for a 
given class or classes is such as to make it infeasible to examine 
applicants orally within a reasonable time, such applicants may be 
required to

[[Page 81]]

take an appropriate written examination prescribed by the Board of 
Examiners. Those who meet or exceed the passing level set by the Board 
of Examiners on the written examination will be eligible for selection 
for the oral examination.
    (2) Oral examination. (i) Applicants approved by the Qualifications 
Evaluation Panel for examination will be given an oral examination by a 
panel of Deputy Examiners approved by the Board of Examiners. The oral 
examination is designed to enable the Board of Examiners to determine 
whether applicants are functionally qualified for work in the Foreign 
Service at the mid-level, whether they would be suitable representatives 
abroad of the United States, whether they have the potential to advance 
in the Foreign Service, and whether they have the background and 
experience to make a contribution to the Foreign Service. The oral 
examination is individually scheduled throughout the year and is 
normally given in Washington, D.C. At the discretion of the Board of 
Examiners, it may be given in other American cities, or at Foreign 
Service posts, selected by the Board.
    (ii) The panel will orally examine each applicant through 
questioning and discussion. There will also be a writing exercise and an 
in-basket test. Applicants taking the oral examination will be graded 
according to the standards established by the Board of Examiners. The 
application of anyone whose score is at or above the passing level set 
by the Board will be continued. The application of anyone whose score is 
below the passing level will be terminated. The applicant may, however, 
reapply in 12 months by submitting a new application.
    (3) Foreign language requirement. All applicants who pass the oral 
examination will be required to take a subsequent test to measure their 
fluency in foreign languages, or their aptitude for learning them (MLAT) 
for which a score of 50 points (on a scale of zero to eighty) is 
necessary to qualify for further processing. No applicant will be 
recommended for career appointment who has not demonstrated such a 
proficiency or aptitude. An applicant may be selected, appointed and 
assigned without first having demonstrated required proficiency in a 
foreign language, but the appointment will be subject to the condition 
that the employee may not receive more than one promotion and may not be 
commissioned as an FSO until proficiency in one foreign language is 
achieved.
    (4) Medical examination. Those applicants recommended by the Board 
of Examiners for an FSO candidacy, and their dependents who will reside 
with them overseas, are required to pass a physical examination at the 
Department of State Medical Division.
    (5) Security and suitability considerations. A background 
investigation or appropriate security clearance update will be conducted 
on each applicant, and no application may be continued until a security 
clearance has been granted.
    (6) Class of appointment. The Board of Examiners fixes the entry 
level for appointment as an FSO candidate.
    (7) Certification for appointment. After completion of all aspects 
of the examination, the Board of Examiners certifies to the Board 
successful candidates for appointment as FSO Candidates. Determinations 
of duly constituted panels of examiners and deputy examiners are final, 
unless modified by specific action of the Board of Examiners for the 
Foreign Service.
    (8) FSO Candidate registers. (i) After approval by the Board of 
Examiners, and certification as to suitability and security clearance by 
the Board's Director of Security, successful applicants will have their 
names placed on a register for the class for which they have been found 
qualified. Appointments to available openings will be made from the 
applicants entered on the register for the class of the position to be 
filled. Inclusion on the register does not guarantee eventual assignment 
and appointment as an FSO Candidate. Applicants who have qualified but 
have not been appointed because of lack of openings will be dropped from 
the register 18 months after the date of placement on it (or the 
completion of an inside applicant's current overseas tour, whichever is 
longer). Such applicants may reapply for the program, but will be 
required to

[[Page 82]]

repeat the entire application process, including BEX testing.
    (ii) Any applicant on the register who refuses an assignment offer 
will be removed from the Register and will not be eligible to reapply 
for the program for seven years.
    (iii) The Board of Examiners may extend the eligibility period when 
such extension is in its judgment justified in the interest of the 
Foreign Service.
    (f) Appointment as an FSO Candidate. (1) An FSO Candidate will be 
given a four-year Foreign Service limited appointment. Board Career 
Overseas Specialists will be redesignated as FSO Candidates for a period 
of four years. The appointment or redesignation may be extended for one 
year, but must be terminated at the end of the fifth year. The purpose 
of the FSO Candidacy is to permit on-the-job evaluation of an 
individual's suitability and capacity for effective service as a Foreign 
Service Officer.
    (2) FSO Candidates will be assigned to Generalist positions 
overseas, and will compete for promotion with other Generalist officers 
under the Annual Generalist Selection Boards. FSO Candidates at the 
Class 1 level may not compete for promotion into the Senior Foreign 
Service prior to commissioning as an FSO.
    (3) The FSO Candidacy may be terminated during the four-year period 
for unsatisfactory performance (22 U.S.C. 4011) or for such other cause 
as will promote the efficiency of the Service (22 U.S.C. 4010).
    (g) Commissioning as a Foreign Service Officer. (1) Upon completion 
of three years' service (most of which will have been overseas), the FSO 
Candidate will be eligible for commissioning as a Foreign Service 
Officer. The FSO Commissioning Board will review all FSO Candidates 
appointed on or after March 1, 1980 and will recommend on tenure.
    (2) The criterion used for deciding whether to recommend 
commissioning of FSO Candidates is the Candidate's demonstrated 
potential to perform effectively as a Foreign Service Officer in a 
normal range of generalist assignments up through the Class 1 level. No 
quota or numerical limit is placed on the number of affirmative 
decisions.
    (3) If recommended for commissioning, and having satisfied the 
language proficiency requirements, the name of the FSO Candidate will be 
forwarded to the President and the Senate and, upon approval, the FSO 
Candidate will be commissioned as an FSO.
    (4) If the FSO Commissioning Board does not recommend commissioning 
of the FSO Candidate during its review, it may recommend extension of 
the FSO Candidacy to allow for a future review. Under no circumstances 
will an FSO Candidacy be extended to a total of more than five years.
    (5) Candidates not recommended for commissioning or who have not 
satisfied the language proficiency requirement will be separated from 
the Service at the expiration of their appointment. However, FSO 
Candidates who were appointed from within the Board with career status 
as a Domestic or Overseas Specialist may exercise reappointment rights 
to their previous category in lieu of separation.



Sec. 501.6  Appointment of Overseas Specialists.

    (a) General. Members of the Board's Foreign Service appointed as 
Overseas Specialists serve on rotational U.S.-overseas assignments in 
the following types of positions: General Administration; Publication 
Writers and Editors; Exhibit Managers; Printing Specialists; English 
Teaching Specialists; Correspondents; Engineers for the Voice of 
America; Regional Librarian Consultants; and Secretaries. Appointees 
serve a trial period of service as Specialist Candidates under Foreign 
Service limited appointments (or redesignation) for a period not to 
exceed five years. Appointments are made to F.S. classes 8 through 1. 
Specialist Candidates are given career appointments as Overseas 
Specialists based on the recommendations of Specialist Selection Boards. 
Specialist candidates not recommended for tenuring will be separated 
from the Foreign Service, or reinstated in the Civil Service.
    (b) Sources of applicants. Qualified Broadcasting Board of Governors 
domestic employees comprise a significant recruitment source for 
Overseas Specialist appointments. Such employees will be given priority 
consideration

[[Page 83]]

over outside applicants when applying for Overseas Specialist positions, 
when qualifications are otherwise equal.
    (c) Eligibility requirements. All applicant must be citizens of the 
United States, and must be at least 21 years of age and no more than 58 
years of age at the time of appointment. The 21-year age requirement may 
be waived by the Director, Office of Personnel (M/P or VOA/P) when she 
or he determines that the applicant's services are urgently needed. 
Broadcasting Board of Governors employee applicants must also have at 
least three years of Federal government experience and occupy a position 
at the GS-11 level (or equivalent) or above (GS-10 for Electronic 
Technicians in the Voice of America). All applicants must be available 
for worldwide assignment to positions in their occupational category.
    (d) Application procedures. (1) Applications for all specialties 
except secretarial should include a current SF-171, Application for 
Federal Employment; a DSP-34, Supplement to Application for Federal 
Employment; university transcripts; a 1,000 word autobiographical 
statement which should include mention of the qualifications the 
applicant would bring to the job and reason for desiring to work for the 
Board; and a statement affirming willingness and capacity to serve at 
any post worldwide.
    (2) Special requirements for Foreign Service Secretaries. 
Secretarial applicants must submit a current SF-171, Application for 
Federal Employment, and a 250 word essay on a commonly understood 
subject to demonstrate grammatical competence. The following specific 
requirements must be met by applicants: Ability to type accurately at 60 
words per minute; four years of secretarial or administrative experience 
(business school or college training may be substituted for up to two 
years of required work experience); and attainment of an acceptable 
score in verbal ability and spelling tests. Applicants will subsequently 
be given a written examination to measure administrative aptitude.
    (e) Examination process--(1) Application review. All applications 
are to be sent to the Special Recruitment Staff, Office of Personnel (M/
PDSE), or to the Foreign Personnel Advisor (VOA/PF) for Voice of America 
positions.
    (2) Qualifications Evaluation Panel. A Qualifications Evaluation 
Panel will evaluate the applicant's qualifications including his/her 
performance and administrative files (or equivalent), claimed language 
proficiency and other background or factors which may be related to the 
work performed by an Overseas Specialist Officer in the relevant 
specialty.
    (3) Oral examination. (i) Applicants who are passed on by the 
Qualifications Evaluation Panel to the Board of Examiners will be given 
an oral examination to evaluate the applicant's total qualifications for 
service as an Overseas Specialist in the desired functional specialty.
    (ii) The Board panel examining all candidates except those of the 
Voice of America will consist of one Broadcasting Board of Governors 
Overseas Specialist and two BEX Deputy Examiners. For VOA candidates, 
the panel will consist of the Foreign Personnel Advisor, a BEX Deputy 
Examiner assigned to the Voice of America, and a Deputy Examiner 
assigned to the Board of Examiners.
    (iii) The panel will examine each applicant through questioning and 
discussion. Hypothetical problem-solving exercises, a writing exercise 
and an in-basket test may also be required. The panel will also 
recommend the F.S. entry level for appointment. If the panel's 
recommendation is unfavorable, the application process will be 
discontinued. An unsuccessful applicant may apply again in 12 months.
    (4) The same medical and security requirements applicable to FSO 
Candidates pertain to Specialist Candidates.
    (5) Overseas Specialist Candidate register. If an applicant is 
successful in the examination, and medical and security clearances have 
been successfuly completed, his/her name will be added to the 
appropriate Overseas Specialist register for a period of 18 months, or 
completion of an inside candidate's current tour of duty overseas, 
whichever is longer, at the Foreign Service class determined in the 
examination process and based on previous experience. Inclusion on the 
register does not

[[Page 84]]

guarantee eventual assignment and appointment as an Overseas Specialist 
Candidate.
    (f) Appointment as a Specialist Candidate. (1) When the Office of 
Personnel identifies an overseas vacancy which cannot be filled from the 
existing ranks of Overseas Specialists, applicants on the Overseas 
Specialist register will be considered for the assignment. An applicant 
will not be appointed unless an overseas position has been identified 
and a need for the individual in the Foreign Service has been certified 
by the Director, Office of Personnel (M/P or VOA/P). Any applicant 
selected from the register who refuses an assignment offer will be 
dropped from the register and precluded from reapplying for a period of 
seven years.
    (2) Applicants will be given a Foreign Service limited appointment 
(or redesignation) for a period of four years at the Foreign Service 
Class determined in the examination process. The purpose of this 
untenured appointment is to allow the Board to evaluate and assess the 
Specialist Candidate's abilities and future potential prior to offering 
career appointment as an Overseas Specialist. The limited appointment 
may be extended for one additional year, but must be terminated at the 
end of the fifth year if the Candidate does not obtain career tenure.
    (3) The Candidate will receive the orientation and training 
necessary to serve overseas and will be assigned overseas in a position 
in his or her specialty. Broadcasting Board of Governors Civil Service 
employees selected as Overseas Specialist Candidates will be appointed 
only if the Board element to which they are currently assigned is 
willing to affirm in writing that a position at the appropriate level 
will be made available for the employee should the candidacy end 
unsuccessfully. Broadcasting Board of Governors Civil Service applicants 
will be appointed as Overseas Specialist Candidates on or about the date 
of their departure for post of assignment or upon assumption of an 
assignment (which has been identified and will follow a period of 
orientation in Washington). The Board may also assign a Candidate to a 
U.S.-based position for an initial assignment of up to 24 months when 
the Candidate will spend the majority of his/her time traveling overseas 
and will, except for the U.S. basing, be fully functioning as an 
Overseas Specialist. Specialist Candidates will compete for promotion by 
the Annual Overseas Specialist Selection Board with other officers in 
the same specialty and at the same class level. Specialist Candidates at 
the Class 1 level are ineligible for promotion into the Senior Foreign 
Service.
    (4) The Specialist candidacy may be terminated at any time for 
unsatisfactory performance (22 U.S.C. 4011) or for such cause as will 
promote the efficiency of the Service (22 U.S.C. 4010).
    (g) Career appointment as an Overseas Specialist. In accordance with 
section 3946 of title 22 United States Code, the decision to offer a 
Specialist Candidate a career appointment will be based on the 
recommendation made by the Annual Overseas Specialist Selection Board 
which reviews all employees in the Candidate's occupational category and 
class level.
    (1) Eligibility. Specialist Candidates who have performed at least 
two years of overseas service will be eligible for review for career 
status at the time of the Candidate's third Board review. Candidates 
serving an initial tour in the U.S. but spending the majority of time 
working overseas will be credited with up to one year's overseas 
service, but no more than half of the time based in the U.S. If a 
Specialist Candidate is not recommended for career status during the 
initial review, the Candidate may be reviewed again when the next Annual 
Overseas Specialist Selection Board convenes if the initial Board so 
recommends.
    (2) Selection Board Review. The Selection Board(s) will review the 
official performance file of the eligible Specialist Candidates and in 
accordance with established precepts, will determine whether the 
Candidates should be recommended for career appointment as Overseas 
Specialists. Recommendations by the Board will be based on the 
Candidate's demonstrated aptitude and fitness for a career in the 
Foreign Service in their occupational specialties. No quota or numerical 
limit is placed on the number of positive career status

[[Page 85]]

decisions that can be made by Selection Boards. The Specialist candidacy 
will be terminated if the Candidate fails to be recommended for career 
status after a second Board review for tenuring. Candidates may be 
terminated earlier than the expiration of their limited appointment if 
so recommended by the Board and approved by the Director, Office of 
Personnel (M/P or VOA/P). Specialist Candidates recommended for career 
status by the Selection Board will be given Foreign Service career 
appointments (or redesignation) as Overseas Specialist, to take effect 
within one month of the Board's recommendation.



Sec. 501.7  Appointment as Chief of Mission.

    (a) Appointment by President. Chiefs of mission are appointed by the 
President, by and with the advice and consent of the Senate. They may be 
career members of the Foreign Service or they may be appointed from 
outside the Service.
    (b) Recommendation of Foreign Service career members. On the basis 
of recommendations made by the Director of Broadcasting Board of 
Governors, the Secretary of State from time to time furnishes the 
President with the names of Foreign Service career members qualified for 
appointment as chiefs of mission. The names of these officers, together 
with pertinent information concerning them, are given to the President 
to assist him in selecting qualified candidates for appointment as 
chiefs of mission.
    (c) Status of Foreign Service career members appointed as Chiefs of 
Mission. Foreign Service career members who are appointed as chiefs of 
mission retain their career status as Foreign Service career members.



Sec. 501.8  Reappointment of Foreign Service Officers and Career Overseas 

Specialists.

    The President may, by and with the advice and consent of the Senate, 
reappoint to the Service a former Foreign Service Officer who is 
separated from the Service. The Director (Broadcasting Board of 
Governors) may reappoint to the Service a former career Overseas 
Specialist.
    (a) Requirements for reappointment. (1) On the date of application, 
each applicant must be a citizen of the United States.
    (2) No applicant will be considered who has previously been 
separated from the Foreign Service pursuant to section 608 or 610 of the 
Foreign Service Act of 1980 (or predecessor section 633, 635, or 637 of 
the Foreign Service Act of 1946, as amended); or who resigned or retired 
in lieu of selection out or separation for cause.
    Note: This requirement will not apply where it has been determined 
by the Foreign Service Grievance Board under 3 FAM 660 or by the 
Director, Office of Personnel, that the separation or the resignation or 
retirement in lieu of selection out or separation for cause was 
wrongful; where reappointment is determined by the Director, Office of 
Personnel, as an appropriate means to settle a grievance or complaint of 
a former Foreign Service career member on a mutually satisfactory basis; 
or where reappointment is the indicated redress in a proceeding under 3 
FAM 130 ``Equal Employment Opportunity.''
    (b) Application. Apply by letter addressed to the Director, Office 
of Personnel. Include the standard application forms, SF-171, 
Application for Federal Employment; and DSP-34, Supplement to 
Application for Federal Employment; and a brief resume of work and other 
experience since resignation from the Foreign Service. Whenever the 
Director, Office of Personnel, finds that the reappointment of one or 
more former Foreign Service Career Members may be in the best interest 
of the Service, all application forms, along with the available 
personnel files, will be referred as appropriate to the Board of 
Examiners for the Foreign Service which will conduct an advisory 
evaluation of the qualifications of each applicant.
    (c) Nature of evaluation. (1) The Board of Examiners' advisory 
qualifications evaluation of FSO applicants (i) will be based on a 
review of all pertinent information relating to the applicant's record 
of employment in the Foreign Service and to subsequent experience, as 
well, and (ii) will take into consideration among other factors, the 
rank of the applicant's contemporaries in the Service in recommending 
the class in which the applicant will be reappointed under section 308 
of the Foreign Service Act of 1980.

[[Page 86]]

    (2) In consultation with the Foreign Service Personnel Division (M/
PF or VOA/PF) and officials from the pertinent Board elements, the 
Overseas Specialist applicant's total qualifications and experience will 
be evaluated based on the application and an interview. On the basis of 
this review and the recommendations of the appropriate officials, the 
personnel office will determine whether the application should be 
continued and, if so, will recommend the appointment class.
    (d) Medical examination and security investigation. Qualified 
applicants and their dependents who will accompany them overseas will be 
given a physical examination. A security investigation will also be 
conducted. The reappointment action is subject to completion of a 
satisfactory security investigation and satisfactory medical examination 
of the applicant and his/her dependents.
    (e) Selection for reappointment. The Director, Office or Personnel 
(M/P or VOA/P), taking into consideration (1) the qualifications and 
experience of each applicant as outlined in the qualifications 
evaluation performed by the Board of Examiners for the Foreign Service 
or the personnel office, (2) future placement and growth potential, and 
(3) the needs of the Service for the applicant's skills determines which 
applicant, or applicants, are qualified for reappointment and the 
appointment class that is considered to be appropriate. An Overseas 
Specialist may not be reappointed until and unless an overseas 
assignment has been identified. The Director, Office of Personnel (M/P 
or VOA/P) is responsible for initiating appointment action. Any 
voluntary applicant who refuses an offer of reappointment will not be 
considered for reappointment again.



Sec. 501.9  Interchange of FSOs between Broadcasting Board of Governors and 

other Foreign Affairs Agencies.

    Foreign Service Officers (FSOs) desiring transfer from one agency to 
another may apply under the following provisions:
    (a) Applications. Applications for interchange appointments should 
be sent to the Board of Examiners for the Foreign Service, Department of 
State, Washington, DC 20520.
    (b) Certification and approval. (1) When a Foreign Service Officer 
of another Foreign Affairs Agency wishes to transfer to the Broadcasting 
Board of Governors, a certification of need is required from the 
Director, Office of Personnel, Broadcasting Board of Governors, and 
approval is required by the Director of Personnel for the other agency 
for the officer's release to Broadcasting Board of Governors.
    (2) When a Broadcasting Board of Governors FSO wishes to transfer to 
another Foreign Affairs Agency, a certification of need is required from 
the Director of Personnel of the other Agency, and approval is required 
by the Director, Office of Personnel, Broadcasting Board of Governors, 
for the officer's release to that Agency.
    (3) A review by the Board of Examiners for the Foreign Service will 
certify the eligibility of candidates for exchange. BEX will notify the 
Office of Personnel, Broadcasting Board of Governors when a Foreign 
Service Officer of another Agency has been approved for transfer and 
Broadcasting Board of Governors will process the necessary employment 
papers.
    (4) A new FSO appointment for officers transferring between another 
Foreign Affairs Agency and Broadcasting Board of Governors is not 
required.



PART 503_FREEDOM OF INFORMATION ACT REGULATION--Table of Contents




Sec.
503.1 Introduction and definitions.
503.2 Making a request.
503.3 Availability of agency records.
503.4 Time limits.
503.5 Records available for public inspection.
503.6 Restrictions on some agency records.
503.7 Fees.
503.8 Exemptions.
503.9 Electronic records.

    Authority: 5 U.S.C. 552 Reform Act of 1986 as amended by Pub. L. 99-
570; sec. 1801-1804; U.S.C. 2658; 5 U.S.C. 301; 13 U.S.C. 8, E.O. 10477, 
as amended; 47 FR 9320, Apr. 2, 1982, E.O. 12356. 5 U.S.C. 552 (1988 & 
Supp. III 1991) as amended by Freedom of Information Reform Act of 1986, 
Pub. L. 99-570, Title I, sections 1801-1804, 100 Stat. 3207, 3207-48-50 
(1986)(codified at 5 U.S.C. 552 (1988)); 22 U.S.C. 2658 (1988); 5 U.S.C. 
301 (1988); 13 U.S.C. 8

[[Page 87]]

(2988); E.O. 10477, 3 CFR 958 (1949-1953) as amended by E.O. 10822, 3 
CFR 355 (1959-1963), E.O. 12292, 3 FR 134 (1982), E.O. 12356, 3 CFR 166 
(1983), E.O. 12958 (1995).

    Source: 67 FR 8867, Feb. 27, 2002, unless otherwise noted.



Sec. 503.1  Introduction and definitions.

    (a) Introduction. The Freedom of Information Act (FOIA) and this 
part apply to all records of The Broadcasting Board of Governors (BBG). 
As a general policy BBG follows a balanced approach in administering the 
FOIA. We recognize the right of public access to information in the 
Agency's possession, but we also seek to protect the integrity of the 
Agency's internal processes. This policy calls for the fullest possible 
disclosure of records consistent with those requirements of 
administrative necessity and confidentiality which are recognized by the 
FOIA.
    (b) Definitions:
    Access Appeal Committee or Committee means the Committee delegated 
by the Agency Head for making final agency determinations regarding 
appeals from the initial denial of records under the FOIA.
    Agency or BBG means the Broadcasting Board of Governors. It includes 
all parts of the BBG in the U.S. and its worldwide operations.
    Commercial use, when referring to a request, means that the request 
is from, or on behalf of, one who seeks information for a use or purpose 
that furthers the commercial, trade, or profit interests of the 
requester or of a person on whose behalf the request is made. Whether a 
request is for a commercial use depends on the purpose of the request 
and how the records will be used. The identity of the requester 
(individual, non-profit corporation, for-profit corporation), or the 
nature of the records, while in some cases indicative of that purpose or 
use, is not necessarily determinative. When a request is made by a 
representative of the news media, the request shall be deemed to be for 
a non-commercial use.
    Department means any executive department, military department, 
government corporation, government controlled corporation, any 
independent regulatory agency, or other establishment in the executive 
branch of the Federal Government. A private organization is not a 
department even if it is performing work under contract with the 
Government or is receiving Federal financial assistance. Grantee and 
contractor records are not subject to the FOIA unless they are in the 
possession and control of the BBG.
    Duplication means the process of making a copy of a record and 
sending it to the requester, to the extent necessary to respond to the 
request. Such copies include paper copy, microform, audiovisual 
materials, and magnetic tapes, cards and discs.
    Educational institution means a preschool, elementary or secondary 
school, institution of undergraduate or graduate higher education, or 
institution of professional or vocational education.
    FOIA means the Freedom of Information Act, section 552 of title 5, 
United States Code, as amended.
    Freedom of Information Officer means the BBG official who has been 
delegated the authority to release or withhold records and assess, 
waive, or reduce fees in response to FOIA requests.
    Non-commercial scientific institution means an institution that is 
not operated substantially for the purposes of furthering its own or 
someone else's business, trade, or profit interests, and that is 
operated for purposes of conducting scientific research whose results 
are not intended to promote any particular product or industry.
    Records (and any other term used in this section in reference to 
information) include any information that would be an agency record 
subject to the requirements of this section when maintained by the 
Agency in any format, including an electronic format. Records also 
include any handwritten, typed or printed documents (such as memoranda, 
books, brochures, studies, writings, drafts, letters, transcripts, and 
minutes) and documentary material in other forms (such as punchcards, 
magnetic tapes, cards, or discs; paper tapes; audio or video recordings, 
maps, photographs, slides, microfilm, and motion pictures). It does not 
include objects or articles such as exhibits, models, equipment, and 
duplication machines or audiovisual processing

[[Page 88]]

materials. Reports does not include books, magazines, pamphlets, or 
other reference material in formally organized and officially designated 
BBG libraries, where such materials are available under the rules of the 
particular library.
    Representative of the news media means a person actively gathering 
news for an entity organized and operated to publish or broadcast news 
to the public. News means information that is about current events or 
that would be of current interest to the public. News media entities 
include television and radio broadcasters, publishers of periodicals (to 
the extent they publish ``news'') who make their products available for 
purchase or subscription by the general public, and entities that may 
disseminate news through other media (e.g., electronic dissemination of 
text). Freelance journalists shall be considered representatives of a 
news media entity if they can show a solid basis for expecting 
publication through such an entity. A publication contract or a 
requester's past publication record may show such a basis.
    Request means asking in writing for records whether or not the 
request refers specifically to the FOIA.
    Review means examining the records to determine which portions, if 
any, may be released, and any other processing that is necessary to 
prepare the records for release. It includes only the first examination 
and processing of the requested documents for purposes of determining 
whether a specific exemption applies to a particular record or portion 
of a record.
    Search means looking for records or portions of records responsive 
to a request. It includes reading and interpreting a request, and also 
page-by-page and line-by-line examination to identify responsive 
portions of a document. However, it does not include line-by-line 
examination where merely duplicating the entire page would be a less 
expensive and quicker way to comply with the request.



Sec. 503.2  Making a request.

    (a) How to request records. All requests for documents shall be made 
in writing. Requests should be addressed to The Broadcasting Board of 
Governors (BBG), FOIA/Privacy Act Officer, Office of the General 
Counsel, 330 Independence Avenue, SW, Suite 3349, Washington, DC 20237; 
telephone (202) 260-4404; or fax (202) 260-4394. Write the words 
``Freedom of Information Act Request'' on the envelope and letter.
    (b) Details in your letter. Your request for documents should 
provide as many details as possible that will help us find the records 
you are requesting. If there is insufficient information, we will ask 
you to provide greater details. Include your telephone number(s) to help 
us reach you if we have questions. If you are not sure how to write your 
request or what details to include, you may call the FOIA Office to 
request a copy of the Agency's booklet ``Guide and Index of Records,'' 
or access the same information via the Internet on BBG's World Wide Web 
site (http://www.ibb.gov). The more specific the request for documents, 
the sooner the Agency will be able to respond to your request(s).
    (c) Requests not handled under FOIA. We will not provide documents 
requested under the FOIA and this part if the records are currently 
available in the National Archives, subject to release through the 
Archives, or commonly sold to the public by it or another agency in 
accordance with statutory authority (for example, records currently 
available from the Government Printing Office or the National Technical 
Information Service). Agency records that are normally freely available 
to the general public, such as BBG press releases, are not covered by 
the FOIA. Requests for documents from Federal departments, Chairmen of 
Congressional committees or subcommittees and court orders are not FOIA 
requests.
    (d) Referral of requests outside the agency. If you request records 
that were created by or provided to us by another Federal department, we 
may refer your request to or consult with that department. We may also 
refer requests for classified records to the department that classified 
them. In cases of referral, the other department is responsible for 
processing and responding to your request under that department's 
regulation. When possible, we

[[Page 89]]

will notify you when we refer your request to another department.
    (e) Responding to your request--(1) Retrieving records. The Agency 
is required to furnish copies of records only when they are in our 
possession and control. If we have stored the records you want in a 
record retention center, we will retrieve and review them for possible 
disclosure. However, the Federal Government destroys many old records, 
so sometimes it is impossible to fill requests. The Agency's record 
retention policies are set forth in the General Records Schedules of the 
National Archives and Records Administration and in BBG's Records 
Disposition Schedule, which establish time periods for keeping records 
before they may be destroyed.
    (2) Furnishing records. (i) The Agency is only required to furnish 
copies of records that we have or can retrieve. We are not compelled to 
create new records. The Agency will aid requesters by providing records 
and information in the form requested, including electronic format, if 
we can readily reproduce them in that form or format.
    (ii) We may decide to conserve government resources and at the same 
time supply the records you need by consolidating information from 
various records, in paper form or electronically, rather than copying 
them all. If the effort to produce records in electronic format would 
significantly interfere with the operations of the Agency, we will 
consider the effort to be an unreasonable search.
    (iii) The Agency is required to furnish only one copy of a record. 
If we are unable to make a legible copy of a record to be released, we 
will not attempt to reconstruct it. Rather we will furnish the best copy 
possible and note its poor quality in our reply or on the copy.
    (iv) If we cannot accommodate your request for form or format, we 
will provide responsive, nonexempt information in a reasonably 
accessible form.



Sec. 503.3  Availability of agency records.

    (a) Release of records. If we have released a record or part of a 
record to others in the past, we will ordinarily release it to you also. 
This principle does not apply if the previous release was an 
unauthorized disclosure. However, we will not release it to you if a 
statute forbids this disclosure and we will not necessarily release it 
to you if an exemption applies in your situation and did not apply or 
applied differently in the previous situation.
    (b) Denial of requests. All denials are in writing and describe in 
general terms the material withheld and state the reasons for the 
denial, including a reference to the specific exemption of the FOIA 
authorizing the withholding or deletion. The denial also explains your 
right to appeal the decision and it will identify the official to whom 
you should send the appeal. Denial letters are signed by the person who 
made the decision to deny all or part of the request, unless otherwise 
noted.
    (c) Unproductive searches. We will make a diligent search for 
records to satisfy your request. Nevertheless, we may not be able always 
to find the records you want using the information you provided, or they 
may not exist. If we advise you that we have been unable to find the 
records despite a diligent search, you will nevertheless be provided the 
opportunity to appeal the adequacy of the Agency's search. However, if 
your request is for records that are obviously not connected with this 
Agency or your request has been provided to us in error, a ``no 
records'' response will not be considered an adverse action and you will 
not be provided an opportunity to appeal.
    (d) Appeal of denials. You have the right to appeal a partial or 
full denial of your FOIA request. To do so, you must put your appeal in 
writing and address it to the official identified in the denial letter. 
Your appeal letter must be dated and postmarked within 30 calendar days 
from the date of the Agency's denial letter. Because we have some 
discretionary authority in deciding whether to release or withhold 
records, you may strengthen your appeal by explaining your reasons for 
wanting the records. However, you are not required to give any 
explanation. Your appeal will be reviewed by the Agency's Access Appeal 
Committee that consists of senior Agency officials. When the Committee 
responds to your appeal, that constitutes the Agency's

[[Page 90]]

final action on the request. If the Access Appeal Committee grants your 
appeal in part or in full, we will send the records to you promptly or 
set up an appointment for you to inspect them. If the decision is to 
deny your appeal in part or in full, the final letter will state the 
reasons for the decision, name the officials responsible for the 
decision, and inform you of the FOIA provisions for judicial review.



Sec. 503.4  Time limits.

    (a) General. The FOIA sets certain time limits for us to decide 
whether to disclose the records you requested, and to decide appeals. If 
we fail to meet the deadlines, you may proceed as if we had denied your 
request or your appeal. Since requests may be misaddressed or misrouted, 
you should call or write to confirm that we have the request and to 
learn its status if you have not heard from us in a reasonable time.
    (b) Time allowed. (1) We will decide whether to release records 
within 20 working days after your request reaches the appropriate area 
office that maintains the records you are requesting. When we decide to 
release records, we will actually provide the records at that time, or 
as soon as possible after that decision, or let you inspect them as soon 
as possible thereafter.
    (2) We will decide an appeal within 20 working days after the appeal 
reaches the appropriate reviewing official.
    (3)(i) The FOIA Officer or appeal official may extend the time 
limits in unusual circumstances for initial requests or appeals, up to 
10 working days. We will notify you in writing of any extensions. 
``Unusual circumstances'' include situations where we: Search for and 
collect records from field facilities, records centers or locations 
other than the office processing the records; search for, collect, or 
examine a great many records in response to a single request; consult 
with another office or department that has substantial interest in the 
determination of the request; and/or conduct negotiations with 
submitters and requesters of information to determine the nature and 
extent of non-disclosable proprietary materials.
    (ii) If an extra ten days still does not provide sufficient time for 
the Agency to deal with your request, we will inform you that the 
request cannot be processed within the statutory time limit and provide 
you with the opportunity to limit the scope of your request and/or 
arrange with us a negotiated deadline for processing your request.
    (iii) If you refuse to reasonably limit the scope of your request or 
refuse to agree upon a time frame, the Agency will process your case, as 
it would have, had no modification been sought. We will make a diligent, 
good faith effort to complete our review within the statutory time 
frame.



Sec. 503.5  Records available for public inspection.

    (a) To the extent that they exist, we will make the following 
records of general interest available for you in paper form or 
electronically for inspection or copying:
    (1) Orders and final opinions, including concurring and dissenting 
opinions in adjudications. (See Sec. 503.8(e) of this part for 
availability of internal memoranda, including attorney opinions and 
advice.)
    (2) Statements of policy and interpretations that we have adopted 
but which have not been published in the Federal Register.
    (3) Administrative staff manuals and instructions to staff that 
affect the public. (We will not make available, however, manuals or 
instructions that reveal investigative or audit procedures as described 
in Sec. 503.8(b) and (g) of this part.)
    (4) In addition to such records as those described in this paragraph 
(a), we will make available to any person a copy of all other Agency 
records, in the format requested, if available, unless we determine that 
such records should be withheld from disclosure under subsection (b) of 
the Act and Sec. Sec. 503.8 and 503.9 of this part.
    (b) Before releasing these records, however, we may delete the names 
of people, or information that would identify them, if release would 
invade their personal privacy to a clearly unwarranted degree (See Sec. 
503.8(f)).
    (c) The Agency's FOIA Guide and Index is available electronically 
via

[[Page 91]]

the Internet, or you may request a copy of it by mail.



Sec. 503.6  Restrictions on some agency records.

    Under the U.S. Information and Educational Exchange Act of 1948 (22 
U.S.C. 1461, as amended), the BBG is prohibited from disseminating 
within the United States information about the U.S., its people, and its 
policies when such materials have been prepared by the Agency for 
audiences abroad. This includes films, radio scripts and tapes, 
videotapes, books, and similar materials produced by the Agency. 
However, this law does provide that upon request, such information shall 
be made available at BBG, for examination only, by representatives of 
the press, magazines, radio systems and stations, research students or 
scholars and available, for examination only, to Members of Congress.



Sec. 503.7  Fees.

    (a) Fees to be charged--categories of requests. Paragraphs (a)(1) 
though (3) and (b) through (e) of this section explain each category of 
request and the type of fees that we will generally charge. However, for 
each of these categories, the fees may be limited, waived, or reduced 
for the reasons given in paragraph (e) of this section. ``Request'' 
means asking for records, whether or not you refer specifically to the 
Freedom of Information Act (FOIA). Requests from Federal agencies and 
court orders for documents are not included within this definition. 
``Review'' means, when used in connection with processing records for a 
commercial use request, examining the records to determine what 
portions, if any, may be withheld, and any other processing that is 
necessary to prepare the records for release. It includes only the 
examining and processing that are done the first time we analyze whether 
a specific exemption applies to a particular record or portion of a 
record. It does not include the process of researching or resolving 
general legal, or policy issues regarding exemptions. ``Search'' means 
looking for records or portions of records responsive to a request. It 
includes reading and interpreting a request, and also and line-by-line 
examination to identify responsive portions of a document.
    (1) Commercial use request. If your request is for a commercial use, 
BBG will charge you the costs of search, review and duplication. 
``Commercial use'' means that the request is from or on behalf of one 
whom seeks information for a use or purpose that furthers the 
commercial, trade, or profit interests of the requester or of a person 
on whose behalf the request is made. Whether a request is for a 
commercial use depends on the purpose of the request and how the records 
will be used; the identity of the requester (individual, non-profit 
corporation, for-profit corporation), or the nature of the records, 
while in some cases may indicate the purpose or use is not necessarily 
determinative. When a request is made by a representative of the news 
media, a purpose of use which supports the requester's news 
dissemination function is deemed to be a non-commercial use.
    (2) Educational and scientific institutions and news media. If you 
are an educational institution or a non-commercial scientific 
institution, operated primarily for scholarly or scientific research, or 
a representative of the news media, and your request is not for a 
commercial use, BBG will charge you only for the duplication of 
documents. Also BBG will not charge you the copying costs for the first 
100 pages of duplication. ``Educational institution'' means a preschool, 
elementary or secondary school, institution of undergraduate or graduate 
higher education, or institution of professional or vocational 
education. ``Non-commercial scientific institution'' means an 
institution that is not operated substantially for purposes of 
furthering its own or someone else's business, trade, or profit 
interests, and that is operated for purposes of conducting scientific 
research whose results are not intended to promote any particular 
product or industry. ``Representative of the news media'' means a person 
actively gathering news for an entity organized and operated to publish 
or broadcast news to the public. ``News'' means information that is 
about current events or that would be of current interest to the

[[Page 92]]

public. News media entities include television and radio broadcasters, 
publishers of periodicals (to the extent they publish ``news'') who make 
their products available for purchase or subscription by the general 
public, and entities that may disseminate news through other media 
(e.g., electronic dissemination of text). We will treat freelance 
journalists as representatives of a news media entity if they can show a 
solid basis for expecting publication through such an entity. A 
publication contract is such a basis and the requester's past 
publication record may show such a basis.
    (3) Other requesters. If your request is not the kind described by 
paragraph (a)(1) or (a)(2) of this section, then the BBG will charge you 
only for search and duplication. Also, we will not charge you for the 
first two hours of search time or for the copying costs of the first 100 
pages of duplication.
    (b) Fees to be charged--general provisions. (1) We may charge search 
fees even if the records we find are exempt from disclosure, or even if 
we do not find any records at all.
    (2) We will not charge you any fee at all if the costs of routine 
collection and processing of the fee are likely to equal or exceed the 
amount of the fee. We have estimated that cost to be $5.00.
    (3) If we determine that you are acting alone or with others to 
break down a single request into a series of requests in order to avoid 
or reduce the fees charged, we may aggregate all these requests for 
purposes of calculating the fees charged.
    (4) We will charge interest on unpaid bills beginning on the 31st 
day following the day the bill was sent. The accrual of interest will 
stop upon receipt of the fee, rather than upon its processing by BBG. 
Interest will be at the rate prescribed in section 3717 of Title 32 
U.S.C.
    (c) Fee schedule--BBG will charge the following fees: (1) Manual 
searching for or reviewing of records:
    (i) When performed by employees at salary grade GS-1 through GS-8 or 
FS-9 through FS-5--an hourly rate of $10.00 will be charged;
    (ii) When performed by employees at salary grade GS-9 through GS-13 
or FS-5 through FS-2--an hourly rate of $20.00 will be charged;
    (iii) When performed by employees at salary grade GS-14 or above or 
FS-2 or above--an hourly rate of $36.00 will be charged.
    (iv) When a search involves employees at more than one of these 
levels, we will charge the appropriate rate for each.
    (2) Computer searching and printing. Except in unusual cases, the 
cost of computer time will not be a factor in calculating the two free 
hours of search time. In those unusual cases, where the cost of 
conducting a computerized search significantly detracts from the 
Agency's ordinary operations, no more than the dollar cost of two hours 
of manual search time shall be allowed. For searches conducted beyond 
the first two hours, the Agency shall only charge the direct costs of 
conducting such searches.
    (3) Photocopying standard size pages--$0.15 per page.
    (4) Photocopying odd-size documents (such as punchcards or 
blueprints) or reproducing other records (such as tapes)--the actual 
cost of operating the machine, plus the actual cost of the materials 
used, plus charges for the time spent by the operator, at the rates 
given in paragraph (c)(1) of this section.
    (5) Certifying that records are true copies--this service is not 
required by the FOIA. If we agree to provide it, we will charge $10.00 
per certification.
    (6) Sending records by express mail, certified mail, or other 
special methods. This service is not required by the FOIA. If we agree 
to provide it, we will charge our actual cost.
    (7) Performing any other special service that you request and to 
which we agree--actual cost of operating any machinery, plus actual cost 
of any materials used, plus charges for the time of our employees, at 
the rates given in paragraph (c)(1) of this section.
    (d) Procedures for assessing and collecting fees--(1) Agreement to 
pay. We generally assume that when you request records you are willing 
to pay the fees we charge for services associated with your request. You 
may specify a limit on the amount you are willing to spend. We will 
notify you if it

[[Page 93]]

appears that the fees will exceed the limit and ask whether you 
nevertheless want us to proceed with the search.
    (2) Advance payment. If you have failed to pay previous bills in a 
timely manner, or if our initial review of your request indicates that 
we will charge you fees exceeding $250.00, we will require you to pay 
your past due fees and/or the estimated fees, or a deposit, before we 
start searching for the records you want, or before we send them to you. 
In such cases, the administrative time limits as described in Sec. 
503.4(b), will begin only after we come to an agreement with you over 
payment of fees, or decide that a fee waiver or reduction is 
appropriate.
    (e) Waiver or reduction of fees. We will waive or reduce the fees we 
would otherwise charge if disclosure of the information meets both of 
the following tests (paragraphs (e)(1) and (e)(2) of this section):
    (1) It is in the public interest because it is likely to contribute 
significantly to public understanding of government operations or 
activities, regardless of any other public interest it may further. In 
making this determination, we may consider:
    (i) Whether the requester is in a position to contribute to public 
understanding;
    (ii) Whether the requester has such knowledge or expertise as may be 
necessary to understand the information; and
    (iii) Whether the requester's intended use of the information would 
be likely to disseminate the information among the public.
    (2) It is not primarily in the commercial interest of the requester. 
Commercial interests include interests relating to business, trade, and 
profit. Not only profit-making corporations have commercial interests; 
so do nonprofit corporations, individuals, unions, and other 
associations.
    (3) You must make your request for a waiver or reduction at the same 
time you make your request for records. Only the FOIA Officer may make 
the decision whether to waive or reduce the fees. If we do not 
completely grant your request for a waiver or reduction, the denial 
letter will designate the appeal official.



Sec. 503.8  Exemptions.

    Section 552(b) of the Freedom of Information Act contains nine 
exemptions to the mandatory disclosure of records. These exemptions and 
their application by the Agency are described below. In some cases, more 
than one exemption may apply to the same document. This section does not 
itself authorize the giving of any pledge of confidentiality by any 
officer or employee of the Agency.
    (a) Exemption one--National defense and foreign policy. We are not 
required to release records that are 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 according to such Executive Order. Executive Order No. 12958 
(1995) provides for such classification. When the release of certain 
records may adversely affect U.S. relations with foreign countries, we 
usually consult with officials with knowledge of those countries and/or 
with officials of the Department of State. We may also have in our 
possession records classified by another agency. If we do, we may 
consult with that agency or may refer your request to that agency for 
their direct response to you. If possible, we will notify you that we 
have made such a referral.
    (b) Exemption two--Internal personnel rules and practices. We are 
not required to release records that are related solely to the internal 
personnel rules and practices of an agency. We may withhold routine 
internal agency procedures such as guard schedules and luncheon periods. 
We may also withhold internal records the release of which would help 
some persons circumvent the law or Agency regulations.
    (c) Exemption three--Records exempted by other statutes. We are not 
required to release records if another statute specifically allows us to 
withhold them. Another statute may be used only if it absolutely 
prohibits disclosure or if it sets forth criteria identifying particular 
types of material to be withheld (for example, the statute discussed in 
Sec. 503.6).

[[Page 94]]

    (d) Exemption four--Trade secrets and confidential commercial or 
financial information. We will withhold trade secrets and commercial or 
financial information that is obtained from a person and is privileged 
or confidential.
    (1) Trade secrets: A trade secret is a secret, commercially valuable 
plan, formula, process, or device that is used for the making, 
preparing, compounding, or processing of trade commodities and that can 
be said to be the end product of either innovation or substantial 
effort. A direct relationship is necessary between the trade secret and 
the productive process.
    (2) Commercial or financial information, obtained from a person, and 
is privileged or confidential.
    (i) Information is ``commercial or financial'' if it relates to 
businesses, commerce, trade, employment, profits, or finances (including 
personal finances).
    (ii) Information is obtained from someone outside the Federal 
Government or from someone within the Government who has a commercial or 
financial interest in the information. ``Person'' includes an 
individual, partnership, corporation, association, state or foreign 
government, or other organization. Information is not ``obtained from a 
person'' if it is generated by BBG or another Federal agency.
    (iii) Information is ``privileged'' if it would ordinarily be 
protected from disclosure in civil discovery by a recognized evidentiary 
privilege, such as the attorney-client privilege, or the work-product 
privilege. Information may be privileged for this purpose under a 
privilege belonging to a person outside the Government, unless the 
providing of the information to the Government rendered the information 
no longer protectible in civil discovery.
    (iv) Information is ``confidential'' if it meets one of the 
following tests:
    (A) Disclosure may impair the Government's ability to obtain 
necessary information in the future;
    (B) Disclosure would substantially harm the competitive position of 
the person who submitted the information;
    (C) Disclosure would impair other Government interests, such as 
program effectiveness and compliance; or
    (D) Disclosure would impair other private interests, such as an 
interest in controlling availability of intrinsically valuable records, 
which are sold in the market by their owner.
    (3) Designation of certain confidential information. A person who 
submits records to the Government may designate part or all of the 
information in such records as exempt from disclosure under Exemption 
four. The person may make this designation either at the time the 
records are submitted to the Government or within a reasonable time 
thereafter. The designation must be in writing. The legend prescribed by 
a request for proposal or request for quotations according to any agency 
regulation establishing a substitute for the language is sufficient but 
not necessary for this purpose. Any such designation will expire ten 
years after the records were submitted to the Government.
    (4) Predisclosure notification. The procedures in this paragraph 
apply to records that were submitted to the Government and where we have 
substantial reason to believe that information in the records could 
reasonably be considered exempt under Exemption four. Certain exceptions 
to these procedures are stated in paragraph (d)(5) of this section.
    (i) When we receive a request for such records and we determine that 
we may be required to disclose them, we will make reasonable efforts to 
notify the submitter about these facts. The notice will inform the 
submitter about the procedures and time limits for submission and 
consideration of objections to disclosure. If we must notify a large 
number of submitters, we may do this by posting or publishing a notice 
in a place where the submitters are reasonably likely to become aware of 
it.
    (ii) The submitter has ten (10) working days from receipt of the 
notice to object to disclosure of any part of the records and to state 
all bases for its objections.
    (iii) We will give consideration to all bases that have been timely 
stated by the submitter. If we decide to disclose the records and the 
submitter still does not agree, we will send a written notice to the 
submitter stating briefly why we did not sustain its objections and we

[[Page 95]]

will provide a copy of the records as we intend to release them. The 
notice will state that we will disclose the records five (5) working 
days after the submitter receives the notice unless we are ordered by a 
United States District Court not to release them.
    (iv) When a requester files suit under the FOIA to obtain records 
covered by this paragraph, we will promptly notify the submitter.
    (v) Whenever we send a notice to a submitter under paragraph 
(d)(4)(i) of this section, we will notify you that we are giving the 
submitter a notice and an opportunity to object.
    (5) Exceptions to predisclosure notification. The notice 
requirements in paragraph (d)(4) of this section do not apply in the 
following situations:
    (i) We decide not to disclose the records;
    (ii) The information has previously been published or made generally 
available;
    (iii) We have already notified the submitter of previous requests 
for the same records and have come to an understanding with that 
submitter about the records;
    (iv) Disclosure is required by a statute other than the FOIA;
    (v) Disclosure is required by a regulation, issued after notice and 
opportunity for public comment that specifies narrow categories of 
records that are to be disclosed under the FOIA. In this case a 
submitter may still designate records as described in paragraph (d)(3) 
of this section and in exceptional cases, at our discretion, may follow 
the notice procedures in paragraph (d)(4) of this section;
    (vi) The designation appears to be obviously frivolous, but in this 
case we will still give the submitter the written notice required by 
paragraph (d)(4)(iii) of this section (although this notice need not 
explain our decision or include a copy of the records); and
    (vii) We withhold the information because another statute requires 
its withholding.
    (e) Exemption five--Internal memoranda. This exemption covers 
internal Government communications and notes that fall within a 
generally recognized evidentiary privilege. Internal Government 
communications include an agency's communications with an outside 
consultant or other outside person, with a court, or with Congress, when 
those communications are for a purpose similar to the purpose of 
privileged intra-agency communications. Some of the most common 
applicable privileges are:
    (1) The deliberative process privilege. This privilege protects 
predecisional deliberative communications. A communication is protected 
under this privilege if it was made before a final decision was reached 
on some question of policy and if it expressed recommendations or 
opinions on that question. The purpose of this privilege is to prevent 
injury to the quality of the agency decision making process by 
encouraging open and frank internal policy discussions, by avoiding 
premature disclosure of policies not yet adopted, and by avoiding the 
public confusion that might result from disclosing reasons that were not 
in fact the ultimate grounds for an agency's decision. This privilege 
continues to protect pre-decisional documents even after a decision is 
made. We will release purely factual material in a deliberative document 
unless that material is otherwise exempt. However, purely factual 
material in a deliberative document is within this privilege if:
    (i) It is inextricably intertwined with the deliberative portions so 
that it cannot reasonably be segregated; or
    (ii) It would reveal the nature of the deliberative portions, or
    (iii) Its disclosure would in some other way make possible an 
intrusion into the decision making process.
    (2) Attorney-client privilege. This privilege protects confidential 
communications between a lawyer and an employee or agent of the 
Government where an attorney-client relationship exists (for example, 
where the lawyer is acting as attorney for the agency and the employee 
is communicating on behalf of the agency) and where the employee has 
communicated information to the attorney in confidence in order to 
obtain legal advice or assistance, and/or when the attorney has given 
advice to the client.

[[Page 96]]

    (3) Attorney work product privilege. This privilege protects 
documents prepared by or for an agency, or by or for its representative 
(usually BBG attorneys) in anticipation of litigation or for trial. It 
includes documents prepared for purposes of administrative adjudications 
as well as court litigation. It includes factual material in such 
documents as well as material revealing opinions and tactics. The 
privilege continues to protect the documents even after the litigation 
is closed.
    (f) Exemption six--Clearly unwarranted invasion of personal privacy. 
We may withhold personnel, medical, and similar files, and personal 
information about individuals if disclosure would constitute a clearly 
unwarranted invasion of personal privacy.
    (1) Balancing test. In deciding whether to release records that 
contain personal or private information about someone else to a 
requester, we weigh the foreseeable harm of invading that individual's 
privacy against the public benefit that would result from the release of 
the information. In our evaluation of requests for records, we attempt 
to guard against the release of information that might involve a 
violation of personal privacy by a requester being able to ``piece 
together items'' or ``read between the lines'' information that would 
normally be exempt from mandatory disclosure.
    (2) Information frequently withheld. We frequently withhold such 
information as home addresses, home telephone numbers, ages, minority 
group status, social security numbers, individual's benefits, earning 
records, leave records, etc.
    (g) Exemption seven--Law enforcement. We are not required to release 
information or records that the Government has compiled for law 
enforcement purposes. The records may apply to actual or potential 
violations of either criminal or civil laws or regulations. We can 
withhold these records only to the extent that releasing them would 
cause harm in at least one of the following situations:
    (1) Enforcement proceedings. We may withhold information when 
release could reasonably be expected to interfere with prospective or 
ongoing law enforcement proceedings, investigations of fraud and 
mismanagement, employee misconduct, and civil rights violations may fall 
into this category. In certain cases, we may refuse to confirm or deny 
the existence of records that relate to violations in order not to 
disclose that an investigation is in progress or may be conducted.
    (2) Fair trial or impartial adjudication. We may withhold records 
when release would deprive a person of a fair trial or an impartial 
adjudication because of prejudicial publicity.
    (3) Personal privacy. We are careful not to disclose information 
that could reasonably be expected to constitute an unwarranted invasion 
of personal privacy. When a name surfaces in an investigation, that 
person is likely to be vulnerable to innuendo, rumor, harassment, or 
retaliation.
    (4) Confidential sources and information. We may withhold records 
whose release could reasonably be expected to disclose the identity of a 
confidential source of information. A confidential source may be an 
individual; a state, local or foreign Government agency; or any private 
organization. The exemption applies whether the source provides 
information under an express promise of confidentiality or under 
circumstances from which such an assurance could be reasonably inferred. 
Also, where the record or information in it has been compiled by a 
criminal law enforcement authority conducting a criminal investigation 
or by an agency conducting a lawful national security investigation, the 
exemption also protects all information supplied by a confidential 
source. Also protected from mandatory disclosure is any information 
which, if disclosed, could reasonably be expected to jeopardize the 
system of confidentiality that assures a flow of information from 
sources to investigatory agencies.
    (5) Techniques and procedures. We may withhold records reflecting 
special techniques or procedures of investigation or prosecution not 
otherwise generally known to the public. In some cases, it is not 
possible to describe even in general terms those techniques without 
disclosing the very material to be withheld. We may also withhold 
records whose release would disclose

[[Page 97]]

guidelines for law enforcement investigations or prosecutions if this 
disclosure could reasonably be expected to create a risk that someone 
could circumvent requirements of law or of regulation.
    (6) Life and physical safety. We may withhold records whose 
disclosure could reasonably be expected to endanger the life or physical 
safety of any individual. This protection extends to threats and 
harassment as well as to physical violence.
    (h) Exemptions eight and nine--Records on financial institutions and 
records on wells. (1) Exemption eight permits us to withhold records 
about regulation or supervision of financial institutions.
    (2) Exemption nine permits the withholding of geological and 
geophysical information and data, including maps concerning wells.



Sec. 503.9  Electronic records.

    (a) Introduction. This section applies to all records of the BBG, 
including all of its worldwide operations. Congress enacted the FOIA to 
require Federal agencies to make records available to the public through 
public inspections and at the request of any person for any public or 
private use. The increase in the Government's use of computers enhances 
the public's access to Government information. This section addresses 
and explains how records will be reviewed and released when the records 
are maintained in electronic format. Documentation not previously 
subject to the FOIA when maintained in a non-electronic format is not 
made subject to FOIA by this law.
    (b) Definitions--(1) Compelling need. Obtaining records on an 
expedited basis because of an imminent threat to the life or physical 
safety of an individual, or urgently needed by an individual primarily 
engaged in disseminating information to the public concerning actual or 
alleged Federal Government activities.
    (2) Discretionary disclosure. Records or information normally exempt 
from disclosure will be released whenever it is possible to do so 
without reasonably foreseeable harm to any interest protected by an FOIA 
exemption.
    (3) Electronic reading room. The room provided which makes 
electronic records available.
    (c) Electronic format of records. (1) Materials such as agency 
opinions and policy statements (available for public inspection and 
copying) will be available electronically by accessing the BBG's Home 
Page via the Internet at http://www.ibb.gov. To set up an appointment to 
view such records in hard copy or to access the Internet via the BBG's 
computer, please contact the FOIA/Privacy Act Officer at (202) 260-4404.
    (2) We will make available for public inspection and copying, both 
electronically via the Internet and in hard copy, those records that 
have been previously released in response to FOIA requests, when we 
determine the records have been or are likely to be the subject of 
future requests.
    (3) We will provide both electronically through our Internet address 
and in hard copy a ``Guide'' on how to make an FOIA request, and an 
Index of all Agency information systems and records that may be 
requested under the FOIA.
    (4) We may delete identifying details when we publish or make 
available the index and copies of previously-released records to prevent 
a clearly unwarranted invasion of personal privacy.
    (i) We will indicate the extent of any deletions made from the place 
the deletion was made, if possible.
    (ii) We will not reveal information about deletions if such 
disclosure would harm an interest protected by an exemption.
    (d) Honoring form or format requests. We will aid requesters by 
providing records and information in the form requested, including 
electronic format, if we can readily reproduce them in that form or 
format. However, if we cannot accommodate you, we will provide 
responsive, nonexempt information in a reasonably accessible form.
    (1) We will make a reasonable effort to search for records kept in 
an electronic format. However, if the effort would significantly 
interfere with the operations of the agency or the agency's use of its 
computers, we will consider the effort to be unreasonable.

[[Page 98]]

    (2) We need not create documents that do not exist, but computer 
records found in a database rather than in a file cabinet may require 
the application of codes or some form of programming to retrieve the 
information. This application of codes or programming of records will 
not amount to the creation of records.
    (3) Except in unusual cases, the cost of computer time will not be a 
factor in calculating the two free hours of search time available under 
Sec. 503.7. In those unusual cases, where the cost of conducting a 
computerized search significantly detracts from the agency's ordinary 
operations, no more than the dollar cost of two hours of manual search 
time shall be allowed. For searches conducted beyond the first two 
hours, the agency shall only charge the direct costs of conducting such 
searches.
    (e) Technical feasibility of redacting non-releasable material. We 
will make every effort to indicate the place on the record where a 
redaction of non-releasable material is made, and an FOIA citation 
noting the applicable exemption for the deletion will also be placed at 
the site. If unable to do so, we will notify you of that fact.
    (f) Ensuring timely response to request. We will make every attempt 
to respond to FOIA requests within the prescribed 20 working-day time 
limit. However, processing some requests may require additional time in 
order to properly screen material against the inadvertent disclosure of 
material covered by the exemptions.
    (1) Multitrack first-in first-out processing. (i) Because the agency 
expects to be able to process its requests without a backlog of cases, 
BBG will not institute a multitract system. Those cases that may be 
handled easily, because they require only a few documents or a simple 
answer, will be handled immediately by an FOIA specialist.
    (ii) If you wish to qualify for faster processing, you may limit the 
scope of your request so that we may respond more quickly.
    (2) Unusual circumstances. (i) The agency may extend for a maximum 
of ten working days the statutory time limit for responding to an FOIA 
request by giving notice in writing as to the reason for such an 
extension. The reasons for such an extension may include: the need to 
search for and collect requested records from multiple offices; the 
volume of records requested; and, the need for consultation with other 
components within the agency.
    (ii) If an extra ten days still does not provide sufficient time for 
the Agency to deal with your request, we will inform you that the 
request cannot be processed within the statutory time limit and provide 
you with the opportunity to limit the scope of your request and/or 
arrange with us a negotiated deadline for processing your request.
    (iii) If you refuse to reasonably limit the scope of your request or 
refuse to agree upon a time frame, the agency will process your case, as 
it would have, had no modification been sought. We will make a diligent, 
good-faith effort to complete our review within the statutory time 
frame.
    (3) Grouping of requests. We will group together requests that 
clearly involve related material that should be considered as a single 
request.
    (i) If you make multiple or related requests for similar material 
for the purpose of avoiding costs, we will notify you that we are 
grouping together your requests, and the reasons why.
    (ii) Multiple or related requests may also be grouped, such as those 
involving requests and schedules but you will be notified in advance if 
we intend to do so.
    (g) Time periods for agency consideration of requests--(1) Expedited 
access. We will authorize expedited access to requesters who show a 
compelling need for access, but the burden is on the requester to prove 
that expedition is appropriate. We will determine within ten days 
whether or not to grant a request for expedited access and we will 
notify the requester of our decision.
    (2) Compelling need for expedited access. Failure to obtain the 
records within an expedited deadline must pose an imminent threat to an 
individual's life or physical safety; or the request must be made by 
someone primarily engaged in disseminating information, and who has an 
urgency to inform the

[[Page 99]]

public about actual or alleged Federal Government activity.
    (3) How to request expedited access. We will be required to make 
factual and subjective judgments about the circumstances cited by 
requesters to qualify them for expedited processing. To request 
expedited access, your request must be in writing and it must explain in 
detail your basis for seeking expedited access. The categories for 
compelling need are intended to be narrowly applied:
    (i) A threat to an individual's life or physical safety. A threat to 
an individual's life or physical safety should be imminent to qualify 
for expedited access to the records. You must include the reason why a 
delay in obtaining the information could reasonably be foreseen to cause 
significant adverse consequences to a recognized interest.
    (ii) Urgency to inform. The information requested should pertain to 
a matter of a current exigency to the American public, where delay in 
response would compromise a significant recognized interest. The person 
requesting expedited access under an ``urgency to inform,'' must be 
primarily engaged in the dissemination of information. This does not 
include individuals who are engaged only incidentally in the 
dissemination of information. ``Primarily engaged'' requires that 
information dissemination be the main activity of the requester. A 
requester only incidentally engaged in information dissemination, 
besides other activities, would not satisfy this requirement. The 
public's right to know, although a significant and important value, 
would not by itself be sufficient to satisfy this standard.
    (4) Estimation of matter denied. The agency will try to estimate the 
volume of any denied material and provide the estimate to the requester, 
unless doing so would harm an interest protected by an exemption.
    (h) Computer redaction. The agency will identify the location of 
deletions in the released portion of the records, and where 
technologically possible, will show the deletion at the place on the 
record where the deletion was made, unless including that indication 
would harm an interest protected by an exemption.
    (i) Annual report on FOIA activities. Reports on FOIA activities are 
submitted each fiscal year to the Department of Justice, and are due by 
February 1 of every year. The BBG's report will be available both in 
hard copy and through the Internet. The Department of Justice will also 
report all Federal agency FOIA activity through electronic means.
    (j) Reference materials and guides. The agency has available in hard 
copy, and electronically through the Internet, a guide for requesting 
records under the FOIA, and an index and description of all major 
information systems of the agency. The guide is a simple explanation of 
what the FOIA is intended to do, and how you can use it to access BBG 
records. The Index explains the types of records that may be requested 
from the Agency through FOIA requests and why some records cannot, by 
law, be made available by the BBG.



PART 505_PRIVACY ACT REGULATION--Table of Contents




Sec.
505.1 Purpose and scope.
505.2 Definitions.
505.3 Procedures for requests.
505.4 Requirements and identification for making requests.
505.5 Disclosure of information.
505.6 Medical records.
505.7 Correction or amendment of record.
505.8 Agency review of requests for changes.
505.9 Review of adverse agency determination.
505.10 Disclosure to third parties.
505.11 Fees.
505.12 Civil remedies and criminal penalties.
505.13 General exemptions (Subsection (j)).
505.14 Specific exemptions (Subsection (k)).
505.15 Exempt systems of records used.

    Authority: Pub. L. 93-579, 88 Stat. 1897; 5 U.S.C. 552a.

    Source: 67 FR 8875, Feb. 27, 2002, unless otherwise noted.



Sec. 505.1  Purpose and scope.

    The Broadcasting Board of Governors (BBG) will protect individuals' 
privacy from misuses of their records, and grant individuals access to 
records concerning them which are maintained by the Agency's domestic 
and overseas offices, consistent with the provisions of Public Law 93-
579, 88 Stat. 1897; 5 U.S.C.

[[Page 100]]

552a, the Privacy Act of 1974, as amended. The Agency has also 
established procedures to permit individuals to amend incorrect records, 
to limit the disclosure of personal information to third parties, and to 
limit the number of sources of personal information. The Agency has also 
established internal rules restricting requirements of individuals to 
provide social security account numbers.



Sec. 505.2  Definitions.

    (a) Access Appeal Committee (AAC). The body established by and 
responsible to the Broadcasting Board for reviewing appeals made by 
individuals to amend records held by the Agency.
    (b) Agency, BBG, our, we or us. The BBG, its offices, divisions, 
branches and its worldwide operations.
    (c) Amend. To make a correction to or expunge any portion of a 
record about an individual which that individual believes is not 
accurate, relevant, timely or complete.
    (d) Individual or you. A citizen of the United States or an alien 
lawfully admitted for permanent residence.
    (e) Maintain. Collect, use, store, disseminate or any combination of 
these record keeping functions; exercise of control over and hence 
responsibility and accountability for systems of records.
    (f) Record. Any information maintained by the Agency about an 
individual that can be reproduced, including finger or voice prints and 
photographs, and which is retrieved by that particular individual's name 
or personal identifier, such as a social security number.
    (g) Routine use. With respect to the disclosure of a record, the use 
of such record for a purpose, which is compatible with the purpose for 
which it was collected. The common ordinary purposes for which records 
are used and all of the proper and necessary uses even if any such uses 
occur infrequently.
    (h) Statistical record. 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 in 12 U.S.C.8.
    (i) System of records. A group of records under the maintenance and 
control of the Agency from which information is retrieved by the name or 
personal identifier of the individual.
    (j) Personnel record. Any information about an individual that is 
maintained in a system of records by the Agency that is needed for 
personnel management or processes such as staffing, employee 
development, retirement, grievances and appeals.
    (k) Worldwide Operations. Any of the foreign service establishments 
of the Agency.



Sec. 505.3  Procedures for requests.

    (a) The agency will consider all written requests received from an 
individual for records pertaining to herself/himself as a request made 
under the Privacy Act of 1974, as amended (5 U.S.C. 552a) whether or not 
the individual specifically cites the Privacy Act when making the 
request.
    (b) All requests under the Privacy Act should be directed to the 
FOIA/Privacy Act Office, Office of the General Counsel, Broadcasting 
Board of Governors, Suite 3349, 330 Independence Avenue, SW, Washington, 
DC 20237, which will coordinate the search of all systems of records 
specified in the request. Requests should state name, date of birth, and 
social security number.
    (c) Requests directed to any of the Agency's worldwide 
establishments which involve routine unclassified, administrative and 
personnel records available only at those establishments may be released 
to the individual by the establishment if it determines that such a 
release is authorized by the Privacy Act. All other requests shall be 
submitted by the establishment to the FOIA/Privacy Act Office, Office of 
the General Counsel, Broadcasting Board of Governors, Suite 3349, 330 
Independence Avenue, SW, Washington, DC 20237, and the individual shall 
be so notified of this section in writing, when possible.
    (d) In those instances where an individual requests records 
pertaining to herself/himself, as well as records pertaining to another 
individual, group or some other category of the Agency's

[[Page 101]]

records, only that portion of the request which pertains to records 
concerning the individual will be treated as a Privacy Act request. The 
remaining portions of such a request will be processed as a Freedom of 
Information Act request and sent to the office noted in paragraph (b) of 
this section.



Sec. 505.4  Requirements and identification for making requests.

    (a) When you seek access to Agency records, you may present your 
written request, fax it to (202) 260-4394 or mail it to the FOIA/Privacy 
Act Office, Office of the General Counsel, Broadcasting Board of 
Governors, Suite 3349, 330 Independence Avenue, SW, Washington, DC 
20237. The FOIA/Privacy Act Office may be visited between the hours of 9 
a.m. and 3 p.m., Monday through Friday, except for legal holidays.
    (b) When you seek access to Agency records, you will be requested to 
present identification. You must state your full name, date of birth and 
social security number. You must also include your present mailing 
address and zip code, and if possible, a telephone number.
    (c) When signing a statement confirming your identity, you should 
understand that knowingly and willfully seeking or obtaining access to 
records about another person under false pretenses is punishable by a 
fine of up to $5,000.



Sec. 505.5  Disclosure of information.

    (a) In order to locate the system of records that you believe may 
contain information about you, you should first obtain a copy of the 
Agency's Notice of Systems of Records. By identifying a particular 
record system and by furnishing all the identifying information 
requested by that record system, it would enable us to more easily 
locate those records which pertain to you. At a minimum, any request 
should include the information specified in Sec. 505.4(b).
    (b) In certain circumstances, it may be necessary for us to request 
additional information from you to ensure that the retrieved record 
does, in fact, pertain to you.
    (c) All requests for information on whether or not the Agency's 
systems of records contain information about you will be acknowledged 
within 20 working days of receipt of that request. The requested records 
will be provided as soon as possible thereafter.
    (d) If the Agency determines that the substance of the requested 
record is exceptionally sensitive, we will require you to furnish a 
signed, notarized statement that you are in fact the person named in the 
file before granting access to the records.
    (e) Original records will not be furnished subject to and in 
accordance with fees established in Sec. 505.11.
    (f) Denial of access to records:
    (1) The requirements of this section do not entitle you access to 
any information compiled in reasonable anticipation of a civil action or 
proceeding.
    (2) Under the Privacy Act, we are not required to permit access to 
records if the information is not retrievable by your name or other 
personal identifier; those requests will be processed as Freedom of 
Information Act requests.
    (3) We may deny you access to a record, or portion thereof, if 
following a review it is determined that the record or portion falls 
within a system of records that is exempt from disclosure according to 5 
U.S.C. 552a(j) and 552a(k). See Sec. Sec. 505.13 and 505.14 for a 
listing of general and specific exemptions.
    (4) The decision to deny access to a record or a portion of the 
record is made by the Agency's Privacy Act Officer. The denial letter 
will advise you of your right to appeal the denial (See Sec. 505.9 on 
Access Appeal Committee's review).



Sec. 505.6  Medical records.

    If, in the judgment of the Agency, the release of medical 
information to you could have an adverse effect, the Agency will arrange 
an acceptable alternative to granting access of such records directly to 
you. This normally involves the release of the information to a doctor 
named by you. However, this special procedure provision does not in any 
way limit your absolute right to receive a complete copy of your medical 
record.

[[Page 102]]



Sec. 505.7  Correction or amendment of record.

    (a) You have the right to request that we amend a record pertaining 
to you which you believe is not accurate, relevant, timely, or complete. 
At the time we grant access to a record, we will furnish guidelines for 
you to request amendment to the record.
    (b) Requests for amendments to records must be in writing and mailed 
or delivered to the FOIA/Privacy Act Officer, FOIA/Privacy Act Office, 
Office of the General Counsel, Broadcasting Board of Governors, Suite 
3349, 330 Independence Avenue, SW, Washington, DC 20237, who will 
coordinate the review of the request to amend the record with the 
appropriate office(s). Such requests must contain, at a minimum, 
identifying information needed to locate the record, a brief description 
of the item or items of information to be amended, and the reason for 
the requested change. The requester should submit as much documentation, 
arguments or other data as seems warranted to support the request for 
amendment.
    (c) We will review all requests for amendments to records within 20 
working days of receipt of the request and either make the changes or 
inform you of our refusal to do so and the reasons.



Sec. 505.8  Agency review of requests for changes.

    (a) In reviewing a record in response to a request to amend or 
correct a file, we will incorporate the criteria of accuracy, relevance, 
timeliness, and completeness of the record in the review.
    (b) If we agree with you to amend your records, we will:
    (1) Advise you in writing;
    (2) Correct the record accordingly;
    (3) And, to the extent that an accounting of disclosure was 
maintained, advise all previous recipients of the record of the 
corrections.
    (c) If we disagree with all or any portion of your request to amend 
a record, we will:
    (1) Advise you of the reasons for the determination; and
    (2) Inform you of your right to further review (see Sec. 505.9).



Sec. 505.9  Review of adverse agency determination.

    (a) When we determine to deny a request to amend a record, or 
portion of the record, you may request further review by the Agency's 
Access Appeal Committee. The written request for review should be mailed 
to the Chairperson, Access Appeal Committee, FOIA/Privacy Act Office, 
Office of the General Counsel, Broadcasting Board of Governors, Suite 
3349, 330 Independence Avenue, SW., Washington, DC 20237. The letter 
should include any documentation, information or statement, which 
substantiates your request for review.
    (b) The Agency's Access Appeal Committee will review the Agency's 
initial denial to amend the record and your documentation supporting 
amendment, within 30 working days. If additional time is required, you 
will be notified in writing of the reasons for the delay and the 
approximate date when the review is expected to be completed. Upon 
completion of the review, the Chairperson will notify you of the 
results.
    (c) If the Committee upholds the Agency's denial to amend the 
record, the Chairperson will advise you of:
    (1) The reasons for our refusal to amend the record;
    (2) Your right and the procedure to add to the file a concise 
statement supporting your disagreement with the decision of the Agency; 
and
    (3) Your right to seek judicial review of the Agency's refusal to 
amend the file.
    (d) When you file a statement disagreeing with our refusal to amend 
a record, we will clearly annotate the record so that the fact that the 
record is disputed is apparent to anyone who may subsequently have 
access to, use of, or reason to disclose the file. If information is 
disclosed regarding the area of dispute, we will provide a copy of your 
statement in the disclosure. Any statement, which may be included by the 
Agency regarding the dispute, will be limited to the reasons given to 
you for not amending the record. Copies of our statement shall be 
treated as part of your record, but will not be subject to amendment by 
you under these regulations.

[[Page 103]]



Sec. 505.10  Disclosure to third parties.

    We will not disclose any information about you to any person or 
another agency without your prior consent, except as provided for in the 
following paragraphs:
    (a) Medical records. May be disclosed to a doctor or other medical 
practitioner, named by you, as prescribed in Sec. 505.6.
    (b) Accompanying individual. When you are accompanied by any other 
person, we will require that you sign a statement granting consent to 
the disclosure of the contents of your record to that person.
    (c) Designees. If a person requests another person's file, he or she 
must present a signed statement from the person of record that 
authorizes and consents to the release of the file to the designated 
individual.
    (d) Guardians. Parents or legal guardians) of dependent minors or of 
an individual who has been declared by a court to be incompetent due to 
physical, mental or age incapacity, may act for and on behalf of the 
individual on whom the Agency maintains records.
    (e) Other disclosures. A record may be disclosed without a request 
by or written consent of the individual to whom the record pertains if 
such disclosure conditions are authorized in accordance, with 5 U.S.C. 
552a(b). These conditions are:
    (1) Disclosure within the Agency. This condition is based upon a 
``need-to-know'' concept, which recognizes that Agency personnel may 
require access to discharge their duties.
    (2) Disclosure to the public. No consent by an individual is 
necessary if the record is required to be released under the Freedom of 
Information Act (FOIA), 5 U.S.C. 552. The record may be exempt, however, 
under one of the nine exemptions of the FOIA.
    (3) Disclosure for a routine use. No consent by an individual is 
necessary if the condition is necessary for a ``routine use'' as defined 
in Sec. 505.2(g). Information may also be released to other government 
agencies, that have statutory or other lawful authority to maintain such 
information.
    (4) Disclosure to the Bureau of the Census. For purposes of planning 
or carrying out a census or survey or related activity. Title 13 U.S.C. 
Section 8 limits the uses of these records and also makes them immune 
from compulsory disclosure.
    (5) Disclosure for statistical research and reporting. The Agency 
will provide the statistical information requested only after all names 
and personal identifiers have been deleted from the records.
    (6) Disclosure to the National Archives. For the preservation of 
records of historical value, according to 44 U.S.C. 2103.
    (7) Disclosure for law enforcement purposes. Upon receipt of a 
written request by another Federal agency or a state or local government 
describing the law enforcement purpose for which a record is required, 
and specifying the particular record. Blanket requests for all records 
pertaining to an individual are not permitted under the Privacy Act.
    (8) Disclosure under emergency circumstances. For the safety or 
health of an individual (e.g., medical records on a patient undergoing 
emergency treatment).
    (9) Disclosure to the Congress. For matters within the jurisdiction 
of any House or Senate committee or subcommittee, and/or joint committee 
or subcommittee, but only when requested in writing from the Chairman of 
the committee or subcommittee.
    (10) Disclosure to the General Accounting Office (GAO). For matters 
within the jurisdiction of the duties of the GAO's Comptroller General.
    (11) Disclosure according to court order. According to the order of 
a court of competent jurisdiction. This does not include a subpoena for 
records requested by counsel and issued by a clerk of court.



Sec. 505.11  Fees.

    (a) The first copy of any Agency record about you will be provided 
free of charge. A fee of $0.15 per page will be charged for any 
additional copies requested by you.
    (b) Checks or money orders should be made payable to the United 
States Treasurer and mailed to the FOIA/Privacy Act Office, Office of 
the General

[[Page 104]]

Counsel, Broadcasting Board of Governors, Suite 3349, 330 Independence 
Avenue, SW., Washington, DC 20237. The Agency will not accept cash.



Sec. 505.12  Civil remedies and criminal penalties.

    (a) Grounds for court action. You will have a remedy in the Federal 
District Court under the following circumstances:
    (1) Denial of access. You may challenge our decision to deny you 
access to records to which you consider yourself entitled.
    (2) Refusal to amend a record. Under the conditions of 5 U.S.C. 
552a(g), you may seek judicial review of the Agency's refusal to amend a 
record.
    (3) Failure to maintain a record accurately. You may bring suit 
against the Agency for any alleged intentional and willful failure to 
maintain a record accurately, if it can be shown that you were subjected 
to an adverse action resulting in the denial of aright, benefit, 
entitlement or employment you could reasonably have been expected to be 
granted if the record had not been deficient.
    (4) Other failures to comply with the Act. You may bring an action 
for any alleged failure by the Agency to comply with the requirements of 
the Act or failure to comply with any rule published by the Agency to 
implement the Act provided it can be shown that:
    (i) The action was intentional or willful;
    (ii) The Agency's action adversely affected you; and
    (iii) The adverse action was caused by the Agency's actions.
    (b) Jurisdiction and time limits. (1) Action may be brought in the 
district court for the jurisdiction in which you reside or have a place 
of residence or business, or in which the Agency records are situated, 
or in the District of Columbia.
    (2) The statute of limitations is two years from the date upon which 
the cause of action arises, except for cases in which the Agency has 
materially and willfully misrepresented any information requested to be 
disclosed and when such misrepresentation is material to the liability 
of the Agency. In such cases the statute of limitations is two years 
from the date of discovery of the misrepresentation by you.
    (3) A suit may not be brought on the basis of injury, which may have 
occurred as a result of the Agency's disclosure of a record prior to 
September 27, 1975.
    (c) Criminal penalties--(1) Unauthorized disclosure. It is a 
criminal violation of the provisions of the Act for any officer or 
employee of the Agency to knowingly and willfully disclose a record in 
any manner to any person or agency not entitled to receive it, for 
failure to meet the conditions of disclosure listed in S U.S.C. 552a(b), 
or without the written consent or at the request of the individual to 
whom the record pertains. Any officer or employee of the Agency found 
guilty of such misconduct shall be fined not more than $5,000.
    (2) Failure to publish a public notice. It is a criminal violation 
of the Act to willfully maintain a system of records and not publish the 
prescribed public notice. Any officer or employee of the Agency found 
guilty of such misconduct shall be fined not more than $5,000.
    (3) Obtaining records under false pretenses. The Act makes it a 
criminal offense to knowingly and willfully request or gain access to a 
record about an individual under false pretenses. Any person found 
guilty of such an offense may be fined not more than $5,000.



Sec. 505.13  General exemptions (Subsection (j)).

    (a) General exemptions are available for systems of records which 
are maintained by the Central Intelligence Agency (Subsection (j)(1)), 
or maintained by an agency which performs as its principal function any 
activity pertaining to the enforcement of the criminal laws (Subsection 
(j)(2)).
    (b) The Act does not permit general one exemption of records 
compiled primarily for a non-criminal purpose, even though there are 
some quasi-criminal aspects to the investigation and even though the 
records are in a system of records to which the general exemption 
applies.

[[Page 105]]



Sec. 505.14  Specific exemptions (Subsection (k)).

    The specific exemptions focus more on the nature of the records in 
the system of records than on the agency. The following categories of 
records may be exempt from disclosure:
    (a) Subsection (k)(1). Records which are specifically authorized 
under criteria established under an Executive Order to be kept secret in 
the interest of national defense or foreign policy, and which are in 
fact properly classified according to such Executive Order;
    (b) Subsection (k)(2). Investigatory records compiled for law 
enforcement purposes (other than material within the scope of subsection 
(j)(2) as discussed in Sec. 505.13(a)). If any individual is denied any 
right, privilege, or benefit for which she/he would otherwise be 
eligible, as a result of the maintenance of such material, the material 
shall be provided to the individual, unless disclosure of the material 
would reveal the identity of a source who has been pledged 
confidentiality;
    (c) Subsection (k)(3). Records maintained in connection with 
protection of the President and other VIPs accorded special protection 
by statute;
    (d) Subsection (k)(4). Records required by statute to be maintained 
and used solely as statistical records.
    (e) Subsection (k)(5). Records compiled solely for the purpose of 
determining suitability, eligibility, or qualifications for Federal 
civilian employment, military service, Federal contracts, or access to 
classified information, but only if disclosure of the material would 
reveal the identity of a confidential source that furnished information 
to the Government.
    (f) Subsection (k)(6). Testing or examination records used solely to 
determine individual qualifications for appointment or promotion in the 
Federal service when the disclosure of such would compromise the 
objectivity or fairness of the testing or examination process.
    (g) Subsection (k)(7). Evaluation records used to determine 
potential for promotion in the armed services, but only if disclosure 
would reveal the identity of a confidential source.



Sec. 505.15  Exempt systems of records used.

    The BBG is authorized to use exemptions (k)(1), (k)(2), (k)(4), 
(k)(5) and (k)(6).



PART 506_PART-TIME CAREER EMPLOYMENT PROGRAM--Table of Contents




Sec.
506.1 Purpose of program.
506.2 Review of positions.
506.3 Establishing and coverting part-time positions.
506.4 Annual goals and timetables.
506.5 Review and evaluation.
506.6 Publicizing vacancies.
506.7 Exceptions.

    Authority: 5 U.S.C. 3401 (note and 3402).

    Source: 44 FR 63098, Nov. 2, 1979, unless otherwise noted.



Sec. 506.1  Purpose of program.

    Many individuals in society possess great productive potential which 
goes unrealized because they cannot meet the requirements of a standard 
workweek. Permanent part-time employment also provides benefits to other 
individuals in a variety of ways, such as providing older individuals 
with a gradual transition into retirement, providing employment 
opportunities to handicapped individuals or others who require a reduced 
workweek, providing parents opportunities to balance family 
responsibilities with the need for additional income, providing 
employment opportunities for women returning to the workforce and 
assisting students who must finance their own education or vocational 
training. In view of this, the Broadcasting Board of Governors will 
operate a part-time career employment program, consistent with the needs 
of its beneficiaries and its responsibilities.



Sec. 506.2  Review of positions.

    Positions becoming vacant unless excepted as provided by Sec. 
506.7, will be reviewed to determine the feasibility of converting them 
to part-time. Among the criteria which may be used when conducting this 
review are:
    (a) Mission requirements and occupational mix.
    (b) Workload fluctuations.

[[Page 106]]

    (c) Employment ceilings and budgetary considerations.
    (d) Size of workforce, turnover rate and employment trends.
    (e) Affirmative action.



Sec. 506.3  Establishing and converting part-time positions.

    Position management and other internal reviews may indicate that 
positions may be either converted from full-time or initially 
established as part-time positions. Criteria listed above may be used 
during these reviews. If a decision is made to convert to or to 
establish a part-time position, regular position management and 
classification procedures will be followed.



Sec. 506.4  Annual goals and timetables.

    A Board-wide plan for promoting part-time employment opportunities 
will be developed annually by the Office of Personnel after consultation 
with the operating elements. This plan will establish annual goals and 
set deadlines for achieving these goals.

[44 FR 63098, Nov. 2, 1979, as amended at 51 FR 11015, Apr. 1, 1986]



Sec. 506.5  Review and evaluation.

    The part-time career employment program will be reviewed through 
semiannual reports submitted by the Director, Office of Personnel to the 
Associate Director for Management. Regular employment reports will be 
used to determine levels of part-time employment.

[44 FR 63098, Nov. 2, 1979, as amended at 51 FR 11016, Apr. 1, 1986]



Sec. 506.6  Publicizing vacancies.

    When applicants from outside the Federal service are desired, part-
time vacancies may be publicized through various recruiting means, such 
as:
    (a) Federal Job Information Centers.
    (b) State Employment Offices.
    (c) Broadcasting Board of Governors Vacancy Announcements.
    (d) College and University Placement Offices.



Sec. 506.7  Exceptions.

    The Director of the Board and the Associate Director for Management 
may except positions from inclusion in this program as necessary to 
carry out the mission of the Board.



PART 507_RULES FOR IMPLEMENTING OPEN MEETINGS UNDER THE SUNSHINE ACT FOR THE 

BROADCASTING BOARD OF GOVERNORS--Table of Contents




Sec.
507.1 General policies.
507.2 Definitions.
507.3 Requirement for open meetings.
507.4 Grounds on which meetings may be closed.
507.5 Procedures for announcing meetings.
507.6 Procedures for closing meetings.
507.7 Reconsideration of opening or closing a meeting.
507.8 Recording keeping of closed meetings.

    Authority: Pub. L. 93-129, 87 Stat. 956, 5 U.S.C. 552b.

    Source: 67 FR 76112, Dec. 11, 2002, unless otherwise noted.



Sec. 507.1  General policies.

    The Broadcasting Board of Governors will provide the public with the 
fullest practical information regarding its decision making process 
while protecting the rights of individuals and its abilities to carry 
out its responsibilities.



Sec. 507.2  Definitions.

    The following definitions apply:
    (a) The term agency includes any establishment in the executive 
branch of the government headed by a collegial body composed of two or 
more individual members, a majority of whom are appointed to such 
position by the President with the advice and consent of the Senate, and 
any subdivision thereof authorized to act on behalf of the agency. The 
Broadcasting Board of Governors is a government agency headed by a nine-
member board, eight of whom are appointed by the President with the 
advice and consent of the Senate, and the ninth being the Secretary of 
State. Therefore, the Broadcasting Board of Governors is an ``agency'' 
under these terms.
    (b) The term meeting means the deliberation of this Board where such 
deliberations determine or result in the joint conduct or disposition of 
official Board business.

[[Page 107]]

    (c) The term member means an individual who belongs to the Board who 
has been appointed by the President and confirmed by the Senate or is 
the Secretary of State.



Sec. 507.3  Requirement for open meetings.

    Members shall not jointly conduct or dispose of agency business 
other than in accordance with this part. Except as provided in Sec. 
507.4 every portion of every meeting of the agency shall be open to 
public observation.



Sec. 507.4  Grounds on which meetings may be closed.

    The Board shall open every portion of every meeting of the agency 
for public observation except where the agency determines that such 
portion or portions of the meeting or the disclosure of such information 
is likely to:
    (a) Disclose matters that are:
    (1) Specifically authorized under criteria established by an 
Executive order to be kept secret in the interests of national defense 
or foreign policy, and
    (2) In fact properly classified pursuant to such Executive order;
    (b) Relate solely to the internal personnel rules and practice of 
the agency;
    (c) Disclose matters specifically exempted from disclosure by 
statute: Provided, that such statute:
    (1) Requires that the matters be withheld from the public in such 
manner as to leave no discretion on the issue, or
    (2) Established practical criteria for withholding or refers to 
particular types of matters to be withheld;
    (d) Disclose trade secrets and commercial or financial information 
obtained from a person and privileged or confidential;
    (e) Involve accusing any person of a crime, or formally censuring 
any person;
    (f) Disclose information of a personal nature where disclosure would 
constitute a clearly unwarranted invasion of personal privacy;
    (g) Disclose investigatory records compiled for law enforcement 
purposes, or information which if written would be contained in such 
records, but only to the extent that the production of such records or 
information would:
    (1) Interfere with enforcement proceedings,
    (2) Deprive a person of a right to a fair trial on an impartial 
adjudication,
    (3) Constitute an unwarranted invasion of personal privacy,
    (4) Disclose the identity of a confidential source and, in the case 
of a record compiled by a criminal law enforcement authority in the 
course of a criminal investigation, or by an agency conducting a lawful 
national security intelligence investigation, confidential source,
    (5) Disclose investigative techniques and procedures, or
    (6) Endanger the life or physical safety of law enforcement 
personnel;
    (h) Disclose information, the premature disclosure of which would be 
likely to significantly frustrate implementation of a proposed agency 
action. This shall not apply in any instance where the Board has already 
disclosed to the public the content or the nature of its proposed 
action, or where the Board is required by law to make such disclosures 
on its own initiative prior to taking final Board action on such 
proposal; or
    (i) Specifically concern the Board's issuance of a subpoena, or the 
Board's participation in a civil action or proceeding, an action in a 
foreign court or international tribunal, or an arbitration, or the 
initiation, conduct or disposition by the Board of a particular case of 
formal agency adjudication, or otherwise involving a determination on 
the record after opportunity for a hearing.



Sec. 507.5  Procedures for announcing meetings.

    (a) In the case of each meeting, the Board shall make public, at 
least one week before the meeting, the time, place, and subject matter 
of the meeting, whether it is to be open or closed to the public, and 
the name and phone number of the official designated by the Board to 
respond to requests for information about the meeting. Such announcement 
shall be made unless a majority of the members of the Board determine by 
a recorded vote that such meeting must be called at an earlier date, in 
which case the Board shall make public announcement of the

[[Page 108]]

time, place, subject matter of such meeting and whether it is open or 
closed to the public, at the earliest practical time.
    (b) Immediately following the public announcement, the Board will 
publish it in the Federal Register.



Sec. 507.6  Procedures for closing meetings.

    (a) The closing of a meeting shall occur only when:
    (1) A majority of the membership of the Board votes to take such 
action. A separate vote of the Board members shall be taken with respect 
to each Board meeting, a portion or portions of which are proposed to be 
closed to the public pursuant to Sec. 507.4, or with respect to any 
information which is proposed to be withheld under Sec. 507.4. A single 
vote may be taken with respect to a series of meetings, a portion or 
portions of which are proposed to be closed to the public, or with 
respect to any information concerning such series of meetings, so long 
as each meeting in such series involves the same particular matters and 
is scheduled to be held not more than thirty days after the initial 
meeting in such series. The vote of each Board member participating in 
such vote shall be recorded and no proxies shall be allowed.
    (2) Whenever any person whose interest may be directly affected by a 
portion of the meeting requests that the Board close such a portion to 
the public for any of the reasons referred to in Sec. 507.4 (e), (f) or 
(g), the Board, upon request of any of its Board members, shall take a 
recorded vote, whether to close such portion of the meeting.
    (b) Within one day of any vote taken, the Board shall make publicly 
available a written copy of such vote reflecting the vote of each member 
on the question and full written explanation of its action closing the 
entire or portion of the meeting together with a list of all persons 
expected to attend the meeting and their affiliation.
    (c) The Board shall announce the time, place and subject matter of 
the meeting at least eight (8) days before the meeting.
    (d) For every closed meeting, the Board's Legal Counsel shall 
publicly certify that, in his or her opinion, the meeting may be closed 
to the public and shall state each relevant exemptive provision. A copy 
of such certification, together with a statement from the presiding 
officer of the meeting setting forth the time and place of the meeting, 
and the persons present, shall be retained by the Board.



Sec. 507.7  Reconsideration of opening or closing a meeting.

    The time or place of a Board meeting may be changed following the 
public announcement only if the Board publicly announces such change at 
the earliest practicable time. The subject matter of a meeting, or the 
determination of the agency to open or close a meeting, or a portion of 
a meeting, to the public, may be changed following the public 
announcement only if a majority of the Board members determines by a 
recorded vote that Board business so requires and that no earlier 
announcement of the change was possible, and the Board publicly 
announces such change and the vote of each member upon such change at 
the earliest practicable time.



Sec. 507.8  Recording keeping of closed meetings.

    (a) The Board shall maintain an electronic recording of the 
proceedings of each meeting, or portion of a meeting, closed to the 
public.
    (b) The Board, after review by the Chairman, shall make promptly 
available to the public in a place easily accessible to the public, a 
complete transcript or electronic record of the discussion of any item 
on the agenda, or any item of testimony of any witness received at the 
Board meeting, except for such item or items of such discussion or 
testimony as the Board determines to contain information which may be 
withheld under Sec. 507.4. Copies of such record, disclosing the 
identity of each speaker, shall be furnished to any person at the actual 
cost of duplication. The Board shall maintain a complete transcript or 
electronic copy of each meeting, or portion of a meeting, closed to the 
public, for a period of at least two years after such meeting, or until 
one year after the conclusion of any Board proceeding with respect to

[[Page 109]]

which the meeting or portion was held, whichever occurs later.



PART 510_SERVICE OF PROCESS--Table of Contents




    Authority: 5 U.S.C. 552(a)(1)(A).



Sec. 510.1  Service of process.

    (a) The General Counsel of the Broadcasting Board of Governors or 
any of his/her designees shall act as agent for the receipt of legal 
process against the Broadcasting Board of Governors, as well as against 
employees of the Board to the extent that the process relates to the 
official functions of the employees.
    (b) When accepting service of process for an employee in his/her 
official capacity, the General Counsel or his/her designee shall endorse 
on the server's return of process form, registered mail receipt, 
certified mail receipt, or express mail receipt: ``Service accepted in 
official capacity only.''
    (c) Process shall be delivered to:

Mailing address: Office of the General Counsel, Broadcasting Board of 
Governors, 301 Fourth Street SW., Washington, DC 20547
Location: Office of the General Counsel, Broadcasting Board of 
Governors, 301 Fourth Street SW., Room 700 Washington, DC 20547.

[53 FR 50515, Dec. 16, 1988]



PART 511_FEDERAL TORT CLAIMS PROCEDURE--Table of Contents




Sec.
511.1 Definitions.
511.2 Scope of regulations.
511.3 Exceptions.
511.4 Administrative claim; when presented.
511.5 Who may file claim.
511.6 Board authority to adjust, determine, compromise and settle claims 
          and limitations upon that authority.
511.7 Investigations.
511.8 Limitations.
511.9 Supporting evidence.
511.10 Settlement of claim.
511.11 Acceptance of award.
511.12 When litigation is involved in claim.

    Authority: 5 U.S.C. 301.

    Source: 34 FR 20430, Dec. 31, 1969, unless otherwise noted.



Sec. 511.1  Definitions.

    Board. Board means the Broadcasting Board of Governors.
    Act. Act means the Federal Tort Claims Act, as amended, and codified 
in 28 U.S.C., sections 2671-2680.



Sec. 511.2  Scope of regulations.

    The regulations in this part shall apply only to claims asserted 
under the Federal Tort Claims Act, as amended, or as incorporated by 
reference in any appropriation Act or other statutes, for money damages 
against the United States for injury, loss of property, personal injury, 
or death caused by the negligent or wrongful act or omission of any 
employee of the Board while acting within the scope of his/her office or 
employment, under circumstances where the United States, if a private 
person, would be liable to the claimant in accordance with the law of 
the place where the act or omission occurred.

[43 FR 14301, Apr. 4, 1978]



Sec. 511.3  Exceptions.

    Claims not compensable hereunder are listed in 2680 of the Act with 
the exception that 2680(k) (claims arising in a foreign country) has 
been removed by 22 U.S.C. 1474(5).

[44 FR 16374, Mar. 19, 1979]



Sec. 511.4  Administrative claim; when presented.

    (a) For the purposes of the provisions of section 2672 of the Act 
and of this part, a claim shall be deemed to have been presented when 
the Board receives, in the office designated in paragraph (b) 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, 
personal injury or death, alleged to have occurred by reason of the 
incident. The claimant may, if he/she desires, file a brief with his/her 
claim setting forth the law or other arguments in support of his/her 
claim. In cases involving claims by more than one person arising from a 
single accident or incident, individual claim forms shall be used. A 
claim which should have been presented to the Board, but which

[[Page 110]]

was mistakenly addressed to or filed with another Federal Agency, shall 
be deemed to have been presented to the Board as of the date the claim 
is received by the Board. If a claim is mistakenly addressed to or filed 
with the Board, the Board shall transfer it forthwith to the appropriate 
Agency.
    (b) A claimant shall mail, or deliver his/her claim to the Office of 
the General Counsel and Congressional Liaison, Broadcasting Board of 
Governors, 301 4th Street, SW., Washington, DC 20547.

[34 FR 20430, Dec. 31, 1969, as amended at 51 FR 11016, Apr. 1, 1986]



Sec. 511.5  Who may file claim.

    (a) Claims for loss or damage of property may be filed by the owner 
of the property, or his/her legal representatives. Claims for personal 
injury or death may be made by the injured person or a legal 
representative of the injured or deceased person. The claim, if filed by 
a legal representative, should show the capacity of the person signing 
and be accompanied by evidence of this authority to act.
    (b) The claim and all other papers requiring the signature of the 
claimant should be signed by him/her personally or by his/her 
representative. Signatures should be identical throughout.



Sec. 511.6  Board authority to adjust, determine, compromise, and settle 

claims and limitations upon that authority.

    (a) The General Counsel of the Board, or his/her designee, is 
delegated authority to consider, ascertain, adjust, determine, 
compromise, and settle claims asserted under the provisions of section 
2672 of the Act and under this part.
    (b) Limitation on Board authority: An award, compromise, or 
settlement of a claim by the Board under the provisions of section 2672 
of the Act, in excess of $25,000, shall be effected only with the prior 
written approval of the Attorney General or his/her designee.



Sec. 511.7  Investigations.

    The Board may request any other Federal agency to investigate a 
claim filed under section 2672 of the Act, or to conduct a physical or 
mental examination of the claimant and provide a report of such 
examination.



Sec. 511.8  Limitations.

    (a) Pursuant to the provisions of section 2401(b) of title 28 of the 
United States Code, a tort claim against the United States shall be 
forever barred unless presented in writing to the Board within two (2) 
years after such claim accrues.
    (b) A suit may not be filed until the claim shall have been finally 
denied by the Board. Failure of the Board to make final disposition of 
the claim within six (6) months after it has been presented shall, at 
the option of the claimant any time thereafter, be deemed a final denial 
of the claim for purposes of the Act and of this part.
    (c) A suit shall not be filed for a sum greater than the amount of 
the claim presented to the Board, except where the increased amount is 
based upon newly discovered evidence not reasonably discoverable at the 
time for presenting the claim to the Board, or upon allegation and proof 
of intervening facts, relating to amount of the claim.



Sec. 511.9  Supporting evidence.

    (a) In support of claims for personal injury or death, the claimant 
should submit a written report by the attending physician. The report 
should show the nature and extent of injury, the nature and extent of 
treatment, the effect upon earning capacity, either temporarily or 
permanently, the degree of permanent disability, if any, the prognosis, 
and the period of hospitalization, or incapacitation. Itemized bills for 
medical, hospital, or burial expenses actually incurred should be 
attached to report.
    (b) In support of claims for damage to property which as been or can 
be economically repaired, the claimant should submit at least two 
itemized signed statements, or estimates by reliable, disinterested 
firms or itemized signed receipts if payment has been made.
    (c) In support of claims for loss or damage to property which is not 
economically repairable, the claimant

[[Page 111]]

should submit statements of the original cost of the property, date of 
purchase, and the value of the property before and after the accident 
together with a statement setting forth the basis used in arriving at 
such value. Such statements should be from at least two disinterested, 
competent persons, preferably reputable dealers or other qualified 
persons familiar with the type of property in question.



Sec. 511.10  Settlement of claim.

    The General Counsel will review the findings from the standpoint of 
questions of law applicable to the claim and will determine disposition. 
The General Counsel will make final review for settlement of the claim 
and will sign SF-1145, Voucher for Payment Under Federal Tort Claims 
Act, and forward it to the Financial Operations Division for payment of 
claim. Payment of any award or settlement in the amount of $2,500 or 
less will be authorized from the appropriation and allotment current for 
obligation on the date of settlement irrespective of when the cause of 
action arose. Payment of any award, compromise or settlement in an 
amount in excess of $2,500, shall be paid in a manner similar to 
judgments and compromises out of the appropriation provided by section 
(c), Pub. L. 89-506 (28 U.S.C. 2672).



Sec. 511.11  Acceptance of award.

    The acceptance by the claimant of any award will be final and 
conclusive on the claimant. The acceptance will constitute a complete 
release of any claim by reason of the same subject matter against the 
United States and against the employee whose act or omission resulted in 
the claim. Adjudication and payment shall likewise be conclusive on all 
officers of the United States, unless procured by fraud.



Sec. 511.12  When litigation is involved in claim.

    If a claimant does not agree to a settlement of a claim of which is 
considered fair and equitable by the Board's responsible officials, the 
claimant, upon the final disposition thereof by the Board, may elect to 
file suit. Relief from claims which are disallowed may be sought by 
filing suit in the U.S. District Court for the district where the 
claimant resides or wherein the act of omission complained of occurred. 
The failure of the Board to make final disposition of a claim within 6 
months after it has been filed shall, pursuant to 28 U.S.C. 2672, and at 
the option of the claimant at any time thereafter, is deemed a final 
denial of the claim. If a suit is filed against the Government involving 
the Board, the Department of Justice will request the Board to furnish 
the complete file on the case. The Office of the General Counsel will 
represent the Board in all negotiations with the Department of Justice.



PART 512_COLLECTION OF DEBTS UNDER THE DEBT COLLECTION ACT OF 1982--Table of 

Contents




                      Subpart A_General Provisions

Sec.
512.1 Definitions.
512.2 Exceptions.
512.3 Use of procedures.
512.4 Conformance to law and regulations.
512.5 Other procedures.
512.6 Informal action.
512.7 Return of property.
512.8 Omissions not a defense.

   Subpart B_Administrative Offset and Referral to Collection Agencies

512.9 Demand for payment.
512.10 Collection by administrative offset.
512.11 Administrative offset against amounts payable for Civil Service 
          Retirement and Disability Fund.
512.12 Collection in installments.
512.13 Exploration of compromise.
512.14 Suspending or terminating collection action.
512.15 Referrals to the Department of Justice or the General Accounting 
          Office.
512.16 Collection services.

                         Subpart C_Salary Offset

512.17 Purpose.
512.18 Scope.
512.19 Definitions.
512.20 Notification.
512.21 Hearing.
512.22 Deduction from pay.
512.23 Liquidation from final check or recovery from other payment.
512.24 Non-waiver of rights by payments.
512.25 Refunds.
512.26 Interest, penalties, and administrative costs.

[[Page 112]]

512.27 Recovery when paying agency is not creditor agency.

         Subpart D_Interest, Penalties, and Administrative Costs

512.28 Assessment.
512.29 Exemptions.

    Authority: 31 U.S.C. 3701; 31 U.S.C. 3711 et seq.; 5 U.S.C. 5514; 4 
CFR Parts 101-105; 5 CFR Part 550.

    Source: 52 FR 43897, Nov. 17, 1987, unless otherwise noted.



                      Subpart A_General Provisions



Sec. 512.1  Definitions.

    (a) The term Board means the Broadcasting Board of Governors.
    (b) The term Board head means the Director, Broadcasting Board of 
Governors.
    (c) The term appropriate Board official or designee means the Chief, 
Financial Operations Division or such other official as may be named in 
the future by the Director, Broadcasting Board of Governors.
    (d) The terms debt or claim refer to an amount of money which has 
been determined by an appropriate Board official to be owed to the 
United States from any person, organization or entity, except another 
Federal Agency.
    (e) A debt is considered delinquent if it has not been paid by the 
date specified in the Board's written notification or applicable 
contractual agreement, unless other satisfactory arrangements have been 
made by that date, or at any time thereafter the debtor fails to satisfy 
obligations under a payment agreement with the Board.
    (f) The term referral for litigation means referral to the 
Department of Justice for appropriate legal proceedings.



Sec. 512.2  Exceptions.

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



Sec. 512.3  Use of procedures.

    Procedures authorized by this regulation (including but not limited 
to referral to a debt collection agency, administrative offset, or 
salary offset) may be used singly or in combination, providing the 
requirements of the applicable law and regulation are satisfied.



Sec. 512.4  Conformance to law and regulations.

    (a) The requirements of applicable law (31 U.S.C. 3701-3719 as 
amended by Pub. L. 97-365, (96 Stat. 1749) have been implemented in 
Government-wide standards:
    (1) The regulations of the Office of Personnel Management (5 CFR 
part 550).

[[Page 113]]

    (2) The Federal Claims Collection Standards issued jointly by the 
General Accounting Office and the Department of Justice (4 CFR parts 
101-105), and
    (3) The procedures prescribed by the Office of Management and Budget 
in Circular A-129 of May 9, 1985.
    (b) Not every item in the above described standards has been 
incorporated or referenced in this regulation. To the extent, however, 
that circumstances arise which are not covered by the terms stated in 
this regulation, Broadcasting Board of Governors will proceed in any 
actions taken in accordance with applicable requirements found in the 
sources referred to in paragraphs (a)(1), (2), and (3) of this section.



Sec. 512.5  Other procedures.

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



Sec. 512.6  Informal action.

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



Sec. 512.7  Return of property.

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



Sec. 512.8  Omissions not a defense.

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



   Subpart B_Administrative Offset and Referral to Collection Agencies



Sec. 512.9  Demand for payment.

    Prior to initiating administrative offset, demand for payment will 
be made as follows:
    (a) Written demands will be made promptly upon the debtor in terms 
which inform the debtor of the consequences of failure to cooperate. A 
total of three progressively stronger written demands at not more than 
30-day intervals will normally be made unless a response to the first or 
second demand indicates that further demand would be futile and the 
debtor's response does not require rebuttal. In determining the timing 
of demand letters, Broadcasting Board of Governors will give due regard 
to the need to act promptly so that, as a general rule, debt referrals 
to the Department of Justice for litigation, where necessary, can be 
made within one year of the Board's final determination of the fact and 
the amount of the debt. When necessary to protect the Goverment's 
interests (e.g., to prevent the statute of limitations, 28 U.S.C. 2415, 
from expiring) written demand may be preceded by other appropriate 
actions under this chapter, including immediate referral for litigation.
    (b) The initial demand letter will inform the debtor of: The basis 
for the indebtedness and the right of the debtor to request review 
within the Board; the applicable standards for assessing interest, 
penalties, and administrative costs (Supart D of this regulation) and; 
the date by which payment is to be made, which normally will not be more 
than 30 days from the date that the initial demand letter was mailed or 
hand delivered. Broadcasting Board of Governors will exercise care to 
insure that demand letters are mailed or hand-delivered on the same day 
that they are actually dated.
    (c) As appropriate to the circumstances, Broadcasting Board of 
Governors will include in the demand letters matters relating to 
alternative methods of payment, the debtor's rights to representation by 
his respective bargaining unit, policies relating to referral to 
collection agencies, the Board's intentions relative to referral of the 
debt to the Department of Justice for litigation, and, depending on the 
statutory authority, the debtor's entitlement to consideration of 
waiver.
    (d) Broadcasting Board of Governors will respond promptly to 
communications from the debtor and will advise debtors who dispute the 
debt that they

[[Page 114]]

must furnish available evidence to support their contention.



Sec. 512.10  Collection by administrative offset.

    (a) Collection by administrative offset will be undertaken in 
accordance with these regulations on all claims which are liquidated and 
certain in amount, in every instance where the appropriate Board 
official determines such collection to be feasible and not otherwise 
prohibited.
    (1) For purpose of this section, the term administrative offset has 
the same meaning as provided in 31 U.S.C. 3716(a)(1).
    (2) Whether collection by administrative offset is feasible is a 
determination to be made by the Board on a case-by-case basis, in the 
exercise of sound discretion. Broadcasting Board of Governors will 
consider not only the practicalities of administrative offset, but 
whether such offset is best suited to protect and further all of the 
Government's interests. Broadcasting Board of Governors will give 
consideration to the debtor's financial condition, and is not required 
to use offset in every instance where there is an available source of 
funds. Broadcasting Board of Governors will also consider whether offset 
would tend to substantially disrupt or defeat the purpose of the program 
authorizing the payments against which offset is contemplated.
    (b) Before the offset is made, a debtor shall be provided with the 
following: written notice of the nature and the amount of the debt and 
the Board's intention to collect by offset; opportunity to inspect and 
copy Board records pertaining to the debt; opportunity to obtain review 
within the Board of the determination of indebtedness; and opportunity 
to enter into written agreement with the Board to repay the debt. 
Broadcasting Board of Governors may also make requests to other agencies 
holding funds payable to the debtor, and process requests for offset 
that are received from other agencies.
    (1) Broadcasting Board of Governors will exercise sound judgment in 
determining whether to accept a repayment agreement in lieu of offset. 
The determination will weigh the Government's interest in collecting the 
debt against fairness to the debtor.
    (2) In cases where the procedural requirements specified in this 
paragraph (b) have previously been provided to the debtor in connection 
with the same debt under some other statutory or regulatory authority, 
such as pursuant to an audit allowance, the Board is not required to 
duplicate those requirements before taking administrative offset.
    (3) Broadcasting Board of Governors may not initiate administrative 
offset to collect a debt more than 10 years after the Government's right 
to collect the debt first accrued, unless facts material to the 
Government's right were not known and could not reasonably have been 
known by the official or officials of the Government who were charged 
with the responsibility to discover and collect the debt. When the debt 
first accrued is to be determined according to existent law regarding 
the accrual of debts (e.g., 28 U.S.C. 2415).
    (4) Broadcasting Board of Governors is not authorized by 31 U.S.C. 
3716 to use administrative offset with respect to: Debts owed by any 
State or local Government; debts arising under or payments made under 
the Social Security Act, the Internal Revenue Code of 1954 or the tariff 
laws of the United States; or any case in which collection of the type 
of debt involved by administrative offset is explicitly provided for or 
prohibited by another statute. Unless otherwise provided by contract or 
law, debts or payments which are not subject to administrative offset 
under 31 U.S.C. 3716 may be collected by administrative offset under the 
common law or other applicable statutory authority.
    (5) Broadcasting Board of Governors may effect administrative offset 
against a payment to be made to a debtor prior to completion of the 
procedures required by paragraph (b) of this section if failure to take 
offset would substantially prejudice the Government's ability to collect 
the debt, and the time before the payment is to be made does not 
reasonably permit the completion of those procedures. Amounts recovered 
by offset but later determined not to be owed to the Government shall be 
promptly refunded 30

[[Page 115]]

days after the Board has notified the debtor in writing that the debt is 
not owed. Such written notification will be issued within 15 days after 
the Board has confirmed through a review of its official records that 
the debt is not owed.
    (c) Type of hearing or review: (1) For purposes of this section, 
whenever Broadcasting Board of Governors is required to afford a hearing 
or review within the Board, the Board will provide the debtor with a 
reasonable opportunity for an oral hearing when: An applicable statute 
authorizes or requires the Board to consider waiver of the indebtedness 
involved, the debtor requests waiver of the indebtedness, and the waiver 
determination turns on an issue of veracity; or the debtor requests 
reconsideration of the debt and the Board determines that the question 
of the indebtedness cannot be resolved by review of the documentary 
evidence. Unless otherwise required by law, an oral hearing under this 
section is not required to be a formal evidentiary type hearing.
    (2) This section does not require an oral hearing with respect to 
debt collection systems in which determinations of indebtedness or 
waiver rarely involve issues of veracity and the Board has determined 
that the review of the written record is ordinarily enough to correct 
prior mistakes.
    (3) In those cases where an oral hearing is not required by this 
section, the Board will make its determination on the request for waiver 
or reconsideration based upon a review of the written record.
    (d) Appropriate use will be made of the cooperative efforts of other 
agencies in effecting collection by administrative offset. Broadcasting 
Board of Governors will not refuse to initiate administrative offset to 
collect debts owed the United States, unless the requesting agency has 
not complied with the applicable provisions of these standards.
    (e) Collection by offset against a judgment obtained against the 
United States shall be accomplished in accordance with 31 U.S.C. 3728.
    (f) Whenever the creditor agency is not the agency which is 
responsible for making the payment against which offset is sought, the 
latter agency shall not initiate the requested offset until it has been 
provided by the creditor agency with an appropriate written 
certification that the debtor owes the debt (including the amount) and 
that full compliance with the provisions of this section has taken 
place.
    (g) When collecting multiple debts by administrative offset, 
Broadcasting Board of Governors will apply the recovered amounts to 
those debts in accordance with the best interests of the United States, 
as determined by the facts and circumstances of the particular case, 
paying particular attention to the applicable statutes of limitations.



Sec. 512.11  Administrative offset against amounts payable from Civil Service 

Retirement and Disability Fund.

    (a) Unless otherwise prohibited by law, Broadcasting Board of 
Governors may request that monies that are due and payable to a debtor 
from the Civil Service Retirement and Disability Fund be 
administratively offset in reasonable amounts in order to collect in one 
full payments, or a minimal number of payment, debts owed the United 
States by the debtor. Such requests shall be made to the appropriate 
officials within the Office of Personnel Management in accordance with 
such regulations as may be prescribed by the Director of that Office.
    (b) When making a request for administrative offset under paragraph 
(a) of this section, Broadcasting Board of Governors shall include 
written statements that:
    (1) The debtor owes the United States a debt, including the amount 
of the debt;
    (2) The Broadcasting Board of Governors has complied with the 
applicable statutes, regulations, and procedures of the Office of 
Personnel Management; and
    (3) The Broadcasting Board of Governors has complied with the 
requirements of Sec. 512.10 of this part, including any required 
hearing or review.
    (c) Once Broadcasting Board of Governors decides to request offset 
under paragraph (a) of this section, it will make the request as soon as 
practical

[[Page 116]]

after completion of the applicable procedures in order that the Office 
of Personnel Management may identify the debtor's account in 
anticipation of the time when the debtor requests or becomes eligible to 
receive payments from the Fund. This will satisfy any requirement that 
offset be initiated prior to expiration of the applicable statute of 
limitations.
    (d) If Broadcasting Board of Governors collects part or all of the 
debt by other means before deductions are made or completed pursuant to 
paragraph (a) of this section, Broadcasting Board of Governors shall act 
promptly to modify or terminate its request for offset under paragraph 
(a) of this section.
    (e) This section does not require or authorize the Office of 
Personnel Management to review the merits of the Broadcasting Board of 
Governors determination relative to the amount and validity of the debt, 
its determination on waiver under an applicable statute, or its 
determination whether to provide an oral hearing.



Sec. 512.12  Collection in installments.

    (a) Whenever feasible, and except as required otherwise by law, 
debts owed to the United States, together with interest, penalties, and 
administrative costs as required by this regulation, should be collected 
in one lump sum. This is true whether the debt is being collected under 
administrative offset or by another method, including voluntary payment. 
However, if the debtor is financially unable to pay the indebtedness in 
one lump sum, payment may be accepted in regular installments. If 
Broadcasting Board of Governors agrees to accept payment in 
installments, it will obtain a legally enforceable written agreement 
from the debtor that specifies all of the terms of the arrangement and 
which contains a provision accelerating the debt in the event the debtor 
defaults. The size and frequency of the payments should bear a 
reasonable relation to the size of the debt and ability to the debtor to 
pay. If possible the installment payments should be sufficient in size 
and frequency to liquidate the Government's claim within 3 years.
    (b) If the debtor owes more than one debt and designates how a 
voluntary installment plan is to be applied among those debts, the Board 
will follow that designation. If no such designation is made, the Board 
will apply payments to the various debts in accordance with the best 
interest of the United States as as determined by the facts and 
circumstances of each case, with particular attention to application 
statutes of limitation.



Sec. 512.13  Exploration of compromise.

    Broadcasting Board of Governors may attempt to effect compromise in 
accordance with the standards set forth in part 103 of the Federal 
Claims Collection Standards (4 CFR part 103).



Sec. 512.14  Suspending or terminating collection action.

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



Sec. 512.15  Referrals to the Department of Justice or the General Accounting 

Office.

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



Sec. 512.16  Collection services.

    (a) Broadcasting Board of Governors has authority to contract for 
collection services to recover delinquent debts in accordance with 31 
U.S.C. 3718(c) and 4 CFR 102.6.
    (b) Contracts with collection agencies will provide that:
    (1) The authority to resolve disputes, compromise claims, suspend or 
terminate collection action, and refer the matter to the Justice 
Department for litigation will be retained by Broadcasting Board of 
Governors;
    (2) Contractors are subject to 5 U.S.C. 552a, the Privacy Act of 
1974, as amended, to the extent specified in 5 U.S.C. 552a(m) and to 
applicable Federal and State laws and regulations pertaining to debt 
collection practices, such as

[[Page 117]]

the Fair Debt Collection Practices Act, 15 U.S.C. 1692;
    (3) The contractor is required to strictly account for all amounts 
collected;
    (4) The contractor must agree that uncollectible accounts shall be 
returned with appropriate documentation to enable Broadcasting Board of 
Governors to determine whether to pursue collection through litigation 
or to terminate collection;
    (5) The contractor must agree to provide any data in its files 
relating to paragraphs (a)(1), (2), and (3) of Sec. 105.2 of the 
Federal Claims Collection Standards (4 CFR part 105) upon returning the 
account to Broadcasting Board of Governors for subsequent referral to 
the Department of Justice for litigation.
    (c) Broadcasting Board of Governors will not use a collection agency 
to collect a debt owed by a currently employed or retired Federal 
employee, if collection by salary or annuity offset is available.



                         Subpart C_Salary Offset



Sec. 512.17  Purpose.

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

[52 FR 43897, Nov. 17, 1987, as amended at 55 FR 3050, Jan. 30, 1990]



Sec. 512.18  Scope.

    (a) Coverage. This subpart applies to Executive agencies, military 
departments, an agency or court in the judicial branch, an agency of the 
legislative branch and other independent entities of the Federal 
Government as defined in 5 CFR 550.1103, under the heading ``Agency''.
    (b) Applicability. This subpart and 5 U.S.C. 5514 apply in 
recovering debts by offset without the employee's consent from the 
current pay of that employee. Debt collection procedures which are not 
specified in 5 U.S.C. 5514 and these regulations will be consistent with 
the Federal Claims Collection Standards (4 CFR parts 101-105).
    (1) The procedures contained in this subpart do not apply to debts 
or claims arising under the Internal Revenue Code of 1954 as amended (26 
U.S.C. 1 et seq.), the Social Security Act (42 U.S.C. 301 et seq.), or 
the tariff laws of the United States or to any case where collection of 
a debt is explicitly provided for or prohibited by another statute 
(e.g., travel advances in 5 U.S.C. 5705).
    (2) This subpart does not preclude an employee from requesting a 
waiver of a salary overpayment under 5 U.S.C. 5584, 10 U.S.C. 2774, or 
32 U.S.C. 716, or in any way questioning the amount or validity of a 
debt by submitting a subsequent claim to the General Accounting Office 
in accordance with procedures prescribed by the General Accounting 
Officer, nor does it preclude an employee from requesting waiver when 
waiver is available under any statutory provision.

[52 FR 43897, Nov. 17, 1987, as amended at 55 FR 3051, Jan. 30, 1990]



Sec. 512.19  Definitions.

    For purposes of this subpart:
    Board means the Broadcasting Board of Governors.
    Creditor Agency means the agency to which the debt is owed.
    Debt means an amount owed to the United States.
    Disposable Pay means that part of current basic pay, special pay, 
incentive pay, retired pay, retainer pay or authorized pay remaining 
after the deduction of any amount required to be withheld by law. The 
Board will exclude deductions described in 5 CFR 581.105 (b) through (f) 
to determine disposable pay subject to salary offset.
    Employee means a current employee of Broadcasting Board of Governors 
or of another Executive Agency.
    Executive Agency means:
    (a) An Executive Agency as defined in section 105 of title 5, United 
States Code, including the U.S. Postal Service and the U.S. Postal Rate 
Commission;
    (b) A military department as defined in section 102 of title 5, 
United States Code;
    (c) An agency or court in the judicial branch, including a court as 
defined in

[[Page 118]]

section 610 of title 28, United States Code, the District Court for the 
Northern Mariana Islands, and the Judicial Panel on Multidistrict 
Litigation;
    (d) An agency of the legislative branch, including the U.S. Senate 
and the U.S. House of Representatives; and
    (e) Other independent establishments that are entities of the 
Federal Government.
    FCCS means the Federal Claims Collection Standards jointly published 
by the Justice Department and the General Accounting Office at 4 CFR 
parts 101-105.
    Paying agency means the agency employing the individual and 
authorizing the payment of his or her current pay.
    Salary offset means an administrative offset to collect a debt under 
5 U.S.C. 5514 by deductions at one or more officially established pay 
intervals from the current pay account of an employee without his or her 
consent.
    Waiver means the cancellation, remission, forgiveness, or non-
recovery of a debt allegedly owed by an employee to an agency as 
permitted or required by U.S.C. 5584, 10 U.S.C. 2774, or 32 U.S.C. 710, 
5 U.S.C. 8346(b), or any other law.

[52 FR 43897, Nov. 17, 1987, as amended at 55 FR 3051, Jan. 30, 1990]



Sec. 512.20  Notification.

    (a) Salary offset deductions shall not be made unless the Director, 
Financial Operations Division of Broadcasting Board of Governors, or 
such other official as may be named in the future by the Director of 
Broadcasting Board of Governors, provides to the employee a written 
notice, 30 calendar days prior to any deduction, stating at a minimum:
    (1) The Board's determination that a debt is owed including the 
nature, origin, and amount of the debt;
    (2) The Board's intent to collect the debt by means of deduction 
from the employee's current disposable pay account;
    (3) The amount, frequency and proposed beginning date and duration 
of the intended deductions;
    (4) An explanation of the Board's policy concerning interest, 
penalties, and administrative costs;
    (5) The employee's right to inspect and copy Government records 
pertaining to the debt;
    (6) The opportunity to establish a schedule for the voluntary 
repayment of the debt or to enter into a written agreement to establish 
a schedule for repayment in lieu of offset per the requirements of 4 CFR 
102.2(e).
    (7) The employee's right to a hearing arranged by the Board and 
conducted by an administrative law judge or, alternatively, an official 
not under the control of the head of the Board;
    (8) The method and time period for filing a petition for a hearing;
    (9) That timely filing of the petition will stay the commencement of 
collection proceedings;
    (10) That final decision on the hearing will be issued not later 
than 60 days after the filing of the petition for hearing unless the 
employee requests and the hearing officer grants a delay in the 
proceedings.
    (11) That knowingly false, misleading, or frivolous statements, 
representations or evidence may subject the employee to:
    (i) Disciplinary procedures under chapter 75 of title 5, United 
States Code or any other applicable statutes;
    (ii) Penalties under the False Claims Act, sections 3729-3731 of 
title 31 U.S.C. or any other applicable statutes.
    (iii) Criminal penalties under sections 286, 287, 1001, 1002 of 
title 18 United States Code or any other applicable statutes.
    (12) Any other rights or remedies available to the employee, 
including representation by counsel or his respective bargaining unit, 
under the statutes or regulations governing the program for which 
collection is being made.
    (13) That amounts paid on or deducted for the debts that are later 
waived or found not owed to the United States will be promptly refunded 
to the employee.
    (b) Notifications under this section shall be hand delivered with a 
record made of the delivery, or shall be mailed certified mail with 
return receipt requested.
    (c) No notification hearing, written responses or final decisions 
under this regulation are required of Broadcasting

[[Page 119]]

Board of Governors for any adjustment to pay arising from an employee's 
election of coverage under a Federal benefit program requiring periodic 
deductions from pay, if the amount to be recovered was accumulated over 
four pay periods or less.



Sec. 512.21  Hearing.

    (a) Petition for hearing. (1) A hearing may be requested by filing a 
written petition with the Director, Financial Operations Division of 
Broadcasting Board of Governors, or such other official as may be named 
in the future by the Director of Broadcasting Board of Governors, 
stating why the employee believes the Board's determination of the 
existence or amount of the debt is in error.
    (2) The petition must be signed by the employee and fully identify 
and explain with reasonable specificity all the facts, evidence and 
witnesses which the employee believes support his or her position.
    (3) The petition must be filed no later than fifteen (15) calendar 
days from the date the notification under Sec. 512.20(b) was hand 
delivered or the date of delivery by certified mail.
    (4) Where petition is received after the 15 calendar day limit, 
Broadcasting Board of Governors will accept the petition if the employee 
can show that the delay was beyond his or her control or because of 
failure to receive notice.
    (5) If the petition is not filed within the time limit, and is not 
accepted pursuant to paragraph (a)(4) of this section, the employee's 
right to hearing will be considered waived, and salary offset will be 
implemented.
    (b) Type of hearing. (1) The form and content of the hearing will be 
determined by the hearing official who shall be a person outside the 
control or authority of Broadcasting Board of Governors.
    (2) The employee may represent him or herself, or may be represented 
by counsel.
    (3) The hearing official shall maintain a summary record of the 
hearing.
    (4) The hearing official will prepare a written decision which will 
state:
    (i) The facts purported to evidence nature and origin of the alleged 
debt;
    (ii) The hearing official's analysis, findings, and conclusions 
relative to:
    (A) The employee's and/or the Board's grounds;
    (B) The amount and the validity of the alleged debt;
    (C) The repayment schedule, if applicable.
    (5) The decision of the hearing official shall constitute the final 
administrative decision of the Board.



Sec. 512.22  Deduction from pay.

    (a) Deduction by salary offset, from an employee's disposable 
current pay, shall be subject to the following circumstances:
    (1) When funds are available, the Board will collect debts owed the 
United States in full in one lump-sum. If funds are not available or the 
debt exceeds 15% of disposable pay for an officially established pay 
interval, collection will normally be made in installments.
    (2) The installments shall not exceed 15% of the disposable pay from 
which the deduction is made, unless the employee has agreed in writing 
to a larger amount.
    (3) Deduction will commence with the next full pay interval 
following notice that deductions will commence.
    (4) Installment deductions will not be made over a period greater 
than the anticipated period of employment.

[52 FR 43897, Nov. 17, 1987, as amended at 55 FR 3051, Jan. 30, 1990]



Sec. 512.23  Liquidation from final check or recovery from other payment.

    (a) If an employee retires or resigns before collection of the debt 
is completed, offset of the entire remaining balance may be made from a 
final payment of any nature to such extent as is necessary to liquidate 
the debt.
    (b) Where debt cannot be liquidated by offset from final payment, 
offset may be made from later payments of any kind due from the United 
States inclusive of Civil Service Retirement and Disability Fund 
pursuant to 5 U.S.C. 8347 and 5 CFR 831.1801 et seq of this regulation.

[52 FR 43897, Nov. 17, 1987, as amended at 55 FR 3051, Jan. 30, 1990]

[[Page 120]]



Sec. 512.24  Non-waiver of rights by payments.

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



Sec. 512.25  Refunds.

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



Sec. 512.26  Interest, penalties, and administrative costs.

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



Sec. 512.27  Recovery when paying agency is not creditor agency.

    (a) Format for request for recovery. (1) Upon completion of the 
procedures prescribed under 5 CFR 550.1104 and its own regulations, the 
creditor agency shall certify the debt in writing to the paying agency.
    (2) The creditor agency shall certify in writing that the employee 
owes the debt, the amount and basis of the debt; the date on which 
payment is due, the date the Government's right to collect first 
accrued, and that the creditor agency's regulations implementing section 
5514 have been approved by OPM.
    (3) If collection must be made in installments, the creditor agency 
must advise the paying agency of the number of installments to be 
collected, the amount of each installment, and the commencing date of 
the first installment.
    (b) Submitting the request for recovery.--(1) Current employees. The 
creditor agency shall submit the debt claim, agreement, or other 
instruction on the payment schedule to the employee's paying agency.
    (2) Separated employees.--(i) Employees who are in the process of 
separating. If the employee is in the process of separating, the 
creditor agency will submit its debt claim to the employee's paying 
agency for collection as provided in Sec. Sec. 512.22 and 512.23. The 
paying agency shall certify the total amount of its collection and 
notify the creditor agency and the employee as provided in paragraph 
(b)(2)(iii) of this section. Where the paying agency is aware that the 
employee is entitled to payments from the Civil Service Retirement and 
Disability Fund, it will send a copy of the certified debt claim to the 
agency responsible for making such payments as notice that a debt is 
outstanding. It is the responsibility of the creditor agency for 
pursuing the claim.
    (ii) Employees who have already separated. If the employee is 
already separated and all payments due from his or her former paying 
agency have been paid, the creditor agency may request that monies which 
are due and payable to the employee from the Civil Service Retirement 
and Disability Fund (5 CFR 831.1801) or other similar funds be 
administratively offset in order to collect the debt (31 U.S.C. 3716 and 
the FCCS).
    (iii) Employees who transfer from one paying agency to another. If 
an employee transfers to a position served by a different paying agency 
subsequent to the creditor agency's debt claim but before complete 
collection, the paying agency from which the employee separates shall 
certify the total of collection made on the debt. One copy of the 
certification will be supplied to the employee, and another to the 
creditor agency with notice of the employee's transfer. The original 
shall be inserted in the employees official personnel folder. The 
creditor agency shall submit a properly certified claim to the new 
paying agency before collection can be resumed. The paying agency will 
then resume collection from the employee's current pay account, and 
notify the employee and the creditor agency of the resumption. The 
creditor agency will not need to repeat the due process procedure 
described by 5 U.S.C. 5514 and 5 CFR 550.1101 et seq.'' Upon settlement 
or repayment of the debt all

[[Page 121]]

records of the debt will be removed from official personnel records.
    (c) Processing the debt claim upon receipt by the paying agency:
    (1) Incomplete claims. If the paying agency receives an improperly 
completed debt certification, it shall return the request with a notice 
that procedures under 5 CFR 550.1101 et seq. and the creditor agency's 
own regulations must be completed and a properly completed debt 
certification form received before action will be taken to effect 
collection.
    (2) Complete claim. If the paying agency receives a properly 
completed debt form, deductions will begin prospectively at the next 
officially established pay interval. A copy of the debt form will be 
given to the debtor along with notice of the date deductions will 
commence.
    (3) The paying agency is not required or authorized to review the 
merits of the creditor agency's determination with respect to the amount 
or validity of the debt as stated in the debt claim.

[52 FR 43897, Nov. 17, 1987, as amended at 55 FR 3051, Jan. 30, 1990]



         Subpart D_Interest, Penalties, and Administrative Costs



Sec. 512.28  Assessment.

    (a) Except as provided in paragraph (h) of this section, or Sec. 
512.29, Broadcasting Board of Governors shall assess interest, 
penalties, and administrative costs on debts owed to the United States 
pursuant to 31 U.S.C. 3717. Before assessing these charges, Broadcasting 
Board of Governors will mail or hand deliver a written notice to the 
debtor. This notice will include a statement of the Board's requirements 
concerning Sec. Sec. 512.9 and 512.21.
    (b) Interest shall accrue from the date on which notice of the debt 
is first mailed or hand-delivered to the debtor, using the most current 
address available to the Board.
    (c) The rate of interest assessed shall be the rate of the current 
value of funds to the United States Treasury (i.e., the Treasury Tax and 
Loan account rate), as prescribed and published by the Secretary of the 
Treasury in the Federal Register and the Treasury Fiscal Requirements 
Manual Bulletins annually or quarterly, in accordance with 31 U.S.C. 
3717. The rate of interest as initially assessed shall remain fixed for 
the duration of the indebtedness. However, in cases where the debtor has 
defaulted on a repayment agreement and seeks a new agreement, 
Broadcasting Board of Governors may set a new rate which reflects the 
current value of funds to the Treasury at the time the agreement is 
executed. Interest will not be assessed on interest, penalties, or 
administrative costs required by this section.
    (d) Broadcasting Board of Governors shall assess charges to cover 
administrative costs incurred as a result of a delinquent debt. 
Calculation of administrative costs shall be based upon actual costs 
incurred. Administrative costs include costs incurred to obtain credit 
reports in the case of employee debt or in using a private debt 
collector in the case of non-employee debt.
    (e) Broadcasting Board of Governors shall assess a penalty charge 
not to exceed 6% per year on any portion of a debt that is delinquent 
for more than 90 days. This charge need not be calculated until the 91st 
day of delinquency, but shall accrue from the date that the debt became 
delinquent.
    (f) When a debt is paid in partial or installment payments, amounts 
received shall be applied first to the outstanding penalty and 
administrative cost charges, second to accrued interest and third to 
outstanding principal.
    (g) Broadcasting Board of Governors will waive the collection of 
interest on the debt or any portion of the debt that is paid within 30 
days after the date on which interest began to accrue. Broadcasting 
Board of Governors may extend this 30-day period, on a case-by-case 
basis, if it reasonably determines such action is appropriate. 
Broadcasting Board of Governors may also waive in whole or in part the 
collection of interest, penalties, and administrative costs assessed 
under this section per the criteria specified in part 103 of the Federal 
Claims Collection Standards (4 CFR part 103) relating to the compromise 
of claims or if the Board determines that collection of these charges is 
not in the best interest of the United

[[Page 122]]

States. Waiver under the first sentence of this paragraph is mandatory. 
Under the second and third sentences, it may be exercised under the 
following circumstances:
    (1) Waiver of interest pending consideration of a request for 
reconsideration, administrative review, or waiver of the underlying debt 
under a permissive statute, and
    (2) Waiver of interest where Broadcasting Board of Governors has 
accepted an installment plan under Sec. 512.12, there is no indication 
of fault or lack of good faith on the part of the debtor and the amount 
of the interest is large enough, in relation to the size of the 
installments that the debtor can reasonably afford to pay, that the debt 
will never be repaid.
    (h) Where a mandatory waiver or review statute applies, interest and 
related charges may not be assessed for those periods during which 
collection must be suspended under Sec. 104.2(c)(1) of the Federal 
Claims Collection Standards (4 CFR part 104).



Sec. 512.29  Exemptions.

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



PART 513_GOVERNMENT DEBARMENT AND SUSPENSION (NONPROCUREMENT) AND 

GOVERNMENTWIDE REQUIREMENTS FOR DRUG-FREE WORKPLACE (GRANTS)--Table of 

Contents




                            Subpart A_General

Sec.
513.100 Purpose.
513.105 Definitions.
513.110 Coverage.
513.115 Policy.

                       Subpart B_Effect of Action

513.200 Debarment or suspension.
513.205 Ineligible persons.
513.210 Voluntary exclusion.
513.215 Exception provision.
513.220 Continuation of covered transactions.
513.225 Failure to adhere to restrictions.

                           Subpart C_Debarment

513.300 General.
513.305 Causes for debarment.
513.310 Procedures.
513.311 Investigation and referral.
513.312 Notice of proposed debarment.
513.313 Opportunity to contest proposed debarment.
513.314 Debarring official's decision.
513.315 Settlement and voluntary exclusion.
513.320 Period of debarment.
513.325 Scope of debarment.

                          Subpart D_Suspension

513.400 General.
513.405 Causes for suspension.
513.410 Procedures.
513.411 Notice of suspension.
513.412 Opportunity to contest suspension.
513.413 Suspending official's decision.
513.415 Period of suspension.
513.420 Scope of suspension.

        Subpart E_Responsibilities of GSA, Board and Participants

513.500 GSA responsibilities.
513.505 Broadcasting Board of Governors responsibilities.
513.510 Participants' responsibilities.

           Subpart F_Drug-Free Workplace Requirements (Grants)

513.600 Purpose.
513.605 Definitions.
513.610 Coverage.

[[Page 123]]

513.615 Grounds for suspension of payments, suspension or termination of 
          grants, or suspension or debarment.
513.620 Effect of violation.
513.625 Exception provision.
513.630 Certification requirements and procedures.
513.635 Reporting of and employee sanctions for convictions of criminal 
          drug offenses.

Appendix A to Part 513--Certification Regarding Debarment, Suspension, 
          and Other Responsibility Matters--Primary Covered Transactions
Appendix B to Part 513--Certification Regarding Debarment, Suspension, 
          Ineligibility and Voluntary Exclusion--Lower Tier Covered 
          Transactions
Appendix C to Part 513--Certification Regarding Drug-Free Workplace 
          Requirements

    Authority: 40 U.S.C. 486 (c); 41 U.S.C. 701 et seq.; Sec. 2455, Pub. 
L. 103-355, 108 Stat. 3327 (31 U.S.C. 6101 note); E. O. 12549, 3 CFR, 
1986 Comp., p. 189; E.O. 12689, 3 CFR, 1989 comp., p. 235.

    Source: 53 FR 19179, 19204, May 26, 1988, unless otherwise noted.

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



                            Subpart A_General



Sec. 513.100  Purpose.

    (a) Executive Order (E.O.) 12549 provides that, to the extent 
permitted by law, Executive departments and agencies shall participate 
in a governmentwide system for nonprocurement debarment and suspension. 
A person who is debarred or suspended shall be excluded from Federal 
financial and nonfinancial assistance and benefits under Federal 
programs and activities. Debarment or suspension of a participant in a 
program by one agency shall have governmentwide effect.
    (b) These regulations implement section 3 of E.O. 12549 and the 
guidelines promulgated by the Office of Management and Budget under 
section 6 of the E.O. by:
    (1) Prescribing the programs and activities that are covered by the 
governmentwide system;
    (2) Prescribing the governmentwide criteria and governmentwide 
minimum due process procedures that each agency shall use;
    (3) Providing for the listing of debarred and suspended 
participants, participants declared ineligible (see definition of 
``ineligible'' in Sec. 513.105), and participants who have voluntarily 
excluded themselves from participation in covered transactions;
    (4) Setting forth the consequences of a debarment, suspension, 
determination of ineligibility, or voluntary exclusion; and
    (5) Offering such other guidance as necessary for the effective 
implementation and administration of the governmentwide system.
    (c) These regulations also implement Executive Order 12689 (3 CFR, 
1989 Comp., p. 235) and 31 U.S.C. 6101 note (Public Law 103-355, sec. 
2455, 108 Stat. 3327) by--
    (1) Providing for the inclusion in the List of Parties Excluded from 
Federal Procurement and Nonprocurement Programs all persons proposed for 
debarment, debarred or suspended under the Federal Acquisition 
Regulation, 48 CFR Part 9, subpart 9.4; persons against which 
governmentwide exclusions have been entered under this part; and persons 
determined to be ineligible; and
    (2) Setting forth the consequences of a debarment, suspension, 
determination of ineligibility, or voluntary exclusion.
    (d) Although these regulations cover the listing of ineligible 
participants and the effect of such listing, they do not prescribe 
policies and procedures governing declarations of ineligibility.

[60 FR 33040, 33045, June 26, 1995]



Sec. 513.105  Definitions.

    The following definitions apply to this part:
    Adequate evidence. Information sufficient to support the reasonable 
belief that a particular act or omission has occurred.
    Affiliate. Persons are affiliates of each other if, directly or 
indirectly, either one controls or has the power to control the other, 
or, a third person controls or has the power to control both. Indicia of 
control include, but are not limited to: interlocking management or 
ownership, identity of interests among family members, shared facilities 
and equipment, common use of

[[Page 124]]

employees, or a business entity organized following the suspension or 
debarment of a person which has the same or similar management, 
ownership, or principal employees as the suspended, debarred, 
ineligible, or voluntarily excluded person.
    Agency. Any executive department, military department or defense 
agency or other agency of the executive branch, excluding the 
independent regulatory agencies.
    Civil judgment. The disposition of a civil action by any court of 
competent jurisdiction, whether entered by verdict, decision, 
settlement, stipulation, or otherwise creating a civil liability for the 
wrongful acts complained of; or a final determination of liability under 
the Program Fraud Civil Remedies Act of 1988 (31 U.S.C. 3801-12).
    Conviction. A judgment or conviction of a criminal offense by any 
court of competent jurisdiction, whether entered upon a verdict or a 
plea, including a plea of nolo contendere.
    Debarment. An action taken by a debarring official in accordance 
with these regulations to exclude a person from participating in covered 
transactions. A person so excluded is ``debarred.''
    Debarring official. An official authorized to impose debarment. The 
debarring official is either:
    (1) The agency head, or
    (2) An official designated by the agency head.
    Indictment. Indictment for a criminal offense. An information or 
other filing by competent authority charging a criminal offense shall be 
given the same effect as an indictment.
    Ineligible. Excluded from participation in Federal nonprocurement 
programs pursuant to a determination of ineligibility under statutory, 
executive order, or regulatory authority, other than Executive Order 
12549 and its agency implementing regulations; for exemple, excluded 
pursuant to the Davis-Bacon Act and its implementing regulations, the 
equal employment opportunity acts and executive orders, or the 
environmental protection acts and executive orders. A person is 
ineligible where the determination of ineligibility affects such 
person's eligibility to participate in more than one covered 
transaction.
    Legal proceedings. Any criminal proceeding or any civil judicial 
proceeding to which the Federal Government or a State or local 
government or quasi-governmental authority is a party. The term includes 
appeals from such proceedings.
    List of Parties Excluded from Federal Procurement and Nonprocurement 
Programs. A list compiled, maintained and distributed by the General 
Services Administration (GSA) containing the names and other information 
about persons who have been debarred, suspended, or voluntarily excluded 
under Executive Orders 12549 and 12689 and these regulations or 48 CFR 
part 9, subpart 9.4, persons who have been proposed for debarment under 
48 CFR part 9, subpart 9.4, and those persons who have been determined 
to be ineligible.
    Notice. A written communication served in person or sent by 
certified mail, return receipt requested, or its equivalent, to the last 
known address of a party, its identified counsel, its agent for service 
of process, or any partner, officer, director, owner, or joint venturer 
of the party. Notice, if undeliverable, shall be considered to have been 
received by the addressee five days after being properly sent to the 
last address known by the Board.
    Participant. Any person who submits a proposal for, enters into, or 
reasonably may be expected to enter into a covered transaction. This 
term also includes any person who acts on behalf of or is authorized to 
commit a participant in a covered transaction as an agent or 
representative of another participant.
    Person. Any individual, corporation, partnership, association, unit 
of government or legal entity, however organized, except: foreign 
governments or foreign governmental entities, public international 
organizations, foreign government owned (in whole or in part) or 
controlled entities, and entities consisting wholly or partially of 
foreign governments or foreign governmental entities.
    Preponderance of the evidence. Proof by information that, compared 
with

[[Page 125]]

that opposing it, leads to the conclusion that the fact at issue is more 
probably true than not.
    Principal. Officer, director, owner, partner, key employee, or other 
person within a participant with primary management or supervisory 
responsibilities; or a person who has a critical influence on or 
substantive control over a covered transaction, whether or not employed 
by the participant. Persons who have a critical influence on or 
substantive control over a covered transaction are:
    (1) Principal investigators.
    Proposal. A solicited or unsolicited bid, application, request, 
invitation to consider or similar communication by or on behalf of a 
person seeking to participate or to receive a benefit, directly or 
indirectly, in or under a covered transaction.
    Respondent. A person against whom a debarment or suspension action 
has been initiated.
    State. Any of the States of the United States, the District of 
Columbia, the Commonwealth of Puerto Rico, any territory or possession 
of the United States, or any agency of a State, exclusive of 
institutions of higher education, hospitals, and units of local 
government. A State instrumentality will be considered part of the State 
government if it has a written determination from a State government 
that such State considers that instrumentality to be an agency of the 
State government.
    Suspending official. An official authorized to impose suspension. 
The suspending official is either:
    (1) The agency head, or
    (2) An official designated by the agency head.
    Suspension. An action taken by a suspending official in accordance 
with these regulations that immediately excludes a person from 
participating in covered transactions for a temporary period, pending 
completion of an investigation and such legal, debarment, or Program 
Fraud Civil Remedies Act proceedings as may ensue. A person so excluded 
is ``suspended.''
    Voluntary exclusion or voluntarily excluded. A status of 
nonparticipation or limited participation in covered transactions 
assumed by a person pursuant to the terms of a settlement.
    Broadcasting Board of Governors.

[53 FR 19204, 19179, May 26, 1988, as amended at 60 FR 33041, 33045, 
June 26, 1995]



Sec. 513.110  Coverage.

    (a) These regulations apply to all persons who have participated, 
are currently participating or may reasonably be expected to participate 
in transactions under Federal nonprocurement programs. For purposes of 
these regulations such transactions will be referred to as ``covered 
transactions.''
    (1) Covered transaction. For purposes of these regulations, a 
covered transaction is a primary covered transaction or a lower tier 
covered transaction. Covered transactions at any tier need not involve 
the transfer of Federal funds.
    (i) Primary covered transaction. Except as noted in paragraph (a)(2) 
of this section, a primary covered transaction is any nonprocurement 
transaction between an agency and a person, regardless of type, 
including: grants, cooperative agreements, scholarships, fellowships, 
contracts of assistance, loans, loan guarantees, subsidies, insurance, 
payments for specified use, donation agreements and any other 
nonprocurement transactions between a Federal agency and a person. 
Primary covered transactions also include those transactions specially 
designated by the U.S. Department of Housing and Urban Development in 
such agency's regulations governing debarment and suspension.
    (ii) Lower tier covered transaction. A lower tier covered 
transaction is:
    (A) Any transaction between a participant and a person other than a 
procurement contract for goods or services, regardless of type, under a 
primary covered transaction.
    (B) Any procurement contract for goods or services between a 
participant and a person, regardless of type, expected to equal or 
exceed the Federal procurement small purchase threshold fixed at 10 
U.S.C. 2304(g) and 41 U.S.C. 253(g) (currently $25,000) under a primary 
covered transaction.
    (C) Any procurement contract for goods or services between a 
participant

[[Page 126]]

and a person under a covered transaction, regardless of amount, under 
which that person will have a critical influence on or substantive 
control over that covered transaction. Such persons are:
    (1) Principal investigators.
    (2) Providers of federally-required audit services.
    (2) Exceptions. The following transactions are not covered:
    (i) Statutory entitlements or mandatory awards (but not subtier 
awards thereunder which are not themselves mandatory), including 
deposited funds insured by the Federal Government;
    (ii) Direct awards to foreign governments or public international 
organizations, or transactions with foreign governments or foreign 
governmental entities, public international organizations, foreign 
government owned (in whole or in part) or controlled entities, entities 
consisting wholly or partially of foreign governments or foreign 
governmental entities;
    (iii) Benefits to an individual as a personal entitlement without 
regard to the individual's present responsibility (but benefits received 
in an individual's business capacity are not excepted);
    (iv) Federal employment;
    (v) Transactions pursuant to national or agency-recognized 
emergencies or disasters;
    (vi) Incidental benefits derived from ordinary governmental 
operations; and
    (vii) Other transactions where the application of these regulations 
would be prohibited by law.
    (b) Relationship to other sections. This section describes the types 
of transactions to which a debarment or suspension under the regulations 
will apply. Subpart B, ``Effect of Action,'' 513.200, ``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 
513.110(a). Sections 513.325, ``Scope of debarment,'' and 513.420, 
``Scope of suspension,'' govern the extent to which a specific 
participant or organizational elements of a participant would be 
automatically included within a debarment or suspension action, and the 
conditions under which affiliates or persons associated with a 
participant may also be brought within the scope of the action.
    (c) Relationship to Federal procurement activities. In accordance 
with E.O. 12689 and section 2455 of Public Law 103-355, any debarment, 
suspension, proposed debarment or other governmentwide exclusion 
initiated under the Federal Acquisition Regulation (FAR) on or after 
August 25, 1995 shall be recognized by and effective for Executive 
Branch agencies and participants as an exclusion under this regulation. 
Similarly, any debarment, suspension or other governmentwide exclusion 
initiated under this regulation on or after August 25, 1995 shall be 
recognized by and effective for those agencies as a debarment or 
suspension under the FAR.

[53 FR 19179, 19204, May 26, 1988, as amended at 60 FR 33041, 33045, 
June 26, 1995]



Sec. 513.115  Policy.

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



                       Subpart B_Effect of Action



Sec. 513.200  Debarment or suspension.

    (a) Primary covered transactions. Except to the extent prohibited by 
law, persons who are debarred or suspended

[[Page 127]]

shall be excluded from primary covered transactions as either 
participants or principals throughout the Executive Branch of the 
Federal Government for the period of their debarment, suspension, or the 
period they are proposed for debarment under 48 CFR part 9, subpart 9.4. 
Accordingly, no agency shall enter into primary covered transactions 
with such excluded persons during such period, except as permitted 
pursuant to Sec. 513.215.
    (b) Lower tier covered transactions. Except to the extent prohibited 
by law, persons who have been proposed for debarment under 48 CFR part 
9, subpart 9.4, debarred or suspended shall be excluded from 
participating as either participants or principals in all lower tier 
covered transactions (see Sec. 513.110(a)(1)(ii)) for the period of 
their exclusion.
    (c) Exceptions. Debarment or suspension does not affect a person's 
eligibility for--
    (1) Statutory entitlements or mandatory awards (but not subtier 
awards thereunder which are not themselves mandatory), including 
deposited funds insured by the Federal Government;
    (2) Direct awards to foreign governments or public international 
organizations, or transactions with foreign governments or foreign 
governmental entities, public international organizations, foreign 
government owned (in whole or in part) or controlled entities, and 
entities consisting wholly or partially of foreign governments or 
foreign governmental entities;
    (3) Benefits to an individual as a personal entitlement without 
regard to the individual's present responsibility (but benefits received 
in an individual's business capacity are not excepted);
    (4) Federal employment;
    (5) Transactions pursuant to national or agency-recognized 
emergencies or disasters;
    (6) Incidental benefits derived from ordinary governmental 
operations; and
    (7) Other transactions where the application of these regulations 
would be prohibited by law.

[60 FR 33041, 33045, June 26, 1995]



Sec. 513.205  Ineligible persons.

    Persons who are ineligible, as defined in Sec. 513.105(i), are 
excluded in accordance with the applicable statutory, executive order, 
or regulatory authority.



Sec. 513.210  Voluntary exclusion.

    Persons who accept voluntary exclusions under Sec. 513.315 are 
excluded in accordance with the terms of their settlements. Broadcasting 
Board of Governors shall, and participants may, contact the original 
action agency to ascertain the extent of the exclusion.



Sec. 513.215  Exception provision.

    may grant an exception permitting a debarred, suspended, or 
voluntarily excluded person, or a person proposed for debarment under 48 
CFR part 9, subpart 9.4, to participate in a particular covered 
transaction upon a written determination by the agency head or an 
authorized designee stating the reason(s) for deviating from the 
Presidential policy established by Executive Order 12549 and Sec. 
513.200. However, in accordance with the President's stated intention in 
the Executive Order, exceptions shall be granted only infrequently. 
Exceptions shall be reported in accordance with Sec. 513.505(a).

[60 FR 33041, 33045, June 26, 1995]



Sec. 513.220  Continuation of covered transactions.

    (a) Notwithstanding the debarment, suspension, proposed debarment 
under 48 CFR part 9, subpart 9.4, determination of ineligibility, or 
voluntary exclusion of any person by an agency, agencies and 
participants may continue covered transactions in existence at the time 
the person was debarred, suspended, proposed for debarment under 48 CFR 
part 9, subpart 9.4, declared ineligible, or voluntarily excluded. A 
decision as to the type of termination action, if any, to be taken 
should be made only after thorough review to ensure the propriety of the 
proposed action.
    (b) Agencies and participants shall not renew or extend covered 
transactions (other than no-cost time extensions) with any person who is 
debarred, suspended, proposed for debarment under 48 CFR part 9, subpart 
9.4, ineligible or voluntary excluded, except as provided in Sec. 
513.215.

[60 FR 33041, 33045, June 26, 1995]

[[Page 128]]



Sec. 513.225  Failure to adhere to restrictions.

    (a) Except as permitted under Sec. 513.215 or Sec. 513.220, a 
participant shall not knowingly do business under a covered transaction 
with a person who is--
    (1) Debarred or suspended;
    (2) Proposed for debarment under 48 CFR part 9, subpart 9.4; or
    (3) Ineligible for or voluntarily excluded from the covered 
transaction.
    (b) Violation of the restriction under paragraph (a) of this section 
may result in disallowance of costs, annulment or termination of award, 
issuance of a stop work order, debarment or suspension, or other 
remedies as appropriate.
    (c) A participant may rely upon the certification of a prospective 
participant in a lower tier covered transaction that it and its 
principals are not debarred, suspended, proposed for debarment under 48 
CFR part 9, subpart 9.4, ineligible, or voluntarily excluded from the 
covered transaction (See appendix B of these regulations), unless it 
knows that the certification is erroneous. An agency has the burden of 
proof that a participant did knowingly do business with a person that 
filed an erroneous certification.

[60 FR 33041, 33045, June 26, 1995]



                           Subpart C_Debarment



Sec. 513.300  General.

    The debarring official may debar a person for any of the causes in 
Sec. 513.30, using procedures established in Sec. Sec. 513.310 through 
513.314. The existence of a cause for debarment, however, does not 
necessarily require that the person be debarred; the seriousness of the 
person's acts or omissions and any mitigating factors shall be 
considered in making any debarment decision.



Sec. 513.305  Causes for debarment.

    Debarment may be imposed in accordance with the provisions of 
Sec. Sec. 513.300 through 513.314 for:
    (a) Conviction of or civil judgment for:
    (1) Commission of fraud or a criminal offense in connection with 
obtaining, attempting to obtain, or performing a public or private 
agreement or transaction;
    (2) Violation of Federal or State antitrust statutes, including 
those proscribing price fixing between competitors, allocation of 
customers between competitors, and bid rigging;
    (3) Commission of embezzlement, theft, forgery, bribery, 
falsification or destruction of records, making false statements, 
receiving stolen property, making false claims, or obstruction of 
justice; or
    (4) Commission of any other offense indicating a lack of business 
integrity or business honesty that seriously and directly affects the 
present responsibility of a person.
    (b) Violation of the terms of a public agreement or transaction so 
serious as to affect the integrity of an agency program, such as:
    (1) A willful failure to perform in accordance with the terms of one 
or more public agreements or transactions;
    (2) A history of failure to perform or of unsatisfactory performance 
of one or more public agreements or transactions; or
    (3) A willful violation of a statutory or regulatory provision or 
requirement applicable to a public agreement or transaction.
    (c) Any of the following causes:
    (1) A nonprocurement debarment by any Federal agency taken before 
October 1, 1988, the effective date of these regulations, or a 
procurement debarment by any Federal agency taken pursuant to 48 CFR 
subpart 9.4;
    (2) Knowingly doing business with a debarred, suspended, ineligible, 
or voluntarily excluded person, in connection with a covered 
transaction, except as permitted in Sec. 513.215 or Sec. 513.220;
    (3) Failure to pay a single substantial debt, or a number of 
outstanding debts (including disallowed costs and overpayments, but not 
including sums owed the Federal Government under the Internal Revenue 
Code) owed to any Federal agency or instrumentality, provided the debt 
is uncontested by the debtor or, if contested, provided that the 
debtor's legal and administrative remedies have been exhausted;

[[Page 129]]

    (4) Violation of a material provision of a voluntary exclusion 
agreement entered into under Sec. 513.315 or of any settlement of a 
debarment or suspension action; or
    (5) Violation of any requirement of subpart F of this part, relating 
to providing a drug-free workplace, as set forth in Sec. 513.615 of 
this part.
    (d) Any other cause of so serious or compelling a nature that it 
affects the present responsibility of a person.

[53 FR 19179, 19204, May 26, 1988, as amended at 54 FR 4950, 4955, Jan. 
31, 1989]



Sec. 513.310  Procedures.

    Broadcasting Board of Governors shall process debarment actions as 
informally as practicable, consistent with the principles of fundamental 
fairness, using the procedures in Sec. Sec. 513.311 through 513.314.



Sec. 513.311  Investigation and referral.

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



Sec. 513.312  Notice of proposed debarment.

    A debarment proceeding shall be initiated by notice to the 
respondent advising:
    (a) That debarment is being considered;
    (b) Of the reasons for the proposed debarment in terms sufficient to 
put the respondent on notice of the conduct or transaction(s) upon which 
it is based;
    (c) Of the cause(s) relied upon under Sec. 513.305 for proposing 
debarment;
    (d) Of the provisions of Sec. 513.311 through Sec. 513.314, and 
any other Broadcasting Board of Governors procedures, if applicable, 
governing debarment decisionmaking; and
    (e) Of the potential effect of a debarment.



Sec. 513.313  Opportunity to contest proposed debarment.

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



Sec. 513.314  Debarring official's decision.

    (a) No additional proceedings necessary. In actions based upon a 
conviction or civil judgment, or in which there is no genuine dispute 
over material facts, the debarring official shall make a decision on the 
basis of all the information in the administrative record, including any 
submission made by the respondent. The decision shall be made within 45 
days after receipt of any information and argument submitted by the 
respondent, unless the debarring official extends this period for good 
cause.
    (b) Additional proceedings necessary. (1) In actions in which 
additional proceedings are necessary to determine disputed material 
facts, written findings of fact shall be prepared. The debarring 
official shall base the decision on the facts as found, together with 
any information and argument submitted by the respondent and any other 
information in the administrative record.
    (2) The debarring official may refer disputed material facts to 
another official for findings of fact. The debarring official may reject 
any such findings, in whole or in part, only after specifically 
determining them to be arbitrary and capricious or clearly erroneous.
    (3) The debarring official's decision shall be made after the 
conclusion of

[[Page 130]]

the proceedings with respect to disputed facts.
    (c)(1) Standard of proof. In any debarment action, the cause for 
debarment must be established by a preponderance of the evidence. Where 
the proposed debarment is based upon a conviction or civil judgment, the 
standard shall be deemed to have been met.
    (2) Burden of proof. The burden of proof is on the agency proposing 
debarment.
    (d) Notice of debarring official's decision. (1) If the debarring 
official decides to impose debarment, the respondent shall be given 
prompt notice:
    (i) Referring to the notice of proposed debarment;
    (ii) Specifying the reasons for debarment;
    (iii) Stating the period of debarment, including effective dates; 
and
    (iv) Advising that the debarment is effective for covered 
transactions throughout the executive branch of the Federal Government 
unless an agency head or an authorized designee makes the determination 
referred to in Sec. 513.215.
    (2) If the debarring official decides not to impose debarment, the 
respondent shall be given prompt notice of that decision. A decision not 
to impose debarment shall be without prejudice to a subsequent 
imposition of debarment by any other agency.



Sec. 513.315  Settlement and voluntary exclusion.

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



Sec. 513.320  Period of debarment.

    (a) Debarment shall be for a period commensurate with the 
seriousness of the cause(s). If a suspension precedes a debarment, the 
suspension period shall be considered in determining the debarment 
period.
    (1) Debarment for causes other than those related to a violation of 
the requirements of subpart F of this part generally should not exceed 
three years. Where circumstances warrant, a longer period of debarment 
may be imposed.
    (2) In the case of a debarment for a violation of the requirements 
of subpart F of this part (see 513.305(c)(5)), the period of debarment 
shall not exceed five years.
    (b) The debarring official may extend an existing debarment for an 
additional period, if that official determines that an extension is 
necessary to protect the public interest. However, a debarment may not 
be extended solely on the basis of the facts and circumstances upon 
which the initial debarment action was based. If debarment for an 
additional period is determined to be necessary, the procedures of 
Sec. Sec. 513.311 through 513.314 shall be followed to extend the 
debarment.
    (c) The respondent may request the debarring official to reverse the 
debarment decision or to reduce the period or scope of debarment. Such a 
request shall be in writing and supported by documentation. The 
debarring official may grant such a request for reasons including, but 
not limited to:
    (1) Newly discovered material evidence;
    (2) Reversal of the conviction or civil judgment upon which the 
debarment was based;
    (3) Bona fide change in ownership or management;
    (4) Elimination of other causes for which the debarment was imposed; 
or
    (5) Other reasons the debarring official deems appropriate.

[53 FR 19179, 19204, May 26, 1988, as amended at 54 FR 4950, 4955, Jan. 
31, 1989]



Sec. 513.325  Scope of debarment.

    (a) Scope in general. (1) Debarment of a person under these 
regulations constitutes debarment of all its divisions and other 
organizational elements from all covered transactions, unless the 
debarment decision is limited by its terms to one or more specifically 
identified individuals, divisions or other organizational elements or to 
specific types of transactions.
    (2) The debarment action may include any affiliate of the 
participant that is specifically named and given notice of the proposed 
debarment and

[[Page 131]]

an opportunity to respond (see Sec. Sec. 513.311 through 513.314).
    (b) Imputing conduct. For purposes of determining the scope of 
debarment, conduct may be imputed as follows:
    (1) Conduct imputed to participant. The fraudulent, criminal or 
other seriously improper conduct of any officer, director, shareholder, 
partner, employee, or other individual associated with a participant may 
be imputed to the participant when the conduct occurred in connection 
with the individual's performance of duties for or on behalf of the 
participant, or with the participant's knowledge, approval, or 
acquiescence. The participant's acceptance of the benefits derived from 
the conduct shall be evidence of such knowledge, approval, or 
acquiescence.
    (2) Conduct imputed to individuals associated with participant. The 
fraudulent, criminal, or other seriously improper conduct of a 
participant may be imputed to any officer, director, shareholder, 
partner, employee, or other individual associated with the participant 
who participated in, knew of, or had reason to know of the participant's 
conduct.
    (3) Conduct of one participant imputed to other participants in a 
joint venture. The fraudulent, criminal, or other seriously improper 
conduct of one participant in a joint venture, grant pursuant to a joint 
application, or similar arrangement may be imputed to other participants 
if the conduct occurred for or on behalf of the joint venture, grant 
pursuant to a joint application, or similar arrangement may be imputed 
to other participants if the conduct occurred for or on behalf of the 
joint venture, grant pursuant to a joint application, or similar 
arrangement or with the knowledge, approval, or acquiescence of these 
participants. Acceptance of the benefits derived from the conduct shall 
be evidence of such knowledge, approval, or acquiescence.



                          Subpart D_Suspension



Sec. 513.400  General.

    (a) The suspending official may suspend a person for any of the 
causes in Sec. 513.405 using procedures established in Sec. Sec. 
513.410 through 513.413.
    (b) Suspension is a serious action to be imposed only when:
    (1) There exists adequate evidence of one or more of the causes set 
out in Sec. 513.405, and
    (2) Immediate action is necessary to protect the public interest.
    (c) In assessing the adequacy of the evidence, the Board should 
consider how much information is available, how credible it is given the 
circumstances, whether or not important allegations are corroborated, 
and what inferences can reasonably be drawn as a result. This assessment 
should include an examination of basic documents such as grants, 
cooperative agreements, loan authorizations, and contracts.



Sec. 513.405  Causes for suspension.

    (a) Suspension may be imposed in accordance with the provisions of 
Sec. Sec. 513.400 through 513.413 upon adequate evidence:
    (1) To suspect the commission of an offense listed in Sec. 
513.305(a); or
    (2) That a cause for debarment under Sec. 513.305 may exist.
    (b) Indictment shall constitute adequate evidence for purposes of 
suspension actions.



Sec. 513.410  Procedures.

    (a) Investigation and referral. Information concerning the existence 
of a cause for suspension from any source shall be promptly reported, 
investigated, and referred, when appropriate, to the suspending official 
for consideration. After consideration, the suspending official may 
issue a notice of suspension.
    (b) Decisionmaking process. Broadcasting Board of Governors shall 
process suspension actions as informally as practicable, consistent with 
principles of fundamental fairness, using the procedures in Sec. 
513.411 through Sec. 513.413.



Sec. 513.411  Notice of suspension.

    When a respondent is suspended, notice shall immediately be given:
    (a) That suspension has been imposed;
    (b) That the suspension is based on an indictment, conviction, or 
other adequate evidence that the respondent has committed irregularities 
seriously

[[Page 132]]

reflecting on the propriety of further Federal Government dealings with 
the respondent;
    (c) Describing any such irregularities in terms sufficient to put 
the respondent on notice without disclosing the Federal Government's 
evidence;
    (d) Of the cause(s) relied upon under Sec. 513.405 for imposing 
suspension;
    (e) That the suspension is for a temporary period pending the 
completion of an investigation or ensuing legal, debarment, or Program 
Fraud Civil Remedies Act proceedings;
    (f) Of the provisions of Sec. 513.411 through Sec. 513.413 and any 
other Broadcasting Board of Governors procedures, if applicable, 
governing suspension decisionmaking; and
    (g) Of the effect of the suspension.



Sec. 513.412  Opportunity to contest suspension.

    (a) Submission in opposition. Within 30 days after receipt of the 
notice of suspension, the respondent may submit, in person, in writing, 
or through a representative, information and argument in opposition to 
the suspension.
    (b) Additional proceedings as to disputed material facts. (1) If the 
suspending official finds that the respondent's submission in opposition 
raises a genuine dispute over facts material to the suspension, 
respondent(s) shall be afforded an opportunity to appear with a 
representative, submit documentary evidence, present witnesses, and 
confront any witness the Board presents, unless:
    (i) The action is based on an indictment, conviction or civil 
judgment, or
    (ii) A determination is made, on the basis of Department of Justice 
advice, that the substantial interests of the Federal Government in 
pending or contemplated legal proceedings based on the same facts as the 
suspension would be prejudiced.
    (2) A transcribed record of any additional proceedings shall be 
prepared and made available at cost to the respondent, upon request, 
unless the respondent and the Board, by mutual agreement, waive the 
requirement for a transcript.



Sec. 513.413  Suspending official's decision.

    The suspending official may modify or terminate the suspension (for 
example, see Sec. 513.320(c) for reasons for reducing the period or 
scope of debarment) or may leave it in force. However, a decision to 
modify or terminate the suspension shall be without prejudice to the 
subsequent imposition of suspension by any other agency or debarment by 
any agency. The decision shall be rendered in accordance with the 
following provisions:
    (a) No additional proceedings necessary. In actions: based on an 
indictment, conviction, or civil judgment; in which there is no genuine 
dispute over material facts; or in which additional proceedings to 
determine disputed material facts have been denied on the basis of 
Department of Justice advice, the suspending official shall make a 
decision on the basis of all the information in the administrative 
record, including any submission made by the respondent. The decision 
shall be made within 45 days after receipt of any information and 
argument submitted by the respondent, unless the suspending official 
extends this period for good cause.
    (b) Additional proceedings necessary. (1) In actions in which 
additional proceedings are necessary to determine disputed material 
facts, written findings of fact shall be prepared. The suspending 
official shall base the decision on the facts as found, together with 
any information and argument submitted by the respondent and any other 
information in the administrative record.
    (2) The suspending official may refer matters involving disputed 
material facts to another official for findings of fact. The suspending 
official may reject any such findings, in whole or in part, only after 
specifically determining them to be arbitrary or capricious or clearly 
erroneous.
    (c) Notice of suspending official's decision. Prompt written notice 
of the suspending official's decision shall be sent to the respondent.



Sec. 513.415  Period of suspension.

    (a) Suspension shall be for a temporary period pending the 
completion

[[Page 133]]

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



Sec. 513.420  Scope of suspension.

    The scope of a suspension is the same as the scope of a debarment 
(see Sec. 513.325), except that the procedures of Sec. Sec. 513.410 
through 513.413 shall be used in imposing a suspension.



        Subpart E_Responsibilities of GSA, Board and Participants



Sec. 513.500  GSA responsibilities.

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



Sec. 513.505  Broadcasting Board of Governors responsibilities.

    (a) The Board shall provide GSA with current information concerning 
debarments, suspension, determinations of ineligibility, and voluntary 
exclusions it has taken. Until February 18, 1989, the Board shall also 
provide GSA and OMB with information concerning all transactions in 
which Broadcasting Board of Governors has granted exceptions under Sec. 
513.215 permitting participation by debarred, suspended, or voluntarily 
excluded persons.
    (b) Unless an alternative schedule is agreed to by GSA, the Board 
shall advise GSA of the information set forth in Sec. 513.500(b) and of 
the exceptions granted under Sec. 513.215 within five working days 
after taking such actions.
    (c) The Board shall direct inquiries concerning listed persons to 
the agency that took the action.
    (d) Board officials shall check the Nonprocurement List before 
entering covered transactions to determine whether a participant in a 
primary transaction is debarred, suspended, ineligible, or voluntarily 
excluded (Tel. ).
    (e) Board officials shall check the Nonprocurement List before 
approving principals or lower tier participants where Board approval of 
the principal or lower tier participant is required under the terms of 
the transaction, to determine whether such principals or participants 
are debarred, suspended, ineligible, or voluntarily excluded.



Sec. 513.510  Participants' responsibilities.

    (a) Certification by participants in primary covered transactions. 
Each participant shall submit the certification in appendix A to this 
part for it and its principals at the time the participant submits its 
proposal in connection with a primary covered transaction, except that 
States need only complete such certification as to their principals. 
Participants may decide the method and frequency by which they determine 
the eligibility of their principals. In

[[Page 134]]

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



           Subpart F_Drug-Free Workplace Requirements (Grants)

    Source: 55 FR 21688, 21694, May 25, 1990, unless otherwise noted.



Sec. 513.600  Purpose.

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



Sec. 513.605  Definitions.

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

[[Page 135]]

grant and who are on the grantee's payroll.


This definition does not include workers not on the payroll of the 
grantee (e.g., volunteers, even if used to meet a matching requirement; 
consultants or independent contractors not on the payroll; or employees 
of subrecipients or subcontractors in covered workplaces);
    (6) Federal agency or agency means any United States executive 
department, military department, government corporation, government 
controlled corporation, any other establishment in the executive branch 
(including the Executive Office of the President), or any independent 
regulatory agency;
    (7) Grant means an award of financial assistance, including a 
cooperative agreement, in the form of money, or property in lieu of 
money, by a Federal agency directly to a grantee. The term grant 
includes block grant and entitlement grant programs, whether or not 
exempted from coverage under the grants management government-wide 
common rule on uniform administrative requirements for grants and 
cooperative agreements. The term does not include technical assistance 
that provides services instead of money, or other assistance in the form 
of loans, loan guarantees, interest subsidies, insurance, or direct 
appropriations; or any veterans' benefits to individuals, i.e., any 
benefit to veterans, their families, or survivors by virtue of the 
service of a veteran in the Armed Forces of the United States;
    (8) Grantee means a person who applies for or receives a grant 
directly from a Federal agency (except another Federal agency);
    (9) Individual means a natural person;
    (10) State means any of the States of the United States, the 
District of Columbia, the Commonwealth of Puerto Rico, any territory or 
possession of the United States, or any agency of a State, exclusive of 
institutions of higher education, hospitals, and units of local 
government. A State instrumentality will be considered part of the State 
government if it has a written determination from a State government 
that such State considers the instrumentality to be an agency of the 
State government.



Sec. 513.610  Coverage.

    (a) This subpart applies to any grantee of the Board.
    (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 Board head 
or his/her designee.
    (c) The provisions of subparts A, B, C, D and E of this part apply 
to matters covered by this subpart, except where specifically modified 
by this subpart. In the event of any conflict between provisions of this 
subpart and other provisions of this part, the provisions of this 
subpart are deemed to control with respect to the implementation of 
drug-free workplace requirements concerning grants.



Sec. 513.615  Grounds for suspension of payments, suspension or termination 

of grants, or suspension or debarment.

    A grantee shall be deemed in violation of the requirements of this 
subpart if the Board head or his or her official designee determines, in 
writing, that--
    (a) The grantee has made a false certification under Sec. 513.630;
    (b) With respect to a grantee other than an individual--
    (1) The grantee has violated the certification by failing to carry 
out the requirements of paragraphs (A)(a)-(g) and/or (B) of the 
certification (Alternate I to appendix C) or
    (2) Such a number of employees of the grantee have been convicted of 
violations of criminal drug statutes for violations occurring in the 
workplace as to indicate that the grantee has failed to make a good 
faith effort to provide a drug-free workplace.
    (c) With respect to a grantee who is an individual--
    (1) The grantee has violated the certification by failing to carry 
out its requirements (Alternate II to appendix C); or

[[Page 136]]

    (2) The grantee is convicted of a criminal drug offense resulting 
from a violation occurring during the conduct of any grant activity.



Sec. 513.620  Effect of violation.

    (a) In the event of a violation of this subpart as provided in Sec. 
513.615, and in accordance with applicable law, the grantee shall be 
subject to one or more of the following actions:
    (1) Suspension of payments under the grant;
    (2) Suspension or termination of the grant; and
    (3) Suspension or debarment of the grantee under the provisions of 
this part.
    (b) Upon issuance of any final decision under this part requiring 
debarment of a grantee, the debarred grantee shall be ineligible for 
award of any grant from any Federal agency for a period specified in the 
decision, not to exceed five years (see Sec. 513.320(a)(2) of this 
part).



Sec. 513.625  Exception provision.

    The Board 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 
Board head determines that such a waiver would be in the public 
interest. This exception authority cannot be delegated to any other 
official.



Sec. 513.630  Certification requirements and procedures.

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

[[Page 137]]

in any case by a date prior to the date on which performance is expected 
to be completed.
    (2) For a grant of 30 days or more performance duration, grantees 
shall have this policy statement and program in place within 30 days 
after award.
    (3) Where extraordinary circumstances warrant for a specific grant, 
the grant officer may determine a different date on which the policy 
statement and program shall be in place.



Sec. 513.635  Reporting of and employee sanctions for convictions of criminal 

drug offenses.

    (a) When a grantee other than an individual is notified that an 
employee has been convicted for a violation of a criminal drug statute 
occurring in the workplace, it shall take the following actions:
    (1) Within 10 calendar days of receiving notice of the conviction, 
the grantee shall provide written notice, including the convicted 
employee's position title, to every grant officer, or other designee on 
whose grant activity the convicted employee was working, unless a 
Federal agency has designated a central point for the receipt of such 
notifications. Notification shall include the identification number(s) 
for each of the Federal agency's affected grants.
    (2) Within 30 calendar days of receiving notice of the conviction, 
the grantee shall do the following with respect to the employee who was 
convicted.
    (i) Take appropriate personnel action against the employee, up to 
and including termination, consistent with requirements of the 
Rehabilitation Act of 1973, as amended; or
    (ii) Require the employee to participate satisfactorily in a drug 
abuse assistance or rehabilitation program approved for such purposes by 
a Federal, State, or local health, law enforcement, or other appropriate 
agency.
    (b) A grantee who is an individual who is convicted for a violation 
of a criminal drug statute occurring during the conduct of any grant 
activity shall report the conviction, in writing, within 10 calendar 
days, to his or her Federal agency grant officer, or other designee, 
unless the Federal agency has designated a central point for the receipt 
of such notices. Notification shall include the identification number(s) 
for each of the Federal agency's affected grants.

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

 Appendix A to Part 513--Certification Regarding Debarment, Suspension, 
     and Other Responsibility Matters--Primary Covered Transactions

                     Instructions for Certification

    1. By signing and submitting this proposal, the prospective primary 
participant is providing the certification set out below.
    2. The inability of a person to provide the certification required 
below will not necessarily result in denial of participation in this 
covered transaction. The prospective participant shall submit an 
explanation of why it cannot provide the certification set out below. 
The certification or explanation will be considered in connection with 
the department or Board's determination whether to enter into this 
transaction. However, failure of the prospective primary participant to 
furnish a certification or an explanation shall disqualify such person 
from participation in this transaction.
    3. The certification in this clause is a material representation of 
fact upon which reliance was placed when the department or Board 
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 Board may terminate this transaction for 
cause or default.
    4. The prospective primary participant shall provide immediate 
written notice to the department or Board to which this proposal is 
submitted if at any time the prospective primary participant learns that 
its certification was erroneous when submitted or has become erroneous 
by reason of changed circumstances.
    5. The terms covered transaction, debarred, suspended, ineligible, 
lower tier covered transaction, participant, person, primary covered 
transaction, principal, proposal, and voluntarily excluded, as used in 
this clause, have the meanings set out in the Definitions and Coverage 
sections of the rules implementing Executive Order 12549. You may 
contact the department or Board to which this proposal is being 
submitted for assistance in obtaining a copy of those regulations.
    6. The prospective primary participant agrees by submitting this 
proposal that, should the proposed covered transaction be entered into, 
it shall not knowingly enter

[[Page 138]]

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 Board 
entering into this transaction.
    7. The prospective primary participant further agrees by submitting 
this proposal that it will include the clause titled ``Certification 
Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion-
Lower Tier Covered Transaction,'' provided by the department or Board 
entering into this covered transaction, without modification, in all 
lower tier covered transactions and in all solicitations for lower tier 
covered transactions.
    8. A participant in a covered transaction may rely upon a 
certification of a prospective participant in a lower tier covered 
transaction that it is not proposed for debarment under 48 CFR part 9, 
subpart 9.4, debarred, suspended, ineligible, or voluntarily excluded 
from the covered transaction, unless it knows that the certification is 
erroneous. A participant may decide the method and frequency by which it 
determines the eligibility of its principals. Each participant may, but 
is not required to, check the List of Parties Excluded from Federal 
Procurement and Nonprocurement Programs.
    9. Nothing contained in the foregoing shall be construed to require 
establishment of a system of records in order to render in good faith 
the certification required by this clause. The knowledge and information 
of a participant is not required to exceed that which is normally 
possessed by a prudent person in the ordinary course of business 
dealings.
    10. Except for transactions authorized under paragraph 6 of these 
instructions, if a participant in a covered transaction knowingly enters 
into a lower tier covered transaction with a person who is proposed for 
debarment under 48 CFR part 9, subpart 9.4, suspended, debarred, 
ineligible, or voluntarily excluded from participation in this 
transaction, in addition to other remedies available to the Federal 
Government, the department or Board may terminate this transaction for 
cause or default.

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

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

[60 FR 33042, 33045, June 26, 1995]

 Appendix B to Part 513--Certification Regarding Debarment, Suspension, 
 Ineligibility and Voluntary Exclusion--Lower Tier Covered Transactions

                     Instructions for Certification

    1. By signing and submitting this proposal, the prospective lower 
tier participant is providing the certification set out below.
    2. The certification in this clause is a material representation of 
fact upon which reliance was placed when this transaction was entered 
into. If it is later determined that the prospective lower tier 
participant knowingly rendered an erroneous certification, in addition 
to other remedies available to the Federal Government the department or 
Board with which this transaction originated may pursue available 
remedies, including suspension and/or debarment.
    3. The prospective lower tier participant shall provide immediate 
written notice to the person to which this proposal is submitted if at 
any time the prospective lower tier participant learns that its 
certification was erroneous when submitted or had become erroneous by 
reason of changed circumstances.
    4. The terms covered transaction, debarred, suspended, ineligible, 
lower tier covered transaction, participant, person, primary covered 
transaction, principal, proposal, and voluntarily excluded, as used in 
this clause, have the meaning set out in the Definitions and

[[Page 139]]

Coverage sections of rules implementing Executive Order 12549. You may 
contact the person to which this proposal is submitted for assistance in 
obtaining a copy of those regulations.
    5. The prospective lower tier participant agrees by submitting this 
proposal that, should the proposed covered transaction be entered into, 
it shall not knowingly enter into any lower tier covered transaction 
with a person who is proposed for debarment under 48 CFR part 9, subpart 
9.4, debarred, suspended, declared ineligible, or voluntarily excluded 
from participation in this covered transaction, unless authorized by the 
department or Board with which this transaction originated.
    6. The prospective lower tier participant further agrees by 
submitting this proposal that it will include this clause titled 
``Certification Regarding Debarment, Suspension, Ineligibility and 
Voluntary Exclusion-Lower Tier Covered Transaction,'' without 
modification, in all lower tier covered transactions and in all 
solicitations for lower tier covered transactions.
    7. A participant in a covered transaction may rely upon a 
certification of a prospective participant in a lower tier covered 
transaction that it is not proposed for debarment under 48 CFR part 9, 
subpart 9.4, debarred, suspended, ineligible, or voluntarily excluded 
from covered transactions, unless it knows that the certification is 
erroneous. A participant may decide the method and frequency by which it 
determines the eligibility of its principals. Each participant may, but 
is not required to, check the List of Parties Excluded from Federal 
Procurement and Nonprocurement Programs.
    8. Nothing contained in the foregoing shall be construed to require 
establishment of a system of records in order to render in good faith 
the certification required by this clause. The knowledge and information 
of a participant is not required to exceed that which is normally 
possessed by a prudent person in the ordinary course of business 
dealings.
    9. Except for transactions authorized under paragraph 5 of these 
instructions, if a participant in a covered transaction knowingly enters 
into a lower tier covered transaction with a person who is proposed for 
debarment under 48 CFR part 9, subpart 9.4, suspended, debarred, 
ineligible, or voluntarily excluded from participation in this 
transaction, in addition to other remedies available to the Federal 
Government, the department or Board with which this transaction 
originated may pursue available remedies, including suspension and/or 
debarment.

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

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

[60 FR 33042, 33045, June 26, 1995]

  Appendix C to Part 513--Certification Regarding Drug-Free Workplace 
                              Requirements

                     Instructions for Certification

    1. By signing and/or submitting this application or grant agreement, 
the grantee is providing the certification set out below.
    2. The certification set out below is a material representation of 
fact upon which reliance is placed when the Board 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 Board, in addition to any other remedies available to 
the Federal Government, may take action authorized under the Drug-Free 
Workplace Act.
    3. For grantees other than individuals, Alternate I applies.
    4. For grantees who are individuals, Alternate II applies.
    5. Workplaces under grants, for grantees other than individuals, 
need not be identified on the certification. If known, they may be 
identified in the grant application. If the grantee does not identify 
the workplaces at the time of application, or upon award, if there is no 
application, the grantee must keep the identity of the workplace(s) on 
file in its office and make the information available for Federal 
inspection. Failure to identify all known workplaces constitutes a 
violation of the grantee's drug-free workplace requirements.
    6. Workplace identifications must include the actual address of 
buildings (or parts of buildings) or other sites where work under the 
grant takes place. Categorical descriptions may be used (e.g., all 
vehicles of a mass transit authority or State highway department while 
in operation, State employees in each local unemployment office, 
performers in concert halls or radio studios).
    7. If the workplace identified to the Board changes during the 
performance of the grant, the grantee shall inform the Board of the

[[Page 140]]

change(s), if it previously identified the workplaces in question (see 
paragraph five).
    8. Definitions of terms in the Nonprocurement Suspension and 
Debarment common rule and Drug-Free Workplace common rule apply to this 
certification. Grantees' attention is called, in particular, to the 
following definitions from these rules:
    Controlled substance means a controlled substance in Schedules I 
through V of the Controlled Substances Act (21 U.S.C. 812) and as 
further defined by regulation (21 CFR 1308.11 through 1308.15);
    Conviction means a finding of guilt (including a plea of nolo 
contendere) or imposition of sentence, or both, by any judicial body 
charged with the responsibility to determine violations of the Federal 
or State criminal drug statutes;
    Criminal drug statute means a Federal or non-Federal criminal 
statute involving the manufacture, distribution, dispensing, use, or 
possession of any controlled substance;
    Employee means the employee of a grantee directly engaged in the 
performance of work under a grant, including: (i) All direct charge 
employees; (ii) All indirect charge employees unless their impact or 
involvement is insignificant to the performance of the grant; and, (iii) 
Temporary personnel and consultants who are directly engaged in the 
performance of work under the grant and who are on the grantee's 
payroll. This definition does not include workers not on the payroll of 
the grantee (e.g., volunteers, even if used to meet a matching 
requirement; consultants or independent contractors not on the grantee's 
payroll; or employees of subrecipients or subcontractors in covered 
workplaces.

        Certification Regarding Drug-Free Workplace Requirements

             Alternate I. (Grantees Other Than Individuals)

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

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

Check [squ] if there are workplaces on file that are not identified 
here.

              Alternate II. (Grantees Who Are Individuals)

    (a) The grantee certifies that, as a condition of the grant, he or 
she will not engage in the unlawful manufacture, distribution,

[[Page 141]]

dispensing, possession, or use of a controlled substance in conducting 
any activity with the grant;
    (b) If convicted of a criminal drug offense resulting from a 
violation occurring during the conduct of any grant activity, he or she 
will report the conviction, in writing, within 10 calendar days of the 
conviction, to every grant officer or other designee, unless the Federal 
agency designates a central point for the receipt of such notices. When 
notice is made to such a central point, it shall include the 
identification number(s) of each affected grant.

[55 FR 21690, 21694, May 25, 1990]



PART 518_UNIFORM ADMINISTRATIVE REQUIREMENTS FOR GRANTS AND AGREEMENTS WITH 

INSTITUTIONS OF HIGHER EDUCATION, HOSPITALS, AND OTHER NON-PROFIT 

ORGANIZATIONS--Table of Contents




                            Subpart A_General

Sec.
518.1 Purpose.
518.2 Definitions.
518.3 Effect on other issuances.
518.4 Deviations.
518.5 Subawards.

                    Subpart B_Pre-Award Requirements

518.10 Purpose.
518.11 Pre-award policies.
518.12 Forms for applying for Federal assistance.
518.13 Debarment and suspension.
518.14 Special award conditions.
518.15 Metric system of measurement.
518.16 Resource Conservation and Recovery Act.
518.17 Certifications and representations.

                    Subpart C_Post-Award Requirements

                    Financial and Program Management

518.20 Purpose of financial and program management.
518.21 Standards for financial management systems.
518.22 Payment.
518.23 Cost sharing or matching.
518.24 Program income.
518.25 Revision of budget and program plans.
518.26 Non-Federal audits.
518.27 Allowable costs.
518.28 Period of availability of funds.

                           Property Standards

518.30 Purpose of property standards.
518.31 Insurance coverage.
518.32 Real property.
518.33 Federally-owned and exempt property.
518.34 Equipment.
518.35 Supplies and other expendable property.
518.36 Intangible property.
518.37 Property trust relationship.

                          Procurement Standards

518.40 Purpose of procurement standards.
518.41 Recipient responsibilities.
518.42 Codes of conduct.
518.43 Competition.
518.44 Procurement procedures.
518.45 Cost and price analysis.
518.46 Procurement records.
518.47 Contract administration.
518.48 Contract provisions.

                           Reports and Records

518.50 Purpose of reports and records.
518.51 Monitoring and reporting program performance.
518.52 Financial reporting.
518.53 Retention and access requirements for records.

                       Termination and Enforcement

518.60 Purpose of termination and enforcement.
518.61 Termination.
518.62 Enforcement.

                 Subpart D_After-the-Award Requirements

518.70 Purpose.
518.71 Closeout procedures.
518.72 Subsequent adjustments and continuing responsibilities.
518.73 Collection of amounts due.

Appendix A to Part 518--Contract Provisions

    Authority: 22 U.S.C. 2658; 31 U.S.C. 503 and 1111; Reorganization 
Plan No. 2 of 1977, 42 FR 62461, 3 CFR, 1977 Comp. p. 200; E.O. 12048, 
43 FR 13361, 3 CFR, 1978 Comp. p. 168.

    Source: 59 FR 39440, Aug. 3, 1994, unless otherwise noted.



                            Subpart A_General



Sec. 518.1  Purpose.

    This part establishes uniform administrative requirements for 
Federal grants and agreements awarded to institutions of higher 
education, hospitals, and other non-profit organizations. Federal 
awarding agencies shall not impose additional or inconsistent 
requirements, except as provided in Sec. Sec. 518.4 and 518.14 or 
unless specifically

[[Page 142]]

required by Federal statute or executive order. Non-profit organizations 
that implement Federal programs for the States are also subject to State 
requirements.



Sec. 518.2  Definitions.

    (a) Accrued expenditures means the charges incurred by the recipient 
during a given period requiring the provision of funds for:
    (1) Goods and other tangible property received;
    (2) Services performed by employees, contractors, subrecipients, and 
other payees; and,
    (3) Other amounts becoming owed under programs for which no current 
services or performance is required.
    (b) Accrued income means the sum of:
    (1) Earnings during a given period from:
    (i) Services performed by the recipient, and
    (ii) Goods and other tangible property delivered to purchasers; and
    (2) Amounts becoming owed to the recipient for which no current 
services or performance is required by the recipient.
    (c) Acquisition cost of equipment means the net invoice price of the 
equipment, including the cost of modifications, attachments, 
accessories, or auxiliary apparatus necessary to make the property 
usable for the purpose for which it was acquired. Other charges, such as 
the cost of installation, transportation, taxes, duty or protective in-
transit insurance, shall be included or excluded from the unit 
acquisition cost in accordance with the recipient's regular accounting 
practices.
    (d) Advance means a payment made by Treasury check or other 
appropriate payment mechanism to a recipient upon its request either 
before outlays are made by the recipient or through the use of 
predetermined payment schedules.
    (e) Award means financial assistance that provides support or 
stimulation to accomplish a public purpose. Awards include grants and 
other agreements in the form of money or property in lieu of money, by 
the Federal Government to an eligible recipient. The term does not 
include: technical assistance, which provides services instead of money; 
other assistance in the form of loans, loan guarantees, interest 
subsidies, or insurance; direct payments of any kind to individuals; 
and, contracts which are required to be entered into and administered 
under procurement laws and regulations.
    (f) Cash contributions means the recipient's cash outlay, including 
the outlay of money contributed to the recipient by third parties.
    (g) Closeout means the process by which a Federal awarding agency 
determines that all applicable administrative actions and all required 
work of the award have been completed by the recipient and Federal 
awarding agency.
    (h) Contract means a procurement contract under an award or 
subaward, and a procurement subcontract under a recipient's or 
subrecipient's contract.
    (i) Cost sharing or matching means that portion of project or 
program costs not borne by the Federal Government.
    (j) Date of completion means the date on which all work under an 
award is completed or the date on the award document, or any supplement 
or amendment thereto, on which Federal sponsorship ends.
    (k) Disallowed costs means those charges to an award that the 
Federal awarding agency determines to be unallowable, in accordance with 
the applicable Federal cost principles or other terms and conditions 
contained in the award.
    (l) Equipment means tangible nonexpendable personal property 
including exempt property charged directly to the award having a useful 
life or more than one year and an acquisition cost of $5,000 or more per 
unit. However, consistent with recipient policy, lower limits may be 
established.
    (m) Excess property means property under the control of any Federal 
awarding agency that, as determined by the head thereof, is no longer 
required for its needs or the discharge of its responsibilities.
    (n) Exempt property means tangible personal property acquired in 
whole or in part with Federal funds, where the Federal awarding agency 
has statutory authority to vest title in the recipient

[[Page 143]]

without further obligation to the Federal Government. An example of 
exempt property authority is contained in the Federal Grant and 
Cooperative Agreement Act (31 U.S.C. 6306), for property acquired under 
an award to conduct basic or applied research by a non-profit 
institution or higher education or non-profit organization whose 
principal purpose is conducting scientific research.
    (o) Federal awarding agency means the Federal agency that provides 
an award to the recipient.
    (p) Federal funds authorized means the total amount of Federal funds 
obligated by the Federal Government for use by the recipient. This 
amount may include any authorized carryover of unobligated funds from 
prior funding periods when permitted by agency regulations or agency 
implementing instructions.
    (q) Federal share of real property, equipment, or supplies means 
that percentage of the property's acquisition costs and any improvement 
expenditures paid with Federal funds.
    (r) Funding period means the period of time when Federal funding is 
available for obligation by the recipient.
    (s) Intangible property and debt instruments means, but is not 
limited to, trademarks, copyrights, patents and patent applications and 
such property as loans, notes and other debt instruments, lease 
agreements, stock and other instruments of property ownership, whether 
considered tangible or intangible.
    (t) Obligations means the amounts of orders placed, contracts and 
grants awarded, services received and similar transactions during a 
given period that require payment by the recipient during the same or a 
future period.
    (u) Outlays or expenditures means charges made to the project or 
program. They may be reported on a cash or accrual basis. For reports 
prepared on a cash basis, outlays are the sum of cash disbursements for 
direct charges for goods and services, the amount of indirect expense 
charged, the value of third party in-kind contributions applied and the 
amount of cash advances and payments made to subrecipients. For reports 
prepared on an accrual basis, outlays are the sum of cash disbursements 
for direct charges for goods and services, the amount of indirect 
expense incurred, the value of in-kind contributions applied, and the 
net increase (or decrease) in the amounts owed by the recipient for 
goods and other property received, for services performed by employees, 
contractors, subrecipients and other payees and other amounts becoming 
owed under programs for which no current services or performance are 
required.
    (v) Personal property means property of any kind except real 
property. It may be tangible, having physical existence, or intangible, 
having no physical existence, such as copyrights, patents, or 
securities.
    (w) Prior approval means written approval by an authorized official 
evidencing prior consent.
    (x) Program income means gross income earned by the recipient that 
is directly generated by a supported activity or earned as a result of 
the award (see exclusions in Sec. Sec. 518.24 (e) and (h)). Program 
income includes, but is not limited to, income from fees for services 
performed, the use or rental of real or personal property acquired under 
federally-funded projects, the sale of commodities or items fabricated 
under an award, license fees and royalties on patents and copyrights, 
and interest on loans made with award funds. Interest earned on advances 
of Federal funds is not program income. Except as otherwise provided in 
Federal awarding agency regulations or the terms and conditions of the 
award, program income does not include the receipt of principal on 
loans, rebates, credits, discounts, etc., or interest earned on any of 
them.
    (y) Project costs means all allowable costs, as set forth in the 
applicable Federal cost principles, incurred by a recipient and the 
value of the contributions made by third parties in accomplishing the 
objectives of the award during the project period.
    (z) Project period means the period established in the award 
document during which Federal sponsorship begins and ends.
    (aa) Property means, unless otherwise stated, real property, 
equipment, intangible property and debt instruments.

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    (bb) Real property means land, including land improvements, 
structures and appurtenances thereto, but excludes movable machinery and 
equipment.
    (cc) Recipient means an organization receiving financial assistance 
directly from Federal awarding agencies to carry out a project or 
program. The term includes public and private institutions of higher 
education, public and private hospitals, and other quasi-public and 
private non-profit organizations such as, but not limited to, community 
action agencies, research institutes, educational associations, and 
health centers. The term may include commercial organizations, foreign 
or international organizations (such as agencies of the United Nations) 
which are recipients, subrecipients, or contractors or subcontractors of 
recipients or subrecipients at the discretion of the Federal awarding 
agency. The term does not include government-owned contractor-operated 
facilities or research centers providing continued support for mission-
oriented, large-scale programs that are government-owned or controlled, 
or are designated as federally-funded research and development centers.
    (dd) Research and development means all research activities, both 
basic and applied, and all development activities that are supported at 
universities, colleges, and other non-profit institutions. ``Research'' 
is defined as a systematic study directed toward fuller scientific 
knowledge or understanding of the subject studied. ``Development'' is 
the systematic use of knowledge and understanding gained from research 
directed toward the production of useful materials, devices, systems, or 
methods, including design and development of prototypes and processes. 
The term research also includes activities involving the training of 
individuals in research techniques where such activities utilize the 
same facilities as other research and development activities and where 
such activities are not included in the instruction function.
    (ee) Small awards means a grant or cooperative agreement not 
exceeding the small purchase threshold fixed at 41 U.S.C. 403(11) 
(currently $25,000).
    (ff) Subaward means an award of financial assistance in the form of 
money, or property in lieu of money, made under an award by a recipient 
to an eligible subrecipient or by a subrecipient to a lower tier 
subrecipient. The term includes financial assistance when provided by 
any legal agreement, even if the agreement is called a contract, but 
does not include procurement of goods and services nor does it include 
any form of assistance which is excluded from the definition of 
``award'' in paragraph (e) of this section.
    (gg) Subrecipient means the legal entity to which a subaward is made 
and which is accountable to the recipient for the use of the funds 
provided. The term may include foreign or international organizations 
(such as agencies of the United Nations) at the discretion of the 
Federal awarding agency.
    (hh) Supplies means all personal property excluding equipment, 
intangible property, and debt instruments as defined in this section, 
and inventions of a contractor conceived or first actually reduced to 
practice in the performance of work under a funding agreement (``subject 
inventions''), as defined in 37 CFR part 401, ``Rights to Inventions 
Made by Nonprofit Organizations and Small Business Firms Under 
Government Grants, Contracts, and Cooperative Agreements.''
    (ii) Suspension means an action by a Federal awarding agency that 
temporarily withdraws Federal sponsorship under an award, pending 
corrective action by the recipient or pending a decision to terminate 
the award by the Federal awarding agency. Suspension of an award is a 
separate action from suspension under Federal agency regulations 
implementing E.O.'s 12549 and 12689, ``Debarment and Suspension.''
    (jj) Termination means the cancellation of Federal sponsorship, in 
whole or in part, under an agreement at any time prior to the date of 
completion.
    (kk) Third party in-kind contributions means the value of non-cash 
contributions provided by non-Federal third parties. Third party in-kind 
contributions may be in the form of real property, equipment, supplies 
and other expendable property, and the value of goods and services 
directly benefiting

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and specifically identifiable to the project or program.
    (ll) Unliquidated obligations, for financial reports prepared on a 
cash basis, means the amount of obligations incurred by the recipient 
that have not been paid. For reports prepared on an accrued expenditure 
basis, they represent the amount of obligations incurred by the 
recipient for which an outlay has not been recorded.
    (mm) Unobligated balance means the portion of the funds authorized 
by the Federal awarding agency that has not been obligated by the 
recipient and is determined by deducting the cumulative obligations from 
the cumulative funds authorized.
    (nn) Unrecovered indirect cost means the difference between the 
amount awarded and the amount which could have been awarded under the 
recipient's approved negotiated indirect cost rate.
    (oo) Working capital advance means a procedure whereby funds are 
advanced to the recipient to cover its estimated disbursement needs for 
a given initial period.



Sec. 518.3  Effect on other issuances.

    For awards subject to this part, all administrative requirements of 
codified program regulations, program manuals, handbooks and other non-
regulatory materials which are inconsistent with the requirements of 
this part shall be superseded, except to the extent they are required by 
statute, or authorized in accordance with the deviations provision in 
Sec. 518.4.



Sec. 518.4  Deviations.

    The Office of Management and Budget (OMB) may grant exceptions for 
classes of grants or recipients subject to the requirements of this part 
when exceptions are not prohibited by statute. However, in the interest 
of maximum uniformity, exceptions from the requirements of this part 
shall be permitted only in unusual circumstances. Federal awarding 
agencies may apply more restrictive requirements to a class of 
recipients when approved by OMB. Federal awarding agencies may apply 
less restrictive requirements when awarding small awards, except for 
those requirements which are statutory. Exceptions on a case-by-case 
basis may also be made by Federal awarding agencies.



Sec. 518.5  Subawards.

    Unless sections of this part specifically exclude subrecipients from 
coverage, the provisions of this part shall be applied to subrecipients 
performing work under awards if such subrecipients are institutions of 
higher education, hospitals or other non-profit organizations. State and 
local government subrecipients are subject to the provisions of 
regulations implementing the grants management common rule, ``Uniform 
Administrative Requirements for Grants and Cooperative Agreements to 
State and Local Governments,'' published at 53 FR 9034 (3/11/88).



                    Subpart B_Pre-Award Requirements



Sec. 518.10  Purpose.

    Sections 518.11 through 518.17 prescribes forms and instructions and 
other pre-award matters to be used in applying for Federal awards.



Sec. 518.11  Pre-award policies.

    (a) Use of Grants and Cooperative Agreements, and Contracts. In each 
instance, the Federal awarding agency shall decide on the appropriate 
award instrument (i.e., grant, cooperative agreement, or contract). The 
Federal Grant and Cooperative Agreement Act (31 U.S.C. 6301-08) governs 
the use of grants, cooperative agreements and contracts. A grant or 
cooperative agreement shall be used only when the principal purpose of a 
transaction is to accomplish a public purpose of support or stimulation 
authorized by Federal statute. The statutory criterion for choosing 
between grants and cooperative agreements is that for the latter, 
``substantial involvement is expected between the executive agency and 
the State, local government, or other recipient when carrying out the 
activity contemplated in the agreement.'' Contracts shall be used when 
the principal purpose is acquisition of property or services for the 
direct benefit or use of the Federal Government.

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    (b) Public Notice and Priority Setting. Federal awarding agencies 
shall notify the public of its intended funding priorities for 
discretionary grant programs, unless funding priorities are established 
by Federal statute.



Sec. 518.12  Forms for applying for Federal assistance.

    (a) Federal awarding agencies shall comply with the applicable 
report clearance requirements of 5 CFR part 1320, ``Controlling 
Paperwork Burdens on the Public,'' with regard to all forms used by the 
Federal awarding agency in place of or as a supplement to the Standard 
Form 424 (SF-424) series.
    (b) Applicants shall use the SF-424 series or those forms and 
instructions prescribed by the Federal awarding agency.
    (c) For Federal programs covered by E.O. 12372, ``Intergovernmental 
Review of Federal Programs,'' the applicant shall complete the 
appropriate sections of the SF-424 (Application for Federal Assistance) 
indicating whether the application was subject to review by the State 
Single Point of Contact (SPOC). The name and address of the SPOC for a 
particular State can be obtained from the Federal awarding agency or the 
Catalog of Federal Domestic Assistance. The SPOC shall advise the 
applicant whether the program for which application is made has been 
selected by that State for review.
    (d) Federal awarding agencies that do not use the SF-424 form should 
indicate whether the application is subject to review by the State under 
E.O. 12372.



Sec. 518.13  Debarment and suspension.

    Federal awarding agencies and recipients shall comply with the 
nonprocurement debarment and suspension rule, implementing E.O.'s 12549 
and 12689, ``Debarment and Suspension.'' This rule restricts subawards 
and contracts with certain parties that are debarred, suspended or 
otherwise excluded from or ineligible for participation in Federal 
assistance programs or activities.



Sec. 518.14  Special award conditions.

    (a) Federal awarding agencies may impose additional requirements as 
needed, if an applicant or recipient:
    (1) Has a history of poor performance,
    (2) Is not financially stable,
    (3) Has a management system that does not meet the standards 
prescribed in this part,
    (4) Has not conformed to the terms and conditions of a previous 
award, or
    (5) Is not otherwise responsible.
    (b) Additional requirements may only be imposed provided that such 
applicant or recipient is notified in writing as to:
    (1) The nature of the additional requirements,
    (2) The reason why the additional requirements are being imposed,
    (3) The nature of the corrective action needed,
    (4) The time allowed for completing the corrective actions, and
    (5) The method for requesting reconsideration of the additional 
requirements imposed.



Sec. 518.15  Metric system of measurement.

    The Metric Conversion Act, as amended by the Omnibus Trade and 
Competitiveness Act (15 U.S.C. 205), declares that the metric system is 
the preferred measurement system for U.S. trade and commerce. The Act 
requires each Federal agency to establish a date or dates in 
consultation with the Secretary of Commerce, when the metric system of 
measurement will be used in the agency's procurements, grants, and other 
business-related activities. Metric implementation may take longer where 
the use of the system is initially impractical or likely to cause 
significant inefficiencies in the accomplishment of federally-funded 
activities. Federal awarding agencies shall follow the provisions of 
E.O. 12770, ``Metric Usage in Federal Government Programs.''



Sec. 518.16  Resource Conservation and Recovery Act.

    Under the Act, any State agency or agency of a political subdivision 
of a State which is using appropriated Federal funds must comply with 
section

[[Page 147]]

6002. Section 6002 requires that preference be given in procurement 
programs to the purchase of specific products containing recycled 
materials identified in guidelines developed by the Environmental 
Protection Agency (EPA) (40 CFR Parts 247-254). Accordingly, State and 
local institutions of higher education, hospitals, and non-profit 
organizations that receive direct Federal awards or other Federal funds 
shall give preference in their procurement programs funded with Federal 
funds to the purchase of recycled products pursuant to the EPA 
guidelines.



Sec. 518.17  Certification and representations.

    Unless prohibited by statute or codified regulation, each Federal 
awarding agency is authorized and encouraged to allow recipients to 
submit certifications and representations required by statute, executive 
order, or regulation on an annual basis, if the recipients have ongoing 
and continuing relationships with the agency. Annual certifications and 
representations shall be signed by responsible officials with the 
authority to ensure recipients' compliance with the pertinent 
requirements.



                    Subpart C_Post-Award Requirements

                    Financial and Program Management



Sec. 518.20  Purpose of financial and program management.

    Sections 518.21 through 518.28 prescribe standards for financial 
management systems, methods for making payments and rules for: 
satisfying cost sharing and matching requirements, accounting for 
program income, budget revision approvals, making audits, determining 
allowability of cost, and establishing fund availability.



Sec. 518.21  Standards for financial management systems.

    (a) Federal awarding agencies shall require recipients to relate 
financial data to performance data and develop unit cost information 
whenever practical.
    (b) Recipients' financial management systems shall provide for the 
following.
    (1) Accurate, current and complete disclosure of the financial 
results of each federally-sponsored project or program in accordance 
with the reporting requirements set forth in Sec. 19.52. If a Federal 
awarding agency requires reporting on an accrual basis from a recipient 
that maintains its records on other than an accrual basis, the recipient 
shall not be required to establish an accrual accounting system. These 
recipients may develop such accrual data for its reports on the basis of 
an analysis of the documentation on hand.
    (2) Records that identify adequately the source and application of 
funds for federally-sponsored activities. These records shall contain 
information pertaining to Federal awards, authorizations, obligations, 
unobligated balances, assets, outlays, income and interest.
    (3) Effective control over and accountability for all funds, 
property and other assets. Recipients shall adequately safeguard all 
such assets and assure they are used solely for authorized purposes.
    (4) Comparison of outlays with budget amounts for each award. 
Whenever appropriate, financial information should be related to 
performance and unit cost data.
    (5) Written procedures to minimize the time elapsing between the 
transfer of funds to the recipient from the U.S. Treasury and the 
issuance or redemption of checks, warrants or payments by other means 
for program purposes by the recipient. To the extent that the provisions 
of the Cash Management Improvement Act (CMIA) (Pub. L. 101-453) govern, 
payment methods of State agencies, instrumentalities, and fiscal agents 
shall be consistent with CMIA Treasury-State Agreements or the CMIA 
default procedures codified at 31 CFR part 205, ``Withdrawal of Cash 
from the Treasury for Advances under Federal Grant and Other Programs.''
    (6) Written procedures for determining the reasonableness, 
allocability and allowability of costs in accordance with the provisions 
of the applicable Federal cost principles and the terms and conditions 
of the award.
    (7) Accounting records including cost accounting records that are 
supported by source documentation.

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    (c) Where the Federal Government guarantees or insures the repayment 
of money borrowed by the recipient, the Federal awarding agency, at its 
discretion, may require adequate bonding and insurance if the bonding 
and insurance requirements of the recipient are not deemed adequate to 
protect the interest of the Federal Government.
    (d) The Federal awarding agency may require adequate fidelity bond 
coverage where the recipient lacks sufficient coverage to protect the 
Federal Government's interest.
    (e) Where bonds are required in the situations described above, the 
bonds shall be obtained from companies holding certificates of authority 
as acceptable sureties, as prescribed in 31 CFR part 223, ``Surety 
Companies Doing Business with the United States.''



Sec. 518.22  Payment.

    (a) Payment methods shall minimize the time elapsing between the 
transfer of funds from the United States Treasury and the issuance or 
redemption of checks, warrants, or payment by other means by the 
recipients. Payment methods of State agencies or instrumentalities shall 
be consistent with Treasury-State CMIA agreements or default procedures 
codified at 31 CFR part 205.
    (b)(1) Recipients are to be paid in advance, provided they maintain 
or demonstrate the willingness to maintain:
    (i) Written procedures that minimize the time elapsing between the 
transfer of funds and disbursement by the recipient, and
    (ii) Financial management systems that meet the standards for fund 
control and accountability as established in section Sec. 518.21.
    (2) Cash advances to a recipient organization shall be limited to 
the minimum amounts needed and be timed to be in accordance with the 
actual, immediate cash requirements of the recipient organization in 
carrying out the purpose of the approved program or project. The timing 
and amount of cash advances shall be as close as is administratively 
feasible to the actual disbursements by the recipient organization for 
direct program or project costs and the proportionate share of any 
allowable indirect costs.
    (c) Whenever possible, advances shall be consolidated to cover 
anticipated cash needs for all awards made by the Federal awarding 
agency to the recipient.
    (1) Advance payment mechanisms include, but are not limited to, 
Treasury check and electronic funds transfer.
    (2) Advance payment mechanisms are subject to 31 CFR part 205.
    (3) Recipients shall be authorized to submit requests for advances 
and reimbursements at least monthly when electronic fund transfers are 
not used.
    (d) Requests for Treasury check advance payment shall be submitted 
on SF-270, ``Request for Advance or Reimbursement,'' or other forms as 
may be authorized by OMB. This form is not to be used when Treasury 
check advance payments are made to the recipient automatically through 
the use of a predetermined payment schedule or if precluded by special 
Federal awarding agency instructions for electronic funds transfer.
    (e) Reimbursement is the preferred method when the requirements in 
paragraph (b) cannot be met. Federal awarding agencies may also use this 
method on any construction agreement, or if the major portion of the 
construction project is accomplished through private market financing or 
Federal loans, and the Federal assistance constitutes a minor portion of 
the project.
    (1) When the reimbursement method is used, the Federal awarding 
agency shall make payment within 30 days after receipt of the billing, 
unless the billing is improper.
    (2) Recipients shall be authorized to submit request for 
reimbursement at least monthly when electronic funds are not used.
    (f) If a recipient cannot meet the criteria for advance payments and 
the Federal awarding agency has determined that reimbursement is not 
feasible because the recipient lacks sufficient working capital, the 
Federal awarding agency may provide cash on a working capital advance 
basis. Under this procedure, the Federal awarding

[[Page 149]]

agency shall advance cash to the recipient to cover its estimated 
disbursement needs for an initial period generally geared to the 
awardee's disbursing cycle. Thereafter, the Federal awarding agency 
shall reimburse the recipient for its actual cash disbursements. The 
working capital advance method of payment shall not be used for 
recipients unwilling or unable to provide timely advances to their 
subrecipient to meet the subrecipient's actual cash disbursements.
    (g) To the extent available, recipients shall disburse funds 
available from repayments to and interest earned on a revolving fund, 
program income, rebates, refunds, contract settlements, audit recoveries 
and interest earned on such funds before requesting additional cash 
payments.
    (h) Unless otherwise required by statute, Federal awarding agencies 
shall not withhold payments for proper charges made by recipients at any 
time during the project period unless the conditions in paragraphs 
(h)(1) or (2) of this section apply.
    (1) A recipient has failed to comply with the project objectives, 
the terms and conditions of the award, or Federal reporting 
requirements.
    (2) The recipient or subrecipient is delinquent in a debt to the 
United States as defined in OMB Circular A-129, ``Managing Federal 
Credit Programs.'' Under such conditions, the Federal awarding agency 
may, upon reasonable notice, inform the recipient that payments shall 
not be made for obligations incurred after a specified date until the 
conditions are corrected or the indebtedness to the Federal Government 
is liquidated.
    (i) Standards governing the use of banks and other institutions as 
depositories of funds advanced under awards are as follows:
    (1) Except for situations described in paragraph (i)(2) of this 
section, Federal awarding agencies shall not require separate depository 
accounts for funds provided to a recipient or establish any eligibility 
requirements for depositories for funds provided to a recipient. 
However, recipients must be able to account for the receipt, obligation 
and expenditure of funds.
    (2) Advances of Federal funds shall be deposited and maintained in 
insured accounts whenever possible.
    (j) Consistent with the national goal of expanding the opportunities 
for women-owned and minority-owned business enterprises, recipients 
shall be encouraged to use women-owned and minority-owned banks (a bank 
which is owned at least 50 percent by women or minority group members).
    (k) Recipients shall maintain advances of Federal funds in interest 
bearing accounts, unless the conditions in paragraphs (k)(1), (2) or (3) 
of this section apply.
    (1) The recipient receives less than $120,000 in Federal awards per 
year.
    (2) The best reasonably available interest bearing account would not 
be expected to earn interest in excess of $250 per year on Federal cash 
balances.
    (3) The depository would require an average or minimum balance so 
high that it would not be feasible within the expected Federal and non-
Federal cash resources.
    (l) For those entities where CMIA and its implementing regulations 
do not apply, interest earned on Federal advances deposited in interest 
bearing accounts shall be remitted annually to Department of Health and 
Human Services, Payment Management System, P.O. Box 6021, Rockville, MD 
20852. Interest amounts up to $250 per year may be retained by the 
recipient for administrative expense. In keeping with Electric Funds 
Transfer rules, (31 CFR part 206), interest should be remitted to the 
HHS Payment Management System through an electric medium such as the 
FEDWIRE Deposit system. Recipients which do not have this capability 
should use a check. State universities and hospitals shall comply with 
CMIA, as it pertains to interest. If an entity subject to CMIA uses its 
own funds to pay pre-award costs for discretionary awards without prior 
written approval from the Federal awarding agency, it waives its right 
to recover the interest under CMIA.
    (m) Except as noted elsewhere in this part, only the following forms 
shall be

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authorized for the recipients in requesting advances and reimbursements. 
Federal agencies shall not require more than an original and two copies 
of these forms.
    (1) SF-270, Request for Advance or Reimbursement. Each Federal 
awarding agency shall adopt the SF-270 as a standard form for all 
nonconstruction programs when electronic funds transfer or predetermined 
advance methods are not used. Federal awarding agencies, however, have 
the option of using this form for construction programs in lieu of the 
SF-271, ``Outlay Report and Request for Reimbursement for Construction 
Programs.''
    (2) SF-271, Outlay Report and Request for Reimbursement for 
Construction Programs. Each Federal awarding agency shall adopt the SF-
271 as the standard form to be used for requesting reimbursement for 
construction programs. However, a Federal awarding agency may substitute 
the SF-270 when the Federal awarding agency determines that it provides 
adequate information to meet Federal needs.



Sec. 518.23  Cost sharing or matching.

    (a) All contributions, including cash and third party in-kind, shall 
be accepted as part of the recipient's cost sharing or matching when 
such contributions meet all of the following criteria.
    (1) Are verifiable from the recipient's records.
    (2) Are not included as contributions for any other federally-
assisted project or program.
    (3) Are necessary and reasonable for proper and efficient 
accomplishment of project or program objectives.
    (4) Are allowable under the applicable cost principles.
    (5) Are not paid by the Federal Government under another award, 
except where authorized by Federal statute to be used for cost sharing 
or matching.
    (6) Are provided for in the approved budget when required by the 
Federal awarding agency.
    (7) Conform to other provisions of this part, as applicable.
    (b) Unrecovered indirect costs may be included as part of cost 
sharing or matching only with the prior approval of the Federal awarding 
agency.
    (c) Values for recipient contributions of services and property 
shall be established in accordance with the applicable cost principles. 
If a Federal awarding agency authorizes recipients to donate buildings 
or land for construction/facilities acquisition projects or long-term 
use, the value of the donated property for cost sharing or matching 
shall be the lesser of paragraph (c) (1) or (2) of this section.
    (1) The certified value of the remaining life of the property 
recorded in the recipient's accounting records at the time of donation.
    (2) The current fair market value. However, when there is sufficient 
justification, the Federal awarding agency may approve the use of the 
current fair market value of the donated property, even if it exceeds 
the certified value at the time of donation to the project.
    (d) Volunteer services furnished by professional and technical 
personnel, consultants, and other skilled and unskilled labor may be 
counted as cost sharing or matching if the service is an integral and 
necessary part of an approved project or program. Rates for volunteer 
services shall be consistent with those paid for similar work in the 
recipient's organization. In those instances in which the required 
skills are not found in the recipient organization, rates shall be 
consistent with those paid for similar work in the labor market in which 
the recipient competes for the kind of services involved. In either 
case, paid fringe benefits that are reasonable, allowable, and allocable 
may be included in the valuation.
    (e) When an employer other than the recipient furnishes the services 
of an employee, these services shall be valued at the employee's regular 
rate of pay (plus an amount of fringe benefits that are reasonable, 
allowable, and allocable, but exclusive of overhead costs), provided 
these services are in the same skill for which the employee is normally 
paid.
    (f) Donated supplies may include such items as expendable equipment, 
office supplies, laboratory supplies or workshop and classroom supplies. 
Value assessed to donated supplies included in the cost sharing or 
matching share shall be reasonable and shall not

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exceed the fair market value of the property at the time of the 
donation.
    (g) The method used for determining cost sharing or matching for 
donated equipment, buildings and land for which title passes to the 
recipient may differ according to the purpose of the award, if the 
conditions in paragraphs (g)(1) or (2) of this section apply.
    (1) If the purpose of the award is to assist the recipient in the 
acquisition of equipment, buildings or land, the total value of the 
donated property may be claimed as cost sharing or matching.
    (2) If the purpose of the award is to support activities that 
require the use of equipment, buildings or land, normally only 
depreciation or use charges for equipment and buildings may be made. 
However, the full value of equipment or other capital assets and fair 
rental charges for land may be allowed, provided that the Federal 
awarding agency has approved the charges.
    (h) The value of donated property shall be determined in accordance 
with the usual accounting policies of the recipient, with the following 
qualifications.
    (1) The value of donated land and buildings shall not exceed its 
fair market value at the time of donation to the recipient as 
established by an independent appraiser (e.g., certified real property 
appraiser or General Services Administration representative) and 
certified by a responsible official of the recipient.
    (2) The value of donated equipment shall not exceed the fair market 
value of equipment of the same age and condition at the time of 
donation.
    (3) The value of donated space shall not exceed the fair rental 
value of comparable space as established by an independent appraisal of 
comparable space and facilities in a privately-owned building in the 
same locality.
    (4) The value of loaned equipment shall not exceed its fair rental 
value.
    (5) The following requirements pertain to the recipient's supporting 
records for in-kind contributions from third parties.
    (i) Volunteer services shall be documented and, to the extent 
feasible, supported by the same methods used by the recipient for its 
own employees.
    (ii) The basis for determining the valuation for personal service, 
material, equipment, buildings and land shall be documented.



Sec. 518.24  Program income.

    (a) Federal awarding agencies shall apply the standards set forth in 
this section in requiring recipient organizations to account for program 
income related to projects financed in whole or in part with Federal 
funds.
    (b) Except as provided in paragraph (h) of this section, program 
income earned during the project period shall be retained by the 
recipient and, in accordance with Federal awarding agency regulations or 
the terms and conditions of the award, shall be used in one or more of 
the ways listed in the following.
    (1) Added to funds committed to the project by the Federal awarding 
agency and recipient and used to further eligible project or program 
objectives.
    (2) Used to finance the non-Federal share of the project or program.
    (3) Deducted from the total project or program allowable cost in 
determining the net allowable costs on which the Federal share of costs 
is based.
    (c) When an agency authorizes the disposition of program income as 
described in paragraphs (b)(1) or (b)(2) of this section, program income 
in excess of any limits stipulated shall be used in accordance with 
paragraph (b)(3) of this section.
    (d) In the event that the Federal awarding agency does not specify 
in its regulations or the terms and conditions of the award how program 
income is to be used, paragraph (b)(3) of this section shall apply 
automatically to all projects or programs except research. For awards 
that support research, paragraph (b)(1) of this section shall apply 
automatically unless the awarding agency indicates in the terms and 
conditions another alternative on the award or the recipient is subject 
to special award conditions, as indicated in Sec. 518.14.
    (e) Unless Federal awarding agency regulations or the terms and 
conditions of the award provide otherwise, recipients shall have no 
obligation to

[[Page 152]]

the Federal Government regarding program income earned after the end of 
the project period.
    (f) If authorized by Federal awarding agency regulations or the 
terms and conditions of the award, costs incident to the generation of 
program income may be deducted from gross income to determine program 
income, provided these costs have not been charged to the award.
    (g) Proceeds from the sale of property shall be handled in 
accordance with the requirements of the Property Standards (See 
Sec. Sec. 518.30 through 518.37).
    (h) Unless Federal awarding agency regulations or the terms and 
condition of the award provide otherwise, recipients shall have no 
obligation to the Federal Government with respect to program income 
earned from license fees and royalties for copyrighted material, 
patents, patent applications, trademarks, and inventions produced under 
an award. However, Patent and Trademark Amendments (35 U.S.C. 18) apply 
to inventions made under an experimental, developmental, or research 
award.



Sec. 518.25  Revision of budget and program plans.

    (a) The budget plan is the financial expression of the project or 
program as approved during the award process. It may include either the 
Federal and non-Federal share, or only the Federal share, depending upon 
Federal awarding agency requirements. It shall be related to performance 
for program evaluation purposes whenever appropriate.
    (b) Recipients are required to report deviations from budget and 
program plans, and request prior approvals for budget and program plan 
revisions, in accordance with this section.
    (c) For nonconstruction awards, recipients shall request prior 
approvals from Federal awarding agencies for one or more of the 
following program or budget related reasons.
    (1) Change in the scope or the objective of the project or program 
(even if there is no associated budget revision requiring prior written 
approval).
    (2) Change in a key person specified in the application or award 
document.
    (3) The absence for more than three months, or a 25 percent 
reduction in time devoted to the project, by the approved project 
director or principal investigator.
    (4) The need for additional Federal funding.
    (5) The transfer of amounts budgeted for indirect costs to absorb 
increases in direct costs, or vice versa, if approval is required by the 
Federal awarding agency.
    (6) The inclusion, unless waived by the Federal awarding agency, of 
costs that require prior approval in accordance with OMB Circular A-21, 
``Cost Principles for Institutions of Higher Education,'' OMB Circular 
A-122, ``Cost Principles for Non-Profit Organizations,'' or 45 CFR part 
74 Appendix E, ``Principles for Determining Costs Applicable to Research 
and Development under Grants and Contracts with Hospitals,'' or 48 CFR 
part 31, ``Contract Cost Principles and Procedures,'' as applicable.
    (7) The transfer of funds allotted for training allowances (direct 
payment to trainees) to other categories of expense.
    (8) Unless described in the application and funded in the approved 
awards, the subaward, transfer or contracting out of any work under an 
award. This provision does not apply to the purchase of supplies, 
material, equipment or general support services.
    (d) No other prior approval requirements for specific items may be 
imposed unless a deviation has been approved by OMB.
    (e) Except for requirements listed in paragraphs (c)(1) and (c)(4) 
of this section, Federal awarding agencies are authorized, at their 
option, to waive cost-related and administrative prior written approvals 
required by this part and OMB Circulars A-21 and A-122. Such waivers may 
include authorizing recipients to do any one or more of the following:
    (1) Incur pre-award costs 90 calendar days prior to award or more 
than 90 calendar days with the prior approval of the Federal awarding 
agency. All pre-award costs are incurred at the recipient's risk (i.e., 
the Federal awarding agency is under no obligation to reimburse such 
costs if for any reason the recipient does not receive an award

[[Page 153]]

or if the award is less than anticipated and inadequate to cover such 
costs).
    (2) Initiate a one-time extension of the expiration date of the 
award of up to 12 months unless one or more of the following conditions 
apply. For one-time extensions, the recipient must notify the Federal 
awarding agency in writing with the supporting reasons and revised 
expiration date at least 10 days before the expiration date specified in 
the award. This one-time extension may not be exercised merely for the 
purpose of using unobligated balances.
    (i) The terms and conditions of award prohibit the extension.
    (ii) The extension requires additional Federal funds.
    (iii) The extension involves any change in the approved objectives 
or scope of the project.
    (3) Carry forward unobligated balances to subsequent funding 
periods.
    (4) For awards that support research, unless the Federal awarding 
agency provides otherwise in the award or in the agency's regulations, 
the prior approval requirements described in paragraph (e) of this 
section are automatically waived (i.e., recipients need not obtain such 
prior approvals) unless one of the conditions included in paragraph 
(e)(2) of this section applies.
    (f) The Federal awarding agency may, at its option, restrict the 
transfer of funds among direct cost categories or programs, functions 
and activities for awards in which the Federal share of the project 
exceeds $100,000 and the cumulative amount of such transfers exceeds or 
is expected to exceed 10 percent of the total budget as last approved by 
the Federal awarding agency. No Federal awarding agency shall permit a 
transfer that would cause any Federal appropriation or part thereof to 
be used for purposes other than those consistent with the original 
intent of the appropriation.
    (g) All other changes to nonconstruction budgets, except for the 
changes described in paragraph (j) of this section, do not require prior 
approval.
    (h) For construction awards, recipients shall request prior written 
approval promptly from Federal awarding agencies for budget revisions 
whether the conditions in paragraphs (h) (1), (2) or (3) of this section 
apply.
    (1) The revision results from changes in the scope or the objective 
of the project or program.
    (2) The need arises for additional Federal funds to complete the 
project.
    (3) A revision is desired which involves specific costs for which 
prior written approval requirements may be imposed consistent with 
applicable OMB cost principles listed in Sec. 518.27
    (i) No other prior approval requirements for specific items may be 
imposed unless a deviation has been approved by OMB.
    (j) When a Federal awarding agency makes an award that provides 
support for both construction and nonconstruction work, the Federal 
awarding agency may require the recipient to request prior approval from 
the Federal awarding agency before making any fund or budget transfers 
between the two types of work supported.
    (k) For both construction and nonconstruction awards, Federal 
awarding agencies shall require recipients to notify the Federal 
awarding agency in writing promptly whenever the amount of Federal 
authorized funds is expected to exceed the needs of the recipient for 
the project period by more than $5000 or five percent of the Federal 
award, whichever is greater. This notification shall not be required if 
an application for additional funding is submitted for a continuation 
award.
    (l) When requesting approval for budget revisions, recipients shall 
use the budget forms that were used in the application unless the 
Federal awarding agency indicates a letter of request suffices.
    (m) Within 30 calendar days from the date of receipt of the request 
for budget revisions, Federal awarding agencies shall review the request 
and notify the recipient whether the budget revisions have been 
approved. If the revision is still under consideration at the end of 30 
calendar days, the Federal awarding agency shall inform the recipient in 
writing of the date when the recipient may expect the decision.



Sec. 518.26  Non-Federal audits.

    (a) Recipients and subrecipients that are institutions of higher 
education or

[[Page 154]]

other non-profit organizations (including hospitals) shall be subject to 
the audit requirements contained in the Single Audit Act Amendments of 
1996 (31 U.S.C. 7501-7507) and revised OMB Circular A-133, ``Audits of 
States, Local Governments, and Non-Profit Organizations.''
    (b) State and local governments shall be subject to the audit 
requirements contained in the Single Audit Act Amendments of 1996 (31 
U.S.C. 7501-7507) and revised OMB Circular A-133, ``Audits of States, 
Local Governments, and Non-Profit Organizations.''
    (c) For-profit hospitals not covered by the audit provisions of 
revised OMB Circular A-133 shall be subject to the audit requirements of 
the Federal awarding agencies.
    (d) Commercial organizations shall be subject to the audit 
requirements of the Federal awarding agency or the prime recipients as 
incorporated into the award document.

[59 FR 39440, Aug. 3, 1994, as amended at 62 FR 45939, 45941, Aug. 29, 
1997]



Sec. 518.27  Allowable costs.

    For each kind of recipient, there is a set of Federal principles for 
determining allowable costs. Allowability of costs shall be determined 
in accordance with the cost principles applicable to the entity 
incurring the costs. Thus, allowability of costs incurred by State, 
local or federally-recognized Indian tribal governments is determined in 
accordance with the provisions of OMB Circular A-87, ``Cost Principles 
for State and Local Governments.'' The allowability of costs incurred by 
non-profit organizations is determined in accordance with the provisions 
of OMB Circular A-122, ``Cost Principles for Non-Profit Organizations.'' 
The allowability of costs incurred by institutions of higher education 
is determined in accordance with the provisions of OMB Circular A-21, 
``Cost Principles for Educational Institutions.'' The allowability of 
costs incurred by hospitals is determined in accordance with the 
provisions of Appendix E of 45 CFR part 74, ``Principles for Determining 
Costs Applicable to Research and Development Under Grants and Contracts 
with Hospitals.'' The allowability of costs incurred by commercial 
organizations and those non-profit organizations listed in Attachment C 
to Circular A-122 is determined in accordance with the provisions of the 
Federal Acquisition Regulation (FAR) at 48 CFR part 31.



Sec. 518.28  Period of availability of funds.

    Where a funding period is specified, a recipient may charge to the 
grant only allowable costs resulting from obligations incurred during 
the funding period and any pre-award costs authorized by the Federal 
awarding agency.

                           Property Standards



Sec. 518.30  Purpose of property standards.

    (a) Sections 518.31 through 518.37 set forth uniform standards 
governing management and disposition of property furnished by the 
Federal Government whose cost was charged to a project supported by a 
Federal award. Federal awarding agencies shall require recipients to 
observe these standards under awards and shall not impose additional 
requirements, unless specifically required by Federal statute. The 
recipient may use its own property management standards and procedures 
provided it observes the provisions of Sec. Sec. 518.31 through 518.37.



Sec. 518.31  Insurance coverage.

    Recipients shall, at a minimum, provide the equivalent insurance 
coverage for real property and equipment acquired with Federal funds as 
provided to property owned by the recipient. Federally-owned property 
need not be insured unless required by the terms and conditions of the 
award.



Sec. 518.32  Real property.

    Each Federal awarding agency shall prescribe requirements for 
recipients concerning the use and disposition of real property acquired 
in whole or in part under awards. Unless otherwise provided by statute, 
such requirements, at a minimum, shall contain the following.
    (a) Title to real property shall vest in the recipient subject to 
the condition that the recipient shall use the real property for the 
authorized purpose of the project as long as it is needed and

[[Page 155]]

shall not encumber the property without approval of the Federal awarding 
agency.
    (b) The recipient shall obtain written approval by the Federal 
awarding agency for the use of real property in other federally-
sponsored projects when the recipient determines that the property is no 
longer needed for the purpose of the original project. Use in other 
projects shall be limited to those under federally-sponsored projects 
(i.e., awards) or programs that have purposes consistent with those 
authorized for support by the Federal awarding agencies.
    (c) When the real property is no longer needed as provided in 
paragraphs (a) and (b) of this section, the recipient shall request 
disposition instructions from the Federal awarding agency or its 
successor Federal awarding agency. The Federal awarding agency shall 
observe one or more of the following disposition instructions.
    (1) The recipient may be permitted to retain title without further 
obligation to the Federal Government after it compensates the Federal 
Government for that percentage of the current fair market value of the 
property attributable to the Federal participation in the project.
    (2) The recipient may be directed to sell the property under 
guidelines provided by the Federal awarding agency and pay the Federal 
Government for that percentage of the current fair market value of the 
property attributable to the Federal participation in the project (after 
deducting actual and reasonable selling and fix-up expenses, if any, 
from the sales proceeds). When the recipient is authorized or required 
to sell the property, proper sales procedures shall be established that 
provide for competition to the extent practicable and result in the 
highest possible return.
    (3) The recipient may be directed to transfer title to the property 
to the Federal Government or to an eligible third party provided that, 
in such cases, the recipient shall be entitled to compensation for its 
attributable percentage of the current fair market value of the 
property.



Sec. 518.33  Federally-owned and exempt property.

    (a) Federally-owned property. (1) Title to federally-owned property 
remains vested in the Federal Government. Recipients shall submit 
annually an inventory listing of federally-owned property in their 
custody to the Federal awarding agency. Upon completion of the award or 
when the property is no longer needed, the recipient shall report the 
property to the Federal awarding agency for further Federal agency 
utilization.
    (2) If the Federal awarding agency has no further need for the 
property, it shall be declared excess and reported to the General 
Services Administration, unless the Federal awarding agency has 
statutory authority to dispose of the property by alternative methods 
(e.g., the authority provided by the Federal Technology Transfer Act (15 
U.S.C. 3710(I)) to donate research equipment to educational and non-
profit organizations in accordance with E.O. 12821, ``Improving 
Mathematics and Science Education in Support of the National Education 
Goals.'') Appropriate instructions shall be issued to the recipient by 
the Federal awarding agency.
    (b) Exempt property. When statutory authority exists, the Federal 
awarding agency has the option to vest title to property acquired with 
Federal funds in the recipient without further obligation to the Federal 
Government and under conditions the Federal awarding agency considers 
appropriate. Such property is ``exempt property.'' Should a Federal 
awarding agency not establish conditions, title to exempt property upon 
acquisition shall vest in the recipient without further obligation to 
the Federal Government.



Sec. 518.34  Equipment.

    (a) Title to equipment acquired by a recipient with Federal funds 
shall vest in the recipient, subject to conditions of this section.
    (b) The recipient shall not use equipment acquired with Federal 
funds to provide services to non-Federal outside organizations for a fee 
that is less than private companies charge for equivalent services, 
unless specifically authorized by Federal statute, for as long

[[Page 156]]

as the Federal Government retains an interest in the equipment.
    (c) The recipient shall use the equipment in the project or program 
for which it was acquired as long as needed, whether or not the project 
or program continues to be supported by Federal funds and shall not 
encumber the property without approval of the Federal awarding agency. 
When no longer needed for the original project or program, the recipient 
shall use the equipment in connection with its other federally-sponsored 
activities, in the following order or priority:
    (1) Activities sponsored by the Federal awarding agency which funded 
the original project, then
    (2) Activities sponsored by other Federal awarding agencies.
    (d) During the time that equipment is used on the project or program 
for which it was acquired, the recipient shall make it available for use 
on other projects or programs if such other use will not interfere with 
the work on the project or program for which the equipment was 
originally acquired. First preference for such other use shall be given 
to other projects or programs sponsored by the Federal awarding agency 
that financed the equipment; second preference shall be given to 
projects or programs sponsored by other Federal awarding agencies. If 
the equipment is owned by the Federal Government, use on other 
activities not sponsored by the Federal Government shall be permissible 
if authorized by the Federal awarding agency. User charges shall be 
treated as program income.
    (e) When acquiring replacement equipment, the recipient may use the 
equipment to be replaced as trade-in or sell the equipment and use the 
proceeds to offset the costs of the replacement equipment subject to the 
approval of the Federal awarding agency.
    (f) The recipient's property management standards for equipment 
acquired with Federal funds and federally-owned equipment shall include 
all of the following.
    (1) Equipment records shall be maintained accurately and shall 
include the following information.
    (i) A description of the equipment.
    (ii) Manufacturer's serial number, model number, Federal stock 
number, national stock number, or other identification number.
    (iii) Source of the equipment, including the award number.
    (iv) Whether title vests in the recipient or the Federal Government.
    (v) Acquisition date (or date received, if the equipment was 
furnished by the Federal Government) and cost.
    (vi) Information from which one can calculate the percentage of 
Federal participation in the cost of the equipment (not applicable to 
equipment furnished by the Federal Government).
    (vii) Location and condition of the equipment and the date the 
information was reported.
    (viii) Unit acquisition cost.
    (ix) Ultimate disposition data, including date of disposal and sales 
price or the method used to determine current fair market value where a 
recipient compensates the Federal awarding agency for its share.
    (2) Equipment owned by the Federal Government shall be identified to 
indicate Federal ownership.
    (3) A physical inventory of equipment shall be taken and the results 
reconciled with the equipment records at least once every two years. Any 
differences between quantities determined by the physical inspection and 
those shown in the accounting records shall be investigated to determine 
the causes of the difference. The recipient shall, in connection with 
the inventory, verify the existence, current utilization, and continued 
need for the equipment.
    (4) A control system shall be in effect to insure adequate 
safeguards to prevent loss, damage, or theft of the equipment. Any loss, 
damage, or theft of equipment shall be investigated and fully 
documented; if the equipment was owned by the Federal Government, the 
recipient shall promptly notify the Federal awarding agency.
    (5) Adequate maintenance procedures shall be implemented to keep the 
equipment in good condition.
    (6) Where the recipient is authorized or required to sell the 
equipment, proper sales procedures shall be established which provide 
for competition to the

[[Page 157]]

extent practicable and result in the highest possible return.
    (g) When the recipient no longer needs the equipment, the equipment 
may be used for other activities in accordance with the following 
standards. For equipment with a current per unit fair market value of 
$5,000 or more, the recipient may retain the equipment for other uses 
provided that compensation is made to the original Federal awarding 
agency or its successor. The amount of compensation shall be computed by 
applying the percentage of Federal participation in the cost of the 
original project or program to the current fair market value of the 
equipment. If the recipient has no need for the equipment, the recipient 
shall request disposition instructions from the Federal awarding agency. 
The Federal awarding agency shall determine whether the equipment can be 
used to meet the agency's requirements. If no requirement exists within 
that agency, the availability of the equipment shall be reported to the 
General Services Administration by the Federal awarding agency to 
determine whether a requirement for the equipment exists in other 
Federal agencies. The Federal awarding agency shall issue instructions 
to the recipient no later than 120 calendar days after the recipient's 
request and the following procedures shall govern.
    (1) If so instructed or if disposition instructions are not issued 
within 120 calendar days after the recipient's request, the recipient 
shall sell the equipment and reimburse the Federal awarding agency an 
amount computed by applying to the sales proceeds the percentage of 
Federal participation in the cost of the original project or program. 
However, the recipient shall be permitted to deduct and retain from the 
Federal share $500 or ten percent of the proceeds, whichever is less, 
for the recipient's selling and handling expenses.
    (2) If the recipient is instructed to ship the equipment elsewhere, 
the recipient shall be reimbursed by the Federal Government by an amount 
which is computed by applying the percentage of the recipient's 
participation in the cost of the original project or program to the 
current fair market value of the equipment, plus any reasonable shipping 
or interim storage costs incurred.
    (3) If the recipient is instructed to otherwise dispose of the 
equipment, the recipient shall be reimbursed by the Federal awarding 
agency for such costs incurred in its disposition.
    (4) The Federal awarding agency may reserve the right to transfer 
the title to the Federal Government or to a third party named by the 
Federal Government when such third party is otherwise eligible under 
existing statutes. Such transfer shall be subject to the following 
standards.
    (i) The equipment shall be appropriately identified in the award or 
otherwise made known to the recipient in writing.
    (ii) The Federal awarding agency shall issue disposition 
instructions within 120 calendar days after receipt of a final 
inventory. The final inventory shall list all equipment acquired with 
grant funds and federally-owned equipment. If the Federal awarding 
agency fails to issue disposition instructions within the 120 calendar 
day period, the recipient shall apply the standards of this section, as 
appropriate.
    (iii) When the Federal awarding agency exercises its right to take 
title, the equipment shall be subject to the provisions for federally-
owned equipment.



Sec. 518.35  Supplies and other expendable property.

    (a) Title to supplies and other expendable property shall vest in 
the recipient upon acquisition. If there is a residual inventory of 
unused supplies exceeding $5000 in total aggregate value upon 
termination or completion of the project or program and the supplies are 
not needed for any other federally-sponsored project or program, the 
recipient shall retain the supplies for use on non-Federal sponsored 
activities or sell them, but shall, in either cases, compensate the 
Federal Government for its share. The amount of compensation shall be 
computed in the same manner as for equipment.
    (b) The recipient shall not use supplies acquired with Federal funds 
to provide services to non-Federal outside organizations for a fee that 
is less than

[[Page 158]]

private companies charge for equivalent services, unless specifically 
authorized by Federal statute as long as the Federal Government retains 
an interest in the supplies.



Sec. 518.36  Intangible property.

    (a) The recipient may copyright any work that is subject to 
copyright and was developed, or for which ownership was purchased, under 
an award. The Federal awarding agency(ies) reserve a royalty-free, 
nonexclusive and irrevocable right to reproduce, publish, or otherwise 
use the work for Federal purposes, and to authorize others to do so.
    (b) Recipients are subject to applicable regulations governing 
patents and inventions, including government-wide regulations issued by 
the Department of Commerce at 37 CFR part 401, ``Rights to Inventions 
Made by Nonprofit Organizations and Small Business Firms Under 
Government Grants, Contracts and Cooperative Agreements.''
    (c) Unless waived by the Federal awarding agency, the Federal 
Government has the right to the following:
    (1) Obtain, reproduce, publish or otherwise use the data first 
produced under an award.
    (2) Authorize others to receive, reproduce, publish, or otherwise 
use such data for Federal purposes.
    (d) Title to intangible property and debt instruments acquired under 
an award or subaward vests upon acquisition in the recipient. The 
recipient shall use that property for the originally-authorized purpose, 
and the recipient shall not encumber the property without approval of 
the Federal awarding agency. When no longer needed for the originally 
authorized purpose, disposition of the intangible property shall occur 
in accordance with the provisions of paragraph Sec. 19.34(g).



Sec. 518.37  Property trust relationship.

    Real property, equipment, intangible property and debt instruments 
that are acquired or improved with Federal funds shall be held in trust 
by the recipient as trustee for the beneficiaries of the project or 
program under which the property was acquired or improved. Agencies may 
require recipients to record liens or other appropriate notices of 
record to indicate that personal or real property has been acquired or 
improved with Federal funds and that use and disposition conditions 
apply to the property.

                          Procurement Standards



Sec. 518.40  Purpose of procurement standards.

    Sections 518.41 through 518.48 set forth standards for use by 
recipients in establishing procedures for the procurement of supplies 
and other expendable property, equipment, real property and other 
services with Federal funds. These standards are furnished to ensure 
that such materials and services are obtained in an effective manner and 
in compliance with the provisions of applicable Federal statutes and 
executive orders. No additional procurement standards or requirements 
shall be imposed by the Federal awarding agencies upon recipients, 
unless specifically required by Federal statute or executive order or 
approved by OMB.



Sec. 518.41  Recipient responsibilities.

    The standards contained in this section do not relieve the recipient 
of the contractual responsibilities arising under its contract(s). The 
recipient is the responsible authority, without recourse to the Federal 
awarding agency, regarding the settlement and satisfaction of all 
contractual and administrative issues arising out of procurements 
entered into in support of an award or other agreement. This includes 
disputes, claims, protests of award, source evaluation or other matters 
of a contractual nature. Matters concerning violation of statute are to 
be referred to such Federal, State or local authority as may have proper 
jurisdiction.



Sec. 518.42  Codes of conduct.

    The recipient shall maintain written standards of conduct governing 
the performance of its employees engaged in the award and administration 
of contracts. No employee, officer, or agent shall participate in the 
selection, award, or administration of a contract supported by Federal 
funds if a real or apparent conflict of interest would be involved. Such 
a conflict would arise when the employee, officer, or agent,

[[Page 159]]

any member of his or her immediate family, his or her partner, or an 
organization which employs or is about to employ any of the parties 
indicated herein, has a financial or other interest in the firm selected 
for an award. The officers, employees, and agents of the recipient shall 
neither solicit nor accept gratuities, favors, or anything of monetary 
value from contractors, or parties to subagreements. However, recipients 
may set standards for situations in which the financial interest is not 
substantial or the gift is an unsolicited item of nominal value. The 
standards of conduct shall provide for disciplinary actions to be 
applied for violations of such standards by officers, employees, or 
agents of the recipient.



Sec. 518.43  Competition.

    All procurement transactions shall be conducted in a manner to 
provide, to the maximum extent practical, open and free competition. The 
recipient shall be alert to organizational conflicts of interest as well 
as noncompetitive practices among contractors that may restrict or 
eliminate competition or otherwise restrain trade. In order to ensure 
objective contractor performance and eliminate unfair competitive 
advantage, contractors that develop or draft specifications, 
requirements, statements of work, invitations for bids and/or requests 
for proposals shall be excluded from competing for such procurements. 
Awards shall be made to the bidder or offeror whose bid or offer is 
responsive to the solicitation and is most advantageous to the 
recipient, price, quality and other factors considered. Solicitations 
shall clearly set forth all requirements that the bidder or offeror 
shall fulfill in order for the bid or offer to be evaluated by the 
recipient. Any and all bids or offers may be rejected when it is in the 
recipient's interest to do so.



Sec. 518.44  Procurement procedures.

    (a) All recipients shall establish written procurement procedures. 
These procedures shall provide for, at a minimum, that the conditions in 
paragraphs (a)(1), (2) and (3) of this section apply.
    (1) Recipients avoid purchasing unnecessary items.
    (2) Where appropriate, an analysis is made of lease and purchase 
alternatives to determine which would be the most economical and 
practical procurement for the Federal Government.
    (3) Solicitations for goods and services provide for all of the 
following:
    (i) A clear and accurate description of the technical requirements 
for the material, product or service to be procured. In competitive 
procurements, such a description shall not contain features which unduly 
restrict competition.
    (ii) Requirements which the bidder/offeror must fulfill and all 
other factors to be used in evaluating bids or proposals.
    (iii) A description, whenever practicable, of technical requirements 
in terms or functions to be performed or performance required, including 
the range of acceptable characteristics or minimum acceptable standards.
    (iv) The specific features of ``brand name or equal'' descriptions 
that bidders are required to meet when such items are included in the 
solicitation.
    (v) The acceptance, to the extent practicable and economically 
feasible, of products and services dimensioned in the metric system of 
measurement.
    (vi) Preference, to the extent practicable and economically 
feasible, for products and services that conserve natural resources and 
protect the environment and are energy efficient.
    (b) Positive efforts shall be made by recipient to utilize small 
businesses, minority-owned firms, and women's business enterprises, 
whenever possible. Recipients of Federal awards shall take all of the 
following steps to further this goal.
    (1) Ensure that small businesses, minority-owned firms, and women's 
business enterprises are used to the fullest extent practicable.
    (2) Make information on forthcoming opportunities available and 
arrange timeframes for purchases and contracts to encourage and 
facilitate participation by small businesses, minority-owned firms, and 
women's business enterprises.
    (3) Consider in the contract process whether firms competing for 
larger

[[Page 160]]

contracts intend to subcontract with small businesses, minority-owned 
firms, and women's business enterprises.
    (4) Encourage contracting with consortiums of small businesses, 
minority-owned firms and women's business enterprises when a contract is 
too large for one of these firms to handle individually.
    (5) Use of services and assistance, as appropriate, of such 
organizations as the Small Business Administration and the Department of 
Commerce's Minority Business Development Agency in the solicitation and 
utilization of small businesses, minority-owned firms, and women's 
business enterprises.
    (c) The type of procuring instruments used (e.g., fixed price 
contracts, cost reimbursable contracts, purchase orders, and incentive 
contracts) shall be determined by the recipient but shall be appropriate 
for the particular procurement and for promoting the best interest of 
the program or project involved. The ``cost-plus-a-percentage-of-cost'' 
or ``percentage of construction cost'' methods of contracting shall not 
be used.
    (d) Contracts shall be made only with responsible contractors who 
possess the potential ability to perform successfully under the terms 
and conditions of the proposed procurement. Consideration shall be given 
to such matters as contractor integrity, record of past performance, 
financial and technical resources or accessibility to other necessary 
resources. In certain circumstances, contracts with certain parties are 
restricted by the implementation of E.O.'s 12549 and 12689, ``Debarment 
and Suspension.''
    (e) Recipients shall, on request, make available for the Federal 
awarding agency, pre-award review and procurement documents, such as 
request for proposals or invitations for bids, independent cost 
estimates, etc., when any of the following conditions apply.
    (1) A recipient's procurement procedures or operation fails to 
comply with the procurement standards in this part.
    (2) The procurement is expected to exceed the small purchase 
threshold fixed at 41 U.S.C. 403 (11) (currently $25,000) and is to be 
awarded without competition or only one bid or offer is received in 
response to a solicitation.
    (3) The procurement, which is expected to exceed the small purchase 
threshold, specifies a ``brand name'' product.
    (4) The proposed award over the small purchase threshold is to be 
awarded to other than the apparent low bidder under a sealed bid 
procurement.
    (5) A proposed contract modification changes the scope of a contract 
or increases the contract amount by more than the amount of the small 
purchase threshold.



Sec. 518.45  Cost and price analysis.

    Some form of cost or price analysis shall be made and documented in 
the procurement files in connection with every procurement action. Price 
analysis may be accomplished in various ways, including the comparison 
of price quotations submitted, market prices and similar indicia, 
together with discounts. Cost analysis is the review and evaluation of 
each element of cost to determine reasonableness, allocability and 
allowability.



Sec. 518.46  Procurement records.

    Procurement records and files for purchases in excess of the small 
purchase threshold shall include the following at a minimum:
    (a) Basis for contractor selection,
    (b) Justification for lack of competition when competitive bids or 
offers are not obtained, and
    (c) Basis for award cost or price.



Sec. 518.47  Contract administration.

    A system for contract administration shall be maintained to ensure 
contractor conformance with the terms, conditions and specifications of 
the contract and to ensure adequate and timely follow up of all 
purchases. Recipients shall evaluate contractor performance and 
document, as appropriate, whether contractors have met the terms, 
conditions, and specifications of the contract.



Sec. 518.48  Contract provisions.

    The recipient shall include, in addition to provisions to define a 
sound and

[[Page 161]]

complete agreement, the following provisions in all contracts. The 
following provisions shall also be applied to subcontracts.
    (a) Contracts in excess of the small purchase threshold shall 
contain contractual provisions or conditions that allow for 
administrative, contractual, or legal remedies in instances in which a 
contractor violates or breaches the contract terms, and provide for such 
remedial actions as may be appropriate.
    (b) All contracts in excess of the small purchase threshold shall 
contain suitable provisions for termination by the recipient, including 
the manner by which termination shall be effected and the basis for 
settlement. In addition, such contracts shall describe conditions under 
which the contract may be terminated for default as well as conditions 
where the contract may be terminated because of circumstances beyond the 
control of the contractor.
    (c) Except as otherwise required by statute, an award that requires 
the contracting (or subcontracting) for construction or facility 
improvements shall provide for the recipient to follow its own 
requirements relating to bid guarantees, performance bonds, and payment 
bonds unless the construction contract or subcontract exceeds $100,000. 
For those contracts or subcontracts exceeding $100,000, the Federal 
awarding agency may accept the bonding policy and requirements of the 
recipient, provided the Federal awarding agency has made a determination 
that the Federal Government's interest is adequately protected. If such 
a determination has not been made, the minimum requirements shall be as 
follows.
    (1) A bid guarantee from each bidder equivalent to five percent of 
the bid price. The ``bid guarantee'' shall consist of a firm commitment 
such as a bid bond, certified check, or other negotiable instrument 
accompanying a bid as assurance that the bidder shall, upon acceptance 
of his bid, execute such contractual documents as may be required within 
the time specified.
    (2) A performance bond on the part of the contractor for 100 percent 
of the contract price. A ``performance bond'' is one executed in 
connection with a contract to secure fulfillment of all the contractor's 
obligations under such contract.
    (3) A payment bond on the part of the contractor for 100 percent of 
the contract price. A ``payment bond'' is one executed in connection 
with a contract to assure payment as required by statute of all persons 
supplying labor and material in the execution of the work provided for 
in the contract.
    (4) Where bonds are required in the situations described herein, the 
bonds shall be obtained from companies holding certificates of authority 
as acceptable sureties pursuant to 31 CFR part 223, ``Surety Companies 
Doing Business with the United States.''
    (d) All negotiated contracts (except those for less than the small 
purchase threshold) awarded by recipients shall include a provision to 
the effect that the recipient, the Federal awarding agency, the 
Comptroller General of the United States, or any of their duly 
authorized representatives, shall have access to any books, documents, 
papers and records of the contractor which are directly pertinent to a 
specific program for the purpose of making audits, examinations, 
excerpts and transcriptions.
    (e) All contracts, including small purchases, awarded by recipients 
and their contractors shall contain the procurement provisions of 
Appendix A to this part, as applicable.

                           Reports and Records



Sec. 518.50  Purpose of reports and records.

    Sections 518.51 through 518.53 set forth the procedures for 
monitoring and reporting on the recipient's financial and program 
performance and the necessary standard reporting forms. They also set 
forth record retention requirements.



Sec. 518.51  Monitoring and reporting program performance.

    (a) Recipients are responsible for managing and monitoring each 
project, program, subaward, function or activity supported by the award. 
Recipients shall monitor subawards to ensure subrecipients have met the 
audit requirements as delineated in Sec. 518.26.

[[Page 162]]

    (b) The Federal awarding agency shall prescribe the frequency with 
which the performance reports shall be submitted. Except as provided in 
Sec. 518.51(f), performance reports shall not be required more 
frequently than quarterly or, less frequently than annually. Annual 
reports shall be due 90 calendar days after the grant year; quarterly or 
semi-annual reports shall be due 30 days after the reporting period. The 
Federal awarding agency may require annual reports before the 
anniversary dates of multiple year awards in lieu of these requirements. 
The final performance reports are due 90 calendar days after the 
expiration or termination of the award.
    (c) If inappropriate, a final technical or performance report shall 
not be required after completion of the project.
    (d) When required, performance reports shall generally contain, for 
each award, brief information on each of the following.
    (1) A comparison of actual accomplishments with the goals and 
objectives established for the period, the findings of the investigator, 
or both. Whenever appropriate and the output of programs or projects can 
be readily quantified, such quantitative data should be related to cost 
data for computation of unit costs.
    (2) Reasons why established goals were not met, if appropriate.
    (3) Other pertinent information including, when appropriate, 
analysis and explanation of cost overruns or high unit costs.
    (e) Recipients shall not be required to submit more than the 
original and two copies of performance reports.
    (f) Recipients shall immediately notify the Federal awarding agency 
of developments that have a significant impact on the award-supported 
activities. Also, notification shall be given in the case of problems, 
delays, or adverse conditions which materially impair the ability to 
meet the objectives of the award. This notification shall include a 
statement of the action taken or contemplated, and any assistance needed 
to resolve the situation.
    (g) Federal awarding agencies may make site visits, as needed.
    (h) Federal awarding agencies shall comply with clearance 
requirements of 5 CFR part 1320 when requesting performance data from 
recipients.



Sec. 518.52  Financial reporting.

    (a) The following forms or such other forms as may be approved by 
OMB are authorized for obtaining financial information from recipients.
    (1) SF-269 or SF-269A, Financial Status Report.
    (i) Each Federal awarding agency shall require recipients to use the 
SF-269 or SF-269A to report the status of funds for all nonconstruction 
projects or programs. A Federal awarding agency may, however, have the 
option of not requiring the SF-269 or SF-269A when the SF-270, Request 
for Advance or Reimbursement, or SF-272, Report of Federal Cash 
Transactions, is determined to provide adequate information to meet its 
needs, except that a final SF-269 or SF-269A shall be required at the 
completion of the project when the SF-270 is used only for advances.
    (ii) The Federal awarding agency shall prescribe whether the report 
shall be on a cash or accrual basis. If the Federal awarding agency 
requires accrual information and the recipient's accounting records are 
not normally kept on the accrual basis, the recipient shall not be 
required to convert its accounting system, but shall develop such 
accrual information through best estimates based on an analysis of the 
documentation on hand.
    (iii) The Federal awarding agency shall determine the frequency of 
the Financial Status Report for each project or program, considering the 
size and complexity of the particular project or program. However, the 
report shall not be required more frequently than quarterly or less 
frequently than annually. A final report shall be required at the 
completion of the agreement.
    (iv) The Federal awarding agency shall require recipients to submit 
the SF-269 or SF-269A (an original and no more than two copies) no later 
than 30 days after the end of each specified reporting period for 
quarterly and semi-annual reports, and 90 calendar days for annual and 
final reports. Extensions of reporting due dates may be approved by the 
Federal awarding agency upon request of the recipient.

[[Page 163]]

    (2) SF-272, Report of Federal Cash Transactions.
    (i) When funds are advanced to recipients the Federal awarding 
agency shall require each recipient to submit the SF-272 and, when 
necessary, its continuation sheet, SF-272a. The Federal awarding agency 
shall use this report to monitor cash advanced to recipients and to 
obtain disbursement information for each agreement with the recipients.
    (ii) Federal awarding agencies may require forecasts of Federal cash 
requirements in the ``Remarks'' section of the report.
    (iii) When practical and deemed necessary, Federal awarding agencies 
may require recipients to report in the ``Remarks'' section the amount 
of cash advances received in excess of three days. Recipients shall 
provide short narrative explanations of actions taken to reduce the 
excess balances.
    (iv) Recipients shall be required to submit not more than the 
original and two copies of the SF-272 15 calendar days following the end 
of each quarter. The Federal awarding agencies may require a monthly 
report from those recipients receiving advances totaling $1 million or 
more per year.
    (v) Federal awarding agencies may waive the requirement for 
submission of the SF-272 for any one of the following reasons:
    (A) When monthly advances do not exceed $25,000 per recipient, 
provided that such advances are monitored through other forms contained 
in this section;
    (B) If, in the Federal awarding agency's opinion, the recipient's 
accounting controls are adequate to minimize excessive Federal advances; 
or,
    (C) When the electronic payment mechanisms provide adequate data.
    (b) When the Federal awarding agency needs additional information or 
more frequent reports, the following shall be observed.
    (1) When additional information is needed to comply with legislative 
requirements, Federal awarding agencies shall issue instructions to 
require recipients to submit such information under the ``Remarks'' 
section of the reports.
    (2) When a Federal awarding agency determines that a recipient's 
accounting system does not meet the standards in Sec. 518.21, 
additional pertinent information to further monitor awards may be 
obtained upon written notice to the recipient until such time as the 
system is brought up to standard. The Federal awarding agency, in 
obtaining this information, shall comply with report clearance 
requirements of 5 CFR part 1320.
    (3) Federal awarding agencies are encouraged to shade out any line 
item on any report if not necessary.
    (4) Federal awarding agencies may accept the identical information 
from the recipients in machine readable format or computer printouts or 
electronic outputs in lieu of prescribed formats.
    (5) Federal awarding agencies may provide computer or electronic 
outputs to recipients when such expedites or contributes to the accuracy 
of reporting.



Sec. 518.53  Retention and access requirements for records.

    (a) This section sets forth requirements for record retention and 
access to records for awards to recipients. Federal awarding agencies 
shall not impose any other record retention or access requirements upon 
recipients.
    (b) Financial records, supporting documents, statistical records, 
and all other records pertinent to an award shall be retained for a 
period of three years from the date of submission of the final 
expenditure report or, for awards that are renewed quarterly or 
annually, from the date of the submission of the quarterly or annual 
financial report, as authorized by the Federal awarding agency. The only 
exceptions are the following.
    (1) If any litigation, claim, or audit is started before the 
expiration of the 3-year period, the records shall be retained until all 
litigation, claims or audit findings involving the records have been 
resolved and final action taken.
    (2) Records for real property and equipment acquired with Federal 
funds shall be retained for 3 years after final disposition.

[[Page 164]]

    (3) When records are transferred to or maintained by the Federal 
awarding agency, the 3-year retention requirement is not applicable to 
the recipient.
    (4) Indirect cost rate proposals, cost allocations plans, etc. as 
specified in paragraph Sec. 518.53(g).
    (c) Copies of original records may be substituted for the original 
records if authorized by the Federal awarding agency.
    (d) The Federal awarding agency shall request transfer of certain 
records to its custody from recipients when it determines that the 
records possess long term retention value. However, in order to avoid 
duplicate recordkeeping, a Federal awarding agency may make arrangements 
for recipients to retain any records that are continuously needed for 
joint use.
    (e) The Federal awarding agency, the Inspector General, Comptroller 
General of the United States, or any of their duly authorized 
representatives, have the right of timely and unrestricted access to any 
books, documents, papers, or other records of recipients that are 
pertinent to the awards, in order to make audits, examinations, 
excerpts, transcripts and copies of such documents. This right also 
includes timely and reasonable access to a recipient's personnel for the 
purpose of interview and discussion related to such documents. The 
rights of access in this paragraph are not limited to the required 
retention period, but shall last as long as records are retained.
    (f) Unless required by statute, no Federal awarding agency shall 
place restrictions on recipients that limit public access to the records 
of recipients that are pertinent to an award, except when the Federal 
awarding agency can demonstrate that such records shall be kept 
confidential and would have been exempted from disclosure pursuant to 
the Freedom of Information Act (5 U.S.C. 552) if the records had 
belonged to the Federal awarding agency.
    (g) Indirect cost rate proposals, cost allocations plans, etc. 
Paragraphs (g)(1) and (g)(2) of this section apply to the following 
types of documents, and their supporting records: indirect cost rate 
computations or proposals, cost allocation plans, and any similar 
accounting computations of the rate at which a particular group of costs 
is chargeable (such as computer usage chargeback rates or composite 
fringe benefit rates).
    (1) If submitted for negotiation. If the recipient submits to the 
Federal awarding agency or the subrecipient submits to the recipient the 
proposal, plan, or other computation to form the basis for negotiation 
of the rate, then the 3-year retention period for its supporting records 
starts on the date of such submission.
    (2) If not submitted for negotiation. If the recipient is not 
required to submit to the Federal awarding agency or the subrecipient is 
not required to submit to the recipient the proposal, plan, or other 
computation for negotiation purposes, then the 3-year retention period 
for the proposal, plan, or other computation and its supporting records 
starts at the end of the fiscal year (or other accounting period) 
covered by the proposal, plan, or other computation.

                       Termination and Enforcement



Sec. 518.60  Purpose of termination and enforcement.

    Sections 518.61 and 518.62 set forth uniform suspension, termination 
and enforcement procedures.



Sec. 518.61  Termination.

    (a) Awards may be terminated in whole or in part only if the 
conditions in paragraphs (a)(1), (2) or (3) of this section apply.
    (1) By the Federal awarding agency, if a recipient materially fails 
to comply with the terms and conditions of an award.
    (2) By the Federal awarding agency with the consent of the 
recipient, in which case the two parties shall agree upon the 
termination conditions, including the effective date and, in the case of 
partial termination, the portion to be terminated.
    (3) By the recipient upon sending to the Federal awarding agency 
written notification setting forth the reasons for such termination, the 
effective date, and, in the case of partial termination, the portion to 
be terminated.

[[Page 165]]

However, if the Federal awarding agency determines in the case of 
partial termination that the reduced or modified portion of the grant 
will not accomplish the purposes for which the grant was made, it may 
terminate the grant in its entirety under either paragraphs (a)(1) or 
(2) of this section.
    (b) If costs are allowed under an award, the responsibilities of the 
recipient referred to in Sec. 518.71(a), including those for property 
management as applicable, shall be considered in the termination of the 
award, and provision shall be made for continuing responsibilities of 
the recipient after termination, as appropriate.



Sec. 518.62  Enforcement.

    (a) Remedies for noncompliance. If a recipient materially fails to 
comply with the terms and conditions of an award, whether stated in a 
Federal statute, regulation, assurance, application, or notice of award, 
the Federal awarding agency may, in addition to imposing any of the 
special conditions outlined in Sec. 518.14, take one or more of the 
following actions, as appropriate in the circumstances.
    (1) Temporarily withhold cash payments pending correction of the 
deficiency by the recipient or more severe enforcement action by the 
Federal awarding agency.
    (2) Disallow (that is, deny both use of funds and any applicable 
matching credit for) all or part of the cost of the activity or action 
not in compliance.
    (3) Wholly or partly suspend or terminate the current award.
    (4) Without further awards for the project or program.
    (5) Take other remedies that may be legally available.
    (b) Hearings and appeals. In taking an enforcement action, the 
awarding agency shall provide the recipient an opportunity for hearing, 
appeal, or other administrative proceeding to which the recipient is 
entitled under any statute or regulation applicable to the action 
involved.
    (c) Effects of suspension and termination. Costs of a recipient 
resulting from obligations incurred by the recipient during a suspension 
or after termination of an award are not allowable unless the awarding 
agency expressly authorizes them in the notice of suspension or 
termination or subsequently. Other recipient costs during suspension or 
after termination which are necessary and not reasonably avoidable are 
allowable if the conditions in paragraphs (c) (1) or (2) of this section 
apply.
    (1) The costs result from obligations which were properly incurred 
by the recipient before the effective date of suspension or termination, 
are not in anticipation of it, and in the case of a termination, are 
noncancellable.
    (2) The costs would be allowable if the award were not suspended or 
expired normally at the end of the funding period in which the 
termination takes effect.
    (d) Relationship to debarment and suspension. The enforcement 
remedies identified in this section, including suspension and 
termination, do not preclude a recipient from being subject to debarment 
and suspension under E.O.s 12549 and 12689 and the Federal awarding 
agency implementing regulations (see Sec. 518.13).



                 Subpart D_After-the-Award Requirements



Sec. 518.70  Purpose.

    Sections 518.71 through 518.73 contain closeout procedures and other 
procedures for subsequent disallowances and adjustments.



Sec. 518.71  Closeout procedures.

    (a) Recipients shall submit, within 90 calendar days after the date 
of completion of the award, all financial, performance, and other 
reports as required by the terms and conditions of the award. The 
Federal awarding agency may approve extensions when requested by the 
recipient.
    (b) Unless the Federal awarding agency authorizes an extension, a 
recipient shall liquidate all obligations incurred under the award not 
later than 90 calendar days after the funding period or the date of 
completion as specified in the terms and conditions of the award or in 
agency implementing instructions.

[[Page 166]]

    (c) The Federal awarding agency shall make prompt payments to a 
recipient for allowable reimbursable costs under the award being closed 
out.
    (d) The recipient shall promptly refund any balances of unobligated 
cash that the Federal awarding agency has advanced or paid and that is 
not authorized to be retained by the recipient for use in other 
projects. OMB Circular A-129 governs unreturned amounts that become 
delinquent debts.
    (e) When authorized by the terms and conditions of the award, the 
Federal awarding agency shall make a settlement for any upward or 
downward adjustments to the Federal share of costs after closeout 
reports are received.
    (f) The recipient shall account for any real and personal property 
acquired with Federal funds or received from the Federal Government in 
accordance with Sec. Sec. 518.31 through 518.37.
    (g) In the event a final audit has not been performed prior to the 
closeout of an award, the Federal awarding agency shall retain the right 
to recover an appropriate amount after fully considering the 
recommendations on disallowing costs resulting from the final audit.



Sec. 518.72  Subsequent adjustments and continuing responsibilities.

    (a) The closeout of an award does not affect any of the following.
    (1) The right of the Federal awarding agency to disallow costs and 
recover funds on the basis of a later audit or other review.
    (2) The obligation of the recipient to return any funds due as a 
result of later refunds, corrections, or other transactions.
    (3) Audit requirements in Sec. 518.26.
    (4) Property management requirements in Sec. Sec. 518.31 through 
518.37.
    (5) Records retention as required in Sec. 518.53.
    (b) After closeout of an award, a relationship created under an 
award may be modified or ended in whole or in part with the consent of 
the Federal awarding agency and the recipient, provided the 
responsibilities of the recipient referred to in Sec. 518.73(a), 
including those for property management as applicable, are considered 
and provisions made for continuing responsibilities of the recipient, as 
appropriate.



Sec. 518.73  Collection of amounts due.

    (a) Any funds paid to a recipient in excess of the amount to which 
the recipient is finally determined to be entitled under the terms and 
conditions of the award constitute a debt to the Federal Government. If 
not paid within a reasonable period after the demand for payment, the 
Federal awarding agency may reduce the debt by the provisions of 
paragraphs (a) (1), (2) or (3) of this section.
    (1) Making an administrative offset against other requests for 
reimbursements.
    (2) Withholding advance payments otherwise due to the recipient.
    (3) Taking over action permitted by statute.
    (b) Except as otherwise provided by law, the Federal awarding agency 
shall charge interest on an overdue debt in accordance with 4 CFR 
chapter II, ``Federal Claims Collection Standards.''

               Appendix A to Part 518--Contract Provisions

    All contracts, awarded by a recipient including small purchases, 
shall contain the following provisions as applicable:
    1. Equal Employment Opportunity--All contracts shall contain a 
provision requiring compliance with E.O. 11246, ``Equal Employment 
Opportunity,'' as amended by E.O. 11375, ``Amending Executive Order 
11246 Relating to Equal Employment Opportunity,'' and as supplemented by 
regulations at 41 CFR part 60, ``Office of Federal Contract Compliance 
Programs, Equal Employment Opportunity, Department of Labor.''
    2. Copeland ``Anti-Kickback'' Act (18 U.S.C. 874 and 40 U.S.C. 
276c)--All contracts and subgrants in excess of $2,000 for construction 
or repair awarded by recipients and subrecipients shall include a 
provision for compliance with the Copeland ``Anti-Kickback'' Act (18 
U.S.C. 874), as supplemented by Department of Labor regulations (29 CFR 
part 3, ``Contractors and Subcontractors on Public Building or Public 
Work Financed in Whole or in part by Loans or Grants from the United 
States''). The Act provides that each contractor or subrecipient shall 
be prohibited from inducing, by any means, any person employed in the 
construction, completion, or repair of public work, to give up any part 
of the compensation to which he is otherwise

[[Page 167]]

entitled. The recipient shall report all suspected or reported 
violations to the Federal awarding agency.
    3. Davis-Bacon Act, as amended (40 U.S.C. 276a to a-7)--When 
required by Federal program legislation, all construction contracts 
awarded by the recipients and subrecipients of more than $2,000 shall 
include a provision for compliance with the Davis-Bacon Act (40 U.S.C. 
276a to a-7) and as supplemented by Department of Labor regulations (29 
CFR part 5, ``Labor Standards Provisions Applicable to Contracts 
Governing Federally Financed and Assisted Construction''). Under this 
Act, contractors shall be required to pay wages to laborers and 
mechanics at a rate not less than the minimum wages specified in a wage 
determination made by the Secretary of Labor. In addition, contractors 
shall be required to pay wages not less than once a week. The recipient 
shall place a copy of the current prevailing wage determination issued 
by the Department of Labor in each solicitation and the award of a 
contract shall be conditioned upon the acceptance of the wage 
determination. The recipient shall report all suspected or reported 
violations to the Federal awarding agency.
    4. Contract Work Hours and Safety Standards Act (40 U.S.C. 327-
333)--Where applicable, all contracts awarded by recipients in excess of 
$2,000 for construction contracts and in excess of $2,500 for other 
contracts that involve the employment of mechanics or laborers shall 
include a provision for compliance with Sections 102 and 107 of the 
Contract Work Hours and Safety Standards Act (40 U.S.C. 327-333), as 
supplemented by Department of Labor regulations (29 CFR part 5). Under 
Section 102 of the Act, each contractor shall be required to compute the 
wages of every mechanic and laborer on the basis of a standard work week 
of 40 hours. Work in excess of the standard work week is permissible 
provided that the worker is compensated at a rate of not less than 1\1/
2\ times the basic rate of pay for all hours worked in excess of 40 
hours in the work week. Section 107 of the Act is applicable to 
construction work and provides that no laborer or mechanic shall be 
required to work in surroundings or under working conditions which are 
unsanitary, hazardous or dangerous. These requirements do not apply to 
the purchases of supplies or materials or articles ordinarily available 
on the open market, or contracts for transportation or transmission of 
intelligence.
    5. Rights to Inventions Made Under a Contract or Agreement--
Contracts or agreements for the performance of experimental, 
developmental, or research work shall provide for the right of the 
Federal Government and the recipient in any resulting invention in 
accordance with 37 CFR part 401, ``Rights to Inventions Made by 
Nonprofit Organizations and Small Business Firms Under Government 
Grants, Contracts and Cooperative Agreements,'' and any implementing 
regulations issued by the awarding agency.
    6. Clean Air Act (42 U.S.C. 7401 et seq.) and the Federal Water 
Pollution Control Act (33 U.S.C. 1251 et seq.), as amended--Contracts 
and subgrants of amounts in excess of $100,000 shall contain a provision 
that requires the recipient to agree to comply with all applicable 
standards, orders or regulations issued pursuant to the Clean Air Act 
(42 U.S.C. 7401 et seq.) and the Federal Water Pollution Control Act as 
amended (33 U.S.C. 1251 et seq.). Violations shall be reported to the 
Federal awarding agency and the Regional Office of the Environmental 
Protection Agency (EPA).
    7. Byrd Anti-Lobbying Amendment (31 U.S.C. 1352)--Contractors who 
apply or bid for an award of $100,000 or more shall file the required 
certification. Each tier certifies to the tier above that it will not 
and has not used Federal appropriated funds to pay any person or 
organization for influencing or attempting to influence an officer or 
employee of any agency, a member of Congress, officer or employee of 
Congress, or an employee of a member of Congress in connection with 
obtaining any Federal contract, grant or any other award covered by 31 
U.S.C. 1352. Each tier shall also disclose any lobbying with non-Federal 
funds that takes place in connection with obtaining any Federal award. 
Such disclosures are forwarded from tier to tier up to the recipient.
    8. Debarment and Suspension (E.O.s 12549 and 12689)--No contract 
shall be made to parties listed on the General Services Administration's 
List of Parties Excluded from Federal Procurement or Nonprocurement 
Programs in accordance with E.O.s 12549 and 12689, ``Debarment and 
Suspension'' and 49 CFR part 29. This list contains the names of parties 
debarred, suspended, or otherwise excluded by agencies, and contractors 
declared ineligible under statutory or regulatory authority other than 
E.O. 12549. Contractors with awards that exceed the small purchase 
threshold shall provide the required certification regarding its 
exclusion status and that of its principal employees.



PART 519_NEW RESTRICTIONS ON LOBBYING--Table of Contents




                            Subpart A_General

Sec.
519.100 Conditions on use of funds.
519.105 Definitions.
519.110 Certification and disclosure.

                  Subpart B_Activities by Own Employees

519.200 Agency and legislative liaison.
519.205 Professional and technical services.
519.210 Reporting.

[[Page 168]]

            Subpart C_Activities by Other than Own Employees

519.300 Professional and technical services.

                   Subpart D_Penalties and Enforcement

519.400 Penalties.
519.405 Penalty procedures.
519.410 Enforcement.

                          Subpart E_Exemptions

519.500 Secretary of Defense.

                        Subpart F_Agency Reports

519.600 Semi-annual compilation.
519.605 Inspector General report.

Appendix A to Part 519--Certification Regarding Lobbying
Appendix B to Part 519--Disclosure Form To Report Lobbying

    Authority: Sec. 319, Public Law 101-121 (31 U.S.C. 1352); 41 U.S.C. 
701 et seq.

    Source: 55 FR 6737, 6750, Feb. 26, 1990, unless otherwise noted.

    Cross Reference: See also Office of Management and Budget notice 
published at 54 FR 52306, December 20, 1989.



                            Subpart A_General



Sec. 519.100  Conditions on use of funds.

    (a) No appropriated funds may be expended by the recipient of a 
Federal contract, grant, loan, or cooperative ageement to pay any person 
for influencing or attempting to influence an officer or employee of any 
agency, a Member of Congress, an officer or employee of Congress, or an 
employee of a Member of Congress in connection with any of the following 
covered Federal actions: the awarding of any Federal contract, the 
making of any Federal grant, the making of any Federal loan, the 
entering into of any cooperative agreement, and the extension, 
continuation, renewal, amendment, or modification of any Federal 
contract, grant, loan, or cooperative agreement.
    (b) Each person who requests or receives from an agency a Federal 
contract, grant, loan, or cooperative agreement shall file with that 
agency a certification, set forth in appendix A, that the person has not 
made, and will not make, any payment prohibited by paragraph (a) of this 
section.
    (c) Each person who requests or receives from an agency a Federal 
contract, grant, loan, or a cooperative agreement shall file with that 
agency a disclosure form, set forth in appendix B, if such person has 
made or has agreed to make any payment using nonappropriated funds (to 
include profits from any covered Federal action), which would be 
prohibited under paragraph (a) of this section if paid for with 
appropriated funds.
    (d) Each person who requests or receives from an agency a commitment 
providing for the United States to insure or guarantee a loan shall file 
with that agency a statement, set forth in appendix A, whether that 
person has made or has agreed to make any payment to influence or 
attempt to influence an officer or employee of any agency, a Member of 
Congress, an officer or employee of Congress, or an employee of a Member 
of Congress in connection with that loan insurance or guarantee.
    (e) Each person who requests or receives from an agency a commitment 
providing for the United States to insure or guarantee a loan shall file 
with that agency a disclosure form, set forth in appendix B, if that 
person has made or has agreed to make any payment to influence or 
attempt to influence an officer or employee of any agency, a Member of 
Congress, an officer or employee of Congress, or an employee of a Member 
of Congress in connection with that loan insurance or guarantee.



Sec. 519.105  Definitions.

    For purposes of this part:
    (a) Agency, as defined in 5 U.S.C. 552(f), includes Federal 
executive departments and agencies as well as independent regulatory 
commissions and Government corporations, as defined in 31 U.S.C. 
9101(1).
    (b) Covered Federal action means any of the following Federal 
actions:
    (1) The awarding of any Federal contract;
    (2) The making of any Federal grant;
    (3) The making of any Federal loan;
    (4) The entering into of any cooperative agreement; and,
    (5) The extension, continuation, renewal, amendment, or modification 
of

[[Page 169]]

any Federal contract, grant, loan, or cooperative agreement.


Covered Federal action does not include receiving from an agency a 
commitment providing for the United States to insure or guarantee a 
loan. Loan guarantees and loan insurance are addressed independently 
within this part.
    (c) Federal contract means an acquisition contract awarded by an 
agency, including those subject to the Federal Acquisition Regulation 
(FAR), and any other acquisition contract for real or personal property 
or services not subject to the FAR.
    (d) Federal cooperative agreement means a cooperative agreement 
entered into by an agency.
    (e) Federal grant means an award of financial assistance in the form 
of money, or property in lieu of money, by the Federal Government or a 
direct appropriation made by law to any person. The term does not 
include technical assistance which provides services instead of money, 
or other assistance in the form of revenue sharing, loans, loan 
guarantees, loan insurance, interest subsidies, insurance, or direct 
United States cash assistance to an individual.
    (f) Federal loan means a loan made by an agency. The term does not 
include loan guarantee or loan insurance.
    (g) Indian tribe and tribal organization have the meaning provided 
in section 4 of the Indian Self-Determination and Education Assistance 
Act (25 U.S.C. 450B). Alaskan Natives are included under the definitions 
of Indian tribes in that Act.
    (h) Influencing or attempting to influence means making, with the 
intent to influence, any communication to or appearance before an 
officer or employee or any agency, a Member of Congress, an officer or 
employee of Congress, or an employee of a Member of Congress in 
connection with any covered Federal action.
    (i) Loan guarantee and loan insurance means an agency's guarantee or 
insurance of a loan made by a person.
    (j) Local government means a unit of government in a State and, if 
chartered, established, or otherwise recognized by a State for the 
performance of a governmental duty, including a local public authority, 
a special district, an intrastate district, a council of governments, a 
sponsor group representative organization, and any other instrumentality 
of a local government.
    (k) Officer or employee of an agency includes the following 
individuals who are employed by an agency:
    (1) An individual who is appointed to a position in the Government 
under title 5, U.S. Code, including a position under a temporary 
appointment;
    (2) A member of the uniformed services as defined in section 101(3), 
title 37, U.S. Code;
    (3) A special Government employee as defined in section 202, title 
18, U.S. Code; and,
    (4) An individual who is a member of a Federal advisory committee, 
as defined by the Federal Advisory Committee Act, title 5, U.S. Code 
appendix 2.
    (l) Person means an individual, corporation, company, association, 
authority, firm, partnership, society, State, and local government, 
regardless of whether such entity is operated for profit or not for 
profit. This term excludes an Indian tribe, tribal organization, or any 
other Indian organization with respect to expenditures specifically 
permitted by other Federal law.
    (m) Reasonable compensation means, with respect to a regularly 
employed officer or employee of any person, compensation that is 
consistent with the normal compensation for such officer or employee for 
work that is not furnished to, not funded by, or not furnished in 
cooperation with the Federal Government.
    (n) Reasonable payment means, with respect to perfessional and other 
technical services, a payment in an amount that is consistent with the 
amount normally paid for such services in the private sector.
    (o) Recipient includes all contractors, subcontractors at any tier, 
and subgrantees at any tier of the recipient of funds received in 
connection with a Federal contract, grant, loan, or cooperative 
agreement. The term excludes an Indian tribe, tribal organization, or 
any other Indian organization with respect to expenditures specifically 
permitted by other Federal law.

[[Page 170]]

    (p) Regularly employed means, with respect to an officer or employee 
of a person requesting or receiving a Federal contract, grant, loan, or 
cooperative agreement or a commitment providing for the United States to 
insure or guarantee a loan, an officer or employee who is employed by 
such person for at least 130 working days within one year immediately 
preceding the date of the submission that initiates agency consideration 
of such person for receipt of such contract, grant, loan, cooperative 
agreement, loan insurance commitment, or loan guarantee commitment. An 
officer or employee who is employed by such person for less than 130 
working days within one year immediately preceding the date of the 
submission that initiates agency consideration of such person shall be 
considered to be regularly employed as soon as he or she is employed by 
such person for 130 working days.
    (q) State means a State of the United States, the District of 
Columbia, the Commonwealth of Puerto Rico, a territory or possession of 
the United States, an agency or instrumentality of a State, and a multi-
State, regional, or interstate entity having governmental duties and 
powers.



Sec. 519.110  Certification and disclosure.

    (a) Each person shall file a certification, and a disclosure form, 
if required, with each submission that initiates agency consideration of 
such person for:
    (1) Award of a Federal contract, grant, or cooperative agreement 
exceeding $100,000; or
    (2) An award of a Federal loan or a commitment providing for the 
United States to insure or guarantee a loan exceeding $150,000.
    (b) Each person shall file a certification, and a disclosure form, 
if required, upon receipt by such person of:
    (1) A Federal contract, grant, or cooperative agreement exceeding 
$100,000; or
    (2) A Federal loan or a commitment providing for the United States 
to insure or guarantee a loan exceeding $150,000,


Unless such person previously filed a certification, and a disclosure 
form, if required, under paragraph (a) of this section.
    (c) Each person shall file a disclosure form at the end of each 
calendar quarter in which there occurs any event that requires 
disclosure or that materially affects the accuracy of the information 
contained in any disclosure form previously filed by such person under 
paragraphs (a) or (b) of this section. An event that materially affects 
the accuracy of the information reported includes:
    (1) A cumulative increase of $25,000 or more in the amount paid or 
expected to be paid for influencing or attempting to influence a covered 
Federal action; or
    (2) A change in the person(s) or individual(s) influencing or 
attempting to influence a covered Federal action; or,
    (3) A change in the officer(s), employee(s), or Member(s) contacted 
to influence or attempt to influence a covered Federal action.
    (d) Any person who requests or receives from a person referred to in 
paragraphs (a) or (b) of this section:
    (1) A subcontract exceeding $100,000 at any tier under a Federal 
contract;
    (2) A subgrant, contract, or subcontract exceeding $100,000 at any 
tier under a Federal grant;
    (3) A contract or subcontract exceeding $100,000 at any tier under a 
Federal loan exceeding $150,000; or,
    (4) A contract or subcontract exceeding $100,000 at any tier under a 
Federal cooperative agreement,


Shall file a certification, and a disclosure form, if required, to the 
next tier above.
    (e) All disclosure forms, but not certifications, shall be forwarded 
from tier to tier until received by the person referred to in paragraphs 
(a) or (b) of this section. That person shall forward all disclosure 
forms to the agency.
    (f) Any certification or disclosure form filed under paragraph (e) 
of this section shall be treated as a material representation of fact 
upon which all receiving tiers shall rely. All liability arising from an 
erroneous representation shall be borne solely by the tier filing that 
representation and shall not be shared by any tier to which the 
erroneous representation is forwarded. Submitting an erroneous 
certification

[[Page 171]]

or disclosure constitutes a failure to file the required certification 
or disclosure, respectively. If a person fails to file a required 
certification or disclosure, the United States may pursue all available 
remedies, including those authorized by section 1352, title 31, U.S. 
Code.
    (g) For awards and commitments in process prior to December 23, 
1989, but not made before that date, certifications shall be required at 
award or commitment, covering activities occurring between December 23, 
1989, and the date of award or commitment. However, for awards and 
commitments in process prior to the December 23, 1989 effective date of 
these provisions, but not made before December 23, 1989, disclosure 
forms shall not be required at time of award or commitment but shall be 
filed within 30 days.
    (h) No reporting is required for an activity paid for with 
appropriated funds if that activity is allowable under either subpart B 
or C.



                  Subpart B_Activities by Own Employees



Sec. 519.200  Agency and legislative liaison.

    (a) The prohibition on the use of appropriated funds, in Sec. 
519.100 (a), does not apply in the case of a payment of reasonable 
compensation made to an officer or employee of a person requesting or 
receiving a Federal contract, grant, loan, or cooperative agreement if 
the payment is for agency and legislative liaison activities not 
directly related to a covered Federal action.
    (b) For purposes of paragraph (a) of this section, providing any 
information specifically requested by an agency or Congress is allowable 
at any time.
    (c) For purposes of paragraph (a) of this section, the following 
agency and legislative liaison activities are allowable at any time only 
where they are not related to a specific solicitation for any covered 
Federal action:
    (1) Discussing with an agency (including individual demonstrations) 
the qualities and characteristics of the person's products or services, 
conditions or terms of sale, and service capabilities; and,
    (2) Technical discussions and other activities regarding the 
application or adaptation of the person's products or services for an 
agency's use.
    (d) For purposes of paragraph (a) of this section, the following 
agencies and legislative liaison activities are allowable only where 
they are prior to formal solicitation of any covered Federal action:
    (1) Providing any information not specifically requested but 
necessary for an agency to make an informed decision about initiation of 
a covered Federal action;
    (2) Technical discussions regarding the preparation of an 
unsolicited proposal prior to its official submission; and,
    (3) Capability presentations by persons seeking awards from an 
agency pursuant to the provisions of the Small Business Act, as amended 
by Public Law 95-507 and other subsequent amendments.
    (e) Only those activities expressly authorized by this section are 
allowable under this section.



Sec. 519.205  Professional and technical services.

    (a) The prohibition on the use of appropriated funds, in Sec. 
519.100 (a), does not apply in the case of a payment of reasonable 
compensation made to an officer or employee of a person requesting or 
receiving a Federal contract, grant, loan, or cooperative agreement or 
an extension, continuation, renewal, amendment, or modification of a 
Federal contract, grant, loan, or cooperative agreement if payment is 
for professional or technical services rendered directly in the 
preparation, submission, or negotiation of any bid, proposal, or 
application for that Federal contract, grant, loan, or cooperative 
agreement or for meeting requirements imposed by or pursuant to law as a 
condition for receiving that Federal contract, grant, loan, or 
cooperative agreement.
    (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

[[Page 172]]

by a lawyer is allowable. Similarly, technical advice provided by an 
engineer on the performance or operational capability of a piece of 
equipment rendered directly in the negotiation of a contract is 
allowable. However, communications with the intent to influence made by 
a professional (such as a licensed lawyer) or a technical person (such 
as a licensed accountant) are not allowable under this section unless 
they provide advice and analysis directly applying their professional or 
technical expertise and unless the advice or analysis is rendered 
directly and solely in the preparation, submission or negotiation of a 
covered Federal action. Thus, for example, communications with the 
intent to influence made by a lawyer that do not provide legal advice or 
analysis directly and solely related to the legal aspects of his or her 
client's proposal, but generally advocate one proposal over another are 
not allowable under this section because the lawyer is not providing 
professional legal services. Similarly, communications with the intent 
to influence made by an engineer providing an engineering analysis prior 
to the preparation or submission of a bid or proposal are not allowable 
under this section since the engineer is providing technical services 
but not directly in the preparation, submission or negotiation of a 
covered Federal action.
    (c) Requirements imposed by or pursuant to law as a condition for 
receiving a covered Federal award include those required by law or 
regulation, or reasonably expected to be required by law or regulation, 
and any other requirements in the actual award documents.
    (d) Only those services expressly authorized by this section are 
allowable under this section.



Sec. 519.210  Reporting.

    No reporting is required with respect to payments of reasonable 
compensation made to regularly employed officers or employees of a 
person.



            Subpart C_Activities by Other Than Own Employees



Sec. 519.300  Professional and technical services.

    (a) The prohibition on the use of appropriated funds, in Sec. 
519.100 (a), does not apply in the case of any reasonable payment to a 
person, other than an officer or employee of a person requesting or 
receiving a covered Federal action, if the payment is for professional 
or technical services rendered directly in the preparation, submission, 
or negotiation of any bid, proposal, or application for that Federal 
contract, grant, loan, or cooperative agreement or for meeting 
requirements imposed by or pursuant to law as a condition for receiving 
that Federal contract, grant, loan, or cooperative agreement.
    (b) The reporting requirements in Sec. 519.110 (a) and (b) 
regarding filing a disclosure form by each person, if required, shall 
not apply with respect to professional or technical services rendered 
directly in the preparation, submission, or negotiation of any 
commitment providing for the United States to insure or guarantee a 
loan.
    (c) For purposes of paragraph (a) of this section, ``professional 
and technical services'' shall be limited to advice and analysis 
directly applying any professional or technical discipline. For example, 
drafting or a legal document accompanying a bid or proposal by a lawyer 
is allowable. Similarly, technical advice provided by an engineer on the 
performance or operational capability of a piece of equipment rendered 
directly in the negotiation of a 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

[[Page 173]]

his or her client's proposal, but generally advocate one proposal over 
another are not allowable under this section because the lawyer is not 
providing professional legal services. Similarly, communications with 
the intent to influence made by an engineer providing an engineering 
analysis prior to the preparation or submission of a bid or proposal are 
not allowable under this section since the engineer is providing 
technical services but not directly in the preparation, submission or 
negotiation of a covered Federal action.
    (d) Requirements imposed by or pursuant to law as a condition for 
receiving a covered Federal award include those required by law or 
regulation, or reasonably expected to be required by law or regulation, 
and any other requirements in the actual award documents.
    (e) Persons other than officers or employees of a person requesting 
or receiving a covered Federal action include consultants and trade 
associations.
    (f) Only those services expressly authorized by this section are 
allowable under this section.



                   Subpart D_Penalties and Enforcement



Sec. 519.400  Penalties.

    (a) Any person who makes an expenditure prohibited herein shall be 
subject to a civil penalty of not less than $10,000 and not more than 
$100,000 for each such expenditure.
    (b) Any person who fails to file or amend the disclosure form (see 
appendix B) to be filed or amended if required herein, shall be subject 
to a civil penalty of not less than $10,000 and not more than $100,000 
for each such failure.
    (c) A filing or amended filing on or after the date on which an 
administrative action for the imposition of a civil penalty is commenced 
does not prevent the imposition of such civil penalty for a failure 
occurring before that date. An administrative action is commenced with 
respect to a failure when an investigating official determines in 
writing to commence an investigation of an allegation of such failure.
    (d) In determining whether to impose a civil penalty, and the amount 
of any such penalty, by reason of a violation by any person, the agency 
shall consider the nature, circumstances, extent, and gravity of the 
violation, the effect on the ability of such person to continue in 
business, any prior violations by such person, the degree of culpability 
of such person, the ability of the person to pay the penalty, and such 
other matters as may be appropriate.
    (e) First offenders under paragraphs (a) or (b) of this section 
shall be subject to a civil penalty of $10,000, absent aggravating 
circumstances. Second and subsequent offenses by persons shall be 
subject to an appropriate civil penalty between $10,000 and $100,000, as 
determined by the agency head or his or her designee.
    (f) An imposition of a civil penalty under this section does not 
prevent the United States from seeking any other remedy that may apply 
to the same conduct that is the basis for the imposition of such civil 
penalty.



Sec. 519.405  Penalty procedures.

    Agencies shall impose and collect civil penalties pursuant to the 
provisions of the Program Fraud and Civil Remedies Act, 31 U.S.C. 
sections 3803 (except subsection (c)), 3804, 3805, 3806, 3807, 3808, and 
3812, insofar as these provisions are not inconsistent with the 
requirements herein.



Sec. 519.410  Enforcement.

    The head of each agency shall take such actions as are necessary to 
ensure that the provisions herein are vigorously implemented and 
enforced in that agency.



                          Subpart E_Exemptions



Sec. 519.500  Secretary of Defense.

    (a) The Secretary of Defense may exempt, on a case-by-case basis, a 
covered Federal action from the prohibition whenever the Secretary 
determines, in writing, that such an exemption is in the national 
interest. The Secretary shall transmit a copy of each such written 
exemption to Congress immediately after making such a determination.

[[Page 174]]

    (b) The Department of Defense may issue supplemental regulations to 
implement paragraph (a) of this section.



                        Subpart F_Agency Reports



Sec. 519.600  Semi-annual compilation.

    (a) The head of each agency shall collect and compile the disclosure 
reports (see appendix B) and, on May 31 and November 30 of each year, 
submit to the Secretary of the Senate and the Clerk of the House of 
Representatives a report containing a compilation of the information 
contained in the disclosure reports received during the six-month period 
ending on March 31 or September 30, respectively, of that year.
    (b) The report, including the compilation, shall be available for 
public inspection 30 days after receipt of the report by the Secretary 
and the Clerk.
    (c) Information that involves intelligence matters shall be reported 
only to the Select Committee on Intelligence of the Senate, the 
Permanent Select Committee on Intelligence of the House of 
Representatives, and the Committees on Appropriations of the Senate and 
the House of Representatives in accordance with procedures agreed to by 
such committees. Such information shall not be available for public 
inspection.
    (d) Information that is classified under Executive Order 12356 or 
any successor order shall be reported only to the Committee on Foreign 
Relations of the Senate and the Committee on Foreign Affairs of the 
House of Representatives or the Committees on Armed Services of the 
Senate and the House of Representatives (whichever such committees have 
jurisdiction of matters involving such information) and to the 
Committees on Appropriations of the Senate and the House of 
Representatives in accordance with procedures agreed to by such 
committees. Such information shall not be available for public 
inspection.
    (e) The first semi-annual compilation shall be submitted on May 31, 
1990, and shall contain a compilation of the disclosure reports received 
from December 23, 1989 to March 31, 1990.
    (f) Major agencies, designated by the Office of Management and 
Budget (OMB), are required to provide machine-readable compilations to 
the Secretary of the Senate and the Clerk of the House of 
Representatives no later than with the compilations due on May 31, 1991. 
OMB shall provide detailed specifications in a memorandum to these 
agencies.
    (g) Non-major agencies are requested to provide machine-readable 
compilations to the Secretary of the Senate and the Clerk of the House 
of Representatives.
    (h) Agencies shall keep the originals of all disclosure reports in 
the official files of the agency.



Sec. 519.605  Inspector General report.

    (a) The Inspector General, or other official as specified in 
paragraph (b) of this section, of each agency shall prepare and submit 
to Congress each year, commencing with submission of the President's 
Budget in 1991, an evaluation of the compliance of that agency with, and 
the effectiveness of, the requirements herein. The evaluation may 
include any recommended changes that may be necessary to strengthen or 
improve the requirements.
    (b) In the case of an agency that does not have an Inspector 
General, the agency official comparable to an Inspector General shall 
prepare and submit the annual report, or, if there is no such comparable 
official, the head of the agency shall prepare and submit the annual 
report.
    (c) The annual report shall be submitted at the same time the agency 
submits its annual budget justifications to Congress.
    (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.

[[Page 175]]

        Appendix A to Part 519--Certification Regarding Lobbying

 Certification for Contracts, Grants, Loans, and Cooperative Agreements

    The undersigned certifies, to the best of his or her knowledge and 
belief, that:
    (1) No Federal appropriated funds have been paid or will be paid, by 
or on behalf of the undersigned, to any person for influencing or 
attempting to influence an officer or employee of an agency, a Member of 
Congress, an officer or employee of Congress, or an employee of a Member 
of Congress in connection with the awarding of any Federal contract, the 
making of any Federal grant, the making of any Federal loan, the 
entering into of any cooperative agreement, and the extension, 
continuation, renewal, amendment, or modification of any Federal 
contract, grant, loan, or cooperative agreement.
    (2) If any funds other than Federal appropriated funds have been 
paid or will be paid to any person for influencing or attempting to 
influence an officer or employee of any agency, a Member of Congress, an 
officer or employee of Congress, or an employee of a Member of Congress 
in connection with this Federal contract, grant, loan, or cooperative 
agreement, the undersigned shall complete and submit Standard Form-LLL, 
``Disclosure Form to Report Lobbying,'' in accordance with its 
instructions.
    (3) The undersigned shall require that the language of this 
certification be included in the award documents for all subawards at 
all tiers (including subcontracts, subgrants, and contracts under 
grants, loans, and cooperative agreements) and that all subrecipients 
shall certify and disclose accordingly.
    This certification is a material representation of fact upon which 
reliance was placed when this transaction was made or entered into. 
Submission of this certification is a prerequisite for making or 
entering into this transaction imposed by section 1352, title 31, U.S. 
Code. Any person who fails to file the required certification shall be 
subject to a civil penalty of not less than $10,000 and not more than 
$100,000 for each such failure.

            Statement for Loan Guarantees and Loan Insurance

    The undersigned states, to the best of his or her knowledge and 
belief, that:
    If any funds have been paid or will be paid to any person for 
influencing or attempting to influence an officer or employee of any 
agency, a Member of Congress, an officer or employee of Congress, or an 
employee of a Member of Congress in connection with this commitment 
providing for the United States to insure or guarantee a loan, the 
undersigned shall complete and submit Standard Form-LLL, ``Disclosure 
Form to Report Lobbying,'' in accordance with its instructions.
    Submission of this statement is a prerequisite for making or 
entering into this transaction imposed by section 1352, title 31, U.S. 
Code. Any person who fails to file the required statement shall be 
subject to a civil penalty of not less than $10,000 and not more than 
$100,000 for each such failure.

[[Page 176]]

       Appendix B to Part 519--Disclosure Form To Report Lobbying
[GRAPHIC] [TIFF OMITTED] TC13OC91.003


[[Page 177]]


[GRAPHIC] [TIFF OMITTED] TC13OC91.004


[[Page 178]]


[GRAPHIC] [TIFF OMITTED] TC13OC91.005



PART 521_IMPLEMENTATION OF THE PROGRAM FRAUD CIVIL REMEDIES ACT--Table of 

Contents




Sec.
521.1 Basis and purpose.
521.2 Definitions.
521.3 Basis for civil penalties and assessments.
521.4 Investigation.
521.5 Review by the reviewing official.
521.6 Prerequisites for issuing a complaint.
521.7 Complaint.
521.8 Service of complaint.
521.9 Answer.
521.10 Default upon failure to file an answer.
521.11 Referral of complaint and answer to the ALJ.
521.12 Notice of hearing.
521.13 Parties to the hearing.
521.14 Separation of functions.
521.15 Ex Parte contacts.
521.16 Disqualifications of reviewing official or ALJ.
521.17 Rights of parties.
521.18 Authority of the ALJ.
521.19 Prehearing conferences.
521.20 Disclosure of documents.
521.21 Discovery.
521.22 Exchange of witness lists, statements and exhibits.

[[Page 179]]

521.23 Subpoenas for attendance at hearing.
521.24 Protective order.
521.25 Fees.
521.26 Form, filing and service of papers.
521.27 Computation of time.
521.28 Motions.
521.29 Sanctions.
521.30 The hearing and burden of proof.
521.31 Determining the amount of penalties and assessments.
521.32 Location of hearing.
521.33 Witnesses.
521.34 Evidence.
521.35 The record.
521.36 Post-hearing briefs.
521.37 Initial decision.
521.38 Reconsideration of initial decision.
521.39 Appeal to the Broadcasting Board of Governors Director.
521.40 Stays ordered by the Department of Justice.
521.41 Stay pending appeal.
521.42 Judicial review.
521.43 Collection of civil penalties and assessments.
521.44 Right to administrative offset.
521.45 Deposit in Treasury of United States.
521.46 Compromise or settlement.
521.47 Limitations.

    Authority: 22 U.S.C. 2658; 31 U.S.C. 3801-3812.

    Source: 56 FR 25028, June 3, 1991, unless otherwise noted.



Sec. 521.1  Basis and purpose.

    (a) Basis. This part implements the Program Fraud Civil Remedies Act 
of 1986, Public Law 99-509, sections 6101-6104, 100 Stat. 1874 (October 
21, 1986), codified at 31 U.S.C. 3801-3812. The Act requires each 
authority head to promulgate regulations necessary to implement the 
provisions of the statute (31 U.S.C. 3809).
    (b) Purpose. (1) This part establishes administrative procedures for 
imposing civil penalties and assessments against persons who make, 
submit, or present, or cause to be made, submitted, or presented, false, 
fictitious, or fraudulent claims or written statements to the 
Broadcasting Board of Governors or to its agents, and
    (2) Specifies the hearing and appeal rights of persons subject to 
allegations of liability for such penalties and assessments.
    (c) Special considerations abroad. Where a party, witness or 
material evidence in a proceeding under these regulations is located 
abroad, the investigating official, reviewing official or ALJ, as the 
case may be, may adjust the provisions below for service, filing of 
documents, time limitations, and related matters to meet special 
problems arising out of that location.



Sec. 521.2  Definitions.

    ALJ means an Administrative Law Judge in the Broadcasting Board of 
Governors appointed pursuant to 5 U.S.C. 3105 or detailed to the 
Broadcasting Board of Governors pursuant to 5 U.S.C. 3344.
    Benefit means, in the context of ``statement,'' anything of value, 
including but not limited to any advantage, preference, privilege, 
license, permit, favorable decision, ruling, status, or loan guarantee.
    Claim means any request, demand, or submission--
    (1) Made to the Broadcasting Board of Governors for property, 
services or money (including money representing grants, loans, insurance 
or benefits);
    (2) Made to a recipient of property, services or money from the 
Broadcasting Board of Governors, or to a party to a contract with the 
Broadcasting Board of Governors--
    (i) For property or services if the United States--
    (A) Provided such property or services;
    (B) Provided any portion of the funds for the purchase of such 
property or services; or
    (C) Will reimburse such recipient or party for the purchase of such 
property or services; or
    (ii) For the payment of money (including money representing grants, 
loans, insurance, or benefits) if the United States--
    (A) Provided any portion of the money requested or demanded; or
    (B) Will reimburse such recipient or party for any portion of the 
money paid on such request or demand; or
    (3) Made to the Broadcasting Board of Governors which has the effect 
of decreasing an obligation to pay or account for property, services, or 
money.
    Complaint means the administrative complaint served by the reviewing 
official on the defendant under Sec. 521.7.
    Defendant means any person alleged in a complaint under Sec. 521.7 
to be liable

[[Page 180]]

for a civil penalty or assessment under Sec. 521.3.
    Director means Director of the Broadcasting Board of Governors.
    Government means the United States Government.
    Individual means a natural person.
    Initial decision means the written decision of the ALJ required by 
Sec. 521.10 or Sec. 521.37, and includes a revised initial decision 
issued following a remand or a motion for reconsideration.
    Investigating Official means the Inspector General for the 
Broadcasting Board of Governors or an officer or employee of the Office 
of Inspector General designated by the Inspector General and serving in 
a position for which the rate of basic pay is not less than the minimum 
rate of basic pay for grade GS-16 under the General Schedule.
    Knows or has reason to know means that a person, with respect to a 
claim or statement--
    (1) Has the actual knowledge that the claim or statement is false, 
fictitious, or fraudulent;
    (2) Acts in deliberate ignorance of the truth or falsity of the 
claim or statement; or
    (3) Acts in reckless disregard of the truth or falsity of the claim 
or statement.
    Makes, wherever it appears, shall include the terms presents, 
submits and causes to be made, presented, or submitted. As the context 
requires, making or made shall likewise include the corresponding forms 
of such terms.
    Person means any individual, partnership, corporation, association, 
or private organization and includes the plural of that term.
    Representative means an attorney who is a member in good standing of 
the bar of any State, Territory, or possession of the United States or 
the District of Columbia or the Commonwealth of Puerto Rico.
    Reviewing official means the General Counsel of the Broadcasting 
Board of Governors or his designee who is:
    BBG means the Broadcasting Board of Governors.
    (1) Not subject to supervision by, or required to report to, the 
investigating official;
    (2) Not employed in the organizational unit of the Broadcasting 
Board of Governors in which the investigating official is employed; and
    (3) Is serving in a position for which the rate of basic pay is not 
less than the minimum rate of basic pay for grade GS-16 under the 
General Schedule.
    Statement means any representation, certification, affirmation, 
document, record, or accounting or bookkeeping entry made--
    (1) With respect to a claim or to obtain the approval or payment of 
a claim (including relating to eligibility to make a claim); or
    (2) With respect to (including relating to eligibility for)--
    (i) A contract with, or a bid or proposal for a contract with; or
    (ii) A grant, loan, or benefit from, the Broadcasting Board of 
Governors, or any State, political subdivision of a State, or other 
party, if the United States Government provides any portion of the money 
or property under such contract or for such grant, loan, or benefit, or 
if the Government will reimburse such State, political subdivision, or 
party for any portion of the money or property under such contract or 
for such grant, loan, or benefit.
    BBG means the Broadcasting Board of Governors.



Sec. 521.3  Basis for civil penalties and assessments.

    (a) Claims. (1) Any person who makes claim that the person knows or 
has reason to know--
    (i) Is false, fictitious, or fraudulent;
    (ii) Includes or is supported by any written statement which asserts 
a material fact which is false, fictitious, or fraudulent;
    (iii) Includes or is supported by any written statement that--
    (A) Omits a material fact;
    (B) Is false, fictitious, or fraudulent as a result of such 
omission; and
    (C) Is a statement in which the person making such statement has a 
duty to include such material fact; or
    (iv) Is for payment for the provision of property or services which 
the person has not provided as claimed; shall be subject, in addition to 
any other remedy that may be prescribed by law,

[[Page 181]]

to a civil penalty of not more than $5,000 for each such claim.
    (2) Each voucher, invoice, claim form, or other individual request 
or demand for property, services, or money constitutes a separate claim.
    (3) A claim shall be considered made to the Broadcasting Board of 
Governors, a recipient, or party when such claim is actually made to an 
agent, fiscal intermediary, or other entity, including any State or 
political subdivision thereof, acting for or on behalf of the 
Broadcasting Board of Governors or such recipient or party.
    (4) Each claim for property, services, or money is subject to a 
civil penalty regardless of whether such property, services, or money is 
actually delivered or paid.
    (5) If the Government has made any payment (including transferred 
property or provided services) on a claim, a person subject to a civil 
penalty under paragraph (a)(1) of this section shall also be subject to 
an assessment of not more than twice the amount of such claim or that 
portion thereof that is determined to be in violation of paragraph 
(a)(1) of this section. Such assessment shall be in lieu of damages 
sustained by the Government because of such claim.
    (b) Statement. (1) Any person who makes, a written statement that--
    (i) The person knows or has reason to know--
    (A) Asserts a material fact which is false, fictitious, or 
fraudulent; or
    (B) Is false, fictitious, or fraudulent because it omits a material 
fact that the person making the statement has a duty to include in such 
statement; and
    (ii) Contains or is accompanied by an express certification or 
affirmation of the truthfulness and accuracy of the contents of the 
statement, shall be subject, in addition to any other remedy that may be 
prescribed by law, to a civil penalty of not more than $5,000 for each 
such statement.
    (2) Each written representation, certification, or affirmation 
constitutes a separate statement.
    (3) A statement shall be considered made to the Broadcasting Board 
of Governors when such statement is actually made to an agent, fiscal 
intermediary, or other entity, including any State or political 
subdivision thereof, acting for or on behalf of the Broadcasting Board 
of Governors.
    (c) No proof of specific intent to defraud is required to establish 
liability under this section.
    (d) In any case in which it is determined that more than one person 
is liable for making a claim or statement under this section, each such 
person may be held liable for a civil penalty under this section.
    (e) In any case in which it is determined that more than one person 
is liable for making a claim under this section on which the Government 
has made payment (including transferred property or provided services), 
an assessment may be imposed against any such person or jointly and 
severally against any combination of such persons.



Sec. 521.4  Investigation.

    (a) If an investigating official concludes that a subpoena pursuant 
to the authority conferred by 31 U.S.C. 3804(a) is warranted--
    (1) The subpoena so issued shall notify the person to whom it is 
addressed of the authority under which the subpoena is issued, and shall 
identify the records or documents sought;
    (2) The investigating official may designate a person to act on his 
or her behalf to receive the documents sought; and
    (3) The person receiving such subpoena shall be required to tender 
to the investigating official or the person designated to receive the 
documents a certification that the documents sought have been produced, 
or that such documents are not available and the reasons therefore, or 
that such documents, suitably identified, have been withheld based upon 
the assertion of an identified privilege.
    (b) If the investigating official concludes that an action under the 
Program Fraud Civil Remedies Act may be warranted, the investigating 
official shall submit a report containing the findings and conclusions 
of such investigation to the reviewing official.
    (c) Nothing in this section shall preclude or limit an investigating 
official's discretion to refer allegations directly to the Department of 
Justice for

[[Page 182]]

suit under the False Claims Act or other civil relief, or to defer or 
postpone a report or referral to the reviewing official to avoid 
interference with a criminal investigation or prosecution.
    (d) Nothing in this section modifies any responsibility of an 
investigating official to report violations of criminal law to the 
Attorney General.



Sec. 521.5  Review by the reviewing official.

    (a) If, based on the report of the investigating official under 
Sec. 521.4(b), the reviewing official determines that there is adequate 
evidence to believe that a person is liable under Sec. 521.3 of this 
part, the reviewing official shall transmit to the Attorney General a 
written notice of the reviewing official's intention to issue a 
complaint under Sec. 521.7.
    (b) Such notice shall include--
    (1) A statement of the reviewing official's reasons for issuing a 
complaint;
    (2) A statement specifying the evidence that supports the 
allegations of liability;
    (3) A description of the claims or statements upon which the 
allegations of liability are based;
    (4) An estimate of the amount of money or the value of property, 
services, or other benefits requested or demanded in violation of Sec. 
521.3 of this part;
    (5) A statement of any exculpatory or mitigating circumstances that 
may relate to the claims or statements known by the reviewing official 
or the investigating official; and
    (6) A statement that there is a reasonable prospect of collecting an 
appropriate amount of penalties and assessments.



Sec. 521.6  Prerequisites for issuing a complaint.

    (a) The reviewing official may issue a complaint under Sec. 521.7 
only if:
    (1) The Department of Justice approves the issuance of a complaint 
in a written statement described in 31 U.S.C. 3803(b)(1); and
    (2) In the case of allegations of liability under Sec. 521.3(a) 
with respect to a claim, the reviewing official determines that, with 
respect to such claim or a group of related claims submitted at the same 
time such claim is submitted (as defined in paragraph (b) of this 
section), the amount of money or the value of property or services 
demanded or requested in violation of Sec. 521.3(a) does not exceed 
$150,000.
    (b) For the purposes of this section, a related group of claims 
submitted at the same time shall include only those claims arising from 
the same transaction (e.g., grant, loan, application, or contract) that 
are submitted simultaneously as part of a single request, demand, or 
submission.
    (c) Nothing in this section shall be construed to limit the 
reviewing official's authority to join in a single complaint against a 
person's claims that are unrelated or were not submitted simultaneously, 
regardless of the amount of money, or the value of property or services, 
demanded or requested.



Sec. 521.7  Complaint.

    (a) On or after the date the Department of Justice approves the 
issuance of a complaint in accordance with 31 U.S.C. 3803(b)(1), the 
reviewing official may serve a complaint on the defendant, as provided 
in Sec. 521.8.
    (b) The complaint shall state:
    (1) Allegations of liability against the defendant including the 
statutory basis for liability, an identificaiton of the claims or 
statements that are the basis for the alleged liability, and the reasons 
why liability allegedly arises from such claims or statements;
    (2) The maximum amount of penalties and assessments for which the 
defendant may be held liable;
    (3) Instructions for filing an answer to request a hearing, 
including a specific statement of the defendant's right to request a 
hearing by filing an answer and to be represented by a representative; 
and
    (4) That failure to file an answer within 30 days of service of the 
complaint will result in the imposition of the maximum amount of 
penalties and assessment without right to appeal, as provided in Sec. 
521.10.
    (c) At the same time the reviewing official serves the complaint, he 
or she shall serve the defendant with a copy of these regulations.

[[Page 183]]



Sec. 521.8  Service of complaint.

    (a) Service of a complaint must be made by certified or registered 
mail or by delivery in any manner authorized by rule 4(d) of the Federal 
Rules of Civil Procedure. Service is complete upon receipt.
    (b) Proof of service, stating the name and address of the person on 
whom the complaint was served, and the manner and date of service, may 
be made by:
    (1) Affidavit of the individual serving the complaint by delivery;
    (2) A United States Postal Service return receipt card acknowledging 
receipt; or
    (3) Written acknowledgment of receipt by the defendant or the 
defendant's representative.
    (4) In case of service abroad authenticated in accordance with the 
Convention on the Service Abroad of Judicial and Extra Judicial 
Documents in Civil or Commercial Matters.



Sec. 521.9  Answer.

    (a) The defendant may request a hearing by filing an answer with the 
reviewing official within 30 days of service of the complaint. An answer 
shall be deemed to be a request for a hearing.
    (b) In the answer, the defendant:
    (1) Shall admit or deny each of the allegations of liability made in 
the complaint;
    (2) Shall state any defense on which the defendant intends to rely;
    (3) May state any reasons why the defendant contends that the 
penalties and assessments should be less than the statutory maximum; and
    (4) Shall state the name, address, and telephone number of the 
person authorized by the defendant to act as defendant's representative, 
if any.
    (c) If the defendant is unable to file an answer meeting the 
requirements of paragraph (b) of this section within the time provided, 
the defendant may, before the expiration of 30 days from service of the 
complaint, file with the reviewing official a general answer denying 
liability and requesting a hearing, and a request for an extension of 
time within which to file an answer meeting the requirements of 
paragraph (b) of this section. The reviewing official shall file 
promptly with the ALJ the complaint, the general answer denying 
liability, and the request for an extension of time as provided in Sec. 
521.11. For good cause shown, the ALJ may grant the defendant up to 30 
additional days within which to file an answer meeting the requirements 
of paragraph (b) of this section.



Sec. 521.10  Default upon failure to file an answer.

    (a) If the defendant does not file an answer within the time 
prescribed in Sec. 521.9(a), the reviewing official may refer the 
complaint to the ALJ.
    (b) Upon the referral of the complaint, the ALJ shall promptly serve 
on defendant in the manner prescribed in Sec. 521.8, a notice that an 
initial decision will be issued under this section.
    (c) If the defendant fails to answer, the ALJ shall assume the facts 
alleged in the complaint to be true, and, if such facts establish 
liability under Sec. 521.3, the ALJ shall issue an initial decision 
imposing the maximum amount of penalties and assessments allowed under 
the statute.
    (d) Except as otherwise provided in this section, by failing to file 
a timely answer, the defendant waives any right to further review of the 
penalties and assessments imposed under paragraph (c) of this section, 
and the initial decision shall become final and binding upon the parties 
30 days after it is issued.
    (e) If, before such an initial decision becomes final, the defendant 
files a motion with the ALJ seeking to reopen on the grounds that 
extraordinary circumstances prevented the defendant from filing an 
answer, the initial decision shall be stayed pending the ALJ's decision 
on the motion.
    (f) If, on such motion, the defendant can demonstrate extraordinary 
circumstances excusing the failure to file a timely answer, the ALJ 
shall withdraw the initial decision in paragraph (c) of this section, if 
such a decision has been issued, and shall grant the defendant an 
opportunity to answer the complaint.
    (g) A decision of the ALJ denying defendant's motion under paragraph 
(e) of this section is not subject to reconsideration under Sec. 
521.38.

[[Page 184]]

    (h) The defendant may appeal to the Director the decision denying a 
motion to reopen by filing a notice of appeal with the Director within 
15 days after the ALJ denies the motion. The timely filing of a notice 
of appeal shall stay the initial decision until the Director decides the 
issue.
    (i) If the defendant files a timely notice of appeal with the 
Director, the ALJ shall forward the record of the proceeding to the 
Director.
    (j) The Director shall decide expeditiously whether extraordinary 
circumstances excuse the defendant's failure to file a timely answer 
based solely on the record before the ALJ.
    (k) If the Director decides that extraordinary circumstances excused 
the defendant's failure to file a timely answer, the Director shall 
remand the case to the ALJ with instructions to grant the defendant an 
opportunity to answer.
    (l) If the Director decides that the defendant's failure to file a 
timely answer is not excused, the Director shall reinstate the initial 
decision of the ALJ, which shall become final and binding upon the 
parties 30 days after the Director issues such decision.



Sec. 521.11  Referral of complaint and answer to the ALJ.

    Upon receipt of an answer, the reviewing official shall file the 
complaint and answer with the ALJ.



Sec. 521.12  Notice of hearing.

    (a) When the ALJ receives the complaint and answer, the ALJ shall 
promptly serve a notice of hearing upon the defendant in the manner 
prescribed by Sec. 521.8. At the same time, the ALJ shall send a copy 
of such notice to the representative for the Government.
    (b) Such notice shall include:
    (1) The tentative time and place, and the nature of the hearing;
    (2) The legal authority and jurisdiction under which the hearing is 
to be held;
    (3) The matters of fact and law to be asserted;
    (4) A description of the procedures for the conduct of the hearing;
    (5) The name, address, and telephone number of the representative of 
the Government and of the defendant, if any; and
    (6) Such other matters as the ALJ deems appropriate.



Sec. 521.13  Parties to the hearing.

    (a) The parties to the hearing shall be the defendant and the 
Broadcasting Board of Governors.
    (b) Pursuant to 31 U.S.C. 3730(c)(5), a private plaintiff under the 
False Claims Act may participate in these proceedings to the extent 
authorized by the provisions of that Act.



Sec. 521.14  Separation of functions.

    (a) The investigating official, the reviewing official, and any 
employee or agent of the Broadcasting Board of Governors who takes part 
in investigating, preparing, or presenting a particular case may not, in 
such case or a factually related case:
    (1) Participate in the hearing as the ALJ;
    (2) Participate or advise in the initial decision or the review of 
the initial decision by the Director, except as a witness or 
representative in public proceedings; or
    (3) Make the collection of penalties and assessments under 31 U.S.C. 
3806.
    (b) The ALJ shall not be responsible to, or subject to, the 
supervision or direction of the investigating official or the reviewing 
official.
    (c) Except as provided in paragraph (a) of this section, the 
representative for the Government may be employed anywhere in the 
Broadcasting Board of Governors, including in the offices of either the 
investigating official or the reviewing official.



Sec. 521.15  Ex Parte contacts.

    No party or person (except employees of the ALJ's office) shall 
communicate in any way with the ALJ on any matter at issue in a case, 
unless on notice and opportunity for all parties to participate. This 
provision does not prohibit a person or party from inquiring about the 
status of a case or asking routine questions concerning administrative 
functions or procedures.

[[Page 185]]



Sec. 521.16  Disqualification of reviewing official or ALJ.

    (a) A reviewing official or ALJ in a particular case may disqualify 
himself or herself at any time.
    (b) A party may file with the ALJ a motion for disqualification of a 
reviewing official or ALJ. Such motion shall be accompanied by an 
affidavit alleging personal bias or other reason for disqualification.
    (c) Such motion and affidavit shall be filed promptly upon the 
party's discovery of reasons requiring disqualification, or such 
objections shall be deemed waived.
    (d) Such affidavit shall state specific facts that support the 
party's belief that personal bias or other reason for disqualification 
exists and the time and circumstances of the party's discovery of such 
facts. It shall be accompanied by a certificate of the representative of 
record that it is made in good faith.
    (e) Upon the filing of such a motion and affidavit, the ALJ shall 
proceed no further in the case until he or she resolves the matter of 
disqualification in accordance with paragraph (f) of this section.
    (f)(1) If the ALJ determines that the reviewing official is 
disqualified, the ALJ shall dismiss the complaint without prejudice.
    (2) If the ALJ disqualifies himself or herself, the case shall be 
reassigned promptly to another ALJ.
    (3) If the ALJ denies a motion to disqualify, the Director may 
determine the matter only as part of his or her review of the initial 
decision upon appeal, if any.



Sec. 521.17  Rights of parties.

    Except as otherwise limited by this part, all parties may:
    (a) Be accompanied, represented, and advised by a representative;
    (b) Participate in any conference held by the ALJ;
    (c) Conduct discovery;
    (d) Agree to stipulations of fact or law, which shall be made part 
of the record;
    (e) Present evidence relevant to the issues at the hearing;
    (f) Present and cross-examine witnesses;
    (g) Present oral arguments at the hearing as permitted by the ALJ; 
and
    (h) Submit written briefs and proposed findings of fact and 
conclusions of law after the hearing.



Sec. 521.18  Authority of the ALJ.

    (a) The ALJ shall conduct a fair and impartial hearing, avoid delay, 
maintain order, and assure that a record of the proceeding is made.
    (b) The ALJ may:
    (1) Set and change the date, time and place of the hearing upon 
reasonable notice to the parties;
    (2) Continue or recess the hearing in whole or in part for a 
reasonable period of time;
    (3) Hold conferences to identify or simplify the issues, or to 
consider other matters that may aid in the expeditious disposition of 
the proceeding;
    (4) Administer oaths and affirmations;
    (5) Issue subpoenas to be served within the United States requiring 
the attendance of witnesses and the production of documents at 
depositions or at hearings. Subpoenas to be served outside the 
jurisdiction of the United States shall state on their face the 
authority therefore;
    (6) Rule on motions and other procedural matters;
    (7) Regulate the scope and time of discovery;
    (8) Regulate the course of the hearing and the conduct of 
representatives and parties;
    (9) Examine witnesses;
    (10) Receive, rule on, exclude, or limit evidence;
    (11) Upon motion of a party, take official notice of facts;
    (12) Upon motion of a party, decide cases, in whole or in part, by 
summary judgment where there is no disputed issue of material fact;
    (13) Conduct any conference, argument, or hearing on motions in 
person or by telephone; and
    (14) Exercise such other authority as is necessary to carry out the 
responsibilities of the ALJ under this part.
    (c) The ALJ does not have the authority to find treaties and other 
international agreements or Federal Statutes or regulations invalid.

[[Page 186]]



Sec. 521.19  Prehearing conferences.

    (a) The ALJ may schedule prehearing conferences as appropriate.
    (b) Upon the motion of any party, the ALJ shall schedule at least 
one prehearing conference at a reasonable time in advance of the 
hearing.
    (c) The ALJ may use prehearing conferences to discuss the following:
    (1) Simplification of the issues;
    (2) The necessity or desirability of amendments to the pleadings, 
including the need for a more definite statement;
    (3) Stipulations and admissions of fact or as to the contents and 
authenticity of documents;
    (4) Whether the parties can agree to submission of the case on a 
stipulated record;
    (5) Whether a party chooses to waive appearance at an oral hearing 
and to submit only documentary evidence (subject to the objection of 
other parties) and written argument;
    (6) Limitation of the number of witnesses;
    (7) Scheduling dates for the exchange of witness lists and of 
proposed exhibits;
    (8) Discovery;
    (9) The time and place for the hearing; and
    (10) Such other matters as may tend to expedite the fair and just 
disposition of the proceedings.
    (d) The ALJ shall issue an order containing all matters agreed upon 
by the parties or ordered by the ALJ at a prehearing conference.



Sec. 521.20  Disclosure of documents.

    (a) Upon written request to the reviewing official, the defendant 
may review any relevant and material documents, transcripts, records, 
and other materials that relate to the allegations set out in the 
complaint and upon which the findings and conclusions of the 
investigating official under Sec. 521.4(b) are based, unless such 
documents are subject to a privilege under Federal law. Upon payment of 
fees for duplication, the defendant may obtain copies of such documents.
    (b) Upon written request to the reviewing official, the defendant 
also may obtain a copy of all exculpatory information in the possession 
of the reviewing official or investigating official relating to the 
allegations in the complaint, even if it is contained in a document that 
would otherwise be privileged. If the document would otherwise be 
privileged, only that portion containing exculpatory information must be 
disclosed.
    (c) The notice sent to the Attorney General from the reviewing 
official as described in Sec. 521.5 is not discoverable under any 
circumstances.
    (d) The defendant may file a motion to compel disclosure of the 
doucment subject to the provisions of this section. Such a motion may 
only be filed with the ALJ following the filing of an answer pursuant to 
Sec. 521.9.



Sec. 521.21  Discovery.

    (a) The following types of discovery are authorized:
    (1) Requests for production of documents for inspection and copying;
    (2) Requests for admissions of the authenticity of any relevant 
document or the truth of any relevant fact;
    (3) Written interrogatories; and
    (4) Depositions.
    (b) For the purpose of this section and Sec. 521.22 and Sec. 
521.23, the term ``documents'' includes information, documents, reports, 
answers, records, accounts, papers, and other data and documentary 
evidence. Nothing contained herein shall be interpreted to require the 
creation of a document.
    (c) Unless mutually agreed to by the parties, discovery is available 
only as ordered by the ALJ. The ALJ shall regulate the timing of 
discovery.
    (d) Motions for discovery. (1) A party seeking discovery may file a 
motion with the ALJ. Such a motion shall be accompanied by a copy of the 
requested discovery, or in the case of depositions, a summary of the 
scope of the proposed deposition.
    (2) Within ten days of service a party may file an opposition to the 
motion and/or a motion for protective order as provided Sec. 521.24.
    (3) The ALJ may grant a motion for discovery only if the ALJ finds 
that the discovery sought:
    (i) Is necessary for the expeditious, fair, and reasonable 
consideration of the issues;

[[Page 187]]

    (ii) Is not unduly costly or burdensome;
    (iii) Will not unduly delay the proceeding; and
    (iv) Does not seek privileged information.
    (4) The burden of showing that discovery should be allowed is on the 
party seeking discovery.
    (5) The ALJ may grant discovery subject to a protective order under 
Sec. 521.24.
    (e) Deposition. (1) If a motion for deposition is granted, the ALJ 
shall issue a subpoena for the deponent, which may require the deponent 
to produce documents. The subpoena shall specify the time and place at 
which the deposition will be held.
    (2) The party seeking to depose shall serve the subpoena in the 
manner prescribed in Sec. 521.8.
    (3) The deponent may file with the ALJ a motion to quash the 
subpoena or a motion for a protective order within ten days of service.
    (4) The party seeking to depose shall provide for the taking of a 
verbatim transcript of the deposition which it shall make available to 
all other parties for inspection and copying.
    (f) Each party shall bear its own costs of discovery.



Sec. 521.22  Exchange of witness lists, statements and exhibits.

    (a) At least 15 days before the hearing or at such other time as may 
be ordered by the ALJ, the parties shall exchange witness lists, copies 
of prior statements of proposed witnesses, and copies of proposed 
hearing exhibits, including copies of any written statements that the 
party intends to offer in lieu of live testimony in accordance with 
Sec. 521.33(b). At the time the above documents are exchanged, any 
party that intends to rely on the transcript of deposition testimony in 
lieu of live testimony at the hearing, if permitted by the ALJ, shall 
provide each party with a copy of the specific pages of the transcript 
it intends to introduce into evidence.
    (b) If a party objects, the ALJ shall not admit into evidence the 
testimony of any witness whose name does not appear on the witness list 
or any exhibit not provided to the opposing party as provided above, 
unless the ALJ finds good cause for the failure or that there is no 
prejudice to the objecting party.
    (c) Unless another party objects within the time set by the ALJ, 
documents exchanged in accordance with paragraph (a) of this section 
shall be deemed to be authentic for the purpose of admissibility at the 
hearing.



Sec. 521.23  Subpoenas for attendance at hearing.

    (a) A party wishing to procure the appearance and testimony of any 
individual at the hearing may request that the ALJ issue a subpoena.
    (b) A subpoena requiring the attendance and testimony of an 
individual may also require the individual to produce documents at the 
hearing.
    (c) A party seeking a subpoena shall file a written request therefor 
not less than 15 days before the date fixed for the hearing unless 
otherwise allowed by the ALJ for good cause shown. Such request shall 
specify any documents to be produced and shall designate the witnesses 
and describe the address and location thereof with sufficient 
particularity to permit such witnesses to be found.
    (d) The subpoena shall specify the time and place at which the 
witness is to appear and any documents the witness is to produce.
    (e) The party seeking the subpoena shall serve it in the manner 
prescribed in Sec. 521.8. A subpoena on a party or upon an individual 
under the control of a party may be served by first class mail.
    (f) A party or individual to whom the subpoena is directed may file 
with the ALJ a motion to quash the subpoena within ten days after 
service or on or before the time specified in the subpoena for 
compliance if it is less than ten days after service.



Sec. 521.24  Protective order.

    (a) A party or a prospective witness or deponent may file a motion 
for a protective order with respect to discovery sought by an opposing 
party or, with respect to the hearing, seeking to limit the availability 
or disclosure of evidence.
    (b) In issuing a protective order, the ALJ may make any order which 
justice requires to protect a party or person

[[Page 188]]

from annoyance, embarrassment, oppression, or undue burden or expense, 
including one or more of the following:
    (1) That the discovery not be had;
    (2) That the discovery may be had only on specified terms and 
conditions, including a designation of the time or place;
    (3) That the discovery may be had only through a method of discovery 
other than that requested;
    (4) That certain matters not be inquired into, or that the scope of 
discovery be limited to certain matters;
    (5) That discovery be conducted with no one present except persons 
designated by the ALJ;
    (6) That the contents of discovery or evidence be sealed;
    (7) That a deposition after being sealed be opened only by order of 
the ALJ;
    (8) That a trade secret or other confidential research, development, 
commercial information, or facts pertaining to any criminal 
investigation, proceeding or other administrative investigation not be 
disclosed or be disclosed only in a designated way; or
    (9) That the parties simultaneously file specified documents or 
information enclosed in sealed envelopes to be opened as directed by the 
ALJ.



Sec. 521.25  Fees.

    The party requesting a subpoena shall pay the cost of the fee and 
mileage of any witness subpoenaed in the amounts that would be payable 
to a witness in a proceeding in the United States District Court. A 
check for witness fees and mileage shall accompany the subpoena when 
served, except that when a subpoena is issued on behalf of the 
Broadcasting Board of Governors, a check for witness fees and mileage 
need not accompany the subpoena.



Sec. 521.26  Form, filing and service of papers.

    (a) Form. (1) Documents filed with the ALJ shall include an original 
and two copies.
    (2) Every pleading and paper filed in the proceeding shall contain a 
caption setting forth the title of the action, the case number assigned 
by the ALJ, and a designation of the paper (e.g., motion to quash 
subpoena), and shall be in English or accompanied by an English 
translation.
    (3) Every pleading and paper shall be signed by, and shall contain 
the address and telephone number of, the party or the person on whose 
behalf the paper was filed, or his or her representative.
    (4) Papers are considered filed when they are mailed. Date of 
mailing may be established by a certificate from the party or its 
representative or by proof that the document was sent by certified or 
registered mail.
    (b) Service. A party filing a document with the ALJ shall, at the 
time of filing, serve a copy of such document on every other party. 
Service upon any party of any document other than those required to be 
served as prescribed in Sec. 521.8, shall be made by delivering a copy 
or by placing a copy of the document in the United States mail, postage 
prepaid, and addressed to the party's last known address. When a party 
is represented by a representative, service shall be made upon such 
representative in lieu of the actual party.
    (c) Proof of service. A certificate of the individual serving the 
document by personal delivery or by mail, setting forth the manner of 
service, shall be proof of service.



Sec. 521.27  Computation of time.

    (a) In computing any period of time under this part or in an order 
issued hereunder, the time begins with the day following the act, event, 
or default, and includes the last day of the period, unless it is a 
Saturday, Sunday, or legal holiday observed by the Federal Government, 
in which event it includes the next business day.
    (b) When the period of time allowed is less than seven days, 
intermediate Saturdays, Sundays, and legal holidays observed by the 
Federal Government shall be excluded from the computation.
    (c) Where a document has been served or issued by placing it in the 
mail, an additional five days will be added to the time permitted for 
any response.

[[Page 189]]



Sec. 521.28  Motions.

    (a) Any application to the ALJ for an order or ruling shall be by 
motion. Motions shall state the relief sought, the authority relied 
upon, and the facts alleged, and shall be filed with the ALJ and served 
on all other parties.
    (b) Except for motions made during a prehearing conference or at the 
hearing, all motions shall be in writing. The ALJ may require that oral 
motions be reduced to writing.
    (c) Within 15 days after a written motion is served, or such other 
time as may be fixed by the ALJ, any party may file a response to such 
motion.
    (d) The ALJ may not grant a written motion before the time for 
filing responses thereto has expired, except upon consent of the parties 
or following a hearing on the motion, but may overrule or deny such 
motion without awaiting a response.
    (e) The ALJ shall make a reasonable effort to dispose of all 
outstanding motions prior to the beginning of the hearing.



Sec. 521.29  Sanctions.

    (a) The ALJ may sanction a person, including any party or 
representative for:
    (1) Failing to comply with an order, rule, or procedure governing 
the proceeding;
    (2) Failing to prosecute or defend an action; or
    (3) Engaging in other misconduct that interferes with the speedy, 
orderly, or fair conduct of the hearing.
    (b) Any such sanction, including but not limited to those listed in 
paragraphs (c), (d), and (e) of this section, shall reasonably relate to 
the severity and nature of the failure or misconduct.
    (c) When a party fails to comply with an order, including an order 
for taking a deposition, the production of evidence within the party's 
control, or a request for admission, the ALJ may:
    (1) Draw an inference in favor of the requesting party with regard 
to the information sought;
    (2) In the case of requests for admission, deem each matter of which 
an admission is requested to be admitted;
    (3) Prohibit the party failing to comply with such order from 
introducing evidence concerning, or otherwise relying upon, testimony 
relating to the information sought; and
    (4) Strike any part of the pleadings or other submissions of the 
party failing to comply with such request.
    (d) If a party fails to prosecute or defend an action under this 
part commenced by service of a notice of hearing, the ALJ may dismiss 
the action or may issue an initial decision imposing penalties and 
assessments.
    (e) The ALJ may refuse to consider any motion, request, response, 
brief or other document which is not filed in a timely fashion.



Sec. 521.30  The hearing and burden of proof.

    (a) The ALJ shall conduct a hearing on the record in order to 
determine whether the defendant is liable for a civil penalty or 
assessment under Sec. 521.3, and if so, the appropriate amount of any 
such civil penalty or assessment considering any aggravating or 
mitigating factors.
    (b) The Broadcasting Board of Governors shall prove defendant's 
liability and any aggravating factors by a preponderance of the 
evidence.
    (c) The defendant shall prove any affirmative defenses and any 
mitigating factors by a preponderance of the evidence.
    (d) The hearing shall be open to the public unless otherwise ordered 
by the ALJ for good cause shown.



Sec. 521.31  Determining the amount of penalties and assessments.

    (a) In determining an appropriate amount of civil penalties and 
assessments, the ALJ and the Director, upon appeal, should evaluate any 
circumstances that mitigate or aggravate the violation and should 
articulate in their opinions the reasons that support the penalties and 
assessments they impose. Because of the intangible costs of fraud, the 
expense of investigating such conduct, and the need to deter others who 
might be similarly tempted, ordinarily double damages and a significant 
civil penalty should be imposed.
    (b) Although not exhaustive, the following factors are among those 
that

[[Page 190]]

may influence the ALJ and the Director in determining the amount of 
penalties and assessments to impose with respect to the misconduct 
(i.e., the false, fictitious, or fraudulent claims or statements) 
charged in the complaint:
    (1) The number of false, fictitious, or fraudulent claims or 
statements;
    (2) The time period over which such claims or statements were made;
    (3) The degree of the defendant's culpability with respect to the 
misconduct;
    (4) The amount of money or the value of the property, services, or 
benefit falsely claimed;
    (5) The value of the Government's actual loss as a result of the 
misconduct, including foreseeable consequential damages and the costs of 
investigation;
    (6) The relationship of the amount imposed as civil penalties to the 
amount of the Government's loss;
    (7) The potential or actual impact of the misconduct upon national 
defense, public health or safety, or public confidence in the management 
of Government programs and operations, including particularly the impact 
on the intended beneficiaries of such programs;
    (8) Whether the defendant has engaged in a pattern of the same or 
similar misconduct;
    (9) Whether the defendant attempted to conceal the misconduct;
    (10) The degree to which the defendant has involved others in the 
misconduct or in concealing it;
    (11) Where the misconduct of employees of agents is imputed to the 
defendant, the extent to which the defendant's practices fostered or 
attempted to preclude such misconduct;
    (12) Whether the defendant cooperated in or obstructed an 
investigation of the misconduct;
    (13) Whether the defendant assisted in identifying and prosecuting 
other wrongdoers;
    (14) The complexity of the program or transaction, and the degree of 
the defendant's sophistication with respect to it, including the extent 
of defendant's prior participation in the program or in similar 
transactions;
    (15) Whether the defendant has been found, in any criminal, civil, 
or administrative proceeding, to have engaged in similar misconduct or 
to have dealt dishonestly with the Government of the United States or of 
a State, directly or indirectly; and
    (16) The need to deter the defendant and others from engaging in the 
same or similar misconduct.
    (c) Nothing in this section shall be construed to limit the ALJ or 
the Director from considering any other factors that in any given case 
may mitigate or aggravate the offense for which penalties and 
assessments are imposed.



Sec. 521.32  Location of hearing.

    (a) The hearing may be held:
    (1) In any judicial district of the United States in which the 
defendant resides or transacts business;
    (2) In any judicial district of the United States in which the claim 
or statement in issue was made; or
    (3) In such other place as may be agreed upon by the defendant and 
the ALJ.
    (b) Each party shall have the opportunity to present arguments with 
respect to the location of the hearing.
    (c) The hearing shall be held at the place and at the time ordered 
by the ALJ.



Sec. 521.33  Witnesses.

    (a) Except as provided in paragraph (b) of this section, testimony 
at the hearing shall be given orally by witnesses under oath or 
affirmation.
    (b) At the discretion of the ALJ, testimony may be admitted in the 
form of a written statement or deposition. Any such written statement 
must be provided to all other parties along with the last known address 
of such witness, in a manner which allows sufficient time for other 
parties to subpoena such witness for cross-examination at the hearing. 
Prior written statements of witnesses proposed to testify at the hearing 
and deposition transcripts shall be exchanged as provided in Sec. 
521.22(a).
    (c) The ALJ shall exercise reasonable control over the mode and 
order of interrogating witnesses and presenting evidence so as to
    (1) Make the interrogation and presentation effective for the 
ascertainment of the truth,

[[Page 191]]

    (2) Avoid needless consumption of time, and
    (3) Protect witnesses from harassment or undue embarrassment.
    (d) The ALJ shall permit the parties to conduct such cross-
examination as may be required for a full and true disclosure of the 
facts.
    (e) At the discretion of the ALJ, a witness may be cross-examined on 
matters relevant to the proceeding without regard to the scope of his or 
her direct examination. To the extent permitted by the ALJ, cross-
examination on matters outside the scope of direct examination shall be 
conducted in the manner of direct examination and may proceed by leading 
questions only if the witness is a hostile witness, an adverse party, or 
a witness identified with an adverse party.
    (f) Upon motion of any party, the ALJ shall order witnesses excluded 
so that they cannot hear the testimony of other witnesses. This rule 
does not authorize exclusion of:
    (1) A party who is an individual;
    (2) In the case of a party that is not an individual, an officer or 
employee of the party appearing for the entity pro se or designated by 
the party's representative; or
    (3) An individual whose presence is shown by a party to be essential 
to the presentation of its case, including an individual employed by the 
Government engaged in assisting the representative for the Government.



Sec. 521.34  Evidence.

    (a) The ALJ shall determine the admissibility of evidence.
    (b) Except as provided in this part, the ALJ shall not be bound by 
the Federal Rules of Evidence. However, the ALJ may apply the Federal 
Rules of Evidence, where appropriate (e.g., to exclude unreliable 
evidence).
    (c) The ALJ shall exclude irrelevant and immaterial evidence.
    (d) Although relevant, evidence may be excluded if its probative 
value is substantially outweighed by the danger of unfair prejudice, 
confusion of the issues, or by consideration of undue delay or needless 
presentation of cumulative evidence.
    (e) Although relevant, evidence may be excluded if it is privileged 
under Federal law.
    (f) Evidence concerning offers of compromise or settlement shall be 
inadmissible to the extent provided in Rule 408 of the Federal Rules of 
Evidence.
    (g) The ALJ shall permit the parties to introduce rebuttal witnesses 
and evidence.
    (h) All documents and other evidence offered or taken for the record 
shall be open to examination by all parties, unless otherwise ordered by 
the ALJ pursuant to Sec. 521.24.



Sec. 521.35  The record.

    (a) The hearing will be recorded and transcribed. Transcripts may be 
obtained following the hearing from the ALJ at a cost not to exceed the 
actual cost of duplication.
    (b) The transcript of testimony, exhibits and other evidence 
admitted at the hearing, and all papers and requests filed in the 
proceeding constitute the record for the decision by the ALJ and the 
Director.
    (c) The record of the hearing may be inspected and copied (upon 
payment of a reasonable fee) by anyone, unless otherwise ordered by the 
ALJ pursuant to Sec. 521.24.



Sec. 521.36  Post-hearing briefs.

    The ALJ may require the parties to file post-hearing briefs. In any 
event, any party may file a post-hearing brief. The ALJ shall fix the 
time for filing briefs, at a time not exceeding 60 days from the date 
the parties receive the transcript of the hearing or, if applicable, the 
stipulated record. Such briefs may be accompanied by proposed findings 
of fact and conclusions of law. The ALJ may permit the parties to file 
reply briefs.



Sec. 521.37  Initial decision.

    (a) The ALJ shall issue an initial decision based only on the 
record, which shall contain findings of fact, conclusions of law, and 
the amount of any penalties and assessments imposed.
    (b) The findings of fact shall include a finding on each of the 
following issues:

[[Page 192]]

    (1) Whether the claims or statements identified in the complaint, or 
any portion thereof, violate Sec. 521.3;
    (2) If the person is liable for penalties or assessments, the 
appropriate amount of any such penalties or assessments, considering any 
mitigating or aggravating factors that he or she finds in the case, such 
as those described in Sec. 521.31.
    (c) The ALJ shall promptly serve the initial decision on all parties 
within 90 days after the time for submission of post-hearing briefs and 
reply briefs (if permitted) has expired. The ALJ shall at the same time 
serve all parties with a statement describing the right of any defendant 
determined to be liable for a civil penalty or assessment to file a 
motion for reconsideration with the ALJ or a notice of appeal with the 
Director. If the ALJ fails to meet the deadline contained in this 
paragraph, he or she shall notify the parties of the reason for the 
delay and shall set a new deadline.
    (d) Unless the initial decision of the ALJ is timely appealed to the 
Director, or a motion for reconsideration of the initial decision is 
timely filed, the initial decision shall constitute the final decision 
of the Director and shall be final and binding on the parties 30 days 
after it is issued by the ALJ.



Sec. 521.38  Reconsideration of initial decision.

    (a) Except as provided in paragraph (d) of this section, any party 
may file a motion for reconsideration of the initial decision within 20 
days of receipt of the initial decision. If service was made by mail, 
receipt will be presumed to be five days from the date of mailing in the 
absence of contrary proof.
    (b) Every such motion must set forth the matters claimed to have 
been erroneously decided and the nature of the alleged errors. Such 
motion shall be accompanied by a supporting brief.
    (c) Responses to such motions shall be allowed only upon request of 
the ALJ.
    (d) No party may file a motion for reconsideration of an initial 
decision that has been revised in response to a previous motion for 
reconsideration.
    (e) The ALJ may dispose of a motion for reconsideration by denying 
it or by issuing a revised initial decision.
    (f) If the ALJ denies a motion for reconsideration, the initial 
decision shall constitute the final decision of the Director and shall 
be final and binding on the parties 30 days after the ALJ denies the 
motion, unless the initial decision is timely appealed to the Director 
in accordance with Sec. 521.39.
    (g) If the ALJ issues a revised initial decision, that decision 
shall constitute the final decision of the Director and shall be final 
and binding on the parties 30 days after it is issued, unless it is 
timely appealed to the Director in accordance with Sec. 521.39.



Sec. 521.39  Appeal to the Broadcasting Board of Governors Director.

    (a) Any defendant who has filed a timely answer and who is 
determined in an initial decision to be liable for a civil penalty or 
assessment may appeal such decision to the Broadcasting Board of 
Governors Director by filing a notice of appeal with the Broadcasting 
Board of Governors Director in accordance with this section.
    (b)(1) No notice of appeal may be filed until the time period for 
filing a motion for reconsideration under Sec. 521.38 has expired.
    (2) If a motion for reconsideration is timely filed, a notice of 
appeal may be filed within 30 days after the ALJ denies the motion or 
issues a revised initial decision, whichever applies.
    (3) If no motion for reconsideration is timely filed, a notice of 
appeal must be filed within 30 days after the ALJ issues the initial 
decision.
    (4) The Director may extend the initial 30-day period for an 
additional 30 days if the defendant files with the Director a request 
for an extension within the initial 30-day period and shows good cause.
    (c) If the defendant files a timely notice of appeal with the 
Director, and the time for filing motions for reconsideration under 
Sec. 521.38 has expired, the ALJ shall forward the record of the 
proceeding to the Director.
    (d) A notice of appeal shall be accompanied by a written brief 
specifying exceptions to the initial decisions and reasons supporting 
the exceptions.

[[Page 193]]

    (e) The representative for the Government may file a brief in 
opposition to exceptions within 30 days of receiving the notice of 
appeal and accompanying brief.
    (f) There is no right to appear personally before the Director.
    (g) There is no right to appeal any interlocutory ruling by the ALJ.
    (h) In reviewing the initial decision, the Director shall not 
consider any objection that was not raised before the ALJ unless a 
demonstration is made of extraordinary circumstances causing the failure 
to raise the objection.
    (i) If any party demonstrates to the satisfaction of the Director 
that additional evidence not presented at such hearing is material and 
that there were reasonable grounds for the failure to present such 
evidence at such hearing, the Director shall remand the matter to the 
ALJ for consideration of such additional evidence.
    (j) The Director may affirm, reduce, reverse, compromise, remand, or 
settle any penalty or assessment determined by the ALJ in an initial 
decision.
    (k) The Director shall promptly serve each party to the appeal with 
a copy of her/his decision and a statement describing the right of any 
person determined to be liable for a penalty or assessment to seek 
judicial review.
    (l) Unless a petition for review is filed as provided in 31 U.S.C. 
3805 after a defendant has exhausted all administrative remedies under 
this part and within 60 days after the date on which the Director serves 
the defendant with a copy of her/his decision, a determination that a 
defendant is liable under Sec. 521.3 is final and is not subject to 
judicial review.



Sec. 521.40  Stays ordered by the Department of Justice.

    If at any time the Attorney General or an Assistant Attorney General 
designated by the Attorney General transmits to the Director a written 
finding that continuation of the administrative process described in 
this part with respect to a claim or statement may adversely affect any 
pending or potential criminal or civil action related to such claim or 
statement, the Director shall stay the process immediately. The Director 
may order the process resumed only upon receipt of the written 
authorization of the Attorney General.



Sec. 521.41  Stay pending appeal.

    (a) An initial decision is stayed automatically pending disposition 
of a motion for reconsideration or of an appeal to the Director.
    (b) No administrative stay is available following a final decision 
of the Director.



Sec. 521.42  Judicial review.

    Section 3805 of title 31, United States Code, authorizes judicial 
review by an appropriate United States District Court of a final 
decision of the Director imposing penalties or assessments under this 
part and specifies the procedures for such.



Sec. 521.43  Collection of civil penalties and assessments.

    Sections 3806 and 3808(b) of title 31, United States Code, authorize 
actions for collection of civil penalties and assessments imposed under 
this part and specify the procedures for such actions.



Sec. 521.44  Right to administrative offset.

    The amount of any penalty or assessment which has become final, or 
for which a judgment has been entered under Sec. 521.42 or Sec. 
521.43, or any amount agreed upon in a compromise or settlement under 
Sec. 521.46, may be collected by administrative offset under 31 U.S.C. 
3716, except that an administrative offset may not be made under the 
subsection against a refund of an overpayment of Federal taxes, then or 
later owing by the United States to the defendant.



Sec. 521.45  Deposit in Treasury of United States.

    All amounts collected pursuant to this part shall be deposited as 
miscellaneous receipts in the Treasury of the United States, except as 
provided in 31 U.S.C. 3806(g).



Sec. 521.46  Compromise or settlement.

    (a) Parties may make offers of compromise or settlement at any time.
    (b) The reviewing official has the exclusive authority to compromise 
or settle a case under this part at any

[[Page 194]]

time after the date on which the reviewing official is permitted to 
issue a complaint and before the date on which the ALJ issues an initial 
decision.
    (c) The Director has exclusive authority to compromise or settle a 
case under this part at any time after the date on which the ALJ issues 
an initial decision, except during pendency of any review under Sec. 
521.42 or during the pendency of any action to collect penalties and 
assessments under Sec. 521.43.
    (d) The Attorney General has exclusive authority to compromise or 
settle a case under this part during the pendency of any review under 
Sec. 521.42 or of any action to recover penalties and assessments under 
31 U.S.C. 3806.
    (e) The investigating official may recommend settlement terms to the 
reviewing official, the Director, or the Attorney General, as 
appropriate. The reviewing official may recommend settlement terms to 
the Director, or the Attorney General, as appropriate.
    (f) Any compromise or settlement must be in writing.



Sec. 521.47  Limitations.

    (a) The notice of hearing with respect to a claim or statement must 
be served in the manner specified in Sec. 521.8 within 6 years after 
the date on which such claim or statement is made.
    (b) If the defendant fails to file a timely answer, service of a 
notice under Sec. 521.10(b) shall be deemed notice of hearing for 
purposes of this section.
    (c) The statute of limitations may be extended by agreement of the 
parties.



PART 530_ENFORCEMENT OF NONDISCRIMINATION ON THE BASIS OF HANDICAP IN PROGRAMS 

OR ACTIVITIES CONDUCTED BY THE BROADCASTING BOARD OF GOVERNORS--Table of 

Contents




Sec.
530.101 Purpose.
530.102 Application.
530.103 Definitions.
530.104-530.109 [Reserved]
530.110 Self-evaluation.
530.111 Notice.
530.112-530.129 [Reserved]
530.130 General prohibitions against discrimination.
530.131-530.139 [Reserved]
530.140 Employment.
530.141-530.148 [Reserved]
530.149 Program accessibility: Discrimination prohibited.
530.150 Program accessibility: Existing facilities.
530.151 Program accessibility: New construction and alterations.
530.152-530.159 [Reserved]
530.160 Communications.
530.161-530.169 [Reserved]
530.170 Compliance procedures.
530.171-530.999 [Reserved]

    Authority: 29 U.S.C. 794.

    Source: 51 FR 22890, 22896, June 23, 1986, unless otherwise noted.



Sec. 530.101  Purpose.

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



Sec. 530.102  Application.

    This part applies to all programs or activities conducted by the 
Board.



Sec. 530.103  Definitions.

    For purposes of this part, the term--
    Assistant Attorney General means the Assistant Attorney General, 
Civil Rights Division, United States Department of Justice.
    Auxiliary aids means services or devices that enable persons with 
impaired sensory, manual, or speaking skills to have an equal 
opportunity to participate in, and enjoy the benefits of, programs or 
activities conducted by the Board. For example, auxiliary aids useful 
for persons with impaired vision include readers, brailled materials, 
audio recordings, telecommunications devices and other similar services 
and devices. Auxiliary aids useful for persons with impaired hearing 
include telephone handset amplifiers, telephones compatible with hearing 
aids, telecommunication devices for deaf persons (TDD's), interpreters, 
notetakers, written materials, and other similar services and devices.
    Complete complaint means a written statement that contains the 
complainant's name and address and describes

[[Page 195]]

the Board's alleged discriminatory action in sufficient detail to inform 
the Board of the nature and date of the alleged violation of section 
504. It shall be signed by the complainant or by someone authorized to 
do so on his or her behalf. Complaints filed on behalf of classes or 
third parties shall describe or identify (by name, if possible) the 
alleged victims of discrimination.
    Facility means all or any portion of buildings, structures, 
equipment, roads, walks, parking lots, rolling stock or other 
conveyances, or other real or personal property.
    Handicapped person means any person who has a physical or mental 
impairment that substantially limits one or more major life activities, 
has a record of such an impairment, or is regarded as having such an 
impairment.
    As used in this definition, the phrase:
    (1) Physical or mental impairment includes--
    (i) Any physiological disorder or condition, cosmetic disfigurement, 
or anatomical loss affecting one or more of the following body systems: 
Neurological; musculoskeletal; special sense organs; respiratory, 
including speech organs; cardiovascular; reproductive; digestive; 
genitourinary; hemic and lymphatic; skin; and endocrine; or
    (ii) Any mental or psychological disorder, such as mental 
retardation, organic brain syndrome, emotional or mental illness, and 
specific learning disabilities. The term physical or mental impairment 
includes, but is not limited to, such diseases and conditions as 
orthopedic, visual, speech, and hearing impairments, cerebral palsy, 
epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, 
diabetes, mental retardation, emotional illness, and drug addiction and 
alocoholism.
    (2) Major life activities includes functions such as caring for 
one's self, performing manual tasks, walking, seeing, hearing, speaking, 
breathing, learning, and working.
    (3) Has a record of such an impairment means has a history of, or 
has been misclassified as having, a mental or physical impairment that 
substantially limits one or more major life activities.
    (4) Is regarded as having an impairment means--
    (i) Has a physical or mental impairment that does not substantially 
limit major life activities but is treated by the Board as constituting 
such a limitation;
    (ii) Has a physical or mental impairment that substantially limits 
major life activities only as a result of the attitudes of others toward 
such impairment; or
    (iii) Has none of the impairments defined in paragraph (1) of this 
definition but is treated by the Board as having such an impairment.
    Historic preservation programs means programs conducted by the Board 
that have preservation of historic properties as a primary purpose.
    Historic properties means those properties that are listed or 
eligible for listing in the National Register of Historic Places or 
properties designated as historic under a statute of the appropriate 
State or local government body.
    Qualified handicapped person means--
    (1) With respect to preschool, elementary, or secondary education 
services provided by the Board, a handicapped person who is a member of 
a class of persons otherwise entitled by statute, regulation, or Board 
policy to receive education services from the Board.
    (2) With respect to any other Board program or activity under which 
a person is required to perform services or to achieve a level of 
accomplishment, a handicapped person who meets the essential eligibility 
requirements and who can acheive the purpose of the program or activity 
without modifications in the program or activity that the Board can 
demonstrate would result in a fundamental alteration in its nature;
    (3) With respect to any other program or activity, a handicapped 
person who meets the essential eligibility requirements for 
participation in, or receipt of benefits from, that program or activity; 
and
    (4) Qualified handicapped person is defined for purposes of 
employment in 29 CFR 1613.702(f), which is made applicable to this part 
by Sec. 530.140.
    Section 504 means section 504 of the Rehabilitation Act of 1973 
(Pub. L. 93-112, 87 Stat. 394 (29 U.S.C. 794)), as amended by the 
Rehabilitation Act Amendments of 1974 (Pub. L. 93-516, 88 Stat. 1617), 
and the Rehabilitation,

[[Page 196]]

Comprehensive Services, and Developmental Disabilities Amendments of 
1978 (Pub. L. 95-602, 92 Stat. 2955). As used in this part, section 504 
applies only to programs or activities conducted by Executive agencies 
and not to federally assisted programs.
    Substantial impairment means a significant loss of the integrity of 
finished materials, design quality, or special character resulting from 
a permanent alteration.



Sec. Sec. 530.104-530.109  [Reserved]



Sec. 530.110  Self-evaluation.

    (a) The Board shall, by August 24, 1987, evaluate its current 
policies and practices, and the effects thereof, that do not or may not 
meet the requirements of this part, and, to the extent modification of 
any such policies and practices is required, the Board shall proceed to 
make the necessary modifications.
    (b) The Board shall provide an opportunity to interested persons, 
including handicapped persons or organizations representing handicapped 
persons, to participate in the self-evaluation process by submitting 
comments (both oral and written).
    (c) The Board shall, until three years following the completion of 
the self-evaluation, maintain on file and make available for public 
inspection:
    (1) A description of areas examined and any problems identified, and
    (2) A description of any modifications made.



Sec. 530.111  Notice.

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



Sec. Sec. 530.112-530.129  [Reserved]



Sec. 530.130  General prohibitions against discrimination.

    (a) No qualified handicapped person 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 Board.
    (b)(1) The Board, in providing any aid, benefit, or service, may 
not, directly or through contractual, licensing, or other arrangements, 
on the basis of handicap--
    (i) Deny a qualified handicapped person the opportunity to 
participate in or benefit from the aid, benefit, or service;
    (ii) Afford a qualified handicapped person an opportunity to 
participate in or benefit from the aid, benefit, or service that is not 
equal to that afforded others;
    (iii) Provide a qualified handicapped person with an aid, benefit, 
or service that is not as effective in affording equal opportunity to 
obtain the same result, to gain the same benefit, or to reach the same 
level of achievement as that provided to others;
    (iv) Provide different or separate aid, benefits, or services to 
handicapped persons or to any class of handicapped persons than is 
provided to others unless such action is necessary to provide qualified 
handicapped persons with aid, benefits, or services that are as 
effective as those provided to others;
    (v) Deny a qualified handicapped person the opportunity to 
participate as a member of planning or advisory boards; or
    (vi) Otherwise limit a qualified handicapped person in the enjoyment 
of any right, privilege, advantage, or opportunity enjoyed by others 
receiving the aid, benefit, or service.
    (2) The Board may not deny a qualified handicapped person the 
opportunity to participate in programs or activities that are not 
separate or different, despite the existence of permissibly separate or 
different programs or activities.
    (3) The Board may not, directly or through contractual or other

[[Page 197]]

arrangments, utilize criteria or methods of administration the purpose 
or effect of which would--
    (i) Subject qualified handicapped persons to discrimination on the 
basis of handicap; or
    (ii) Defeat or substantially impair accomplishment of the objectives 
of a program or activity with respect to handicapped persons.
    (4) The Board may not, in determining the site or location of a 
facility, make selections the purpose or effect of which would--
    (i) Exclude handicapped persons from, deny them the benefits of, or 
otherwise subject them to discrimination under any program or activity 
conducted by the Board; or
    (ii) Defeat or substantially impair the accomplishment of the 
objectives of a program or activity with respect to handicapped persons.
    (5) The Board, in the selection of procurement contractors, may not 
use criteria that subject qualified handicapped persons to 
discrimination on the basis of handicap.
    (6) The Board may not administer a licensing or certification 
program in a manner that subjects qualified handicapped persons to 
discrimination on the basis of handicap, nor may the Board establish 
requirements for the programs or activities of licensees or certified 
entities that subject qualified handicapped persons to discrimination on 
the basis of handicap. However, the programs or activities of entities 
that are licensed or certified by the Board are not, themselves, covered 
by this part.
    (c) The exclusion of nonhandicapped persons from the benefits of a 
program limited by Federal statute or Executive order to handicapped 
persons or the exclusion of a specific class of handicapped persons from 
a program limited by Federal statute or Executive order to a different 
class of handicapped persons is not prohibited by this part.
    (d) The Board shall administer programs and activities in the most 
integrated setting appropriate to the needs of qualified handicapped 
persons.



Sec. Sec. 530.131-530.139  [Reserved]



Sec. 530.140  Employment.

    No qualified handicapped person shall, on the basis of handicap, be 
subjected to discrimination in employment under any program or activity 
conducted by the Board. 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.



Sec. Sec. 530.141-530.148  [Reserved]



Sec. 530.149  Program accessibility: Discrimination prohibited.

    Except as otherwise provided in Sec. 530.150, no qualified 
handicapped person shall, because the Board's facilities are 
inaccessible to or unusable by handicapped persons, be denied the 
benefits of, be excluded from participation in, or otherwise be 
subjected to discrimination under any program or activity conducted by 
the Board.



Sec. 530.150  Program accessibility: Existing facilities.

    (a) General. The Board shall operate each program or activity so 
that the program or activity, when viewed in its entirety, is readily 
accessible to and usable by handicapped persons. This paragraph does 
not--
    (1) Necessarily require the Board to make each of its existing 
facilities accessible to and usable by handicapped persons;
    (2) In the case of historic preservation programs, require the Board 
to take any action that would result in a substantial impairment of 
significant historic features of an historic property; or
    (3) Require the Board 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 Board personnel believe that the proposed action 
would fundamentally alter the program or activity or would

[[Page 198]]

result in undue financial and administrative burdens, the Board has the 
burden of proving that compliance with Sec. 530.150(a) would result in 
such alteration or burdens. The decision that compliance would result in 
such alteration or burdens must be made by the Board head or his or her 
designee after considering all Board 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 Board shall take any other action that would not result in 
such an alteration or such burdens but would nevertheless ensure that 
handicapped persons receive the benefits and services of the program or 
activity.
    (b) Methods--(1) General. The Board 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 handicapped persons. The Board is not required to make 
structural changes in existing facilities where other methods are 
effective in achieving compliance with this section. The Board, 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. 4151-4157), and any regulations 
implementing it. In choosing among available methods for meeting the 
requirements of this section, the Board shall give priority to those 
methods that offer programs and activities to qualified handicapped 
persons in the most integrated setting appropriate.
    (2) Historic preservation programs. In meeting the requirements of 
Sec. 530.150(a) in historic preservation programs, the Board shall give 
priority to methods that provide physical access to handicapped persons. 
In cases where a physical alteration to an historic property is not 
required because of Sec. 530.150(a)(2) or (a)(3), alternative methods 
of achieving program accessibility include--
    (i) Using audio-visual materials and devices to depict those 
portions of an historic property that cannot otherwise be made 
accessible;
    (ii) Assigning persons to guide handicapped persons into or through 
portions of historic properties that cannot otherwise be made 
accessible; or
    (iii) Adopting other innovative methods.
    (c) Time period for compliance. The Board shall comply with the 
obligations established under this section by October 21, 1986, except 
that where structural changes in facilities are undertaken, such changes 
shall be made by August 22, 1989, but in any event as expeditiously as 
possible.
    (d) Transition plan. In the event that structural changes to 
facilities will be undertaken to achieve program accessibility, the 
Board shall develop, by February 23, 1987, a transition plan setting 
forth the steps necessary to complete such changes. The Board shall 
provide an opportunity to interested persons, including handicapped 
persons or organizations representing handicapped persons, to 
participate in the development of the transition plan by submitting 
comments (both oral and written). A copy of the transition plan shall be 
made available for public inspection. The plan shall, at a minimum--
    (1) Identify physical obstacles in the Board's facilities that limit 
the accessibility of its programs or activities to handicapped persons;
    (2) Describe in detail the methods that will be used to make the 
facilities accessible;
    (3) Specify the schedule for taking the steps necessary to achieve 
compliance with this section and, if the time period of the transition 
plan is longer than one year, identify steps that will be taken during 
each year of the transition period; and
    (4) Indicate the official responsible for implementation of the 
plan.

[[Page 199]]



Sec. 530.151  Program accessibility: New construction and alterations.

    Each building or part of a building that is constructed or altered 
by, on behalf of, or for the use of the Board shall be designed, 
constructed, or altered so as to be readily accessible to and usable by 
handicapped persons. 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.



Sec. Sec. 530.152-530.159  [Reserved]



Sec. 530.160  Communications.

    (a) The Board shall take appropriate steps to ensure effective 
communication with applicants, participants, personnel of other Federal 
entities, and members of the public.
    (1) The Board shall furnish appropriate auxiliary aids where 
necessary to afford a handicapped person an equal opportunity to 
participate in, and enjoy the benefits of, a program or activity 
conducted by the Board.
    (i) In determining what type of auxiliary aid is necessary, the 
Board shall give primary consideration to the requests of the 
handicapped person.
    (ii) The Board need not provide individually prescribed devices, 
readers for personal use or study, or other devices of a personal 
nature.
    (2) Where the Board communicates with applicants and beneficiaries 
by telephone, telecommunication devices for deaf person (TDD's) or 
equally effective telecommunication systems shall be used.
    (b) The Board shall ensure that interested persons, including 
persons with impaired vision or hearing, can obtain information as to 
the existence and location of accessible services, activities, and 
facilities.
    (c) The Board shall provide signage at a primary entrance to each of 
its inaccessible facilities, directing users to a location at which they 
can obtain information about accessible facilities. The international 
symbol for accessibility shall be used at each primary entrance of an 
accessible facility.
    (d) This section does not require the Board 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 adminstrative 
burdens. In those circumstances where Board personnel believe that the 
proposed action would fundamentally alter the program or activity or 
would result in undue financial and administrative burdens, the Board 
has the burden of proving that compliance with Sec. 530.160 would 
result in such alteration or burdens. The decision that compliance would 
result in such alteration or burdens must be made by the Board head or 
his or her designee after considering all Board resources available for 
use in the funding and operation of the conducted program or activity, 
and must be accompanied by a written statement of the reasons for 
reaching that conclusion. If an action required to comply with this 
section would result in such an alteration or such burdens, the Board 
shall take any other action that would not result in such an alteration 
or such burdens but would nevertheless ensure that, to the maximum 
extent possible, handicapped persons receive the benefits and services 
of the program or activity.



Sec. Sec. 530.161-530.169  [Reserved]



Sec. 530.170  Compliance procedures.

    (a) Except as provided in paragraph (b) of this section, this 
section applies to all allegations of discrimination on the basis of 
handicap in programs or activities conducted by the Board.
    (b) The Board shall process complaints alleging violations of 
section 504 with respect to employment according to the procedures 
established by the Equal Employment Opportunity Commission in 29 CFR 
part 1613 pursuant to section 501 of the Rehabilitation Act of 1973 (29 
U.S.C. 791).
    (c) The Director, Office of Equal Employment Opportunity and Civil 
Rights, shall be responsible for coordinating implementation of this 
section. Complaints may be sent to Director, Office of Equal Employment 
Opportunity and Civil Rights, Broadcasting Board of Governors, 301 4th 
Street NW., Washington, DC 20547.
    (d) The Board shall accept and investigate all complete complaints 
for which it has jurisdiction. All complete

[[Page 200]]

complaints must be filed within 180 days of the alleged act of 
discrimination. The Board may extend this time period for good cause.
    (e) If the Board receives a complaint over which it does not have 
jurisdiction, it shall promptly notify the complainant and shall make 
reasonable efforts to refer the complaint to the appropriate government 
entity.
    (f) The Board 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), or section 502 of the 
Rehabilitation Act of 1973, as amended (29 U.S.C. 792), is not readily 
accessible to and usable by handicapped persons.
    (g) Within 180 days of the receipt of a complete complaint for which 
it has jurisdiction, the Board shall notify the complainant of the 
results of the investigation in a letter containing--
    (1) Findings of fact and conclusions of law;
    (2) A description of a remedy for each violation found; and
    (3) A notice of the right to appeal.
    (h) Appeals of the findings of fact and conclusions of law or 
remedies must be filed by the complainant within 90 days of receipt from 
the Board of the letter required by Sec. 530.170(g). The Board may 
extend this time for good cause.
    (i) Timely appeals shall be accepted and processed by the head of 
the Board.
    (j) The head of the Board shall notify the complainant of the 
results of the appeal within 60 days of the receipt of the request. If 
the head of the Board determines that additional information is needed 
from the complainant, he or she shall have 60 days from the date of 
receipt of the additional information to make his or her determination 
on the appeal.
    (k) The time limits cited in paragraphs (g) and (j) of this section 
may be extended with the permission of the Assistant Attorney General.
    (l) The Board 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.

[51 FR 22890, 22896, June 23, 1986, as amended at 51 FR 22890, June 23, 
1986]



Sec. Sec. 530.171-530.999  [Reserved]

[[Page 201]]



          CHAPTER VII--OVERSEAS PRIVATE INVESTMENT CORPORATION




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

                 SUBCHAPTER A--ADMINISTRATIVE PROVISIONS
Part                                                                Page
705             Employee ethical conduct standards and 
                    financial disclosure regulations........         203
706             Freedom of information......................         203
707             Access to and safeguarding of personal 
                    information in records of the 
                    corporation.............................         211
708             Sunshine regulations........................         214
709             Foreign Corrupt Practices Act of 1977.......         217
710             Administrative enforcement procedures of 
                    post-employment restrictions............         220
711             Enforcement of nondiscrimination on the 
                    basis of handicap in programs or 
                    activities conducted by the Overseas 
                    Private Investment Corporation..........         222
712             New restrictions on lobbying................         228
713             Production of nonpublic records and 
                    testimony of OPIC employees in legal 
                    proceedings.............................         240

[[Page 203]]



                 SUBCHAPTER A_ADMINISTRATIVE PROVISIONS



PART 705_EMPLOYEE ETHICAL CONDUCT STANDARDS AND FINANCIAL DISCLOSURE 

REGULATIONS--Table of Contents




    Authority: 5 U.S.C. 7301.



Sec. 705.101  Cross-reference to employee ethical conduct standards and 

financial disclosure regulations.

    Employees of the Overseas Private Investment Corporation (OPIC) 
should refer to the executive branch-wide Standards of Ethical Conduct 
at 5 CFR part 2635, the OPIC regulation at 5 CFR 4301.101 which 
supplements the executive branch-wide standards, and the executive 
branch-wide financial disclosure regulation at 5 CFR part 2634.

[58 FR 33320, June 17, 1993]



PART 706_FREEDOM OF INFORMATION--Table of Contents




                            Subpart A_General

Sec.
706.11 General provisions.
706.12 Definitions.

      Subpart B_Procedures for Obtaining Publicly Available Records

706.21 What types of OPIC records are publicly available, and how do I 
          obtain access to or copies of these records?

        Subpart C_Procedures for Obtaining Records Under the FOIA

706.31 How do I request copies of or access to OPIC records that are not 
          otherwise available to the public?
706.32 When will I receive a response to my FOIA request?
706.33 How will OPIC respond to my FOIA request?
706.34 What, if any, fees will I be charged?
706.35 When will OPIC reduce or waive fees?
706.36 How may I appeal a partial or total denial of records?

   Subpart D_Rights of Submitters of Confidential Business Information

706.41 How should business submitters designate business information in 
          materials submitted to OPIC?
706.42 When will OPIC notify business submitters of a pending FOIA 
          request?
706.43 Who will OPIC notify if a FOIA lawsuit is filed?
706.44 What happens to business information contained in OPIC records 
          transferred to the National Archives of the United States?

    Authority: 5 U.S.C. 552, as amended; Executive Order 12600; 44 
U.S.C. 2901, et. seq.

    Source: 65 FR 64343, Oct. 27, 2000, unless otherwise noted.



                            Subpart A_General



Sec. 706.11  General provisions.

    (a) Purpose. The purpose of this part is to help interested parties 
obtain access to OPIC records. Many OPIC records may be accessed by the 
public without filing a formal request under the FOIA. Records that are 
not routinely available, however, must be requested under the FOIA. This 
part also informs OPIC's business submitters of their right to be 
notified of a request for disclosure of business information and to 
object to such disclosure. Finally, this part provides information about 
access to records that OPIC has transferred to the National Archives.
    (b) Policy. OPIC's policy is to make its records available to the 
public to the greatest extent possible, in keeping with the spirit of 
the FOIA. This policy includes providing reasonably segregable 
information from records that also contain information that may be 
withheld under the FOIA. However, implementation of this policy also 
reflects OPIC's view that the soundness and viability of many of its 
programs depend in large measure upon full and reliable commercial, 
financial, technical and business information received from applicants 
for OPIC assistance and that the willingness of those applicants to 
provide such information depends on OPIC's ability to hold it in 
confidence. Consequently, except as provided by law and this part, 
information provided to OPIC in confidence will not be disclosed without 
the submitter's consent.
    (c) Scope. This regulation applies to all agency records in OPIC's 
possession

[[Page 204]]

and control. This regulation does not compel OPIC to create records or 
to ask outside parties to provide documents in order to satisfy a FOIA 
request. OPIC may, however, in its discretion and in consultation with a 
FOIA requester, create a new record as a partial or complete response to 
a FOIA request. In responding to requests for information, OPIC will 
consider only those records within its possession and control as of the 
date of the request. This regulation does not apply to requests for 
records under the Privacy Act, 5 U.S.C. 552a. OPIC's regulations 
governing Privacy Act requests are located at 22 CFR part 707.
    (d) OPIC Internet site. OPIC maintains an Internet site at 
www.opic.gov. This site contains information on OPIC functions, 
activities, programs, and transactions. OPIC encourages all prospective 
requesters of information, whether under FOIA or otherwise, to visit its 
Internet site prior to submitting a request.
    (e) OPIC address. OPIC is located at 1100 New York Avenue, NW., 
Washington, DC 20527. All correspondence should be sent to this address.



Sec. 706.12  Definitions.

    For purposes of this subpart, the following definitions apply:
    All other requesters--Requesters other than commercial use 
requesters, educational and non-commercial scientific requesters, or 
representatives of the news media.
    Business information--Trade secrets and confidential or privileged 
commercial or financial information obtained from any person, including, 
but not necessarily limited to, information contained in individual case 
files relating to such activities as insurance, loans, and loan 
guaranties.
    Business submitter--Any person that provides business information to 
OPIC.
    Educational institution--A preschool, a public or private elementary 
or secondary school, an institution of undergraduate or graduate higher 
education, or an institution of professional or vocational education.
    FOIA--The Freedom of Information Act, as amended, 5 U.S.C. 552.
    National Archives--The National Archives of the United States.
    Non-commercial scientific institution--An institution that is 
operated for the purpose of conducting scientific research, the results 
of which are not intended to promote any particular product or industry, 
and that is not operated solely for purposes of furthering a business, 
trade, or profit interest.
    OPIC--The Overseas Private Investment Corporation.
    Person--An individual, partnership, corporation, association, or 
organization, other than a federal government agency.
    Record--All papers, memoranda, or other documentary material, or 
copies thereof, regardless of physical form or characteristics, created 
or received by OPIC and within OPIC's possession and control. ``Record'' 
does not include publications that are available to the public through 
the Federal Register, by sale or through free distribution.
    Redaction--The process of removing non-disclosable material from a 
record so that the remainder may be released.
    Representative of the news media--A person actively gathering 
information on behalf of an entity organized and operated to publish or 
broadcast news to the public. Freelance journalists qualify as 
representatives of the news media when they can demonstrate that a 
request is reasonably likely to lead to publication.
    Request--Any request made to OPIC under the FOIA.
    Requester--Any person making a request.
    Review--The examination of a record located in response to a request 
in order to determine whether any portion of the record is exempt from 
disclosure. Review also includes processing any record for disclosure--
for example, redacting and preparing the record for disclosure. Review 
also includes time spent considering any formal objection to disclosure 
made by a business submitter, but does not include time spent resolving 
general legal or policy issues regarding the application of exemptions.
    Search--The process of looking for and retrieving records or 
information responsive to a request. It includes page-by-page or line-
by-line identification of information within records and

[[Page 205]]

also includes reasonable efforts to locate and retrieve information from 
records maintained in electronic form or format.
    Working days--All calendar days excluding Saturdays, Sundays, 
Federal Government holidays, and any other day on which OPIC is not open 
for business.



      Subpart B_Procedures for Obtaining Publicly Available Records



Sec. 706.21  What types of OPIC records are publicly available, and how do I 

obtain access to or copies of these records?

    (a) Electronic access. (1) Many OPIC records are readily available 
to the public by electronic access, including OPIC's Annual Report, 
OPIC's Program Handbook, OPIC press releases, and application forms for 
OPIC assistance. Persons seeking information are encouraged to visit 
OPIC's Internet site at: www.opic.gov.
    (2) Records relating to OPIC's FOIA program, including records 
required by the FOIA to be made available electronically, records which 
have been the subject of frequent FOIA requests, and OPIC's annual FOIA 
Report are available in OPIC's Electronic Reading Room. OPIC's 
Electronic Reading Room may be accessed through the ``FOIA'' link on 
OPIC's Internet site at: www.opic.gov. The Electronic Reading Room also 
contains an index of records available electronically. Generally, only 
records created after November 1, 1996 are available electronically.
    (b) Offline access. Publicly-available OPIC materials are readily 
available on OPIC's Internet site at www.opic.gov. If you do not have 
access to the Internet, you may obtain many of the same materials by 
contacting one or more of the sources listed below.
    (1) General information. General information (e.g., OPIC's Annual 
Report, OPIC's Program Handbook, and application forms for OPIC 
assistance) are available from OPIC's Information Officer. To obtain 
access to or copies of these records, call (202) 336-8400 and ask to be 
connected with the Information Officer, or write to the Information 
Officer. You may also obtain general information by calling the OPIC 
InfoLine at (202) 336-8799 and you may obtain documents by facsimile by 
calling the OPIC FactsLine at (202) 336-8700.
    (2) Claims information. OPIC's Department of Legal Affairs maintains 
public information files relating to the determination of claims filed 
under OPIC's political risk insurance contracts and a list of all claims 
resolved by cash settlements or guaranties. To obtain access to or 
copies of these records, call (202) 336-8400 and ask to be connected 
with the Claims Assistant in Legal Affairs or write to the Claims 
Assistant, Department of Legal Affairs.
    (3) Materials concerning OPIC's Board of Directors. The Corporate 
Secretary maintains public information files containing the minutes of 
the public portions of Board of Directors meetings, as well as publicly-
releasable Board resolutions. To obtain access to or copies of these 
records, call (202) 336-8400 and ask to be connected with the Corporate 
Secretary or write to the Corporate Secretary.
    (4) Press releases. OPIC's Press Office maintains copies of OPIC's 
press releases. To obtain access to or copies of these records, call 
(202) 336-8400 and ask to be connected with the Press Office or write to 
the Press Office.
    (5) Reading room material. Pursuant to the FOIA, OPIC maintains 
certain records for public inspection and photocopying, including 
records that have been the subject of frequent FOIA requests. To obtain 
access to or copies of these records, call (202) 336-8400 and ask to be 
connected with the FOIA Office or write to the FOIA Office. OPIC 
maintains an index of FOIA reading room records, which is updated 
regularly.



        Subpart C_Procedures for Obtaining Records Under the FOIA



Sec. 706.31  How do I request copies of or access to OPIC records that are 

not otherwise available to the public?

    (a) Submitting a request. To request records that are not otherwise 
available to the public, submit a written request to OPIC's FOIA Office 
either by mail, by hand delivery, by facsimile transmission to (202) 
408-0297, or by

[[Page 206]]

electronic mail to FOIA@opic.gov. You must state that you are requested 
records under the FOIA. Your request is considered received by OPIC upon 
actual receipt by OPIC's FOIA Office.
    (b) Format. Although FOIA requests do not need to follow a specific 
format, you must include the following information:
    (1) You must reasonably describe the records you seek. This means 
that you must provide enough detail to enable OPIC personnel, using 
reasonable efforts, to locate the records. Whenever possible, your 
request should include specific information about each record sought, 
such as the date, title or name, author, recipient, and subject matter. 
Any request that does not reasonably describe the records sought will 
not be considered received by OPIC until the request is clarified. If 
your request does not reasonably describe the records you seek, OPIC 
will make reasonable efforts to contact you and tell you what additional 
information you need to provide in order to clarify your request. You 
then will have an opportunity to modify your request to meet the 
requirements of this section. Any time you spend clarifying your request 
(discussing your request with OPIC and preparing a revised request) is 
excluded from the 20 working-day period (or any extension of this 
period) that OPIC has to respond to your request.
    (2) You must state the format (e.g., paper, computer disk, etc.) in 
which you would like OPIC to provide the requested records. If you do 
not state a preference, you will receive any released records in the 
format most convenient to OPIC.
    (3) You must include your mailing address and telephone number. You 
may also provide your electronic mail address, which will allow OPIC to 
contact you quickly to discuss your request and, in some instances, to 
respond to your request electronically.
    (4) You must state your willingness to pay fees under this Part or, 
alternately, your willingness to pay fees up to a specified limit. If 
you believe that you qualify for a partial or total fee waiver under 
Sec. 706.35(a), you should request a waiver and provide justification 
as required by Sec. 706.35(b). If your request does not contain a 
statement of your willingness to pay fees or a request for a fee waiver, 
OPIC will advise you of the requirements of this paragraph. If you fail 
to respond within ten working days of such notification, OPIC will stop 
processing your request.



Sec. 706.32  When will I receive a response to my FOIA request?

    (a) General. The FOIA requires OPIC to respond within twenty working 
days after the date on which OPIC's FOIA Office received the request.
    (b) Order of processing. Generally, OPIC responds to FOIA requests 
in the order in which they are received.
    (c) Extensions. (1) In unusual circumstances, OPIC may require an 
extension of time in which to respond to your request. OPIC will provide 
written notice to you whenever such unusual circumstances exist. Unusual 
circumstances may include, for example: The need to search for and 
collect requested records from storage facilities located outside of 
OPIC's premises; the need to search for, collect, and appropriately 
examine a voluminous amount of separate and distinct records that are 
requested in a single request; or the need for consultation with another 
agency having a substantial interest in the request. If the extension is 
expected to exceed ten working days, OPIC will offer you the opportunity 
to:
    (i) Alter your request so that processing may be accelerated; or
    (ii) Propose an alternative, feasible time frame for processing the 
request.
    (2) When OPIC reasonably believes that multiple requests submitted 
by a requester, or by a group of requesters acting in concert, 
constitute a single request that would otherwise involve unusual 
circumstances, and the requests involve clearly related matters, such 
requests may be aggregated for purposes of this section.
    (d) Expedited processing. OPIC will expedite processing of your FOIA 
request if you provide information indicating that one of the following 
factors is present: circumstances in which the lack of expedited 
treatment could reasonably be expected to pose an imminent threat to the 
life or physical safety of an individual; or an urgent need to inform 
the public about an actual or alleged federal government activity, if

[[Page 207]]

the request is made by a person primarily engaged in disseminating 
information. You may make a request for expedited processing at the time 
you submit your FOIA request or at any later time. If you make such a 
request, you must submit a statement, certified to be true and correct 
to the best of your belief, explaining in detail the basis for 
requesting expedited processing. OPIC will notify you of its 
determination concerning your request for expedited processing within 
ten days after the date of your request. You may appeal a denial of a 
request for expedited processing under the provisions at Sec. 706.36. 
OPIC will grant expedited consideration to any such appeal.



Sec. 706.33  How will OPIC respond to my FOIA request?

    (a) OPIC response. You will be notified in writing once OPIC makes a 
determination concerning your request. OPIC will respond by providing 
the requested records to you in whole or in part and/or by denying your 
request in whole or in part, or by notifying you that OPIC will produce 
or withhold, in whole or in part, the requested records. If you owe 
fees, OPIC will respond to you after you have paid the fees.
    (1) Segregable records. If OPIC determines that part(s) of a record 
are exempt from disclosure under the FOIA, any reasonably segregable 
part of the record will be provided to you after redaction of the exempt 
material. OPIC will mark or annotate any such record to show both the 
amount and the location of the redacted information wherever 
practicable. If segregation would render the record meaningless, OPIC 
will withhold the entire record.
    (2) Denials. A denial is a determination to withhold any requested 
record in whole or in part, a determination that a requested record 
cannot be located, or a determination that what you requested is not a 
record subject to the FOIA. If OPIC denies all or part of your request, 
you will be provided:
    (i) The name, title, and signature of the person responsible for the 
determination;
    (ii) The statutory basis for non-disclosure;
    (iii) A statement that the denial may be appealed under Sec. 706.36 
and a brief description of the requirements of that section; and
    (iv) If entire records or pages of records are withheld, an 
estimated volume of the amount of material withheld unless providing 
such an estimate would harm an interest protected by the FOIA exemption 
under which the denial is made.
    (b) Referrals to other government agencies. If you request a record 
in OPIC's possession that was created or classified by another Federal 
agency, OPIC will promptly refer your request to that agency for direct 
response to you unless OPIC can determine by examining the record or by 
informal consultation with the originating agency that the record may be 
released in whole or part. OPIC will notify you of any such referral.



Sec. 706.34  What, if any, fees will I be charged?

    (a) General policy. You generally will be charged for costs incurred 
by OPIC in complying with your FOIA request, in accordance with 
paragraph (c) of this section and as required or permitted by law. As 
explained more fully in paragraph (c) of this section, fees will vary 
according to your requester status.
    (1) Search fees are $16 per hour.
    (2) Review fees are $35 per hour.
    (3) Duplication costs are $.15 per page for photocopying, and direct 
costs for all other media (including any operator time involved).
    (b) Anticipated fees. Your FOIA request must specifically state that 
you will pay all fees chargeable under this section or, alternatively, 
that you will pay fees up to a specified limit. If your request makes no 
reference to anticipated fees and your request is expected to involve 
fees of more than $25, or OPIC estimates that the fees will exceed the 
dollar limit specified in your request, OPIC will promptly notify you of 
the estimated fees.
    (c) Uniform fee schedule. Fees will be charged according to your 
requester status.
    (1) Commercial use requesters. Commercial use requesters will be 
charged the cost of all time spent searching for and reviewing for 
release the requested records and for all duplication costs.

[[Page 208]]

    (2) Educational and non-commercial scientific institution 
requesters. Educational and non-commercial scientific institution 
requesters will be charged only the costs of duplication. No fee will be 
charged for the costs of photocopying the first 100 pages of documents 
or for the first $15 of other media costs. To be eligible for inclusion 
in this category, you must show that your request is being made under 
the auspices of a qualifying educational institution or non-commercial 
scientific institution and that the records are sought in furtherance of 
scholarly (if the request is from an educational institution) or 
scientific (if the request is from a non-commercial scientific 
institution) research.
    (3) Representatives of the news media. Representatives of the news 
media will be charged only the costs of duplication. No fee will be 
charged for the costs of photocopying the first 100 pages of documents 
or for the first $15 of other media costs. To be eligible for inclusion 
in this category, you must be a representative of the news media and 
your request must not be made for a commercial use. A request for 
records that supports the news dissemination function of the requester 
is not considered to be a request that is for a commercial use.
    (4) All other requesters. All other requesters will be charged for 
the cost of any search time in excess of two hours, photocopying any 
documents in excess of 100 pages, and any costs in excess of the first 
$15 of other media costs.
    (d) Fees for searches that produce no records. Fees will be charged 
as provided in this section even if OPIC's search and review does not 
produce any disclosable records.
    (e) Special services charges. At its discretion, OPIC may comply 
with requests for special services such as certification of documents or 
shipping methods other than regular U.S. mail. You will be charged the 
direct costs of any such services. OPIC will inform you of the cost of 
any special service(s) that you request, and you must pay this cost 
before OPIC will finish processing your FOIA request. If you do not wish 
to pay the stated cost, you may rescind your request for the special 
service(s).
    (f) Advance payments. Where OPIC estimates that fees are likely to 
exceed $250, you will be required to make an advance payment of the 
entire fee before OPIC continues to process your request. You will be 
provided an opportunity to narrow the scope of your request if you do 
not want to pay the entire amount of the estimated fees.
    (g) Restrictions on assessing fees. With the exception of commercial 
use requesters, the FOIA requires agencies to provide the first 100 
pages of photocopying and the first two hours of search time to 
requesters without charge. Moreover, the FOIA prohibits agencies from 
charging fees to any requester, including commercial use requesters, if 
the cost of collecting the fee would be equal to or greater than the fee 
itself. OPIC has determined that its cost of collecting a FOIA fee is 
$15. In implementing these provisions, OPIC will not begin to assess 
fees until after providing the free search and reproduction described 
above, except for commercial use requesters. For example, for a request 
involving four hours of search time and results in 105 pages of 
documents, OPIC will determine the cost of only 2 hours of search time 
and only five pages of duplication.
    (h) Failure to pay fees. (1) OPIC will begin assessing interest 
charges on the 31st calendar day following the date of billing. Interest 
will be at the rate prescribed in section 3717 of Title 31 of the United 
States Code.
    (2) If you previously failed to pay a FOIA fee to OPIC in a timely 
fashion, you must pay the full amount owed plus any applicable interest 
as provided above and make an advance payment of the full amount of the 
estimated fee before OPIC will process a new FOIA request from you.
    (3) When OPIC acts under paragraphs (h)(1) or (2) of this section, 
the administrative time limits for processing FOIA requests (i.e., 20 
working days from receipt of initial request and 20 working days from 
receipt of an appeal plus permissible extensions) will begin only after 
OPIC has received full payment of all applicable fees and interest.

[[Page 209]]



Sec. 706.35  When will OPIC reduce or waive fees?

    (a) Waiver. In accordance with the FOIA's fee waiver provisions, 
OPIC will furnish records to you without charge or at a reduced charge 
if disclosure of the information you request is in the public interest 
because it is likely to contribute significantly to public understanding 
of the operations or activities of the government and is not primarily 
in your commercial interest. In determining whether a fee waiver is 
appropriate, OPIC will consider the following factors:
    (1) Whether the subject of the requested records concerns the 
operations or activities of the government;
    (2) Whether disclosure of the requested information is likely to 
contribute significantly to public understanding of government 
operations or activities;
    (3) Whether you have the intention and ability to disseminate the 
information to the public;
    (4) Whether the information is already in the public domain;
    (5) Whether you have a commercial interest that would be furthered 
by the disclosure; and, if so,
    (6) Whether the magnitude of your identified commercial interest is 
sufficiently large, in comparison with the public interest in 
disclosure, that disclosure is primarily in your commercial interest.
    (b) Justification. In all cases, you have the burden of presenting 
sufficient evidence or information to justify the requested fee waiver 
or reduction.
    (c) Inspection. You may come to OPIC's offices to inspect any 
releasable records that you requested without charge to you except for 
any search, review, and/or duplication fees that are otherwise payable.
    (d) Other provisions--(1) Aggregating requests. When OPIC reasonably 
believes that a requester or group of requesters is attempting to break 
down a request into a series of requests for the purpose of evading the 
assessment of fees, OPIC will aggregate any such requests and charge 
accordingly.
    (2) Remittances. All payments under this Part must be in the form of 
a check or a bank draft denominated in U.S. currency. Checks should be 
made payable to the order of United States Treasury and mailed to the 
OPIC FOIA Office.



Sec. 706.36  How may I appeal a partial or total denial of records?

    (a) Procedure. If your request for records has been denied in whole 
or in part, you may file an appeal within twenty working days following 
the date on which you receive OPIC's denial. Your appeal should be 
addressed to OPIC's Vice President and General Counsel. Your appeal is 
considered received by OPIC upon actual receipt by OPIC's Vice President 
and General Counsel. You should clearly mark your envelope and appeal 
letter as a ``Freedom of Information Act Appeal.'' Your appeal letter 
should reasonably describe the information or records requested and any 
other pertinent facts and statements.
    (b) Response. OPIC's Vice President and General Counsel or his/her 
designee will render a written decision within twenty working days after 
the date of OPIC's receipt of the appeal, unless an extension of up to 
ten working days is deemed necessary due to unusual circumstances. You 
will be notified in writing of any extension. If your appeal is denied 
in whole or in part, the decision will explain OPIC's rationale for 
upholding the denial. If your appeal is granted in whole or in part, the 
information or requested records will be made available promptly, 
provided the requirements of Sec. 706.34 regarding payment of fees are 
satisfied.



   Subpart D_Rights of Submitters of Confidential Business Information



Sec. 706.41.  How should business submitters designate business information 

in materials submitted to OPIC?

    All business submitters may designate, by appropriate markings, 
either at the time of submission or at a later time, any portions of 
their submissions that they consider to be protected from disclosure 
under the FOIA. These markings will be considered by OPIC in responding 
to a FOIA request but such markings (or the absence of such markings) 
will not be dispositive as to whether the marked information is 
ultimately released.

[[Page 210]]



Sec. 706.42  When will OPIC notify business submitters of a pending FOIA 

request?

    (a) Except as provided in paragraph (e) of this section, OPIC's FOIA 
Office will promptly notify a business submitter in writing that a 
request for disclosure has been made for any business information 
provided by the submitter. This notification will describe the nature 
and scope of the request, advise the submitter of its right to submit 
written objections in response to the request, and inform the submitter 
of OPIC's intent to disclose the business information ten working days 
from the date of the notice. The notice will either describe the 
business information requested or include copies of the requested 
records.
    (b) The business submitter may, at any time prior to the disclosure 
date described in paragraph (a) of this section, submit to OPIC's FOIA 
Office detailed written objections to the disclosure of the requested 
information, specifying the grounds upon which it contends that the 
information should not be disclosed. In setting forth such grounds, the 
submitter should explain the basis of its belief that the nondisclosure 
of any item of information requested is mandated or permitted by law. In 
the case of information that the submitter believes to be exempt from 
disclosure under subsection (b)(4) of the FOIA, the submitter shall 
explain why the information is considered a trade secret or commercial 
or financial information that is privileged or confidential and either: 
How disclosure of the information would cause substantial competitive 
harm to the submitter, or why the information should be considered 
voluntarily submitted and why it is information that would not 
customarily be publicly released by the submitter. Information provided 
by a business submitter pursuant to this paragraph may itself be subject 
to disclosure under the FOIA.
    (c) The period for providing OPIC with objections to disclosure of 
information may be extended by OPIC upon receipt of a written request 
for an extension from the business submitter. Such written request shall 
set forth the date upon which any objections are expected to be 
completed and shall provide reasonable justification for the extension. 
In its discretion, OPIC may permit more than one extension.
    (d) OPIC may accept or reject the submitter's objections, in whole 
or in part. If OPIC rejects the submitter's objections, in whole or in 
part, OPIC will promptly notify the business submitter of its 
determination at least five working days prior to release of the 
information. The notification will include:
    (1) A statement of the reasons for OPIC's decision to reject the 
business submitter's objections;
    (2) A description of the information to be disclosed, or a copy 
thereof; and
    (3) A specific disclosure date.
    (e) OPIC will not ordinarily notify the business submitter pursuant 
to paragraph (a) of this section if:
    (1) OPIC determines that the FOIA request should be denied;
    (2) The disclosure is required by law (other than pursuant to 5 
U.S.C. 552); or
    (3) The information has been published or otherwise made available 
to the public, including material described in Sec. 706.21.



Sec. 706.43  Who will OPIC notify if a FOIA lawsuit is filed?

    If a requester files a lawsuit seeking to compel the disclosure of 
business information, OPIC will promptly notify any business 
submitter(s) that submitted information at issue in the lawsuit.



Sec. 706.44  What happens to business information contained in OPIC records 

transferred to the National Archives of the United States?

    Under the Records Disposal Act, 44 U.S.C. Chapter 33, OPIC is 
required to transfer legal custody and control of records with permanent 
historical value to the National Archives. OPIC's Finance Project and 
Insurance Contract Case files generally do not qualify as records with 
permanent historical value. OPIC will not transfer these files except 
when the National Archives determines that an individual project or case 
is especially significant or unique. If the National Archives receives a 
FOIA request for records that have been transferred it will respond to

[[Page 211]]

the request in accordance with its own FOIA regulations.



PART 707_ACCESS TO AND SAFEGUARDING OF PERSONAL INFORMATION IN RECORDS OF THE 

CORPORATION--Table of Contents




                            Subpart A_General

Sec.
707.11 Purpose.
707.12 Definitions.

       Subpart B_Notification; Access to Records; Amendment; Fees

707.21 Requests for notification of, access to or copies of records.
707.22 Amendment of records.
707.23 Fees.

                          Subpart C_Exceptions

707.31 Public information.
707.32 Specific exemptions.

    Authority: 5 U.S.C. 552a(f); Foreign Assistance Act of 1961 (22 
U.S.C. 2191)F.

    Source: 40 FR 46284, Oct. 6, 1975, unless otherwise noted.



                            Subpart A_General



Sec. 707.11  Purpose.

    This part 707 is adopted pursuant to 5 U.S.C. 552a(f) to implement 
the provisions of the Privacy Act of 1974, 5 U.S.C. 552a. This part 707 
establishes procedures for notifying an individual whether any system of 
records of the Corporation contains information pertaining to him; the 
times, places, and procedures to be followed by an individual seeking 
access to records of the Corporation containing information pertaining 
to him, procedures to be followed by an individual desiring the 
amendment of any record of the Corporation for making copies under this 
part 707 of records of the Corporation containing information pertaining 
to him; and the fees charged by the Corporation containing information 
pertaining to an individual. Pursuant to 5 U.S.C. 552a(k), this part 707 
also exempts certain systems of records from some of the provisions of 5 
U.S.C. 552a.



Sec. 707.12  Definitions.

    As used in this part 707, the terms agency, individual, maintain, 
record, system of records, statistical record, and routine use shall 
have the meaning specified for each such term in 5 U.S.C. 552a(a).



       Subpart B_Notification; Access to Records; Amendment; Fees



Sec. 707.21  Requests for notification of, access to or copies of records.

    (a) Whenever an individual desires either notification of, access to 
or copies of records which are maintained by the Corporation and which 
may contain information pertaining to said individual, he may submit 
such a request to the Corporation in the form specified in paragraph (b) 
of this section. Such request shall be addressed to the Director of 
Personnel and Administration and may either be mailed to the Corporation 
or be delivered to the receptionist at the office of the Corporation, 
1129--20th Street NW., Washington, DC 20527, between 8:45 a.m. and 5:30 
p.m., Monday thru Friday (excluding legal public holidays). Access to 
records maintained by the Corporation will be provided only by 
appointment. No officer or employee of the Corporation shall, pursuant 
to the provisions of this part 707, provide any individual with access 
to any records maintained by the Corporation until the Corporation shall 
have received from such individual a written request in the form 
specified in paragraph (b) of this section and verification of the 
identity of the individual as provided in paragraph (c) of this section.
    (b) Any request under this part 707 for notification of, access to 
or copies of records maintained by the Corporation shall comply with the 
following requirements:
    (1) It shall be in writing, signed by the individual, and, except in 
the event such requesting individual is an officer or employee of the 
Corporation, duly acknowledged before a notary public or other 
authorized public official;
    (2) It shall accurately identify the records or information to which 
access is sought;

[[Page 212]]

    (3) It shall specify the date and hour such individual wishes such 
an appointment; and
    (4) It shall specify whether the individual also wishes copies of 
the information pertaining to him.
    (c) Prior to providing any individual either with notification of, 
access to or copies of any records maintained by the Corporation that 
contain information pertaining to said individual, the Director of 
Personnel and Administration shall verify the identity of such 
individual. In order to verify the identity of any such individual, the 
Director of Personnel and Administration shall require such individual 
to provide reasonable proof of his identity such as, by way of example 
and not limitation, a valid drivers license, identification card, 
passport, employee identification card and any other identifying 
information. The Director of Personnel and Administration shall deny any 
such request from any individual if he determines, in his sole 
discretion, that the evidence offered to verify the identity of such 
individual is insufficient to establish conclusively the identity of 
such individual. Upon denying any such request under this paragraph (c), 
the Director of Personnel and Administration shall promptly notify the 
individual in writing of such determination.
    (d) In the event that the Director of Personnel and Administration 
shall decline any request submitted to the Corporation under paragraph 
(b) of this section because he determines under paragraph (c) of this 
section that the individual has not provded adequate evidence to verify 
his identity, said individual may, within thirty (30) days of the date 
of the notification thereof by the Director of Personnel and 
Administration, file a written appeal of such determination with the 
Executive Vice President of the Corporation. The decision of the 
Executive Vice President with respect to such appeal shall be final.
    (e) Whenever an individual desires copies of any records in addition 
to personal access thereto, copies will be furnished upon payment of the 
fees prescribed in Sec. 707.23 of this part.
    (f) The Corporation may require any individual who wishes to be 
accompanied by any other individual when reviewing any records made 
available under this part 707 shall provide the Corporation with a 
signed, written statement authorizing discussion of the information 
contained in such records in the presence of such accompanying 
individual.
    (g) Copies of records made available for review to any individual 
under this part 707 may be released to a duly authorized representative 
of any such individual provided that such individual provides the 
Corporation with a power of attorney to such effect on behalf of said 
representative, signed by such individual and duly acknowledged before a 
notary public or other authorized public offical. The Corporation shall 
require any such representative to verify his identity in accordance 
with paragraph (c) of this section.
    (h) Original or record copies of records will not be released from 
the files of the Corporation. Individuals will not be permitted to 
disturb any record files or to remove any records from the designated 
place of examination within the Corporation.



Sec. 707.22  Amendment of records.

    (a) Whenever any individual desires an amendment to any record of 
the Corporation to correct information in such record pertaining to him 
that he believes not to be accurate relevant, timely, or complete, he 
may submit such a request to the Corporation in the form specified in 
paragraph (b) of this section. Such rquest shall be addressed to the 
Director of Personnel and Administration and may either be mailed to the 
Corporation or delivered to the receptionist at the office of the 
Corporation, 1129--20th Street, NW., Washington, DC 20527, between 8:45 
a.m. and 5:30 p.m., Monday thru Friday (excluding legal public 
holidays). Such request shall be deemed not to have been received by the 
Corporation until actually delivered to it or, whenever mailed, actually 
received by the Chief of Personnel and Administration.
    (b) Any request submitted to the Corporation under paragraph (a) of 
this section shall comply with the following requirements:
    (1) It shall be in writing, signed by the individual, and, except in 
the event

[[Page 213]]

such requesting individual is an officer or employee of the Corporation, 
duly acknowledged before a notary public or other authorized public 
official;
    (2) It shall accurately identify the records and information to be 
amended;
    (3) It shall specify the correction requested; and
    (4) It shall fully specify the basis for such individual's belief 
that the records and information are not accurate, relevant, timely or 
complete; and
    (5) It shall be supported by substantial and reliable evidence 
sufficent to permit the Corporation to determine whether such amendment 
is in order. Any such request shall be deemed not to have been received 
by the Corporation and shall be returned without prejudice whenever the 
Director of Personnel and Administration determines that such request 
either does not describe records specifically enough to permit the staff 
of the Corporation to promptly locate such records or does not state the 
amendment requested or the basis therefor in reasonably specific 
language.
    (c) The Director of Personnel and Administration shall acknowledge 
in writing the receipt of any such request to correct any records not 
later than ten (10) days (excluding Saturdays, Sundays and legal public 
holidays) after the date of the receipt of such request by the 
Corporation.
    (d) Not later than thirty (30) days (excluding Saturdays, Sundays 
and official holidays) after the date of the receipt of such request by 
the Corporation, the Director of Personnel and Administration shall 
either:
    (1) Make any correction of any portion of such records that he 
determines not to have been accurate, relevant, timely, or complete and 
notify the individual in writing of such correction; or
    (2) Inform the individual in writing of his decision to deny any 
portion of such request, the reason for the refusal, and the right of 
the individual to request a review thereof by the Executive Vice 
President of the Corporation under paragraph (e) of this section.
    (e) In the event the Director of Personnel and Administration shall 
deny any portion of any individual's request to amend records, such 
individual may within thirty (30) days of the date of the notification 
of such denial, file a written appeal of such decision with the 
Executive Vice President of the Corporation. Such appeal may be 
supported by any additional written evidence and statements deemed 
appropriate by the individual.



Sec. 707.23  Fees.

    The fees to be charged by the Corporation for making copies of any 
records provided to any individual under this part 707 shall be twenty 
(20) cents per page.



                          Subpart C_Exceptions



Sec. 707.31  Public information.

    Nothing in this part 707 shall be construed as a waiver by the 
Corporation, either in whole or in part, of the provisions of 5 U.S.C. 
552(b) or 18 U.S.C. 1905. The Corporation, to the maximum extent 
permitted by law, may delete information from copies of any records 
furnished to any individual under this part 707.



Sec. 707.32  Specific exemptions.

    The provisions of 5 U.S.C. 552a (c)(3), (d), (e)(1), (e)(4) (G), (H) 
and (I) and (f) shall not apply to any system of records maintained by 
the Corporation that is--
    (a) Subject to the provisions of 5 U.S.C. 552(b)(1);
    (b) Investigatory material compiled for law enforcement purposes 
other than those specified in 5 U.S.C. 552a (j)(2);
    (c) Required by statute to be maintained and used solely as 
statistical records;
    (d) Investigatory material compiled solely for the purpose of 
determining suitability, eligibility or qualifications for Federal 
civilian employment, military service, Federal contracts or access to 
classified information, but only to the extent that the Corporation may 
determine, in its sole discretion, that the disclosure of such material 
would reveal the identity of the source who, subsequent to September 27, 
1975, furnished information to the Government

[[Page 214]]

under an express promise that the identity of the source would be held 
in confidence or, prior to such date, under an implied promise to such 
effect; and
    (e) Testing or examination materials used solely to determine 
individual qualifications for appointment or promotion in the Federal 
service and the Corporation determines, in its sole discretion, that 
disclosure of such materials would compromise the fairness of the 
testing or examination process.



PART 708_SUNSHINE REGULATIONS--Table of Contents




Sec.
708.1 Purpose and applicability.
708.2 Open meeting policy.
708.3 Scheduling of a meeting.
708.4 Public announcement.
708.5 Closed meetings.
708.6 Records of closed meetings.

    Authority: 5 U.S.C. 552b.

    Source: 42 FR 13110, Mar. 9, 1977, unless otherwise noted.



Sec. 708.1  Purpose and applicability.

    The purpose of this part is to effectuate the provisions of the 
Government in the Sunshine Act. This part applies to the deliberations 
of a quorum of the Directors of the Corporation required to take action 
on behalf of the Corporation where such deliberations determine or 
result in the joint conduct or disposition of official Corporation 
business, but does not apply to deliberations to take action to open or 
close a meeting or to release or withhold information under Sec. 708.5. 
Any deliberation to which this part applies is hereinafter in this part 
referred to as a meeting of the Board of Directors.



Sec. 708.2  Open meeting policy.

    (a) It is the policy of the Corporation to provide the public with 
the fullest practicable information regarding the decisionmaking process 
of the Board of Directors of the Corporation while protecting the rights 
of individuals and the ability of the Corporation to carry out its 
responsibilities. In order to effect this policy, every meeting of the 
Board of Directors shall be open to public observation and will only be 
closed to public observation if justified under one of the provisions of 
Sec. 708.5. The public is invited to observe and listen to all meetings 
of the Board of Directors, or portions thereof, open to public 
observation, but may not participate or record any of the discussions by 
means of electronic or other devices or cameras. Documents being 
considered at meetings of the Board of Directors may be obtained subject 
to the procedures and exemptions set forth in part 706 of this chapter.
    (b) Directors of the Corporation shall not jointly conduct or 
dispose of agency business other than in accordance with this part. This 
prohibition shall not prevent Directors from considering individually 
business that is circulated to them sequentially in writing.
    (c) The Secretary of the Corporation shall be responsible for 
assuring that ample space, sufficient visibility, and adequate acoustics 
are provided for public observation of meetings of the Board of 
Directors.



Sec. 708.3  Scheduling of a meeting.

    A decision to hold a meeting of the Board of Directors should be 
made as provided in the By-laws of the Corporation and at least eight 
days prior to the scheduled meeting date in order for the Secretary of 
the Corporation to give the public notice required by Sec. 708.4. 
However in special cases, a majority of the Directors may decide to hold 
a meeting less than eight days prior to the scheduled meeting date if 
they determine by a recorded vote that Corporation business requires 
such meeting at such earlier date. After public announcement of a 
meeting of the Board of Directors under the provisions of Sec. 708.4, 
the subject matter thereof, or the determination to open or close a 
meeting, or portion thereof, may only be changed if a majority of the 
Directors determines by a recorded vote that business so requires and 
that no earlier announcement of the change is possible.



Sec. 708.4  Public announcement.

    (a) Except to the extent that such information is exempt from 
disclosure under the provisions of Sec. 708.5, in the case of each 
meeting of the Board of Directors, the Secretary shall make public 
announcement at least one week before the meeting, of the time, place,

[[Page 215]]

and subject matter of the meeting, whether it is to be open or closed to 
the public, and the name and telephone number of the official designated 
by the Corporation to respond to requests for information about the 
meeting. Such announcement shall be made unless a majority of the 
Directors determines by a recorded vote that Corporation business 
requires that such meeting be called at an earlier date, in which case 
the Secretary shall make public announcement of the time, place, and 
subject matter of such meeting, and whether open or closed to the 
public, at the earliest practicable time.
    (b) The time or place of a meeting may be changed following the 
public announcement required by paragraph (a) of this section only if 
the Secretary publicly announces such change at the earliest practicable 
time. The subject matter of a meeting, or the determination of the 
Corporation to open or close a meeting, or portion of a meeting, to the 
public, may be changed following the public announcement required by 
this section only if (1) a majority of the Directors determines by a 
recorded vote that business so requires and that no earlier announcement 
of the change was possible, and (2) the Secretary publicly announces 
such change and the vote of each Director upon such change at the 
earliest practicable time.
    (c) The earliest practicable time, as used in this subsection, means 
as soon as possible, which should in few, if any, instances be later 
than the commencement of the meeting or portion in question.
    (d) The Secretary shall use reasonable means to assure that the 
public is fully informed of the public announcements required by this 
section. Such public announcements may be made by posting notices in the 
public areas of the Corporation's headquarters and mailing notices to 
the persons on a list maintained for those who want to receive such 
announcements.
    (e) Immediately following each public announcement required by this 
section, notice of the time, place, and subject matter of a meeting, 
whether the meeting is open or closed, any change in one of the 
preceding announcements, and the name and telephone number of the 
official designated by the Corporation to respond to requests for 
information about the meeting shall also be submitted by the Secretary 
for publication in the Federal Register.



Sec. 708.5  Closed meetings.

    (a) Meetings of the Board of Directors will be closed to public 
observation where the Corporation properly determines, according to the 
procedures set forth in paragraph (c) of this section, that such portion 
or portions of the meeting or disclosure of such information is likely 
to:
    (1) Disclose matters that are (i) specifically authorized under 
criteria established by an Executive order to be kept secret in the 
interests of national defense or foreign policy and are (ii) in fact 
properly classified pursuant to such Executive order;
    (2) Relate solely to the internal personnel rules and practices of 
an agency;
    (3) Disclose matters specifically exempted from disclosure by 
statute (other than 5 U.S.C. 552), Provided, That such statute (i) 
requires that the matters be withheld from the public in such a manner 
as to leave no discretion on the issue, or (ii) establishes particular 
criteria for withholding or refers to particular types of matters to be 
withheld;
    (4) Disclose the trade secrets and commercial or financial 
information obtained from a person and privileged or confidential;
    (5) Involve accusing any person of a crime, or formally censuring 
any person;
    (6) Disclose information of a personal nature where disclosure would 
constitute a clearly unwarranted invasion of personal privacy;
    (7) Disclose investigatory records compiled for law enforcement 
purposes, or information which if written would be contained in such 
records, but only to the extent that the production of such records or 
information would (i) interfere with enforcement proceedings, (ii) 
deprive a person of a right to a fair trial or an impartial 
adjudication, (iii) constitute an unwarranted invasion of personal 
privacy, (iv) disclose the identity of a confidential source and, in the 
case of a record compiled by a criminal law enforcement

[[Page 216]]

authority in the course of a criminal investigation, or by an agency 
conducting a lawful national security intelligence investigation, 
confidential information furnished only by the confidential source, (v) 
disclose investigative techniques and procedures, or (vi) endanger the 
life or physical safety of law enforcement personnel;
    (8) Disclose information the premature disclosure of which would be 
likely to significantly frustrate implementation of a proposed agency 
action, except in any instance where the Corporation has already 
disclosed to the public the content or nature of its proposed action, or 
where the Corporation is required by law to make such disclosure on its 
own initiative prior to taking final Corporation action on such 
proposal; or
    (9) Specifically concern the Corporation's participation in a civil 
action or proceeding, an action in a foreign court or international 
tribunal, or an arbitration, or the initiation, conduct, or disposition 
by the Corporation of a particular case of formal Corporation 
adjudication pursuant to the procedures in 5 U.S.C. 554 or otherwise 
involving a determination on the record after opportunity for a hearing.
    (b) Meetings of the Board of Directors shall not be closed pursuant 
to paragraph (a) of this section when the Corporation finds that the 
public interest requires that they be open.
    (c)(1) Action to close a meeting, or portion thereof, pursuant to 
the exemptions defined in paragraph (a) of this section may be initiated 
by the President or any Director of the Corporation by presentation of a 
request for closure to the Board of Directors. The person initiating the 
request for closure shall give the Board of Directors a statement 
specifying the extent of the proposed closure, the relevant exemptive 
provisions and the circumstances pertinent to such request, and how the 
public interest will be served by closure. Such statement shall also be 
given to the General Counsel of the Corporation to serve as a basis for 
the certification the General Counsel may determine can be issued in 
accordance with Sec. 708.6. The General Counsel's determination shall 
be given to the Board of Directors. Action to close a meeting, or 
portion thereof, shall be taken only when a majority of the entire 
membership of the Board of Directors votes to take such action. A 
separate vote of the Board of Directors shall be taken with respect to 
each meeting of the Board of Directors a portion or portions of which 
are proposed to be closed to the public or with respect to any 
information which is proposed to be withheld. A single vote may be taken 
with respect to a series of meetings, a portion or portions of which are 
proposed to be closed to the public, or with respect to any information 
which is proposed to be withheld. A single vote may be taken with 
respect to a series of meetings, a portion or portions of which are 
proposed to be closed to the public, or with respect to any information 
concerning such series of meetings, so long as each meeting in such 
series involves the same particular matters and is scheduled to be held 
no more than thirty days after the initial meeting in such series. The 
vote of each Director participating in such vote shall be recorded and 
no proxies shall be allowed.
    (2) Whenever any person whose interests may be directly affected by 
a portion of a meeting requests that the Corporation close such portion 
to the public for any of the reasons referred to in paragraph (a)(5), 
(a)(6), or (a)(7) of this section, the Corporation, upon request of any 
one of its Directors, shall vote by recorded vote whether to close such 
meeting.
    (3) Within one day of any vote taken pursuant to paragraph (c)(1) or 
(c)(2) of this section, the Secretary shall make publicly available a 
written copy of such vote reflecting the vote of each member on the 
question. If a portion of a meeting is to be closed to the public, the 
Secretary shall, by the close of the business day next succeeding the 
day of the vote taken pursuant to paragraph (c)(1) or (c)(2) of this 
section, make publicly available a full written explanation of the 
Corporation's action closing the portion together with a list of all 
persons expected to attend the meeting and their affiliation. The 
information required by this subparagraph shall be disclosed except to 
the

[[Page 217]]

extent that it is exempt from disclosure under the provisions of 
paragraph (a) of this section.



Sec. 708.6  Records of closed meetings.

    (a) For every meeting of the Board of Directors closed pursuant to 
Sec. 708.5, the General Counsel of the Corporation shall publicly 
certify prior to such meeting that, in his or her opinion, the meeting 
may be closed to the public and shall state each relevant exemptive 
provision. A copy of such certification, together with a statement from 
the presiding officer of the meeting setting forth the time and place of 
the meeting, and the persons present, shall be retained by the Secretary 
as part of the transcript, recording, or minutes required by paragraph 
(b) of this section.
    (b) The Secretary shall maintain a complete transcript or electronic 
recording adequate to record fully the proceedings of each meeting, or 
portion of a meeting, closed to the public, except that in the case of a 
meeting, or portion of a meeting, closed to the public pursuant to Sec. 
708.5(a)(9), the Secretary shall maintain either such a transcript or 
recording, or a set of minutes. Such minutes shall fully and clearly 
describe all matters discussed and shall provide a full and accurate 
summary of any actions taken, and the reasons therefor, including a 
description of each of the views expressed on any item and the record of 
any roll-call vote (reflecting the vote of each member on the question). 
All documents considered in connection with any Corporation action shall 
be identified in such minutes.
    (c) The Secretary shall maintain a complete verbatim copy of the 
transcript, a complete copy of the minutes, or a complete electronic 
recording of each meeting, or portion of a meeting, closed to the 
public, for a period of at least two years after such meeting, or until 
one year after the conclusion of the proceeding of the Board of 
Directors with respect to which the meeting or portion was held, 
whichever occurs later.
    (d) Within ten days of receipt of a request for information 
(excluding Saturdays, Sundays, and legal public holidays), the 
Corporation shall make available to the public, in the Office of 
Secretary of the Corporation, Washington, DC, the transcript, electronic 
recording, or minutes (as required by paragraph (b) of this section) of 
the discussion of any item on the agenda, or of any item of the 
testimony of any witness received at the meeting, except for such item 
or items of such discussion or testimony as the Secretary determines to 
contain information which may be withheld under the provisions of Sec. 
708.5. Copies of such transcript, or minutes, or a transcription of such 
recording disclosing the identify of each speaker, shall be furnished to 
any person at the actual cost of duplication or transcription.
    (e) The determination of the Secretary to withhold information 
pursuant to paragraph (d) of this section may be appealed to the 
President of the Corporation, in his or her capacity as administrative 
head of the Corporation. The President will make a determination to 
withhold or release the requested information within twenty days from 
the date of receipt of the request for review (excluding Saturdays, 
Sundays, and legal public holidays).



PART 709_FOREIGN CORRUPT PRACTICES ACT OF 1977--Table of Contents




Sec.
709.1 Authority and purpose.
709.2 Applicability.
709.3 Definitions.
709.4 Cause for suspension of entities from eligibility.
709.5 Procedure.
709.6 Suspension duration criteria.
709.7 Effect of suspension.
709.8 Procedure for voiding suspensions.

    Authority: Sec. 237(1), Foreign Assistance Act of 1961, added by 
Pub. L. 95-268.

    Source: 43 FR 36064, Aug. 15, 1978, unless otherwise noted.



Sec. 709.1  Authority and purpose.

    (a) These regulations are issued under the general powers of the 
Overseas Private Investment Corporation (``OPIC'') and pursuant to 
section 237(1) of the Foreign Assistance Act of 1961, added by Pub. L. 
95-268. \1\ The Board of

[[Page 218]]

Directors of OPIC has authorized the President of OPIC to issue these 
regulations and to amend them as the President shall deem appropriate.
---------------------------------------------------------------------------

    \1\ Section 237(1) of that Act states:
    (1) No payment may be made under any insurance or reinsurance which 
is issued under this title on or after the date of enactment of this 
subsection for any loss occurring with respect to a project, if the 
preponderant cause of such loss was an act by the investor seeking 
payment under this title, by a person possessing majority ownership and 
control of the investor at the time of the act, or by any agent of such 
investor or controlling person, and a court of the United States has 
entered a final judgment that such act constituted a violation under the 
Foreign Corrupt Practices Act of 1977.
    (2) Not later than 120 days after the date of enactment of this 
subsection, the Corporation shall adopt regulations setting forth 
appropriate conditions under which any person convicted under the 
Foreign Corrupt Practices Act of 1977 for an offense related to a 
project insured or otherwise supported by the Corporation shall be 
suspended, for a period of not more than 5 years, from eligibility to 
receive any insurance, reinsurance, guaranty, loan or other financial 
support authorized by this title.
---------------------------------------------------------------------------

    (b) These regulations prescribe the procedure under which 
individuals and companies may be suspended, as mandated by section 
237(1) of the Foreign Assistance Act of 1961, as amended, from 
eligibility for OPIC services because of conviction under the Foreign 
Corrupt Practices Act of 1977 (Pub. L. 95-213) of an offense related to 
an OPIC-supported project.
    (c) The purposes of the suspensions provided herein are to carry out 
the statutory requirements of Section 237(1) of the Foreign Assistance 
Act of 1961, as amended, to protect the interest of the United States 
and to foster full and free competition in international commerce.
    (d) The specific provisions of law under which OPIC operates and the 
general powers conferred on OPIC give OPIC broad discretion in the 
conduct of its programs. The issuance of these regulations is not to be 
construed as in any way limiting or derogating from the discretion of 
OPIC to determine whether or not to support the investment of a 
particular entity in a particular case.



Sec. 709.2  Applicability.

    These regulations take effect on the date of publication in the 
Federal Register and govern eligibility for OPIC services for which OPIC 
has not previously obligated itself.



Sec. 709.3  Definitions

    (a) The Act means the Foreign Corrupt Practices Act of 1977.
    (b) Entity means any individual, association, company, corporation, 
concern, partnership, or person.
    (c) Offense means any act or omission to act which has been found by 
a United States court of competent jurisdiction to constitute, with 
respect to a particular entity, a violation of the Act, of section 
13(b)(2), 13(b)(3) or 30A of the Securities Exchange Act of 1934 (which 
were added in 1977 by the Act), or of any other provision of law derived 
from the Act.
    (d) Suspension means the designation of an entity as ineligible to 
receive OPIC services through a suspension determination.
    (e) Suspension determination means a determination by the President 
of OPIC pursuant to these regulations that an entity is ineligible to 
receive OPIC services.



Sec. 709.4  Cause for suspension of entities from eligibility.

    Any entity which has been convicted of an offense related to a 
project insured or otherwise supported by OPIC may be suspended from 
eligibility for additional OPIC services for a period of not more than 5 
years pursuant to a suspension determination.



Sec. 709.5  Procedure.

    (a) Upon receipt of an application for OPIC services from any entity 
which OPIC has reason to believe may have been convicted under the Act 
the OPIC General Counsel shall ascertain whether a conviction has been 
entered against such entity under the Act and, if so, whether it was 
entered for an offense related to a project insured or otherwise 
supported by OPIC. If such an offense is found, the General Counsel 
shall advise the President of such finding and any known circumstances 
indicating that suspension would not be in the national interest of the

[[Page 219]]

United States. If, after reviewing the submission from the General 
Counsel, the President determines that national interest considerations 
are not great enough to preclude suspension, OPIC shall furnish the 
subject entity with a written notice (1) specifying the offense and 
stating that suspension for the maximum duration is being considered and 
(2) inviting the subject entity to submit to OPIC any evidence of facts 
or circumstances which it deems appropriate to indicate that a 
suspension should not be imposed or that the duration of the suspension 
should be less than the maximum. Such notice shall further state that 
the subject entity must provide such evidence within 30 days of the date 
of such written notice or any extension of time granted in writing by 
OPIC. The General Counsel shall promptly review any evidence submitted 
by the subject entity and report his findings and recommendations to the 
President. The President shall determine whether the subject entity 
shall be suspended and, if so, the President shall issue a suspension 
determination specifying the duration of such suspension. Notice of such 
suspension determination shall be forwarded by registered mail to the 
subject entity and any entity so notified shall be advised that such 
suspension may be reduced as provided in section 5(b) or voided as 
provided in section 8.
    (b) The duration of any suspension may be reduced by the President 
at any time for good cause, including the submission by the suspended 
entity of an application for relief, supported by evidence and setting 
forth appropriate grounds for granting such relief, such as the 
institution of measures designed to preclude the recurrence of the 
actions with respect to which the suspension was initially imposed. 
Notice of each such reduction shall be forwarded to the suspended entity 
by registered mail.
    (c) The duration of any suspension may be increased by the President 
at any time for good cause, subject to providing the subject entity with 
notice and opportunity to submit evidence in accordance with section 
5(a). In no event shall any such increase result in a period of 
suspension exceeding 5 years with respect to any single conviction.



Sec. 709.6  Suspension duration criteria.

    Factors which the President may consider in setting or amending the 
duration of any suspension imposed pursuant to these regulations 
include, but are not limited to, the following:
    (a) Whether the offense with respect to which suspension has been 
imposed or is being considered was committed with the knowledge or 
consent of the board of directors or other group or officer or 
individual responsible for the overall management of the subject entity;
    (b) Whether or not such offense was committed under pressure of 
extortion, political intervention, or other duress exerted by the 
government, or any official of the government, of the country in which 
such offense was committed;
    (c) Quantitative factors relating to the seriousness of the offense, 
such as the amounts of any improper payments and the frequency with 
which, and period of time over which, they were made;
    (d) The purpose of any such offense;
    (e) Whether such offense violated the laws of the country in which 
it was committed;
    (f) The extent to which the offense was related to the establishment 
or operation of a project supported by OPIC; and
    (g) Any factors relating to the effect of suspension on the national 
interest of the United States.



Sec. 709.7  Effect of suspension.

    (a) Any entity suspended pursuant to a suspension determination 
shall not, for the duration of such suspension, and subject to the 
provisions of section 7(b), be eligible to receive any additional 
insurance, reinsurance, guaranty, loan, or other financial support from 
OPIC.
    (b) Suspended entities:
    (1) May be retained on the OPIC mailing list only for the purpose of 
receiving informational mailings;
    (2) May register projects with OPIC but may not submit project 
applications to OPIC;
    (3) May continue to deal with OPIC with respect to agreements 
entered

[[Page 220]]

with OPIC prior to the suspension and may amend or be granted 
modifications of such agreements, including loan reschedulings and 
refinancings;
    (4) May not be invited to participate in OPIC-sponsored investment 
missions or other similar activities; and
    (5) May not receive indirectly, or beneficially, whether through the 
purchase of project participations, the use of intermediary entities or 
other such devices, any OPIC services which they would not be entitled 
to receive directly, and may not be the beneficiary of financial support 
advanced by a third party where such support, in turn, is guaranteed or 
insured by OPIC; provided, however that such suspended entity shall be 
entitled to all benefits and payments accruing to holders of negotiable 
instruments guaranteed by OPIC and acquired by such suspended entity 
pursuant to a public offering thereof by the original or any subsequent 
holder thereof.



Sec. 709.8  Procedure for voiding suspensions.

    Upon receipt by OPIC from the subject entity of notice of the entry 
of a final judgment of reversal of the conviction or convictions on 
which a suspension was based, and subject to verification thereof by the 
General Counsel and to a finding by the General Counsel that no other 
convictions under the act are outstanding, the President shall void such 
suspension



PART 710_ADMINISTRATIVE ENFORCEMENT PROCEDURES OF POST-EMPLOYMENT 

RESTRICTIONS--Table of Contents




Sec.
710.1 General.
710.2 Action on receipt of information regarding violation.
710.3 Initiation of administrative disciplinary proceeding.
710.4 Notice.
710.5 Failure to request hearing.
710.6 Appointment and qualifications of examiner.
710.7 Time, date and place of hearing.
710.8 Rights of parties at hearing.
710.9 Burden of proof.
710.10 Findings.
710.11 Appeal.
710.12 Finding of violation.
710.13 Appropriate action.
710.14 Judicial review.
710.15 Delegation of authority.

    Authority: 18 U.S.C. 207(j).

    Source: 45 FR 5685, Jan. 24, 1980, unless otherwise noted.



Sec. 710.1  General.

    The following procedures are hereby established with respect to the 
administrative enforcement of restrictions on post-employment activities 
(18 U.S.C. 207(a), (b) or (c) and implementing regulations (44 FR 19987 
and 19988, April 3, 1979) published by the Office of Government Ethics.



Sec. 710.2  Action on receipt of information regarding violation.

    On receipt of information regarding a possible violation of the 
statutory or regulatory post-employment restrictions by a former OPIC 
employee and after determining that such information does not appear to 
be frivolous, the President of OPIC or the President's designee shall 
provide such information to the Director of the Office of Government 
Ethics and to the Criminal Division, Department of Justice. Any 
investigation or administrative action shall be coordinated with the 
Department of Justice to avoid prejudicing possible criminal 
proceedings. If the Department of Justice informs OPIC that it does not 
intend to institute criminal proceedings, such coordination shall no 
longer be required and OPIC shall be free to pursue administrative 
action.



Sec. 710.3  Initiation of administrative disciplinary proceeding.

    Whenever the President of OPIC or the President's designee 
determines after appropriate review that there is reasonable cause to 
believe that a former OPIC employee had violated the statutory or 
regulatory post-employment restrictions, an administrative disciplinary 
proceeding shall be initiated.



Sec. 710.4  Notice.

    The President of OPIC or the President's designee shall initiate an 
administrative disciplinary hearing by providing the former OPIC 
employee with notice of an intention to institute a

[[Page 221]]

proceeding and an opportunity for a hearing. Notice must include:
    (a) A statement of allegations and the basis thereof sufficiently 
detailed to enable the former employee to prepare an adequate defense;
    (b) Notification of the right to a hearing; and
    (c) An explanation of the method by which a hearing may be 
requested.



Sec. 710.5  Failure to request hearing.

    The President of OPIC may take appropriate action referred to in 
Sec. 710.13 in the case of any former OPIC employee who has failed to 
make a written request to OPIC for a hearing within 30 days after 
receiving adequate notice.



Sec. 710.6  Appointment and qualifications of examiner.

    When a former OPIC employee after receiving adequate notice requests 
a hearing, a presiding official (hereinafter referred to as 
``examiner'') shall be appointed by the President of OPIC to make an 
initial decision. The examiner shall be a responsible person who is a 
member of the bar of a State or of the District of Columbia, who is 
impartial and who has not participated in any manner in the decision to 
initiate the proceedings. The examiner may or may not be an OPIC 
employee.



Sec. 710.7  Time, date and place of hearing.

    The examiner shall establish a reasonable time, date and place to 
conduct the hearing. In establishing a date, the examiner shall give due 
regard to the former employee's need for:
    (a) Adequate time to prepare a defense properly; and
    (b) An expeditious resolution of allegations that may be damaging to 
the individual's reputation.



Sec. 710.8  Rights of parties at hearing.

    A hearing shall include, at a minimum, the following rights for both 
parties to:
    (a) Represent oneself or be represented by counsel;
    (b) Introduce and examine witnesses and submit physical evidence 
(including the use of interrogatories);
    (c) Confront and cross-examine adverse witnesses;
    (d) Present oral argument; and
    (e) Receive a transcript or recording of the proceedings on request.



Sec. 710.9  Burden of proof.

    In any hearing under this part, OPIC shall have the burden of proof 
and must establish substantial evidence of a violation of the statutory 
or post-employment restrictions.



Sec. 710.10  Findings.

    The examiner shall make a determination exclusively on matters of 
record in the proceeding and shall set forth in the written decision all 
findings of fact and conclusions of law relevant to the matters in 
issue.



Sec. 710.11  Appeal.

    (a) Within 20 days of the date of the initial decision, either party 
may appeal the decision to the President of OPIC. The President's 
decision on such appeal shall be based solely on the record of the 
proceedings or those portions thereof cited by the parties to limit the 
issues.
    (b) If the President modifies or reverses the examiner's decision, 
the President shall specify such findings of fact and conclusions of law 
as are different from those of the examiner.
    (c) The decision of the President on appeal, shall constitute final 
administrative decision. An initial decision of the examiner which has 
not been appealed during the 20-day period provided shall become a final 
administrative decision on the twenty-first day.



Sec. 710.12  Finding of violation.

    The President of OPIC shall take appropriate action referred to in 
Sec. 710.13 in the case of an individual who is found in violation of 
the statutory or regulatory post-employment restrictions, after a final 
administrative decision.



Sec. 710.13  Appropriate action.

    Appropriate action includes:
    (a) Prohibiting the individual from making, on behalf of any other 
person (except the United States), any formal or informal appearance 
before, or with the intent to influence, any oral or

[[Page 222]]

written communication to, OPIC on any matter or business for a period 
not to exceed five years, which may be accomplished by directing OPIC 
employees to refuse to participate in any such appearance or to accept 
any such communication.
    (b) Taking other appropriate disciplinary action.

[45 FR 5685, Jan. 24, 1980; 49 FR 18295, Apr. 30, 1984]



Sec. 710.14  Judicial review.

    Any person found to have participated in a violation of statutory or 
regulatory post-employment restrictions (18 U.S.C. 207(a), (b) or (c) or 
the regulations compiled at 44 FR 19987 and 19988, April 3, 1979) may 
seek judicial review of the administrative determination.



Sec. 710.15  Delegation of authority.

    The functions of the President of OPIC specified in Sec. Sec. 
710.2, 710.4 and 710.5 of this part are delegated to the General Counsel 
of OPIC. An examiner shall be delegated authority on an ad hoc basis.



PART 711_ENFORCEMENT OF NONDISCRIMINATION ON THE BASIS OF HANDICAP IN PROGRAMS 

OR ACTIVITIES CONDUCTED BY THE OVERSEAS PRIVATE INVESTMENT CORPORATION--Table 

of Contents




Sec.
711.101 Purpose.
711.102 Application.
711.103 Definitions.
711.104-711.109 [Reserved]
711.110 Self-evaluation.
711.111 Notice.
711.112-711.129 [Reserved]
711.130 General prohibitions against discrimination.
711.131-711.139 [Reserved]
711.140 Employment.
711.141-711.148 [Reserved]
711.149 Program accessibility: Discrimination prohibited.
711.150 Program accessibility: Existing facilities.
711.151 Program accessibility: New construction and alterations.
711.152-711.159 [Reserved]
711.160 Communciations.
711.161-711.169 [Reserved]
711.170 Compliance procedures.
711.171-711.999 [Reserved]

    Authority: 29 U.S.C. 794.

    Source: 53 FR 25882, 25885, July 8, 1988, unless otherwise noted.



Sec. 711.101  Purpose.

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



Sec. 711.102  Application.

    This regulation (Sec. Sec. 711.101-711.170) applies to all programs 
or activities conducted by the agency, except for programs or activities 
conducted outside the United States that do not involve individuals with 
handicaps in the United States.



Sec. 711.103  Definitions.

    For purposes of this regulation, the term--
    Assistant Attorney General means the Assistant Attorney General, 
Civil Rights Division, United States Department of Justice.
    Auxiliary aids means services or devices that enable persons with 
impaired sensory, manual, or speaking skills to have an equal 
opportunity to participate in, and enjoy the benefits of, programs or 
activities conducted by the agency. For example, auxiliary aids useful 
for persons with impaired vision include readers, Brailled materials, 
audio recordings, and other similar services and devices. Auxiliary aids 
useful for persons with impaired hearing include telephone handset 
amplifiers, telephones compatible with hearing aids, telecommunication 
devices for deaf persons (TDD's), interpreters, notetakers, written 
materials, and other similar services and devices.
    Complete complaint means a written statement that contains the 
complainant's name and address and describes the agency's alleged 
discriminatory action in sufficient detail to inform the agency of the 
nature and date of the alleged violation of section 504. It shall

[[Page 223]]

be signed by the complainant or by someone authorized to do so on his or 
her behalf. Complaints filed on behalf of classes or third parties shall 
describe or identify (by name, if possible) the alleged victims of 
discrimination.
    Facility means all or any portion of buildings, structures, 
equipment, roads, walks, parking lots, rolling stock or other 
conveyances, or other real or personal property.
    Historic preservation programs means programs conducted by the 
agency that have preservation of historic properties as a primary 
purpose.
    Historic properties means those properties that are listed or 
eligible for listing in the National Register of Historic Places or 
properties designated as historic under a statute of the appropriate 
State or local government body.
    Individual with handicaps means any person who has a physical or 
mental impairment that substantially limits one or more major life 
activities, has a record of such an impairment, or is regarded as having 
such an impairment.
    As used in this definition, the phrase:
    (1) Physical or mental impairment includes--
    (i) Any physiological disorder or condition, cosmetic disfigurement, 
or anatomical loss affecting one or more of the following body systems: 
Neurological; musculoskeletal; special sense organs; respiratory, 
including speech organs; cardiovascular; reproductive; digestive; 
genitourinary; hemic and lymphatic; skin; and endocrine; or
    (ii) Any mental or psychological disorder, such as mental 
retardation, organic brain syndrome, emotional or mental illness, and 
specific learning disabilities. The term physical or mental impairment 
includes, but is not limited to, such diseases and conditions as 
orthopedic, visual, speech, and hearing impairments, cerebral palsy, 
epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, 
diabetes, mental retardation, emotional illness, and drug addiction and 
alcoholism.
    (2) Major life activities includes functions such as caring for 
one's self, performing manual tasks, walking, seeing, hearing, speaking, 
breathing, learning, and working.
    (3) Has a record of such an impairment means has a history of, or 
has been misclassified as having, a mental or physical impairment that 
substantially limits one or more major life activities.
    (4) Is regarded as having an impairment means--
    (i) Has a physical or mental impairment that does not substantially 
limit major life activities but is treated by the agency as constituting 
such a limitation;
    (ii) Has a physical or mental impairment that substantially limits 
major life activities only as a result of the attitudes of others toward 
such impairment; or
    (iii) Has none of the impairments defined in paragraph (1) of this 
definition but is treated by the agency as having such an impairment.
    Qualified individual with handicaps means--
    (1) With respect to preschool, elementary, or secondary education 
services provided by the agency, an individual with handicaps who is a 
member of a class of persons otherwise entitled by statute, regulation, 
or agency policy to receive education services from the agency;
    (2) With respect to any other agency program or activity under which 
a person is required to perform services or to achieve a level of 
accomplishment, an individual with handicaps who meets the essential 
eligibility requirements and who can achieve the purpose of the program 
or activity without modifications in the program or activity that the 
agency can demonstrate would result in a fundamental alteration in its 
nature;
    (3) With respect to any other program or activity, an individual 
with handicaps who meets the essential eligibility requirements for 
participation in, or receipt of benefits from, that program or activity; 
and
    (4) Qualified handicapped person as that term is defined for 
purposes of employment in 29 CFR 1613.702(f), which is made applicable 
to this regulation by Sec. 711.140.
    Section 504 means section 504 of the Rehabilitation Act of 1973 
(Pub. L. 93-112, 87 Stat. 394 (29 U.S.C. 794)), as amended by the 
Rehabilitation Act Amendments of 1974 (Pub. L. 93-516, 88

[[Page 224]]

Stat. 1617); the Rehabilitation, Comprehensive Services, and 
Developmental Disabilities Amendments of 1978 (Pub. L. 95-602, 92 Stat. 
2955); and the Rehabilitation Act Amendments of 1986 (Pub. L. 99-506, 
100 Stat. 1810). As used in this regulation, section 504 applies only to 
programs or activities conducted by Executive agencies and not to 
federally assisted programs.
    Substantial impairment means a significant loss of the integrity of 
finished materials, design quality, or special character resulting from 
a permanent alteration.



Sec. Sec. 711.104-711.109  [Reserved]



Sec. 711.110  Self-evaluation.

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



Sec. 711.111  Notice.

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



Sec. Sec. 711.112-711.129  [Reserved]



Sec. 711.130  General prohibitions against discrimination.

    (a) No qualified individual with handicaps shall, on the basis of 
handicap, be excluded from participation in, be denied the benefits of, 
or otherwise be subjected to discrimination under any program or 
activity conducted by the agency.
    (b)(1) The agency, in providing any aid, benefit, or service, may 
not, directly or through contractual, licensing, or other arrangements, 
on the basis of handicap--
    (i) Deny a qualified individual with handicaps the opportunity to 
participate in or benefit from the aid, benefit, or service;
    (ii) Afford a qualified individual with handicaps an opportunity to 
participate in or benefit from the aid, benefit, or service that is not 
equal to that afforded others;
    (iii) Provide a qualified individual with handicaps with an aid, 
benefit, or service that is not as effective in affording equal 
opportunity to obtain the same result, to gain the same benefit, or to 
reach the same level of achievement as that provided to others;
    (iv) Provide different or separate aid, benefits, or services to 
individuals with handicaps or to any class of individuals with handicaps 
than is provided to others unless such action is necessary to provide 
qualified individuals with handicaps with aid, benefits, or services 
that are as effective as those provided to others;
    (v) Deny a qualified individual with handicaps the opportunity to 
participate as a member of planning or advisory boards;
    (vi) Otherwise limit a qualified individual with handicaps in the 
enjoyment of any right, privilege, advantage, or opportunity enjoyed by 
others receiving the aid, benefit, or service.
    (2) The agency may not deny a qualified individual with handicaps 
the opportunity to participate in programs or activities that are not 
separate or different, despite the existence of permissibly separate or 
different programs or activities.

[[Page 225]]

    (3) The agency may not, directly or through contractual or other 
arrangements, utilize criteria or methods of administration the purpose 
or effect of which would--
    (i) Subject qualified individuals with handicaps to discrimination 
on the basis of handicap; or
    (ii) Defeat or substantially impair accomplishment of the objectives 
of a program or activity with respect to individuals with handicaps.
    (4) The agency may not, in determining the site or location of a 
facility, make selections the purpose or effect of which would--
    (i) Exclude individuals with handicaps from, deny them the benefits 
of, or otherwise subject them to discrimination under any program or 
activity conducted by the agency; or
    (ii) Defeat or substantially impair the accomplishment of the 
objectives of a program or activity with respect to individuals with 
handicaps.
    (5) The agency, in the selection of procurement contractors, may not 
use criteria that subject qualified individuals with handicaps to 
discrimination on the basis of handicap.
    (6) The agency may not administer a licensing or certification 
program in a manner that subjects qualified individuals with handicaps 
to discrimination on the basis of handicap, nor may the agency establish 
requirements for the programs or activities of licensees or certified 
entities that subject qualified individuals with handicaps to 
discrimination on the basis of handicap. However, the programs or 
activities of entities that are licensed or certified by the agency are 
not, themselves, covered by this regulation.
    (c) The exclusion of nonhandicapped persons from the benefits of a 
program limited by Federal statute or Executive order to individuals 
with handicaps or the exclusion of a specific class of individuals with 
handicaps from a program limited by Federal statute or Executive order 
to a different class of individuals with handicaps is not prohibited by 
this regulation.
    (d) The agency shall administer programs and activities in the most 
integrated setting appropriate to the needs of qualified individuals 
with handicaps.



Sec. Sec. 711.131-711.139  [Reserved]



Sec. 711.140  Employment.

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



Sec. Sec. 711.141-711.148  [Reserved]



Sec. 711.149  Program accessibility: Discrimination prohibited.

    Except as otherwise provided in Sec. 711.150, no qualified 
individual with handicaps shall, because the agency's facilities are 
inaccessible to or unusable by individuals with handicaps, be denied the 
benefits of, be excluded from participation in, or otherwise be 
subjected to discrimination under any program or activity conducted by 
the agency.



Sec. 711.150  Program accessibility: Existing facilities.

    (a) General. The agency shall operate each program or activity so 
that the program or activity, when viewed in its entirety, is readily 
accessible to and usable by individuals with handicaps. This paragraph 
does not--
    (1) Necessarily require the agency to make each of its existing 
facilities accessible to and usable by individuals with handicaps;
    (2) In the case of historic preservation programs, require the 
agency to take any action that would result in a substantial impairment 
of significant historic features of an historic property; or
    (3) Require the agency to take any action that it can demonstrate 
would result in a fundamental alteration in the nature of a program or 
activity or in undue financial and administrative burdens. In those 
circumstances where agency personnel believe that the proposed action 
would fundamentally alter the program or activity or would

[[Page 226]]

result in undue financial and administrative burdens, the agency has the 
burden of proving that compliance with Sec. 711.150(a) would result in 
such alteration or burdens. The decision that compliance would result in 
such alteration or burdens must be made by the agency head or his or her 
designee after considering all agency resources available for use in the 
funding and operation of the conducted program or activity, and must be 
accompanied by a written statement of the reasons for reaching that 
conclusion. If an action would result in such an alteration or such 
burdens, the agency shall take any other action that would not result in 
such an alteration or such burdens but would nevertheless ensure that 
individuals with handicaps receive the benefits and services of the 
program or activity.
    (b) Methods--(1) General. The agency may comply with the 
requirements of this section through such means as redesign of 
equipment, reassignment of services to accessible buildings, assignment 
of aides to beneficiaries, home visits, delivery of services at 
alternate accessible sites, alteration of existing facilities and 
construction of new facilities, use of accessible rolling stock, or any 
other methods that result in making its programs or activities readily 
accessible to and usable by individuals with handicaps. The agency is 
not required to make structural changes in existing facilities where 
other methods are effective in achieving compliance with this section. 
The agency, in making alterations to existing buildings, shall meet 
accessibility requirements to the extent compelled by the Architectural 
Barriers Act of 1968, as amended (42 U.S.C. 4151-4157), and any 
regulations implementing it. In choosing among available methods for 
meeting the requirements of this section, the agency shall give priority 
to those methods that offer programs and activities to qualified 
individuals with handicaps in the most integrated setting appropriate.
    (2) Historic preservation programs. In meeting the requirements of 
Sec. 711.150(a) in historic preservation programs, the agency shall 
give priority to methods that provide physical access to individuals 
with handicaps. In cases where a physical alteration to an historic 
property is not required because of Sec. 711.150(a) (2) or (3), 
alternative methods of achieving program accessibility include--
    (i) Using audio-visual materials and devices to depict those 
portions of an historic property that cannot otherwise be made 
accessible;
    (ii) Assigning persons to guide individuals with handicaps into or 
through portions of historic properties that cannot otherwise be made 
accessible; or
    (iii) Adopting other innovative methods.
    (c) Time period for compliance. The agency shall comply with the 
obligations established under this section by November 7, 1988, except 
that where structural changes in facilities are undertaken, such changes 
shall be made by September 6, 1991, but in any event as expeditiously as 
possible.
    (d) Transition plan. In the event that structural changes to 
facilities will be undertaken to achieve program accessibility, the 
agency shall develop, by March 6, 1989, a transition plan setting forth 
the steps necessary to complete such changes. The agency shall provide 
an opportunity to interested persons, including individuals with 
handicaps or organizations representing individuals with handicaps, to 
participate in the development of the transition plan by submitting 
comments (both oral and written). A copy of the transition plan shall be 
made available for public inspection. The plan shall, at a minimum--
    (1) Identify physical obstacles in the agency's facilities that 
limit the accessibility of its programs or activities to individuals 
with handicaps;
    (2) Describe in detail the methods that will be used to make the 
facilities accessible;
    (3) Specify the schedule for taking the steps necessary to achieve 
compliance with this section and, if the time period of the transition 
plan is longer than one year, identify steps that will be taken during 
each year of the transition period; and
    (4) Indicate the official responsible for implementation of the 
plan.

[[Page 227]]



Sec. 711.151  Program accessibility: New construction and alterations.

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



Sec. Sec. 711.152-711.159  [Reserved]



Sec. 711.160  Communications.

    (a) The agency shall take appropriate steps to ensure effective 
communication with applicants, participants, personnel of other Federal 
entities, and members of the public.
    (1) The agency shall furnish appropriate auxiliary aids where 
necessary to afford an individual with handicaps an equal opportunity to 
participate in, and enjoy the benefits of, a program or activity 
conducted by the agency.
    (i) In determining what type of auxiliary aid is necessary, the 
agency shall give primary consideration to the requests of the 
individual with handicaps.
    (ii) The agency need not provide individually prescribed devices, 
readers for personal use or study, or other devices of a personal 
nature.
    (2) Where the agency communicates with applicants and beneficiaries 
by telephone, telecommunication devices for deaf persons (TDD's) or 
equally effective telecommunication systems shall be used to communicate 
with persons with impaired hearing.
    (b) The agency shall ensure that interested persons, including 
persons with impaired vision or hearing, can obtain information as to 
the existence and location of accessible services, activities, and 
facilities.
    (c) The agency shall provide signage at a primary entrance to each 
of its inaccessible facilities, directing users to a location at which 
they can obtain information about accessible facilities. The 
international symbol for accessibility shall be used at each primary 
entrance of an accessible facility.
    (d) This section does not require the agency to take any action that 
it can demonstrate would result in a fundamental alteration in the 
nature of a program or activity or in undue financial and administrative 
burdens. In those circumstances where agency personnel believe that the 
proposed action would fundamentally alter the program or activity or 
would result in undue financial and administrative burdens, the agency 
has the burden of proving that compliance with Sec. 711.160 would 
result in such alteration or burdens. The decision that compliance would 
result in such alteration or burdens must be made by the agency head or 
his or her designee after considering all agency resources available for 
use in the funding and operation of the conducted program or activity 
and must be accompanied by a written statement of the reasons for 
reaching that conclusion. If an action required to comply with this 
section would result in such an alteration or such burdens, the agency 
shall take any other action that would not result in such an alteration 
or such burdens but would nevertheless ensure that, to the maximum 
extent possible, individuals with handicaps receive the benefits and 
services of the program or activity.



Sec. Sec. 711.161-711.169  [Reserved]



Sec. 711.170  Compliance procedures.

    (a) Except as provided in paragraph (b) of this section, this 
section applies to all allegations of discrimination on the basis of 
handicap in programs and activities conducted by the agency.
    (b) The agency shall process complaints alleging violations of 
section 504 with respect to employment according to the procedures 
established by the Equal Employment Opportunity Commission in 29 CFR 
part 1613 pursuant to section 501 of the Rehabilitation Act of 1973 (29 
U.S.C. 791).
    (c) The Director of Personnel shall be responsible for coordinating 
implementation of this section. Complaints may be sent to Overseas 
Private Investment Corporation, 1615 M Street, NW., Washington, DC 
20527, Attention: Director of Personnel.
    (d) The agency shall accept and investigate all complete complaints 
for

[[Page 228]]

which it has jurisdiction. All complete complaints must be filed within 
180 days of the alleged act of discrimination. The agency may extend 
this time period for good cause.
    (e) If the agency receives a complaint over which it does not have 
jurisdiction, it shall promptly notify the complainant and shall make 
reasonable efforts to refer the complaint to the appropriate Government 
entity.
    (f) The agency shall notify the Architectural and Transportation 
Barriers Compliance Board upon receipt of any complaint alleging that a 
building or facility that is subject to the Architectural Barriers Act 
of 1968, as amended (42 U.S.C. 4151-4157), is not readily accessible to 
and usable by individuals with handicaps.
    (g) Within 180 days of the receipt of a complete complaint for which 
it has jurisdiction, the agency shall notify the complainant of the 
results of the investigation in a letter containing--
    (1) Findings of fact and conclusions of law;
    (2) A description of a remedy for each violation found; and
    (3) A notice of the right to appeal.
    (h) Appeals of the findings of fact and conclusions of law or 
remedies must be filed by the complainant within 90 days of receipt from 
the agency of the letter required by Sec. 711.170(g). The agency may 
extend this time for good cause.
    (i) Timely appeals shall be accepted and processed by the head of 
the agency.
    (j) The head of the agency shall notify the complainant of the 
results of the appeal within 60 days of the receipt of the request. If 
the head of the agency determines that additional information is needed 
from the complainant, he or she shall have 60 days from the date of 
receipt of the additional information to make his or her determination 
on the appeal.
    (k) The time limits cited in paragraphs (g) and (j) of this section 
may be extended with the permission of the Assistant Attorney General.
    (l) The agency may delegate its authority for conducting complaint 
investigations to other Federal agencies, except that the authority for 
making the final determination may not be delegated to another agency.

[53 FR 25882, 25885, July 8, 1988, as amended 53 FR 25883, July 8, 1988]



Sec. Sec. 711.171-711.999  [Reserved]



PART 712_NEW RESTRICTIONS ON LOBBYING--Table of Contents




                            Subpart A_General

Sec.
712.100 Conditions on use of funds.
712.105 Definitions.
712.110 Certification and disclosure.

                  Subpart B_Activities by Own Employees

712.200 Agency and legislative liaison.
712.205 Professional and technical services.
712.210 Reporting.

            Subpart C_Activities by Other Than Own Employees

712.300 Professional and technical services.

                   Subpart D_Penalties and Enforcement

712.400 Penalties.
712.405 Penalty procedures.
712.410 Enforcement.

                          Subpart E_Exemptions

712.500 Secretary of Defense.

                        Subpart F_Agency Reports

712.600 Semi-annual compilation.
712.605 Inspector General report.

Appendix A to Part 712--Certification Regarding Lobbying
Appendix B to Part 712--Disclosure Form To Report Lobbying

    Authority: Section 319, Public Law 101-121 (31 U.S.C. 1352).

    Cross Reference: See also Office of Management and Budget notice 
published at 54 FR 52306, December 20, 1989.

    Source: 55 FR 6737, 6750, Feb. 26, 1990, unless otherwise noted.



                            Subpart A_General



Sec. 712.100  Conditions on use of funds.

    (a) No appropriated funds may be expended by the recipient of a 
Federal contract, grant, loan, or cooperative ageement to pay any person 
for influencing or attempting to influence an officer or employee of any 
agency, a

[[Page 229]]

Member of Congress, an officer or employee of Congress, or an employee 
of a Member of Congress in connection with any of the following covered 
Federal actions: the awarding of any Federal contract, the making of any 
Federal grant, the making of any Federal loan, the entering into of any 
cooperative agreement, and the extension, continuation, renewal, 
amendment, or modification of any Federal contract, grant, loan, or 
cooperative agreement.
    (b) Each person who requests or receives from an agency a Federal 
contract, grant, loan, or cooperative agreement shall file with that 
agency a certification, set forth in appendix A, that the person has not 
made, and will not make, any payment prohibited by paragraph (a) of this 
section.
    (c) Each person who requests or receives from an agency a Federal 
contract, grant, loan, or a cooperative agreement shall file with that 
agency a disclosure form, set forth in appendix B, if such person has 
made or has agreed to make any payment using nonappropriated funds (to 
include profits from any covered Federal action), which would be 
prohibited under paragraph (a) of this section if paid for with 
appropriated funds.
    (d) Each person who requests or receives from an agency a commitment 
providing for the United States to insure or guarantee a loan shall file 
with that agency a statement, set forth in appendix A, whether that 
person has made or has agreed to make any payment to influence or 
attempt to influence an officer or employee of any agency, a Member of 
Congress, an officer or employee of Congress, or an employee of a Member 
of Congress in connection with that loan insurance or guarantee.
    (e) Each person who requests or receives from an agency a commitment 
providing for the United States to insure or guarantee a loan shall file 
with that agency a disclosure form, set forth in appendix B, if that 
person has made or has agreed to make any payment to influence or 
attempt to influence an officer or employee of any agency, a Member of 
Congress, an officer or employee of Congress, or an employee of a Member 
of Congress in connection with that loan insurance or guarantee.



Sec. 712.105  Definitions.

    For purposes of this part:
    (a) Agency, as defined in 5 U.S.C. 552(f), includes Federal 
executive departments and agencies as well as independent regulatory 
commissions and Government corporations, as defined in 31 U.S.C. 
9101(1).
    (b) Covered Federal action means any of the following Federal 
actions:
    (1) The awarding of any Federal contract;
    (2) The making of any Federal grant;
    (3) The making of any Federal loan;
    (4) The entering into of any cooperative agreement; and,
    (5) The extension, continuation, renewal, amendment, or modification 
of any Federal contract, grant, loan, or cooperative agreement.


Covered Federal action does not include receiving from an agency a 
commitment providing for the United States to insure or guarantee a 
loan. Loan guarantees and loan insurance are addressed independently 
within this part.
    (c) Federal contract means an acquisition contract awarded by an 
agency, including those subject to the Federal Acquisition Regulation 
(FAR), and any other acquisition contract for real or personal property 
or services not subject to the FAR.
    (d) Federal cooperative agreement means a cooperative agreement 
entered into by an agency.
    (e) Federal grant means an award of financial assistance in the form 
of money, or property in lieu of money, by the Federal Government or a 
direct appropriation made by law to any person. The term does not 
include technical assistance which provides services instead of money, 
or other assistance in the form of revenue sharing, loans, loan 
guarantees, loan insurance, interest subsidies, insurance, or direct 
United States cash assistance to an individual.
    (f) Federal loan means a loan made by an agency. The term does not 
include loan guarantee or loan insurance.
    (g) Indian tribe and tribal organization have the meaning provided 
in section 4 of the Indian Self-Determination and Education Assistance 
Act (25 U.S.C. 450B). Alaskan Natives are included

[[Page 230]]

under the definitions of Indian tribes in that Act.
    (h) Influencing or attempting to influence means making, with the 
intent to influence, any communication to or appearance before an 
officer or employee or any agency, a Member of Congress, an officer or 
employee of Congress, or an employee of a Member of Congress in 
connection with any covered Federal action.
    (i) Loan guarantee and loan insurance means an agency's guarantee or 
insurance of a loan made by a person.
    (j) Local government means a unit of government in a State and, if 
chartered, established, or otherwise recognized by a State for the 
performance of a governmental duty, including a local public authority, 
a special district, an intrastate district, a council of governments, a 
sponsor group representative organization, and any other instrumentality 
of a local government.
    (k) Officer or employee of an agency includes the following 
individuals who are employed by an agency:
    (1) An individual who is appointed to a position in the Government 
under title 5, U.S. Code, including a position under a temporary 
appointment;
    (2) A member of the uniformed services as defined in section 101(3), 
title 37, U.S. Code;
    (3) A special Government employee as defined in section 202, title 
18, U.S. Code; and,
    (4) An individual who is a member of a Federal advisory committee, 
as defined by the Federal Advisory Committee Act, title 5, U.S. Code 
appendix 2.
    (l) Person means an individual, corporation, company, association, 
authority, firm, partnership, society, State, and local government, 
regardless of whether such entity is operated for profit or not for 
profit. This term excludes an Indian tribe, tribal organization, or any 
other Indian organization with respect to expenditures specifically 
permitted by other Federal law.
    (m) Reasonable compensation means, with respect to a regularly 
employed officer or employee of any person, compensation that is 
consistent with the normal compensation for such officer or employee for 
work that is not furnished to, not funded by, or not furnished in 
cooperation with the Federal Government.
    (n) Reasonable payment means, with respect to perfessional and other 
technical services, a payment in an amount that is consistent with the 
amount normally paid for such services in the private sector.
    (o) Recipient includes all contractors, subcontractors at any tier, 
and subgrantees at any tier of the recipient of funds received in 
connection with a Federal contract, grant, loan, or cooperative 
agreement. The term excludes an Indian tribe, tribal organization, or 
any other Indian organization with respect to expenditures specifically 
permitted by other Federal law.
    (p) Regularly employed means, with respect to an officer or employee 
of a person requesting or receiving a Federal contract, grant, loan, or 
cooperative agreement or a commitment providing for the United States to 
insure or guarantee a loan, an officer or employee who is employed by 
such person for at least 130 working days within one year immediately 
preceding the date of the submission that initiates agency consideration 
of such person for receipt of such contract, grant, loan, cooperative 
agreement, loan insurance commitment, or loan guarantee commitment. An 
officer or employee who is employed by such person for less than 130 
working days within one year immediately preceding the date of the 
submission that initiates agency consideration of such person shall be 
considered to be regularly employed as soon as he or she is employed by 
such person for 130 working days.
    (q) State means a State of the United States, the District of 
Columbia, the Commonwealth of Puerto Rico, a territory or possession of 
the United States, an agency or instrumentality of a State, and a multi-
State, regional, or interstate entity having governmental duties and 
powers.



Sec. 712.110  Certification and disclosure.

    (a) Each person shall file a certification, and a disclosure form, 
if required, with each submission that initiates agency consideration of 
such person for:

[[Page 231]]

    (1) Award of a Federal contract, grant, or cooperative agreement 
exceeding $100,000; or
    (2) An award of a Federal loan or a commitment providing for the 
United States to insure or guarantee a loan exceeding $150,000.
    (b) Each person shall file a certification, and a disclosure form, 
if required, upon receipt by such person of:
    (1) A Federal contract, grant, or cooperative agreement exceeding 
$100,000; or
    (2) A Federal loan or a commitment providing for the United States 
to insure or guarantee a loan exceeding $150,000,


Unless such person previously filed a certification, and a disclosure 
form, if required, under paragraph (a) of this section.
    (c) Each person shall file a disclosure form at the end of each 
calendar quarter in which there occurs any event that requires 
disclosure or that materially affects the accuracy of the information 
contained in any disclosure form previously filed by such person under 
paragraphs (a) or (b) of this section. An event that materially affects 
the accuracy of the information reported includes:
    (1) A cumulative increase of $25,000 or more in the amount paid or 
expected to be paid for influencing or attempting to influence a covered 
Federal action; or
    (2) A change in the person(s) or individual(s) influencing or 
attempting to influence a covered Federal action; or,
    (3) A change in the officer(s), employee(s), or Member(s) contacted 
to influence or attempt to influence a covered Federal action.
    (d) Any person who requests or receives from a person referred to in 
paragraphs (a) or (b) of this section:
    (1) A subcontract exceeding $100,000 at any tier under a Federal 
contract;
    (2) A subgrant, contract, or subcontract exceeding $100,000 at any 
tier under a Federal grant;
    (3) A contract or subcontract exceeding $100,000 at any tier under a 
Federal loan exceeding $150,000; or,
    (4) A contract or subcontract exceeding $100,000 at any tier under a 
Federal cooperative agreement,


Shall file a certification, and a disclosure form, if required, to the 
next tier above.
    (e) All disclosure forms, but not certifications, shall be forwarded 
from tier to tier until received by the person referred to in paragraphs 
(a) or (b) of this section. That person shall forward all disclosure 
forms to the agency.
    (f) Any certification or disclosure form filed under paragraph (e) 
of this section shall be treated as a material representation of fact 
upon which all receiving tiers shall rely. All liability arising from an 
erroneous representation shall be borne solely by the tier filing that 
representation and shall not be shared by any tier to which the 
erroneous representation is forwarded. Submitting an erroneous 
certification or disclosure constitutes a failure to file the required 
certification or disclosure, respectively. If a person fails to file a 
required certification or disclosure, the United States may pursue all 
available remedies, including those authorized by section 1352, title 
31, U.S. Code.
    (g) For awards and commitments in process prior to December 23, 
1989, but not made before that date, certifications shall be required at 
award or commitment, covering activities occurring between December 23, 
1989, and the date of award or commitment. However, for awards and 
commitments in process prior to the December 23, 1989 effective date of 
these provisions, but not made before December 23, 1989, disclosure 
forms shall not be required at time of award or commitment but shall be 
filed within 30 days.
    (h) No reporting is required for an activity paid for with 
appropriated funds if that activity is allowable under either subpart B 
or C.



                  Subpart B_Activities by Own Employees



Sec. 712.200  Agency and legislative liaison.

    (a) The prohibition on the use of appropriated funds, in Sec. 
712.100 (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

[[Page 232]]

if the payment is for agency and legislative liaison activities not 
directly related to a covered Federal action.
    (b) For purposes of paragraph (a) of this section, providing any 
information specifically requested by an agency or Congress is allowable 
at any time.
    (c) For purposes of paragraph (a) of this section, the following 
agency and legislative liaison activities are allowable at any time only 
where they are not related to a specific solicitation for any covered 
Federal action:
    (1) Discussing with an agency (including individual demonstrations) 
the qualities and characteristics of the person's products or services, 
conditions or terms of sale, and service capabilities; and,
    (2) Technical discussions and other activities regarding the 
application or adaptation of the person's products or services for an 
agency's use.
    (d) For purposes of paragraph (a) of this section, the following 
agencies and legislative liaison activities are allowable only where 
they are prior to formal solicitation of any covered Federal action:
    (1) Providing any information not specifically requested but 
necessary for an agency to make an informed decision about initiation of 
a covered Federal action;
    (2) Technical discussions regarding the preparation of an 
unsolicited proposal prior to its official submission; and,
    (3) Capability presentations by persons seeking awards from an 
agency pursuant to the provisions of the Small Business Act, as amended 
by Public Law 95-507 and other subsequent amendments.
    (e) Only those activities expressly authorized by this section are 
allowable under this section.



Sec. 712.205  Professional and technical services.

    (a) The prohibition on the use of appropriated funds, in Sec. 
712.100 (a), does not apply in the case of a payment of reasonable 
compensation made to an officer or employee of a person requesting or 
receiving a Federal contract, grant, loan, or cooperative agreement or 
an extension, continuation, renewal, amendment, or modification of a 
Federal contract, grant, loan, or cooperative agreement if payment is 
for professional or technical services rendered directly in the 
preparation, submission, or negotiation of any bid, proposal, or 
application for that Federal contract, grant, loan, or cooperative 
agreement or for meeting requirements imposed by or pursuant to law as a 
condition for receiving that Federal contract, grant, loan, or 
cooperative agreement.
    (b) For purposes of paragraph (a) of this section, ``professional 
and technical services'' shall be limited to advice and analysis 
directly applying any professional or technical discipline. For example, 
drafting of a legal document accompanying a bid or proposal by a lawyer 
is allowable. Similarly, technical advice provided by an engineer on the 
performance or operational capability of a piece of equipment rendered 
directly in the negotiation of a contract is allowable. However, 
communications with the intent to influence made by a professional (such 
as a licensed lawyer) or a technical person (such as a licensed 
accountant) are not allowable under this section unless they provide 
advice and analysis directly applying their professional or technical 
expertise and unless the advice or analysis is rendered directly and 
solely in the preparation, submission or negotiation of a covered 
Federal action. Thus, for example, communications with the intent to 
influence made by a lawyer that do not provide legal advice or analysis 
directly and solely related to the legal aspects of his or her client's 
proposal, but generally advocate one proposal over another are not 
allowable under this section because the lawyer is not providing 
professional legal services. Similarly, communications with the intent 
to influence made by an engineer providing an engineering analysis prior 
to the preparation or submission of a bid or proposal are not allowable 
under this section since the engineer is providing technical services 
but not directly in the preparation, submission or negotiation of a 
covered Federal action.
    (c) Requirements imposed by or pursuant to law as a condition for 
receiving a covered Federal award include

[[Page 233]]

those required by law or regulation, or reasonably expected to be 
required by law or regulation, and any other requirements in the actual 
award documents.
    (d) Only those services expressly authorized by this section are 
allowable under this section.



Sec. 712.210  Reporting.

    No reporting is required with respect to payments of reasonable 
compensation made to regularly employed officers or employees of a 
person.



            Subpart C_Activities by Other Than Own Employees



Sec. 712.300  Professional and technical services.

    (a) The prohibition on the use of appropriated funds, in Sec. 
712.100 (a), does not apply in the case of any reasonable payment to a 
person, other than an officer or employee of a person requesting or 
receiving a covered Federal action, if the payment is for professional 
or technical services rendered directly in the preparation, submission, 
or negotiation of any bid, proposal, or application for that Federal 
contract, grant, loan, or cooperative agreement or for meeting 
requirements imposed by or pursuant to law as a condition for receiving 
that Federal contract, grant, loan, or cooperative agreement.
    (b) The reporting requirements in Sec. 712.110 (a) and (b) 
regarding filing a disclosure form by each person, if required, shall 
not apply with respect to professional or technical services rendered 
directly in the preparation, submission, or negotiation of any 
commitment providing for the United States to insure or guarantee a 
loan.
    (c) For purposes of paragraph (a) of this section, ``professional 
and technical services'' shall be limited to advice and analysis 
directly applying any professional or technical discipline. For example, 
drafting or a legal document accompanying a bid or proposal by a lawyer 
is allowable. Similarly, technical advice provided by an engineer on the 
performance or operational capability of a piece of equipment rendered 
directly in the negotiation of a contract is allowable. However, 
communications with the intent to influence made by a professional (such 
as a licensed lawyer) or a technical person (such as a licensed 
accountant) are not allowable under this section unless they provide 
advice and analysis directly applying their professional or technical 
expertise and unless the advice or analysis is rendered directly and 
solely in the preparation, submission or negotiation of a covered 
Federal action. Thus, for example, communications with the intent to 
influence made by a lawyer that do not provide legal advice or analysis 
directly and solely related to the legal aspects of his or her client's 
proposal, but generally advocate one proposal over another are not 
allowable under this section because the lawyer is not providing 
professional legal services. Similarly, communications with the intent 
to influence made by an engineer providing an engineering analysis prior 
to the preparation or submission of a bid or proposal are not allowable 
under this section since the engineer is providing technical services 
but not directly in the preparation, submission or negotiation of a 
covered Federal action.
    (d) Requirements imposed by or pursuant to law as a condition for 
receiving a covered Federal award include those required by law or 
regulation, or reasonably expected to be required by law or regulation, 
and any other requirements in the actual award documents.
    (e) Persons other than officers or employees of a person requesting 
or receiving a covered Federal action include consultants and trade 
associations.
    (f) Only those services expressly authorized by this section are 
allowable under this section.



                   Subpart D_Penalties and Enforcement



Sec. 712.400  Penalties.

    (a) Any person who makes an expenditure prohibited herein shall be 
subject to a civil penalty of not less than $10,000 and not more than 
$100,000 for each such expenditure.

[[Page 234]]

    (b) Any person who fails to file or amend the disclosure form (see 
appendix B) to be filed or amended if required herein, shall be subject 
to a civil penalty of not less than $10,000 and not more than $100,000 
for each such failure.
    (c) A filing or amended filing on or after the date on which an 
administrative action for the imposition of a civil penalty is commenced 
does not prevent the imposition of such civil penalty for a failure 
occurring before that date. An administrative action is commenced with 
respect to a failure when an investigating official determines in 
writing to commence an investigation of an allegation of such failure.
    (d) In determining whether to impose a civil penalty, and the amount 
of any such penalty, by reason of a violation by any person, the agency 
shall consider the nature, circumstances, extent, and gravity of the 
violation, the effect on the ability of such person to continue in 
business, any prior violations by such person, the degree of culpability 
of such person, the ability of the person to pay the penalty, and such 
other matters as may be appropriate.
    (e) First offenders under paragraphs (a) or (b) of this section 
shall be subject to a civil penalty of $10,000, absent aggravating 
circumstances. Second and subsequent offenses by persons shall be 
subject to an appropriate civil penalty between $10,000 and $100,000, as 
determined by the agency head or his or her designee.
    (f) An imposition of a civil penalty under this section does not 
prevent the United States from seeking any other remedy that may apply 
to the same conduct that is the basis for the imposition of such civil 
penalty.



Sec. 712.405  Penalty procedures.

    Agencies shall impose and collect civil penalties pursuant to the 
provisions of the Program Fraud and Civil Remedies Act, 31 U.S.C. 
sections 3803 (except subsection (c)), 3804, 3805, 3806, 3807, 3808, and 
3812, insofar as these provisions are not inconsistent with the 
requirements herein.



Sec. 712.410  Enforcement.

    The head of each agency shall take such actions as are necessary to 
ensure that the provisions herein are vigorously implemented and 
enforced in that agency.



                          Subpart E_Exemptions



Sec. 712.500  Secretary of Defense.

    (a) The Secretary of Defense may exempt, on a case-by-case basis, a 
covered Federal action from the prohibition whenever the Secretary 
determines, in writing, that such an exemption is in the national 
interest. The Secretary shall transmit a copy of each such written 
exemption to Congress immediately after making such a determination.
    (b) The Department of Defense may issue supplemental regulations to 
implement paragraph (a) of this section.



                        Subpart F_Agency Reports



Sec. 712.600  Semi-annual compilation.

    (a) The head of each agency shall collect and compile the disclosure 
reports (see appendix B) and, on May 31 and November 30 of each year, 
submit to the Secretary of the Senate and the Clerk of the House of 
Representatives a report containing a compilation of the information 
contained in the disclosure reports received during the six-month period 
ending on March 31 or September 30, respectively, of that year.
    (b) The report, including the compilation, shall be available for 
public inspection 30 days after receipt of the report by the Secretary 
and the Clerk.
    (c) Information that involves intelligence matters shall be reported 
only to the Select Committee on Intelligence of the Senate, the 
Permanent Select Committee on Intelligence of the House of 
Representatives, and the Committees on Appropriations of the Senate and 
the House of Representatives in accordance with procedures agreed to by 
such committees. Such information shall not be available for public 
inspection.
    (d) Information that is classified under Executive Order 12356 or 
any successor order shall be reported only to the Committee on Foreign 
Relations of the Senate and the Committee on Foreign Affairs of the 
House of Representatives or the Committees on Armed

[[Page 235]]

Services of the Senate and the House of Representatives (whichever such 
committees have jurisdiction of matters involving such information) and 
to the Committees on Appropriations of the Senate and the House of 
Representatives in accordance with procedures agreed to by such 
committees. Such information shall not be available for public 
inspection.
    (e) The first semi-annual compilation shall be submitted on May 31, 
1990, and shall contain a compilation of the disclosure reports received 
from December 23, 1989 to March 31, 1990.
    (f) Major agencies, designated by the Office of Management and 
Budget (OMB), are required to provide machine-readable compilations to 
the Secretary of the Senate and the Clerk of the House of 
Representatives no later than with the compilations due on May 31, 1991. 
OMB shall provide detailed specifications in a memorandum to these 
agencies.
    (g) Non-major agencies are requested to provide machine-readable 
compilations to the Secretary of the Senate and the Clerk of the House 
of Representatives.
    (h) Agencies shall keep the originals of all disclosure reports in 
the official files of the agency.



Sec. 712.605  Inspector General report.

    (a) The Inspector General, or other official as specified in 
paragraph (b) of this section, of each agency shall prepare and submit 
to Congress each year, commencing with submission of the President's 
Budget in 1991, an evaluation of the compliance of that agency with, and 
the effectiveness of, the requirements herein. The evaluation may 
include any recommended changes that may be necessary to strengthen or 
improve the requirements.
    (b) In the case of an agency that does not have an Inspector 
General, the agency official comparable to an Inspector General shall 
prepare and submit the annual report, or, if there is no such comparable 
official, the head of the agency shall prepare and submit the annual 
report.
    (c) The annual report shall be submitted at the same time the agency 
submits its annual budget justifications to Congress.
    (d) The annual report shall include the following: All alleged 
violations relating to the agency's covered Federal actions during the 
year covered by the report, the actions taken by the head of the agency 
in the year covered by the report with respect to those alleged 
violations and alleged violations in previous years, and the amounts of 
civil penalties imposed by the agency in the year covered by the report.

        Appendix A to Part 712--Certification Regarding Lobbying

 Certification for Contracts, Grants, Loans, and Cooperative Agreements

    The undersigned certifies, to the best of his or her knowledge and 
belief, that:
    (1) No Federal appropriated funds have been paid or will be paid, by 
or on behalf of the undersigned, to any person for influencing or 
attempting to influence an officer or employee of an agency, a Member of 
Congress, an officer or employee of Congress, or an employee of a Member 
of Congress in connection with the awarding of any Federal contract, the 
making of any Federal grant, the making of any Federal loan, the 
entering into of any cooperative agreement, and the extension, 
continuation, renewal, amendment, or modification of any Federal 
contract, grant, loan, or cooperative agreement.
    (2) If any funds other than Federal appropriated funds have been 
paid or will be paid to any person for influencing or attempting to 
influence an officer or employee of any agency, a Member of Congress, an 
officer or employee of Congress, or an employee of a Member of Congress 
in connection with this Federal contract, grant, loan, or cooperative 
agreement, the undersigned shall complete and submit Standard Form-LLL, 
``Disclosure Form to Report Lobbying,'' in accordance with its 
instructions.
    (3) The undersigned shall require that the language of this 
certification be included in the award documents for all subawards at 
all tiers (including subcontracts, subgrants, and contracts under 
grants, loans, and cooperative agreements) and that all subrecipients 
shall certify and disclose accordingly.
    This certification is a material representation of fact upon which 
reliance was placed when this transaction was made or entered into. 
Submission of this certification is a prerequisite for making or 
entering into this transaction imposed by section 1352, title 31, U.S. 
Code. Any person who fails to file the required certification shall be 
subject to a civil penalty of not less than $10,000 and not more than 
$100,000 for each such failure.

[[Page 236]]

            Statement for Loan Guarantees and Loan Insurance

    The undersigned states, to the best of his or her knowledge and 
belief, that:
    If any funds have been paid or will be paid to any person for 
influencing or attempting to influence an officer or employee of any 
agency, a Member of Congress, an officer or employee of Congress, or an 
employee of a Member of Congress in connection with this commitment 
providing for the United States to insure or guarantee a loan, the 
undersigned shall complete and submit Standard Form-LLL, ``Disclosure 
Form to Report Lobbying,'' in accordance with its instructions.
    Submission of this statement is a prerequisite for making or 
entering into this transaction imposed by section 1352, title 31, U.S. 
Code. Any person who fails to file the required statement shall be 
subject to a civil penalty of not less than $10,000 and not more than 
$100,000 for each such failure.

[[Page 237]]

       Appendix B to Part 712--Disclosure Form To Report Lobbying
[GRAPHIC] [TIFF OMITTED] TC13OC91.006


[[Page 238]]


[GRAPHIC] [TIFF OMITTED] TC13OC91.007


[[Page 239]]


[GRAPHIC] [TIFF OMITTED] TC13OC91.008


[[Page 240]]





PART 713_PRODUCTION OF NONPUBLIC RECORDS AND TESTIMONY OF OPIC EMPLOYEES IN 

LEGAL PROCEEDINGS--Table of Contents




Sec.
713.1 What does this part prohibit?
713.2 When does this part apply?
713.3 How do I request nonpublic records or testimony?
713.4 What must my written request contain?
713.5 When should I make my request?
713.6 Where should I send my request?
713.7 What will OPIC do with my request?
713.8 If my request is granted, what fees apply?
713.9 If my request is granted, what restrictions may apply?
713.10 Definitions.

    Authority: 5 U.S.C. 301; 5 U.S.C. 552; 5 U.S.C. 552a; 5 U.S.C. 702; 
18 U.S.C. 207; 18 U.S.C. 641; 22 U.S.C. 2199(d); 28 U.S.C. 1821.

    Source: 64 FR 8241, Feb. 19, 1999, unless otherwise noted.



Sec. 713.1  What does this part prohibit?

    This part prohibits the release of nonpublic records for legal 
proceedings or the appearance of an OPIC employee to testify in legal 
proceedings except as provided in this part. Any person possessing 
nonpublic records may release them or permit their disclosure or release 
only as provided in this part.
    (a) Duty of OPIC employees. (1) If you are an OPIC employee and you 
are served with a subpoena requiring you to appear as a witness or to 
produce records, you must promptly notify the Vice-president/General 
Counsel in the Department of Legal Affairs. The Vice-President/General 
Counsel has the authority to instruct OPIC employees to refuse to appear 
as a witness or to withhold nonpublic records. The Vice-President/
General Counsel may let an OPIC employee provide testimony, including 
expert or opinion testimony, if the Vice-President/General Counsel 
determines that the need for the testimony clearly outweighs contrary 
considerations.
    (2) If a court or other appropriate authority orders or demands from 
you expert or opinion testimony or testimony beyond authorized subjects 
contrary to the Vice-President/General Counsel's instructions, you must 
immediately notify the Vice-President/General Counsel of the order and 
then respectfully decline to comply with the order. You must decline to 
answer questions on the grounds that this part forbids such disclosure. 
You should produce a copy of this part, request an opportunity to 
consult with the Vice-President/General Counsel, and explain that 
providing such testimony without approval may expose you to disciplinary 
or other adverse action.
    (b) Duty of persons who are not OPIC employees. (1) If you are not 
an OPIC employee but have custody of nonpublic records, as defined at 
Sec. 713.10, and you are served with a subpoena requiring you to 
produce records or to testify as a witness, you must promptly notify 
OPIC of the subpoena. Also, you must notify the issuing court or 
authority and the person or entity for whom the subpoena was issued of 
the contents of this part. Provide notice to OPIC by sending a copy of 
the subpoena to the Vice-President/General Counsel, OPIC, 1100 New York 
Avenue, NW, Washington, DC 20527. After reviewing notice, OPIC may 
advise the issuing court or authority and the person or entity for whom 
the subpoena was issued that this part applies and, in addition, may 
intervene, attempt to have the subpoena quashed or withdrawn, or 
register appropriate objections.
    (2) After you notify the Vice-President/General Counsel of the 
subpoena, respond to the subpoena by appearing at the time and place 
stated in the subpoena, unless otherwise directed by the Vice President/
General Counsel. Unless otherwise authorized by the Vice-President/
General Counsel, decline to produce any records or give any testimony, 
basing your refusal on this part. If the issuing court or authority 
orders the disclosure of records or orders you to testify, decline to 
produce records or testify and advise the Vice-President/General 
Counsel.
    (c) Penalties. Anyone who discloses nonpublic records or gives 
testimony related to those records, except as expressly authorized by 
OPIC or as ordered by a federal court after OPIC has had the opportunity 
to be heard, may face the penalties provided in 18 U.S.C. 641 and other 
applicable laws. Also, former OPIC employees, in addition to

[[Page 241]]

the prohibition contained in this part, are subject to the restrictions 
and penalties of 18 U.S.C. 207.



Sec. 713.2  When does this part apply?

    This part applies if you want to obtain nonpublic records or 
testimony of an OPIC employee for a legal proceeding. It does not apply 
to records that OPIC is required to release, or of which OPIC makes 
discretionary release, under the Freedom of Information Act (FOIA), 
records that OPIC releases to federal or state investigatory agencies, 
records that OPIC is required to release pursuant to the Privacy Act, 5 
U.S.C. 552a, or records that OPIC releases under any other applicable 
authority.



Sec. 713.3  How do I request nonpublic records or testimony?

    To request nonpublic records or the testimony of an OPIC employee, 
you must submit a written request to the Vice-President/General Counsel 
of OPIC. If you serve a subpoena on OPIC or an OPIC employee before 
submitting a written request and receiving a final determination, OPIC 
will oppose the subpoena on the grounds that you failed to follow the 
requirements of this part. You may serve a subpoena as long as it is 
accompanied by a written request that complies with this part.



Sec. 713.4  What must my written request contain?

    Your written request for records or testimony must include:
    (a) The caption of the legal proceeding, docket number, and name of 
the court or other authority involved.
    (b) A copy of the complaint or equivalent document setting forth the 
assertions in the case and any other pleading or document necessary to 
show relevance.
    (c) A list of categories of records sought, a detailed description 
of how the information sought is relevant to the issues in the legal 
proceeding, and a specific description of the substance of the testimony 
or records sought.
    (d) A statement as to how the need for the information outweighs the 
need to maintain the confidentiality of the information and outweighs 
the burden on OPIC to produce the records or provide testimony.
    (e) A statement indicating that the information sought is not 
available from another source, such as the requestor's own books and 
records, other persons or entities, or the testimony of someone other 
than an OPIC employee, such as retained experts.
    (f) A description of all prior decisions, orders, or pending motions 
in the case that bear upon the relevance of the records or testimony you 
want.
    (g) The name, address, and telephone number of counsel to each party 
in the case.
    (h) An estimate of the amount of time you anticipate that you and 
other parties will need with each OPIC employee for interviews, 
depositions, and/or testimony.



Sec. 713.5  When should I make my request?

    Submit your request at least 45 days before the date you need the 
records or testimony. If you want your request processed in a shorter 
time, you must explain why you could not submit the request earlier and 
why you need such expedited processing. If you are requesting the 
testimony of an OPIC employee, OPIC expects you to anticipate your need 
for the testimony in sufficient time to obtain it by deposition. The 
Vice-President/General Counsel may well deny a request for testimony at 
a legal proceeding unless you explain why you could not have used 
deposition testimony instead. The Vice-President/General Counsel will 
determine the location of a deposition, taking into consideration OPIC's 
interest in minimizing the disruption for an OPIC employee's work 
schedule and the costs and convenience of other persons attending the 
deposition.



Sec. 713.6  Where should I send my request?

    Send your request or subpoena for records or testimony to the 
attention of the Vice-President/General Counsel, OPIC, 1100 New York 
Avenue NW, Washington, DC 20527.

[[Page 242]]



Sec. 713.7  What will OPIC do with my request?

    (a) Factors OPIC will consider. OPIC may consider various factors in 
reviewing a request for nonpublic records or testimony of OPIC 
employees, including:
    (1) Whether disclosure would assist or hinder OPIC in performing its 
statutory duties or use OPIC resources unreasonably, including whether 
responding to the request will interfere with OPIC employees' ability to 
do their work.
    (2) Whether disclosure is necessary to prevent the perpetration of a 
fraud or other injustice in the matter.
    (3) Whether you can get the records or testimony you want from 
sources other than OPIC.
    (4) Whether the request is unduly burdensome.
    (5) Whether disclosure would violate a statute, executive order, or 
regulation, such as the Privacy Act, 5 U.S.C. 552a.
    (6) Whether disclosure would reveal confidential, sensitive or 
privileged information, trade secrets or similar, confidential 
commercial or financial information, or would otherwise be inappropriate 
for release and, if so, whether a confidentiality agreement or 
protective order as provided in Sec. 713.9(a) can adequately limit the 
disclosure.
    (7) Whether the disclosure would interfere with law enforcement 
proceedings, compromise constitutional rights, or hamper OPIC programs 
or other OPIC operations.
    (8) Whether the disclosure could result in OPIC's appearing to favor 
one litigant over another.
    (9) Any other factors OPIC determines to be relevant to the 
interests of OPIC.
    (b) Review of your request. OPIC will process your request in the 
order it is received. OPIC will try to respond to your request within 45 
days, but this may vary, depending on the scope of your request.
    (c) Final determination. the Vice-President/General Counsel makes 
the final determination on requests for nonpublic records or OPIC 
employee testimony. All final determinations are in the sole discretion 
of the Vice-President/General Counsel. The Vice-President/General 
Counsel will notify you and the court or other authority of the final 
determination of your request. In considering your request, the Vice-
President/General Counsel may contact you to inform you of the 
requirements of this part, ask that the request or subpoena be modified 
or withdrawn, or may try to resolve the request or subpoena informally 
without issuing a final determination.



Sec. 713.8  If my request is granted, what fees apply?

    (a) Generally. You must pay any fees associated with complying with 
your request, including copying fees for records and witness fees for 
testimony. The Vice-President/General Counsel may condition the 
production of records or appearance for testimony upon advance payment 
of a reasonable estimate of the fees.
    (b) Fees for records. You must pay all fees for searching, reviewing 
and duplicating records produced in response to your request. The fees 
will be the same as those charged by OPIC under its Freedom of 
Information Act regulations, 22 CFR Part 706, Subpart B, Sec. 706.26.
    (c) Witness fees. Your must pay the fees, expenses, and allowances 
prescribed by the court's rules for attendance by a witness. If no such 
fees are prescribed, the local federal district court rule concerning 
witness fees, for the federal district court closest to where the 
witness appears, will apply. For testimony by current OPIC employees, 
you must pay witness fees, allowances, and expenses to the Vice-
President/General Counsel by check made payable to the ``Overseas 
Private Investment Corporation'' within 30 days from receipt of OPIC's 
billing statement. For the testimony of a former OPIC employee, you must 
pay witness fees, allowances, and expenses directly to the former 
employee, in accordance with 28 U.S.C. 1821 or other applicable 
statutes.
    (d) Certification of records. OPIC may authenticate or certify 
records to facilitate their use as evidence. If you require 
authenticated records, you must request certified copies at least 45 
days before the date they will be needed.

[[Page 243]]

Send your request to the Vice-President/General Counsel. OPIC will 
charge you a certification fee of $5.00 per document.
    (e) Waiver of fees. A waiver or reduction of any fees in connection 
with the testimony, production, or certification or authentication of 
records may be granted in the discretion of the Vice-President/General 
Counsel. Waivers will not be granted routinely. If you request a waiver, 
your request for records or testimony must state the reasons why a 
waiver should be granted.



Sec. 713.9  If my request is granted, what restrictions may apply?

    (a) Records. The Vice-President/General Counsel may impose 
conditions or restrictions on the release of nonpublic records, 
including a requirement that you obtain a protective order or execute a 
confidentiality agreement with the other parties in the legal proceeding 
that limits access to and any further disclosure of the nonpublic 
records. The terms of a confidentiality agreement or protective order 
must be acceptable to the Vice-President/General Counsel. In cases where 
protective orders or confidentiality agreements have already been 
executed, OPIC may condition the release of nonpublic records on an 
amendment to the existing protective order or confidentiality agreement.
    (b) Testimony. The Vice-President/General Counsel may impose 
conditions or restrictions on the testimony of OPIC employees, 
including, for example, limiting the areas of testimony or requiring you 
and the other parties to the legal proceeding to agree that the 
transcript of the testimony will be kept under seal or will only be used 
or made available in the particular legal proceeding for which you 
requested the testimony. The Vice-President/General Counsel may also 
require you to provide a copy of the transcript of the testimony to OPIC 
at your expense.



Sec. 713.10  Defintitions.

    For purposes of this part:
    Legal proceedings means any matter before any federal, state or 
foreign administrative or judicial authority, including courts, 
agencies, commissions, boards, grand juries, or other tribunals, 
involving such proceedings as lawsuits, licensing matters, hearings, 
trials, discovery, investigations, mediation or arbitration. When OPIC 
is a party to a legal proceeding, it will be subject to the applicable 
rules of civil procedure governing production of documents and 
witnesses; however testimony and/or production of documents by OPIC 
employees, as defined, will still be subject to this part.
    Nonpublic records means any OPIC records which are exempt from 
disclosure by statute or under Part 706, OPIC's regulations implementing 
the provisions of the Freedom of Information Act. For example, this may 
include records created in connection with OPIC's receipt, evaluation 
and action on actual and proposed OPIC finance projects and insurance 
policies (whether such projects or policies were cancelled or not), 
including all reports, internal memoranda, opinions, interpretations, 
and correspondence, whether prepared by OPIC employees or by persons 
under contract, as well as confidential business information submitted 
by parties seeking to do business with OPIC. Whether OPIC has actually 
chosen in practice to apply any exemption to specific documents is 
irrelevant to the question of whether they are ``nonpublic'' for the 
purposes of this Part.
    OPIC employee means current and former officials, members of the 
Board of Directors, officers, directors, employees and agents of the 
Overseas Private Investment Corporation, including contract employees, 
consultants and their employees. This definition does not include 
persons who are no longer employed by OPIC and are retained or hired as 
expert witnesses or agree to testify about general matters, matters 
available to the public, or matters with which they had no specific 
involvement or responsibility during their employment.
    Subpoena means any order, subpoena for records or other tangible 
things or for testimony, summons, notice or legal process issued in a 
legal proceeding.
    Testimony means any written or oral statements made by an individual 
in

[[Page 244]]

connection with a legal proceeding, including personal appearances in 
court or at depositions, interviews in person or by telephone, responses 
to written interrogatories or other written statements such as reports, 
declarations, affidavits, or certifications or any response involving 
more than the delivery of records.

[[Page 245]]



               CHAPTER IX--FOREIGN SERVICE GRIEVANCE BOARD




  --------------------------------------------------------------------
Part                                                                Page
901             General.....................................         247
902             Organization................................         249
903             Initiation and documentation of cases.......         249
904             Jurisdiction and preliminary determinations.         251
905             Burden of proof.............................         253
906             Hearings....................................         253
907             Procedure when hearing is not held..........         255
908             Remedies....................................         255
909             Decisionmaking..............................         257
910             Miscellaneous...............................         257
911             Implementation disputes.....................         258

[[Page 247]]



PART 901_GENERAL--Table of Contents




                       Subpart A_Purpose and Scope

Sec.
901.1 Purpose and scope.

           Subpart B_Meanings of Terms as Used in This Chapter

901.10 Act.
901.11 Agency.
901.12 Board.
901.13 Executive secretary.
901.14 Service.
901.15 Exclusive representative.
901.16 Grievant.
901.17 Charged employee.
901.18 Grievance.
901.19 Labor organization.
901.20 Party.
901.21 Record of proceedings.
901.22 Representative.

    Authority: Secs. 610, 1101, 1102, 1105, and 1106 of the Foreign 
Service Act of 1980, Pub. L. 96-465 (22 U.S.C. 4131, 4132, 4135, and 
4136), as amended.

    Source: 50 FR 31353, Aug. 2, 1985, unless otherwise noted.



                       Subpart A_Purpose and Scope



Sec. 901.1  Purpose and scope.

    The regulations contained in this chapter establish the internal 
organization of the Foreign Service Grievance Board and prescribe its 
procedures in:
    (a) Determining its jurisdiction in cases involving grievances and 
separation for cause proceedings;
    (b) Compiling a record in such cases;
    (c) Conducting hearings in such cases, when required or deemed 
necessary; and
    (d) Deciding such cases, or otherwise disposing of them, so as to 
ensure the fullest measure of due process for the members of the Foreign 
Service.



           Subpart B_Meanings of Terms As Used in This Chapter



Sec. 901.10  Act.

    Act means the Foreign Service Act of 1980 (Pub. L. 96-465, October 
17, 1980), as amended.

[56 FR 55458, Oct. 28, 1991]



Sec. 901.11  Agency.

    Agency means the Department of State, the Agency for International 
Development, the U.S. Information Agency, the Department of Agriculture, 
or the Department of Commerce, if the Agency employs the individual 
appearing in a case before the Board and/or has control over the act, 
omission, or condition forming the subject matter of such case.



Sec. 901.12  Board.

    Board means the Foreign Service Grievance Board, including any 
designated panel or member thereof.



Sec. 901.13  Executive secretary.

    Executive secretary means the executive secretary of the Board or 
his or her designee.



Sec. 901.14  Service.

    Service means the Foreign Service of the United States.



Sec. 901.15  Exclusive representative.

    Exclusive representative means any labor organization which is 
certified as the exclusive representative of the bargaining unit of 
which the grievant or charged employee is a member.



Sec. 901.16  Grievant.

    Grievant means anyone who has filed a grievance and who is a member 
of the Service and is a citizen of the United States, or for the 
purposes of Sec. 901.18(a)(7) a former member of the Service, or in the 
case of death of the member, the surviving spouse or, if none, another 
member of the family.



Sec. 901.17  Charged employee.

    Charged employee means a member of the Senior Foreign Service or a 
member of the Service assigned to a salary class who has been proposed 
for separation for cause under section 610(a)(2) of the Act.



Sec. 901.18  Grievance.

    (a) Grievance means any act, omission, or condition subject to the 
control of an Agency which is alleged to deprive a member of the Service 
who is a citizen of the United States of a right

[[Page 248]]

or benefit authorized by law or regulation or is otherwise a source of 
concern or dissatisfaction to the member, including but not limited to:
    (1) Complaints against separation of a member allegedly contrary to 
law or regulation or predicated upon alleged inaccuracy, omission, error 
or falsely prejudicial character of information in any part of the 
official personnel record of the member;
    (2) Other alleged violation, misinterpretation or misapplication of 
applicable law, regulation, collective bargaining agreement or published 
post or agency policy affecting the terms and conditions of the 
employment or career status of the member;
    (3) Allegedly wrongful disciplinary action against the member;
    (4) Dissatisfaction with respect to the working environment of the 
member;
    (5) Alleged inaccuracy, omission, error, or falsely prejudicial 
character of information in the official personnel record of the member 
which is or could be prejudicial to the member;
    (6) Action alleged to be in the nature of reprisal or other 
interference with freedom of action in connection with participation by 
a member in a grievance; and
    (7) Alleged denial of an allowance, premium pay or other financial 
benefit to which the member claims entitlement under applicable laws or 
regulations.
    (b) The scope of grievances described above may be modified by 
written agreement between an Agency and its exclusive representative.
    (c) The term grievance does not include:
    (1) Complaints against an individual assignment of a member under 
chapter 5 of the Act, other than an assignment which is alleged to be 
contrary to law or regulation;
    (2) The judgment of a selection board (established under section 602 
of the Act) or a tenure board (established under section 306(b) of the 
Act) or any other equivalent body established by laws or regulations 
which similarly evaluates the performance of members of the Service on a 
comparative basis, including a merit promotion selecting official, 
except that alleged procedural violations of law, regulation or 
collective bargaining agreement or prohibited personnel practice(s) 
arising under these procedures are grievable;
    (3) The expiration of a limited appointment, termination of a 
limited appointment under section 611 of the Act, or the denial of a 
limited career extension or denial of a renewal of a limited career 
extension under section 607(b) of the Act; or
    (4) Pursuant to section 1109 of the Act, any complaint or appeal 
where a specific statutory hearing procedure exists other than 
procedures for considering prohibited personnel practice charges before 
the Merit Systems Protection Board or Special Counsel (5 U.S.C. 1206).
    (5) Non-adoption of a member suggestion or disapproval of a quality 
salary increase, performance award, or any other kind of honorary 
discretionary award, except where such action is alleged to be contrary 
to law, regulation or collective bargaining agreement; and
    (6) The content of published agency policy which is not contrary to 
law, regulation or collective bargaining agreement.
    (d) For the purposes of these regulations, the written complaint 
concerning any act, omission, or condition specified above may be 
referred to as the ``grievance''.

[50 FR 31353, Aug. 2, 1985, as amended at 56 FR 55458, Oct. 28, 1991]



Sec. 901.19  Labor organization.

    Labor organization means any employee organization accorded 
recognition as the exclusive employee representative under section 
1002(11) of the Act. For the Department of State and the Agency for 
International Development (AID), the exclusive employee representative 
is the American Foreign Service Association; for the U.S. Information 
Agency (USIA), the exclusive employee representative is the American 
Federation of Government Employees, Local 1812 (AFL-CIO).



Sec. 901.20  Party.

    Party means--
    (a) The grievant/charged employee;
    (b) The Agency or Agencies employing the grievant/charged employee 
and/

[[Page 249]]

or having control over the act, omission, or condition leading to 
appearance before the Board; or
    (c) The exclusive representative if it has achieved party status 
under Sec. 903.4.


A Party may act through its duly designated representative.

[50 FR 31353, Aug. 2, 1985, as amended at 56 FR 55458, Oct. 28, 1991]



Sec. 901.21  Record of proceedings.

    Record of proceedings means the case file maintained by the Board on 
each grievance case, or separation for cause proceeding.



Sec. 901.22  Representative.

    Representative means the person(s) identified in writing to the 
Board as assisting the party or parties in the presentation of the case.



PART 902_ORGANIZATION--Table of Contents




Sec.
902.1 Chairperson and deputy chairperson.
902.2 Board operations.
902.3 Board staff.

    Authority: Secs. 1105 and 1106 of the Foreign Service Act of 1980, 
Pub. L. 96-465 (22 U.S.C. 4135 and 4136), as amended.



Sec. 902.1  Chairperson and deputy chairperson.

    The chairperson presides over meetings of the Board. The chairperson 
shall select one of the Board members as deputy. In the absence of the 
chairperson, the deputy chairperson, or in his or her absence, another 
member designated by the chairperson, may act for him or her.

[50 FR 31354, Aug. 2, 1985]



Sec. 902.2  Board operations.

    (a) The Board may operate either as a whole, or through panels or 
individual members designated by the chairperson.
    (b) When operating as a whole, the Board may not act in the absence 
of a quorum. A majority of the members shall constitute a quorum. The 
Board will act by a majority vote of those present. Amendments to these 
regulations and Board policies adopted pursuant to Sec. 910.3 shall be 
adopted by the Board operating as a whole.
    (c) Board panels and presiding members of panels shall be designated 
by the chairperson subject only to the provisions of Sec. 906.4.

[50 FR 31354, Aug. 2, 1985, as amended at 56 FR 55459, Oct. 28, 1991]



Sec. 902.3  Board staff.

    The chairperson shall select the Board's executive secretary and 
other staff provided for in the Act. The executive secretary and staff 
shall be responsible only to the Board through the chairperson.

[50 FR 31354, Aug. 2, 1985]



PART 903_INITIATION AND DOCUMENTATION OF CASES--Table of Contents




Sec.
903.1 Initiation of cases.
903.2 Record of proceedings.
903.3 Rulings on materials.
903.4 Participation of exclusive representative.
903.5 Service of documents.
903.6 Interrogatories.
903.7 Acknowledgment.
903.8 Withdrawal.
903.9 Access to records.
903.10 Access to witnesses.

    Authority: Secs. 610, 1104, and 1106-1109 of the Foreign Service Act 
of 1980, Pub. L. 96-465 (22 U.S.C. 4010, 4134, and 4136-4139), as 
amended.

    Source: 50 FR 31354, Aug. 2, 1985, unless otherwise noted.



Sec. 903.1  Initiation of cases.

    (a) Grievances submitted to the Board shall be in writing, and shall 
explain the nature of the grievance, and the remedy sought; shall 
contain all the documentation furnished to the Agency and the Agency's 
final review; and shall be timely filed in accordance with applicable 
regulations.
    (b) A member whose grievance is not resolved satisfactorily under 
Agency procedures, the representative of the grievant, or the exclusive 
representative (on behalf of a grievant who is a member of the 
bargaining unit), shall be entitled to file a grievance with the Board 
no later than 60 days after receiving the Agency decision. In the event 
that an Agency has not provided its decision within 90 days of filing

[[Page 250]]

with the Agency, the grievant, the representative of the grievant, or 
the exclusive representative (on the grievant's behalf) shall be 
entitled to file a grievance with the Board no later than 150 days after 
the date of filing with the Agency. The Board may extend or waive for 
good cause shown the time limits stated in this section, and may permit 
or request the views of the parties with respect to whether good cause 
has been shown for such an extension.
    (c) Separation for cause proceedings against a charged employee 
shall be initiated before the Board by submission of a statement of the 
acts or behavior considered by the Agency to warrant separation.



Sec. 903.2  Record of proceedings.

    Upon receipt of initial documents relating to a case, a record of 
proceedings shall be established, and all material received or obtained 
by the Board in connection with the case shall be placed in it unless 
the Board excludes such material under Sec. 903.3. The parties and the 
exclusive representative, if any, shall have access to the record of 
proceedings. Classified portions of the record of proceedings may be 
reviewed by the parties and the exclusive representative, if any, under 
conditions prescribed by the Board to ensure appropriate security.



Sec. 903.3  Rulings on materials.

    The Board may at any stage of the proceedings exclude materials from 
the record of proceedings at the request of a party or on its own 
initiative, on the grounds that such materials are irrelevant, 
immaterial or unduly repetitive.



Sec. 903.4  Participation of exclusive representative.

    (a) Upon the initiation of a case, the executive secretary shall 
ascertain from the Agency, the grievant/charged employee and any labor 
organization which has been certified as the exclusive representative of 
employees of the Agency, whether the relevant position occupied by the 
grievant/charged employee is part of the bargaining unit for which the 
labor organization is the exclusive representative. If a substantial 
dispute exists as to whether that position is part of the bargaining 
unit, and if the Board determines that resolution of that dispute is 
necessary for determining the status of the labor organization in a 
case, the Board shall notify the parties and the labor organization, who 
may request the Foreign Service Labor Relations Board to make a final 
determination of that dispute. If the Foreign Service Labor Relations 
Board determines that the grievant or charged employee is a member of a 
bargaining unit represented by an exclusive representative, the 
executive secretary shall promptly send a copy of the papers filed with 
the Board to the exclusive representative.
    (b) The exclusive representative has the right to intervene as a 
party to the case if such exclusive representative gives timely notice 
to the Board in writing of its decision to intervene as a party. Notice 
shall be considered to be timely if given prior to or at the prehearing 
conference, or, in a case to be decided under part 907 of this chapter, 
if given within 10 days of receipt of a notice from the Board of the 
Board's intent to close the record of proceedings.
    (c) An exclusive representative which has not intervened under 
paragraph (b) of this section may be permitted to intervene as a party 
upon written application. In ruling upon the application, the Board 
shall consider whether granting the application will unduly delay or 
prejudice the adjudication of the rights of the original parties, and 
may place conditions on the exclusive representative's participation to 
avoid such delay or prejudice.



Sec. 903.5  Service of documents.

    Any party submitting documents to the Board in connection with a 
case shall send a copy to the other parties and to the exclusive 
representative, if any. The Board shall send copies of its 
correspondence concerning the case to the parties and the exclusive 
representative, if any.



Sec. 903.6  Interrogatories.

    Each party shall be entitled to serve interrogatories upon another 
party, and have such interrogatories answered by the other party unless 
the Board finds such interrogatories irrelevant,

[[Page 251]]

immaterial, or unduly repetitive. Parties shall follow procedures 
established by the Board concerning the use of interrogatories.



Sec. 903.7  Acknowledgment.

    Each case received shall be acknowledged in writing by the executive 
secretary of the Board. If in the judgment of the executive secretary 
additional documentation or information is needed, he or she may request 
such materials.



Sec. 903.8  Withdrawal.

    A case may be withdrawn at any time by written notification to the 
Board from the party initiating the case. A case may be determined by 
the Board to have lapsed when the grievant fails to respond in writing 
to two successive written Board inquiries within any deadline fixed for 
such response. The Board may permit the reopening of lapsed cases upon a 
showing of good cause and may permit or request the views of the parties 
as to whether good cause has been shown.



Sec. 903.9  Access to records.

    (a) If a party is denied access to any Agency record prior to or 
during the consideration of a case by the Agency, the party may protest 
such denial before the Board in connection with the case.
    (b) In considering a case, the Board shall have access to any Agency 
record as follows:
    (1) the Board shall request access to any Agency record which the 
grievant/charged employee requests to substantiate his or her grievance 
or defense to a charge if the Board determines that such record may be 
relevant and material to the case.
    (2) the Board may request access to any other Agency record which 
the Board determines may be relevant and material to the case.
    (3) An Agency shall make available to the Board any Agency record 
requested under paragraphs (b)(1) and (2) of this section unless the 
head or deputy head or such Agency personally certifies in writing to 
the Board that disclosure of the record to the Board and the parties 
would adversely affect the foreign policy or national security of the 
United States or that such disclosure is prohibited by law. If such a 
certification is made with respect to any record, the Agency shall 
supply to the Board a summary or extract of such record unless the 
reasons specified in the preceding sentence preclude such a summary or 
extract.
    (c) If the Board determines that an Agency record, or a summary or 
extract of a record, made available to the Board under paragraph (b) of 
this section is relevant and material to the case, the Agency concerned 
shall make such record, summary, or extract, as the case may be, 
available to the parties.
    (d) In considering a case, the Board may take into account the fact 
that the parties or the Board were denied access to any Agency record 
which the Board determines is or may be relevant and material to the 
case.
    (e) The parties in any case decided by the Board shall have access 
to the record of proceedings and the decision of the Board.



Sec. 903.10  Access to witnesses.

    The grievant or grievant's representative, or charged employee or 
his representative, shall be given access to witnesses employed by the 
foreign affairs agencies. In the event that the agency of the grievant 
determines that the requests for access are excessive, it may so notify 
the Board, which shall rule on the relevance and materiality of the 
potential testimony and may order that access be granted to any or all 
of the potential witnesses. It shall be the responsibility of the 
grievant to advise the agency of the agency witnesses to be interviewed 
and to request administrative leave.



PART 904_JURISDICTION AND PRELIMINARY DETERMINATIONS--Table of Contents




Sec.
904.1 General.
904.2 Preliminary determinations.
904.3 Relationship to other remedies.
904.4 Suspension of agency actions.

    Authority: Secs. 1101, 1104, 1108, and 1109 of the Foreign Service 
Act of 1980, Pub. L. 96-465 (22 U.S.C. 4131, 4134, 4138, and 4139), as 
amended.

[[Page 252]]



Sec. 904.1  General.

    The Board's jurisdiction extends to any grievance, and to any 
separation for cause proceeding initiated pursuant to section 610(a)(2) 
of the Act.

[50 FR 31355, Aug. 2, 1985]



Sec. 904.2  Preliminary determinations.

    (a) If an Agency, in its final review, has questioned whether a 
complaint constitutes a grievance, the Board will make a preliminary 
determination of its jurisdiction unless the Board concludes that 
resolution of the question of jurisdiction should be deferred until the 
Board has compiled a record of proceedings or held a hearing on the 
merits of the case.
    (b) The Board may also make a preliminary determination on any 
question raised by a Party concerning the timeliness of a grievance, the 
election of other remedies under Sec. 904.3, or any other issue whose 
resolution might avoid the necessity of further proceedings.
    (c) Before making a preliminary determination under this section, 
the Board shall obtain the views of the other parties and transmit those 
views to all parties.
    (d) Where an issue presented for preliminary determination under 
this section is contested by a party or would result in the termination 
of a case, a panel of three members of the Board shall decide the issue.

[50 FR 31355, Aug. 2, 1985, as amended at 56 FR 55459, Oct. 28, 1991]



Sec. 904.3  Relationship to other remedies.

    (a) A grievant may not file a grievance with the Board if the 
grievant has formally requested, prior to filing a grievance, that the 
matter or matters which are the basis of the grievance be considered or 
resolved and relief provided under another provision of law, regulation, 
or executive order, and the matter has been carried to final decision 
under such provision on its merits or is still under consideration. This 
provision shall not apply to grievants who have filed a prohibited 
personnel practice charge before the Special Counsel for the Merit 
Systems Protection Board.
    (b) If a grievant is not prohibited from filing a grievance under 
paragraph (a) of this section, the grievant may file with the Board a 
grievance which is also eligible for consideration, resolution, and 
relief as a prohibited personnel practice complaint under the provisions 
of law relating to the Merit Systems Protection Board or Special 
Counsel, or under a regulation or executive order. An election of 
remedies under this section shall be final upon the acceptance of 
jurisdiction by the Board.

[50 FR 31355, Aug. 2, 1985]



Sec. 904.4  Suspension of agency actions.

    (a) If the Board determines that the agency is considering 
involuntary separation of the Grievant, disciplinary action against the 
Grievant, or recovery from the Grievant of alleged overpayment of 
salary, expenses, or allowances, which is related to a grievance pending 
before the Board, and that such action should be suspended, the agency 
shall suspend such action until the Board has ruled on the grievance. 
Notwithstanding such suspension of action, the head of the agency 
concerned or a chief of mission or principal officer may exclude the 
Grievant from official premises or from the performance of specified 
functions when such exclusion is determined in writing to be essential 
to the functioning of the post or office to which the Grievant is 
assigned.
    (b) Notwithstanding paragraph (a) of this section, the Board shall 
not determine that action to suspend without pay a Grievant shall be 
suspended if the head of an agency or his designee has determined that 
there is reasonable cause to believe that a Grievant has committed a 
job-related crime for which a sentence of imprisonment may be imposed 
and has taken action to suspend the Grievant without pay pending a final 
resolution of the underlying matter. For this purpose, reasonable cause 
to believe that a member has committed a crime for which a sentence of 
imprisonment may be imposed shall be defined as a member of the Service 
having been convicted of, and sentence of imprisonment having been 
imposed for a job-related crime.

[[Page 253]]

    (c) The Board shall expedite its decisions on requested suspensions 
of proposed Agency actions. The Board may permit or require argument 
with respect to such requests by the Parties and Exclusive 
Representative, if any.

[56 FR 55459, Oct. 28, 1991]



PART 905_BURDEN OF PROOF--Table of Contents




Sec.
905.1 Grievances other than disciplinary actions.
905.2 Disciplinary grievances.
905.3 Separation for cause.

    Authority: Secs. 610 and 1106 of the Foreign Service Act of 1980, 
Pub. L. 96-465 (22 U.S.C. 4010 and 4136), as amended.



Sec. 905.1  Grievances other than disciplinary actions.

    (a) In all grievances other than those concerning disciplinary 
actions, the grievant has the burden of establishing, by a preponderance 
of the evidence, that the grievance is meritorious.
    (b) Where a grievant establishes that an evaluation contained 
falsely prejudicial material which may have been a substantial factor in 
an agency action, and the question is presented whether the agency would 
have taken the same action had the evaluation not contained that 
material, the burden will shift to the agency to establish, by a 
preponderance of the evidence, that it would have done so.
    (c) Where a grievant establishes that a procedural error occurred 
which is of such a nature that it may have been a substantial factor in 
an agency action with respect to the grievant, and the question is 
presented whether the agency would have taken the same action had the 
procedural error not occurred, the burden will shift to the agency to 
establish, by a preponderance of the evidence, that it would have done 
so.

[50 FR 31356, Aug. 2, 1985]



Sec. 905.2  Disciplinary grievances.

    In grievances over disciplinary actions, the agency has the burden 
of establishing by a preponderance of the evidence that the disciplinary 
action was justified, provided, however, that in a grievance concerning 
suspension without pay pursuant to section 610(a)(3) of the Act, the 
Board's determination of the grievance shall be limited to:
    (a) Whether the required procedures have been followed; and
    (b) Whether there exists reasonable cause to believe a crime has 
been committed for which a sentence of imprisonment may be imposed and 
there is a nexus between the conduct and the efficiency of the Service.
    For this purpose, reasonable cause to believe that a member has 
committed a crime for which a sentence of imprisonment may be imposed 
shall be defined as a member of the Service having been convicted of, 
and sentence of imprisonment having been imposed for, a job-related 
crime.

[56 FR 55459, Oct. 28, 1991]



Sec. 905.3  Separation for cause.

    In separation for cause cases, the agency has the burden of 
establishing, by a preponderance of the evidence, that the proposed 
separation is for such cause as will promote the efficiency of the 
service.

[50 FR 31356, Aug. 2, 1985]



PART 906_HEARINGS--Table of Contents




Sec.
906.1 Decision whether to hold a hearing.
906.2 Mandatory hearing.
906.3 Notification.
906.4 Hearing panels and members.
906.5 Prehearing conferences.
906.6 Powers of presiding member.
906.7 Conduct of hearing.
906.8 Witnesses.
906.9 Failure of party to appear.

    Authority: Secs. 610 and 1106 of the Foreign Service Act of 1980, 
Pub. L. 96-465 (22 U.S.C. 4010 and 4136), as amended.

    Source: 50 FR 31356, Aug. 2, 1985, unless otherwise noted.



Sec. 906.1  Decision whether to hold a hearing.

    After deciding either to accept jurisdiction over a grievance or to 
postpone decision of that question under Sec. 904.2(a) of this chapter, 
the Board will make an initial determination of whether a hearing shall 
be held in accordance with part 906 of this chapter,

[[Page 254]]

or whether the grievance shall be resolved without a hearing in 
accordance with part 907 of this chapter. The Board may reconsider its 
decision as to holding a hearing upon the written request of any party 
or on its own initiative.



Sec. 906.2  Mandatory hearing.

    The Board shall conduct a hearing--(a) At the request of the 
grievant in any case which involves disciplinary action or a grievant's 
retirement from the Service for expiration of time-in-class or based on 
relative performance, or (b) In any case which in the judgment of the 
Board can best be resolved by a hearing or presentation of oral 
argument. The Board shall also conduct a hearing in separation for cause 
proceedings unless the charged employee waives in writing his or her 
right to such hearing.



Sec. 906.3  Notification.

    When the Board orders a hearing, the executive secretary shall so 
notify the parties in writing. The parties shall be given reasonable 
notice of the date and place selected by the Board for the hearing.



Sec. 906.4  Hearing panels and members.

    Unless the Board and the parties agree otherwise, all hearings shall 
be held before a panel of at least three members.



Sec. 906.5  Prehearing conferences.

    (a) The Board may in its discretion order a prehearing conference of 
the parties (which may be presided over by any member) for the purpose 
of considering:
    (1) Simplification or clarification of the issues;
    (2) Serving of interrogatories;
    (3) Stipulations, admissions, agreements on documents, matters 
already on record, or similar agreements which will avoid the necessity 
of proving facts or issues not in dispute;
    (4) Identification of witnesses the parties may wish to call and the 
intended scope of their testimony; limitation on the number of 
witnesses; and arrangement for the appearance of witnesses;
    (5) Avoidance of irrelevant, immaterial, or unduly repetitive 
testimony;
    (6) The possibility of disposition of the case through agreement;
    (7) The order of presentation at the hearing and the allocation of 
the burden of proof; and
    (8) Such other matters as may aid in the disposition of the case.
    (b) The parties authorized to attend the hearing may attend the 
prehearing conference.
    (c) The results of the conference shall be summarized in writing by 
the Board and made a part of the record of proceedings. Copies of the 
summary shall be sent to the parties. The parties may submit comments or 
corrections on the summary.



Sec. 906.6  Powers of presiding member.

    In connection with the hearing, the presiding member shall, as 
appropriate:
    (a) Fix the time and place of the hearing;
    (b) Order further conferences;
    (c) Regulate the course of the hearing;
    (d) Administer oaths and affirmations;
    (e) Dispose of procedural requests and similar matters;
    (f) Rule on admissibility of testimony and exhibits;
    (g) Exclude any person from the hearing for behavior that obstructs 
the hearing;
    (h) Authorize and set the time for the filing of briefs or other 
documents;
    (i) Grant continuances and extensions of time;
    (j) Reopen the record;
    (k) Take any other action in the course of the proceedings 
consistent with the purpose of this part.



Sec. 906.7  Conduct of hearing.

    (a) Authorized attendance. The parties and, as determined by the 
Board, a reasonable number of representatives of the parties are 
entitled to be present at the hearing. The Board may, after considering 
the views of the parties and of any other individuals connected with the 
grievance, decide that a hearing should be open to others. No person 
shall be permitted to attend the hearing when classified material is 
being discussed unless that person possesses the appropriate security 
clearance.

[[Page 255]]

    (b) Procedure. Hearings shall be conducted by the presiding member 
so as to assure a full and fair proceeding. The Board shall not be 
limited by the legal rules of evidence. However, the presiding member 
shall exclude irrelevant, immaterial, or unduly repetitive evidence. The 
Board may require the parties to designate one of their representatives 
as principal spokesperson.
    (c) Order of presentation. In cases involving disciplinary action, 
including separation for cause cases, the Agency will ordinarily present 
its case first and will retain that order of precedence throughout the 
hearing. In other cases the grievant will ordinarily present his or her 
case first and will retain that order of precedence throughout the 
hearing.
    (d) Evidence. Subject to the presiding member's rulings on the 
relevancy, materiality, and repetitious nature of evidence, the parties 
may offer such evidence, including interrogatories, depositions and 
Agency records as they desire. The shall produce such additional 
evidence as the presiding member shall consider relevant and material. 
Where deemed appropriate by the Board, the parties may be supplied only 
with a summary or extract of classified material (also see Sec. 903.9 
of this chapter).
    (e) Testimony. Testimony at a hearing shall be given under oath or 
affirmation.
    (f) Transcript. A verbatim transcript shall be made of any hearing 
and shall be part of the record of proceedings.



Sec. 906.8  Witnesses.

    (a) General. Each party shall be entitled to examine and cross-
examine witnesses at the hearing or by deposition. A party wishing to 
take the deposition of a witness shall give the other parties reasonable 
notice of the time and place of the deposition and of the identity of 
the witness.
    (b) Availability. Upon request of the Board or upon request of the 
grievant/charged employee deemed relevant and material by the Board, an 
Agency shall promptly make available at the hearing or by deposition any 
witness under its control, supervision or responsibility. If the Board 
determines that the actual presence of such witness at the hearing is 
required for just resolution of the case, the witness shall be made 
available at the hearing, with necessary costs and travel expenses paid 
by the Agency which is a party to the hearing.
    (c) Notice. The parties are responsible for notifying their 
witnesses and for arranging for their appearance at the time and place 
set for the hearing. The Board may preclude a witness from testifying 
because of the failure of the party responsible for witness' appearance 
to comply with this section.



Sec. 906.9  Failure of party to appear.

    The hearing may proceed in the absence of any party who, after due 
notice and without good cause, fails to be present or obtain an 
adjournment.



PART 907_PROCEDURE WHEN HEARING IS NOT HELD--Table of Contents




    Authority: Sec. 1106 of the Foreign Service Act of 1980, Pub. L. 96-
465 (22 U.S.C. 4136), as amended.



Sec. 907.1  General.

    (a) In a case in which a hearing is not required under Sec. 906.1 
of this chapter, the Board may request in writing that specified 
documents or other evidence be furnished to it and/or may authorize the 
executive secretary to obtain such additional documents or other 
evidence as may be necessary to understand and decide the case.
    (b) Each party will be offered the opportunity to review and to 
supplement, by written submissions, the record of proceedings, prior to 
the date fixed by the Board for closing of the Record. The Board shall 
then consider the case and make a decision based on that Record. This 
may include the ordering of a hearing in accordance with part 906.

[50 FR 31357, Aug. 2, 1985]



PART 908_REMEDIES--Table of Contents




Sec.
908.1 Board orders.
908.2 Attorney fees.
908.3 Board recommendations.

    Authority: Secs. 1106 and 1107 of the Foreign Service Act of 1980, 
Pub. L. 96-465 (22 U.S.C. 610, 4010, 4136, and 4137).

[[Page 256]]



Sec. 908.1  Board orders.

    If the Board finds that a grievance is meritorious, the Board shall 
have the authority to direct the Agency:
    (a) To correct any official personnel record relating to the 
grievant which the Board finds to be inaccurate or erroneous, to have an 
omission, or to contain information of a falsely prejudicial character;
    (b) To reverse a decision denying the grievant compensation or any 
other perquisite of employment authorized by laws or regulations when 
the Board finds that such decision was arbitrary, capricious, or 
contrary to laws or regulations;
    (c) To retain in the Service a member whose separation would be in 
consequence of the matter by which the member is aggrieved;
    (d) To reinstate the grievant, and to grant the grievant back pay, 
where it is established that the separation or suspension without pay of 
the employee was unjustified or unwarranted under the Back Pay Act (5 
U.S.C. 5596(b)(1));
    (e) To take any corrective action deemed appropriate by the Board 
provided it is not contrary to law or collective bargaining agreement.

[50 FR 31357, Aug. 2, 1985, as amended at 56 FR 55459, Oct. 28, 1991]



Sec. 908.2  Attorney fees.

    (a) If the Board finds that a grievance is meritorious or that an 
Agency has not established the cause for separation of a charged 
employee in a hearing before the Board pursuant to section 610 of the 
Act, the Board shall have the authority to direct the Agency to pay 
reasonable attorney fees to the same extent and in the same manner as 
such fees may be required by the Merit Systems Protection Board under 5 
U.S.C. 7701(g).
    (b) Requests for attorney fees, accompanied by supporting 
documentation, must be filed with the Board within thirty (30) days of 
the date of the Board's decision.

[56 FR 55459, Oct. 28, 1991]



Sec. 908.3  Board recommendations.

    (a) If the Board finds that the grievance is meritorious and that 
remedial action should be taken that relates directly to promotion, 
tenure, or assignment of the Grievant or to other remedial action not 
otherwise provided for in this section, or if the Board finds that the 
evidence in a grievance proceeding warrants disciplinary action against 
any employee of an Agency, it shall make an appropriate recommendation 
to the head of the concerned Agency.
    (b) The head of the Agency shall make a written decision on the 
recommendation of the Board within 30 days after receiving the 
recommendation and shall implement the recommendation of the Board 
except to the extent that the head of the Agency rejects the 
recommendation in whole or in part on the basis of a determination that 
implementation of the recommendation would be contrary to law or would 
adversely affect the foreign policy or national security of the United 
States. If the head of the Agency rejects the recommendation in whole or 
in part, the decision shall specify the reasons for such action. Copies 
of the decision shall be served on the other parties. Pending the 
decision of the head of the Agency, there shall be no ex parte 
communication concerning the grievance between the head of the Agency 
and any person involved in the proceedings of the Board. The head of the 
Agency shall, however, have access to the entire Record of the 
Proceedings of the Board.
    (c) A recommendation under this section shall, for the purposes of 
section 1110 of the Act, be considered a final action upon the 
expiration of a 30-day period referred to in paragraph (b) of this 
section, except to the extent that it is rejected by the head of the 
Agency by an appropriate written decision.
    (d)(1) If the head of the Agency makes a written decision under 
paragraph (b) of this section rejecting a recommendation in whole or in 
part on the basis of a determination that implementing such 
recommendation would be contrary to law, the head of the Agency shall, 
within the 30-day period referred to in paragraph (b) of this section:
    (i) Submit a copy of such decision to the Board; and

[[Page 257]]

    (ii) Request that the Board reconsider its recommendation or, if 
less than the entirety is rejected, that the Board reconsider the 
portion rejected.
    (2) Within 30 days after receiving such a request, the Board shall, 
after reviewing the head of the Agency's decision, make a recommendation 
to the head of the agency confirming, modifying, or vacating its 
original recommendation or, if less than the entirety was rejected, the 
portion involved. Reconsideration shall be limited to the question of 
whether implementing the Board's original recommendation, either in 
whole or in part, as applicable, would be contrary to law.
    (e) A Board recommendation made under the preceding paragraph (d)(2) 
of this section shall be considered a final action for the purpose of 
section 1110 of the Act, and shall be implemented by the head of the 
Agency.
    (f) The provisions of paragraphs (c), (d), and (e) of this section 
shall not apply with respect to any grievance in which the Board has 
issued a final decision pursuant to section 1107 of the Act before 
December 22, 1987.

[50 FR 31357, Aug. 2, 1985. Redesignated and amended at 56 FR 55459, 
Oct. 28, 1991]



PART 909_DECISIONMAKING--Table of Contents




Sec.
909.1 Basis.
909.2 Board order.
909.3 Board recommendation.
909.4 Other decision.
909.5 Time limits for compliance.
909.6 Summaries of Board decisions.

    Authority: Secs. 1106 and 1107, Foreign Service Act of 1980 (Pub. L. 
96-465; 22 U.S.C. 4136 and 4137).

    Source: 50 FR 31358, Aug. 2, 1985, unless otherwise noted.



Sec. 909.1  Basis.

    Decisions of the Board shall be based upon the record of 
proceedings, shall be in writing, shall include findings of fact, and 
shall include a statement of the reasons for the decision.



Sec. 909.2  Board order.

    Where the Board's decision imposes action on an Agency the decision 
shall be in the form of a remedial order addressed to the designated 
official of the Agency. A copy of the decision shall be supplied to each 
party.



Sec. 909.3  Board recommendation.

    Where the Board's decision is a recommendation, it shall be directed 
to the head of the Agency. A copy of the decision shall be supplied to 
each party.



Sec. 909.4  Other decision.

    Where the Board's decision requires no action by an Agency, the 
decision shall be forwarded to the grievant. A copy of the decision 
shall be supplied to each party.



Sec. 909.5  Time limits for compliance.

    Orders of the Board and recommendations which are not rejected in 
accordance with Sec. 908.2 of this chapter shall be complied with 
within any time limits for compliance established by the Board's 
decision, unless the Board extends the time limit on a showing of good 
cause.



Sec. 909.6  Summaries of Board decisions.

    The Board may, from time to time, issue such summaries and 
expurgated versions of its decisions as it may consider necessary to 
permit the Agencies, the exclusive representative organization(s), and 
the members of the Service to become aware of the general nature of the 
cases it has received and their manner of disposition, without invading 
the privacy of the grievants.



PART 910_MISCELLANEOUS--Table of Contents




Sec.
910.1 Requests to reopen cases.
910.2 Ex parte communications.
910.3 Board policy statements.
910.4 Confidentiality; Record of grievances awarded.
910.5 Judicial review.
910.6 Pending grievances.

    Authority: Secs. 1106, 1107, 1110, and 2401 of the Foreign Service 
Act of 1980, Pub. L. 96-465 (22 U.S.C. 4136, 4137, 4140, and 4172).



Sec. 910.1  Requests to reopen cases.

    The Board may reconsider any decision upon the presentation of newly

[[Page 258]]

discovered or previously unavailable material evidence.

[50 FR 31358, Aug. 2, 1985. Redesignated at 56 FR 55460, Oct. 28, 1991]



Sec. 910.2  Ex parte communications.

    (a) ``Ex parte communications'' are oral or written communications 
between the Board or its staff and an interested party to a proceeding 
which are made without providing the other parties a chance to 
participate.
    (b) Ex parte communications concerning the merits of any matter 
which has or may come before the Board for adjudication or which would 
otherwise contravene the rules regarding written submissions are 
prohibited until the Board renders a final decision. Any communication 
made in contravention of this rule shall be made a part of the record 
and an opportunty for rebuttal allowed. If the communication was oral, a 
memorandum stating the substance of the discussion shall be placed in 
the record.
    (c) This rule does not apply to communications concerning such 
matters as the status of a case, the methods for transmitting evidence 
to the Board, and other procedural matters which do not concern the 
merits of any matter before the Board for adjudication and which do not 
otherwise contravene the rules regarding written submissions.

[50 FR 31358, Aug. 2, 1985. Redesignated at 56 FR 55460, Oct. 28, 1991]



Sec. 910.3  Board policy statements.

    The Board may publish statements regarding policies it has 
established as to its operations and procedures.

[50 FR 31358, Aug. 2, 1985. Redesignated at 56 FR 55460, Oct. 28, 1991]



Sec. 910.4  Confidentiality; Record of grievances awarded.

    (a) To the maximum extent practicable, the Board will make every 
effort to preserve the confidentiality of the identity of the grievant 
or charged employee.
    (b) The records of the Board shall be maintained by the Board under 
appropriate safeguards to preserve confidentiality and shall be separate 
from all records of the Agencies; provided, however, that records of all 
grievances awarded in favor of the Grievant in which the grievance 
concerns gross misconduct by a supervisor shall be separately maintained 
by the Board and the procedures regarding confidentiality and disclosure 
of such records shall be as provided in section 1107(e) of the Foreign 
Service Act of 1980, as amended; and provided further, that the Board 
shall not make a finding of gross misconduct without first providing the 
supervisor whose conduct is at issue notice and an opportunity to 
respond.

[50 FR 31358, Aug. 2, 1985. Redesignated and amended at 56 FR 55460, 
Oct. 28, 1991]



Sec. 910.5  Judicial review.

    Any aggrieved party may obtain judicial review of a final action of 
an Agency head or the Board on any grievance in the district courts of 
the United States in accordance with the standards set forth in chapter 
7 of title 5 of the United States Code. 5 U.S.C. 706 shall apply without 
limitation or exception.

[50 FR 31358, Aug. 2, 1985. Redesignated at 56 FR 55460, Oct. 28, 1991]



Sec. 910.6  Pending grievances.

    Any grievance pending before the Board prior to February 15, 1981 
shall be resolved under the provisions of the Foreign Service Act of 
1946 as amended, and the regulations promulgated thereunder.

[50 FR 31358, Aug. 2, 1985. Redesignated at 56 FR 55460, Oct. 28, 1991]



PART 911_IMPLEMENTATION DISPUTES--Table of Contents




Sec.
911.1 Definition.
911.2 Filing complaint.
911.3 Procedure.
911.4 Effect of Board decision.
911.5 Arbitrability of determination.
911.6 Finality of choice.
911.7 Review.

    Authority: Sec. 1014 of the Foreign Service Act of 1980, Pub. L. 96-
465 (22 U.S.C. 4114), as amended.

    Source: 50 FR 31359, Aug. 2, 1985, unless otherwise noted.

[[Page 259]]



Sec. 911.1  Definition.

    An implementation dispute is any dispute between the agency and the 
exclusive representative, as provided in regulations adopted as a result 
of collective bargaining between the agencies and the employee 
representatives. Such a dispute, also referred to as an institutional 
dispute, is one which directly concerns the rights and obligations of an 
agency and an exclusive representative toward each other or the rights 
or obligations between an agency and one or more employees as set forth 
in a collective bargaining agreement.



Sec. 911.2  Filing complaint.

    If the dispute is not satisfactorily resolved at the agency level, 
the moving party may file a complaint within 45 calendar days from the 
date of the response (or in any case must file within 90 days of filing 
the implementation dispute) with the Board in writing and with 
specificity as to the nature of the violation.



Sec. 911.3  Procedure.

    Implementation disputes shall be handled by the Board in accordance 
with the procedures set forth in parts 901-910 of this chapter.



Sec. 911.4  Effect of Board decision.

    The action of the Board shall be final and binding and shall be 
implemented by the parties, unless an exception is filed with the 
Foreign Service Labor Relations Board within 30 days after receipt of 
the Grievance Board action.



Sec. 911.5  Arbitrability of determination.

    Questions that cannot be resolved by the parties as to whether a 
complaint is subject to this procedure may be referred by either party 
to the Grievance Board for a threshold determination.



Sec. 911.6  Finality of choice.

    An alleged violation of an institutional right as reflected in a 
collective bargaining agreement may be filed under these procedures or 
as an unfair labor practice, but not both.



Sec. 911.7  Review.

    Resolution of disputes under this section shall not be subject to 
judicial review.

[[Page 261]]



                  CHAPTER X--INTER-AMERICAN FOUNDATION




  --------------------------------------------------------------------
Part                                                                Page
1001            Employee responsibilities and conduct.......         263
1002            Availability of records.....................         263
1003            Rules safeguarding personal information in 
                    IAF records.............................         265
1004            Rules for implementing open meetings within 
                    the Inter-American Foundation...........         271
1005            Enforcement of nondiscrimination on the 
                    basis of handicap in programs or 
                    activities conducted by the Inter-
                    American Foundation.....................         274
1006            Governmentwide debarment and suspension 
                    (nonprocurement)........................         280
1007            Salary offset...............................         303
1008            Governmentwide requirements for drug-free 
                    workplace (financial assistance)........         307

[[Page 263]]



PART 1001_EMPLOYEE RESPONSIBILITIES AND CONDUCT--Table of Contents




    Authority: 5 U.S.C. 7301.



Sec. 1001.1  Cross-references to employee ethical conduct standards and financial disclosure regulations.

    Directors and other employees of the Inter-American Foundation 
should refer to the Standards of Ethical Conduct for Employees of the 
Executive Branch at 5 CFR part 2635, the Inter-American Foundation 
regulations at 5 CFR part 7301 which supplement the executive branch 
standards, and the executive branch financial disclosure regulations at 
5 CFR part 2634.

[59 FR 3772, Jan. 27, 1994]



PART 1002_AVAILABILITY OF RECORDS--Table of Contents




Sec.
1002.1 Introduction.
1002.2 Definitions.
1002.3 Access to Foundation records.
1002.4 Written requests.
1002.5 Records available at the Foundation.
1002.6 Records of other Departments and Agencies.
1002.7 Fees.
1002.8 Exemptions.
1002.9 Denial of records; review.

    Authority: 5 U.S.C. 552, and 31 U.S.C. 483(a).

    Source: 37 FR 8375, Apr. 26, 1972, unless otherwise noted.



Sec. 1002.1  Introduction.

    (a) It is the policy of the Inter-American Foundation that 
information about its operations, procedures, and records be freely 
available to the public in accordance with the provisions of the Freedom 
of Information Act.
    (b) The Foundation will make the fullest possible disclosure of its 
information and identifiable records consistent with the provisions of 
this Act and the regulations in this part.



Sec. 1002.2  Definitions.

    As used in this part, the following words have the meaning set forth 
below:
    Act. ``Act'' means the Act of June 5, 1967, sometimes referred to as 
the ``Freedom of Information Act'' or the Public Information Section of 
the Administrative Procedure Act, as amended, Pub. L. 90-23, 81 Stat. 
54, and codified at 5 U.S.C. 552.
    Foundation. ``Foundation'' means the Inter-American Foundation.
    President. ``President'' means the President of the Foundation.
    Records. The word ``records'' includes all books, papers, or other 
documentary materials made or received by the Foundation in connection 
with the transaction of its business which have been preserved or are 
appropriate for preservation by the Foundation as evidence of the 
organization, functions, policies, decisions, procedures, operations, or 
other activities, or because of the informational value of data 
contained therein. Library or other material acquired and preserved 
solely for reference or exhibition purposes, and stocks of publications 
and processed documents are not included within the definition of the 
word ``records.''



Sec. 1002.3  Access to Foundation records.

    Any person desiring to have access to Foundation records should call 
or apply in person between the hours of 9 a.m. and 5 p.m. on weekdays 
(holidays excluded) at the Foundation offices at 901 N. Stuart St., 10th 
Floor, Arlington, VA 22203. Requests for access should be made to the 
General Counsel, Office of the General Counsel (General Counsel's 
Office) at the Foundation offices. If request is made for copies of any 
record, the General Counsel's Officewill assist the person making such 
request in seeing that such copies are provided according to the rules 
in this part.

[37 FR 8375, Apr. 26, 1972, as amended at 71 FR 63235, Oct. 30, 2006]



Sec. 1002.4  Written requests.

    In order to facilitate the processing of written requests, every 
petitioner should:
    (a) Address his request to:

General Counsel, Inter-American Foundation, 901 N. Stuart St., 10th 
Floor, Arlington, VA 22203.

    (b) Identify the desired record by name or brief description, or 
number, and date, as applicable. The identification should be specific 
enough so that a

[[Page 264]]

record can be readily identified and found;
    (c) Include a check or money order to the order of the ``Inter-
American Foundation'' covering the appropriate search and copying fees, 
or request a determination of fee;
    (d) Allow a reasonable amount of time for reply. Furnishing the 
requested information will involve search and retrieval of records, 
copying and mailing;
    (e) Blanket requests or requests for ``the entire file of'' or ``all 
matters relating to'' a specified subject will not be accepted.

[37 FR 8375, Apr. 26, 1972, as amended at 71 FR 63236, Oct. 30, 2006]



Sec. 1002.5  Records available at the Foundation.

    The General Counsel's Office will make available, to the extent not 
authorized to be withheld, the following works or classes of 
information:
    (a) A copy of Agency regulations, including a copy of title 22 of 
the Code of Federal Regulations, or of any other title of the Code in 
which Agency regulations may have been published;
    (b) Final unclassified reports;
    (c) Copies of grants, loans, or other agreements in force;
    (d) Personnel information affecting the public;
    (e) Procurement information affecting the public;
    (f) Contracts;
    (g) Reimbursable agreements with other agencies.

[37 FR 8375, Apr. 26, 1972, as amended at 71 FR 63236, Oct. 30, 2006]



Sec. 1002.6  Records of other Departments and Agencies.

    Requests for records that have been originated by or are primarily 
the concern of another U.S. Department or Agency will be forwarded to 
the particular Department of Agency involved, and the petitioner 
notified. In response to requests for records or publications published 
by the Government Printing Office or other Government printing activity, 
the Foundation will refer the petitioner to the appropriate sales office 
and refund any fee payments therefor which accompany the request.



Sec. 1002.7  Fees.

    Except as otherwise specifically provided by the Foundation, a fee 
will be levied for all searches for, or copies of, records. These fees 
will be computed so as to recover the full cost of searching and 
copying.
    (a) Advance payment and deposits. When the amount of a fee can be 
readily computed (as, for example, when a specified number of copy pages 
are requested) advance payment will be required. When the amount cannot 
be readily computed (as, for example, when an unknown amount of 
stafftime must be used in complying with a request), the General Counsel 
may require payment of a reasonable deposit before undertaking to 
collect the requested records. At the earliest practicable time, the 
General Counsel will determine the full amount of the fee and, before 
complying fully with the request, will require payment of any balance 
due or refund any overpayment.
    (b) Schedule of fees. The following fees apply for services rendered 
to the public:

(1) Searching for records and collateral assistance, per hour or   $5.00
 fraction thereof...............................................
(2) Making copies (Xerox or comparable) per page................    0.40
 


Should a situation arise which is not covered by the above schedule, the 
fee to be charged will include all direct and indirect costs of the 
service, including but not limited to materials, labor, and the like. 
The amount of the fee including charges, if any, for records printed by 
contractors or grantees will be determined by the A&F Director.
    (c) Revision of schedule. The fee schedule will be revised from time 
to time, without notice, to assure recovery of the cost of rendering 
information services to any person. The revised schedule will be 
available without charge.

[37 FR 8375, Apr. 26, 1972, as amended at 71 FR 63236, Oct. 30, 2006]



Sec. 1002.8  Exemptions.

    The Act authorizes exemption from disclosure of records and 
information concerning matters that are:
    (a) Specifically required by Executive order to be exempt from 
disclosure in

[[Page 265]]

the interest of the national defense or foreign policy;
    (b) Related solely to the internal personnel rules and practices by 
the Foundation;
    (c) Specifically exempted from disclosure by statute;
    (d) Trade secrets and commercial or financial information obtained 
from any person which is privileged or confidential;
    (e) Interagency or intra-agency memoranda or letters which would not 
be available by law to a private party in litigation with the 
Foundation;
    (f) Personnel and medical files and similar files the disclosure of 
which would constitute an unwarranted invasion of personal privacy;
    (g) Investigatory files (including security investigation files and 
files concerning the conduct of employees) compiled for law enforcement 
purposes except to the extent available by law to a private party.


The Foundation will not honor requests for exempt records or 
information.



Sec. 1002.9  Denial of records; review.

    If a request for records is denied, the person who made the request 
is entitled to have the denial reviewed by the Foundation President as 
promptly as circumstances permit. If the President determines that the 
withholding is improper, he will direct in writing that the requested 
records be made available in accordance with these regulations. If he 
determines that the withholding is proper, he will so notify such person 
in writing, and his determination will constitute the final Foundation 
decision.



PART 1003_RULES SAFEGUARDING PERSONAL INFORMATION IN IAF RECORDS--Table of 

Contents




Sec.
1003.1 General policies, conditions of disclosure, accounting of certain 
          disclosures, and definitions.
1003.2 Definitions.
1003.3 Access to records.
1003.4 Inter-American Foundation system of records requirements.
1003.5 Access to personal information from Inter-American Foundation 
          records.
1003.6 Administrative review.
1003.7 Judicial review.
1003.8 Exemptions.
1003.9 Mailing lists.
1003.10 Reports.

    Authority: 5 U.S.C. 552a.

    Source: 41 FR 19211, May 11, 1976, unless otherwise noted.



Sec. 1003.1  General policies, conditions of disclosure, accounting of 

certain disclosures, and definitions.

    (a) The Inter-American Foundation will safeguard an individual 
against an invasion of personal privacy. Except as otherwise provided by 
law or regulation its officials and employees will:
    (1) Permit an individual to determine what records pertaining to him 
or her will be collected, maintained, used, or disseminated by the 
Inter-American Foundation.
    (2) Permit an individual to prevent records pertaining to him or 
her, obtained by the Inter-American Foundation for a particular purpose, 
from being used or made available for another purpose without his or her 
consent.
    (3) Permit an individual to gain access to information pertaining to 
him or her in the Inter-American Foundation records, to have a copy made 
of all or any portion thereof, and to correct or amend such records.
    (4) Collect, maintain, use or disseminate any record of identifiable 
personal information in a manner that assures that such action is for a 
necessary and lawful purpose, that the information is correct and 
accurate for its intended use, and that adequate safeguards are provided 
to prevent misuse of such information.
    (5) Permit exemptions from records requirements provided in 5 U.S.C. 
552a only where an important public policy need for such exemption has 
been determined pursuant to specific statutory authority.
    (b) The Inter-American Foundation will not disclose any record 
contained in a system of records by any means of communication to any 
person or any other agency except by written request of or prior written 
consent of the individual to whom the record pertains unless such 
disclosure is:

[[Page 266]]

    (1) To those officers and employees of the agency which maintains 
the record and who have a need for the record in the performance of 
their duties;
    (2) Required under 5 U.S.C. 552;
    (3) For a routine use of the record compatible with the purpose for 
which it was collected;
    (4) To the Bureau of the Census for purposes of planning or carrying 
out a census or survey or related activity pursuant to title 13, United 
States Code;
    (5) To a recipient who has provided the Inter-American Foundation 
with advance adequate written assurance that the record will be used 
solely as a statistical research or reporting record, and the record is 
to be transferred in a form that is not individually identifiable;
    (6) To the National Archives of the United States as a record which 
has sufficient historical or other value to warrant its continued 
preservation by the U.S. Government, or for evaluation by the 
Administrator of General Services or designee to determine whether the 
record has such value;
    (7) To another agency or to an instrumentality of any governmental 
jurisdiction within or under the control of the United States for a 
civil or criminal law enforcement activity if the activity is authority 
by law, and if the head of the agency or instrumentality has made a 
written request to the Inter-American foundation specifying the 
particular portion desired and the law enforcement activity for which 
the record is sought;
    (8) To a person pursuant to a showing of compelling circumstances 
affecting the health or safety of an individual if upon such disclosure 
notification is transmitted to the last known address of such 
individual;
    (9) To either House of Congress, or, to the extent of matter within 
its jurisdiction, any committee or subcommittee thereof, any joint 
committee of Congress or subcommittee of any such joint committee;
    (10) To the Comptroller General, or any authorized representatives 
in the course of the performance of the duties of the General Accounting 
Office; or
    (11) Pursuant to the order of a court of competent jurisdiction.
    (c) With respect to each system of records (i.e., a group of records 
from which information is retrieved by the name of the individual or by 
some identifying number, symbol, or other identifying particular 
assigned to the individual) under Inter-American foundation control the 
Inter-American Foundation will (except for disclosures made under 
paragraph (b) (1) or (2) of this section) keep an accurate accounting as 
follows:
    (1) For each disclosure of a record to any person or to another 
agency made under paragraph (b) of this section, maintain information 
consisting of the date, nature, and purpose of each disclosure, and the 
name and address of the person or agency to whom the disclosure is made;
    (2) Retain the accounting made under paragraph (c)(1) of this 
section for at least 5 years or the life of the record, whichever is 
longer, after the disclosures for which the accounting is made;
    (3) Except for disclosures made under paragraph (b)(7) of this 
section, make the accounting under paragraph (c)(1) of this section 
available to the individual named in the record at his or her request; 
and
    (4) Inform any person or other agency about any correction or 
notation of dispute made by the agency of any record that has been 
disclosed to the person or agency if an accounting of the disclosure was 
made.
    (d) The parent of any minor, or the legal guardian of any individual 
who has been declared incompetent due to physical or mental incapacity 
or age by a court of competent jurisdiction, may act on behalf of the 
individual.
    (e) Section 552a(e), title 5, United States Code, provided that:
    (1) Any officer or employee of the Inter-American Foundation, who by 
virtue of his or her employment or official position, has possession of, 
or access to, Inter-American Foundation records which contain 
individually identifiable information the disclosure of which is 
prohibited by 5 U.S.C. 552a and who knowing that disclosure of the 
specific material is so prohibied, willfully discloses the material in 
any manner to any person or agency not entitled to receive it, shall be 
guilty of

[[Page 267]]

a misdemeanor and fined not more than $5,000.
    (2) Any officer or employee of the Inter-American Foundation who 
willfully maintains a system of records without meeting the notice 
requirements of 5 U.S.C. 552a(e)(4) shall be guilty of a misdemeanor and 
fined not more than $5,000.
    (3) Any person who knowingly and willfully requests or obtains any 
record concerning an individual from the Inter-American Foundation under 
false pretenses shall be guilty of a misdemeanor and fined not more than 
$5,000.



Sec. 1003.2  Definitions.

    The following definitions apply:
    (a) The term agency includes any executive department, military 
department, Government corporation, Government controlled corporation, 
or other establishment in the executive branch of the government 
(including the Executive Office of the President), or any independent 
regulatory agency.
    (b) The term individual means a citizen of the United States or an 
alien lawfully admitted for permanent residence.
    (c) The term maintain includes maintain, collect, use, or 
disseminate.
    (d) The term record means any item, collection, or grouping of 
information about an individual that is maintained by an agency, 
including, but not limited to, his or her educational, financial 
transactions, medical history, and criminal or employment history and 
that contains his or her name, or the identifying number, symbol, or 
other identifying particular assigned to the individual, such as a 
finger or voice print or a photograph.
    (e) The term system of records means a group of any records under 
the control of any agency from which information is retrieved by the 
name of the individual or by some identifying number, symbol, or other 
identifying particular assigned to the individual.
    (f) The term statistical record means a record in a system of 
records maintained for statistical research or reporting purposes only 
and not used in whole or in part in making any determination about an 
identifiable individual except as provided by section 8 of title 13, 
United States Code.
    (g) The term routine use means, with respect to the disclosure or a 
record, the use of such record for a purpose which is compatible with 
the purpose for which it was collected.



Sec. 1003.3  Access to records.

    (a) Except as otherwise provided by law or regulation any individual 
upon request may gain access to his or her record or to any information 
pertaining to him or her which is contained in any system or records 
maintained by the Inter-American Foundation. The individual will be 
permitted, and upon his or her request, a person of his or her own 
choosing permitted to accompany him or her, to review the record and 
have a copy made of all or any portion thereof in a form comprehensible 
to him or her. The Inter-American foundation will require, however, a 
written statement from the individual authorizing discussion of that 
individual's record in the accompanying person's presence.
    (b) Any individual may request amendment of any Inter-American 
Foundation record pertaining to him or her. Not later than 10 days 
(excluding Saturdays, Sundays, and legal public holidays) after the date 
of receipt of such request, the Inter-American Foundation will 
acknowledge in writing such receipt. The Inter-American Foundation will 
also promptly either:
    (1) Correct any part thereof which the individual believes is not 
accurate, relevant, timely, or complete; or
    (2) Inform the individual of the Inter-American Foundation's refusal 
to amend the record in accordance with his or her request, the reason 
for the refusal, the procedures by which the individual may request a 
review of that refusal by the Administrator or designee, and the name 
and address of such official.
    (c) Any individual who disagrees with the Inter-American 
Foundation's refusal to amend his or her record may request a review of 
such refusal. The Inter-American Foundation will complete such review 
not later than 30 days (excluding Saturdays, Sundays, and legal public 
holidays) from the date on which the individual requests

[[Page 268]]

such review and make a final determination unless, for good cause shown, 
the Administrator extends such 30-day period. If, after review, the 
Administrator or designee also refuses to amend the record in accordance 
with the request the individual will be advised of the right to file 
with the Inter-American Foundation a concise statement setting forth the 
reasons for his or her disagreement with the Inter-American Foundation's 
refusal, and also advised of the provisions for judicial review of the 
reviewing official's determination (5 U.S.C. 552a(g)(1)(A)).
    (d) In any disclosure, containing information about which the 
individual has filed a statement of disagreement, occurring after the 
filing of the statement under paragraph (c) of this section, the Inter-
American Foundation will clearly note any part of the record which is 
disputed and provide copies of the statement (and, if the Inter-American 
Foundation deems it appropriate, copies also of a concise statement of 
the Inter-American Foundation's reasons for not making the amendments 
requested) to persons or other agencies to whom the disputed record has 
been disclosed.
    (e) Nothing in 5 U.S.C. 552a, however, allows an individual access 
to any information compiled in reasonable anticipation of a civil action 
or proceeding.

[41 FR 19211, May 11, 1976, as amended at 42 FR 37368, July 21, 1977]



Sec. 1003.4  Inter-American Foundation system of records requirements.

    (a) The Inter-American Foundation will maintain in its records any 
such information about an individual as is relevant and necessary to 
accomplish a purpose of the Inter-American Foundation required to be 
accomplished by statute or Executive order of the President.
    (b) The Inter-American Foundation will 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.
    (c) The Inter-American Foundation will inform each individual whom 
it asks to supply information, on the form which it uses to collect the 
information or on a separate form that can be retained by the individual 
of:
    (1) The authority (whether granted by statute or Executive order of 
the President) which authorizes the solicitation of the information and 
whether disclosure of such information is mandatory or voluntary;
    (2) The principal purpose or purposes for which the information is 
intended to be used;
    (3) The routine uses which may be made of the information, as 
published pursuant to paragraph (d)(4) of this section; and
    (4) The effects on him or her, if any, of not providing all or any 
part of the requested information.
    (d) Subject to the provisions of paragraph (k) of this section, the 
Inter-American Foundation will publish in the Federal Register at least 
annually a notice of the existence and character of its system of 
records. This notice will include:
    (1) The name and location of the system or systems;
    (2) The categories of individuals on whom records are maintained in 
the system or systems;
    (3) The categories of records maintained in the system or systems;
    (4) Each routine use of the records contained in the system or 
systems, including the categories of users and the purpose of such use;
    (5) The policies and practices of the Inter-American Foundation 
regarding storage, retrievability, access controls, retention, and 
disposal of the records;
    (6) The title and business address of the Inter-American Foundation 
official or officials responsible for the system or systems of records;
    (7) The Inter-American Foundation procedures whereby an individual 
can be notified at his or her request if the system or systems of 
records contain a record pertaining to him or her;
    (8) The Inter-American Foundation procedures whereby an individual 
can be notified at his or her request how he or she can gain access to 
any record pertaining to him or her contained in the system or systems 
of records, and how he or she can contest its content; and

[[Page 269]]

    (9) The categories of sources of records in the system or systems.
    (e) All records used by the Inter-American Foundation in making any 
determination about any individual will be maintained with the accuracy, 
relevance, timeliness, and completeness reasonably necessary to assure 
fairness to the individual in the determination.
    (f) Before disseminating any record about any individual to any 
person other than an agency the Inter-American Foundation will make 
reasonable efforts to assure that such records are accurate, complete, 
timely, and relevant for Inter-American Foundation purposes unless the 
dissemination is required pursuant to 5 U.S.C. 552.
    (g) The Inter-American Foundation will maintain no record describing 
how any individual exercises rights guaranteed by the First Amendment 
unless expressly authorized by statute or by the individual about whom 
the record is maintained or unless pertinent to and within the scope of 
an authorized law enforcement activity.
    (h) The Inter-American Foundation will make reasonable efforts to 
serve notice on an individual when any record on such individuals is 
made available to any person under compulsory legal process when such 
process becomes a matter of public record.
    (i) The Inter-American Foundation will establish rules of conduct 
for persons involved in the design, development, operation, or 
maintenance of any system of records, or in maintaining any record. Each 
such person will be instructed regarding such rules and the requirements 
of 5 U.S.C. 552a. The instruction will include any other rules and 
procedures adopted pursuant to 5 U.S.C. 552a, and the penalties it 
provides for noncompliance.
    (j) The Inter-American Foundation will establish appropriate 
administrative, technical, and physical safeguards to insure 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.
    (k) At least 30 days prior to the publication of a notice in the 
Federal Register at least annually regarding the routine use of the 
records contained in the Inter-American Foundation system or systems of 
records including the categories of users and the purpose of such use, 
pursuant to paragraph (d)(4) of this section, the Inter-American 
Foundation will also:
    (1) Publish a notice in the Federal Register of any new use or 
intended use of the information in the system or systems; and
    (2) Provide an opportunity for interested persons to submit written 
data, views, or arguments to the Inter-American Foundation.



Sec. 1003.5  Access to personal information from Inter-American Foundation 

records.

    (a) The Inter-American Foundation will promulgate regulations, as 
necessary, to insure compliance with the provisions of 5 U.S.C. 552a, 
developed in accordance with the provisions of 5 U.S.C. 553, as 
applicable.
    (b) Any individual will be notified upon request if any Inter-
American Foundation system of records named contains a record pertaining 
to him or her. Such request must be in writing over the signature of the 
requester. The request must contain a reasonable description of the 
Inter-American Foundation system or systems of records meant, as 
described at least annually by notice published in the Federal Register 
describing the existence and character of the Inter-American 
Foundation's system or systems of records. The request should be made to 
the Executive Officer, Inter-American Foundation, 1515 Wilson Boulevard, 
Rosslyn, Virginia 22209. Personal contacts should normally be made 
during the regular duty hours of the office concerned, which are 8:30 
a.m. to 4:00 p.m. Monday through Friday. Identification of the 
individual requesting the information will be required consisting of 
name, signature, address, and claim, insurance or other identifying file 
number, if any, as a minimum.
    (c) The department or staff office having jurisdiction over the 
records involved will establish appropriate disclosure procedures and 
will notify the

[[Page 270]]

individual requesting disclosure of his or her record or information 
pertaining to him or her of the time, place and conditions under which 
the Inter-American Foundation will comply to the extent permitted by law 
and Inter-American Foundation regulation. Special procedures will be 
established by the department or staff office concerned governing the 
disclosure to an individual of medical records, including psychological 
records pertaining to him or her.
    (d) The department or staff office having jurisdiction over the 
records involved will also establish procedures for reviewing a request 
from an individual concerning the amendment of any record or information 
pertaining to the individual for making a determination on the request, 
for an appeal within the Inter-American Foundation of an initial adverse 
Inter-American Foundation determination, and for whatever additional 
means may be necessary for each individual to be able to exercise fully 
his or her rights under 5 U.S.C. 552a.
    (e) Fees to be charged, if any, to any individual for making copies 
of his or her record, excluding the cost of any search for and review of 
the record, will be as follows:
    (1) Photocopy reproductions from all types of copying processes, 
each reproduction image, $0.05.
    (2) Where the Inter-American Foundation undertakes to perform for a 
requester or for any other person services which are very clearly not 
required to be performed under section 552a, title 5, United States 
Code, either voluntarily or because such services are required by some 
other law (e.g., the formal certification of records as true copies, 
attestation under the seal of the Inter-American Foundation, etc.), the 
question of charging fees for such services will be determined by the 
official or designee authorized to release the information under Sec. 
1.556, in the light of the Federal user charge statute, 31 U.S.C. 483a, 
and any other applicable law.



Sec. 1003.6  Administrative review.

    (a) Upon denial of a request, the responsible Inter-American 
Foundation official or designated employee will inform the requester in 
writing of the denial, cite the reason or reasons and the Inter-American 
Foundation regulations upon which the denial is based, and advise that 
the denial may be appealed to the Administrator.
    (b) The final agency decision in such appeals will be made by the 
Administrator or Deputy Administrator.



Sec. 1003.7  Judicial review.

    Any person may file a complaint against the Inter-American 
Foundation in the appropriate U.S. district court, as provided in 5 
U.S.C. 552a(g), whenever the Inter-American Foundation:
    (a) Makes a determination not to amend an individual's record in 
accordance with his or her request, or fails to make such review in 
conformity with that section;
    (b) Refuses to comply with an individual request;
    (c) Fails to maintain any record concerning any individual with such 
accuracy, relevance, timeliness, and completeness as is necessary to 
assure fairness in any determination relating to the qualifications, 
character, rights, or opportunities of, or benefits to the individual 
that may be made on the basis of such record, and consequently a 
determination is made which is adverse to the individual; or
    (d) Fails to comply under any other provision of 5 U.S.C. 552a, or 
any Inter-American Foundation regulation promulgated thereunder, in such 
a way as to have an adverse effect on an individual.



Sec. 1003.8  Exemptions.

    No Inter-American Foundation records system or systems as such are 
exempted from the provisions of 5 U.S.C. 552a as permitted under certain 
conditions by 5 U.S.C. 552a (j) and (k).



Sec. 1003.9  Mailing lists.

    An individual's name and address may not be sold or rented by the 
Inter-American Foundation unless such action is specifically authorized 
by law. This section does not require the withholding of names and 
addresses otherwise permitted to be made public.

[[Page 271]]



Sec. 1003.10  Reports.

    (a) The Administrator or designee will provide adequate advance 
notice to Congress and the Office of Management and Budget of any 
proposal to establish or alter any Inter-American Foundation system or 
systems of records, as required by 5 U.S.C. 552a(o). This will permit an 
evaluation of the probable or potential effect of such proposal on the 
privacy and other personal or property rights of individuals or the 
disclosure of information relating to such individuals, and its effect 
on the preservation of the constitutional principles of federalism and 
separation of powers.
    (b) If at any time an Inter-American Foundation system or systems of 
records is determined to be exempt from the application of 5 U.S.C. 552a 
in accordance with the provisions of 5 U.S.C. 552a (j) and (k), the 
number of records contained in such system or systems will be separately 
listed and reported to the Office of Management and Budget in accordance 
with the then prevailing guidelines and instructions of that agency.



PART 1004_RULES FOR IMPLEMENTING OPEN MEETINGS WITHIN THE INTER-AMERICAN 

FOUNDATION--Table of Contents




Sec.
1004.1 General policies.
1004.2 Definitions.
1004.3 Requirement of open meetings.
1004.4 Grounds on which meetings may be closed.
1004.5 Procedures for announcing meetings.
1004.6 Procedures for closing meetings.
1004.7 Reconsideration of opening or closing of meeting.
1004.8 Transcripts, recording of closed meeting.

    Authority: 5 U.S.C. 552b.

    Source: 71 FR 63237, Oct. 30, 2006, unless otherwise noted.



Sec. 1004.1  General policies.

    The Inter-American Foundation (IAF) will, in accordance with the 
Government in the Sunshine Act, 5 U.S.C. 552b, provide the public with 
the fullest practical information regarding its decisionmaking processes 
while protecting the rights of individuals and its ability to carry out 
its responsibilities.



Sec. 1004.2  Definitions.

    The following definitions apply:
    (a) Agency includes any executive department, military department, 
government corporation, government controlled corporation other 
establishment in the executive branch of the government (including the 
Executive Office of the President) or any independent regulatory agency, 
and is headed by a collegial body composed of two or more individual 
members, a majority of whom are appointed to such position by the 
President with the advice and consent of the Senate, and any subdivision 
thereof authorized to act on behalf of the agency. The Inter-American 
Foundation is a government corporation headed by a nine-member Board of 
Directors, all of whom are appointed by the President with the advice 
and consent of the Senate, and is therefore an ``agency'' under these 
terms.
    (b) Meeting means the deliberation of this Board of Directors where 
such deliberation determines or results in the joint conduct or 
disposition of official IAF business, but does not include deliberations 
required or permitted by subsection 1004.6 or 1004.7.
    (c) Member means an individual who belongs to the IAF Board of 
Directors.
    (d) Public Observation means attendance at any meeting but does not 
include participation, or attempted participation, in such meeting in 
any matter.



Sec. 1004.3  Requirement of open meetings.

    Members shall not jointly conduct or dispose of agency business 
other than in accordance with this section. Except as provided in Sec. 
1004.4 every portion of every meeting of the agency shall be open to 
public observation.



Sec. 1004.4  Grounds on which meetings may be closed.

    The IAF shall open every portion of every meeting of the agency for 
public observation. Except in a case where the agency finds that the 
public interest requires otherwise, this requirement

[[Page 272]]

does not apply where the agency determines that such portion or portions 
of its meeting or the disclosure of such information is likely to:
    (a) Disclose matters that are:
    (1) Specifically authorized under criteria established by an 
Executive order to be kept secret in the interests of national defense 
or foreign policy, and
    (2) In fact, properly classified pursuant to such Executive order;
    (b) Relate solely to the internal personnel rules and practice of 
the agency;
    (c) Disclose matters specifically exempted from disclosure by 
statute, provided that such statute:
    (1) Requires that the matters be withheld from the public in such 
manner as to have no discretion on the issue, or
    (2) Establishes practical criteria for withholding or refers to 
particular types of matters to be withheld;
    (d) Disclose trade secrets and commercial or financial information 
obtained from a person and privileged or confidential;
    (e) Involve accusing any person of a crime, or formally censuring 
any person;
    (f) Disclose information of a personal nature where disclosure would 
constitute a clearly unwarranted invasion of personal privacy;
    (g) Disclose investigatory records compiled for law enforcement 
purposes, or information which if written would be contained in such 
records, but only to the extent that the production of such records or 
information would:
    (1) Interfere with enforcement proceedings,
    (2) Deprive a person of a right to a fair trial of an impartial 
adjudication,
    (3) Constitute an unwarranted invasion of personal privacy,
    (4) Disclose the identity of a confidential source and, in the case 
of a record compiled by a criminal law enforcement authority in the 
course of a criminal investigation, or by an agency conducting a lawful 
national security intelligence investigation, information furnished by a 
confidential source,
    (5) Disclose investigative techniques and procedures, or
    (6) Endanger the life or physical safety of law enforcement 
personnel;
    (h) Disclose information contained in or related to examination, 
operating or condition reports prepared by, on behalf of, or for the use 
of an agency responsible for the regulation or supervision of financial 
institutions;
    (i) Disclose information the premature disclosure of which would be 
likely to significantly frustrate implementation of a proposed agency 
action. This shall not apply in any instance where the IAF has already 
disclosed to the public the content or nature of its proposed action or 
where the IAF is required by law to make such disclosure of its own 
initiative prior to taking final IAF action on such proposal;
    (j) Specifically concern the IAF's issuance of subpoena, or the 
IAF's participation in a civil action or proceeding, an action in a 
foreign court or international tribunal, or an arbitration, or the 
initiation, conduct, or disposition by the IAF of a particular case of 
formal agency adjudication pursuant to the procedures in section 554 of 
this title or otherwise involving a determination on the record after 
opportunity for a hearing.

    Note to Sec. 1004.4: The requirements of Sec. Sec. 1004.5 and 
1004.6 shall not apply to any information pertaining to those meetings 
exempted under this section.



Sec. 1004.5  Procedures for announcing meetings.

    (a) In the case of each meeting, the IAF shall make public, at least 
one week before the meeting, of the time, place and subject matter of 
the meeting, whether it is to be open or closed to the public, and the 
name and phone number of the official designated by the IAF to respond 
to requests for information about the meeting. Such announcement shall 
be made unless a majority of the Board of Directors of the IAF 
determines by a recorded vote that the IAF requires that such a meeting 
be called at an earlier date, in which case the IAF shall make public 
announcement of the time, place and subject matter of such meeting and 
whether open or closed to the public, at the earliest practical time.
    (b) Immediately following the public announcement, the IAF will 
submit notice for publication in the Federal Register.

[[Page 273]]

    (c) The IAF shall also make public the announcement by other 
reasonable means, accessible to the public.



Sec. 1004.6  Procedures for closing meetings.

    (a) The closing of a meeting or a portion of a meeting shall occur 
only when:
    (1) A majority of the membership of the IAF Board votes to take such 
action. That vote shall determine whether or not any portion or portions 
of a meeting or portions of a series of meetings may be closed to public 
observation for any of the reasons provided in Sec. 1004.4 and whether 
or not the public interest nevertheless requires that portion of the 
meeting or meetings remain open. A single vote may be taken with respect 
to a series of meetings, a portion or portions of which are proposed to 
be closed to the public, or with respect to any information concerning 
such series of meetings, so long as each meeting in such series involves 
the same particular matters and is scheduled to be held no more than 
thirty days after the initial meeting in such series. The vote of each 
Board member participating in such vote shall be recorded and no proxies 
shall be allowed.
    (2) Whenever any person whose interests may be directly affected by 
a portion of a meeting requests that the IAF close such portion to the 
public for any of the reasons referred to in Sec. 1004.4 the IAF, upon 
request of any one of its Board members, shall take a recorded vote, 
whether to close such portion of the meeting.
    (b) Within one day of any vote taken pursuant to this Section, the 
IAF shall make publicly available a written copy of such vote reflecting 
the vote of each member on the question and full written explanation of 
its action closing the entire or portion of the meeting together with a 
list of persons expecting to attend the meeting and their affiliation.
    (c) The IAF shall, subject to change, announce the time, place and 
subject matter of the meeting at least 7 days before the meeting.
    (d) For every closed meeting pursuant to Sec. 1004.4, the General 
Counsel of the IAF shall publicly certify prior to a Board of Directors' 
vote on closing the meeting, that, in his or her opinion, the meeting 
may be closed to the public and shall state each relevant exemptive 
provision. A copy of such certification, together with a statement from 
the presiding officer of the meeting setting forth the time and place of 
the meeting, and the persons present, shall be retained by the IAF.



Sec. 1004.7  Reconsideration of opening or closing of meeting.

    The time or place of a Board meeting may be changed, without vote, 
following public announcement. The IAF will announce any such change at 
the earliest practicable time. The subject matter of a meeting, or the 
determination of the agency to open or close a meeting, or portion of a 
meeting, to the public, may be changed only if a majority of the Board 
of Directors determines by a recorded vote that IAF business so requires 
and that no earlier announcement of the change was possible, and the IAF 
publicly announces such change and the vote of each member upon such 
change at the earliest practicable time.



Sec. 1004.8  Transcripts, recording of closed meetings.

    (a) The IAF shall maintain a complete transcript or electronic 
recording adequate to record fully the proceedings of each meeting, or 
portion of a meeting, closed to the public, except that in the case of a 
meeting, or portion of a meeting, closed to the public pursuant to 
paragraph (d), (h), or (j) of Sec. 1004.4, the IAF shall maintain 
either such a transcript or recording, or a set of minutes. Such records 
shall fully and clearly describe all matters discussed and shall provide 
a full and accurate summary of any actions taken, and the reasons 
therefore, including a description of each of the views expressed on any 
item and the record of any roll call vote (reflecting the vote of each 
member on the question). All documents considered in connection with any 
action shall be identified in such records.
    (b) The IAF, after review by the General Counsel shall make promptly

[[Page 274]]

available to the public, in a place easily accessible to the public, the 
transcript or electronic recording or minutes of the discussion of any 
time on the agenda, or any item of the testimony of any witness received 
at the Board meeting, except for such item or items of such discussion 
or testimony as the IAF determines to contain information which may be 
withheld under Sec. 1004.4. Copies of such transcript, or a 
transcription of such recording disclosing the identity of each speaker, 
shall be furnished to any person at the actual cost of duplication or 
transcription. The IAF shall maintain a complete verbatim copy of the 
transcript, a complete copy of the minutes or a complete electronic 
recording of each meeting, or portion of a meeting, closed to the 
public, for a period of at least two years after such meeting, or until 
one year after the conclusion or any IAF proceedings with respect to 
which the meeting or portion was held, whichever occurs later.



PART 1005_ENFORCEMENT OF NONDISCRIMINATION ON THE BASIS OF HANDICAP IN 

PROGRAMS OR ACTIVITIES CONDUCTED BY THE INTER-AMERICAN FOUNDATION--Table of 

Contents




Sec.
1005.101 Purpose.
1005.102 Application.
1005.103 Definitions.
1005.104-1005.109 [Reserved]
1005.110 Self-evaluation.
1005.111 Notice.
1005.112-1005.129 [Reserved]
1005.130 General prohibitions against discrimination.
1005.131-1005.139 [Reserved]
1005.140 Employment.
1005.141-1005.148 [Reserved]
1005.149 Program accessibility: Discrimination prohibited.
1005.150 Program accessibility: Existing facilities.
1005.151 Program accessibility: New construction and alterations.
1005.152-1005.159 [Reserved]
1005.160 Communications.
1005.161-1005.169 [Reserved]
1005.170 Compliance procedures.
1005.171-1005.999 [Reserved]

    Authority: 29 U.S.C. 794.

    Source: 51 FR 22890, 22896, June 23, 1986, unless otherwise noted.



Sec. 1005.101  Purpose.

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



Sec. 1005.102  Application.

    This part applies to all programs or activities conducted by the 
agency.



Sec. 1005.103  Definitions.

    For purposes of this part, the term--
    Assistant Attorney General means the Assistant Attorney General, 
Civil Rights Division, United States Department of Justice.
    Auxiliary aids means services or devices that enable persons with 
impaired sensory, manual, or speaking skills to have an equal 
opportunity to participate in, and enjoy the benefits of, programs or 
activities conducted by the agency. For example, auxiliary aids useful 
for persons with impaired vision include readers, brailled materials, 
audio recordings, telecommunications devices and other similar services 
and devices. Auxiliary aids useful for persons with impaired hearing 
include telephone handset amplifiers, telephones compatible with hearing 
aids, telecommunication devices for deaf persons (TDD's), interpreters, 
notetakers, written materials, and other similar services and devices.
    Complete complaint means a written statement that contains the 
complainant's name and address and describes the agency's alleged 
discriminatory action in sufficient detail to inform the agency of the 
nature and date of the alleged violation of section 504. It shall be 
signed by the complainant or by someone authorized to do so on his or 
her behalf. Complaints filed on behalf of classes or third parties shall 
describe or identify (by name, if possible) the alleged victims of 
discrimination.
    Facility means all or any portion of buildings, structures, 
equipment, roads, walks, parking lots, rolling stock or other 
conveyances, or other real or personal property.

[[Page 275]]

    Handicapped person means any person who has a physical or mental 
impairment that substantially limits one or more major life activities, 
has a record of such an impairment, or is regarded as having such an 
impairment.
    As used in this definition, the phrase:
    (1) Physical or mental impairment includes--
    (i) Any physiological disorder or condition, cosmetic disfigurement, 
or anatomical loss affecting one or more of the following body systems: 
Neurological; musculoskeletal; special sense organs; respiratory, 
including speech organs; cardiovascular; reproductive; digestive; 
genitourinary; hemic and lymphatic; skin; and endocrine; or
    (ii) Any mental or psychological disorder, such as mental 
retardation, organic brain syndrome, emotional or mental illness, and 
specific learning disabilities. The term physical or mental impairment 
includes, but is not limited to, such diseases and conditions as 
orthopedic, visual, speech, and hearing impairments, cerebral palsy, 
epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, 
diabetes, mental retardation, emotional illness, and drug addiction and 
alocoholism.
    (2) Major life activities includes functions such as caring for 
one's self, performing manual tasks, walking, seeing, hearing, speaking, 
breathing, learning, and working.
    (3) Has a record of such an impairment means has a history of, or 
has been misclassified as having, a mental or physical impairment that 
substantially limits one or more major life activities.
    (4) Is regarded as having an impairment means--
    (i) Has a physical or mental impairment that does not substantially 
limit major life activities but is treated by the agency as constituting 
such a limitation;
    (ii) Has a physical or mental impairment that substantially limits 
major life activities only as a result of the attitudes of others toward 
such impairment; or
    (iii) Has none of the impairments defined in paragraph (1) of this 
definition but is treated by the agency as having such an impairment.
    Historic preservation programs means programs conducted by the 
agency that have preservation of historic properties as a primary 
purpose.
    Historic properties means those properties that are listed or 
eligible for listing in the National Register of Historic Places or 
properties designated as historic under a statute of the appropriate 
State or local government body.
    Qualified handicapped person means--
    (1) With respect to preschool, elementary, or secondary education 
services provided by the agency, a handicapped person who is a member of 
a class of persons otherwise entitled by statute, regulation, or agency 
policy to receive education services from the agency.
    (2) With respect to any other agency program or activity under which 
a person is required to perform services or to achieve a level of 
accomplishment, a handicapped person who meets the essential eligibility 
requirements and who can acheive the purpose of the program or activity 
without modifications in the program or activity that the agency can 
demonstrate would result in a fundamental alteration in its nature;
    (3) With respect to any other program or activity, a handicapped 
person who meets the essential eligibility requirements for 
participation in, or receipt of benefits from, that program or activity; 
and
    (4) Qualified handicapped person is defined for purposes of 
employment in 29 CFR 1613.702(f), which is made applicable to this part 
by Sec. 1005.140.
    Section 504 means section 504 of the Rehabilitation Act of 1973 
(Pub. L. 93-112, 87 Stat. 394 (29 U.S.C. 794)), as amended by the 
Rehabilitation Act Amendments of 1974 (Pub. L. 93-516, 88 Stat. 1617), 
and the Rehabilitation, Comprehensive Services, and Developmental 
Disabilities Amendments of 1978 (Pub. L. 95-602, 92 Stat. 2955). As used 
in this part, section 504 applies only to programs or activities 
conducted by Executive agencies and not to federally assisted programs.
    Substantial impairment means a significant loss of the integrity of 
finished materials, design quality, or special character resulting from 
a permanent alteration.

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Sec. Sec. 1005.104-1005.109  [Reserved]



Sec. 1005.110  Self-evaluation.

    (a) The agency shall, by August 24, 1987, evaluate its current 
policies and practices, and the effects thereof, that do not or may not 
meet the requirements of this part, and, to the extent modification of 
any such policies and practices is required, the agency shall proceed to 
make the necessary modifications.
    (b) The agency shall provide an opportunity to interested persons, 
including handicapped persons or organizations representing handicapped 
persons, to participate in the self-evaluation process by submitting 
comments (both oral and written).
    (c) The agency shall, until three years following the completion of 
the self-evaluation, maintain on file and make available for public 
inspection:
    (1) A description of areas examined and any problems identified, and
    (2) A description of any modifications made.



Sec. 1005.111  Notice.

    The agency shall make available to employees, applicants, 
participants, beneficiaries, and other interested persons such 
information regarding the provisions of this part 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.



Sec. Sec. 1005.112-1005.129  [Reserved]



Sec. 1005.130  General prohibitions against discrimination.

    (a) No qualified handicapped person shall, on the basis of handicap, 
be excluded from participation in, be denied the benefits of, or 
otherwise be subjected to discrimination under any program or activity 
conducted by the agency.
    (b)(1) The agency, in providing any aid, benefit, or service, may 
not, directly or through contractual, licensing, or other arrangements, 
on the basis of handicap--
    (i) Deny a qualified handicapped person the opportunity to 
participate in or benefit from the aid, benefit, or service;
    (ii) Afford a qualified handicapped person an opportunity to 
participate in or benefit from the aid, benefit, or service that is not 
equal to that afforded others;
    (iii) Provide a qualified handicapped person with an aid, benefit, 
or service that is not as effective in affording equal opportunity to 
obtain the same result, to gain the same benefit, or to reach the same 
level of achievement as that provided to others;
    (iv) Provide different or separate aid, benefits, or services to 
handicapped persons or to any class of handicapped persons than is 
provided to others unless such action is necessary to provide qualified 
handicapped persons with aid, benefits, or services that are as 
effective as those provided to others;
    (v) Deny a qualified handicapped person the opportunity to 
participate as a member of planning or advisory boards; or
    (vi) Otherwise limit a qualified handicapped person in the enjoyment 
of any right, privilege, advantage, or opportunity enjoyed by others 
receiving the aid, benefit, or service.
    (2) The agency may not deny a qualified handicapped person the 
opportunity to participate in programs or activities that are not 
separate or different, despite the existence of permissibly separate or 
different programs or activities.
    (3) The agency may not, directly or through contractual or other 
arrangments, utilize criteria or methods of administration the purpose 
or effect of which would--
    (i) Subject qualified handicapped persons to discrimination on the 
basis of handicap; or
    (ii) Defeat or substantially impair accomplishment of the objectives 
of a program or activity with respect to handicapped persons.
    (4) The agency may not, in determining the site or location of a 
facility, make selections the purpose or effect of which would--
    (i) Exclude handicapped persons from, deny them the benefits of, or 
otherwise subject them to discrimination

[[Page 277]]

under any program or activity conducted by the agency; or
    (ii) Defeat or substantially impair the accomplishment of the 
objectives of a program or activity with respect to handicapped persons.
    (5) The agency, in the selection of procurement contractors, may not 
use criteria that subject qualified handicapped persons to 
discrimination on the basis of handicap.
    (6) The agency may not administer a licensing or certification 
program in a manner that subjects qualified handicapped persons 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 handicapped persons 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 part.
    (c) The exclusion of nonhandicapped persons from the benefits of a 
program limited by Federal statute or Executive order to handicapped 
persons or the exclusion of a specific class of handicapped persons from 
a program limited by Federal statute or Executive order to a different 
class of handicapped persons is not prohibited by this part.
    (d) The agency shall administer programs and activities in the most 
integrated setting appropriate to the needs of qualified handicapped 
persons.



Sec. Sec. 1005.131-1005.139  [Reserved]



Sec. 1005.140  Employment.

    No qualified handicapped person shall, on the basis of handicap, be 
subjected 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.



Sec. Sec. 1005.141-1005.148  [Reserved]



Sec. 1005.149  Program accessibility: Discrimination prohibited.

    Except as otherwise provided in Sec. 1005.150, no qualified 
handicapped person shall, because the agency's facilities are 
inaccessible to or unusable by handicapped persons, be denied the 
benefits of, be excluded from participation in, or otherwise be 
subjected to discrimination under any program or activity conducted by 
the agency.



Sec. 1005.150  Program accessibility: Existing facilities.

    (a) General. The agency shall operate each program or activity so 
that the program or activity, when viewed in its entirety, is readily 
accessible to and usable by handicapped persons. This paragraph does 
not--
    (1) Necessarily require the agency to make each of its existing 
facilities accessible to and usable by handicapped persons;
    (2) In the case of historic preservation programs, require the 
agency to take any action that would result in a substantial impairment 
of significant historic features of an historic property; or
    (3) Require the agency to take any action that it can demonstrate 
would result in a fundamental alteration in the nature of a program or 
activity or in undue financial and administrative burdens. In those 
circumstances where agency personnel believe that the proposed action 
would fundamentally alter the program or activity or would result in 
undue financial and administrative burdens, the agency has the burden of 
proving that compliance with Sec. 1005.150(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

[[Page 278]]

but would nevertheless ensure that handicapped persons receive the 
benefits and services of the program or activity.
    (b) Methods--(1) General. The agency may comply with the 
requirements of this section through such means as redesign of 
equipment, reassignment of services to accessible buildings, assignment 
of aides to beneficiaries, home visits, delivery of services at 
alternate accessible sites, alteration of existing facilities and 
construction of new facilities, use of accessible rolling stock, or any 
other methods that result in making its programs or activities readily 
accessible to and usable by handicapped persons. 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. 4151-4157), 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 
handicapped persons in the most integrated setting appropriate.
    (2) Historic preservation programs. In meeting the requirements of 
Sec. 1005.150(a) in historic preservation programs, the agency shall 
give priority to methods that provide physical access to handicapped 
persons. In cases where a physical alteration to an historic property is 
not required because of Sec. 1005.150(a)(2) or (a)(3), alternative 
methods of achieving program accessibility include--
    (i) Using audio-visual materials and devices to depict those 
portions of an historic property that cannot otherwise be made 
accessible;
    (ii) Assigning persons to guide handicapped persons into or through 
portions of historic properties that cannot otherwise be made 
accessible; or
    (iii) Adopting other innovative methods.
    (c) Time period for compliance. The agency shall comply with the 
obligations established under this section by October 21, 1986, except 
that where structural changes in facilities are undertaken, such changes 
shall be made by August 22, 1989, but in any event as expeditiously as 
possible.
    (d) Transition plan. In the event that structural changes to 
facilities will be undertaken to achieve program accessibility, the 
agency shall develop, by February 23, 1987, a transition plan setting 
forth the steps necessary to complete such changes. The agency shall 
provide an opportunity to interested persons, including