[Title 36 CFR ]
[Code of Federal Regulations (annual edition) - July 1, 2008 Edition]
[From the U.S. Government Printing Office]



[[Page i]]

          

          36


          Part 300 to End

                         Revised as of July 1, 2008


          Parks, Forests, and Public Property
          



________________________

          Containing a codification of documents of general 
          applicability and future effect

          As of July 1, 2008
          With Ancillaries
                    Published by
                    Office of the Federal Register
                    National Archives and Records
                    Administration
                    A Special Edition of the Federal Register

[[Page ii]]

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                            Table of Contents



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

  Title 36:
          Chapter III--Corps of Engineers, Department of the 
          Army                                                       3
          Chapter IV--American Battle Monuments Commission          35
          Chapter V--Smithsonian Institution                        53
          Chapter VI [Reserved]
          Chapter VII--Library of Congress                          61
          Chapter VIII--Advisory Council on Historic 
          Preservation                                              83
          Chapter IX--Pennsylvania Avenue Development 
          Corporation                                              135
          Chapter X--Presidio Trust                                201
          Chapter XI--Architectural and Transportation 
          Barriers Compliance Board                                271
          Chapter XII--National Archives and Records 
          Administration                                           685
          Chapter XV--Oklahoma City National Memorial Trust       1007
          Chapter XVI--Morris K. Udall Scholarship and 
          Excellence in National Environmental Policy 
          Foundation                                              1011
  Finding Aids:
      Material Approved for Incorporation by Reference........    1029
      Table of CFR Titles and Chapters........................    1035

[[Page iv]]

      Alphabetical List of Agencies Appearing in the CFR......    1055
      List of CFR Sections Affected...........................    1065

[[Page v]]





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

                     Cite this Code: CFR
                     To cite the regulations in 
                       this volume use title, 
                       part and section number. 
                       Thus, 36 CFR 312.1 refers 
                       to title 36, part 312, 
                       section 1.

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

[[Page vi]]



                               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, July 1, 2008), consult the ``List of CFR 
Sections Affected (LSA),'' which is issued monthly, and the ``Cumulative 
List of Parts Affected,'' which appears in the Reader Aids section of 
the daily Federal Register. These two lists will identify the Federal 
Register page number of the latest amendment of any given rule.

EFFECTIVE AND EXPIRATION DATES

    Each volume of the Code contains amendments published in the Federal 
Register since the last revision of that volume of the Code. Source 
citations for the regulations are referred to by volume number and page 
number of the Federal Register and date of publication. Publication 
dates and effective dates are usually not the same and care must be 
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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, 1986, consult either the List of CFR Sections Affected, 1949-
1963, 1964-1972, or 1973-1985, published in seven separate volumes. For 
the period beginning January 1, 1986, a ``List of CFR Sections 
Affected'' is published at the end of each CFR volume.

INCORPORATION BY REFERENCE

    What is incorporation by reference? Incorporation by reference was 
established by statute and allows Federal agencies to meet the 
requirement to publish regulations in the Federal Register by referring 
to materials already published elsewhere. For an incorporation to be 
valid, the Director of the Federal Register must approve it. The legal 
effect of incorporation by reference is that the material is treated as 
if it were published in full in the Federal Register (5 U.S.C. 552(a)). 
This material, like any other properly issued regulation, has the force 
of law.
    What is a proper incorporation by reference? The Director of the 
Federal Register will approve an incorporation by reference only when 
the requirements of 1 CFR part 51 are met. Some of the elements on which 
approval is based are:
    (a) The incorporation will substantially reduce the volume of 
material published in the Federal Register.
    (b) The matter incorporated is in fact available to the extent 
necessary to afford fairness and uniformity in the administrative 
process.
    (c) The incorporating document is drafted and submitted for 
publication in accordance with 1 CFR part 51.
    Properly approved incorporations by reference in this volume are 
listed in the Finding Aids at the end of this volume.
    What if the material incorporated by reference cannot be found? If 
you have any problem locating or obtaining a copy of material listed in 
the Finding Aids of this volume as an approved incorporation by 
reference, please contact the agency that issued the regulation 
containing that incorporation. If, after contacting the agency, you find 
the material is not available, please notify the Director of the Federal 
Register, National Archives and Records Administration, Washington DC 
20408, or call 202-741-6010.

CFR INDEXES AND TABULAR GUIDES

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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.

[[Page viii]]


REPUBLICATION OF MATERIAL

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

INQUIRIES

    For a legal interpretation or explanation of any regulation in this 
volume, contact the issuing agency. The issuing agency's name appears at 
the top of odd-numbered pages.
    For inquiries concerning CFR reference assistance, call 202-741-6000 
or write to the Director, Office of the Federal Register, National 
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    Raymond A. Mosley,
    Director,
    Office of the Federal Register.
    July 1, 2008.







[[Page ix]]



                               THIS TITLE

    Title 36--Parks, Forests, and Public Property is composed of three 
volumes. The parts in these volumes are arranged in the following order: 
parts 1 to 199, parts 200 to 299, and part 300 to End. The contents of 
these volumes represent all current regulations codified under this 
title of the CFR as of July 1, 2008.

    For this volume, Susannah C. Hurley and Moja N. Mwaniki were Chief 
Editors. The Code of Federal Regulations publication program is under 
the direction of Michael L. White, assisted by Ann Worley.


[[Page 1]]



              TITLE 36--PARKS, FORESTS, AND PUBLIC PROPERTY




                  (This book contains part 300 to End)

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

chapter iii--Corps of Engineers, Department of the Army.....         312

chapter iv--American Battle Monuments Commission............         400

chapter v--Smithsonian Institution..........................         504

chapter vi [Reserved]

chapter vii--Library of Congress............................         701

chapter viii--Advisory Council on Historic Preservation.....         800

chapter ix--Pennsylvania Avenue Development Corporation.....         901

chapter x--Presidio Trust...................................        1001

chapter xi--Architectural and Transportation Barriers 
  Compliance Board..........................................        1120

chapter xii--National Archives and Records Administration...        1200

chapter xv--Oklahoma City National Memorial Trust...........        1501

chapter xvi--Morris K. Udall Scholarship and Excellence in 
  National Environmental Policy Foundation..................        1600

[[Page 3]]



                    CHAPTER III--CORPS OF ENGINEERS,






                         DEPARTMENT OF THE ARMY




  --------------------------------------------------------------------
Part                                                                Page
312             Prohibition of discriminatory practices in 
                    water resource development projects.....           5
327             Rules and regulations governing public use 
                    of water resource development projects 
                    administered by the Chief of Engineers..           5
328             Regulation of seaplane operations at civil 
                    works water resource development 
                    projects administered by the Chief of 
                    Engineers...............................          24
330             Regulation of law enforcement services 
                    contracts at civil works water resource 
                    projects administered by the Chief of 
                    Engineers...............................          27
331             Regulations governing the protection, use 
                    and management of the falls of the Ohio 
                    National Wildlife Conservation Area, 
                    Kentucky and Indiana....................          30
332-399

[Reserved]

[[Page 5]]



PART 312_PROHIBITION OF DISCRIMINATORY PRACTICES IN WATER RESOURCE DEVELOPMENT PROJECTS--Table of Contents




Sec.
312.1 Areas covered.
312.2 Discriminatory practices prohibited.

    Authority: Sec. 4, 58 Stat. 889, as amended; 16 U.S.C. 460d.



Sec. 312.1  Areas covered.

    The regulation covered in this part shall be applicable to all water 
resource project lands under the supervision of the Secretary of the 
Army not covered in parts 311 and 326, of this title.

[29 FR 9710, July 18, 1964]



Sec. 312.2  Discriminatory practices prohibited.

    All project land and water areas which are open to the public shall 
be available for use and enjoyment by the public without regard to race, 
creed, color or national origin. Each lessee or licensee of a project 
area under lease or license providing for a public or quasi-public use, 
including group camp activities, and each concessionaire of a lessee or 
licensee providing a service to the public including facilities and 
accommodations, shall not discriminate against any person or persons 
because of race, creed, color or national origin in the conduct of its 
operations under the lease, license or concession agreement.

[29 FR 9710, July 18, 1964]



PART 327_RULES AND REGULATIONS GOVERNING PUBLIC USE OF WATER RESOURCE DEVELOPMENT PROJECTS ADMINISTERED BY THE CHIEF OF ENGINEERS--Table of Contents




Sec.
327.0 Applicability.
327.1 Policy.
327.2 Vehicles.
327.3 Vessels.
327.4 Aircraft.
327.5 Swimming.
327.6 Picnicking.
327.7 Camping.
327.8 Hunting, fishing, and trapping.
327.9 Sanitation.
327.10 Fires.
327.11 Control of animals.
327.12 Restrictions.
327.13 Explosives, firearms, other weapons and fireworks.
327.14 Public property.
327.15 Abandonment and impoundment of personal property.
327.16 Lost and found articles.
327.17 Advertisement.
327.18 Commercial activities.
327.19 Permits.
327.20 Unauthorized structures.
327.21 Special events.
327.22 Unauthorized occupation.
327.23 Recreation use fees.
327.24 Interference with Government employees.
327.25 Violations of rules and regulations.
327.26 State and local laws.
327.27-327.29 [Reserved]
327.30 Shoreline Management on Civil Works Projects.
327.31 Shoreline management fee schedule.

    Authority: 16 U.S.C. 460d; 16 U.S.C. 4601-6a; Sec. 210, Pub. L. 90-
483, 82 Stat. 746.; 33 U.S.C. 1, 28 Stat. 362.

    Source: 50 FR 35556, Sept. 3, 1985, unless otherwise noted.



Sec. 327.0  Applicability.

    The regulations covered in this part 327 shall be applicable to 
water resources development projects, completed or under construction, 
administered by the Chief of Engineers, and to those portions of jointly 
administered water resources development projects which are under the 
administrative jurisdiction of the Chief of Engineers. All other 
Federal, state and local laws and regulations remain in full force and 
effect where applicable to those water resources development projects.

[65 FR 6898, Feb. 11, 2000]



Sec. 327.1  Policy.

    (a) It is the policy of the Secretary of the Army, acting through 
the Chief of Engineers, to manage the natural, cultural and developed 
resources of each project in the public interest, providing the public 
with safe and healthful recreational opportunities while protecting and 
enhancing these resources.
    (b) Unless otherwise indicated in this part, the term ``District 
Commander'' shall include the authorized representatives of the District 
Commander.
    (c) The term ``project'' or ``water resources development project'' 
refers to

[[Page 6]]

the water areas of any water resources development project administered 
by the Chief of Engineers, without regard to ownership of underlying 
land, to all lands owned in fee by the Federal Government and to all 
facilities therein or thereon of any such water resources development 
project.
    (d) All water resources development projects open for public use 
shall be available to the public without regard to sex, race, color, 
creed, age, nationality or place of origin. No lessee, licensee, or 
concessionaire providing a service to the public shall discriminate 
against any person because of sex, race, creed, color, age, nationality 
or place of origin in the conduct of the operations under the lease, 
license or concession contract.
    (e) In addition to the regulations in this part 327, all applicable 
Federal, state and local laws and regulations remain in full force and 
effect on project lands or waters which are outgranted by the District 
Commander by lease, license or other written agreement.
    (f) The regulations in this part 327 shall be deemed to apply to 
those lands and waters which are subject to treaties and Federal laws 
and regulations concerning the rights of Indian Nations and which lands 
and waters are incorporated, in whole or in part, within water resources 
development projects administered by the Chief of Engineers, to the 
extent that the regulations in this part 327 are not inconsistent with 
such treaties and Federal laws and regulations.
    (g) Any violation of any section of this part 327 shall constitute a 
separate violation for each calendar day in which it occurs.
    (h) For the purposes of this part 327, the operator of any vehicle, 
vessel or aircraft as described in this part, shall be presumed to be 
responsible for its use on project property. In the event where an 
operator cannot be determined, the owner of the vehicle, vessel, or 
aircraft, whether attended or unattended, will be presumed responsible. 
Unless proven otherwise, such presumption will be sufficient to issue a 
citation for the violation of regulations applicable to the use of such 
vehicle, vessel or aircraft as provided for in Sec. 327.25.
    (i) For the purposes of this part 327, the registered user of a 
campsite, picnic area, or other facility shall be presumed to be 
responsible for its use. Unless proven otherwise, such presumption will 
be sufficient to issue a citation for the violation of regulations 
applicable to the use of such facilities as provided for in Sec. 
327.25.

[65 FR 6898, Feb. 11, 2000]



Sec. 327.2  Vehicles.

    (a) This section pertains to all vehicles, including, but not 
limited to, automobiles, trucks, motorcycles, mini-bikes, snowmobiles, 
dune buggies, all-terrain vehicles, and trailers, campers, bicycles, or 
any other such equipment.
    (b) Vehicles shall not be parked in violation of posted restrictions 
and regulations, or in such a manner as to obstruct or impede normal or 
emergency traffic movement or the parking of other vehicles, create a 
safety hazard, or endanger any person, property or environmental 
feature. Vehicles so parked are subject to removal and impoundment at 
the owner's expense.
    (c) The operation and/or parking of a vehicle off authorized 
roadways is prohibited except at locations and times designated by the 
District Commander. Taking any vehicle through, around or beyond a 
restrictive sign, recognizable barricade, fence, or traffic control 
barrier is prohibited.
    (d) Vehicles shall be operated in accordance with posted 
restrictions and regulations.
    (e) No person shall operate any vehicle in a careless, negligent or 
reckless manner so as to endanger any person, property or environmental 
feature.
    (f) At designated recreation areas, vehicles shall be used only to 
enter or leave the area or individual sites or facilities unless 
otherwise posted.
    (g) Except as authorized by the District Commander, no person shall 
operate any motorized vehicle without a proper and effective exhaust 
muffler as defined by state and local laws, or with an exhaust muffler 
cutout open, or in any other manner which renders the exhaust muffler 
ineffective in muffling the sound of engine exhaust.
    (h) Vehicles shall be operated in accordance with applicable 
Federal, state

[[Page 7]]

and local laws, which shall be regulated by authorized enforcement 
officials as prescribed in Sec. 327.26.

[65 FR 6899, Feb. 11, 2000]



Sec. 327.3  Vessels.

    (a) This section pertains to all vessels or watercraft, including, 
but not limited to, powerboats, cruisers, houseboats, sailboats, 
rowboats, canoes, kayaks, personal watercraft, and any other such 
equipment capable of navigation on water or ice, whether in motion or at 
rest.
    (b) The placement and/or operation of any vessel or watercraft for a 
fee or profit upon project waters or lands is prohibited except as 
authorized by permit, lease, license, or concession contract with the 
Department of the Army. This paragraph shall not apply to the operation 
of commercial tows or passenger carrying vessels not based at a Corps 
project which utilize project waters as a link in continuous transit 
over navigable waters of the United States.
    (c) Vessels or other watercraft may be operated on the project 
waters, except in prohibited or restricted areas, in accordance with 
posted regulations and restrictions, including buoys. All vessels or 
watercraft so required by applicable Federal, state and local laws shall 
display an appropriate registration on board whenever the vessel is on 
project waters.
    (d) No person shall operate any vessel or other watercraft in a 
careless, negligent, or reckless manner so as to endanger any person, 
property, or environmental feature.
    (e) All vessels, when on project waters, shall have safety 
equipment, including personal flotation devices, on board in compliance 
with U.S. Coast Guard boating safety requirements and in compliance with 
boating safety laws issued and enforced by the state in which the vessel 
is located. Owners or operators of vessels not in compliance with this 
section may be requested to remove the vessel immediately from project 
waters until such time as items of non-compliance are corrected.
    (f) Unless otherwise permitted by Federal, state or local law, 
vessels or other watercraft, while moored in commercial facilities, 
community or corporate docks, or at any fixed or permanent mooring 
point, may only be used for overnight occupancy when such use is 
incidental to recreational boating. Vessels or other watercraft are not 
to be used as a place of habitation or residence.
    (g) Water skis, parasails, ski-kites and similar devices are 
permitted in nonrestricted areas except that they may not be used in a 
careless, negligent, or reckless manner so as to endanger any person, 
property or environmental feature.
    (h) Vessels shall not be attached or anchored to structures such as 
locks, dams, buoys or other structures unless authorized by the District 
Commander. All vessels when not in actual use shall be removed from 
project lands and waters unless securely moored or stored at designated 
areas approved by the District Commander. The placing of floating or 
stationary mooring facilities on, adjacent to, or interfering with a 
buoy, channel marker or other navigational aid is prohibited.
    (i) The use at a project of any vessel not constructed or maintained 
in compliance with the standards and requirements established by the 
Federal Safe Boating Act of 1971 (Pub. L. 92-75, 85 Stat. 213), or 
promulgated pursuant to such act, is prohibited.
    (j) Except as authorized by the District Commander, no person shall 
operate any vessel or watercraft without a proper and effective exhaust 
muffler as defined by state and local laws, or with an exhaust muffler 
cutout open, or in any other manner which renders the exhaust muffler 
ineffective in muffling the sound of engine exhaust.
    (k) All vessels or other watercraft shall be operated in accordance 
with applicable Federal, state and local laws, which shall be regulated 
by authorized enforcement officials as prescribed in Sec. 327.26.

[65 FR 6899, Feb. 11, 2000]



Sec. 327.4  Aircraft.

    (a) This section pertains to all aircraft including, but not limited 
to, airplanes, seaplanes, helicopters, ultra-light aircraft, motorized 
hang gliders, hot air balloons, any non-powered flight devices or any 
other such equipment.

[[Page 8]]

    (b) The operation of aircraft on project lands at locations other 
than those designated by the District Commander is prohibited. This 
provision shall not be applicable to aircraft engaged on official 
business of Federal, state or local governments or law enforcement 
agencies, aircraft used in emergency rescue in accordance with the 
directions of the District Commander or aircraft forced to land due to 
circumstances beyond the control of the operator.
    (c) No person shall operate any aircraft while on or above project 
waters or project lands in a careless, negligent or reckless manner so 
as to endanger any person, property or environmental feature.
    (d) Nothing in this section bestows authority to deviate from rules 
and regulations or prescribed standards of the appropriate State 
Aeronautical Agency, or the Federal Aviation Administration, including, 
but not limited to, regulations and standards concerning pilot 
certifications or ratings, and airspace requirements.
    (e) Except in extreme emergencies threatening human life or serious 
property loss, the air delivery or retrieval of any person, material or 
equipment by parachute, balloon, helicopter or other means onto or from 
project lands or waters without written permission of the District 
Commander is prohibited.
    (f) In addition to the provisions in paragraphs (a) through (e) of 
this section, seaplanes are subject to the following restrictions:
    (1) Such use is limited to aircraft utilized for water landings and 
takeoff, in this part called seaplanes, at the risk of owner, operator 
and passenger(s).
    (2) Seaplane operations contrary to the prohibitions or restrictions 
established by the District Commander (pursuant to part 328 of this 
title) are prohibited. The responsibility to ascertain whether seaplane 
operations are prohibited or restricted is incumbent upon the person(s) 
contemplating the use of, or using, such waters.
    (3) All operations of seaplanes while upon project waters shall be 
in accordance with U.S. Coast Guard navigation rules for powerboats or 
vessels and Sec. 327.3.
    (4) Seaplanes on project waters and lands in excess of 24 hours 
shall be securely moored at mooring facilities and at locations 
permitted by the District Commander. Seaplanes may be temporarily moored 
on project waters and lands, except in areas prohibited by the District 
Commander, for periods less than 24 hours providing:
    (i) The mooring is safe, secure, and accomplished so as not to 
damage the rights of the Government or members of the public, and
    (ii) The operator remains in the vicinity of the seaplane and 
reasonably available to relocate the seaplane if necessary.
    (5) Commercial operation of seaplanes from project waters is 
prohibited without written approval of the District Commander following 
consultation with and necessary clearance from the Federal Aviation 
Administration (FAA) and other appropriate public authorities and 
affected interests.
    (6) Seaplanes may not be operated at Corps projects between sunset 
and sunrise unless approved by the District Commander.

[65 FR 6899, Feb. 11, 2000]



Sec. 327.5  Swimming.

    (a) Swimming, wading, snorkeling or scuba diving at one's own risk 
is permitted, except at launching sites, designated mooring points and 
public docks, or other areas so designated by the District Commander.
    (b) An international diver down, or inland diving flag must be 
displayed during underwater activities.
    (c) Diving, jumping or swinging from trees, bridges or other 
structures which cross or are adjacent to project waters is prohibited.

[65 FR 6900, Feb. 11, 2000]



Sec. 327.6  Picnicking.

    Picnicking and related day-use activities are permitted, except in 
those areas where prohibited by the District Commander.

[65 FR 6900, Feb. 11, 2000]



Sec. 327.7  Camping.

    (a) Camping is permitted only at sites and/or areas designated by 
the District Commander.

[[Page 9]]

    (b) Camping at one or more campsites at any one water resource 
project for a period longer than 14 days during any 30-consecutive-day 
period is prohibited without the written permission of the District 
Commander.
    (c) The unauthorized placement of camping equipment or other items 
on a campsite and/or personal appearance at a campsite without daily 
occupancy for the purpose of reserving that campsite for future 
occupancy is prohibited.
    (d) The digging or leveling of any ground or the construction of any 
structure without written permission of the District Commander is 
prohibited.
    (e) Occupying or placement of any camping equipment at a campsite 
which is posted or otherwise marked or indicated as ``reserved'' without 
an authorized reservation for that site is prohibited.

[65 FR 6900, Feb. 11, 2000]



Sec. 327.8  Hunting, fishing, and trapping.

    (a) Hunting is permitted except in areas and during periods where 
prohibited by the District Commander.
    (b) Trapping is permitted except in areas and during periods where 
prohibited by the District Commander.
    (c) Fishing is permitted except in swimming areas, on boat ramps or 
other areas designated by the District Commander.
    (d) Additional restrictions pertaining to these activities may be 
established by the District Commander.
    (e) All applicable Federal, State and local laws regulating these 
activities apply on project lands and waters, and shall be regulated by 
authorized enforcement officials as prescribed in Sec. 327.26.

[65 FR 6900, Feb. 11, 2000]



Sec. 327.9  Sanitation.

    (a) Garbage, trash, rubbish, litter, gray water, or any other waste 
material or waste liquid generated on the project and incidental to 
authorized recreational activities shall be either removed from the 
project or deposited in receptacles provided for that purpose. The 
improper disposal of such wastes, human and animal waste included, on 
the project is prohibited.
    (b) It is a violation to bring onto a project any household or 
commercial garbage, trash, rubbish, debris, dead animals or litter of 
any kind for disposal or dumping without the written permission of the 
District Commander. For the purposes of this section, the owner of any 
garbage, trash, rubbish, debris, dead animals or litter of any kind 
shall be presumed to be responsible for proper disposal. Such 
presumption will be sufficient to issue a citation for violation.
    (c) The spilling, pumping, discharge or disposal of contaminants, 
pollutants or other wastes, including, but not limited to, human or 
animal waste, petroleum, industrial and commercial products and by-
products, on project lands or into project waters is prohibited.
    (d) Campers, picnickers, and all other persons using a water 
resources development project shall keep their sites free of trash and 
litter during the period of occupancy and shall remove all personal 
equipment and clean their sites upon departure.
    (e) The discharge or placing of sewage, galley waste, garbage, 
refuse, or pollutants into the project waters from any vessel or 
watercraft is prohibited.

[65 FR 6900, Feb. 11, 2000]



Sec. 327.10  Fires.

    (a) Gasoline and other fuels, except that which is contained in 
storage tanks of vehicles, vessels, camping equipment, or hand portable 
containers designed for such purpose, shall not be carried onto or 
stored on the project without written permission of the District 
Commander.
    (b) Fires shall be confined to those areas designated by the 
District Commander, and shall be contained in fireplaces, grills, or 
other facilities designated for this purpose. Fires shall not be left 
unattended and must be completely extinguished prior to departure. The 
burning of materials that produce toxic fumes, including, but not 
limited to, tires, plastic and other floatation materials or treated 
wood products is prohibited. The District Commander may prohibit open 
burning of any type for environmental considerations.

[[Page 10]]

    (c) Improper disposal of lighted smoking materials, matches or other 
burning material is prohibited.

[65 FR 6900, Feb. 11, 2000]



Sec. 327.11  Control of animals.

    (a) No person shall bring or allow dogs, cats, or other pets into 
developed recreation areas or adjacent waters unless penned, caged, on a 
leash under six feet in length, or otherwise physically restrained. No 
person shall allow animals to impede or restrict otherwise full and free 
use of project lands and waters by the public. No person shall allow 
animals to bark or emit other noise which unreasonably disturbs other 
people. Animals and pets, except properly trained animals assisting 
those with disabilities (such as seeing-eye dogs), are prohibited in 
sanitary facilities, playgrounds, swimming beaches and any other areas 
so designated by the District Commander. Abandonment of any animal on 
project lands or waters is prohibited. Unclaimed or unattended animals 
are subject to immediate impoundment and removal in accordance with 
state and local laws.
    (b) Persons bringing or allowing pets in designated public use areas 
shall be responsible for proper removal and disposal of any waste 
produced by these animals.
    (c) No person shall bring or allow horses, cattle, or other 
livestock in camping, picnicking, swimming or other recreation areas or 
on trails except in areas designated by the District Commander.
    (d) Ranging, grazing, watering or allowing livestock on project 
lands and waters is prohibited except when authorized by lease, license 
or other written agreement with the District Commander.
    (e) Unauthorized livestock are subject to impoundment and removal in 
accordance with Federal, state and local laws.
    (f) Any animal impounded under the provisions of this section may be 
confined at a location designated by the District Commander, who may 
assess a reasonable impoundment fee. This fee shall be paid before the 
impounded animal is returned to its owner(s).
    (g) Wild or exotic pets and animals (including but not limited to 
cougars, lions, bears, bobcats, wolves, and snakes), or any pets or 
animals displaying vicious or aggressive behavior or otherwise posing a 
threat to public safety or deemed a public nuisance, are prohibited from 
project lands and waters unless authorized by the District Commander, 
and are subject to removal in accordance with Federal, state and local 
laws.

[65 FR 6901, Feb. 11, 2000]



Sec. 327.12  Restrictions.

    (a) The District Commander may establish and post a schedule of 
visiting hours and/or restrictions on the public use of a project or 
portion of a project. The District Commander may close or restrict the 
use of a project or portion of a project when necessitated by reason of 
public health, public safety, maintenance, resource protection or other 
reasons in the public interest. Entering or using a project in a manner 
which is contrary to the schedule of visiting hours, closures or 
restrictions is prohibited.
    (b) Quiet shall be maintained in all public use areas between the 
hours of 10 p.m. and 6 a.m., or those hours designated by the District 
Commander. Excessive noise during such times which unreasonably disturbs 
persons is prohibited.
    (c) Any act or conduct by any person which interferes with, impedes 
or disrupts the use of the project or impairs the safety of any person 
is prohibited. Individuals who are boisterous, rowdy, disorderly, or 
otherwise disturb the peace on project lands or waters may be requested 
to leave the project.
    (d) The operation or use of any sound producing or motorized 
equipment, including but not limited to generators, vessels or vehicles, 
in such a manner as to unreasonably annoy or endanger persons at any 
time or exceed state or local laws governing noise levels from motorized 
equipment is prohibited.
    (e) The possession and/or consumption of alcoholic beverages on any 
portion of the project land or waters, or the entire project, may be 
prohibited when designated and posted by the District Commander.
    (f) Unless authorized by the District Commander, smoking is 
prohibited in

[[Page 11]]

Visitor Centers, enclosed park buildings and in areas posted to restrict 
smoking.

[65 FR 6901, Feb. 11, 2000]



Sec. 327.13  Explosives, firearms, other weapons and fireworks.

    (a) The possession of loaded firearms, ammunition, loaded projectile 
firing devices, bows and arrows, crossbows, or other weapons is 
prohibited unless:
    (1) In the possession of a Federal, state or local law enforcement 
officer;
    (2) Being used for hunting or fishing as permitted under Sec. 
327.8, with devices being unloaded when transported to, from or between 
hunting and fishing sites;
    (3) Being used at authorized shooting ranges; or
    (4) Written permission has been received from the District 
Commander.
    (b) Possession of explosives or explosive devices of any kind, 
including fireworks or other pyrotechnics, is prohibited unless written 
permission has been received from the District Commander.

[65 FR 6901, Feb. 11, 2000]



Sec. 327.14  Public property.

    (a) Destruction, injury, defacement, removal or any alteration of 
public property including, but not limited to, developed facilities, 
natural formations, mineral deposits, historical and archaeological 
features, paleontological resources, boundary monumentation or markers 
and vegetative growth, is prohibited except when in accordance with 
written permission of the District Commander.
    (b) Cutting or gathering of trees or parts of trees and/or the 
removal of wood from project lands is prohibited without written 
permission of the District Commander.
    (c) Gathering of dead wood on the ground for use in designated 
recreation areas as firewood is permitted, unless prohibited and posted 
by the District Commander.
    (d) The use of metal detectors is permitted on designated beaches or 
other previously disturbed areas unless prohibited by the District 
Commander for reasons of protection of archaeological, historical or 
paleontological resources. Specific information regarding metal detector 
policy and designated use areas is available at the Manager's Office. 
Items found must be handled in accordance with Sec. Sec. 327.15 and 
327.16 except for non-identifiable items such as coins of value less 
than $25.

[65 FR 6901, Feb. 11, 2000]



Sec. 327.15  Abandonment and impoundment of personal property.

    (a) Personal property of any kind shall not be abandoned, stored or 
left unattended upon project lands or waters. After a period of 24 
hours, or at any time after a posted closure hour in a public use area 
or for the purpose of providing public safety or resource protection, 
unattended personal property shall be presumed to be abandoned and may 
be impounded and stored at a storage point designated by the District 
Commander, who may assess a reasonable impoundment fee. Such fee shall 
be paid before the impounded property is returned to its owner.
    (b) Personal property placed on Federal lands or waters adjacent to 
a private residence, facility and/or developments of any private nature 
for more than 24 hours without permission of the District Commander 
shall be presumed to have been abandoned and, unless proven otherwise, 
such presumption will be sufficient to impound the property and/or issue 
a citation as provided for in Sec. 327.25.
    (c) The District Commander shall, by public or private sale or 
otherwise, dispose of all lost, abandoned or unclaimed personal property 
that comes into Government custody or control. However, property may not 
be disposed of until diligent effort has been made to find the owner, 
heirs, next of kin or legal representative(s). If the owner, heirs, next 
of kin or legal representative(s) are determined but not found, the 
property may not be disposed of until the expiration of 120 days after 
the date when notice, giving the time and place of the intended sale or 
other disposition, has been sent by certified or registered mail to that 
person at the last known address. When diligent efforts to determine the 
owner, heirs, next of kin or legal representative(s) are unsuccessful, 
the property may be disposed of without delay except that if it has a 
fair market value of $100 or

[[Page 12]]

more the property may not be disposed of until 90 days after the date it 
is received at the storage point designated by the District Commander. 
The net proceeds from the sale of property shall be conveyed into the 
Treasury of the United States as miscellaneous receipts.

[65 FR 6901, Feb. 11, 2000]



Sec. 327.16  Lost and found articles.

    All articles found shall be deposited by the finder at the Manager's 
office or with a ranger. All such articles shall be disposed of in 
accordance with the procedures set forth in Sec. 327.15.

[65 FR 6902, Feb. 11, 2000]



Sec. 327.17  Advertisment.

    (a) Advertising and the distribution of printed matter is allowed 
within project land and waters provided that a permit to do so has been 
issued by the District Commander and provided that this activity is not 
solely commercial advertising.
    (b) An application for such a permit shall set forth the name of the 
applicant, the name of the organization (if any), the date, time, 
duration, and location of the proposed advertising or the distribution 
of printed matter, the number of participants, and any other information 
required by the permit application form. Permit conditions and 
procedures are available from the District Commander.
    (c) Vessels and vehicles with semipermanent or permanent painted or 
installed signs are exempt as long as they are used for authorized 
recreational activities and comply with all other rules and regulations 
pertaining to vessels and vehicles.
    (d) The District Commander shall, without unreasonable delay, issue 
a permit on proper application unless:
    (1) A prior application for a permit for the same time and location 
has been made that has been or will be granted and the activities 
authorized by that permit do not reasonably allow multiple occupancy of 
the particular area; or
    (2) It reasonably appears that the advertising or the distribution 
of printed matter will present a clear and present danger to the public 
health and safety; or
    (3) The number of persons engaged in the advertising or the 
distribution of printed matter exceeds the number that can reasonably be 
accommodated in the particular location applied for, considering such 
things as damage to project resources or facilities, impairment of a 
protected area's atmosphere of peace and tranquility, interference with 
program activities, or impairment of public use facilities; or
    (4) The location applied for has not been designated as available 
for the advertising or the distribution of printed matter; or
    (5) The activity would constitute a violation of an applicable law 
or regulation.
    (e) If a permit is denied, the applicant shall be so informed in 
writing, with the reason(s) for the denial set forth.
    (f) The District Commander shall designate on a map, which shall be 
available for inspection in the applicable project office, the locations 
within the project that are available for the advertising or the 
distribution of printed matter. Locations may be designated as not 
available only if the advertising or the distribution of printed matter 
would:
    (1) Cause injury or damage to project resources; or
    (2) Unreasonably impair the atmosphere of the peace and tranquility 
maintained in natural, historic, or commemorative zones; or
    (3) Unreasonably interfere with interpretive, visitor service, or 
other program activities, or with the administrative activities of the 
Corps of Engineers; or
    (4) Substantially impair the operation of public use facilities or 
services of Corps of Engineers concessioners or contractors.
    (5) Present a clear and present danger to the public health and 
safety.
    (g) The permit may contain such conditions as are reasonably 
consistent with protection and use of the project area for the purposes 
for which it is established.
    (h) No permit shall be issued for a period in excess of 14 
consecutive days, provided that permits may be extended

[[Page 13]]

for like periods, upon a new application, unless another applicant has 
requested use of the same location and multiple occupancy of that 
location is not reasonably possible.
    (i) It is prohibited for persons engaged in the activity under this 
section to obstruct or impede pedestrians or vehicles, harass project 
visitors with physical contact or persistent demands, misrepresent the 
purposes or affiliations of those engaged in the advertising or the 
distribution of printed matter, or misrepresent whether the printed 
matter is available without cost or donation.
    (j) A permit may be revoked under any of those conditions, as listed 
in paragraph (d) of this section, that constitute grounds for denial of 
a permit, or for violation of the terms and conditions of the permit. 
Such a revocation shall be made in writing, with the reason(s) for 
revocation clearly set forth, except under emergency circumstances, when 
an immediate verbal revocation or suspension may be made, to be followed 
by written confirmation within 72 hours.
    (k) Violation of the terms and conditions of a permit issued in 
accordance with this section may result in the suspension or revocation 
of the permit.

[65 FR 26137, May 5, 2000]



Sec. 327.18  Commercial activities.

    (a) The engaging in or solicitation of business on project land or 
waters without the express written permission of the District Commander 
is prohibited.
    (b) It shall be a violation of this part to refuse to or fail to 
comply with any terms, clauses or conditions of any lease, license or 
agreements issued by the District Commander.

[65 FR 6902, Feb. 11, 2000]



Sec. 327.19  Permits.

    (a) It shall be a violation of this part to refuse to or fail to 
comply with the fee requirements or other terms or conditions of any 
permit issued under the provisions of this part 327.
    (b) Permits for floating structures (issued under the authority of 
Sec. 327.30) of any kind on/in waters of water resources development 
projects, whether or not such waters are deemed navigable waters of the 
United States but where such waters are under the management of the 
Corps of Engineers, shall be issued at the discretion of the District 
Commander under the authority of this section. District Commanders will 
delineate those portions of the navigable waters of the United States 
where this provision is applicable and post notices of this designation 
in the vicinity of the appropriate Manager's office.
    (c) Permits for non-floating structures (issued under the authority 
of Sec. 327.30) of any kind constructed, placed in or affecting waters 
of water resources development projects where such waters are deemed 
navigable waters of the U.S. shall be issued under the provisions of 
section 10 of the Rivers and Harbors Act approved March 3, 1899 (33 
U.S.C. 403). If a discharge of dredged or fill material in these waters 
is involved, a permit is required under section 404 of the Clean Water 
Act (33 U.S.C. 1344). (See 33 CFR parts 320 through 330.)
    (d) Permits for non-floating structures (issued under the authority 
of Sec. 327.30) of any kind in waters of water resources development 
projects, where such waters are under the management of the Corps of 
Engineers and where such waters are not deemed navigable waters of the 
United States, shall be issued as set forth in paragraph (b) of this 
section. If a discharge of dredged or fill material into any water of 
the United States is involved, a permit is required under section 404 of 
the Clean Water Act (33 U.S.C. 1344) (See 33 CFR parts 320 through 330). 
Water quality certification may be required pursuant to Section 401 of 
the Clean Water Act (33 U.S.C. 1341).
    (e) Shoreline Use Permits to authorize private shoreline use 
facilities, activities or development (issued under the authority of 
Sec. 327.30) may be issued in accordance with the project Shoreline 
Management Plan. Failure to comply with the permit conditions issued 
under Sec. 327.30 is prohibited.

[65 FR 6902, Feb. 11, 2000]



Sec. 327.20  Unauthorized structures.

    The construction, placement, or existence of any structure 
(including, but

[[Page 14]]

not limited to, roads, trails, signs, non-portable hunting stands or 
blinds, buoys, docks, or landscape features) of any kind under, upon, in 
or over the project lands, or waters is prohibited unless a permit, 
lease, license or other appropriate written authorization has been 
issued by the District Commander. The design, construction, placement, 
existence or use of structures in violation of the terms of the permit, 
lease, license, or other written authorization is prohibited. The 
government shall not be liable for the loss of, or damage to, any 
private structures, whether authorized or not, placed on project lands 
or waters. Unauthorized structures are subject to summary removal or 
impoundment by the District Commander. Portable hunting stands, climbing 
devices, steps, or blinds, that are not nailed or screwed into trees and 
are removed at the end of a day's hunt may be used.

[65 FR 6902, Feb. 11, 2000]



Sec. 327.21  Special events.

    (a) Special events including, but not limited to, water carnivals, 
boat regattas, fishing tournaments, music festivals, dramatic 
presentations or other special recreation programs are prohibited unless 
written permission has been granted by the District Commander. Where 
appropriate, District Commanders can provide the state a blanket letter 
of permission to permit fishing tournaments while coordinating the 
scheduling and details of tournaments with individual projects. An 
appropriate fee may be charged under the authority of Sec. 327.23.
    (b) The public shall not be charged any fee by the sponsor of such 
event unless the District Commander has approved in writing (and the 
sponsor has properly posted) the proposed schedule of fees. The District 
Commander shall have authority to revoke permission, require removal of 
any equipment, and require restoration of an area to pre-event 
condition, upon failure of the sponsor to comply with terms and 
conditions of the permit/permission or the regulations in this part 327.

[65 FR 6902, Feb. 11, 2000]



Sec. 327.22  Unauthorized occupation.

    (a) Occupying any lands, buildings, vessels or other facilities 
within water resource development projects for the purpose of 
maintaining the same as a full-or part-time residence without the 
written permission of the District Commander is prohibited. The 
provisions of this section shall not apply to the occupation of lands 
for the purpose of camping, in accordance with the provisions of Sec. 
327.7.
    (b) Use of project lands or waters for agricultural purposes is 
prohibited except when in compliance with terms and conditions 
authorized by lease, license or other written agreement issued by the 
District Commander.

[65 FR 6903, Feb. 11, 2000]



Sec. 327.23  Recreation use fees.

    (a) In accordance with the Land and Water Conservation Fund Act of 
1965 (16 U.S.C. 460l) and the Omnibus Budget Reconciliation Act of 1993, 
Pub. L. 103-66, the Corps of Engineers collects day use fees, special 
recreation use fees and/or special permit fees for the use of 
specialized sites, facilities, equipment or services related to outdoor 
recreation furnished at Federal expense.
    (b) Where such fees are charged, the District Commander shall insure 
that clear notice of fee requirements is prominently posted at each 
area, and at appropriate locations therein and that the notice be 
included in publications distributed at such areas. Failure to pay 
authorized recreation use fees as established pursuant to Pub. L. 88-
578, 78 Stat. 897, as amended (16 U.S.C. 460l-6a), is prohibited and is 
punishable by a fine of not more than $100.
    (c) Failure to pay authorized day use fees, and/or properly display 
applicable receipt, permit or pass is prohibited.
    (d) Any Golden Age or Golden Access Passport permittee shall be 
entitled, upon presentation of such a permit, to utilize special 
recreation facilities at a rate of 50 percent off the established use 
fee at Federally operated areas. Fraudulent use of a Golden Age or 
Golden Access Passport is prohibited.

[65 FR 6903, Feb. 11, 2000]

[[Page 15]]



Sec. 327.24  Interference with Government employees.

    (a) It is a Federal crime pursuant to the provisions of sections 111 
and 1114 of Title 18, United States Code, to forcibly assault, resist, 
oppose, impede, intimidate, or interfere with, attempt to kill or kill 
any civilian official or employee for the U.S. Army Corps of Engineers 
engaged in the performance of his or her official duties, or on account 
of the performance of his or her official duties. Such actions or 
interference directed against a Federal employee while carrying out the 
regulations in this part are violation of such regulations and may be a 
state crime pursuant to the laws of the state where they occur.
    (b) Failure to comply with a lawful order issued by a Federal 
employee acting pursuant to the regulations in this part shall be 
considered as interference with that employee while engaged in the 
performance of their official duties. Such interference with a Federal 
employee includes failure to provide a correct name, address or other 
information deemed necessary for identification upon request of the 
Federal employee, when that employee is authorized by the District 
Commander to issue citations in the performance of the employee's 
official duties.

[65 FR 6903, Feb. 11, 2000]



Sec. 327.25  Violations of rules and regulations.

    (a) Any person who violates the provisions of the regulations in 
this part, other than for a failure to pay authorized recreation use 
fees as separately provided for in Sec. 327.23, may be punished by a 
fine of not more than $5,000 or imprisonment for not more than six 
months or both and may be tried and sentenced in accordance with the 
provisions of section 3401 of Title 18, United States Code. Persons 
designated by the District Commander shall have the authority to issue a 
citation for violation of the regulations in this part, requiring any 
person charged with the violation to appear before the United States 
Magistrate within whose jurisdiction the affected water resources 
development project is located (16 U.S.C. 460d).
    (b) Any person who commits an act against any official or employee 
of the U.S. Army Corps of Engineers that is a crime under the provisions 
of section 111 or section 1114 of Title 18, United States Code or under 
provisions of pertinent state law may be tried and sentenced as further 
provided under Federal or state law, as the case may be.

[65 FR 6903, Feb. 11, 2000]



Sec. 327.26  State and local laws.

    (a) Except as otherwise provided in this part or by Federal law or 
regulation, state and local laws and ordinances shall apply on project 
lands and waters. This includes, but is not limited to, state and local 
laws and ordinances governing:
    (1) Operation and use of motor vehicles, vessels, and aircraft;
    (2) Hunting, fishing and trapping;
    (3) Use or possession of firearms or other weapons;
    (4) Civil disobedience and criminal acts;
    (5) Littering, sanitation and pollution; and
    (6) Alcohol or other controlled substances.
    (b) These state and local laws and ordinances are enforced by those 
state and local enforcement agencies established and authorized for that 
purpose.

[65 FR 6903, Feb. 11, 2000]



Sec. Sec. 327.27-327.29  [Reserved]



Sec. 327.30  Shoreline Management on Civil Works Projects.

    (a) Purpose. The purpose of this regulation is to provide policy and 
guidance on management of shorelines of Civil Works projects where 36 
CFR part 327 is applicable.
    (b) Applicability. This regulation is applicable to all field 
operating agencies with Civil Works responsibilities except when such 
application would result in an impingement upon existing Indian rights.
    (c) References. (1) Section 4, 1944 Flood Control Act, as amended 
(16 U.S.C. 460d).
    (2) The Rivers and Harbors Act of 1894, as amended and supplemented 
(33 U.S.C. 1)

[[Page 16]]

    (3) Section 10, River and Harbor Act of 1899 (33 U.S.C. 403).
    (4) National Historic Preservation Act of 1966 (Pub. L. 89-665; 80 
Stat. 915) as amended (16 U.S.C. 470 et seq.).
    (5) The National Environmental Policy Act of 1969 (42 U.S.C. 4321, 
et seq.).
    (6) The Clean Water Act (33 U.S.C. 1344, et seq.).
    (7) The Water Resources Development Act of 1986 (Pub. L. 99-662).
    (8) Title 36, chapter III, part 327, Code of Federal Regulations, 
``Rules and Regulations Governing Public Use of Water Resource 
Development Projects Administered by the Chief of Engineers.''
    (9) Executive Order 12088 (13 Oct. 78).
    (10) 33 CFR parts 320-330, ``Regulatory Programs of the Corps of 
Engineers.''
    (11) ER 1130-2-400, ``Management of Natural Resources and Outdoor 
Recreation at Civil Works Water Resource Projects.''
    (12) EM 385-1-1, ``Safety and Health Requirements Manual.''
    (d) Policy. (1) It is the policy of the Chief of Engineers to 
protect and manage shorelines of all Civil Works water resource 
development projects under Corps jurisdiction in a manner which will 
promote the safe and healthful use of these shorelines by the public 
while maintaining environmental safeguards to ensure a quality resource 
for use by the public. The objectives of all management actions will be 
to achieve a balance between permitted private uses and resource 
protection for general public use. Public pedestrian access to and exit 
from these shorelines shall be preserved. For projects or portions of 
projects where Federal real estate interest is limited to easement title 
only, management actions will be appropriate within the limits of the 
estate acquired.
    (2) Private shoreline uses may be authorized in designated areas 
consistent with approved use allocations specified in Shoreline 
Management Plans. Except to honor written commitments made prior to 
publication of this regulation, private shoreline uses are not allowed 
on water resource projects where construction was initiated after 
December 13, 1974, or on water resource projects where no private 
shoreline uses existed as of that date. Any existing permitted 
facilities on these projects will be grandfathered until the facilities 
fail to meet the criteria set forth in Sec. 327.30(h).
    (3) A Shoreline Management Plan, as described in Sec. 327.30(e), 
will be prepared for each Corps project where private shoreline use is 
allowed. This plan will honor past written commitments. The plan will be 
reviewed at least once every five years and revised as necessary. 
Shoreline uses that do not interfere with authorized project purposes, 
public safety concerns, violate local norms or result in significant 
environmental effects should be allowed unless the public participation 
process identifies problems in these areas. If sufficient demand exists, 
consideration should be given to revising the shoreline allocations 
(e.g. increases/decreases). Maximum public participation will be 
encouraged as set forth in Sec. 327.30(e)(6). Except to honor written 
commitments made prior to the publication of this regulation, shoreline 
management plans are not required for those projects where construction 
was initiated after December 13, 1974, or on projects not having private 
shoreline use as of that date. In that case, a statement of policy will 
be developed by the district commander to present the shoreline 
management policy. This policy statement will be subject to the approval 
of the division commander. For projects where two or more agencies have 
jurisdiction, the plan will be cooperatively prepared with the Corps as 
coordinator.
    (4) Where commercial or other public launching and/or moorage 
facilities are not available within a reasonable distance, group owned 
mooring facilities may be allowed in Limited Development Areas to limit 
the proliferation of individual facilities. Generally only one permit 
will be necessary for a group owned mooring facility with that entity, 
if incorporated, or with one person from the organization designated as 
the permittee and responsible for all moorage spaces within the 
facility. No charge may be made for use of any permitted facility by 
others nor shall any commercial activity be engaged in thereon.
    (5) The issuance of a private shoreline use permit does not convey 
any

[[Page 17]]

real estate or personal property rights or exclusive use rights to the 
permit holder. The public's right of access and use of the permit area 
must be maintained and preserved. Owners of permitted facilities may 
take necessary precautions to protect their property from theft, 
vandalism or trespass, but may in no way preclude the public right of 
pedestrian or vessel access to the water surface or public land adjacent 
to the facility.
    (6) Shoreline Use Permits will only be issued to individuals or 
groups with legal right of access to public lands.
    (e) Shoreline Management Plan--(1) General. The policies outlined in 
Sec. 327.30(d) will be implemented through preparation of Shoreline 
Management Plans, where private shoreline use is allowed.
    (2) Preparation. A Shoreline Management Plan is prepared as part of 
the Operational Management Plan. A moratorium on accepting applications 
for new permits may be placed in effect from the time an announcement of 
creation of a plan or formal revision of a plan is made until the action 
is completed.
    (3) Approval. Approval of Shoreline Management Plans rests with 
division commanders. After approval, one copy of each project Shoreline 
Management Plan will be forwarded to HQUSACE (CECW-ON) WASH DC 20314-
1000. Copies of the approved plan will also be made available to the 
public.
    (4) Scope and Format. The Shoreline Management Plan will consist of 
a map showing the shoreline allocated to the uses listed in Sec. 
327.30(e)(6), related rules and regulations, a discussion of what areas 
are open or closed to specific activities and facilities, how to apply 
for permits and other information pertinent to the Corps management of 
the shoreline. The plan will be prepared in sufficient detail to ensure 
that it is clear to the public what uses are and are not allowed on the 
shoreline of the project and why. A process will be developed and 
presented in the Shoreline Management Plan that prescribes a procedure 
for review of activities requested but not specifically addressed by the 
Shoreline Management Plan.
    (5) Shoreline Allocation. The entire shoreline will be allocated 
within the classifications below and delineated on a map. Any action, 
within the context of this rule, which gives a special privilege to an 
individual or group of individuals on land or water at a Corps project, 
that precludes use of those lands and waters by the general public, is 
considered to be private shoreline use. Shoreline allocations cover that 
land and/or water extending from the edge of the water and waterward 
with the exception of allocations for the purpose of vegetation 
modification which extends landward to the project boundary. These 
allocations should complement, but certainly not contradict, the land 
classifications in the project master plan. A map of sufficient size and 
scale to clearly display the shoreline allocations will be conspicuously 
displayed or readily available for viewing in the project administration 
office and will serve as the authoritative reference. Reduced or smaller 
scale maps may be developed for public dissemination but the information 
contained on these must be identical to that contained on the display 
map in the project administration office. No changes will be made to 
these maps except through the formal update process. District commanders 
may add specific constraints and identify areas having unique 
characteristics during the plan preparation, review, or updating process 
in addition to the allocation classifications described below.
    (i) Limited Development Areas. Limited Development Areas are those 
areas in which private facilities and/or activities may be allowed 
consistent with Sec. 327.30(h) and appendix A. Modification of 
vegetation by individuals may be allowed only following the issuance of 
a permit in accordance with appendix A. Potential low and high water 
conditions and underwater topography should be carefully evaluated 
before shoreline is allocated as Limited Development Area.
    (ii) Public Recreation Areas. Public Recreation Areas are those 
areas designated for commercial concessionaire facilities, Federal, 
state or other similar public use. No private shoreline use facilities 
and/or activities will be permitted within or near designated or 
developed public recreation areas. The

[[Page 18]]

term ``near'' depends on the terrain, road system, and other local 
conditions, so actual distances must be established on a case by case 
basis in each project Shoreline Management Plan. No modification of land 
forms or vegetation by private individuals or groups of individuals is 
permitted in public recreation areas.
    (iii) Protected Shoreline Areas. Protected Shoreline Areas are those 
areas designated to maintain or restore aesthetic, fish and wildlife, 
cultural, or other environmental values. Shoreline may also be so 
designated to prevent development in areas that are subject to excessive 
siltation, erosion, rapid dewatering, or exposure to high wind, wave, or 
current action and/or in areas in which development would interfere with 
navigation. No Shoreline Use Permits for floating or fixed recreation 
facilities will be allowed in protected areas. Some modification of 
vegetation by private individuals, such as clearing a narrow meandering 
path to the water, or limited mowing, may be allowed only following the 
issuance of a permit if the resource manager determines that the 
activity will not adversely impact the environment or physical 
characteristics for which the area was designated as protected. In 
making this determination the effect on water quality will also be 
considered.
    (iv) Prohibited Access Areas. Prohibited Access Areas are those in 
which public access is not allowed or is restricted for health, safety 
or security reasons. These could include hazardous areas near dams, 
spillways, hydro-electric power stations, work areas, water intake 
structures, etc. No shoreline use permits will be issued in Prohibited 
Access Areas.
    (6) Public Participation. District commanders will ensure public 
participation to the maximum practicable extent in Shoreline Management 
Plan formulation, preparation and subsequent revisions. This may be 
accomplished by public meetings, group workshops, open houses or other 
public involvement techniques. When master plan updates and preparation 
of the Shoreline Management Plans are concurrent, public participation 
may be combined and should consider all aspects of both plans, including 
shoreline allocation classifications. Public participation will begin 
during the initial formulation stage and must be broad-based to cover 
all aspects of public interest. The key to successful implementation is 
an early and continual public relations program. Projects with 
significant numbers of permits should consider developing computerized 
programs to facilitate exchange of information with permittees and to 
improve program efficiency. Special care will be taken to advise citizen 
and conservation organizations; Federal, state and local natural 
resource management agencies; Indian Tribes; the media; commercial 
concessionaires; congressional liaisons; adjacent landowners and other 
concerned entities during the formulation of Shoreline Management Plans 
and subsequent revisions. Notices shall be published prior to public 
meetings to assure maximum public awareness. Public notices shall be 
issued by the district commander allowing for a minimum of 30 days for 
receipt of written public comment in regard to the proposed Shoreline 
Management Plan or any major revision thereto.
    (7) Periodic Review. Shoreline Management Plans will be reviewed 
periodically, but no less often than every five years, by the district 
commander to determine the need for update. If sufficient controversy or 
demand exists, consideration should be given, consistent with other 
factors, to a process of reevaluation of the shoreline allocations and 
the plan. When changes to the Shoreline Management Plan are needed, the 
plan will be formally updated through the public participation process. 
Cumulative environmental impacts of permit actions and the possibility 
of preparing or revising project NEPA documentation will be considered. 
District commanders may make minor revisions to the Shoreline Management 
Plan when the revisions are consistent with policy and funds for a 
complete plan update are not available. The amount and type of public 
involvement needed for such revision is at the discretion of the 
district commander.
    (f) Instruments for Shoreline Use. Instruments used to authorize 
private

[[Page 19]]

shoreline use facilities, activities or development are as follows:
    (1) Shoreline Use Permits. (i) Shoreline Use Permits are issued and 
enforced in accordance with provisions of 36 CFR 327.19.
    (ii) Shoreline Use Permits are required for private structures/
activities of any kind (except boats) in waters of Civil Works projects 
whether or not such waters are deemed navigable and where such waters 
are under the primary jurisdiction of the Secretary of the Army and 
under the management of the Corps of Engineers.
    (iii) Shoreline Use Permits are required for non-floating structures 
on waters deemed commercially non-navigable, when such waters are under 
management of the Corps of Engineers.
    (iv) Shoreline Use Permits are also required for land vegetation 
modification activities which do not involve disruption to land form.
    (v) Permits should be issued for a term of five years. To reduce 
administration costs, one year permits should be issued only when the 
location or nature of the activity requires annual reissuance.
    (vi) Shoreline Use Permits for erosion control may be issued for the 
life or period of continual ownership of the structure by the permittee 
and his/her legal spouse.
    (2) Department of the Army Permits. Dredging, construction of fixed 
structures, including fills and combination fixed-floating structures 
and the discharge of dredged or fill material in waters of the United 
States will be evaluated under authority of section 10, River and Harbor 
Act of 1899 (33 U.S.C. 403) and section 404 of the Clean Water Act (33 
U.S.C. 1344). Permits will be issued where appropriate.
    (3) Real Estate Instruments. Commercial development activities and 
activities which involve grading, cuts, fills, or other changes in land 
form, or establishment of appropriate land-based support facilities 
required for private floating facilities, will continue to be covered by 
a lease, license or other legal grant issued through the appropriate 
real estate element. Shoreline Management Plans should identify the 
types of activities that require real estate instruments and indicate 
the general process for obtaining same. Shoreline Use Permits are not 
required for facilities or activities covered by a real estate 
instrument.
    (g) Transfer of Permits. Shoreline Use Permits are non-transferable. 
They become null and void upon sale or transfer of the permitted 
facility or the death of the permittee and his/her legal spouse.
    (h) Existing Facilities Now Under Permit. Implementation of a 
Shoreline Management Plan shall consider existing permitted facilities 
and prior written Corps commitments implicit in their issuance. 
Facilities or activities permitted under special provisions should be 
identified in a way that will set them apart from other facilities or 
activities.
    (1) Section 6 of Pub. L. 97-140 provides that no lawfully installed 
dock or appurtenant structures shall be required to be removed prior to 
December 31, 1989, from any Federal water resources reservoir or lake 
project administered by the Secretary of the Army, acting through the 
Chief of Engineers, on which it was located on December 29, 1981, if 
such property is maintained in usable condition, and does not occasion a 
threat to life or property.
    (2) In accordance with section 1134(d) of Pub. L. 99-662, any 
houseboat, boathouse, floating cabin or lawfully installed dock or 
appurtenant structures in place under a valid shoreline use permit as of 
November 17, 1986, cannot be forced to be removed from any Federal water 
resources project or lake administered by the Secretary of the Army on 
or after December 31, 1989, if it meets the three conditions below 
except where necessary for immediate use for public purposes or higher 
public use or for a navigation or flood control project.
    (i) Such property is maintained in a usable and safe condition,
    (ii) Such property does not occasion a threat to life or property, 
and
    (iii) The holder of the permit is in substantial compliance with the 
existing permit.
    (3) All such floating facilities and appurtenances will be formally 
recognized in an appropriate Shoreline Management Plan. New permits for 
these

[[Page 20]]

permitted facilities will be issued to new owners. If the holder of the 
permit fails to comply with the terms of the permit, it may be revoked 
and the holder required to remove the structure, in accordance with the 
terms of the permit as to notice, time, and appeal.
    (i) Facility Maintenance. Permitted facilities must be operated, 
used and maintained by the permittee in a safe, healthful condition at 
all times. If determined to be unsafe, the resource manager will 
establish together with the permittee a schedule, based on the 
seriousness of the safety deficiency, for correcting the deficiency or 
having it removed, at the permittee's expense. The applicable safety and 
health prescriptions in EM 385-1-1 should be used as a guide.
    (j) Density of Development. The density of private floating and 
fixed recreation facilities will be established in the Shoreline 
Management Plan for all portions of Limited Development areas consistent 
with ecological and aesthetic characteristics and prior written 
commitments. The facility density in Limited Development Areas should, 
if feasible, be determined prior to the development of adjacent private 
property. The density of facilities will not be more than 50 per cent of 
the Limited Development Area in which they are located. Density will be 
measured by determining the linear feet of shoreline as compared to the 
width of the facilities in the water plus associated moorage 
arrangements which restrict the full unobstructed use of that portion of 
the shoreline. When a Limited Development Area or a portion of a Limited 
Development area reaches maximum density, notice should be given to the 
public and facility owners in that area that no additional facilities 
will be allowed. In all cases, sufficient open area will be maintained 
for safe maneuvering of watercraft. Docks should not extend out from the 
shore more than one-third of the width of a cove at normal recreation or 
multipurpose pool. In those cases where current density of development 
exceeds the density level established in the Shoreline Management Plan, 
the density will be reduced to the prescribed level through attrition.
    (k) Permit Fees. Fees associated with the Shoreline Use Permits 
shall be paid prior to issuing the permit in accordance with the 
provisions of Sec. 327.30(c)(1). The fee schedule will be published 
separately.

   Appendix A to Sec. 327.30--Guidelines for Granting Shoreline Use 
                                 Permits

                               1. General

    a. Decisions regarding permits for private floating recreation 
facilities will consider the operating objectives and physical 
characteristics of each project. In developing Shoreline Management 
Plans, district commanders will give consideration to the effects of 
added private boat storage facilities on commercial concessions for that 
purpose. Consistent with established policies, new commercial 
concessions may be alternatives to additional limited development 
shoreline.
    b. Permits for individually or group owned shoreline use facilities 
may be granted only in Limited Development Areas when the sites are not 
near commercial marine services and such use will not despoil the 
shoreline nor inhibit public use or enjoyment thereof. The installation 
and use of such facilities will not be in conflict with the preservation 
of the natural characteristics of the shoreline nor will they result in 
significant environmental damage. Charges will be made for Shoreline Use 
Permits in accordance with the separately published fee schedule.
    c. Permits may be granted within Limited Development Areas for ski 
jumps, floats, boat moorage facilities, duck blinds, and other private 
floating recreation facilities when they will not create a safety hazard 
and inhibit public use or enjoyment of project waters or shoreline. A 
Corps permit is not required for temporary ice fishing shelters or duck 
blinds when they are regulated by a state program. When the facility or 
activity is authorized by a shoreline use permit, a separate real estate 
instrument is generally not required.
    d. Group owned boat mooring facilities may be permitted in Limited 
Development Areas where practicable (e.g. where physically feasible in 
terms of access, water depths, wind protection, etc.).

                2. Applications for Shoreline Use Permits

    a. Applications for private Shoreline Use Permits will be reviewed 
with full consideration of the policies set forth in this and referenced 
regulations, and the Shoreline Management Plan. Fees associated with the 
Shoreline Use Permit shall be paid prior to issuing the permit. Plans 
and specifications of the proposed facility shall be submitted and 
approved prior to the start of construction. Submissions should include 
engineering

[[Page 21]]

details, structural design, anchorage method, and construction 
materials; the type, size, location and ownership of the facility; 
expected duration of use; and an indication of willingness to abide by 
the applicable regulations and terms and conditions of the permit. 
Permit applications shall also identify and locate any land-based 
support facilities and any specific safety considerations.
    b. Permits will be issued by the district commander or his/her 
authorized representative on ENG Form 4264-R (Application for Shoreline 
Use Permit) (appendix B). Computer generated forms may be substituted 
for ENG Form 4264-R provided all information is included. The computer 
generated form will be designated, ``ENG Form 4264-R-E, Oct 87 
(Electronic generation approved by USACE, Oct 87)''.
    c. The following are guides to issuance of Shoreline Use Permits:
    (1) Use of boat mooring facilities, including piers and boat 
(shelters) houses, will be limited to vessel or watercraft mooring and 
storage of gear essential to vessel or watercraft operation.
    (2) Private floating recreation facilities, including boat mooring 
facilities shall not be constructed or used for human habitation or in a 
manner which gives the appearance of converting Federal public property 
on which the facility is located to private, exclusive use. New docks 
with enclosed sides (i.e. boathouses) are prohibited.
    (3) No private floating facility will exceed the minimum size 
required to moor the owner's boat or boats plus the minimum size 
required for an enclosed storage locker of oars, life preservers and 
other items essential to watercraft operation. Specific size limitations 
may be established in the project Shoreline Management Plan.
    (4) All private floating recreation facilities including boat 
mooring facilities will be constructed in accordance with plans and 
specifications, approved by the resource manager, or a written 
certification from a licensed engineer, stating the facility is 
structurally safe will accompany the initial submission of the plans and 
specifications.
    (5) Procedures regarding permits for individual facilities shall 
also apply to permits for non-commercial group mooring facilities.
    (6) Facilities attached to the shore shall be securely anchored by 
means of moorings which do not obstruct the free use of the shoreline, 
nor damage vegetation or other natural features. Anchoring to vegetation 
is prohibited.
    (7) Electrical service and equipment leading to or on private 
mooring facilities must not pose a safety hazard nor conflict with other 
recreational use. Electrical installations must be weatherproof and meet 
all current applicable electrical codes and regulations. The facility 
must be equipped with quick disconnect fittings mounted above the flood 
pool elevation. All electrical installations must conform to the 
National Electric Code and all state, and local codes and regulations. 
In those states where electricians are licensed, registered, or 
otherwise certified, a copy of the electrical certification must be 
provided to the resource manager before a Shoreline Use Permit can be 
issued or renewed. The resource manager will require immediate removal 
or disconnection of any electrical service or equipment that is not 
certified (if appropriate), does not meet code, or is not safely 
maintained. All new electrical lines will be installed underground. This 
will require a separate real estate instrument for the service right-of-
way. Existing overhead lines will be allowed, as long as they meet all 
applicable electrical codes, regulations and above guidelines, to 
include compatibility and safety related to fluctuating water levels.
    (8) Private floating recreation facilities will not be placed so as 
to interfere with any authorized project purposes, including navigation, 
or create a safety or health hazard.
    (9) The district commander or his/her authorized representative may 
place special conditions on the permit when deemed necessary. Requests 
for waivers of shoreline management plan permit conditions based on 
health conditions will be reviewed on a case by case basis by the 
Operations Manager. Efforts will be made to reduce onerous requirements 
when a limiting health condition is obvious or when an applicant 
provides a doctor's certification of need for conditions which are not 
obvious.
    (10) Vegetation modification, including but not limited to, cutting, 
pruning, chemical manipulation, removal or seeding by private 
individuals is allowed only in those areas designated as Limited 
Development Areas or Protected Shoreline Areas. An existing (as of July 
1, 1987) vegetation modification permit, within a shoreline allocation 
which normally would not allow vegetation modification, should be 
grandfathered. Permittees will not create the appearance of private 
ownership of public lands.
    (11) The term of a permit for vegetation modification will be for 
five years. Where possible, such permits will be consolidated with other 
shoreline management permits into a single permit. The district 
commander is authorized to issue vegetation modification permits of less 
than five years for one-time requests or to aid in the consolidation of 
shoreline management permits.
    (12) When issued a permit for vegetative modification, the permittee 
will delineate the government property line, as surveyed and marked by 
the government, in a clear but unobtrusive manner approved by the 
district commander and in accordance with the project Shoreline 
Management Plan and the conditions of the permit. Other adjoining owners 
may also delineate the common

[[Page 22]]

boundary subject to these same conditions. This delineation may include, 
but is not limited to, boundary plantings and fencing. The delineation 
will be accomplished at no cost to the government.
    (13) No permit will be issued for vegetation modification in 
Protected Shoreline Areas until the environmental impacts of the 
proposed modification are assesed by the resource manager and it has 
been determined that no significant adverse impacts will result. The 
effects of the proposed modification on water quality will also be 
considered in making this determination.
    (14) The original of the completed permit application is to be 
retained by the permittee. A duplicate will be retained in the resource 
manager's office.

                          3. Permit Revocation

    Permits may be revoked by the district commander when it is 
determined that the public interest requires such revocation or when the 
permittee fails to comply with terms and conditions of the permit, the 
Shoreline Management Plan, or of this regulation. Permits for duck 
blinds and ice fishing shelters will be issued to cover a period not to 
exceed 30 days prior to and 30 days after the season.

                        4. Removal of Facilities

    Facilities not removed when specified in the permit or when 
requested after termination or revocation of the permit will be treated 
as unauthorized structures pursuant to 36 CFR 327.20.

                       5. Posting of Permit Number

    Each district will procure 5x8 or larger 
printed permit tags of light metal or plastic for posting. The permit 
display tag shall be posted on the facility and/or on the land area 
covered by the permit, so that it can be visually checked, with ease in 
accordance with instructions provided by the resource manager. 
Facilities or activities permitted under special provisions should be 
identified in a way that will set apart from other facilities or 
activities.

    Appendix B to Sec. 327.30--Application for Shoreline Use Permit 
                               [Reserved]

       Appendix C to Sec. 327.30--Shoreline Use Permit Conditions

    1. This permit is granted solely to the applicant for the purpose 
described on the attached permit.
    2. The permittee agrees to and does hereby release and agree to save 
and hold the Government harmless from any and all causes of action, 
suits at law or equity, or claims or demands or from any liability of 
any nature whatsoever for or on account of any damages to persons or 
property, including a permitted facility, growing out of the ownership, 
construction, operation or maintenance by the permittee of the permitted 
facilities and/or activities.
    3. Ownership, construction, operation, use and maintenance of a 
permitted facility are subject to the Government's navigation servitude.
    4. No attempt shall be made by the permittee to forbid the full and 
free use by the public of all public waters and/or lands at or adjacent 
to the permitted facility or to unreasonably interfere with any 
authorized project purposes, including navigation in connection with the 
ownership, construction, operation or maintenance of a permitted 
facility and/or activity.
    5. The permittee agrees that if subsequent operations by the 
Government require an alteration in the location of a permitted facility 
and/or activity or if in the opinion of the district commander a 
permitted facility and/or activity shall cause unreasonable obstruction 
to navigation or that the public interest so requires, the permittee 
shall be required, upon written notice from the district commander to 
remove, alter, or relocate the permitted facility, without expense to 
the Government.
    6. The Government shall in no case be liable for any damage or 
injury to a permitted facility which may be caused by or result from 
subsequent operations undertaken by the Government for the improvement 
of navigation or for other lawful purposes, and no claims or right to 
compensation shall accrue from any such damage. This includes any damage 
that may occur to private property if a facility is removed for 
noncompliance with the conditions of the permit.
    7. Ownership, construction, operation, use and maintenance of a 
permitted facility and/or activity are subject to all applicable 
Federal, state and local laws and regulations. Failure to abide by these 
applicable laws and regulations may be cause for revocation of the 
permit.
    8. This permit does not convey any property rights either in real 
estate or material; and does not authorize any injury to private 
property or invasion of private rights or any infringement of Federal, 
state or local laws or regulations, nor does it obviate the necessity of 
obtaining state or local assent required by law for the construction, 
operation, use or maintenance of a permitted facility and/or activity.
    9. The permittee agrees to construct the facility within the time 
limit agreed to on the permit issuance date. The permit shall become 
null and void if construction is not completed within that period. 
Further, the permittee agrees to operate and maintain any permitted 
facility and/or activity in a manner so as to provide safety, minimize

[[Page 23]]

any adverse impact on fish and wildlife habitat, natural, environmental, 
or cultural resources values and in a manner so as to minimize the 
degradation of water quality.
    10. The permittee shall remove a permitted facility within 30 days, 
at his/her expense, and restore the waterway and lands to a condition 
accepted by the resource manager upon termination or revocation of this 
permit or if the permittee ceases to use, operate or maintain a 
permitted facility and/or activity. If the permittee fails to comply to 
the satisfaction of the resource manager, the district commander may 
remove the facility by contract or otherwise and the permittee agrees to 
pay all costs incurred thereof.
    11. The use of a permitted boat dock facility shall be limited to 
the mooring of the permittee's vessel or watercraft and the storage, in 
enclosed locker facilities, of his/her gear essential to the operation 
of such vessel or watercraft.
    12. Neither a permitted facility nor any houseboat, cabin cruiser, 
or other vessel moored thereto shall be used as a place of habitation or 
as a full or part-time residence or in any manner which gives the 
appearance of converting the public property, on which the facility is 
located, to private use.
    13. Facilities granted under this permit will not be leased, rented, 
sub-let or provided to others by any means of engaging in commercial 
activity(s) by the permittee or his/her agent for monetary gain. This 
does not preclude the permittee from selling total ownership to the 
facility.
    14. Floats and the flotation material for all docks and boat mooring 
buoys shall be fabricated of materials manufactured for marine use. The 
float and its flotation material shall be 100% warranted for a minimum 
of 8 years against sinking, becoming waterlogged, cracking, peeling, 
fragmenting, or losing beads. All floats shall resist puncture and 
penetration and shall not be subject to damage by animals under normal 
conditions for the area. All floats and the flotation material used in 
them shall be fire resistant. Any float which is within 40 feet of a 
line carrying fuel shall be 100% impervious to water and fuel. The use 
of new or recycled plastic or metal drums or non-compartmentalized air 
containers for encasement or floats is prohibited. Existing floats are 
authorized until it or its flotation material is no longer serviceable, 
at which time it shall be replaced with a float that meets the 
conditions listed above. For any floats installed after the effective 
date of this specification, repair or replacement shall be required when 
it or its flotation material no longer performs its designated function 
or it fails to meet the specifications for which it was originally 
warranted.
    15. Permitted facilities and activities are subject to periodic 
inspection by authorized Corps representatives. The resource manager 
will notify the permittee of any deficiencies and together establish a 
schedule for their correction. No deviation or changes from approved 
plans will be allowed without prior written approval of the resource 
manager.
    16. Floating facilities shall be securely attached to the shore in 
accordance with the approved plans by means of moorings which do not 
obstruct general public use of the shoreline or adversely affect the 
natural terrain or vegetation. Anchoring to vegetation is prohibited.
    17. The permit display tag shall be posted on the permitted facility 
and/or on the land areas covered by the permit so that it can be 
visually checked with ease in accordance with instructions provided by 
the resource manager.
    18. No vegetation other than that prescribed in the permit will be 
damaged, destroyed or removed. No vegetation of any kind will be 
planted, other than that specifically prescribed in the permit.
    19. No change in land form such as grading, excavation or filling is 
authorized by this permit.
    20. This permit is non-transferable. Upon the sale or other transfer 
of the permitted facility or the death of the permittee and his/her 
legal spouse, this permit is null and void.
    21. By 30 days written notice, mailed to the permittee by certified 
letter, the district commander may revoke this permit whenever the 
public interest necessitates such revocation or when the permittee fails 
to comply with any permit condition or term. The revocation notice shall 
specify the reasons for such action. If the permittee requests a hearing 
in writing to the district commander through the resource manager within 
the 30-day period, the district commander shall grant such hearing at 
the earliest opportunity. In no event shall the hearing date be more 
than 60 days from the date of the hearing request. Following the 
hearing, a written decision will be rendered and a copy mailed to the 
permittee by certified letter.
    22. Notwithstanding the conditions cited in condition 21 above, if 
in the opinion of the district commander, emergency circumstances 
dictate otherwise, the district commander may summarily revoke the 
permit.
    23. When vegetation modification on these lands is accomplished by 
chemical means, the program will be in accordance with appropriate 
Federal, state and local laws, rules and regulations.
    24. The resource manager or his/her authorized representative shall 
be allowed to cross the permittee's property, as necessary to inspect 
facilities and/or activities under permit.

[[Page 24]]

    25. When vegetation modification is allowed, the permittee will 
delineate the government property line in a clear, but unobtrusive 
manner approved by the resource manager and in accordance with the 
project Shoreline Management Plan.
    26. If the ownership of a permitted facility is sold or transferred, 
the permittee or new owner will notify the Resource Manager of the 
action prior to finalization. The new owner must apply for a Shoreline 
Use Permit within 14 days or remove the facility and restore the use 
area within 30 days from the date of ownership transfer.
    27. If permitted facilities are removed for storage or extensive 
maintenance, the resource manager may require all portions of the 
facility be removed from public property.

              Appendix D to Sec. 327.30--Permit [Reserved]

[55 FR 30697, July 27, 1990, as amended at 57 FR 21895, May 26, 1992; 57 
FR 29220, July 1, 1992; 63 FR 35828, July 1, 1998]

    Effective Date Note: The amendment to Sec. 327.30 revising the last 
sentence of paragraph (k), published at 56 FR 29587, June 28, 1991, was 
deferred indefinitely. See 56 FR 49706, Oct. 1, 1991. The administrative 
charges contained in Sec. 327.30, Shoreline Management on Civil Works 
Projects, published in the July 1, 1991 edition of the Code of Federal 
Regulations will remain in effect. Any future decisions affecting this 
regulation will be published in the Federal Register at a later date by 
the Corps of Engineers, Department of the Army. For the convenience of 
the user, the rule published on June 28, 1991, at FR page 29587, is set 
forth as follows:



Sec. 327.30  Shoreline Management on Civil Works Projects.

                                * * * * *

    (k) * * * The Fee Schedule is published in Sec. 327.31.



Sec. 327.31  Shoreline management fee schedule.

    A charge will be made for Shoreline Use Permits to help defray 
expenses associated with issuance and administration of the permits. As 
permits become eligible for renewal after July 1, 1976, a charge of $10 
for each new permit and a $5 annual fee for inspection of floating 
facilities will be made. There will be no annual inspection fee for 
permits for vegetative modification on Shoreline areas. In all cases the 
total administrative charge will be collected initially at the time of 
permit issuance rather than on a piecemeal annual basis.

[56 FR 61163, Dec. 2, 1991; 56 FR 65190, Dec. 16, 1991]



PART 328_REGULATION OF SEAPLANE OPERATIONS AT CIVIL WORKS WATER RESOURCE DEVELOPMENT PROJECTS ADMINISTERED BY THE CHIEF OF ENGINEERS--Table of Contents




Sec.
328.1 Purpose.
328.2 Applicability.
328.3 References.
328.4 Policy.
328.5 Guidelines for seaplane use of project waters.
328.6 Procedures.
328.7 Other authorities.

    Authority: Sec. 4 of the Act of Dec. 22, 1944, 58 Stat. 889, as 
amended, (16 U.S.C. 460d).

    Source: 42 FR 59076, Nov. 15, 1977, unless otherwise noted.



Sec. 328.1  Purpose.

    This regulation, in connection with the modification of the present 
prohibition of seaplane operations by the amendment to Sec. 327.4 of 
title 36 of the Code of Federal Regulations, is designed to provide 
uniform policies and criteria for designating Corps projects, or 
portions thereof, at which seaplane operations are prohibited or 
restricted; and to continue to protect the integrity and all authorized 
uses of such projects and the safety of users of such projects. As used 
in this regulation, projects or Corps projects means water resources 
development projects administered by the Chief of Engineers.



Sec. 328.2  Applicability.

    This regulation is applicable to all Field Operating Agencies having 
Civil Works responsibilities.



Sec. 328.3  References.

    (a) Title 36 CFR, part 327, Rules and Regulations Governing Public 
Use of Water Resource Development Projects Administered by the Chief of 
Engineers (38 FR 7552, March 23, 1973).
    (b) ER 1105-2-507.
    (c) ER 1130-2-400.

[[Page 25]]

    (d) ER 1145-2-301.
    (e) ER 1145-2-303.
    (f) ER 1165-2-400.
    (g) ER 405-2-800 Series.



Sec. 328.4  Policy.

    (a) The objective of Corps of Engineers resources management is to 
maximize public enjoyment and use of the lands, waters, forests, and 
associated recreational resources, consistent with their aesthetic and 
biological values. Such management includes efforts to preserve and 
enhance the environmental amenities that are the source of the 
recreational value associated with the project and to allow such other 
new and innovative uses of the projects that are not detrimental 
thereto.
    (b) Seaplane operations at water resource development projects 
administered by the Chief of Engineers may involve hazards including, 
but not limited to, conflicting recreational activities, floating 
debris, and underwater hazards, which may be accentuated by the normal 
fluctutations of water levels.
    (c) Seaplane operations may be prohibited or restricted at such 
water resource development projects, or portions thereof, for a variety 
of management reasons. Prohibiting or restricting seaplane operations in 
certain portions within a project in no way implies that safety hazards 
to seaplane operations or to other recreation users may not exist in 
other portions of such project.
    (d) The operation of a seaplane at Corps projects is at the risk of 
the plane's owner, operator, and passenger(s). The responsibility to 
ascertain whether seaplane operations are permitted, prohibited or 
restricted at such projects, and portions thereof, is incumbent upon the 
person(s) contemplating the use of, or using, such waters.



Sec. 328.5  Guidelines for seaplane use of project waters.

    (a) All operations of the aircraft while upon the water shall be in 
accordance with the marine rules of the road for power boats or vessels.
    (b) Seaplanes on project waters and lands in excess of 24 hours 
shall be securely moored at mooring facilities and at locations 
permitted by the District Engineer. Seaplanes may be temporarily moored 
on project waters and lands, except in areas prohibited by the District 
Engineer, for periods less than 24 hours providing that--
    (1) The mooring is safe, secure, and accomplished so as not to 
damage the rights of the government or members of the public and
    (2) The operator remains in the vicinity of the seaplane and 
reasonably available to relocate the seaplane if necessary.
    (c) No commercial operation of seaplanes from project waters will be 
allowed without written approval of the District Engineer following 
consultation with and the necessary clearance from the Federal Aviation 
Administration (FAA) and other appropriate public authorities and 
affected interests.
    (d) Seaplanes may not be operated at Corps projects between sunset 
and sunrise unless adequate lighting and supervision are available.
    (e) Requests for public commercial facilities in support of 
seaplanes will be handled under normal concession policies.
    (f) Permits for floating and nonfloating structures of any kind, in, 
on, or affecting project waters, under the management of the Resource 
Manager, including waters under lease, license or other outgrant 
agreement, shall be handled in accordance with the lakeshore management 
plan or policy statement for the project involved, Sec. 327.19 of title 
36, Code of Federal Regulations and, where required by statute or 
regulation, section 10 of the River and Harbor Act (approved March 3, 
1899) and section 404 of the Federal Water Pollution Control Act of 1972 
(Pub. L. 92-500).
    (g) Appropriate signs should be employed to inform users of 
projects, or portions thereof, where seaplane operations are permitted.



Sec. 328.6  Procedures.

    (a) In order to protect the integrity and all authorized uses of 
Corps projects and the safety of all users of the lake projects, the 
District Engineer shall:

[[Page 26]]

    (1) Examine and investigate each Corps project within his district 
which a seaplane operator could conceivably attempt to use for seaplane 
operations, and determine those projects, or portions thereof, in which 
seaplane operations should be prohibited.
    (2) Establish such restrictions on seaplane operations as he deems 
necessary or desirable in accordance with these regulations for other 
areas. Seaplane takeoff and landing maneuvers within specified distances 
of the shoreline, bridges, causeways, water utility crossings, dams, and 
similar structures should be prohibited.
    (3) Prior to concluding any such examination and investigation, 
consult with the FAA, appropriate State aeronautical agency, lessee or 
licensee of outgranted lands, the Coast Guard, and state boating law 
administrators, and use his best efforts to consult with other 
interested or affected public authorities and private interests for 
their guidance, particularly for those projects which are regularly used 
by the public for recreational purposes or are located in the vicinity 
of actively used airports, air fields, or densely populated areas. News 
releases, public notice, and congressional liaison should be used. 
Public hearings are encouraged.
    (4) In making his investigation, examination, and determination, 
consider environmental factors in accordance with the National 
Environmental Policy Act of 1969 (NEPA), Pub. L. 91-190--particularly 
should he consider the impact that seaplane operations may have on the 
safety at the project, aquatic, fish and wildlife, noise levels, 
recreation, and air and water quality. Prior to concluding such 
investigation and examination, he shall prepare an environmental impact 
assessment (EIA) and, if necessary, an environmental impact statement 
(EIS) assessing the environmental impacts of permitting seaplanes to 
operate at the projects, or portions thereof, in his district.
    (5) Place on Corps maps, brochures and otherwise adequately apprise 
the public and interested agencies of projects, or portions thereof, 
where seaplane operations are prohibited or restricted. Each map, 
brochure, or other notice should clearly indicate that operation of a 
seaplane at Corps projects is at the risk of the plane's owner, 
operator, and/or passenger(s).
    (6) Notify the FAA by letter of projects, or portions thereof, where 
seaplane operations are prohibited or restricted. The letter should use 
the words ``seaplane operations prohibited,'' or ``seaplane operations 
restricted,'' describe the geographical location of such areas as 
precisely as possible, describe any restrictions, include a telephone 
number for FAA to contact the District, and be sent to: Federal Aviation 
Administration, Area Traffic Service, Flight Services Division (AAT-
432), 800 Independence Avenue SW., Washington, DC 20591.
    (b) The removal of the present prohibition on seaplane operations 
will be effective one year from the date of publication of these 
regulations. The District Engineer should complete the examination, 
investigation, determination and notification to the FAA of projects, or 
portions thereof, where seaplane operations are prohibited or 
restricted, within one year from the date of this regulation. The 
District Engineer may extend the present prohibition for up to one 
additional year if he cannot complete his examination, investigation, 
determination, and notification within one year. In such event, he 
should notify the FAA by letter and publish other appropriate notices. 
Any further extension of time will require the approval of the Chief of 
Engineers.
    (c) After he has completed his examination, investigation, 
determination and notification of the FAA of projects, or portions 
thereof where seaplane operations will be prohibited or restricted, The 
District Engineer should periodically reevaluate his determination as 
additional operational data becomes available. He may modify, delete, or 
add projects, or portions thereof, where seaplane operations are 
prohibited or restricted. Except where immediate action is required, he 
should consult with appropriate public authorities and private interests 
for their guidance with regard to such actions. Notification of these 
actions shall be forwarded to the FAA as indicated in paragraph (a)(6) 
of this section.

[[Page 27]]



Sec. 328.7  Other authorities.

    Nothing in the preceding provisions bestows authority to deviate 
from rules and regulations or prescribed standards of the State 
Aeronautical Agency, Federal Aviation Administration, Coast Guard, or 
other appropriate Federal, state, or local authority.



PART 330_REGULATION OF LAW ENFORCEMENT SERVICES CONTRACTS AT CIVIL WORKS WATER RESOURCE PROJECTS ADMINISTERED BY THE CHIEF OF ENGINEERS--Table of Contents




Sec.
330.1 Purpose.
330.2 Applicability.
330.3 References.
330.4 General.
330.5 Policy.
330.6 Criteria.
330.7 Funding.
330.8 Annual report.

    Authority: Sec. 120 of the Water Resource Development Act of 1976, 
90 Stat. 2917.

    Source: 42 FR 61986, Dec. 8, 1977, unless otherwise noted.



Sec. 330.1  Purpose.

    This regulation provides policy and guidance for the establishment 
and management of the contract law enforcement program including 
preparation of and management of contracts ensuing from this program.



Sec. 330.2  Applicability.

    This regulation is applicable to all field operating agencies having 
responsibilities for Civil Works water resource development projects.



Sec. 330.3  References.

    (a) Section 4 of the Flood Control Act of 1944, as amended (16 
U.S.C. 460d).
    (b) Section 234 of the River and Harbor and Flood Control Act of 
1970 (Pub. L. 91-611, 84 Stat. 1818).
    (c) Section 120 of the Water Resource Development Act of 1976 (Pub. 
L. 94-587, 90 Stat. 2917).
    (d) 36 CFR chapter III.
    (e) ER 190-2-3.
    (f) ER 190-3-4.



Sec. 330.4  General.

    (a) Section 120(a) of reference Sec. 330.3(c) authorizes the 
Secretary of the Army, acting through the Chief of Engineers, to 
contract with States and their political subdivisions for the purpose of 
obtaining increased law enforcement services at water resource 
development projects under the jurisdiction of the Secretary of the Army 
to meet needs during peak visitation periods.
    (b) Further, section 120(b) of the Act authorizes a maximum 
appropriation of up to $6,000,000 per fiscal year for the fiscal years 
ending 30 September 1978 and 30 September 1979, to carry out section 
120(a).



Sec. 330.5  Policy.

    (a) It is the policy of the Corps of Engineers to provide, to the 
extent of its authorities, a safe and healthful environment for public 
use of lands and waters at Civil Works water resource development 
projects. To insure this safe and healthful environment, and to augment 
the citation authorities granted to the Corps of Engineers by reference 
Sec. 330.3(b), District Engineers, subject to the authority of the 
Division Engineers, as set out below, are hereby delegated the authority 
to contract with States or their political subdivisions to obtain 
increased law enforcement services at Civil Works water resource 
development projects. Division Engineers are hereby delegated the 
authority to approve any minor deviations from this regulation except 
that any substantial deviations from the policies expressed within this 
regulation will require the prior approval of the Chief of Engineers or 
his authorized representative. Any required approval for deviation shall 
be made prior to the execution of the contract. When fiscal year 1978 
and fiscal year 1979 work allowances are issued, instructions will be 
furnished on reporting requirements and the control of expenditures.
    (b) Contracts for law enforcement services, as authorized in Sec. 
330.5(a), shall be subject to the terms and conditions as provided for 
within this regulation and in accordance with standard contracting and 
accounting procedures applicable to the Corps of Engineers.

[[Page 28]]

    (c) This regulation is not intended to diminish or otherwise limit 
the existing law enforcement responsibilities of the State or local law 
enforcement agencies.
    (d) Contract law enforcement personnel shall not be given Federal 
citation authority for enforcement of regulations contained in title 36 
of the Code of Federal Regulations, Chapter III nor shall they be 
empowered to enforce such regulations. These regulations shall remain 
the responsibility of the Corps of Engineers.
    (e) Contracts for increased law enforcement shall be for those 
projects or portions of projects that are operated and maintained by the 
Corps of Engineers. Law enforcement services will not be provided under 
this program to those outgrant areas operated and maintained by a non-
Federal sponsor.



Sec. 330.6  Criteria.

    (a) In order to provide reimbursement for law enforcement services 
supplied by a State or local law enforcement agency, a contract must be 
executed and approved in accordance with this regulation prior to the 
provisions of such services.
    (b) The authorized contract law enforcement program extends only to 
30 September 1979. Law enforcement services acquired by contract under 
this program shall be limited to those increased law enforcement 
services required to meet the needs of the public during peak visitation 
periods. Accordingly, the contract period shall not extend beyond the 
dates of 1 April through 30 September inclusive, and in no event shall 
the contract be written for more than 120 days within that time period. 
The contract may provide for an option to renew for a similar, 
additional period not to exceed 120-day period in Fiscal Year 1979. Any 
exceptions to this criteria must be approved by the Chief of Engineers 
or his authorized representative.
    (c) Contracts shall be consummated only with those public law 
enforcement agencies legally empowered to enforce State and local 
criminal and civil laws within their respective political jurisdictions. 
In light of this requirement and the authority cited in Sec. 330.3(c), 
it is recognized that sole source negotiations may necessarily be 
utilized in the procurement of these services. In negotiating law 
enforcement contracts with these agencies the District Engineer must 
determine the reasonableness of the price for the law enforcement 
services offered under the contract. Such a determination shall be made 
prior to execution of the contract, in accordance with the applicable 
Contract Cost Principles and Procedures as set out in ASPR, section 15, 
part 7, and as subject to the policies contained in this regulation. 
Such a determination shall be contained in the official contract file 
and must accompany any requests for deviations from the Division 
Engineer or Chief of Engineers as provided for in Sec. 330.5(a) of this 
regulation. Contract law enforcement personnel must meet all the 
qualifications, including minimal law enforcement training, required by 
State and local laws and regulations.
    (d) The contractor shall provide all personnel, equipment and 
supplies which are required to provide the increased law enforcement 
services contracted for by the District Engineer. The Corps of Engineers 
shall not reimburse the contractor for the purchase of any equipment or 
supplies desired by the contractor for use under this program. However, 
the Corps of Engineers shall reimburse the contractor for the reasonable 
costs incurred by him in the rental or use of such equipment which is 
allocated to the work performed by him under the contract. Such use 
shall include:
    (1) A depreciation or use allowance for such equipment as determined 
by the service life evaluation system used by the contractor, and (2) 
the costs of necessary maintenance, repair, and upkeep of the property 
which neither adds to the permanent value of the property nor 
appreciably prolongs its intended life, but keeps it at an efficient 
operating condition.
    (e) Reimbursement for law enforcement services shall be considered 
only for increased law enforcement services to meet needs during peak 
visitation periods. Each District Engineer shall evaluate and establish 
a normal law enforcement service standard for each contract situation 
and include such standard in the plan of operation to be

[[Page 29]]

developed in accordance with Sec. 330.6(h). Each District Engineer 
shall evaluate the existing law enforcement services now being provided 
by State or local law enforcement agencies at those water resources 
projects or recreation areas where it is anticipated that law 
enforcement service contracts may be executed, and determine the scope 
including the type and amount, of law enforcement service which exceeds 
the normal law enforcement standard, and which will become eligible for 
reimbursement under the contract. Normally, requests by the District 
Engineer or his authorized representative for emergency or unanticipated 
law enforcement assistance will be considered nonreimbursable. Increased 
law enforcement services, eligible for reimbursement under the terms of 
the contract, shall be those regularly scheduled patrols or surveillance 
in excess of the normal law enforcement standard presently being 
provided by the contractor.
    (f) An appropriate orientation program will be given by Corps 
personnel to all contract law enforcement personnel assigned to Corps 
projects. The purpose of this orientation will be to familiarize the 
contract law enforcement personnel with the policies and procedures of 
the Corps of Engineers, and to familiarize Corps personnel with the 
functions and duties of the State or local law enforcement agency. The 
Corps of Engineers shall reimburse the contractor for the cost per man 
hour as set out in Sec. 330.6(h)(4) for attending the orientation 
program.
    (g) The contractor shall be required to keep a record of the 
services provided to the District under the terms and conditions of the 
contract in accordance with the criteria established in the plan of 
operation required in Sec. 330.6(h).
    (h) The District Engineer, in cooperation with the Contractor, shall 
prepare a Plan of Operation for the Provision of law enforcement 
services as an attachment to the contract. The Plan of Operation shall 
contain, but not necessarily be limited to, the following information:
    (1) Identify, by name and location, the project or projects and 
specific areas (recreation and others) that require law enforcement 
services.
    (2) Describe the normal law enforcement services to be provided by 
the Contractor without reimbursement by the Government (see Sec. 
330.6(e)). Identify time of day, number of hours-per-day number of days-
per-week, and the number of patrols.
    (3) Describe the increased law enforcement services to be provided 
by the Contractor under the contract. Identify the time-of-day, number 
of hours-per-day, number of days-per-week, number of patrols, manpower 
per patrol, and effective starting and ending dates.
    (4) Identify the cost-per-man-hour for the provision of reimbursable 
law enforcement services, and identify the costs for utilization and 
operation, maintenance and repair of such equipment as allocated for use 
under the contract. (See Sec. 330.6(d).)
    (5) The District Engineer and the Contractor should designate 
specific individuals to issue or receive requests for reimbursable law 
enforcement services under the contract.
    (6) Describe the billing procedures to be utilized for the increased 
law enforcement services. The Contractor shall provide, at a minimum, 
the total charges, the number of hours involved, and starting and ending 
dates of the billing period.
    (7) The Contractor shall prepare a Daily Law Enforcement Log (see 
Sec. 330.6(g) for the law enforcement services rendered as specified in 
Sec. 330.6(h)(3)). These logs shall be compiled by the Contractor and 
submitted to the District Engineer or his designated representative on a 
regular basis throughout the life of the contract. It is intended by 
this reporting requirement to minimize the paperwork burden on behalf of 
the Contractor while, at the same time, providing assurance to the 
Government with an adequate information base on which to administer the 
law enforcement services being provided under the contract. Any 
requirement for additional information to be contained in these reports 
due to unique or special circumstances encountered in negotiating a Plan 
of Operation with a particular law enforcement jurisdiction

[[Page 30]]

must receive the prior approval of the Division Engineer.



Sec. 330.7  Funding.

    (a) Section 330.3(c) sets forth the maximum authorized funds for law 
enforcement contracting in FY 1978 and FY 1979. The Division funding 
levels for FY 1978 are based on information as previously submitted.
    (b) The FY 1979 funding request for law enforcement contracting will 
be submitted as part of the FY 1979 budget submittal.



Sec. 330.8  Annual report.

    (RCS-DAEN-CWO-53) The Division Engineer will submit a consolidated 
annual report to reach HQDA (DAEN-CWO-R) WASH DC 20314 not later than 30 
October. This requirement expires 30 October 1979. The report will 
contain the following:
    (a) Districts reporting.
    (b) Number assigned each contract.
    (c) Name of projects covered under each contract.
    (d) Number of man-hours of increased law enforcement services 
provided under each contract.
    (e) Total contract cost.
    (f) Cost per man-hour for each contract.
    (g) Corps of Engineers administrative or overhead costs associated 
with each contract.
    (h) Number of arrests and type of offense committed, i.e., assault, 
burglary, auto theft, etc.
    (i) The Division Engineers assessment of the effects of the contract 
law enforcement program and recommendation.



PART 331_REGULATIONS GOVERNING THE PROTECTION, USE AND MANAGEMENT OF THE FALLS OF THE OHIO NATIONAL WILDLIFE CONSERVATION AREA, KENTUCKY AND INDIANA--Table of Contents




Sec.
331.1 Applicability and scope.
331.2 Policy.
331.3 Hunting and trapping.
331.4 Fishing.
331.5 Explosives and fireworks.
331.6 Public property.
331.7 Sanitation.
331.8 Picnicking.
331.9 Camping.
331.10 Swimming.
331.11 Special events.
331.12 Vehicles.
331.13 Vessels.
331.14 Aircraft.
331.15 Fires.
331.16 Interference with government employees.
331.17 Minerals.
331.18 Restrictions.
331.19 Commercial activities.
331.20 Advertisement.
331.21 Unauthorized structures.
331.22 Abandonment of personal property.
331.23 Control of animals.
331.24 Permits.
331.25 Violation of regulations.

    Authority: Pub. L. 97-137.

    Source: 48 FR 40720, Sept. 9, 1983, unless otherwise noted.



Sec. 331.1  Applicability and scope.

    (a) The regulations contained in this part apply to those lands and 
waters within the established boundary of the Falls of the Ohio National 
Wildlife Conservation Area (WCA). Included in this boundary, which was 
published in the Federal Register of August 12, 1982, are publicly and 
privately owned lands, waters and improvements. The Federal Government, 
acting through the Corps of Engineers, will acquire such rights to 
privately-owned properties in the WCA as are necessary to carry out the 
purposes of title II, Pub. L. 97-137. The regulations prescribed herein 
are for the use, management and protection of the resources of the WCA 
and all persons entering, using or visiting within the boundaries of the 
WCA are subject to these regulations. All other applicable Federal, 
State and local laws and regulations remain in full force and effect. 
The District Engineer, US Army Corps of Engineers, exercises non-
exclusive jurisdiction over the lands and waters of the WCA and enforces 
these regulations.
    (b) The WCA boundary encompasses an existing hydroelectric 
generating station and the McAlpine Locks and Dam, operating navigation 
structures which are part of the authorized Ohio River Navigation 
System. The continued operation and maintenance of this

[[Page 31]]

system take precedence over the purposes of the WCA, except that such 
operation and maintenance will be consistent with the basic purpose of 
the WCA as regards prohibition of hunting, vandalism, and dumping of 
refuse. Management of the WCA to achieve its intended purposes will, to 
the extent practicable, be accomplished in a manner consistent and 
compatible with continued generation of electricity and navigation on 
the Ohio River, including operation and maintenance of the McAlpine 
Locks and Dam and the Louisville Repair Station and material storage 
areas located on Shippingport Island.



Sec. 331.2  Policy.

    (a) It is the policy of the Secretary of the Army, acting through 
the Chief of Engineers, to manage the natural and cultural resources of 
the WCA in the public interest, providing the public with safe and 
healthful recreational opportunities while protecting and enhancing 
these resources.
    (b) Unless otherwise indicated herein, the term District Engineer 
shall include the authorized representatives of the District Engineer.
    (c) The WCA shall be available to the public without regard to sex, 
race, color, creed or national origin. No lessee, licensee or 
concessionaire providing a service to the public shall discriminate 
against any person because of sex, race, creed, color, or national 
origin in the conduct of the operations under the lease, license, or 
concession contract.



Sec. 331.3  Hunting and trapping.

    Unless authorized in writing by the District Engineer:
    (a) The hunting, trapping, catching, molesting, killing, or having 
in possession any wild animal or bird, or taking the eggs of any such 
bird, is prohibited.
    (b) Possession of equipment (including, but not limited to, 
firearms, ammunition, traps, projectile firing devices including bow and 
arrow) which could be used for hunting, trapping, or the taking of 
wildlife, is prohibited.



Sec. 331.4  Fishing.

    Unless otherwise authorized in writing by the District Engineer:
    (a) Fishing is only permitted in accordance with the laws and 
regulations of the State within whose exterior boundaries that portion 
of the WCA is located, and such laws and regulations which are now or 
may hereafter be in effect are hereby adopted as part of these 
regulations.
    (b) Fishing by means of the use of drugs, poisons, explosives, bow 
and arrow or electricity is prohibited.
    (c) Commercial fishing and fishing with gill nets, trammel nets, 
hoop nets, bow and arrow or trot lines is prohibited.



Sec. 331.5  Explosives and fireworks.

    Unless otherwise authorized in writing by the District Engineer.
    (a) The possession or use of fireworks is prohibited.
    (b) The possession or use of explosives is prohibited.



Sec. 331.6  Public property.

    Unless otherwise authorized in writing by the District Engineer, the 
destruction, injury, defacement, removal, or any alteration of public 
property including, but not limited to natural formations, 
paleontological features, historical and archaeological features and 
vegetative growth is prohibited. Any such destruction, removal, or 
alteration of public property shall be in accordance with the conditions 
of any permission granted.



Sec. 331.7  Sanitation.

    (a) Garbage, trash, rubbish, litter, or any other waste material or 
waste liquid generated on the WCA shall be removed from the area or 
deposited in receptacles provided for that purpose. The improper 
disposal of such wastes within the boundaries of the WCA is prohibited.
    (b) The use of refuse containers for the disposal of refuse not 
generated on the WCA is prohibited.
    (c) It is a violation to bring any material onto the WCA for the 
purpose of disposal.
    (d) The discharge or placing of sewage, galley waste, garbage, 
refuse or pollutants into the WCA waters from any vessel or watercraft 
is prohibited.

[[Page 32]]



Sec. 331.8  Picnicking.

    (a) Picnicking is permitted only in designated areas.
    (b) Picnickers shall remove all personal equipment and clean their 
sites upon departure.



Sec. 331.9  Camping.

    Camping is not permitted within the WCA.



Sec. 331.10  Swimming.

    Swimming is prohibited unless authorized in writing by the District 
Engineer.



Sec. 331.11  Special events.

    (a) Special events including, but not limited to, water carnivals, 
boat regattas, music festivals, dramatic presentations, or other special 
recreation programs are prohibited unless written permission has been 
granted by the District Engineer.
    (b) The public shall not be charged any fee by the sponsor of such 
permitted event unless the District Engineer has approved in writing the 
proposed schedule of fees. The District Engineer shall have authority to 
revoke permission and require removal of any equipment upon failure of 
the sponsor to comply with terms and conditions of the permit/
permission. Any violation shall constitute a separate violation for each 
calendar day in which it occurs.



Sec. 331.12  Vehicles.

    (a) The use of a vehicle off roadways is prohibited except as may be 
authorized by the District Engineer.
    (b) Vehicles shall not be parked in violation of any posted 
restriction, or in such a manner as to endanger any Federal property to 
include natural features. The owner of any vehicle parked in violation 
of this section shall be presumed to have parked it, and unless rebutted 
such presumption will be sufficient to sustain a conviction as provided 
for in Sec. 331.25.
    (c) Vehicles shall be operated in accordance with all posted 
regulations.
    (d) Driving or operating any vehicle in a careless, negligent, or 
reckless manner, heedlessly or in willful disregard for the safety of 
other persons, or in such manner as to endanger any property or 
environmental feature, or without due care or at a speed greater than is 
reasonable and prudent under prevailing conditions with regard to 
traffic, weather, road, light and surface conditions, is prohibited.
    (e) This section pertains to all vehicles, including, but not 
limited to, automobiles, trucks, motorcycles, minibikes, trail bikes, 
snowmobiles, dune buggies, all terrain vehicles, bicycles, trailers, 
campers, or any other such equipment.
    (f) Except as authorized by the District Engineer, no person shall 
operate any motorized vehicle without a proper and effective exhaust 
muffler, or with an exhaust muffler cutout open, or in any other manner 
which renders the exhaust muffler ineffective in muffling the sound of 
engine exhaust.



Sec. 331.13  Vessels.

    (a) Vessels or other watercraft may be operated in the WCA waters 
except in prohibited or restricted areas in accordance with posted 
regulations and applicable Federal, State and local laws.
    (b) All vessels when not in actual use shall be removed from the WCA 
unless securely moored at mooring facilities approved by the District 
Engineer. The placing of floating or stationary mooring facilities to, 
or interfering with, a buoy, channel marker, or other navigational aid 
is prohibited.
    (c) The operation of vessels or other watercraft in a careless, 
negligent, or reckless manner so as to endanger any property (including 
the operator and/or user(s) of the vessel or watercraft) is prohibited.



Sec. 331.14  Aircraft.

    (a) The operation of aircraft on WCA lands and waters is prohibited, 
unless authorized in writing by the District Engineer.
    (b) Except in extreme emergencies threatening human life or serious 
property loss, the air delivery of any person or thing by parachute, 
helicopter, or other means onto project lands or waters without written 
permission of the District Engineer is prohibited.

[[Page 33]]

    (c) The provisions of this section shall not be applicable to 
aircraft engaged on official business of the Federal Government or used 
in emergency rescue in accordance with the directions of the District 
Engineer.



Sec. 331.15  Fires.

    Open fires are prohibited unless confined to fireplaces, grills, or 
other facilities designed for this purpose as designated by the District 
Engineer. Fires shall not be left unattended and must be completely 
extinguished prior to departure.



Sec. 331.16  Interference with government employees.

    Interference with any Government employee in the conduct of his or 
her official duties pertaining to the administration of these 
regulations is prohibited. It is a violation to fail to comply with a 
lawful order directed by any Government employee or to knowingly give 
any false, fictitious, or fraudulent report or other information to any 
government employee in the performance of his or her official duties 
pertaining to the administration of these regulations.



Sec. 331.17  Minerals.

    All activities in connection with prospecting, exploration, 
development, mining or other removal or the processing of mineral 
resources and all uses reasonably incident thereto are prohibited.



Sec. 331.18  Restrictions.

    The District Engineer may establish and post a schedule of visiting 
hours and/or restrictions on the public use of a portion or portions of 
the WCA. The District Engineer may close or restrict the use of the WCA 
or portion of the WCA when necessitated by reason of public health, 
public safety, security, maintenance, or other reasons in the public 
interest. Entering or using the project in a manner which is contrary to 
the schedule of visiting hours, closure or restrictions is prohibited.



Sec. 331.19  Commercial activities.

    Unless otherwise authorized in writing by the District Engineer, the 
engaging in or solicitation of business or money is prohibited.



Sec. 331.20  Advertisement.

    Unless otherwise authorized in writing by the District Engineer, 
advertising by the use of billboards, signs, markers, audio devices, or 
any other means whatsoever including handbills, circulars, and posters 
is prohibited. Vessels or vehicles with semipermanent or permanently 
installed signs are exempt if being used for authorized recreational 
activities or special events and in compliance with all other rules and 
regulations pertaining to vessels and vehicles.



Sec. 331.21  Unauthorized structures.

    The construction, placing, or continued existence of any structure 
of any kind under, upon, in, or over WCA lands or waters is prohibited 
unless a permit, lease, license, or other appropriate written agreement 
therefor has been issued by the District Engineer. Structures not so 
authorized are subject to summary removal or impoundment by the District 
Engineer. The design, construction, placing, existence, or use of 
structures in violation of the terms of the permit, lease, license, or 
other written agreement therefor is prohibited.



Sec. 331.22  Abandonment of personal property.

    (a) Personal property of any kind left unattended upon WCA lands or 
waters for a period of 24 hours shall be considered abandoned and may be 
impounded and stored at a storage point designated by the District 
Engineer who may assess a reasonable impoundment fee. Such fee shall be 
paid before the impounded property is returned to its owner.
    (b) If abandoned property is not claimed by its owner within 3 
months after the date it is received at the storage point designated by 
the District Engineer, it may be disposed of by public or private sale 
or by other means determined by the District Engineer. Any net proceeds 
from the sale of property shall be conveyed unto the Treasury of the 
United States as miscellaneous receipts.

[[Page 34]]



Sec. 331.23  Control of animals.

    (a) No person shall bring or allow horses, cattle, or other 
livestock in the WCA.
    (b) No person shall bring dogs, cats, or other pets into the WCA 
unless penned, caged, or on a leash under 6 feet in length, or otherwise 
under physical restraint at all times. Unclaimed or unattended animals 
are subject to immediate impoundment and removal in accordance with 
State and local laws.



Sec. 331.24  Permits.

    It shall be a violation of these regulations to refuse to or fail to 
comply with the terms or conditions of any permit isued by the District 
Engineer.



Sec. 331.25  Violation of regulations.

    Anyone violating the provisions of this regulation shall be subject 
to a fine of not more than $500 or imprisonment for not more than 6 
months, or both. All persons designated by the Chief of Engineers, U.S. 
Army Corps of Engineers, for that purpose shall have the authority to 
issue a citation for the violation of these regulations, requiring the 
appearance of any person charged with violation to appear before the 
U.S. Magistrate within whose jurisdiction the violation occurred.

                        PARTS 332	399 [RESERVED]

[[Page 35]]



            CHAPTER IV--AMERICAN BATTLE MONUMENTS COMMISSION




  --------------------------------------------------------------------
Part                                                                Page
400             Employee responsibilities and conduct.......          37
401             Monuments and memorials.....................          37
402-403

[Reserved]

404             Procedures and guidelines for compliance 
                    with the Freedom of Information Act.....          39
406             Enforcement of nondiscrimination on the 
                    basis of handicap in programs or 
                    activities conducted by American Battle 
                    Monuments Commission....................          45
407-499

[Reserved]

[[Page 37]]



PART 400_EMPLOYEE RESPONSIBILITIES AND CONDUCT--Table of Contents




    Authority: 5 U.S.C. 7301; 36 U.S.C. 2103.



Sec. 400.1  Cross-references to employees' ethical conduct standards, financial disclosure regulations and other conduct rules.

    Employees of the American Battle Monuments Commission are subject to 
the executive branch-wide standards of ethical conduct and financial 
disclosure regulations at 5 CFR parts 2634 and 2635 as well as the 
executive branch-wide employee responsibilities and conduct regulations 
at 5 CFR part 735.

[69 FR 17929, Apr. 6, 2004]



PART 401_MONUMENTS AND MEMORIALS--Table of Contents




Sec.
401.1 Purpose.
401.2 Applicability and scope.
401.3 Background.
401.4 Responsibility.
401.5 Control and supervision of materials, design, and building.
401.6 Approval by National Commission of Fine Arts.
401.7 Cooperation with other than government entities.
401.8 Requirement for Commission approval.
401.9 Evaluation criteria.
401.10 Monument Trust Fund Program.
401.11 Demolition criteria.

    Authority: 36 U.S.C 2105; 36 U.S.C. 2106

    Source: 70 FR 32490, June 3, 2005, unless otherwise noted.



Sec. 401.1  Purpose.

    This part provides guidance on the execution of the responsibilities 
given by Congress to the American Battle Monuments Commission 
(Commission) regarding memorials and monuments commemorating the service 
of American Armed Forces at locations outside the United States.



Sec. 401.2  Applicability and scope.

    This part applies to all agencies of the United States Government, 
State and local governments of the United States and all American 
citizens, and private and public American organizations that have 
established or plan to establish any permanent memorial commemorating 
the service of American Armed Forces at a location outside the United 
States. This chapter does not address temporary monuments, plaques and 
other elements that deployed American Armed Forces wish to erect at a 
facility occupied by them outside the United States. Approval of any 
such temporary monument, plaque or other element is a matter to be 
determined by the concerned component of the Department of Defense 
consistent with host nation law and any other constraints applicable to 
the presence of American Armed Forces at the overseas location.



Sec. 401.3  Background.

    Following World War I many American individuals, organizations and 
governmental entities sought to create memorials in Europe commemorating 
the service of American Armed Forces that participated in that war. 
Frequently such well-intended efforts were undertaken without adequate 
regard for many issues including host nation approvals, design adequacy, 
and funding for perpetual maintenance. As a result, in 1923 Congress 
created the American Battle Monuments Commission to generally oversee 
all memorials created by Americans or American entities to commemorate 
the service of American Armed Forces at locations outside the United 
States.



Sec. 401.4  Responsibility.

    The Commission is responsible for building and maintaining 
appropriate memorials commemorating the service of American Armed Forces 
at any place outside the United States where Armed Forces have served 
since April 6, 1917.



Sec. 401.5  Control and supervision of materials, design, and building.

    The Commission controls the design and prescribes regulations for 
the building of all memorial monuments and buildings commemorating the 
service of American Armed Forces that are built in a foreign country or 
political division of the foreign country that authorizes the Commission 
to carry out those duties and powers.

[[Page 38]]



Sec. 401.6  Approval by National Commission of Fine Arts.

    A design for a memorial to be constructed at the expense of the 
United States Government must be approved by the National Commission of 
Fine Arts before the Commission can accept it.



Sec. 401.7  Cooperation with other than Government entities.

    The Commission has the discretion to cooperate with citizens of the 
United States, States, municipalities, or associations desiring to build 
war memorials outside the United States.



Sec. 401.8  Requirement for Commission approval.

    No administrative agency of the United States Government may give 
assistance to build a memorial unless the plan for the memorial has been 
approved by the Commission. In deciding whether to approve a memorial 
request the Commission will apply the criteria set forth in Sec. 401.9.



Sec. 401.9  Evaluation criteria.

    Commission consideration of a request to approve a memorial will 
include, but not be limited to, evaluation of following criteria:

------------------------------------------------------------------------
             Criteria                            Discussion
------------------------------------------------------------------------
(a) How long has it been since the  Requests made during or immediately
 events to be honored took place?    after an event are not generally
                                     subject to approval. The Commission
                                     will not approve a memorial until
                                     at least 10 years after the
                                     officially designated end of the
                                     event. It should be noted that this
                                     is the same period of time made
                                     applicable to the establishment of
                                     memorials in the District of
                                     Columbia and its environs by the
                                     Commemorative Works Act.
(b) How will the perpetual          Available adequate funding or other
 maintenance of the memorial be      specific arrangements addressing
 funded?                             perpetual care are a prerequisite
                                     to any approval.
(c) Has the host nation consented?  Host nation approval is required.
(d) Is an overseas site             In many circumstances a memorial
 appropriate for the proposed        located within the United States
 permanent memorial?                 will be more appropriate.
(e) Is the proposed memorial        Memorials to elements smaller than a
 intended to honor an individual     division or comparable unit or to
 or small unit?                      an individual will not be approved
                                     unless the services of such unit or
                                     individual clearly were of such
                                     distinguished character as to
                                     warrant a separate memorial.
(f) Is the memorial historically    Representations should be supported
 accurate?                           by objective authorities.
(g) Is the proposed memorial        As a general rule, memorials should
 intended to honor an                be erected to organizations rather
 organizational element of the       than to troops from a particular
 American Armed Forces rather than   locality of the United States.
 soldiers from a geographical area
 of the United States?
(h) Does the contribution of the    The commemoration should normally be
 element to be honored warrant a     through a memorial that would have
 separate memorial?                  the affect of honoring all of the
                                     American Armed Forces personnel who
                                     participated rather than a select
                                     segment of the organizational
                                     participants.
------------------------------------------------------------------------



Sec. 401.10  Monument Trust Fund Program.

    Pursuant to the provisions of 36 U.S.C. 2106(d), the Commission 
operates a Monument Trust Fund Program (MTFP) in countries where there 
is a Commission presence. Under the MTFP, the Commission may assume both 
the sponsor's legal interests in the monument and responsibility for its 
maintenance. To be accepted in the Monument Trust Fund Program, an 
organization must develop an acceptable maintenance plan and transfer 
sufficient monies to the Commission to fully fund the maintenance plan 
for at least 30 years. to The Commission will put this money into a 
trust fund of United States Treasury instruments that earn interest. 
Prior to acceptance into the MTFP, the sponsor must perform any deferred 
maintenance necessary to bring the monument up to a mutually agreeable 
standard. At that time, the Commission may assume the sponsoring 
organization's interest in the property and responsibility for all 
maintenance and other decisions concerning the monument. Once accepted 
into the program, the Commission will provide for all necessary 
maintenance of the monument and charge the cost to the trust fund. to 
The sponsoring organization or others interested in the monument may add 
to the trust fund at any time to insure that adequate funds remain 
available. to The Commission will maintain the monument

[[Page 39]]

for as long a period as the trust fund account permits.



Sec. 401.11  Demolition criteria.

    As authorized by the provisions of 36 U.S.C. 2106(e), the Commission 
may take necessary action to demolish any war memorial built outside the 
United States by a citizen of the United States, a State, a political 
subdivision of a State, a governmental authority (except a department, 
agency, or instrumentality of the United States Government), a foreign 
agency, or a private association and to dispose of the site of the 
memorial in a way the Commission decides is proper, if--
    (a) The appropriate foreign authorities agree to the demolition; and
    (b)(1) The sponsor of the memorial consents to the demolition; or
    (2) The memorial has fallen into disrepair and a reasonable effort 
by the Commission has failed--
    (i) To persuade the sponsor to maintain the memorial at a standard 
acceptable to the Commission; or
    (ii) To locate the sponsor.

                        PARTS 402	403 [RESERVED]



PART 404_PROCEDURES AND GUIDELINES FOR COMPLIANCE WITH THE FREEDOM OF INFORMATION ACT--Table of Contents




Sec.
404.1 General.
404.2 Authority and functions.
404.3 Organization.
404.4 Access to information.
404.5 Inspection and copying.
404.6 Definitions.
404.7 Fees to be charged--general.
404.8 Fees to be charged--categories of requesters.
404.9 Miscellaneous fee provisions.
404.10 Waiver or reduction of charges.

    Authority: 5 U.S.C. 552.

    Source: 68 FR 8826, Feb. 26, 2003, unless otherwise noted.



Sec. 404.1  General.

    This information is furnished for the guidance of the public and in 
compliance with the requirements of section 552 of Title 5, United 
States Code, as amended.



Sec. 404.2  Authority and functions.

    The general functions of the American Battle Monuments Commission, 
as provided by statute, 36 U.S.C. Section 2101, et seq., are to build 
and maintain suitable memorials commemorating the service of American 
Armed Forces and to maintain permanent American military cemeteries in 
foreign countries.



Sec. 404.3  Organization.

    (a) The brief description of the central organization of the 
American Battle Monuments Commission follows:
    (1) The Commission is composed of not more than 11 members appointed 
by the President.
    (2) The day to day operation of the Commission is under the 
direction of a Secretary appointed by the President.
    (3) Principal Officials include the Executive Director, Director of 
Finance, Director of Procurement and Contracting, Director of 
Engineering, Maintenance, and Operations and Director of Personnel and 
Administration.
    (4) The Commission also creates temporary offices when tasked with 
major additional responsibilities not of a permanent nature.
    (b) Locations. (1) The principal offices of the American Battle 
Monuments Commission are located at Courthouse Plaza II, Suite 500, 2300 
Clarendon Boulevard, Arlington, VA 22201. Persons desiring to visit 
offices or employees of the American Battle Monuments Commission should 
write or telephone ahead (703-696-6897 or 703-696-6895) to make an 
appointment.
    (2) Field offices are located in Paris, France; Rome, Italy; Manila, 
Republic of the Philippines; the Republic of Panama; and Mexico City, 
Mexico.



Sec. 404.4  Access to information.

    (a) The American Battle Monuments Commission makes available 
information pertaining to Commission matters within the scope of 5 
U.S.C. 552(a)(2) by publishing them electronically at the ABMC home page 
at http://www.abmc.gov.
    (b) The ABMC FOIA Officer is responsible for acting on all initial 
requests. Individuals wishing to file a request under the Freedom of 
Information Act

[[Page 40]]

(FOIA) should address their request in writing to the FOIA Officer, 
American Battle Monuments Commission, Courthouse Plaza II, Suite 500, 
2300 Clarendon Boulevard, Arlington, VA 22201 (telephone 703-696-6897 or 
703-696-6895). Requests for information shall be as specific as 
possible.
    (c) Upon receipt of any request for information or records, the FOIA 
Officer will determine within 20 days (excepting Saturdays, Sundays and 
legal public holidays) after the receipt of such request whether it is 
appropriate to grant the request and will immediately provide written 
notification to the person making the request. If the request is denied, 
the written notification to the person making the request shall include 
the names of the individuals who participated in the determination, the 
reasons for the denial, and a notice that an appeal may be lodged within 
the American Battle Monuments Commission. (Receipt of a request as used 
herein means the date the request is received in the office of the FOIA 
Officer.)
    (d) Expedited processing. (1) Requests and appeals will be taken out 
of order and given expedited treatment whenever it is determined that 
they involve:
    (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 
federal government activity, if 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 government's integrity which 
effect 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.
    (3) A requester who seeks expedited processing must submit a 
statement, certified to be true and correct to the best of that person's 
knowledge and belief, explaining in detail the basis for requesting 
expedited processing. For example, a requester within the category 
described in paragraph (d)(1)(ii) of this section, if not a full-time 
member of the news media, must establish that he or she is a person 
whose main professional activity or occupation is information 
dissemination, though it need not be his or her sole occupation. A 
requester within the category (d)(1)(ii) of this section also must 
establish a particular urgency to inform the public about the government 
activity involved in the request, beyond the public's right to know 
about government activity generally. The formality of certification may 
be waived as a matter of administrative discretion.
    (4) Within 10 days of its receipt of a request for expedited 
processing, ABMC will decide whether to grant it and will notify the 
requester of the decision. If a request for expedited treatment is 
granted, the request will be given priority and will be processed as 
soon as practicable. If a request for expedited processing is denied, 
any appeal of that decision will be acted on expeditiously.
    (e) Appeals shall be set forth in writing within 30 days of receipt 
of a denial and addressed to the FOIA Officer at the address specified 
in paragraph (b) of this section. The appeal shall include a statement 
explaining the basis for the appeal. Determinations of appeals will be 
set forth in writing and signed by the Executive Director, or his 
designee, within 20 days (excepting Saturdays, Sundays, and legal public 
holidays). If, on appeal, the denial is in whole or in part upheld, the 
written determination will also contain a notification of the provisions 
for judicial review and the names of the persons who participated in the 
determination.
    (f) In unusual circumstances, the time limits prescribed in 
paragraphs (c) and (e) of this section may be extended for not more than 
10 days (excepting Saturdays, Sundays, or legal public holidays). 
Extensions may be granted by the FOIA Officer. The extension period may 
be split between the initial request and the appeal but in no instance 
may the total period exceed 10 working days. Extensions will be by 
written notice to the persons making the request and will set forth the 
reasons for the extension and the date the determination is expected.

[[Page 41]]

    (g) With respect to a request for which a written notice under 
paragraph (f) of this section extends the time limits prescribed under 
paragraph (c) of this section, the agency shall notify the person making 
the request if the request cannot be processed within the time limit 
specified in paragraph (f) of this section and shall provide the person 
an opportunity to limit the scope of the request so that it may be 
processed within that time limit or an opportunity to arrange with the 
agency an alternative time frame for processing the request or a 
modified request. Refusal by the person to reasonably modify the request 
or arrange such an alternative time frame shall be considered as a 
factor in determining whether exceptional circumstances exist for 
purposes of 5 U.S.C. 552(a)(6)(C). When ABMC reasonably believes that a 
requester, or a group of requestors acting in concert, has submitted 
requests that constitute a single request, involving clearly related 
matters, ABMC may aggregate those requests for purposes of this 
paragraph. One element to be considered in determining whether a belief 
would be reasonable is the time period over which the requests have 
occurred.
    (h) As used herein, but only to the extent reasonably necessary to 
the proper processing of the particular request, the term unusual 
circumstances means:
    (1) The need to search for and collect the requested records from 
establishments that are separated from the office processing the 
request;
    (2) 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
    (3) The need for consultation, which shall be conducted with all 
practicable speed, with another agency having a substantial interest in 
the determination of the request or among two or more components of the 
agency which have a substantial subject matter interest therein.



Sec. 404.5  Inspection and copying.

    When a request for information has been approved pursuant to Sec. 
404.4, the person making the request may make an appointment to inspect 
or copy the materials requested during regular business hours by writing 
or telephoning the FOIA Officer at the address or telephone number 
listed in Sec. 404.4(b). Such materials may be copied and reasonable 
facilities will be made available for that purpose. Copies of individual 
pages of such materials will be made available at the price per page 
specified in Sec. 404.7(d); however, the right is reserved to limit to 
a reasonable quantity the copies of such materials which may be made 
available in this manner when copies also are offered for sale by the 
Superintendent of Documents.



Sec. 404.6  Definitions.

    For the purpose of these regulations:
    (a) All the terms defined in the Freedom of Information Act apply.
    (b) A statute specifically providing for setting the level of fees 
for particular types of records (5 U.S.C. 552(a)(4)(A)(vi)) means any 
statute that specifically requires a government agency, such as the 
Government Printing Office (GPO) or the National Technical Information 
Service (NTIS), to set the level of fees for particular types of 
records, in order to:
    (1) Serve both the general public and private sector organizations 
by conveniently making available government information;
    (2) Ensure that groups and individuals pay the cost of publications 
and other services that are for their special use so that these costs 
are not borne by the general taxpaying public;
    (3) Operate an information dissemination activity on a self-
sustaining basis to the maximum extent possible; or
    (4) Return revenue to the Treasury for defraying, wholly or in part, 
appropriated funds used to pay the cost of disseminating government 
information. Statutes, such as the User Fee Statute, which only provide 
a general discussion of fees without explicitly requiring that an agency 
set and collect fees for particular documents do not supersede the 
Freedom of Information Act under section (a)(4)(A)(vi) of that statute.

[[Page 42]]

    (c) The term direct costs means those expenditures that ABMC 
actually incurs in searching for and duplicating (and in the case of 
commercial requesters, reviewing) documents to respond to a FOIA 
request. Direct costs include, for example, the salary of the employee 
performing work (the basic rate of pay for the employee plus 16 percent 
of that rate to cover benefits) and the cost of operating duplicating 
machinery. Not included in direct costs are overhead expenses such as 
costs of space, and heating or lighting the facility in which the 
records are stored.
    (d) The term search means 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 also 
includes reasonable efforts to locate and retrieve information from 
records maintained in electronic form or format. ABMC employees should 
ensure that searching for material is done in the most efficient and 
least expensive manner so as to minimize costs for both the agency and 
the requester. For example, employees should not engage in line-by-line 
search when merely duplicating an entire document would prove the less 
expensive and quicker method of complying with a request. Search should 
be distinguished, moreover, from review of material in order to 
determine whether the material is exempt from disclosure (see paragraph 
(f) of this section).
    (e) The term duplication means the making of a copy of a document, 
or of the information contained in it, necessary to respond to a FOIA 
request. Such copies can take the form of paper, microform, audio-visual 
materials, or electronic records (e.g., magnetic tape or disk), among 
others. The requester's specified preference of form or format of 
disclosure will be honored if the record is readily reproducible in that 
format.
    (f) The term review refers to the process of examining documents 
located in response to a request that is for a commercial use (see 
paragraph (g) of this section) to determine whether any portion of any 
document located is permitted to be withheld. It also includes 
processing any documents for disclosure, e.g., doing all that is 
necessary to excise them and otherwise prepare them for release. Review 
does not include time spent resolving general legal or policy issues 
regarding the application of exemptions.
    (g) The term commercial use request refers to a request from or on 
behalf of one who seeks information for a use or purpose that furthers 
the commercial, trade, or profit interests of the requester or the 
person on whose behalf the request is made. In determining whether a 
requester properly belongs in this category, ABMC must determine the use 
to which a requester will put the documents requested. Moreover, where 
an ABMC employee has reasonable cause to doubt the use to which a 
requester will put the records sought, or where that use is not clear 
from the request itself, the employee should seek additional 
clarification before assigning the request to a specific category.
    (h) The term educational institution refers to a preschool, a public 
or private elementary or secondary school, an institution of graduate 
higher education, an institution of undergraduate higher education, an 
institution of professional education, or an institution of vocational 
education, that operates a program or programs of scholarly research.
    (i) The term non-commercial scientific institution refers to an 
institution that is not operated on a commercial basis (as that term is 
referenced in paragraph (g) of this section), and that is operated 
solely for the purpose of conducting scientific research the results of 
which are not intended to promote any particular product or industry.
    (j) The term representative of the news media refers to any person 
actively gathering news for an entity that is organized and operated to 
publish or broadcast news to the public. The term news means information 
that is about current events or that would be of current 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

[[Page 43]]

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 this category. In 
the case of freelance journalists, they may be regarded as working for a 
news organization if they can demonstrate a solid basis for expecting 
publication through that organization, even though not actually employed 
by it. A publication contract would be the clearest proof, but ABMC may 
also look to the past publication record of a requester in making this 
determination.



Sec. 404.7  Fees to be charged--general.

    ABMC shall charge fees that recoup the full allowable direct costs 
it incurs. Moreover, it shall use the most efficient and least costly 
methods to comply with requests for documents made under the FOIA. When 
documents that would be responsive to a request are maintained for 
distribution by agencies operating statutory-based fee schedule programs 
(see definition in Sec. 404.6(b)), such as the NTIS, ABMC should inform 
requesters of the steps necessary to obtain records from those sources.
    (a) Manual searches for records. ABMC will charge at the salary 
rate(s) (i.e., basic pay plus 16 percent) of the employee(s) making the 
search.
    (b) Computer searches for records. ABMC will charge at the actual 
direct cost of providing the service. This will include the cost of 
operating the central processing unit (CPU) for that portion of 
operating time that is directly attributable to searching for records 
responsive to a FOIA request and operator/programmer salary 
apportionable to the search.
    (c) Review of records. Only requesters who are seeking documents for 
commercial use may be charged for time spent reviewing records to 
determine whether they are exempt from mandatory disclosure. Charges may 
be assessed only for the initial review; i.e., the review undertaken the 
first time ABMC analyzes the applicability of a specific exemption to a 
particular record or portion of a record. Records or portions of records 
withheld in full under an exemption that is subsequently determined not 
to apply may be reviewed again to determine the applicability of other 
exemptions not previously considered. The costs for such a subsequent 
review is assessable.
    (d) Duplication of records. Records will be duplicated at a rate of 
$.15 per page. For copies prepared by computer, such as tapes or 
printouts, ABMC shall charge the actual cost, including operator time, 
of production of the tape or printout. For other methods of reproduction 
or duplication, ABMC will charge the actual direct costs of producing 
the document(s). If ABMC estimates that duplication charges are likely 
to exceed $25, it shall notify the requester of the estimated amount of 
fees, unless the requester has indicated in advance his willingness to 
pay fees as high as those anticipated. Such a notice shall offer a 
requester the opportunity to confer with agency personnel with the 
object of reformulating the request to meet his or her needs at a lower 
cost.
    (e) Other charges. When it elects to charge them, ABMC will recover 
the full costs of providing services such as:
    (1) Certifying that records are true copies;
    (2) Sending records by special methods such as express mail.
    (3) Eight by ten inch black and white photographs--$3.75
    (4) Eight by ten inch color photographs--$5.00
    (5) $1.50 per publication
    (6) Video Purchase: The Price of Freedom--$13.00
    (f) Remittances shall be in the form either of a personal check or 
bank draft drawn on a bank in the United States, or a postal money 
order. Remittances shall be made payable to the order of the Treasury of 
the United States and mailed to the FOIA Officer, American Battle 
Monuments Commission, Courthouse Plaza II, Suite 500, 2300 Clarendon 
Blvd., Arlington, Virginia 22201
    (g) A receipt for fees paid will be given upon request. Refund of 
fees paid for services actually rendered will not be made.
    (h) Restrictions on assessing fees. With the exception of requesters 
seeking documents for a commercial use,

[[Page 44]]

ABMC will provide the first 100 pages of duplication and the first 2 
hours of search time without charge. Moreover, ABMC will not charge fees 
to any requester, including commercial use requesters, if the cost of 
collecting a fee would be equal to or greater than the fee itself.
    (1) The elements to be considered in determining the cost of 
collecting a fee are the administrative costs of receiving and recording 
a requester's remittance, and processing the fee for deposit in the 
Treasury Department's special account.
    (2) For purposes of these restrictions on assessment of fees, the 
word pages refers to paper copies of 8\1/2\x11 or 11x14. Thus, 
requesters are not entitled to 100 microfiche or 100 computer disks, for 
example. A microfiche containing the equivalent of 100 pages or 100 
pages of computer printout, does meet the terms of the restriction.
    (3) Similarly, the term search time in this context has as its 
basis, manual search. To apply this term to searches made by computer, 
ABMC will determine the hourly cost of operating the central processing 
unit and the operator's hourly salary plus 16 percent. When the cost of 
search (including the operator time and the cost of operating the 
computer to process a request) equals the equivalent dollar amount of 
two hours of the salary of the person performing the search, i.e., the 
operator, ABMC will begin assessing charges for computer search.



Sec. 404.8  Fees to be charged--categories of requesters.

    There are four categories of FOIA requesters: commercial use 
requesters; educational and noncommercial scientific institutions; 
representatives of the news media; and all other requesters. The 
specific levels of fees for each of these categories:
    (a) Commercial use requesters. When ABMC receives a request for 
documents for commercial use, it will assess charges that recover the 
full direct costs of searching for, reviewing for release, and 
duplicating the record sought. Requesters must reasonably describe the 
records sought. Commercial use requesters are not entitled to 2 hours of 
free search time nor 100 free pages of reproduction of documents. ABMC 
may recover the cost of searching for and reviewing records even if 
there is ultimately no disclosure of records (see paragraph (b) of this 
section).
    (b) Educational and noncommercial scientific institution requesters. 
ABMC shall provide documents to requesters in this category for the cost 
of reproduction alone, excluding charges for the first 100 pages. To be 
eligible for inclusion in this category, requesters must show that the 
request is being made as authorized by and under the auspices of a 
qualifying institution and that the records are not sought for a 
commercial use, but are sought in furtherance of scholarly (if the 
request is from an educational institution) or scientific (if the 
request is from a non-commercial scientific institution) research. 
Requesters must reasonably describe the records sought.
    (c) Requesters who are representatives of the news media. ABMC shall 
provide documents to requesters in this category when serving the news 
dissemination function for the cost of reproduction alone, excluding 
charges for the first 100 pages. To be eligible for inclusion in this 
category, a requester must meet the criteria in Sec. 404.4(j), and his 
or her request must not be made for a commercial use. In reference to 
this class of requester, a request for records supporting the news 
dissemination function of the requester shall not be considered to be a 
request that is for a commercial use. Requesters must reasonably 
describe the records sought.
    (d) All other requesters. ABMC shall charge requesters who do not 
fit into any of the categories above fees that recover the full 
reasonable direct cost of searching for and reproducing records that are 
responsive to the request, except that the first 100 pages of 
reproduction and the first 2 hours of search time shall be furnished 
without charge. Moreover, requests for records about the requesters 
filed in ABMC's systems of records will continue to be treated under the 
fee provisions of the Privacy Act of 1974 which permit fees only for 
reproduction. Requesters must reasonably describe the records sought.

[[Page 45]]



Sec. 404.9  Miscellaneous fee provisions.

    (a) Charging interest--notice and rate. ABMC may begin assessing 
interest charges on an unpaid bill starting on the 31st day following 
the day on which the billing was sent. The fact that the fee has been 
received by ABMC within the 30-day grace period, even if not processed, 
will suffice to stay the accrual of interest. Interest will be at the 
rate prescribed in section 3717 of Title 31 of the United States Code 
and will accrue from the date of the billing.
    (b) Charges for unsuccessful search. ABMC may assess charges for 
time spent searching, even if it fails to locate the records or if 
records located are determined to be exempt from disclosure. If ABMC 
estimates that search charges are likely to exceed $25, it shall notify 
the requester of the estimated amount of fees, unless the requester has 
indicated in advance his willingness to pay fees as high as those 
anticipated. Such a notice shall offer the requester the opportunity to 
confer with agency personnel with the object of reformulating the 
request to meet his or her needs at a lower cost.
    (c) Aggregating requests. A requester may not file multiple requests 
at the same time, each seeking portions of a document or documents, 
solely in order to avoid payment of fees. When ABMC reasonably believes 
that a requester, or a group of requestors acting in concert, has 
submitted requests that constitute a single request, involving clearly 
related matters, ABMC may aggregate those requests and charge 
accordingly. One element to be considered in determining whether a 
belief would be reasonable is the time period over which the requests 
have occurred.
    (d) Advance payments. ABMC may not require a requester to make an 
advance payment, i.e., payment before work is commenced or continued on 
a request, unless:
    (1) ABMC estimates or determines that allowable charges that a 
requester may be required to pay are likely to exceed $250. Then, ABMC 
will notify the requester of the likely cost and obtain satisfactory 
assurance of full payment where the requester has a history of prompt 
payment of FOIA fees, or require an advance payment of an amount up to 
the full estimated charges in the case of requesters with no history of 
payment; or
    (2) A requester has previously failed to pay a fee charged in a 
timely fashion (i.e., within 30 days of the date of the billing). Then, 
ABMC may require the requester to pay the full amount owed plus any 
applicable interest as provided above or demonstrate that he or she has, 
in fact, paid the fee, and to make an advance payment of the full amount 
of the estimated fee before the agency begins to process a new request 
or a pending request from that requester.
    (3) When ABMC acts under paragraph (d)(1) or (2) of this section, 
the administrative time limits prescribed in the FOIA, 5 U.S.C. 
552(a)(6) (i.e., 20 working days from receipt of initial requests and 20 
working days from receipt of appeals from initial denial, plus 
permissible extensions of these time limits), will begin only after ABMC 
has received fee payments described in paragraphs (d)(1) and (2) of this 
section. Effect of the Debt Collection Act of 1982 (Pub. L. 97-365). 
ABMC should comply with provisions of the Debt Collection Act, including 
disclosure to consumer reporting agencies and use of collection 
agencies, where appropriate, to encourage repayment.



Sec. 404.10  Waiver or reduction of charges.

    Fees otherwise chargeable in connection with a request for 
disclosure of a record shall be waived or reduced where it is determined 
that disclosure is in the public interest because it is likely to 
contribute significantly to public understanding of the operations or 
activities of the Government and is not primarily in the commercial 
interest of the requester.



PART 406_ENFORCEMENT OF NONDISCRIMINATION ON THE BASIS OF HANDICAP IN PROGRAMS OR ACTIVITIES CONDUCTED BY AMERICAN BATTLE MONUMENTS COMMISSION--Table of Contents




Sec.
406.101 Purpose.
406.102 Application.
406.103 Definitions.
406.104-406.109 [Reserved]
406.110 Self-evaluation.

[[Page 46]]

406.111 Notice.
406.112-406.129 [Reserved]
406.130 General prohibitions against discrimination.
406.131-406.139 [Reserved]
406.140 Employment.
406.141-406.148 [Reserved]
406.149 Program accessibility: Discrimination prohibited.
406.150 Program accessibility: Existing facilities.
406.151 Program accessibility: New construction and alterations.
406.152-406.159 [Reserved]
406.160 Communications.
406.161-406.169 [Reserved]
406.170 Compliance procedures.
406.171-406.999 [Reserved]

    Authority: 29 U.S.C. 794.

    Source: 51 FR 4577, Feb. 5, 1986, unless otherwise noted.



Sec. 406.101  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. 406.102  Application.

    This part applies to all programs or activities conducted by the 
agency.



Sec. 406.103  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.
    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 of 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 addition and 
alcholism.
    (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

[[Page 47]]

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 subparagraph (1) of 
this definition but is treated by the agency as having such an 
impairment.
    Qualified handicapped person means--
    (1) With respect to any 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 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; or
    (2) 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.
    (3) Qualified handicapped person is defined for purposes of 
employment in 29 CFR 1613.702(f), which is made applicable to this part 
by Sec. 406.140.
    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.

[51 FR 4577, Feb. 5, 1986; 51 FR 7543, Mar. 5, 1986]



Sec. Sec. 406.104-406.109  [Reserved]



Sec. 406.110  Self-evaluation.

    (a) The agency shall, by April 9, 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 
inspections:
    (1) A description of areas examined and any problems identified, and
    (2) A description of any modifications made.



Sec. 406.111  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. 406.112-406.129  [Reserved]



Sec. 406.130  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--

[[Page 48]]

    (i) Deny a qualified handicapped person the opportunity to 
participate in or benefit from the aid, benefit, or service;
    (ii) Afford a qualfied 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 
arrangements, 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 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.
    (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. 406.131-406.139  [Reserved]



Sec. 406.140  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. 406.141-406.148  [Reserved]



Sec. 406.149  Program accessibility: Discrimination prohibited.

    Except as otherwise provided in Sec. 406.150, 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. 406.150  Program accessibility: Existing facilities.

    (a) General. The agency shall operate each program or activity so 
that the

[[Page 49]]

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; or
    (2) 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. 406.150(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 
handicapped persons receive the benefits and services of the program or 
activity.
    (b) Methods. 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 nor 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.
    (c) Time period for compliance. The agency shall comply with the 
obligations established under this section by June 6, 1986, except that 
where structural changes in facilities are undertaken, such changes 
shall be made by April 7, 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 October 7, 1986, a transition plan setting 
forth the steps necessary to complete such changes. The agency 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 agency'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.

[51 FR 4577, Feb. 5, 1986; 51 FR 7543, Mar. 5, 1986]



Sec. 406.151  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

[[Page 50]]

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. 406.152-406.159  [Reserved]



Sec. 406.160  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 a handicapped person 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 
handicapped person.
    (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.
    (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. 406.160 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, handicapped persons receive the benefits and services 
of the program or activity.



Sec. Sec. 406.161-406.169  [Reserved]



Sec. 406.170  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 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, Personnel and Administration shall be responsible 
for coordinating implementation of this section. Complaints may be sent 
to the Director, Personnel and Administration, American Battle Monuments 
Commission, Room 5127, Pulaski Building, 20 Massachusetts Ave., NW., 
Washington, DC 20314.
    (d) The agency shall accept and investigate all complete complaints 
for which it has jurisdiction. All complete complaints must be filed 
within 180 days of the alleged act of discrimination. The agency may 
extend this time period for good cause.

[[Page 51]]

    (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), 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 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;
    (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. 406.170(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.

[51 FR 4577, Feb. 5, 1986, as amended at 51 FR 4577, Feb. 5, 1986]



Sec. Sec. 406.171-406.999  [Reserved]

                        PARTS 407	499 [RESERVED]

[[Page 53]]



                   CHAPTER V--SMITHSONIAN INSTITUTION




  --------------------------------------------------------------------
Part                                                                Page
504             Rules and regulations governing Smithsonian 
                    Institution buildings and grounds.......          55
520             Rules and regulations governing the 
                    buildings and grounds of the National 
                    Zoological Park of the Smithsonian 
                    Institution.............................          57
530             Claims against the Smithsonian Institution 
                    including the National Gallery of Art, 
                    the John F. Kennedy Center for the 
                    Performing Arts and the Woodrow Wilson 
                    International Center for Scholars.......          59
531-599

[Reserved]

[[Page 55]]



PART 504_RULES AND REGULATIONS GOVERNING SMITHSONIAN INSTITUTION BUILDINGS AND GROUNDS--Table of Contents




Sec.
504.1 General.
504.2 Recording presence.
504.3 Preservation of property.
504.4 Conformity with signs and emergency directions.
504.5 Nuisances.
504.6 Gambling.
504.7 Intoxicating beverages and narcotics.
504.8 Soliciting, vending, debt collection, and distribution of 
          handbills.
504.9 Placards, signs, banners and flags.
504.10 Dogs and other animals.
504.11 Photographs for news, advertising, or commercial purposes.
504.12 Items to be checked.
504.13 Vehicular and pedestrian traffic.
504.14 Weapons and explosives.
504.15 Nondiscrimination.
504.16 Penalties.

    Authority: Secs. 1-9, 65 Stat. 634, as amended, secs. 1-4, 78 Stat. 
365; 40 U.S.C. 193n-193w.

    Source: 33 FR 6656, May 1, 1968, unless otherwise noted.



Sec. 504.1  General.

    These rules and regulations apply to all buildings and grounds of 
the Smithsonian Institution, as defined in section 3, 78 Stat. 366; 40 
U.S.C. 193v(1) (A) and (C), and to all persons entering in or on such 
buildings and grounds, hereinafter referred to as the premises



Sec. 504.2  Recording presence.

    Except as otherwise ordered, Smithsonian buildings shall be closed 
to the public after normal visiting hours. Such buildings, or portions 
thereof, shall also be closed to the public in emergency situations and 
at such other times as may be necessary for the orderly conduct of 
business. Whenever the buildings are closed to the public for any 
reason, visitors will immediately leave the premises upon being 
requested by a guard or other authorized individuals. Admission to such 
premises during periods when closed to the public will be limited to 
authorized individuals who will be required to register and identify 
themselves when requested by guards or other authorized individuals.



Sec. 504.3  Preservation of property.

    It is unlawful willfully to destroy, damage, or remove property or 
any part thereof. Any parcels, portfolios, bags, or containers of any 
kind may be required to be opened and the contents identified prior to 
removal from the premises. In order to remove any property from the 
premises, a properly completed property pass signed by an authorized 
official of the Smithsonian Institution may be required prior to 
removal.



Sec. 504.4  Conformity with signs and emergency directions.

    Persons in or on the premises shall comply with official signs of a 
prohibitory or directory nature and with the directions of authorized 
individuals.



Sec. 504.5  Nuisances.

    The use of loud, abusive, or otherwise improper language; 
unwarranted loitering, sleeping or assembly; the creation of any hazard 
to persons or things; improper disposal of rubbish; spitting, prurient 
prying; the commission of any obscene or indecent act, or any other 
unseemly or disorderly conduct on the premises; throwing articles of any 
kind from or within a building; or climbing upon any part of a building 
is prohibited.



Sec. 504.6  Gambling.

    Participating in games for money or other personal property or the 
operation of gambling devices, the conduct of a lottery or pool, or the 
selling or purchasing of numbers tickets in or on the premises is 
prohibited.



Sec. 504.7  Intoxicating beverages and narcotics.

    Entering the premises or the operating of a motor vehicle thereon by 
a person under the influence of any intoxicating beverage or narcotic 
drug or the use of such drug in or on the premises is prohibited. 
Consumption of intoxicating beverages on the premises is prohibited 
unless officially authorized.

[[Page 56]]



Sec. 504.8  Soliciting, vending, debt collection, and distribution of handbills

    The soliciting of alms and contributions, commercial soliciting and 
vending of all kinds, the display or distribution of commercial 
advertising, or the collecting of private debts, in or on the premises 
is prohibited. This rule does not apply to national or local drives for 
funds for welfare, health, and other purposes sponsored or approved by 
the Smithsonian Institution concessions, or personal notices posted by 
employees on authorized bulletin boards. Distribution of material such 
as pamphlets, handbills, and flyers is prohibited without prior approval 
of authorized individuals.



Sec. 504.9  Placards, signs, banners and flags.

    The displaying or carrying of placards, signs, banners, or flags is 
prohibited unless officially authorized.



Sec. 504.10  Dogs and other animals.

    Dogs and other animals, except seeing-eye dogs, shall not be brought 
upon the premises for other than official purposes.



Sec. 504.11  Photographs for news, advertising, or commercial purposes.

    No photographs for advertising or any other commercial purpose may 
be taken on the premises unless officially authorized.



Sec. 504.12  Items to be checked.

    Umbrellas, canes (not needed to assist in walking), or other objects 
capable of inflicting damage to property or exhibits may be required to 
be checked in buildings where checking facilities are provided.



Sec. 504.13  Vehicular and pedestrian traffic.

    (a) Drivers of all vehicles in or on the premises shall drive in a 
careful and safe manner at all times and shall comply with the signals 
and directions of the guards and all posted traffic signs.
    (b) The blocking of entrances, driveways, walks, loading platforms, 
or fire hydrants in or on property is prohibited. Parking without 
authority, or parking in unauthorized locations or in locations reserved 
for other persons or contrary to the direction of posted signs, is 
prohibited. This paragraph may be supplemented from time to time by the 
issuance and posting of such additional traffic and parking directives 
as may be required, and such directives shall have the same force and 
effect as if made a part thereof.



Sec. 504.14  Weapons and explosives.

    No person while on the premises shall carry firearms, other 
dangerous or deadly weapons, or explosives, either openly or concealed, 
except for official purposes.



Sec. 504.15  Nondiscrimination.

    There shall be no discrimination by segregation or otherwise against 
any person or persons because of race, religion, color, or national 
origin in furnishing or by refusing to furnish to such person or persons 
the use of any facility of a public nature, including all services, 
privileges, accommodations, and activities provided thereby on the 
premises.



Sec. 504.16  Penalties.

    Section 6 of the Smithsonian Institution Special Policing Statute, 
Act of October 24, 1951, 65 Stat. 635, 40 U.S.C. 193(s) states that:

    Whoever violates any provision of sections 193o-193q of this Title, 
or any regulation prescribed under section 193r of this Title, shall be 
fined not more than $100 or imprisoned not more than sixty days, or 
both, prosecution for such offenses to be had in the District of 
Columbia Court of General Sessions, upon information by the U.S. 
attorney or any of his assistants: Provided, That in any case where, in 
the commission of such offense, property is damaged in an amount 
exceeding $100, the amount of the fine for the offense may be not more 
than $5,000, the period of imprisonment for the offense may be not more 
than 5 years and prosecution shall be had in the U.S. District Court for 
the District of Columbia by indictment, or if the defendant, after he 
has been advised of the nature of the charge and of his rights, waives 
in open court prosecution by indictment, by information by the U.S. 
attorney or any of his assistants.

[[Page 57]]



PART 520_RULES AND REGULATIONS GOVERNING THE BUILDINGS AND GROUNDS OF THE NATIONAL ZOOLOGICAL PARK OF THE SMITHSONIAN INSTITUTION--Table of Contents




Sec.
520.1 General.
520.2 Recording presence.
520.3 Preservation of property.
520.4 Protection of zoo animals.
520.5 Conformity with signs and emergency directions.
520.6 Nuisances.
520.7 Gambling.
520.8 Intoxicating beverages and narcotics.
520.9 Soliciting, vending, debt collection, and distribution of 
          handbills.
520.10 Placards, signs, banners, and flags.
520.11 Dogs and other animals.
520.12 Photographs for news, advertising, or commercial purposes.
520.13 Items to be checked.
520.14 Vehicular and pedestrian traffic.
520.15 Weapons and explosives.
520.16 Nondiscrimination.
520.17 Lost and found.
520.18 Penalties.

    Authority: Secs. 1-9, 65 Stat. 634, as amended, secs. 1-4, 78 Stat. 
365; 40 U.S.C. 193n-193w.

    Source: 33 FR 17175, Nov. 20, 1968, unless otherwise noted.



Sec. 520.1  General.

    The rules and regulations in this part apply to all buildings and 
grounds of the National Zoological Park of the Smithsonian Institution, 
as defined in sec. 3, 78 Stat. 366; 40 U.S.C. 193v(1)(B), and to all 
persons entering in or on such buildings and grounds, hereinafter 
referred to as the premises.



Sec. 520.2  Recording presence.

    Except as otherwise ordered, National Zoological Park buildings and 
grounds shall be closed to the public after posted visiting hours. Such 
buildings and grounds, or portions thereof, shall be also closed to the 
public in emergency situations and at such other times as may be 
necessary for the orderly conduct of business. Whenever the buildings 
and grounds or portions thereof are closed to the public for any reason, 
visitors will immediately leave the premises upon being requested by a 
police officer or other authorized individual. Admission to such 
premises during periods when closed to the public will be limited to 
authorized individuals who will be required to register and identify 
themselves when requested by police officers or other authorized 
individuals.



Sec. 520.3  Preservation of property.

    It is unlawful willfully to destroy, damage, or remove property or 
any part thereof. Any parcels, portfolios, bags, or containers of any 
kind may be required to be opened and the contents identified prior to 
removal from the premises. In order to remove any property from the 
premises, a properly completed property pass signed by an authorized 
official of the National Zoological Park may be required prior to 
removal.



Sec. 520.4  Protection of zoo animals.

    Except for official purposes, no person shall:
    (a) Kill, injure, or disturb any exhibit or research animal by any 
means except to secure personal safety;
    (b) Pet, attempt to pet, handle, move, or remove exhibit or research 
animals;
    (c) Feed exhibit or research animals, except in strict accordance 
with authorized signs;
    (d) Catch, attempt to catch, trap, remove, or kill any free roaming 
animals inhabiting the premises;
    (e) Go over, under, between, or otherwise cross any guardrail, 
fence, moat, wall, or any other safety barrier; or to seat, stand, or 
hold children over any of the above-mentioned barriers;
    (f) Throw or toss rocks, or any other missiles into, from, or while 
on premises;
    (g) Bring strollers, baby carriages, or other conveyances, except 
wheel chairs, into exhibit buildings and public restrooms;
    (h) Engage in ball games, or any athletic activity, except in places 
as may be officially designated for such purposes;
    (i) Smoke or carry lighted cigarettes, cigars, or pipes into exhibit 
buildings, or to have a fire of any kind on the premises; or
    (j) Damage, deface, pick, or remove any herb, shrub, bush, tree, or 
turf, or portion thereof, on the premises.

[[Page 58]]



Sec. 520.5  Conformity with signs and emergency directions.

    Persons in or on the premises shall comply with official signs of a 
prohibitory or directory nature and with the directions of authorized 
individuals.



Sec. 520.6  Nuisances.

    The use of loud, abusive, or otherwise improper language; 
unwarranted loitering, sleeping or assembly; the creation of any hazard 
to persons or things; improper disposal of rubbish; spitting; prurient 
prying; the commission of any obscene or indecent act, or any other 
unseemly or disorderly conduct on the premises; throwing articles of any 
kind on the premises, or climbing upon any part of the building is 
prohibited.



Sec. 520.7  Gambling.

    Participating in games for money or other personal property or the 
operation of gambling devices, the conduct of a lottery or pool, or the 
selling or purchasing of numbers tickets in or on the premises is 
prohibited.



Sec. 520.8  Intoxicating beverages and narcotics.

    Entering the premises or the operating of a motor vehicle thereon by 
a person under the influence of any intoxicating beverage or narcotic 
drug or the use of such drug in or on the premises is prohibited. 
Consumption of intoxicating beverages on the premises is prohibited, 
unless officially authorized.



Sec. 520.9  Soliciting, vending, debt collection, and distribution of handbills.

    The soliciting of alms and contributions, commercial soliciting and 
vending of all kinds, the display or distribution of commercial 
advertising or the collecting of private debts, in or on the premises is 
prohibited. This rule does not apply to national or local drives for 
funds for welfare, health, and other purposes sponsored or approved by 
the National Zoological Park, concessions, or personal notices posted by 
employees on authorized bulletin boards. Distribution of material such 
as pamphlets, handbills, and flyers is prohibited without prior approval 
of authorized individuals.



Sec. 520.10  Placards, signs, banners, and flags.

    The displaying or carrying of placards, signs, banners, or flags is 
prohibited unless officially authorized.



Sec. 520.11  Dogs and other animals.

    Dogs and other animals, except seeing-eye dogs, shall not be brought 
upon the premises for other than official purposes unless confined to 
automobiles.



Sec. 520.12  Photographs for news, advertising, or commercial purposes.

    No photographs for advertising or any other commercial purpose may 
be taken on the premises unless officially authorized.



Sec. 520.13  Items to be checked.

    Umbrellas, canes (not needed to assist in walking), or other objects 
capable of inflicting damage to property or exhibits may be required to 
be checked at the police station where checking facilities are provided.



Sec. 520.14  Vehicular and pedestrian traffic.

    (a) Drivers of all vehicles in or on the premises shall drive in a 
careful and safe manner at all times and shall comply with the signals 
and directions of the police and all posted traffic signs.
    (b) The blocking of entrances, driveways, walks, loading platforms, 
or fire hydrants in or on property is prohibited. Parking without 
authority, or parking in unauthorized locations or in locations reserved 
for other persons or contrary to the direction of posted signs, is 
prohibited. This paragraph may be supplemented from time to time by the 
issuance and posting of such additional traffic and parking directives 
as may be required, and such directives shall have the same force and 
effect as if made a part thereof.



Sec. 520.15  Weapons and explosives.

    No person while on the premises shall carry firearms, other 
dangerous or deadly weapons, or explosives, either openly or concealed, 
except for official purposes, nor shall any person discharge or set off 
any firework or explosive of any nature on the premises.

[[Page 59]]



Sec. 520.16  Nondiscrimination.

    There shall be no discrimination by segregation or otherwise against 
any person or persons because of race, religion, color, or national 
origin in furnishing or by refusing to furnish to such person or persons 
the use of any facility of a public nature, including all services, 
privileges, accommodations, and activities provided thereby on the 
premises.



Sec. 520.17  Lost and found.

    (a) Lost articles or money which are found in areas covered by this 
part shall be immediately referred to the police station. Proper records 
shall be kept at Police Headquarters of the receipt and disposition of 
such articles. If an article or money found on park areas and referred 
to Zoo Police Headquarters is not claimed by the owner within a period 
of 60 days, it shall be returned to the finder and appropriate receipt 
obtained; except that in the case of National Zoological Park employees, 
articles or money turned in which are not claimed by the owner within 60 
days shall be considered as abandoned to the Smithsonian Institution. 
Such articles or money shall be transferred to the Treasurer of the 
Smithsonian Institution, who shall make suitable disposition of articles 
and remit all proceeds of such disposition and all unclaimed money into 
the unrestricted funds of the Smithsonian Institution.
    (b) The abandonment of any personal property in any of the park 
areas is prohibited.



Sec. 520.18  Penalties.

    Section 6 of the Smithsonian Institution Special Policing Statute, 
Act of October 24, 1951, 65 Stat. 635, 40 U.S.C. 193 (s) states that:

    Whoever violates any provision of sections 193o-193q of this title, 
or any regulation prescribed under section 193r of this Title, shall be 
fined not more than $100 or imprisoned not more than 60 days, or both, 
prosecution for such offenses to be had in the District of Columbia 
Court of General Sessions, upon information by the United States 
attorney or any of his assistants: Provided, That in any case where, in 
the commission of such offense, property is damaged in an amount 
exceeding $100, the amount of the fine for the offense may be not more 
than $5,000, the period of imprisonment for the offense may be not more 
than 5 years and prosecution shall be had in the U.S. District Court for 
the District of Columbia by indictment, or if the defendant, after he 
has been advised of the nature of the charge and of his rights, waives 
in open court prosecution by indictment, by information by the U.S. 
attorney or any of his assistants.



 PART 530_CLAIMS AGAINST THE SMITHSONIAN INSTITUTION INCLUDING THE NATIONAL GALLERY OF ART, THE JOHN F. KENNEDY CENTER FOR THE PERFORMING ARTS AND THE WOODROW 
WILSON INTERNATIONAL CENTER FOR SCHOLARS--Table of Contents




    Authority: 20 U.S.C. 41, et seq.



Sec. 530.1  Tort claims.

    The Smithsonian Institution (which encompasses the National Gallery 
of Art, the John F. Kennedy Center for the Performing Arts and the 
Woodrow Wilson International Center for Scholars) falls within the 
purview of the Federal Tort Claims Act. Internal procedures for 
implementing the Act follow the current general guidance issued by the 
U.S. Department of Justice in 28 CFR part 14. Information on specific 
claims procedures can be obtained as follows:
    (a) Smithsonian Institution: Office of the General Counsel, 
Smithsonian Institution, Washington, DC 20560.
    (b) National Gallery of Art: Administrator, National Gallery of Art, 
Washington, DC 20565.
    (c) John F. Kennedy Center for the Performing Arts: Director of 
Operations, John F. Kennedy Center for the Performing Arts, Washington, 
DC 20566.
    (d) Woodrow Wilson International Center for Scholars: Assistant 
Director for Administration, Woodrow Wilson International Center for 
Scholars, Smithsonian Institution, Washington, DC 20560.

[49 FR 9421, Mar. 13, 1984]

                        PARTS 531	599 [RESERVED]

[[Page 61]]



                          CHAPTER VI [RESERVED]






                    CHAPTER VII--LIBRARY OF CONGRESS




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


  Editorial Note: The regulations in this chapter VII were formerly 
codified in 44 CFR chapter V.
Part                                                                Page
701             Procedures and services.....................          63
702             Conduct on Library premises.................          68
703             Disclosure or production of records or 
                    information.............................          73
704             National Film Registry of the Library of 
                    Congress................................          79
705             Reproduction, compilation, and distribution 
                    of news transmissions under the 
                    provisions of the American Television 
                    and Radio Archives Act..................          79
706-799

[Reserved]

[[Page 63]]



PART 701_PROCEDURES AND SERVICES--Table of Contents




Sec.
701.1 Information about the Library.
701.2 Acquisition of Library material by non-purchase means.
701.3 Methods of disposition of surplus and/or duplicate materials.
701.4 Contracting Officers.
701.5 Policy on authorized use of the Library name, seal, or logo.
701.6 Loans of library materials for blind and other physically 
          handicapped persons.

    Authority: 2 U.S.C. 136; 18 U.S.C. 1017.

    Source: 69 FR 39838, July 1, 2004, unless otherwise noted.



Sec. 701.1  Information about the Library.

    (a) Information about the Library. It is the Library's policy to 
furnish freely information about the Library to the media. All requests 
from the media, for other than generally published information and 
Library records, should be referred to the Public Affairs Office. For 
information about access to, service of, and employment with the Library 
of Congress, go to http://www.loc.gov.
    (b) Public Affairs Office. The Public Affairs Office shall have the 
principal responsibility for responding to requests for information 
about the Library from representatives of the media; giving advice to 
Library officers and staff members on public-relations and public-
information matters; keeping the Librarian and other officers informed 
of important developments in this field; and promoting the resources and 
activities of the Library.
    (1) During regular office hours (8:30 a.m. to 5 p.m.) telephone 
operators shall refer requests for information, from the media only, 
about the Library to the Public Affairs Office. All other requests for 
information shall be referred to the National Reference Service or other 
appropriate offices of the Library.
    (2) All other Library offices and staff members who receive 
inquiries directly from representatives of the media for information 
about the Library, other than generally published information, shall 
refer such inquiries to the Public Affairs Office.
    (3) The Public Affairs Office shall respond directly to inquiries 
concerning the Library, calling upon other offices to supply information 
to it as necessary, or shall arrange for other offices or staff members, 
as appropriate, to supply such information directly and report back to 
Public Affairs after the contact has been made. Requests for Library of 
Congress records, however, shall be made in accordance with 36 CFR part 
703.
    (4) When the Public Affairs Office is closed (evenings, Saturdays, 
Sundays, and holidays), requests from the media for information about 
the Library shall be referred to the Public Affairs Officer at his/her 
home. In the event that person is not available, inquiries shall be 
referred to the Acting Public Affairs Officer, or, in turn, a designated 
public affairs specialist.
    (c) Other Library Units and Staff Members. All Other Library Units 
and Staff Members shall be responsible for keeping the Public Affairs 
Office fully and promptly informed of contacts with the press, except in 
those instances of routine reference inquiries; supplying the Public 
Affairs Office with any data it requires in order to respond to 
inquiries from representatives of the media; and reporting promptly to 
the Public Affairs Office substantive contacts with media 
representatives about the Library and its policies or activities.



Sec. 701.2  Acquisition of Library material by non-purchase means.

    (a) Gifts. It is the policy of the Library of Congress to foster the 
enrichment of its collections through gifts of materials within the 
terms of the Library's acquisitions policies. In implementing this 
policy, division chiefs and other authorized officers of the Library may 
undertake, as representatives of the Library, preliminary negotiations 
for gifts to the Library. However, responsibility for formal acceptance 
of gifts of material and for approval of conditions of such gifts rests 
with The Librarian of Congress or his designee. The Chief, African/Asian 
Acquisitions and Overseas Operations Division, Chief, Anglo-American 
Acquisitions Division, and Chief, European and Latin American 
Acquisitions Division are responsible for routine gifts in the

[[Page 64]]

geographic areas covered by their divisions.
    (b) Deposits. (1) The Anglo-American Acquisitions Division is the 
only division in the Library authorized to make technical arrangements, 
formally negotiate for the transportation of materials and conditions of 
use at the Library, and prepare written Agreements of Deposit to 
formalize these negotiations. The term ``deposit'' is used to mean 
materials which are placed in the custody of the Library for general use 
on its premises, but which remain the property of their owners during 
the time of deposit and until such time as title in them may pass to the 
Library of Congress. A deposit becomes the permanent property of the 
Library when title to it is conveyed by gift or bequest. A deposit may 
be withdrawn by the owner rather than conveyed to the Library. A deposit 
shall be accompanied by a signed Agreement of Deposit.
    (2) It is the policy of the Library of Congress to accept certain 
individual items or special collections as deposits when: permanent 
acquisition of such materials cannot be effected immediately; the 
depositors give reasonable assurance of their intention to donate the 
materials deposited to the United States of America for the benefit of 
the Library of Congress; the Library of Congress determines that such 
ultimate transfer of title will enrich its collections; and the 
depositors agree that the materials so deposited may be available for 
unrestricted use or use in the Library under reasonable restrictions.
    (c) Conditional Gifts of Material to the Library. In cases where 
donors wish to attach conditions of use, negotiating officers cannot 
commit the Library to acceptance of such conditions. The Librarian of 
Congress or designee will consult the appropriate division and service 
unit officers and the General Counsel to ascertain whether the 
conditions are generally acceptable.



Sec. 701.3  Methods of disposition of surplus and/or duplicate materials.

    (a) Exchange. All libraries may make selections on an exchange basis 
from the materials available in the ``Exchange/Transfer'' category. The 
policy governing these selections is that exchange be made only when 
materials of approximately equal value are expected to be furnished in 
return within a reasonable period. Dealers also may negotiate exchanges 
of this type for items selected from available exchange materials, but 
surplus copyright deposit copies of works published after 1977 shall not 
knowingly be exchanged with dealers. Offers of exchange submitted by 
libraries shall be submitted to the Chief of the African/Asian 
Acquisitions and Overseas Operations Division, Anglo-American 
Acquisitions Division, or European/Latin American Acquisitions Division, 
or their designees, as appropriate, who shall establish the value of the 
material concerned. Offers from dealers shall be referred to the Chief 
of the Anglo-American Acquisitions Division. Exchange offers involving 
materials valued at $1,000 or more must be approved by the Acquisitions 
Division Chief; offers of $10,000 or more must be approved by the 
Director for Acquisitions and Support Services; and offers of $50,000 or 
more must be approved by the Associate Librarian for Library Services. 
The Library also explicitly reserves the right to suspend, for any 
period of time it deems appropriate, the selection privileges of any 
book dealer who fails to comply fully with any rules prescribed for the 
disposal of library materials under this section or any other pertinent 
regulations or statutes.
    (b) Transfer of materials to Government Agencies. Library materials 
no longer needed by the Library of Congress, including the exchange use 
mentioned above, shall be available for transfer to Federal agency 
libraries or to the District of Columbia Public Library, upon the 
request of appropriate officers of such entities, and may be selected 
from both the ``Exchange/Transfer'' and ``Donation'' categories. 
Existing arrangements for the transfer of materials, such as the 
automatic transfer of certain classes of books, etc., to specified 
Government libraries, shall be continued unless modified by the Library.
    (c) Donations of Library materials to educational institutions, 
public bodies, and nonprofit tax-exempt organizations in the United 
States. It is the Library's policy, in keeping with the Federal

[[Page 65]]

Property and Administrative Services Act of 1949, 40 U.S.C. 471 et seq., 
which does not cover the Library of Congress, to use materials no longer 
needed for any of the purposes mentioned above to strengthen the 
educational resources of the Nation by enriching the book collections of 
educational institutions (full-time, tax-supported or nonprofit schools, 
school systems, colleges, universities, museums, and public libraries), 
public bodies (agencies of local, State, or Federal Government), and 
nonprofit tax-exempt organizations (section 501 of the Internal Revenue 
Code of 1954, 26 U.S.C. 501, by authorizing the Anglo-American 
Acquisitions Division to donate to such groups in the United States any 
materials selected by their representatives. Eligibility to participate 
in the donation program shall be limited as defined by procedures 
established by the Anglo-American Acquisitions Division.
    (d) Disposition of residue. Library materials not needed for the 
collections of the Library, for its exchange and transfer programs, for 
sale, or for donation, and which, in the opinion of the Chief, Anglo-
American Acquisitions Division, have no commercial value, may be turned 
over to the General Services Administration (GSA) to be disposed of in 
accordance with standard Government practice.



Sec. 701.4  Contracting Officers.

    While the Librarian of Congress may sign any agreement, certain 
other offices of the Library have been delegated authority to contract 
for materials and services on behalf of the Library of Congress. Contact 
the Office of the General Counsel of the Library at 202-707-6316 for 
information on specific delegations.



Sec. 701.5  Policy on authorized use of the Library name, seal, or logo.

    (a) Purpose. The purpose of this part is three-fold:
    (1) To assure that the Library of Congress is properly and 
appropriately identified and credited as a source of materials in 
publications.
    (2) To assure that the name or logo of the Library of Congress, or 
any unit thereof, is used only with the prior approval of the Librarian 
of Congress or his designee; and
    (3) To assure that the seal of the Library of Congress is used only 
on official documents or publications of the Library.
    (b) Definitions. (1) For the purposes of this part, publication 
means any tangible expression of words or thoughts in any form or 
format, including print, sound recording, television, optical disc, 
software, online delivery, or other technology now known or hereinafter 
created. It includes the whole range of tangible products from simple 
signs, posters, pamphlets, and brochures to books, television 
productions, and movies.
    (2) Internal Library publication means a publication over which any 
unit of the Library has complete or substantial control or 
responsibility.
    (3) Cooperative publications are those in which the Library is a 
partner with the publisher by terms of a cooperative publishing 
agreement.
    (4) Commercial publications are those known or likely to involve 
subsequent mass distribution, whether by a for-profit or not-for-profit 
organization or individual, which involve a cooperative agreement. A 
commercial publication can also include a significant number of LC 
references and is also approved by the LC office that entered into a 
formal agreement. Noncommercial publications are those which are 
produced by non-commercial entities.
    (5) Internet sites are those on-line entities, both commercial and 
non-commercial, that have links to the Library's site.
    (6) Library logo refers to any official symbol of the Library or any 
entity thereof and includes any design officially approved by the 
Librarian of Congress for use by Library officials.
    (7) Seal refers to any statutorily recognized seal.
    (c) Credit and recognition policy. (1) The name ``Library of 
Congress,'' or any abbreviation or subset such as ``Copyright Office'' 
or ``Congressional Research Service,'' thereof, is used officially to 
represent the Library of Congress and its programs, projects, functions, 
activities, or elements thereof. The use of the Library's name, 
explicitly or implicitly to endorse a product

[[Page 66]]

or service, or materials in any publication is prohibited, except as 
provided for in this part.
    (2) The Library of Congress seal symbolizes the Library's authority 
and standing as an official agency of the U.S. Government. As such, it 
shall be displayed only on official documents or publications of the 
Library. The seal of the Library of Congress Trust Fund Board shall be 
affixed to documents of that body as prescribed by the Librarian of 
Congress. The seal of the National Film Preservation Board shall be 
affixed to documents of that body as prescribed by the Librarian of 
Congress. Procedures governing the use of any Library of Congress logo 
or symbol are set out below. Any person or organization that uses the 
Library Seal or the Seal of the Library of Congress Trust Fund Board in 
a manner other than as authorized by the provisions of this section 
shall be subject to the criminal provisions of 18 U.S.C. 1017.
    (3) Questions regarding the appropriateness of the use of any 
Library logos or symbols, or the use of the Library's name, shall be 
referred to the Public Affairs Officer.
    (4) Cooperative Ventures. (i) Individual, commercial enterprises or 
non-commercial entities with whom the Library has a cooperative 
agreement to engage in cooperative efforts shall be instructed regarding 
Library policy on credit, recognition, and endorsement by the officer or 
manager with whom they are dealing.
    (ii) Ordinarily, the Library logo should appear in an appropriate 
and suitable location on all cooperative publications. The Library 
requires that a credit line accompany reproductions of images from its 
collections and reflect the nature of the relationship such as 
``published in association with * * *.''
    (iii) The size, location, and other attributes of the logo and 
credit line should be positioned in such a way that they do not imply 
Library endorsement of the publication unless such endorsement is 
expressly intended by the Library, as would be the case in cooperative 
activities. Use of the Library name or logo in any context suggesting an 
explicit or implicit endorsement may be approved in only those instances 
where the Library has sufficient control over the publication to make 
changes necessary to reflect Library expertise.
    (iv) Library officers working on cooperative projects shall notify 
all collaborators of Library policy in writing if the collaboration is 
arranged through an exchange of correspondence. All uses of the Library 
of Congress's name, seal or logo on promotional materials must be 
approved by the Public Affairs Officer, in consultation with the Office 
of the General Counsel, in advance. A statement of Library policy shall 
be incorporated into the agreement if the terms of the collaboration are 
embodied in any written instrument, such as a contract or letter of 
understanding. The statement could read as follows:

    Name of partner recognizes the great value, prestige and goodwill 
associated with the name, ``Library of Congress'' and any logo 
pertaining thereto. Name of partner agrees not to knowingly harm, 
misuse, or bring into disrepute the name or logo of the Library of 
Congress, and further to assist the Library, as it may reasonably 
request, in preserving all rights, integrity and dignity associated with 
its name. Subject to the Library's prior written approval over all 
aspects of the use and presentation of the Library's name and logo, the 
Name of Partner may use the name of the Library of Congress in 
connection with publication, distribution, packaging, advertising, 
publicity and promotion of the ------------, produced as a result of 
this Agreement. The Library will have fifteen (15) business days from 
receipt of Name of partner's written request to approve or deny with 
comment such requests for use of its name or logo.

    (d) Noncommercial Users. Library officers assisting individuals who 
are noncommercial users of Library resources shall encourage them to 
extend the customary professional courtesy of acknowledging their 
sources in publications, including films, television, and radio, and to 
use approved credit lines.
    (1) Each product acquired for resale by the Library that involves 
new labeling or packaging shall bear a Library logo and shall contain 
information describing the relevance of the item to the Library or its 
collections. Items not involving new packaging shall be accompanied by a 
printed description of the Library and its mission, with Library logo, 
as well as the rationale for

[[Page 67]]

operating a gift shop program in a statement such as, ``Proceeds from 
gift shop sales are used to support the Library collections and to 
further the Library's educational mission.''
    (2) Electronic Users. Links to other sites from the Library of 
Congress's site should adhere to the Appropriate Use Policy for External 
Linking in the Internet Policies and Procedures Handbook. Requests for 
such linkage must be submitted to the Public Affairs Office for review 
and approval.
    (3) Office Systems Services shall make available copies of the 
Library seal or logo in a variety of sizes and formats, including 
digital versions, if use has been approved by the Public Affairs 
Officer, in consultation with the Office of General Counsel.
    (4) Each service unit head shall be responsible for devising the 
most appropriate way to carry out and enforce this policy in 
consultation with the General Counsel and the Public Affairs Officer.
    (e) Prohibitions and Enforcement. (1) All violations, or suspected 
violations, of this part, shall be reported to the Office of the General 
Counsel as soon as they become known. Whoever, except as permitted by 
laws of the U.S., or with the written permission of the Librarian of 
Congress or his designee, falsely advertises or otherwise represents by 
any device whatsoever that his or its business, product, or service has 
been in any way endorsed, authorized, or approved by the Library of 
Congress shall be subject to criminal penalties pursuant to law.
    (2) Whenever the General Counsel has determined that any person or 
organization is engaged in or about to engage in an act or practice that 
constitutes or will constitute conduct prohibited by this part or a 
violation of any requirement of this part, the General Counsel shall 
take whatever steps are necessary, including seeking the assistance of 
the U.S. Department of Justice, to enforce the provisions of the 
applicable statutes and to seek all means of redress authorized by law, 
including both civil and criminal penalties.



Sec. 701.6  Loans of library materials for blind and other physically handicapped persons.

    (a) Program. In connection with the Library's program of service 
under the Act of March 3, 1931 (46 Stat. 1487), as amended, its National 
Library Service for the Blind and Physically Handicapped provides books 
in raised characters (braille), on sound reproduction recordings, or in 
any other form, under regulations established by the Library of 
Congress. The National Library Service also provides and maintains 
reproducers for such sound reproduction recordings for the use of blind 
and other physically handicapped residents of the United States, 
including the several States, Territories, Insular Possessions, and the 
District of Columbia, and American citizens temporarily domiciled 
abroad.
    (b) Eligibility criteria. (1) The following persons are eligible for 
such service:
    (i) Blind persons whose visual acuity, as determined by competent 
authority, is 20/200 or less in the better eye with correcting glasses, 
or whose wide diameter if visual field subtends an angular distance no 
greater than 20 degrees.
    (ii) Persons whose visual disability, with correction and regardless 
of optical measurement, is certified by competent authority as 
preventing the reading of standard printed material.
    (iii) Persons certified by competent authority as unable to read or 
unable to use standard printed material as a result of physical 
limitations.
    (iv) Persons certified by competent authority as having a reading 
disability resulting from organic dysfunction and of sufficient severity 
to prevent their reading printed material in a normal manner.
    (2) In connection with eligibility for loan services ``competent 
authority'' is defined as follows:
    (i) In cases of blindness, visual disability, or physical 
limitations ``competent authority'' is defined to include doctors of 
medicine, doctors of osteopathy, ophthalmologist, optometrists, 
registered nurses, therapists, professional staff of hospitals, 
institutions, and public or welfare agencies (e.g., social workers, case 
workers, counselors,

[[Page 68]]

rehabilitation teachers, and superintendents). In the absence of any of 
these, certification may be made by professional librarians or by any 
persons whose competence under specific circumstances is acceptable to 
the Library of Congress.
    (ii) In the case of reading disability from organic dysfunction, 
competent authority is defined as doctors of medicine who may consult 
with colleagues in associated disciplines.
    (c) Loans through regional libraries. Sound reproducers are lent to 
individuals and appropriate centers through agencies, libraries, and 
other organizations designated by the Librarian of Congress to service 
specific geographic areas, to certify eligibility of prospective 
readers, and to arrange for maintenance and repair of reproducers. 
Libraries designated by the Librarian of Congress serve as local or 
regional centers for the direct loan of such books, reproducers, or 
other specialized material to eligible readers in specific geographic 
areas. They share in the certification of prospective readers, and 
utilize all available channels of communication to acquaint the public 
within their jurisdiction with all aspects of the program.
    (d) National collections. The Librarian of Congress, through the 
National Library Service for the Blind and Physically Handicapped, 
defines regions and determines the need for new regional libraries in 
cooperation with other libraries or agencies whose activities are 
primarily concerned with the blind and physically handicapped. It serves 
as the center from which books, recordings, sound reproducers, and other 
specialized materials are lent to eligible blind and physically 
handicapped readers who may be temporarily domiciled outside the 
jurisdictions enumerated by the Act. It maintains a special collection 
of books in raised characters and on sound reproduction recordings not 
housed in regional libraries and makes these materials available to 
eligible borrowers on interlibrary loan.
    (e) Institutions. The reading materials and sound reproducers for 
the use of blind and physically handicapped persons may be loaned to 
individuals who qualify, to institutions such as nursing homes and 
hospitals, and to schools for the blind and physically handicapped for 
the use of such persons only. The reading materials and sound 
reproducers may also be used in public or private schools where 
handicapped students are enrolled; however, the students in public or 
private schools must be certified as eligible on an individual basis and 
must be the direct and only recipients of the materials and equipment.
    (f) Musical scores. The National Library Service also maintains a 
library of musical scores, instructional texts, and other specialized 
materials for the use of the blind and other physically handicapped 
residents of the United States and its possessions in furthering their 
educational, vocational, and cultural opportunities in the field of 
music. Such scores, texts, and materials are made available on a loan 
basis under regulations developed by the Librarian of Congress in 
consultation with persons, organizations, and agencies engaged in work 
for the blind and for other physically handicapped persons.
    (g) Veterans. In the lending of such books, recordings, reproducers, 
musical scores, instructional texts, and other specialized materials, 
preference shall be at all times given to the needs of the blind and 
other physically handicapped persons who have been honorably discharged 
from the Armed Forces of the United States.
    (h) Inquiries for information relative to the prescribed procedures 
and regulations governing such loans and requests for loans should be 
addressed to Director, National Library Service for the Blind and 
Physically Handicapped, Library of Congress, Washington, DC 20542 or 
visit our Web site at http://www.loc.gov/nls.

[70 FR 36843, June 27, 2005]



PART 702_CONDUCT ON LIBRARY PREMISES--Table of Contents




Sec.
702.1 Applicability.
702.2 Conduct on Library premises.
702.3 Demonstrations.
702.4 Photographs.
702.5 Gambling.
702.6 Alcoholic beverages and controlled substances.

[[Page 69]]

702.7 Weapons and explosives.
702.8 Use and carrying of food and beverages in Library buildings.
702.9 Inspection of property.
702.10 Protection of property.
702.11 Smoking in Library buildings.
702.12 Space for meetings and special events.
702.13 Soliciting, vending, debt collection, and distribution of 
          handbills.
702.14 Penalties.

    Authority: Sec. 1, 29 Stat. 544; 2 U.S.C. 136.

    Source: 69 FR 39840, July 1, 2004, unless otherwise noted.



Sec. 702.1  Applicability.

    The rules and regulations in this part apply to all Federal property 
under the charge and control of the Librarian of Congress and to all 
persons entering in or on such property.



Sec. 702.2  Conduct on Library premises.

    (a) All persons using the premises shall conduct themselves in such 
manner as not to affect detrimentally the peace, tranquility, and good 
order of the Library. Such persons shall:
    (1) Use areas that are open to them only at the times those areas 
are open to them and only for the purposes for which those areas are 
intended;
    (2) Comply with any lawful order of the police or of other 
authorized individuals; and
    (3) Comply with official signs of a restrictive or directory nature.
    (b) All persons using the premises shall refrain from:
    (1) Creating any hazard to oneself or another person or property, 
such as by tampering with fire detection and/or security equipment and 
devices, by fighting, by starting fires, or by throwing or deliberately 
dropping any breakable article, such as glass, pottery, or any sharp 
article, or stones or other missiles;
    (2) Using Library facilities for living accommodation purposes, such 
as unauthorized bathing, sleeping, or storage of personal belongings, 
regardless of the specific intent of the individual;
    (3) Engaging in inordinately loud or noisy activities;
    (4) Disposing of rubbish other than in receptacles provided for that 
purpose;
    (5) Throwing articles of any kind from or at a Library building or 
appurtenance;
    (6) Committing any obscene or indecent act such as prurient prying, 
indecent exposure, and soliciting for illegal purposes;
    (7) Removing, defacing, damaging, or in any other way so misusing a 
statue, seat, wall, fountain, or other architectural feature or any 
tree, shrub, plant, or turf;
    (8) Stepping upon or climbing upon any statue, fountain, or other 
ornamental architectural feature or any tree, shrub, or plant;
    (9) Bathing, wading, or swimming in any fountain;
    (10) Painting, marking or writing on, or posting or otherwise 
affixing any handbill or sign upon any part of a Library building or 
appurtenance, except on bulletin boards installed for that purpose and 
with the appropriate authorization;
    (11) Bringing any animal onto Library buildings and turf other than 
dogs trained to assist hearing or visually impaired persons;
    (12) Threatening the physical well-being of an individual; and
    (13) Unreasonably obstructing reading rooms, food service 
facilities, entrances, foyers, lobbies, corridors, offices, elevators, 
stairways, or parking lots in such manner as to impede or disrupt the 
performance of official duties by the Library staff or to prevent 
Library patrons from using or viewing the collections.
    (c) Public reading rooms, research facilities, and catalog rooms are 
designated as nonpublic forums. As such, they shall be used only for 
quiet scholarly research or educational purposes requiring use of 
Library materials. All persons using these areas shall comply with the 
rules in effect in the various public reading rooms, shall avoid 
disturbing other readers, and shall refrain from engaging in disruptive 
behavior, including but not limited to (1) Eating, drinking, or smoking 
in areas where these activities are expressly prohibited;
    (2) Using loud language or making disruptive noises;
    (3) Using any musical instrument or device, loudspeaker, sound 
amplifier, or other similar machine or device for the production or 
reproduction of

[[Page 70]]

sound, except for devices to assist hearing or visually impaired 
persons, without authorization;
    (4) Interfering by offensive personal hygiene with the use of the 
area by other persons;
    (5) Spitting, defecating, urinating, or similar disruptive 
activities;
    (6) Intentionally abusing the furniture or furnishings in the area;
    (7) Intentionally damaging any item from the collections of the 
Library of Congress or any item of Library property;
    (8) Using computing terminals for purposes other than searching or 
training persons to search the Library's data bases or those under 
contract to the Library, or misusing the terminals by intentional 
improper or obstructive searching; and
    (9) Using the Library's photocopy machines or microfilm reader-
printers for purposes other than copying Library materials, for copying 
that violates the copyright law (Title 17 U.S.C.), or for copying in 
violation of posted usage restrictions, e.g., ``staff only.''
    (10) Performing any other inappropriate or illegal act, such as 
accessing or showing child pornography, online or otherwise on Library 
premises; and
    (11) failing to wear appropriate clothing in Library facilities, 
including, but not limited to, footwear (shoes or sandals) and shirts.
    (12) any behavior or interaction by a member of the public that 
unnecessarily hinders staff from performing the Library's public service 
functions.



Sec. 702.3  Demonstrations.

    (a) Library buildings and grounds are designated as limited public 
forums, except for those areas designated as nonpublic forums. However, 
only Library grounds (defined in 2 U.S.C. 167j), not buildings, may be 
utilized for demonstrations, including assembling, marching, picketing, 
or rallying. In addition, as the need for the determination of other 
matters arises, the Librarian will determine what additional First 
Amendment activities may not be permitted in a limited public forum. In 
making such determination, The Librarian will consider only whether the 
intended activity is incompatible with the primary purpose and intended 
use of that area.
    (b) The Director, Integrated Support Services, shall designate 
certain Library grounds as available for demonstrations. Persons seeking 
to use such designated areas for the purpose of demonstrations shall 
first secure written permission from the Director, Integrated Support 
Services. An application for such permission shall be filed with 
Facility Services no later than four business days before the time of 
the proposed demonstration and shall include:
    (1) The name of the organization(s) or sponsor(s) of the 
demonstration;
    (2) The contact person's name and telephone number;
    (3) The proposed purpose of the demonstration;
    (4) The proposed location of the demonstration;
    (5) The date and hour(s) planned for the demonstration;
    (6) The anticipated number of demonstrators;
    (7) A concise statement detailing arrangements for the prompt 
cleanup of the site after the demonstration;
    (8) Any request for permission to use loudspeakers, microphones, or 
other amplifying devices, hand held or otherwise; and
    (9) A signed agreement by the applicant(s) to comply with Library 
regulations and terms and conditions established for the demonstration.
    (c) Upon receipt of an application, Facility Services shall forward 
the application, along with any comments and recommendations, to the 
Director, Integrated Support Services, within one business day of the 
office's receipt of said application. The Director, Integrated Support 
Services, shall respond to the request within three business days of his 
or her receipt of said application. The Director, Integrated Support 
Services, shall request advice from the Office of the General Counsel on 
any legal questions arising from said application.
    (d) Permission to demonstrate shall be based upon:
    (1) The availability of the requested location;

[[Page 71]]

    (2) The likelihood that the demonstration will not interfere with 
Library operations or exceed city noise limitations as defined by 
District of Columbia regulations; and
    (3) The likelihood that the demonstration will proceed peacefully in 
the event that a volatile situation in the United States or abroad might 
lead to a potentially harmful threat toward the Capitol complex, 
including Library buildings and grounds.



Sec. 702.4  Photographs.

    (a) The policy set out herein applies to all individuals who are 
photographing Library of Congress buildings.
    (b) Special permission is not required for photographing public 
areas, if no tripods, lights or other specialized equipment is used. 
Public areas do not include reading rooms, exhibition areas or other 
areas where photographing is prohibited by signage.
    (c) For all other photographing, requests for permission must be 
made at least one week prior to the photographing. The Director of 
Communications, or his/her designee, is authorized to grant or deny 
permission, in writing, to photograph the interior of Library buildings 
and may set the conditions under which the photographing may take place. 
Such conditions may include provision for a fee for services rendered 
consistent with the Library's policies and procedures for the revolving 
fund under 2 U.S.C. 182b.



Sec. 702.5  Gambling.

    Participation in any illegal gambling, such as the operation of 
gambling devices, the conduct of an illegal pool or lottery, or the 
unauthorized sale or purchase of numbers or lottery tickets, on the 
premises is prohibited.



Sec. 702.6  Alcoholic beverages and controlled substances.

    (a) The use of alcoholic beverages on the premises is prohibited 
except on official occasions for which advance written approval has been 
given and except for concessionaires to whom Library management has 
granted permission to sell alcoholic beverages on the premises.
    (b) The illegal use or possession of controlled substances on the 
premises is prohibited.



Sec. 702.7  Weapons and explosives.

    Except where duly authorized by law, and in the performance of law 
enforcement functions, no person shall carry firearms, other dangerous 
or deadly weapons, or explosives, either openly or concealed, while on 
the premises.



Sec. 702.8  Use and carrying of food and beverages in Library buildings.

    Consumption of food and beverages in Library buildings is prohibited 
except at point of purchase or other authorized eating places. Under no 
circumstances may food or beverages be carried to the bookstacks or 
other areas where there exists significant risk to Library materials or 
property or where there may result a detraction from the dignity or 
efficiency of public service.



Sec. 702.9  Inspection of property.

    (a) Individuals entering Library buildings do so with the 
understanding that all property in their possession including, but not 
limited to, suitcases, briefcases, large envelopes, packages, and office 
equipment may be inspected.
    (b) Upon entering the Library buildings privately owned office 
machines including but not limited to typewriters, computing machines, 
stenotype machines, and dictating machines, shall be registered with the 
police officer at the entrance to buildings for the purpose of 
controlling such equipment.
    (c) In the discharge of official duties, Library officials are 
authorized to inspect Government-owned or furnished property assigned to 
readers and the general public for their use, such as cabinets, lockers, 
and desks. Unauthorized property or contraband found in the possession 
of members of the Library staff, readers, or the general public as a 
result of such inspections will be subject to confiscation by Library 
officials.



Sec. 702.10  Protection of property.

    (a) Any person who shall steal, wrongfully deface, injure, mutilate, 
tear, or destroy library materials, or

[[Page 72]]

any portion thereof, shall be punished by a fine of not more than $1,000 
or imprisoned not more than 3 years, or both (18 U.S.C. 641; 18 U.S.C. 
1361; 18 U.S.C. 2071).
    (b) Any person who embezzles, steals, purloins, or, without 
authority, disposes of anything of value of the United States, or 
willfully injures or commits any depredation against any Government 
property shall be punished by a fine of not more than $10,000 or 
imprisoned not more than 10 years, or both; but if the value of such 
property does not exceed the sum of $100, he shall be fined not more 
than $1,000 or imprisoned not more than 1 year, or both. (18 U.S.C. 641; 
18 U.S.C. 1361.)



Sec. 702.11  Smoking in Library buildings.

    Smoking in Library areas is prohibited except in those areas 
specifically designated for this purpose.



Sec. 702.12  Space for meetings and special events.

    Information about the use of space for meeting and special events at 
the Library can be found at http://www.loc.gov/about/facilities/
index.html, or by accessing the Library's home page at http://
www.loc.gov and following the link ``About the Library'' to ``Event 
Facilities.''



Sec. 702.13  Soliciting, vending, debt collection, and distribution of handbills.

    (a) The soliciting of alms and contributions, commercial soliciting 
and vending of all kinds, the display or distribution of commercial 
advertising, the offering or exposing of any article for sale, or the 
collecting of private debts on the grounds or within the buildings of 
the Library is prohibited. This rule does not apply to national or local 
drives for funds for welfare, health, or other purposes sponsored or 
approved by The Librarian of Congress, nor does it apply to authorized 
concessions, vending devices in approved areas, or as specifically 
approved by the Librarian or designee.
    (b) Distribution of material such as pamphlets, handbills, and 
flyers is prohibited without prior approval.
    (c) Peddlers and solicitors will not be permitted to enter Library 
buildings unless they have a specific appointment, and they will not be 
permitted to canvass Library buildings.



Sec. 702.14  Penalties.

    (a) Persons violating provisions of 2 U.S.C. 167a to 167e, 
inclusive, regulations promulgated pursuant to 2 U.S.C. 167f, this part 
702, or other applicable Federal laws relating to the Library's 
property, including its collections, are subject to removal from the 
premises, to arrest, and to any additional penalties prescribed by law.
    (b) Upon written notification by the Director of Security, 
disruptive persons may be denied further access to the premises and may 
be prohibited from further use of the Library's facilities.
    (1) Within three workdays of receipt of such notification, an 
affected individual may make a written request, including the reasons 
for such a request, to the Director of Security for a reconsideration of 
said notification.
    (2) The Director of Security shall respond within three workdays of 
receipt of such request for reconsideration and may, at his or her 
option, rescind, modify, or reaffirm said notification.
    (c) Readers who violate established conditions and/or procedures for 
using material are subject to penalties to be determined by or in 
consultation with the unit head responsible for the custody of the 
material used.
    (1) When a reader violates a condition and/or procedure for using 
material, the division chief or head of the unit where the infraction 
occurred may, upon written notification, deny further access to the 
material, or to the unit in which it is housed, to be determined by the 
nature of the infraction and the material involved.
    (2) Within five workdays of receipt of such notification, the reader 
may make a written request, including the reasons for such request to 
the Associate Librarian for that service unit, or his/her designee, for 
a reconsideration of said notification.
    (3) The Associate Librarian for that service unit, or his/her 
designee, shall respond within five workdays of receipt of such request 
for reconsideration and may rescind, modify, or reaffirm said 
notification, as appropriate.

[[Page 73]]

    (4) Repeated violations of established conditions and/or procedures 
for using material may result in denial of further access to the 
premises and further use of the Library's facilities or revocation of 
the reader's User Card, in accordance with established access 
regulations.
    (5) Mutilation or theft of Library property also may result in 
criminal prosecution, as set forth in 18 U.S.C. 641, 1361, and 2071; and 
22 D.C. Code 3106.
    (6) In certain emergency situations requiring prompt action, the 
division chief or head of the unit where the infraction occurred may 
immediately deny further access to the material or unit prior to 
formally taking written action. In such cases, the reader shall be 
notified, in writing, within three days of the action taken and the 
reasons therefor. The reader then may request reconsideration.
    (7) A copy of any written notification delivered pursuant to this 
part shall be forwarded to the Captain, Library Police, the service 
unit, and the Director, Integrated Support Services, for retention.



PART 703_DISCLOSURE OR PRODUCTION OF RECORDS OR INFORMATION--Table of Contents




          Subpart A_Availability of Library of Congress Records

Sec.
703.1 Purpose and scope of this subpart.
703.2 Policy.
703.3 Administration responsibilities.
703.4 Definitions.
703.5 Records exempt from disclosure.
703.6 Procedures for access to and copying of records.
703.7 Public reading facility.
703.8 Fees and charges.

Appendix A to Subpart A--Fees and Charges for Services Provided to 
          Requestors of Record

Subpart B_Testimony by Employees and Production of Documents in Certain 
           Legal Proceedings Where the Library Is Not a Party

703.15 Purpose and scope of this subpart.
703.16 Policy on presentation of testimony and production of documents.
703.17 Procedures when testimony and/or documents are demanded.
703.18 Procedures when an employee's appearance is demanded or documents 
          are demanded.
703.19 Requests for authenticated copies of Library documents.
703.20 File copies.
703.21 Effect of this part.
703.22 Where to serve demands.

    Authority: 2 U.S.C. 136.

    Source: 67 FR 16019, Apr. 4, 2002, unless otherwise noted.



          Subpart A_Availability of Library of Congress Records



Sec. 703.1  Purpose and scope of this subpart.

    (a) This subpart implements the policy of the Library with respect 
to the public availability of Library of Congress records. Although the 
Library is not subject to the Freedom of Information Act, as amended (5 
U.S.C. 552), this subpart follows the spirit of that Act consistent with 
the Library's duties, functions, and responsibilities to the Congress. 
The application of that Act to the Library is not to be inferred, nor 
should this subpart be considered as conferring on any member of the 
public a right under that Act of access to or information from the 
records of the Library. Nothing in this subpart modifies current 
instructions and practices in the Library with respect to handling 
Congressional correspondence.
    (b) The Copyright Office, although a service unit of the Library, is 
by law (17 U.S.C. 701) subject to the provisions of the Freedom of 
Information Act, as amended, only for purposes of actions taken under 
the copyright law. The Copyright Office has published its own regulation 
with respect to the general availability of information (see 37 CFR 
201.2) and requests for copyright records made pursuant to the Freedom 
of Information Act (see 37 CFR 203.1 et seq.) and the Privacy Act (see 
37 CFR 204.1 et seq.).



Sec. 703.2  Policy.

    (a) Subject to limitations set out in this part, Library of Congress 
records shall be available as hereinafter provided and shall be 
furnished as promptly as possible within the Library to

[[Page 74]]

any member of the public at appropriate places and times and for an 
appropriate fee, if any.
    (b) The Library shall not provide records from its files that 
originate in another federal agency or non-federal organization to 
persons who may not be entitled to obtain the records from the 
originator. In such instances, the Library shall refer requesters to the 
agency or organization that originated the records.
    (c) In order to avoid disruption of work in progress, and in the 
interests of fairness to those who might be adversely affected by the 
release of information which has not been fully reviewed to assure its 
accuracy and completeness, it is the policy of the Library not to 
provide records which are part of on-going reviews or other current 
projects. In response to such requests, the Library will inform the 
requester of the estimated completion date of the review or project so 
that the requester may then ask for the records. At that time, the 
Library may release the records unless the same are exempt from 
disclosure as identified in Sec. 703.5.



Sec. 703.3  Administration responsibilities.

    The administration of this part shall be the responsibility of the 
Chief, Office Systems Services (OSS), Library of Congress, 101 
Independence Avenue, SE., Washington, DC 20540-9440, and to that end, 
the Chief may promulgate such supplemental rules or guidelines as may be 
necessary.



Sec. 703.4  Definitions.

    (a) Records includes all books, papers, maps, photographs, reports, 
and other documentary materials, exclusive of materials in the Library's 
collections, regardless of physical form or characteristics, made or 
received and under the control of the Library in pursuance of law or in 
connection with the transaction of public business, and retained, or 
appropriate for retention, by the Library as evidence of the 
organization, functions, policies, decisions, procedures, operations, or 
other activities of the government or because of the informational value 
of data contained therein. The term refers only to such items in being 
and under the control of the Library. It does not include the compiling 
or procuring of a record, nor does the term include objects or articles, 
such as furniture, paintings, sculpture, three-dimensional models, 
structures, vehicles, and equipment.
    (b) Identifiable means a reasonably specific description of a 
particular record sought, such as the date of the record, subject 
matter, agency or person involved, etc. which will permit location or 
retrieval of the record.
    (c) Records available to the public means records which may be 
examined or copied or of which copies may be obtained, in accordance 
with this part, by the public or representatives of the press regardless 
of interest and without specific justification.
    (d) Disclose or disclosure means making available for examination or 
copying, or furnishing a copy.
    (e) Person includes an individual, partnership, corporation, 
association, or public or private organization other than a federal 
agency.



Sec. 703.5  Records exempt from disclosure.

    (a) The public disclosure of Library records provided for by this 
part does not apply to records, or any parts thereof, within any of the 
categories set out below. Unless precluded by law, the Chief, OSS, 
nevertheless may release records within these categories, except for 
Congressional correspondence and other materials identified in Sec. 
703.5(b)(1), after first consulting with the General Counsel.
    (b) Records exempt from disclosure under this part are the 
following:
    (1) Congressional correspondence and other materials relating to 
work performed in response to or in anticipation of Congressional 
requests, unless authorized for release by officials of the Congress.
    (2) Materials specifically authorized under criteria established by 
Executive Order to be withheld from public disclosure in the interest of 
national defense or foreign policy and that are properly classified 
pursuant to Executive Orders.
    (3) Records related solely to the internal personnel rules and 
practices of the Library. This category includes, in

[[Page 75]]

addition to internal matters of personnel administration, internal rules 
and practices which cannot be disclosed without prejudice to the 
effective performance of a Library function, such as guidelines and 
procedures used by auditors, investigators, or examiners in the Office 
of the Inspector General.
    (4) Records specifically exempted from disclosure by statute, 
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.
    (5) Records containing trade secrets and commercial or financial 
information obtained from a person as privileged or confidential. This 
exemption may include, but is not limited to, business sales statistics, 
inventories, customer lists, scientific or manufacturing processes or 
development information.
    (6) Personnel and medical files and similar files the disclosure of 
which could constitute a clearly unwarranted invasion of personal 
privacy. This exemption includes all private or personal information 
contained in files compiled to evaluate candidates for security 
clearances.
    (7) Materials and information contained in investigative or other 
records compiled for law enforcement purposes.
    (8) Materials and information contained in files prepared in 
connection with government litigation and adjudicative proceedings, 
except for those portions of such files which are available by law to 
persons in litigation with the Library.
    (9) Records having information contained in or related to 
examination, operation, or condition reports prepared by, on behalf of, 
or for the use of an agency responsible for the regulation or 
supervision of financial institutions.
    (10) Inter-agency or intra-agency memoranda, letters or other 
materials that are part of the deliberative process, the premature 
disclosure of which would inhibit internal communications or be 
detrimental to a Library function (e.g., case files in the Manuscript 
Division).
    (11) Records containing information customarily subject to 
protection as privileged in a court or other proceedings such as 
information protected by the doctor-patient, attorney work product, or 
attorney-client privilege.
    (12) Information submitted by a person to the Library in confidence 
or which the Library has obligated itself not to disclose such as 
information received by the Office of the Inspector General through its 
hotline.
    (13) Materials related to specific patron use of the Library's 
collections, resources, or facilities either on site or off site. This 
exemption includes:
    (i) Reader Records. Library records which identify readers by name, 
such as registration records, reading room logs or registers, telephone 
inquiry logs, and charge slips, if retained for administrative purposes.
    (ii) Use Records. Users of the Library are entitled to privacy with 
respect to their presence and use of the Library's facilities and 
resources. Records pertaining to the use of the Library and of Library 
collections and subjects of inquiry are confidential and are not to be 
disclosed either to other readers, to members of the staff who are not 
authorized, or to other inquirers including officials of law 
enforcement, intelligence, or investigative agencies, except pursuant to 
court order or administratively by order of the Librarian of Congress.
    (c) Any reasonably segregable portion of a record shall be provided 
to anyone requesting such records after deletion of the portions which 
are exempt under this section. A portion of a record shall be considered 
reasonably segregable when segregation can produce an intelligible 
record which is not distorted out of context, does not contradict the 
record being withheld, and can reasonably provide all relevant 
information.



Sec. 703.6  Procedure for access to and copying of records.

    (a) A request to inspect or obtain a copy of an identifiable record 
of the Library of Congress shall be submitted in writing to the Chief, 
OSS, Library of Congress, 101 Independence Avenue,

[[Page 76]]

SE., Washington, DC 20540-9440, who shall promptly record and process 
the request.
    (b) Requests for records shall be specific and shall identify the 
precise records or materials that are desired by name, date, number, or 
other identifying data sufficient to allow the OSS staff to locate, 
retrieve, and prepare the record for inspection or copying and to delete 
exempted matter where appropriate to do so. Blanket or generalized 
requests (such as ``all matters relating to'' a general subject) shall 
not be honored and shall be returned to the requester.
    (c) Records shall be available for inspection and copying in person 
during business hours.
    (d) Records in media other than print (e.g., microforms and machine-
readable media) shall be available for inspection in the medium in which 
they exist. Copies of records in machine-readable media shall be made in 
media determined by the Chief, OSS.
    (e) Library staff shall respond to requests with reasonable 
dispatch. Use of a record by the Library or Library employees, however, 
shall take precedence over any request. Under no circumstances shall 
official records be removed from Library control without the written 
authorization of the Librarian.
    (f) The Chief, OSS, shall make the initial determination on whether:
    (1) The record described in a request can be identified and located 
pursuant to a reasonable search, and
    (2) The record (or portions thereof) may be made available or 
withheld from disclosure under the provisions of this part. In making 
the initial determinations, the Chief shall consult with any unit in the 
Library having a continuing substantial interest in the record 
requested. Where the Chief finds no valid objection or doubt as to the 
propriety of making the requested record available, the Chief shall 
honor the request upon payment of prescribed fees, if any are required 
by Sec. 703.8.
    (g) If the Chief, OSS, determines that a requested record should be 
withheld, the Chief shall inform the requester in writing that the 
request has been denied; shall identify the material withheld; and shall 
explain the basis for the denial. The Chief shall inform the requester 
that further consideration of the denied request may be obtained by a 
letter to the General Counsel setting out the basis for the belief that 
the denial of the request was unwarranted.
    (h) The General Counsel shall make the final determination on any 
request for reconsideration and shall notify the requester in writing of 
that determination. The decision of the General Counsel shall be the 
final administrative review within the Library.
    (1) If the General Counsel's decision reverses in whole or in part 
the initial determination by the Chief, OSS, the Chief shall make the 
requested record, or parts thereof, available to the requester, subject 
to the provisions of Sec. 703.8.
    (2) If the General Counsel's decision sustains in whole or in part 
the initial determination by the Chief, OSS, the General Counsel shall 
explain the basis on which the record, or portions thereof, will not be 
made available.



Sec. 703.7  Public Reading Facility.

    (a) The Chief, OSS, shall maintain a reading facility for the public 
inspection and copying of Library records. This facility shall be open 
to the public from 8:30 a.m. to 4:30 p.m., except Saturdays, Sundays, 
holidays, and such other times as the Library shall be closed to the 
public.
    (b) The General Counsel shall advise the Chief, OSS, of the records 
to be available in the public reading facility following consultation 
with the Library managers who may be concerned.



Sec. 703.8  Fees and charges.

    (a) The Library will charge no fees for:
    (1) Access to or copies of records under the provisions of this part 
when the direct search and reproduction costs are less than $10.
    (2) Records requested which are not found or which are determined to 
be exempt under the provisions of this part.
    (3) Staff time spent in resolving any legal or policy questions 
pertaining to a request.

[[Page 77]]

    (4) Copies of records, including those certified as true copies, 
that are furnished for official use to any officer or employee of the 
federal government.
    (5) Copies of pertinent records furnished to a party having a direct 
and immediate interest in a matter pending before the Library, when 
furnishing such copies is necessary or desirable to the performance of a 
Library function.
    (b) When the costs for services are $10 or more, the Chief, OSS, 
shall assess and collect the fees and charges set out in appendix A to 
this part for the direct costs of search and reproduction of records 
available to the public.
    (c) The Chief, OSS, is authorized to waive fees and charges, in 
whole or in part, where it is determined that the public interest is 
best served to do so, because waiver is likely to contribute 
significantly to public understanding of the operations or activities of 
the government and is not primarily in the commercial interest of the 
requester. Persons seeking a waiver or reduction of fees may be required 
to submit a written statement setting forth the intended purpose for 
which the records are requested or otherwise indicate how disclosure 
will primarily benefit the public and, in appropriate cases, explain why 
the volume of records requested is necessary. Determinations made 
pursuant to the authority set out herein are solely within the 
discretion of the Chief, OSS.
    (d) Fees and charges for services identified in the appendix to this 
part shall be paid in full by the requester before the records are 
delivered. Payment shall be made in U.S. funds by personal check, money 
order, or bank draft made payable to the Library of Congress. The Chief, 
OSS, shall remit all fees collected to the Director, Financial Services, 
who shall cause the same to be credited to appropriate accounts or 
deposited with the U.S. Treasury as miscellaneous receipts.
    (e) The Chief, OSS, shall notify a requester and may require an 
advance deposit where the anticipated fees will exceed $50.



Sec. Appendix A to Subpart A of Part 703--Fees and Charges for Services 
                    Provided to Requesters of Records

    (a) Searches.
    (1) There is no charge for searches of less than one hour.
    (2) Fees charged for searches of one hour or more are based on 
prevailing rates. Currently, those charges are:
    (i) Personnel searches (clerical): $15 per hour.
    (ii) Personnel searches (professional): $25 per hour.
    (iii) Reproduction costs: $.50 per page.
    (iv) Shipping and mailing fees: variable.
    (3) In situations involving the use of computers to locate and 
extract the requested information, charges will be based on the direct 
cost to the Library, including labor, material, and computer time.
    (b) Duplication of Records. Fees charged for the duplication of 
records shall be according to the prevailing rates established by the 
Library's Photoduplication Service, or in the case of machine media 
duplication, by the Resources Management Staff, Information Technology 
Services.
    (c) Certifications. The fee charges for certification of a record as 
authentic or a true copy shall be $10.00 for each certificate.
    (d) Other Charges. When no specific fee has been established for a 
service required to meet the request for records, the Chief, OSS, shall 
establish an appropriate fee based on direct costs in accordance with 
the Office of Management and Budget Circular No. A-25.



Subpart B_Testimony by Employees and Production of Documents in Certain 
           Legal Proceedings Where the Library Is Not a Party



Sec. 703.15  Purpose and scope of this subpart.

    This subpart sets forth the policy and procedures of the Library of 
Congress regarding, first, the testimony, as witnesses in legal 
proceedings where the Library is not a party, of employees and former 
employees concerning information acquired in the course of performing 
official duties or because of the employee's official relationship with 
the Library of Congress, and second, the production or disclosure of 
information contained in Library of Congress documents for use in legal 
proceedings where the Library is not a party, pursuant to a request, 
order, or

[[Page 78]]

subpoena (collectively referred to in this subpart as a ``demand'').
    (a) This subpart applies to:
    (1) State court proceedings (including grand jury proceedings);
    (2) Federal court proceedings; and
    (3) State and local legislative and administrative proceedings.
    (b) This subpart does not apply to:
    (1) Matters that are not related to the Library of Congress but 
relate solely to an employee's personal dealings;
    (2) Congressional demands for testimony or documents;
    (3) Any demand relating to activity within the scope of Title 17 of 
the United States Code (the Copyright Act and related laws). These are 
governed by Copyright Office regulations, which provide for different 
procedures and for service on the General Counsel of the Copyright 
Office. See 37 CFR 201.1, sec. 203, sec. 204, and sec. 205.
    (c) The purpose of this subpart is to ensure that employees' 
official time is used only for official purposes, to maintain the 
impartiality of the Library of Congress among private litigants, to 
ensure that public funds are not used for private purposes, to ensure 
the protection of Congress' interests, and to establish centralized 
procedures for deciding whether or not to approve testimony or the 
production of documents.



Sec. 703.16  Policy on presentation of testimony and production of documents.

    No Library of Congress employee may provide testimony or produce 
documents in any proceeding to which this part applies concerning 
information acquired in the course of performing official duties or 
because of the employee's official relationship with the Library of 
Congress, unless authorized by the General Counsel or his/her designee, 
or the Director of the Congressional Research Service (CRS) with respect 
to records and testimony relating to CRS's work for Congress, or the Law 
Librarian for records and testimony relating to the Law Library's work 
for Congress or materials prepared for other federal agencies covered by 
evidentiary privileges. The aforementioned officials (hereinafter 
``deciding officials'') will consider and act upon demands under this 
part with due regard for the interests of Congress, where appropriate, 
statutory requirements, the Library's interests, and the public 
interest, taking into account factors such as applicable privileges and 
immunities, including the deliberative process privilege and the speech 
or debate clause, the need to conserve the time of employees for 
conducting official business, the need to avoid spending the time and 
money of the United States for private purposes, the need to maintain 
impartiality among private litigants in cases where a substantial 
government interest is not involved, the established legal standards for 
determining whether or not justification exists for the disclosure of 
confidential information and records, and any other purpose that the 
deciding official deems to be in the interest of Congress or the Library 
of Congress.



Sec. 703.17  Procedures when testimony and/or documents are demanded.

    A demand for testimony and/or documents by a Library employee must 
be in writing, must state the nature of the requested testimony and/or 
specify documents, and must meet the requirements of Sec. 703.15. A 
demand must also show that the desired testimony or document is not 
reasonably available from any other source and must show that no 
document could be provided and used in lieu of testimony. When an 
employee of the Library receives such a request the employee will 
immediately forward it, with the recommendation of the employee's 
supervisors, to the appropriate deciding official under Sec. 703.22 of 
this part. The deciding official, in consultation with the appropriate 
offices of the Library or congressional offices, will determine whether 
or not compliance with the request would be appropriate and will respond 
as soon as practicable.



Sec. 703.18  Procedures when an employee's appearance is demanded or documents are demanded.

    (a) If the deciding official has not acted by the return date on a 
subpoena, the employee must appear at the stated time and place (unless 
advised by the deciding official that the subpoena was not validly 
issued or served or that

[[Page 79]]

the subpoena has been withdrawn) and inform the court (or other 
interested parties) that the demand has been or is being, as the case 
may be, referred for the prompt consideration of the appropriate Library 
or congressional officials and shall respectfully request the court (or 
other authority) to stay the demand pending receipt of the requested 
instructions.
    (b) If the deciding official has denied approval to comply with the 
subpoena, and the court or authority rules that the demand must be 
complied with irrespective of such a denial, the employee upon whom such 
a demand has been made shall produce a copy of this Part and shall 
respectfully refuse to provide any testimony or produce any documents. 
United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951).
    (c) The deciding official, as appropriate, will request the 
assistance of the Department of Justice or the U.S. Attorney's Office or 
congressional officials where necessary to represent the interests of 
the Library, the Congress, and the employee in any of the foregoing 
proceedings.



Sec. 703.19  Requests for authenticated copies of Library documents.

    Requests for authenticated copies of Library documents for purposes 
of admissibility under 28 U.S.C. 1733 and Rule 44 of the Federal Rules 
of Civil Procedure will be granted for documents that would otherwise be 
released pursuant to the Library's Regulations governing the release of 
information. The advice of the appropriate deciding official should be 
obtained concerning the proper form of authentication and information as 
to the proper person having custody of the record.



Sec. 703.20  File copies.

    The Office of the General Counsel will maintain the official file of 
copies of all demands served on the Library and deciding officials' 
responses.



Sec. 703.21  Effect of this part.

    This part is intended only to provide guidance for the internal 
operations of the Library of Congress and is not intended to, 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 
Library of Congress or the United States.



Sec. 703.22  Where to serve demands.

    Requesting parties must serve subpoenas:
    (a) For Congressional Research Service matters: Director, 
Congressional Research Service, LM 203, Library of Congress, Washington, 
DC 20540.
    (b) For Law Library matters: Law Librarian, LM 240, Library of 
Congress, Washington, DC 20540.
    (c) For all other matters: General Counsel, LM 601, Library of 
Congress, Washington, DC 20540.



PART 704_NATIONAL FILM REGISTRY OF THE LIBRARY OF CONGRESS--Table of Contents






Sec. 704.1  Films selected for inclusion in the National Film Registry.

    After the reauthorization of the National Film Registry Act, only 
the list of films selected for the year of publication will be printed. 
For a complete list of films included in the National Film Registry, see 
http://lcweb.loc.gov/film/nfrchron.html.

    Authority: Pub. L. 102-307, 106 Stat. 267 (2 U.S.C. 179).

[69 FR 39843, July 1, 2004]



PART 705_REPRODUCTION, COMPILATION, AND DISTRIBUTION OF NEWS TRANSMISSIONS UNDER THE PROVISIONS OF THE AMERICAN TELEVISION AND RADIO ARCHIVES ACT--Table of Contents




Sec.
705.1 Scope and purpose of this part.
705.2 Authority.
705.3 Definitions.
705.4 Reproduction.
705.5 Disposition and use of copies and phonorecords by the Library of 
          Congress.
705.6 Compilation.
705.7 Distribution.
705.8 Agreements modifying the terms of this part.

    Authority: 2 U.S.C. 136, and 170.

    Source: 69 FR 39843, July 1, 2004, unless otherwise noted.

[[Page 80]]



Sec. 705.1  Scope and purpose of this part.

    The purpose of this part is to implement certain provisions of the 
American Television and Radio Archives Act, 2 U.S.C. 170. Specifically, 
this part prescribes rules pertaining to the reproduction, compilation, 
and distribution by the Library of Congress, under section 170(b) of 
title 2 of the United States Code, of television and radio transmission 
programs consisting of regularly scheduled newscasts or on-the-spot 
coverage of news events.



Sec. 705.2  Authority.

    Section 170(b) of Title 2 authorizes the Librarian, with respect to 
a transmission program which consists of a regularly scheduled newscast 
or on-the-spot coverage of news events, to prescribe by regulation 
standards and conditions to reproduce, compile, and distribute such a 
program as more particularly specified in the statute.



Sec. 705.3  Definitions.

    For purposes of this part:
    (a) The terms copies, fixed, phonorecords and transmission program, 
and their variant forms, have the meanings given to them in section 101 
of title 17 of the United States Code. For the purpose of this part, the 
term transmission includes transmission via the Internet, cable, 
broadcasting, and satellite systems, and via any other existing or 
future devices or processes for the communication of a performance or 
display whereby images or sounds are received beyond the place from 
which they are sent. 17 U.S.C. 101; H.R. Rep. No. 94-1476, at 64 (1976).
    (b) The term regularly scheduled newscasts means transmission 
programs in any format that report on current events, regardless of 
quality, subject matter, or significance, and that air on a periodic 
basis, (including but not limited to daily, weekly, or quarterly), or on 
an occasional basis, but not on a special, one-time basis. The term on-
the-spot coverage of news events refers to transmission programs in any 
format that report on reasonably recent current events, regardless of 
quality, subject matter, or significance, and that are aired in a timely 
manner but not necessarily contemporaneously with the recording of the 
events.
    (c) The term staff for the purpose of this part includes both 
Library employees and contractors.



Sec. 705.4  Reproduction.

    (a) Library of Congress staff acting under the general authority of 
the Librarian of Congress may reproduce fixations of television and 
radio transmission programs consisting of regularly scheduled newscasts 
or on-the-spot coverage of news events directly from transmissions to 
the public in the United States in accordance with section 170(b) of 
title 2 of the United States Code. Recording may be accomplished in the 
same or another tangible form as the original transmission. The choice 
of programs selected for recording will be made consistent with the 
purpose of, and based on the criteria set forth in, the American 
Television and Radio Archives Act at 2 U.S.C. 170(a), and on Library of 
Congress acquisition policies in effect at the time of recording.
    (b) Specific notice of an intent to copy a transmission program will 
ordinarily not be given. In general, the Library of Congress will seek 
to copy off-the-air selected portions of the programming transmitted by 
both noncommercial educational broadcast stations as defined in section 
397 of title 47 of the United States Code, and by commercial broadcast 
stations. Upon written request addressed to the Chief, Motion Picture, 
Broadcasting and Recorded Sound Division by a broadcast station or other 
owner of the right of transmission, the Library of Congress will inform 
the requestor whether a particular transmission program has been copied 
by the Library.



Sec. 705.5  Disposition and use of copies and phonorecords by the Library of Congress.

    (a) All copies and phonorecords acquired under this part will be 
maintained by the Motion Picture, Broadcasting and Recorded Sound 
Division of the Library of Congress. The Library may make such copies or 
phonorecords of a program as are necessary for purposes of preservation, 
security, and, as specified in Sec. 705.7, distribution.

[[Page 81]]

    (b) To the extent that the Library of Congress's use of copies and 
phonorecords acquired under this part is not subject to the provisions 
of the American Television and Radio Archives Act (section 170 of title 
2 of the United States Code) and this part, such use shall be subject to 
the restrictions concerning copying and access found in Library of 
Congress Regulation 818-17, ``Policies Governing the Use and 
Availability of Motion Pictures and Other Audiovisual Works in the 
Collections of the Library of Congress,'' and Library of Congress 
Regulation 818-18.1, ``Recorded Sound Listening and Duplication 
Services'' available from the Office of the General Counsel, Library of 
Congress, Washington, DC 20540-1050. Such use shall also be governed by 
the Copyright Act of 1976, as amended.



Sec. 705.6  Compilation.

    (a) Library of Congress staff acting under the general authority of 
the Librarian of Congress may compile, without abridgement or any other 
editing, portions of recordings created pursuant to Sec. 705.4 
according to subject matter, and may reproduce such compilations for 
purposes of preservation, security, or distribution as permitted under 
Sec. 705.7 below.
    (b) Compilations shall be organized, to the greatest extent 
possible, in chronological order, and shall include the entirety of any 
particular news segment.
    (c) No compilation by the Librarian shall be deemed for any purpose 
or proceeding to be an official determination of the subject matter 
covered by such compilation.



Sec. 705.7  Distribution.

    (a) Library staff acting under the general authority of the 
Librarian of Congress may distribute a reproduction of a transmission 
program or a compilation of transmission programs made under this part, 
by loan to a researcher, provided that the researcher indicates the 
particular segments of the news broadcasts or compilations that he or 
she wishes to review, on the basis of an index or other finding aid 
prepared by the Librarian; and for deposit in a library or archives 
which meets the requirements of section 108(a) of title 17 of the United 
States Code.
    (b) Library staff will advise all recipients of such reproductions 
that such distribution shall be only for the purposes of research and 
not for further reproduction or performance, and that any use in excess 
of that permitted by the American Television and Radio Archives Act 
(section 170 of title 2 of the United States Code), title 17 of the 
United States Code, and this part may violate copyrights or other 
rights.



Sec. 705.8  Agreements modifying the terms of this part.

    (a) The Library of Congress may, at its sole discretion, enter into 
an agreement whereby the provision of copies or phonorecords of 
transmission programs of regularly scheduled newscasts or on-the-spot 
coverage of news events on terms different from those contained in this 
part is authorized.
    (b) Any such agreement may be terminated without notice by the 
Library of Congress.

                        PARTS 706	799 [RESERVED]

[[Page 83]]



                     CHAPTER VIII--ADVISORY COUNCIL






                        ON HISTORIC PRESERVATION




  --------------------------------------------------------------------
Part                                                                Page
800             Protection of historic properties...........          85
801             Historic preservation requirements of the 
                    Urban Development Action Grant Program..         110
805             Procedures for implementation of National 
                    Environmental Policy Act................         123
810             Freedom of Information Act regulations......         125
811             Employee responsibilities and conduct.......         127
812             Enforcement of nondiscrimination on the 
                    basis of handicap in programs or 
                    activities conducted by the Advisory 
                    Council on Historic Preservation........         127
813-899

[Reserved]

[[Page 85]]



PART 800_PROTECTION OF HISTORIC PROPERTIES--Table of Contents




                   Subpart A_Purposes and Participants

Sec.
800.1 Purposes.
800.2 Participants in the Section 106 process.

                    Subpart B_The Section 106 Process

800.3 Initiation of the section 106 process.
800.4 Identification of historic properties.
800.5 Assessment of adverse effects.
800.6 Resolution of adverse effects.
800.7 Failure to resolve adverse effects.
800.8 Coordination with the National Environmental Policy Act.
800.9 Council review of Section 106 compliance.
800.10 Special requirements for protecting National Historic Landmarks.
800.11 Documentation standards.
800.12 Emergency situations.
800.13 Post-review discoveries.

                     Subpart C_Program Alternatives

800.14 Federal agency program alternatives.
800.15 Tribal, State, and local program alternatives. [Reserved]
800.16 Definitions.

Appendix A to Part 800--Criteria for Council involvement in reviewing 
          individual section 106 cases

    Authority: 16 U.S.C. 470s.

    Source: 65 FR 77725, Dec. 12, 2000, unless otherwise noted.



                   Subpart A_Purposes and Participants



Sec. 800.1  Purposes.

    (a) Purposes of the section 106 process. Section 106 of the National 
Historic Preservation Act requires Federal agencies to take into account 
the effects of their undertakings on historic properties and afford the 
Council a reasonable opportunity to comment on such undertakings. The 
procedures in this part define how Federal agencies meet these statutory 
responsibilities. The section 106 process seeks to accommodate historic 
preservation concerns with the needs of Federal undertakings through 
consultation among the agency official and other parties with an 
interest in the effects of the undertaking on historic properties, 
commencing at the early stages of project planning. The goal of 
consultation is to identify historic properties potentially affected by 
the undertaking, assess its effects and seek ways to avoid, minimize or 
mitigate any adverse effects on historic properties.
    (b) Relation to other provisions of the act. Section 106 is related 
to other provisions of the act designed to further the national policy 
of historic preservation. References to those provisions are included in 
this part to identify circumstances where they may affect actions taken 
to meet section 106 requirements. Such provisions may have their own 
implementing regulations or guidelines and are not intended to be 
implemented by the procedures in this part except insofar as they relate 
to the section 106 process. Guidelines, policies, and procedures issued 
by other agencies, including the Secretary, have been cited in this part 
for ease of access and are not incorporated by reference.
    (c) Timing. The agency official must complete the section 106 
process ``prior to the approval of the expenditure of any Federal funds 
on the undertaking or prior to the issuance of any license.'' This does 
not prohibit agency official from conducting or authorizing 
nondestructive project planning activities before completing compliance 
with section 106, provided that such actions do not restrict the 
subsequent consideration of alternatives to avoid, minimize or mitigate 
the undertaking's adverse effects on historic properties. The agency 
official shall ensure that the section 106 process is initiated early in 
the undertaking's planning, so that a broad range of alternatives may be 
considered during the planning process for the undertaking.



Sec. 800.2  Participants in the Section 106 process.

    (a) Agency official. It is the statutory obligation of the Federal 
agency to fulfill the requirements of section 106 and to ensure that an 
agency official with jurisdiction over an undertaking takes legal and 
financial responsibility for section 106 compliance in accordance with 
subpart B of this part. The agency official has approval authority for 
the undertaking and can commit the Federal agency to take appropriate 
action

[[Page 86]]

for a specific undertaking as a result of section 106 compliance. For 
the purposes of subpart C of this part, the agency official has the 
authority to commit the Federal agency to any obligation it may assume 
in the implementation of a program alternative. The agency official may 
be a State, local, or tribal government official who has been delegated 
legal responsibility for compliance with section 106 in accordance with 
Federal law.
    (1) Professional standards. Section 112(a)(1)(A) of the act requires 
each Federal agency responsible for the protection of historic 
resources, including archeological resources, to ensure that all actions 
taken by employees or contractors of the agency shall meet professional 
standards under regulations developed by the Secretary.
    (2) Lead Federal agency. If more than one Federal agency is involved 
in an undertaking, some or all the agencies may designate a lead Federal 
agency, which shall identify the appropriate official to serve as the 
agency official who shall act on their behalf, fulfilling their 
collective responsibilities under section 106. Those Federal agencies 
that do not designate a lead Federal agency remain individually 
responsible for their compliance with this part.
    (3) Use of contractors. Consistent with applicable conflict of 
interest laws, the agency official may use the services of applicants, 
consultants, or designees to prepare information, analyses and 
recommendations under this part. The agency official remains legally 
responsible for all required findings and determinations. If a document 
or study is prepared by a non-Federal party, the agency official is 
responsible for ensuring that its content meets applicable standards and 
guidelines.
    (4) Consultation. The agency official shall involve the consulting 
parties described in paragraph (c) of this section in findings and 
determinations made during the section 106 process. The agency official 
should plan consultations appropriate to the scale of the undertaking 
and the scope of Federal involvement and coordinated with other 
requirements of other statutes, as applicable, such as the National 
Environmental Policy Act, the Native American Graves Protection and 
Repatriation Act, the American Indian Religious Freedom Act, the 
Archeological Resources Protection Act, and agency-specific legislation. 
The Council encourages the agency official to use to the extent possible 
existing agency procedures and mechanisms to fulfill the consultation 
requirements of this part.
    (b) Council. The Council issues regulations to implement section 
106, provides guidance and advice on the application of the procedures 
in this part, and generally oversees the operation of the section 106 
process. The Council also consults with and comments to agency officials 
on individual undertakings and programs that affect historic properties.
    (1) Council entry into the section 106 process. When the Council 
determines that its involvement is necessary to ensure that the purposes 
of section 106 and the act are met, the Council may enter the section 
106 process. Criteria guiding Council decisions to enter the section 106 
process are found in appendix A to this part. The Council will document 
that the criteria have been met and notify the parties to the section 
106 process as required by this part.
    (2) Council assistance. Participants in the section 106 process may 
seek advice, guidance and assistance from the Council on the application 
of this part to specific undertakings, including the resolution of 
disagreements, whether or not the Council is formally involved in the 
review of the undertaking. If questions arise regarding the conduct of 
the section 106 process, participants are encouraged to obtain the 
Council's advice on completing the process.
    (c) Consulting parties. The following parties have consultative 
roles in the section 106 process.
    (1) State historic preservation officer. (i) The State historic 
preservation officer (SHPO) reflects the interests of the State and its 
citizens in the preservation of their cultural heritage. In accordance 
with section 101(b)(3) of the act, the SHPO advises and assists Federal 
agencies in carrying out their section 106 responsibilities and 
cooperates with such agencies, local governments and organizations and 
individuals to

[[Page 87]]

ensure that historic properties are taking into consideration at all 
levels of planning and development.
    (ii) If an Indian tribe has assumed the functions of the SHPO in the 
section 106 process for undertakings on tribal lands, the SHPO shall 
participate as a consulting party if the undertaking takes place on 
tribal lands but affects historic properties off tribal lands, if 
requested in accordance with Sec. 800.3(c)(1), or if the Indian tribe 
agrees to include the SHPO pursuant to Sec. 800.3(f)(3).
    (2) Indian tribes and Native Hawaiian organizations. (i) 
Consultation on tribal lands. (A) Tribal historic preservation officer. 
For a tribe that has assumed the responsibilities of the SHPO for 
section 106 on tribal lands under section 101(d)(2) of the act, the 
tribal historic preservation officer (THPO) appointed or designated in 
accordance with the act is the official representative for the purposes 
of section 106. The agency official shall consult with the THPO in lieu 
of the SHPO regarding undertakings occurring on or affecting historic 
properties on tribal lands.
    (B) Tribes that have not assumed SHPO functions. When an Indian 
tribe has not assumed the responsibilities of the SHPO for section 106 
on tribal lands under section 101(d)(2) of the act, the agency official 
shall consult with a representative designated by such Indian tribe in 
addition to the SHPO regarding undertakings occurring on or affecting 
historic properties on its tribal lands. Such Indian tribes have the 
same rights of consultation and concurrence that the THPOs are given 
throughout subpart B of this part, except that such consultations shall 
be in addition to and on the same basis as consultation with the SHPO.
    (ii) Consultation on historic properties of significance to Indian 
tribes and Native Hawaiian organizations. Section 101(d)(6)(B) of the 
act requires the agency official to consult with any Indian tribe or 
Native Hawaiian organization that attaches religious and cultural 
significance to historic properties that may be affected by an 
undertaking. This requirement applies regardless of the location of the 
historic property. Such Indian tribe or Native Hawaiian organization 
shall be a consulting party.
    (A) The agency official shall ensure that consultation in the 
section 106 process provides the Indian tribe or Native Hawaiian 
organization a reasonable opportunity to identify its concerns about 
historic properties, advise on the identification and evaluation of 
historic properties, including those of traditional religious and 
cultural importance, articulate its views on the undertaking's effects 
on such properties, and participate in the resolution of adverse 
effects. It is the responsibility of the agency official to make a 
reasonable and good faith effort to identify Indian tribes and Native 
Hawaiian organizations that shall be consulted in the section 106 
process. Consultation should commence early in the planning process, in 
order to identify and discuss relevant preservation issues and resolve 
concerns about the confidentiality of information on historic 
properties.
    (B) The Federal Government has a unique legal relationship with 
Indian tribes set forth in the Constitution of the United States, 
treaties, statutes, and court decisions. Consultation with Indian tribes 
should be conducted in a sensitive manner respectful of tribal 
sovereignty. Nothing in this part alters, amends, repeals, interprets, 
or modifies tribal sovereignty, any treaty rights, or other rights of an 
Indian tribe, or preempts, modifies, or limits the exercise of any such 
rights.
    (C) Consultation with an Indian tribe must recognize the government-
to-government relationship between the Federal Government and Indian 
tribes. The agency official shall consult with representatives 
designated or identified by the tribal government or the governing body 
of a Native Hawaiian organization. Consultation with Indian tribes and 
Native Hawaiian organizations should be conducted in a manner sensitive 
to the concerns and needs of the Indian tribe or Native Hawaiian 
organization.
    (D) When Indian tribes and Native Hawaiian organizations attach 
religious and cultural significance to historic properties off tribal 
lands, section 101(d)(6)(B) of the act requires Federal agencies to 
consult with such Indian

[[Page 88]]

tribes and Native Hawaiian organizations in the section 106 process. 
Federal agencies should be aware that frequently historic properties of 
religious and cultural significance are located on ancestral, 
aboriginal, or ceded lands of Indian tribes and Native Hawaiian 
organizations and should consider that when complying with the 
procedures in this part.
    (E) An Indian tribe or a Native Hawaiian organization may enter into 
an agreement with an agency official that specifies how they will carry 
out responsibilities under this part, including concerns over the 
confidentiality of information. An agreement may cover all aspects of 
tribal participation in the section 106 process, provided that no 
modification may be made in the roles of other parties to the section 
106 process without their consent. An agreement may grant the Indian 
tribe or Native Hawaiian organization additional rights to participate 
or concur in agency decisions in the section 106 process beyond those 
specified in subpart B of this part. The agency official shall provide a 
copy of any such agreement to the Council and the appropriate SHPOs.
    (F) An Indian tribe that has not assumed the responsibilities of the 
SHPO for section 106 on tribal lands under section 101(d)(2) of the act 
may notify the agency official in writing that it is waiving its rights 
under Sec. 800.6(c)(1) to execute a memorandum of agreement.
    (3) Representatives of local governments. A representative of a 
local government with jurisdiction over the area in which the effects of 
an undertaking may occur is entitled to participate as a consulting 
party. Under other provisions of Federal law, the local government may 
be authorized to act as the agency official for purposes of section 106.
    (4) Applicants for Federal assistance, permits, licenses, and other 
approvals. An applicant for Federal assistance or for a Federal permit, 
license, or other approval is entitled to participate as a consulting 
party as defined in this part. The agency official may authorize an 
applicant or group of applicants to initiate consultation with the SHPO/
THPO and others, but remains legally responsible for all findings and 
determinations charged to the agency official. The agency official shall 
notify the SHPO/THPO when an applicant or group of applicants is so 
authorized. A Federal agency may authorize all applicants in a specific 
program pursuant to this section by providing notice to all SHPO/THPOs. 
Federal agencies that provide authorizations to applicants remain 
responsible for their government-to-government relationships with Indian 
tribes.
    (5) Additional consulting parties. Certain individuals and 
organizations with a demonstrated interest in the undertaking may 
participate as consulting parties due to the nature of their legal or 
economic relation to the undertaking or affected properties, or their 
concern with the undertaking's effects on historic properties.
    (d) The public--(1) Nature of involvement. The views of the public 
are essential to informed Federal decisionmaking in the section 106 
process. The agency official shall seek and consider the views of the 
public in a manner that reflects the nature and complexity of the 
undertaking and its effects on historic properties, the likely interest 
of the public in the effects on historic properties, confidentiality 
concerns of private individuals and businesses, and the relationship of 
the Federal involvement to the undertaking.
    (2) Providing notice and information. The agency official must, 
except where appropriate to protect confidentiality concerns of affected 
parties, provide the public with information about an undertaking and 
its effects on historic properties and seek public comment and input. 
Members of the public may also provide views on their own initiative for 
the agency official to consider in decisionmaking.
    (3) Use of agency procedures. The agency official may use the 
agency's procedures for public involvement under the National 
Environmental Policy Act or other program requirements in lieu of public 
involvement requirements in subpart B of this part, if they provide 
adequate opportunities for public involvement consistent with this 
subpart.

[[Page 89]]



                    Subpart B_The section 106 Process



Sec. 800.3  Initiation of the section 106 process.

    (a) Establish undertaking. The agency official shall determine 
whether the proposed Federal action is an undertaking as defined in 
Sec. 800.16(y) and, if so, whether it is a type of activity that has 
the potential to cause effects on historic properties.
    (1) No potential to cause effects. If the undertaking is a type of 
activity that does not have the potential to cause effects on historic 
properties, assuming such historic properties were present, the agency 
official has no further obligations under section 106 or this part.
    (2) Program alternatives. If the review of the undertaking is 
governed by a Federal agency program alternative established under Sec. 
800.14 or a programmatic agreement in existence before January 11, 2001, 
the agency official shall follow the program alternative.
    (b) Coordinate with other reviews. The agency official should 
coordinate the steps of the section 106 process, as appropriate, with 
the overall planning schedule for the undertaking and with any reviews 
required under other authorities such as the National Environmental 
Policy Act, the Native American Graves Protection and Repatriation Act, 
the American Indian Religious Freedom Act, the Archeological Resources 
Protection Act, and agency-specific legislation, such as section 4(f) of 
the Department of Transportation Act. Where consistent with the 
procedures in this subpart, the agency official may use information 
developed for other reviews under Federal, State, or tribal law to meet 
the requirements of section 106.
    (c) Identify the appropriate SHPO and/or THPO. As part of its 
initial planning, the agency official shall determine the appropriate 
SHPO or SHPOs to be involved in the section 106 process. The agency 
official shall also determine whether the undertaking may occur on or 
affect historic properties on any tribal lands and, if so, whether a 
THPO has assumed the duties of the SHPO. The agency official shall then 
initiate consultation with the appropriate officer or officers.
    (1) Tribal assumption of SHPO responsibilities. Where an Indian 
tribe has assumed the section 106 responsibilities of the SHPO on tribal 
lands pursuant to section 101(d)(2) of the act, consultation for 
undertakings occurring on tribal land or for effects on tribal land is 
with the THPO for the Indian tribe in lieu of the SHPO. Section 
101(d)(2)(D)(iii) of the act authorizes owners of properties on tribal 
lands which are neither owned by a member of the tribe nor held in trust 
by the Secretary for the benefit of the tribe to request the SHPO to 
participate in the section 106 process in addition to the THPO.
    (2) Undertakings involving more than one State. If more than one 
State is involved in an undertaking, the involved SHPOs may agree to 
designate a lead SHPO to act on their behalf in the section 106 process, 
including taking actions that would conclude the section 106 process 
under this subpart.
    (3) Conducting consultation. The agency official should consult with 
the SHPO/THPO in a manner appropriate to the agency planning process for 
the undertaking and to the nature of the undertaking and its effects on 
historic properties.
    (4) Failure of the SHPO/THPO to respond. If the SHPO/THPO fails to 
respond within 30 days of receipt of a request for review of a finding 
or determination, the agency official may either proceed to the next 
step in the process based on the finding or determination or consult 
with the Council in lieu of the SHPO/THPO. If the SHPO/THPO re-enters 
the Section 106 process, the agency official shall continue the 
consultation without being required to reconsider previous findings or 
determinations.
    (d) Consultation on tribal lands. Where the Indian tribe has not 
assumed the responsibilities of the SHPO on tribal lands, consultation 
with the Indian tribe regarding undertakings occurring on such tribe's 
lands or effects on such tribal lands shall be in addition to and on the 
same basis as consultation with the SHPO. If the SHPO has withdrawn from 
the process, the agency official may complete the section 106 process

[[Page 90]]

with the Indian tribe and the Council, as appropriate. An Indian tribe 
may enter into an agreement with a SHPO or SHPOs specifying the SHPO's 
participation in the section 106 process for undertakings occurring on 
or affecting historic properties on tribal lands.
    (e) Plan to involve the public. In consultation with the SHPO/THPO, 
the agency official shall plan for involving the public in the section 
106 process. The agency official shall identify the appropriate points 
for seeking public input and for notifying the public of proposed 
actions, consistent with Sec. 800.2(d).
    (f) Identify other consulting parties. In consultation with the 
SHPO/THPO, the agency official shall identify any other parties entitled 
to be consulting parties and invite them to participate as such in the 
section 106 process. The agency official may invite others to 
participate as consulting parties as the section 106 process moves 
forward.
    (1) Involving local governments and applicants. The agency official 
shall invite any local governments or applicants that are entitled to be 
consulting parties under Sec. 800.2(c).
    (2) Involving Indian tribes and Native Hawaiian organizations. The 
agency official shall make a reasonable and good faith effort to 
identify any Indian tribes or Native Hawaiian organizations that might 
attach religious and cultural significance to historic properties in the 
area of potential effects and invite them to be consulting parties. Such 
Indian tribe or Native Hawaiian organization that requests in writing to 
be a consulting party shall be one.
    (3) Requests to be consulting parties. The agency official shall 
consider all written requests of individuals and organizations to 
participate as consulting parties and, in consultation with the SHPO/
THPO and any Indian tribe upon whose tribal lands an undertaking occurs 
or affects historic properties, determine which should be consulting 
parties.
    (g) Expediting consultation. A consultation by the agency official 
with the SHPO/THPO and other consulting parties may address multiple 
steps in Sec. Sec. 800.3 through 800.6 where the agency official and 
the SHPO/THPO agree it is appropriate as long as the consulting parties 
and the public have an adequate opportunity to express their views as 
provided in Sec. 800.2(d).



Sec. 800.4  Identification of historic properties.

    (a) Determine scope of identification efforts. In consultation with 
the SHPO/THPO, the agency official shall:
    (1) Determine and document the area of potential effects, as defined 
in Sec. 800.16(d);
    (2) Review existing information on historic properties within the 
area of potential effects, including any data concerning possible 
historic properties not yet identified;
    (3) Seek information, as appropriate, from consulting parties, and 
other individuals and organizations likely to have knowledge of, or 
concerns with, historic properties in the area, and identify issues 
relating to the undertaking's potential effects on historic properties; 
and
    (4) Gather information from any Indian tribe or Native Hawaiian 
organization identified pursuant to Sec. 800.3(f) to assist in 
identifying properties, including those located off tribal lands, which 
may be of religious and cultural significance to them and may be 
eligible for the National Register, recognizing that an Indian tribe or 
Native Hawaiian organization may be reluctant to divulge specific 
information regarding the location, nature, and activities associated 
with such sites. The agency official should address concerns raised 
about confidentiality pursuant to Sec. 800.11(c).
    (b) Identify historic properties. Based on the information gathered 
under paragraph (a) of this section, and in consultation with the SHPO/
THPO and any Indian tribe or Native Hawaiian organization that might 
attach religious and cultural significance to properties within the area 
of potential effects, the agency official shall take the steps necessary 
to identify historic properties within the area of potential effects.
    (1) Level of effort. The agency official shall make a reasonable and 
good faith effort to carry out appropriate identification efforts, which 
may include background research, consultation,

[[Page 91]]

oral history interviews, sample field investigation, and field survey. 
The agency official shall take into account past planning, research and 
studies, the magnitude and nature of the undertaking and the degree of 
Federal involvement, the nature and extent of potential effects on 
historic properties, and the likely nature and location of historic 
properties within the area of potential effects. The Secretary's 
standards and guidelines for identification provide guidance on this 
subject. The agency official should also consider other applicable 
professional, State, tribal, and local laws, standards, and guidelines. 
The agency official shall take into account any confidentiality concerns 
raised by Indian tribes or Native Hawaiian organizations during the 
identification process.
    (2) Phased identification and evaluation. Where alternatives under 
consideration consist of corridors or large land areas, or where access 
to properties is restricted, the agency official may use a phased 
process to conduct identification and evaluation efforts. The agency 
official may also defer final identification and evaluation of historic 
properties if it is specifically provided for in a memorandum of 
agreement executed pursuant to Sec. 800.6, a programmatic agreement 
executed pursuant to Sec. 800.14(b), or the documents used by an agency 
official to comply with the National Environmental Policy Act pursuant 
to Sec. 800.8. The process should establish the likely presence of 
historic properties within the area of potential effects for each 
alternative or inaccessible area through background research, 
consultation and an appropriate level of field investigation, taking 
into account the number of alternatives under consideration, the 
magnitude of the undertaking and its likely effects, and the views of 
the SHPO/THPO and any other consulting parties. As specific aspects or 
locations of an alternative are refined or access is gained, the agency 
official shall proceed with the identification and evaluation of 
historic properties in accordance with paragraphs (b)(1) and (c) of this 
section.
    (c) Evaluate historic significance--(1) Apply National Register 
criteria. In consultation with the SHPO/THPO and any Indian tribe or 
Native Hawaiian organization that attaches religious and cultural 
significance to identified properties and guided by the Secretary's 
standards and guidelines for evaluation, the agency official shall apply 
the National Register criteria (36 CFR part 63) to properties identified 
within the area of potential effects that have not been previously 
evaluated for National Register eligibility. The passage of time, 
changing perceptions of significance, or incomplete prior evaluations 
may require the agency official to reevaluate properties previously 
determined eligible or ineligible. The agency official shall acknowledge 
that Indian tribes and Native Hawaiian organizations possess special 
expertise in assessing the eligibility of historic properties that may 
possess religious and cultural significance to them.
    (2) Determine whether a property is eligible. If the agency official 
determines any of the National Register criteria are met and the SHPO/
THPO agrees, the property shall be considered eligible for the National 
Register for section 106 purposes. If the agency official determines the 
criteria are not met and the SHPO/THPO agrees, the property shall be 
considered not eligible. If the agency official and the SHPO/THPO do not 
agree, or if the Council or the Secretary so request, the agency 
official shall obtain a determination of eligibility from the Secretary 
pursuant to 36 CFR part 63. If an Indian tribe or Native Hawaiian 
organization that attaches religious and cultural significance to a 
property off tribal lands does not agree, it may ask the Council to 
request the agency official to obtain a determination of eligibility.
    (d) Results of identification and evaluation--(1) No historic 
properties affected. If the agency official finds that either there are 
no historic properties present or there are historic properties present 
but the undertaking will have no effect upon them as defined in Sec. 
800.16(i), the agency official shall provide documentation of this 
finding, as set forth in Sec. 800.11(d), to the SHPO/THPO. The agency 
official shall notify all consulting parties, including Indian tribes 
and Native Hawaiian organizations, and make the documentation available

[[Page 92]]

for public inspection prior to approving the undertaking.
    (i) If the SHPO/THPO, or the Council if it has entered the section 
106 process, does not object within 30 days of receipt of an adequately 
documented finding, the agency official's responsibilities under section 
106 are fulfilled.
    (ii) If the SHPO/THPO objects within 30 days of receipt of an 
adequately documented finding, the agency official shall either consult 
with the objecting party to resolve the disagreement, or forward the 
finding and supporting documentation to the Council and request that the 
Council review the finding pursuant to paragraphs (d)(1)(iv)(A) through 
(d)(1)(iv)(C) of this section. When an agency official forwards such 
requests for review to the Council, the agency official shall 
concurrently notify all consulting parties that such a request has been 
made and make the request documentation available to the public.
    (iii) During the SHPO/THPO 30 day review period, the Council may 
object to the finding and provide its opinion regarding the finding to 
the agency official and, if the Council determines the issue warrants 
it, the head of the agency. A Council decision to provide its opinion to 
the head of an agency shall be guided by the criteria in appendix A to 
this part. The agency shall then proceed according to paragraphs 
(d)(1)(iv)(B) and (d)(1)(iv)(C) of this section.
    (iv) (A) Upon receipt of the request under paragraph (d)(1)(ii) of 
this section, the Council will have 30 days in which to review the 
finding and provide the agency official and, if the Council determines 
the issue warrants it, the head of the agency with the Council's opinion 
regarding the finding. A Council decision to provide its opinion to the 
head of an agency shall be guided by the criteria in appendix A to this 
part. If the Council does not respond within 30 days of receipt of the 
request, the agency official's responsibilities under section 106 are 
fulfilled.
    (B) The person to whom the Council addresses its opinion (the agency 
official or the head of the agency) shall take into account the 
Council's opinion before the agency reaches a final decision on the 
finding.
    (C) The person to whom the Council addresses its opinion (the agency 
official or the head of the agency) shall then prepare a summary of the 
decision that contains the rationale for the decision and evidence of 
consideration of the Council's opinion, and provide it to the Council, 
the SHPO/THPO, and the consulting parties. The head of the agency may 
delegate his or her duties under this paragraph to the agency's senior 
policy official. If the agency official's initial finding will be 
revised, the agency official shall proceed in accordance with the 
revised finding. If the final decision of the agency is to affirm the 
initial agency finding of no historic properties affected, once the 
summary of the decision has been sent to the Council, the SHPO/THPO, and 
the consulting parties, the agency official's responsibilities under 
section 106 are fulfilled.
    (D) The Council shall retain a record of agency responses to Council 
opinions on their findings of no historic properties affected. The 
Council shall make this information available to the public.
    (2) Historic properties affected. If the agency official finds that 
there are historic properties which may be affected by the undertaking, 
the agency official shall notify all consulting parties, including 
Indian tribes or Native Hawaiian organizations, invite their views on 
the effects and assess adverse effects, if any, in accordance with Sec. 
800.5.

[65 FR 77725, Dec. 12, 2000, as amended at 69 FR 40553, July 6, 2004]



Sec. 800.5  Assessment of adverse effects.

    (a) Apply criteria of adverse effect. In consultation with the SHPO/
THPO and any Indian tribe or Native Hawaiian organization that attaches 
religious and cultural significance to identified historic properties, 
the agency official shall apply the criteria of adverse effect to 
historic properties within the area of potential effects. The agency 
official shall consider any views concerning such effects which have 
been provided by consulting parties and the public.
    (1) Criteria of adverse effect. An adverse effect is found when an 
undertaking may alter, directly or indirectly, any of the 
characteristics of a

[[Page 93]]

historic property that qualify the property for inclusion in the 
National Register in a manner that would diminish the integrity of the 
property's location, design, setting, materials, workmanship, feeling, 
or association. Consideration shall be given to all qualifying 
characteristics of a historic property, including those that may have 
been identified subsequent to the original evaluation of the property's 
eligibility for the National Register. Adverse effects may include 
reasonably foreseeable effects caused by the undertaking that may occur 
later in time, be farther removed in distance or be cumulative.
    (2) Examples of adverse effects. Adverse effects on historic 
properties include, but are not limited to:
    (i) Physical destruction of or damage to all or part of the 
property;
    (ii) Alteration of a property, including restoration, 
rehabilitation, repair, maintenance, stabilization, hazardous material 
remediation, and provision of handicapped access, that is not consistent 
with the Secretary's standards for the treatment of historic properties 
(36 CFR part 68) and applicable guidelines;
    (iii) Removal of the property from its historic location;
    (iv) Change of the character of the property's use or of physical 
features within the property's setting that contribute to its historic 
significance;
    (v) Introduction of visual, atmospheric or audible elements that 
diminish the integrity of the property's significant historic features;
    (vi) Neglect of a property which causes its deterioration, except 
where such neglect and deterioration are recognized qualities of a 
property of religious and cultural significance to an Indian tribe or 
Native Hawaiian organization; and
    (vii) Transfer, lease, or sale of property out of Federal ownership 
or control without adequate and legally enforceable restrictions or 
conditions to ensure long-term preservation of the property's historic 
significance.
    (3) Phased application of criteria. Where alternatives under 
consideration consist of corridors or large land areas, or where access 
to properties is restricted, the agency official may use a phased 
process in applying the criteria of adverse effect consistent with 
phased identification and evaluation efforts conducted pursuant to Sec. 
800.4(b)(2).
    (b) Finding of no adverse effect. The agency official, in 
consultation with the SHPO/THPO, may propose a finding of no adverse 
effect when the undertaking's effects do not meet the criteria of 
paragraph (a)(1) of this section or the undertaking is modified or 
conditions are imposed, such as the subsequent review of plans for 
rehabilitation by the SHPO/THPO to ensure consistency with the 
Secretary's standards for the treatment of historic properties (36 CFR 
part 68) and applicable guidelines, to avoid adverse effects.
    (c) Consulting party review. If the agency official proposes a 
finding of no adverse effect, the agency official shall notify all 
consulting parties of the finding and provide them with the 
documentation specified in Sec. 800.11(e). The SHPO/THPO shall have 30 
days from receipt to review the finding.
    (1) Agreement with, or no objection to, finding. Unless the Council 
is reviewing the finding pursuant to papagraph (c)(3) of this section, 
the agency official may proceed after the close of the 30 day review 
period if the SHPO/THPO has agreed with the finding or has not provided 
a response, and no consulting party has objected. The agency official 
shall then carry out the undertaking in accordance with paragraph (d)(1) 
of this section.
    (2) Disagreement with finding. (i) If within the 30 day review 
period the SHPO/THPO or any consulting party notifies the agency 
official in writing that it disagrees with the finding and specifies the 
reasons for the disagreement in the notification, the agency official 
shall either consult with the party to resolve the disagreement, or 
request the Council to review the finding pursuant to paragraphs 
(c)(3)(i) and (c)(3)(ii) of this section. The agency official shall 
include with such request the documentation specified in Sec. 
800.11(e). The agency official shall also concurrently notify all 
consulting parties that such a submission has been made and make the 
submission documentation available to the public.

[[Page 94]]

    (ii) If within the 30 day review period the Council provides the 
agency official and, if the Council determines the issue warrants it, 
the head of the agency, with a written opinion objecting to the finding, 
the agency shall then proceed according to paragraph (c)(3)(ii) of this 
section. A Council decision to provide its opinion to the head of an 
agency shall be guided by the criteria in appendix A to this part.
    (iii) The agency official should seek the concurrence of any Indian 
tribe or Native Hawaiian organization that has made known to the agency 
official that it attaches religious and cultural significance to a 
historic property subject to the finding. If such Indian tribe or Native 
Hawaiian organization disagrees with the finding, it may within the 30 
day review period specify the reasons for disagreeing with the finding 
and request the Council to review and object to the finding pursuant to 
paragraph (c)(2)(ii) of this section.
    (3) Council review of findings. (i) When a finding is submitted to 
the Council pursuant to paragraph (c)(2)(i) of this section, the Council 
shall review the finding and provide the agency official and, if the 
Council determines the issue warrants it, the head of the agency with 
its opinion as to whether the adverse effect criteria have been 
correctly applied. A Council decision to provide its opinion to the head 
of an agency shall be guided by the criteria in appendix A to this part. 
The Council will provide its opinion within 15 days of receiving the 
documented finding from the agency official. The Council at its 
discretion may extend that time period for 15 days, in which case it 
shall notify the agency of such extension prior to the end of the 
initial 15 day period. If the Council does not respond within the 
applicable time period, the agency official's responsibilities under 
section 106 are fulfilled.
    (ii)(A) The person to whom the Council addresses its opinion (the 
agency official or the head of the agency) shall take into account the 
Council's opinion in reaching a final decision on the finding.
    (B) The person to whom the Council addresses its opinion (the agency 
official or the head of the agency) shall prepare a summary of the 
decision that contains the rationale for the decision and evidence of 
consideration of the Council's opinion, and provide it to the Council, 
the SHPO/THPO, and the consulting parties. The head of the agency may 
delegate his or her duties under this paragraph to the agency's senior 
policy official. If the agency official's initial finding will be 
revised, the agency official shall proceed in accordance with the 
revised finding. If the final decision of the agency is to affirm the 
initial finding of no adverse effect, once the summary of the decision 
has been sent to the Council, the SHPO/THPO, and the consulting parties, 
the agency official's responsibilities under section 106 are fulfilled.
    (C) The Council shall retain a record of agency responses to Council 
opinions on their findings of no adverse effects. The Council shall make 
this information available to the public.
    (d) Results of assessment--(1) No adverse effect. The agency 
official shall maintain a record of the finding and provide information 
on the finding to the public on request, consistent with the 
confidentiality provisions of Sec. 800.11(c). Implementation of the 
undertaking in accordance with the finding as documented fulfills the 
agency official's responsibilities under section 106 and this part. If 
the agency official will not conduct the undertaking as proposed in the 
finding, the agency official shall reopen consultation under paragraph 
(a) of this section.
    (2) Adverse effect. If an adverse effect is found, the agency 
official shall consult further to resolve the adverse effect pursuant to 
Sec. 800.6.

[65 FR 77725, Dec. 12, 2000, as amended at 69 FR 40553, July 6, 2004]



Sec. 800.6  Resolution of adverse effects.

    (a) Continue consultation. The agency official shall consult with 
the SHPO/THPO and other consulting parties, including Indian tribes and 
Native Hawaiian organizations, to develop and evaluate alternatives or 
modifications to the undertaking that could avoid, minimize, or mitigate 
adverse effects on historic properties.

[[Page 95]]

    (1) Notify the Council and determine Council participation. The 
agency official shall notify the Council of the adverse effect finding 
by providing the documentation specified in Sec. 800.11(e).
    (i) The notice shall invite the Council to participate in the 
consultation when:
    (A) The agency official wants the Council to participate;
    (B) The undertaking has an adverse effect upon a National Historic 
Landmark; or
    (C) A programmatic agreement under Sec. 800.14(b) will be prepared;
    (ii) The SHPO/THPO, an Indian tribe or Native Hawaiian organization, 
or any other consulting party may at any time independently request the 
Council to participate in the consultation.
    (iii) The Council shall advise the agency official and all 
consulting parties whether it will participate within 15 days of receipt 
of notice or other request. Prior to entering the process, the Council 
shall provide written notice to the agency official and the consulting 
parties that its decision to participate meets the criteria set forth in 
appendix A to this part. The Council shall also advise the head of the 
agency of its decision to enter the process. Consultation with Council 
participation is conducted in accordance with paragraph (b)(2) of this 
section.
    (iv) If the Council does not join the consultation, the agency 
official shall proceed with consultation in accordance with paragraph 
(b)(1) of this section.
    (2) Involve consulting parties. In addition to the consulting 
parties identified under Sec. 800.3(f), the agency official, the SHPO/
THPO and the Council, if participating, may agree to invite other 
individuals or organizations to become consulting parties. The agency 
official shall invite any individual or organization that will assume a 
specific role or responsibility in a memorandum of agreement to 
participate as a consulting party.
    (3) Provide documentation. The agency official shall provide to all 
consulting parties the documentation specified in Sec. 800.11(e), 
subject to the confidentiality provisions of Sec. 800.11(c), and such 
other documentation as may be developed during the consultation to 
resolve adverse effects.
    (4) Involve the public. The agency official shall make information 
available to the public, including the documentation specified in Sec. 
800.11(e), subject to the confidentiality provisions of Sec. 800.11(c). 
The agency official shall provide an opportunity for members of the 
public to express their views on resolving adverse effects of the 
undertaking. The agency official should use appropriate mechanisms, 
taking into account the magnitude of the undertaking and the nature of 
its effects upon historic properties, the likely effects on historic 
properties, and the relationship of the Federal involvement to the 
undertaking to ensure that the public's views are considered in the 
consultation. The agency official should also consider the extent of 
notice and information concerning historic preservation issues afforded 
the public at earlier steps in the section 106 process to determine the 
appropriate level of public involvement when resolving adverse effects 
so that the standards of Sec. 800.2(d) are met.
    (5) Restrictions on disclosure of information. Section 304 of the 
act and other authorities may limit the disclosure of information under 
paragraphs (a)(3) and (a)(4) of this section. If an Indian tribe or 
Native Hawaiian organization objects to the disclosure of information or 
if the agency official believes that there are other reasons to withhold 
information, the agency official shall comply with Sec. 800.11(c) 
regarding the disclosure of such information.
    (b) Resolve adverse effects--(1) Resolution without the Council. (i) 
The agency official shall consult with the SHPO/THPO and other 
consulting parties to seek ways to avoid, minimize or mitigate the 
adverse effects.
    (ii) The agency official may use standard treatments established by 
the Council under Sec. 800.14(d) as a basis for a memorandum of 
agreement.
    (iii) If the Council decides to join the consultation, the agency 
official shall follow paragraph (b)(2) of this section.
    (iv) If the agency official and the SHPO/THPO agree on how the 
adverse effects will be resolved, they shall execute a memorandum of 
agreement. The agency official must submit a copy of

[[Page 96]]

the executed memorandum of agreement, along with the documentation 
specified in Sec. 800.11(f), to the Council prior to approving the 
undertaking in order to meet the requirements of section 106 and this 
subpart.
    (v) If the agency official, and the SHPO/THPO fail to agree on the 
terms of a memorandum of agreement, the agency official shall request 
the Council to join the consultation and provide the Council with the 
documentation set forth in Sec. 800.11(g). If the Council decides to 
join the consultation, the agency official shall proceed in accordance 
with paragraph (b)(2) of this section. If the Council decides not to 
join the consultation, the Council will notify the agency and proceed to 
comment in accordance with Sec. 800.7(c).
    (2) Resolution with Council participation. If the Council decides to 
participate in the consultation, the agency official shall consult with 
the SHPO/THPO, the Council, and other consulting parties, including 
Indian tribes and Native Hawaiian organizations under Sec. 800.2(c)(3), 
to seek ways to avoid, minimize or mitigate the adverse effects. If the 
agency official, the SHPO/THPO, and the Council agree on how the adverse 
effects will be resolved, they shall execute a memorandum of agreement.
    (c) Memorandum of agreement. A memorandum of agreement executed and 
implemented pursuant to this section evidences the agency official's 
compliance with section 106 and this part and shall govern the 
undertaking and all of its parts. The agency official shall ensure that 
the undertaking is carried out in accordance with the memorandum of 
agreement.
    (1) Signatories. The signatories have sole authority to execute, 
amend or terminate the agreement in accordance with this subpart.
    (i) The agency official and the SHPO/THPO are the signatories to a 
memorandum of agreement executed pursuant to paragraph (b)(1) of this 
section.
    (ii) The agency official, the SHPO/THPO, and the Council are the 
signatories to a memorandum of agreement executed pursuant to paragraph 
(b)(2) of this section.
    (iii) The agency official and the Council are signatories to a 
memorandum of agreement executed pursuant to Sec. 800.7(a)(2).
    (2) Invited signatories. (i) The agency official may invite 
additional parties to be signatories to a memorandum of agreement. Any 
such party that signs the memorandum of agreement shall have the same 
rights with regard to seeking amendment or termination of the memorandum 
of agreement as other signatories.
    (ii) The agency official may invite an Indian tribe or Native 
Hawaiian organization that attaches religious and cultural significance 
to historic properties located off tribal lands to be a signatory to a 
memorandum of agreement concerning such properties.
    (iii) The agency official should invite any party that assumes a 
responsibility under a memorandum of agreement to be a signatory.
    (iv) The refusal of any party invited to become a signatory to a 
memorandum of agreement pursuant to paragraph (c)(2) of this section 
does not invalidate the memorandum of agreement.
    (3) Concurrence by others. The agency official may invite all 
consulting parties to concur in the memorandum of agreement. The 
signatories may agree to invite others to concur. The refusal of any 
party invited to concur in the memorandum of agreement does not 
invalidate the memorandum of agreement.
    (4) Reports on implementation. Where the signatories agree it is 
appropriate, a memorandum of agreement shall include a provision for 
monitoring and reporting on its implementation.
    (5) Duration. A memorandum of agreement shall include provisions for 
termination and for reconsideration of terms if the undertaking has not 
been implemented within a specified time.
    (6) Discoveries. Where the signatories agree it is appropriate, a 
memorandum of agreement shall include provisions to deal with the 
subsequent discovery or identification of additional historic properties 
affected by the undertaking.
    (7) Amendments. The signatories to a memorandum of agreement may 
amend it. If the Council was not a signatory

[[Page 97]]

to the original agreement and the signatories execute an amended 
agreement, the agency official shall file it with the Council.
    (8) Termination. If any signatory determines that the terms of a 
memorandum of agreement cannot be or are not being carried out, the 
signatories shall consult to seek amendment of the agreement. If the 
agreement is not amended, any signatory may terminate it. The agency 
official shall either execute a memorandum of agreement with signatories 
under paragraph (c)(1) of this section or request the comments of the 
Council under Sec. 800.7(a).
    (9) Copies. The agency official shall provide each consulting party 
with a copy of any memorandum of agreement executed pursuant to this 
subpart.



Sec. 800.7  Failure to resolve adverse effects.

    (a) Termination of consultation. After consulting to resolve adverse 
effects pursuant to Sec. 800.6(b)(2), the agency official, the SHPO/
THPO, or the Council may determine that further consultation will not be 
productive and terminate consultation. Any party that terminates 
consultation shall notify the other consulting parties and provide them 
the reasons for terminating in writing.
    (1) If the agency official terminates consultation, the head of the 
agency or an Assistant Secretary or other officer with major department-
wide or agency-wide responsibilities shall request that the Council 
comment pursuant to paragraph (c) of this section and shall notify all 
consulting parties of the request.
    (2) If the SHPO terminates consultation, the agency official and the 
Council may execute a memorandum of agreement without the SHPO's 
involvement.
    (3) If a THPO terminates consultation regarding an undertaking 
occurring on or affecting historic properties on its tribal lands, the 
Council shall comment pursuant to paragraph (c) of this section.
    (4) If the Council terminates consultation, the Council shall notify 
the agency official, the agency's Federal preservation officer and all 
consulting parties of the termination and comment under paragraph (c) of 
this section. The Council may consult with the agency's Federal 
preservation officer prior to terminating consultation to seek to 
resolve issues concerning the undertaking and its effects on historic 
properties.
    (b) Comments without termination. The Council may determine that it 
is appropriate to provide additional advisory comments upon an 
undertaking for which a memorandum of agreement will be executed. The 
Council shall provide them to the agency official when it executes the 
memorandum of agreement.
    (c) Comments by the Council--(1) Preparation. The Council shall 
provide an opportunity for the agency official, all consulting parties, 
and the public to provide their views within the time frame for 
developing its comments. Upon request of the Council, the agency 
official shall provide additional existing information concerning the 
undertaking and assist the Council in arranging an onsite inspection and 
an opportunity for public participation.
    (2) Timing. The Council shall transmit its comments within 45 days 
of receipt of a request under paragraph (a)(1) or (a)(3) of this section 
or Sec. 800.8(c)(3), or termination by the Council under Sec. 
800.6(b)(1)(v) or paragraph (a)(4) of this section, unless otherwise 
agreed to by the agency official.
    (3) Transmittal. The Council shall provide its comments to the head 
of the agency requesting comment with copies to the agency official, the 
agency's Federal preservation officer, all consulting parties, and 
others as appropriate.
    (4) Response to Council comment. The head of the agency shall take 
into account the Council's comments in reaching a final decision on the 
undertaking. Section 110(l) of the act directs that the head of the 
agency shall document this decision and may not delegate his or her 
responsibilities pursuant to section 106. Documenting the agency head's 
decision shall include:
    (i) Preparing a summary of the decision that contains the rationale 
for the decision and evidence of consideration of the Council's comments 
and providing it to the Council prior to approval of the undertaking;

[[Page 98]]

    (ii) Providing a copy of the summary to all consulting parties; and
    (iii) Notifying the public and making the record available for 
public inspection.



Sec. 800.8  Coordination With the National Environmental Policy Act.

    (a) General principles--(1) Early coordination. Federal agencies are 
encouraged to coordinate compliance with section 106 and the procedures 
in this part with any steps taken to meet the requirements of the 
National Environmental Policy Act (NEPA). Agencies should consider their 
section 106 responsibilities as early as possible in the NEPA process, 
and plan their public participation, analysis, and review in such a way 
that they can meet the purposes and requirements of both statutes in a 
timely and efficient manner. The determination of whether an undertaking 
is a ``major Federal action significantly affecting the quality of the 
human environment,'' and therefore requires preparation of an 
environmental impact statement (EIS) under NEPA, should include 
consideration of the undertaking's likely effects on historic 
properties. A finding of adverse effect on a historic property does not 
necessarily require an EIS under NEPA.
    (2) Consulting party roles. SHPO/THPOs, Indian tribes, and Native 
Hawaiian organizations, other consulting parties, and organizations and 
individuals who may be concerned with the possible effects of an agency 
action on historic properties should be prepared to consult with 
agencies early in the NEPA process, when the purpose of and need for the 
proposed action as well as the widest possible range of alternatives are 
under consideration.
    (3) Inclusion of historic preservation issues. Agency officials 
should ensure that preparation of an environmental assessment (EA) and 
finding of no significant impact (FONSI) or an EIS and record of 
decision (ROD) includes appropriate scoping, identification of historic 
properties, assessment of effects upon them, and consultation leading to 
resolution of any adverse effects.
    (b) Actions categorically excluded under NEPA. If a project, 
activity or program is categorically excluded from NEPA review under an 
agency's NEPA procedures, the agency official shall determine if it 
still qualifies as an undertaking requiring review under section 106 
pursuant to Sec. 800.3(a). If so, the agency official shall proceed 
with section 106 review in accordance with the procedures in this 
subpart.
    (c) Use of the NEPA process for section 106 purposes. An agency 
official may use the process and documentation required for the 
preparation of an EA/FONSI or an EIS/ROD to comply with section 106 in 
lieu of the procedures set forth in Sec. Sec. 800.3 through 800.6 if 
the agency official has notified in advance the SHPO/THPO and the 
Council that it intends to do so and the following standards are met.
    (1) Standards for developing environmental documents to comply with 
Section 106. During preparation of the EA or draft EIS (DEIS) the agency 
official shall:
    (i) Identify consulting parties either pursuant to Sec. 800.3(f) or 
through the NEPA scoping process with results consistent with Sec. 
800.3(f);
    (ii) Identify historic properties and assess the effects of the 
undertaking on such properties in a manner consistent with the standards 
and criteria of Sec. Sec. 800.4 through 800.5, provided that the scope 
and timing of these steps may be phased to reflect the agency official's 
consideration of project alternatives in the NEPA process and the effort 
is commensurate with the assessment of other environmental factors;
    (iii) Consult regarding the effects of the undertaking on historic 
properties with the SHPO/THPO, Indian tribes, and Native Hawaiian 
organizations that might attach religious and cultural significance to 
affected historic properties, other consulting parties, and the Council, 
where appropriate, during NEPA scoping, environmental analysis, and the 
preparation of NEPA documents;
    (iv) Involve the public in accordance with the agency's published 
NEPA procedures; and (v) Develop in consultation with identified 
consulting parties alternatives and proposed measures that might avoid, 
minimize or mitigate any adverse effects of the undertaking on historic 
properties and describe them in the EA or DEIS.

[[Page 99]]

    (2) Review of environmental documents. (i) The agency official shall 
submit the EA, DEIS, or EIS to the SHPO/THPO, Indian tribes, and Native 
Hawaiian organizations that might attach religious and cultural 
significance to affected historic properties, and other consulting 
parties prior to or when making the document available for public 
comment. If the document being prepared is a DEIS or EIS, the agency 
official shall also submit it to the Council.
    (ii) Prior to or within the time allowed for public comment on the 
document, a SHPO/THPO, an Indian tribe or Native Hawaiian organization, 
another consulting party or the Council may object to the agency 
official that preparation of the EA, DEIS, or EIS has not met the 
standards set forth in paragraph (c)(1) of this section or that the 
substantive resolution of the effects on historic properties proposed in 
an EA, DEIS, or EIS is inadequate. If the agency official receives such 
an objection, the agency official shall refer the matter to the Council.
    (3) Resolution of objections. Within 30 days of the agency 
official's referral of an objection under paragraph (c)(2)(ii) of this 
section, the Council shall review the objection and notify the agency as 
to its opinion on the objection.
    (i) If the Council agrees with the objection:
    (A) The Council shall provide the agency official and, if the 
Council determines the issue warrants it, the head of the agency with 
the Council's opinion regarding the objection. A Council decision to 
provide its opinion to the head of an agency shall be guided by the 
criteria in appendix A to this part. The person to whom the Council 
addresses its opinion (the agency official or the head of the agency) 
shall take into account the Council's opinion in reaching a final 
decision on the issue of the objection.
    (B) The person to whom the Council addresses its opinion (the agency 
official or the head of the agency) shall prepare a summary of the 
decision that contains the rationale for the decision and evidence of 
consideration of the Council's opinion, and provide it to the Council. 
The head of the agency may delegate his or her duties under this 
paragraph to the agency's senior Policy Official. If the agency 
official's initial decision regarding the matter that is the subject of 
the objection will be revised, the agency official shall proceed in 
accordance with the revised decision. If the final decision of the 
agency is to affirm the initial agency decision, once the summary of the 
final decision has been sent to the Council, the agency official shall 
continue its compliance with this section.
    (ii) If the Council disagrees with the objection, the Council shall 
so notify the agency official, in which case the agency official shall 
continue its compliance with this section.
    (iii) If the Council fails to respond to the objection within the 30 
day period, the agency official shall continue its compliance with this 
section.
    (4) Approval of the undertaking. If the agency official has found, 
during the preparation of an EA or EIS that the effects of an 
undertaking on historic properties are adverse, the agency official 
shall develop measures in the EA, DEIS, or EIS to avoid, minimize, or 
mitigate such effects in accordance with paragraph (c)(1)(v) of this 
section. The agency official's responsibilities under section 106 and 
the procedures in this subpart shall then be satisfied when either:
    (i) A binding commitment to such proposed measures is incorporated 
in:
    (A) The ROD, if such measures were proposed in a DEIS or EIS; or
    (B) An MOA drafted in compliance with Sec. 800.6(c); or
    (ii) The Council has commented under Sec. 800.7 and received the 
agency's response to such comments.
    (5) Modification of the undertaking. If the undertaking is modified 
after approval of the FONSI or the ROD in a manner that changes the 
undertaking or alters its effects on historic properties, or if the 
agency official fails to ensure that the measures to avoid, minimize or 
mitigate adverse effects (as specified in either the FONSI or the ROD, 
or in the binding commitment adopted pursuant to paragraph (c)(4) of 
this section) are carried out, the agency official shall notify the 
Council and all consulting parties that supplemental environmental 
documents will be prepared in compliance with NEPA or that the 
procedures in Sec. Sec. 800.3

[[Page 100]]

through 800.6 will be followed as necessary.

[65 FR 77725, Dec. 12, 2000, as amended at 69 FR 40554, July 6, 2004]



Sec. 800.9  Council review of section 106 compliance.

    (a) Assessment of agency official compliance for individual 
undertakings. The Council may provide to the agency official its 
advisory opinion regarding the substance of any finding, determination 
or decision or regarding the adequacy of the agency official's 
compliance with the procedures under this part. The Council may provide 
such advice at any time at the request of any individual, agency or 
organization or on its own initiative. The agency official shall 
consider the views of the Council in reaching a decision on the matter 
in question.
    (b) Agency foreclosure of the Council's opportunity to comment. 
Where an agency official has failed to complete the requirements of 
section 106 in accordance with the procedures in this part prior to the 
approval of an undertaking, the Council's opportunity to comment may be 
foreclosed. The Council may review a case to determine whether a 
foreclosure has occurred. The Council shall notify the agency official 
and the agency's Federal preservation officer and allow 30 days for the 
agency official to provide information as to whether foreclosure has 
occurred. If the Council determines foreclosure has occurred, the 
Council shall transmit the determination to the agency official and the 
head of the agency. The Council shall also make the determination 
available to the public and any parties known to be interested in the 
undertaking and its effects upon historic properties.
    (c) Intentional adverse effects by applicants--(1) Agency 
responsibility. Section 110(k) of the act prohibits a Federal agency 
from granting a loan, loan guarantee, permit, license or other 
assistance to an applicant who, with intent to avoid the requirements of 
section 106, has intentionally significantly adversely affected a 
historic property to which the grant would relate, or having legal power 
to prevent it, has allowed such significant adverse effect to occur, 
unless the agency, after consultation with the Council, determines that 
circumstances justify granting such assistance despite the adverse 
effect created or permitted by the applicant. Guidance issued by the 
Secretary pursuant to section 110 of the act governs its implementation.
    (2) Consultation with the Council. When an agency official 
determines, based on the actions of an applicant, that section 110(k) is 
applicable and that circumstances may justify granting the assistance, 
the agency official shall notify the Council and provide documentation 
specifying the circumstances under which the adverse effects to the 
historic property occurred and the degree of damage to the integrity of 
the property. This documentation shall include any views obtained from 
the applicant, SHPO/THPO, an Indian tribe if the undertaking occurs on 
or affects historic properties on tribal lands, and other parties known 
to be interested in the undertaking.
    (i) Within thirty days of receiving the agency official's 
notification, unless otherwise agreed to by the agency official, the 
Council shall provide the agency official with its opinion as to whether 
circumstances justify granting assistance to the applicant and any 
possible mitigation of the adverse effects.
    (ii) The agency official shall consider the Council's opinion in 
making a decision on whether to grant assistance to the applicant, and 
shall notify the Council, the SHPO/THPO, and other parties known to be 
interested in the undertaking prior to granting the assistance.
    (3) Compliance with Section 106. If an agency official, after 
consulting with the Council, determines to grant the assistance, the 
agency official shall comply with Sec. Sec. 800.3 through 800.6 to take 
into account the effects of the undertaking on any historic properties.
    (d) Evaluation of Section 106 operations. The Council may evaluate 
the operation of the section 106 process by periodic reviews of how 
participants have fulfilled their legal responsibilities and how 
effectively the outcomes reached advance the purposes of the act.

[[Page 101]]

    (1) Information from participants. Section 203 of the act authorizes 
the Council to obtain information from Federal agencies necessary to 
conduct evaluation of the section 106 process. The agency official shall 
make documentation of agency policies, operating procedures and actions 
taken to comply with section 106 available to the Council upon request. 
The Council may request available information and documentation from 
other participants in the section 106 process.
    (2) Improving the operation of section 106. Based upon any 
evaluation of the section 106 process, the Council may make 
recommendations to participants, the heads of Federal agencies, and the 
Secretary of actions to improve the efficiency and effectiveness of the 
process. Where the Council determines that an agency official or a SHPO/
THPO has failed to properly carry out the responsibilities assigned 
under the process in this part, the Council may participate in 
individual case reviews conducted under such process in addition to the 
SHPO/THPO for such period that it determines is necessary to improve 
performance or correct deficiencies. If the Council finds a pattern of 
failure by a Federal agency in carrying out its responsibilities under 
section 106, the Council may review the policies and programs of the 
agency related to historic preservation pursuant to section 202(a)(6) of 
the act and recommend methods to improve the effectiveness, 
coordination, and consistency of those policies and programs with 
section 106.



Sec. 800.10  Special requirements for protecting National Historic Landmarks.

    (a) Statutory requirement. Section 110(f) of the act requires that 
the agency official, to the maximum extent possible, undertake such 
planning and actions as may be necessary to minimize harm to any 
National Historic Landmark that may be directly and adversely affected 
by an undertaking. When commenting on such undertakings, the Council 
shall use the process set forth in Sec. Sec. 800.6 through 800.7 and 
give special consideration to protecting National Historic Landmarks as 
specified in this section.
    (b) Resolution of adverse effects. The agency official shall request 
the Council to participate in any consultation to resolve adverse 
effects on National Historic Landmarks conducted under Sec. 800.6.
    (c) Involvement of the Secretary. The agency official shall notify 
the Secretary of any consultation involving a National Historic Landmark 
and invite the Secretary to participate in the consultation where there 
may be an adverse effect. The Council may request a report from the 
Secretary under section 213 of the act to assist in the consultation.
    (d) Report of outcome. When the Council participates in consultation 
under this section, it shall report the outcome of the section 106 
process, providing its written comments or any memoranda of agreement to 
which it is a signatory, to the Secretary and the head of the agency 
responsible for the undertaking.



Sec. 800.11  Documentation standards.

    (a) Adequacy of documentation. The agency official shall ensure that 
a determination, finding, or agreement under the procedures in this 
subpart is supported by sufficient documentation to enable any reviewing 
parties to understand its basis. The agency official shall provide such 
documentation to the extent permitted by law and within available funds. 
When an agency official is conducting phased identification or 
evaluation under this subpart, the documentation standards regarding 
description of historic properties may be applied flexibly. If the 
Council, or the SHPO/THPO when the Council is not involved, determines 
the applicable documentation standards are not met, the Council or the 
SHPO/THPO, as appropriate, shall notify the agency official and specify 
the information needed to meet the standard. At the request of the 
agency official or any of the consulting parties, the Council shall 
review any disputes over whether documentation standards are met and 
provide its views to the agency official and the consulting parties.
    (b) Format. The agency official may use documentation prepared to 
comply

[[Page 102]]

with other laws to fulfill the requirements of the procedures in this 
subpart, if that documentation meets the standards of this section.
    (c) Confidentiality--(1) Authority to withhold information. Section 
304 of the act provides that the head of a Federal agency or other 
public official receiving grant assistance pursuant to the act, after 
consultation with the Secretary, shall withhold from public disclosure 
information about the location, character, or ownership of a historic 
property when disclosure may cause a significant invasion of privacy; 
risk harm to the historic property; or impede the use of a traditional 
religious site by practitioners. When the head of a Federal agency or 
other public official has determined that information should be withheld 
from the public pursuant to these criteria, the Secretary, in 
consultation with such Federal agency head or official, shall determine 
who may have access to the information for the purposes of carrying out 
the act.
    (2) Consultation with the Council. When the information in question 
has been developed in the course of an agency's compliance with this 
part, the Secretary shall consult with the Council in reaching 
determinations on the withholding and release of information. The 
Federal agency shall provide the Council with available information, 
including views of the SHPO/THPO, Indian tribes and Native Hawaiian 
organizations, related to the confidentiality concern. The Council shall 
advise the Secretary and the Federal agency within 30 days of receipt of 
adequate documentation.
    (3) Other authorities affecting confidentiality. Other Federal laws 
and program requirements may limit public access to information 
concerning an undertaking and its effects on historic properties. Where 
applicable, those authorities shall govern public access to information 
developed in the section 106 process and may authorize the agency 
official to protect the privacy of non-governmental applicants.
    (d) Finding of no historic properties affected. Documentation shall 
include:
    (1) A description of the undertaking, specifying the Federal 
involvement, and its area of potential effects, including photographs, 
maps, drawings, as necessary;
    (2) A description of the steps taken to identify historic 
properties, including, as appropriate, efforts to seek information 
pursuant to Sec. 800.4(b); and
    (3) The basis for determining that no historic properties are 
present or affected.
    (e) Finding of no adverse effect or adverse effect. Documentation 
shall include:
    (1) A description of the undertaking, specifying the Federal 
involvement, and its area of potential effects, including photographs, 
maps, and drawings, as necessary;
    (2) A description of the steps taken to identify historic 
properties;
    (3) A description of the affected historic properties, including 
information on the characteristics that qualify them for the National 
Register;
    (4) A description of the undertaking's effects on historic 
properties;
    (5) An explanation of why the criteria of adverse effect were found 
applicable or inapplicable, including any conditions or future actions 
to avoid, minimize or mitigate adverse effects; and
    (6) Copies or summaries of any views provided by consulting parties 
and the public.
    (f) Memorandum of agreement. When a memorandum of agreement is filed 
with the Council, the documentation shall include, any substantive 
revisions or additions to the documentation provided the Council 
pursuant to Sec. 800.6(a)(1), an evaluation of any measures considered 
to avoid or minimize the undertaking's adverse effects and a summary of 
the views of consulting parties and the public.
    (g) Requests for comment without a memorandum of agreement. 
Documentation shall include:
    (1) A description and evaluation of any alternatives or mitigation 
measures that the agency official proposes to resolve the undertaking's 
adverse effects;
    (2) A description of any reasonable alternatives or mitigation 
measures that were considered but not chosen, and the reasons for their 
rejection;

[[Page 103]]

    (3) Copies or summaries of any views submitted to the agency 
official concerning the adverse effects of the undertaking on historic 
properties and alternatives to reduce or avoid those effects; and
    (4) Any substantive revisions or additions to the documentation 
provided the Council pursuant to Sec. 800.6(a)(1).



Sec. 800.12  Emergency situations.

    (a) Agency procedures. The agency official, in consultation with the 
appropriate SHPOs/THPOs, affected Indian tribes and Native Hawaiian 
organizations, and the Council, is encouraged to develop procedures for 
taking historic properties into account during operations which respond 
to a disaster or emergency declared by the President, a tribal 
government, or the Governor of a State or which respond to other 
immediate threats to life or property. If approved by the Council, the 
procedures shall govern the agency's historic preservation 
responsibilities during any disaster or emergency in lieu of Sec. Sec. 
800.3 through 800.6.
    (b) Alternatives to agency procedures. In the event an agency 
official proposes an emergency undertaking as an essential and immediate 
response to a disaster or emergency declared by the President, a tribal 
government, or the Governor of a State or another immediate threat to 
life or property, and the agency has not developed procedures pursuant 
to paragraph (a) of this section, the agency official may comply with 
section 106 by:
    (1) Following a programmatic agreement developed pursuant to Sec. 
800.14(b) that contains specific provisions for dealing with historic 
properties in emergency situations; or
    (2) Notifying the Council, the appropriate SHPO/THPO and any Indian 
tribe or Native Hawaiian organization that may attach religious and 
cultural significance to historic properties likely to be affected prior 
to the undertaking and affording them an opportunity to comment within 
seven days of notification. If the agency official determines that 
circumstances do not permit seven days for comment, the agency official 
shall notify the Council, the SHPO/THPO and the Indian tribe or Native 
Hawaiian organization and invite any comments within the time available.
    (c) Local governments responsible for section 106 compliance. When a 
local government official serves as the agency official for section 106 
compliance, paragraphs (a) and (b) of this section also apply to an 
imminent threat to public health or safety as a result of a natural 
disaster or emergency declared by a local government's chief executive 
officer or legislative body, provided that if the Council or SHPO/THPO 
objects to the proposed action within seven days, the agency official 
shall comply with Sec. Sec. 800.3 through 800.6.
    (d) Applicability. This section applies only to undertakings that 
will be implemented within 30 days after the disaster or emergency has 
been formally declared by the appropriate authority. An agency may 
request an extension of the period of applicability from the Council 
prior to the expiration of the 30 days. Immediate rescue and salvage 
operations conducted to preserve life or property are exempt from the 
provisions of section 106 and this part.



Sec. 800.13  Post-review discoveries.

    (a) Planning for subsequent discoveries--(1) Using a programmatic 
agreement. An agency official may develop a programmatic agreement 
pursuant to Sec. 800.14(b) to govern the actions to be taken when 
historic properties are discovered during the implementation of an 
undertaking.
    (2) Using agreement documents. When the agency official's 
identification efforts in accordance with Sec. 800.4 indicate that 
historic properties are likely to be discovered during implementation of 
an undertaking and no programmatic agreement has been developed pursuant 
to paragraph (a)(1) of this section, the agency official shall include 
in any finding of no adverse effect or memorandum of agreement a process 
to resolve any adverse effects upon such properties. Actions in 
conformance with the process satisfy the agency official's 
responsibilities under section 106 and this part.
    (b) Discoveries without prior planning. If historic properties are 
discovered or unanticipated effects on historic properties found after 
the agency official has completed the section 106 process

[[Page 104]]

without establishing a process under paragraph (a) of this section, the 
agency official shall make reasonable efforts to avoid, minimize or 
mitigate adverse effects to such properties and:
    (1) If the agency official has not approved the undertaking or if 
construction on an approved undertaking has not commenced, consult to 
resolve adverse effects pursuant to Sec. 800.6; or
    (2) If the agency official, the SHPO/THPO and any Indian tribe or 
Native Hawaiian organization that might attach religious and cultural 
significance to the affected property agree that such property is of 
value solely for its scientific, prehistoric, historic or archeological 
data, the agency official may comply with the Archeological and Historic 
Preservation Act instead of the procedures in this part and provide the 
Council, the SHPO/THPO, and the Indian tribe or Native Hawaiian 
organization with a report on the actions within a reasonable time after 
they are completed; or
    (3) If the agency official has approved the undertaking and 
construction has commenced, determine actions that the agency official 
can take to resolve adverse effects, and notify the SHPO/THPO, any 
Indian tribe or Native Hawaiian organization that might attach religious 
and cultural significance to the affected property, and the Council 
within 48 hours of the discovery. The notification shall describe the 
agency official's assessment of National Register eligibility of the 
property and proposed actions to resolve the adverse effects. The SHPO/
THPO, the Indian tribe or Native Hawaiian organization and the Council 
shall respond within 48 hours of the notification. The agency official 
shall take into account their recommendations regarding National 
Register eligibility and proposed actions, and then carry out 
appropriate actions. The agency official shall provide the SHPO/THPO, 
the Indian tribe or Native Hawaiian organization and the Council a 
report of the actions when they are completed.
    (c) Eligibility of properties. The agency official, in consultation 
with the SHPO/THPO, may assume a newly-discovered property to be 
eligible for the National Register for purposes of section 106. The 
agency official shall specify the National Register criteria used to 
assume the property's eligibility so that information can be used in the 
resolution of adverse effects.
    (d) Discoveries on tribal lands. If historic properties are 
discovered on tribal lands, or there are unanticipated effects on 
historic properties found on tribal lands, after the agency official has 
completed the section 106 process without establishing a process under 
paragraph (a) of this section and construction has commenced, the agency 
official shall comply with applicable tribal regulations and procedures 
and obtain the concurrence of the Indian tribe on the proposed action.



                     Subpart C_Program Alternatives



Sec. 800.14  Federal agency program alternatives.

    (a) Alternate procedures. An agency official may develop procedures 
to implement section 106 and substitute them for all or part of subpart 
B of this part if they are consistent with the Council's regulations 
pursuant to section 110(a)(2)(E) of the act.
    (1) Development of procedures. The agency official shall consult 
with the Council, the National Conference of State Historic Preservation 
Officers, or individual SHPO/THPOs, as appropriate, and Indian tribes 
and Native Hawaiian organizations, as specified in paragraph (f) of this 
section, in the development of alternate procedures, publish notice of 
the availability of proposed alternate procedures in the Federal 
Register and take other appropriate steps to seek public input during 
the development of alternate procedures.
    (2) Council review. The agency official shall submit the proposed 
alternate procedures to the Council for a 60-day review period. If the 
Council finds the procedures to be consistent with this part, it shall 
notify the agency official and the agency official may adopt them as 
final alternate procedures.
    (3) Notice. The agency official shall notify the parties with which 
it has consulted and publish notice of final alternate procedures in the 
Federal Register.

[[Page 105]]

    (4) Legal effect. Alternate procedures adopted pursuant to this 
subpart substitute for the Council's regulations for the purposes of the 
agency's compliance with section 106, except that where an Indian tribe 
has entered into an agreement with the Council to substitute tribal 
historic preservation regulations for the Council's regulations under 
section 101(d)(5) of the act, the agency shall follow those regulations 
in lieu of the agency's procedures regarding undertakings on tribal 
lands. Prior to the Council entering into such agreements, the Council 
will provide Federal agencies notice and opportunity to comment on the 
proposed substitute tribal regulations.
    (b) Programmatic agreements. The Council and the agency official may 
negotiate a programmatic agreement to govern the implementation of a 
particular program or the resolution of adverse effects from certain 
complex project situations or multiple undertakings.
    (1) Use of programmatic agreements. A programmatic agreement may be 
used:
    (i) When effects on historic properties are similar and repetitive 
or are multi-State or regional in scope;
    (ii) When effects on historic properties cannot be fully determined 
prior to approval of an undertaking;
    (iii) When nonfederal parties are delegated major decisionmaking 
responsibilities;
    (iv) Where routine management activities are undertaken at Federal 
installations, facilities, or other land-management units; or
    (v) Where other circumstances warrant a departure from the normal 
section 106 process.
    (2) Developing programmatic agreements for agency programs. (i) The 
consultation shall involve, as appropriate, SHPO/THPOs, the National 
Conference of State Historic Preservation Officers (NCSHPO), Indian 
tribes and Native Hawaiian organizations, other Federal agencies, and 
members of the public. If the programmatic agreement has the potential 
to affect historic properties on tribal lands or historic properties of 
religious and cultural significance to an Indian tribe or Native 
Hawaiian organization, the agency official shall also follow paragraph 
(f) of this section.
    (ii) Public participation. The agency official shall arrange for 
public participation appropriate to the subject matter and the scope of 
the program and in accordance with subpart A of this part. The agency 
official shall consider the nature of the program and its likely effects 
on historic properties and take steps to involve the individuals, 
organizations and entities likely to be interested.
    (iii) Effect. The programmatic agreement shall take effect when 
executed by the Council, the agency official and the appropriate SHPOs/
THPOs when the programmatic agreement concerns a specific region or the 
president of NCSHPO when NCSHPO has participated in the consultation. A 
programmatic agreement shall take effect on tribal lands only when the 
THPO, Indian tribe, or a designated representative of the tribe is a 
signatory to the agreement. Compliance with the procedures established 
by an approved programmatic agreement satisfies the agency's section 106 
responsibilities for all individual undertakings of the program covered 
by the agreement until it expires or is terminated by the agency, the 
president of NCSHPO when a signatory, or the Council. Termination by an 
individual SHPO/THPO shall only terminate the application of a regional 
programmatic agreement within the jurisdiction of the SHPO/THPO. If a 
THPO assumes the responsibilities of a SHPO pursuant to section 
101(d)(2) of the act and the SHPO is signatory to programmatic 
agreement, the THPO assumes the role of a signatory, including the right 
to terminate a regional programmatic agreement on lands under the 
jurisdiction of the tribe.
    (iv) Notice. The agency official shall notify the parties with which 
it has consulted that a programmatic agreement has been executed under 
paragraph (b) of this section, provide appropriate public notice before 
it takes effect, and make any internal agency procedures implementing 
the agreement readily available to the Council, SHPO/THPOs, and the 
public.
    (v) If the Council determines that the terms of a programmatic 
agreement are not being carried out, or if such an

[[Page 106]]

agreement is terminated, the agency official shall comply with subpart B 
of this part with regard to individual undertakings of the program 
covered by the agreement.
    (3) Developing programmatic agreements for complex or multiple 
undertakings. Consultation to develop a programmatic agreement for 
dealing with the potential adverse effects of complex projects or 
multiple undertakings shall follow Sec. 800.6. If consultation pertains 
to an activity involving multiple undertakings and the parties fail to 
reach agreement, then the agency official shall comply with the 
provisions of subpart B of this part for each individual undertaking.
    (4) Prototype programmatic agreements. The Council may designate an 
agreement document as a prototype programmatic agreement that may be 
used for the same type of program or undertaking in more than one case 
or area. When an agency official uses such a prototype programmatic 
agreement, the agency official may develop and execute the agreement 
with the appropriate SHPO/THPO and the agreement shall become final 
without need for Council participation in consultation or Council 
signature.
    (c) Exempted categories--(1) Criteria for establishing. The Council 
or an agency official may propose a program or category of undertakings 
that may be exempted from review under the provisions of subpart B of 
this part, if the program or category meets the following criteria:
    (i) The actions within the program or category would otherwise 
qualify as ``undertakings'' as defined in Sec. 800.16;
    (ii) The potential effects of the undertakings within the program or 
category upon historic properties are foreseeable and likely to be 
minimal or not adverse; and
    (iii) Exemption of the program or category is consistent with the 
purposes of the act.
    (2) Public participation. The proponent of the exemption shall 
arrange for public participation appropriate to the subject matter and 
the scope of the exemption and in accordance with the standards in 
subpart A of this part. The proponent of the exemption shall consider 
the nature of the exemption and its likely effects on historic 
properties and take steps to involve individuals, organizations and 
entities likely to be interested.
    (3) Consultation with SHPOs/THPOs. The proponent of the exemption 
shall notify and consider the views of the SHPOs/THPOs on the exemption.
    (4) Consultation with Indian tribes and Native Hawaiian 
organizations. If the exempted program or category of undertakings has 
the potential to affect historic properties on tribal lands or historic 
properties of religious and cultural significance to an Indian tribe or 
Native Hawaiian organization, the Council shall follow the requirements 
for the agency official set forth in paragraph (f) of this section.
    (5) Council review of proposed exemptions. The Council shall review 
an exemption proposal that is supported by documentation describing the 
program or category for which the exemption is sought, demonstrating 
that the criteria of paragraph (c)(1) of this section have been met, 
describing the methods used to seek the views of the public, and 
summarizing any views submitted by the SHPO/THPOs, the public, and any 
others consulted. Unless it requests further information, the Council 
shall approve or reject the proposed exemption within 30 days of 
receipt, and thereafter notify the relevant agency official and SHPO/
THPOs of the decision. The decision shall be based on the consistency of 
the exemption with the purposes of the act, taking into consideration 
the magnitude of the exempted undertaking or program and the likelihood 
of impairment of historic properties in accordance with section 214 of 
the act.
    (6) Legal consequences. Any undertaking that falls within an 
approved exempted program or category shall require no further review 
pursuant to subpart B of this part, unless the agency official or the 
Council determines that there are circumstances under which the normally 
excluded undertaking should be reviewed under subpart B of this part.
    (7) Termination. The Council may terminate an exemption at the 
request of the agency official or when the Council determines that the 
exemption no longer meets the criteria of paragraph

[[Page 107]]

(c)(1) of this section. The Council shall notify the agency official 30 
days before termination becomes effective.
    (8) Notice. The proponent of the exemption shall publish notice of 
any approved exemption in the Federal Register.
    (d) Standard treatments--(1) Establishment. The Council, on its own 
initiative or at the request of another party, may establish standard 
methods for the treatment of a category of historic properties, a 
category of undertakings, or a category of effects on historic 
properties to assist Federal agencies in satisfying the requirements of 
subpart B of this part. The Council shall publish notice of standard 
treatments in the Federal Register.
    (2) Public participation. The Council shall arrange for public 
participation appropriate to the subject matter and the scope of the 
standard treatment and consistent with subpart A of this part. The 
Council shall consider the nature of the standard treatment and its 
likely effects on historic properties and the individuals, organizations 
and entities likely to be interested. Where an agency official has 
proposed a standard treatment, the Council may request the agency 
official to arrange for public involvement.
    (3) Consultation with SHPOs/THPOs. The Council shall notify and 
consider the views of SHPOs/THPOs on the proposed standard treatment.
    (4) Consultation with Indian tribes and Native Hawaiian 
organizations. If the proposed standard treatment has the potential to 
affect historic properties on tribal lands or historic properties of 
religious and cultural significance to an Indian tribe or Native 
Hawaiian organization, the Council shall follow the requirements for the 
agency official set forth in paragraph (f) of this section.
    (5) Termination. The Council may terminate a standard treatment by 
publication of a notice in the Federal Register 30 days before the 
termination takes effect.
    (e) Program comments. An agency official may request the Council to 
comment on a category of undertakings in lieu of conducting individual 
reviews under Sec. Sec. 800.4 through 800.6. The Council may provide 
program comments at its own initiative.
    (1) Agency request. The agency official shall identify the category 
of undertakings, specify the likely effects on historic properties, 
specify the steps the agency official will take to ensure that the 
effects are taken into account, identify the time period for which the 
comment is requested and summarize any views submitted by the public.
    (2) Public participation. The agency official shall arrange for 
public participation appropriate to the subject matter and the scope of 
the category and in accordance with the standards in subpart A of this 
part. The agency official shall consider the nature of the undertakings 
and their likely effects on historic properties and the individuals, 
organizations and entities likely to be interested.
    (3) Consultation with SHPOs/THPOs. The Council shall notify and 
consider the views of SHPOs/THPOs on the proposed program comment.
    (4) Consultation with Indian tribes and Native Hawaiian 
organizations. If the program comment has the potential to affect 
historic properties on tribal lands or historic properties of religious 
and cultural significance to an Indian tribe or Native Hawaiian 
organization, the Council shall follow the requirements for the agency 
official set forth in paragraph (f) of this section.
    (5) Council action. Unless the Council requests additional 
documentation, notifies the agency official that it will decline to 
comment, or obtains the consent of the agency official to extend the 
period for providing comment, the Council shall comment to the agency 
official within 45 days of the request.
    (i) If the Council comments, the agency official shall take into 
account the comments of the Council in carrying out the undertakings 
within the category and publish notice in the Federal Register of the 
Council's comments and steps the agency will take to ensure that effects 
to historic properties are taken into account.
    (ii) If the Council declines to comment, the agency official shall 
continue to comply with the requirements of Sec. Sec. 800.3 through 
800.6 for the individual undertakings.
    (6) Withdrawal of comment. If the Council determines that the 
consideration of historic properties is not being

[[Page 108]]

carried out in a manner consistent with the program comment, the Council 
may withdraw the comment and the agency official shall comply with the 
requirements of Sec. Sec. 800.3 through 800.6 for the individual 
undertakings.
    (f) Consultation with Indian tribes and Native Hawaiian 
organizations when developing program alternatives. Whenever an agency 
official proposes a program alternative pursuant to paragraphs (a) 
through (e) of this section, the agency official shall ensure that 
development of the program alternative includes appropriate government-
to-government consultation with affected Indian tribes and consultation 
with affected Native Hawaiian organizations.
    (1) Identifying affected Indian tribes and Native Hawaiian 
organizations. If any undertaking covered by a proposed program 
alternative has the potential to affect historic properties on tribal 
lands, the agency official shall identify and consult with the Indian 
tribes having jurisdiction over such lands. If a proposed program 
alternative has the potential to affect historic properties of religious 
and cultural significance to an Indian tribe or a Native Hawaiian 
organization which are located off tribal lands, the agency official 
shall identify those Indian tribes and Native Hawaiian organizations 
that might attach religious and cultural significance to such properties 
and consult with them. When a proposed program alternative has 
nationwide applicability, the agency official shall identify an 
appropriate government to government consultation with Indian tribes and 
consult with Native Hawaiian organizations in accordance with existing 
Executive orders, Presidential memoranda, and applicable provisions of 
law.
    (2) Results of consultation. The agency official shall provide 
summaries of the views, along with copies of any written comments, 
provided by affected Indian tribes and Native Hawaiian organizations to 
the Council as part of the documentation for the proposed program 
alternative. The agency official and the Council shall take those views 
into account in reaching a final decision on the proposed program 
alternative.

[65 FR 77725, Dec. 12, 2000, as amended at 69 FR 40554, July 6, 2004]



Sec. 800.15  Tribal, State, and local program alternatives. [Reserved]



Sec. 800.16  Definitions.

    (a) Act means the National Historic Preservation Act of 1966, as 
amended, 16 U.S.C. 470-470w-6.
    (b) Agency means agency as defined in 5 U.S.C. 551.
    (c) Approval of the expenditure of funds means any final agency 
decision authorizing or permitting the expenditure of Federal funds or 
financial assistance on an undertaking, including any agency decision 
that may be subject to an administrative appeal.
    (d) Area of potential effects means the geographic area or areas 
within which an undertaking may directly or indirectly cause alterations 
in the character or use of historic properties, if any such properties 
exist. The area of potential effects is influenced by the scale and 
nature of an undertaking and may be different for different kinds of 
effects caused by the undertaking.
    (e) Comment means the findings and recommendations of the Council 
formally provided in writing to the head of a Federal agency under 
section 106.
    (f) Consultation means the process of seeking, discussing, and 
considering the views of other participants, and, where feasible, 
seeking agreement with them regarding matters arising in the section 106 
process. The Secretary's ``Standards and Guidelines for Federal Agency 
Preservation Programs pursuant to the National Historic Preservation 
Act'' provide further guidance on consultation.
    (g) Council means the Advisory Council on Historic Preservation or a 
Council member or employee designated to act for the Council.
    (h) Day or days means calendar days.
    (i) Effect means alteration to the characteristics of a historic 
property qualifying it for inclusion in or eligibility for the National 
Register.
    (j) Foreclosure means an action taken by an agency official that 
effectively precludes the Council from providing comments which the 
agency official can meaningfully consider prior to the approval of the 
undertaking.
    (k) Head of the agency means the chief official of the Federal 
agency responsible for all aspects of the agency's

[[Page 109]]

actions. If a State, local, or tribal government has assumed or has been 
delegated responsibility for section 106 compliance, the head of that 
unit of government shall be considered the head of the agency.
    (l)(1) Historic property means any prehistoric or historic district, 
site, building, structure, or object included in, or eligible for 
inclusion in, the National Register of Historic Places maintained by the 
Secretary of the Interior. This term includes artifacts, records, and 
remains that are related to and located within such properties. The term 
includes properties of traditional religious and cultural importance to 
an Indian tribe or Native Hawaiian organization and that meet the 
National Register criteria.
    (2) The term eligible for inclusion in the National Register 
includes both properties formally determined as such in accordance with 
regulations of the Secretary of the Interior and all other properties 
that meet the National Register criteria.
    (m) Indian tribe means an Indian tribe, band, nation, or other 
organized group or community, including a native village, regional 
corporation, or village corporation, as those terms are defined in 
section 3 of the Alaska Native Claims Settlement Act (43 U.S.C. 1602), 
which is recognized as eligible for the special programs and services 
provided by the United States to Indians because of their status as 
Indians.
    (n) Local government means a city, county, parish, township, 
municipality, borough, or other general purpose political subdivision of 
a State.
    (o) Memorandum of agreement means the document that records the 
terms and conditions agreed upon to resolve the adverse effects of an 
undertaking upon historic properties.
    (p) National Historic Landmark means a historic property that the 
Secretary of the Interior has designated a National Historic Landmark.
    (q) National Register means the National Register of Historic Places 
maintained by the Secretary of the Interior.
    (r) National Register criteria means the criteria established by the 
Secretary of the Interior for use in evaluating the eligibility of 
properties for the National Register (36 CFR part 60).
    (s)(1) Native Hawaiian organization means any organization which 
serves and represents the interests of Native Hawaiians; has as a 
primary and stated purpose the provision of services to Native 
Hawaiians; and has demonstrated expertise in aspects of historic 
preservation that are significant to Native Hawaiians.
    (2) Native Hawaiian means any individual who is a descendant of the 
aboriginal people who, prior to 1778, occupied and exercised sovereignty 
in the area that now constitutes the State of Hawaii.
    (t) Programmatic agreement means a document that records the terms 
and conditions agreed upon to resolve the potential adverse effects of a 
Federal agency program, complex undertaking or other situations in 
accordance with Sec. 800.14(b).
    (u) Secretary means the Secretary of the Interior acting through the 
Director of the National Park Service except where otherwise specified.
    (v) State Historic Preservation Officer (SHPO) means the official 
appointed or designated pursuant to section 101(b)(1) of the act to 
administer the State historic preservation program or a representative 
designated to act for the State historic preservation officer.
    (w) Tribal Historic Preservation Officer (THPO) means the tribal 
official appointed by the tribe's chief governing authority or 
designated by a tribal ordinance or preservation program who has assumed 
the responsibilities of the SHPO for purposes of section 106 compliance 
on tribal lands in accordance with section 101(d)(2) of the act.
    (x) Tribal lands means all lands within the exterior boundaries of 
any Indian reservation and all dependent Indian communities.
    (y) Undertaking means a project, activity, or program funded in 
whole or in part under the direct or indirect jurisdiction of a Federal 
agency, including those carried out by or on behalf of a Federal agency; 
those carried out with Federal financial assistance; and those requiring 
a Federal permit, license or approval.
    (z) Senior policy official means the senior policy level official 
designated

[[Page 110]]

by the head of the agency pursuant to section 3(e) of Executive Order 
13287.

[65 FR 77725, Dec. 12, 2000, as amended at 69 FR 40555, July 6, 2004]



    Sec. Appendix A to Part 800--Criteria for Council Involvement in 
                 Reviewing Individual section 106 Cases

    (a) Introduction. This appendix sets forth the criteria that will be 
used by the Council to determine whether to enter an individual section 
106 review that it normally would not be involved in.
    (b) General policy. The Council may choose to exercise its 
authorities under the section 106 regulations to participate in an 
individual project pursuant to the following criteria. However, the 
Council will not always elect to participate even though one or more of 
the criteria may be met.
    (c) Specific criteria. The Council is likely to enter the section 
106 process at the steps specified in the regulations in this part when 
an undertaking:
    (1) Has substantial impacts on important historic properties. This 
may include adverse effects on properties that possess a national level 
of significance or on properties that are of unusual or noteworthy 
importance or are a rare property type; or adverse effects to large 
numbers of historic properties, such as impacts to multiple properties 
within a historic district.
    (2) Presents important questions of policy or interpretation. This 
may include questions about how the Council's regulations are being 
applied or interpreted, including possible foreclosure or anticipatory 
demolition situations; situations where the outcome will set a precedent 
affecting Council policies or program goals; or the development of 
programmatic agreements that alter the way the section 106 process is 
applied to a group or type of undertakings.
    (3) Has the potential for presenting procedural problems. This may 
include cases with substantial public controversy that is related to 
historic preservation issues; with disputes among or about consulting 
parties which the Council's involvement could help resolve; that are 
involved or likely to be involved in litigation on the basis of section 
106; or carried out by a Federal agency, in a State or locality, or on 
tribal lands where the Council has previously identified problems with 
section 106 compliance pursuant to Sec. 800.9(d)(2).
    (4) Presents issues of concern to Indian tribes or Native Hawaiian 
organizations. This may include cases where there have been concerns 
raised about the identification of, evaluation of or assessment of 
effects on historic properties to which an Indian tribe or Native 
Hawaiian organization attaches religious and cultural significance; 
where an Indian tribe or Native Hawaiian organization has requested 
Council involvement to assist in the resolution of adverse effects; or 
where there are questions relating to policy, interpretation or 
precedent under section 106 or its relation to other authorities, such 
as the Native American Graves Protection and Repatriation Act.



PART 801_HISTORIC PRESERVATION REQUIREMENTS OF THE URBAN DEVELOPMENT ACTION GRANT PROGRAM--Table of Contents




Sec.
801.1 Purpose and authorities.
801.2 Definitions.
801.3 Applicant responsibilities.
801.4 Council comments.
801.5 State Historic Preservation Officer responsibilities.
801.6 Coordination with requirements under the National Environmental 
          Policy Act (42 U.S.C. 4321 et seq.).
801.7 Information requirements.
801.8 Public participation.

Appendix 1 to Part 801--Identification of Properties: General
Appendix 2 to Part 801--Special Procedures for Identification and 
          Consideration of Archeological Properties in an Urban Context

    Authority: Pub. L. 89-665, 80 Stat. 915 (16 U.S.C. 470); Pub. L. 94-
422, 90 Stat. 1320 (16 U.S.C. 470(i)); Pub. L. 96-399, 94 Stat. 1619 (42 
U.S.C. 5320).

    Source: 46 FR 42428, Aug. 20, 1981, unless otherwise noted.



Sec. 801.1  Purpose and authorities.

    (a) These regulations are required by section 110(c) of the Housing 
and Community Development Act of 1980 (HCDA) (42 U.S.C. 5320) and apply 
only to projects proposed to be funded by the Department of Housing and 
Urban Development (HUD) under the Urban Development Action Grant (UDAG) 
Program authorized by title I of the Housing and Community Development 
Act of 1974, as amended (42 U.S.C. 5301). These regulations establish an 
expedited process for obtaining the comments of the Council specifically 
for the UDAG program and, except as specifically provided, substitute 
for the Council's regulations for the ``Protection of Historic and 
Cultural Properties'' (36 CFR part 800).

[[Page 111]]

    (b) Section 110(c) of the HCDA of 1980 requires UDAG applicants to: 
(1) Identify all properties, if any, which are included in the National 
Register of Historic Places and which will be affected by the project 
for which the application is made; (2) identify all other properties, if 
any, which will be affected by such project and which, as determined by 
the applicant, may meet the Criteria established by the Secretary of the 
Interior for inclusion in the National Register (36 CFR 60.6); and (3) 
provide a description of the effect, as determined by the applicant, of 
the project on properties identified pursuant to (1) and (2). If the 
applicant determines that such properties are affected, the Act requires 
that the information developed by the applicant must be forwarded to the 
appropriate State Historic Preservation Officer (SHPO) for review and to 
the Secretary of the Interior for a determination as to whether the 
affected properties are eligible for inclusion in the National Register.
    (c) Section 106 of the National Historic Preservation Act of 1966, 
as amended (16 U.S.C. 470), requires the head of any Federal agency with 
jurisdiction over a Federal, federally assisted or federally licensed 
undertaking that affects a property included in or eligible for 
inclusion in the National Register of Historic Places to take into 
account the effect of the undertaking on such property and afford the 
Council a reasonable opportunity to comment. Under the UDAG program, 
applicants assume the status of a Federal agency for purposes of 
complying with section 106.



Sec. 801.2  Definitions.

    The terms defined in 36 CFR 800.2 shall be used in conjunction with 
this regulation. Furthermore, as used in these regulations:
    (a) Urban Development Action Grant (UDAG) Program means the program 
of the Department of Housing and Urban Development (HUD) authorized by 
title I of the Housing and Community Development Act (HCDA) of 1977 (42 
U.S.C. 5318) to assist revitalization efforts in distressed cities and 
urban counties which require increased public and private investment.
    (b) Applicant means cities and urban counties or Pocket of Poverty 
Communities which meet the criteria at 24 CFR 570.453. Except as 
specifically provided below, applicants, rather than the Secretary of 
HUD, must comply with these regulations.
    (c) Project means a commercial, industrial, and/or neighborhood 
project supported by the UDAG program of the Department of HUD, as 
defined in 24 CFR 570.451(g). A project includes the group of integrally 
related public and private activities described in the grant application 
which are to be carried out to meet the objectives of the action grant 
program and consists of all action grant funded activities together with 
all non-action grant funded activities. A project is an undertaking as 
defined in 36 CFR 800.2(c).
    (d) State Historic Preservation Officer Review Period is a 45 day 
period provided to the appropriate State Historic Preservation Officer 
by section 110(c) of the Housing and Community Development Act (HCDA) of 
1980 for comment on the formal submission by the applicant of data on 
properties listed in the National Register or which may meet the 
Criteria and which will be affected by the proposed UDAG project. This 
period does not include any period during which the applicant seeks 
information from the State Historic Preservation Officer to assist the 
applicant in identifying properties, determining whether a property 
meets the Criteria for listing in the National Register of Historic 
Places and determining whether such property is affected by the project.
    (e) Secretary of the Interior Determination Period is a 45 day 
period provided by section 110(c) of the HCDA of 1980 for a 
determination as to whether the identified properties are eligible for 
inclusion in the National Register.



Sec. 801.3  Applicant responsibilities.

    As early as possible before the applicant makes a final decision 
concerning a project and in any event prior to taking any action that 
would foreclose alternatives or the Council's ability to comment, the 
applicant should take the following steps to comply with the

[[Page 112]]

requirements of section 106 of the National Historic Preservation Act 
and section 110 of the HCDA of 1980.

In order to facilitate the commenting process the applicant should 
forward to the Council information on the proposed project at the 
earliest practicable time if it appears that National Register 
properties or properties which meet the Criteria for inclusion will be 
affected. This will allow the Council to assist the applicant in 
expeditiously meeting its historic preservation requirements and 
facilitate the development of the Council's comments.
    (a) Information required. It is the primary responsibility of the 
applicant requesting Council comments to conduct the appropriate studies 
and to provide the information necessary for a review of the effect a 
proposed project may have on a National Register property or a property 
which meets the Criteria, as well as the information necessary for 
adequate consideration of modifications or alterations to the proposed 
project that could avoid, mitigate, or minimize any adverse effects. It 
is the responsibility of the applicant to provide the information 
specified in Sec. 801.7, to make an informed and reasonable evaluation 
of whether a property meets the National Register Criteria (36 CFR 60.6) 
and to determine the effect of a proposed undertaking on a National 
Register property or property which meets the Criteria.
    (b) Identification of properties. Section 110 of the HCDA of 1980 
makes UDAG applicants responsible for the identification of National 
Register properties and properties which may meet the Criteria for 
listing in the National Register that may be affected by the project. An 
appendix to these regulations sets forth guidance to applicants in 
meeting their identification responsibilities but does not set a fixed 
or inflexible standard for such efforts. Meeting this responsibility 
requires the applicant to make an earnest effort to identify and 
evaluate potentially affected historic properties by:
    (1) Consulting the National Register of Historic Places to determine 
whether the project's impact area includes such properties;
    (2) Obtaining, prior to initiating the State Historic Preservation 
Officer Review Period, relevant information that the State Historic 
Preservation Officer may have available concerning historic properties, 
if any are known, in the project's impact area;
    (3) Utilizing local plans, surveys, and inventories of historic 
properties prepared by the locality or a recognized State or local 
historic authority;
    (4) Utilizing other sources of information or advice the applicant 
deems appropriate;
    (5) Conducting an on-the-ground inspection of the project's impact 
area by qualified personnel to identify properties which may meet the 
Criteria for evaluation taking into consideration the views of the State 
Historic Preservation Officer as to the need for and methodology of such 
inspections;
    (6) Applying the Department of the Interior Criteria for Evaluation 
(36 CFR 60.6) to properties within the project's impact area.
    (c) Evaluation of effect. Applicants are required by section 110(a) 
of the HCDA of 1980 to include in their applications a description of 
the effect of a proposed UDAG project on any National Register property 
and or any property which may meet the Criteria.
    (1) Criteria of Effect and Adverse Effect. The following criteria, 
similar to those set forth in 36 CFR 800.3, shall be used to determine 
whether a project has an effect or an adverse effect.
    (i) Criteria of effect. The effect of a project on a National 
Register or eligible property is evaluated in the context of the 
historical, architectural, archeological, or cultural significance 
possessed by the property. A project shall be considered to have an 
effect whenever any condition of the project causes or may cause any 
change, beneficial or adverse, in the quality of the historical, 
architectural, archeological, or cultural characteristics that qualify 
the property to meet the Criteria of the National Register. An effect 
occurs when a project changes the integrity of location, design, 
setting, materials, workmanship, feeling or association of the property 
that contributes to its significance in accordance with the National 
Register Criteria. An effect may be direct or indirect. Direct effects 
are caused by the project and occur at the same time and place. Indirect 
effects

[[Page 113]]

include those caused by the undertaking that are later in time or 
farther removed in distance, but are still reasonably foreseeable. Such 
effects involve development of the project site around historic 
properties so as to affect the access to, use of, or significance of 
those properties.
    (ii) Criteria of adverse effect. Adverse effects on National 
Register properties or properties which meet the Criteria may occur 
under conditions which include but are not limited to:
    (A) Destruction or alteration of all or part of a property;
    (B) Isolation from or alteration of the property's surrounding 
environment;
    (C) Introduction of visual, audible, or atmospheric elements that 
are out of character with the property or alter its setting;
    (D) Neglect of a property resulting in its deterioration or 
destruction;
    (iii) Special considerations. If rehabilitation is a project 
activity, such components of the project may be considered to have no 
adverse effect and need not be referred to the Council if they are 
undertaken in accordance with the Secretary of the Interior's Standards 
for Historic Preservation Projects (U.S. Department of the Interior, 
Heritage Conservation and Recreation Service, Washington, DC, 1979) and 
the State Historic Preservation Officer concurs in the proposed 
activity. Additionally, the following types of project components or 
elements will be considered to not normally adversely affect properties 
listed in the National Register or which meet the Criteria.
    (A) Insulation (except for the use of granular or liquid injected 
foam insulation in exterior walls or other vertical surfaces);
    (B) Caulking;
    (C) Weatherstripping;
    (D) Replacement of Heating, Ventilating and Air Conditioning (HVAC) 
equipment, provided that such equipment is not historic and that 
replacement equipment is screened from public view and that the State 
Historic Preservation Officer and the applicant agree the equipment will 
not affect those qualities of the property which qualify it to meet the 
36 CFR 60.6 Criteria;
    (E) In-kind refenestration (for example, replacement of deteriorated 
windows of a similar configuration, color and material);
    (F) Lowering of ceilings, provided the ceilings will not be visible 
from outside of the building or from an interior public space and that 
the State Historic Preservation Officer and the applicant agree it will 
not affect a quality which qualified the building to meet the 36 CFR 
60.6 Criteria;
    (G) Replacement in-kind of substantially deteriorated material, 
provided that the State Historic Preservation Officer and the applicant 
agree;
    (H) Installation of machinery, equipment, furnishings, fixtures, 
etc., in the interior of existing buildings, provided that the State 
Historic Preservation Officer and the applicant agree such installations 
will not affect a quality which qualified the building to meet the 36 
CFR 60.6 Criteria.
    (I) Site improvements such as sidewalk paving and landscaping, 
provided that the State Historic Preservation Officer and the applicant 
agree that the site improvement will not affect those qualities of the 
property which qualify it to meet the 36 CFR 60.6 Criteria.
    (iv) Special considerations for archeological sites. Under certain 
conditions, alteration of land containing archeological resources in the 
project area may have no adverse effect on those resources. Procedures 
for determining whether such conditions exist were published by the 
Council in the Federal Register on November 26, 1980 (45 FR 78808), as 
part X of the ``Executive Director's Procedures for Review of Proposals 
for Treatment of Archeological Properties.'' Because the identification 
of archeological sites in an urban context, and consideration of 
appropriate treatment methods, present special problems, further 
guidance is provided in Appendix 2.
    (2) Determinations of Effect. Prior to submitting an application to 
HUD, the applicant shall apply the Criteria of Effect and Adverse Effect 
to all properties which are listed in the National

[[Page 114]]

Register or which may meet the Criteria in the area of the project's 
potential environmental impact. The determination of the Secretary of 
the Interior shall be final with respect to properties which are 
eligible for listing in the National Register. The Council will not 
comment on affected properties which are not either listed in or 
eligible for listing in the National Register. In order to facilitate 
the process, information to be requested from the State Historic 
Preservation Officer under Sec. 801.3(b)(2) should include advice on 
applying the Criteria of Effect and Adverse Effect provided that this 
period shall not be included in the 45 day State Historic Preservation 
Officer Review Period. Special attention should be paid to indirect 
effects, such as changes in land use, traffic patterns, street activity, 
population density and growth rate. While some aspects of a project may 
have little potential to adversely affect the significant qualities of a 
historic property, other project components may meet the Criteria of 
Effect and Adverse Effect. If any aspect of the project results in an 
effect determination, further evaluation of the effect shall be 
undertaken in accordance with these regulations. The resulting 
determination regarding the effect shall be included in the application.
    (i) No effect. If the applicant determines that the project will 
have no effect on any National Register property and/or property which 
meets the Criteria, the project requires no further review by the 
Council unless a timely objection is made by the Executive Director. An 
objection may be made by the Executive Director at any time during the 
UDAG application process prior to the expiration of the period for 
receiving objections to HUD's release of funds as specified in 24 CFR 
58.31. The manner in which the Executive Director shall make an 
objection is set forth in Sec. 801.4(a).
    (ii) Determinations of no adverse effect. If the applicant finds 
there is an effect on the property but it is not adverse, the applicant 
after receiving the comments of the State Historic Preservation Officer 
during the State Historic Preservation Officer Review Period shall 
forward adequate documentation (see Sec. 801.7(a)) of the 
Determination, including the written comments of the State Historic 
Preservation Officer, if available, to the Executive Director for review 
in accordance with Sec. 801.4.
    (iii) Adverse effect determination. If the applicant finds the 
effect to be adverse or if the Executive Director objects to an 
applicant's no adverse effect determination pursuant to Sec. 801.4(a), 
the applicant shall proceed with the consultation process in accordance 
with Sec. 801.4(b).



Sec. 801.4  Council comments.

    The following subsections specify how the Council will respond to an 
applicant's request for the Council's comments required to satisfy the 
applicant's responsibilities under section 106 of the Act and section 
110 of the HCDA of 1980. When appropriate, an applicant may waive the 
Council time periods specified in these regulations.
    (a) Executive Director's Objection to No Effect Determination. If 
the Executive Director has reason to question an applicant's 
determination of no effect, he shall notify the applicant and HUD. If 
the Executive Director does not object within 15 days of such 
notification, the project may proceed. If the Executive Director 
objects, he shall specify whether or not the project will have an 
adverse effect on National Register property and/or property which meets 
the Criteria. Normally, the Executive Director will object to a 
determination of no effect when the record does not support the 
applicant's determination (see Sec. 801.7(a)). The applicant must then 
comply with the provisions of subsection (b) if the Executive Director 
determines that the project will have no adverse effect or subsection 
(c) if the Executive Director has determined that the project will have 
an adverse effect.
    (b) Response to Determinations of No Adverse Effect. (1) Upon 
receipt of a Determination of No Adverse Effect from an applicant, the 
Executive Director will review the Determination and supporting 
documentation required by Sec. 801.7(a). Failure to provide the 
required information at the time the applicant requests Council comments 
will delay the process. The Executive Director will respond to the 
applicant within 15 days after receipt of the information

[[Page 115]]

required in Sec. 801.7(a). Unless the Executive Director objects to the 
Determination within 15 days after receipt, the applicant will be 
considered to have satisfied its responsibilities under section 106 of 
the Act and these regulations and no further Council review is required.
    (2) If the Executive Director objects to a Determination of No 
Adverse Effect, the consultation process pursuant to Sec. 801.4(c) 
shall be initiated.
    (c) Consultation process. If any aspect of the project is found to 
have adverse effects on National Register property or property which has 
been determined by the applicant or the Secretary of the Interior to 
meet the Criteria, the applicant, the State Historic Preservation 
Officer and the Executive Director shall consult to consider feasible 
and prudent alternatives to the project that could avoid, mitigate, or 
minimize the adverse effect on the affected property.
    (1) Parties. The applicant, the State Historic Preservation Officer 
and the Executive Director shall be the consulting parties. The 
Department of HUD, other representatives of national, State, or local 
units of government, other parties in interest, and public and private 
organizations, may be invited by the consulting parties to participate 
in the consultation process.
    (2) Timing. The consulting parties shall have a total of 45 days 
from the receipt by the Executive Director of the information required 
in Sec. 801.7(a) to agree upon feasible and prudent alternatives to 
avoid, mitigate, or minimize any adverse effects of the project. Failure 
of an applicant to provide the information required in Sec. 801.7(b) 
will delay the beginning of the time period specified above.
    (3) Information requirements. The applicant shall provide copies of 
the information required in Sec. 801.7(b) to the consulting parties at 
the initiation of the consultation process and make it readily available 
for public inspection.
    (4) Public meeting. An onsite inspection and a Public Information 
Meeting may be held in accordance with the provisions of 36 CFR 
800.6(b). Public hearings or meetings conducted by the applicant in the 
preparation of the application may, as specified below, substitute for 
such Public Information Meetings. Upon request of the applicant, the 
Executive Director may find that such public meetings have been adequate 
to consider the effect of the project on National Register properties or 
properties which meet the Criteria, and no further Public Information 
Meeting is required.
    (5) Consideration of alternatives. During the consultation period, 
the consulting parties shall, in accordance with the policies set forth 
in 36 CFR 800.6(b) (4) and (5), review the proposed project to determine 
whether there are prudent and feasible alternatives to avoid or 
satisfactorily mitigate adverse effect. If they agree on such 
alternatives, they shall execute a Memorandum of Agreement in accordance 
with Sec. 801.4(c) specifying how the undertaking will proceed to avoid 
or mitigate the adverse effect.
    (6) Acceptance of adverse effect. If the consulting parties 
determine that there are no feasible and prudent alternatives that could 
avoid or satisfactorily mitigate the adverse effects and agree that it 
is in the public interest to proceed with the proposed project they 
shall execute a Memorandum of Agreement in accordance with Sec. 
801.4(c) acknowledging this determination and specifying any recording, 
salvage, or other measures associated with acceptance of the adverse 
effects that shall be taken before the project proceeds.
    (7) Failure to agree. Upon the failure of the consulting parties to 
agree upon the terms for a Memorandum of Agreement within the specified 
time period, or upon notice of a failure to agree by any consulting 
party to the Executive Director, the Executive Director within 15 days 
shall recommend to the Chairman whether the matter should be scheduled 
for consideration at a Council meeting. If the Executive Director 
recommends that the Council not consider the matter, he shall 
simultaneously notify all Council members and provide them copies of the 
preliminary case report and the recommendation to the Chairman. The 
applicant and the State Historic Preservation Officer shall be notified 
in writing of the Executive Director's recommendation.

[[Page 116]]

    (d) Memorandum of Agreement--(1) Preparation of Memorandum of 
Agreement. It shall be the responsibility of the Executive Director to 
prepare each Memorandum of Agreement required under this part. As 
appropriate, other parties may be invited by the consulting parties to 
be signatories to the Agreement or otherwise indicate their concurrence 
with the Agreement. In order to facilitate the process, the applicant 
may provide the Executive Director a draft for a Memorandum of 
Agreement. At the applicant's option, such draft may be prepared at the 
time the applicant makes its determinations that properties listed in 
the National Register or which may meet the Criteria for listing in the 
National Register may be adversely affected. The applicant must provide 
the State Historic Preservation Officer an opportunity to concur in or 
comment on its draft Agreement.
    (2) Review of Memorandum of Agreement. Upon receipt of an executed 
Memorandum of Agreement, the Chairman shall institute a 15 day review 
period. Unless the Chairman notifies the applicant that the matter has 
been placed on the agenda for consideration at a Council meeting, the 
Agreement shall become final when ratified by the Chairman or upon the 
expiration of the 15 day review period with no action taken. Copies will 
be provided to signatories. A copy of the Memorandum of Agreement should 
be included in any Environmental Assessment or Environmental Impact 
Statement prepared pursuant to the National Environmental Policy Act.
    (3) Effect of Memorandum of Agreement. (i) Agreements duly executed 
in accordance with these regulations shall constitute the comments of 
the Council and shall evidence satisfaction of the applicant's 
responsibilities for the proposed project under section 106 of the Act 
and these regulations.
    (ii) If the Council has commented on an application that is not 
approved by HUD and a subsequent UDAG application is made for the same 
project, the project need not be referred to the Council again unless 
there is a significant amendment to the project which would alter the 
effect of the project on previously considered properties or result in 
effects on additional National Register properties or properties which 
meet the Criteria.
    (iii) Failure to carry out the terms of a Memorandum of Agreement 
requires that the applicant again request the Council's comments in 
accordance with these regulations. In such instances, until the Council 
issues its comments under these regulations the applicant shall not take 
or sanction any action or make any irreversible or irretrievable 
commitment that could result in an adverse effect with respect to 
National Register properties or properties which are eligible for 
inclusion in the National Register covered by the Agreement or that 
would foreclose the Council's consideration of modifications or 
alternatives to the proposed project that could avoid or mitigate the 
adverse effect.
    (4) Amendment of a Memorandum of Agreement. Amendments to the 
Agreement may be made as specified in 36 CFR 800.6(c)(4).
    (5) Report on Memorandum of Agreement. Within 90 days after carrying 
out the terms of the Agreement, the applicant shall report to all 
signatories on the actions taken.
    (e) Council Meetings. Council meetings to consider a project will be 
conducted in accordance with the policies set forth in 36 CFR 800.6(d).
    (1) Response to recommendation concerning consideration at Council 
meeting. Upon receipt of a recommendation from the Executive Director 
concerning consideration of a proposed project at a Council meeting, the 
Chairman shall determine whether or not the project will be considered. 
The Chairman shall make a decision within 15 days of receipt of the 
recommendation of the Executive Director. In reaching a decision the 
Chairman shall consider any comments from Council members. If three 
members of the Council object within the 15 day period to the Executive 
Director's recommendation, the project shall be scheduled for 
consideration at a Council or panel meeting. Unless the matter is 
scheduled for consideration by the Council the Chairman shall notify the 
applicant, the Department of HUD, the State Historic Preservation 
Officer and other parties known to be interested of

[[Page 117]]

the decision not to consider the matter. Such notice shall be evidence 
of satisfaction of the applicant's responsibilities for the proposed 
project under section 106 of the Act and these regulations.
    (2) Decision to consider the project. When the Council will consider 
a proposed project at a meeting, the Chairman shall either designate 
five members as a panel to hear the matter on behalf of the full Council 
or schedule the matter for consideration by the full Council. In either 
case, the meeting shall take place within 30 days of the Chairman's 
decision to consider the project, unless the applicant agrees to a 
longer time.
    (i) A panel shall consist of three non-Federal members, one as 
Chairman, and two Federal members. The Department of HUD may not be a 
member of such panel.
    (ii) Prior to any panel or full Council consideration of a matter, 
the Chairman will notify the applicant and the State Historic 
Preservation Officer and other interested parties of the date on which 
the project will be considered. The Executive Director, the applicant, 
the Department of HUD, and the State Historic Preservation Officer shall 
prepare reports in accordance with Sec. 801.7(b). Reports from the 
applicant and the State Historic Preservation Officer must be received 
by the Executive Director at least 7 days before any meeting.
    (3) Notice of Council meetings. At least 7 days notice of all 
meetings held pursuant to this section shall be given by publication in 
the Federal Register. The Council shall provide a copy of the notice by 
mail to the applicant, the State Historic Preservation Officer, and the 
Department of Housing and Urban Development. The Council will inform the 
public of the meeting through appropriate local media.
    (4) Statements to the Council. An agenda shall provide for oral 
statements from the Executive Director; the applicant; the Department of 
HUD; parties in interest; the Secretary of the Interior; the State 
Historic Preservation Officer; representatives of national, State, or 
local units of government; and interested public and private 
organizations and individuals. Parties wishing to make oral remarks 
should notify the Executive Director at least two days in advance of the 
meeting. Parties wishing to have their written statements distributed to 
Council members prior to the meeting should send copies of the 
statements to the Executive Director at least 5 days in advance.
    (5) Comments of the Council. The written comments of the Council 
will be issued within 7 days after a meeting. Comments by a panel shall 
be considered the comments of the full Council. Comments shall be made 
to the applicant requesting comment and to the Department of HUD. 
Immediately after the comments are made to the applicant and the 
Department of HUD, the comments of the Council will be forwarded to the 
President and the Congress as a special report under authority of 
section 202(b) of the Act and a notice of availability will be published 
in the Federal Register. The comments of the Council shall be made 
available to the State Historic Preservation Officer, other parties in 
interest, and the public upon receipt of the comments by the applicant. 
The applicant should include the comments of the Council in any final 
Environmental Impact Statement prepared pursuant to the National 
Environmental Policy Act.
    (6) Action in response to Council comments. The comments of the 
Council shall be taken into account in reaching a final decision on the 
proposed project. When a final decision regarding the proposed project 
is reached by the applicant and the Department of HUD, they shall submit 
written reports to the Council describing the actions taken by them and 
other parties in response to the Council's comments and the impact that 
such actions will have on the affected National Register properties or 
properties eligible for inclusion in the National Register. Receipt of 
this report by the Chairman shall be evidence that the applicant has 
satisfied its responsibilities for the proposed project under section 
106 of the Act and these regulations. The Council may issue a final 
report to the President and the Congress under authority of section 
202(b) of the Act describing the actions taken in response to the

[[Page 118]]

Council's comments including recommendations for changes in Federal 
policy and programs, as appropriate.
    (f) Suspense of Action. Until the Council issues its comments under 
these regulations and during the State Historic Preservation Officer 
Review Period and the determination period of the Secretary of the 
Interior, good faith consultation shall preclude the applicant from 
taking or sanctioning any action or making any irreversible or 
irretrievable commitment that could result in an adverse effect on a 
National Register property or property which may meet the Criteria or 
that would foreclose the consideration of modifications or alternatives 
to the proposed project that could avoid, mitigate, or minimize such 
adverse effects. In no case shall UDAG funds be used for physical 
activities on the project site until the Council comments have been 
completed. Normal planning and processing of applications short of 
actual commitment of funds to the project may proceed.
    (g) Lead Agency. If the project proposed by the applicant involves 
one or more Federal agencies, they may agree on a single lead agency to 
meet the requirements of section 106 of the National Historic 
Preservation Act and section 110 of the Housing and Community 
Development Act of 1980 and notify the Executive Director. If the 
applicant is the designated lead agency, these regulations shall be 
followed. If a Federal agency is designated lead agency, the process in 
36 CFR part 800 shall be used.
    (h) Compliance by a Federal Agency. An applicant may make a finding 
that it proposes to accept a Federal agency's compliance with section 
106 of the Act and 36 CFR 800 where its review of the Federal agency's 
findings indicate that:
    (1) The project is identical with an undertaking reviewed by the 
Council under 36 CFR part 800; and
    (2) The project and its impacts are included within the area of 
potential environmental impact described by the Federal agency;

The applicant shall notify the State Historic Preservation Officer and 
the Executive Director of its finding of compliance with section 106 of 
the Act and 36 CFR part 800 and provide a copy of the Federal agency's 
document where the finding occurs. Unless the Executive Director objects 
within 10 days of receipt of such notice the Council need not be 
afforded further opportunity for comment. If the Executive Director 
objects to the finding of the applicant, the applicant shall comply with 
Sec. 801.4.



Sec. 801.5  State Historic Preservation Officer responsibilities.

    (a) The State Historic Preservation Officer shall have standing to 
participate in the review process established by section 110(c) of the 
HCDA of 1980 whenever it concerns a project located within the State 
Historic Preservation Officer's jurisdiction by the following means: 
providing, within 30 days, information requested by an applicant under 
Sec. 801.3(b); responding, within 45 days, to submittal of a 
determination by the applicant under section 110 of the HCDA of 1980 
that National Register property or property which meets the Criteria may 
be affected by the proposed project; participating in a Memorandum of 
Agreement that the applicant or the Executive Director may prepare under 
this part; and participating in a panel or full Council meeting that may 
be held pursuant to these regulations. Pursuant to section 110(c) of the 
HCDA of 1980, the State Historic Preservation Officer has a maximum 
period of 45 days in which to formally comment on an applicant's 
determination that the project may affect a property that is listed in 
the National Register or which may meet the Criteria for listing in the 
National Register. This period does not include the time during which 
the applicant seeks information from the State Historic Preservation 
Officer for determining whether a property meets the Criteria for 
listing in the National Register and whether such property is affected 
by the project.
    (b) The failure of a State Historic Preservation Officer to 
participate in any required steps of the process set forth in this part 
shall not prohibit the Executive Director and the applicant from 
concluding the section 106 process, including the execution of a 
Memorandum of Agreement.

[[Page 119]]



Sec. 801.6  Coordination with requirements under the National Environmental Policy Act (42 U.S.C. 4321 et seq.).

    The National Historic Preservation Act and the National 
Environmental Policy Act create separate and distinct responsibilities. 
The National Historic Preservation Act applies to those aspects of a 
project which may affect National Register properties and those which 
are eligible for listing in the National Register. The requirements for 
the National Environmental Policy Act apply to the effect that the 
project will have on the human environment. To the extent that the 
applicant finds it practicable to do so, the requirements of these two 
statutes should be integrated. Some projects, for reasons other than the 
effects on historic properties, may require an Environmental Impact 
Statement (EIS) subject to the time requirements for a draft and final 
EIS, in which case the applicant may choose to separately relate to the 
State Historic Preservation Officer, the Department of the Interior, and 
the Council for purposes of section 110(c) of the HCDA of 1980. In that 
event, information in the draft EIS should indicate that compliance with 
section 106 and these regulations is underway and the final EIS should 
reflect the results of this process. Applicants are directed to 36 CFR 
800.9, which describes in detail the manner in which the requirements of 
these two acts should be integrated and applies to all UDAG applicants 
under these regulations.

In those instances in which an Environmental Impact Statement will be 
prepared for the project, the applicant should consider phasing 
compliance with these procedures and the preparation of the Statement.



Sec. 801.7  Information requirements.

    (a) Information To Be Retained by Applicants Determining No Effect. 
(1) Recommended Documentation for a Determination of No Effect. Adequate 
documentation of a Determination of No Effect pursuant to Sec. 
801.3(c)(2)(i) should include the following:
    (i) A general discussion and chronology of the proposed project;
    (ii) A description of the proposed project including, as 
appropriate, photographs, maps, drawings, and specifications;
    (iii) A statement that no National Register property or property 
which meets the Criteria exist in the project area, or a brief statement 
explaining why the Criteria of Effect (See Sec. 801.3(c)) was found 
inapplicable;
    (iv) Evidence of consultation with the State Historic Preservation 
Officer concerning the Determination of No Effect; and
    (v) Evidence of efforts to inform the public concerning the 
Determination of No Effect.
    (2) The information requirements set forth in this section are meant 
to serve as guidance for applicants in preparing No Effect 
Determinations. The information should be retained by the applicant, 
incorporated into any environmental reports or documents prepared 
concerning the project, and provided to the Executive Director only in 
the event of an objection to the applicant's determination.
    (b) Reports to the Council. In order to adequately assess the impact 
of a proposed project on National Register and eligible properties, it 
is necessary for the Council to be provided certain information. For the 
purposes of developing Council comments on UDAG projects the following 
information is required. Generally, to the extent that relevant portions 
of a UDAG application meet the requirements set forth below it will be 
sufficient for the purposes of Council review and comment.
    (1) Documentation for Determination of No Adverse Effect. Adequate 
documentation of a Determination of No Adverse Effect pursuant to Sec. 
801.3(c)(1) should include the following:
    (i) A general discussion and chronology of the proposed project;
    (ii) A description of the proposed project including, as 
appropriate, photographs, maps, drawings and specifications;
    (iii) A copy of the National Register form or a copy of the 
Determination of Eligibility documentation for each property that will 
be affected by the project including a description of each property's 
physical appearance and significance;
    (iv) A brief statement explaining why each of the Criteria of 
Adverse Effect

[[Page 120]]

(See Sec. 801.3(c)(1)) was found inapplicable;
    (v) Written views of the State Historic Preservation Officer 
concerning the Determination of No Adverse Effect, if available; and,
    (vi) An estimate of the cost of the project including the amount of 
the UDAG grant and a description of any other Federal involvement.
    (2) Preliminary Case Reports. Preliminary Case Reports should be 
submitted with a request for comments pursuant to Sec. 801.4(b) and 
should include the following information:
    (i) A general discussion and chronology of the proposed project;
    (ii) The status of the project in the HUD approval process:
    (iii) The status of the project in the National Environmental Policy 
Act compliance process and the target date for completion of all the 
applicant's environmental responsibilities;
    (iv) A description of the proposed project including as appropriate, 
photographs, maps, drawings and specifications;
    (v) A copy of the National Register form or a copy of the 
Determination of Eligibility documentation for each property that will 
be affected by the project including a description of each property's 
physical appearance and significance;
    (vi) A brief statement explaining why any of the Criteria of Adverse 
Effect (See Sec. 801.3(c)(1)(b)) apply;
    (vii) Written views of the State Historic Preservation Officer 
concerning the effect on the property, if available;
    (viii) The views of Federal agencies, State and local governments, 
and other groups or individuals when known as obtained through the OMB 
Circular A-95 process or the environmental review process, public 
hearings or other applicant processes;
    (ix) A description and analysis of alternatives that would avoid the 
adverse effects;
    (x) A description and analysis of alternatives that would mitigate 
the adverse effects; and,
    (xi) An estimate of the cost of the project including the amount of 
the UDAG grant and a description of any other Federal involvement.
    (c) Reports for Council Meetings. Consideration of a proposed 
project by the full Council or a panel pursuant to Sec. 801.4(b) is 
based upon reports from the Executive Director, the State Historic 
Preservation Officer and Secretary of the Interior. Requirements for 
these reports are specified in 36 CFR 800.13(c). Additionally, reports 
from the applicant and the Department of HUD are required by these 
regulations. The requirements for these reports consist of the 
following:
    (1) Report of the Applicant. The report from the applicant 
requesting comments shall include a copy of the relevant portions of the 
UDAG application; a general discussion and chronology of the proposed 
project; an account of the steps taken to comply with the National 
Environmental Policy Act (NEPA); any relevant supporting documentation 
in studies that the applicant has completed; an evaluation of the effect 
of the project upon the property or properties, with particular 
reference to the impact on the historical, architectural, archeological, 
and cultural values; steps taken or proposed by the applicant to avoid 
or mitigate adverse effects of the project; a thorough discussion of 
alternate courses of action; and an analysis comparing the advantages 
resulting from the project with the disadvantages resulting from the 
adverse effects on National Register or eligible properties.
    (2) Report of the Secretary of Housing and Urban Development. The 
report from the Secretary shall include the status of the application in 
the UDAG approval process, past involvement of the Department with the 
applicant and the proposed project or land area for the proposed 
project, and information on how the applicant has met other requirements 
of the Department for the proposed project.



Sec. 801.8  Public participation.

    (a) The Council encourages maximum public participation in the 
process established by these regulations. Particularly important, with 
respect to the UDAG program, is participation by the citizens of 
neighborhoods directly or indirectly affected by projects, and by groups 
concerned with historic and cultural preservation.

[[Page 121]]

    (b) The applicant, in preparing and following its citizen 
participation plan called for by 24 CFR 570.456(c)(11)(i)(A), should 
ensure that adequate provision is made for participation by citizens and 
organizations having interests in historic preservation and in the 
historic and cultural values represented in affected neighborhoods. 24 
CFR 570.431(c) sets forth criteria for citizen participation plans. 
These should be carefully considered with specific reference to ensuring 
that local concerns relevant to historic preservation are fully 
identified, and that citizens are provided with full and accurate 
information about each project and its effects on historic properties. 
The applicant should ensure that potentially concerned citizens and 
organizations are fully involved in the identification of properties 
which may meet the National Register Criteria, and that they are fully 
informed, in a timely manner, of determinations of No Effect, No Adverse 
Effect, and Adverse Effect, and of the progress of the consultation 
process. Applicants are referred to 36 CFR 800.15 for Council guidelines 
for public participation.
    (c) The Council welcomes the views of the public, especially those 
groups which may be affected by the proposed project, during its 
evaluation of the applicant's determination of effect, and will solicit 
the participation of the public in Council and panel meetings held to 
consider projects.



   Sec. Appendix 1 to Part 801--Identification of Properties: General

                             A. Introduction

    Because of the high probability of locating properties which are 
listed in the National Register or which meet the Criteria for listing 
in many older city downtowns, this appendix is designed to serve as 
guidance for UDAG applicants in identifying such properties. This 
appendix sets forth guidance for applicants and does not set a fixed or 
inflexible standard for identification efforts.

           B. Role of the State Historic Preservation Officer

    In any effort to locate National Register properties or properties 
which meet the Criteria, the State Historic Preservation Officer is a 
key source of information and advice. The State Historic Preservation 
Officer will be of vital assistance to the applicant. The State Historic 
Preservation Officer can provide information on known properties and on 
studies which have taken place in and around the project area. Early 
contact should be made with the State Historic Preservation Officer for 
recommendations about how to identify historic properties. For UDAG 
projects, identification of National Register properties and properties 
which meet the Criteria is the responsibility of the applicant. The 
extent of the identification effort should be made with the advice of 
the State Historic Preservation Officer. The State Historic Preservation 
Officer can be a knowledgeable source of information regarding cases 
wherein the need for a survey of historic properties is appropriate, 
recommended type and method of a survey and the boundaries of any such 
survey. Due consideration should be given to the nature of the project 
and its impacts, the likelihood of historic properties being affected 
and the state of existing knowledge regarding historic properties in the 
area of the project's potential environmental impact.

                       C. Levels of Identification

    1. The area of the project's potential environmental impact consists 
of two distinct subareas: that which will be disturbed directly 
(generally the construction site and its immediate environs) and that 
which will experience indirect effects. Within the area of indirect 
impact, impacts will be induced as a result of carrying the project out. 
Historic and cultural properties subject to effect must be identified in 
both subareas, and the level of effort necessary in each may vary. The 
level of effort needed is also affected by the stage of planning and the 
quality of pre-existing information. Obviously, if the area of potential 
environmental impact has already been fully and intensively studied 
before project planning begins, there is no need to duplicate this 
effort. The State Historic Preservation Officer should be contacted for 
information on previous studies. If the area has not been previously 
intensively studied, identification efforts generally fall into three 
levels:
    a. Overview Study: This level of study is normally conducted as a 
part of general planning and is useful at an early stage in project 
formulation. It is designed to obtain a general understanding of an 
area's historic and cultural properties in consultation with the State 
Historic Preservation Officer, by:
    (1) Assessing the extent to which the area has been previously 
subjected to study;
    (2) Locating properties previously recorded;
    (3) Assessing the probability that properties eligible for the 
National Register will be found if the area is closely inspected, and
    (4) Determining the need, if any, for further investigation.


[[Page 122]]


An overview study includes study of pertinent records (local histories, 
building inventories, architectural reports, archeological survey 
reports, etc.), and usually some minor on-the-ground inspection.
    b. Identification Study: An identification study attempts to 
specifically identify and record all properties in an area that may meet 
the criteria for listing in the National Register. In conducting the 
study, the applicant should seek the advice of the State Historic 
Preservation Officer regarding pertinent background data. A thorough on-
the-ground inspection of the subject area by qualified personnel should 
be undertaken. For very large areas, or areas with uncertain boundaries, 
such a study may focus on representative sample areas, from which 
generalizations may be made about the whole.
    c. Definition and Evaluation Study: If an overview and/or an 
identification study have indicated the presence or probable presence of 
properties that may meet the National Register Criteria but has not 
documented them sufficiently to allow a determination to be made about 
their eligibility, a definition and evaluation study is necessary. Such 
a study is directed at specific potentially eligible properties or at 
areas known or suspected to contain such properties. It includes an 
intensive on-the-ground inspection and related studies as necessary, 
conducted by qualified personnel, and provides sufficient information to 
apply the National Register's ``Criteria for Evaluation'' (36 CFR 60.6).
    2. An overview study will normally be needed to provide basic 
information for planning in the area of potential environmental impact. 
Unless this study indicates clearly that no further identification 
efforts are needed (e.g., by demonstrating that the entire area has 
already been intensively inspected with negative results, or by 
demonstrating that no potentially significant buildings have ever been 
built there and there is virtually no potential for archeological 
resources), and identification study will probably be needed within the 
area of potential environmental impact. This study may show that there 
are no potentially eligible properties within the area, or may show that 
only a few such properties exist and document them sufficiently to 
permit a determination of eligibility to be made in accordance with 36 
CFR part 60. Alternatively, the study may indicate that potentially 
eligible properties exist in the area, but may not document them to the 
standards of 36 CFR part 60. Should this occur, a definition and 
evaluation study is necessary for those properties falling within the 
project's area of direct effect and for those properties subject to 
indirect effects. If a property falls within the general area of 
indirect effect, but no indirect effects are actually anticipated on the 
property in question, a definition and evaluation study will normally be 
superfluous.



 Sec. Appendix 2 to Part 801--Special Procedures for Identification and 
      Consideration of Archeological Properties in an Urban Context

    A. Archeological sites in urban contexts are often difficult to 
identify and evaluate in advance of construction because they are sealed 
beneath modern buildings and structures. Prehistoric and historic sites 
within cities may be important both to science and to an understanding 
of each city's history, however, and should be considered in project 
planning. Special methods can be used to ensure effective and efficient 
consideration and treatment of archeological sites in UDAG projects.
    1. If it is not practical to physically determine the existence or 
nonexistence of archeological sites in the project area, the probability 
or improbability of their existence can be determined, in most cases, 
through study of:
    a. Information on the pre-urban natural environment, which would 
have had an effect on the location of prehistoric sites;
    b. Information from surrounding areas and general literature 
concerning the location of prehistoric sites;
    c. State and local historic property registers or inventories;
    d. Archeological survey reports;
    e. Historic maps, atlases, tax records, photographs, and other 
sources of information on the locations of earlier structures;
    f. Information on discoveries of prehistoric or historic material 
during previous construction, land levelling, or excavation, and
    g. Some minor on-the-ground inspection.
    2. Should the study of sources such as those listed in section 
(1)(a) above reveal that the following conditions exist, it should be 
concluded that a significant likelihood exists that archeological sites 
which meet the National Register Criteria exist on the project site:
    a. Discoveries of prehistoric or historic material remains have been 
reliably reported on or immediately adjacent to the project site, and 
these are determined by the State Historic Preservation Officer or other 
archeological authority to meet the Criteria for the National Register 
because of their potential value for public interpretation or the study 
of significant scientific or historical research problems; or
    b. Historical or ethnographic data, or discoveries of material, 
indicate that a property of potential cultural value to the community or 
some segment of the community (e.g., a cemetery) lies or lay within the 
project site; or
    c. The pre-urbanization environment of the project site would have 
been conducive to prehistoric occupation, or historic buildings or 
occupation sites are documented to have existed within the project site 
in earlier

[[Page 123]]

times, and such sites or buildings are determined by the State Historic 
Preservation Officer or other archeological authority to meet the 
Criteria of the National Register because of their potential value for 
public interpretation or the study of significant scientific or 
historical research questions, and
    d. The recent history of the project site has not included extensive 
and intensive ground disturbance (grading, blasting, cellar digging, 
etc.) in the location, or extending to the depth at which the remains of 
significant sites, buildings, or other features would be expected.
    B. Where review of sources of information such as those listed in 
section (1)(a) above reveals no significant likelihood that 
archeological resources which meet the National Register Criteria exist 
on the project site, no further review is required with respect to 
archeology provided the State Historic Preservation Officer concurs.
    C. Where review of sources of information such as those listed in 
section (1)(a) above, reveals that archeological resources which meet 
the National Register Criteria are likely to exist on the project site, 
but these resources are so deeply buried that the project will not 
intrude upon them, or they are in a portion of the project site that 
will not be disturbed, a determination of ``No Effect'' is appropriate 
in accordance with Sec. 801.3(c)(2)(i).
    D. Where review of sources of information such as those listed in 
section (1)(a) above, reveals that archeological resources which meet 
the Criteria exist or are likely to exist on the project site, and that 
the project is likely to disturb them, a determination of ``No Adverse 
Effect'' may be made in accordance with Sec. 801.3(c)(2)(ii) if:
    1. The applicant and/or developer is committed to fund a 
professionally supervised and planned pre-construction testing program, 
and to modification of the project in consultation with the State 
Historic Preservation Officer to protect or incorporate within the 
project the archeological resources discovered with a minimum of damage 
to them, or if:
    2. The applicant and/or developer is committed to fund a 
professionally supervised and planned archeological salvage program, 
coordinated with site clearing and construction, following the standards 
of the Secretary of the Interior issued pursuant to the Archeological 
and Historic Preservation Act (16 U.S.C. 469) and the applicant finds 
that this program negates the adverse effect, in accordance with the 
standards set forth in section X of the Council's ``Supplementary 
Guidance for Review of Proposals for Treatment of Archeological 
Properties'' (45 FR 78808).
    E. When archeological sites included in the National Register or 
which meet the Criteria are found to exist on the project site or in the 
area of the project's environmental impact, and where the project is 
likely to disturb such resources, and where the adverse effect of such 
disturbance cannot be negated by archeological salvage, a determination 
of ``Adverse Effect'' is appropriate in accordance with Sec. 
801.3(a)(2)(iii).



PART 805_PROCEDURES FOR IMPLEMENTATION OF NATIONAL ENVIRONMENTAL POLICY ACT--Table of Contents




Sec.
805.1 Background.
805.2 Purpose.
805.3 Applicability.
805.4 Ensuring environmental documents are actually considered in 
          Council decisionmaking.
805.5 Typical classes of action.
805.6 Interagency cooperation.
805.7 Environmental information.

    Authority: Pub. L. 89-665, 80 Stat. 915 (16 U.S.C. 470), as amended, 
84 Stat. 204 (1970), 87 Stat. 139 (1973), 90 Stat. 1320 (1976), 92 Stat. 
3467 (1978); E.O. 11593, 3 CFR 1971 Comp., p. 154; President's 
Memorandum on Environmental Quality and Water Resources Management, July 
12, 1978.

    Source: 45 FR 4353, Jan. 22, 1980, unless otherwise noted.



Sec. 805.1  Background.

    (a) The National Environmental Policy Act (NEPA) of 1969 (42 U.S.C. 
4321 et seq.) establishes national policies and goals for the protection 
of the environment. Section 102(2) of NEPA contains certain procedural 
requirements directed toward the attainment of such goals. In 
particular, all Federal agencies are required to give appropriate 
consideration to the environmental effects of their proposed actions in 
their decisionmaking and to prepare detailed environmental statements on 
recommendations or reports on proposals for legislation and other major 
Federal actions significantly affecting the quality of the human 
environment.
    (b) Executive Order 11991 of May 24, 1977, directed the Council on 
Environmental Quality (CEQ) to issue regulations to implement the 
procedural provisions of NEPA. Accordingly, CEQ issued final NEPA 
regulations (40 CFR parts 1500-1508) on November 29, 1978, which are 
binding on all Federal agencies as of July 30, 1979. These regulations 
provide that each Federal agency shall as necessary adopt implementing

[[Page 124]]

procedures to supplement the regulations. Section 1507.3(b) of the NEPA 
regulations identifies those sections of the regulations which must be 
addressed in agency procedures.



Sec. 805.2  Purpose.

    The purpose of this part is to establish Council procedures that 
supplement the NEPA regulations and provide for the implementation of 
those provisions identified in Sec. 1507.3(b) of the regulations (40 
CFR 1507.3(b)).



Sec. 805.3  Applicability.

    (a) These procedures apply to actions of the full Council and the 
Council staff acting on behalf of the full Council.
    (b) The following actions are covered by these procedures:
    (1) Recommendations for legislation.
    (2) Regulations implementing section 106 of the National Historic 
Preservation Act (NHPA).
    (3) Procedures implementing other authorities.
    (4) Policy recommendations that do not require implementation by 
another Federal agency.
    (c) In accordance with Sec. 1508.4 of the NEPA regulations (40 CFR 
1508.4), Council comments on Federal, federally assisted and federally 
licensed undertakings provided pursuant to section 106 of the NHPA and 
36 CFR part 800 are categorically excluded from these procedures. This 
exclusion is justified because Federal agencies seeking the Council's 
comments under section 106 have the responsibility for complying with 
NEPA on the action they propose. The Council's role is advisory and its 
comments are to be considered in the agency decisionmaking process. 
Coordination between the section 106 and the NEPA processes is set forth 
in 36 CFR 800.9.



Sec. 805.4  Ensuring environmental documents are actually considered in Council decisionmaking.

    (a) Section 1505.1 of the NEPA regulations (40 CFR 1505.1) contains 
requirements to ensure adequate consideration of environmental documents 
in agency decisionmaking. To implement these requirements the Council 
shall:
    (1) Consider all relevant environmental documents in evaluating 
proposals for action;
    (2) Ensure that all relevant environmental documents, comments, and 
responses accompany the proposal through internal Council review 
processes;
    (3) Consider only those alternatives encompassed by the range of 
alternatives discussed in the relevant environmental documents when 
evaluating proposals for the Council action; and,
    (4) Where an environmental impact statement (EIS) has been prepared 
consider the specific alternative analyzed in the EIS when evaluating 
the proposal which is the subject of the EIS.
    (b) For each of the Council's principal activities covered by NEPA, 
the following chart identifies the point at which the NEPA process 
begins, the point at which it ends, and the key officials required to 
consider environmental documents in their decisionmaking.

----------------------------------------------------------------------------------------------------------------
                                                                                          Key officials required
               Activity                 Start of NEPA process      Completion of NEPA          to consider
                                                                        process          environmental documents
----------------------------------------------------------------------------------------------------------------
Recommendations for legislation......  During staff             Prior to submission to   Executive Director and
                                        formulation of           Congress or OMB.         full Council, as
                                        proposal.                                         appropriate.
Regulations and procedures...........  Prior to publication of  Prior to publication of  Executive Director and
                                        draft regulations in     final regulations in     full Council as
                                        Federal Register.        Federal Register.        appropriate.
Policy recommendations...............  During staff             Prior to adoption by     Executive Director and
                                        formulation of           full Council or          full Council, as
                                        proposal.                Executive Director.      appropriate.
----------------------------------------------------------------------------------------------------------------



Sec. 805.5  Typical classes of action.

    (a) Section 1507.3(c)(2) (40 CFR 1507.3(c)(2)) in conjunction with 
Sec. 1508.4 requires agencies to establish three typical classes of 
action for similar treatment under NEPA: actions normally requiring EIS; 
actions normally requiring assessments but not necessarily EISs; and 
actions normally not requiring assessments or EISs. Each of

[[Page 125]]

the covered categories of Council actions generally falls within the 
second category, normally requiring an assessment but not necessarily an 
EIS.
    (b) The Council shall independently determine whether an EIS or an 
environmental assessment is required where:
    (1) A proposal for Council action is not covered by one of the 
typical classes of action above; or
    (2) For actions which are covered, the presence of extraordinary 
circumstances indicates that some other level of environmental review 
may be appropriate.



Sec. 805.6  Interagency cooperation.

    The Council shall consult with appropriate Federal and non-Federal 
agencies and with interested private persons and organizations when it 
is considering actions involving such parties and requiring 
environmental assessments. Where other Federal agencies are involved in 
the proposed action, the Council shall cooperate in the required 
environmental assessment and the preparation of necessary environmental 
documents. Where appropriate as determined by the nature and extent of 
Council involvement in the proposed action, the Council shall assume the 
status of lead agency.



Sec. 805.7  Environmental information.

    Interested persons may contact the Executive Director for 
information regarding the Council's compliance with NEPA.



PART 810_FREEDOM OF INFORMATION ACT REGULATIONS--Table of Contents




Sec.
810.1 Purpose and scope.
810.2 Procedure for requesting information.
810.3 Action on requests.
810.4 Appeals.
810.5 Fees.
810.6 Exemptions.

    Authority: Pub. L. 89-665, 80 Stat. 915 (16 U.S.C. 470) as amended 
by Pub. L. 91-243, Pub. L. 93-54, Pub. L. 94-422, Pub. L. 94-458, Pub. 
L. 96-199, Pub. L. 96-244, Pub. L. 96-515.

    Source: 46 FR 45334, Sept. 11, 1981, unless otherwise noted.



Sec. 810.1  Purpose and scope.

    This subpart contains the regulations of the Advisory Council on 
Historic Preservation implementing the Freedom of Information Act (5 
U.S.C. 552). Procedures for obtaining the records covered by the Act are 
established in these regulations. Persons seeking information or records 
of the Council are encouraged to consult first with the staff of the 
Council before filing a formal request under the Act pursuant to these 
regulations. The informal exchange of information is encouraged wherever 
possible.



Sec. 810.2  Procedure for requesting information.

    (a) Requests for information or records not available through 
informal channels shall be directed to the Administrative Officer, 
Advisory Council on Historic Preservation, 1522 K Street NW., 
Washington, DC 20005. All such requests should be clearly marked 
``FREEDOM OF INFORMATION REQUEST'' in order to ensure timely processing. 
Requests that are not so marked will be honored, but will be deemed not 
to have been received by the Council, for purposes of computing the 
response time, until the date on which they are identified by a member 
of the Council staff as being a request pursuant to the Freedom of 
Information Act.
    (b) Requests should describe the records sought in sufficient detail 
to allow Council staff to locate them with a reasonable amount of 
effort. Thus, where possible, specific information, including dates, 
geographic location of cases, and parties involved, should be supplied.
    (c) A request for all records falling within a reasonably specific 
category shall be regarded as conforming to the statutory requirement 
that records be reasonably described if the records can be identified by 
any process that is not unreasonably burdensome or disruptive of Council 
operations.
    (d) If a request is denied on the ground that it does not reasonably 
describe the records sought, the denial shall specify the reasons why 
the request was denied and shall extend to the requester an opportunity 
to confer

[[Page 126]]

with Council staff in order to reformulate the request in sufficient 
detail to allow the records to be produced.



Sec. 810.3  Action on requests.

    (a) Once a requested record has been identified, the Administrative 
Officer shall notify the requester of a date and location where the 
records may be examined or of the fact that copies are available. The 
notification shall also advise the requester of any applicable fees 
under Sec. 810.5.
    (b) A reply denying a request shall be in writing, signed by the 
Administrative Officer and shall include:
    (1) Reference to the specific exemption under the Act which 
authorizes the denial of the record, a brief explanation of how the 
exemption applies to the record requested, and a brief statement of why 
a discretionary release is not appropriate; and,
    (2) A statement that the denial may be appealed under Sec. 810.4 
within 30 days by writing to the Executive Director, Advisory Council on 
Historic Preservation, 1522 K Street NW., Washington, DC 20005.
    (c) The requirements of Sec. 810.3 (b)(1) and (2) do not apply to 
requests denied on the ground that they are not described with 
reasonable specificity and consequently cannot be identified.
    (d) Within 10 working days from receipt of a request, the 
Administrative Officer shall determine whether to grant or deny the 
request and shall promptly notify the requester of the decision. In 
certain unusual circumstances specified below, the time for 
determinations on requests may be extended up to a total of 10 
additional working days. The requester shall be notified in writing of 
any extension and of the reason for it, as well as of the data on which 
a determination will be made. Unusual circumstances include:
    (1) The need to search for and collect records from field offices or 
other establishments that are separate from the Washington office of the 
Council;
    (2) The need to search for, collect, and examine a voluminous amount 
of material which is sought in a request; or,
    (3) The need for consultation with another agency having substantial 
interest in the subject matter of the request.

If no determination has been made by the end of the 10-day period or the 
end of the last extension, the requester may deem his request denied and 
may exercise a right of appeal in accordance with Sec. 810.4.



Sec. 810.4  Appeals.

    (a) When a request has been denied, the requester may, within 30 
days of receipt of the denial, appeal the denial to the Executive 
Director of the Council. Appeals to the Executive Director shall be in 
writing, shall be addressed to the Executive Director, Advisory Council 
on Historic Preservation, 1522 K Street NW., Washington, DC 20005, and 
shall be clearly marked ``FREEDOM OF INFORMATION APPEAL.'' Requests that 
are not so marked will be honored, but will be deemed not to have been 
received by the Council, for purposes of computing the response time, 
until the date on which they are identified by a member of the Council 
staff as being an appeal pursuant to the Freedom of Information Act.
    (b) The appeal will be acted on within 20 working days of receipt. A 
written decision shall be issued. Where the decision upholds an initial 
denial of information, the decision shall include a reference to the 
specific exemption in the Freedom of Information Act which authorizes 
withholding the information, a brief explanation of how the exemption 
applies to the record withheld, and a brief statement of why a 
discretionary release is not appropriate. The decision shall also inform 
the requester of the right to seek judicial review in the U.S. District 
Court where the requester resides or has his principal place of 
business, or in which the agency records are situated, or in the 
District of Columbia.
    (c) If no decision has been issued within 20 working days, the 
requester is deemed to have exhausted his administrative remedies.



Sec. 810.5  Fees.

    (a) Fees shall be charged according to the schedules contained in 
paragraph (b) of this section unless it is determined that the requested 
information

[[Page 127]]

will be of primary benefit to the general public rather than to the 
requester. In that case, fees may be waived. Fees shall not be charged 
where they would amount to less than $3.00.
    (b) The following charges shall be assessed:
    (1) Copies of documents--$0.10 per page.
    (2) Clerical searches--$1.00 for each one quarter hour in excess of 
the first quarter hour spent by clerical personnel in searching for 
requested records.
    (3) Professional searches--$2.00 for each one quarter hour in excess 
of the first quarter hour spent by professional or managerial personnel 
in determining which records are covered by a request or other tasks 
that cannot be performed by clerical personnel.
    (c) Where it is anticipated that fees may amount to more than 
$25.00, the requester shall be advised of the anticipated amount of the 
fee and his consent obtained before the request is processed. The time 
limits for processing the request under Sec. 810.3 shall not begin to 
run until the requester's written agreement to pay the fees has been 
received. In the discretion of the Administrative Officer, advance 
payment of fees may be required before requested records are made 
available.
    (d) Payment should be made by check or money order payable to the 
Advisory Council on Historic Preservation.



Sec. 810.6  Exemptions.

    (a) The Freedom of Information Act exempts from disclosure nine 
categories of records which are described in 5 U.S.C. 552(b).
    (b) When a request encompasses records which would be of concern to 
or which have been created primarily by another Federal agency, the 
record will be made available by the Council only if the document was 
created primarily to meet the requirements of the Council's regulations 
implementing section 106 of the National Historic Preservation Act or 
other provisions of law administered primarily by the Council. If the 
record consists primarily of materials submitted by State or local 
governments, private individuals, organizations, or corporations, to 
another Federal agency in fulfillment of requirements for receiving 
assistance, permits, licenses, or approvals from the agency, the Council 
may refer the request to that agency. The requester shall be notified in 
writing of the referral.



PART 811_EMPLOYEE RESPONSIBILITIES AND CONDUCT--Table of Contents




    Authority: 5 U.S.C. 7301 and 16 U.S.C.470, as amended.

    Source: 63 FR 54355, Oct. 9, 1998, unless otherwise noted.



Sec. 811.1  Cross-references to employees' ethical conduct standards, financial disclosure and financial interests regulations and other conduct rules.

    Employees of the Advisory Council on Historic Preservation are 
subject to the executive branch-wide standards of ethical conduct, 
financial disclosure and financial interests regulations at 5 CFR Parts 
2634, 2635 and 2640, as well as the executive branch-wide employee 
responsibilities and conduct regulations at 5 CFR Part 735.



PART 812_ENFORCEMENT OF NONDISCRIMINATION ON THE BASIS OF HANDICAP IN PROGRAMS OR ACTIVITIES CONDUCTED BY THE ADVISORY COUNCIL ON HISTORIC PRESERVATION--Table of Contents




Sec.
812.101 Purpose.
812.102 Application.
812.103 Definitions.
812.104-812.109 [Reserved]
812.110 Self-evaluation.
812.111 Notice.
812.112-812.129 [Reserved]
812.130 General prohibitions against discrimination.
812.131-812.139 [Reserved]
812.140 Employment.
812.141-812.148 [Reserved]
812.149 Program accessibility: Discrimination prohibited.
812.150 Program accessibility: Existing facilities.
812.151 Program accessibility: New construction and alterations.
812.152-812.159 [Reserved]
812.160 Communications.

[[Page 128]]

812.161-812.169 [Reserved]
812.170 Compliance procedures.
812.171-812.999 [Reserved]

    Authority: 29 U.S.C. 794.

    Source: 51 FR 22896, June 23, 1986, unless otherwise noted.



Sec. 812.101  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. 812.102  Application.

    This part applies to all programs or activities conducted by the 
agency.



Sec. 812.103  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.
    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

[[Page 129]]

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. 812.140.
    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.



Sec. Sec. 812.104-812.109  [Reserved]



Sec. 812.110  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. 812.111  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. 812.112-812.129  [Reserved]



Sec. 812.130  General prohibitions against discrimination.

    (a) No qualified handicapped person shall, on the basis of handicap, 
be excluded from participation in, be denied

[[Page 130]]

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 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 activites 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. 812.131-812.139  [Reserved]



Sec. 812.140  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

[[Page 131]]

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. 812.141-812.148  [Reserved]



Sec. 812.149  Program accessibility: Discrimination prohibited.

    Except as otherwise provided in Sec. 812.150, 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. 812.150  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. 812.150(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 
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. 812.150(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. 812.150(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;

[[Page 132]]

    (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 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 agency'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.



Sec. 812.151  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 
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. 812.152-812.159  [Reserved]



Sec. 812.160  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 a handicapped person 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 
handicapped person.
    (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 person (TDD's) or 
equally effective telecommunication systems shall be used.
    (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 adminstrative 
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. 812.160 would 
result in such alteration or burdens. The

[[Page 133]]

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, handicapped persons receive 
the benefits and services of the program or activity.



Sec. Sec. 812.161-812.169  [Reserved]



Sec. 812.170  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 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 General Counsel shall be responsible for coordinating 
implementation of this section. Complaints may be sent to the General 
Counsel, Advisory Council on Historic Preservation, 1100 Pennsylvania 
Avenue, NW., Washington, DC 20004.
    (d) The agency shall accept and investigate all complete complaints 
for which it has jurisdiction. All complete complaints must be filed 
within 180 days of the alleged act of discrimination. The agency may 
extend this time period for good cause.
    (e) If the agency receives a complaint over which it does not have 
jurisdiction, it shall promptly notify the complainant and shall make 
reasonable efforts to refer the complaint to the appropriate government 
entity.
    (f) The agency shall notify the Architectural and Transportation 
Barriers Compliance Board upon receipt of any complaint alleging that a 
building or facility that is subject to the Architectural Barriers Act 
of 1968, as amended (42 U.S.C. 4151-4157), 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 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. 812.170(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.

[51 FR 22896, June 23, 1986, as amended at 51 FR 22893, June 23, 1986]



Sec. Sec. 812.171-812.999  [Reserved]

                        PARTS 813	899 [RESERVED]

[[Page 135]]



         CHAPTER IX--PENNSYLVANIA AVENUE DEVELOPMENT CORPORATION




  --------------------------------------------------------------------
Part                                                                Page
901             Bylaws of the Corporation...................         137
902             Freedom of Information Act..................         140
903             Privacy Act.................................         154
904             Uniform relocation assistance and real 
                    property acquisition for Federal and 
                    federally assisted programs.............         160
905             Standards of conduct........................         160
906             Affirmative action policy and procedure.....         168
907             Environmental quality.......................         174
908             Policy and procedures to facilitate the 
                    retention of displaced businesses and 
                    residents in the Pennsylvania Avenue 
                    Development Area........................         180
909             Enforcement of nondiscrimination on the 
                    basis of handicap in programs or 
                    activities conducted by the Pennsylvania 
                    Avenue Development Corporation..........         185
910             General guidelines and uniform standards for 
                    urban planning and design of development 
                    within the Pennsylvania Avenue 
                    Development Area........................         191
911-999

[Reserved]

  Note: Public Law 104-99, which incorporated the terms of the 
Department of the Interior and Related Agencies Appropriations Act, 1996 
(H.R. 1977), as passed by the House of Representatives on December 13, 
1995, provides that the Pennsylvania Avenue Development Corporation 
terminates as of April 1, 1996. H.R. 1977 provides that ``any 
regulations prescribed by the [Pennsylvania Avenue Development] 
Corporation in connection with the Pennsylvania Avenue Development 
Corporation Act of 1972 (40 U.S.C. 871-885) and the Federal Triangle 
Development Act (40 U.S.C. 1101-1109) shall continue in effect until 
suspended by regulations prescribed by the Administrator of the General 
Services Administration.'' Accordingly, the authority to administer the 
regulations in 36 CFR Chapter IX is transferred to the General Services 
Administration. See the Pennsylvania Avenue Development Corporation 
document, ``Transfer of Responsibilities and Effectiveness of PADC 
Regulations After PADC Termination'', published at 61 FR 11308, March 
20, 1996.

[[Page 137]]



PART 901_BYLAWS OF THE CORPORATION--Table of Contents




Sec.
901.1 Title and office.
901.2 Establishment.
901.3 Board of directors.
901.4 Officers.
901.5 Annual report.
901.6 Seal.
901.7 Amendments.

    Authority: Sec. 6(5), Pub. L. 92-578, 88 Stat. 1270(5) (40 U.S.C. 
875(5)).

    Source: 40 FR 41524, Sept. 8, 1975, unless otherwise noted.



Sec. 901.1  Title and office.

    (a) Title. The name of the Corporation is the Pennsylvania Avenue 
Development Corporation.
    (b) Office. The office of the Corporation shall be in the city of 
Washington, District of Columbia.



Sec. 901.2  Establishment.

    (a) Creation. The Corporation, a wholly owned instrumentality of the 
United States subject to the Government Corporation Control Act (31 
U.S.C. 841 et seq.), was established by the Pennsylvania Avenue 
Development Corporation Act of 1972 (Pub. L. 92-578, 86 Stat. 1266 (40 
U.S.C. 871 et seq.)), as amended, hereinafter referred to as the Act.
    (b) Purposes. The purposes for which this Corporation was 
established are those stated and promulgated by Congress in the Act.



Sec. 901.3  Board of directors.

    (a) Powers and responsibilities. The business, property and affairs 
of the Corporation shall be managed and controlled by the Board of 
Directors, and all powers specified in the Act are vested in them. The 
Board may, at its discretion and as hereinafter provided, delegate 
authority necessary to carry on the ordinary operations of the 
Corporation to officers and staff of the Corporation.
    (b) Composition; number; selection; terms of office. The Board of 
Directors shall be comprised of fifteen voting members and eight 
nonvoting members. The powers and management of the Corporation shall 
reside with the fifteen voting members, and the procedures of the Board 
shall be determined by them.
    (1) The fifteen voting members shall include the seven government 
agency representatives specified in subsection 3(c) of the Act (or, 
their designees), and eight individuals meeting the qualifications of 
that subsection, appointed by the President of the United States from 
private life, at least four of whom shall be residents and registered 
voters of the District of Columbia.
    (2) The Chairman and Vice Chairman shall be designated by the 
President of the United States from among those members appointed from 
private life.
    (3) Upon his appointment, the Chairman shall invite the eight 
representatives designated in subsection 3(g) of the Act to serve as 
non-voting members of the Board of Directors.
    (4) Each member of the Board of Directors appointed from private 
life shall serve a term of six years from the expiration of his 
predecessor's term; except that the terms of the Directors first taking 
office shall begin on October 27, 1972 and shall expire as designated at 
the time of appointment. A Director may continue to serve until his 
successor has qualified.
    (5) A Director appointed from private life wishing to resign shall 
submit a letter of resignation to the President of the United States, 
and his resignation shall become effective upon the date of the 
President's acceptance thereof.
    (6) A Director, appointed to fill a vacancy occurring prior to the 
expiration of the term for which his predecessor was appointed, shall 
serve for the remainder of such term.
    (c) Meetings. (1) The Board of Directors shall meet and keep its 
records at the office of the Corporation.
    (2) Meetings of the Board of Directors shall be held at the call of 
the Chairman, but not less often than once every three months. The 
Chairman shall also call a meeting at the written request of any five 
voting members.
    (3) The Chairman shall direct the Secretary to give the members of 
the Board notice of each meeting, either personally, or by mail, or by 
telegram, stating the time, the place and the agenda for the meeting. 
Notice by telephone shall be personal notice. Any Director may waive, in 
writing, notice as

[[Page 138]]

to himself, whether before or after the time of the meeting, and the 
presence of a Director at any meeting shall constitute a waiver of 
notice of that meeting. Notice, in whatever form, shall be given so that 
a Director will have received it five working days prior to the time of 
the meeting.
    (4) Unless otherwise limited by the notice thereof, any and all 
Corporation business may be transacted at any meeting.
    (5) The Chairman shall preside at meetings of the Board of 
Directors, or the Vice Chairman in the absence of the Chairman. In the 
event of the absence of both the Chairman and the Vice Chairman, the 
Directors present at the meeting shall designate a Presiding Officer.
    (d) Quorum. The presence of a majority of the number of voting 
Directors serving at the time of a meeting of the Board shall constitute 
a quorum for the transaction of business at such meeting of the Board. 
The act of a majority of the voting Directors at any meeting at which 
there is a quorum shall be an act of the Board of Directors. If there 
shall be less than a quorum at any meeting, a majority of the voting 
Directors present may adjourn the meeting until such time as a quorum 
can practically and reasonably be obtained.
    (e) Directors serving in stead. Each member of the Board of 
Directors specified in paragraphs (1) through (7) of subsection 3(c) of 
the Act, if unable to serve in person, may designate up to two officials 
from his agency or department to serve on the Board in his stead. Such 
designation shall be effected by a letter of appointment, from the 
Director specified in the Act, received by the Chairman prior to or at a 
meeting of the Board of Directors. If two officials are so designated, 
then the Director specified in the Act shall identify one as the First 
Designee and the other as the Second Designee. The Second Designee may 
only serve as a Director if the First Designee is not in attendance at a 
meeting of the Board of Directors. An official designated to serve in 
stead shall serve as the voting Director of the represented agency until 
the Chairman receives written notice from the Director specified in the 
Act, or his successor, that the designation is rescinded.
    (f) Vote by proxy. Voting members of the Board of Directors unable 
to attend a meeting may vote by proxy on resolutions which have been 
printed in the agenda in advance for the meeting.
    (1) A Director unable to attend a meeting of the Board may submit a 
vote to be cast by the Presiding Officer by means of a written signed 
statement of his vote and the resolution to which it pertains together 
with any statement bearing on the matter the Director wishes to have 
read. The proxy vote shall be submitted to the Chairman with a separate 
signed copy to the Secretary, to be received not later than the close of 
business of the day prior to the date fixed for the meeting.
    (2) The Presiding Officer shall cast proxy votes received by the 
Chairman in the following manner:
    (i) Upon the close of discussion on a resolution for which there has 
been submitted one or more valid proxy votes, the Presiding Officer 
shall announce that he holds proxy vote(s) from named Director(s), and 
shall read any explanatory statements submitted by the Director(s) 
voting by proxy;
    (ii) The Presiding Officer shall take the vote of the Directors 
present and then declare the proxy votes in hand;
    (iii) The Secretary shall orally verify the validity of the votes 
submitted to be cast by proxy, and shall record them with the votes cast 
by the Directors present on the resolution.
    (3) Proxy votes shall not be utilized to effect the presence of a 
quorum.
    (g) Compensation of Directors. Members of the Board of Directors 
shall be compensated in the manner provided in section 3 of the Act.
    (h) Approval of annual budget. Upon completion by the staff of a 
draft annual budget request, the Chairman shall call a meeting of the 
Board of Directors for its review and consideration. Upon approval by 
the Board of the draft budget request, it may be submitted to the Office 
of Management and Budget.

[40 FR 41524, Sept. 8, 1975, as amended at 48 FR 20903, May 10, 1983]

[[Page 139]]



Sec. 901.4  Officers.

    (a) General provisions. The corporate officers of the Corporation 
shall consist of a President, an Executive Director, two Assistant 
Directors, a Secretary (who shall be appointed by the Chairman from 
among the staff of the Corporation), and such other officers as the 
Board of Directors may from time-to-time appoint. Any corporate officer 
elected or appointed by the Board of Directors may be removed at any 
time, with or without cause, by the affirmative vote of a majority of 
the Board of Directors.
    (b)(1) Powers and duties of the President. The Chairman of the Board 
of Directors shall be the President and chief executive officer of the 
Corporation and shall have the general powers and duties of supervision 
and management usually vested in the office of a president of a 
corporation. The President shall see that all resolutions and policies 
of the Board are carried into effect, and shall have power to execute 
contracts, leases, agreements, and other documents necessary for the 
operation of the Corporation.
    (2) Assumption of powers and duties by Vice Chairman. In the event 
that the position of Chairman becomes vacant, the Vice Chairman shall 
promptly notify the President of the United States in writing to that 
effect and upon giving such notice, shall assume the Chairman's powers 
and duties as President and Chief Executive Officer of the Corporation, 
including specific powers and duties delegated to the Chairman by the 
Board of Directors. Such assumption of the Chairman's powers and duties 
shall cease upon the appointment or designation of a new Chairman or 
Acting Chairman by the President of the United States. The Vice Chairman 
shall also assume the powers and duties of the Chairman in the event of 
the latter's incapacity, if the Chairman so requests in writing, or if a 
majority of the voting members of the Board of Directors finds by 
resolution that the Chairman is unable to exercise the powers and duties 
of his office. Such assumption of the Chairman's powers and duties shall 
cease upon the Vice Chairman's receipt of a letter from the Chairman 
stating that he or she is able to resume the exercise of the powers and 
duties of his office.
    (c) Appointment of certain officers. The Board of Directors shall 
appoint an Executive Director and two Assistant Directors, who may be 
appointed and compensated without regard to the provisions of title 5 
U.S.C. governing appointments in the competitive service and chapter 51 
and subchapter IV of chapter 53 of title 5 U.S.C. Between meetings of 
the Board of Directors the Chairman may make appointments to the 
foregoing positions, when they become vacant by resignation or 
otherwise. However, the Chairman shall move to have such interim 
appointments confirmed at the next meeting of the Board. The Chairman 
shall have power to increase or decrease the salaries of the officers 
appointed under this section.
    (d) Powers and duties of the Executive Director. The Executive 
Director shall be the chief of the Corporation's staff and shall have 
general powers of supervision and management over the administration of 
the Corporation. The Executive Director shall have power to:
    (1) Execute contracts, agreements, and other documents necessary for 
planning and design work and for ordinary operations of the Corporation.
    (2) Hire staff (including temporary or intermittent experts and 
consultants).
    (3) Procure space, equipment, supplies, and obtain interagency and 
commercial support services.
    (4) Direct and manage the day-to-day operations and work of the 
Corporation.
    (5) Supervise planning and development activities of the Corporation 
in accordance with the development plan and resolutions of the Board of 
Directors.
    (6) Perform such other duties and exercise such powers as the 
President and Board of Directors may prescribe.
    (e) Powers and duties of the Assistant Director/Legal. The Assistant 
Director/Legal shall be the General Counsel of the Corporation, advising 
the Board of Directors and the staff on all legal matters affecting the 
functioning of the Corporation. He shall:
    (1) Coordinate with the Department of Justice in assuring that the 
interests of the Corporation are represented

[[Page 140]]

in any litigation arising from its authorities or actions.
    (2) Advise the Board of Directors and the staff of statutory or 
regulatory requirements, and assure compliance therewith.
    (3) Prepare or review all contracts, agreements or other documents 
of a legal nature.
    (4) Prepare or review all draft legislation, regulations, official 
notices and other legal publications.
    (5) Perform such other duties as may be prescribed by the Board of 
Directors, the President, or the Executive Director.
    (f) Powers and duties of the Assistant Director/Development. The 
Assistant Director/Development shall advise the Board of Directors, 
officers and staff of the Corporation on all development activities to 
accomplish the goals of the development plan. He shall:
    (1) Manage development activities in accordance with the development 
plan.
    (2) Function as a key management official performing a wide range of 
duties required to accomplish the rebuilding of Pennsylvania Avenue.
    (3) Provide managerial responsibility for the work of all project 
managers and consultants relating to development projects.
    (4) Coordinate the tasks of other staff professionals as required 
for accomplishment of projects.
    (5) Be liaison between the Corporation and other governmental 
agencies that review projects in the development area.
    (6) Perform such other duties as may be prescribed by the Board of 
Directors, the President, or the Executive Director.
    (g) Powers and Duties of the Secretary. The Secretary, to be 
appointed by the Chairman from among the Corporation's staff, shall give 
notice of all meetings of the Board of Directors and record and keep the 
minutes thereof, keep in safe custody the seal of the Corporation, and 
shall affix the same to any instrument requiring it. When so affixed, 
the seal shall be attested by the signature of the Secretary. The 
Secretary shall also perform such other duties as may be prescribed by 
the Board of Directors, the President, or the Executive Director.

[40 FR 41524, Sept. 8, 1975, as amended at 47 FR 34536, Aug. 10, 1982]



Sec. 901.5  Annual report.

    The Executive Director shall prepare annually a comprehensive and 
detailed report of the Corporation's operations, activities, and 
accomplishments for the review of the Board of Directors. Upon approval 
by the Board, the Chairman shall transmit the report in January of each 
year to the President of the United States and to the Congress.



Sec. 901.6  Seal.

    The Corporation may adopt a corporate seal which shall have the name 
of the Corporation and year of incorporation printed upon it. The seal 
may be used by causing it or a facsimile thereof to be impressed, 
affixed, or reproduced.



Sec. 901.7  Amendments.

    These bylaws may be altered, amended, or repealed by the Board of 
Directors at any meeting, if notice of the proposed alteration, 
amendment, or repeal is contained in the notice of the meeting.



PART 902_FREEDOM OF INFORMATION ACT--Table of Contents




                   Subpart A_Applicability and Policy

Sec.
902.01 Purpose and applicability.
902.02 Statement of policy.
902.03 Definitions.

                    Subpart B_General Administration

902.10 Delegation of administration of this part.
902.11 How records may be requested.
902.12 Maintenance of statistics; annual report to Congress.
902.13 Indexes of Corporation records.
902.14 Deletion of nondiscloseable information from requested records.
902.15 Protection of records.

              Subpart C_Publication in the Federal Register

902.20 Applicability.
902.21 Publication in the Federal Register shall be constructive notice 
          of information that affects the public.

[[Page 141]]

 Subpart D_Availability of Records Not Published in the Federal Register

902.30 Applicability.
902.31 Access, inspection and copying.

         Subpart E_Availability of Reasonably Described Records

902.40 Applicability.
902.41 Public access to reasonably described records.
902.42 Request for records of concern to more than one government 
          organization.

     Subpart F_Exemptions From Public Access to Corporation Records

902.50 Applicability.
902.51 Records relating to matters that are required by Executive order 
          to be kept secret.
902.52 Records related solely to internal personnel rules and practices.
902.53 Records exempted from disclosure by statute.
902.54 Trade secrets and commercial or financial information that is 
          privileged or confidential.
902.55 Intragovernmental exchanges.
902.56 Protection of personal privacy.
902.57 Investigatory files compiled for law enforcement purposes.
902.58 Reports of financial institutions.
902.59 Geological and geophysical information.

                       Subpart G_Time Limitations

902.60 Initial determination.
902.61 Final determination.
902.62 Extension of time limits.

   Subpart H_Procedures for Administrative Appeal of Decisions Not To 
                            Disclose Records

902.70 General.
902.71 Forms for appeal.
902.72 Time limitations on filing an appeal.
902.73 Where to appeal.
902.74 Agency decision.

                             Subpart I_Fees

902.80 General.
902.81 Payment of fees.
902.82 Fee schedule.
902.83 Waiver or reduction of fees.

    Authority: 5 U.S.C. 552; 52 FR 10012-10019 (March 27, 1987); E.O. 
12600, 52 FR 23781 (June 23, 1987).

    Source: 41 FR 43143, Sept. 30, 1976, unless otherwise noted.



                   Subpart A_Applicability and Policy



Sec. 902.01  Purpose and applicability.

    This part contains regulations of the Corporation implementing 5 
U.S.C. 552, as amended. It informs the public about where and how the 
Corporation's records may be obtained. The following provisions are 
applicable to all records of the Corporation in existence at the time a 
request for records is made. The regulations establish fee schedules 
applicable to the search and copying of requested records. This part 
identifies the officials having authority to act on requests and 
prescribes the procedures to appeal decisions which initially deny 
disclosure. Indexes maintained to reflect all records subject to this 
part are available for public inspection and copying as provided herein.



Sec. 902.02  Statement of policy.

    In keeping with the spirit of the Freedom of Information Act, 5 
U.S.C. 552, the policy of the Corporation is one of full and responsible 
disclosure of its records to the public. Therefore, all records of the 
Corporation, unless otherwise exempted under subpart F of this part, are 
declared to be available for public inspection and copying. Each officer 
and employee of the Corporation is directed to cooperate to this end and 
shall make records available to the public with reasonable promptness. A 
record may not be withheld from the public solely because its release 
might suggest administrative error or embarrass an officer or employee 
of the Corporation.



Sec. 902.03  Definitions.

    As used in this part--
    (a) Act means section 552 of title 5 U.S.C., as amended, Pub. L. 90-
23, 81 Stat. 54, June 5, 1967; as amended, Pub. L. 93-502, 88 Stat. 
1561, November 11, 1974. Pub. L. 90-23 repealed and superseded Pub. L. 
89-487, 80 Stat. 250. July 4, 1966, sometimes referred to as the Freedom 
of Information Act or Public Information Act.
    (b) Chairman means the Chairman of the Corporation's Board of 
Directors and President of the Corporation.

[[Page 142]]

    (c) Corporation means the Pennsylvania Avenue Development 
Corporation, including the Board of Directors, Executive Officers, 
Corporation staff, and any subordinate organizational units operating 
under the Pennsylvania Avenue Development Corporation Act of 1972, Pub. 
L. 92-578, 86 Stat. 1266 (40 U.S.C. 871 et seq.), as amended.
    (d) Person means person as defined in 5 U.S.C. 551(2).
    (e) Records means any and all writing, drawings, maps, recordings, 
tapes, films, slides, photographs, or other documentary materials by 
which information is preserved.
    (f) Submitter means any person or entity that provides or has 
provided information to the Corporation or about which the Corporation 
possess records subject to Exemption 4 of the Freedom of Information 
Act.
    (g) Workday means a calendar day excluding Saturday, Sunday and 
Federal holidays, office hours being 9 a.m. to 5 p.m.

[41 FR 43143, Sept. 30, 1976, as amended at 53 FR 10374, Mar. 31, 1988]



                    Subpart B_General Administration



Sec. 902.10  Delegation of administration of this part.

    Except as provided in subpart H of this part, authority to 
administer this part is delegated to the Administrative Officer, who 
shall act upon all requests for access to records which are received by 
the Corporation from any person citing the Act.

[41 FR 43143, Sept. 30, 1976, as amended at 48 FR 17354, Apr. 22, 1983]



Sec. 902.11  How records may be requested.

    In accordance with Sec. 902.41 of subpart E of this part all 
requests for records shall be made to the Administrative Officer, 
Pennsylvania Avenue Development Corporation, 1331 Pennsylvania Avenue, 
NW, Suite 1220 North, Washington, DC 20004.

[41 FR 43143, Sept. 30, 1976, as amended at 48 FR 17354, Apr. 22, 1983; 
50 FR 45824, Nov. 4, 1985]



Sec. 902.12  Maintenance of statistics; annual report to Congress.

    (a) The Administrative Officer shall maintain records of:
    (1) The fees collected by the Corporation for making records 
available under this part;
    (2) The number of denials of requests for records made under this 
part, and the reasons for each denial;
    (3) The number of appeals arising from denials, the result of each 
appeal, and the reasons for the action upon each appeal that results in 
a denial of information;
    (4) The names and titles or positions of each person responsible for 
each denial of records requested under this part, and the number of 
instances of participation for each person;
    (5) The results of each proceeding conducted pursuant to subsection 
552(a)(4)(f) of title 5, U.S.C., including a report of the disciplinary 
action against the official or employee who was primarily responsible 
for improperly withholding records or an explanation of why disciplinary 
action was not taken;
    (6) Every rule made by the Corporation affecting or implementing the 
Act;
    (7) The fee schedule listing fees for search and duplication of 
records pursuant to request under the Act; and
    (8) All other information which indicates efforts to administer 
fully the letter and spirit of the Act.
    (b) The Administrative Officer shall annually prepare a report 
accounting for each item in paragraph (a) of this section for the prior 
calendar year. On or before March 1st of each year, the report shall be 
submitted to the Speaker of the House of Representatives and the 
President of the Senate for referral to the appropriate committees of 
Congress.

[41 FR 43143, Sept. 30, 1976, as amended at 48 FR 17354, Apr. 22, 1983]



Sec. 902.13  Indexes of Corporation records.

    (a) The Administrative Officer shall be responsible for maintenance, 
publication, distribution and availability for inspection and copying of 
the current indexes and supplements which are required by 5 U.S.C. 
(a)(2). Such indexes

[[Page 143]]

shall be published promptly on a quarterly basis unless the Chairman 
determines by order published in the Federal Register that the 
pubication would be unnecessary and impractical.
    (b) The index of materials under this subpart covers all materials 
issued, adopted, or promulgated after July 4, 1967 by the Corporation. 
However, earlier materials may be included in the index to the extent 
practicable. Each index contains instruction for its use.

[41 FR 43143, Sept. 30, 1976, as amended at 48 FR 17354, Apr. 22, 1983]



Sec. 902.14  Deletion of nondiscloseable information from requested records.

    Whenever a requested record contains information which falls within 
one of the exempted categories of subpart F of this part, identifying 
details shall be deleted from the record before it is made available for 
public inspection and copying. When a requested record contains both 
discloseable and nondiscloseable information, only that portion which is 
reasonably segregable after deletion of the nondiscloseable portions, 
will be released. If the information in the discloseable portion is 
readily available from another source and that source is made known to 
the person making the request, the Corporation need not disclose the 
requested record. In all cases where a deletion is made, an explanation 
of the deletion shall be attached to the record made available for 
inspection, distribution, or copying. Appeal of deletions shall be made 
in accordance with subpart H of this part.



Sec. 902.15  Protection of records.

    (a) No person may, without permission of the Administrative Officer, 
remove from the Corporation's offices any record made available to him 
for inspection or copying. In addition, no person may steal, alter, 
multilate, obliterate, or destroy, in whole or in part, such a record.
    (b) Section 641 of title 18 U.S.C. provides, in pertinent part, as 
follows:

    (1) Whoever * * * steals, purloins, knowingly converts to his use or 
the use of any other or without authority sells, conveys or disposes of 
any record * * * or thing of value shall be fined not more than $10,000 
or imprisoned not more than 10 years or both; but if the value of such 
property does not exceed the sum of $100, he shall be fined not more 
than $1,000 or imprisoned not more than one year or both. * * *

    (c) Section 2071 of title 18 U.S.C. provides, in pertinent part, as 
follows:

    (1) Whoever willfully and unlawfully conceals, removes, multilates, 
obliterates, or destroys, or attempts to do so, or with intent to do so 
takes and carries away any record, proceeding, map, book, paper 
document, or other thing, filed or deposited * * * in any public office, 
or with any * * * public officer of the United States, shall be fined 
not more than $2,000 or imprisoned not more than 3 years, or both.

[41 FR 43143, Sept. 30, 1976, as amended at 48 FR 17354, Apr. 22, 1983]



              Subpart C_Publication in the Federal Register



Sec. 902.20  Applicability.

    Subject to the exemptions in subpart F of this part, the 
Corporation, for the guidance of the public, shall submit to the 
Director of the Federal Register for publication--
    (a) Descriptions of the Corporation's organization and functional 
responsibilities and the designation of places at which the public may 
secure information, obtain forms and applications, make submittals or 
requests, or obtain decisions:
    (b) Statements of the general course and method by which the 
Corporation's functions are channeled and determined, including the 
nature and requirements of all formal and informal procedures available;
    (c) Rules of procedure, descriptions of forms available, and 
instructions as to the scope and contents of all papers, reports, or 
examinations;
    (d) Substantive rules of general applicability adopted as authorized 
by law, and statements of general policy or interpretations of general 
applicability; and,
    (e) Each amendment, revision, or repeal of the foregoing.

[[Page 144]]



Sec. 902.21  Publication in the Federal Register shall be constructive notice of information that affects the public.

    (a) All material described in Sec. 902.20 shall be published in the 
Federal Register. For the purpose of this section, material that is 
reasonably available to the class of persons affected by it is 
considered to be published in the Federal Register when it is 
incorporated by reference with the approval of the Director of the 
Federal Register.
    (b) Publication in the Federal Register of all relevant information 
shall be considered constructive notice of information that affects the 
public, except that no person shall be required to resort to or be 
adversely affected by any matter which is required to be published in 
the Federal Register and is not so published unless such person has 
actual and timely notice of the terms of the unpublished matter.



 Subpart D_Availability of Records Not Published in the Federal Register



Sec. 902.30  Applicability.

    (a) This subpart implements section 552(a)(2) of title 5 U.S.C., as 
amended by 88 Stat. 1561 (1974). It prescribes the rules governing the 
availability for public inspection and copying of the following:
    (1) Final opinions or orders (including concurring and dissenting 
opinions, if any) made in the adjudication of cases;
    (2) Statements of policy or interpretations which have been adopted 
under the authority of the Corporation's enabling act, including 
statements of policy or interpretation concerning a particular factual 
situation. If they can reasonably be expected to have precedential value 
in any case involving a member of the public in a similar situation, and 
have not been published in the Federal Register.
    (3) Administrative staff manuals or instructions to the staff of the 
Corporation which affects any member of the public. Included within this 
category are manuals or instructions which prescribe the manner or 
performance of any activity by any person. Excepted from this category 
are staff manuals or instructions to staff concerning internal operating 
rules, practices, guidelines and procedures for Corporation negotiators 
and inspectors, the release of which would substantially impair the 
effective performance of their duties.
    (4) Documents and materials offered for sale under the auspices of 
the Corporation.
    (5) Any index of materials which is required to be maintained by the 
Corporation under Sec. 902.13.
    (b) Records listed in paragraph (a) of this section, which the 
Corporation does not make available for public inspection and copying, 
or that are not indexed as required by Sec. 902.13, may not be cited, 
relied upon, or used as a precedent by the Corporation to adversely 
affect any person, unless the person against whom it is cited, relied 
upon, or used, has had actual and timely notice of that material.
    (c) This subpart shall not apply to information published in the 
Federal Register or that is a reasonably described record covered by 
subpart E of this part.



Sec. 902.31  Access, inspection and copying.

    (a) Records listed in Sec. 902.30(a), are available for inspection 
and copying by any person at the Corporation's office, 1331 Pennsylvania 
Avenue, NW., Suite 1220 North, Washington, DC 20004. Facilities for 
inspection and copying shall be open to the public every workday.
    (b) Records listed in Sec. 902.30(a), that are published and 
offered for sale, shall be indexed as required under Sec. 902.13, and 
shall be available for public inspection. Records offered for sale will 
not be copied by the Corporation for the requester without the approval 
of the Administrative Officer.
    (c) Records listed in Sec. 902.30(a) are subject to subpart F of 
this part and access may be restricted by the Corporation in accordance 
with that subpart. A refusal to disclose may be appealed by the 
requester under the provisions of subpart H of this part.

[41 FR 43143, Sept. 30, 1976, as amended at 48 FR 17354, Apr. 22, 1983; 
50 FR 45824, Nov. 4, 1985]

[[Page 145]]



         Subpart E_Availability of Reasonably Described Records



Sec. 902.40  Applicability.

    This subpart implements section 552(a)(3) of title 5 U.S.C., as 
amended, and prescribes regulations governing public inspection and 
copying of reasonably described records in the Corporation's custody. 
This subpart shall not apply to material which is covered by subparts C 
and D of this part, and records exempted under subpart F of this part.



Sec. 902.41  Public access to reasonably described records.

    (a) Any person desiring access to a record covered by this subpart 
may make request for records and copies either in person on any workday 
at the Corporation's office, or by written request. In either instance, 
the requester must comply with the following provisions;
    (1) A written request must be made for the record;
    (2) The request must indicate that it is being made under the 
Freedom of Information Act (section 552 of title 5 U.S.C.); and
    (3) The request must be addressed to the attention of the 
Administrative Officer, as provided in Sec. 902.11.
    (b) Each request for a record should reasonably describe the 
particular record sought. The request should specify, to the extent 
possible, the subject matter of the record, the date when it was made, 
the place where it was made and the person who made it. If the 
description is insufficient to process the request, the Public 
Information offices shall promptly notify the person making the request 
and solicit further information. The Administrative Officer may assist 
the person in perfecting the request.
    (c) Requests made in person at the Corporation's office during 
regular working hours (9 a.m. to 5 p.m., Monday through Friday, except 
Federal holidays) shall be processed as provided in subpart G of this 
part. The Corporation shall provide adequate inspection and copying 
facilities. Original records may be copied, but may not be released from 
the custody of the Corporation. Upon payment of the appropriate fee, 
copies will be provided to the requester by mail or in person.
    (d) Every effort will be made to make a record in use by the staff 
of the Corporation available when requested, and availability may be 
deferred only to the extent necessary to avoid serious interference with 
the business of the Corporation.
    (e) Notwithstanding paragraphs (a) through (d) of this section, 
informational materials and services, such as press releases, and 
similar materials prepared by the Corporation, shall be made available 
upon written or oral request. These services are considered as part of 
any informational program of the Government and are readily made 
available to the public. There is no fee for individual copies of such 
materials as long as they are in supply. In addition, the Corporation 
will continue to respond, without charge, to routine oral or written 
inquiries that do not involve direct access to records of the 
Corporation.

[41 FR 43143, Sept. 30, 1976, as amended at 48 FR 17354, Apr. 22, 1983]



Sec. 902.42  Request for records of concern to more than one government organization.

    (a) If the release of a record covered by this subpart would be of 
concern to both the Corporation and another Federal agency, the record 
will be made available only after consultation with the other agency 
concerned. Records of another agency in the Corporation's possession 
will not be disclosed without the approval of the other agency.
    (b) If the release of a record covered by this subpart would be of 
concern to both the Corporation and to a foreign, state or local 
government, the record will be made available by the Corporation only 
after consultation with the other interested foreign state or local 
government. Records of a foreign, state or local government will not be 
disclosed without the approval of the government concerned.

[[Page 146]]



     Subpart F_Exemptions From Public Access to Corporation Records



Sec. 902.50  Applicability.

    (a) This subpart implements section 552(b) of title 5 U.S.C., which 
exempts certain records from public inspection under section 552(a). 
This subpart applies to records requested under subparts D and E of this 
part. The Corporation may, however, release a record authorized to be 
withheld under Sec. Sec. 902.52 through 902.59 unless it determines 
that the release of that record would be inconsistent with a purpose of 
the aforementioned sections. Examples given in Sec. Sec. 902.52 through 
902.59 of records included within a particular statutory exemption are 
not necessarily illustrative of all types of records covered by the 
exemption. Any reasonably segregable portion of a record withheld under 
this subpart shall be provided to a requester, after deletion of the 
portions which are exempt under this subpart.
    (b) This subpart does not authorize withholding of information or 
limit the availability of records to the public, except as specifically 
stated. This subpart is not authority to withhold information from 
Congress.



Sec. 902.51  Records relating to matters that are required by Executive order to be kept secret.

    Records relating to matters that are specifically authorized under 
criteria established by an Executive order to be kept secret in the 
interest of national defense or foreign policy, include those within the 
scope of the following, and any further amendment of any of them, but 
only to the extent that the records are in fact properly classified 
pursuant to such Executive order:
    (a) Executive Order 11652 of March 8, 1972 (3 CFR 1974 Comp. p. 
339);
    (b) Executive Order 10865 of February 20, 1960 (3 CFR 1959-1963 
Comp. p. 398); and
    (c) Executive Order 10104 of February 1, 1950 (3 CFR 1949-1953 
Comp., p. 298).

These records may not be made available for public inspection.



Sec. 902.52  Records related solely to internal personnel rules and practices.

    (a) Records related solely to internal personnel rules and practices 
that are within the statutory exemption include memoranda pertaining to 
personnel matters such as staffing policies, and policies and procedures 
for the hiring, training, promotion, demotion, and discharge of 
employees, and management plans, records, or proposals related to labor-
management relationships.
    (b) The purpose of this section is to authorize the protection of 
any record related to internal personnel rules and practices dealing 
with the relations between the Corporation and its employees.



Sec. 902.53  Records exempted from disclosure by statute.

    (a) Records relating to matters that are specifically exempted by 
statute from disclosure may not be made available for public inspection. 
For example: section 1905 of title 18 U.S.C., protecting trade secrets, 
processes, and certain economic and other data obtained by examination 
or investigation, or from reports.
    (b) The purpose of this section is to preserve the effectiveness of 
statutes of the kind cited as an example, in accordance with their 
terms.



Sec. 902.54  Trade secrets and commercial or financial information that is privileged or confidential.

    (a) Trade secrets and commercial or financial information that are 
privileged and for which confidentiality is requested by the person 
possessing such privilege are within the statutory exemption. This 
includes the following:
    (1) Commercial or financial information not customarily released to 
the public, furnished and accepted in confidence or disclosure of which 
could reasonably be expected to cause substantial competitive harm, or 
both;
    (2) Statements of financial interest furnished by officers and 
employees of the Corporation;
    (3) Commercial, technical, and financial information furnished by 
any person in connection with an application for a loan or a loan 
guarantee;

[[Page 147]]

    (4) Commercial or financial information customarily subjected to an 
attorney-client or similar evidentiary privilege; or,
    (5) Materials in which the Corporation has a property right such as 
designs, drawings, and other data and reports acquired in connection 
with any research project, inside or outside of the Corporation, or any 
grant or contract.
    (b) The purpose of this section is to authorize the protection of 
trade secrets and commercial or financial records that are customarily 
privileged or are appropriately given to the Corporation in confidence. 
It assures the confidentiality of trade secrets and commercial or 
financial information obtained by the Corporation through questionnaires 
and required reports to the extent that the information would not 
customarily be made public by the person from whom it was obtained. In 
any case in which the Corporation has obligated itself not to disclose 
trade secrets and commercial or financial information it receives, this 
section indicates the Corporation's intention to honor that obligation 
to the extent permitted by law. In addition, this section recognizes 
that certain materials, such as research data and materials, formulae, 
designs, and architectural drawings, have significance not as records 
but as items of property acquired, in many cases at public expense. In 
any case in which similar proprietary material in private hands would be 
held in confidence, material covered in this section may be held in 
confidence.
    (c)(1) In general. For commercial or financial information furnished 
to the Corporation on or after March 30, 1988, the Corporation shall 
require the submitter to designate, at the time the information is 
furnished or within a reasonable time thereafter, any information the 
submitter considers confidential or privileged. Commercial or financial 
information provided to the Corporation shall not be disclosed pursuant 
to a Freedom of Information Act request except in accordance with this 
paragraph.
    (2) Notice to submitters. The Corporation shall provide a submitter 
with prompt written notice of a request encompassing its commercial or 
financial information whenever required under paragraph (c)(3) of this 
section, and except as is provided in paragraph (c)(7) of this section. 
Such written notice shall either describe the exact nature of the 
information requested or provide copies of the records or portions 
thereof containing the information. Concurrently with its notice to a 
submitter, the Corporation shall inform a requestor in writing that the 
submitter is afforded a reasonable period within which to object to 
disclosure and that the 10 workday initial determination period provided 
for in 36 CFR 902.60 may therefore be extended.
    (3) When notice is required. (i) For information submitted to the 
Corporation prior to March 30, 1988, the Corporation shall provide a 
submitter with notice of a request whenever:
    (A) The information is less than ten years old;
    (B) The information is subject to prior express commitment of 
confidentiality given by the Corporation to the submitter; or
    (C) The Corporation has reason to believe that disclosure of the 
information may result in substantial competitive harm to the submitter.
    (ii) For information submitted to the Corporation on or after March 
30, 1988, the Corporation shall provide a submitter with notice of a 
request whenever:
    (A) The submitter has in good faith designated the information as 
confidential, or
    (B) The Corporation has reason to believe that disclosure of the 
information may result in substantial competitive harm to the submitter.

Notice of a request for information falling within the former category 
shall be required for a period of not more than ten years after the date 
of submission unless the submitter requests, and provides acceptable 
justification for, a specific notice period of greater duration. The 
submitter's claim of confidentiality should be supported by a statement 
or certification by an officer or authorized representative that the 
information in question is in fact confidential and has not been 
disclosed to the public.

[[Page 148]]

    (4) Opportunity to object to disclosure. Through the notice 
described in paragraph (c)(2) of this section, the Corporation shall 
afford a submitter a reasonable period within which to provide the 
Corporation with a detailed statement of any objection to disclosure. 
Such statement shall specify all grounds for withholding any of the 
information under any exemption of the Freedom of Information Act and, 
in the case of Exemption 4, shall demonstrate why the information is 
contended to be privileged or confidential. Information provided by a 
submitter pursuant to this paragraph may itself be subject to disclosure 
under the Freedom of Information Act.
    (5) Notice of intent to disclose. The Corporation shall consider 
carefully a submitter's objections and specific grounds for 
nondisclosure prior to determining whether to disclose information. 
Whenever the Corporation decides to disclose information over the 
objection of a submitter, the Corporation shall forward to the submitter 
a written notice which shall include:
    (i) A statement of the reasons for which the submitter's disclosure 
objections were not sustained;
    (ii) A description of the information to be disclosed; and
    (iii) A specified disclosure date.

Such notice of intent to disclose shall be forwarded a reasonable number 
of days, as circumstances permit, prior to the specified date upon which 
disclosure is intended. A copy of such disclosure notice shall be 
forwarded to the requester at the same time.
    (6) Notice of lawsuit. Whenever a requester brings suit seeking to 
compel disclosure of information covered by paragraph (c) of this 
section, the Corporation shall promptly notify the submitter.
    (7) Exceptions to notice requirements. The notice requirements of 
this section shall not apply if:
    (i) The Corporation determines that the information should not be 
disclosed;
    (ii) The information lawfully has been published or otherwise made 
available to the public;
    (iii) Disclosure of the information is required by law (other than 5 
U.S.C. 552); or
    (iv) The designation made by the submitter in accordance with 
paragraphs (c)(1) and (c)(3)(ii) of this section appears obviously 
frivolous; except that, in such case, the Corporation shall provide the 
submitter with written notice of any final decision to disclose 
information within a reasonable number of days prior to a specified 
disclosure date.

[41 FR 43143, Sept. 30, 1976, as amended at 53 FR 10374, Mar. 31, 1988]



Sec. 902.55  Intragovernmental exchanges.

    (a) Any record prepared by a Government officer or employee 
(including those prepared by a consultant or advisory body) for internal 
Government use is within the statutory exemption to the extent that it 
contains--
    (1) Opinions, advice, deliberations, or recommendations made in the 
course of developing official action by the Government, but not actually 
made a part of that official action, or
    (2) Information concerning any pending proceeding or similar matter 
including any claim or other dispute to be resolved before a court of 
law, administrative board, hearing officer, or contracting officer.
    (b) This section has two distinct purposes. One is to protect the 
full and frank exchange of ideas, views, and opinions necessary for the 
effective functioning of the Government and to afford this protection 
both before and after any action is taken. This judicially recognized 
privilege of protection against disclosure in litigation or elsewhere is 
intended to assure that these resources will be fully and readily 
available to those officials upon whom the responsibility rests to take 
official and final Corporation action. However, the action itself, any 
memoranda made part of that action, and the facts on which it is based 
are not within this protection. The other purpose is to protect against 
the premature disclosure of material that is in the development stage if 
premature disclosure would be detrimental to the authorized and 
appropriate purposes for which the material is being used, or if, 
because of its tentative nature, the material is likely to be revised or 
modified before it is officially presented to the public.

[[Page 149]]

    (c) Examples of records covered by this section include minutes to 
the extent they contain matter described in paragraph (a) of this 
section; staff papers containing advice, opinions, suggestions, or 
exchanges of views, preliminary to final agency decision or action; 
budgetary planning and programming information; advance information on 
such things as proposed plans to procure, lease, or otherwise hire and 
dispose of materials, real estate, or facilities, documents exchanged 
preparatory to anticipated legal proceedings; material intended for 
public release at a specified future time, if premature disclosure would 
be detrimental to orderly processes of the Corporation; records of 
inspection, investigations, and surveys pertaining to internal 
management of the Department; and matters that would not be routinely 
disclosed under disclosure procedures in litigation and which are likely 
to be the subject of litigation. However, if such a record also contains 
factual information, that information must be made available under 
subpart E of this part unless the facts are so inextricably intertwined 
with deliverative or policymaking processes, that they cannot be 
separated without disclosing those processes.



Sec. 902.56  Protection of personal privacy.

    (a) Any of the following personnel, medical, or similar records is 
within the statutory exemption if its disclosure would harm the 
individual concerned or be a clearly unwarranted invasion of his 
personal privacy:
    (1) Personnel and background records personal to any officer or 
employee of the Corporation, or other person, including his home 
address;
    (2) Medical histories and medical records concerning individuals, 
including applicants for licenses; or
    (3) Any other detailed record containing personal information 
identifiable with a particular person.
    (b) The purpose of this section is to provide a proper balance 
between the protection of personal privacy and the preservation of the 
public's rights to Corporation information by authorizing the protection 
of information that, if released, might unjustifiably invade an 
individual's personal privacy.



Sec. 902.57  Investigatory files compiled for law enforcement purposes.

    (a) Files compiled by the Corporation for law enforcement purposes, 
including the enforcement of the regulations of the Corporation, are 
within the statutory exemption to the extent that production of such 
records would:
    (1) Interfere with enforcement proceedings;
    (2) Deprive a person of a right to a fair trial or an impartial 
adjudication;
    (3) Constitute an unwarranted invasion of personal privacy;
    (4) Disclose the identity of a confidential source and in the case 
of a record compiled by a criminal law enforcement authority in the 
courts of a criminal investigation, or by an agency conducting a lawful 
national security intelligence investigation, confidential information 
furnished only by the confidential source;
    (5) Disclose investigative techniques and procedures; or,
    (6) Endanger the life or physical safety of law enforcement 
personnel.
    (b) The purpose of this section is to protect from disclosure the 
law enforcement files of the Corporation including files prepared in 
connection with related litigation and adjudicative proceedings. It 
includes the enforcement not only of criminal statutes but all kinds of 
laws.



Sec. 902.58  Reports of financial institutions.

    Any material contained in or related to any examination, operating, 
or condition report prepared by, on behalf of, or for the use of, any 
agency responsible for the regulation or supervision of financial 
institutions is within the statutory exemption.



Sec. 902.59  Geological and geophysical information.

    Any geological or geophysical information and data (including maps) 
concerning wells is within the statutory exemption.

[[Page 150]]



                       Subpart G_Time Limitations



Sec. 902.60  Initial determination.

    (a) An initial determination whether or not to release a record 
requested under subparts D and E of this part shall be made by the 
Public Information Offices within 10 workdays after the receipt of a 
request which complies with Sec. 902.21. Failure of the requester to 
comply with those provisions may toll the running of the 10 day period 
until the request is identified as one being made under the Act. This 
time limit may be extended by up to 10 workdays in accordance with Sec. 
902.62.
    (b) Upon making initial determination, the Administrative Officer 
shall immediately notify the person making the request as to its 
disposition. If the determination is made to release the requested 
record, the Administrative Officer shall make the record promptly 
available. If the determination is to deny the release of the requested 
record, the Public Information Officer shall immediately notify the 
requester of the denial and shall provide the following information.
    (1) The reason for the determination, including a reference to the 
appropriate exemption provided in subpart F of this part;
    (2) The right of the request or to appeal the determination as 
provided in subpart H of this part; and
    (3) The name and position of each person responsible for the denial 
of the request.

[41 FR 43143, Sept. 30, 1976, as amended at 48 FR 17354, Apr. 22, 1983]



Sec. 902.61  Final determination.

    A determination with respect to any appeal made pursuant to subpart 
H of this part will be made within twenty work days after the date of 
receipt of the appeal. The time limit provided may be extended by up to 
10 workdays in accordance with Sec. 902.62.



Sec. 902.62  Extension of time limits.

    (a) In unusual circumstances, the time limits prescribed in 
Sec. Sec. 902.60 and 902.61 may be extended by written notice to the 
person making the request. The notice shall set forth the reasons for 
the extension and the date on which a determination is expected to be 
dispatched. Under no circumstances shall the notice specify a date that 
would result in an extension for more than 10 workdays.
    (b) As used in this section, unusual circumstances means (but only 
to the extent reasonably necessary to the proper processing of the 
particular request):
    (1) The need to search for, collect and appropriately examine a 
voluminous amount of separate and distinct records which are demanded in 
a single request;
    (2) The need to search for and collect the requested records from 
field facilities or other establishments that are separate from the 
office processing the request; or
    (3) The need for consultation, which shall be conducted with all 
practicable speed, with another agency having a substantial interest in 
the determination of the request or among two or more components of the 
agency having substantial subject matter interest therein.
    (c) Any person having made a request for records under this part 
shall have exhausted his administrative remedies with respect to such 
request, if the Corporation fails to comply with the applicable time 
limitations set forth in this subject.



   Subpart H_Procedures for Administrative Appeal of Decisions Not To 
                            Disclose Records



Sec. 902.70  General.

    Within the time limitations of subpart G of this part, if the 
Administrative Officer makes a determination not to disclose a record 
requested under subparts D and E of this part, he shall furnish a 
written statement of the reasons for that determination to the person 
making the request. The statement shall indicate the name(s) and 
title(s) of each person responsible for the denial of the request, and 
the availability of an appeal with the Corporation. Any person whose 
request for a record has

[[Page 151]]

been denied may submit a written appeal to the Corporation requesting 
reconsideration of the decision.

[41 FR 43143, Sept. 30, 1976, as amended at 48 FR 17354, Apr. 22, 1983]



Sec. 902.71  Forms for appeal.

    Although no particular written form is prescribed for on appeal, the 
letter or similar written statement appealing a denial of a record shall 
contain a description of the record requested, the name and position of 
the official who denied the request, the reason(s) given for the denial, 
and other pertinent facts and statements deemed appropriate by the 
appellant. The Corporation may request additional details if the 
information submitted is insufficient to support an appeal.



Sec. 902.72  Time limitations on filing an appeal.

    An appeal must be submitted in writing within thirty days from the 
date of receipt of the initial written denial and must contain the 
information requested in Sec. 902.71.



Sec. 902.73  Where to appeal.

    An appeal shall be addressed to the Chairman of the Board of 
Directors, Pennsylvania Avenue Development Corporation, 1331 
Pennsylvania Avenue, NW., Suite 1220 North, Washington, DC 20004.

[41 FR 43143, Sept. 30, 1976, as amended at 50 FR 45824, Nov. 4, 1985]



Sec. 902.74  Agency decision.

    (a) The Chairman shall have sole authority to act on an appeal, 
which seeks to reverse an initial decision denying disclosure of a 
record. He shall review each appeal and provide the appellant and other 
interested parties with a written notice of his decision. The decision 
of the Chairman as to the availability of the record is administratively 
final.
    (b) If the decision of the Chairman sustains the refusal to 
disclose, the notice of decision shall set forth the reasons for the 
refusal, including the specific exemptions from disclosure under the Act 
that are the bases of the decision not to disclose. The notice shall 
further advise the appellant that judicial review is available on 
complaint to the appropriate District Court of the United States, as 
provided in section 552(a)(4)(B) of title 5 U.S.C.
    (c) As set out in Sec. 902.61, the final decision on appeal shall 
be made within 20 workdays after the receipt of the appeal. An extension 
of this limitation is authorized as prescribed under Sec. 902.62.



                             Subpart I_Fees



Sec. 902.80  General.

    (a) This subpart prescribes fees for services performed by the 
Corporation under subparts D and E of this part. This subpart shall only 
apply to the services described herein. The fees for the service listed 
reflect the actual cost of the work involved in compiling requested 
record and copying, if necessary.
    (b) A fee shall not be charged for time spent in resolving legal or 
policy issues.

[41 FR 43143, Sept. 30, 1976, as amended at 52 FR 26677, July 16, 1987]



Sec. 902.81  Payment of fees.

    The fees prescribed in this part may be paid in cash or by check, 
draft, or postal money order made payable to the Pennsylvania Avenue 
Development Corporation.

[52 FR 26677, July 16, 1987]



Sec. 902.82  Fee schedule.

    (a) Definitions. For purposes of this section--
    (1) A commercial use request is 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 properly 
belongs in this category, the Corporation will determine the use to 
which the requester will put the records sought. Where the Corporation 
has reasonable cause to doubt the use to which a requester will put the 
records sought, or where that use is not clear from the request itself, 
the Corporation will seek additional clarification before assigning the 
request to a specific category.

[[Page 152]]

    (2) Direct costs means those expenditures the Corporation actually 
incurs in searching for and duplicating (and in the case of commercial 
requesters, reviewing) records to respond to an FOIA request. Direct 
costs include, for example, the salary of the employee performing work 
(the basic rate of pay for the employee plus 16 percent of that rate to 
cover benefits) and the cost of operating duplicating machinery. Not 
included in direct costs are overhead expenses such as costs of space, 
and heating or lighting the facility in which the records are stored.
    (3) Duplication means the process of making a copy of a record 
necessary to respond to an FOIA request. Such copies can take the form 
of paper copy, microform, audio-visual materials, or machine-readable 
documentation (e.g., magnetic tape or disk), among others. The copy 
provided must be in a form that is reasonably usable by requesters.
    (4) Educational institution means a preschool, a public or private 
elementary or secondary school, an institution of graduate higher 
education, an institution of undergraduate higher education, an 
institution of professional education, and an institution of vocational 
education, which operates a program or programs of scholarly research.
    (5) Non-commercial scientific institution means an institution that 
is not operated on a commercial basis, within the meaning of paragraph 
(a)(1) of this section and that is operated solely for the purpose of 
conducting scientific research, the results of which are not intended to 
promote any particular product or industry.
    (6) Representative of the new 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 new 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 this category. 
Freelance journalists may be regarded as working for a news organization 
if they can demonstrate a solid basis for expecting publication through 
that organization, even though not actually employed by it. A 
publication contract would be the clearest proof, but the Corporation 
may also look to the past publication record of a requester in making 
this determination.
    (7) Review means the process of examining records located in 
response to a request that is for a commercial use (see paragraph (a)(1) 
of this section) to determine whether any portion of any record located 
is permitted to be withheld. It also includes processing any records for 
disclosure, e.g., doing all that is necessary to excise them and 
otherwise prepare them for release. Review does not include time spent 
resolving general legal or policy issues regarding the application of 
exemptions.
    (8) Search includes all time spent looking for material that is 
responsive to a request, including page-by-page or line-by-line 
identification of material within records. A line-by-line search will 
not be conducted when merely duplicating an entire record would be the 
less expensive and quicker method of complying with the request. Search 
does not include review of material to determine whether the material is 
exempt from disclosure (see paragraph (a)(7) of this section). Searches 
may be done manually or by computer using existing programming.
    (b) The following provisions shall apply with respect to services 
rendered to the public in processing requests for disclosure of the 
Corporation's records under this part:
    (1) Fee for duplication of records: $0.25 per page. When the 
Corporation estimates that duplication charges are likely to exceed 
$25.00, it will notify the requester of the estimated amount of fees, 
unless the requester has indicated in advance his willingness to pay 
fees as high as those anticipated. The

[[Page 153]]

Corporation will offer the requester the opportunity to confer with the 
Corporation's staff in order to reformulate the request to meet the 
requester's needs at a lower cost.
    (2) Search and review fees. (i) Searches for records by clerical 
personnel: $7.00 per hour, including the time spent searching for and 
copying any records.
    (ii) Search for and review of records by professional and 
supervisory personnel: $11.50 per hour spent searching for any record or 
reviewing any record to determine whether it may be disclosed, including 
time spent in copying any record.
    (iii) Except for requests seeking records for a commercial use, the 
Corporation will provide the first 100 pages of duplication and the 
first two hours of search time without charge. The word pages means 
paper copies of a standard size, either 8\1/2\ by 
11 or 14 by 14.
    (3) Duplication of architectural drawings, maps, and similar 
materials: (per copy) $10.00.
    (4) Reproduction of 35 mm slides: (per copy) $1.00.
    (5) Reproduction of enlarged, black and white photographs: (per 
copy) $10.00.
    (6) Reproduction of enlarged color photographs: (per copy) $17.00.
    (7) Certification and validation fee: $1.75 for each certification 
or validation of a copy of any record.
    (8) Categories of FOIA requesters and fees to be charged--(i) 
Commercial use requesters. When the Corporation receives a request for 
records for commercial use, it will assess charges to recover the full 
direct costs of searching for, reviewing for release, and duplicating 
the records sought. Requesters must reasonably describe the records 
sought.
    (ii) Educational and non-commercial scientific institution 
requesters. The Corporation shall provide copies of records to 
requesters in this category for the cost of reproduction alone, 
excluding charges for the first 100 pages. To be eligible for inclusion 
in this category, requesters must show that the request is being made as 
authorized by and under the auspices of a qualifying institution and 
that the records are not sought for a commercial use but are sought in 
furtherance of scholarly (if the request is from an educational 
institution) or scientific (if the request is from a non-commercial 
scientific institution) research. Requesters must reasonably describe 
the records sought.
    (iii) Requesters who are representatives of the news media. The 
Corporation shall provide documents to requesters in this category for 
the cost of reproduction alone, excluding charges for the first 100 
pages. To be eligible for inclusion in this category, a requester must 
meet the criteria in the definition of representative of the news media 
in paragraph (a)(6) of this section, and his or her request must not be 
made for a commercial use. In reference to this class of requester, a 
request for records supporting the news dissemination function of the 
requester shall not be considered to be a request that is for a 
commercial use. Requestors must reasonably describe the records sought.
    (iv) All other requesters. The Corporation will charge requesters 
who do not fit into any of the categories above fees which recover the 
full reasonable direct cost of searching for and reproducing records 
that are responsive to the request, except that the first 100 pages of 
reproduction and the first two hours of search time shall be furnished 
without charge. Requests from record subjects for records about 
themselves filed in the Corporation's systems of records will be treated 
under the fee provisions of the Privacy Act of 1974 which permit fees 
only for reproduction. Requesters must reasonably describe the records 
sought.
    (9) Interest. In the event a requester fails to remit payment of 
fees charged for processing a request under this part within 30 days 
from the date such fees were billed, interest on such fees may be 
assessed beginning on the 31st day after the billing date at the rate 
prescribed in section 3717 of title 31 U.S.C., and will accrue from the 
date of the billing.
    (10) Unsuccessful searches. Except as provided in paragraph 
(b)(8)(iv) of this section, the cost of searching for a requested record 
shall be charged even if the search fails to locate such record or it is 
determined that the record is exempt from disclosure.
    (11) Aggregating requests. A requester must not file multiple 
requests at the same time, each seeking portions of a

[[Page 154]]

record or records, solely in order to avoid payment of fees. When the 
Corporation reasonably believes that a requester, or a group of 
requesters acting in concert, is attempting to break a request down into 
a series of requests for the purpose of evading the assessment of fees, 
the Corporation may aggregate any such requests and charge accordingly.
    (12) Advance payments. The Corporation will not require a requester 
to make an advance payment, i.e., payment before work is commenced or 
continued on a request unless:
    (i) The Corporation estimates or determines that allowable charges 
that a requester may be required to pay are likely to exceed $250; or
    (ii) If a requester has previously failed to make timely payments 
(i.e., within 30 days of billing date) of fees charged under this part, 
the requester may be required to pay the full amount owed plus any 
applicable interest accrued thereon or demonstrate that he has, in fact, 
paid the fee, and to make an advance payment of the full amount of the 
estimated fee before the Corporation begins to process a new request or 
a pending request from this requester.
    (iii) With regard to any request coming within paragraphs (b)(12) 
(i) and (ii) of this section, the administrative time limits set forth 
in Sec. Sec. 902.60, 902.61, and 902.62 of this part will begin to run 
only after the Corporation has received the requisite fee payments.
    (iv) Non-payment. In the event of nonpayment of billed charges for 
disclosure of records, the provisions of the Debt Collection Act of 1982 
(Pub. L. 97-365), including disclosure to consumer credit reporting 
agencies and referral to collection agencies, where appropriate, may be 
utilized to obtain payment.

[52 FR 26677, July 16, 1987]



Sec. 902.83  Waiver or reduction of fees.

    Fees otherwise chargeable in connection with a request for 
disclosure of a record shall be waived or reduced where:
    (a) Disclosure of the information is in the public interest because 
it is likely to contribute significantly to public understanding of the 
operations or activities of the government and is not primarily in the 
commercial interest of the requester; or
    (b) The costs of routine collection and processing of the fee are 
likely to equal or exceed the amount of the fee.

[52 FR 26679, July 16, 1987]



PART 903_PRIVACY ACT--Table of Contents




Sec.
903.1 Purpose and scope.
903.2 Definitions.
903.3 Procedures for notification of records pertaining to individuals.
903.4 Requests for access to records.
903.5 Response to request for access.
903.6 Appeal of initial denial of access.
903.7 Requests for amendment of record.
903.8 Review of request for amendment of record.
903.9 Appeal of initial adverse determination of request for amendment 
          of record.
903.10 Disclosure of records to persons or agencies.
903.11 Routine uses of records maintained in the system of records.
903.12 Fees for furnishing and reproducing records.
903.13 Penalties.

    Authority: 5 U.S.C. 552a; 40 U.S.C. 870.

    Source: 42 FR 5973, Feb. 1, 1977, unless otherwise noted.



Sec. 903.1  Purpose and scope.

    The purpose of this part is to enable the Pennsylvania Avenue 
Development Corporation to implement the Privacy Act of 1974, and in 
particular the provisions of 5 U.S.C. 552a, as added by the Act. The Act 
was designed to insure that personal information about individuals 
collected by Federal agencies be limited to that which is legally 
authorized and necessary, and that the information is maintained in a 
manner which precludes unwarranted intrusions upon individual privacy. 
The regulations in this part establish, and make public, procedures 
whereby an individual can:
    (a) Request notification of whether or not the Corporation maintains 
or has disclosed a record pertaining to him or her,
    (b) Request access to such a record or an accounting of its 
disclosure,
    (c) Request that the record be amended, and

[[Page 155]]

    (d) Appeal any initial adverse determination of a request to amend a 
record.



Sec. 903.2  Definitions.

    As used in this part:
    (a) Agency means agency as defined in 5 U.S.C. 552(e).
    (b) Corporation means the Pennsylvania Avenue Development 
Corporation.
    (c) Workday shall be a day excluding a Saturday, Sunday or legal 
holiday.
    (d) Individual means a citizen of the United States or an alien 
lawfully admitted for permanent residence.
    (e) Maintain includes maintain, collect, use, or disseminate.
    (f) Record means any items, collection, or grouping of information 
about an individual that is maintained by an agency, including, but not 
limited to, his or her education, 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.
    (g) The term system of records means a group of records under the 
control of an agency from which information is retrieved by the name of 
the individual or by some identifying number, symbol, or other 
identifying particular assigned to the individual.
    (h) 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 
U.S.C.
    (i) The term 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.



Sec. 903.3  Procedures for notification of records pertaining to individuals.

    (a) An individual making a written or oral request under the Privacy 
Act (5 U.S.C. 522a) shall be informed of any Corporation systems of 
records which pertain to the individual, if the request contains a 
reasonable identification of the appropriate systems of records as 
described in the notice published in the Federal Register.
    (b) Requests may be made in person between the hours of 9:00 a.m. 
and 5:00 p.m. Monday through Friday, (except legal holidays). The 
request should be addressed to the Privacy Protection Officer, 
Pennsylvania Avenue Development Corporation, 1331 Pennsylvania Avenue, 
NW., Suite 1220 North, Washington, DC 20004. The Privacy Protection 
Officer of the Corporation will require adequate personal identification 
before processing the request. If a request is made in writing it must 
be under the signature of the requesting individual and include the 
individual's address, date of birth, and an additional proof of 
identification, such as a photocopy of a driver's license or similar 
document bearing the individual's signature. A notarized, signed 
statement is acceptable to verify the identity of the individual 
involved without additional proof.

[42 FR 5973, Feb. 1, 1977, as amended at 50 FR 45824, Nov. 4, 1985]



Sec. 903.4  Requests for access to records.

    (a) Except as otherwise provided by law or regulation, an 
individual, upon request made in person or delivered in writing may gain 
access to his or her record or to any information pertaining to him or 
her which is contained in a system of records maintained by the 
Corporation, and to review the record and have a copy made of all or any 
portion thereof in a form comprehensible to him or her. An individual 
seeking access to a Corporation record may be accompanied by a person of 
his or her choosing. However, the Corporation will require a written 
statement from the individual authorizing discussion of his or her 
record in the accompanying person's presence.
    (b) A request under paragraph (a) of this section shall be directed 
to the Privacy Protection Officer at the place, times and in the manner 
prescribed in Sec. 903.3(a) and (b). The request should include the 
following information:
    (1) The name of the individual;
    (2) If made in writing, the information required under Sec. 
903.3(b);

[[Page 156]]

    (3) A description of system or systems of records which contain the 
record to which access is requested;
    (4) The approximate dates covered by the record; and,
    (5) A suggested date and time when the individual would like to view 
the record.
    (c) Requests which do not contain information sufficient to identify 
the record requested will be returned promptly to the requester, with a 
notice indicating that information is lacking. Individuals making 
requests in person will be informed of any deficiency in the 
specification of records or identification at the time that the request 
is made. The Privacy Protection Officer of the Corporation will require 
adequate personal identification before processing a request made in 
person.



Sec. 903.5  Response to request for access.

    (a) Within 10 days of receipt of a request made under Sec. 903.4 
the Privacy Protection Officer shall determine whether access to the 
record is available under the Privacy Act and shall notify the 
requesting individual in person or in writing of that determination.
    (b) Notices granting access shall inform the individual when and 
where the requested record may be seen, how copies may be obtained, and 
of any anticipated fees or charges which may be incurred under Sec. 
903.11. Access shall be provided within 30 days of receipt of the 
request unless the Corporation, for good cause shown, is unable to 
provide prompt access, in which case the individual shall be informed in 
writing within the 30 days as to the cause for delay and when it is 
anticipated that access will be granted.
    (c) Notices denying access shall state the reasons for the denial, 
and advise the individual that the decision may be appealed in 
accordance with the procedures set forth in Sec. 903.6.



Sec. 903.6  Appeal of initial denial of access.

    (a) After receiving notification of an initial denial of access to a 
record, an individual may request a review and reconsideration of the 
request by the Executive Director of the Corporation, or an officer of 
the Corporation designated by him, but other than the Privacy Protection 
Officer. Appeals for review shall be in writing, addressed to the 
Executive Director, Pennsylvania Avenue Development Corporation, 1331 
Pennsylvania Avenue, NW., Suite 1220 North, Washington, DC 20004. The 
appeal shall identify the record as in the original request, shall 
indicate the date of the original request and the date of the initial 
denial, and shall indicate the expressed basis for the denial.
    (b) Not later than 30 days after receipt of an appeal, the Executive 
Director, or an officer of the Corporation designated by him, will 
complete review of the appeal and the initial denial and either:
    (1) Determine that the appeal should be granted, and notify the 
individual in writing to that effect; or,
    (2) Determine that the appeal should be denied because the 
information requested is exempt from disclosure. If the reviewing 
official denies the appeal, he or she shall advise the individual in 
writing of the decision and the reasons for reaching it, and that the 
denial of the appeal is a final agency action entitling the individual 
to seek judicial review in the appropriate district court of the United 
States as provided in 5 U.S.C. 552a(g).

[42 FR 5973, Feb. 1, 1977, as amended at 50 FR 45824, Nov. 4, 1985]



Sec. 903.7  Requests for amendment of record.

    (a) An individual may request amendment of a Corporation record 
pertaining to him or to her, if the individual believes that the record 
contains information which is not accurate, relevant, timely, or 
complete. The request shall be in writing, whether presented in person 
or by mail, shall state with specificity the record sought to be 
amended, and shall propose wording of the correction or amendment 
sought. The request shall be directed to the Privacy Protection Officer 
at the place, times, and in the manner specified in Sec. 903.3 (a) and 
(b). Assistance in preparing a request to amend a record,

[[Page 157]]

or to appeal an initial adverse determination under Sec. 903.3(a), may 
be obtained from the Privacy Officer, Pennsylvania Avenue Development 
Corporation, 1331 Pennsylvania Avenue, NW., Suite 1220 North, 
Washington, DC 20004.
    (b) Not later than 10 days after the date of receipt of a request 
the Privacy Protection Officer will acknowledge it in writing. The 
acknowledgement will clearly describe the request, and if a 
determination has not already been made, will advise the individual when 
he or she may expect to be advised of action taken on the request. For 
requests presented in person, written acknowledgement will be provided 
at the time when the request is presented. No separate acknowledgement 
of receipt will be issued if the request can be reviewed and the 
individual advised of the results of the review within the 10 day 
period.

[42 FR 5973, Feb. 1, 1977, as amended at 50 FR 45824, Nov. 4, 1985]



Sec. 903.8  Review of request for amendment of record.

    (a) Upon receipt of a request for amendment of a record the Privacy 
Protection Officer will promptly review the record and: Either:
    (1) Amend any portion thereof which the individual believes is not 
accurate, relevant, timely, or complete; or
    (2) Inform the individual of refusal to amend the record in 
accordance with the request. In reviewing a record pursuant to a request 
to amend it, the Corporation will assess the accuracy, relevance, 
timeliness and completeness of the record in terms of the criteria 
established in 5 U.S.C. 522a(e)(5). In reviewing a record in response to 
a request to amend it by deleting information, the Corporation will 
ascertain whether or not the information is relevant and necessary to 
accomplish a purpose of the Corporation required to be accomplished by 
statute or by executive order of the President, as prescribed by 5 
U.S.C. 522a(e)(1).
    (b) The Corporation shall take the action specified in paragraph (a) 
of this section within 30 days of receipt of a request for amendment of 
a record, unless unusual circumstances preclude completion of the action 
within that time. If the expected completion date for the action, as 
indicated in the acknowledgement provided pursuant to Sec. 903.5 cannot 
be met, the individual shall be advised of the delay and of a revised 
date when action is expected to be completed. If necessary for an 
accurate review of the record, the Corporation will seek, and the 
individual will supply, additional information in support of his or her 
request for amending the record.
    (c) If the Corporation agrees with all or any portion of an 
individual's request to amend a record, the Corporation will so advise 
the individual in writing, and amend the record to the extent agreed to 
by the Corporation. Where an accounting of disclosures has been kept, 
the Corporation will advise all previous recipients of the record of the 
fact that the amendment was made and the substance of the amendment.
    (d) If the Corporation disagrees with all or any portion of an 
individual's request to amend a record, the Corporation shall:
    (1) Advise the individual of its adverse determination and the 
reasons therefor, including the criteria used by the Corporation in 
conducting the review;
    (2) Inform the individual that he or she may request a review of the 
adverse determination by the Executive Director of the Corporation, or 
by an officer of the Corporation designated by the Executive Director; 
and,
    (3) Advise the individual of the procedures for requesting such a 
review including the name and address of the official to whom the 
request should be directed.
    (e) If the Corporation is apprised by another agency of any 
corrections or other amendments made to a record contained in the 
Corporation's system of records, the Corporation will promptly amend its 
record and advise in writing all previous recipients of the record of 
the fact that the amendment was made and the substance of the amendment.



Sec. 903.9  Appeal of initial adverse determination of request for amendment of record.

    (a) After receipt by an individual of notice of an adverse 
determination by

[[Page 158]]

the Privacy Protection Officer concerning a request to amend a record, 
the individual may, within 60 working days after the date of receipt of 
the notice, appeal the determination by seeking a review by the 
Executive Director of the Corporation, or by an officer of the 
Corporation designated by him. The appeal shall be in writing, mailed or 
delivered to the Executive Director, Pennsylvania Avenue Development 
Corporation, 1331 Pennsylvania Avenue, NW, Suite 1220 North, Washington, 
DC 20004. The appeal shall identify the record in the same manner as it 
was identified in the original request, shall indicate the dates of the 
original request and of the adverse determination and shall indicate the 
expressed basis for that determination. In addition, the appeal shall 
state briefly the reasons why the adverse determination should be 
reversed.
    (b) Not later than 30 days after receipt of an appeal, the Executive 
Director, or an officer of the Corporation designated by him, will 
complete a review of the appeal and the initial determination, and 
either: (1) Determine that the appeal should be granted, take the 
appropriate action with respect to the record in question, and notify 
the individual accordingly; or, (2) determine that the appeal should be 
denied.
    (c) The reviewing official may, at his or her option, request from 
the individual such additional information as is deemed necessary to 
properly conduct the review. If additional time is required, the 
Executive Director may, for good cause shown, extend the period for 
action beyond the 30 days specified above. The individual will then be 
informed in writing of the delay and the reasons therefor, and of the 
approximate date on which action is expected to be completed.
    (d) If the reviewing official denies the appeal, he or she shall 
advise the individual in writing:
    (1) Of the decision and the reasons for reaching it;
    (2) That the denial of the appeal is a final agency action entitling 
the individual to seek judicial review in the appropriate district court 
of the United States, as provided in 5 U.S.C. 552a(g); and,
    (3) That the individual may file with the Corporation a concise 
statement setting forth the reasons for his or her disagreement with the 
refusal of the Corporation to amend the record in question.
    (e) Any individual having received notices of a denial of an appeal 
to amend a record may file a statement of disagreement with the 
Executive Director not later than 60 working days from the date of 
receipt of the notice. Such statements shall ordinarily not exceed one 
page in length, and the Corporation reserves the right to reject 
statements of excessive length. Upon receipt of a proper and timely 
statement of disagrement, the Corporation will clearly annotate the 
record in question to indicate the portion of the record which is in 
dispute. In any subsequent disclosure containing information about which 
the individual has filed a statement of disagreement, the Corporation 
will provide a copy of the statement together with the record to which 
it pertains. In addition, prior recipients of the disputed record will 
be provided with a copy of statements of disagreement to the extent that 
an accounting of disclosures was maintained. If the Corporation deems it 
apropriate, it may also include in any disclosure its own concise 
statement of the reasons for not making the amendments requested.

[42 FR 5973, Feb. 1, 1977, as amended at 50 FR 45824, Nov. 4, 1985]



Sec. 903.10  Disclosure of records to persons or agencies.

    (a) The Corporation will not disclose any record which is contained 
in a system of records, by any means of communication to any person or 
to another agency except:
    (1) Pursuant to a written request by, or with the prior written 
consent of, the individual to whom the record pertains;
    (2) To those officers and employees of the Corporation who have a 
need for the record in the performance of their duties;
    (3) When required under 5 U.S.C. 522 (The Freedom of Information 
Act); or
    (4) Pursuant to the conditions of disclosure contained in 5 U.S.C. 
552a(b)(3) through 5 U.S.C. 522a(b)(11).

[[Page 159]]

    (b) The Privacy Protection Officer of the Corporation shall keep an 
accounting of each disclosure made pursuant to paragraph (a)(4) of this 
section, in accordance with 5 U.S.C. 552a(c). Except for disclosures 
made pursuant to 5 U.S.C. 552a(b)(7), the Privacy Protection Officer 
shall make the accounting kept under this paragraph available to an 
individual to whom the record pertains, upon his or her request. An 
individual requesting an accounting of disclosures should do so at the 
place, times and in the manner specified in Sec. 903.3 (a) and (b).



Sec. 903.11  Routine uses of records maintained in the system of records.

    (a) It shall be a routine use of the records in this system of 
records to disclose them to the Department of Justice when:
    (1) The Corporation, or any component thereof; or
    (2) Any employee of the Corporation in his or her official capacity; 
or
    (3) Any employee of the Corporation in his or her individual 
capacity where the Department of Justice has agreed to represent the 
employee; or
    (4) The United States, where the Corporation determines that 
litigation is likely to affect the Corporation or any of its components, 
is a party to litigation or an interest in such litigation, and the use 
of such records by the Department of Justice is deemed by the 
Corporation to be relevant and necessary to the litigation, provided, 
however, that in each case, the Corporation determines that disclosure 
of the records to the Department of Justice is a use of the information 
contained in the records that is compatible with the purpose for which 
the records were collected.
    (b) It shall be a routine use of records maintained by the 
Corporation to disclose them in a proceeding before a court or 
adjudicative body before which the Corporation is authorized to appear, 
when:
    (1) The Corporation, or any component thereof; or
    (2) Any employee of the Corporation is his or her individual 
capacity;
    (3) Any employee of the agency in his or her individual capacity 
where the Department of Justice has agreed to represent the employee; or
    (4) The United States, where the Corporation determines that 
litigation is likely to affect the Corporation or any of its components 
is a party to litigation or has an interest in such litigation and the 
Corporation determines that use of such records is relevant and 
necessary to the litigation, provided, however, that, in each case, the 
Corporation determines that disclosure of the records to the Department 
of Justice is a use of the information contained in the records that is 
compatible with the purpose for which the records were collected.

[52 FR 34384, Sept. 11, 1987; 52 FR 39224, Oct. 21, 1987]



Sec. 903.12  Fees for furnishing and reproducing records.

    (a) Individuals will not be charged a fee for:
    (1) The search and review of the record;
    (2) Any copies of the record produced as a necessary part of the 
process of making the record available for access;
    (3) Any copies of the requested record when it has been determined 
that access can only be accomplished by providing a copy of the record 
through the mail. The Privacy Protection Officer may provide additional 
copies of any record without charge when it is determined that it is in 
the interest of the Government to do so.
    (b) Except as provided in paragraph (a) of this section, fees will 
be charged for the duplication of records at a rate of 10[cent] per 
page. If it is anticipated that the total fee chargeable to an 
individual under this subpart will exceed $25, the Corporation shall 
promptly notify the requester of the anticipated cost. An advance 
deposit equal to 50% of the anticipated total fee will be required 
unless waived by the Privacy Protection Officer. In notifying the 
requester of the anticipated fee, the Privacy Protection Officer shall 
extend an offer to the requester to consult so that the request might be 
reformulated in a manner which will reduce the fee, yet still meet the 
needs of the requester.

[[Page 160]]

    (c) Fees must be paid in full prior to delivery of the requested 
copies. Remittances may be in the form of cash, personal check, bank 
draft or a postal money order. Remittances, other than cash shall be 
made payable to the Treasurer of the United States.

[42 FR 5973, Feb. 1, 1977. Redesignated at 52 FR 34384, Sept. 11, 1987; 
52 FR 39224, Oct. 21, 1987]



Sec. 903.13  Penalties.

    The provision of 5 U.S.C. 552a(i), as added by section 3 of the 
Privacy Act, make it a misdemeanor subject to a maximum fine of $5,000, 
to knowingly and willfully request or obtain any record concerning an 
individual from an agency under false pretenses. Similar penalties 
attach for violations by agency officers and employees of the Privacy 
Act or regulations established thereunder.

[42 FR 5973, Feb. 1, 1977. Redesignated at 52 FR 34384, Sept. 11, 1987; 
52 FR 39224, Oct. 21, 1987]



PART 904_UNIFORM RELOCATION ASSISTANCE AND REAL PROPERTY ACQUISITION FOR FEDERAL AND FEDERALLY ASSISTED PROGRAMS--Table of Contents




    Authority: Sec. 213, Uniform Relocation Assistance and Real Property 
Acquisition Policies Act of 1970, Pub. L. 91-646, 84 Stat. 1894 (42 
U.S.C. 4601) as amended by the Surface Transportation and Uniform 
Relocation Assistance Act of 1987, title IV of Pub. L. 100-17, 101 Stat. 
246-256 (42 U.S.C. 4601 note).



Sec. 904.1  Uniform relocation assistance and real property acquisition.

    Regulations and procedures for complying with the Uniform Relocation 
Assistance and Real Property Acquisition Policies Act of 1970 (Pub. L. 
91-646, 84 Stat. 1894, 42 U.S.C. 4601), as amended by the Surface 
Transportation and Uniform Relocation Assistance Act of 1987 (title IV 
of Pub. L. 100-17, 101 Stat. 246-255, 42 U.S.C. 4601 note) are set forth 
in 49 CFR part 24.

[52 FR 48022, Dec. 17, 1987 and 54 FR 8912, Mar. 2, 1989]



PART 905_STANDARDS OF CONDUCT--Table of Contents




                      Subpart A_General Provisions

Sec.
905.735-101 Principles and purpose.
905.735-102 Adoption of regulations.
905.735-103 Definitions.
905.735-104 Applicability.
905.735-105 Designation of counselor.
905.735-106 Notification to employees and special Government employees.
905.735-107 Review of statements of employment and financial interests.
905.735-108 Remedial and disciplinary action.

           Subpart B_Conduct and Responsibilities of Employees

905.735-201 General standards of conduct.
905.735-202 Gifts, entertainment, and favors.
905.735-203 Outside employment and other activity.
905.735-204 Disclosure of information.
905.735-205 Purchase of Government-owned property.

 Subpart C_Conduct and Responsibilities of Special Government Employees

905.735-301 General standards of conduct.

     Subpart D_Special Standards Applicable to Certain Board Members

905.735-401 Standards.
905.735-402 Advice and determination.

       Subpart E_Statements of Employment and Financial Interests

905.735-501 Form and content of statements.
905.735-502 Statements of employment and financial interests by 
          employees.
905.735-503 Statements of employment and financial interests by special 
          Government employees.
905.735-504 Procedures for obtaining statements.
905.735-505 Confidentiality of statements.

 Subpart F_Conduct and Responsibilities of Former Employees_Enforcement

905.737-101 Applicable provisions of law.
905.737-102 Enforcement proceedings.

    Authority: 40 U.S.C. 875, unless otherwise noted.

    Source: 43 FR 60902, Dec. 29, 1978, unless otherwise noted.

[[Page 161]]



                      Subpart A_General Provisions



Sec. 905.735-101  Principles and purpose.

    In order to assure that the business of the Pennsylvania Avenue 
Development Corporation is conducted effectively, objectively, and 
without improper influence or appearance thereof, all employees and 
special Government employees must observe unquestionable standards of 
integrity and conduct. Employees and special Government employees shall 
not engage in criminal, infamous, dishonest, immoral, or disgraceful 
conduct or other conduct prejudicial to the Government. All employees 
and special Government employees must avoid conflicts of private 
interest with their public duties and responsibilities. They must 
consider the propriety of any action in relation to general ethical 
standards of the highest order, so that public confidence in the 
integrity of the Government will not be impaired. Certain standards are 
set by law. Others are set by regulation and by policy. This part 
incorporates by reference applicable general standards of conduct and 
prescribes additional necessary elements. Taken together, this part 
constitutes the Corporation's regulations on this subject. Failure to 
observe any of the regulations in this part is cause for remedial 
action.



Sec. 905.735-102  Adoption of regulations.

    Under the authority of 5 CFR 735.104(f), the Corporation adopts the 
following sections of the Civil Service Commission regulations on 
``Employee Responsibilities and Conduct'' found in part 735 of title 5, 
Code of Federal Regulations: Sec. Sec. 735.202 (a), (d), (e), (f) 
through 735.210; 735.302; 735.303(a); 735.304; 735.305(a); 735.306; 
735.404 through 735.411; and 735.412 (b) and (d).

[43 FR 60902, Dec. 29, 1978, as amended at 45 FR 15927, Mar. 12, 1980]



Sec. 905.735-103  Definitions.

    As used in this part:
    (a) Board Member means any member of the Board of Directors of the 
Pennsylvania Avenue Development Corporation, appointed or serving under 
section 3, Pub. L. 92-578, 86 Stat. 1267 (40 U.S.C. 872).
    (b) Chairman means the Chairman of the Board of Directors and 
President of the Corporation.
    (c) Conflict means the subordination of public responsibilities to 
private interests, and includes the appearance of such subordination.
    (d) Consultant means an individual who serves as an advisor to an 
officer or division of the Corporation, as distinguished from an officer 
or employee who carries out the agency's duties and responsibilities. He 
gives his views or opinions on problems or questions presented him by 
the Corporation, but he neither performs nor supervises performance of 
operating functions. Ordinarily, he is expert in the field in which he 
advises, but he need not be a specialist. His expertness may lie in his 
possession of a high order of broad administrative, professional, or 
technical experience indicating that his ability and knowledge make his 
advice distinctively valuable to the agency. (Chapter 304, Federal 
Personnel Manual).
    (e) Corporation means the Pennsylvania Avenue Development 
Corporation, created by the Pennsylvania Avenue Development Corporation 
Act of 1972, Pub. L. 92-578, 86 Stat. 1266 (40 U.S.C. 871).
    (f) Employee means an officer or employee of the Corporation, but 
does not include a special Government employee as defined herein. The 
term includes those Board Members who are determined to be officers or 
employees of the executive or legislative branches of the United States 
or of the District of Columbia. The term does not include elected 
officials.
    (g) Executive order means Executive Order 11222 of May 8, 1965.
    (h) Expert means a person with excellent qualifications and a high 
degree of attainment in a professional, scientific, technical, or other 
field. His knowledge and mastery of the principles, practices, problems, 
methods, and techniques of his field of activity, or of a specialized 
area in the field, are clearly superior to those usually possessed by 
ordinarily competent individuals in that activity. His attainment is 
such that he usually is regarded as an authority or as a practitioner of 
unusual competence and skill by other

[[Page 162]]

persons in the profession, occupation, or activity. (Chapter 304, 
Federal Personnel Manual.)
    (i) Head of the agency means the Chairman.
    (j) Person means an individual, a corporation, a company, an 
association, a firm, a partnership, a society, a joint stock company, or 
any other institution or organization.
    (k) Special Government Employee means an officer or employee of the 
Corporation who is retained, designated, appointed or employed to 
perform, with or without compensation, for not more than 130 days during 
any period of 365 consecutive days, temporary duties either on a full 
time or intermittent basis (18 U.S.C. 202(a)). The term includes those 
Board Members who are appointed from private life and required to file a 
statement of financial interests with the Chairman of the Civil Service 
Commission pursuant to part IV of the Executive order, or who are 
determined to be special government employees of the executive or 
legislative branches of the United States or the District of Columbia.



Sec. 905.735-104  Applicability.

    This part applies to each employee and to each special Government 
employee of the Corporation as defined herein and supplements the 
Executive order and part 735 of title 5, Code of Federal Regulations, 
promulgated by the Civil Service Commission on employee responsibilities 
and conduct.



Sec. 905.735-105  Designation of counselor.

    In accordance with 5 CFR 735.105(a), the General Counsel of the 
Corporation is designated to be Ethics Counselor and shall serve as the 
Corporation's liaison with the Civil Service Commission for matters 
covered in this part.



Sec. 905.735-106  Notification to employees and special Government employees.

    (a) At the time these regulations are published, or amended, and not 
less often than once annually thereafter, the Corporation shall furnish 
each employee and special Government employees with a copy of the 
regulations. The Administrative Officer shall insure that each newly 
hired employee and special Government employee is given a copy of these 
regulations prior to or at the time of entry on duty.
    (b) All employees and special Government employees will be advised 
by the Corporation of the availability of counseling regarding the 
provisions of this part.



Sec. 905.735-107  Review of statements of employment and financial interests.

    The Ethics Counselor of the Corporation shall review each statement 
of employment and financial interests submitted under Sec. 905.735-402 
or Sec. 905.735-403, except his own and those statements of special 
Government employees who file with the Chairman of the Civil Service 
Commission. When review discloses a conflict between the interests of an 
employee or special Government employee of the Corporation and the 
performance of his services for the Corporation, the Ethics Counselor 
shall bring the conflict to the attention of the employee or special 
Government employee, grant the individual an opportunity to explain the 
conflict, and attempt to resolve it. If the conflict cannot be resolved, 
the Ethics Counselor shall forward a written report on the conflict to 
the Chairman, recommending appropriate action. The Chairman shall review 
the report, solicit an explanation from the individual, and seek 
resolution of the conflict.



Sec. 905.735-108  Remedial and disciplinary action.

    (a) In addition to any penalties prescribed by law, the Chairman, 
after review and consideration of any explanation given by an employee 
or special Government employee concerning a conflict of interest, may 
institute appropriate remedial action to resolve or otherwise eliminate 
the conflict. Appropriate remedial action may include, but is not 
limited to:
    (1) Divestment by the employee or the special Government employee of 
the conflicting interest;
    (2) Disqualification of the individual from a particular assignment;
    (3) Changes in the assigned duties of the individual; or
    (4) Disciplinary action.
    (b) Where the situation warrants some form of disciplinary action, 
the

[[Page 163]]

Chairman may choose from a wide range including a warning or reprimand, 
suspension, reduction in grade or pay, or termination of employment. The 
disciplinary action selected should reflect the character and degree of 
the offense which demands such action and should be reasonable in light 
of that offense.
    (c) Remedial action, whether disciplinary or otherwise, shall be 
effected in accordance with applicable laws, Executive orders, and 
regulations.



           Subpart B_Conduct and Responsibilities of Employees



Sec. 905.735-201  General standards of conduct.

    (a) All employees shall conduct themselves on the job so as to 
efficiently discharge the work of the Corporation. Courtesy, 
consideration, and promptness are to be observed in dealing with the 
public, Congress, and other governmental agencies.
    (b) All employees shall conduct themselves off the job so as not to 
reflect adversely upon the Corporation or the Federal service.
    (c) Employee conduct shall exemplify the highest standards of 
integrity. Employees shall avoid any action, whether or not specifically 
prohibited by this part, which might result in, or create the appearance 
of:
    (1) Using public office for private gain;
    (2) Giving preferential treatment to any person;
    (3) Impeding Government efficiency or economy;
    (4) Losing complete independence or impartiality;
    (5) Making a Government decision outside official channels; or
    (6) Affecting adversely the confidence of the public in the 
integrity of the Government.



Sec. 905.735-202  Gifts, entertainment, and favors.

    Pursuant to paragraph (b) of 5 CFR 735.202, the following exceptions 
to the restriction of paragraph (a) of that section are authorized. 
Employees may:
    (a) Accept gifts and other things of value under circumstances which 
arise from an obvious family or personal relationship(s) (such as 
between the parents, children, or spouse of the employee and the 
employee), when the circumstances make it clear that it is those 
relationships rather than the business of the persons concerned which 
are the motivating factors;
    (b) Accept food and refreshments of nominal value on infrequent 
occasions in the ordinary course of a luncheon, dinner, or other 
meeting, or on an inspection tour where an employee may properly be in 
attendance;
    (c) Accept loans from banks or other financial institutions on 
customary terms to finance proper and usual activities of employees, 
such as home purchase;
    (d) Accept unsolicited advertising or promotional materials, such as 
pens, pencils, note pads, calendars and other items of nominal intrinsic 
value;
    (e) Participating without payment in privately funded activities in 
the Washington metropolitan area if: (1) An invitation is addressed to 
the Chairman or Executive Director of the Corporation and approved by 
either of them; (2) no provision for individual payment is readily 
available; and (3) the activities are limited to ceremonies of interest 
to both the local community and the Corporation (such as ground 
breakings or openings), or are sponsored or encouraged by the Federal or 
District Government as a matter of policy; and,
    (f) Participate in widely attended lunches, dinners, and similar 
gatherings sponsored by industrial, commercial, technical and 
professional associations, or groups, for discussion of matters of 
interest both to the Corporation and the public. Participation by an 
employee at the host's expense is appropriate if the host is an 
association or group and not an individual.



Sec. 905.735-203  Outside employment and other activity.

    As provided in 5 CFR 735.203, an employee of the Corporation may 
engage in outside employment or other outside activity not incompatible 
with the full and proper discharge of the duties and responsibilities of 
his Government employment. An employee who proposes to engage in outside 
employment shall

[[Page 164]]

report that fact in writing to his supervisor prior to undertaking such 
employment.



Sec. 905.735-204  Disclosure of information.

    (a) Every employee who is involved in the development, maintenance 
or use of Corporation records containing information about individuals 
shall familiarize himself with the requirements and penalties of the 
Privacy Act of 1974 (5 U.S.C. 552a) and Corporation regulations (36 CFR 
part 903) promulgated thereunder concerning the utilization of and 
access to such records.
    (b) Every employee is directed to cooperate to the fullest extent 
possible in discharging the requirement of the Freedom of Information 
Act (5 U.S.C. 522) and Corporation regulations promulgated thereunder 
(36 CFR part 902). Every effort should be made to furnish service with 
reasonable promptness to persons who seek access to Corporation records 
and information.



Sec. 905.735-205  Purchase of Government-owned property.

    Employees of the Corporation and members of their immediate families 
may purchase Government-owned personal property when it is offered for 
sale by the General Services Administration or any Federal agency other 
than the Corporation (41 CFR 101-45.302).



 Subpart C_Conduct and Responsibilities of Special Government Employees



Sec. 905.735-301  General standards of conduct.

    (a) Special Government employees of the Corporation shall adhere to 
applicable regulations adopted under Sec. 904.735-102, except 5 CFR 
735.203(b). In addition, the standards of conduct set forth in 
Sec. Sec. 905.735-201, 905.735-204, and 905.735-205 shall apply to 
special Government employees.
    (b) Special Government employees of the Corporation may teach, 
lecture, or write consistent with the provisions of 5 CFR 735.203(c).
    (c) Pursuant to 5 CFR 735.305(b), the provisions concerning gifts, 
entertainment, and favors set forth in Sec. 905.735-202 are hereby made 
applicable to special Government employees.



     Subpart D_Special Standards Applicable to Certain Board Members



Sec. 905.735-401  Standards.

    Section 3(c)(8) of the Pennsylvania Avenue Development Corporation 
Act of 1972, Pub. L. 92-578, 86 Stat. 1267 (40 U.S.C. 872(c)(8)) 
specifies that the eight members appointed to the Board by the President 
from private life, at least four of whom shall be residents of the 
District of Columbia, ``shall have knowledge and experience in one or 
more fields of history, architecture, city planning, retailing, real 
estate, construction or government.'' As a result of these prerequisites 
for appointment of a private member to the Board of Directors, conflicts 
could arise for these Board Members as the Corporation proceeds with 
various development activities. Accordingly, Board Members should 
perform their responsibilities for the operation and management of the 
Corporation consistent with these regulations, and other applicable 
Federal laws and regulations, and consistent with the highest level of 
fiduciary responsibility.



Sec. 905.735-402  Advice and determination.

    The Corporation's Ethics Counselor is readily available for 
consultation when a Board Member seeks advice as to the appropriateness 
of his actions in light of this part, the Executive order, or title 18 
U.S.C., chapter 11. A Board Member has an affirmative duty to advise the 
Ethics Counselor of any potential conflict of interest which may arise 
with the individual's participation in any particular matter before the 
Corporation. If advised to do so, the Board Member should submit to the 
Chairman for determination the question of whether or not the conflict 
will disqualify the Board Member from participating in the action to be 
taken by the Corporation. Under the authority delegated to the Chairman 
pursuant to 18 U.S.C. 208(b), the Chairman may find that the Board 
Member need not be disqualified from participating in the particular 
matter, if:

[[Page 165]]

    (a) The Board Member makes a full disclosure of the financial 
interest; and
    (b) The Chairman furnishes him with a written determination in 
advance of the action that the interest is not so substantial as to be 
deemed likely to affect the integrity of the services which the 
Government may expect from the Board Member. Requests for similar 
determinations for conflicts posed by the financial interests of the 
Chairman himself shall be submitted to the Chairman of the Civil Service 
Commission.



       Subpart E_Statements of Employment and Financial Interests



Sec. 905.735-501  Form and content of statements.

    Statements of employment and financial interests required to be 
submitted under this subpart by employees and special Government 
employees shall contain the information required in the formats 
prescribed by the Civil Service Commission in the Federal Personnel 
Manual.



Sec. 905.735-502  Statements of employment and financial interests by employees.

    (a) Employees of the Corporation in the following named positions 
shall prepare and submit statements of employment and financial 
interests:
    (1) Executive Director;
    (2) Assistant Director Legal--General Counsel;
    (3) Assistant Director/Finance;
    (4) Development Director;
    (5) Secretary of the Corporation Administrative Officer;
    (6) Construction Manager;
    (7) Senior Architect/Planner;
    (8) Chief, Real Estate Operations;
    (9) Any Contracting Officer of the Corporation; and
    (10) Any employee classified as a GS-13 or above whose duties and 
responsibilities are such that the ethics counselor determines a 
statement should be filed.
    (b) Each statement of employment and financial interests required by 
this section, except that of the General Counsel, shall be submitted to 
the Ethics Counselor, Office of the General Counsel, Pennsylvania Avenue 
Development Corporation, 1331 Pennsylvania Avenue, NW., Suite 1220 
North, Washington, DC 20004. The General Counsel, as Ethics Counselor, 
shall submit his statement directly to the Chairman for review.
    (c) An employee who believes that his position has been improperly 
included in this section as one requiring the submission of a statement 
of employment and financial interests may obtain a review of this 
determination upon a written request to the Chairman.

[43 FR 60902, Dec. 29, 1978, as amended at 50 FR 45824, Nov. 4, 1985]



Sec. 905.735-503  Statements of employment and financial interests by special Government employees.

    All special Government employees shall submit a statement of 
employment and financial interest prior to beginning employment or 
service with the Corporation. Each statement shall be submitted to the 
Ethics Counselor, Office of the General Counsel, Pennsylvania Avenue 
Development Corporation, 1331 Pennsylvania Avenue, NW., Suite 1220 
North, Washington, D.C. 20004, except that the statements of Board 
Members appointed from private life shall be filed with the U.S. Civil 
Service Commission.

[43 FR 60902, Dec. 29, 1978, as amended at 50 FR 45824, Nov. 4, 1985]



Sec. 905.735-504  Procedures for obtaining statements.

    (a) Upon the adopting of the regulations of this part, the Ethics 
Counselor shall deliver to the incumbent of each position named in Sec. 
905.735-402 and to each special Government employee, two copies of the 
appropriate form for filing a statement of employment and financial 
interests. An enclosure with the forms shall advise that:
    (1) The original of the completed form must be returned in a sealed 
envelope, marked ``Personal--In Confidence,'' to the Ethics Counselor 
within the time specified by the Ethics Counselor;
    (2) The services of the ethics counselor are available to advise and 
assist in preparation of the statement;
    (3) Any additions or deletions to the information furnished must be 
reported

[[Page 166]]

in a supplementary statement at the end of the calendar quarter in which 
the change occurs; or in the case of a special Government employee, at 
the time the change occurs; and
    (4) No later than June 30 of each year, all special Government 
employees and employees required to file under Sec. 905.735-402(a) 
shall file an annual supplementary statement to update the information 
previously filed.
    (b) The Administrative Officer shall be responsible for assuring 
that a completed statement of employment and financial interests is 
obtained from each special Government employee prior to the beginning of 
employment or service with the Corporation. The Administrative Officer 
shall promptly forward the statements to the Ethics Counselor for 
review.



Sec. 905.735-505  Confidentiality of statements.

    The Ethics Counselor shall hold in confidence each statement of 
employment and financial interests, and each supplementary statement 
within his control. Access to or disclosure of information contained in 
these statements shall not be allowed, except as the Commission or the 
Ethics Counselor determine for good cause shown, consistent with the 
Privacy Act of 1974 (5 U.S.C. 552a), and the regulations and pertinent 
notices of systems of records prepared by the Civil Service Commission 
and the Corporation in accordance with that Act.



 Subpart F_Conduct and Responsibilities of Former Employees_Enforcement

    Authority: 18 U.S.C. 207(j); sec. 6(5), Pub. L. 92-578, 86 Stat. 
1270 (40 U.S.C. 875)(5).



Sec. 905.737-101  Applicable provisions of law.

    Former employees of the Corporation must abide by the provisions of 
18 U.S.C. 207 and 5 CFR 737.1 through 737.25, which bar certain acts by 
former Government employees that may reasonably give the appearance of 
making unfair use of prior Government employment and affiliations. 
Violation of those provisions will give rise to Corporation enforcement 
proceedings as provided in Sec. 905.737-102, and may also result in 
criminal sanctions, as provided in 18 U.S.C. 207.

[48 FR 38233, Aug. 23, 1984]



Sec. 905.737-102  Enforcement proceedings.

    (a) Delegation. The Chairman of the Corporation may delegate his or 
her authority under this subpart.
    (b) Initiation of disciplinary hearing. (1) Information regarding a 
possible violation of 18 U.S.C. 207 or 5 CFR part 737 should be 
communicated to the Chairman. The Chairman shall promptly initiate an 
investigation to determine whether there is reasonable cause to believe 
that a violation has occurred.
    (2) On receipt of information regarding a possible violation of 18 
U.S.C. 207, and after determining that such information appears 
substantiated, the Chairman of the Corporation shall expeditiously 
provide such information, along with any comments or regulations of the 
Corporation, to the Director of the Office of Government Ethics and to 
the Criminal Division, Department of Justice. The Corporation shall 
coordinate any investigation with the Department of Justice to avoid 
prejudicing criminal proceedings, unless the Department of Justice 
communicates to the Corporation that it does not intend to initiate 
criminal prosecution.
    (3) Whenever the Corporation has determined after appropriate 
review, that there is reasonable cause to believe that a former employee 
has violated 18 U.S.C. 207 or 5 CFR part 737, it shall initiate a 
disciplinary proceeding by providing the former employee with notice as 
defined in paragraph (c) of this section.
    (4) At each stage of any investigation or proceeding under this 
section, the Chairman shall take whatever steps are necessary to protect 
the privacy of the former employee. Only those individuals participating 
in an investigation or hearing shall have access to information 
collected by the Corporation pursuant to its investigation of the 
alleged violation.
    (c) Adequate notice. (1) The Corporation shall provide the former 
employee with adequate notice of its intention to

[[Page 167]]

institute a proceeding and an opportunity for a hearing.
    (2) Notice to the former employee must include:
    (i) A statement of the allegations (and the basis thereof) 
sufficiently detailed to enable the former employee to prepare an 
adequate defense;
    (ii) Notification of the right to a hearing;
    (iii) An explanation of the method by which a hearing may be 
requested; and
    (iv) Notification that if a hearing is not requested within thirty 
days of receipt of notice, the Corporation will issue a final decision 
finding the alleged violations to have occurred.
    (3) Failure to request a hearing within thirty days of the receipt 
of notice will be deemed an admission of the allegations contained in 
the notice and will entitle the Corporation to issue a final decision 
finding the alleged violations to have occurred.
    (d) Presiding official. (1) The presiding official at proceedings 
under this subpart shall be the Chairman, or an individual to whom the 
Chairman has delegated authority to make an initial decision 
(hereinafter referred to as examiner).
    (2) An examiner shall be an employee of the Corporation who is 
familiar with the relevant provisions of law and who is otherwise 
qualified to carry out the duties of that position. He or she shall be 
impartial. No individual who has participated in any manner in the 
decision to initiate the proceedings may serve as an examiner.
    (e) Time, date and place. (1) The hearing shall be conducted at a 
reasonable time, date, and place.
    (2) On setting a hearing date, the presiding official shall give due 
regard to the former employee's need for:
    (i) Adequate time to prepare a defense properly; and
    (ii) An expeditious resolution of allegations that may be damaging 
to his or her reputation.
    (f) Hearing rights. A hearing shall include the following rights:
    (1) To represent oneself or to be represented by counsel;
    (2) To introduce and examine witnesses and to submit physical 
evidence;
    (3) To confront and cross-examine adverse witnesses;
    (4) To present oral argument; and
    (5) To receive a transcript or recording of the proceedings, on 
request.
    (g) Burden of proof. In any hearing under this subpart, the 
Corporation has the burden of proof and must establish substantial 
evidence of a violation.
    (h) Hearing decision. (1) The presiding official shall make a 
determination exclusively on matters of record in the proceeding, and 
shall set forth in the decision all findings of fact and conclusions of 
law relevant to the matters at issue. If the hearing is conducted by the 
Chairman, the resulting written determination shall be an initial 
decision.
    (2) Within thirty days of the date of an initial decision, either 
party may appeal the decision to the Chairman. The Chairman shall base 
his or her decision on such appeal solely on the record of the 
proceedings on those portions thereof cited by the parties to limit the 
issues.
    (3) If the Chairman modifies or reverses the initial decision, he or 
she shall specify such findings of fact and conclusions of law as are 
different from those of the examiner.
    (4) If no appeal is taken from an initial decision within thirty 
days, the initial decision shall become a final decision.
    (i) Sanctions. The Chairman shall take appropriate action in the 
case of any individual who is found to be in violation of 18 U.S.C. 207 
or 5 CFR part 737 after a final decision by:
    (1) 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 written 
communication to, the Corporation on any matter of business for a period 
not to exceed five years, which may be accomplished by directing 
employees of the Corporation to refuse to participate in any such 
appearance or to accept any such communication; or
    (2) Taking other appropriate disciplinary action.
    (j) Judicial review. Any person found by the Corporation to have 
participated in a violation of 18 U.S.C. 207 or

[[Page 168]]

5 CFR part 737 may seek judicial review of the determination in an 
appropriate United States District Court.

[48 FR 38233, Aug. 23, 1984]



PART 906_AFFIRMATIVE ACTION POLICY AND PROCEDURE--Table of Contents




                      Subpart A_Development Program

Sec.
906.1 Purpose and policy.
906.2 Definitions.
906.3 Procedures.
906.4 Formulation of affirmative action plan.
906.5 Administration of affirmative action plan.
906.6 Implementation.
906.7 Incentives.
906.8 Review and monitoring.
906.9 Voluntary compliance.
906.10 Confidentiality.

Subpart B [Reserved]

Exhibit A to Part 906--Suggested Minimum Guidelines and Goals
Exhibit B to Part 906--Guidelines for Establishing Strategy To Implement 
          Affirmative Action Personnel Plan

    Authority: Pennsylvania Avenue Development Corporation Act of 1972, 
as amended, sec. 6(6), Pub. L. 92-578, 86 Stat. 1270 (40 U.S.C. 875(6)); 
E.O. 11625 (36 FR 19967) Oct. 14, 1971; title VII Civil Rights Act of 
1964 (42 U.S.C. 2000e-2); Rehabilitation, Comprehensive Services, and 
Developmental Disabilities Amendments of 1978, secs. 119, 122(d)(2), 
Pub. L. 95-602, 92 Stat. 2982, 2987 (29 U.S.C. 794); E.O. 12138 (44 FR 
29637) May 22, 1979.

    Source: 44 FR 37226, June 26, 1979, unless otherwise noted.



                      Subpart A_Development Program



Sec. 906.1  Purpose and policy.

    (a) One of the objectives stated in the Congressionally approved 
Pennsylvania Avenue Plan--1974 is insuring that minority businesses, 
investors, and workers have an opportunity to share in the benefits that 
will occur as a result of redevelopment. Accordingly, the Corporation 
will take affirmative action to assure full minority participation in 
activities and benefits that result from implementation of The 
Pennsylvania Avenue Plan--1974.
    (b) It is the policy of the Pennsylvania Avenue Development 
Corporation to foster a progessive Affirmative Action Program that 
affords minorities, women, handicapped persons, and Vietnam era veterans 
a fair and meaningful share in the opportunities generated by the 
development activities of the Corporation.
    (c) It is mandatory for developers who respond to a solicitation for 
proposals made by the Corporation to comply with the rules stated in 
subpart A of part 906.
    (d) It is mandatory for developers who receive property interests of 
ten percent (10%) or more of the area of a development parcel from the 
Corporation to comply with the rules stated in subpart A of part 906.
    (e) The Corporation will encourage any entity not described in 
paragraphs (c) and (d) of this section to comply with the requirements 
set forth in this subpart A of part 906.



Sec. 906.2  Definitions.

    As used in this part:
    (a) Affirmative Action Plan means a plan which at a minimum 
includes:
    (1) A statement of the affirmative action policy of the development 
team and a list of the names of the members of the development team 
including equity investors, and identification of minority owned 
businesses and investors;
    (2) A contracting and purchasing plan;
    (3) A leasing plan;
    (4) A personnel plan;
    (5) An equity investment plan;
    (6) The goals, timetables and strategy for achieving the goals of 
the developer;
    (7) A list of specific, quantifiable committed opportunities; and
    (8) Designation of an Affirmative Action Officer.
    (b) Committed Opportunity means an opportunity set aside and 
committed for the sole involvement of a woman, minority group member, 
Vietnam era veteran, handicapped person, or minority owned business, 
including opportunities for training and equity investment.
    (c) Contracting and purchasing plan means a plan for the subject 
project which at a minimun includes the following:

[[Page 169]]

    (1) A list of all minority enterprises and minority owned businesses 
that are involved in the development proposal or its implementation;
    (2) An analysis of the types of contracts and purchases that will be 
required by the development team in order to implement the development 
through and including operation of the completed development;
    (3) A list of goals and timetables by category of purchase or 
contract for involvement of minority owned businesses in the development 
process;
    (4) Strategy for achieving the goals established; and
    (5) A list of committed opportunities for the involvement of 
minority owned businesses in the development process.
    (d) Developer means a person partnership, company, corporation, 
association, or other entity that develops a new structure on a site or 
substantially renovates a structure on a site within the Corporation's 
development area where the site either: (1) Has been offered to the 
public by the Corporation for development, or (2) the Corporation has 
transferred real property rights that equal or exceed ten percent (10%) 
of the area of the development parcel.
    (e) Development parcel is an area of land established by the 
Corporation to be a minimum developable site under The Pennsylvania 
Avenue Plan--1974, as amended, and The Planning and Design Objectives, 
Controls, and Standards of the Corporation (36 CFR part 920 et seq.).
    (f) Development team means the group that submits a proposal to 
develop a parcel including developers, architects, engineers, lawyers, 
financial institutions, insurance companies, and others who help 
formulate, develop, and otherwise make a proposal to the Corporation.
    (g) Equity Investment Plan means a plan for the subject project 
which at a minimum includes the following:
    (1) A statement as to whether or not equity investment has been or 
will be solicited to implement the subject project;
    (2) A statement as to whether or not a joint venture has been or 
will be formed to implement the subject project;
    (3) If equity investment has been solicited or if a joint venture 
has been formed, a statement of the efforts made to involve members of 
minority groups and women when these opportunities were offered;
    (4) If equity investment will be solicited, or a joint venture will 
be formed, a plan to involve members of minority groups and women when 
these opportunities are offered, including a list of committed 
opportunities;
    (5) A list of goals and a timetable for securing participation of 
members of minority groups and women in equity investment and joint 
venture.
    (h) Handicapped person means any person who: (1) Has a physical or 
mental impairment that substantially limits one or more of the person's 
major life activities, (2) has a record of such impairment.
    (i) Leasing plan means a plan for the subject project which at a 
mimimum includes the following:
    (1) A retail plan showing the types of retail businesses to be 
included in the project and a plan for the types of uses for the balance 
of the development;
    (2) Goals and methods for inclusion of minority enterprises as 
tenants in the project;
    (3) Committed opportunities for leasing to minority enterprises.
    (j) Minority Enterprise means any enterprise that is either a 
minority owned business or a not for profit or non-profit organization 
(as defined in 26 U.S.C. 501(c)(3) or (c)(6)) and also fulfills one or 
more of the following criteria:
    (1) The Board of Directors or equivalent policy making body is 
comprised of members, a majority of whom are minorities or women and the 
chief executive officer of the organization is a minority group member 
or a woman; or
    (2) The objectives of the organization as described in its charter 
are substantially directed toward the betterment of minorities or women.
    (k) Minority group member means any person residing in the United 
States who is Negro, Hispanic, Oriental, Native American, Eskimo, or 
Aleut, as defined below:
    (1) Negro--is an individual of the Negro race of African origin;

[[Page 170]]

    (2) Hispanic--is an individual who is descended from and was raised 
in or participates in the culture of Spain, Portugal, or Latin America, 
or who has at least one parent who speaks Spanish or Portuguese as part 
of their native culture;
    (3) Oriental--is an individual of a culture, origin, or parentage 
traceable to the areas south of the Soviet Union, East of Iran, 
inclusive of the islands adjacent thereto, located in the Pacific 
including, but limited to, Taiwan, Indonesia, Japan, Hawaii, and the 
Philippines, together with the islands of Polynesia;
    (4) Native American--is an individual having origins in any of the 
original people of North America, who is recognized as an Indian by 
either a tribe, tribal organization, or suitable authority in the 
community. For purposes of this section a suitable authority in the 
community may be an educational institution, a religious organization, 
or a state or Federal agency.
    (5) Eskimo--is an individual having origins in any of the original 
peoples of Alaska;
    (6) Aleut--is an individual having origins in any of the original 
peoples of the Aleutian Islands.
    (l) Minority owned business means a business that is:
    (1) A sole proprietorship owned by a minority group member or a 
woman;
    (2) A business entity at least 50 percent of which is owned by 
minority group members or women;
    (3) A publicly owned business at least 51 percent of the stock of 
which is owned by minority group members or women;
    (4) A certified minority owned business as evidenced by a 
certificate satisfactory to the Corporation's Affirmative Action 
Officer, and signed by the owner or the executive officer of the 
minority owned business.

For purposes of this definition, ownership means that the risk of gain 
or loss and the amount of control exercised must be equivalent to the 
ownership percentage.
    (m) Personnel plan means a plan for the subject project which at a 
minimum includes the following:
    (1) An analysis of participation of minority group members, women, 
Vietnam era veterans, and handicapped persons in the development project 
including an evaluation by category of employment, i.e., professional 
and managerial, skilled, semi-skilled, trainee, and other, and the 
number of employees in each category;
    (2) An analysis of the salaries of minority group members, women, 
handicapped persons, and Vietnam era veterans showing the relative 
position of these employees with those not covered by the Affirmative 
Action Plan;
    (3) Goals and timetables for employment by category and salary level 
of minorities, women, Vietnam era veterans, and handicapped persons 
employed for the development parcel;
    (4) Strategy for achieving the goals established (see Exhibit B);
    (5) A list of committed opportunities for the employment of minority 
group members, women, Vietnam era veterans, and handicapped persons.
    (n) Vietnam era veteran means a person who:
    (1) Served on active duty for a period of more than 180 days, any 
part of which occurred during the Vietnam era, and was discharged or 
released therefrom with other than a dishonorable discharge; or
    (2) Was discharged or released from active duty for a service-
connected disability if any part of such active duty was performed 
during the Vietnam era.



Sec. 906.3  Procedures.

    (a) Affirmative Action Plans must be submitted to the Corporation at 
the following times:
    (1) At the time a response is submitted to the Corporation's 
solicitation for proposals, the response must include an Affirmative 
Action Plan;
    (2) If a property right exceeding 10 percent of the area of the 
development parcel is made available by the Corporation, but without the 
Corporation having made a solicitation for proposals, the developer must 
submit an Affirmative Action Plan within 30 days after the start of 
negotiations with the Corporation.
    (b) Affirmative Action Plans will be reviewed as follows:

[[Page 171]]

    (1) Each Affirmative Action Plan submitted to the Corporation will 
be reviewed by the Corporation's Affirmative Action Officer, or his 
designee.
    (2) In the case of a developer who responds to a solicitation for 
proposals, the Affirmative Action Plan will be reviewed by the 
Affirmative Action Officer, and if the Plan is in substantial compliance 
with the goals set forth in Exhibit A, the Plan and the recommendation 
of the Affirmative Action Officer will be submitted to the Chairman of 
the Board for approval prior to the Board's final selection.
    (3) In the case of a developer who receives 10 percent or more of 
the area of a development parcel from the Corporation, the Affirmative 
Action Plan will be reviewed by the Corporation's Affirmative Action 
Officer, and if the Plan is in substantial compliance with the goals set 
forth in Exhibit A, the Plan and the recommendation of the Affirmative 
Action Officer will be submitted to the Chairman of the Board for 
approval within 15 days of submission.
    (4) The Chairman may approve any Affirmative Action Plan that is not 
in substantial compliance with the goals set forth in Exhibit A, but for 
which the developer has documented a genuine effort to meet the goals of 
the regulations and complied with the spirit of the Corporation's 
policy.
    (5) The Chairman may, in his discretion, submit any Affirmative 
Action Plan to the Board of Directors for approval, if there is not 
substantial compliance with the goals set forth in Exhibit A.
    (6) The review of the Affirmative Action Plan will determine 
conformity with The Pennsylvania Avenue Plan--1974, the policy of the 
Corporation's Board of Directors, and the regulations and guidelines set 
forth in this subpart A, part 906.
    (c) Revisions: (1) The Corporation may require a developer at any 
time prior to approval of the Affirmative Action Plan to revise the Plan 
for compliance with the requirements of this subpart.
    (2) Each developer required to comply with this subpart must submit 
for approval an up-dated Affirmative Action Plan at the commencement of 
construction, at the commencement of occupancy, and at the commencement 
of operation or management of any portion of the facility by the 
developer or a related entity. Each revision of the Affirmative Action 
Plan must address all the requirements set forth in Sec. 906.4.
    (3) The Corporation's Affirmative Action Officer will review all 
revisions submitted to the Corporation. If the revision is a substantial 
change from the originally approved Plan, the review procedures set 
forth in paragraph (b) of this section will be applicable. If the 
revision submitted is not a substantial change from the originally 
approved Plan, the Corporation's Affirmative Action Officer may approve 
the revision.



Sec. 906.4  Formulation of affirmative action plan.

    (a) The developer, in formulating the Affirmative Action Plan, 
should consider all phases of development from establishment of the 
development team to operation and management of the development project 
including each component of the project (e.g., hotel, retail, office, 
residential). The developer should also consider the personnel profile 
of project contractors, subcontractors.
    (b) For each phase and each component, the developer should give 
consideration to creating business and employment opportunities and 
committed opportunities in the following:
    (1) Equity participation;
    (2) Professional and technical services such as legal, 
architectural, engineering, and financial;
    (3) Purchasing materials and supplies in connection with 
construction and operation;
    (4) Contracting for construction, operation, and maintenance; and,
    (5) Financing, including construction and permanent financing, and 
other financial and banking services.



Sec. 906.5  Administration of affirmative action plan.

    (a) The developer shall appoint an Affirmative Action Officer, and 
for projects exceeding $10 million in cost,

[[Page 172]]

the person appointed must have affirmative action as a primary 
responsibility.
    (b) The developer shall report to the Corporation periodically its 
progress in meeting the goals and timetables in its Affirmative Action 
Plan with respect to its contracting and purchasing plan, leasing plan, 
and committed opportunities. In meeting the reporting requirements the 
developer shall:
    (1) Count an individual only once for reporting purposes;
    (2) Count an individual in the first appropriate category as 
follows:
    (i) Minority Group Member;
    (ii) Handicapped Person;
    (iii) Woman;
    (iv) Vietnam Era Veteran;
    (3) Report the dollar amount of contracts and purchases from 
minority owned businesses including subcontracts;
    (4) In the event 10 percent or more of the dollar amount of a 
contract, subcontract, or purchase from a minority owned business is 
performed by other than a minority owned business, the developer shall 
report only the dollar amount performed by the minority owned business.



Sec. 906.6  Implementation.

    (a) Each developer's Affirmative Action Plan will be incorporated 
into the real estate agreement between the developer and the 
Corporation.
    (b) Each developer shall include a clause requiring a contracting 
and purchasing plan and a personnel plan in any contract exceeding 
$500,000.
    (c) Each developer should consider including a clause requiring a 
contracting and purchasing plan and a personnel plan in any contract 
less than $500,000.
    (d) In order that the Corporation may be of assistance, and to the 
extent practical, the developer shall notify the Corporation's 
Affirmative Action Officer of any failure to meet the approved 
Affirmative Action Plan.
    (e) The Corporation, at the request of the developer, shall provide 
the developer with assistance for meeting the goals set forth in the 
Affirmative Action Plan. Such assistance may be provided in the form of 
lists of minority enterprises, sources for recruiting and advertising, 
as well as other available information.



Sec. 906.7  Incentives.

    (a) At the request of the developer, the Corporation may agree to 
deferral of a portion of rental, not to exceed 50 percent, during 
construction and during the first year of operation following 
construction of any phase of the development project. Allowable rent 
deferral during the construction phase will be two percent of the total 
base rent for each one percent of the value of all construction 
contracts which have been awarded to Minority Owned Businesses, not to 
exceed 50 percent. Rent deferral during the first year of operation 
following construction of any phase of the development project will be 
four percent for each one percent of total equity owned by minority 
group members, minority owned businesses, and women.
    (b) Following review of Affirmative Action reports submitted to the 
Corporation pursuant to Sec. 906.5(b), the Corporation will determine 
the developer's compliance with the goals set forth in the approved 
Affirmative Action Plan. Compliance with the goals established in the 
Plan will be measured by adding the percentages reported including 
overages in each category and dividing that by the number of categories 
covered in the Plan.
    (c) If 75 percent compliance is not achieved during any rent 
deferral period, the Corporation will afford the developer 120 days to 
achieve at least that level of compliance. If, at the end of that 120 
day period, 75 percent compliance is not achieved, all rental deferral, 
together with interest, will be due and payable to the Corporation on 
the 10th day following receipt of written notice that payment of the 
deferred rent has been accelerated.



Sec. 906.8  Review and monitoring.

    The Corporation, either by its employees, consultants, or other 
government agency, shall analyze and monitor compliance with the 
developer's approved Affirmative Action Plan. The Corporation shall rely 
on the reports submitted by the developer. However:

[[Page 173]]

    (a) Further investigation by the Corporation may be undertaken if 
problems are brought to the attention of the Corporation through any 
reliable source, or if any formal complaints are filed against the 
developer that relate to performance of the Affirmative Action Plan; and
    (b) The Corporation reserves the right to audit the records of the 
developer that pertain to any report submitted to the Corporation.



Sec. 906.9  Voluntary compliance.

    The Corporation will encourage any individual or entity not 
described in Sec. 906.1(c) or (d) to submit and adopt an Affirmative 
Action Plan on any development project for which the Corporation's 
review and approval is required to determine conformity of the 
development project with The Pennsylvania Avenue Plan--1974. Any such 
Affirmative Action Plan should accompany the development plans.



Sec. 906.10  Confidentiality.

    All information submitted to the Corporation pursuant to this 
subpart A will be kept confidential, except as availability to the 
public may be required by the Freedom of Information Act.

Subpart B [Reserved]



   Sec. Exhibit A to Part 906--Suggested Minimum Guidelines and Goals

    The following are suggested for consideration by developers in 
formulation of minimum affirmative action goals for the development 
parcel:
    (a) Equity participation--10 percent participation by minority group 
members, women, and minority owned businesses as investors in ownership 
of the development parcel.
    (b) Contracts for professional and technical services--20 percent of 
the dollar value of the contracts to minority owned businesses.
    (c) Persons providing professional or technical services--20 percent 
should be minority group members, women, handicapped persons, or Vietnam 
era veterans.
    (d) Construction contracting--15 percent of the total dollar value 
to minority owned businesses. (In order to accomplish this goal, the 
developer must require that any prime contractor show at least 15 
percent minority subcontractors unless the prime contractor is a 
minority contractor.)
    (e) Construction employment should comply with the Washington Plan 
as a minimum.
    (f) Purchasing--20 percent of the dollar value of all purchases of 
materials and supplies to minority owned businesses.
    (g) Hotel employment--20 percent of all hotel employees, 15 percent 
of all personnel earning an excess of $2,000 a month (in 1978 dollars), 
and 60 percent of trainees for hotel positions should be minority group 
members, women, handicapped persons, or Vietnam era veterans.
    (h) Leasing of space--15 percent of the retail space should be 
targeted for minority enterprises.
    (i) Committed opportunities--should be created for professional, 
technical, construction, hotel, or other type operations where the 
representation of minority group members, women, or handicapped persons 
in a field is inconsistent with the demographic profile of the 
Washington metropolitan area.



  Sec. Exhibit B to Part 906--Guidelines for Establishing Strategy To 
               Implement Affirmative Action Personnel Plan

    The following are suggested as the types of activities to be 
considered in the development of strategies for the affirmative action 
personnel plan:
    (1) ``Vigorous'' searching for qualified minority and women 
applicants for job openings in professional and managerial positions, 
often including recruitment visits to educational institutions with 
large minority or female enrollments.
    (2) Wide dissemination of affirmative action policy in 
advertisements and employment literature.
    (3) Utilization of minority media in recruitment advertisements.
    (4) Notification of job openings to minority community organizations 
and associations.
    (5) Listing of all employment openings with compensation of under 
$20,000 per year at a local office of the State Employment Service (or 
union hiring hall when union labor is required).
    (6) Periodic review of minority, female, Vietnam era veteran, and 
handcapped employees to identify underutilized and unutilized skills and 
knowledge as well as opportunities for reassignment.
    (7) Utilization of merit promotion and on-the-job training programs 
to create career ladders or otherwise qualify minority, female, Vietnam 
era veteran, and handicapped employees for advancement.

[[Page 174]]



PART 907_ENVIRONMENTAL QUALITY--Table of Contents




Sec.
907.1 Policy.
907.2 Purpose.
907.3 Definitions.
907.4 Designation of responsible Corporation official.
907.5 Specific responsibilities of designated Corporation official.
907.6 Major decision points.
907.7 Determination of requirement for EIS.
907.8 Actions that normally require an EIS.
907.9 Preparation of an EIS.
907.10 Categorical exclusions.
907.11 Actions that normally require an environmental assessment.
907.12 Preparation of an environmental assessment.
907.13 Public involvement.
907.14 Corporation decision making procedures.
907.15 Approval of private development proposals.
907.16 Actions where lead Agency designation is necessary.

Appendix A to Part 907

    Authority: 40 U.S.C. 875(8); 42 U.S.C. 4321.

    Source: 47 FR 8768, Mar. 2, 1982, unless otherwise noted.



Sec. 907.1  Policy.

    The Pennsylvania Avenue Development Corporation's policy is to:
    (a) Use all practical means, consistent with the Corporation's 
statutory authority, available resources, and national policy, to 
protect and enhance the quality of the human environment;
    (b) Ensure that environmental factors and concerns are given 
appropriate consideration in decisions and actions by the Corporation;
    (c) Use systematic and timely approaches which will ensure the 
integrated use of the natural and social sciences and environmental 
design arts in planning and decision making which may have an impact on 
the human environment;
    (d) Develop and utilize ecological and other environmental 
information in the planning and development of projects implementing the 
Plan;
    (e) Invite the cooperation and encourage the participation, where 
appropriate, of Federal, District of Columbia, and regional authorities 
and the public in Corporation planning and decision-making processes, 
which affect the quality of the human environment; and
    (f) Minimize any possible adverse effects of Corporation decisions 
and actions upon the quality of the human environment.



Sec. 907.2  Purpose.

    These regulations are prepared to supplement Council on 
Environmental Quality Regulations for implementing the procedural 
provisions of the National Environmental Policy Act of 1969, as amended, 
and describe how the Pennsylvania Avenue Development Corporation intends 
to consider environmental factors and concerns in the Corporation's 
decision making process.



Sec. 907.3  Definitions.

    (a) CEQ Regulations means the regulations for implementing the 
procedural provisions of the National Environmental Policy Act of 1969 
as promulgated by the Council on Environmental Quality, Executive Office 
of the President, appearing at 40 CFR parts 1500-1509 (43 FR 55978-
56007) and to which this part is a supplement.
    (b) The Act of October 27, 1972 or Act means the Pennsylvania Avenue 
Development Corporation Act of 1972, Pub. L. 92-578, October 27, 1972, 
86 Stat. 1266 (40 U.S.C. 871).
    (c) The Plan means The Pennsylvania Avenue Plan--1974, prepared by 
the Pennsylvania Avenue Development Corporation pursuant to the Act of 
October 27, 1972.
    (d) The Corporation means the Pennsylvania Avenue Development 
Corporation, a wholly owned government corporation of the United States 
created by the Act of October 27, 1972.
    (e) Board of Directors means the governing body of the Corporation 
in which the powers and management of the Corporation are vested by the 
Act of October 27, 1972.
    (f) EIS means an environmental impact statement as defined in Sec. 
1508.11 of the CEQ Regulations.
    (g) Final EIS means The Final Environmental Impact Statement, dated 
September 1974, prepared by the Corporation on The Pennsylvania Avenue 
Plan--1974.

[[Page 175]]

    (h) Development Area means the area under the Corporation's 
jurisdiction as specified in section 2(f) of the Act of October 27, 1972 
and for which The Plan has been prepared and will be implemented by the 
Corporation.
    (i) Decision Maker means the Board of Directors, unless a delegation 
to the Chairman, a member or committee of the Board of Directors, or the 
Executive Director has been made by the Bylaws of the Corporation, a 
resolution of the Board of Directors, or an appropriate written 
delegation of authority.
    (j) Private Developer means an individual, firm, joint venture, or 
other entity other than the Corporation which seeks to construct, 
reconstruct, rehabilitate, or restore real property within the 
development area.
    (k) Other terms used in this part are defined in 40 CFR part 1508 of 
the CEQ Regulations.



Sec. 907.4  Designation of responsible Corporation official.

    The Development Director is the Corporation official responsible for 
implementation and operation of the Corporation's policies and 
procedures on environmental quality and control.



Sec. 907.5  Specific responsibilities of designated Corporation official.

    (a) Coordinate the formulation and revision of Corporation policies 
and procedures on matters pertaining to environmental protection and 
enhancement.
    (b) Establish and maintain working relationships with relevant 
government agencies concerned with environmental matters.
    (c) Develop procedures within the Corporation's planning and 
decision-making processes to ensure that environmental factors are 
properly considered in all proposals and decisions in accordance with 
this part.
    (d) Develop, monitor, and review the Corporation's implementation of 
standards, procedures, and working relationships for protection and 
enhancement of environmental quality and compliance with applicable laws 
and regulations.
    (e) Monitor processes to ensure that the Corporation's procedures 
regarding consideration of environmental quality are achieving their 
intended purposes.
    (f) Advise the Board of Directors, officers, and employees of the 
Corporation of technical and management requirements of environmental 
analysis, of appropriate expertise available, and, with the assistance 
of the Office of the General Counsel, of relevant legal developments.
    (g) Monitor the consideration and documentation of the environmental 
aspects of the Corporation's planning and decisionmaking processes by 
appropriate officers and employees of the Corporation.
    (h) Ensure that all environmental assessments and, where required, 
all EIS's are prepared in accordance with the appropriate regulations 
adopted by the Council on Environmental Quality and the Corporation, and 
are submitted with all proposed legislation.
    (i) Consolidate and transmit to appropriate parties the 
Corporation's comments on EIS's and other environmental reports prepared 
by other agencies.
    (j) Acquire information and prepare appropriate reports on 
environmental matters required of the Corporation. Information 
collection activities will be conducted in accordance with the Paperwork 
Reduction Act of 1980 and approval of OMB will be obtained prior to 
commencing such activities.
    (k) Coordinate Corporation efforts to make available to other 
parties information and advice on the Corporation's policies for 
protecting and enhancing the quality of the environment.



Sec. 907.6  Major decision points.

    (a) The possible environmental effects of a proposed action or 
project must be considered along with technical, economic, and other 
factors throughout the decisionmaking process. For most Corporation 
projects there are three distinct stages in the decision making process:
    (1) Conceptual or preliminary stage;
    (2) Detailed planning or final approval stage;
    (3) Implementation stage.
    (b) Environmental review will be integrated into the decision making 
process of the Corporation as follows:

[[Page 176]]

    (1) During the conceptual or preliminary approval study stage, the 
responsible Corporation official shall determine whether the proposed 
action or project is one which is categorically excluded, requires an 
environmental assessment or an EIS.
    (2) Prior to proceeding from the conceptual or preliminary approval 
stage to the detailed planning or final approval stage, an environmental 
assessment and the determination as to whether an EIS is required must 
be completed.
    (3) An EIS, if determined necessary, must be completed and 
circulated prior to the decision to proceed from the detailed planning 
stage to implementation.



Sec. 907.7  Determination of requirement for EIS.

    Determining whether to prepare an environmental impact statement is 
the first step in applying the NEPA process. In deciding whether to 
prepare an environmental impact statement, the responsible Corporation 
official will determine whether the proposal is one that:
    (a) Normally requires an environmental impact statement.
    (b) Normally does not require either an environmental impact 
statement or an environmental assessment (categorical exclusion).
    (c) Normally requires an environmental assessment, but not 
necessarily an environmental impact statement.



Sec. 907.8  Actions that normally require an EIS.

    PADC shall perform or have performed an environmental assessment to 
determine if a proposal requires an environmental impact statement. 
However, it may be readily apparent that a proposed action will have a 
significant impact on the environment; in such cases, an environmental 
assessment is not required and PADC will immediately begin to prepare or 
have prepared the environmental impact statement. To assist in 
determining if a proposal or action normally requires the preparation of 
an environmental impact statement, the following criteria and categories 
of action are provided.
    (a) Criteria. Criteria used to determine whether or not actions or 
proposals may significantly affect the environment and therefore require 
an environmental impact statement are described in 40 CFR 1508.27 of the 
CEQ Regulations and as follows:
    (1) Buildings or facades designated for retention in the Plan will 
be adversely affected by the proposal or action.
    (2) Traffic generated by the proposal or action would represent a 
substantial increase over the traffic projections assessed in the Final 
EIS in the average daily traffic volume on avenues and streets within 
the Development Area or its environs;
    (3) Air quality in the Development Area and its environs would be 
substantially affected by the proposal or action based upon the District 
of Columbia's adopted standard for hydrocarbons and carbon monoxide;
    (4) Solid waste disposal generated by a project of the Corporation 
or of a developer who is constructing, reconstructing, or rehabilitating 
that project, would have an adverse effect on the capacity of the 
relevant solid waste disposal facility and compliance with ``Solid Waste 
Management Guidelines'' of the U.S. Environmental Protection Agency and 
related local and regional controls;
    (5) Public utilities have insufficient capacity to provide reliable 
service to a project within the Development Area; and
    (6) A project will be inconsistent with major elements of the Zoning 
Regulations of the District of Columbia as they are applicable to the 
Development Area.
    (b) Categories of action. The following categories of action 
normally require an environmental impact statement:
    (1) Amendments or supplements to the Plan that constitute a 
``substantial change'' to the Plan as defined in 40 U.S.C. 874(c) of the 
Act.
    (2) Acquisition or disposal of real property by the Corporation not 
related to any specific decision, plan, or program adopted by the Board 
of Directors of the Corporation for which an environmental assessment or 
an assessment and an EIS has been prepared.

[[Page 177]]

    (3) Legislative proposals made to Congress.
    (4) Funding and/or construction by the Corporation or its agents or 
representatives of any building, if that activity is not consistent with 
the Plan and the Final EIS.



Sec. 907.9  Preparation of an EIS.

    (a) Notice of intent. When PADC decides to prepare an environmental 
impact statement, it shall publish a notice of intent in the Federal 
Register in accordance with 40 CFR 1501.7 and 1508.22 of the CEQ 
Regulations.
    (b) Preparation. After determining that an environmental impact 
statement will be prepared and publishing the notice of intent, PADC 
will begin to prepare or have prepared the environmental impact 
statement. Procedures for preparing the environmental impact statement 
are set forth in 40 CFR part 1502, CEQ Regulations.
    (c) Supplemental environmental impact statements. PADC may 
supplement a draft or final environmental impact statement at any time. 
PADC shall prepare a supplement to either the draft or final 
environmental impact statement when (1) substantial changes are proposed 
to an action contained in the draft or final EIS that are relevant to 
environmental concerns or there are significant new circumstances or 
information relevant to environmental concerns and bearing on the 
proposed action or its impacts; or (2) actions are proposed which relate 
or are similar to other action(s) taken or proposed and that together 
will have a cumulatively significantly impact on the environment.



Sec. 907.10  Categorical exclusion.

    The CEQ Regulations provide for the categorical exclusion (40 CFR 
1508.4) of actions that do not individually or cumulatively have a 
significant effect on the human environment. Therefore, neither an 
environmental assessment nor an environmental impact statement is 
required for such actions.
    (a) Criteria. Criteria used to determine those categories of action 
that normally do not require either an environmental impact statement or 
an environmental assessment include:
    (1) The action or proposal is consistent with the Plan or the Act, 
and the environmental effects have been previously analyzed in the Final 
EIS, a supplement thereto, or in an environmental assessment or an EIS 
previously prepared; or
    (2) The total estimated cost directly attributable to the action or 
proposal does not exceed $500,000; or
    (3) The action or proposal is related solely to internal 
administrative operations of the Corporation.
    (b) List of categorical exclusions. Categories of action, identified 
in appendix A (attached) have been determined by PADC to have no 
significant effect on the human environment and are therefore 
categorically excluded from the preparation of environmental impact 
statements and environmental assessments.
    (c) Changes to the list of categorical exclusion. (1) The PADC List 
of Categorical Exclusion will be continually reviewed and refined as 
additional categories are identified and as experience is gained in the 
categorical exclusion process.
    (2) Additional categories of exclusion identified will be submitted 
to the Chairman of the Board of Directors for review and approval, and 
for amendments to this part, following public comment and review by the 
Council on Environmental Quality.



Sec. 907.11  Actions that normally require an environmental assessment.

    If a proposal or action is not one that normally requires an 
environmental impact statement, and does not qualify for categorical 
exclusion, PADC will prepare or have prepared an environmental 
assessment.
    (a) Criteria. Criteria used to determine those categories of action 
that normally require an environmental assessment, but not necessarily 
an environmental impact statement, include:
    (1) Potential for minor degradation of environmental quality;
    (2) Potential for cumulative impact on environmental quality; and
    (3) Potential for impact on protected resources.
    (b) Categories of action. The following categories of action 
normally require

[[Page 178]]

the preparation of an environmental assessment.
    (1) Amendments to the Plan that do not constitute a ``substantial 
change'' to the Plan.
    (2) Regulations promulgated by the Corporation that have significant 
environmental impact on the public or persons residing in the 
development area including businesses.
    (3) Development proposals submitted to the Corporation by private 
developers that are consistent with the Plan and General Guidelines 
prepared by the Corporation.
    (4) Activities related to the Public Improvements Program of the 
Corporation for which no previous environmental assessment or EIS has 
been prepared.
    (5) Contracts, work authorizations, and master agreements related to 
and implementing programs, policies, and proposals not categorically 
excluded and for which no environmental assessments or for which no 
environmental assessment and EIS have been previously prepared.
    (6) Street closures and other rearrangements of public space which 
were not covered in the Plan or the Final EIS.
    (7) Acquisition/disposal of personal property by the Corporation not 
related to any specific decision, plan, or program adopted by the Board 
of Directors of the Corporation for which an environmental assessment or 
an environmental assessment and an EIS is required to be prepared.
    (8) Proposed construction of any public building within the 
development area by any executive agency of the United States 
Government, any agency or department of the District of Columbia 
Government, or any other public or quasi-public entity.



Sec. 907.12  Preparation of an environmental assessment.

    (a) When to prepare. PADC will begin the preparation of an 
environmental assessment as early as possible after it is determined by 
the responsible corporation official to be required. PADC may prepare an 
environmental assessment at any time to assist planning and decision-
making.
    (b) Content and format. An environmental assessment is a concise 
public document used to determine whether to prepare an environmental 
impact statement. An environmental assessment aids in complying with the 
Act when no environmental impact statement is necessary, and it 
facilitates the preparation of an environmental impact statement, if one 
is necessary. The environmental assessment shall contain brief 
discussions of the following topics:
    (1) Purpose and need for the proposed action.
    (2) Description of the proposed action.
    (3) Alternatives considered, including the No Action alternative.
    (4) Environmental effects of the proposed action and alternative 
actions.
    (5) Listing of agencies, organizations or persons consulted.
    (6) In preparation of the environmental assessment, the most 
important or significant environmental consequences and effects on the 
areas listed below should be addressed. Only those areas which are 
specifically relevant to the particular proposal should be addressed. 
Those areas should be addressed in as much detail as is necessary to 
allow an analysis of the alternatives and the proposal. The areas to be 
considered are the following:
    (i) Natural/ecological features (such as floodplain, wetlands, 
coastal zones, wildlife refuges, and endangered species);
    (ii) Air quality;
    (iii) Sound levels;
    (iv) Water supply, wastewater treatment and water runoff;
    (v) Energy requirements and conservation;
    (vi) Solid waste;
    (vii) Transportation;
    (viii) Community facilities and services;
    (ix) Social and economic;
    (x) Historic and aesthetic; and
    (xi) Other relevant factors.
    (c) Finding of no significant impact. If PADC completes an 
environmental assessment and determines that an environmental impact 
statement is not required, then PADC shall prepare a finding of no 
significant impact. The finding of no significant impact shall be

[[Page 179]]

made available to the public by PADC as specified in 40 CFR 1506.6 of 
the CEQ Regulations.



Sec. 907.13  Public involvement.

    Interested persons may obtain information concerning any pending EIS 
or any other element of the environmental review process of the 
Corporation by contacting the Public Information Officer of the 
Corporation, 1331 Pennsylvania Avenue, NW, Suite 1220 North, Washington, 
DC 20004, telephone (202) 566-1218.

[47 FR 8768, Mar. 2, 1982, as amended at 50 FR 45824, Nov. 4, 1985]



Sec. 907.14  Corporation decision making procedures.

    To ensure that at major decision making points all relevant 
environmental concerns are considered by the Decision Maker, the 
following procedures are established.
    (a) An environmental document, i.e., the EIS, Environmental 
Assessment, Finding of No Signficant Impact, or Notice of Intent, in 
addition to being prepared at the earliest point in the decision making 
process, shall accompany the relevant proposal or action through the 
Corporation's decision making process to ensure adequate consideration 
of environmental factors.
    (b) The decision maker shall consider in its decision making process 
only those decision alternatives discussed in the relevant environmental 
documents. Also, where an EIS has been prepared, the decision maker 
shall consider all alternatives described in the EIS. A written record 
of the consideration of alternatives during the decision making process 
shall be maintained.
    (c) Any environmental document prepared for a proposal or action 
shall be made part of the record of any formal rulemaking by the 
Corporation.



Sec. 907.15  Approval of private development proposals.

    (a) Each development proposal submitted by a private developer to 
the Corporation for its approval, unless categorically excluded, shall 
require, at a minimum, an environmental assessment.
    (b) The Board of Directors may not take any approval action on a 
submitted development proposal of a private developer until such time as 
the appropriate environmental review has been prepared and submitted to 
the Board of Directors.
    (c) At a minimum, and as part of any submission made by a private 
developer to the Board of Directors for its approval, a private 
developer shall make available data and materials concerning the 
development proposal sufficient to permit the Corporation to carry out 
its responsibilities on environmental review. When requested, the 
developer shall provide additional information that the Corporation 
believes is necessary to permit it to satisfy its environmental review 
functions.
    (d) As part of a development proposal submission, a private 
developer may submit an environmental assessment on its development 
proposal.
    (e) Where the responsible Corporation official determines that the 
preparation of an EIS is required, the EIS shall be prepared in 
accordance with part 1502 of the CEQ Regulations. The responsible 
Corporation official may set time limits for environmental review 
appropriate to each development proposal, consistent with CEQ 
Regulations 40 CFR 1601.8 and 1506.10.
    (f) The responsible Corporation official shall at the earliest 
possible time ensure that the Corporation commences its environmental 
review on a proposed development project and shall provide to a private 
developer any policies or information deemed appropriate in order to 
permit effective and timely review by the Corporation of a development 
proposal once it is submitted to the Board of Directors for approval. 
The official shall designate, for the benefit of the developer, staff 
members of the Corporation to advise the developer with regard to 
information that may be required in order to accomplish the 
Corporation's environmental review.



Sec. 907.16  Actions where lead Agency designation is necessary.

    (a) Consistent with CEQ Regulations, Sec. 1501.5, where a proposed 
action by the Corporation involves one or more other

[[Page 180]]

Federal agencies, or where a group of actions by the Corporation and one 
or more other Federal agencies are directly related to each other 
because of their functional interdependence or geographical proximity, 
the Corporation will seek designation as lead agency for those actions 
that directly relate to implementation of the Plan and those actions 
that relate solely to the Development Area.
    (b) For an action that qualifies as one for which the Corporation 
will seek designation as lead agency, the Corporation will promptly 
consult with the appropriate Federal agencies such as the National 
Capital Planning Commission, the Department of the Interior, and the 
General Services Administration to establish lead agency and cooperating 
agency designations.



                       Sec. Appendix A to Part 907

    (a) Specific Corporation actions categorically excluded from the 
requirements for environmental assessment and an EIS are:
    (i) Personnel actions;
    (ii) Administrative actions and operations directly related to the 
operation of the Corporation (e.g., purchase of furnishings, services, 
and space acquisition for the Corporation offices);
    (iii) Property management actions related to routine maintenance, 
operation, upkeep, etc., of real property owned by the Corporation;
    (iv) Review of permit applications relating to minor development 
activities in the Development Area (sign approval, interior renovations, 
minor exterior changes to facade, etc.);
    (v) Promulgation of development general and square guidelines that 
implement the Plan as covered by the Final EIS;
    (vi) Contracts, work authorizations, procurement actions directly 
related to and implementing proposals, programs, and master agreements 
for which an environmental assessment or an environmental assessment and 
an EIS have been prepared, or which are related to administrative 
operation of the agency;
    (vii) Acquisition/disposal by lease, easement, or sale of real and 
personal property owned by the Corporation subsequent to and 
implementing a prior decision of the Board of Directors for which an 
environmental assessment or an assessment and an EIS were prepared;
    (viii) Activities directly related to and implementing the Public 
Improvements Program of the Corporation approved by the Board of 
Directors, and which are covered by a previously prepared environmental 
assessment or an environmental assessment and an EIS;
    (ix) Demolition actions preparatory for development by the 
Corporation, other public agencies, or private developers subsequent to 
approval of development proposals made by the Board of Directors;
    (x) Development proposal identical to the requirements of the Plan 
and which was included in an EIS previously prepared.
    (b) An action which falls into one of the above categories may still 
require the preparation of an EIS or environmental assessment if the 
designated corporation official determines it meets the criteria stated 
in Sec. 907.8(a) or involves extraordinary circumstances that may have 
a significant environmental effect.



PART 908_POLICY AND PROCEDURES TO FACILITATE THE RETENTION OF DISPLACED BUSINESSES AND RESIDENTS IN THE PENNSYLVANIA AVENUE DEVELOPMENT AREA--Table of Contents




                            Subpart A_General

Sec.
908.1 Policy.
908.2 Purpose.
908.3 Definitions.

                Subpart B_Preferential Right To Relocate

908.10 Criteria of Qualified Persons.
908.11 List of Qualified Persons.
908.12 Retention on the List of Qualified Persons.
908.13 Rights of Qualified Persons.
908.14 Requirements placed on developers that have acquired or leased 
          real property from the Corporation.
908.15 Requirements placed on developers that have not acquired or 
          leased real property from the Corporation.

Subpart C [Reserved]

                       Subpart D_Review Procedure

908.30 Request for review.
908.31 Time for filing request for review.
908.32 Review procedures.
908.33 Final determination.

    Authority: 40 U.S.C. 874(e); 40 U.S.C. 875(8); 40 U.S.C. 877(d).

    Source: 48 FR 55459, Dec. 13, 1983, unless otherwise noted.

[[Page 181]]



                            Subpart A_General



Sec. 908.1  Policy.

    One of the goals of The Pennsylvania Avenue Plan--1974, as amended, 
(The Plan) is the reduction of hardships experienced by businesses and 
residents within the development area of the Pennsylvania Avenue 
Development Corporation (the Corporation) when they are displaced as a 
result of implementation of The Plan. It is the policy of the 
Corporation to provide displaced businesses and residents with a 
preferential opportunity to relocate within the development area so that 
they may share in the benefits brought to the area by the implementation 
of The Plan. This rule shall not be construed to affect the eligibility, 
rights or responsibilities of persons who may be entitled to benefits 
provided under the Uniform Relocation Assistance and Real Property 
Acquisition Policies Act of 1970 as implemented by the Corporation (36 
CFR part 904).



Sec. 908.2  Purpose.

    The purpose of this rule is to:
    (a) Provide a meaningful opportunity to businesses displaced by the 
Corporation's program to return to, or remain in, the Development Area;
    (b) Establish procedures and requirements for displaced occupants by 
which they may establish and later exercise their preferential right to 
return to the Development Area;
    (c) Establish procedures which the Corporation and private 
Developers must follow in providing Qualified Persons with the 
opportunity to obtain their preferential right to return to the 
Development Area.



Sec. 908.3  Definitions.

    The following definitions shall apply to this part:
    (a) Developer means a Person or team of Persons that has received 
preliminary approval for a development proposal or has been designated 
by the Corporation as Developer pursuant to a development competition.
    (b) Development Area means the area described in section 2 (f) of 
Pub. L. 92-578, October 27, 1972, as amended (40 U.S.C. 871 (f)), and 
for which the Plan has been prepared and will be implemented by the 
Corporation.
    (c) List means the List of Qualified Persons maintained by the 
Corporation as provided in Sec. 908.11(a) of this rule.
    (d) Newly developed space means any leaseable part of a new building 
in the Development Area upon which construction was commenced after 
October 27, 1972 or an existing building in the Development Area which 
after October 27, 1972 underwent substantial remodeling, renovation, 
conversion, rebuilding, enlargement, extension or major structural 
improvement, but not including ordinary maintenance or remodeling or 
changes necessary to continue occupancy.
    (e) Person means a partnership, company, corporation, or association 
as well as an individual or family, but does not include a department, 
agency, or instrumentality of any Federal, state, or local government.
    (f) Previous location means the space from which the Eligible Person 
was or is being displaced as a result of the Corporation's or 
Developer's acquisition of real property, or as a result of receiving a 
written order to vacate from the Corporation.



                Subpart B_Preferential Right To Relocate



Sec. 908.10  Criteria of Qualified Person.

    Qualified Person is either
    (a) A Person whose place of business or residence was located in the 
Development Area and was displaced from its location by:
    (1) The Corporation in connection with the acquisition of fee title, 
or a lesser interest, in the real property containing such business or 
residence; or
    (2) A Developer in implementing a development project in accordance 
with the Plan; or
    (b) A Person whose place of business or residence is located in the 
Development Area and who has received notice of initiation of 
negotiations by the Corporation for purchase of the real property 
containing such business or residence.

[[Page 182]]



Sec. 908.11  List of Qualified Persons.

    (a) The Corporation shall develop and maintain a List of Qualified 
Persons who meet the criteria of Qualified Person as defined in Sec. 
908.10 and who ask to be placed on that list.
    (b) The Corporation shall notify each occupant displaced by 
development provided an address is available to the Corporation, of this 
policy and the procedures to be followed for placement on the List.
    (c) A person who wishes to be included on the List shall notify the 
Corporation in writing to that effect. The notice to the Corporation 
shall include:
    (1) The address of the Previous Location;
    (2) A short statement indicating the nature of the Qualified 
Person's occupancy;
    (3) The amounts and type of space occupied prior to displacement;
    (4) A description of any specialized equipment or unusual 
requirements for occupancy; and
    (5) A copy of the notice to vacate from the Developer or notice of 
initiation of negotiations from the Corporation if either of these was 
received by the Qualified Person.
    (d) The Corporation shall:
    (1) Review the information furnished by the Person including any 
notice;
    (2) Request additional information, if necessary to make a 
determination of the Person's qualifications;
    (3) Determine whether the Person is qualified to be listed, and if 
so place the Person on the list; and
    (4) Notify the Person of its determination.
    (e) The Corporation urges that any Person who wishes to be placed on 
the List request such placement as soon as the Person meets the criteria 
for Qualified Person established in Sec. 908.10, and all Persons are 
encouraged to do so no later than one year of the time the Person is 
displaced in order to increase the opportunity to obtain Newly Developed 
Space. However, no Person shall be denied placement on the List because 
such placement was not requested within one year of displacement.



Sec. 908.12  Retention on the List of Qualified Persons.

    (a) Once placed on the List, the Corporation shall keep a Person on 
the List until:
    (1) The Corporation receives a written request from the Qualified 
Person to be removed from the List;
    (2) The Qualified Person is relocated into or has a binding lease 
commitment for Newly Developed Space;
    (3) The Qualified Person sells, transfers, or merges its interest in 
the displaced business, unless after such change in ownership Qualified 
Persons have at least fifty-one percent of the interest in the resulting 
business; or
    (4) The Corporation receives a mailing returned from the Post Office 
that the Person is not located at the known address and left no 
forwarding address, provided that the Corporation shall reinstate any 
such removed name if the Person provides the Corporation with a current 
address; or
    (5) The Corporation ceases operations upon completion of the Plan.
    (b) A Qualified person relocated into newly developed space, may 
only again be placed on the List:
    (1) If another branch of its business is subsequently displaced from 
space within the Development Area which is not Newly Developed Space; 
and
    (2) If all requirements of Sec. 908.10 of the rule are met with 
regard to the subsequent displacement.



Sec. 908.13  Rights of Qualified Persons.

    (a) As provided in Sec. Sec. 908.14(c) and 908.15(b), each 
Qualified Person on the List shall receive notices of opportunities to 
occupy Newly Developed Space as opportunities become available.
    (b) As provided in Sec. Sec. 908.14(d) and 908.15(c), each 
Qualified Person on the List shall be notified of any subsequent changes 
in the leasing plan which are, in the Corporation's opinion, major.
    (c) Each Qualified Person on the List, who is interested in 
negotiating for occupancy of Newly Developed Space shall, within two 
weeks after receiving notice of a tenanting opportunity, provide written 
notice of its interest in the tenanting opportunity to the Developer, 
and furnish a copy of the written notice to the Corporation.

[[Page 183]]

    (d) Each Qualified Person on the List who provides a written notice 
of interest shall have ninety days following the Developer's receipt of 
the notice of interest for exclusive negotiations with the Developer for 
occupancy of the Developer's Newly Developed Space. During the ninety 
day period the Developer, subject to Sec. Sec. 908.14 and 908.15 of 
this rule, shall not negotiate tenanting opportunities for the same 
Newly Developed Space requested by the Qualified Person with other than 
Qualified Persons.
    (e) A Qualified Person's opportunity to occupy Newly Developed Space 
shall not be limited to the square on which its previous location was 
situated but extends throughout the Development Area. Similarly, no 
Qualified Person has an absolute right to return to the square where 
previous location was situated.
    (f) A Qualified Person's opportunity to occupy space may be 
exercised in the Development Area at any time during the Corporation's 
existence, but such opportunity may only be exercised within Newly 
Developed Space.
    (g) A Qualified Person has one opportunity to occupy Newly Developed 
Space for each location in the Development Area from which it is 
displaced.
    (h) The Corporation cannot assure any Qualified Person that it will 
be relocated to Newly Developed Space.



Sec. 908.14  Requirements placed on developers that have acquired or leased real property from the Corporation.

    Developers who have acquired or leased real property from the 
Corporation shall:
    (a) Notify the Corporation, within six months of the approval of the 
Developer's building permit, of its leasing plan and when it intends to 
begin seeking tenants. The Developer shall include at least the 
following in its leasing plan:
    (1) The mix of uses and estimated square footage for each use;
    (2) The rentals to be charged by type of use and location;
    (3) The terms and conditions to be included in the leases, including 
financial participation;
    (4) The selection criteria to be used by either the Developer or its 
agents; and
    (5) The projected completion and occupancy dates.
    (b) Notify the Corporation of any changes in the Developer's leasing 
plan.
    (c) Send registered letters to all Qualified Persons on the List 
notifying them that the developer is seeking tenants and advising them 
that they have two weeks to provide the developer with written notice of 
their interest and ninety days thereafter for exclusive negotiations. 
This letter shall include a description of the mix of uses in the 
project, the rentals to be charged by type of use and location, the 
terms and conditions to be included in leases, the projected completion 
and occupancy dates, and the selection criteria to be used to choose 
tenants. The Developer will furnish the Corporation with an enumeration 
of the Qualified Persons it has notified and a copy of the letter and 
any attachments sent.
    (d) Notify in writing each Qualified Person whom the Developer has 
previously contacted of changes in the Developer's leasing plan which 
the Corporation determines are major.
    (e) Provide a ninety day period for exclusive negotiations with 
Qualified Persons, said period to commence with the timely receipt by 
the Developer of the written notice of interest from the Qualified 
Person. During this period the Developers shall:
    (1) Negotiate tenanting opportunities only with Qualified Persons 
who have notified the Developer of their interest in the opportunity;
    (2) Not seek other potential tenants or negotiate agreements to 
occupy the Newly Developed Space requested by Qualified Persons with 
anyone other than those Qualified Persons who have timely notified the 
Developer of their interest in the opportunity, except that a Developer 
may negotiate agreements with equity partners in the project who will 
become tenants or with prime tenants; and
    (3) Negotiate in good faith with interested Qualified Persons and 
seek to accommodate them as tenants.
    (f) Report to the Corporation at the conclusion of the ninety day 
period of

[[Page 184]]

exclusive negotiations concerning the results of its efforts. In 
particular the developer shall:
    (1) State the number of responses which it received from Qualified 
Persons;
    (2) State the number of Qualified Persons with whom it has reached 
agreement and the name of each;
    (3) State the number of Qualified Persons with whom it is still 
negotiating and the name of each; and
    (4) Describe the Developer's negotiations with each Qualified Person 
including a summary of each communication between the Developer and each 
Qualified Person with whom agreement has not been reached, the 
Developer's best offer to each Qualified Person, the best offer of each 
Qualified Person to the Developer, and the specific reasons why any 
Qualified Persons did not meet the selection criteria.
    (g) Report to the Corporation quarterly thereafter until the project 
is fully leased or there are no more Qualified Persons interested in 
leasing space, whichever first occurs, concerning the results of its 
nogotiations with Qualified Persons. In particular the Developer shall 
state:
    (1) The number of Qualified Persons with whom it has reached 
agreement and the name of each;
    (2) The percentage of square feet of total leasable space which it 
has leased to Qualified Persons; and
    (3) A description of the Developer's negotiations with each 
Qualified Person including a summary of each communication between the 
Developer and each Qualified Person with whom agreement has not been 
reached, the Developer's best offer to each Qualified Person, the best 
offer of each Qualified Person to the Developer, and the specific reason 
why the Developer determines any Qualified Person did not meet its 
selection criteria.



Sec. 908.15  Requirements placed on developers that have not acquired or leased real property from the Corporation.

    The Corporation shall encourage Developers that do not acquire or 
lease real property from the Corporation to lease to Qualified Persons.
    (a) While reviewing the Developer's preliminary or final plans, the 
Corporation shall explore the tenanting opportunities proposed by the 
Developer and furnish the Developer with the List.
    (b) The Corporation shall notify those Qualified Persons on the List 
who appear to be prospective tenants for the available tenanting 
opportunities of this tenanting opportunity. To the extent that such 
information is available to the Corporation, these notices shall specify 
the mix of uses in the project, the rentals to be charged by type of use 
and location, the terms and conditions to be included in the leases, the 
projected completion and occupancy dates and the selection criteria to 
be used in choosing tenants.
    (c) The Corporation shall notify in writing each Qualified Person 
whom it has previously contacted of changes in the Developer's plan 
provided the Corporation is informed of the changes and determines the 
changes are major.
    (d) The Corporation shall request that the Developer make every 
effort to lease space to Persons on the List and to report to the 
Corporation the names of those Qualified Persons who have reached an 
agreement with the Developer.

Subpart C [Reserved]



                       Subpart D_Review Procedure



Sec. 908.30  Request for review.

    (a) Any Person aggrieved by a determination concerning placement or 
retention on the List or any other right under subpart B of this rule, 
may request that the determination be reviewed.
    (b) The applicant's request for review, shall be in writing, shall 
state the reasons for requesting review, and shall describe the relief 
sought (including all information the aggrieved person believes to be 
relevant). The applicant's written request shall be sent to the Director 
of Real Estate, Pennsylvania Avenue Development Corporation, 1331 
Pennsylvania Avenue, NW., Suite 1220 North, Washington, DC 20004.

[48 FR 55459, Dec. 13, 1983, as amended at 50 FR 45824, Nov. 4, 1985]

[[Page 185]]



Sec. 908.31  Time for filing request for review.

    Any person who files a request for review must do so within one year 
of the date of the determination for which review is sought.



Sec. 908.32  Review procedures.

    (a) Upon receipt of a request for review, the Director of Real 
Estate shall compile all pertinent records maintained on the aggrieved 
person's application, including the following:
    (1) Information on which the original determination was based, 
including applicable regulations;
    (2) Information submitted by the applicant including the request for 
review and any information submitted in support of the application;
    (3) Any additional information the Director of Real Estate considers 
relevant to a full and fair review of the application and which he 
obtains by request, investigation or research.
    (b) The Director of Real Estate shall submit the complete file 
together with a summary of the facts and issues involved in the 
application to the Chairman of the Board of Directors of the Corporation 
or his or her designee (Chairman or designee) within 30 days of receipt 
of the request for review.
    (c) The Chairman may either review the application or designate one 
or more persons from the Board of Directors or from outside the 
Corporation to review the claim. During review the Chairman or 
designee(s) may consult with the Corporation's Office of General Counsel 
to obtain advice on legal issues arising from the claim.



Sec. 908.33  Final determination.

    (a) The Chairman or designee(s) shall make a final determination on 
the claim within 45 days of receipt of the file from the Director of 
Real Estate. The final determination shall be in the form of Findings of 
Fact and Conclusions of Law and shall be sent to the aggrieved person 
and to the Director of Real Estate.
    (b) If the applicant is determined to have been aggrieved, the 
Director of Real Estate shall promptly take appropriate action in 
accordance with the final determination.
    (c) A notice of the right to judicial review shall be sent to the 
aggrieved person with the final determination.



PART 909_ENFORCEMENT OF NONDISCRIMINATION ON THE BASIS OF HANDICAP IN PROGRAMS OR ACTIVITIES CONDUCTED BY THE PENNSYLVANIA AVENUE DEVELOPMENT CORPORATION--Table of Contents




Sec.
909.101 Purpose.
909.102 Application.
909.103 Definitions.
909.104-909.109 [Reserved]
909.110 Self-evaluation.
909.111 Notice.
909.112-909.129 [Reserved]
909.130 General prohibitions against discrimination.
909.131-909.139 [Reserved]
909.140 Employment.
909.141-909.148 [Reserved]
909.149 Program accessibility: Discrimination prohibited.
909.150 Program accessibility: Existing facilities.
909.151 Program accessibility: New construction and alterations.
909.152-909.159 [Reserved]
909.160 Communications.
909.161-909.169 [Reserved]
909.170 Compliance procedures.
909.171-909.999 [Reserved]

    Authority: 29 U.S.C. 794.

    Source: 51 FR 22896, June 23, 1986, unless otherwise noted.



Sec. 909.101  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. 909.102  Application.

    This part applies to all programs or activities conducted by the 
agency.



Sec. 909.103  Definitions.

    For purposes of this part, the term--
    Assistant Attorney General means the Assistant Attorney General, 
Civil

[[Page 186]]

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.
    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

[[Page 187]]

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. 909.140.
    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.



Sec. Sec. 909.104-909.109  [Reserved]



Sec. 909.110  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. 909.111  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. 909.112-909.129  [Reserved]



Sec. 909.130  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

[[Page 188]]

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 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 activites 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. 909.131-909.139  [Reserved]



Sec. 909.140  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. 909.141-909.148  [Reserved]



Sec. 909.149  Program accessibility: Discrimination prohibited.

    Except as otherwise provided in Sec. 909.150, 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. 909.150  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--

[[Page 189]]

    (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. 909.150(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 
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. 909.150(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. 909.150(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 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--

[[Page 190]]

    (1) Identify physical obstacles in the agency'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.



Sec. 909.151  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 
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. 909.152-909.159  [Reserved]



Sec. 909.160  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 a handicapped person 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 
handicapped person.
    (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 person (TDD's) or 
equally effective telecommunication systems shall be used.
    (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 adminstrative 
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. 909.160 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, handicapped persons receive the benefits and services 
of the program or activity.



Sec. Sec. 909.161-909.169  [Reserved]



Sec. 909.170  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 agency.
    (b) The agency shall process complaints alleging violations of 
section

[[Page 191]]

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 Executive Director shall be responsible for coordinating 
implementation of this section. Complaints may be sent to the General 
Counsel, Pennsylvania Avenue Development Corporaton, 1331 Pennsylvania 
Avenue, NW., Suite 1220 North, Washington, DC 20004-1730.
    (d) The agency shall accept and investigate all complete complaints 
for which it has jurisdiction. All complete complaints must be filed 
within 180 days of the alleged act of discrimination. The agency may 
extend this time period for good cause.
    (e) If the agency receives a complaint over which it does not have 
jurisdiction, it shall promptly notify the complainant and shall make 
reasonable efforts to refer the complaint to the appropriate government 
entity.
    (f) The agency shall notify the Architectural and Transportation 
Barriers Compliance Board upon receipt of any complaint alleging that a 
building or facility that is subject to the Architectural Barriers Act 
of 1968, as amended (42 U.S.C. 4151-4157), 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 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. 909.170(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.

[51 FR 22894, 22896, June 23, 1986, as amended at 51 FR 22894, June 23, 
1986]



Sec. Sec. 909.171-909.999  [Reserved]



PART 910_GENERAL GUIDELINES AND UNIFORM STANDARDS FOR URBAN PLANNING AND DESIGN OF DEVELOPMENT WITHIN THE PENNSYLVANIA AVENUE DEVELOPMENT AREA--Table of Contents




                            Subpart A_General

Sec.
910.1 Policy.
910.2 Purpose.
910.3 Program administration.

              Subpart B_Urban Planning and Design Concerns

910.10 General.
910.11 Comprehensive urban planning and design.
910.12 Development density.
910.13 Urban design of Washington, DC.
910.14 Historic preservation.
910.15 New development design.
910.16 Land use.
910.17 Pedestrian circulation system.
910.18 Vehicular circulation and storage systems.

    Subpart C_Standards Uniformly Applicable to the Development Area

910.30 General.
910.31 High architectural quality.
910.32 Historic preservation.
910.33 Off-street parking.
910.34 Accommodations for the physically handicapped.
910.35 Fine arts.

[[Page 192]]

910.36 Energy conservation.
910.37 Fire and life safety.
910.38 Building exterior illumination.

                       Subpart D_Glossary of Terms

910.50 General.
910.51 Access.
910.52 Buildable area.
910.53 Building restriction line.
910.54 Build-to height.
910.55 Build-to line.
910.56 Coordinated planning area.
910.57 Curb-cut.
910.58 Development.
910.59 Development parcel.
910.60 Gross floor area.
910.61 Height of development.
910.62 The Plan.
910.63 Rehabilitation.
910.64 Replication.
910.65 Restoration.
910.66 Sidewalk setback.
910.67 Square guidelines.
910.68 Storefront.
910.69 Structural bay.
910.70 Vault.
910.71 Weather protection.

    Authority: Sec. 6(8) Pennsylvania Avenue Development Corporation Act 
of 1972 (40 U.S.C. 875(8)).

    Source: 48 FR 36642, Aug. 23, 1982, unless otherwise noted.



                            Subpart A_General



Sec. 910.1  Policy.

    (a) The Pennsylvania Avenue Development Corporation Act of 1972, 
Pub. L. 92-578, October 27, 1972, (the Act), (40 U.S.C. 871 et seq.) 
established the Pennsylvania Avenue Development Corporation (the 
Corporation) with jurisdiction over the Pennsylvania Avenue Development 
Area (Development Area). The Development Area is generally described as 
an area in Washington DC, bounded by Pennsylvania Avenue, NW., on the 
south, East Executive Drive on the west, 3rd Street, NW., on the east, 
and E and F Streets, NW., on the north.
    (b) Prior to creation of the Corporation, the deterioration of the 
Development Area had an adverse impact upon the physical, economic, and 
social life of Washington, DC. The Corporation was created as the 
vehicle to develop, maintain, and use the Development Area in a manner 
suitable to its ceremonial, physical, and historic relationship to the 
legislative and executive branches of the Federal government, to the 
governmental buildings, monuments, memorials, and parks in and adjacent 
to that area, and to the downtown commercial core of Washington, DC. The 
Corporation was directed to prepare a development plan for the 
Development Area and to submit that plan to the United States Congress. 
Congress accepted that plan and directed its implementation by the 
Corporation. The Corporation through a broad range of statutory powers 
has begun this implementation process.
    (c) The Pennsylvania Avenue Plan--1974, as amended (the Plan) is a 
blueprint for social, economic, and architectural rejuvenation of the 
Development Area. Its goal is to make the Development Area once again a 
relevant and contributing element of Washington, DC. With the 
implementation of the Plan, the Development Area will become a showpiece 
of the Nation's Capital, proudly displaying the successful joint efforts 
of the Corporation, other Federal and District of Columbia government 
agencies, and private entrepreneurs.
    (d) The Plan, containing the goals and objectives for development, 
is supplemented by various adopted policies and programs of the 
Corporation. The Plan, in conjunction with these policies and programs, 
represents the basis upon which the development and rejuvenation of the 
Development Area will proceed, whether publicly or privately inspired 
and accomplished. These policies and programs amplify, elaborate, and 
refine the planning and urban design concepts expressed in the Plan.



Sec. 910.2  Purpose.

    (a) Implementation of the Plan occurs through two component actions: 
public improvements construction and square development. Public 
improvements construction consists of implementation by the Corporation 
of the Public Improvements Program which is a comprehensive plan for the 
design and construction of public amenities in public spaces and 
selected thoroughfares within the Development Area. This program 
outlines the details of roadway and sidewalk improvements, public space 
configuration, and pedestrian amenities. Square development consists of 
design and construction of

[[Page 193]]

development projects primarily on city blocks, known as squares, within 
the Development Area. These development projects are generally pursued 
by private entrepreneurs with varying degrees of participation and 
involvement by the Corporation, through such means as land assemblage 
and leasing.
    (b) This part 910, together with the Square Guidelines applicable to 
the coordinated planning area, pertains solely to square development and 
specifies the controlling mechanism for implementation of the Plan 
required by Chapter Six of the Plan.



Sec. 910.3  Program administration.

    (a) This part 910, together with Square Guidelines, described below, 
provides interested parties with the urban planning and design 
information sufficient to understand and participate in the process of 
square development within the Development Area.
    (1) This part 910, General Guidelines and Uniform Standards for 
Urban Planning and Design of Development, sets forth the general 
planning and design goals and objectives which govern the implementation 
of the Plan, specifies standards which are uniformly applicable to all 
developments throughout the Development Area, and provides a glossary of 
defined terms applicable to this part as well as Square Guidelines.
    (2) Square Guidelines specifies detailed urban planning and design 
requirements and recommendations which are applicable to each particular 
coordinated planning area, a coordinated planning area being a square, a 
portion of a square, or a combination of squares. These requirements and 
recommendations set forth intentions and refinements of the Plan in 
light of the identified Planning and Design Concerns specified in 
subpart B of this part 910. Each set of Square Guidelines is adopted by 
the Board of Directors, issued by the Chairman, and is available, upon 
request, at the Corporation's office.
    (3) Square Guidelines are developed in the context of the existing 
environment. Several provisions in the Square Guidelines are, therefore, 
established on the basis of certain assumptions in terms of existing 
buildings, a particular traffic pattern and roadway configuration, a 
market condition for a particular land use, etc. In the event of a major 
change or casualty which would render it impossible or impracticable to 
meet certain requirements of Square Guidelines, the Corporation would 
expect to develop and issue up-to-date Square Guidelines. This statement 
does not, of course, preclude the Corporation from issuing amendments to 
Square Guidelines from time to time on any other basis.
    (b) Pursuant to section 7(b) of the Act, each proposal for 
development within the Development Area must be submitted to the 
Corporation to determine its consistency with the Plan. The 
Corporation's adopted development policy, entitled ``Development 
Policies and Procedures,'' sets forth the process for this 
determination. In determining whether a development proposal is 
consistent with the Plan, the Corporation shall review the proposal 
against all adopted Corporation programs, policies, and regulations, 
including:
    (1) This part 910.
    (2) Square Guidelines.
    (3) Development Policies and Procedures.
    (4) Historic Preservation Plan.
    (5) Energy Guidelines.
    (6) Side Street Improvements Program.
    (7) Policy on Environmental Quality and Control (36 CFR part 907).
    (8) Pennsylvania Avenue Lighting Plan.
    (9) Public Improvements Program.
    (10) Affirmative Action Policy and Procedure (36 CFR part 906).
    (11) Policy and Procedures to Facilitate Successful Relocation of 
Businesses and Residents within the Pennsylvania Avenue Development 
Area.
    (12) All other programs, policies, and regulations that may be 
approved and adopted by the Board of Directors from time to time.
    (c) Pursuant to the Act, Federal and District of Columbia agencies 
and departments may exercise such existing authority and lawful powers 
over urban planning and design features of development as are consistent 
with the Plan. No department or agency may release, modify, or depart 
from any feature of the Plan without the prior approval of the 
Corporation.

[[Page 194]]



              Subpart B_Urban Planning and Design Concerns



Sec. 910.10  General.

    To facilitate review of each development proposal in light of the 
identified urban planning and design goals of the Plan, the following 
urban planning and design concerns will be the basis upon which the 
evaluation of such proposals will be made. These concerns are also more 
specifically reflected in subpart C of this Rule, and in the 
requirements and recommendations in Square Guidelines.
    (a) Comprehensive planning and design;
    (b) Development density;
    (c) Urban design of Washington, DC;
    (d) Historic preservation;
    (e) New development design;
    (f) Land use;
    (g) Pedestrian circulation sytems; and
    (h) Vehicular circulation and storage systems.



Sec. 910.11  Comprehensive urban planning and design.

    (a) All new development is conceived as an integral part of its 
surroundings, which include the remainder of the Development Area, the 
Mall, the Federal Triangle, and the District's downtown, and should 
support Pennsylvania Avenue's function as a bridge between the 
monumental Federal core to the south and the District's downtown to the 
north.
    (b) All development shall be planned and designed to accommodate the 
requirements and needs of historic preservation, affirmative action, 
business relocation, and other concerns which will affect the overall 
planning and design of a development.
    (c) The design of any development shall take into account the Plan's 
proposed future treatment of buildings, squares, and pedestrian spaces 
in the immediate surrounding area.
    (d) The design of any development shall be coordinated with the 
massing, architectural design, servicing, pedestrian amenities, and uses 
of nearby development as prescribed under the Plan.
    (e) Any development adjacent to F Street, NW. shall be accomplished 
in a manner that will strengthen F Street as a retail core of 
Washington, DC.
    (f) Any development along Pennsylvania Avenue shall be designed so 
as to support the transformation of the Avenue into an attractive and 
pleasant place for residents and visitors alike, offering pleasant 
places to stroll, rest, sit and talk, eat, and shop.
    (g) All development within a coordinated planning area shall, to the 
maximum extent possible, be integrated with regard to the off-street 
loading and servicing, pedestrian features.



Sec. 910.12  Development density.

    (a) Land would be developed to the fullest extent appropriate in 
terms of uses, economics, and design so that the city's economic life 
and tax base can be enhanced.
    (b) New development shall be designed to achieve maximum development 
density within the building envelope delineated by specific height 
restrictions, but shall also establish a compatible and appropriate 
scale for historic preservation, residential and other uses, and other 
urban design elements.
    (c) Development density is limited by the Zoning Regulations of the 
District of Columbia and may be further restricted by the Corporation in 
specific coordinated planning areas, provided that any lower density 
would be economically feasible. Generally, the Plan is structured to 
create high density development west of the FBI and lower density 
development east of the FBI.
    (d) The density of new development should bring new economic life--
jobs, shopping, and business opportunities--to Pennsylvania Avenue, 
while also reinforcing existing activity both on the Avenue and in the 
adjacent downtown, both within and beyond the Development Area.



Sec. 910.13  Urban design of Washington, DC.

    (a) Pennsylvania Avenue's unique role as the physical and symbolic 
link between the White House and the U.S. Capitol should be reinforced 
by new development along it.
    (b) To reinforce and enrich the legacy of the L'Enfant Plan, the 
primary function of new development in the Development Area is to define 
open spaces and

[[Page 195]]

plazas, or to reinforce vistas along major streets and thoroughfares.



Sec. 910.14  Historic preservation.

    (a) The Development Area is located almost entirely within the 
Pennsylvania Avenue National Historic Site, which was established to 
preserve the exceptional values of Pennsylvania Avenue and its environs 
in commemorating or illustrating the history of the United States. The 
Pennsylvania Avenue Area achieves national historic significance because 
of both its ceremonial role in the life of the nation and its social and 
economic role in the life of the residents of Washington for more than a 
century.
    (b) The Historic Preservation Plan of the Corporation sets forth the 
adopted policy of the Corporation on historic preservation and 
development within the Development Area must be consistent with this 
policy.
    (c) New construction adjacent to historic structures will be 
required to take into account the qualities of the adjacent structures 
(with regard to height, scale, proportion, rhythm, texture, materials, 
architectural detail, and the amount of variety among the structures 
with respect to these qualities as well as style and date of erection) 
to ensure that these structures maintain their historic or architectural 
integrity, but will not necessarily be required to conform to them.
    (d) Wholly new construction and new construction in conjunction with 
preservation will, where appropriate, take into account the historic 
buildings to remain, aiming for the highest quality of contemporary 
design, consistent with the goals and objectives of the Historic 
Preservation Plan.



Sec. 910.15  New development design.

    (a) All new development shall represent the best contemporary 
architectural and urban planning concepts.
    (b) Where new development includes or relates to historic or 
architecturally meritorious buildings which are to be preserved, the 
design of the new development should be aimed at retaining as much of 
the significant fabric of the Development Area as is possible consistent 
with the goals of the Plan.



Sec. 910.16  Land use.

    (a) Development within the Development Area shall provide, and 
stimulate in neighboring areas, more lively and varied shopping, 
cultural, entertainment, and residential opportunities, as well as high 
quality office uses.
    (b) That portion of the Development Area west of the FBI Building is 
designated for commercial development, primarily office and hotel uses 
with attendant retail and service uses. That portion of the Development 
Area east of the FBI Building is designated for development with 
residential uses, office, institutional and entertainment uses supported 
by service and retail uses.
    (c) The kinds of uses and their location within the Development Area 
shall be directly related to creating a lively atmosphere and to 
promoting an active street life throughout the day, evening, and 
weekend.
    (d) Introduction or expansion of retail uses shall be encouraged as 
both reinforcement of existing retail uses and creation of new retail 
activities.
    (e) While recognized as important to the commercial life of any 
inner city, uses that do not generate lively activities are discouraged 
from locating along those street fronts within the Development Area 
which are considered major pedestrian thoroughfares.



Sec. 910.17  Pedestrian circulation system.

    (a) An efficient, pleasant, and stimulating pedestrian circulation 
system shall be developed to link the components of the Development Area 
with the Mall and the city's downtown.
    (b) Pedestrian circulation systems shall be designed to provide 
pedestrian comfort and convenience, to create more linear footage of 
storefront, to encourage recognition of the location of various METRO 
stops or other mass transit locations, and to link various historic and 
architecturally significant buildings, sites, and monuments which are 
scattered throughout and beyond the Historic Site.
    (c) Curb cuts across the north sidewalk areas of Pennsylvania Avenue 
shall be prohibited in order to reinforce its importance as the major 
pedestrian thoroughfare of the Development Area.

[[Page 196]]



Sec. 910.18  Vehicular circulation and storage systems.

    (a) Improvement of the existing vehicular storage and circulation 
system is necessary in order to create the balanced transportation 
system called for in the Plan, which recognizes the need to maintain air 
quality, to encourage the use of mass transit, and to provide sufficient 
off-street parking and loading to make development economically viable.
    (b) The general policies of the Corporation are as follows:
    (1) To reduce impedance to traffic movement created by service 
vehicles by requiring well-integrated off-street loading facilities in 
terms of location of loading berths and access points on a block-by-
block basis;
    (2) To control the number of vehicles in the Development Area by 
limiting the number of parking spaces per development; and
    (3) To encourage the use of public transportation by linking new 
development to transit stops through the system of pedestrian ways.



    Subpart C_Standards Uniformly Applicable to the Development Area



Sec. 910.30  General.

    In addition to the specific requirements and recommendations 
contained in Square Guidelines for the applicable coordinated planning 
area, the Standards set forth in this subpart C are uniformly applicable 
to any development within the Development Area.



Sec. 910.31  High architectural quality.

    Development must maintain a uniformly high standard of architecture, 
representative of the best contemporary design and planning concepts. 
Great care and sensitivity must be shown in the architectural treatment 
of new buildings, particularly in terms of massing, facade design 
(including materials, composition, and detailing), the ground floor and 
sidewalk pedestrian environment, interior public spaces, and provisions 
for pedestrian and vehicular access. Special design considerations for 
each coordinated planning area are set forth in Square Guidelines.



Sec. 910.32  Historic preservation.

    Rehabilitation of buildings within the Development Area, which, 
according to the Plan and the Historic Preservation Plan of the 
Corporation, are specified for preservation, shall be acomplished (a) in 
accordance with the Secretary of the Interior's ``Standards for Historic 
Preservation Projects'': (36 CFR part 68), and (b) consultation with the 
State Historic Preservation Officer for the District of Columbia.



Sec. 910.33  Off-street parking.

    (a) Off-street parking as a principal use is prohibited, although 
off-street parking as an accessory use in a development (such as a 
below-grade parking garage) is permitted.
    (b) All parking spaces shall be located below grade level.
    (c) The minimum number of parking spaces shall be provided in 
accordance with DC Zoning Regulations.
    (d) The maximum number of parking spaces permitted by PADC for a 
development may not exceed the aggregate of the number of spaces allowed 
for each use within the development. The schedule of limitations for 
parking spaces is as follows:
    (1) Hotel: One parking space for each four sleeping rooms or suites;
    (2) Places of public assemblage other than hotels: (i.e., arena, 
armory, theater, auditorium, community center, convention center, 
concert hall, etc.) one parking space for each ten seats of occupancy 
capacity for the first 10,000 seats plus one for each 20 seats above 
10,000: Provided, that where seats are not fixed, each seven square feet 
of gross floor area usable for seating shall be considered one seat;
    (3) Retail, trade, and service establishments: one parking space for 
each 750 square feet of gross floor area;
    (4) Residential: One parking space for each 1.2 units;
    (5) Offices: One parking space for each 1,800 square feet of gross 
floor area.

[[Page 197]]



Sec. 910.34  Accommodations for the physically handicapped.

    (a) Every development shall incorporate features which will make the 
development accessible by the physically handicapped. The standards in 
the ``American Standard Specifications for Making Buildings and 
Facilities Accessible to, and Usable by the Physically Handicapped,'' 
published by the American National Standards Institute, Inc. (ANSI A 
117.1-1961 (1971)), are recommended.
    (b) Where a development includes a historic structure, the Advisory 
Council on Historic Preservation's policy, ``Supplementary Guidance--
Handicapped Access to Historic Properties,'' (45 FR 9757, Feb. 13, 
1980), should be observed.



Sec. 910.35  Fine arts.

    Fine arts, including sculpture, paintings, decorative windows, bas-
reliefs, ornamental fountains, murals, tapestries, and the like, should 
be included in each development. PADC encourages commissions for 
original works of art which are appropriate for the development. For 
information and guidance, a reasonable expenditure for fine arts is 
deemed to be one half of one percent of the total construction cost of 
the development.



Sec. 910.36  Energy conservation.

    All new development shall be designed to be economical in energy 
consumption. The Energy Guidelines of the Corporation, and the District 
of Columbia Energy Conservation Code Act of 1979 and its implementing 
regulations set forth the appropriate standards to be observed.



Sec. 910.37  Fire and life safety.

    As a complementary action to satisfying required District of 
Columbia codes related to fire safety, it is highly recommended that all 
new development be guided by standards of the NFPA Codes for fire and 
life safety and that all buildings be equipped with an approved 
sprinkler system.



Sec. 910.38  Building exterior illumination.

    Exterior illumination of a building shall be in conformance with the 
standards specified in the Pennsylvania Avenue Lighting Plan of the 
Corporation.



                       Subpart D_Glossary of Terms



Sec. 910.50  General.

    The definitions appearing in this Glossary of Terms are applicable 
to this part 910 and to the Square Guidelines. In addition, definitions 
appearing in section 1201 of the Zoning Regulations of the District of 
Columbia are also applicable. Where a conflict between this subpart and 
section 1201 of the Zoning Regulations arises in terminology or 
interpretation, this subpart shall be controlling.



Sec. 910.51  Access.

    Access, when used in reference to parking or loading, means both 
ingress and egress.



Sec. 910.52  Buildable area.

    Buildable area means that portion of the established development 
parcel which can be devoted to buildings and structures. Generally, this 
area is bounded by any applicable building restriction lines, right-of-
way lines and development parcel lines. It shall be the buildable area 
of a development parcel rather than ``lot,'' as it is established in the 
DC Zoning Regulations, that will be utilized to establish the maximum 
gross floor area of a development within specified portions of the 
Development Area.



Sec. 910.53  Building restriction line.

    Building restriction line means a line beyond which an exterior wall 
of any building of a development may not be constructed or project, 
except that architectural articulation, minor architectural 
embellishments, and subsurface projections are permitted.



Sec. 910.54  Build-to height.

    Build-to height means a specified minimum height of development to 
which the exterior wall of a building in a development must rise. Minor 
deviations from the build-to height for architectural embellishments and 
articulations of the cornice and roof level are permitted, unless 
otherwise prohibited by the applicable Square Guidelines or the

[[Page 198]]

District of Columbia's codes and regulations.



Sec. 910.55  Build-to line.

    Build-to line means a line with which the exterior wall of a 
building in a development is required to coincide. Minor deviations from 
the build-to line for such architectural features as weather protection, 
recesses, niches, ornamental projections, entrance bays, or other 
articulations of the facade are permitted, unless otherwise prohibited 
by the applicable Square Guidelines or the District of Columbia's codes 
and regulations.



Sec. 910.56  Coordinated planning area.

    Coordinated planning area means a Square, portion of a Square, or 
group of Squares that is composed of one or more development parcels and 
is treated as a unit under Square Guidelines in order to achieve 
comprehensive planning and design.



Sec. 910.57  Curb-cut.

    Curb-cut means that portion of the curb and sidewalk over which 
vehicular access is allowed. The number of access lanes for each curb-
cut shall be specified in each set of Square Guidelines.



Sec. 910.58  Development.

    Development means a structure, including a building, planned unit 
development, or project resulting from the process of planning, land 
acquisition, demolition, construction, or rehabilitation consistent with 
the objectives and goals of the Plan.



Sec. 910.59  Development parcel.

    Development parcel means an area of land established by the 
Corporation to be a minimum site on which a development may occur under 
the Plan and any applicable Square Guidelines adopted by the 
Corporation. A development parcel does not need to be under the 
ownership of a single individual or entity. A proposal for a development 
parcel may be formulated by any number of individuals or entities, so 
long as it accommodates the needs and requirements of affirmative 
action, historic preservation and other policies of the Corporation, and 
at the same time responds to the goals of comprehensive planning and 
design for that particular coordinated planning area.



Sec. 910.60  Gross floor area.

    Gross floor area is defined in section 1201, Zoning Regulations of 
the District of Columbia and generally means the sum of the gross 
horizontal areas of the several floors from the ground floor up of all 
buildings of a development occurring on a lot. Gross floor area shall be 
measured from the exterior faces of exterior walls and from the center 
line of walls separating two buildings.



Sec. 910.61  Height of development.

    Height of development means the vertical distance measured from a 
specified point at the curb level to the highest point of the roof or 
parapet of the development, whichever is higher, exclusive of all roof 
structures except as otherwise specified.



Sec. 910.62  The Plan.

    The Plan means The Pennsylvania Avenue Plan--1974, as amended, and 
prepared pursuant to Pub. L. 92-578, 86 Stat. 1266 (40 U.S.C. 871), and 
the document which sets forth the development concepts upon which this 
part 910 and Square Guidelines are based.



Sec. 910.63  Rehabilitation.

    Rehabilitation means the process of adapting improvements on real 
property to make possible an efficient contemporary use achieved by 
means of a combination of construction, repair, or alteration, as well 
as restoration and replication of those portions and features of the 
property that are significant to its historic, architectural, and 
cultural values, consistent with the goals and objectives of the Plan.



Sec. 910.64  Replication.

    Replication means the process of using modern methods and materials 
to reproduce the exact form and details of a vanished building, 
structure, object, or portion thereof, as it appeared at a particular 
period of time, and consistent with the objectives and goals of the 
Plan.

[[Page 199]]



Sec. 910.65  Restoration.

    Restoration means the process of accurately recovering the form and 
details of a property as they appeared at a particular period of time by 
means of removal of later work and the replacement of missing original 
work, consistent with the objectives and goals of the Plan.



Sec. 910.66  Sidewalk setback.

    Sidewalk setback means that area between a building restriction line 
and the right-of-way of a street into which projections except 
architectural articulations, minor architectural embellishments, and 
subsurface structures, are prohibited. The area is to be dedicated to 
open space activities related to the public improvements program of the 
Pennsylvania Avenue Development Corporation. Subsurface structures may 
intrude into the area if they are in compliance with the Square 
Guidelines.



Sec. 910.67  Square guidelines.

    Square Guidelines establish the Corporation's specific intent with 
regard to design and development objectives relative to each individual 
coordinated planning area.



Sec. 910.68  Storefront.

    Storefront means the street level frontage relating to a single 
establishment.



Sec. 910.69  Structural bay.

    Structural bay means the distance or span from one vertical 
structural member fronting on a street to the immediately adjacent 
vertical structural member fronting on the same street.



Sec. 910.70  Vault.

    A vault means an enclosure of space beneath the surface of the 
public space or sidewalk setback, except that the term vault shall not 
include public utility structures.



Sec. 910.71  Weather protection.

    Weather protection means a seasonal or permanent shelter to protect 
pedestrians from sun or precipitation, consisting of arcades, canopies, 
awnings, or other coverings.

                        PARTS 911	999 [RESERVED]

[[Page 201]]



                        CHAPTER X--PRESIDIO TRUST




  --------------------------------------------------------------------
Part                                                                Page
1001            General provisions..........................         203
1002            Resource protection, public use and 
                    recreation..............................         208
1004            Vehicles and traffic safety.................         221
1005            Commercial and private operations...........         225
1007            Requests under the Freedom of Information 
                    Act.....................................         228
1008            Requests under the Privacy Act..............         237
1009            Administrative claims under the Federal Tort 
                    Claims Act..............................         246
1010            Environmental quality.......................         248
1011            Debt collection.............................         256

[[Page 203]]



PART 1001_GENERAL PROVISIONS--Table of Contents




Sec.
1001.1 Purpose.
1001.2 Applicability and scope.
1001.3 Penalties.
1001.4 Definitions.
1001.5 Closures and public use limits.
1001.6 Permits.
1001.7 Public notice.
1001.8 Information collection.
1001.10 Symbolic signs.

    Authority: Pub. L. 104-333, 110 Stat. 4097 (16 U.S.C. 460bb note).

    Source: 63 FR 35697, June 30, 1998, unless otherwise noted.



Sec. 1001.1  Purpose.

    (a) The regulations in this chapter provide for the proper use, 
management, government and protection of persons, property and natural 
and cultural resources within the area under the jurisdiction of the 
Presidio Trust.
    (b) The regulations in this chapter will be utilized to fulfill the 
statutory purposes of the Presidio Trust Act.



Sec. 1001.2  Applicability and scope.

    (a) The regulations contained in this chapter apply to all persons 
entering, using, visiting, or otherwise within the boundaries of 
federally owned lands and waters administered by the Presidio Trust.
    (b) The regulations contained in Parts 1002, 1004 and 1005 of this 
chapter shall not be construed to prohibit administrative activities 
conducted by the Presidio Trust, or its agents, in accordance with 
approved policies of the Presidio Trust, or in emergency operations 
involving threats to life, property, or resources of the area 
administered by the Presidio Trust.
    (c) The regulations in this chapter are intended to treat a 
mobility-impaired person using a manual or motorized wheelchair as a 
pedestrian and are not intended to restrict the activities of such a 
person beyond the degree that the activities of a pedestrian are 
restricted by the same regulations.



Sec. 1001.3  Penalties.

    A person convicted of violating a provision of the regulations 
contained in Parts 1001, 1002, 1004 and 1005 of this chapter, within the 
area administered by the Presidio Trust, shall be punished by a fine as 
provided by law, or by imprisonment not exceeding 6 months, or both, and 
shall be adjudged to pay all costs of the proceedings.



Sec. 1001.4  Definitions.

    The following definitions shall apply to this chapter, unless 
modified by the definitions for a specific part or regulation:
    Abandonment means the voluntary relinquishment of property with no 
intent to retain possession.
    Administrative activities means those activities conducted under the 
authority of the Presidio Trust for the purpose of safeguarding persons 
or property, implementing management plans and policies developed in 
accordance and consistent with the regulations in this chapter, or 
repairing or maintaining government facilities.
    Airboat means a vessel that is supported by the buoyancy of its hull 
and powered by a propeller or fan above the waterline. This definition 
should not be construed to mean a ``hovercraft,'' that is supported by a 
fan-generated air cushion.
    Aircraft means a device that is used or intended to be used for 
human flight in the air, including powerless flight.
    Archeological resource means material remains of past human life or 
activities that are of archeological interest and are at least 50 years 
of age. This term includes, but shall not be limited to, objects made or 
used by humans, such as pottery, basketry, bottles, weapons, weapon 
projectiles, tools, structures or portions of structures, pit houses, 
rock paintings, rock carvings, intaglios, or any portion or piece of the 
foregoing items, and the physical site, location or context in which 
they are found, or human skeletal materials or graves.
    Authorized emergency vehicle means a vehicle in official use for 
emergency purposes by a Federal agency or an emergency vehicle as 
defined by State law.
    Authorized person means an employee or agent of the Presidio Trust 
with delegated authority to enforce the provisions of this chapter.
    Bicycle means every device propelled solely by human power upon 
which a

[[Page 204]]

person or persons may ride on land, having one, two, or more wheels, 
except a manual wheelchair.
    Board means the Board of Directors of the Presidio Trust or its 
designee.
    Boundary means the limits of lands or waters administered by the 
Presidio Trust as specified by Congress, or denoted by presidential 
proclamation, or recorded in the records of a state or political 
subdivision in accordance with applicable law, or published pursuant to 
law, or otherwise published or posted by the Presidio Trust.
    Camping means the erecting of a tent or shelter of natural or 
synthetic material, preparing a sleeping bag or other bedding material 
for use, parking of a motor vehicle, motor home or trailer, or mooring 
of a vessel for the apparent purpose of overnight occupancy.
    Carry means to wear, bear, or have on or about the person.
    Controlled substance means a drug or other substance, or immediate 
precursor, included in schedules I, II, III, IV, or V of part B of the 
Controlled Substance Act (21 U.S.C. 812) or a drug or substance added to 
these schedules pursuant to the terms of the Act.
    Cultural resource means material remains of past human life or 
activities that are of significant cultural interest and are less than 
50 years of age. This term includes, but shall not be limited to, 
objects made or used by humans, such as pottery, basketry, bottles, 
weapons, weapon projectiles, tools, structures or portions of 
structures, or any portion or piece of the foregoing items, and the 
physical site, location, or context in which they are found, or human 
skeletal materials or graves.
    Developed area means roads, parking areas, picnic areas, 
campgrounds, or other structures, facilities or lands located within 
development and historic zones depicted on the land management and use 
map for the area administered by the Presidio Trust.
    Downed aircraft means an aircraft that cannot become airborne as a 
result of mechanical failure, fire, or accident.
    Executive Director means the Executive Director of the Presidio 
Trust or his or her designee.
    Firearm means a loaded or unloaded pistol, rifle, shotgun or other 
weapon which is designed to, or may be readily converted to, expel a 
projectile by the ignition of a propellant.
    Fish means any member of the subclasses Agnatha, Chondrichthyes, or 
Osteichthyes, or any mollusk or crustacean found in salt water.
    Fishing means taking or attempting to take fish.
    Hunting means taking or attempting to take wildlife, except 
trapping.
    Legislative jurisdiction means lands and waters under the exclusive 
or concurrent jurisdiction of the United States.
    Manual wheelchair means a device that is propelled by human power, 
designed for and used by a mobility-impaired person.
    Motor vehicle means every vehicle that is self-propelled and every 
vehicle that is propelled by electric power, but not operated on rails 
or upon water, except a snowmobile and a motorized wheelchair.
    Motorcycle means every motor vehicle having a seat for the use of 
the rider and designed to travel on not more than three wheels in 
contact with the ground, but excluding a tractor.
    Motorized wheelchair means a self-propelled wheeled device, designed 
solely for and used by a mobility-impaired person for locomotion, that 
is both capable of and suitable for use in indoor pedestrian areas.
    Net means a seine, weir, net wire, fish trap, or other implement 
designed to entrap fish, except a hand-held landing net used to retrieve 
fish taken by hook and line.
    Nondeveloped area means all lands and waters within the area 
administered by the Presidio Trust other than developed areas.
    Operator means a person who operates, drives, controls, otherwise 
has charge of or is in actual physical control of a mechanical mode of 
transportation or any other mechanical equipment.
    Pack animal means horses, burros, mules or other hoofed mammals when 
designated as pack animals by the Executive Director.
    Permit means a written authorization to engage in uses or activities 
that are otherwise prohibited, restricted, or regulated.

[[Page 205]]

    Person means an individual, firm, corporation, society, association, 
partnership, or private or public body.
    Pet means a dog, cat or any animal that has been domesticated.
    Possession means exercising direct physical control or dominion, 
with or without ownership, over property, or archeological, cultural or 
natural resources.
    Practitioner means a physician, dentist, veterinarian, scientific 
investigator, pharmacy, hospital or other person licensed, registered or 
otherwise permitted by the United States or the jurisdiction in which 
such person practices to distribute or possess a controlled substance in 
the course of professional practice.
    Presidio Trust and Trust mean the wholly-owned federal government 
corporation created by the Presidio Trust Act.
    Presidio Trust Act means Title I of Public Law 104-333, 110 Stat. 
4097, as the same may be amended.
    Presidio Trust road means the main-traveled surface of a roadway 
open to motor vehicles, owned, controlled or otherwise administered by 
the Presidio Trust.
    Printed matter means message-bearing textual printed material such 
as books, pamphlets, magazines and leaflets and does not include other 
forms of merchandise, such as posters, coffee mugs, sunglasses, audio or 
videotapes, T-shirts, hats, ties, shorts and other clothing articles.
    Public use limit means the number of persons; number and type of 
animals; amount, size and type of equipment, vessels, mechanical modes 
of conveyance, or food/beverage containers allowed to enter, be brought 
into, remain in, or be used within a designated geographic area or 
facility; or the length of time a designated geographic area or facility 
may be occupied.
    Refuse means trash, garbage, rubbish, waste papers, bottles or cans, 
debris, litter, oil, solvents, liquid waste, or other discarded 
materials.
    Services means, but is not limited to, meals and lodging, labor, 
professional services, transportation, admission to exhibits, use of 
telephone or other utilities, or any act for which payment is 
customarily received.
    Smoking means the carrying of lighted cigarettes, cigars or pipes, 
or the intentional and direct inhalation of smoke from these objects.
    Snowmobile means a self-propelled vehicle intended for travel 
primarily on snow, having a curb weight of not more than 1000 pounds 
(450 kg), driven by a track or tracks in contact with the snow, and 
steered by a ski or skis in contact with the snow.
    State means a State, territory, or possession of the United States.
    State law means the applicable and nonconflicting laws, statutes, 
regulations, ordinances, infractions and codes of the State(s) and 
political subdivision(s) within whose exterior boundaries the area 
administered by the Presidio Trust or a portion thereof is located.
    Take or taking means to pursue, hunt, harass, harm, shoot, trap, 
net, capture, collect, kill, wound, or attempt to do any of the 
aforementioned.
    Traffic means pedestrians, ridden or herded animals, vehicles and 
other conveyances, either singly or together while using any road, 
trail, street or other thoroughfare for purpose of travel.
    Traffic control device means a sign, signal, marking or other device 
placed or erected by, or with the concurrence of, the Executive Director 
for the purpose of regulating, warning, guiding or otherwise controlling 
traffic or regulating the parking of vehicles.
    Trap means a snare, trap, mesh, wire or other implement, object or 
mechanical device designed to entrap or kill animals other than fish.
    Trapping means taking or attempting to take wildlife with a trap.
    Underway means when a vessel is not at anchor, moored, made fast to 
the shore or docking facility, or aground.
    Unloaded, as applied to weapons and firearms, means that:
    (1) There is no unexpended shell, cartridge, or projectile in any 
chamber or cylinder of a firearm or in a clip or magazine inserted in or 
attached to a firearm;
    (2) A muzzle-loading weapon does not contain gun powder in the pan, 
or the percussion cap is not in place; and
    (3) Bows, crossbows, spear guns or any implement capable of 
discharging

[[Page 206]]

a missile or similar device by means of a loading or discharging 
mechanism, when that loading or discharging mechanism is not charged or 
drawn.
    Vehicle means every device in, upon, or by which a person or 
property is or may be transported or drawn on land, except snowmobiles 
and devices moved by human power or used exclusively upon stationary 
rails or track.
    Vessel means every type or description of craft, other than a 
seaplane on the water, used or capable of being used as a means of 
transportation on water, including a buoyant device permitting or 
capable of free flotation.
    Weapon means a firearm, compressed gas or spring-powered pistol or 
rifle, bow and arrow, crossbow, blowgun, speargun, hand-thrown spear, 
slingshot, irritant gas device, explosive device, or any other implement 
designed to discharge missiles, and includes a weapon the possession of 
which is prohibited under the laws of the State in which the area 
administered by the Presidio Trust or portion thereof is located.
    Wildlife means any member of the animal kingdom and includes a part, 
product, egg or offspring thereof, or the dead body or part thereof, 
except fish.



Sec. 1001.5  Closures and public use limits.

    (a) Consistent with applicable legislation and Federal 
administrative policies, and based upon a determination that such action 
is necessary for the maintenance of public health and safety, protection 
of environmental or scenic values, protection of natural or cultural 
resources, aid to scientific research, implementation of management 
responsibilities, equitable allocation and use of facilities, or the 
avoidance of conflict among visitor use activities, the Board may:
    (1) Establish, for all or a portion of the area administered by the 
Presidio Trust, a reasonable schedule of visiting hours, impose public 
use limits, or close all or a portion of the area administered by the 
Presidio Trust to all public use or to a specific use or activity.
    (2) Designate areas for a specific use or activity, or impose 
conditions or restrictions on a use or activity.
    (3) Terminate a restriction, limit, closure, designation, condition, 
or visiting hour restriction imposed under paragraph (a)(1) or (2) of 
this section.
    (b) Except in emergency situations, a closure, designation, use or 
activity restriction or condition, or the termination or relaxation of 
such, which is of a nature, magnitude and duration that will result in a 
significant alteration in the public use pattern of the area 
administered by the Presidio Trust, adversely affect the natural, 
aesthetic, scenic or cultural values of the area administered by the 
Presidio Trust, require a long-term or significant modification in the 
resource management objectives of the area administered by the Presidio 
Trust, or is of a highly controversial nature, shall be published as 
rulemaking in the Federal Register.
    (c) Except in emergency situations, prior to implementing or 
terminating a restriction, condition, public use limit or closure, the 
Board shall prepare a written determination justifying the action. That 
determination shall set forth the reason(s) the restriction, condition, 
public use limit or closure authorized by paragraph (a) of this section 
has been established, and an explanation of why less restrictive 
measures will not suffice, or in the case of a termination of a 
restriction, condition, public use limit or closure previously 
established under paragraph (a) of this section, a determination as to 
why the restriction is no longer necessary and a finding that the 
termination will not adversely impact resources of the area administered 
by the Presidio Trust. This determination shall be available to the 
public upon request.
    (d) To implement a public use limit, the Board may establish a 
permit, registration, or reservation system. Permits shall be issued in 
accordance with the criteria and procedures of Sec. 1001.6.
    (e) Except in emergency situations, the public will be informed of 
closures, designations, and use or activity restrictions or conditions, 
visiting hours, public use limits, public use limit procedures, and the 
termination or relaxation of such, in accordance with Sec. 1001.7.
    (f) Violating a closure, designation, use or activity restriction or 
condition,

[[Page 207]]

schedule of visiting hours, or public use limit is prohibited.



Sec. 1001.6  Permits.

    (a) When authorized by regulations set forth in this chapter, the 
Executive Director may issue a permit to authorize an otherwise 
prohibited or restricted activity or impose a public use limit. The 
activity authorized by a permit shall be consistent with applicable 
legislation, Federal regulations and administrative policies, and based 
upon a determination that public health and safety, environmental or 
scenic values, natural or cultural resources, scientific research, 
implementation of management responsibilities, proper allocation and use 
of facilities, or the avoidance of conflict among visitor use activities 
will not be adversely impacted.
    (b) Except as otherwise provided, application for a permit shall be 
submitted to the Executive Director during normal business hours.
    (c) The public will be informed of the existence of a permit 
requirement in accordance with Sec. 1001.7.
    (d) Unless otherwise provided for by the regulations in this 
chapter, the Executive Director shall deny a permit that has been 
properly applied for only upon a determination that the designated 
capacity for an area or facility would be exceeded; or that one or more 
of the factors set forth in paragraph (a) of this section would be 
adversely impacted. The basis for denial shall be provided to the 
applicant upon request.
    (e) The Executive Director shall include in a permit the terms and 
conditions that the Executive Director deems necessary to protect 
resources of the area administered by the Presidio Trust or public 
safety and may also include terms or conditions established pursuant to 
the authority of any other section of this chapter.
    (f) A compilation of those activities requiring a permit shall be 
maintained by the Executive Director and available to the public upon 
request.
    (g) The following are prohibited:
    (1) Engaging in an activity subject to a permit requirement imposed 
pursuant to this section without obtaining a permit; or
    (2) Violating a term or condition of a permit issued pursuant to 
this section.
    (h) Violating a term or condition of a permit issued pursuant to 
this section may also result in the suspension or revocation of the 
permit by the Executive Director.



Sec. 1001.7  Public notice.

    (a) Whenever the authority of Sec. 1001.5(a) is invoked to restrict 
or control a public use or activity, to relax or revoke an existing 
restriction or control, to designate all or a portion of the area 
administered by the Presidio Trust as open or closed, or to require a 
permit to implement a public use limit, the public shall be notified by 
one or more of the following methods:
    (1) Signs posted at conspicuous locations, such as normal points of 
entry and reasonable intervals along the boundary of the affected 
locale.
    (2) Maps available in the office of the Presidio Trust and other 
places convenient to the public.
    (3) Publication in a newspaper of general circulation in the 
affected area.
    (4) Other appropriate methods, such as the removal of closure signs, 
use of electronic media, brochures, maps and handouts.
    (b) In addition to the above-described notification procedures, the 
Board shall compile in writing all the designations, closures, permit 
requirements and other restrictions imposed under discretionary 
authority. This compilation shall be updated annually and made available 
to the public upon request.



Sec. 1001.8  Information collection.

    The information collection requirements contained in 36 CFR 1001.5, 
1002.5, 1002.10, 1002.12, 1002.17, 1002.33, 1002.38, 1002.50, 1002.51, 
1002.52, 1002.60, 1002.61, 1002.62, 1004.4 and 1004.11 have been 
approved by the Office of Management and Budget under 44 U.S.C. 3501 et 
seq., and assigned clearance number 1024-0026. This information is being 
collected to provide the Executive Director data necessary to issue 
permits for special uses of the area administered by the Presidio Trust 
and to obtain notification of accidents that occur within the area 
administered by the Presidio Trust. This information will be used to 
grant administrative benefits

[[Page 208]]

and to facilitate prompt emergency response to accidents. In 36 CFR 
1002.33 and 1004.4, the obligation to respond is mandatory; in all other 
sections the obligation to respond is required in order to obtain a 
benefit.



Sec. 1001.10  Symbolic signs.

    (a) The signs pictured in 36 CFR 1.10 provide general information 
and regulatory guidance in the area administered by the Presidio Trust. 
Certain of the signs designate activities that are either allowed or 
prohibited. Activities symbolized by a sign bearing a slash mark are 
prohibited.
    (b) The use of other types of signs not herein depicted is not 
precluded.



PART 1002_RESOURCE PROTECTION, PUBLIC USE AND RECREATION--Table of Contents




Sec.
1002.1 Preservation of natural, cultural and archeological resources.
1002.2 Wildlife protection.
1002.3 Fishing.
1002.4 Weapons, traps and nets.
1002.5 Research specimens.
1002.10 Camping and food storage.
1002.11 Picnicking.
1002.12 Audio disturbances.
1002.13 Fires.
1002.14 Sanitation and refuse.
1002.15 Pets.
1002.16 Horses and pack animals.
1002.17 Aircraft and air delivery.
1002.18 Snowmobiles.
1002.19 Winter activities.
1002.20 Skating, skateboards and similar devices.
1002.21 Smoking.
1002.22 Property.
1002.23 Recreation fees.
1002.30 Misappropriation of property and services.
1002.31 Trespassing, tampering and vandalism.
1002.32 Interfering with agency functions.
1002.33 Report of injury or damage.
1002.34 Disorderly conduct.
1002.35 Alcoholic beverages and controlled substances.
1002.36 Gambling.
1002.37 Noncommercial soliciting.
1002.38 Explosives.
1002.50 Special events.
1002.51 Public assemblies, meetings.
1002.52 Sale or distribution of printed matter.
1002.60 Livestock use and agriculture.
1002.61 Residing on Federal lands.
1002.62 Memorialization.
1002.63 Boating and water use activities.

    Authority: Pub. L. 104-333, 110 Stat. 4097 (16 U.S.C. 460bb note).

    Source: 63 FR 35700, June 30, 1998, unless otherwise noted.



Sec. 1002.1  Preservation of natural, cultural and archeological resources.

    (a) Except as otherwise provided in this chapter, the following is 
prohibited:
    (1) Possessing, destroying, injuring, defacing, removing, digging, 
or disturbing from its natural state:
    (i) Living or dead wildlife or fish, or the parts or products 
thereof, such as antlers or nests.
    (ii) Plants or the parts or products thereof.
    (iii) Nonfossilized and fossilized paleontological specimens, 
cultural or archeological resources, or the parts thereof.
    (iv) A mineral resource or cave formation or the parts thereof.
    (2) Introducing wildlife, fish or plants, including their 
reproductive bodies, into an ecosystem within the area administered by 
the Presidio Trust.
    (3) Tossing, throwing or rolling rocks or other items inside caves 
or caverns, into valleys, canyons, or caverns, down hillsides or 
mountainsides, or into thermal features.
    (4) Using or possessing wood gathered from within the area 
administered by the Presidio Trust: Provided, however, that the Board 
may designate areas where dead wood on the ground may be collected for 
use as fuel for campfires within the area administered by the Presidio 
Trust.
    (5) Walking on, climbing, entering, ascending, descending, or 
traversing an archeological or cultural resource, monument, or statue, 
except in designated areas and under conditions established by the 
Board.
    (6) Possessing, destroying, injuring, defacing, removing, digging, 
or disturbing a structure or its furnishing or fixtures, or other 
cultural or archeological resources.
    (7) Possessing or using a mineral or metal detector, magnetometer, 
side

[[Page 209]]

scan sonar, other metal detecting device, or subbottom profiler. This 
paragraph does not apply to:
    (i) A device broken down and stored or packed to prevent its use 
while in the area administered by the Presidio Trust.
    (ii) Electronic equipment used primarily for the navigation and safe 
operation of boats and aircraft.
    (iii) Mineral or metal detectors, magnetometers, or subbottom 
profilers used for authorized scientific, mining, or administrative 
activities.
    (b) The Board may restrict hiking or pedestrian use to a designated 
trail or walkway system pursuant to Sec. Sec. 1001.5 and 1001.7 of 
this chapter. Leaving a trail or walkway to shortcut between portions of 
the same trail or walkway, or to shortcut to an adjacent trail or 
walkway in violation of designated restrictions is prohibited.
    (c)(1) The Board may designate certain fruits, berries, nuts, or 
unoccupied seashells which may be gathered by hand for personal use or 
consumption upon a written determination that the gathering or 
consumption will not adversely affect wildlife, the reproductive 
potential of a plant species, or otherwise adversely affect the 
resources of the area administered by the Presidio Trust.
    (2) The Board may:
    (i) Limit the size and quantity of the natural products that may be 
gathered or possessed for this purpose; or
    (ii) Limit the location where natural products may be gathered; or
    (iii) Restrict the possession and consumption of natural products to 
the area administered by the Presidio Trust.
    (3) The following are prohibited:
    (i) Gathering or possessing undesignated natural products.
    (ii) Gathering or possessing natural products in violation of the 
size or quantity limits designated by the Board.
    (iii) Unauthorized removal of natural products from the area 
administered by the Presidio Trust.
    (iv) Gathering natural products outside of designated areas.
    (v) Sale or commercial use of natural products.
    (d) This section shall not be construed as authorizing the taking, 
use or possession of fish, wildlife or plants for ceremonial or 
religious purposes, except where specifically authorized by Federal 
statutory law, treaty rights, or in accordance with Sec. 1002.2 or 
Sec. 1002.3.



Sec. 1002.2  Wildlife protection.

    (a) The following are prohibited:
    (1) The taking of wildlife.
    (2) The feeding, touching, teasing, frightening or intentional 
disturbing of wildlife nesting, breeding or other activities.
    (3) Possessing unlawfully taken wildlife or portions thereof.
    (b) Hunting and trapping. Hunting and trapping are prohibited within 
the area administered by the Presidio Trust.
    (c) The Board may establish conditions and procedures for 
transporting lawfully taken wildlife through the area administered by 
the Presidio Trust. Violation of these conditions and procedures is 
prohibited.
    (d) The Board may designate all or portions of the area administered 
by the Presidio Trust as closed to the viewing of wildlife with an 
artificial light. Use of an artificial light for purposes of viewing 
wildlife in closed areas is prohibited.
    (e) The regulations contained in this section apply, regardless of 
land ownership, on all lands and waters within the boundaries of the 
area administered by the Presidio Trust that are under the legislative 
jurisdiction of the United States.



Sec. 1002.3  Fishing.

    Fishing is prohibited within the area administered by the Presidio 
Trust.



Sec. 1002.4  Weapons, traps and nets.

    (a)(1) Except as otherwise provided in this section, the following 
are prohibited:
    (i) Possessing a weapon, trap or net.
    (ii) Carrying a weapon, trap or net.
    (iii) Using a weapon, trap or net.
    (2) Weapons, traps or nets may be carried, possessed or used:
    (i) At designated times and locations in the area administered by 
the Presidio Trust where:
    (A) The taking of wildlife is authorized by law in accordance with 
Sec. 1002.2;

[[Page 210]]

    (B) The taking of fish is authorized by law in accordance with Sec. 
1002.3.
    (ii) Within a residential dwelling. For purposes of this paragraph 
only, the term ``residential dwelling'' means a fixed housing structure 
which is either the principal residence of its occupants, or is occupied 
on a regular and recurring basis by its occupants as an alternate 
residence or vacation home.
    (3) Traps, nets and unloaded weapons may be possessed within a 
temporary lodging or mechanical mode of conveyance when such implements 
are rendered temporarily inoperable or are packed, cased or stored in a 
manner that will prevent their ready use.
    (b) Carrying or possessing a loaded weapon in a motor vehicle, 
vessel or other mode of transportation is prohibited, except that 
carrying or possessing a loaded weapon in a vessel is allowed when such 
vessel is not being propelled by machinery and is used as a shooting 
platform in accordance with Federal and State law.
    (c) The use of a weapon, trap or net in a manner that endangers 
persons or property is prohibited.
    (d) Authorized Federal, State and local law enforcement officers may 
carry firearms in the performance of their official duties.
    (e) The carrying or possessing of a weapon, trap or net in violation 
of applicable Federal and State laws is prohibited.
    (f) The regulations contained in this section apply, regardless of 
land ownership, on all lands and waters within the boundaries of the 
area administered by the Presidio Trust that are under the legislative 
jurisdiction of the United States.



Sec. 1002.5  Research specimens.

    (a) Taking plants, fish, wildlife, rocks or minerals except in 
accordance with other regulations of this chapter or pursuant to the 
terms and conditions of a specimen collection permit, is prohibited.
    (b) A specimen collection permit may be issued only to an official 
representative of a reputable scientific or educational institution or a 
State or Federal agency for the purpose of research, baseline 
inventories, monitoring, impact analysis, group study, or museum display 
when the Executive Director determines that the collection is necessary 
to the stated scientific or resource management goals of the institution 
or agency and that all applicable Federal and State permits have been 
acquired, and that the intended use of the specimens and their final 
disposal is in accordance with applicable law and Federal administrative 
policies. A permit shall not be issued if removal of the specimen would 
result in damage to other natural or cultural resources, affect 
adversely environmental or scenic values, or if the specimen is readily 
available outside of the area administered by the Presidio Trust.
    (c) A permit to take an endangered or threatened species listed 
pursuant to the Endangered Species Act, or similarly identified by the 
States, shall not be issued unless the species cannot be obtained 
outside of the area administered by the Presidio Trust and the primary 
purpose of the collection is to enhance the protection or management of 
the species.
    (d) A permit authorizing the killing of plants, fish or wildlife may 
be issued only when the Executive Director approves a written research 
proposal and determines that the collection will not be inconsistent 
with the purposes of the Presidio Trust Act and has the potential for 
conserving and perpetuating the species subject to collection.
    (e) Specimen collection permits shall contain the following 
conditions:
    (1) Specimens placed in displays or collections will bear official 
National Park Service museum labels and their catalog numbers will be 
registered in the National Park Service National Catalog.
    (2) Specimens and data derived from consumed specimens will be made 
available to the public and reports and publications resulting from a 
research specimen collection permit shall be filed with the Executive 
Director.
    (f) Violation of the terms and conditions of a permit issued in 
accordance with this section is prohibited and may result in the 
suspension or revocation of the permit.

[[Page 211]]



Sec. 1002.10  Camping and food storage.

    (a) The Board may require permits, designate sites or areas, and 
establish conditions for camping.
    (b) The following are prohibited:
    (1) Digging or leveling the ground at a campsite.
    (2) Leaving camping equipment, site alterations, or refuse after 
departing from the campsite.
    (3) Camping within 25 feet of a water hydrant or main road, or 
within 100 feet of a flowing stream, river or body of water, except as 
designated.
    (4) Creating or sustaining unreasonable noise between the hours of 
10:00 p.m. and 6:00 a.m., considering the nature and purpose of the 
actor's conduct, impact on visitors or tenants, location, and other 
factors which would govern the conduct of a reasonably prudent person 
under the circumstances.
    (5) The installation of permanent camping facilities.
    (6) Displaying wildlife carcasses or other remains or parts thereof.
    (7) Connecting to a utility system, except as designated.
    (8) Failing to obtain a permit, where required.
    (9) Violating conditions which may be established by the Board.
    (10) Camping outside of designated sites or areas.
    (c) Violation of the terms and conditions of a permit issued in 
accordance with this section is prohibited and may result in the 
suspension or revocation of the permit.
    (d) Food storage. The Board may designate all or a portion of the 
area administered by the Presidio Trust where food, lawfully taken fish 
or wildlife, garbage, and equipment used to cook or store food must be 
kept sealed in a vehicle, or in a camping unit that is constructed of 
solid, non-pliable material, or suspended at least 10 feet above the 
ground and 4 feet horizontally from a post, tree trunk, or other object, 
or shall be stored as otherwise designated. Violation of this 
restriction is prohibited. This restriction does not apply to food that 
is being transported, consumed, or prepared for consumption.



Sec. 1002.11  Picnicking.

    Picnicking is allowed, except in designated areas closed in 
accordance with Sec. 1001.5 of this chapter. The Board may establish 
conditions for picnicking in areas where picnicking is allowed. 
Picnicking in violation of established conditions is prohibited.



Sec. 1002.12  Audio disturbances.

    (a) The following are prohibited:
    (1) Operating motorized equipment or machinery such as an electric 
generating plant, motor vehicle, motorized toy, or an audio device, such 
as a radio, television set, tape deck or musical instrument, in a manner 
that exceeds a noise level of 60 decibels measured on the A-weighted 
scale at 50 feet; or that, if below that level, nevertheless makes noise 
which is unreasonable, considering the nature and purpose of the actor's 
conduct, location, time of day or night, purposes of the Presidio Trust 
Act, impact on visitors or tenants, and other factors that would govern 
the conduct of a reasonably prudent person under the circumstances.
    (2) In developed areas, operating a power saw, except pursuant to 
the terms and conditions of a permit.
    (3) In nondeveloped areas, operating any type of portable motor or 
engine, or device powered by a portable motor or engine, except pursuant 
to the terms and conditions of a permit.
    (4) Operating a public address system, except in connection with a 
public gathering or special event for which a permit has been issued 
pursuant to Sec. 1002.50 or Sec. 1002.51.
    (b) Violation of the terms and conditions of a permit issued in 
accordance with this section is prohibited and may result in the 
suspension or revocation of the permit.



Sec. 1002.13  Fires.

    (a) The following are prohibited:
    (1) Lighting or maintaining a fire, except in designated areas or 
receptacles and under conditions that may be established by the Board.
    (2) Using stoves or lanterns in violation of established 
restrictions.
    (3) Lighting, tending, or using a fire, stove or lantern in a manner 
that threatens, causes damage to, or results

[[Page 212]]

in the burning of property, real property or resources of the area 
administered by the Presidio Trust, or creates a public safety hazard.
    (4) Leaving a fire unattended.
    (5) Throwing or discarding lighted or smoldering material in a 
manner that threatens, causes damage to, or results in the burning of 
property or resources of the area administered by the Presidio Trust, or 
creates a public safety hazard.
    (b) Fires shall be extinguished upon termination of use and in 
accordance with such conditions as may be established by the Board. 
Violation of these conditions is prohibited.
    (c) During periods of high fire danger, the Executive Director may 
close all or a portion of the area administered by the Presidio Trust to 
the lighting or maintaining of a fire.
    (d) The regulations contained in this section apply, regardless of 
land ownership, on all lands and waters within the boundaries of the 
area administered by the Presidio Trust that are under the legislative 
jurisdiction of the United States.



Sec. 1002.14  Sanitation and refuse.

    (a) The following are prohibited:
    (1) Disposing of refuse in other than refuse receptacles.
    (2) Using government refuse receptacles or other refuse facilities 
for dumping household, commercial, or industrial refuse, brought as such 
from private or municipal property, except in accordance with conditions 
established by the Executive Director.
    (3) Depositing refuse in the plumbing fixtures or vaults of a toilet 
facility.
    (4) Draining refuse from a trailer or other vehicle, except in 
facilities provided for such purpose.
    (5) Bathing, or washing food, clothing, dishes, or other property at 
public water outlets, fixtures or pools, except at those designated for 
such purpose.
    (6) Polluting or contaminating waters or water courses within the 
area administered by the Presidio Trust.
    (7) Disposing of fish remains on land, or in waters within 200 feet 
of boat docks or designated swimming beaches, or within developed areas, 
except as otherwise designated.
    (8) In developed areas, the disposal of human body waste, except at 
designated locations or in fixtures provided for that purpose.
    (9) In nondeveloped areas, the disposal of human body waste within 
100 feet of a water source, high water mark of a body of water, or a 
campsite, or within sight of a trail, except as otherwise designated.
    (b) The Board may establish conditions concerning the disposal, 
containerization, or carryout of human body waste. Violation of these 
conditions is prohibited.



Sec. 1002.15  Pets.

    (a) The following are prohibited:
    (1) Possessing a pet in a public building, public transportation 
vehicle, or location designated as a swimming beach, or any structure or 
area closed to the possession of pets by the Board. This paragraph shall 
not apply to guide dogs accompanying visually impaired persons or 
hearing ear dogs accompanying hearing-impaired persons.
    (2) Failing to crate, cage, restrain on a leash which shall not 
exceed six feet in length, or otherwise physically confine a pet at all 
times.
    (3) Leaving a pet unattended and tied to an object, except in 
designated areas or under conditions which may be established by the 
Board.
    (4) Allowing a pet to make noise that is unreasonable considering 
location, time of day or night, impact on visitors or tenants, and other 
relevant factors, or that frightens wildlife by barking, howling, or 
making other noise.
    (5) Failing to comply with pet excrement disposal conditions which 
may be established by the Board.
    (b) Pets or feral animals that are running-at-large and observed by 
an authorized person in the act of killing, injuring or molesting 
humans, livestock, or wildlife may be destroyed if necessary for public 
safety or protection of wildlife, livestock, or other resources of the 
area administered by the Presidio Trust.
    (c) Pets running-at-large may be impounded, and the owner may be 
charged reasonable fees for kennel or boarding costs, feed, veterinarian 
fees, transportation costs, and disposal. An

[[Page 213]]

impounded pet may be put up for adoption or otherwise disposed of after 
being held for 72 hours from the time the owner was notified of capture 
or 72 hours from the time of capture if the owner is unknown.
    (d) Pets may be kept by residents of the area administered by the 
Presidio Trust consistent with the provisions of this section and in 
accordance with conditions which may be established by the Board. 
Violation of these conditions is prohibited.
    (e) This section does not apply to dogs used by authorized Federal, 
State and local law enforcement officers in the performance of their 
official duties.



Sec. 1002.16  Horses and pack animals.

    The following are prohibited:
    (a) The use of animals other than those designated as ``pack 
animals'' for purposes of transporting equipment.
    (b) The use of horses or pack animals outside of trails, routes or 
areas designated for their use.
    (c) The use of horses or pack animals on a Presidio Trust road, 
except where such travel is necessary to cross to or from designated 
trails, or areas, or privately owned property, and no alternative trails 
or routes have been designated; or when the road has been closed to 
motor vehicles.
    (d) Free-trailing or loose-herding of horses or pack animals on 
trails, except as designated.
    (e) Allowing horses or pack animals to proceed in excess of a slow 
walk when passing in the immediate vicinity of persons on foot or 
bicycle.
    (f) Obstructing a trail, or making an unreasonable noise or gesture, 
considering the nature and purpose of the actor's conduct, and other 
factors that would govern the conduct of a reasonably prudent person, 
while horses or pack animals are passing.
    (g) Violation of conditions which may be established by the Board 
concerning the use of horses or pack animals.



Sec. 1002.17  Aircraft and air delivery.

    (a) Delivering or retrieving a person or object by parachute, 
helicopter, or other airborne means, except in emergencies involving 
public safety or serious property loss, or pursuant to the terms and 
conditions of a permit, is prohibited.
    (b) The provisions of this section, other than paragraph (c) of this 
section, shall not be applicable to official business of the Federal 
government, or emergency rescues in accordance with the directions of 
the Executive Director, or to landings due to circumstances beyond the 
control of the operator.
    (c)(1) Except as provided in paragraph (c)(3) of this section, the 
owners of a downed aircraft shall remove the aircraft and all component 
parts thereof in accordance with procedures established by the Executive 
Director. In establishing removal procedures, the Executive Director is 
authorized to establish a reasonable date by which aircraft removal 
operations must be complete; determine times and means of access to and 
from the downed aircraft; and specify the manner or method of removal.
    (2) Failure to comply with procedures and conditions established 
under paragraph (c)(1) of this section is prohibited.
    (3) The Executive Director may waive the requirements of paragraph 
(c)(1) of this section or prohibit the removal of downed aircraft, upon 
a determination that the removal of downed aircraft would constitute an 
unacceptable risk to human life; the removal of a downed aircraft would 
result in extensive resource damage; or the removal of a downed aircraft 
is impracticable or impossible.
    (d) The use of aircraft shall be in accordance with regulations of 
the Federal Aviation Administration as found in 14 CFR chapter I.
    (e) The operation or use of hovercraft is prohibited.
    (f) Violation of the terms and conditions of a permit issued in 
accordance with this section is prohibited and may result in the 
suspension or revocation of the permit.
    (g) The use of devices designed to carry persons through the air in 
powerless flight is allowed at times and locations designated by the 
Board, pursuant to the terms and conditions of a permit.

[[Page 214]]



Sec. 1002.18  Snowmobiles.

    The use of snowmobiles is prohibited.



Sec. 1002.19  Winter activities.

    (a) Skiing, snowshoeing, ice skating, sledding, innertubing, 
tobogganing and similar winter sports are prohibited on Presidio Trust 
roads and in parking areas open to motor vehicle traffic, except as 
otherwise designated.
    (b) The towing of persons on skis, sleds, or other sliding devices 
by motor vehicle or snowmobile is prohibited, except in designated areas 
or routes.
    (c) Failure to abide by area designations or activity restrictions 
established under this section is prohibited.



Sec. 1002.20  Skating, skateboards and similar devices.

    Using roller skates, skateboards, roller skis, coasting vehicles, or 
similar devices is prohibited, except in designated areas.



Sec. 1002.21  Smoking.

    (a) The Board may designate a portion of the area administered by 
the Presidio Trust, or all or a portion of a building, structure or 
facility as closed to smoking when necessary to protect resources, 
reduce the risk of fire, or prevent conflicts among visitor use 
activities. Smoking in an area or location so designated is prohibited.
    (b) Smoking is prohibited within all caves and caverns.

[63 FR 35700, June 30, 1998, as amended at 71 FR 10610, Mar. 2, 2006]



Sec. 1002.22  Property.

    (a) The following are prohibited:
    (1) Abandoning property.
    (2) Leaving property unattended for longer than 24 hours, except in 
locations where longer time periods have been designated or in 
accordance with conditions established by the Board.
    (3) Failing to turn in found property to the Executive Director as 
soon as practicable.
    (b) Impoundment of property. (1) Property determined to be left 
unattended in excess of an allowed period of time may be impounded by 
the Executive Director.
    (2) Unattended property that interferes with visitor safety or 
orderly management of the area administered by the Presidio Trust, or 
that presents a threat to resources of the area administered by the 
Presidio Trust may be impounded by the Executive Director at any time.
    (3) Found or impounded property shall be inventoried to determine 
ownership and safeguard personal property.
    (4) The owner of record is responsible and liable for charges to the 
person who has removed, stored, or otherwise disposed of property 
impounded pursuant to this section; or the Executive Director may assess 
the owner reasonable fees for the impoundment and storage of property 
impounded pursuant to this section.
    (c) Disposition of property. (1) Unattended property impounded 
pursuant to this section shall be deemed to be abandoned unless claimed 
by the owner or an authorized representative thereof within 60 days. The 
60-day period shall begin when the rightful owner of the property has 
been notified, if the owner can be identified, or from the time the 
property was placed in the Executive Director's custody, if the owner 
cannot be identified.
    (2) Unclaimed, found property shall be stored for a minimum period 
of 60 days and, unless claimed by the owner or an authorized 
representative thereof, may be claimed by the finder, provided that the 
finder is not an employee of the Presidio Trust. Found property not 
claimed by the owner or an authorized representative or the finder shall 
be deemed abandoned.
    (3) Abandoned property shall be disposed of in accordance with law.
    (4) Property, including real property, located within the area 
administered by the Presidio Trust and owned by a deceased person, shall 
be disposed of in accordance with the laws of the State within whose 
exterior boundaries the property is located.
    (d) The regulations contained in paragraphs (a)(2), (b) and (c) of 
this section apply, regardless of land ownership, on all lands and 
waters within the boundaries of the area administered by the Presidio 
Trust that are under the legislative jurisdiction of the United States.

[63 FR 35700, June 30, 1998, as amended at 71 FR 10610, Mar. 2, 2006]

[[Page 215]]



Sec. 1002.23  Recreation fees.

    (a) Recreation fees shall be charged in the area administered by the 
Presidio Trust to the same extent that recreation fees have been 
established for the Golden Gate National Recreation Area in accordance 
with 36 CFR part 71.
    (b) Entering designated entrance fee areas or using specialized 
sites, facilities, equipment or services, or participating in group 
activities, recreation events, or other specialized recreation uses for 
which recreation fees have been established without paying the required 
fees and possessing the applicable permits is prohibited. Violation of 
the terms and conditions of a permit issued in accordance with this 
section is prohibited and may result in the suspension or revocation of 
the permit.
    (c) The Executive Director may, when in the public interest, 
prescribe periods during which the collection of recreation fees shall 
be suspended.



Sec. 1002.30  Misappropriation of property and services.

    (a) The following are prohibited:
    (1) Obtaining or exercising unlawful possession over the property of 
another with the purpose to deprive the owner of the property.
    (2) Obtaining property or services offered for sale or compensation 
without making payment or offering to pay.
    (3) Obtaining property or services offered for sale or compensation 
by means of deception or a statement of past, present or future fact 
that is instrumental in causing the wrongful transfer of property or 
services, or using stolen, forged, expired, revoked or fraudulently 
obtained credit cards or paying with negotiable paper on which payment 
is refused.
    (4) Concealing unpurchased merchandise on or about the person 
without the knowledge or consent of the seller or paying less than 
purchase price by deception.
    (5) Acquiring or possessing the property of another, with knowledge 
or reason to believe that the property is stolen.
    (b) The regulations contained in this section apply, regardless of 
land ownership, on all lands and waters within the boundaries of the 
area administered by the Presidio Trust that are under the legislative 
jurisdiction of the United States.



Sec. 1002.31  Trespassing, tampering and vandalism.

    (a) The following are prohibited:
    (1) Trespassing. Trespassing, entering or remaining in or upon 
property or real property not open to the public, except with the 
express invitation or consent of the person having lawful control of the 
property or real property.
    (2) Tampering. Tampering or attempting to tamper with property or 
real property, or moving, manipulating or setting in motion any of the 
parts thereof, except when such property is under one's lawful control 
or possession.
    (3) Vandalism. Destroying, injuring, defacing, or damaging property 
or real property.
    (b) The regulations contained in this section apply, regardless of 
land ownership, on all lands and waters within the boundaries of the 
area administered by the Presidio Trust that are under the legislative 
jurisdiction of the United States.



Sec. 1002.32  Interfering with agency functions.

    (a) The following are prohibited:
    (1) Interference. Threatening, resisting, intimidating, or 
intentionally interfering with a government employee or agent engaged in 
an official duty, or on account of the performance of an official duty.
    (2) Lawful order. Violating the lawful order of a government 
employee or agent authorized to maintain order and control public access 
and movement during fire fighting operations, search and rescue 
operations, wildlife management operations involving animals that pose a 
threat to public safety, law enforcement actions, and emergency 
operations that involve a threat to public safety or resources of the 
area administered by the Presidio Trust, or other activities where the 
control of public movement and activities is necessary to maintain order 
and public safety.
    (3) False information. Knowingly giving a false or fictitious report 
or other

[[Page 216]]

false information to an authorized person investigating an accident or 
violation of law or regulation, or on an application for a permit.
    (4) False Report. Knowingly giving a false report for the purpose of 
misleading a government employee or agent in the conduct of official 
duties, or making a false report that causes a response by the United 
States to a fictitious event.
    (b) The regulations contained in this section apply, regardless of 
land ownership, on all lands and waters within the boundaries of the 
area administered by the Presidio Trust that are under the legislative 
jurisdiction of the United States.



Sec. 1002.33  Report of injury or damage.

    (a) A person involved in an incident resulting in personal injury or 
property damage exceeding $300, other than an accident reportable under 
Sec. 1004.4 of this chapter, shall report the incident to the Executive 
Director as soon as possible. This notification does not satisfy 
reporting requirements imposed by applicable State law.
    (b) Failure to report an incident in accordance with paragraph (a) 
of this section is prohibited.



Sec. 1002.34  Disorderly conduct.

    (a) A person commits disorderly conduct when, with intent to cause 
public alarm, nuisance, jeopardy or violence, or knowingly or recklessly 
creating a risk thereof, such person commits any of the following 
prohibited acts:
    (1) Engages in fighting or threatening, or in violent behavior.
    (2) Uses language, an utterance, or gesture, or engages in a display 
or act that is obscene, physically threatening or menacing, or done in a 
manner that is likely to inflict injury or incite an immediate breach of 
the peace.
    (3) Makes noise that is unreasonable, considering the nature and 
purpose of the actor's conduct, location, time of day or night, and 
other factors that would govern the conduct of a reasonably prudent 
person under the circumstances.
    (4) Creates or maintains a hazardous or physically offensive 
condition.
    (b) The regulations contained in this section apply, regardless of 
land ownership, on all lands and waters within the boundaries of the 
area administered by the Presidio Trust that are under the legislative 
jurisdiction of the United States.



Sec. 1002.35  Alcoholic beverages and controlled substances.

    (a) Alcoholic beverages. (1) The use and possession of alcoholic 
beverages within the area administered by the Presidio Trust is allowed 
in accordance with the provisions of this section.
    (2) The following are prohibited:
    (i) The sale or gift of an alcoholic beverage to a person under 21 
years of age, except where allowed by State law. In a State where a 
lower minimum age is established, that age limit will apply for purposes 
of this paragraph.
    (ii) The possession of an alcoholic beverage by a person under 21 
years of age, except where allowed by State law. In a State where a 
lower minimum age is established, that age will apply for purposes of 
this paragraph.
    (3)(i) The Board may close all or a portion of a public use area or 
public facility within the area administered by the Presidio Trust to 
the consumption of alcoholic beverages and/or to the possession of a 
bottle, can or other receptacle containing an alcoholic beverage that is 
open, or that has been opened, or whose seal is broken or the contents 
of which have been partially removed. Provided however, that such a 
closure may only be implemented following a determination made by the 
Board that:
    (A) The consumption of an alcoholic beverage or the possession of an 
open container of an alcoholic beverage would be inappropriate 
considering other uses of the location and the purpose for which it is 
maintained or established; or
    (B) Incidents of aberrant behavior related to the consumption of 
alcoholic beverages are of such magnitude that the diligent application 
of the authorities in this section and Sec. Sec. 1001.5 and 1002.34 of 
this chapter, over a reasonable time period, does not alleviate the 
problem.
    (ii) A closure imposed by the Board does not apply to an open 
container of an alcoholic beverage that is stored in

[[Page 217]]

compliance with the provisions of Sec. 1004.14 of this chapter.
    (iii) Violating a closure imposed pursuant to this section is 
prohibited.
    (b) Controlled substances. The following are prohibited:
    (1) The delivery of a controlled substance, except when distribution 
is made by a practitioner in accordance with applicable law. For the 
purposes of this paragraph, delivery means the actual, attempted or 
constructive transfer of a controlled substance whether or not there 
exists an agency relationship.
    (2) The possession of a controlled substance, unless such substance 
was obtained by the possessor directly, or pursuant to a valid 
prescription or order, from a practitioner acting in the course of 
professional practice or otherwise allowed by Federal or State law.
    (c) Presence within the area administered by the Presidio Trust when 
under the influence of alcohol or a controlled substance to a degree 
that may endanger oneself or another person, or damage property or 
resources of the area administered by the Presidio Trust, is prohibited.



Sec. 1002.36  Gambling.

    (a) Gambling in any form, or the operation of gambling devices, is 
prohibited.
    (b) This regulation applies, regardless of land ownership, on all 
lands and waters within the boundaries of the area administered by the 
Presidio Trust that are under the legislative jurisdiction of the United 
States.



Sec. 1002.37  Noncommercial soliciting.

    Soliciting or demanding gifts, money, goods or services is 
prohibited, except pursuant to the terms and conditions of a permit that 
has been issued under Sec. 1002.50, Sec. 1002.51 or Sec. 1002.52.



Sec. 1002.38  Explosives.

    (a) Using, possessing, storing, or transporting explosives, blasting 
agents or explosive materials is prohibited, except pursuant to the 
terms and conditions of a permit. When permitted, the use, possession, 
storage and transportation shall be in accordance with applicable 
Federal and State laws.
    (b) Using or possessing fireworks and firecrackers is prohibited, 
except pursuant to the terms and conditions of a permit or in designated 
areas under such conditions as the Board may establish, and in 
accordance with applicable State law.
    (c) Violation of the conditions established by the Board or of the 
terms and conditions of a permit issued in accordance with this section 
is prohibited and may result in the suspension or revocation of the 
permit.



Sec. 1002.50  Special events.

    (a) Sports events, pageants, regattas, public spectator attractions, 
entertainments, ceremonies, and similar events are allowed: Provided, 
however, There is a meaningful association between the area administered 
by the Presidio Trust and the events, and the observance contributes to 
visitor understanding of the significance of the area administered by 
the Presidio Trust, and a permit therefor has been issued by the 
Executive Director. A permit shall be denied if such activities would:
    (1) Cause injury or damage to resources of the area administered by 
the Presidio Trust; or
    (2) Be contrary to the purposes of the Presidio Trust Act; or
    (3) Unreasonably interfere with interpretive, visitor service, or 
other program activities, or with the administrative activities of the 
Presidio Trust or the National Park Service; or
    (4) Substantially impair the operation of public use facilities or 
services of Presidio Trust concessioners or contractors; or
    (5) Present a clear and present danger to the public health and 
safety; or
    (6) Result in significant conflict with other existing uses.
    (b) An application for such a permit shall set forth the name of the 
applicant, the date, time, duration, nature and place of the proposed 
event, an estimate of the number of persons expected to attend, a 
statement of equipment and facilities to be used, and any other 
information required by the Executive Director. The application shall be 
submitted so as to reach the Executive Director at least 72 hours in 
advance of the proposed event.

[[Page 218]]

    (c) As a condition of permit issuance, the Executive Director may 
require:
    (1) The filing of a bond payable to the Presidio Trust, in an amount 
adequate to cover costs such as restoration, rehabilitation, and cleanup 
of the area used, and other costs resulting from the special event. In 
lieu of a bond, a permittee may elect to deposit cash equal to the 
amount of the required bond.
    (2) In addition to the requirements of paragraph (c)(1) of this 
section, the acquisition of liability insurance in which the United 
States is named as co-insured in an amount sufficient to protect the 
United States.
    (d) The permit may contain such conditions as are reasonably 
consistent with protection and use of the area administered by the 
Presidio Trust for the purposes of the Presidio Trust Act. It may also 
contain reasonable limitations on the equipment used and the time and 
area within which the event is allowed.
    (e) Violation of the terms and conditions of a permit issued in 
accordance with this section is prohibited and may result in the 
suspension or revocation of the permit.

[63 FR 35700, June 30, 1998, as amended at 71 FR 10610, Mar. 2, 2006]



Sec. 1002.51  Public assemblies, meetings.

    (a) Public assemblies, meetings, gatherings, demonstrations, parades 
and other public expressions of views are allowed within the area 
administered by the Presidio Trust, provided a permit therefor has been 
issued by the Executive Director.
    (b) An application for such a permit shall set forth the name of the 
applicant; the date, time, duration, nature and place of the proposed 
event; an estimate of the number of persons expected to attend; a 
statement of equipment and facilities to be used and any other 
information required by the permit application form.
    (c) The Executive Director shall, without unreasonable delay, issue 
a permit on proper application unless:
    (1) A prior application for a permit for the same time and place has 
been made that has been or will be granted and the activities authorized 
by that permit do not reasonably allow multiple occupancy of that 
particular area; or
    (2) It reasonably appears that the event will present a clear and 
present danger to the public health or safety; or
    (3) The event is of such nature or duration that it cannot 
reasonably be accommodated in the particular location applied for, 
considering such things as damage to resources or facilities of the area 
administered by the Presidio Trust, impairment of a protected area's 
atmosphere of peace and tranquillity, interference with program 
activities, or impairment of public use facilities.
    (d) If a permit is denied, the applicant shall be so informed in 
writing, with the reason(s) for the denial set forth.
    (e) The Board shall designate on a map, that shall be available in 
the office of the Presidio Trust, the locations available for public 
assemblies. Locations may be designated as not available only if such 
activities would:
    (1) Cause injury or damage to resources of the area administered by 
the Presidio Trust; or
    (2) Unreasonably impair the atmosphere of peace and tranquillity 
maintained in wilderness, natural, historic or commemorative zones; or
    (3) Unreasonably interfere with interpretive, visitor service, or 
other program activities, or with the administrative activities of the 
Presidio Trust or the National Park Service; or
    (4) Substantially impair the operation of public use facilities or 
services of Presidio Trust concessioners or contractors; or
    (5) Present a clear and present danger to the public health and 
safety.
    (f) The permit may contain such conditions as are reasonably 
consistent with protection and use of the area administered by the 
Presidio Trust for the purposes of the Presidio Trust Act. It may also 
contain reasonable limitations on the equipment used and the time and 
area within which the event is allowed.
    (g) No permit shall be issued for a period in excess of 7 days, 
provided that permits may be extended for like periods, upon a new 
application, unless another applicant has requested use of

[[Page 219]]

the same location and multiple occupancy of that location is not 
reasonably possible.
    (h) It is prohibited for persons engaged in activities covered under 
this section to obstruct or impede pedestrians or vehicles, or harass 
visitors with physical contact.
    (i) A permit may be revoked under any of those conditions, as listed 
in paragraph (c) of this section, that constitute grounds for denial of 
a permit, or for violation of the terms and conditions of the permit. 
Such a revocation shall be made in writing, with the reason(s) for 
revocation clearly set forth, except under emergency circumstances, when 
an immediate verbal revocation or suspension may be made to be followed 
by written confirmation within 72 hours.
    (j) Violation of the terms and conditions of a permit issued in 
accordance with this section may result in the suspension or revocation 
of the permit.

[63 FR 35700, June 30, 1998, as amended at 71 FR 10610, Mar. 2, 2006]



Sec. 1002.52  Sale or distribution of printed matter.

    (a) The sale or distribution of printed matter is allowed within the 
area administered by the Presidio Trust, provided that a permit to do so 
has been issued by the Executive Director, and provided further that the 
printed matter is not solely commercial advertising.
    (b) An application for such a permit shall set forth the name of the 
applicant; the name of the organization (if any); the date, time, 
duration, and location of the proposed sale or distribution; the number 
of participants; and any other information required by the permit 
application form.
    (c) The Executive Director shall, without unreasonable delay, issue 
a permit on proper application unless:
    (1) A prior application for a permit for the same time and location 
has been made that has been or will be granted and the activities 
authorized by that permit do not reasonably allow multiple occupancy of 
the particular area; or
    (2) It reasonably appears that the sale or distribution will present 
a clear and present danger to the public health and safety; or
    (3) The number of persons engaged in the sale or distribution 
exceeds the number that can reasonably be accommodated in the particular 
location applied for, considering such things as damage to resources or 
facilities of the area administered by the Presidio Trust, impairment of 
a protected area's atmosphere of peace and tranquillity, interference 
with program activities, or impairment of public use facilities; or
    (4) The location applied for has not been designated as available 
for the sale or distribution of printed matter; or
    (5) The activity would constitute a violation of an applicable law 
or regulation.
    (d) If a permit is denied, the applicant shall be so informed in 
writing, with the reason(s) for the denial set forth.
    (e) The Board shall designate on a map, which shall be available for 
inspection in the office of the Presidio Trust, the locations within the 
area administered by the Presidio Trust that are available for the sale 
or distribution of printed matter. Locations may be designated as not 
available only if the sale or distribution of printed matter would:
    (1) Cause injury or damage to resources of the area administered by 
the Presidio Trust; or
    (2) Unreasonably impair the atmosphere of peace and tranquillity 
maintained in wilderness, natural, historic, or commemorative zones; or
    (3) Unreasonably interfere with interpretive, visitor service, or 
other program activities, or with the administrative activities of the 
Presidio Trust or the National Park Service; or
    (4) Substantially impair the operation of public use facilities or 
services of Presidio Trust concessioners or contractors; or
    (5) Present a clear and present damage to the public health and 
safety.
    (f) The permit may contain such conditions as are reasonably 
consistent with protection and use of the area administered by the 
Presidio Trust for the purposes of the Presidio Trust Act.

[[Page 220]]

    (g) No permit shall be issued for a period in excess of 14 
consecutive days, provided that permits may be extended for like 
periods, upon a new application, unless another applicant has requested 
use of the same location and multiple occupancy of that location is not 
reasonably possible.
    (h) It is prohibited for persons engaged in the sale or distribution 
of printed matter under this section to obstruct or impede pedestrians 
or vehicles, harass visitors with physical contact or persistent 
demands, misrepresent the purposes or affiliations of those engaged in 
the sale or distribution, or misrepresent whether the printed matter is 
available without cost or donation.
    (i) A permit may be revoked under any of those conditions, as listed 
in paragraph (c) of this section, that constitute grounds for denial of 
a permit, or for violation of the terms and conditions of the permit. 
Such a revocation shall be made in writing, with the reason(s) for 
revocation clearly set forth, except under emergency circumstances, when 
an immediate verbal revocation or suspension may be made, to be followed 
by written confirmation within 72 hours.
    (j) Violation of the terms and conditions of a permit issued in 
accordance with this section may result in the suspension or revocation 
of the permit.



Sec. 1002.60  Livestock use and agriculture.

    (a) The running-at-large, herding, driving across, allowing on, 
pasturing or grazing of livestock of any kind within the area 
administered by the Presidio Trust or the use of such area for 
agricultural purposes is prohibited, except:
    (1) As specifically authorized by Federal statutory law; or
    (2) As required under a reservation of use rights arising from 
acquisition of a tract of land; or
    (3) As designated, when conducted as a necessary and integral part 
of a recreational activity or required in order to maintain a historic 
scene.
    (b) Activities authorized pursuant to any of the exceptions provided 
for in paragraph (a) of this section shall be allowed only pursuant to 
the terms and conditions of a license, permit or lease. Violation of the 
terms and conditions of a license, permit or lease issued in accordance 
with this paragraph is prohibited and may result in the suspension or 
revocation of the license, permit, or lease.
    (c) Impounding of livestock. (1) Livestock trespassing within the 
area administered by the Presidio Trust may be impounded by the 
Executive Director and, if not claimed by the owner within the periods 
specified in this paragraph, shall be disposed of in accordance with 
applicable Federal and State law.
    (2) In the absence of applicable Federal or State law, the livestock 
shall be disposed of in the following manner:
    (i) If the owner is known, prompt written notice of impoundment will 
be served, and in the event of the owner's failure to remove the 
impounded livestock within five (5) days from delivery of such notice, 
it will be disposed of in accordance with this paragraph.
    (ii) If the owner is unknown, disposal of the livestock shall not be 
made until at least fifteen (15) days have elapsed from the date that a 
notice of impoundment is originally published in a newspaper of general 
circulation in the county in which the trespass occurs or, if no such 
newspaper exists, notification is provided by other appropriate means.
    (iii) The owner may redeem the livestock by submitting proof of 
ownership and paying all expenses of the United States for capturing, 
advertising, pasturing, feeding, impounding, and the amount of damage to 
public property injured or destroyed as a result of the trespass.
    (iv) In determining the claim of the government in a livestock 
trespass, the value of forage consumed shall be computed at the 
commercial rates prevailing in the locality for the class of livestock 
found in trespass. The claim shall include the pro rata salary of 
employees for the time spent and the expenses incurred as a result of 
the investigation, reporting, and settlement or prosecution of the 
claim.
    (v) If livestock impounded under this paragraph is offered at public 
sale and no bid is received, or if the highest bid received is less than 
the amount of the

[[Page 221]]

claim of the United States or of the officer's appraised value of the 
livestock, whichever is the lesser amount, such livestock, may be sold 
at private sale for the highest amount obtainable, condemned and 
destroyed, or converted to the use of the United States.



Sec. 1002.61  Residing on Federal lands.

    (a) Residing within the area administered by the Presidio Trust, 
other than on privately owned lands, except pursuant to the terms and 
conditions of a permit, lease or contract, is prohibited.
    (b) Violation of the terms and conditions of a permit issued in 
accordance with this section is prohibited and may result in the 
suspension or revocation of the permit.



Sec. 1002.62  Memorialization.

    (a) The installation of a monument, memorial, tablet, structure, or 
other commemorative installation within the area administered by the 
Presidio Trust without the authorization of the Board is prohibited.
    (b) The scattering of human ashes from cremation is prohibited, 
except pursuant to the terms and conditions of a permit, or in 
designated areas according to conditions which may be established by the 
Board.
    (c) Failure to abide by area designations and established conditions 
is prohibited.
    (d) Violation of the terms and conditions of a permit issued in 
accordance with this section is prohibited and may result in the 
suspension or revocation of the permit.



Sec. 1002.63  Boating and water use activities.

    Swimming, boating and the use of any water vessel are prohibited 
within the area administered by the Presidio Trust.



PART 1004_VEHICLES AND TRAFFIC SAFETY--Table of Contents




Sec.
1004.1 Applicability and scope.
1004.2 State law applicable.
1004.3 Authorized emergency vehicles.
1004.4 Report of motor vehicle accident.
1004.10 Travel on Presidio Trust roads and designated routes.
1004.11 Load, weight and size limits.
1004.12 Traffic control devices.
1004.13 Obstructing traffic.
1004.14 Open container of alcoholic beverage.
1004.15 Safety belts.
1004.20 Right of way.
1004.21 Speed limits.
1004.22 Unsafe operation.
1004.23 Operating under the influence of alcohol or drugs.
1004.30 Bicycles.
1004.31 Hitchhiking.

    Authority: Pub. L. 104-333, 110 Stat. 4097 (16 U.S.C. 460bb note).

    Source: 63 FR 35708, June 30, 1998, unless otherwise noted.



Sec. 1004.1  Applicability and scope.

    The applicability of the regulations in this part is described in 
Sec. 1001.2 of this chapter. The regulations in this part also apply, 
regardless of land ownership, on all roadways and parking areas within 
the boundaries of the area administered by the Presidio Trust that are 
open to public traffic and that are under the legislative jurisdiction 
of the United States.



Sec. 1004.2  State law applicable.

    (a) Unless specifically addressed by regulations in this chapter, 
traffic and the use of vehicles within the boundaries of the area 
administered by the Presidio Trust are governed by State law. State law 
that is now or may later be in effect is adopted and made a part of the 
regulations in this part.
    (b) Violating a provision of State law is prohibited.



Sec. 1004.3  Authorized emergency vehicles.

    (a) The operator of an authorized emergency vehicle, when responding 
to an emergency or when pursuing or apprehending an actual or suspected 
violator of the law, may:
    (1) Disregard traffic control devices;
    (2) Exceed the speed limit; and
    (3) Obstruct traffic.
    (b) The provisions of paragraph (a) of this section do not relieve 
the operator from the duty to operate with due regard for the safety of 
persons and property.

[[Page 222]]



Sec. 1004.4  Report of motor vehicle accident.

    (a) The operator of a motor vehicle involved in an accident 
resulting in property damage, personal injury or death shall report the 
accident to the Executive Director as soon as practicable, but within 24 
hours of the accident. If the operator is physically incapable of 
reporting the accident, an occupant of the vehicle shall report the 
accident to the Executive Director.
    (b) A person shall not tow or move a vehicle that has been involved 
in an accident without first notifying the Executive Director unless the 
position of the vehicle constitutes a hazard or prior notification is 
not practicable, in which case notification shall be made before the 
vehicle is removed from the area administered by the Presidio Trust.
    (c) Failure to comply with a reporting requirement specified in 
paragraph (a) or (b) of this section is prohibited.
    (d) The notification requirements imposed by this section do not 
relieve the operator and occupants of a motor vehicle involved in an 
accident of the responsibility to satisfy reporting requirements imposed 
by State law.



Sec. 1004.10  Travel on Presidio Trust roads and designated routes.

    (a) Operating a motor vehicle is prohibited except on Presidio Trust 
roads and in parking areas.
    (b) The following are prohibited:
    (1) Operating a motor vehicle not equipped with pneumatic tires, 
except that a track-laying motor vehicle or a motor vehicle equipped 
with a similar traction device may be operated on a route designated for 
these vehicles by the Board.
    (2) Operating a motor vehicle in a manner that causes unreasonable 
damage to the surface of a Presidio Trust road or route.



Sec. 1004.11  Load, weight and size limits.

    (a) Vehicle load, weight and size limits established by State law 
apply to a vehicle operated on a Presidio Trust road. However, the Board 
may designate more restrictive limits when appropriate for traffic 
safety or protection of the road surface. The Board may require a permit 
and establish conditions for the operation of a vehicle exceeding 
designated limits.
    (b) The following are prohibited:
    (1) Operating a vehicle that exceeds a load, weight or size limit 
designated by the Board.
    (2) Failing to obtain a permit when required.
    (3) Violating a term or condition of a permit.
    (4) Operating a motor vehicle with an auxiliary detachable side 
mirror that extends more than 10 inches beyond the side fender line 
except when the motor vehicle is towing a second vehicle.
    (c) Violating a term or condition of a permit may also result in the 
suspension or revocation of the permit by the Executive Director.



Sec. 1004.12  Traffic control devices.

    Failure to comply with the directions of a traffic control device is 
prohibited unless otherwise directed by the Executive Director.



Sec. 1004.13  Obstructing traffic.

    The following are prohibited:
    (a) Stopping or parking a vehicle upon a Presidio Trust road, except 
as authorized by the Executive Director, or in the event of an accident 
or other condition beyond the control of the operator.
    (b) Operating a vehicle so slowly as to interfere with the normal 
flow of traffic.



Sec. 1004.14  Open container of alcoholic beverage.

    (a) Each person within a motor vehicle is responsible for complying 
with the provisions of this section that pertain to carrying an open 
container. The operator of a motor vehicle is the person responsible for 
complying with the provisions of this section that pertain to the 
storage of an open container.
    (b) Carrying or storing a bottle, can or other receptacle containing 
an alcoholic beverage that is open, or has been opened, or whose seal is 
broken or the contents of which have been partially removed, within a 
motor vehicle in the area administered by the Presidio Trust is 
prohibited.
    (c) This section does not apply to:
    (1) An open container stored in the trunk of a motor vehicle or, if 
a motor

[[Page 223]]

vehicle is not equipped with a trunk, to an open container stored in 
some other portion of the motor vehicle designed for the storage of 
luggage and not normally occupied by or readily accessible to the 
operator or passengers; or
    (2) An open container stored in the living quarters of a motor home 
or camper; or
    (3) Unless otherwise prohibited, an open container carried or stored 
in a motor vehicle parked at an authorized campsite where the motor 
vehicle's occupant(s) are camping.
    (d) For the purpose of paragraph (c)(1) of this section, a utility 
compartment or glove compartment is deemed to be readily accessible to 
the operator and passengers of a motor vehicle.



Sec. 1004.15  Safety belts.

    (a) Each operator and passenger occupying any seating position of a 
motor vehicle in the area administered by the Presidio Trust will have 
the safety belt or child restraint system properly fastened at all times 
when the vehicle is in motion. The safety belt and child restraint 
system will conform to applicable United States Department of 
Transportation standards.
    (b) This section does not apply to an occupant in a seat that was 
not originally equipped by the manufacturer with a safety belt nor does 
it apply to a person who can demonstrate that a medical condition 
prevents restraint by a safety belt or other occupant restraining 
device.



Sec. 1004.20  Right of way.

    An operator of a motor vehicle shall yield the right of way to 
pedestrians, saddle and pack animals and vehicles drawn by animals. 
Failure to yield the right of way is prohibited.



Sec. 1004.21  Speed limits.

    (a) Speed limits in the area administered by the Presidio Trust are 
as follows:
    (1) 15 miles per hour: within all school zones, campgrounds, picnic 
areas, parking areas, utility areas, business or residential areas, 
other places of public assemblage and at emergency scenes.
    (2) 25 miles per hour: upon sections of Presidio Trust road under 
repair or construction.
    (3) 45 miles per hour: upon all other Presidio Trust roads.
    (b) The Board may designate a different speed limit upon any 
Presidio Trust road when a speed limit set forth in paragraph (a) of 
this section is determined to be unreasonable, unsafe or inconsistent 
with the purposes of the Presidio Trust Act. Speed limits shall be 
posted by using standard traffic control devices.
    (c) Operating a vehicle at a speed in excess of the speed limit is 
prohibited.
    (d) An authorized person may utilize radiomicrowaves or other 
electrical devices to determine the speed of a vehicle on a Presidio 
Trust road. Signs indicating that vehicle speed is determined by the use 
of radiomicrowaves or other electrical devices are not required.



Sec. 1004.22  Unsafe operation.

    (a) The elements of this section constitute offenses that are less 
serious than reckless driving. The offense of reckless driving is 
defined by State law and violations are prosecuted pursuant to the 
provisions of Sec. 1004.2.
    (b) The following are prohibited:
    (1) Operating a motor vehicle without due care or at a speed greater 
than that which is reasonable and prudent considering wildlife, traffic, 
weather, road and light conditions and road character.
    (2) Operating a motor vehicle in a manner which unnecessarily causes 
its tires to squeal, skid or break free of the road surface.
    (3) Failing to maintain that degree of control of a motor vehicle 
necessary to avoid danger to persons, property or wildlife.
    (4) Operating a motor vehicle while allowing a person to ride:
    (i) On or within any vehicle, trailer or other mode of conveyance 
towed behind the motor vehicle unless specifically designed for carrying 
passengers while being towed; or
    (ii) On any exterior portion of the motor vehicle not designed or 
intended for the use of a passenger. This restriction does not apply to 
a person seated on the floor of a truck bed equipped

[[Page 224]]

with sides, unless prohibited by State law.



Sec. 1004.23  Operating under the influence of alcohol or drugs.

    (a) Operating or being in actual physical control of a motor vehicle 
is prohibited while:
    (1) Under the influence of alcohol, or a drug, or drugs, or any 
combination thereof, to a degree that renders the operator incapable of 
safe operation; or
    (2) The alcohol concentration in the operator's blood or breath is 
0.10 grams or more of alcohol per 100 milliliters of blood or 0.10 grams 
or more of alcohol per 210 liters of breath. Provided however, that if 
State law that applies to operating a motor vehicle while under the 
influence of alcohol establishes more restrictive limits of alcohol 
concentration in the operator's blood or breath, those limits supersede 
the limits specified in this paragraph.
    (b) The provisions of paragraph (a) of this section also apply to an 
operator who is or has been legally entitled to use alcohol or another 
drug.
    (c) Tests. (1) At the request or direction of an authorized person 
who has probable cause to believe that an operator of a motor vehicle 
within the area administered by the Presidio Trust has violated a 
provision of paragraph (a) of this section, the operator shall submit to 
one or more tests of the blood, breath, saliva or urine for the purpose 
of determining blood alcohol and drug content.
    (2) Refusal by an operator to submit to a test is prohibited and 
proof of refusal may be admissible in any related judicial proceeding.
    (3) Any test or tests for the presence of alcohol and drugs shall be 
determined by and administered at the direction of an authorized person.
    (4) Any test shall be conducted by using accepted scientific methods 
and equipment of proven accuracy and reliability operated by personnel 
certified in its use.
    (d) Presumptive levels. (1) The results of chemical or other 
quantitative tests are intended to supplement the elements of probable 
cause used as the basis for the arrest of an operator charged with a 
violation of paragraph (a)(1) of this section. If the alcohol 
concentration in the operator's blood or breath at the time of testing 
is less than alcohol concentrations specified in paragraph (a)(2) of 
this section, this fact does not give rise to any presumption that the 
operator is or is not under the influence of alcohol.
    (2) The provisions of paragraph (d)(1) of this section are not 
intended to limit the introduction of any other competent evidence 
bearing upon the question of whether the operator, at the time of the 
alleged violation, was under the influence of alcohol, or a drug, or 
drugs, or any combination thereof.



Sec. 1004.30  Bicycles.

    (a) The use of a bicycle is prohibited except on Presidio Trust 
roads, in parking areas and on routes designated for bicycle use; 
provided, however, that the Board may close any Presidio Trust road or 
parking area to bicycle use pursuant to the criteria and procedures of 
Sec. Sec. 1001.5 and 1001.7 of this chapter. Routes may only be 
designated for bicycle use based on a written determination that such 
use is consistent with the protection of natural, scenic and aesthetic 
values, safety considerations and management objectives and will not 
disturb wildlife or the resources of the area administered by the 
Presidio Trust.
    (b) Designated bicycle routes. The use of a bicycle is permitted in 
non-developed areas, as follows:
    (1) Bicycle use is permitted on routes which have been designated by 
the Board as bicycle routes by the posting of signs, and as designated 
on maps which are available in the office of the Presidio Trust and 
other places convenient to the public.
    (2) Bicycle speed limits are as follows:
    (i) 15 miles per hour: Upon all designated routes within the area 
administered by the Presidio Trust.
    (ii) 5 miles per hour: On blind curves and when passing other trail 
users.
    (3) The following are prohibited:
    (i) The possession of a bicycle on routes not designated as open to 
bicycle use.
    (ii) Operating a bicycle on designated bicycle routes between sunset 
and sunrise without exhibiting on the bicycle

[[Page 225]]

or on the operator an activated white light that is visible from a 
distance of at least 500 feet to the front and with a red light or 
reflector visible from at least 200 feet to the rear.
    (c) A person operating a bicycle is subject to all sections of this 
part that apply to an operator of a motor vehicle, except Sec. Sec. 
1004.4, 1004.10, 1004.11 and 1004.14.
    (d) The following are prohibited:
    (1) Possessing a bicycle in a wilderness area established by Federal 
statute.
    (2) Operating a bicycle during periods of low visibility, or while 
traveling through a tunnel, or between sunset and sunrise, without 
exhibiting on the operator or bicycle a white light or reflector that is 
visible from a distance of at least 500 feet to the front and with a red 
light or reflector visible from at least 200 feet to the rear.
    (3) Operating a bicycle abreast of another bicycle except where 
authorized by the Executive Director.
    (4) Operating a bicycle while consuming an alcoholic beverage or 
carrying in hand an open container of an alcoholic beverage.



Sec. 1004.31  Hitchhiking.

    Hitchhiking or soliciting transportation is prohibited except in 
designated areas and under conditions established by the Board.



PART 1005_COMMERCIAL AND PRIVATE OPERATIONS--Table of Contents




Sec.
1005.1 Advertisements.
1005.2 Alcoholic beverages; sale of intoxicants.
1005.3 Business operations.
1005.4 Commercial passenger-carrying motor vehicles.
1005.5 Commercial photography.
1005.6 Commercial vehicles.
1005.7 Construction of buildings or other facilities.
1005.8 Discrimination in employment practices.
1005.9 Discrimination in furnishing public accommodations and 
          transportation services.
1005.10-1005.12 [Reserved]
1005.13 Nuisances.
1005.14 Prospecting, mining, and mineral leasing.

    Authority: Pub. L. 104-333, 110 Stat. 4097 (16 U.S.C. 460bb note).

    Source: 63 FR 35710, June 30, 1998, unless otherwise noted.



Sec. 1005.1  Advertisements.

    Commercial notices or advertisements shall not be displayed, posted, 
or distributed within the area administered by the Presidio Trust unless 
prior written permission has been given by the Executive Director. Such 
permission may be granted only if the notice or advertisement is of 
goods, services, or facilities available within the area administered by 
the Presidio Trust and such notices and advertisements are found by the 
Executive Director to be desirable and necessary for the convenience and 
guidance of the public.



Sec. 1005.2  Alcoholic beverages; sale of intoxicants.

    The sale of alcoholic, spirituous, vinous, or fermented liquor, 
containing more than 1 percent of alcohol by weight, shall conform with 
all applicable Federal, State, and local laws and regulations. (See also 
Sec. 1002.35 of this chapter.)



Sec. 1005.3  Business operations.

    Engaging in or soliciting any business in the area administered by 
the Presidio Trust, except in accordance with the provisions of a 
permit, contract, or other written agreement with the United States, is 
prohibited.



Sec. 1005.4  Commercial passenger-carrying motor vehicles.

    Passenger-carrying motor vehicles that are so large as to require 
special escort in order to proceed safely over Presidio Trust roads, or 
which in the judgment of the Executive Director are beyond the carrying 
capacity or safety factor of the roads, will not be permitted in the 
area administered by the Presidio Trust, except that, where they may 
satisfactorily enter and travel to the Presidio Trust headquarters they 
may be parked there during the period of stay.



Sec. 1005.5  Commercial photography.

    (a) Motion pictures, television. Before any motion picture may be 
filmed or any television production or sound

[[Page 226]]

track may be made, which involves the use of professional casts, 
settings, or crews, by any person other than bona fide newsreel or news 
television personnel, written permission must first be obtained from the 
Executive Director, in accordance with the following:
    (1) Permit required. No picture may be filmed, and no television 
production or sound track made on any area administered by the Presidio 
Trust, by any person other than amateur or bona fide newsreel and news 
television photographers and soundmen, unless written permission has 
been obtained from the Presidio Trust. Applications for permission 
should be submitted to the Executive Director.
    (2) Fees; bonds. (i) No fees will be charged for the making of 
motion pictures, television productions or sound tracks on areas 
administered by the Presidio Trust. The regular general admission and 
other fees currently in effect in any area under the jurisdiction of the 
Presidio Trust are not affected by this paragraph.
    (ii) A bond shall be furnished, or deposit made in cash or by 
certified check, in an amount to be set by the official in charge of the 
area to insure full compliance with all of the conditions prescribed in 
paragraph (a)(4) of this section.
    (3) Approval of application. Permission to make a motion picture, 
television production or sound track on areas administered by the 
Presidio Trust will be granted by the Executive Director in his 
discretion and on acceptance by the applicant of the conditions set 
forth in paragraph (a)(4) of this section.
    (4) Form of application. The following form is prescribed for an 
application for permission to make a motion picture, television 
production, or sound track on areas administered by the Presidio Trust:

Date____________________________________________________________________
    To the Executive Director of the Presidio Trust:
    Permission is requested to make, in the area administered by the 
Presidio Trust, a

________________________________________________________________________
    The scope of the filming (or production or recording) and the manner 
and extent thereof will be as follows:

________________________________________________________________________

________________________________________________________________________

    Weather conditions permitting, work will commence on approximately 
-------------- and will be completed on approximately --------------. 
(An additional sheet should be used if necessary.)
    The undersigned accepts and will comply with the following 
conditions:
    Utmost care will be exercised to see that no natural features are 
injured, and after completion of the work the area will, as required by 
the official in charge, either be cleaned up and restored to its prior 
condition or left, after clean-up, in a condition satisfactory to the 
official in charge.
    Credit will be given to the Presidio Trust through the use of an 
appropriate title or announcement, unless there is issued by the 
official in charge of the area a written statement that no such courtesy 
credit is desired.
    Pictures will be taken of wildlife only when such wildlife will be 
shown in its natural state or under approved management conditions if 
such wildlife is confined.
    Any special instructions received from the official in charge of the 
area will be complied with.
    Any additional information relating to the privilege applied for by 
this application will be furnished upon request of the official in 
charge.

________________________________________________________________________
 (Applicant)

For_____________________________________________________________________
 (Company)

Bond Requirement $______________________________________________________

    Approved:

________________________________________________________________________
 (Date)

________________________________________________________________________
 (Title)

    (b) Still photography. The taking of photographs of any vehicle, or 
other articles of commerce or models for the purpose of commercial 
advertising without a written permit from the Executive Director is 
prohibited.



Sec. 1005.6  Commercial vehicles.

    (a) The term ``Commercial vehicle'' as used in this section shall 
include, but not be limited to trucks, station wagons, pickups, 
passenger cars or other vehicles when used in transporting movable 
property for a fee or profit, either as a direct charge to another 
person, or otherwise, or used as an incident to providing services to 
another person, or used in connection with any business.
    (b) The use of government roads within the area administered by the 
Presidio Trust by commercial vehicles,

[[Page 227]]

when such use is in no way connected with the operation of the area 
administered by the Presidio Trust, is prohibited, except that in 
emergencies the Executive Director may grant permission to use Presidio 
Trust roads.
    (c) The Executive Director shall issue permits for commercial 
vehicles used on Presidio Trust roads when such use is necessary for 
access to private lands situated within or adjacent to the area 
administered by the Presidio Trust, to which access is otherwise not 
available.



Sec. 1005.7  Construction of buildings or other facilities.

    Constructing or attempting to construct a building, or other 
structure, boat dock, road, trail, path, or other way, telephone line, 
telegraph line, power line, or any other private or public utility, 
upon, across, over, through, or under any area administered by the 
Presidio Trust, except in accordance with the provisions of a valid 
permit, contract, or other written agreement with the United States, is 
prohibited.



Sec. 1005.8  Discrimination in employment practices.

    (a) The proprietor, owner, or operator of any hotel, inn, lodge or 
other facility or accommodation offered to or enjoyed by the general 
public within the area administered by the Presidio Trust is prohibited 
from discriminating against any employee or maintaining any employment 
practice which discriminates because of race, creed, color, ancestry, 
sex, age, disabling condition, or national origin in connection with any 
activity provided for or permitted by contract with or permit from the 
Government or by derivative subcontract or sublease. As used in this 
section, the term ``employment'' includes, but is not limited to, 
employment, upgrading, demotion, or transfer; recruitment, or 
recruitment advertising; layoffs or termination; rates of pay or other 
forms of compensation; and selection for training including 
apprenticeship.
    (b) Each such proprietor, owner or operator shall post either the 
following notice or notices supplied in accordance with Executive Order 
11246 at such locations as will ensure that the notice and its contents 
will be conspicuous to any person seeking employment:

                                 Notice

    This is a facility operated in an area under the jurisdiction of the 
Presidio Trust. No discrimination in employment practices on the basis 
of race, creed, color, ancestry, sex, age, disabling condition, or 
national origin is permitted in this facility. Violations of this 
prohibition are punishable by fine, imprisonment, or both. Complaints or 
violations of this prohibition should be addressed to the Executive 
Director, The Presidio Trust, P.O. Box 29052, San Francisco, CA 94129-
0052.

    (c) The regulations contained in this section apply, regardless of 
land ownership, on all lands and waters within the boundaries of the 
area administered by the Presidio Trust that are under the legislative 
jurisdiction of the United States.



Sec. 1005.9  Discrimination in furnishing public accommodations and transportation services.

    (a) The proprietor, owner or operator and the employees of any 
hotel, inn, lodge, or other facility or accommodation offered to or 
enjoyed by the general public within the area administered by the 
Presidio Trust and, while using such area, any commercial passenger-
carrying motor vehicle service and its employees, are prohibited from:
    (1) Publicizing the facilities, accommodations or any activity 
conducted therein in any manner that would directly or inferentially 
reflect upon or question the acceptability of any person or persons 
because of race, creed, color, ancestry, sex, age, disabling condition, 
or national origin; or
    (2) Discriminating by segregation or otherwise against any person or 
persons because of race, creed, color, ancestry, sex, age, disabling 
condition, or national origin in furnishing or refusing to furnish such 
person or persons any accommodation, facility, service, or privilege 
offered to or enjoyed by the general public.
    (b) Each such proprietor, owner, or operator shall post the 
following notice at such locations as will insure that the notice and 
its contents will be conspicuous to any person seeking accommodations, 
facilities, services, or privileges:


[[Page 228]]



                                 Notice

    This is a facility operated in an area under the jurisdiction of the 
Presidio Trust. No discrimination by segregation or other means in the 
furnishing of accommodations, facilities, services, or privileges on the 
basis of race, creed, color, ancestry, sex, age, disabling condition or 
national origin is permitted in the use of this facility. Violations of 
this prohibition are punishable by fine, imprisonment, or both. 
Complaints of violations of this prohibition should be addressed to the 
Executive Director, The Presidio Trust, P.O. Box 29052, San Francisco, 
CA 94129-0052.

    (c) The regulations contained in this section apply, regardless of 
land ownership, on all lands and waters within the boundaries of the 
area administered by the Presidio Trust that are under the legislative 
jurisdiction of the United States.



Sec. Sec. 1005.10-1005.12  [Reserved]



Sec. 1005.13  Nuisances.

    The creation or maintenance of a nuisance upon the federally owned 
lands of the area administered by the Presidio Trust or upon any private 
lands within the boundaries of the area administered by the Presidio 
Trust under the exclusive legislative jurisdiction of the United States 
is prohibited.



Sec. 1005.14  Prospecting, mining, and mineral leasing.

    Prospecting, mining, and the location of mining claims under the 
general mining laws and leasing under the mineral leasing laws are 
prohibited in the area administered by the Presidio Trust except as 
authorized by law.



PART 1007_REQUESTS UNDER THE FREEDOM OF INFORMATION ACT--Table of Contents




Sec.
1007.1 Purpose and scope.
1007.2 Records available.
1007.3 Requests for records.
1007.4 Preliminary processing of requests.
1007.5 Action on initial requests.
1007.6 Time limits for processing initial requests.
1007.7 Appeals.
1007.8 Action on appeals.
1007.9 Fees.
1007.10 Waiver of fees.

    Authority: Pub. L. 104-333, 110 Stat. 4097 (16 U.S.C. 460bb note); 5 
U.S.C. 552; E.O. 12,600, 52 FR 23781, 3 CFR, 1988 Comp., p. 235.

    Source: 63 FR 71774, Dec. 30, 1998, unless otherwise noted.



Sec. 1007.1  Purpose and scope.

    (a) This part contains the procedures for submission to and 
consideration by the Presidio Trust of requests for records under FOIA. 
As used in this part, the term ``FOIA'' means the Freedom of Information 
Act, 5 U.S.C. 552.
    (b) Before invoking the formal procedures set out below, persons 
seeking records from the Presidio Trust may find it useful to consult 
with the Presidio Trust's FOIA Officer, who can be reached at The 
Presidio Trust, P.O. Box 29052, San Francisco, CA 94129-0052, Telephone: 
(415) 561-5300. As used in this part, the term ``FOIA Officer'' means 
the employee designated by the Executive Director to process FOIA 
requests and otherwise supervise the Presidio Trust's compliance with 
FOIA, or the alternate employee so designated to perform these duties in 
the absence of the FOIA Officer.
    (c) The procedures in this part do not apply to:
    (1) Records published in the Federal Register, the Bylaws of the 
Presidio Trust, statements of policy and interpretations, and other 
materials that have been published by the Presidio Trust on its internet 
website (http://www.presidiotrust.gov) or are routinely made available 
for inspection and copying at the requester's expense.
    (2) Records or information compiled for law enforcement purposes and 
covered by the disclosure exemption described in Sec. 1007.2(c)(7) if:
    (i) The investigation or proceeding involves a possible violation of 
criminal law; and
    (ii) There is reason to believe that:
    (A) The subject of the investigation or proceeding is not aware of 
its pendency, and
    (B) Disclosure of the existence of the records could reasonably be 
expected to interfere with enforcement proceedings.
    (3) Informant records maintained by the United States Park Police 
under an

[[Page 229]]

informant's name or personal identifier, if requested by a third party 
according to the informant's name or personal identifier, unless the 
informant's status as an informant has been officially confirmed.



Sec. 1007.2  Records available.

    (a) Policy. It is the policy of the Presidio Trust to make its 
records available to the public to the greatest extent possible 
consistent with the purposes of the Presidio Trust Act and the Freedom 
of Information Act.
    (b) Statutory disclosure requirement. FOIA requires that the 
Presidio Trust, on a request from a member of the public submitted in 
accordance with the procedures in this part, make requested records 
available for inspection and copying.
    (c) Statutory exemptions. Exempted from FOIA's statutory disclosure 
requirement are matters that are:
    (1)(i) Specifically authorized under criteria established by an 
Executive order to be kept secret in the interest of national defense or 
foreign policy and
    (ii) Are in fact properly classified pursuant to such Executive 
order;
    (2) Related solely to the internal personnel rules and practices of 
an agency;
    (3) Specifically exempted from disclosure by statute (other than the 
Privacy Act), 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) Trade secrets and commercial or financial information obtained 
from a person and privileged or confidential;
    (5) Inter-agency or intra-agency memorandums or letters which would 
not be available by law to a party other than an agency in litigation 
with the agency;
    (6) Personnel and medical files and similar files the disclosure of 
which would constitute a clearly unwarranted invasion of personal 
privacy;
    (7) Records or information compiled for law enforcement purposes, 
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 of a right to a fair 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, or by an agency conducting a lawful national security 
intelligence 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;
    (8) Contained in or related to examination, operating, or condition 
reports prepared by, on behalf of, or for the use of an agency 
responsible for the regulation or supervision of financial institutions; 
or
    (9) Geological and geophysical information and data, including maps, 
concerning wells.
    (d) Decisions on requests. It is the policy of the Presidio Trust to 
withhold information falling within an exemption only if:
    (1) Disclosure is prohibited by statute or Executive order or
    (2) Sound grounds exist for invocation of the exemption.
    (e) Disclosure of reasonably segregable nonexempt material. If a 
requested record contains material covered by an exemption and material 
that is not exempt, and it is determined under the procedures in this 
part to withhold the exempt material, any reasonably segregable 
nonexempt material shall be

[[Page 230]]

separated from the exempt material and released. In such circumstances, 
the records disclosed in part shall be marked or annotated to show both 
the amount and the location of the information deleted wherever 
practicable.



Sec. 1007.3  Requests for records.

    (a) Submission of requests. A request to inspect or copy records 
shall be submitted to the Presidio Trust's FOIA Officer at P.O. Box 
29052, San Francisco, CA 94129-0052.
    (b) Form of requests. (1) Requests under this part shall be in 
writing and must specifically invoke FOIA.
    (2) A request must reasonably describe the records requested. A 
request reasonably describes the records requested if it will enable an 
employee of the Presidio Trust familiar with the subject area of the 
request to locate the record with a reasonable amount of effort. If such 
information is available, the request should identify the subject matter 
of the record, the date when it was made, the place where it was made, 
the person or office that made it, the present custodian of the record, 
and any other information that will assist in locating the requested 
record. If the request involves a matter known by the requester to be in 
litigation, the request should also state the case name and court 
hearing the case.
    (3)(i) A request shall:
    (A) Specify the fee category (commercial use, educational 
institution, noncommercial scientific institution, news media, or other, 
as defined in Sec. 1007.9 of this chapter) in which the requester 
claims the request falls and the basis of this claim; and
    (B) State the maximum amount of fees that the requester is willing 
to pay or include a request for a fee waiver.
    (ii) Requesters are advised that, under Sec. 1007.9 (f), (g) and 
(h), the time for responding to requests may be delayed:
    (A) If a requester has not sufficiently identified the fee category 
applicable to the request;
    (B) If a requester has not stated a willingness to pay fees as high 
as anticipated by the Presidio Trust; or
    (C) If a fee waiver request is denied and the requester has not 
included an alternative statement of willingness to pay fees as high as 
anticipated by the Presidio Trust.
    (4) A request seeking a fee waiver shall, to the extent possible, 
address why the requester believes that the criteria for fee waivers set 
out in Sec. 1007.10 are met.
    (5) To expedite processing, both the envelope containing a request 
and the face of the request should bear the legend ``FREEDOM OF 
INFORMATION REQUEST.''
    (c) Creation of records. A request may seek only records that are in 
existence at the time the request is received. A request may not seek 
records that come into existence after the date on which it is received 
and may not require that new records be created in response to the 
request by, for example, combining or compiling selected items from 
manual files, preparing a new computer program, or calculating 
proportions, percentages, frequency distributions, trends or 
comparisons. In those instances where the Presidio Trust determines that 
creating a new record will be less burdensome than disclosing large 
volumes of unassembled material, the Presidio Trust may, in its 
discretion, agree to creation of a new record as an alternative to 
disclosing existing records.



Sec. 1007.4  Preliminary processing of requests.

    (a) Scope of requests. Unless a request clearly specifies otherwise, 
requests to the Presidio Trust may be presumed to seek only records of 
the Presidio Trust.
    (b) Records of other departments and agencies. (1) If a requested 
record in the possession of the Presidio Trust originated with another 
Federal department or agency, the request shall be referred to that 
agency unless:
    (i) The record is of primary interest to the Presidio Trust, for 
example, because it was developed or prepared pursuant to the Presidio 
Trust's regulations or request,
    (ii) The Presidio Trust is in a better position than the originating 
agency to assess whether the record is exempt from disclosure, or
    (iii) The originating agency is not subject to FOIA.

[[Page 231]]

    (2) A request for documents that were classified by another agency 
shall be referred to that agency.
    (c) Consultation with submitters of commercial and financial 
information. (1) If a request seeks a record containing trade secrets or 
commercial or financial information submitted by a person outside of the 
Federal government, the Presidio Trust shall provide the submitter with 
notice of the request whenever:
    (i) The submitter has made a good faith designation of the 
information as commercially or financially sensitive, or
    (ii) The Presidio Trust has reason to believe that disclosure of the 
information may result in commercial or financial injury to the 
submitter.
    (2) Where notification of a voluminous number of submitters is 
required, such notification may be accomplished by posting or publishing 
the notice in a place reasonably calculated to accomplish notification.
    (3) The notice to the submitter shall afford the submitter a 
reasonable period within which to provide a detailed statement of any 
objection to disclosure. The submitter's statement shall explain the 
basis on which the information is claimed to be exempt under FOIA, 
including a specification of any claim of competitive or other business 
harm that would result from disclosure. The statement shall also include 
a certification that the information is confidential, has not been 
disclosed to the public by the submitter, and is not routinely available 
to the public from other sources.
    (4) If a submitter's statement cannot be obtained within the time 
limit for processing the request under Sec. 1007.6, the requester shall 
be notified of the delay as provided in Sec. 1007.6(f).
    (5) Notification to a submitter is not required if:
    (i) The Presidio Trust determines, prior to giving notice, that the 
request for the record should be denied;
    (ii) The information has previously been lawfully published or 
officially made available to the public;
    (iii) Disclosure is required by a statute (other than FOIA) or 
regulation (other than this part);
    (iv) Disclosure is clearly prohibited by a statute, as described in 
Sec. 1007.2(c)(3);
    (v) The information was not designated by the submitter as 
confidential when it was submitted, or a reasonable time thereafter, if 
the submitter was specifically afforded an opportunity to make such a 
designation; however, a submitter will be notified of a request for 
information that was not designated as confidential at the time of 
submission, or a reasonable time thereafter, if there is substantial 
reason to believe that disclosure of the information would result in 
competitive harm;
    (vi) The designation of confidentiality made by the submitter is 
obviously frivolous; or
    (vii) The information was submitted to the Presidio Trust more than 
10 years prior to the date of the request, unless the Presidio Trust has 
reason to believe that it continues to be confidential.
    (6) If a requester brings suit to compel disclosure of information, 
the submitter of the information will be promptly notified.



Sec. 1007.5  Action on initial requests.

    (a) Authority. (1) Requests shall be decided by the FOIA Officer.
    (2) A decision to withhold a requested record, to release a record 
that is exempt from disclosure, or to deny a fee waiver shall be made 
only after consultation with the General Counsel.
    (b) Form of grant. (1) When a requested record has been determined 
to be available, the FOIA Officer shall notify the requester as to when 
and where the record is available for inspection or, as the case may be, 
when and how copies will be provided. If fees are due, the FOIA Officer 
shall state the amount of fees due and the procedures for payment, as 
described in Sec. 1007.9.
    (2) The FOIA Officer shall honor a requester's specified preference 
of form or format of disclosure (e.g., paper, microform, audiovisual 
materials, or electronic records) if the record is readily available to 
the Presidio Trust in the requested form or format or if the record is 
reproducible by the Presidio Trust with reasonable efforts in the 
requested form or format.

[[Page 232]]

    (3) If a requested record (or portion thereof) is being made 
available over the objections of a submitter made in accordance with 
Sec. 1007.4(c), both the requester and the submitter shall be notified 
of the decision. The notice to the submitter (a copy of which shall be 
made available to the requester) shall be forwarded a reasonable number 
of days prior to the date on which disclosure is to be made and shall 
include:
    (i) A statement of the reasons why the submitter's objections were 
not sustained;
    (ii) A specification of the portions of the record to be disclosed, 
if the submitter's objections were sustained in part; and
    (iii) A specified disclosure date.
    (4) If a claim of confidentiality has been found frivolous in 
accordance with Sec. 1007.4(c)(5)(vi) and a determination is made to 
release the information without consultation with the submitter, the 
submitter of the information shall be notified of the decision and the 
reasons therefor a reasonable number of days prior to the date on which 
disclosure is to be made.
    (c) Form of denial. (1) A decision withholding a requested record 
shall be in writing and shall include:
    (i) A listing of the names and titles or positions of each person 
responsible for the denial;
    (ii) A reference to the specific exemption or exemptions authorizing 
the withholding;
    (iii) If neither a statute nor an Executive order requires 
withholding, the sound ground for withholding;
    (iv) An estimate of the volume of records or information withheld, 
in number of pages or in some other reasonable form of estimation. This 
estimate does not need to be provided if the volume is otherwise 
indicated through deletions on records disclosed in part, or if 
providing an estimate would harm an interest protected by an applicable 
exemption; and
    (v) A statement that the denial may be appealed and a reference to 
the procedures in Sec. 1007.7 for appeal.
    (2) A decision denying a request for failure to reasonably describe 
requested records or for other procedural deficiency or because 
requested records cannot be located shall be in writing and shall 
include:
    (i) A description of the basis of the decision;
    (ii) A list of the names and titles or positions of each person 
responsible; and
    (iii) A statement that the matter may be appealed and a reference to 
the procedures in Sec. 1007.7 for appeal.
    (d) Expedited processing. (1) Requests and appeals will be taken out 
of order and given expedited treatment whenever it is determined by the 
FOIA Officer that they involve:
    (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; or
    (ii) An urgency to inform the public about an actual or alleged 
federal government activity, if made by a person primarily engaged in 
disseminating information.
    (2) A request for expedited processing may be made at the time of 
the initial request for records or at any later time.
    (3) A requester who seeks expedited processing must submit a 
statement, certified to be true and correct to the best of that person's 
knowledge and belief, explaining in detail the basis for requesting 
expedited processing.
    (4) Within ten calendar days of receiving of a request for expedited 
processing, the FOIA Officer shall decide whether to grant the request 
for expedited processing and shall notify the requester of the decision. 
If a request for expedited processing is granted, the underlying FOIA 
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.



Sec. 1007.6  Time limits for processing initial requests.

    (a) Basic limit. Requests for records shall be processed promptly. A 
determination whether to grant or deny a request shall be made within 20 
working days after receipt of a request. This determination shall be 
communicated immediately to the requester.

[[Page 233]]

    (b) Running of basic time limit. (1) The 20 working day time limit 
begins to run when a request meeting the requirements of Sec. 1007.3(b) 
is received at the Presidio Trust.
    (2) The running of the basic time limit may be delayed or tolled as 
explained in Sec. 1007.9 (f), (g) and (h) if a requester:
    (i) Has not stated a willingness to pay fees as high as are 
anticipated and has not sought and been granted a full fee waiver, or
    (ii) Has not made a required advance payment.
    (c) Extensions of time. In the following unusual circumstances, the 
time limit for acting on an initial request may be extended to the 
extent reasonably necessary to the proper processing of the request, but 
in no case may the time limit be extended by more than 20 working days:
    (1) The need to search for and collect the requested records from 
facilities or other establishments that are separate from the main 
office of the Presidio Trust;
    (2) The need to search for, collect, and appropriately examine a 
voluminous amount of separate and distinct records demanded in a single 
request; or
    (3) The need for consultation, which shall be conducted with all 
practicable speed, with another agency having a substantial interest in 
the determination of the request.
    (d) Notice of extension. A requester shall be notified in writing of 
an extension under paragraph (c) of this section. The notice shall state 
the reason for the extension and the date on which a determination on 
the request is expected to be made.
    (e) Treatment of delay as denial. If no determination has been 
reached at the end of the 20 working day period for deciding an initial 
request, or an extension thereof under Sec. 1007.6(c), the requester 
may deem the request denied and may exercise a right of appeal in 
accordance with Sec. 1007.7.
    (f) Notice of delay. When a determination cannot be reached within 
the time limit, or extension thereof, the requester shall be notified of 
the reason for the delay, of the date on which a determination may be 
expected, and of the right to treat the delay as a denial for purposes 
of appeal, including a reference to the procedures for filing an appeal 
in Sec. 1007.7.



Sec. 1007.7  Appeals.

    (a) Right of appeal. A requester may appeal to the Executive 
Director when:
    (1) Records have been withheld;
    (2) A request has been denied for failure to describe requested 
records or for other procedural deficiency or because requested records 
cannot be located;
    (3) A fee waiver has been denied;
    (4) A request has not been decided within the time limits provided 
in Sec. 1007.6; or
    (5) A request for expedited processing under Sec. 1007.5(d) has 
been denied.
    (b) Time for appeal. An appeal must be received at the office of the 
Presidio Trust no later than 20 working days after the date of the 
initial denial, in the case of a denial of an entire request, or 20 
working days after records have been made available, in the case of a 
partial denial.
    (c) Form of appeal. (1) An appeal shall be initiated by filing a 
written notice of appeal. The notice shall be accompanied by copies of 
the original request and the initial denial and should, in order to 
expedite the appellate process and give the requester an opportunity to 
present his or her arguments, contain a brief statement of the reasons 
why the requester believes the initial denial to have been in error.
    (2) The appeal shall be addressed to the Executive Director, The 
Presidio Trust, P.O. Box 29052, San Francisco, CA 94129-0052.
    (3) To expedite processing, both the envelope containing a notice of 
appeal and the face of the notice should bear the legend ``FREEDOM OF 
INFORMATION APPEAL.''



Sec. 1007.8  Action on appeals.

    (a) Authority. Appeals shall be decided by the Executive Director 
after consultation with the FOIA Officer and the General Counsel.
    (b) Time limit. A final determination shall be made within 20 
working days after receipt of an appeal meeting the requirements of 
Sec. 1007.7(c).

[[Page 234]]

    (c) Extensions of time. (1) If the time limit for responding to the 
initial request for a record was not extended under the provisions of 
Sec. 1007.6(c) or was extended for fewer than 10 working days, the time 
for processing of the appeal may be extended to the extent reasonably 
necessary to the proper processing of the appeal, but in no event may 
the extension, when taken together with any extension made during 
processing of the initial request, result in an aggregate extension with 
respect to any one request of more than 10 working days. The time for 
processing of an appeal may be extended only if one or more of the 
unusual circumstances listed in Sec. 1007.6(c) requires an extension.
    (2) The appellant shall be advised in writing of the reasons for the 
extension and the date on which a final determination on the appeal is 
expected to be dispatched.
    (3) If no determination on the appeal has been reached at the end of 
the 20 working day period, or the extension thereof, the requester is 
deemed to have exhausted his administrative remedies, giving rise to a 
right of review in the United States District Court for the Northern 
District of California, as specified in 5 U.S.C. 552(a)(4).
    (4) When no determination can be reached within the applicable time 
limit, the appeal will nevertheless continue to be processed. On 
expiration of the time limit, the requester shall be informed of the 
reason for the delay, of the date on which a determination may be 
reached to be dispatched, and of the right to seek judicial review.
    (d) Form of decision. (1) The final determination on an appeal shall 
be in writing and shall state the basis for the determination. If the 
determination is to release the requested records or portions thereof, 
the FOIA Officer shall immediately make the records available. If the 
determination upholds in whole or part the initial denial of a request 
for records, the determination shall advise the requester of the right 
to obtain judicial review in the U.S. District Court for the Northern 
District of California and shall set forth the names and titles or 
positions of each person responsible for the denial.
    (2) If a requested record (or portion thereof) is being made 
available over the objections of a submitter made in accordance with 
Sec. 1007.4(c), the submitter shall be provided notice as described in 
Sec. 1007.5(b)(3).



Sec. 1007.9  Fees.

    (a) Policy. (1) Unless waived pursuant to the provisions of Sec. 
1007.10, fees for responding to FOIA requests shall be charged in 
accordance with the provisions of this section and the current schedule 
of charges determined by the Executive Director and published in the 
compilation provided under Sec. 1001.7(b) of this chapter. Such charges 
shall be set at the level necessary to recoup the full allowable direct 
costs to the Trust.
    (2) Fees shall not be charged if the total amount chargeable does 
not exceed the costs of routine collection and processing of the fee. 
The Trust shall periodically determine the cost of routine collection 
and processing of a fee and publish such amount in the compilation 
provided under Sec. 1001.7(b) of this chapter.
    (3) Where there is a reasonable basis to conclude that a requester 
or group of requesters acting in concert has divided a request into a 
series of requests on a single subject or related subjects to avoid 
assessment of fees, the requests may be aggregated and fees charged 
accordingly.
    (4) Fees shall be charged to recover the full costs of providing 
such services as certifying that records are true copies or sending 
records by a method other than regular mail, when the Trust elects to 
provide such services.
    (5) The following definitions shall apply to this part:
    (i) The term search includes all time spent looking for material 
that is responsive to a request, including page-by-page or line-by-line 
identification of material within documents or databases. Searches shall 
be undertaken in the most efficient and least expensive manner possible, 
consistent with the Presidio Trust's obligations under FOIA and other 
applicable laws.
    (ii) The term duplication refers to the process of making a copy of 
a record necessary to respond to a FOIA request. Such copies can take 
the form of

[[Page 235]]

paper copy, microform, audio-visual materials, or machine-readable 
documentation (e.g., magnetic tape or disk), among others. The copy 
provided shall be in a form that is reasonably usable by requesters.
    (iii) A commercial use request is a request from or on behalf of a 
person 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. The intended use of records may be 
determined on the basis of information submitted by a requester and from 
reasonable inferences based on the identity of the requester and any 
other available information.
    (iv) An educational institution is a preschool, a public or private 
elementary or secondary school, an institution of graduate higher 
education, an institution of undergraduate higher education, an 
institution of professional education, or an institution of vocational 
education, which operates a program or programs of scholarly research.
    (v) A noncommercial scientific institution is an institution that is 
not operated for commerce, trade or profit and that is operated solely 
for the purpose of conducting scientific research the results of which 
are not intended to promote any particular product or industry.
    (vi) A representative of the news media is 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 is (or would be) of current 
interest to the public. Examples of news media entities include, but are 
not limited to, 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. 
As traditional methods of news delivery evolve (e.g., electronic 
dissemination of newspapers through telecommunications services), such 
alternative media would be included in this category. Free-lance 
journalists may be considered representatives of the news media if they 
demonstrate a solid basis for expecting publication through a news 
organization, even though not actually employed by it. A publication 
contract or past record of publication, or evidence of a specific free-
lance assignment from a news organization may indicate a solid basis for 
expecting publication.
    (b) Commercial use requests. (1) A requester seeking records for 
commercial use shall be charged fees for costs incurred in document 
search and review (even if the search and review fails to locate records 
that are not exempt from disclosure) and duplication.
    (2) A commercial use requester may not be charged fees for time 
spent resolving legal and policy issues affecting access to requested 
records.
    (c) Educational and noncommercial scientific institution requests. 
(1) A requester seeking records under the auspices of an educational 
institution in furtherance of scholarly research or a noncommercial 
scientific institution in furtherance of scientific research shall be 
charged for document duplication, except that the first 100 pages of 
paper copies (or the equivalent cost thereof if the records are in some 
other form) shall be provided without charge.
    (2) Such requesters may not be charged fees for costs incurred in:
    (i) Searching for requested records,
    (ii) Examining requested records to determine whether they are 
exempt from mandatory disclosure,
    (iii) Deleting reasonably segregable exempt matter,
    (iv) Monitoring the requester's inspection of agency records, or
    (v) Resolving legal and policy issues affecting access to requested 
records.
    (d) News media requests. (1) A representative of the news media 
shall be charged for document duplication, except that the first 100 
pages of paper copies (or the equivalent cost thereof if the records are 
in some other form) shall be provided without charge.
    (2) Representatives of the news media may not be charged fees for 
costs incurred in:
    (i) Searching for requested records,
    (ii) Examining requested records to determine whether they are 
exempt from mandatory disclosure,

[[Page 236]]

    (iii) Deleting reasonably segregable exempt matter,
    (iv) Monitoring the requester's inspection of agency records, or
    (v) Resolving legal and policy issues affecting access to requested 
records.
    (e) Other requests. (1) A requester not covered by paragraphs (b), 
(c), or (d) of this section shall be charged fees for document search 
(even if the search fails to locate records that are not exempt from 
disclosure) and duplication, except that the first two hours of search 
time and the first 100 pages of paper copies (or the equivalent cost 
thereof if the records are in some other form) shall be provided without 
charge.
    (2) Such requesters may not be charged for costs incurred in:
    (i) Examining requested records to determine whether they are exempt 
from disclosure,
    (ii) Deleting reasonably segregable exempt matter,
    (iii) Monitoring the requester's inspection of agency records, or
    (iv) Resolving legal and policy issues affecting access to requested 
records.
    (f) Requests for clarification. Where a request does not provide 
sufficient information to determine whether it is covered by paragraph 
(b), (c), (d), or (e) of this section, the requester should be asked to 
provide additional clarification. If it is necessary to seek such 
clarification, the request may be deemed to have not been received for 
purposes of the time limits established in Sec. 1007.6 until the 
clarification is received. Requests to requesters for clarification 
shall be made promptly.
    (g) Notice of anticipated fees. Where a request does not state a 
willingness to pay fees as high as anticipated by the Presidio Trust, 
and the requester has not sought and been granted a full waiver of fees 
under Sec. 1007.10, the request may be deemed to have not been received 
for purposes of the time limits established in Sec. 1007.6 until the 
requester has been notified of and agrees to pay the anticipated fee. 
Advice to requesters with respect to anticipated fees shall be provided 
promptly.
    (h) Advance payment. (1) Where it is anticipated that allowable fees 
are likely to exceed $250.00, the requester may be required to make an 
advance payment of the entire fee before processing of his or her 
request.
    (2) Where a requester has previously failed to pay a fee within 30 
days of the date of billing, processing of any request from that 
requester shall ordinarily be suspended until the requester pays any 
amount still owed, including applicable interest, and makes advance 
payment of allowable fees anticipated in connection with the request.
    (3) Advance payment of fees may not be required except as described 
in paragraphs (h) (1) and (2) of this section.
    (4) Issuance of a notice requiring payment of overdue fees or 
advance payment shall toll the time limit in Sec. 1007.6 until receipt 
of payment.
    (i) Form of payment. Payment of fees should be made by check or 
money order payable to the Presidio Trust. Where appropriate, the 
official responsible for handling a request may require that payment by 
check be made in the form of a certified check.
    (j) Billing procedures. A bill for collection shall be prepared for 
each request that requires collection of fees.
    (k) Collection of fees. The bill for collection or an accompanying 
letter to the requester shall include a statement that interest will be 
charged in accordance with the Debt Collection Act of 1982, 31 U.S.C. 
3717, and implementing regulations, 4 CFR 102.13, if the fees are not 
paid within 30 days of the date of the bill for collection is mailed or 
hand-delivered to the requester. This requirement does not apply if the 
requester is a unit of State or local government. Other authorities of 
the Debt Collection Act of 1982 shall be used, as appropriate, to 
collect the fees.



Sec. 1007.10  Waiver of fees.

    (a) Statutory fee waiver. Documents shall be furnished without 
charge or at a charge reduced below the fees chargeable under Sec. 
1007.9 if disclosure of the information is in the public interest 
because it:
    (1) Is likely to contribute significantly to public understanding of 
the operations or activities of the government and
    (2) Is not primarily in the commercial interest of the requester.
    (b) Elimination or reduction of fees. Ordinarily, in the 
circumstances where

[[Page 237]]

the criteria of paragraph (a) of this section are met, fees will be 
reduced by twenty-five percent from the fees otherwise chargeable to the 
requester. In exceptional circumstances, and with the approval of the 
Executive Director, fees may be reduced below this level or waived 
entirely.
    (c) Notice of denial. If a requested statutory fee waiver or 
reduction is denied, the requester shall be notified in writing. The 
notice shall include:
    (1) A statement of the basis on which the waiver or reduction has 
been denied;
    (2) A listing of the names and titles or positions of each person 
responsible for the denial; and
    (3) A statement that the denial may be appealed to the Executive 
Director and a description of the procedures in Sec. 1007.7 for appeal.



PART 1008_REQUESTS UNDER THE PRIVACY ACT--Table of Contents




Sec.
1008.1 Purpose and scope.
1008.2 Definitions.
1008.3 Records subject to the Privacy Act.
1008.4 Standards for maintenance of records subject to the Privacy Act.
1008.5 Federal Register notices describing systems of records.
1008.6 Assuring integrity of records.
1008.7 Conduct of employees.
1008.8 Government contracts.
1008.9 Disclosure of records.
1008.10 Accounting for disclosures.
1008.11 Requests for notification of existence of records: Submission.
1008.12 Requests for notification of existence of records: Action on.
1008.13 Requests for access to records.
1008.14 Requests for access to records: Submission.
1008.15 Requests for access to records: Initial decision.
1008.16 Requests for notification of existence of records and for access 
          to records: Appeals.
1008.17 Requests for access to records: Special situations.
1008.18 Amendment of records.
1008.19 Petitions for amendment: Submission and form.
1008.20 Petitions for amendment: Processing and initial decision.
1008.21 Petitions for amendment: Time limits for processing.
1008.22 Petitions for amendment: Appeals.
1008.23 Petitions for amendment: Action on appeals.
1008.24 Statements of disagreement.

    Authority: Pub. L. 104-333, 110 Stat. 4097 (16 U.S.C. 460bb note); 5 
U.S.C. 552a.

    Source: 63 FR 71779, Dec. 30, 1998, unless otherwise noted.



Sec. 1008.1  Purpose and scope.

    This part contains the regulations of the Presidio Trust 
implementing section 3 of the Privacy Act. Sections 1008.3 through 
1008.10 describe the procedures and policies of the Presidio Trust 
concerning maintenance of records which are subject to the Privacy Act. 
Sections 1008.11 through 1008.17 describe the procedure under which 
individuals may determine whether systems of records subject to the 
Privacy Act contain records relating to them and the procedure under 
which they may seek access to existing records. Sections 1008.18 through 
1008.24 describe the procedure under which individuals may petition for 
amendment of records subject to the Privacy Act relating to them.



Sec. 1008.2  Definitions.

    The following terms have the following meanings as used in this 
part:
    Individual means a citizen of the United States or an alien lawfully 
admitted for permanent residence.
    Maintain means maintain, collect, use or disseminate.
    Privacy Act means 5 U.S.C. 552a.
    Privacy Act Officer means the Presidio Trust official charged with 
responsibility for carrying out the functions assigned in this part.
    Record means any item, collection, or grouping of information about 
an individual that is maintained by the Presidio Trust, including, but 
not limited to, education, financial transactions, medical history, and 
criminal or employment history and that contains the individual's name, 
or the identifying number, symbol, or other identifying particular 
assigned to the individual, such as a finger or voice print, or a 
photograph. Related definitions include:
    (1) System of records means a group of any records under the control 
of the Presidio Trust from which information is retrieved by the name of 
the individual or by some identifying number,

[[Page 238]]

symbol, or other identifying particular assigned to the individual.
    (2) Medical records means records which relate to the 
identification, prevention, cure or alleviation of any disease, illness 
or injury including psychological disorders, alcoholism and drug 
addiction.
    (3) Personnel records means records used for personnel management 
programs or processes such as staffing, employee development, 
retirement, and grievances and appeals.
    (4) Statistical records means records 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.
    Routine use means a use of a record for a purpose which is 
compatible with the purpose for which it was collected.
    System manager means the official designated in a system notice as 
having administrative responsibility for a system of records.
    System notice means the notice describing a system of records 
required by 5 U.S.C. 552a(e)(4) to be published in the Federal Register 
upon establishment or revision of the system of records.



Sec. 1008.3  Records subject to the Privacy Act.

    The Privacy Act applies to all records which the Presidio Trust 
maintains in a system of records.



Sec. 1008.4  Standards for maintenance of records subject to the Privacy Act.

    (a) Content of records. Records subject to the Privacy Act shall 
contain only such information about an individual as is relevant and 
necessary to accomplish a purpose of the Presidio Trust required to be 
accomplished by statute or Executive Order of the President.
    (b) Standards of accuracy. Records subject to the Privacy Act which 
are used in making any determination about any individual shall be 
maintained with such accuracy, relevance, timeliness, and completeness 
as is reasonably necessary to assure fairness to the individual in 
making the determination.
    (c) Collection of information. (1) Information which may be used in 
making determinations about an individual's rights, benefits, and 
privileges under Federal programs shall, to the greatest extent 
practicable, be collected directly from that individual.
    (2) In deciding whether collection of information from an 
individual, as opposed to a third party source, is practicable, the 
following factors, among others, may be considered:
    (i) Whether the nature of the information sought is such that it can 
only be obtained from a third party;
    (ii) Whether the cost of collecting the information from the 
individual is unreasonable when compared with the cost of collecting it 
from a third party;
    (iii) Whether there is a risk that information collected from third 
parties, if inaccurate, could result in an adverse determination to the 
individual concerned;
    (iv) Whether the information, if supplied by the individual, would 
have to be verified by a third party; or (v) Whether provisions can be 
made for verification, by the individual, of information collected from 
third parties.
    (d) Advice to individuals concerning uses of information. (1) Each 
individual who is asked to supply information about him or herself which 
will be added to a system of records shall be informed of the basis for 
requesting the information, how it may be used, and what the 
consequences, if any, are of not supplying the information.
    (2) At a minimum, the notice to the individual must state:
    (i) 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;
    (ii) The principal purpose or purposes for which the information is 
intended to be used;
    (iii) The routine uses which may be made of the information; and
    (iv) The effects on the individual, if any, of not providing all or 
any part of the requested information.
    (3)(i) When information is collected on a standard form, the notice 
to the individual shall be provided on the form, on a tear-off sheet 
attached to the form, or on a separate sheet, whichever is most 
practical.

[[Page 239]]

    (ii) When information is collected by an interviewer, the 
interviewer shall provide the individual with a written notice which the 
individual may retain. If the interview is conducted by telephone, 
however, the interviewer may summarize the notice for the individual and 
need not provide a copy to the individual unless the individual requests 
a copy.
    (iii) An individual may be asked to acknowledge, in writing, that 
the notice required by this section has been provided.
    (e) Records concerning activity protected by the First Amendment. No 
record may be maintained describing how any individual exercises rights 
guaranteed by the First Amendment to the Constitution unless the 
maintenance of the record is:
    (1) Expressly authorized by statute or by the individual about whom 
the record is maintained; or
    (2) Pertinent to and within the scope of an authorized law 
enforcement activity.



Sec. 1008.5  Federal Register notices describing systems of records.

    The Privacy Act requires publication of a notice in the Federal 
Register describing each system of records subject to the Privacy Act. 
Such notice will be published prior to the establishment or a revision 
of the system of records. 5 U.S.C. 552a(e)(4).



Sec. 1008.6  Assuring integrity of records.

    (a) Statutory requirement. The Privacy Act requires that records 
subject to the Privacy Act be maintained with 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, 5 U.S.C. 552a(e)(10).
    (b) Records security. Whether maintained in physical or electronic 
form, records subject to the Privacy Act shall be maintained in a secure 
manner commensurate with the sensitivity of the information contained in 
the system of records. The Privacy Act Officer will periodically review 
these security measures to ensure their adequacy.



Sec. 1008.7  Conduct of employees.

    (a) Handling of records subject to the Privacy Act. Employees whose 
duties require handling of records subject to the Privacy Act shall, at 
all times, take care to protect the integrity, security and 
confidentiality of these records.
    (b) Disclosure of records. No employee of the Presidio Trust may 
disclose records subject to the Privacy Act unless disclosure is 
permitted under Sec. 1008.9 or is to the individual to whom the record 
pertains.
    (c) Alteration of records. No employee of the Presidio Trust may 
alter or destroy a record subject to the Privacy Act unless such 
alteration or destruction is:
    (1) Properly undertaken in the course of the employee's regular 
duties; or
    (2) Required by a decision under Sec. Sec. 1008.18 through 1008.23 
or the decision of a court of competent jurisdiction.



Sec. 1008.8  Government contracts.

    (a) Required contract provisions. When a contract provides for the 
operation by or on behalf of the Presidio Trust of a system of records 
to accomplish a Presidio Trust function, the contract shall, consistent 
with the Presidio Trust's authority, cause the requirements of 5 U.S.C. 
552a and the regulations contained in this part to be applied to such 
system.
    (b) System manager. A regular employee of the Presidio Trust will be 
the manager for a system of records operated by a contractor.



Sec. 1008.9  Disclosure of records.

    (a) Prohibition of disclosure. No record contained in a system of 
records may be disclosed by any means of communication to any person, or 
to another agency, except pursuant to a written request by, or with the 
prior written consent of, the individual to whom the record pertains.
    (b) General exceptions. The prohibition contained in paragraph (a) 
of this section does not apply where disclosure of the record would be:
    (1) To those officers or employees of the Presidio Trust who have a 
need for

[[Page 240]]

the record in the performance of their duties; or
    (2) Required by the Freedom of Information Act, 5 U.S.C. 552.
    (c) Specific exceptions. The prohibition contained in paragraph (a) 
of this section does not apply where disclosure of the record would be:
    (1) For a routine use which has been described in a system notice 
published in the Federal Register;
    (2) To the Bureau of the Census for purposes of planning or carrying 
out a census or survey or related activity pursuant to the provisions of 
Title 13, U.S. Code.
    (3) To a recipient who has provided the system manager responsible 
for the system in which the record is maintained 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;
    (4) To the National Archives and Records Administration 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 Archivist 
of the United States or the designee of the Archivist to determine 
whether the record has such value;
    (5) To another agency or to an instrumentality of any governmental 
jurisdiction within or under the control of the United States for a 
civil or criminal law enforcement activity if the activity is authorized 
by law, and if the head of the agency or instrumentality has made a 
written request to the Presidio Trust specifying the particular portion 
desired and the law enforcement activity for which the record is sought;
    (6) 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;
    (7) 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;
    (8) To the Comptroller General, or any of his authorized 
representatives, in the course of the performance of the duties of the 
General Accounting Office;
    (9) Pursuant to the order of a court of competent jurisdiction; or
    (10) To a consumer reporting agency in accordance with section 3(d) 
of the Federal Claims Collection Act of 1966, as amended (31 U.S.C. 
3711(f)).
    (d) Reviewing records prior to disclosure. (1) Prior to any 
disclosure of a record about an individual, unless disclosure is 
required by the Freedom of Information Act, reasonable efforts shall be 
made to ensure that the records are accurate, complete, timely and 
relevant for agency purposes.
    (2) When a record is disclosed in connection with a Freedom of 
Information Act request made under this part and it is appropriate and 
administratively feasible to do so, the requester shall be informed of 
any information known to the Presidio Trust indicating that the record 
may not be fully accurate, complete, or timely.



Sec. 1008.10  Accounting for disclosures.

    (a) Maintenance of an accounting. (1) Where a record is disclosed to 
any person, or to another agency, under any of the specific exceptions 
provided by Sec. 1008.9(c), an accounting shall be made.
    (2) The accounting shall record:
    (i) The date, nature, and purpose of each disclosure of a record to 
any person or to another agency; and
    (ii) The name and address of the person or agency to whom the 
disclosure was made.
    (3) Accountings prepared under this section shall be maintained for 
at least five years or the life of the record, whichever is longer, 
after the disclosure for which the accounting is made.
    (b) Access to accountings. (1) Except for accountings of disclosures 
made under Sec. 1008.9(c)(5), accountings of all disclosures of a 
record shall be made available to the individual to whom the record 
relates at the individual's request.
    (2) An individual desiring access to an accounting of disclosures of 
a record pertaining to the individual shall submit a request by 
following the procedures of Sec. 1008.13.

[[Page 241]]

    (c) Notification of disclosure. When a record is disclosed pursuant 
to Sec. 1008.9(c)(9) as the result of the order of a court of competent 
jurisdiction, reasonable efforts shall be made to notify the individual 
to whom the record pertains as soon as the order becomes a matter of 
public record.



Sec. 1008.11  Request for notification of existence of records: Submission.

    (a) Submission of requests. (1) Individuals desiring to determine 
under the Privacy Act whether a system of records contains records 
pertaining to them shall address inquiries to the Privacy Act Officer, 
The Presidio Trust, P.O. Box 29052, San Francisco, CA 94129-0052, unless 
the system notice describing the system prescribes or permits submission 
to some other official or officials.
    (2) Individuals desiring to determine whether records pertaining to 
them are maintained in two or more systems shall make a separate inquiry 
concerning each system.
    (b) Form of request. (1) An inquiry to determine whether a system of 
records contains records pertaining to an individual shall be in 
writing.
    (2) To expedite processing, both the envelope containing a request 
and the face of the request should bear the legend ``PRIVACY ACT 
INQUIRY.''
    (3) The request shall state that the individual is seeking 
information concerning records pertaining to him or herself and shall 
supply such additional identifying information, if any, as is called for 
in the system notice describing the system.
    (4) Individuals who have reason to believe that information 
pertaining to them may be filed under a name other than the name they 
are currently using (e.g., maiden name), shall include such information 
in the request.



Sec. 1008.12  Requests for notification of existence of records: Action on.

    (a) Decisions on request. (1) Individuals inquiring to determine 
whether a system of records contains records pertaining to them shall be 
promptly advised whether the system contains records pertaining to them 
unless:
    (i) The records were compiled in reasonable anticipation of a civil 
action or proceeding; or
    (ii) The system of records is one which has been excepted from the 
notification provisions of the Privacy Act by rulemaking.
    (2) If the records were compiled in reasonable anticipation of a 
civil action or proceeding or the system of records is one which has 
been excepted from the notification provisions of the Privacy Act by 
rulemaking, the individuals will be promptly notified that they are not 
entitled to notification of whether the system contains records 
pertaining to them.
    (b) Authority to deny requests. A decision to deny a request for 
notification of the existence of records shall be made by the Privacy 
Act officer in consultation with the General Counsel.
    (c) Form of decision. (1) No particular form is required for a 
decision informing individuals whether a system of records contains 
records pertaining to them.
    (2) A decision declining to inform an individual whether or not a 
system of records contains records pertaining to him or her shall be in 
writing and shall:
    (i) State the basis for denial of the request;
    (ii) Advise the individual that an appeal of the declination may be 
made to the Executive Director pursuant to Sec. 1008.16 by writing to 
the Executive Director, The Presidio Trust, P.O. Box 29052, San 
Francisco, CA 94129-0052; and
    (iii) State that the appeal must be received by the foregoing 
official within 20 working days of the date of the decision.
    (3) If the decision declining a request for notification of the 
existence of records involves records which fall under the jurisdiction 
of another agency, the individual shall be informed in a written 
response which shall:
    (i) State the reasons for the denial;
    (ii) Include the name, position title, and address of the official 
responsible for the denial; and (iii) Advise the individual that an 
appeal of the declination may be made only to the appropriate official 
of the relevant agency, and include that official's name, position 
title, and address.

[[Page 242]]

    (4) Copies of decisions declining a request for notification of the 
existence of records made pursuant to paragraphs (c)(2) and (c)(3) of 
this section shall be provided to the Privacy Act Officer.



Sec. 1008.13  Requests for access to records.

    The Privacy Act permits individuals, upon request, to gain access to 
their records or to any information pertaining to them which is 
contained in a system and to review the records and have a copy made of 
all or any portion thereof in a form comprehensive to them. 5 U.S.C. 
552a(d)(1). A request for access shall be submitted in accordance with 
the procedures in this part.



Sec. 1008.14  Requests for access to records: Submission.

    (a) Submission of requests. (1) Requests for access to records shall 
be submitted to the Privacy Act Officer unless the system notice 
describing the system prescribes or permits submission to some other 
official or officials.
    (2) Individuals desiring access to records maintained in two or more 
separate systems shall submit a separate request for access to the 
records in each system.
    (b) Form of request. (1) A request for access to records subject to 
the Privacy Act shall be in writing and addressed to Privacy Act 
Officer, The Presidio Trust, P.O. Box 29052, San Francisco, CA 94129-
0052.
    (2) To expedite processing, both the envelope containing a request 
and the face of the request should bear the legend ``PRIVACY ACT REQUEST 
FOR ACCESS.''
    (3) Requesters shall specify whether they seek all of the records 
contained in the system which relate to them or only some portion 
thereof. If only a portion of the records which relate to the individual 
are sought, the request shall reasonably describe the specific record or 
records sought.
    (4) If the requester seeks to have copies of the requested records 
made, the request shall state the maximum amount of copying fees which 
the requester is willing to pay. A request which does not state the 
amount of fees the requester is willing to pay will be treated as a 
request to inspect the requested records. Requesters are further 
notified that under Sec. 1008.15(d) the failure to state willingness to 
pay fees as high as are anticipated by the Presidio Trust will delay 
processing of a request.
    (5) The request shall supply such identifying information, if any, 
as is called for in the system notice describing the system.
    (6) Requests failing to meet the requirements of this paragraph 
shall be returned to the requester with a written notice advising the 
requester of the deficiency in the request.



Sec. 1008.15  Requests for access to records: Initial decision.

    (a) Decisions on requests. A request made under this part for access 
to a record shall be granted promptly unless the record:
    (1) Was compiled in reasonable anticipation of a civil action or 
proceeding; or
    (2) Is contained in a system of records which has been excepted from 
the access provisions of the Privacy Act by rulemaking.
    (b) Authority to deny requests. A decision to deny a request for 
access under this part shall be made by the Privacy Act Officer in 
consultation with the General Counsel.
    (c) Form of decision. (1) No particular form is required for a 
decision granting access to a record. The decision shall, however, 
advise the individual requesting the record as to where and when the 
record is available for inspection or, as the case may be, where and 
when copies will be available. If fees are due under Sec. 1008.15(d), 
the individual requesting the record shall also be notified of the 
amount of fees due or, if the exact amount has not been determined, the 
approximate amount of fees due.
    (2) A decision denying a request for access, in whole or part, shall 
be in writing and shall:
    (i) State the basis for denial of the request;
    (ii) Contain a statement that the denial may be appealed to the 
Executive Director pursuant to Sec. 1008.16 by writing to the Executive 
Director, The Presidio Trust, P.O. Box 29052, San Francisco, CA 94129-
0052; and (iii) State that

[[Page 243]]

the appeal must be received by the foregoing official within 20 working 
days of the date of the decision.
    (3) If the decision denying a request for access involves records 
which fall under the jurisdiction of another agency, the individual 
shall be informed in a written response which shall:
    (i) State the reasons for the denial;
    (ii) Include the name, position title, and address of the official 
responsible for the denial; and
    (iii) Advise the individual that an appeal of the declination may be 
made only to the appropriate official of the relevant agency, and 
include that official's name, position title, and address.
    (4) Copies of decisions denying requests for access made pursuant to 
paragraphs (c)(2) and (c)(3) of this section will be provided to the 
Privacy Act Officer.
    (d) Fees. (1) No fees may be charged for the cost of searching for 
or reviewing a record in response to a request made under Sec. 1008.14.
    (2) Unless the Privacy Act Officer determines that reduction or 
waiver of fees is appropriate, fees for copying a record in response to 
a request made under Sec. 1008.14 shall be charged in accordance with 
the provisions of this section and the current schedule of charges 
determined by the Executive Director and published in the compilation 
provided under Sec. 1001.7(b) of this chapter. Such charges shall be 
set at the level necessary to recoup the full allowable direct costs to 
the Trust.
    (3) Where it is anticipated that fees chargeable in connection with 
a request will exceed the amount the person submitting the request has 
indicated a willingness to pay, the Privacy Act Officer shall notify the 
requester and shall not complete processing of the request until the 
requester has agreed, in writing, to pay fees as high as are 
anticipated.



Sec. 1008.16  Requests for notification of existence of records and for access to records: Appeals.

    (a) Right of appeal. Except for appeals pertaining to records under 
the jurisdiction of another agency, individuals who have been notified 
that they are not entitled to notification of whether a system of 
records contains records pertaining to them or have been denied access, 
in whole or part, to a requested record may appeal to the Executive 
Director.
    (b) Time for appeal. (1) An appeal must be received by the Executive 
Director no later than 20 working days after the date of the initial 
decision on a request.
    (2) The Executive Director may, for good cause shown, extend the 
time for submission of an appeal if a written request for additional 
time is received within 20 working days of the date of the initial 
decision on the request.
    (c) Form of appeal. (1) An appeal shall be in writing and shall 
attach copies of the initial request and the decision on the request.
    (2) The appeal shall contain a brief statement of the reasons why 
the appellant believes the decision on the initial request to have been 
in error.
    (3) The appeal shall be addressed to the Executive Director, The 
Presidio Trust, P.O. Box 29052, San Francisco, CA 94129-0052.
    (d) Action on appeals. (1) Appeals from decisions on initial 
requests made pursuant to Sec. Sec. 1008.11 and 1008.14 shall be 
decided for the Presidio Trust by the Executive Director after 
consultation with the General Counsel.
    (2) The decision on an appeal shall be in writing and shall state 
the basis for the decision.



Sec. 1008.17  Requests for access to records: Special situations.

    (a) Medical records. (1) Medical records shall be disclosed to the 
individual to whom they pertain unless it is determined, in consultation 
with a medical doctor, that disclosure should be made to a medical 
doctor of the individual's choosing.
    (2) If it is determined that disclosure of medical records directly 
to the individual to whom they pertain could have an adverse effect on 
that individual, the individual may designate a medical doctor to 
receive the records and the records will be disclosed to that doctor.
    (b) Inspection in presence of third party. (1) Individuals wishing 
to inspect records pertaining to them which have been opened for their 
inspection may,

[[Page 244]]

during the inspection, be accompanied by a person of their own choosing.
    (2) When such a procedure is deemed appropriate, individuals to whom 
the records pertain may be required to furnish a written statement 
authorizing discussion of their records in the accompanying person's 
presence.



Sec. 1008.18  Amendment of records.

    The Privacy Act permits individuals to request amendment of records 
pertaining to them if they believe the records are not accurate, 
relevant, timely or complete. 5 U.S.C. 552a(d)(2). A request for 
amendment of a record shall be submitted in accordance with the 
procedures in this part.



Sec. 1008.19  Petitions for amendment: Submission and form.

    (a) Submission of petitions for amendment. (1) A request for 
amendment of a record shall be submitted to the Privacy Act Officer 
unless the system notice describing the system prescribes or permits 
submission to a different official or officials. If an individual wishes 
to request amendment of records located in more than one system, a 
separate petition must be submitted with respect to each system.
    (2) A petition for amendment of a record may be submitted only if 
the individual submitting the petition has previously requested and been 
granted access to the record and has inspected or been given a copy of 
the record.
    (b) Form of petition. (1) A petition for amendment shall be in 
writing and shall specifically identify the record for which amendment 
is sought.
    (2) The petition shall state, in detail, the reasons why the 
petitioner believes the record, or the objectionable portion thereof, is 
not accurate, relevant, timely or complete. Copies of documents or 
evidence relied upon in support of these reasons shall be submitted with 
the petition.
    (3) The petition shall state, specifically and in detail, the 
changes sought in the record. If the changes involve rewriting the 
record or portions thereof or involve adding new language to the record, 
the petition shall propose specific language to implement the changes.



Sec. 1008.20  Petitions for amendment: Processing and initial decision.

    (a) Decisions on petitions. In reviewing a record in response to a 
petition for amendment, the accuracy, relevance, timeliness and 
completeness of the record shall be assessed against the criteria set 
out in Sec. 1008.4.
    (b) Authority to decide. A decision on a petition for amendment 
shall be made by the Privacy Act Officer in consultation with the 
General Counsel.
    (c) Acknowledgment of receipt. Unless processing of a petition is 
completed within ten working days, the receipt of the petition for 
amendment shall be acknowledged in writing by the Privacy Act Officer.
    (d) Inadequate petitions. (1) If a petition does not meet the 
requirements of Sec. 1008.19, the petitioner shall be so advised and 
shall be told what additional information must be submitted to meet the 
requirements of Sec. 1008.19.
    (2) If the petitioner fails to submit the additional information 
within a reasonable time, the petition may be rejected. The rejection 
shall be in writing and shall meet the requirements of paragraph (e) of 
this section.
    (e) Form of decision. (1) A decision on a petition for amendment 
shall be in writing and shall state concisely the basis for the 
decision.
    (2) If the petition for amendment is rejected, in whole or part, the 
petitioner shall be informed in a written response which shall:
    (i) State concisely the basis for the decision;
    (ii) Advise the petitioner that the rejection may be appealed to the 
Executive Director, The Presidio Trust, P.O. Box 29052, San Francisco, 
CA 94129-0052; and
    (iii) State that the appeal must be received by the foregoing 
official within 20 working days of the decision.
    (3) If the petition for amendment involves records which fall under 
the jurisdiction of another agency and is rejected, in whole or part, 
the petitioner shall be informed in a written response which shall:
    (i) State concisely the basis for the decision;
    (ii) Include the name, position title, and address of the official 
responsible for the denial; and

[[Page 245]]

    (iii) Advise the individual that an appeal of the rejection may be 
made only to the appropriate official of the relevant agency, and 
include that official's name, position title, and address.
    (4) Copies of rejections of petitions for amendment made pursuant to 
paragraphs (e)(2) and (e)(3) of this section will be provided to the 
Privacy Act Officer.
    (f) Implementation of initial decision. If a petition for amendment 
is accepted, in whole or part, the system manager maintaining the record 
shall:
    (1) Correct the record accordingly and,
    (2) Where an accounting of disclosures has been made pursuant to 
Sec. 1008.10, advise all previous recipients of the record that the 
correction was made and the substance of the correction.



Sec. 1008.21  Petitions for amendment: Time limits for processing.

    (a) Acknowledgment of receipt. The acknowledgment of receipt of a 
petition required by Sec. 1008.20(c) shall be dispatched not later than 
ten working days after receipt of the petition by the Privacy Act 
Officer, unless a decision on the petition has been previously 
dispatched.
    (b) Decision on petition. A petition for amendment shall be 
processed promptly. A determination whether to accept or reject the 
petition for amendment shall be made within 30 working days after 
receipt of the petition by the system manager responsible for the system 
containing the challenged record.
    (c) Suspension of time limit. The 30 working day time limit for a 
decision on a petition shall be suspended if it is necessary to notify 
the petitioner, pursuant to Sec. 1008.20(d), that additional 
information in support of the petition is required. Running of the 30 
working day time limit shall resume on receipt of the additional 
information by the system manager responsible for the system containing 
the challenged record.
    (d) Extensions of time. (1) The 30 working day time limit for a 
decision on a petition may be extended if the Privacy Act Officer 
determines that an extension is necessary for one of the following 
reasons:
    (i) A decision on the petition requires analysis of voluminous 
record or records;
    (ii) Some or all of the challenged records must be collected from 
facilities other than the facility at which the Privacy Act Officer is 
located; or
    (iii) Some or all of the challenged records are of concern to 
another agency of the Federal Government whose assistance and views are 
being sought in processing the request.
    (2) If the official responsible for making a decision on the 
petition determines that an extension is necessary, the official shall 
promptly inform the petitioner of the extension and the date on which a 
decision is expected to be dispatched.



Sec. 1008.22  Petitions for amendment: Appeals.

    (a) Right of appeal. Except for appeals pertaining to records under 
the jurisdiction of another agency, where a petition for amendment has 
been rejected in whole or in part, the individual submitting the 
petition may appeal the denial to the Executive Director.
    (b) Time for appeal. (1) An appeal must be received no later than 20 
working days after the date of the decision on a petition.
    (2) The Executive Director may, for good cause shown, extend the 
time for submission of an appeal if a written request for additional 
time is received within 20 working days of the date of the decision on a 
petition.
    (c) Form of appeal. (1) An appeal shall be in writing and shall 
attach copies of the initial petition and the decision on that petition.
    (2) The appeal shall contain a brief statement of the reasons why 
the appellant believes the decision on the petition to have been in 
error.
    (3) The appeal shall be addressed to the Executive Director, The 
Presidio Trust, P.O. Box 29052, San Francisco, CA 94129-0052.



Sec. 1008.23  Petitions for amendment: Action on appeals.

    (a) Authority. Appeals from decisions on initial petitions for 
amendment shall be decided by the Executive Director, in consultation 
with the General Counsel.

[[Page 246]]

    (b) Time limit. (1) A final determination on any appeal shall be 
made within 30 working days after receipt of the appeal.
    (2) The 30 working day period for decision on an appeal may be 
extended, for good cause shown, by the Executive Director. If the 30 
working day period is extended, the individual submitting the appeal 
shall be notified of the extension and of the date on which a 
determination on the appeal is expected to be dispatched.
    (c) Form of decision. (1) The final determination on an appeal shall 
be in writing and shall state the basis for the determination.
    (2) If the determination upholds, in whole or part, the initial 
decision rejecting the petition for amendment, the determination shall 
also advise the individual submitting the appeal:
    (i) Of his or her right to file a concise statement of the reasons 
for disagreeing with the decision of the Presidio Trust;
    (ii) Of the procedure established by Sec. 1008.24 for the filing of 
the statement of disagreement;
    (iii) That the statement which is filed will be made available to 
anyone to whom the record is subsequently disclosed together with, at 
the discretion of the Presidio Trust, a brief statement by the Presidio 
Trust summarizing its reasons for refusing to amend the record;
    (iv) That prior recipients of the challenged record will be provided 
a copy of any statement of dispute to the extent that an accounting of 
disclosure was maintained; and
    (v) Of his or her right to seek judicial review of the Presidio 
Trust's refusal to amend the record.
    (3) If the determination reverses, in whole or in part, the initial 
decision rejecting the petition for amendment, the system manager 
responsible for the system containing the challenged record shall be 
directed to:
    (i) Amend the challenged record accordingly; and
    (ii) If an accounting of disclosures has been made, advise all 
previous recipients of the record of the amendment and its substance.



Sec. 1008.24  Statements of disagreement.

    (a) Filing of statement. If the determination of the Executive 
Director under Sec. 1008.23 rejects in whole or part, a petition for 
amendment, the individual submitting the petition may file with the 
Privacy Act Officer a concise written statement setting forth the 
reasons for disagreement with the determination of the Presidio Trust.
    (b) Disclosure of statements. In any disclosure of a record 
containing information about which an individual has filed a statement 
of disagreement under this section which occurs after the filing of the 
statement, the disputed portion of the record will be clearly noted and 
the recipient shall be provided copies of the statement of disagreement. 
If appropriate, a concise statement of the reasons of the Presidio Trust 
for not making the requested amendments may also be provided to the 
recipient.
    (c) Maintenance of statements. System managers shall develop 
procedures to assure that statements of disagreement filed with them 
shall be maintained in such a way as to assure dissemination of the 
statements to recipients of the records to which the statements pertain.



PART 1009_ADMINISTRATIVE CLAIMS UNDER THE FEDERAL TORT CLAIMS ACT--Table of Contents




Sec.
1009.1 Purpose.
1009.2 Procedure for filing claims.
1009.3 Denial of claims.
1009.4 Payment of claims.
1009.5 Indemnification of Presidio Trust directors and employees.

    Authority: Pub. L. 104-333, 110 Stat. 4097 (16 U.S.C. 460bb note); 
28 U.S.C. 2672.

    Source: 63 FR 71784, Dec. 30, 1998, unless otherwise noted.



Sec. 1009.1  Purpose.

    The purpose of this part is to establish procedures for the filing 
and settlement of claims under the Federal Tort Claims Act (in part, 28 
U.S.C. secs. 2401(b), 2671-2680, as amended by Pub. L. 89-506, 80 Stat. 
306). The officers

[[Page 247]]

to whom authority is delegated to settle tort claims shall follow and be 
guided by the regulations issued by the Attorney General prescribing 
standards and procedures for settlement of tort claims (28 CFR part 14).



Sec. 1009.2  Procedure for filing claims.

    (a) The procedure for filing and the contents of claims shall be 
pursuant to 28 CFR 14.2, 14.3 and 14.4.
    (b) Claims shall be filed directly with the Presidio Trust.
    (c) Upon receipt of a claim, the time and date of receipt shall be 
recorded. The claim shall be forwarded with the investigative file 
immediately to the General Counsel for determination.



Sec. 1009.3  Denial of claims.

    Denial of a claim shall be communicated as provided by 28 CFR 14.9.



Sec. 1009.4  Payment of claims.

    (a) When an award of $2,500 or less is made, the voucher signed by 
the claimant shall be transmitted for payment to the Presidio Trust. 
When an award over $2,500 is made, transmittal for payment will be made 
as prescribed by 28 CFR 14.10.
    (b) Prior to payment, appropriate releases shall be obtained as 
provided in 28 CFR 14.10.



Sec. 1009.5  Indemnification of Presidio Trust directors and employees.

    (a) The Presidio Trust may indemnify a Presidio Trust director or 
employee who is personally named as a defendant in any civil suit in 
state or federal court or an arbitration proceeding or other proceeding 
seeking damages against a Presidio Trust director or employee 
personally, for any verdict, judgment, or other monetary award which is 
rendered against such director or employee, provided that the conduct 
giving rise to the verdict, judgment, or award was taken within the 
scope of his or her duties or employment and that such indemnification 
is in the interest of the Presidio Trust as determined by
    (1) The Board, with respect to claims against an employee; or
    (2) A majority of the Board, exclusive of the director against whom 
claims have been made, with respect to claims against a director.
    (b) The Presidio Trust may settle or compromise a personal damage 
claim against a Presidio Trust director or employee by the payment of 
available funds, at any time, provided the alleged conduct giving rise 
to the personal damage claim was taken within the scope of the duties or 
employment of the director or employee and that such settlement or 
compromise is in the interest of the Presidio Trust as determined by:
    (1) the Board, with respect to claims against an employee; or
    (2) a majority of the Board, exclusive of the director against whom 
claims have been made, with respect to claims against a director.
    (c) The Presidio Trust will not entertain a request either to agree 
to indemnify or to settle a personal damage claim before entry of an 
adverse verdict, judgment, or award, unless exceptional circumstances 
exist as determined by:
    (1) the Board, with respect to claims against an employee; or
    (2) a majority of the Board, exclusive of the director against whom 
claims have been made, with respect to claims against a director.
    (d) A Presidio Trust director or employee may request 
indemnification to satisfy a verdict, judgment, or award entered against 
the director or employee. The director or employee shall submit a 
written request, with appropriate documentation including copies of the 
verdict, judgment, award, or settlement proposal, in a timely manner to 
the General Counsel, who shall make a recommended disposition of the 
request. Where appropriate, the Presidio Trust shall seek the views of 
the Department of Justice. The General Counsel shall forward the 
request, the accompanying documentation, and the General Counsel's 
recommendation to the Board for decision. In the event that a claim is 
made against the General Counsel, the Chair shall designate a director 
or employee of the Trust to fulfill the duties otherwise assigned to the 
General Counsel under this section.

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    (e) Any payment under this section either to indemnify a Presidio 
Trust director or employee or to settle a personal damage claim shall be 
contingent upon the availability of funds.



PART 1010_ENVIRONMENTAL QUALITY--Table of Contents




Sec.
1010.1 Policy.
1010.2 Purpose.
1010.3 Definitions.
1010.4 NEPA Compliance Coordinator.
1010.5 Major decision points.
1010.6 Determination of requirement for EA or EIS.
1010.7 Actions that do not require an EA or EIS.
1010.8 Actions that normally require an EIS.
1010.9 Preparation of an EIS.
1010.10 Actions that normally require an EA.
1010.11 Preparation of an EA.
1010.12 Public involvement.
1010.13 Trust decision-making procedures.
1010.14 Review of proposals by project applicants.
1010.15 Actions where lead agency designation is necessary.
1010.16 Actions to encourage agency cooperation early in the NEPA 
          process.
1010.17 Actions to eliminate duplication with State and local 
          procedures.

    Authority: Pub. L. 104-333, 110 Stat. 4097 (16 U.S.C. sec. 460bb 
note); 42 U.S.C. sec. 4321 et seq.; 40 CFR 1507.3.

    Source: 65 FR 55905, Sept. 15, 2000, unless otherwise noted.



Sec. 1010.1  Policy.

    The Presidio Trust's policy is to:
    (a) Use all practical means, consistent with the Trust's statutory 
authority, available resources, and national policy, to protect and 
enhance the quality of the human environment;
    (b) Ensure that environmental factors and concerns are given 
appropriate consideration in decisions and actions by the Trust;
    (c) Use systematic and timely approaches which will ensure the 
integrated use of the natural and social sciences and environmental 
design arts in planning and decision-making which may have an impact on 
the human environment;
    (d) Develop and utilize ecological, cultural, and other 
environmental information in the management of the Presidio Trust Area 
and its natural, historic, scenic, cultural, and recreational resources 
pursuant to the Trust Act;
    (e) Invite the cooperation and encourage the participation, where 
appropriate, of Federal, State, and local authorities and the public in 
Trust planning and decision-making processes that affect the quality of 
the human environment; and
    (f) Minimize any possible adverse effects of Trust decisions and 
actions upon the quality of the human environment.



Sec. 1010.2  Purpose.

    The regulations in this part incorporate and supplement the Council 
on Environmental Quality's (CEQ) regulations at 40 CFR parts 1500 
through 1508 for implementing the procedural provisions of the National 
Environmental Policy Act of 1969, as amended (NEPA), and otherwise to 
describe how the Trust intends to consider environmental factors and 
concerns in the Trust's decision-making process within the requirements 
set forth in NEPA and CEQ regulations.



Sec. 1010.3  Definitions.

    (a) The following terms have the following meanings as used in this 
part:
    Decision-maker means the Board or its designee.
    EA means an environmental assessment, as defined at 40 CFR 1508.9.
    EIS means an environmental impact statement, as defined at 40 CFR 
1508.11.
    Project applicant means an individual, firm, partnership, 
corporation, joint venture, or other public or private entity other than 
the Trust (including a combination of more than one such entities) which 
seeks to demolish, construct, reconstruct, develop, preserve, 
rehabilitate, or restore real property within the Presidio Trust Area.
    (b) If not defined in this part or in this chapter, other terms used 
in this part have the same meanings as those provided in 40 CFR part 
1508.



Sec. 1010.4  NEPA Compliance Coordinator.

    (a) The NEPA Compliance Coordinator, as designated by the Executive

[[Page 249]]

Director, shall be the Trust official responsible for implementation and 
operation of the Trust's policies and procedures on environmental 
quality and control. The delegation of this responsibility shall not 
abrogate the responsibility of the Executive Director and the Board to 
ensure that NEPA and other applicable laws are followed, or the right of 
the Executive Director and the Board to overrule or alter decisions of 
the NEPA Compliance Coordinator in accordance with the Trust's 
regulations and procedures.
    (b) The NEPA Compliance Coordinator shall:
    (1) Coordinate the formulation and revision of Trust policies and 
procedures on matters pertaining to environmental protection and 
enhancement;
    (2) Establish and maintain working relationships with relevant 
government agencies concerned with environmental matters;
    (3) Develop procedures within the Trust's planning and decision-
making processes to ensure that environmental factors are properly 
considered in all proposals and decisions in accordance with this part;
    (4) Develop, monitor, and review the Trust's implementation of 
standards, procedures, and working relationships for protection and 
enhancement of environmental quality and compliance with applicable laws 
and regulations;
    (5) Monitor processes to ensure that the Trust's procedures 
regarding consideration of environmental quality are achieving their 
intended purposes;
    (6) Advise the Board, officers, and employees of the Trust of 
technical and management requirements of environmental analysis, of 
appropriate expertise available, and, in consultation with the Trust's 
General Counsel, of relevant legal developments;
    (7) Monitor the consideration and documentation of the environmental 
aspects of the Trust's planning and decision-making processes by 
appropriate officers and employees of the Trust;
    (8) Ensure that all EA's and EIS's are prepared in accordance with 
the appropriate regulations adopted by the CEQ and the Trust;
    (9) Consolidate and transmit to appropriate parties the Trust's 
comments on EIS's and other environmental reports prepared by other 
agencies;
    (10) Acquire information and prepare appropriate reports on 
environmental matters required of the Trust;
    (11) Coordinate Trust efforts to make available to other parties 
information and advice on the Trust's policies for protecting and 
enhancing the quality of the environment; and
    (12) Designate other Trust employees to execute these duties under 
the supervision of the NEPA Compliance Coordinator, where necessary for 
administrative convenience and efficiency. As used in this chapter, the 
term ``NEPA Compliance Coordinator'' includes any such designee.



Sec. 1010.5  Major decision points.

    (a) The possible environmental effects of a proposed action or 
project within the Presidio Trust Area must be considered along with 
technical, financial, and other factors throughout the decision-making 
process. Most Trust projects have three distinct stages in the decision-
making process:
    (1) Conceptual or preliminary study stage;
    (2) Detailed planning or final decision stage;
    (3) Implementation stage.
    (b) Environmental review will be integrated into the decision-making 
process of the Trust as follows:
    (1) During the conceptual or preliminary study stage, the NEPA 
Compliance Coordinator shall determine whether the proposed action or 
project is one which is categorically excluded under Sec. 1010.7, has 
been adequately reviewed in a previously prepared EA and/or EIS, or 
requires further NEPA review (i.e., an EA or an EIS).
    (2) If the proposed action or project is not categorically excluded 
and has not been adequately reviewed in a previously prepared EA and/or 
EIS, then prior to the Trust's proceeding beyond the conceptual or 
preliminary study stage, the NEPA Compliance Coordinator must determine 
whether an EIS is required. When appropriate, prior to the determination 
as to whether an EIS is required, the NEPA Compliance Coordinator may 
initiate a public scoping process in order to inform such a 
determination.

[[Page 250]]

    (3) If an EIS is determined to be necessary, the Trust shall 
initiate a public scoping process in accordance with 40 CFR 1501.7. An 
EIS, if determined necessary, must be completed and circulated at the 
earliest point at which meaningful analysis can be developed for the 
proposed action or project and prior to the Trust's final approval of 
the proposed action or project.



Sec. 1010.6  Determination of requirement for EA or EIS.

    In deciding whether to require the preparation of an EA or an EIS, 
the NEPA Compliance Coordinator will determine whether the proposal is 
one that:
    (a) Normally does not require either an EA or an EIS;
    (b) Normally requires an EIS; or
    (c) Normally requires an EA, but not necessarily an EIS.



Sec. 1010.7  Actions that do not require an EA or EIS.

    (a) Categorical Exclusions. Pursuant to 40 CFR 1508.4, the Trust has 
determined that the categories of action identified in this paragraph 
have no significant effect, either individually or cumulatively, on the 
human environment and are therefore categorically excluded. Such actions 
(whether approved by the Trust or undertaken by the Trust directly or 
indirectly) do not require the preparation of an EA or an EIS:
    (1) Personnel actions and investigations and personal services 
contracts;
    (2) Administrative actions and operations directly related to the 
operation of the Trust (e.g., purchase of furnishings, services, and 
equipment) provided such actions and operations are consistent with 
applicable Executive Orders;
    (3) Internal organizational changes and facility and office 
expansions, reductions, and closings;
    (4) Routine financial transactions, including such things as 
salaries and expenses, procurement, guarantees, financial assistance, 
income transfers, audits, fees, bonds and royalties;
    (5) Management, formulation, allocation, transfer and reprogramming 
of the Trust's budget;
    (6) Routine and continuing government business, including such 
things as supervision, administration, operations, maintenance, and 
replacement activities having limited context and intensity (limited 
size and magnitude or short-term effects);
    (7) Preparation, issuance, and submittal of publications and routine 
reports;
    (8) Activities which are educational, informational, or advisory 
(including interpretive programs), or otherwise in consultation with or 
providing technical assistance to other agencies, public and private 
entities, visitors, individuals, or the general public;
    (9) Legislative proposals of an administrative or technical nature, 
including such things as changes in authorizations for appropriations or 
financing authority, minor boundary changes and land transactions; or 
having primarily economic, social, individual or institutional effects, 
as well as comments and reports on legislative proposals;
    (10) Proposal, adoption, revision, and termination of policies, 
directives, regulations, and guidelines:
    (i) That are of an administrative, financial, legal, technical, or 
procedural nature, the environmental effects of which are too broad, 
speculative, or conjectural to lend themselves to environmental analysis 
and the implementation of which will be subject to the NEPA process 
either collectively or on a case-by-case basis; or
    (ii) Where such actions will not potentially:
    (A) Increase public use to the extent of compromising the nature and 
character of the area or of causing significant physical damage to it;
    (B) Introduce non-compatible uses that might compromise the nature 
and characteristics of the area or cause significant physical damage to 
it;
    (C) Conflict with adjacent ownerships or land uses; or
    (D) Cause a significant nuisance to adjacent owners or occupants;
    (11) Preparation, approval, coordination, and implementation of 
plans, including priorities, justifications, and strategies, for 
research, monitoring, inventorying, and information gathering that is 
not or is only minimally manipulative and causes no or only minimal 
physical damage;

[[Page 251]]

    (12) Identification, nomination, certification, and determination of 
eligibility of properties for listing in the National Register of 
Historic Places and the National Historic Landmark and National Natural 
Landmark Programs;
    (13) Minor or temporary changes in amounts or types of visitor use 
for the purpose of ensuring visitor safety or resource protection, minor 
changes in programs or regulations pertaining to visitor activities, and 
approval of permits or other use and occupancy agreements for special 
events or public assemblies and meetings, provided such events, 
assemblies, and meetings entail only short-term or readily mitigated 
environmental impacts;
    (14) Designation of environmental study areas and research areas, 
including those closed temporarily or permanently to the public, 
provided such designation would cause no or only minimal environmental 
impact;
    (15) Land and boundary surveys and minor boundary adjustments or 
transfers of administrative jurisdiction resulting in no significant 
change in land use;
    (16) Archaeological surveys and permits involving only surface 
collection or small-scale test excavations;
    (17) Changes or amendments to an approved plan or action when such 
changes or amendments would cause no or only minimal environmental 
impact;
    (18) Contracts, work authorizations, or procurement actions related 
to proposals, programs, and master agreements related to administrative 
operation of the Trust;
    (19) The leasing, permitting, sale, or financing of, or granting of 
non-fee interests regarding, real or personal property in the Presidio 
Trust Area, provided that such actions would have no or only minimal 
environmental impact;
    (20) Extension, reissuance, renewal, minor modification, or 
conversion in form of agreements for use of real property (including but 
not limited to leases, permits, licenses, concession contracts, use and 
occupancy agreements, easements, and rights-of-way), so long as such 
agreements were previously subject to NEPA and do not involve new 
construction or new or substantially greater environmental impacts, and 
so long as no new information is known or no changed circumstances have 
occurred that would give rise to new or substantially greater 
environmental impacts.
    (21) Rehabilitation, modification, or improvement of historic 
properties that have been determined to be in conformance with the 
Secretary of the Interior's ``Standards for the Treatment of Historic 
Properties'' at 36 CFR part 68 and that would have no or only minimal 
environmental impact;
    (22) Rehabilitation, maintenance, modification or improvement of 
non-historic properties that is consistent with applicable Executive 
Orders, provided there is no potential for significant environmental 
impacts, including impacts to cultural landscapes or archaeological 
resources;
    (23) Removal, reduction, or restraint of resident individuals of 
species that are not threatened or endangered which pose dangers to 
visitors, residents, or neighbors or immediate threats to resources of 
the Presidio Trust Area;
    (24) Removal of non-historic materials and structures in order to 
restore natural conditions when such removal has no potential for 
significant environmental impacts, including impacts to cultural 
landscapes or archaeological resources and is consistent with applicable 
Executive Orders;
    (25) Installation of signs, displays, and kiosks, etc.;
    (26) Replacement of minor structures and facilities (e.g., signs, 
kiosks, fences, comfort stations, and parking lots) with little or no 
change in location, capacity, or appearance;
    (27) Repair, resurfacing, striping, installation of traffic control 
devices, and repair/replacement of guardrails, culverts, signs, and 
other minor features, on existing roads and parking facilities, provided 
there is no potential for significant environmental impact;
    (28) Minor trail relocation, development of compatible trail 
networks on roads or other formally established routes, and trail 
maintenance and repair;
    (29) Construction or rehabilitation in previously disturbed or 
developed areas

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required to meet health or safety regulations, or to meet requirements 
for making facilities accessible to the handicapped provided such 
construction or rehabilitation is implemented in a manner consistent 
with applicable Executive Orders;
    (30) Landscaping and landscape maintenance in previously disturbed 
or developed areas;
    (31) Minor changes in programs and regulations pertaining to visitor 
activities;
    (32) Routine maintenance, property management, and resource 
management, with no potential for significant environmental impact and 
that are consistent with the Secretary of the Interior's ``Standards for 
the Treatment of Historic Properties'' at 36 CFR part 68, as applicable, 
and with applicable Executive Orders;
    (33) Upgrading or adding new utility facilities to existing poles, 
or replacement poles which do not change existing pole line 
configurations.
    (34) Issuance of rights-of-way for overhead utility lines to an 
individual building or well from an existing line where installation 
will not result in significant visual intrusion or non-conformance with 
the Secretary's ``Standards for the Treatment of Historic Properties'' 
at 36 CFR part 68, as applicable, and will involve no clearance of 
vegetation other than for placement of poles;
    (35) Issuance of rights-of-way for minor overhead utility lines not 
involving placement of poles or towers and not involving vegetation 
management or significant visual intrusion in an area administered by 
NPS or the Trust or non-conformance with the Secretary's ``Standards for 
the Treatment of Historic Properties'' at 36 CFR part 68, as applicable;
    (36) Installation of underground utilities in previously disturbed 
areas having stable soils, or in an existing utility right-of-way; and
    (37) Experimental testing of no longer than 180 days of mass transit 
systems, and changes in operation of existing systems with no potential 
for significant environmental impact.
    (b) Extraordinary circumstances. An action that falls into one or 
more of the categories in paragraph (a) of this section may still 
require the preparation of an EIS or an EA if the NEPA Compliance 
Coordinator determines that it meets the criteria stated in Sec. 
1010.8(b) or Sec. 1010.10(b), respectively, or involves extraordinary 
circumstances that may have a significant environmental effect. At its 
discretion, the Trust may require the preparation of an EA or an EIS for 
a proposal or action that otherwise qualifies for a categorical 
exclusion. Criteria used in determining whether to prepare an EA or EIS 
for an action that otherwise qualifies for a categorical exclusion 
include whether an action may:
    (1) Have significant adverse effects on public health or safety;
    (2) Have significant adverse effects on such unique geographic 
characteristics as historic or cultural resources, park, recreation or 
refuge lands, sole or principal drinking water aquifers, wetlands, 
floodplains, or ecologically significant or critical areas;
    (3) Have highly controversial environmental effects;
    (4) Have highly uncertain and potentially significant environmental 
effects or involve unique or unknown environmental risks;
    (5) Establish a precedent for future action or represent a decision 
in principle about future actions with potentially significant 
environmental effects;
    (6) Be directly related to other actions with individually 
insignificant but cumulatively significant environmental effects;
    (7) Have significant adverse effects on properties listed or 
eligible for listing on the National Register of Historic Places;
    (8) Have significant adverse effects on species listed or proposed 
to be listed on the List of Endangered or Threatened Species, or have 
adverse effects on designated Critical Habitat for these species;
    (9) Require compliance with Executive Order 11988 (Floodplain 
Management), Executive Order 11990 (Protection of Wetlands), Executive 
Order 13007 (Indian Sacred Sites), or the Fish and Wildlife Coordination 
Act; and/or

[[Page 253]]

    (10) Threaten to violate a Federal, State, local or tribal law or 
requirement imposed for the protection of the environment.



Sec. 1010.8  Actions that normally require an EIS.

    (a) General procedure. So long as a proposed action or project is 
not categorically excluded under Sec. 1010.7, the Trust shall require 
the preparation of an EA to determine if the proposed action or project 
requires an EIS. Nevertheless, if it is readily apparent to the NEPA 
Compliance Coordinator that the proposed action or project will have a 
significant impact on the environment, an EA is not required, and the 
Trust will prepare or direct the preparation of an EIS without preparing 
or completing the preparation of an EA. To assist the NEPA Compliance 
Coordinator in determining if a proposal or action normally requires the 
preparation of an EIS, the following criteria and categories of action 
are provided.
    (b) Criteria. Criteria used to determine whether proposals or 
actions may significantly affect the environment and therefore require 
an EIS are described in 40 CFR 1508.27.
    (c) Categories of action. The following categories of action 
normally require an EIS:
    (1) Legislative proposals made by the Trust to the United States 
Congress, other than those described in Sec. 1010.7(b)(9);
    (2) Approval, funding, construction, and/or demolition in 
preparation for construction of any new building, if that activity has a 
significant effect on the human environment;
    (3) Proposals that would significantly alter the kind and amount of 
natural, recreational, historical, scenic, or cultural resources of the 
Presidio Trust Area or the integrity of the setting; and
    (4) Approval or amendment of a general land use or resource 
management plan for the entire Presidio Trust Area.



Sec. 1010.9  Preparation of an EIS.

    (a) Notice of intent. When the Trust decides to prepare an EIS, it 
shall publish a notice of intent in the Federal Register in accordance 
with 40 CFR 1501.7 and 1508.22. Where there is a lengthy period between 
the Trust's decision to prepare an EIS and the time of actual 
preparation, then at the discretion of the NEPA Compliance Coordinator 
the notice of intent shall be published at a reasonable time in advance 
of preparation of the EIS.
    (b) Preparation. After having determined that an EIS will be 
prepared and having published the notice of intent, the Trust will begin 
to prepare or to direct the preparation of the EIS. The EIS shall be 
formatted in accordance with 40 CFR 1502.10.
    (c) Supplemental environmental impact statements. The Trust may 
supplement a draft or final EIS at any time. The Trust shall prepare a 
supplement to either a draft or final EIS when:
    (1) Substantial changes are proposed to an action analyzed in the 
draft or final EIS that are relevant to environmental concerns;
    (2) There are significant new circumstances or information relevant 
to environmental concerns and bearing on the proposed action or its 
impacts; or
    (3) Actions are proposed which relate to or are similar to other 
actions taken or proposed and that together will have a cumulatively 
significant impact on the human environment.



Sec. 1010.10  Actions that normally require an EA.

    (a) General procedure. If a proposal or action is not one that 
normally requires an EIS, and does not qualify for a categorical 
exclusion under Sec. 1010.7, the Trust will require, prepare, or direct 
the preparation of an EA. An EA should be prepared when the Trust has 
insufficient information on which to determine whether a proposal may 
have significant impacts. An EA assists the Trust in complying with NEPA 
when no EIS is necessary, and it facilitates the preparation of an EIS, 
if one is necessary.
    (b) Criteria. Criteria used to determine those categories of action 
that normally require an EA, but not necessarily an EIS, include:
    (1) Potential for degradation of environmental quality;
    (2) Potential for cumulative adverse impact on environmental 
quality; and

[[Page 254]]

    (3) Potential for adverse impact on protected resources (e.g., 
natural, scenic, recreational, historical, and cultural resources).
    (c) Categories of action. The following categories of action 
normally require the preparation of an EA:
    (1) Promulgation of regulations and requirements that are not 
categorically excluded;
    (2) Proposals submitted by project applicants to the Trust for its 
review, as described in Sec. 1010.14;
    (3) Proposals to add or alter access between the Presidio Trust Area 
and surrounding neighborhoods; and
    (4) Contracts, work authorizations, and master agreements related to 
and implementing programs, policies, and proposals which are not 
categorically excluded and for which there is no previously prepared EA 
and/or EIS.



Sec. 1010.11  Preparation of an EA.

    (a) When to prepare. The Trust will begin the preparation of an EA 
(or require it to be begun) as early as possible after it is determined 
by the NEPA Compliance Coordinator to be required. The Trust will 
provide notice of such determinations in accordance with Sec. 1010.12. 
The Trust may prepare or require an EA at any time to assist planning 
and decision-making.
    (b) Content and format. An EA is a concise public document used to 
determine whether to prepare an EIS. An EA should address impacts, 
including cumulative impacts, on those resources that are specifically 
relevant to the particular proposal. Those impacts should be addressed 
in as much detail as is necessary to allow an analysis of the 
alternatives and the proposal. The EA shall contain brief discussions of 
the following topics:
    (1) Purpose and need for the proposed action.
    (2) Description of the proposed action.
    (3) Alternatives considered, including a No Action alternative.
    (4) Environmental effects of the proposed action and the 
alternatives, including mitigation measures.
    (5) Listing of agencies, organizations, and/or persons consulted.
    (c) Finding of no significant impact (FONSI). If an EA is completed 
and the NEPA Compliance Coordinator determines that an EIS is not 
required, then the NEPA Compliance Coordinator shall prepare a finding 
of no significant impact. The finding of no significant impact shall be 
made available to the public by the Trust as specified in 40 CFR 1506.6.
    (d) Mitigated FONSI. If an EA is completed and the NEPA Compliance 
Coordinator determines that an EIS is required, then prior to 
preparation of an EIS, the proposal may be revised in order to mitigate 
the impacts identified in the EA through adherence to legal 
requirements, inclusion of mitigation as an integral part of the 
proposal, and/or fundamental changes to the proposal. A supplemental EA 
will be prepared on the revised proposal and will result in a Mitigated 
Finding of No Significant Impact, preparation of an EIS, or additional 
revision of the proposal and a supplemental EA.



Sec. 1010.12  Public involvement.

    The Trust will make public involvement an essential part of its 
environmental review process. Public notice of anticipated Trust actions 
that may have a significant environmental impact, opportunities for 
involvement, and availability of environmental documents will be 
provided through announcements in the Trust's monthly newsletter, 
postings on its web site (www.presidiotrust.gov), placement of public 
notices in newspapers, direct mailings, and other means appropriate for 
involving the public in a meaningful way. The Trust will conduct scoping 
with interested federal, state and local agencies and Indian tribes, 
will solicit and accept written scoping comments and will hold public 
scoping meetings to gather early input whenever it determines an EIS to 
be necessary and otherwise as appropriate. Notice of all public scoping 
meetings will be given in a timely manner. Interested persons may also 
obtain information concerning any pending EIS or any other element of 
the environmental review process of the Trust by contacting the NEPA 
Compliance Coordinator at the following address: Presidio Trust, P.O. 
Box 29052, San Francisco, California 94129-0052.

[[Page 255]]



Sec. 1010.13  Trust decision-making procedures.

    To ensure that at major decision-making points all relevant 
environmental concerns are considered by the decision-maker, the 
following procedures are established.
    (a) An environmental document (i.e., the EA, finding of no 
significant impact, EIS, or notice of intent), in addition to being 
prepared at the earliest point in the decision-making process, shall 
accompany the relevant proposal or action through the Trust's decision-
making process to ensure adequate consideration of environmental 
factors.
    (b) The Trust shall consider in its decision-making process only 
decision alternatives encompassed by the range of alternatives discussed 
in the relevant environmental documents. Also, where an EIS has been 
prepared, the Trust shall consider all alternatives described in the 
EIS, a written record of the consideration of alternatives during the 
decision-making process shall be maintained, and a monitoring and 
enforcement program shall be adopted and summarized where applicable for 
any mitigation.
    (c) Any environmental document prepared for a proposal or action 
shall be made part of the record of any formal rulemaking by the Trust.



Sec. 1010.14  Review of proposals by project applicants.

    (a) An EA shall be required for each proposal for demolition, 
construction, reconstruction, development, preservation, rehabilitation, 
or restoration of real property submitted by a project applicant to the 
Trust for its review, and which the decision-maker agrees to consider, 
unless categorically excluded or covered by a previously prepared EA 
and/or EIS.
    (b) The decision-maker may not take any approval action on such a 
proposal submitted by a project applicant until such time as the 
appropriate environmental review documents have been prepared and 
submitted to the decision-maker.
    (c) At a minimum, and as part of any submission made by a project 
applicant to the decision-maker for its approval, such project applicant 
shall make available data and materials concerning the proposal 
sufficient to permit the Trust to carry out its environmental review 
responsibilities. When requested, the project applicant shall provide 
additional information that the NEPA Compliance Coordinator believes is 
necessary to permit it to satisfy its environmental review functions.
    (d) With respect to each project proposed for consideration for 
which the NEPA Compliance Coordinator determines that an EA shall be 
prepared, the decision-maker may require a project applicant to submit a 
draft EA regarding its proposal for the Trust's evaluation and revision. 
In accordance with 40 CFR 1506.5(b), the Trust shall make its own 
evaluation of the environmental issues and shall take responsibility for 
the scope and content of the final EA.
    (e) With respect to each project proposed for consideration for 
which the NEPA Compliance Coordinator determines an EIS shall be 
prepared, the decision-maker may require a project applicant to pay a 
non-refundable fee to the Trust sufficient to cover a portion or all of 
the Trust's anticipated costs associated with preparation and review of 
the EIS, including costs associated with review under other applicable 
laws. Such fee shall be paid to the Trust in full prior to commencement 
of the preparation of the EIS or any amendment or supplement thereto.
    (f) In accordance with 40 CFR 1506.5(c), the EIS shall be prepared 
by the Trust and/or by contractors who are selected by the Trust and who 
certify that they have no financial or other interest in the outcome of 
the project, and the Trust shall independently evaluate the EIS prior to 
its approval and take responsibility for ensuring its adequacy. The EIS 
shall be prepared in accordance with 40 CFR part 1502.
    (g) The NEPA Compliance Coordinator may set time limits for 
environmental review appropriate to each proposal, consistent with 40 
CFR 1501.8 and 1506.10.
    (h) The NEPA Compliance Coordinator shall at the earliest possible 
time ensure that the Trust commences its environmental review on a 
proposed

[[Page 256]]

project and shall provide the project applicant with any policies or 
information deemed appropriate in order to permit effective and timely 
review by the Trust of a proposal once it is submitted to the decision-
maker for approval.



Sec. 1010.15  Actions where lead agency designation is necessary.

    (a) Consistent with 40 CFR 1501.5, where a proposed action by the 
Trust involves one or more other Federal agencies, or where actions by 
the Trust and one or more Federal agencies are directly related to each 
other because of their functional interdependence or geographical 
proximity, the Trust will seek designation as lead agency for those 
actions that relate solely to the Presidio Trust Area.
    (b) For an action that qualifies as one for which the Trust will 
seek designation as lead agency, the Trust will promptly consult with 
the appropriate Federal agencies to establish lead agency, joint lead 
agency, and/or cooperating agency designations.
    (c) For an action as to which the Trust undertakes lead, joint lead, 
or cooperating agency status, the Trust is authorized to enter into a 
memorandum of understanding or agreement to define the rights and 
responsibilities of the relevant agencies.



Sec. 1010.16  Actions to encourage agency cooperation early in the NEPA process.

    Consistent with 40 CFR 1501.6, the Trust may request the NPS to be a 
cooperating agency for actions or projects significantly affecting the 
quality of the Presidio. In addition, upon request of the Trust, any 
other Federal, State, local, or tribal agency that has jurisdiction by 
law or special expertise with respect to any environmental issue that 
should be addressed in the analysis may be a cooperating agency. The 
Trust shall use the environmental analysis and proposals of cooperating 
agencies with jurisdiction by law or special expertise to the maximum 
extent possible consistent with its responsibility as lead or joint lead 
agency.



Sec. 1010.17  Actions to eliminate duplication with State and local procedures.

    Consistent with 40 CFR 1506.2, the Trust shall cooperate with State 
and local agencies to the fullest extent possible to reduce duplication 
between NEPA and State and local requirements. Such cooperation shall to 
the fullest extent possible include:
    (a) Joint planning processes;
    (b) Joint environmental research and studies;
    (c) Joint public hearings (except where otherwise provided by 
statute); and
    (d) Joint environmental assessments and/or Environmental Impact 
Statements/Environmental Impact Reports.



PART 1011_DEBT COLLECTION--Table of Contents




                      Subpart A_General Provisions

Sec.
1011.1 What definitions apply to the regulations in this part?
1011.2 Why is the Presidio Trust issuing these regulations and what do 
          they cover?
1011.3 Do these regulations adopt the Federal Claims Collection 
          Standards?

          Subpart B_Procedures To Collect Presidio Trust Debts

1011.4 What notice will the Presidio Trust send to a debtor when 
          collecting a debt?
1011.5 What interest, penalty charges and administrative costs will the 
          Presidio Trust add to a debt?
1011.6 When will the Presidio Trust allow a debtor to enter into a 
          repayment agreement?
1011.7 When will the Presidio Trust compromise a debt?
1011.8 When will the Presidio Trust suspend or terminate debt collection 
          on a debt?
1011.9 When will the Presidio Trust transfer a debt to the Financial 
          Management Service for collection?
1011.10 How will the Presidio Trust use administrative offset (offset of 
          non-tax federal payments) to collect a debt?
1011.11 How will the Presidio Trust use tax refund offset to collect a 
          debt?
1011.12 How will the Presidio Trust offset a Federal employee's salary 
          to collect a debt?
1011.13 How will the Presidio Trust use administrative wage garnishment 
          to collect a debt from a debtor's wages?
1011.14 How will the Presidio Trust report debts to credit bureaus?

[[Page 257]]

1011.15 How will the Presidio Trust refer debts to private collection 
          contractors?
1011.16 When will the Presidio Trust refer debts to the Department of 
          Justice?
1011.17 Will a debtor who owes a debt be ineligible for Presidio Trust 
          licenses, permits, leases, privileges or services?
1011.18 How does a debtor request a special review based on a change in 
          circumstances such as catastrophic illness, divorce, death or 
          disability?
1011.19 Will the Presidio Trust issue a refund if money is erroneously 
          collected on a debt?
1011.20 Will the Presidio Trust's failure to comply with these 
          regulations be a defense to a debt?

 Subpart C_Procedures for Offset of Presidio Trust Payments To Collect 
                  Debts Owed To Other Federal Agencies

1011.21 How do other Federal agencies use the offset process to collect 
          debts from payments issued by the Presidio Trust?
1011.22 What does the Presidio Trust do upon receipt of a request to 
          offset the salary of a Presidio Trust employee to collect a 
          debt owed by the employee to another Federal agency?

    Authority: 16 U.S.C. 460bb appendix, as amended.

    Source: 70 FR 73588, Dec. 13, 2005, unless otherwise noted.



                      Subpart A_General Provisions



Sec. 1011.1  What definitions apply to the regulations in this part?

    As used in this part:
    Administrative offset or offset means withholding funds payable by 
the United States (including funds payable by the United States on 
behalf of a State Government) to, or held by the United States for, a 
person to satisfy a debt owed by the person. The term ``administrative 
offset'' includes, without limitation, the offset of federal salary, 
vendor, retirement, and Social Security benefit payments. The terms 
``centralized administrative offset'' and ``centralized offset'' refer 
to the process by which the Treasury Department's Financial Management 
Service offsets federal payments through the Treasury Offset Program.
    Administrative wage garnishment means the process by which a Federal 
agency may, without first obtaining a court order, order a non-Federal 
employer to withhold amounts from a debtor's wages to satisfy a 
delinquent debt.
    Agency or Federal agency means a department, agency, court, court 
administrative office, or instrumentality in the executive, judicial or 
legislative branch of the federal government, including government 
corporations.
    Certification means a written statement received by a paying agency 
or disbursing official that requests the paying agency or disbursing 
official to offset the salary of an employee and specifies that required 
procedural protections have been afforded the employee.
    Compromise means the settlement or forgiveness of all or a portion 
of a debt.
    Creditor agency means any Federal agency that is owed a debt and 
includes a debt collection center when it is acting on behalf of the 
Presidio Trust.
    Debt means any amount of money, funds or property that has been 
determined by an appropriate agency official to be owed to the United 
States by a person. As used in this part, the term ``debt'' does not 
include debts arising under the Internal Revenue Code.
    Debt collection center means the Treasury Department or any agency 
or division designated by the Secretary of the Treasury with authority 
to collect debts on behalf of creditor agencies.
    Debtor means a person who owes a debt to the United States.
    Delinquent debt means a debt that has not been paid by the date 
specified in the Presidio Trust's initial written demand for payment or 
applicable agreement or instrument (including a post-delinquency payment 
agreement) unless other satisfactory payment arrangements have been 
made.
    Disposable pay means that part of an employee's pay that remains 
after deductions that are required by law to be withheld have been made.
    Employee or Federal employee means a current employee of the 
Presidio Trust or other Federal agency, including a current member of 
the Armed Forces, Reserve of the Armed Forces of the United States or of 
the National Guard.
    FCCS means the Federal Claims Collection Standards, which were 
jointly published by the Departments of the

[[Page 258]]

Treasury and Justice and codified at 31 CFR parts 900-904.
    FMS means the Financial Management Service, a bureau of the Treasury 
Department, which is responsible for the centralized collection of 
delinquent debts through the offset of Federal payments and other means.
    IRS means the Internal Revenue Service.
    Paying agency means any agency that is making payments of any kind 
to a debtor. In some cases, the Presidio Trust may be both the paying 
agency and the creditor agency.
    Person means an individual, corporation, partnership, association, 
organization, state or local government, or any other type of entity 
other than a Federal agency.
    Private collection contractor means a private debt collector under 
contract with an agency to collect a non-tax debt owed to the Presidio 
Trust.
    Salary offset means a type of administrative offset to collect a 
debt owed by a Federal employee from the current pay account of the 
employee.
    Tax refund offset means the reduction of a tax refund by the amount 
of a delinquent debt owed to the Presidio Trust.
    Treasury Department means the United States Department of the 
Treasury.
    Treasury Offset Program means the Treasury Department's program for 
withholding funds payable by the United States to a person to satisfy a 
debt owed by the person utilizing the Financial Management Service's 
system that compares information about payments with information about 
debts.



Sec. 1011.2  Why is the Presidio Trust issuing these regulations and what do they cover?

    (a) Scope. The Presidio Trust is issuing these regulations to 
provide procedures for the collection of debts owed to the Presidio 
Trust. This part also provides procedures for collection of other debts 
owed to the United States when a request for offset of a Treasury 
payment is received by the Treasury Department from another agency (for 
example, when a Presidio Trust employee owes a debt to the United States 
Department of Education).
    (b) Applicability. (1) This part applies to the Presidio Trust when 
collecting a debt and to persons who owe a debt to the Presidio Trust, 
or to Federal agencies requesting offset of a payment issued by the 
Presidio Trust as a paying agency (including salary payments to Presidio 
Trust employees).
    (2) This part does not apply to tax debts.
    (3) Nothing in this part precludes collection or disposition of any 
debt under statutes and regulations other than those described in this 
part.
    (c) Additional policies, guidelines and procedures. The Presidio 
Trust may adopt additional policies, guidelines and procedures 
consistent with this part and other applicable law.
    (d) Duplication not required. Nothing in this part requires the 
Presidio Trust to duplicate notices or administrative proceedings 
required by contract, this part or other laws or regulations.
    (e) Use of multiple collection remedies allowed. The Presidio Trust 
may simultaneously use multiple collection remedies to collect a debt, 
except as prohibited by law. This part is intended to promote aggressive 
debt collection, using for each debt all available collection remedies. 
These remedies are not listed in any prescribed order to provide the 
Presidio Trust with flexibility in determining which remedies will be 
most efficient in collecting the particular debt.
    (f) Cross-servicing with the Treasury Department. These regulations 
authorize the Presidio Trust to enter a cross-servicing agreement with 
the Treasury Department under which the Treasury Department will take 
authorized action to collect debts owed to the Presidio Trust.



Sec. 1011.3  Do these regulations adopt the Federal Claims Collections Standards?

    This part adopts and incorporates all provisions of the FCCS. This 
part also supplements the FCCS by prescribing procedures consistent with 
the FCCS, as necessary and appropriate for Presidio Trust operations.

[[Page 259]]



          Subpart B_Procedures To Collect Presidio Trust Debts



Sec. 1011.4  What notice will the Presidio Trust send to a debtor when collecting a debt?

    (a) Notice requirements. The Presidio Trust will aggressively 
collect debts. The Presidio Trust will send at least one written notice 
to a debtor informing the debtor of the consequences of failing to pay 
or otherwise resolve a debt. The notice(s) will be sent to the debtor's 
most current address for the debtor in the records of the Presidio 
Trust. Except as otherwise provided in paragraph (b) of this section, 
the written notice(s) will explain to the debtor:
    (1) The amount, nature and basis of the debt;
    (2) How interest, penalty charges and administrative costs are added 
to the debt, the date by which payment should be made to avoid such 
charges, and that such assessments must be made unless waived (see Sec. 
1011.5 of this part);
    (3) The date by which payment is due and that the debt will be 
considered delinquent if payment is not received by the Presidio Trust 
by the due date, which date will not be less than 30 days after the date 
of the notice, and the date by which payment must be received by the 
Presidio Trust to avoid the enforced collection actions described in 
paragraph (a)(6) of this section, which date will not be less than 60 
days after the date of the notice;
    (4) How the debtor may enter into a written agreement to repay the 
debt voluntarily under terms acceptable to the Presidio Trust (see Sec. 
1011.6 of this part);
    (5) The name, address and telephone number of a contact person 
within the Presidio Trust;
    (6) The Presidio Trust's intention to enforce collection if the 
debtor fails to pay or otherwise resolve the debt, by taking one or more 
of the following actions:
    (i) Use administrative offset or other offset to offset the debtor's 
federal payments, including, without limitation, income tax refunds, 
salary, certain benefit payments (such as Social Security), retirement, 
vendor, travel reimbursements and advances, and other federal payments 
(see Sec. 1011.10 through 1011.12 of this part);
    (ii) Refer the debt to a private collection agency (see Sec. 
1011.15 of this part);
    (iii) Report the debt to a credit bureau (see Sec. 1011.14 of this 
part);
    (iv) Garnish the debtor's wages through administrative wage 
garnishment (see Sec. 1011.13 of this part);
    (v) Refer the debt to the Department of Justice to initiate 
litigation to collect the debt (see Sec. 1011.16 of this part);
    (vi) Refer the debt to the FMS for collection (see Sec. 1011.9 of 
this part);
    (7) That debts over 180 days delinquent must be referred to the FMS 
for the collection actions described in paragraph (a)(6) of this section 
(see Sec. 1011.9 of this part);
    (8) How the debtor may inspect and obtain copies of disclosable 
records related to the debt;
    (9) How the debtor may request a review of the Presidio Trust's 
determination that the debtor owes a debt.
    (10) How a debtor may request a hearing if the Presidio Trust 
intends to garnish the debtor's non-Federal wages (see Sec. 1011.13(a) 
of this part), including:
    (i) The method and time period for requesting a hearing;
    (ii) That the timely filing of a request for a hearing on or before 
the 15th business day following the date of the notice will stay the 
commencement of administrative wage garnishment, but not necessarily 
other collection procedures; and
    (iii) The name and address of the office to which the request for a 
hearing should be sent.
    (11) How a debtor who is a Federal employee subject to Federal 
salary offset may request a hearing (see Sec. 1011.12(e) of this part), 
including:
    (i) The method and time period for requesting a hearing;
    (ii) That the timely filing of a request for a hearing on or before 
the 15th business day following the date of the notice will stay the 
commencement of salary offset, but not necessarily other collection 
procedures;
    (iii) The name and address of the office to which the request for a 
hearing should be sent;
    (iv) That the Presidio Trust will refer the debt to the debtor's 
employing agency or to the FMS to implement

[[Page 260]]

salary offset, unless the employee files a timely request for a hearing;
    (v) That a final decision on the hearing, if requested, will be 
issued at the earliest practical date, but not later than 60 days after 
the filing of the request for a hearing, unless the employee requests 
and the hearing official grants a delay in the proceedings;
    (vi) That any knowingly false or frivolous statements, 
representations or evidence may subject the Federal employee to 
penalties under the False Claims Act (31 U.S.C. 3729-3731) or other 
applicable statutory authority, and criminal penalties under 18 U.S.C. 
286, 287, 1001, and 1002, or other applicable statutory authority;
    (vii) That unless prohibited by contract or statute, 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
    (viii) That proceedings with respect to such debt are governed by 5 
U.S.C. 5514 and 31 U.S.C. 3716;
    (12) That the debtor may request a waiver of the debt;
    (13) That the debtor's spouse may claim the spouse's share of a 
joint income tax refund by filing Form 8379 with the IRS;
    (14) That the debtor may exercise other statutory or regulatory 
rights and remedies available to the debtor;
    (15) That the Presidio Trust may suspend or revoke any licenses, 
permits, leases, privileges or services for failure to pay a debt (see 
Sec. 1011.17 of this part); and
    (16) That the debtor should advise the Presidio Trust of a 
bankruptcy proceeding of the debtor or another person liable for the 
debt being collected.
    (b) Exceptions to notice requirements. The Presidio Trust may omit 
from a notice to a debtor one or more of the provisions contained in 
paragraphs (a)(6) through (a)(16) of this section if the Presidio Trust, 
in consultation with its General Counsel, determines that any provision 
is not legally required given the collection remedies to be applied to a 
particular debt.
    (c) Respond to debtors. The Presidio Trust will respond promptly to 
communications from debtors.



Sec. 1011.5  What interest, penalty charges and administrative costs will the Presidio Trust add to a debt?

    (a) Interest. (1) The Presidio Trust will assess interest on all 
delinquent debts unless prohibited by statute, regulation or contract.
    (2) Interest begins to accrue on all debts from the date the debt 
becomes delinquent. The Presidio Trust will waive collection of interest 
on that portion of the debt that is paid within 30 days after the date 
on which interest begins to accrue. The Presidio Trust will assess 
interest at the rate established by the Treasury Department under 31 
U.S.C. 3717, unless a different rate is established by a contract, 
repayment agreement or statute. The Presidio Trust will notify the 
debtor of the basis for the interest rate assessed.
    (b) Penalty. The Presidio Trust will assess a penalty of not more 
than 6% a year, or such other higher rate as authorized by law, on any 
portion of a debt that is delinquent for more than 90 days.
    (c) Administrative costs. The Presidio Trust will assess charges to 
cover administrative costs incurred as a result of the debtor's failure 
to pay a debt. The Presidio Trust will waive collection of 
administrative costs on that portion of the debt that is paid within 30 
days after the date on which the administrative costs begin to accrue. 
Administrative costs include the costs of processing and handling a 
debt, obtaining a credit report, using a private collection contractor, 
costs of a hearing including, the costs of a hearing officer, and 
service fees charged by a Federal agency for collection activities 
undertaken on behalf of the Presidio Trust.
    (d) Allocation of payments. A partial or installment payment by a 
debtor will be applied first to outstanding penalty assessments, second 
to administrative costs, third to accrued interest, and fourth to 
outstanding debt principal.
    (e) Additional authority. The Presidio Trust may have additional 
policies, guidelines and procedures regarding how interest, penalties 
and administrative costs are assessed on particular types of debts. The 
Presidio Trust will

[[Page 261]]

explain in the notice to the debtor described in Sec. 1011.4 of this 
part how interest, penalties, administrative costs and other charges are 
assessed, unless the requirements are included in a contract or 
repayment agreement.
    (f) Waiver. (1) The Presidio Trust may waive collection of all or 
part of accrued interest, penalties and administrative costs when it 
would be against equity and good conscience or not in the Presidio 
Trust's best interest to collect such charges.
    (2) A decision to waive interest, penalties or administrative costs 
may be made at any time before a debt is paid. However, unless otherwise 
provided in these regulations, when these charges have been collected 
before the waiver decision, they will not be refunded.
    (g) Accrual during suspension of debt collection. In most cases, 
interest, penalties and administrative costs will continue to accrue 
during any period when collection has been suspended for any reason (for 
example, when the debtor has requested a hearing). The Presidio Trust 
may suspend accrual of any or all of these charges when accrual would be 
against equity and good conscience or not in the Presidio Trust's best 
interest.

[70 FR 73588, Dec. 13, 2005; 71 FR 2109, Jan. 12, 2006]



Sec. 1011.6  When will the Presidio Trust allow a debtor to enter into a repayment agreement?

    (a) Voluntary repayment. In response to a notice of a debt, the 
debtor may propose to the Presidio Trust the voluntary repayment of the 
debt in lieu of the Presidio Trust taking other collection actions under 
this part.
    (b) Debtor's request. The request from the debtor must:
    (1) Be in writing;
    (2) Admit the existence of the entire debt; and
    (3) Either propose payment of the debt (together with interest, 
penalties and administrative costs) in a lump sum, or set forth a 
proposed repayment schedule.
    (c) Repayment schedule. The Presidio Trust will collect debts in one 
lump sum whenever feasible. The Presidio Trust may accept payment in 
regular installments that bear a reasonable relationship to the size of 
the debt.
    (d) Repayment agreement. The Presidio Trust will consider a request 
to enter into a voluntary repayment agreement in accordance with the 
FCCS. The Presidio Trust may request additional information from the 
debtor, including, without limitation, financial statements, in order to 
determine whether to enter into a voluntary repayment agreement. The 
Presidio Trust will set the necessary terms of any repayment agreement. 
No repayment agreement will be binding on the Presidio Trust unless it 
is in writing and signed by both the debtor and an authorized Presidio 
Trust representative. The Presidio Trust is not required to enter into a 
repayment agreement.



Sec. 1011.7  When will the Presidio Trust compromise a debt?

    (a) Authority. The Presidio Trust may compromise a debt in 
accordance with the FCCS and such procedures as the Presidio Trust may 
adopt. (See Sec. 1011.16 of this subpart).
    (b) Report to IRS. The uncollected portion of a debt owed to the 
Presidio Trust that is not recovered as the result of a compromise will 
be reported to the IRS as income to the debtor in accordance with IRS 
and Presidio Trust procedures.



Sec. 1011.8  When will the Presidio Trust suspend or terminate debt collection on a debt?

    If, after pursuing all appropriate means of collection, the Presidio 
Trust determines that a debt is uncollectible, the Presidio Trust may 
suspend or terminate debt collection activity in accordance with the 
FCCS and the Presidio Trust's procedures.



Sec. 1011.9  When will the Presidio Trust transfer a debt to the Financial Management Service for collection?

    (a) Cross-servicing. The Presidio Trust will transfer any eligible 
debt that is more than 180 days delinquent to the FMS for debt 
collection services, a process known as ``cross-servicing.'' The 
Presidio Trust may transfer debts delinquent 180 days or less to the FMS 
in accordance with the procedures described in 31 CFR 285.12. The FMS

[[Page 262]]

takes appropriate action to collect or compromise the transferred debt, 
or to suspend or terminate collection action thereon, in accordance with 
the statutory and regulatory requirements and authorities applicable to 
the debt and the collection action to be taken. Appropriate action 
includes, without limitation, contact with the debtor, referral of the 
debt to the Treasury Offset Program, private collection agencies or the 
Department of Justice, reporting of the debt to credit bureaus, and 
administrative wage garnishment.
    (b) Notice; certification. At least 60 days prior to transferring a 
debt to the FMS, the Presidio Trust will send notice to the debtor as 
required by Sec. 1011.4 of this part. The Presidio Trust will certify 
to the FMS, in writing, that the debt is valid, delinquent, legally 
enforceable and that there are no legal bars to collection. In addition, 
the Presidio Trust will certify its compliance with all applicable due 
process and other requirements as described in this part and other 
Federal laws.
    (c) Treasury Offset Program. As part of its debt collection process, 
the FMS uses the Treasury Offset Program to collect debts by 
administrative and tax refund offset. The Treasury Offset Program is a 
centralized offset program administered by the FMS to collect delinquent 
debts owed to Federal agencies and states (including past-due child 
support). Under the Treasury Offset Program, before a federal payment is 
disbursed, the FMS compares the name and taxpayer identification number 
(TIN) of the payee with the names and TINs of debtors that have been 
submitted by Federal agencies and states to the Treasury Offset Program 
database. If there is a match, the FMS (or, in some cases, another 
Federal disbursing agency) offsets all or a portion of the federal 
payment, disburses any remaining payment to the payee, and pays the 
offset amount to the creditor agency. Federal payments eligible for 
offset include, without limitation, income tax refunds, salary, travel 
advances and reimbursements, retirement and vendor payments, and Social 
Security and other benefit payments.



Sec. 1011.10  How will the Presidio Trust use administrative offset (offset of non-tax federal payments) to collect a debt?

    (a) Centralized administrative offset through the Treasury Offset 
Program. (1) If not already transferred to the FMS under Sec. 1011.9 of 
this part, the Presidio Trust will refer any eligible debt over 180 days 
delinquent to the Treasury Offset Program for collection by centralized 
administrative offset. The Presidio Trust may refer any eligible debt 
less than 180 days delinquent to the Treasury Offset Program for offset.
    (2) At least 60 days prior to referring a debt to the Treasury 
Offset Program, in accordance with paragraph (a)(1) of this section, the 
Presidio Trust will send notice to the debtor in accordance with the 
requirements of Sec. 1011.4 of this part. The Presidio Trust will 
certify to the FMS, in writing, that the debt is valid, delinquent, 
legally enforceable and that there are no legal bars to collection by 
offset. In addition, the Presidio Trust will certify its compliance with 
the due process requirements under 31 U.S.C. 3716(a) and with the 
requirements described in this part.
    (b) Non-centralized administrative offset for a debt. (1) When 
centralized administrative offset through the Treasury Offset Program is 
not available or appropriate, the Presidio Trust may collect delinquent, 
legally enforceable debts through non-centralized administrative offset. 
In these cases, the Presidio Trust may offset a payment internally or 
make an offset request directly to a federal paying agency.
    (2) At least 30 days prior to offsetting a payment internally or 
requesting a federal paying agency to offset a payment, the Presidio 
Trust will send notice to the debtor in accordance with the requirements 
of Sec. 1011.4 of this part. When referring a debt for offset under 
this paragraph (b), the Presidio Trust will certify, in writing, that 
the debt is valid, delinquent, legally enforceable and that there are no 
legal bars to collection by offset. In addition, the Presidio Trust will 
certify its compliance with the due process requirements under 31 U.S.C. 
3716(a) and with these regulations concerning administrative offset.

[[Page 263]]

    (c) Administrative review. The notice described in Sec. 1011.4 of 
this part will explain to the debtor how to request an administrative 
review of the Presidio Trust determination that the debtor owes a debt 
and how to present evidence that the debt is not delinquent or legally 
enforceable. In addition to challenging the existence and amount of the 
debt, the debtor may seek a review of the terms of repayment. In most 
cases, the Presidio Trust will provide the debtor with a ``paper 
hearing'' based upon a review of the written record, including 
documentation provided by the debtor. The Presidio Trust will provide 
the debtor with a reasonable opportunity for an oral hearing when the 
debtor requests reconsideration of the debt and the Presidio Trust 
determines that the question of the indebtedness cannot be resolved by 
review of the documentary evidence, for example, when the validity of 
the debt turns on an issue of credibility or veracity. Unless otherwise 
required by law, an oral hearing under this section is not required to 
be a formal evidentiary hearing, although the Presidio Trust will 
document all significant matters presented at the hearing. The Presidio 
Trust may suspend collection through administrative offset and/or other 
collection actions pending the resolution of a debtor's dispute. The 
Presidio Trust may establish policies, guidelines and procedures 
concerning the administrative review process consistent with the FCCS 
and the regulations in this section.
    (d) Procedures for expedited offset. Under the circumstances 
described by the FCCS, the Presidio Trust may effect an offset against a 
payment to be made to the debtor prior to sending a notice to the 
debtor, as described in Sec. 1011.4 of this part, or completing the 
procedures described in paragraph (b)(2) and (c) of this section. The 
Presidio Trust will give the debtor notice and an opportunity for review 
as soon as practicable and promptly refund any money ultimately found 
not to have been owed to the Government.



Sec. 1011.11  How will the Presidio Trust use tax refund offset to collect a debt?

    (a) Tax refund offset. In most cases, the FMS uses the Treasury 
Offset Program to collect debts by the offset of tax refunds and other 
federal payments. See Sec. 1011.9(c) of this part. If not already 
transferred to the FMS under Sec. 1011.9 of this part, the Presidio 
Trust will refer to the Treasury Offset Program any delinquent, legally 
enforceable debt for collection by tax refund offset.
    (b) Notice; certification. At least 60 days prior to referring a 
debt to the Treasury Offset Program, the Presidio Trust will send notice 
to the debtor in accordance with the requirements of Sec. 1011.4 of 
this part. The Presidio Trust will certify to the FMS's Treasury Offset 
Program, in writing, that the debt is delinquent and legally enforceable 
in the amount submitted and that the Presidio Trust has made reasonable 
efforts to obtain payment of the debt. In addition, the Presidio Trust 
will certify its compliance with all applicable due process and other 
requirements described in this part and other applicable law.
    (c) Administrative review. The notice described in Sec. 1011.4 of 
this part will provide the debtor with at least 60 days prior to the 
initiation of tax refund offset to request an administrative review as 
described in Sec. 1011.10(c) of this part. The Presidio Trust may 
suspend collection through tax refund offset and/or other collection 
actions pending the resolution of the debtor's dispute.



Sec. 1011.12  How will the Presidio Trust offset a Federal employee's salary to collect a debt?

    (a) Federal salary offset. (1) Salary offset is used to collect 
debts owed to the United States by Federal employees. If a Presidio 
Trust employee owes a debt, the Presidio Trust may offset the employee's 
federal salary to collect the debt in the manner described in this 
section. For information on how a Federal agency other than the Presidio 
Trust may collect a debt from the salary of a Presidio Trust employee, 
see Sec. 1011.21 and 1011.22, subpart C, of this part.

[[Page 264]]

    (2) Nothing in this part requires the Presidio Trust to collect a 
debt in accordance with the provisions of this section if Federal law 
allows otherwise.
    (b) Centralized salary offset through the Treasury Offset Program. 
As described in Sec. 1011.9(a) of this part, the Presidio Trust will 
refer debts to the FMS for collection by administrative offset, 
including salary offset, through the Treasury Offset Program.
    (c) Non-centralized salary offset for Treasury debts. The Presidio 
Trust may collect delinquent debts through non-centralized salary 
offset. In these cases, the Presidio Trust may offset a payment 
internally or make a request directly to a paying agency to offset a 
salary payment to collect a delinquent debt owed by a Federal employee. 
At least 30 days prior to offsetting internally or requesting a Federal 
agency to offset a salary payment, the Presidio Trust will send notice 
to the debtor in accordance with the requirements of Sec. 1011.4 of 
this part. When referring a debt for offset, the Presidio Trust will 
certify to the paying agency, in writing, that the debt is valid, 
delinquent and legally enforceable in the amount stated, and there are 
no legal bars to collection by salary offset. In addition, the Presidio 
Trust will certify that all due process and other prerequisites to 
salary offset have been met. See 5 U.S.C. 5514, 31 U.S.C. 3716(a), and 
this section for a description of the process for salary offset.
    (d) When prior notice not required. The Presidio Trust is not 
required to provide prior notice to a Presidio Trust employee when the 
following adjustments are made:
    (1) Any adjustment to pay arising out of a Presidio Trust 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 fewer;
    (2) A routine intra-agency adjustment of pay that is made to correct 
an overpayment of pay attributable to clerical or administrative errors 
or delays in processing pay documents, if the overpayment occurred 
within the four pay periods preceding the adjustment, and, at the time 
of such adjustment, or as soon thereafter as practical, the individual 
is provided written notice of the nature and the amount of the 
adjustment and point of contact for contesting such adjustment; or
    (3) Any adjustment to collect a debt amounting to $50 or less, if, 
at the time of such adjustment, or as soon thereafter as practical, the 
individual is provided written notice of the nature and the amount of 
the adjustment and a point of contact for contesting such adjustment.
    (e) Hearing procedures. (1) Request for a hearing. A Presidio Trust 
employee who has received a notice that a debt will be collected by 
means of salary offset may request a hearing concerning the existence or 
amount of the debt. The employee also may request a hearing concerning 
the amount proposed to be deducted from the employee's pay each pay 
period. The employee must send any request for hearing, in writing, to 
the office designated in the notice described in Sec. 1011.4(a)(11). 
The request must be received by the designated office on or before the 
15th business day following the employee's receipt of the notice. The 
employee must sign the request and specify whether an oral or paper 
hearing is requested. If an oral hearing is requested, the employee must 
explain why the matter cannot be resolved by review of the documentary 
evidence alone.
    (2) Failure to submit timely request for hearing. If the employee 
fails to submit a request for hearing within the time period described 
in paragraph (e)(1) of this section, the employee will have waived the 
right to a hearing, and salary offset may be initiated. However, the 
Presidio Trust may accept a late request for hearing if the employee can 
show that the late request was the result of circumstances beyond the 
employee's control or because of a failure to receive actual notice of 
the filing deadline.
    (3) Hearing official. The Presidio Trust hearing must be conducted 
by a hearing official who is not under the supervision or control of the 
Board of Directors of the Presidio Trust. The hearing official need not 
be an employee of the Federal Government.
    (4) Notice of hearing. After the employee requests a hearing, a 
designated

[[Page 265]]

hearing official will inform the employee of the form of the hearing to 
be provided. For oral hearings, the notice will set forth the date, time 
and location of the hearing. For paper hearings, the notice will notify 
the employee of the date by which the employee should submit written 
arguments to the designated hearing official. The hearing official will 
give the employee reasonable time to submit documentation in support of 
the employee's position. The hearing official will schedule a new 
hearing date if requested by both parties. The hearing official will 
give both parties reasonable notice of the time and place of a 
rescheduled hearing.
    (5) Oral hearing. The hearing official will conduct an oral hearing 
if the official determines that the matter cannot be resolved by review 
of documentary evidence alone (for example, when an issue of credibility 
or veracity is involved). The hearing official will determine the 
procedure for the oral hearing, determining, for example, the hearing 
length.
    (6) Paper hearing. If the hearing official determines that an oral 
hearing is not necessary, the official will make the determination based 
upon a review of the available written record, including any 
documentation submitted by the employee in support of the employee's 
position.
    (7) Date of decision. The hearing official will issue a written 
opinion setting forth the decision, based upon documentary evidence and 
information developed at the hearing, as soon as practicable after the 
hearing.
    (8) Final agency action. The hearing official's decision will be 
final.
    (f) Salary offset process. (1) Determination of disposable pay. The 
Presidio Trust payroll office will determine the amount of the 
employee's disposable pay (as defined in Sec. 1011.1 of this part) and 
will implement salary offset.
    (2) When salary offset begins. Deductions will begin within three 
official pay periods.
    (3) Amount of salary offset. The amount to be offset from each 
salary payment will be up to 15% of the employee's disposable pay, as 
follows:
    (i) If the amount of the debt is equal to or less than 15% of the 
disposable pay, such debt generally will be collected in one lump sum 
payment;
    (ii) Installment deductions will be made over a period of no greater 
than the anticipated period of employment. An installment deduction will 
not exceed 15% of the disposable pay from which the deduction is made 
unless the employee has agreed in writing to the deduction of a greater 
amount.
    (4) Final salary payment. After the employee's employment with the 
Presidio Trust ends, the Presidio Trust may make a lump sum deduction 
exceeding 15% of disposable pay from any final salary or other payments 
in order to satisfy a debt.



Sec. 1011.13  How will the Presidio Trust use administrative wage garnishment to collect a debt from a debtor's wages?

    (a) Authority and process. The Presidio Trust is authorized to 
collect debts from a debtor's wages by means of administrative wage 
garnishment in accordance with the requirements of the FCCS and other 
applicable law. This part adopts and incorporates all of the provisions 
of 31 CFR 285.11 concerning administrative wage garnishment, including 
the hearing procedures described therein. The Presidio Trust may use 
administrative wage garnishment to collect a delinquent debt unless the 
debtor is making timely payments under an agreement to pay the debt in 
installments (see Sec. 1011.6 of this part). At least 30 days prior to 
initiating an administrative wage garnishment, the Presidio Trust will 
send notice to the debtor in accordance with the requirements of Sec. 
1011.4 of this part, including the requirements of Sec. 1011.4(a)(10) 
of this part. For debts referred to the FMS under Sec. 1011.9 of this 
part, the Presidio Trust may authorize the FMS to send a notice 
informing the debtor that administrative wage garnishment will be 
initiated and how the debtor may request a hearing as described in Sec. 
1011.4(a)(10) of this part. If a debtor makes a timely request for a 
hearing, administrative wage garnishment will not begin until a hearing 
is held and a decision is sent to the debtor. If a debtor's hearing 
request is not timely, the Presidio Trust may suspend

[[Page 266]]

collection by administrative wage garnishment. All travel expenses 
incurred by the debtor in connection with an in-person hearing will be 
borne by the debtor.
    (b) Not applicable to federal salary offset. This section does not 
apply to federal salary offset, the process by which the Presidio Trust 
collects debts from the salaries of Federal employees (see Sec. 1011.12 
of this part).



Sec. 1011.14  How will the Presidio Trust report debts to credit bureaus?

    The Presidio Trust will report delinquent debts to credit bureaus in 
accordance with the provisions of 31 U.S.C. 3711(e) and the FCCS. At 
least 60 days prior to reporting a delinquent debt to a consumer 
reporting agency, the Presidio Trust will send notice to the debtor in 
accordance with the requirements of Sec. 1011.4 of this part. The 
Presidio Trust may authorize the FMS to report to credit bureaus those 
delinquent debts that have been transferred to the FMS under Sec. 
1011.9 of this part.



Sec. 1011.15  How will the Presidio Trust refer debts to private collection contractors?

    The Presidio Trust will transfer delinquent debts to the FMS to 
obtain debt collection services provided by private collection 
contractors. See Sec. 1011.9 of this part.



Sec. 1011.16  When will the Presidio Trust refer debts to the Department of Justice?

    (a) Compromise or suspension or termination of collection activity. 
The Presidio Trust will refer debts having a principal balance over 
$100,000, or such higher amount as authorized by the Attorney General, 
to the Department of Justice for approval of any compromise of a debt or 
suspension or termination of collection activity. See the FCCS and Sec. 
1011.7 and 1011.8 of this part.
    (b) Litigation. The Presidio Trust will promptly refer to the 
Department of Justice for litigation delinquent debts on which 
aggressive collection activity has been taken in accordance with this 
part that the Presidio Trust determines should not be compromised, and 
on which collection activity should not be suspended or terminated. The 
Presidio Trust may authorize the FMS to refer to the Department of 
Justice for litigation those delinquent debts that have been transferred 
to the FMS under Sec. 1011.9 of this part.



Sec. 1011.17  Will a debtor who owes a debt be ineligible for Presidio Trust licenses, permits, leases, privileges or services?

    Unless prohibited by law, the Presidio Trust may terminate, suspend 
or revoke licenses, permits, leases (subject to the terms of the 
leases), or other privileges or services for any inexcusable or willful 
failure of a debtor to pay a debt. The Presidio Trust may establish 
guidelines and procedures governing termination, suspension and 
revocation for delinquent debtors. If applicable, the Presidio Trust 
will advise the debtor in the notice required by Sec. 1011.4 of this 
part of the Presidio Trust's ability to suspend or revoke licenses, 
permits, leases, or privileges or services.



Sec. 1011.18  How does a debtor request a special review based on a change in circumstances such as catastrophic illness, divorce, death or disability?

    (a) Material change in circumstances. A debtor who owes a debt may, 
at any time, request a special review by the Presidio Trust of the 
amount of any offset, administrative wage garnishment or voluntary 
payment, based on materially changed circumstances beyond the control of 
the debtor such as, without limitation, catastrophic illness, divorce, 
death or disability.
    (b) Inability to pay. For purposes of this section, in determining 
whether an involuntary or voluntary payment would prevent the debtor 
from meeting essential subsistence expenses (costs incurred for food, 
housing, clothing, transportation and medical care), the debtor must 
submit a detailed statement and supporting documents for the debtor, the 
debtor's, 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.

[[Page 267]]

    (c) Alternative payment arrangement. If the debtor requests a 
special review under this section, the debtor must submit an alternative 
proposed payment schedule and a statement to the Presidio Trust, with 
supporting documents, showing why the current offset, garnishment or 
repayment schedule imposes an extreme financial hardship on the debtor. 
The Presidio Trust will evaluate the statement and documentation and 
determine whether the current offset, garnishment or repayment schedule 
imposes extreme financial hardship on the debtor. The Presidio Trust 
will notify the debtor in writing of such determination, including, if 
appropriate, a revised offset, garnishment or payment schedule. If the 
special review results in a revised offset, garnishment or repayment 
schedule, the Presidio Trust will notify the appropriate agency or other 
persons about the new terms.



Sec. 1011.19  Will the Presidio Trust issue a refund if money is erroneously collected on a debt?

    The Presidio Trust will promptly refund to a debtor any amount 
collected on a debt when the debt is waived or otherwise found not to be 
owed to the United States, or as otherwise required by law. Refunds 
under this part will not bear interest unless required by law.



Sec. 1011.20  Will the Presidio Trust's failure to comply with these regulations be a defense to a debt?

    No, the failure of the Presidio Trust to comply with any standard in 
the FCCS, these regulations or such other procedures of the Presidio 
Trust will not be available to any debtor as a defense.



 Subpart C_Procedures for Offset of Presidio Trust Payments To Collect 
                  Debts Owed To Other Federal Agencies



Sec. 1011.21  How do other Federal agencies use the offset process to collect debts from payments issued by the Presidio Trust?

    (a) Offset of Presidio Trust payments to collect debts owed to other 
Federal agencies. (1) In most cases, Federal agencies submit eligible 
debts to the Treasury Offset Program to collect delinquent debts from 
payments issued by other Federal agencies, a process known as 
``centralized offset.'' When centralized offset is not available or 
appropriate, any Federal agency may ask the Presidio Trust (when acting 
as a paying agency) to collect a debt owed to such agency by offsetting 
funds payable to a debtor by the Presidio Trust, including salary 
payments issued to the Presidio Trust employees. This section and Sec. 
1011.22 of this subpart C apply when a Federal agency asks the Presidio 
Trust to offset a payment issued by the Presidio Trust to a person who 
owes a debt to the United States.
    (2) This subpart C does not apply to the collection of debts through 
tax refund offset.
    (b) Administrative offset (including salary offset); certification. 
The Presidio Trust will initiate a requested offset only upon receipt of 
written certification from the creditor agency that the debtor owes the 
delinquent, legally enforceable debt in the amount stated, and that the 
creditor agency has fully complied with all applicable due process and 
other requirements, and the creditor agency's regulations, as 
applicable. Offsets will continue until the debt is paid in full or 
otherwise resolved to the satisfaction of the creditor agency.
    (c) Where a creditor agency makes requests for offset. Requests for 
offset under this section must be sent to the Presidio Trust, ATTN: 
Chief Financial Officer, P.O. Box 29052, San Francisco, CA 94129-0052.
    (d) Incomplete certification. The Presidio Trust will return an 
incomplete debt certification to the creditor agency with notice that 
the creditor agency must comply with paragraph (b) of this section 
before action will be taken to collect a debt from a payment issued by 
the Presidio Trust.
    (e) Review. The Presidio Trust 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.
    (f) When the Presidio Trust will not comply with offset request. The 
Presidio

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Trust will comply with the offset request of another agency unless the 
Presidio Trust determines that the offset would not be in the best 
interests of the United States, or would otherwise be contrary to law.
    (g) Multiple debts. When two or more creditor agencies are seeking 
offsets from payments made to the same person, or when two or more debts 
are owed to a single creditor agency, the Presidio Trust may determine 
the order in which the debts will be collected or whether one or more 
debts should be collected by offset simultaneously.
    (h) Priority of debts owed to the Presidio Trust. For purposes of 
this section, debts owed to the Presidio Trust generally take precedence 
over debts owed to other agencies. The Presidio Trust may determine 
whether to pay debts owed to other agencies before paying a debt owed to 
the Presidio Trust. The Presidio Trust will determine the order in which 
the debts will be collected based on the best interests of the United 
States.



Sec. 1011.22  What does the Presidio Trust do upon receipt of a request to offset the salary of a Presidio Trust employee to collect a debt owed by the 
          employee to another Federal agency?

    (a) Notice to the Presidio Trust employee. When the Presidio Trust 
receives proper certification of a debt owed by one of its employees, 
the Presidio Trust will begin deductions from the employee's pay at the 
next officially established pay interval. The Presidio Trust will send a 
written notice to the employee indicating that a certified debt claim 
has been received from the creditor agency, the amount of the debt 
claimed to be owed to the creditor agency, the date deductions from 
salary will begin, and the amount of such deductions.
    (b) Amount of deductions from a Presidio Trust employee's salary. 
The amount deducted under Sec. 1011.21(b) of this part will be the 
lesser of the amount of the debt certified by the creditor agency or an 
amount up to 15% of the debtor's disposable pay. Deductions will 
continue until the Presidio Trust knows that the debt is paid in full or 
until otherwise instructed by the creditor agency. Alternatively, the 
amount offset may be an amount agreed upon, in writing, by the debtor 
and the creditor agency. See Sec. 1011.12(g) (salary offset process).
    (c) When the debtor is no longer employed by the Presidio Trust--(1) 
Offset of final and subsequent payments. If the Presidio Trust employee 
retires or resigns or if his or her employment ends before collection of 
the debt is complete, the Presidio Trust will continue to offset up to 
100% of an employee's subsequent payments until the debt is paid or 
otherwise resolved. Such payments include a debtor's final salary 
payment, lump-s