[Title 45 CFR ]
[Code of Federal Regulations (annual edition) - October 1, 2009 Edition]
[From the U.S. Government Printing Office]



[[Page i]]



          45


          Parts 500 to 1199

                         Revised as of October 1, 2009


          Public Welfare




________________________

          Containing a codification of documents of general 
          applicability and future effect

          As of October 1, 2009
          With Ancillaries
                    Published by
                    Office of the Federal Register
                    National Archives and Records
                    Administration
                    A Special Edition of the Federal Register

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                            Table of Contents



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

  Title 45:
    SUBTITLE B--Regulations Relating to Public Welfare 
      (Continued) 
          Chapter V--Foreign Claims Settlement Commission of 
          the United States, Department of Justice                   5
          Chapter VI--National Science Foundation                   37
          Chapter VII--Commission on Civil Rights                  259
          Chapter VIII--Office of Personnel Management 
          [Reserved]
          Chapter X--Office of Community Services, 
          Administration for Children and Families, Department 
          of Health and Human Services                             301
          Chapter XI--National Foundation on the Arts and the 
          Humanities                                               309
  Finding Aids:
      Table of CFR Titles and Chapters........................     555
      Alphabetical List of Agencies Appearing in the CFR......     575
      List of CFR Sections Affected...........................     585

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

                     Cite this Code: CFR
                     To cite the regulations in 
                       this volume use title, 
                       part and section number. 
                       Thus, 45 CFR 500.1 refers 
                       to title 45, part 500, 
                       section 1.

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

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                               EXPLANATION

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

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

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

LEGAL STATUS

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

HOW TO USE THE CODE OF FEDERAL REGULATIONS

    The Code of Federal Regulations is kept up to date by the individual 
issues of the Federal Register. These two publications must be used 
together to determine the latest version of any given rule.
    To determine whether a Code volume has been amended since its 
revision date (in this case, October 1, 2009), consult the ``List of CFR 
Sections Affected (LSA),'' which is issued monthly, and the ``Cumulative 
List of Parts Affected,'' which appears in the Reader Aids section of 
the daily Federal Register. These two lists will identify the Federal 
Register page number of the latest amendment of any given rule.

EFFECTIVE AND EXPIRATION DATES

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

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

    Provisions that become obsolete before the revision date stated on 
the cover of each volume are not carried. Code users may find the text 
of provisions in effect on a given date in the past by using the 
appropriate numerical list of sections affected. For the period before 
January 1, 2001, consult either the List of CFR Sections Affected, 1949-
1963, 1964-1972, 1973-1985, or 1986-2000, published in eleven separate 
volumes. For the period beginning January 1, 2001, 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 
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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.
    What if the material incorporated by reference cannot be found? If 
you have any problem locating or obtaining a copy of material listed as 
an approved incorporation by reference, please contact the agency that 
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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 Authorities 
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alphabetical list of agencies publishing in the CFR are also included in 
this volume.
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that volume.
    The Federal Register Index is issued monthly in cumulative form. 
This index is based on a consolidation of the ``Contents'' entries in 
the daily Federal Register.
    A List of CFR Sections Affected (LSA) is published monthly, keyed to 
the revision dates of the 50 CFR titles.




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REPUBLICATION OF MATERIAL

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in the Code of Federal Regulations.

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    Raymond A. Mosley,
    Director,
    Office of the Federal Register.
    October 1, 2009.







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                               THIS TITLE

    Title 45--Public Welfare is composed of four volumes. The parts in 
these volumes are arranged in the following order: Parts 1-199, 200-499, 
500-1199, and 1200 to end. Volume one (parts 1-199) contains all current 
regulations issued under subtitle A--Department of Health and Human 
Services. Volume two (parts 200-499) contains all current regulations 
issued under subtitle B--Regulations Relating to Public Welfare, chapter 
II--Office of Family Assistance (Assistance Programs), Administration 
for Children and Families, Department of Health and Human Services, 
chapter III--Office of Child Support Enforcement (Child Support 
Enforcement Program), Administration for Children and Families, 
Department of Health and Human Services, and chapter IV--Office of 
Refugee Resettlement, Administration for Children and Families, 
Department of Health and Human Services. Volume three (parts 500-1199) 
contains all current regulations issued under chapter V--Foreign Claims 
Settlement Commission of the United States, Department of Justice, 
chapter VI--National Science Foundation, chapter VII--Commission on 
Civil Rights, chapter X--Office of Community Services, Administration 
for Children and Families, Department of Health and Human Services, and 
chapter XI--National Foundation on the Arts and the Humanities. Volume 
four (part 1200 to end) contains all current regulations issued under 
chapter XII--Corporation for National and Community Service, chapter 
XIII--Office of Human Development Services, Department of Health and 
Human Services, chapter XVI--Legal Services Corporation, chapter XVII--
National Commission on Libraries and Information Science, chapter 
XVIII--Harry S Truman Scholarship Foundation, chapter XXI--Commission of 
Fine Arts, chapter XXIII--Artic Research Commission, chapter XXIV--James 
Madison Memorial Fellowship Foundation, and chapter XXV--Corporation for 
National and Community Service. The contents of these volumes represent 
all of the current regulations codified under this title of the CFR as 
of October 1, 2009.

    For this volume, Susannah C. Hurley was Chief Editor. The Code of 
Federal Regulations publication program is under the direction of 
Michael L. White, assisted by Ann Worley.


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                        TITLE 45--PUBLIC WELFARE




                 (This book contains parts 500 to 1199)

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

     SUBTITLE B--Regulations Relating to Public Welfare (Continued)

                                                                    Part

chapter v--Foreign Claims Settlement Commission of the 
  United States, Department of Justice......................         500

chapter vi--National Science Foundation.....................         601

chapter vii--Commission on Civil Rights.....................         701
chapter viii--Office of Personnel Management [Reserved]

chapter x--Office of Community Services, Administration for 
  Children and Families, Department of Health and Human 
  Services..................................................        1080

chapter xi--National Foundation on the Arts and the 
  Humanities................................................        1100

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     SUBTITLE B--Regulations Relating to Public Welfare (Continued)

[[Page 5]]



 CHAPTER V--FOREIGN CLAIMS SETTLEMENT COMMISSION OF THE UNITED STATES, 
                          DEPARTMENT OF JUSTICE




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

                     SUBCHAPTER A--RULES OF PRACTICE
Part                                                                Page
500             Appearance and practice.....................           7
501             Subpoenas, depositions, and oaths...........           8
502             Public information-Freedom of Information 
                    Act.....................................          11
503             Privacy Act and Government in the Sunshine 
                    Regulations.............................          17
SUBCHAPTER B--RECEIPT, ADMINISTRATION, AND PAYMENT OF CLAIMS UNDER TITLE 
               I OF THE WAR CLAIMS ACT OF 1948, AS AMENDED
504             Filing of claims and procedures therefor....          25
505             Provisions of general application...........          26
506             Eligibility requirements for compensation...          27
507             Payment.....................................          30
508             Hearings....................................          30
 SUBCHAPTER C--RECEIPT, ADMINISTRATION, AND PAYMENT OF CLAIMS UNDER THE 
  INTERNATIONAL CLAIMS SETTLEMENT ACT OF 1949, AS AMENDED, AND RELATED 
                                  ACTS
509             Filing of claims and procedures therefor....          33

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                     SUBCHAPTER A_RULES OF PRACTICE





PART 500_APPEARANCE AND PRACTICE--Table of Contents




Sec.
500.1 Appearance and representation.
500.2 Notice of entry or withdrawal of counsel in claims.
500.3 Fees.
500.4 Suspension of attorneys.
500.5 Standards of Conduct.
500.6 Disqualification of former employees.

    Authority: Sec. 2, Pub. L. 896, 80th Cong., 62 Stat. 1240, as 
amended (50 U.S.C. App. 2001); sec. 3, Pub. L. 455, 81st Cong., 64 Stat. 
12, as amended (22 U.S.C. 1622); 18 U.S.C. 207.

    Source: 66 FR 49844, Oct. 1, 2001, unless otherwise noted.



Sec. 500.1  Appearance and representation.

    (a) An individual may appear in his or her own behalf, or may be 
represented by an attorney at law admitted to practice in any State or 
Territory of the United States, or the District of Columbia.
    (b) A member of a partnership may represent the partnership.
    (c) A bona fide officer of a corporation, trust or association may 
represent the corporation, trust or association.
    (d) An officer or employee of the United States Department of 
Justice, when designated by the Attorney General of the United States, 
may represent the United States in a claim proceeding.
    (e) In cases falling within the purview of subchapter B of this 
chapter, persons designated by veterans', service, and other 
organizations to appear before the Commission in a representative 
capacity on behalf of claimants will be deemed duly authorized to 
practice before the Commission if the designating organization has 
received a letter of accreditation from the Commission. Petitions for 
accreditation must be in writing, executed by duly authorized officer or 
officers, and addressed to the Foreign Claims Settlement Commission of 
the United States, Washington, DC 20579. Upon receipt of a petition 
setting forth pertinent facts as to the organization's history, purpose, 
number of posts or chapters and their locations, approximate number of 
paid-up memberships, statements that the organization will not charge 
any fee for services rendered by its designees in behalf of claimants 
and that it will not refuse on the grounds of non-membership to 
represent any claimant who applies for representation if the claimant 
has an apparently valid claim, accompanied by a copy of the 
organization's constitution, or charter, by-laws, and its latest 
financial statement, the Commission in its discretion will consider and 
in appropriate cases issue or deny letters of accreditation.
    (f) A claimant may not be represented before the Commission except 
as authorized in paragraphs (a) through (e) of this section.



Sec. 500.2  Notice of entry or withdrawal of counsel in claims.

    (a) Counsel entering an appearance in a claim originally filed by a 
claimant in the claimant's own behalf, or upon request for a 
substitution of attorneys, will be required to file an authorization 
signed by the claimant.
    (b) When counsel seeks to withdraw from the prosecution of a claim, 
he or she will be required to demonstrate that the client (claimant) has 
been duly notified.
    (c) When a claimant advises the Commission that counsel no longer 
represents that claimant, a copy of the Commission's acknowledgment will 
be forwarded to that counsel.



Sec. 500.3  Fees.

    (a) The amount of attorney's fees that may be charged in connection 
with claims falling within the purview of title I of the International 
Claims Settlement Act of 1949, as amended (22 U.S.C. Sec. 1621-1627), 
is governed by the provisions of 22 U.S.C.1623(f).
    (b) The amount of attorney's fees that may be charged in connection 
with claims falling within the purview of subchapter B of this chapter 
is governed by the provisions of section 10 of the War Claims Act of 
1948, as amended (50 U.S.C. App. 2009).

[[Page 8]]



Sec. 500.4  Suspension of attorneys.

    (a) The Commission may disqualify, or deny, temporarily or 
permanently, the privilege of appearing or practicing before it in any 
way to any person who is found after a hearing in the matter--
    (1) Not to possess the requisite qualifications to represent others 
before the Commission; or
    (2) To be lacking in character or integrity or to have engaged in 
unethical or improper professional conduct; or
    (3) To have violated sections 10 and 214 of the War Claims Act of 
1948, as amended, or section 4(f) of the International Claims Settlement 
Act of 1949, as amended.
    (b) Contemptuous or contumacious conduct at any hearing will be 
ground for exclusion from that hearing and for summary suspension 
without a hearing for the duration of the hearing.



Sec. 500.5  Standards of Conduct.

    The conduct of the members, officers and employees of the 
Commission, including its special Government employees, is governed by 
the Standards of Ethical Conduct for Employees of the Executive Branch 
set forth in 5 CFR part 2635 and the Supplemental Standards of Conduct 
for Employees of the Department of Justice set forth in 5 CFR part 3801.



Sec. 500.6  Disqualification of former employees.

    The provisions of 18 U.S.C. 207 shall govern the post-employment 
appearance of former Commission members, officers, and employees, 
including special Government employees, in the capacity of agent, 
attorney or representative on behalf of claimants before the Commission.



PART 501_SUBPOENAS, DEPOSITIONS, AND OATHS--Table of Contents




Sec.
501.1 Extent of authority.
501.2 Subpoenas.
501.3 Service of process.
501.4 Witnesses.
501.5 Depositions.
501.6 Documentary evidence.
501.7 Time.

    Authority: Sec. 2, Pub. L. 896, 80th Cong., 62 Stat. 1240, as 
amended (50 U.S.C. App. 2001); sec. 3, Pub. L. 455, 81st Cong., 64 Stat. 
12, as amended (22 U.S.C. 1622).

    Source: 66 FR 49844, Oct. 1, 2001, unless otherwise noted.



Sec. 501.1  Extent of authority.

    (a) Subpoenas, oaths and affirmations. The issuance of subpoenas, 
the administration of oaths and affirmations, the taking of affidavits, 
the conduct of investigations, and the examination of witnesses by the 
Commission and its members, officers and employees is governed by the 
provisions of 22 U.S.C. 1623(c) and 50 U.S.C. App. 2001(c).
    (b) Certification. The Commission or any member thereof may, for the 
purpose of a hearing, examination, or investigation, certify the 
correctness of any papers, documents, and other matters pertaining to 
the administration of any laws relating to the functions of the 
Commission.



Sec. 501.2  Subpoenas.

    (a) Issuance. A member of the Commission or a designated employee 
may, on the member or employee's own volition or upon written 
application by any party and upon a showing of general relevance and 
reasonable scope of the evidence sought, issue subpoenas requiring 
persons to appear and testify or to appear and produce documents. 
Applications for issuance of subpoenas for production of documents shall 
specify the books, records, correspondence, or other documents sought. 
The subpoena will show on its face the name and address of the party at 
whose request the subpoena was issued.
    (b) Deposit for costs. The Commission or designated employee, before 
issuing any subpoena in response to any application by an interested 
party, may require a deposit in an amount adequate to cover fees and 
mileage involved.
    (c) Motion to quash. If any person subpoenaed does not intend to 
comply with the subpoena, that person must, within 15 days after the 
date of service of the subpoena, petition in writing to quash the 
subpoena. The basis for the motion must be stated in detail. Any party 
desiring to file an answer to a motion to quash must file the answer not 
later than 15 days after the filing of the motion. The Commission will

[[Page 9]]

rule on the motion to quash, duly recognizing any answer thereto filed. 
The motion, answer, and any ruling thereon will become part of the 
official record.
    (d) Appeal from interlocutory order. An appeal may be taken to the 
Commission by the interested parties from the denial of a motion to 
quash or from the refusal to issue a subpoena for the production of 
documentary evidence.
    (e) Order of court upon failure to comply. Upon the failure or 
refusal of any person to comply with a subpoena, the Commission may 
invoke the aid of the United States District Court within the 
jurisdiction of which the hearing, examination or investigation is being 
conducted, or wherein that person resides or transacts business, as 
provided in 22 U.S.C. 1623(c).



Sec. 501.3  Service of process.

    (a) By whom served. The Commission will serve all orders, notices 
and other papers issued by it, together with any other papers which it 
is required by law to serve.
    (b) Kinds of service. Subpoenas, orders, rulings, and other 
processes of the Commission may be served by delivering in person, by 
registered or certified mail, by overnight express delivery service, by 
first class mail, by telegraph, or by publication.
    (c) Personal service. Service by delivering in person may be 
accomplished by:
    (1) Delivering a copy of the document to the person to be served, to 
a member of the partnership to be served, to an executive officer or a 
director of the corporation to be served, or to a person competent to 
accept service; or
    (2) By leaving a copy thereof at the residence, principal office or 
place of business of the person, partnership, or corporation.
    (3) Proof of service. The return receipt for the order, other 
process or supporting papers, or the verification by the person serving, 
setting forth the manner of service, will be proof of the service of the 
document.
    (4) Service upon attorney or agent. When any party has appeared by 
an authorized attorney or agent, service upon the party's attorney or 
agent will be deemed service upon the party.
    (d) Service by registered mail or certified mail. Service by 
registered mail or certified mail will be regarded as complete on the 
date the return post office receipt for the orders, notices and other 
papers is received by the Commission.
    (e) Service by overnight express delivery service or by first class 
mail. Service by overnight express delivery service or first class mail 
will be regarded as complete upon deposit, respectively, in the delivery 
service's package receptacle or in the United States mail properly 
stamped and addressed.
    (f) Service by telegraph. Service by telegraph will be regarded as 
complete when deposited with a telegraph company properly addressed and 
with charges prepaid.
    (g) Service by publication. Service by publication is completed when 
due notice has been given in the publication for the time and in the 
manner provided by law or rule.
    (h) Date of service. The date of service is the day upon which the 
document is deposited in the United States mail or delivered in person, 
as the case may be.
    (i) Filing with Commission. Papers required to be filed with the 
Commission will be deemed filed upon actual receipt by the Commission 
accompanied by proof of service upon parties required to be served. Upon 
the actual receipt, the filing will be deemed complete as of the date of 
deposit in the mail or with the telegraph company as provided in 
paragraphs (e) and (f) of this section.



Sec. 501.4  Witnesses.

    (a) Examination of witnesses. Witnesses must appear in person and be 
examined orally under oath, except that for good cause shown, testimony 
may be taken by deposition.
    (b) Witness fees and mileage. Witnesses summoned by the Commission 
on its own behalf or on behalf of a claimant or interested party will be 
paid the same fees and mileage that are allowed and paid witnesses in 
the District Courts of the United States. Witness fees and mileage will 
be paid by the Commission or by the party at whose request the witness 
appears.
    (c) Transcript of testimony. Every person required to attend and 
testify will be entitled, upon payment of prescribed

[[Page 10]]

costs, to receive a copy of the recording of the testimony or a 
transcript of the recording. Every person required to submit documents 
or other evidence will be entitled to retain a copy thereof.



Sec. 501.5  Depositions.

    (a) Application to take. (1) An application to take a deposition 
must be in writing setting forth the reason why the deposition should be 
taken, the name and address of the witness, the matters concerning which 
it is expected the witness will testify, and the time and place proposed 
for the taking of the deposition, together with the name and address of 
the person before whom it is desired that the deposition be taken. If 
the deposition is being offered in connection with a hearing or 
examination, the application for deposition must be made to the 
Commission at least 15 days prior to the proposed date of such hearing 
or examination.
    (2) Application to take a deposition may be made during a hearing or 
examination, or subsequent to a hearing or examination, only where it is 
shown for good cause that the facts as set forth in the application to 
take the deposition were not within the knowledge of the person signing 
the application prior to the time of the hearing or examination.
    (3) The Commission or its representative will, upon receipt of the 
application and a showing of good cause, make and cause to be served 
upon the parties an order which will specify the name of the witness 
whose deposition is to be taken, the time, the place, and where 
practicable the designation of the officer before whom the witness is to 
testify. The officer may or may not be the one specified in the 
application. The order will be served upon all parties at least 10 days 
prior to the date of the taking of the deposition.
    (b) Who may take. The deposition may be taken before the designated 
officer or, if none is designated, before any officer authorized to 
administer oaths by the laws of the United States. If the examination is 
held in a foreign country, it may be taken before a secretary of an 
embassy or legation, consul-general, consul, vice consul, or consular 
agent of the United States.
    (c) Examination and certification of testimony. At the time and 
place specified in the Commission's order, the officer taking the 
deposition will permit the witness to be examined and cross-examined 
under oath by all parties appearing, and the testimony will be reduced 
to writing by, or under the direction of, the presiding officer. All 
objections to questions or evidence will be deemed waived unless made in 
accordance with paragraph (d) of this section. The officer will not have 
power to rule upon any objections but will note them upon the 
deposition. The testimony must be subscribed by the witness in the 
presence of the officer who will attach a certificate stating that the 
witness was duly sworn, that the deposition is a true record of the 
testimony and exhibits given by the witness and that the officer is not 
counsel or attorney to any of the interested parties. The officer will 
immediately seal and deliver an original and two copies of the 
transcript, together with the officer's certificate, by registered mail 
to the Foreign Claims Settlement Commission, Washington, DC 20579 or, if 
applicable, to the designated Commission field office.
    (d) Admissibility in evidence. The deposition will be admissible in 
evidence, subject to such objections to the questions and answers as 
were noted at the time of taking the deposition, or within ten (10) days 
after the return thereof, and would be valid were the witness personally 
present at the hearing.
    (e) Errors and irregularities. All errors or irregularities 
occurring will be deemed waived unless a motion to suppress the 
deposition or some part thereof is made with reasonable promptness after 
the defect is, or with due diligence might have been, ascertained.
    (f) Scope of use. The deposition of a witness, if relevant, may be 
used if the Commission finds:
    (1) That the witness has died since the deposition was taken; or
    (2) That the witness is at a distance greater than 100 miles radius 
of Washington, DC, the designated field office or the designated place 
of the hearing; or

[[Page 11]]

    (3) That the witness is unable to attend because of other good cause 
shown.
    (g) Interrogatories and cross-interrogatories. Depositions may also 
be taken and submitted on written interrogatories in substantially the 
same manner as depositions taken by oral examination. When a deposition 
is taken upon interrogatories and cross-interrogatories, none of the 
parties may be present or represented, and no person, other than the 
witness, the person's representative or attorney, a stenographic 
reporter and the presiding officer, may be present at the examination of 
the witness, which fact will be certified by the officer, who will read 
the interrogatories and cross-interrogatories to the witness in their 
order and reduce the testimony to writing in the witness's own words.
    (h) Fees. A witness whose deposition is taken pursuant to the 
regulations in this part, and the officer taking the deposition, will be 
entitled to the same fees and mileage allowed and paid for like service 
in the United States District Court for the district in which the 
deposition is taken. Such fees will be paid by the Commission or by the 
party at whose request the deposition is being taken.



Sec. 501.6  Documentary evidence.

    Documentary evidence may consist of books, records, correspondence 
or other documents pertinent to any hearing, examination, or 
investigation within the jurisdiction of the Commission. The application 
for the issuance of subpoenas for production of documents must specify 
the books, records, correspondence or other documents sought. The 
production of documentary evidence will not be required at any place 
other than the witness's place of business. The production of such 
documents will not be required at any place if, prior to the return date 
specified in the subpoena, the person either has furnished the issuer of 
the subpoena with a properly certified copy of the documents or has 
entered into a stipulation as to the information contained in the 
documents.



Sec. 501.7  Time.

    (a) Computation. In computing any period of time prescribed or 
allowed by the regulations, by order of the Commission, or by any 
applicable statute, the day of the act, event, or default after which 
the designated period of time begins to run is not to be included. The 
last day of the period so computed is to be included, unless it is a 
Saturday, Sunday or legal holiday, in which event the period runs until 
the end of the next day that is neither a Saturday, Sunday nor a 
holiday. When the period of time prescribed or allowed is less than 7 
days, intermediate Saturdays, Sundays and holidays will be excluded in 
the computation.
    (b) Enlargement. When by the regulations in this chapter, or by a 
notice given thereunder or by order of the Commission, an act is 
required or allowed to be done at or within a specific time, the 
Commission for good cause shown may, at any time in its discretion:
    (1) With or without motion, notice, or previous order or
    (2) Upon motion, permit the act to be done after the expiration of 
the specified period.



PART 502_PUBLIC INFORMATION-FREEDOM OF INFORMATION ACT--Table of Contents




Sec.
502.1 Organization and authority--Foreign Claims Settlement Commission.
502.2 Material to be published in the Federal Register pursuant to the 
          Freedom of Information Act.
502.3 Effect of nonpublication.
502.4 Incorporation by reference.
502.5 Records generally available.
502.6 Current index.
502.7 Additional documents and records generally available for 
          inspection and copying.
502.8 Documents on-line.
502.9 Effect of noncompliance.
502.10 Availability of records.
502.11 Actions on requests.
502.12 Appeals.
502.13 Exemptions.
502.14 Fees for services.

    Authority: 5 U.S.C. 552.

    Source: 66 FR 49844, Oct. 1, 2001, unless otherwise noted.

[[Page 12]]



Sec. 502.1  Organization and authority--Foreign Claims Settlement
Commission.

    (a) The Foreign Claims Settlement Commission of the United States 
(``the Commission'') is an independent agency of the Federal Government 
created by Reorganization Plan No. 1 of 1954 (68 Stat. 1279) effective 
July 1, 1954. The Commission was transferred to the Department of 
Justice as an independent agency within that department as of October 1, 
1980, under the terms of Public Law 96-209, approved March 14, 1980 (94 
Stat. 96, 22 U.S.C. 1622a). Its duties and authority are defined in the 
International Claims Settlement Act of 1949, as amended (64 Stat. 12, 22 
U.S.C. 1621-1645o) and the War Claims Act of 1948 (62 Stat. 1240, 50 
U.S.C. App. 2001-2017p).
    (b) The Commission has jurisdiction to determine the validity and 
amount of claims of United States nationals against foreign governments 
for compensation for losses and injuries sustained by those nationals, 
pursuant to programs authorized under either of the cited Acts. Funds 
for payment of claims are derived from international settlement 
agreements or through liquidation of foreign assets in the United States 
by the Department of Justice or Treasury, or from public funds when 
provided by the Congress.
    (c) The Chair and the two part-time members of the Commission are 
appointed by the President with the advice and consent of the Senate to 
serve for 3-year terms of office as provided in 22 U.S.C. 1622c(c).
    (d) All functions of the Commission are vested in the Chair with 
respect to the internal management of the affairs of the Commission, 
including but not limited to:
    (1) The appointment of Commission employees;
    (2) The direction of Commission employees and the supervision of 
their official duties;
    (3) The distribution of business among employees and organizational 
units within the Commission;
    (4) The preparation of budget estimates; and
    (5) The use and expenditures of Commission funds appropriated for 
expenses of administration.
    (e) Requests for records must be made in writing by mail or 
presented in person to the Administrative Officer, Foreign Claims 
Settlement Commission, Washington, DC 20579.
    (f) The offices of the Commission are located at 600 E Street NW 
(Bicentennial Building), Room 6002, Washington, DC.



Sec. 502.2  Material to be published in the Federal Register pursuant 
to the Freedom of Information Act.

    The Commission will separately state and concurrently publish the 
following materials in the Federal Register for the guidance of the 
public:
    (a) Descriptions of its central and field organization and the 
established places at which, the officers from whom, and the methods 
whereby, the public may secure information, make submittals or requests, 
or obtain decisions.
    (b) Statements of the general course and method by which its 
functions are channeled and determined, including the nature and 
requirements of all formal and informal procedures available.
    (c) Rules of procedure, descriptions of forms available or the 
places at which forms may be obtained, and instructions as to the scope 
and contents of all papers, reports, or examinations.
    (d) Substantive rules of general applicability adopted as authorized 
by law, and statements of general policy or interpretations of general 
applicability formulated and adopted by the agency.
    (e) Every amendment, revision, or repeal of the foregoing.



Sec. 502.3  Effect of nonpublication.

    Except to the extent that a person has actual and timely notice of 
the terms thereof, no person will in any manner be required to resort 
to, or be adversely affected by, any matter required to be published in 
the Federal Register and not so published.



Sec. 502.4  Incorporation by reference.

    For purposes of this part, matter which is reasonably available to 
the class of persons affected thereby will be deemed published in the 
Federal

[[Page 13]]

Register when incorporated by reference therein with the approval of the 
Director of the Federal Register.



Sec. 502.5  Records generally available.

    The Commission will make promptly available to any member of the 
public the following documents:
    (a) Proposed and Final Decisions (including dissenting opinions) and 
all orders made with respect thereto, except when exempted from public 
disclosure by statute;
    (b) Statements of policy and interpretations which have been adopted 
by the Commission which have not been published in the Federal Register; 
and
    (c) A current index, which will be updated at least quarterly, 
covering the foregoing material adopted, issued or promulgated after 
July 4, 1967. Publication of an index is deemed both unnecessary and 
impractical. However, copies of the index are available upon request for 
a fee of the direct cost of duplication.



Sec. 502.6  Current index.

    The Commission will maintain and make available for public 
inspection and copying, current indexes providing identifying 
information for the public as to any matter issued, adopted, or 
promulgated after July 4, 1967, as required by 5 U.S.C. 552(a)(2).



Sec. 502.7  Additional documents and records generally available for
inspection and copying.

    The following types of documents are also available for inspection 
and copying in the offices of the Commission:
    (a) Rules of practice and procedure.
    (b) Annual report of the Commission to the Congress of the United 
States.
    (c) Bound volumes of Commission decisions.
    (d) International Claims Settlement Act of 1949, with amendments; 
the War Claims Act of 1948, with amendments; and related Acts.
    (e) Claims agreements with foreign governments effecting the 
settlement of claims under the jurisdiction of the Commission.
    (f) Press releases and other miscellaneous material concerning 
Commission operations.
    (g) Indexes of claims filed in the various claims programs 
administered by the Commission.



Sec. 502.8  Documents on-line.

    Commission documents available in electronic format may be accessed 
via the Commission's World Wide Web site, the address of which is http:/
/www.usdoj.gov/fcsc.



Sec. 502.9  Effect of non-compliance.

    No decision, statement of policy, interpretation, or staff manual or 
instruction that affects any member of the public will be relied upon, 
used, or cited as precedent by the Commission against any private party 
unless it has been indexed and either made available or published as 
provided by this part, or unless that private party has actual and 
timely notice of the terms thereof.



Sec. 502.10  Availability of records.

    (a) Each person desiring access to a record covered by this part 
must comply with the following provisions:
    (1) A written request must be made for the record.
    (2) Such request must indicate that it is being made under the 
Freedom of Information Act.
    (3) The envelope in which the request is sent must be prominently 
marked with the letters ``FOIA.''
    (4) The request must be addressed to the appropriate official or 
employee of the Commission as set forth in paragraph (c) of this 
section.
    (5) The foregoing requirements must be complied with whether the 
request is mailed or hand-delivered to the Commission.
    (b) If the requirements of paragraph (a) of this section are not 
met, the twenty-day time limit described in Sec. 502.10(a) will not 
begin to run until the request has been identified by an official or 
employee of the Commission as a request under the Freedom of Information 
Act and has been received by the appropriate official or employee of the 
Commission.
    (c) Each person desiring access to a record covered in this part 
that is located in the Commission, or to obtain a copy of such a record, 
must make a written request to the Administrative Officer, Foreign 
Claims Settlement

[[Page 14]]

Commission, 600 E Street NW, Room 6002, Washington, DC 20579.
    (d) Each request should reasonably describe the particular record 
requested. The request should specify the subject matter, the date when 
it was made and the person or office that made it. If the description is 
insufficient, the official or employee handling the request may notify 
the person making the request and, to the extent possible, indicate the 
additional data required.
    (e) Each record made available under this section is available for 
inspection and copying during regular working hours. Original documents 
may be copied but may not be released from custody.
    (f) Authority to administer this part in connection with Commission 
records is delegated to the Administrative Officer or the Commission 
employee acting in that official's capacity.



Sec. 502.11  Actions on requests.

    (a) The Administrative Officer or any employee acting in that 
official's capacity will determine within twenty days (excepting 
Saturdays, Sundays, and legal public holidays) after the receipt of any 
a request whether to comply with the request. Upon receipt of a request 
for a Commission record which is available, the Administrative Officer 
or other employee will notify the requester as to the time the record is 
available, and will promptly make the record available after advising 
the requester of the applicable fees under Sec. 502.13. The person 
making the request will be notified immediately after any adverse 
determination, the reasons for making the adverse determination and the 
right of the person to appeal.
    (b) Any denial of a request for a record will be written and signed 
by the Administrative Officer or other employee, including a statement 
of the reason for denial. That statement will contain, as applicable:
    (1) A reference to the specific exemption under the Freedom of 
Information Act authorizing the withholding of a record, and to the 
extent consistent with the purpose of the exemption, an explanation of 
how the exemption applies to the record withheld.
    (2) If a record requested does not exist, or has been legally 
disposed of, the requester will be so notified.
    (c) In unusual circumstances, the time limit prescribed in paragraph 
(a) of this section may be extended by written notice to the person 
making the request setting forth the reasons for the extension and the 
date on which a determination is expected to be dispatched. No extension 
notice will specify a date that would result in an extension for more 
than twenty working days. As used in this paragraph, ``unusual 
circumstances'' means, but only to the extent reasonably necessary to 
the proper processing of the particular request--
    (1) The need to search for and collect the requested records from 
other establishments that are separate 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 will 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.



Sec. 502.12  Appeals.

    (a) Any person to whom a record has not been made available within 
the time limits established by paragraph (b) of Sec. 502.11, and any 
person who has been given an adverse determination pursuant to paragraph 
(b) of Sec. 503.10 of this chapter, that a requested record will not be 
disclosed, may apply to the Office of Information and Privacy, U.S. 
Department of Justice, Washington, DC 20530, for reconsideration of the 
request. The person making such a request will also be notified of the 
provisions for judicial review provided in 5 U.S.C. 552(a)(4).
    (b) Each application for reconsideration must be made in writing 
within sixty days from the date of receipt of the original denial and 
must include all information and arguments relied upon by the person 
making the request. The application must indicate that it is an

[[Page 15]]

appeal from a denial of a request made under the Freedom of Information 
Act. The envelope in which the application is sent must be prominently 
marked with the letters ``FOIA.'' If these requirements are not met, the 
twenty day limit described in Sec. 502.10 will not begin to run until 
the application has been identified as an application under the Freedom 
of Information Act and has been received by the Office of Information 
and Privacy of the Department of Justice.
    (c) Whenever it is to be determined necessary, the person making the 
request may be required to furnish additional information, or proof of 
factual allegations and other proceedings appropriate in the 
circumstances may be ordered.
    (d) The decision not to disclose a record under this part is 
considered to be a withholding for the purposes of 5 U.S.C. 552(a)(3).



Sec. 502.13  Exemptions.

    In the event any document or record requested hereunder should 
contain material which is exempt from disclosure under this section, any 
reasonably segregable portion of the record will, notwithstanding that 
fact, and to the extent feasible, be provided to any person requesting 
it, after deletion of the portions which are exempt under this section. 
Documents or records determined to be exempt from disclosure hereunder 
may nonetheless be provided upon request in the event it is determined 
that the provision of the document would not violate the public interest 
or the right of any person to whom the information may pertain, and the 
disclosure is not prohibited by law or Executive Order. The following 
categories of records are exempt from disclosure under the provisions of 
5 U.S.C. 552(b):
    (a) Records which are specifically required by Executive Order to be 
kept secret in the interest of national defense or foreign policy and 
are in fact properly classified pursuant to such Executive Order. This 
exception may apply to records in the custody of the Commission which 
have been transmitted to the Commission by another agency which has 
designated the record as nonpublic under Executive Order.
    (b) Records related solely to the internal personnel rules and 
practices of the Commission.
    (c) Records specifically exempted from disclosure by statute.
    (d) Information given in confidence. This includes information 
obtained by or given to the Commission which constitutes confidential 
commercial or financial information, privileged information, or other 
information which was given to the Commission in confidence or would not 
customarily be released by the person from whom it was obtained.
    (e) Inter-agency or intra-agency memoranda or letters which would 
not be available by law to a private party in litigation with the 
Commission. Such communications include inter-agency memoranda, drafts, 
staff memoranda transmitted to the Commission, written communications 
between the Commission and its staff regarding the preparation of 
Commission decisions, other documents received or generated in the 
process of issuing a decision or regulation, and reports and other work 
papers of staff attorneys, accountants, and investigators.
    (f) Personnel and medical files and similar files, the disclosure of 
which would constitute a clearly unwarranted invasion of personal 
privacy.
    (g) Records or information compiled for law enforcement purposes, 
but only to the extent that the production of such law enforcement 
records or information:
    (1) Could reasonably be expected to interfere with enforcement 
proceedings;
    (2) Would deprive a person of a right to a fair trial or an 
impartial adjudication;
    (3) Could reasonably be expected to constitute an unwarranted 
invasion of personal privacy;
    (4) Could reasonably be expected to disclose the identity of a 
confidential source, including a state, local or foreign agency or 
authority or any private institution which furnished information on a 
confidential basis and, in the case of a record or information compiled 
by a criminal law enforcement authority in the course of a criminal 
investigation, or by an agency

[[Page 16]]

conducting a lawful security intelligence investigation, information 
furnished by a confidential source;
    (5) Would disclose techniques and procedures for law enforcement 
investigations or prosecutions if such disclosure could reasonably be 
expected to risk circumvention of the law; or
    (6) Could reasonably be expected to endanger the life or physical 
safety of any individual.



Sec. 502.14  Fees for services.

    The following provisions shall apply in the assessment and 
collection of fees for services rendered in processing requests for 
disclosure of Commission records under this part.
    (a) Fee for duplication of records: $0.15 per page.
    (b) Search and review fees:
    (1) Searches for records by clerical personnel--$3.00 per quarter 
hour, including time spent searching for and copying any record.
    (2) Search for and review of records by professional and supervisory 
personnel--$6.00 per quarter hour spent searching for any record or 
reviewing a record to determine whether it may be disclosed, including 
time spent in copying any record.
    (c) Certification and validation fee: $1.00 for each certification, 
validation or authentication of a copy of any record.
    (d) Imposition of fees:
    (1) Commercial use requests--Where a request appears to seek 
disclosure of records for a commercial use, the requester shall be 
charged for the time spent by Commission personnel in searching for the 
requested record and in reviewing the record to determine whether it 
should be disclosed, and for the cost of each page of duplication. 
Commercial use is defined as 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 request also must reasonably 
identify the records sought.
    (2) Requests from representatives of news media--Where a request 
seeks disclosure of records to a representative of the news media, the 
requester shall be charged only for the actual duplication cost of the 
records and only to the extent that the number of duplications exceeds 
100 pages; provided, however, that the request must reasonably describe 
the records sought, and it must appear that the records are for use by 
the requester in such person's capacity as a news media representative. 
``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. 
A ``freelance'' journalist not actually employed by a news organization 
shall be eligible for inclusion under this category if the person can 
demonstrate a solid basis for expecting publication by a news 
organization.
    (3) Requests from educational and non-commercial scientific 
institutions--Where a request seeks disclosure of records to an 
educational or non-commercial scientific institution, the requester 
shall be charged only for the actual duplication cost of the records and 
only to the extent that the number of duplications exceeds 100 pages; 
provided, however, that the request must reasonably describe the records 
sought and it must appear that the records are to be used by the 
requester in furtherance of its educational or non-commercial scientific 
research programs. ``Educational institution'' refers to a preschool, a 
public or private elementary or secondary school, or an institution of 
undergraduate, graduate, professional or vocational education, which 
operates a program or programs of scholarly research. ``Non-commercial 
scientific institution'' refers to an institution that is not operated 
on a ``commercial'' basis, within the meaning of paragraph (d)(1) of 
this section and which is operated solely for the purpose of conducting 
scientific research, the results of which are not intended to promote 
any particular product or industry.
    (4) All other requests--Where a request seeks disclosure of records 
to a person or entity other than one coming within paragraphs (d) (1), 
(2) and (3) of this section, the requester shall be charged the full 
cost of search and duplication. However, the first two hours of search 
time and the first 100 pages of

[[Page 17]]

duplication shall be furnished without charge.
    (e) Aggregating of requests. If there exists a solid basis for 
concluding that a requester or group of requesters has submitted a 
series of partial requests for disclosure of records in an attempt to 
evade assessment of fees, the requests may be aggregated so as to 
constitute a single request, with fees charged accordingly.
    (f) Unsuccessful searches. Except as provided in paragraph (d) of 
this section, the cost of searching for a requested record shall be 
charged even if the search fails to locate the record or it is 
determined that the record is exempt from disclosure.
    (g) 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 those fees were billed, interest on the fees may be 
assessed beginning on the 31st day after the billing date, to be 
calculated at the rate prescribed in 31 U.S.C. 3717.
    (h) Advance payments. (1) If, but only if, it is estimated or 
determined that processing of a request for disclosure of records will 
result in a charge of fees of more than $250.00, the requester may be 
required to pay the fees in advance in order to obtain completion of the 
processing.
    (2) If a requester has previously failed to make timely payment 
(i.e., within 30 days of billing date) of fees charged under this part, 
the requester may be required to pay those fees and interest accrued 
thereon, and to make an advance payment of the full amount of estimated 
fees chargeable in connection with any pending or new request, in order 
to obtain processing of the pending or new request.
    (3) With regard to any request coming within paragraphs (h) (1) and 
(2) of this section, the administrative time limits set forth in 
Sec. Sec. 502.11 and 502.12 of this part will begin to run only after 
the requisite fee payments have been received.
    (i) Non-payment. In the event of non-payment 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, may be utilized to obtain 
payment.
    (j) Waiver or reduction of charges. Fees otherwise chargeable in 
connection with a request for disclosure of a record shall be waived or 
reduced where--
    (1) 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; or
    (2) It is determined that the cost of collection would be equal to 
or exceed the amount of those fees. No charges shall be assessed if the 
fees amount to $8.00 or less.



PART 503_PRIVACY ACT AND GOVERNMENT IN THE SUNSHINE REGULATIONS--Table 
of Contents




                    Subpart A_Privacy Act Regulations

Sec.
503.1 Definitions--Privacy Act.
503.2 General policies--Privacy Act.
503.3 Conditions of disclosure.
503.4 Accounting of certain disclosures.
503.5 Access to records or information.
503.6 Determination of requests for access to records.
503.7 Amendment of a record.
503.8 Appeals from denial of requests for amendment to records.
503.9 Fees.
503.10 Exemptions.
503.11 Reports.
503.12 Notices.

            Subpart B_Government in the Sunshine Regulations

503.20 Definitions.
503.21 Notice of public observation.
503.22 Scope of application.
503.23 Open meetings.
503.24 Grounds for closing a meeting.
503.25 Announcement of meetings.
503.26 Procedures for closing of meetings.
503.27 Reconsideration of opening or closing, or rescheduling a meeting.
503.28 Record of closed meetings, or closed portion of a meeting.
503.29 Requests for information.

    Authority: 5 U.S.C. 552a(f).

    Source: 66 FR 49844, Oct. 1, 2001, unless otherwise noted.

[[Page 18]]



                    Subpart A_Privacy Act Regulations



Sec. 503.1  Definitions--Privacy Act.

    For the purpose of this part:
    Agency includes any executive department, military department, 
government corporation, government controlled corporation, or other 
establishment in the executive branch of the government (including the 
Executive Office of the President) or any independent regulatory agency. 
The Foreign Claims Settlement Commission (``Commission'') is an agency 
within the meaning of the term.
    Individual means a citizen of the United States or an alien lawfully 
admitted for permanent residence.
    Maintain includes maintain, collect, use or disseminate.
    Record means any item, collection, or grouping of information about 
an individual that is maintained by an agency, including, but not 
limited to, an individual's education, financial transactions, medical 
history, and criminal or employment history, and that contains an 
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.
    Routine use means, with respect to the disclosure of a record, the 
use of that record for a purpose which is compatible with the purpose 
for which it was collected.
    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 13 U.S.C. 8.
    System of records means a group of any records under the control of 
any agency from which information is retrieved by the name of the 
individual or by some identifying number, symbol, or other identifying 
particular assigned to the individual.



Sec. 503.2  General policies--Privacy Act.

    The Commission will protect the privacy of an individual identified 
in any information or record systems which it maintains. Accordingly, 
its officials and employees, except as otherwise provided by law or 
regulation, will:
    (a) Permit an individual to determine what records pertaining to 
that individual are collected, maintained, used or disseminated by the 
Commission.
    (b) Permit an individual to prevent a record pertaining to that 
individual obtained by the Commission for a particular purpose from 
being used or made available for another purpose without the 
individual's consent.
    (c) Permit an individual to gain access to information pertaining to 
that individual in Commission records, to have a copy made of all or any 
portion thereof, and to correct or amend those records.
    (d) Collect, maintain, use, or disseminate any record of 
identifiable personal information in a manner that assures that the 
Commission's action is for a necessary and lawful purpose, that the 
information is current and accurate for its intended use, and that 
adequate safeguards are provided to prevent misuse of the information.
    (e) Permit exemptions from record requirements provided under the 
Privacy Act only where an important public policy use for the exemption 
has been determined in accordance with specific statutory authority.



Sec. 503.3  Conditions of disclosure.

    The Commission will not disclose any record contained in a system of 
records by any means of communication to any person or any other agency 
except by written request of or prior written consent of the individual 
to whom the record pertains unless the disclosure is:
    (a) To those officers and employees of the Commission who have a 
need for the record in the performance of their duties;
    (b) Required under the Freedom of Information Act, 5 U.S.C. 552;
    (c) For a routine use;
    (d) To the Bureau of Census for purposes of planning or carrying out 
a census or survey or related activity under the provisions of Title 13, 
United States Code;
    (e) To a recipient who has provided the Commission with adequate 
advance assurance that the record will be used solely as a statistical 
research or reporting record, and the record is to be

[[Page 19]]

transferred in a form that is not individually identifiable;
    (f) To the National Archives of the United States as a record which 
has sufficient historical or other value to warrant its continued 
preservation by the United States Government or for evaluation to 
determine whether the record has that value;
    (g) To another agency or to an instrumentality of any government 
jurisdiction within or under control of the United States for a civil or 
criminal law enforcement activity authorized by law, provided the head 
of the agency or instrumentality has made a prior written request to the 
Commission, specifying the particular record and the law enforcement 
activity for which it is sought;
    (h) To a person pursuant to a showing of compelling circumstances 
affecting the health or safety of an individual if, upon disclosure, 
notification is transmitted to the last known address of the individual;
    (i) 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 the joint committee;
    (j) To the Comptroller General, or any of that official's authorized 
representatives, in the course of the performance of the duties of the 
General Accounting Office; or
    (k) Pursuant to the order of a court of competent jurisdiction.



Sec. 503.4  Accounting of certain disclosures.

    (a) Except for disclosures under Sec. 503.3(a) and (b) of this 
part, the Administrative Officer will keep an accurate accounting of 
each disclosure of a record to any person or to another agency made 
under Sec. 503.3(c), (d), (e), (f), (g), (h), (i), (j), and (k) of this 
part.
    (b) Except for a disclosure made to another agency or to an 
instrumentality of any governmental jurisdiction under Sec. 503.3(g) of 
this part, the Administrative Officer will make the accounting as 
required under paragraph (a) of this section available to any individual 
upon written request made in accordance with Sec. 503.5.
    (c) The Administrative Officer will inform any person or other 
agency about any correction or notation of dispute made in accordance 
with Sec. 503.7 of this part of any record that has been disclosed to 
the person or agency if an accounting of the disclosure was made.
    (d) An accounting of disclosures of records within this section will 
consist of the date, nature, the purpose of each disclosure of a record 
to any person or to another agency, and the name and address of the 
person or agency to whom the disclosure is made.
    (e) This accounting shall be retained for 5 years or the life of the 
record, whichever is longer, after the disclosure for which the 
accounting is made.



Sec. 503.5  Access to records or information.

    (a) Upon request in person or by mail, any individual will be 
informed whether or not a system of records maintained by the Commission 
contains a record or information pertaining to that individual.
    (b) Any individual requesting access to a record or information in 
person must appear in person at the offices of the Foreign Claims 
Settlement Commission, 600 E Street, NW., Room 6002, Washington, DC, 
between the hours of 9 a.m. and 5:30 p.m., Monday through Friday, and
    (1) Provide information sufficient to identify the record, e.g., the 
individual's own name, claim and decision number, date and place of 
birth, etc.;
    (2) Provide identification sufficient to verify the individual's 
identity, e.g., driver's license, identification or Medicare card; and
    (3) Any individual requesting access to records or information 
pertaining to himself or herself may be accompanied by a person of the 
individual's own choosing while reviewing the records or information. If 
an individual elects to be so accompanied, advance notification of the 
election will be required along with a written statement authorizing 
disclosure and discussion of the record in the presence of the 
accompanying person at any time, including the time access is granted.
    (c) Any individual making a request for access to records or 
information pertaining to himself or herself by mail

[[Page 20]]

must address the request to the Administrative Officer (Privacy 
Officer), Foreign Claims Settlement Commission, 600 E Street, NW., Room 
6002, Washington, DC 20579, and must provide information acceptable to 
the Administrative Officer to verify the individual's identity.
    (d) Responses to requests under this section normally will be made 
within ten (10) days of receipt (excluding Saturdays, Sundays, and legal 
holidays). If it is not possible to respond to requests within that 
period, an acknowledgment will be sent to the individual within ten (10) 
days of receipt of the request (excluding Saturdays, Sundays, and legal 
holidays).



Sec. 503.6  Determination of requests for access to records.

    (a) Upon request made in accordance with Sec. 503.5, the 
Administrative Officer will:
    (1) Determine whether or not the request will be granted;
    (2) Make that determination and provide notification within a 
reasonable period of time after receipt of the request.
    (b) If access to a record is denied because information has been 
compiled by the Commission in reasonable anticipation of a civil or 
criminal action or proceeding, the Administrative Officer will notify 
the individual of that determination and the reason therefor.
    (c) If access to the record is granted, the individual making the 
request must notify the Administrative Officer whether the record 
requested is to be copied and mailed to the individual.
    (d) If a record is to be made available for personal inspection, the 
individual must arrange with the Administrative Officer a mutually 
agreeable time and place for inspection of the record.



Sec. 503.7  Amendment of a record.

    (a) Any individual may request amendment of a record pertaining to 
himself or herself according to the procedure in paragraph (b) of this 
section, except in the case of records described under paragraph (d) of 
this section.
    (b) After inspection by an individual of a record pertaining to 
himself or herself, the individual may file a written request, presented 
in person or by mail, with the Administrative Officer, for an amendment 
to a record. The request must specify the particular portions of the 
record to be amended, the desired amendments and the reasons therefor.
    (c) Not later than ten (10) days (excluding Saturdays, Sundays, and 
legal holidays) after the receipt of a request made in accordance with 
this section to amend a record in whole or in part, the Administrative 
Officer will:
    (1) Make any correction of any portion of the record which the 
individual believes is not accurate, relevant, timely or complete and 
thereafter inform the individual of such correction; or
    (2) Inform the individual, by certified mail return receipt 
requested, of the refusal to amend the record, setting forth the reasons 
therefor, and notify the individual of the right to appeal that 
determination as provided under Sec. 503.8 of this part.
    (d) The provisions for amending records do not apply to evidence 
presented in the course of Commission proceedings in the adjudication of 
claims, nor do they permit collateral attack upon what has already been 
subject to final agency action in the adjudication of claims in programs 
previously completed by the Commission pursuant to statutory time 
limitations.



Sec. 503.8  Appeals from denial of requests for amendment to records.

    (a) An individual whose request for amendment of a record pertaining 
to the individual is denied may request a review of that determination. 
The request must be addressed to the Chair of the Commission, and must 
specify the reasons for which the refusal to amend is challenged.
    (b) If on appeal the refusal to amend the record is upheld, the 
Commission will permit the individual to file a statement setting forth 
the reasons for disagreement with the determination. The statement must 
also be submitted within 30 days of receipt of the denial. The statement 
will be included in the system of records in which the disputed record 
is maintained and will be marked so as to indicate:

[[Page 21]]

    (1) That a statement of disagreement has been filed, and
    (2) Where in the system of records the statement may be found.



Sec. 503.9  Fees.

    Fees to be charged, if any, to any individual for making copies of 
that individual's record excluding the cost of any search for and review 
of the record will be as follows:
    (a) Photocopy reproductions: each copy $0.15.
    (b) Where the Commission undertakes to perform for a requester, or 
any other person, services which are clearly not required to be 
performed under the Privacy Act, either voluntarily or because those 
services are required by some other law, the question of charging fees 
for those services will be determined by the official or designee 
authorized to release the information, under the Federal user charge 
statute, 31 U.S.C. 583a, any other applicable law, and the provisions of 
Sec. 502.13 of part 502 of this chapter.



Sec. 503.10  Exemptions.

    No system of records maintained by the Foreign Claims Settlement 
Commission is exempt from the provisions of 5 U.S.C. 552a as permitted 
under certain conditions by 5 U.S.C. 552a(j) and (k). However, the Chair 
of the Commission reserves the right to promulgate rules in accordance 
with the requirements of 5 U.S.C. 553(b)(1), (2) and (3), and 5 U.S.C. 
553(c) and (e) to exempt any system of records maintained by the 
Commission in accordance with the provisions of 5 U.S.C. 552a(k).



Sec. 503.11  Reports.

    (a) The Administrative Officer or designee will provide adequate 
advance notice to Congress and the Office of Management and Budget of 
any proposal to establish or alter any Commission system of records, as 
required by 5 U.S.C. 552a(o).
    (b) If at any time a system of records maintained by the Commission 
is determined to be exempt from the application of 5 U.S.C. 552a in 
accordance with the provisions of 5 U.S.C. 552a(j) and (k), the number 
of records contained in such system will be separately listed and 
reported to the Office of Management and Budget.



Sec. 503.12  Notices.

    The Commission will publish in the Federal Register at least 
annually a notice of the existence and character of the systems of 
records which it maintains. Such notice will include:
    (a) The name and location of each system;
    (b) The categories of individuals on whom the records are maintained 
in each system;
    (c) The categories of records maintained in each system;
    (d) Each routine use of the records contained in each system 
including the categories of users and the purpose of each use;
    (e) The policies and practices of the Commission regarding storage, 
retrievability, access controls, retention, and disposal of the records;
    (f) The title and business address of the agency official who is 
responsible for each system of records;
    (g) Commission procedures whereby an individual can be notified if a 
system of records contains a record pertaining to that individual;
    (h) Commission procedures whereby an individual can be notified how 
to gain access to any record pertaining to that individual contained in 
a system of records, and how to contest its content, and
    (i) The categories of sources of records in each system.



            Subpart B_Government in the Sunshine Regulations

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



Sec. 503.20  Definitions.

    For purposes of this part: Closed meeting and closed portion of a 
meeting mean, respectively, a meeting or that part of a meeting 
designated as provided in Sec. 503.27 as closed to the public by reason 
of one or more of the closure provisions listed in Sec. 503.24.
    Commission means the Foreign Claims Settlement Commission, which is 
a collegial body that functions as a unit composed of three individual 
members, appointed by the President with the advice and consent of the 
Senate.

[[Page 22]]

    Meeting means the deliberations of at least two (quorum) members of 
the Commission where such deliberations determine or result in joint 
conduct or disposition of official Commission business.
    Member means any one of the three members of the Commission.
    Open meeting means a meeting or portion of a meeting which is not a 
closed meeting or a closed portion of a meeting.
    Public observation means the right of any member of the public to 
attend and observe, but not participate or interfere in any way, in an 
open meeting of the Commission within the limits of reasonable and 
comfortable accommodations made available for such purpose by the 
Commission.



Sec. 503.21  Notice of public observation.

    (a) A member of the public is not required to give advance notice of 
an intention to exercise the right of public observation of an open 
meeting of the Commission. However, in order to permit the Commission to 
determine the amount of space and number of seats which must be made 
available to accommodate individuals who desire to exercise the right of 
public observation, those individuals are requested to give notice to 
the Commission at least two business days before the start of the open 
meeting of the intention to exercise that right.
    (b) Notice of intention to exercise the right of public observation 
may be given in writing, in person, or by telephone to the official 
designated in Sec. 503.29.
    (c) Individuals who have not given advance notice of intention to 
exercise the right of public observation will not be permitted to attend 
and observe the open meeting of the Commission if the available space 
and seating are necessary to accommodate individuals who gave advance 
notice of such intention.



Sec. 503.22  Scope of application.

    The provisions of this part 503, Sec. Sec. 503.20 through 503.29, 
apply to meetings of the Commission, and do not apply to conferences or 
other gatherings of employees of the Commission who meet or join with 
others, except at meetings of the Commission to deliberate on or conduct 
official agency business.



Sec. 503.23  Open meetings.

    Every meeting of the Commission will be open to public observation 
except as provided in Sec. 503.24.



Sec. 503.24  Grounds for closing a meeting.

    (a) Except in a case where the Commission determines otherwise, a 
meeting or portion of a meeting may be closed to public observation 
where the Commission determines that the meeting or portion of the 
meeting is likely to:
    (1) Disclose matters that are:
    (i) Specifically authorized under criteria established by an 
Executive Order to be kept secret in the interests of national defense 
or foreign policy and
    (ii) In fact properly classified pursuant to such Executive order;
    (2) Relate solely to the internal personnel rules and practices of 
the Commission;
    (3) Disclose matters specifically exempted from disclosure by 
statute (other than 5 U.S.C. 552) provided that such statute:
    (i) Requires that the matters be withheld from the public in such a 
manner as to leave no discretion on the issue, or
    (ii) Establishes particular criteria for withholding or refers to 
particular types of matters to be withheld;
    (4) Disclose trade secrets and commercial or financial information 
obtained from a person and privileged or confidential;
    (5) Involve accusing any person of a crime, or formally censuring 
any person;
    (6) Disclose information of a personal nature where disclosure would 
constitute a clearly unwarranted invasion of personal privacy;
    (7) Disclose investigatory records compiled for law enforcement 
purposes, or information which if written would be contained in such 
records, but only to the extent that the production of the records or 
information would:
    (i) Interfere with enforcement proceedings,
    (ii) Deprive a person of a right to a fair trial or an impartial 
adjudication,

[[Page 23]]

    (iii) Constitute an unwarranted invasion of personal privacy,
    (iv) Disclose the identity of a confidential source and, in the case 
of a record compiled by a criminal law enforcement authority in the 
course of a criminal investigation, or by an agency conducting a lawful 
national security intelligence investigation, confidential information 
furnished only by the confidential source,
    (v) Disclose investigative techniques and procedures, or
    (vi) Endanger the life or physical safety of law enforcement 
personnel;
    (8) Disclose information contained in or related to examination, 
operating, or condition reports prepared by, on behalf of, or for the 
use of the Commission;
    (9) Disclose information the premature disclosure of which would be 
likely to significantly frustrate implementation of a proposed action of 
the Commission, provided the Commission has not already disclosed to the 
public the content or nature of its proposed action, or is not required 
by law to make the disclosure on its own initiative prior to taking 
final action on the proposal; or
    (10) Specifically concern the Commission's issuance of a subpoena or 
the Commission's participation in a civil action or proceeding, an 
action in a foreign court or international tribunal, or an arbitration, 
or the initiation, conduct, or disposition by the Commission of a 
particular case of formal agency adjudication pursuant to the procedures 
in 5 U.S.C. 554, or otherwise involve a determination on the record 
after opportunity for a hearing.
    (b) If the Commission determines that the public interest would 
require that a meeting to be open, it may nevertheless so hold.



Sec. 503.25  Announcement of meetings.

    (a) The Commission meets in its offices at 600 E Street, NW, 
Washington, DC, from time to time as announced by timely notice 
published in the Federal Register.
    (b) At the earliest practicable time, which is estimated to be not 
later than eight days before the beginning of a meeting of the 
Commission, the Commission will make available for public inspection in 
its offices, and, if requested, will furnish by telephone or in writing, 
a notice of the subject matter of the meeting, except to the extent that 
the information is exempt from disclosure under the provisions of Sec. 
503.24.



Sec. 503.26  Procedures for closing of meetings.

    (a) The closing of a meeting will occur when:
    (1) A majority of the membership of the Commission votes to take 
that action. A separate vote of the Commission members will be taken 
with respect to each Commission meeting, a portion or portions of which 
are proposed to be closed to the public pursuant to Sec. 503.24, or 
with respect to any information which is proposed withheld under Sec. 
503.24. A single vote may be taken with respect to a series of meetings, 
a portion or portions of which are proposed to be closed to the public, 
or with respect to any information concerning that series of meetings, 
so long as each meeting in the series involves the same particular 
matters and is scheduled to be held no more than thirty days after the 
initial meeting in the series. The vote of each Commission member 
participating in the voting will be recorded and no proxies will be 
allowed.
    (2) Whenever any person whose interests may be directly affected by 
a portion of a meeting requests that the Commission close that portion 
to the public for any of the reasons referred to in Sec. 503.24(e), 
(f), or (g), the Commission, upon request of any one of its Commission 
members, will take a recorded vote, whether to close that portion of the 
meeting.
    (b) Within one day of any vote taken, the Commission will make 
publicly available a written copy of the voting reflecting the vote of 
each member on the question and a full written explanation of its action 
closing the entire or portion of the meeting together with a list of all 
persons expected to attend the meeting and their affiliation.
    (c) The Commission will announce the time, place and subject matter 
of the meeting at least eight days before the meeting.

[[Page 24]]

    (d) For every closed meeting, before the meeting is closed, the 
Commission's Chair will publicly certify that the meeting may be closed 
to the public, and will state each relevant closure provision. A copy of 
the certification, together with a statement setting forth the time and 
place of the meeting, and the persons present, will be retained by the 
Commission.



Sec. 503.27  Reconsideration of opening or closing, or rescheduling a 
meeting.

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



Sec. 503.28  Record of closed meetings, or closed portion of a meeting.

    (a) The Commission will maintain a complete transcript or electronic 
recording adequate to record fully the proceedings of each closed 
meeting or closed portion of a meeting, except that in the case of a 
meeting or portion of a meeting closed to the public pursuant to Sec. 
503.24(d), (h), or (j), the Commission will maintain either a transcript 
or recording, or a detailed set of minutes.
    (b) Any minutes so maintained will fully and clearly describe all 
matters discussed and shall provide a full and accurate summary of any 
actions taken, and the reasons therefor, including a description of each 
of the views expressed on any item and the record of any rollcall vote. 
All documents considered in connection with any action will be 
identified in the minutes.
    (c) The Commission will promptly make available to the public, in 
its offices, the transcript, electronic recording, or minutes, of the 
discussion of any item on the agenda of a closed meeting, or closed 
portion of a meeting, except for the item or items of discussion which 
the Commission determines to contain information which may be withheld 
under Sec. 503.24. Copies of the transcript or minutes, or a 
transcription of the recording, disclosing the identity of each speaker, 
will be furnished to any person at the actual cost of duplication or 
transcription.
    (d) The Commission will maintain a complete verbatim copy of the 
transcript, a complete copy of the minutes, or a complete electronic 
recording of each closed meeting or closed portion of a meeting for a 
period of two years after the date of the closed meeting or closed 
portion of a meeting.
    (e) All actions required or permitted by this section to be 
undertaken by the Commission will be by or under the authority of the 
Chair of the Commission.



Sec. 503.29  Requests for information.

    Requests to the Commission for information about the time, place, 
and subject matter of a meeting, whether it or any portions thereof are 
closed to the public, and any requests for copies of the transcript or 
minutes or of a transcript of an electronic recording of a closed 
meeting, or closed portion of a meeting, to the extent not exempt from 
disclosure by the provisions of Sec. 503.24, must be addressed to the 
Administrative Officer, Foreign Claims Settlement Commission, 600 E 
Street, NW, Room 6002, Washington, DC 20579, telephone (202) 616-6975.

[[Page 25]]



SUBCHAPTER B_RECEIPT, ADMINISTRATION, AND PAYMENT OF CLAIMS UNDER TITLE 
               I OF THE WAR CLAIMS ACT OF 1948, AS AMENDED





PART 504_FILING OF CLAIMS AND PROCEDURES THEREFOR--Table of Contents




Sec.
504.1 Claim defined.
504.2 Time within which claims may be filed.
504.3 Official claim forms.
504.4 Place of filing claims.
504.5 Documents to accompany forms.
504.6 Receipt of claims.

    Authority: Sec. 2, Pub. L. 896, 80th Cong., as amended (50 U.S.C. 
App. 2001).

    Source: 66 FR 49844, Oct. 1, 2001, unless otherwise noted.



Sec. 504.1  Claim defined.

    (a) This subchapter is included solely in order to provide for the 
adjudication of any additional claims that may arise on behalf of 
survivors of deceased civilians and military veterans who had been 
listed as missing during the Vietnam conflict but were subsequently 
determined to have been interned, in hiding, or captured by a hostile 
force in Southeast Asia (see Sec. 504.2(a)(3) and (b)(3)). The 
Commission no longer has authority to receive or consider any other 
types of claims based on the internment of civilians or the maltreatment 
of military servicemen held as prisoners of war by forces hostile to the 
United States.
    (b) A properly completed and executed application made on an 
official form provided by the Foreign Claims Settlement Commission for 
such purpose constitutes a claim and will be processed under the laws 
administered by the Commission.
    (c) Any communication, letter, note, or memorandum from a claimant, 
or the claimant's duly authorized representative, or a person acting as 
next friend of a claimant who is not legally competent, setting forth 
sufficient facts to apprise the Commission of an interest to apply under 
the provisions of sections 5(i) and 6(f) of the Act, will be deemed to 
be an informal claim. Where an informal claim is received and an 
official form is forwarded for completion and execution by the 
applicant, that official form will be considered as evidence necessary 
to complete the initial claim, and unless that official form is received 
within thirty (30) days from the date it was transmitted for execution, 
if the claimant resides in the continental United States, or forty-five 
(45) days if outside the continental United States, the claim may be 
disallowed.



Sec. 504.2  Time within which claims may be filed.

    (a) Claims of individuals entitled to benefits under section 5(i) of 
the War Claims Act of 1948, as added by Public Law 91-289, will be 
accepted by the Commission during the period beginning June 24, 1970, 
and ending:
    (1) June 24, 1973, inclusive;
    (2) 3 years from the date the civilian American citizen by whom the 
claim is filed returned to the jurisdiction of the United States; or
    (3) 3 years from the date upon which the Commission, at the request 
of a potentially eligible survivor, makes a determination that the 
civilian American citizen has actually died or may be presumed to be 
dead, in the case of any civilian American citizen who has not returned 
to the jurisdiction of the United States, whichever of the preceding 
dates last occurs.
    (b) Claims of individuals entitled to benefits under section 6(f) of 
the War Claims Act of 1948, as added by Public Law 91-289, will be 
accepted by the Commission during the period beginning June 24, 1970, 
and ending:
    (1) June 24, 1973, inclusive;
    (2) 3 years from the date the prisoner of war by whom the claim is 
filed returned to the jurisdiction of the Armed Forces of the United 
States; or
    (3) 3 years from the date the Department of Defense makes a 
determination that the prisoner of war has actually died or is presumed 
to be dead, in the case of any prisoner of war who has not returned to 
the jurisdiction of the Armed Forces of the United States,

[[Page 26]]

whichever of the preceding dates last occurs.



Sec. 504.3  Official claim forms.

    Official forms are provided for use in the preparation of claims for 
submission to the Commission for processing. Claim forms are available 
at the Washington offices of the Commission and through other offices as 
the Commission may designate. The official claim form for all claims 
under section 5(i) and 6(f) has been designated FCSC Form 289, 
``Application for Compensation for Members of the Armed Forces of the 
United States Held as Prisoner of War in Vietnam; for Persons Assigned 
to Duty on board the `U.S.S. Pueblo' Captured by Military Forces of 
North Korea; for Civilian American Citizens Captured or Who Went into 
Hiding to Avoid Capture or Internment in Southeast Asia During the 
Vietnam Conflict and, in Case of Death of any Such Person, for Their 
Survivors.''



Sec. 504.4  Place of filing claims.

    Claims must be mailed or delivered in person to the Foreign Claims 
Settlement Commission, 600 E Street, NW, Room 6002, Washington, DC 
20579.



Sec. 504.5  Documents to accompany forms.

    All claims filed pursuant to sections 5(a) and 6(f) of the Act must 
be accompanied by evidentiary documents, instruments, and records as 
outlined in the instruction sheet attached to the claim form.



Sec. 504.6  Receipt of claims.

    (a) Claims deemed received. A claim will be deemed to have been 
received by the Commission on the date postmarked, if mailed, or if 
delivery is made in person, on the date of delivery at the offices of 
the Commission in Washington, DC.
    (b) Claims developed. In the event that a claim has been 
insufficiently prepared so as to preclude processing thereof, the 
Commission may request the claimant to furnish whatever supplemental 
evidence, including the completion and execution of an official claim 
form, as may be essential to the processing of the claim. In case the 
evidence or official claim form requested is not returned within the 
time which may be designated by the Commission, the claim may be deemed 
to have been abandoned and may be disallowed.



PART 505_PROVISIONS OF GENERAL APPLICATION--Table of Contents




Sec.
505.1 Persons eligible to file claims.
505.2 Persons under legal disability.
505.3 Definitions applicable under the Act.

    Authority: Sec. 2, Pub. L. 896, 80th Cong., as amended (50 U.S.C. 
App. 2001).

    Source: 66 FR 49844, Oct. 1, 2001, unless otherwise noted.



Sec. 505.1  Persons eligible to file claims.

    Persons eligible to file claims with the Commission under the 
provisions of sections 5(i) and 6(f) of the War Claims Act of 1948, as 
amended, are:
    (a) Civilian American citizens captured and held in Southeast Asia 
or their eligible survivors, under the provisions of section 5(i) of the 
Act; and
    (b) Members of the Armed Forces of the United States held as 
prisoners of war during the Vietnam conflict or their eligible 
survivors, under section 6(f) of the Act.



Sec. 505.2  Persons under legal disability.

    (a) Claims may be submitted on behalf of persons who, being 
otherwise eligible to make claims under the provisions of sections 5(i) 
and 6(f), are incompetent or otherwise under any legal disability, by 
the natural or legal guardian, committee, conservator, curator, or any 
other person, including the spouse of the claimant, whom the Commission 
determines is charged with the care of the claimant.
    (b) Upon the death of any individual for whom an award has been 
made, the Commission may consider the initial application filed by or in 
behalf of the decedent as a formal claim for the purpose of reissuing 
the award to the next eligible survivor in the order of preference as 
set forth under sections 5(i) and 6(d)(4) of the Act.



Sec. 505.3  Definitions applicable under the Act.

    Child means:
    (1) A natural or adopted son or daughter of a deceased prisoner of 
war

[[Page 27]]

or a deceased civilian prisoner of war or a deceased American citizen 
including any posthumous son or daughter of such deceased person.
    (2) Any son or daughter of a deceased person born out of wedlock 
will be deemed to be a child of the deceased for the purpose of this 
Act, if:
    (i) Legitimated by a subsequent marriage of the parents,
    (ii) Recognized as a child of the deceased by his or her admission, 
or
    (iii) So declared by an order or decree of any court of competent 
jurisdiction.
    Husband means the surviving male spouse of a deceased prisoner of 
war or of a deceased civilian American citizen who was married to the 
deceased at the time of her death by a marriage valid under the 
applicable law of the place entered into.
    Natural guardian means father and mother who shall be deemed to be 
the natural guardians of the person of their minor children. If either 
dies or is incapable of action, the natural guardianship of the person 
shall devolve upon the other. In the event of death or incapacity of 
both parents, then the blood relative, paternal or maternal, standing in 
loco parentis to the minor shall be deemed the natural guardian.
    Parent means:
    (1)(i) The natural or adoptive father or mother of a deceased 
prisoner of war, or any other individual standing in loco parentis to 
the deceased person for a period of not less than 1 year immediately 
preceding the date of that person's entry into active service and during 
at least 1 year of the person's minority. Not more than one mother or 
one father as defined shall be recognized in any case. An individual 
will not be recognized as standing in loco parentis if the natural 
parents or adoptive parents are living, unless there is affirmative 
evidence of abandonment and renunciation of parental duties and 
obligations by the natural or adoptive parent or parents prior to entry 
into active service by the deceased prisoner or war;
    (ii) An award in the full amount allowable had the deceased prisoner 
of war survived may be made to only one parent when it is shown that the 
other parent has died or if there is affirmative evidence of abandonment 
and renunciation of parental duties and obligations by the other parent.
    (2) The father of an illegitimate child will not be recognized as 
such for purposes of the Act unless evidence establishes that:
    (i) He has legitimated the child by subsequent marriage with the 
mother;
    (ii) Recognized the child as his by written admission prior to 
enlistment of the deceased in the armed forces or entry into an overseas 
duty status; or
    (iii) Prior to death of the child he has been declared by decree of 
a court of competent jurisdiction to be the father.
    Widow means the surviving female spouse of a deceased prisoner of 
war or a deceased civilian American citizen who was married to the 
deceased at the time of his death by marriage valid under the applicable 
law of the place where entered into.



PART 506_ELIGIBILITY REQUIREMENTS FOR COMPENSATION--Table of Contents




                  Subpart A_Civilian American Citizens

Sec.
506.1 ``Civilian American citizen'' defined.
506.2 Other definitions.
506.3 Rate of benefits payable.
506.4 Survivors entitled to award of detention benefits.
506.5 Persons not eligible to award of civilian detention benefits.

                       Subpart B_Prisoners of War

506.10 ``Vietnam conflict'' defined.
506.11 ``Prisoner of war'' defined.
506.12 Membership in the Armed Forces of the United States; 
          establishment of.
506.13 ``Armed Forces of the United States'' defined.
506.14 ``Force hostile to the United States'' defined.
506.15 Geneva Convention of August 12, 1949.
506.16 Failure to meet the conditions and requirements prescribed under 
          the Geneva Convention of August 12, 1949.
506.17 Rate of and basis for award of compensation.
506.18 Entitlement of survivors to award in case of death of prisoner of 
          war.
506.19 Members of the Armed Forces of the United States precluded from 
          receiving award of compensation.

    Authority: Sec. 2, Pub. L. 896, 80th Cong., as amended (50 U.S.C. 
App. 2001).

    Source: 66 FR 49844, Oct. 1, 2001, unless otherwise noted.

[[Page 28]]



                  Subpart A_Civilian American Citizens



Sec. 506.1  ``Civilian American citizen'' defined.

    Civilian American citizen means any person who, being then a citizen 
of the United States, was captured in Southeast Asia during the Vietnam 
conflict by any force hostile to the United States, or who went into 
hiding in Southeast Asia in order to avoid capture or internment by any 
such hostile force.



Sec. 506.2  Other definitions.

    Calendar month means the period of time between a designated day of 
any given month and the date preceding a similarly designated day of the 
following month.
    Citizen of the United States means a person who under applicable law 
acquired citizenship of the United States by birth, by naturalization, 
or by derivation.
    Dependent husband means the surviving male spouse of a deceased 
civilian American citizen who was married to the deceased at the time of 
her death by a marriage valid under the applicable law of the place 
where entered into.
    Force hostile to the United States means any organization or force 
in Southeast Asia, or any agent or employee thereof, engaged in any 
military or civil activities designed to further the prosecution of its 
armed conflict against the Armed Forces of the United States during the 
Vietnam conflict.
    Southeast Asia means, but is not necessarily restricted to, the 
areas of Vietnam, Laos, and Cambodia.
    Went into hiding means the action taken by a civilian American 
citizen when that person initiated a course of conduct consistent with 
an intention to evade capture or detention by a hostile force in 
Southeast Asia.



Sec. 506.3  Rate of benefits payable.

    Detention benefits awarded to a civilian American citizen will be 
paid at the rate of $150 for each calendar month of internment or during 
the period in which that civilian American citizen went into hiding to 
avoid capture and internment by a hostile force. Awards shall take 
account of fractional parts of a calendar month.



Sec. 506.4  Survivors entitled to award of detention benefits.

    In case of death of a civilian American citizen who would have been 
entitled to detention benefits under the War Claims Act of 1948, as 
amended, benefits will be awarded, if claim is made, only to the 
following persons:
    (a) Widow or husband if there is no child or children of the 
deceased;
    (b) Widow or dependent husband and child or children of the 
deceased, one-half to the widow or dependent husband and the other half 
to the child or children in equal shares;
    (c) The child or children of the deceased in equal shares if there 
is no widow or dependent husband, if otherwise qualified.



Sec. 506.5  Persons not eligible to award of civilian detention benefits.

    An individual is disqualified as a ``civilian American citizen'' 
under the Act, and thus is precluded from receiving an award of 
detention benefits, if that person:
    (a) Voluntarily, knowingly, and without duress, gave aid to or 
collaborated with or in any manner served the detaining hostile force; 
or
    (b) While detained, was a regularly appointed, enrolled, enlisted, 
or inducted member of the Armed Forces of the United States.



                       Subpart B_Prisoners of War



Sec. 506.10  ``Vietnam conflict'' defined.

    Vietnam conflict refers to the period beginning February 28, 1961, 
and ending on a date to be determined by Presidential proclamation or 
concurrent resolution of the Congress. (For purposes of determining 
eligibility for certain veterans' benefits, the President has proclaimed 
the date of May 7, 1975, to be the ending date of the ``Vietnam era'' 
(Presidential Proclamation No. 4373, 38 U.S.C. 101 note). In addition, 
Congress has set May 7, 1975, as the ending date of the ``Vietnam 
conflict'' for purposes of payment of interest on missing military 
service members' deposits in the United States Treasury under 10 U.S.C. 
1035. However, neither

[[Page 29]]

the President nor the Congress has set an ending date for the Vietnam 
conflict for purposes of determining eligibility for compensation under 
50 U.S.C. App. 2004 and 2005.)



Sec. 506.11  ``Prisoner of war'' defined.

    Prisoner of war means any regularly appointed, enrolled, enlisted or 
inducted member of the Armed Forces of the United States who was held by 
any force hostile to the United States for any period of time during the 
Vietnam conflict.



Sec. 506.12  Membership in the Armed Forces of the United States; 
establishment of.

    Regular appointment, enrollment, enlistment or induction in the 
Armed Forces of the United States must be established by certification 
obtained from the Department of Defense.



Sec. 506.13  ``Armed Forces of the United States'' defined.

    Armed Forces of the United States means the United States Air Force, 
Army, Navy, Marine Corps and Coast Guard, and commissioned officers of 
the U.S. Public Health Service who were detailed for active duty with 
the Armed Forces of the United States.



Sec. 506.14  ``Force hostile to the United States'' defined.

    Force hostile to the United States means any organization or force 
in Southeast Asia, or any agent or employee thereof, engaged in any 
military or civil activities designed to further the prosecution of its 
armed conflict against the Armed Forces of the United States during the 
Vietnam conflict.



Sec. 506.15  Geneva Convention of August 12, 1949.

    The Geneva Convention of August 12, 1949, as identified in section 
6(f) of the War Claims Act of 1948, as amended, is the ``Geneva 
Convention Relative to the Treatment of Prisoners of War of August 12, 
1949'' which is included under the ``Geneva Convention of August 12, 
1949, for the Protection of War Victims,'' entered into by the United 
States and other governments, including the former government in North 
Vietnam which acceded to it on June 28, 1957.



Sec. 506.16  Failure to meet the conditions and requirements prescribed
under the Geneva Convention of August 12, 1949.

    For the purpose of this part, obligations under the Geneva 
Convention of August 12, 1949, consist of the responsibility assumed by 
the contracting parties thereto with respect to prisoners of war within 
the meaning of the Convention, to comply with and to fully observe the 
provisions of the Convention, and particularly those articles relating 
to food rations of prisoners of war, humane treatment, protection, and 
labor of prisoners of war, and the failure to abide by the conditions 
and requirements established in such Convention by any hostile force 
with which the Armed Forces of the United States were engaged in armed 
conflict.



Sec. 506.17  Rate of and basis for award of compensation.

    (a) Compensation allowed a prisoner of war during the Vietnam 
conflict under section 6(f)(2) of the War Claims Act of 1948, as 
amended, will be paid at the rate of $2 per day for each day on which 
that person was held as prisoner of war and on which the hostile force, 
or its agents, failed to furnish the quantity and quality of food 
prescribed for prisoners of war under the Geneva Convention of August 
12, 1949.
    (b) Compensation allowed a prisoner of war during the Vietnam 
conflict under section 6(f)(3) of the Act, will be paid at the rate of 
$3 per day for each day on which that person was held as a prisoner of 
war and on which the hostile force failed to meet the conditions and 
requirements under the provisions of the Geneva Convention of August 12, 
1949 relating to labor of prisoners of war or for inhumane treatment by 
the hostile force by which such person was held.
    (c) Compensation under paragraphs (a) and (b) of this section will 
be paid to the prisoner of war or qualified applicant on a lump-sum 
basis at a total rate of $5 per day for each day the prisoner of war was 
entitled to compensation.

[[Page 30]]



Sec. 506.18  Entitlement of survivors to award in case of death of
prisoner of war.

    In case of death of a prisoner of war who would have been entitled 
to an award of compensation under section 6(f) (2) and (3) of the War 
Claims Act of 1948, as amended, the compensation will be awarded, if 
claim is made, only to the following persons:
    (a) Widow or husband if there is no child or children of the 
deceased;
    (b) Widow or husband and child or children of the deceased, one-half 
to the widow or husband and the other half to the child or children of 
the deceased in equal shares;
    (c) Child or children of the deceased (in equal shares) if there is 
no widow or husband; and
    (d) Parents (in equal shares) if there is no widow, husband or 
child.



Sec. 506.19  Members of the Armed Forces of the United States 
precluded from receiving award of compensation.

    Any member of the Armed Forces of the United States, who at any 
time, voluntarily, knowingly, and without duress gave aid to or 
collaborated with, or in any manner served any force hostile to the 
United States, is precluded from receiving an award of compensation 
based on that member's capture and internment.



PART 507_PAYMENT--Table of Contents




Sec.
507.1 Payments under the War Claims Act of 1948, as amended by Pub. L. 
          91-289.
507.2 Payments to persons under legal disability.
507.3 Reissuance of awards.

    Authority: Sec. 2, Pub. L. 80-896, as amended (50 U.S.C. App. 2001).

    Source: 66 FR 49844, Oct. 1, 2001, unless otherwise noted.



Sec. 507.1  Payments under the War Claims Act of 1948, as amended by 
Public Law 91-289.

    (a) Upon a determination by the Commission as to the amount and 
validity of each claim filed pursuant to section 5(i) and 6(f) of the 
War Claims Act of 1948, as amended, any award made thereunder will be 
certified by the Commission to the Secretary of the Treasury for payment 
out of funds appropriated for this purpose, in favor of the civilian 
internee or prisoner of war found entitled thereto.
    (b) Awards made to survivors of deceased civilian internees or 
prisoners of war will be certified to the Secretary of the Treasury for 
payment to the individual member or members of the class or classes of 
survivors entitled to receive compensation in the full amount of the 
share to which each survivor is entitled, and if applicable, under the 
procedure set forth in Sec. 507.3, except that as to persons under 
legal disability, payment will be made as specified in Sec. 507.2.



Sec. 507.2  Payments to persons under legal disability.

    Any awards or any part of an award payable under sections 5(i) and 
6(f) of the Act to any person under legal disability may, in the 
discretion of the Commission, be certified for payment for the use of 
the claimant, to the natural or legal guardian, committee, conservator 
or curator, or if there is no natural or legal guardian, committee, 
conservator or curator, then, in the discretion of the Commission, to 
any person, including the spouse of such person, or the Chief Officer of 
the hospital in which the claimant may be a patient, whom the Commission 
may determine is charged with the care of the claimant. In the case of a 
minor, any part of the amount payable may, in the discretion of the 
Commission, be certified for payment to that minor.



Sec. 507.3  Reissuance of awards.

    Upon the death of any claimant entitled to payment of an award, the 
Commission will cause the award to be canceled and the amount of the 
award will be redistributed to the survivors of the same class or to 
members of the next class of eligible survivors, if appropriate, in the 
order of preference as set forth under the Act.



PART 508_HEARINGS--Table of Contents




Sec.
508.1 Basis for hearing.
508.2 Request for hearing.
508.3 Notification to claimant.
508.4 Failure to file request for hearing.

[[Page 31]]

508.5 Purpose of hearing.
508.6 Resume of hearing, preparation of.
508.7 Action by the Commission.
508.8 Application of other regulations.

    Authority: Sec. 2, Pub. L. 896, 80th Cong., as amended (50 U.S.C. 
App. 2001).

    Source: 66 FR 49844, Oct. 1, 2001, unless otherwise noted.



Sec. 508.1  Basis for hearing.

    Any claimant whose application is denied or is approved for less 
than the full allowable amount of his or her claim will be entitled to a 
hearing before the Commission or its representative with respect to that 
claim. Hearings may also be held on the Commission's own motion.



Sec. 508.2  Request for hearing.

    Within 30 days after the Commission's notice of denial of a claim, 
or approval for a lesser amount than claimed, has been posted by the 
Commission, the claimant, if a hearing is desired, must notify the 
Commission in writing, and must set forth in full the reasons for 
requesting the hearing, including any statement of law or facts upon 
which the claimant relies.



Sec. 508.3  Notification to claimant.

    Upon receipt of such a request, the Commission will schedule a 
hearing and notify the claimant as to the date and place the hearing is 
to be held. No later than 10 days prior to the scheduled hearing date, 
the claimant must submit all documents, briefs, or other additional 
evidence relevant to his or her appeal.



Sec. 508.4  Failure to file request for hearing.

    The failure to file a request for a hearing within the period 
specified in Sec. 509.2 of this chapter will be deemed to constitute a 
waiver of right to a hearing and the decision of the Commission will 
constitute a full and final disposition of the case.



Sec. 508.5  Purpose of hearing.

    (a) Hearings will be conducted by the Commission, its designee or 
designees. Oral testimony and documentary evidence, including 
depositions that may have been taken as provided by statute and the 
rules of practice, may be offered in evidence on claimant's behalf or by 
counsel for the Commission designated by it to represent the public 
interest opposed to the allowance of an unjust or unfounded claim or 
portion thereof, and either may cross-examine as to evidence offered 
through witnesses on behalf of the other. Objections to the admission of 
any such evidence will be ruled upon by the presiding officer.
    (b) Hearings may be stenographically recorded either at the request 
of the claimant or at the discretion of the Commission. A claimant 
making such a request must notify the Commission at least 10 days prior 
to the hearing date. When a stenographic record of a hearing is ordered 
at the claimant's request, the cost of such reporting and transcription 
may be charged to the claimant.
    (c) Such hearings will be open to the public.



Sec. 508.6  R[eacute]sum[eacute] of hearing, preparation of.

    Following each hearing, the hearing officer will prepare a 
r[eacute]sum[eacute] of the hearing, specifying the issues on which the 
hearing was based, and including a list of documents and contents and 
other items relative to the issues that were introduced as evidence. A 
brief analysis of oral testimony will also be prepared and included in 
the r[eacute]sum[eacute] of each hearing not stenographically reported.



Sec. 508.7  Action by the Commission.

    After the conclusion of the hearing and a review of the 
r[eacute]sum[eacute], the Commission may affirm, modify, or reverse its 
former action with respect to the claim, including a denial or reduction 
in the amount of the award theretofore approved. All findings of the 
Commission concerning the persons to whom compensation is payable, and 
the amounts thereof, are conclusive and not reviewable by any court.



Sec. 508.8  Application of other regulations.

    To the extent they are not inconsistent with the regulations set 
forth under provisions of this subchapter,

[[Page 32]]

the other regulations of the Commission will also be applicable to the 
claims filed hereunder.

[[Page 33]]



 SUBCHAPTER C_RECEIPT, ADMINISTRATION, AND PAYMENT OF CLAIMS UNDER THE 
  INTERNATIONAL CLAIMS SETTLEMENT ACT OF 1949, AS AMENDED, AND RELATED 
                                  ACTS





PART 509_FILING OF CLAIMS AND PROCEDURES THEREFOR--Table of Contents




Sec.
509.1 Time for filing.
509.2 Form, content and filing of claims.
509.3 Exhibits and documents in support of claim.
509.4 Acknowledgment and numbering.
509.5 Procedure for determination of claims.
509.6 Hearings.
509.7 Presettlement conference.

    Authority: Sec. 3, Pub. L. 455, 81st Cong., as amended (22 U.S.C. 
1622).

    Source: 66 FR 49844, Oct. 1, 2001, unless otherwise noted.



Sec. 509.1  Time for filing.

    Claims must be filed as specified by the Commission by duly 
promulgated notice published in the Federal Register, or as specified in 
legislation passed by Congress, as applicable.



Sec. 509.2  Form, content and filing of claims.

    (a) Unless otherwise specified by law, or by regulations published 
in the Federal Register, claims must be filed on official forms, which 
will be provided by the Commission upon request in writing addressed to 
the Commission at its office at 600 E Street, NW, Suite 6002, 
Washington, DC 20579. Each form must include all of the information 
called for in it and must be completed and signed in accordance with the 
instructions accompanying the form.
    (b) Notice to the Foreign Claims Settlement Commission, the 
Department of State, or any other governmental office or agency of an 
intention to file a claim against a foreign government, prior to the 
enactment of the statute authorizing a claims program, prior to a 
referral of claims to the Commission by the Secretary for pre-
adjudication, or prior to the effective date of a lump-sum claims 
settlement agreement, will not be considered as a timely filing of a 
claim under the statute, referral, or agreement.
    (c) Any initial written indication of an intention to file a claim 
received within 30 days prior to the expiration of the filing period 
thereof will be considered as a timely filing of a claim if formalized 
within 30 days after the expiration of the filing period.



Sec. 509.3  Exhibits and documents in support of claim.

    (a) Original documents. If available, all exhibits and documents 
must be filed with and at the same time as the claim, and must, wherever 
possible, be in the form of original documents, or copies or originals 
certified as such by their public or other official custodian.
    (b) Documents in a foreign language. Each copy of a document, 
exhibit or paper filed, which is written or printed in a language other 
than English, must be accompanied by an English translation thereof duly 
verified under oath by its translator to be a true and accurate 
translation thereof, together with the name and address of the 
translator.
    (c) Preparation of papers. All claims, briefs, and memoranda filed 
shall be typewritten or printed and, if typewritten, must be on business 
letter (8\1/2\ x 11) size paper.



Sec. 509.4  Acknowledgment and numbering.

    The Commission will acknowledge the receipt of a claim in writing 
and will notify the claimant of the claim number assigned to it, which 
number must be used on all further correspondence and papers filed with 
regard to the claim.



Sec. 509.5  Procedure for determination of claims.

    (a) The Commission may on its own motion order a hearing upon any 
claim, specifying the questions to which the hearing shall be limited.
    (b) Without previous hearing, the Commission or a designated member 
of the staff may issue a Proposed Decision in determination of a claim. 
This Proposed Decision will set forth findings of

[[Page 34]]

fact and conclusions of law on the relevant elements of the claim, to 
the extent that evidence and information relevant to such elements is 
before the Commission. The claimant will have the burden of proof in 
submitting evidence and information sufficient to establish the elements 
necessary for a determination of the validity and amount of his or her 
claim.
    (c) The Proposed Decision will be delivered to the claimant or the 
claimant's attorney of record in person or by mail. Delivery by mail 
will be deemed completed 5 days after the mailing of the Proposed 
Decision addressed to the last known address of the claimant or the 
claimant's attorney of record. A copy of the Proposed Decision will be 
available for public inspection at the offices of the Commission, except 
in cases where public disclosure of the names of claimants is barred by 
statute.
    (d) It will be the policy of the Commission to post on a bulletin 
board and on its World Wide Web site (http://www.usdoj.gov/fcsc), any 
information of general interest to claimants before the Commission.
    (e) When the Proposed Decision denies a claim in whole or in part, 
the claimant may file notice of objection to the denial within 15 days 
of delivery of the decision. If the claimant wishes to appear at an oral 
hearing before the Commission to present his or her objection, the 
claimant must request the oral hearing at the time of submission of his 
or her objection, stating the reasons for objection, and may request a 
hearing on the claim, specifying whether for the taking of evidence or 
for oral argument on the legal issues which are the subject of the 
objection.
    (f) Copies of objections to or requests for hearings on Proposed 
Decisions will be available for public inspection at the Commission's 
offices.
    (g) Upon the expiration of 30 days after delivery to the claimant or 
claimant's attorney, if no objection under this section has in the 
meantime been filed, a staff Proposed Decision, upon approval by the 
Commission, will become the Commission's final determination and 
decision on the claim. A Proposed Decision issued by the Commission will 
become final 30 days after delivery to the claimant or the claimant's 
attorney without further order or decision by the Commission.
    (h) If an objection has in the meantime been filed, but no hearing 
requested, the Commission may, after due consideration thereof:
    (1) Issue a Final Decision affirming or modifying its Proposed 
Decision,
    (2) Issue an Amended Proposed Decision, or
    (3) On its own motion order hearing thereon, indicating whether for 
the taking of evidence on specified questions or for the hearing of oral 
arguments.
    (i) After the conclusion of a hearing, upon the expiration of any 
time allowed by the Commission for further submissions, the Commission 
may proceed to issue a Final Decision in determination of the claim.
    (j)(1) In case an individual claimant dies prior to the issuance of 
the Final Decision, that person's legal representative will be 
substituted as party claimant. However, upon failure of a representative 
to qualify for substitution, the Commission may issue its decision in 
the name of the estate of the deceased and, in case of an award, certify 
the award in the same manner to the Secretary of the Treasury for 
payment, if the payment of the award is provided for by statute.
    (2) Notice of the Commission's action under this paragraph will be 
forwarded to the claimant's attorney of record, or if the claimant is 
not represented by an attorney, the notice will be addressed to the 
estate of the claimant at the last known place of residence.
    (3) The term legal representative as applied in this paragraph 
means, in general, the administrator or executor, heir(s), next of kin, 
or descendant(s).
    (k) After the date of filing with the Commission no claim may be 
amended to reflect the assignment thereof by the claimant to any other 
person or entity except as otherwise provided by statute.
    (l) At any time after a final Decision has been issued on a claim, 
or a Proposed Decision has been entered as the Final Decision on a 
claim, but not later than 60 days before the completion date of the 
Commission's affairs in connection with the program under

[[Page 35]]

which such claim is filed, a petition to reopen on the ground of newly 
discovered evidence may be filed. No such petition will be entertained 
unless it appears therein that the newly discovered evidence came to the 
knowledge of the party filing the petition subsequent to the date of 
issuance of the Final Decision or the date on which the Proposed 
Decision was entered as the Final Decision; that it was not for want of 
due diligence that the evidence did not come sooner to the claimant's 
knowledge; and that the evidence is material, and not merely cumulative, 
and that reconsideration of the matter on the basis of that evidence 
would produce a different decision. The petition must include a 
statement of the facts which the petitioner expects to prove, the name 
and address of each witness, the identity of documents, and the reasons 
for failure to make earlier submission of the evidence.



Sec. 509.6  Hearings.

    (a) Hearings, whether upon the Commission's own motion or upon 
request of claimant, will be held upon not less than fifteen days' 
notice of the time and place thereof.
    (b) The hearings will be open to the public unless otherwise 
requested by claimant and ordered by the Commission, or when required by 
law.
    (c) The hearings will be conducted by the Commission, its designee 
or designees. Oral testimony and documentary evidence, including 
depositions that may have been taken as provided by statute and the 
rules of practices, may be offered in evidence on the claimant's behalf 
or by counsel for the Commission designated by it to represent the 
public interest opposed to the allowance of any unjust or unfounded 
claim or portion thereof; and either may cross-examine as to evidence 
offered through witnesses on behalf of the other. Objections to the 
admission of any such evidence will be ruled upon by the presiding 
officer.
    (d) The hearings will be conducted as non-adversarial proceedings. 
However, the claimant will be the moving party, and will have the burden 
of proof on all issues involved in the determination of his or her 
claim.
    (e) Hearings may be stenographically reported or electronically 
recorded, either at the request of the claimant or upon the discretion 
of the Commission. A claimant making such a request must notify the 
Commission at least ten (10) days prior to the hearing date. When a 
stenographic record or transcript of a hearing is ordered at the 
claimant's request, the cost of the reporting and transcription will be 
charged to the claimant.
    (f) The following rules of procedure will apply in the conduct of 
hearings held by the Commission for presentation of objections to 
Proposed Decisions:
    (1) Presentation of Objections to Proposed Decisions (i) Objections 
should focus either on the presentation of new evidence, or on the 
presentation of arguments demonstrating that, in the claimant's view, 
the Commission erred in considering the evidence previously submitted. 
Restatements of facts, evidence or materials already established in the 
record should be avoided.
    (ii) The Chief Counsel of the Commission or designated staff 
attorney will first introduce the objecting claimant and any witnesses 
to the Commission, and will then present a brief summary of the case, 
together with reasons supporting the decision as issued.
    (iii) The objecting claimant and all witnesses will be sworn.
    (iv) The objecting claimant, or the claimant's attorney, will then 
present the claimant's objections to the Commission, specifically 
setting forth the basis for the claimant's disagreement with the 
Proposed Decision, and the reasons supporting the claimant's contention 
that a more favorable decision should be rendered. Claimants will 
normally be limited to fifteen (15) minutes for their presentation of 
objections, but may request additional time if needed.
    (v) Following presentation of the claimant's objection, the Chief 
Counsel or designated staff attorney will be allotted an equivalent 
amount of time to question the claimant and the claimant's witnesses 
with respect to the testimony and other evidence presented in support of 
the objection.
    (vi) The objecting claimant or the claimant's attorney, and the 
Chief

[[Page 36]]

Counsel or designated staff attorney, will then be allotted up to five 
(5) minutes each for follow-up or rebuttal.
    (vii) The Chair and Commissioners may direct questions to the 
objecting claimant and the claimant's attorney, and to the Chief Counsel 
or designated staff attorney, at any time during the proceedings 
described in the foregoing.
    (viii) The foregoing provisions may be modified at the discretion of 
the Chair as circumstances may require.
    (ix) At the conclusion, the Chair will inform the participants that 
the Commission will take the matter under advisement, and that a written 
Final Decision disposing of the objection will issue in due course.
    (2) Submission to Questioning/Conduct of Proceedings (i) 
Presentation of the claimant's objection by the objecting claimant or 
the claimant's attorney, and of follow-up and rebuttal by the claimant 
or the claimant's attorney and by the Chief Counsel or designated staff 
attorney, must be directed to the Commission. Verbal exchanges between 
the objecting claimant or the claimant's attorney, and the Chief Counsel 
or designated staff attorney, will be limited to questions and answers 
during the questioning phase of the proceeding described in paragraph 
(f)(1)(v) of this section, unless otherwise necessary for clarification 
or exchange of documents.
    (ii) Professional conduct and courtesies of the kind normally 
accorded in appellate judicial proceedings must be observed in all 
appearances and proceedings before the Commission.



Sec. 509.7  Presettlement conference.

    The Commission on its own motion or initiative, or upon the 
application of a claimant for good cause shown, may direct that a 
presettlement conference be held with respect to any issue involved in a 
claim.

[[Page 37]]



                 CHAPTER VI--NATIONAL SCIENCE FOUNDATION




  --------------------------------------------------------------------
Part                                                                Page
601             Classification and declassification of 
                    national security information...........          39
602             Uniform administrative requirements for 
                    grants and cooperative agreements to 
                    State and local governments.............          41
604             New restrictions on lobbying................          68
605             Nondiscrimination on the basis of handicap 
                    in programs or activities receiving 
                    Federal financial assistance............          80
606             Enforcement of nondiscrimination on the 
                    basis of handicap in programs or 
                    activities conducted by the National 
                    Science Foundation......................          96
607             Salary offset...............................         102
608             Claims collection and administrative offset.         106
611             Nondiscrimination in federally-assisted 
                    programs of the National Science 
                    Foundation--effectuation of title VI of 
                    the Civil Rights Act of 1964............         110
612             Availability of records and information.....         120
613             Privacy Act regulations.....................         133
614             Government in the Sunshine Act regulations 
                    of the National Science Board...........         137
615             Testimony and production of records.........         139
617             Nondiscrimination on the basis of age in 
                    programs or activities receiving Federal 
                    financial assistance from NSF...........         141
618             Nondiscrimination on the basis of sex in 
                    education programs or activities 
                    receiving Federal financial assistance..         146
630             Governmentwide requirements for drug-free 
                    workplace (financial assistance)........         162
640             Compliance with the National Environmental 
                    Policy Act..............................         168
641             Environmental assessment procedures for 
                    proposed National Science Foundation 
                    actions in Antarctica...................         171

[[Page 38]]

650             Patents.....................................         176
660             Intergovernmental review of the National 
                    Science Foundation programs and 
                    activities..............................         186
670             Conservation of Antarctic animals and plants         188
671             Waste regulation............................         201
672             Enforcement and hearing procedures..........         209
673             Antarctic non-governmental expeditions......         221
674             Antarctic meteorites........................         222
675             Medical clearance process for deployment to 
                    Antarctica..............................         224
680             National Science Foundation rules of 
                    practice and statutory conflict-of-
                    interest exemptions.....................         225
681             Program Fraud Civil Remedies Act regulations         229
689             Research misconduct.........................         242
690             Protection of human subjects................         247

[[Page 39]]



PART 601_CLASSIFICATION AND DECLASSIFICATION OF NATIONAL SECURITY 
INFORMATION--Table of Contents




Sec.
601.1 Purpose.
601.2 Classification authority.
601.3 Security program.
601.4 Classification Review Committee.
601.5 Derivative classification.
601.6 Downgrading and declassification.
601.7 Mandatory declassification review.
601.8 Access to classified materials.
601.9 Access by historical researchers and former Presidential 
          appointees.

    Authority: E.O. 12958, 3 CFR, 1995 Comp. p. 333.

    Source: 47 FR 57284, Dec. 23, 1983, unless otherwise noted.



Sec. 601.1  Purpose.

    Pursuant to Executive Order 12958 and Information Security Oversight 
Office Directive No. 1, the National Science Foundation [Foundation] 
issues the following regulations. The regulations identify the 
information to be protected, prescribe classification, declassification, 
downgrading, and safeguarding procedures to be followed, and establish a 
monitoring system to ensure the regulations' effectiveness.

[47 FR 57284, Dec. 23, 1983, as amended at 61 FR 51021, Sept. 30, 1996]



Sec. 601.2  Classification authority.

    The Foundation does not have original classification authority under 
Executive Order 12958. In any instance where a Foundation employee 
develops information that appears to warrant classification because of 
its national security character, the material will be afforded 
protection and sent to the Division of Administrative Services (DAS). 
Upon determination that classification is warranted, DAS will submit 
such material to the agency that has appropriate subject matter interest 
and classification authority.

[47 FR 57284, Dec. 23, 1983, as amended at 61 FR 51021, Sept. 30, 1996]



Sec. 601.3  Security program.

    The Director, Division of Administrative Services, is responsible 
for conducting a security program that ensures effective implementation 
of Executive Order 12958, to include:
    (a) Maintaining active training and orientation programs for 
employees concerned with classified information or material.
    (b) Encouraging Foundation personnel to challenge those 
classification decisions they believe to be improper.
    (c) Issuing directives that ensure classified information is used, 
processed, stored, reproduced and transmitted only under conditions that 
will provide adequate protection and prevent access by unauthorized 
persons.
    (d) Recommending to the Director appropriate administrative action 
to correct abuse or violation of any provision of these regulations, 
including notification by warning letters, formal reprimand, and to the 
extent permitted by law, suspension without pay and removal.

[47 FR 57284, Dec. 23, 1983, as amended at 61 FR 51021, Sept. 30, 1996]



Sec. 601.4  Classification Review Committee.

    The Security Officer (Information) chairs the Foundation's 
Classification Review Committee which has authority to act on all 
suggestions and complaints with respect to the Foundation's 
administration of the regulations. The Assistant Directors and the Heads 
of other offices reporting to the Director serve as members of the 
Committee. All suggestions and complaints including those regarding 
overclassification, failure to classify, or delay in declassifying not 
otherwise resolved, shall be referred to the Committee for resolution. 
The Committee shall establish procedures to review and act within 30 
days upon all appeals regarding requests for declassification. The 
Committee is authorized to overrule previous determinations in whole or 
in part when in its judgment, continued protection is no longer 
required. If the Committee determines that continued classification is 
required under the criteria of the Executive Order, it shall promptly so 
notify the requester and advise him that he may file an application for 
review with the Foundation. In addition, the Committee shall review all 
appeals of requests for records

[[Page 40]]

under section 552 of title 5 U.S.C. (Freedom of Information Act) when 
the proposed denial is based on their continued classification under 
Executive Order 12958.

[47 FR 57284, Dec. 23, 1983, as amended at 61 FR 51021, Sept. 30, 1996]



Sec. 601.5  Derivative classification.

    Distinct from ``original'' classification is the determination that 
information is in substance the same as information currently 
classified, because of incorporating, paraphrasing, restating or 
generating in new form information that is already classified, and 
marking the newly developed material consistent with the marking of the 
source information. Persons who only reproduce, extract, or summarize 
classified information, or who only apply classification markings 
derived from source material or as directed by a classification guide, 
need not possess original classification authority.
    (a) If a person who applies derivative classification markings 
believes that the paraphrasing, restating, or summarizing of classified 
information has changed the level of or removed the basis for 
classification, that person must consult for a determination an 
appropriate official of the originating agency or office of origin who 
has the authority to upgrade, downgrade, or declassify the information.
    (b) The person who applies derivative classification markings shall 
observe and respect original classification decisions; and carry forward 
to any newly created documents any assigned authorized markings. The 
declassification date or event that provides the longest period of 
classification shall be used for documents classified on the basis of 
multiple sources.



Sec. 601.6  Downgrading and declassification.

    Executive Order 12958 prescribes a uniform system for classifying, 
declassifying, and safeguarding national security information.
    (a) Information shall be declassified or downgraded as soon as 
national security considerations permit. The National Science Foundation 
shall coordinate their review of classified information with other 
agencies that have a direct interests in the subject matter. Information 
that continues to meet the classification requirements prescribed by 
Section 1.3 despite the passage of time will continue to be protected in 
accordance with Executive Order 12958.
    (b) Foundation documents may be declassified or downgraded by the 
official who authorized the original classification, if that official is 
still serving in the same position; the originator's successor; a 
supervisory official of either; or officials delegated such authority in 
writing by the Director.
    (c) The Director shall conduct internal systematic review programs 
for classified information originated by the Foundation contained in 
records determined by the Archivist to be permanently valuable but that 
have not been accessioned into the National Archives of the United 
States.
    (d) The Archivist of the United States shall, in accordance with 
procedures and timeframes prescribed in the Information Security 
Oversight Office's directives implementing Executive Order 12958, 
systematically review for declassification or downgrading, classified 
records accessioned into the National Archives of the United States. 
Such information shall be reviewed by the Archivist for declassification 
or downgrading in accordance with systematic review guidelines that 
shall be provided by the head of the agency that originated the 
information, or in the case of foreign government information, by the 
Director of Information Security Oversight Office in consultation with 
interested agency heads.

[47 FR 57284, Dec. 23, 1983, as amended at 61 FR 51021, Sept. 30, 1996]



Sec. 601.7  Mandatory declassification review.

    (a) The Division of Administrative Services is hereby designated as 
the office to which members of the public or Departments may direct 
requests for mandatory review for declassification under this provision. 
In the case of documents originally classified by the Foundation, this 
office shall, in turn, assign the request to the appropriate office for 
action within 60 days. In each instance, receipt of the request will be 
acknowledged in writing immediately

[[Page 41]]

by the office that has been assigned action. A request for 
classification review must reasonably describe the document.
    (b) Whenever a request is deficient in its description of the record 
sought, the requester should be asked to provide additional identifying 
information to the extent possible. Whenever a request does not 
reasonably describe the information sought, the requester shall be 
notified that unless additional information is provided or the scope of 
the request is narrowed, no further action will be undertaken. Upon a 
determination that the requested material no longer warrants 
classification, it shall be declassified and made promptly available to 
the requester, if not otherwise exempt from disclosure under 5 U.S.C. 
552(b) (Freedom of Information Act) or other provision of law. If the 
information may not be released in whole or in part the requester shall 
be given a brief statement as to the reasons for denial, a notice of the 
right to appeal the determination of the Classification Review 
Committee, and a notice that such an appeal must be filed with the 
Foundation within 60 days in order to be considered.
    (c) When the request relates to a document given derivative 
classification by the Foundation or originated by another agency, the 
request and the document will be forwarded to the originator of the 
source document, and the requestor notified of such referral.
    (d) Employees presently cleared for access to classified information 
are encouraged to challenge classification in cases where there is 
reasonable cause to believe that information is classified 
unnecessarily, improperly, or for an inappropriate period of time. Such 
challenges should be brought to the attention of the Security Officer 
(Information) who will act thereon within 30 days, informing the 
challenger of actions taken. Requests for confidentiality will be 
honored.



Sec. 601.8  Access to classified materials.

    No person may be given access to classified information unless that 
person has been determined to be trustworthy and unless access is 
essential to the accomplishment of lawful and authorized Government 
purposes.



Sec. 601.9  Access by historical researchers and former Presidential 
appointees.

    The requirement in Sec. 601.8 that access to classified information 
may be granted only as is essential to the accomplishment of lawful and 
authorized Government purposes may be waived for persons who are engaged 
in historical research projects, or previously have occupied 
policymaking positions to which they were appointed by the President, 
provided they execute written agreements to safeguard the information 
and written consent to the Foundation's review of their notes and 
manuscripts solely for the purpose of determining that no classified 
information is disclosed. A precondition to any such access is the 
favorable completion of an appropriate investigative inquiry.



PART 602_UNIFORM ADMINISTRATIVE REQUIREMENTS FOR GRANTS AND COOPERATIVE
AGREEMENTS TO STATE AND LOCAL GOVERNMENTS--Table of Contents




                            Subpart A_General

Sec.
602.1 Purpose and scope of this part.
602.2 Scope of subpart.
602.3 Definitions.
602.4 Applicability.
602.5 Effect on other issuances.
602.6 Additions and exceptions.

                    Subpart B_Pre-Award Requirements

602.10 Forms for applying for grants.
602.11 State plans.
602.12 Special grant or subgrant conditions for ``high-risk'' grantees.

                    Subpart C_Post-Award Requirements

                        Financial Administration

602.20 Standards for financial management systems.
602.21 Payment.
602.22 Allowable costs.
602.23 Period of availability of funds.
602.24 Matching or cost sharing.
602.25 Program income.
602.26 Non-Federal audit.

                    Changes, Property, and Subawards

602.30 Changes.
602.31 Real property.
602.32 Equipment.
602.33 Supplies.

[[Page 42]]

602.34 Copyrights.
602.35 Subawards to debarred and suspended parties.
602.36 Procurement.
602.37 Subgrants.

              Reports, Records, Retention, and Enforcement

602.40 Monitoring and reporting program performance.
602.41 Financial reporting.
602.42 Retention and access requirements for records.
602.43 Enforcement.
602.44 Termination for convenience.

                 Subpart D_After-the-Grant Requirements

602.50 Closeout.
602.51 Later disallowances and adjustments.
602.52 Collection of amounts due.

Subpart E--Entitlements [Reserved]

    Authority: 42 U.S.C. 1870(a).

    Source: 53 FR 8080, 8087, Mar. 11, 1988, unless otherwise noted.



                            Subpart A_General



Sec. 602.1  Purpose and scope of this part.

    This part establishes uniform administrative rules for Federal 
grants and cooperative agreements and subawards to State, local and 
Indian tribal governments.



Sec. 602.2  Scope of subpart.

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



Sec. 602.3  Definitions.

    As used in this part:
    Accrued expenditures mean the charges incurred by the grantee during 
a given period requiring the provision of funds for:
    (1) Goods and other tangible property received;
    (2) Services performed by employees, contractors, subgrantees, 
subcontractors, and other payees; and
    (3) Other amounts becoming owed under programs for which no current 
services or performance is required, such as annuities, insurance 
claims, and other benefit payments.
    Accrued income means the sum of:
    (1) Earnings during a given period from services performed by the 
grantee and goods and other tangible property delivered to purchasers, 
and
    (2) Amounts becoming owed to the grantee for which no current 
services or performance is required by the grantee.
    Acquisition cost of an item of purchased equipment means the net 
invoice unit price of the property including the cost of modifications, 
attachments, accessories, or auxiliary apparatus necessary to make the 
property usable for the purpose for which it was acquired. Other charges 
such as the cost of installation, transportation, taxes, duty or 
protective in-transit insurance, shall be included or excluded from the 
unit acquisition cost in accordance with the grantee's regular 
accounting practices.
    Administrative requirements mean those matters common to grants in 
general, such as financial management, kinds and frequency of reports, 
and retention of records. These are distinguished from programmatic 
requirements, which concern matters that can be treated only on a 
program-by-program or grant-by-grant basis, such as kinds of activities 
that can be supported by grants under a particular program.
    Awarding agency means (1) with respect to a grant, the Federal 
agency, and (2) with respect to a subgrant, the party that awarded the 
subgrant.
    Cash contributions means the grantee's cash outlay, including the 
outlay of money contributed to the grantee or subgrantee by other public 
agencies and institutions, and private organizations and individuals. 
When authorized by Federal legislation, Federal funds received from 
other assistance agreements may be considered as grantee or subgrantee 
cash contributions.
    Contract means (except as used in the definitions for grant and 
subgrant in this section and except where qualified by Federal) a 
procurement contract under a grant or subgrant, and means a procurement 
subcontract under a contract.
    Cost sharing or matching means the value of the third party in-kind 
contributions and the portion of the costs

[[Page 43]]

of a federally assisted project or program not borne by the Federal 
Government.
    Cost-type contract means a contract or subcontract under a grant in 
which the contractor or subcontractor is paid on the basis of the costs 
it incurs, with or without a fee.
    Equipment means tangible, nonexpendable, personal property having a 
useful life of more than one year and an acquisition cost of $5,000 or 
more per unit. A grantee may use its own definition of equipment 
provided that such definition would at least include all equipment 
defined above.
    Expenditure report means: (1) For nonconstruction grants, the SF-269 
``Financial Status Report'' (or other equivalent report); (2) for 
construction grants, the SF-271 ``Outlay Report and Request for 
Reimbursement'' (or other equivalent report).
    Federally recognized Indian tribal government means the governing 
body or a governmental agency of any Indian tribe, band, nation, or 
other organized group or community (including any Native village as 
defined in section 3 of the Alaska Native Claims Settlement Act, 85 
Stat. 688) certified by the Secretary of the Interior as eligible for 
the special programs and services provided by him through the Bureau of 
Indian Affairs.
    Government means a State or local government or a federally 
recognized Indian tribal government.
    Grant means an award of financial assistance, including cooperative 
agreements, in the form of money, or property in lieu of money, by the 
Federal Government to an eligible grantee. The term does not include 
technical assistance which provides services instead of money, or other 
assistance in the form of revenue sharing, loans, loan guarantees, 
interest subsidies, insurance, or direct appropriations. Also, the term 
does not include assistance, such as a fellowship or other lump sum 
award, which the grantee is not required to account for.
    Grantee means the government to which a grant is awarded and which 
is accountable for the use of the funds provided. The grantee is the 
entire legal entity even if only a particular component of the entity is 
designated in the grant award document.
    Local government means a county, municipality, city, town, township, 
local public authority (including any public and Indian housing agency 
under the United States Housing Act of 1937) school district, special 
district, intrastate district, council of governments (whether or not 
incorporated as a nonprofit corporation under state law), any other 
regional or interstate government entity, or any agency or 
instrumentality of a local government.
    Obligations means the amounts of orders placed, contracts and 
subgrants awarded, goods and services received, and similar transactions 
during a given period that will require payment by the grantee during 
the same or a future period.
    OMB means the United States Office of Management and Budget.
    Outlays (expenditures) mean charges made to the project or program. 
They may be reported on a cash or accrual basis. For reports prepared on 
a cash basis, outlays are the sum of actual cash disbursement for direct 
charges for goods and services, the amount of indirect expense incurred, 
the value of in-kind contributions applied, and the amount of cash 
advances and payments made to contractors and subgrantees. For reports 
prepared on an accrued expenditure basis, outlays are the sum of actual 
cash disbursements, the amount of indirect expense incurred, the value 
of inkind contributions applied, and the new increase (or decrease) in 
the amounts owed by the grantee for goods and other property received, 
for services performed by employees, contractors, subgrantees, 
subcontractors, and other payees, and other amounts becoming owed under 
programs for which no current services or performance are required, such 
as annuities, insurance claims, and other benefit payments.
    Percentage of completion method refers to a system under which 
payments are made for construction work according to the percentage of 
completion of the work, rather than to the grantee's cost incurred.
    Prior approval means documentation evidencing consent prior to 
incurring specific cost.

[[Page 44]]

    Real property means land, including land improvements, structures 
and appurtenances thereto, excluding movable machinery and equipment.
    Share, when referring to the awarding agency's portion of real 
property, equipment or supplies, means the same percentage as the 
awarding agency's portion of the acquiring party's total costs under the 
grant to which the acquisition costs under the grant to which the 
acquisition cost of the property was charged. Only costs are to be 
counted--not the value of third-party in-kind contributions.
    State means any of the several States of the United States, the 
District of Columbia, the Commonwealth of Puerto Rico, any territory or 
possession of the United States, or any agency or instrumentality of a 
State exclusive of local governments. The term does not include any 
public and Indian housing agency under United States Housing Act of 
1937.
    Subgrant means an award of financial assistance in the form of 
money, or property in lieu of money, made under a grant by a grantee to 
an eligible subgrantee. The term includes financial assistance when 
provided by contractual legal agreement, but does not include 
procurement purchases, nor does it include any form of assistance which 
is excluded from the definition of grant in this part.
    Subgrantee means the government or other legal entity to which a 
subgrant is awarded and which is accountable to the grantee for the use 
of the funds provided.
    Supplies means all tangible personal property other than equipment 
as defined in this part.
    Suspension means depending on the context, either (1) temporary 
withdrawal of the authority to obligate grant funds pending corrective 
action by the grantee or subgrantee or a decision to terminate the 
grant, or (2) an action taken by a suspending official in accordance 
with agency regulations implementing E.O. 12549 to immediately exclude a 
person from participating in grant transactions for a period, pending 
completion of an investigation and such legal or debarment proceedings 
as may ensue.
    Termination means permanent withdrawal of the authority to obligate 
previously-awarded grant funds before that authority would otherwise 
expire. It also means the voluntary relinquishment of that authority by 
the grantee or subgrantee. Termination does not include: (1) Withdrawal 
of funds awarded on the basis of the grantee's underestimate of the 
unobligated balance in a prior period; (2) Withdrawal of the unobligated 
balance as of the expiration of a grant; (3) Refusal to extend a grant 
or award additional funds, to make a competing or noncompeting 
continuation, renewal, extension, or supplemental award; or (4) voiding 
of a grant upon determination that the award was obtained fraudulently, 
or was otherwise illegal or invalid from inception.
    Terms of a grant or subgrant mean all requirements of the grant or 
subgrant, whether in statute, regulations, or the award document.
    Third party in-kind contributions mean property or services which 
benefit a federally assisted project or program and which are 
contributed by non-Federal third parties without charge to the grantee, 
or a cost-type contractor under the grant agreement.
    Unliquidated obligations for reports prepared on a cash basis mean 
the amount of obligations incurred by the grantee that has not been 
paid. For reports prepared on an accrued expenditure basis, they 
represent the amount of obligations incurred by the grantee for which an 
outlay has not been recorded.
    Unobligated balance means the portion of the funds authorized by the 
Federal agency that has not been obligated by the grantee and is 
determined by deducting the cumulative obligations from the cumulative 
funds authorized.



Sec. 602.4  Applicability.

    (a) General. Subparts A through D of this part apply to all grants 
and subgrants to governments, except where inconsistent with Federal 
statutes or with regulations authorized in accordance with the exception 
provision of Sec. 602.6, or:
    (1) Grants and subgrants to State and local institutions of higher 
education or State and local hospitals.

[[Page 45]]

    (2) The block grants authorized by the Omnibus Budget Reconciliation 
Act of 1981 (Community Services; Preventive Health and Health Services; 
Alcohol, Drug Abuse, and Mental Health Services; Maternal and Child 
Health Services; Social Services; Low-Income Home Energy Assistance; 
States' Program of Community Development Block Grants for Small Cities; 
and Elementary and Secondary Education other than programs administered 
by the Secretary of Education under title V, Subtitle D, Chapter 2, 
Section 583--the Secretary's discretionary grant program) and titles I-
III of the Job Training Partnership Act of 1982 and under the Public 
Health Services Act (Section 1921), Alcohol and Drug Abuse Treatment and 
Rehabilitation Block Grant and Part C of title V, Mental Health Service 
for the Homeless Block Grant).
    (3) Entitlement grants to carry out the following programs of the 
Social Security Act:
    (i) Aid to Needy Families with Dependent Children (Title IV-A of the 
Act, not including the Work Incentive Program (WIN) authorized by 
section 402(a)19(G); HHS grants for WIN are subject to this part);
    (ii) Child Support Enforcement and Establishment of Paternity (Title 
IV-D of the Act);
    (iii) Foster Care and Adoption Assistance (Title IV-E of the Act);
    (iv) Aid to the Aged, Blind, and Disabled (Titles I, X, XIV, and 
XVI-AABD of the Act); and
    (v) Medical Assistance (Medicaid) (Title XIX of the Act) not 
including the State Medicaid Fraud Control program authorized by section 
1903(a)(6)(B).
    (4) Entitlement grants under the following programs of The National 
School Lunch Act:
    (i) School Lunch (section 4 of the Act),
    (ii) Commodity Assistance (section 6 of the Act),
    (iii) Special Meal Assistance (section 11 of the Act),
    (iv) Summer Food Service for Children (section 13 of the Act), and
    (v) Child Care Food Program (section 17 of the Act).
    (5) Entitlement grants under the following programs of The Child 
Nutrition Act of 1966:
    (i) Special Milk (section 3 of the Act), and
    (ii) School Breakfast (section 4 of the Act).
    (6) Entitlement grants for State Administrative expenses under The 
Food Stamp Act of 1977 (section 16 of the Act).
    (7) A grant for an experimental, pilot, or demonstration project 
that is also supported by a grant listed in paragraph (a)(3) of this 
section;
    (8) Grant funds awarded under subsection 412(e) of the Immigration 
and Nationality Act (8 U.S.C. 1522(e)) and subsection 501(a) of the 
Refugee Education Assistance Act of 1980 (Pub. L. 96-422, 94 Stat. 
1809), for cash assistance, medical assistance, and supplemental 
security income benefits to refugees and entrants and the administrative 
costs of providing the assistance and benefits;
    (9) Grants to local education agencies under 20 U.S.C. 236 through 
241-1(a), and 242 through 244 (portions of the Impact Aid program), 
except for 20 U.S.C. 238(d)(2)(c) and 240(f) (Entitlement Increase for 
Handicapped Children); and
    (10) Payments under the Veterans Administration's State Home Per 
Diem Program (38 U.S.C. 641(a)).
    (b) Entitlement programs. Entitlement programs enumerated above in 
Sec. 602.4(a) (3) through (8) are subject to Subpart E.



Sec. 602.5  Effect on other issuances.

    All other grants administration provisions of codified program 
regulations, program manuals, handbooks and other nonregulatory 
materials which are inconsistent with this part are superseded, except 
to the extent they are required by statute, or authorized in accordance 
with the exception provision in Sec. 602.6.



Sec. 602.6  Additions and exceptions.

    (a) For classes of grants and grantees subject to this part, Federal 
agencies may not impose additional administrative requirements except in 
codified regulations published in the Federal Register.

[[Page 46]]

    (b) Exceptions for classes of grants or grantees may be authorized 
only by OMB.
    (c) Exceptions on a case-by-case basis and for subgrantees may be 
authorized by the affected Federal agencies.



                    Subpart B_Pre-Award Requirements



Sec. 602.10  Forms for applying for grants.

    (a) Scope. (1) This section prescribes forms and instructions to be 
used by governmental organizations (except hospitals and institutions of 
higher education operated by a government) in applying for grants. This 
section is not applicable, however, to formula grant programs which do 
not require applicants to apply for funds on a project basis.
    (2) This section applies only to applications to Federal agencies 
for grants, and is not required to be applied by grantees in dealing 
with applicants for subgrants. However, grantees are encouraged to avoid 
more detailed or burdensome application requirements for subgrants.
    (b) Authorized forms and instructions for governmental 
organizations. (1) In applying for grants, applicants shall only use 
standard application forms or those prescribed by the granting agency 
with the approval of OMB under the Paperwork Reduction Act of 1980.
    (2) Applicants are not required to submit more than the original and 
two copies of preapplications or applications.
    (3) Applicants must follow all applicable instructions that bear OMB 
clearance numbers. Federal agencies may specify and describe the 
programs, functions, or activities that will be used to plan, budget, 
and evaluate the work under a grant. Other supplementary instructions 
may be issued only with the approval of OMB to the extent required under 
the Paperwork Reduction Act of 1980. For any standard form, except the 
SF-424 facesheet, Federal agencies may shade out or instruct the 
applicant to disregard any line item that is not needed.
    (4) When a grantee applies for additional funding (such as a 
continuation or supplemental award) or amends a previously submitted 
application, only the affected pages need be submitted. Previously 
submitted pages with information that is still current need not be 
resubmitted.



Sec. 602.11  State plans.

    (a) Scope. The statutes for some programs require States to submit 
plans before receiving grants. Under regulations implementing Executive 
Order 12372, ``Intergovernmental Review of Federal Programs,'' States 
are allowed to simplify, consolidate and substitute plans. This section 
contains additional provisions for plans that are subject to regulations 
implementing the Executive order.
    (b) Requirements. A State need meet only Federal administrative or 
programmatic requirements for a plan that are in statutes or codified 
regulations.
    (c) Assurances. In each plan the State will include an assurance 
that the State shall comply with all applicable Federal statutes and 
regulations in effect with respect to the periods for which it receives 
grant funding. For this assurance and other assurances required in the 
plan, the State may:
    (1) Cite by number the statutory or regulatory provisions requiring 
the assurances and affirm that it gives the assurances required by those 
provisions,
    (2) Repeat the assurance language in the statutes or regulations, or
    (3) Develop its own language to the extent permitted by law.
    (d) Amendments. A State will amend a plan whenever necessary to 
reflect: (1) New or revised Federal statutes or regulations or (2) a 
material change in any State law, organization, policy, or State agency 
operation. The State will obtain approval for the amendment and its 
effective date but need submit for approval only the amended portions of 
the plan.



Sec. 602.12  Special grant or subgrant conditions for ``high-risk'' 
grantees.

    (a) A grantee or subgrantee may be considered ``high risk'' if an 
awarding agency determines that a grantee or subgrantee:
    (1) Has a history of unsatisfactory performance, or
    (2) Is not financially stable, or

[[Page 47]]

    (3) Has a management system which does not meet the management 
standards set forth in this part, or
    (4) Has not conformed to terms and conditions of previous awards, or
    (5) Is otherwise not responsible; and if the awarding agency 
determines that an award will be made, special conditions and/or 
restrictions shall correspond to the high risk condition and shall be 
included in the award.
    (b) Special conditions or restrictions may include:
    (1) Payment on a reimbursement basis;
    (2) Withholding authority to proceed to the next phase until receipt 
of evidence of acceptable performance within a given funding period;
    (3) Requiring additional, more detailed financial reports;
    (4) Additional project monitoring;
    (5) Requiring the grantee or subgrantee to obtain technical or 
management assistance; or
    (6) Establishing additional prior approvals.
    (c) If an awarding agency decides to impose such conditions, the 
awarding official will notify the grantee or subgrantee as early as 
possible, in writing, of:
    (1) The nature of the special conditions/restrictions;
    (2) The reason(s) for imposing them;
    (3) The corrective actions which must be taken before they will be 
removed and the time allowed for completing the corrective actions and
    (4) The method of requesting reconsideration of the conditions/
restrictions imposed.



                    Subpart C_Post-Award Requirements

                        Financial Administration



Sec. 602.20  Standards for financial management systems.

    (a) A State must expand and account for grant funds in accordance 
with State laws and procedures for expending and accounting for its own 
funds. Fiscal control and accounting procedures of the State, as well as 
its subgrantees and cost-type contractors, must be sufficient to--
    (1) Permit preparation of reports required by this part and the 
statutes authorizing the grant, and
    (2) Permit the tracing of funds to a level of expenditures adequate 
to establish that such funds have not been used in violation of the 
restrictions and prohibitions of applicable statutes.
    (b) The financial management systems of other grantees and 
subgrantees must meet the following standards:
    (1) Financial reporting. Accurate, current, and complete disclosure 
of the financial results of financially assisted activities must be made 
in accordance with the financial reporting requirements of the grant or 
subgrant.
    (2) Accounting records. Grantees and subgrantees must maintain 
records which adequately identify the source and application of funds 
provided for financially-assisted activities. These records must contain 
information pertaining to grant or subgrant awards and authorizations, 
obligations, unobligated balances, assets, liabilities, outlays or 
expenditures, and income.
    (3) Internal control. Effective control and accountability must be 
maintained for all grant and subgrant cash, real and personal property, 
and other assets. Grantees and subgrantees must adequately safeguard all 
such property and must assure that it is used solely for authorized 
purposes.
    (4) Budget control. Actual expenditures or outlays must be compared 
with budgeted amounts for each grant or subgrant. Financial information 
must be related to performance or productivity data, including the 
development of unit cost information whenever appropriate or 
specifically required in the grant or subgrant agreement. If unit cost 
data are required, estimates based on available documentation will be 
accepted whenever possible.
    (5) Allowable cost. Applicable OMB cost principles, agency program 
regulations, and the terms of grant and subgrant agreements will be 
followed in determining the reasonableness, allowability, and 
allocability of costs.
    (6) Source documentation. Accounting records must be supported by 
such source documentation as cancelled checks, paid bills, payrolls, 
time and

[[Page 48]]

attendance records, contract and subgrant award documents, etc.
    (7) Cash management. Procedures for minimizing the time elapsing 
between the transfer of funds from the U.S. Treasury and disbursement by 
grantees and subgrantees must be followed whenever advance payment 
procedures are used. Grantees must establish reasonable procedures to 
ensure the receipt of reports on subgrantees' cash balances and cash 
disbursements in sufficient time to enable them to prepare complete and 
accurate cash transactions reports to the awarding agency. When advances 
are made by letter-of-credit or electronic transfer of funds methods, 
the grantee must make drawdowns as close as possible to the time of 
making disbursements. Grantees must monitor cash drawdowns by their 
subgrantees to assure that they conform substantially to the same 
standards of timing and amount as apply to advances to the grantees.
    (c) An awarding agency may review the adequacy of the financial 
management system of any applicant for financial assistance as part of a 
preaward review or at any time subsequent to award.



Sec. 602.21  Payment.

    (a) Scope. This section prescribes the basic standard and the 
methods under which a Federal agency will make payments to grantees, and 
grantees will make payments to subgrantees and contractors.
    (b) Basic standard. Methods and procedures for payment shall 
minimize the time elapsing between the transfer of funds and 
disbursement by the grantee or subgrantee, in accordance with Treasury 
regulations at 31 CFR part 205.
    (c) Advances. Grantees and subgrantees shall be paid in advance, 
provided they maintain or demonstrate the willingness and ability to 
maintain procedures to minimize the time elapsing between the transfer 
of the funds and their disbursement by the grantee or subgrantee.
    (d) Reimbursement. Reimbursement shall be the preferred method when 
the requirements in paragraph (c) of this section are not met. Grantees 
and subgrantees may also be paid by reimbursement for any construction 
grant. Except as otherwise specified in regulation, Federal agencies 
shall not use the percentage of completion method to pay construction 
grants. The grantee or subgrantee may use that method to pay its 
construction contractor, and if it does, the awarding agency's payments 
to the grantee or subgrantee will be based on the grantee's or 
subgrantee's actual rate of disbursement.
    (e) Working capital advances. If a grantee cannot meet the criteria 
for advance payments described in paragraph (c) of this section, and the 
Federal agency has determined that reimbursement is not feasible because 
the grantee lacks sufficient working capital, the awarding agency may 
provide cash or a working capital advance basis. Under this procedure 
the awarding agency shall advance cash to the grantee to cover its 
estimated disbursement needs for an initial period generally geared to 
the grantee's disbursing cycle. Thereafter, the awarding agency shall 
reimburse the grantee for its actual cash disbursements. The working 
capital advance method of payment shall not be used by grantees or 
subgrantees if the reason for using such method is the unwillingness or 
inability of the grantee to provide timely advances to the subgrantee to 
meet the subgrantee's actual cash disbursements.
    (f) Effect of program income, refunds, and audit recoveries on 
payment. (1) Grantees and subgrantees shall disburse repayments to and 
interest earned on a revolving fund before requesting additional cash 
payments for the same activity.
    (2) Except as provided in paragraph (f)(1) of this section, grantees 
and subgrantees shall disburse program income, rebates, refunds, 
contract settlements, audit recoveries and interest earned on such funds 
before requesting additional cash payments.
    (g) Withholding payments. (1) Unless otherwise required by Federal 
statute, awarding agencies shall not withhold payments for proper 
charges incurred by grantees or subgrantees unless--
    (i) The grantee or subgrantee has failed to comply with grant award 
conditions or

[[Page 49]]

    (ii) The grantee or subgrantee is indebted to the United States.
    (2) Cash withheld for failure to comply with grant award condition, 
but without suspension of the grant, shall be released to the grantee 
upon subsequent compliance. When a grant is suspended, payment 
adjustments will be made in accordance with Sec. 602.43(c).
    (3) A Federal agency shall not make payment to grantees for amounts 
that are withheld by grantees or subgrantees from payment to contractors 
to assure satisfactory completion of work. Payments shall be made by the 
Federal agency when the grantees or subgrantees actually disburse the 
withheld funds to the contractors or to escrow accounts established to 
assure satisfactory completion of work.
    (h) Cash depositories. (1) Consistent with the national goal of 
expanding the opportunities for minority business enterprises, grantees 
and subgrantees are encouraged to use minority banks (a bank which is 
owned at least 50 percent by minority group members). A list of minority 
owned banks can be obtained from the Minority Business Development 
Agency, Department of Commerce, Washington, DC 20230.
    (2) A grantee or subgrantee shall maintain a separate bank account 
only when required by Federal-State agreement.
    (i) Interest earned on advances. Except for interest earned on 
advances of funds exempt under the Intergovernmental Cooperation Act (31 
U.S.C. 6501 et seq.) and the Indian Self-Determination Act (23 U.S.C. 
450), grantees and subgrantees shall promptly, but at least quarterly, 
remit interest earned on advances to the Federal agency. The grantee or 
subgrantee may keep interest amounts up to $100 per year for 
administrative expenses.



Sec. 602.22  Allowable costs.

    (a) Limitation on use of funds. Grant funds may be used only for:
    (1) The allowable costs of the grantees, subgrantees and cost-type 
contractors, including allowable costs in the form of payments to fixed-
price contractors; and
    (2) Reasonable fees or profit to cost-type contractors but not any 
fee or profit (or other increment above allowable costs) to the grantee 
or subgrantee.
    (b) Applicable cost principles. For each kind of organization, there 
is a set of Federal principles for determining allowable costs. 
Allowable costs will be determined in accordance with the cost 
principles applicable to the organization incurring the costs. The 
following chart lists the kinds of organizations and the applicable cost 
principles.

------------------------------------------------------------------------
           For the costs of a--                Use the principles in--
------------------------------------------------------------------------
State, local or Indian tribal government..  OMB Circular A-87.
Private nonprofit organization other than   OMB Circular A-122.
 an (1) institution of higher education,
 (2) hospital, or (3) organization named
 in OMB Circular A-122 as not subject to
 that circular.
Educational institutions..................  OMB Circular A-21.
For-profit organization other than a        48 CFR part 31. Contract
 hospital and an organization named in OBM   Cost Principles and
 Circular A-122 as not subject to that       Procedures, or uniform cost
 circular.                                   accounting standards that
                                             comply with cost principles
                                             acceptable to the Federal
                                             agency.
------------------------------------------------------------------------



Sec. 602.23  Period of availability of funds.

    (a) General. Where a funding period is specified, a grantee may 
charge to the award only costs resulting from obligations of the funding 
period unless carryover of unobligated balances is permitted, in which 
case the carryover balances may be charged for costs resulting from 
obligations of the subsequent funding period.
    (b) Liquidation of obligations. A grantee must liquidate all 
obligations incurred under the award not later than 90 days after the 
end of the funding period (or as specified in a program regulation) to 
coincide with the submission of the annual Financial Status Report (SF-
269). The Federal agency may extend this deadline at the request of the 
grantee.



Sec. 602.24  Matching or cost sharing.

    (a) Basic rule: Costs and contributions acceptable. With the 
qualifications and exceptions listed in paragraph (b) of this section, a 
matching or cost sharing requirement may be satisfied by either or both 
of the following:

[[Page 50]]

    (1) Allowable costs incurred by the grantee, subgrantee or a cost-
type contractor under the assistance agreement. This includes allowable 
costs borne by non-Federal grants or by others cash donations from non-
Federal third parties.
    (2) The value of third party in-kind contributions applicable to the 
period to which the cost sharing or matching requirements applies.
    (b) Qualifications and exceptions--(1) Costs borne by other Federal 
grant agreements. Except as provided by Federal statute, a cost sharing 
or matching requirement may not be met by costs borne by another Federal 
grant. This prohibition does not apply to income earned by a grantee or 
subgrantee from a contract awarded under another Federal grant.
    (2) General revenue sharing. For the purpose of this section, 
general revenue sharing funds distributed under 31 U.S.C. 6702 are not 
considered Federal grant funds.
    (3) Cost or contributions counted towards other Federal costs-
sharing requirements. Neither costs nor the values of third party in-
kind contributions may count towards satisfying a cost sharing or 
matching requirement of a grant agreement if they have been or will be 
counted towards satisfying a cost sharing or matching requirement of 
another Federal grant agreement, a Federal procurement contract, or any 
other award of Federal funds.
    (4) Costs financed by program income. Costs financed by program 
income, as defined in Sec. 602.25, shall not count towards satisfying a 
cost sharing or matching requirement unless they are expressly permitted 
in the terms of the assistance agreement. (This use of general program 
income is described in Sec. 602.25(g).)
    (5) Services or property financed by income earned by contractors. 
Contractors under a grant may earn income from the activities carried 
out under the contract in addition to the amounts earned from the party 
awarding the contract. No costs of services or property supported by 
this income may count toward satisfying a cost sharing or matching 
requirement unless other provisions of the grant agreement expressly 
permit this kind of income to be used to meet the requirement.
    (6) Records. Costs and third party in-kind contributions counting 
towards satisfying a cost sharing or matching requirement must be 
verifiable from the records of grantees and subgrantee or cost-type 
contractors. These records must show how the value placed on third party 
in-kind contributions was derived. To the extent feasible, volunteer 
services will be supported by the same methods that the organization 
uses to support the allocability of regular personnel costs.
    (7) Special standards for third party in-kind contributions. (i) 
Third party in-kind contributions count towards satisfying a cost 
sharing or matching requirement only where, if the party receiving the 
contributions were to pay for them, the payments would be allowable 
costs.
    (ii) Some third party in-kind contributions are goods and services 
that, if the grantee, subgrantee, or contractor receiving the 
contribution had to pay for them, the payments would have been an 
indirect costs. Costs sharing or matching credit for such contributions 
shall be given only if the grantee, subgrantee, or contractor has 
established, along with its regular indirect cost rate, a special rate 
for allocating to individual projects or programs the value of the 
contributions.
    (iii) A third party in-kind contribution to a fixed-price contract 
may count towards satisfying a cost sharing or matching requirement only 
if it results in:
    (A) An increase in the services or property provided under the 
contract (without additional cost to the grantee or subgrantee) or
    (B) A cost savings to the grantee or subgrantee.
    (iv) The values placed on third party in-kind contributions for cost 
sharing or matching purposes will conform to the rules in the succeeding 
sections of this part. If a third party in-kind contribution is a type 
not treated in those sections, the value placed upon it shall be fair 
and reasonable.

[[Page 51]]

    (c) Valuation of donated services--(1) Volunteer services. Unpaid 
services provided to a grantee or subgrantee by individuals will be 
valued at rates consistent with those ordinarily paid for similar work 
in the grantee's or subgrantee's organization. If the grantee or 
subgrantee does not have employees performing similar work, the rates 
will be consistent with those ordinarily paid by other employers for 
similar work in the same labor market. In either case, a reasonable 
amount for fringe benefits may be included in the valuation.
    (2) Employees of other organizations. When an employer other than a 
grantee, subgrantee, or cost-type contractor furnishes free of charge 
the services of an employee in the employee's normal line of work, the 
services will be valued at the employee's regular rate of pay exclusive 
of the employee's fringe benefits and overhead costs. If the services 
are in a different line of work, paragraph (c)(1) of this section 
applies.
    (d) Valuation of third party donated supplies and loaned equipment 
or space. (1) If a third party donates supplies, the contribution will 
be valued at the market value of the supplies at the time of donation.
    (2) If a third party donates the use of equipment or space in a 
building but retains title, the contribution will be valued at the fair 
rental rate of the equipment or space.
    (e) Valuation of third party donated equipment, buildings, and land. 
If a third party donates equipment, buildings, or land, and title passes 
to a grantee or subgrantee, the treatment of the donated property will 
depend upon the purpose of the grant or subgrant, as follows:
    (1) Awards for capital expenditures. If the purpose of the grant or 
subgrant is to assist the grantee or subgrantee in the acquisition of 
property, the market value of that property at the time of donation may 
be counted as cost sharing or matching,
    (2) Other awards. If assisting in the acquisition of property is not 
the purpose of the grant or subgrant, paragraphs (e)(2) (i) and (ii) of 
this section apply:
    (i) If approval is obtained from the awarding agency, the market 
value at the time of donation of the donated equipment or buildings and 
the fair rental rate of the donated land may be counted as cost sharing 
or matching. In the case of a subgrant, the terms of the grant agreement 
may require that the approval be obtained from the Federal agency as 
well as the grantee. In all cases, the approval may be given only if a 
purchase of the equipment or rental of the land would be approved as an 
allowable direct cost. If any part of the donated property was acquired 
with Federal funds, only the non-federal share of the property may be 
counted as cost-sharing or matching.
    (ii) If approval is not obtained under paragraph (e)(2)(i) of this 
section, no amount may be counted for donated land, and only 
depreciation or use allowances may be counted for donated equipment and 
buildings. The depreciation or use allowances for this property are not 
treated as third party in-kind contributions. Instead, they are treated 
as costs incurred by the grantee or subgrantee. They are computed and 
allocated (usually as indirect costs) in accordance with the cost 
principles specified in Sec. 602.22, in the same way as depreciation or 
use allowances for purchased equipment and buildings. The amount of 
depreciation or use allowances for donated equipment and buildings is 
based on the property's market value at the time it was donated.
    (f) Valuation of grantee or subgrantee donated real property for 
construction/acquisition. If a grantee or subgrantee donates real 
property for a construction or facilities acquisition project, the 
current market value of that property may be counted as cost sharing or 
matching. If any part of the donated property was acquired with Federal 
funds, only the non-federal share of the property may be counted as cost 
sharing or matching.
    (g) Appraisal of real property. In some cases under paragraphs (d), 
(e) and (f) of this section, it will be necessary to establish the 
market value of land or a building or the fair rental rate of land or of 
space in a building. In these cases, the Federal agency may require the 
market value or fair rental value be set by an independent appraiser, 
and that the value or rate be certified by the

[[Page 52]]

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



Sec. 602.25  Program income.

    (a) General. Grantees are encouraged to earn income to defray 
program costs. Program income includes income from fees for services 
performed, from the use or rental of real or personal property acquired 
with grant funds, from the sale of commodities or items fabricated under 
a grant agreement, and from payments of principal and interest on loans 
made with grant funds. Except as otherwise provided in regulations of 
the Federal agency, program income does not include interest on grant 
funds, rebates, credits, discounts, refunds, etc. and interest earned on 
any of them.
    (b) Definition of program income. Program income means gross income 
received by the grantee or subgrantee directly generated by a grant 
supported activity, or earned only as a result of the grant agreement 
during the grant period. ``During the grant period'' is the time between 
the effective date of the award and the ending date of the award 
reflected in the final financial report.
    (c) Cost of generating program income. If authorized by Federal 
regulations or the grant agreement, costs incident to the generation of 
program income may be deducted from gross income to determine program 
income.
    (d) Governmental revenues. Taxes, special assessments, levies, 
fines, and other such revenues raised by a grantee or subgrantee are not 
program income unless the revenues are specifically identified in the 
grant agreement or Federal agency regulations as program income.
    (e) Royalties. Income from royalties and license fees for 
copyrighted material, patents, and inventions developed by a grantee or 
subgrantee is program income only if the revenues are specifically 
identified in the grant agreement or Federal agency regulations as 
program income. (See Sec. 602.34.)
    (f) Property. Proceeds from the sale of real property or equipment 
will be handled in accordance with the requirements of Sec. Sec. 602.31 
and 602.32.
    (g) Use of program income. Program income shall be deducted from 
outlays which may be both Federal and non-Federal as described below, 
unless the Federal agency regulations or the grant agreement specify 
another alternative (or a combination of the alternatives). In 
specifying alternatives, the Federal agency may distinguish between 
income earned by the grantee and income earned by subgrantees and 
between the sources, kinds, or amounts of income. When Federal agencies 
authorize the alternatives in paragraphs (g) (2) and (3) of this 
section, program income in excess of any limits stipulated shall also be 
deducted from outlays.
    (1) Deduction. Ordinarily program income shall be deducted from 
total allowable costs to determine the net allowable costs. Program 
income shall be used for current costs unless the Federal agency 
authorizes otherwise. Program income which the grantee did not 
anticipate at the time of the award shall be used to reduce the Federal 
agency and grantee contributions rather than to increase the funds 
committed to the project.
    (2) Addition. When authorized, program income may be added to the 
funds committed to the grant agreement by the Federal agency and the 
grantee. The program income shall be used for the purposes and under the 
conditions of the grant agreement.
    (3) Cost sharing or matching. When authorized, program income may be 
used to meet the cost sharing or matching requirement of the grant 
agreement. The amount of the Federal grant award remains the same.
    (h) Income after the award period. There are no Federal requirements 
governing the disposition of program income earned after the end of the 
award period (i.e., until the ending date of the final financial report, 
see paragraph (a) of this section), unless the terms of the agreement or 
the Federal agency regulations provide otherwise.



Sec. 602.26  Non-Federal audit.

    (a) Basic rule. Grantees and subgrantees are responsible for 
obtaining audits in accordance with the Single Audit Act Amendments of 
1996 (31 U.S.C. 7501-7507) and revised OMB Circular A-133, ``Audits of 
States, Local

[[Page 53]]

Governments, and Non-Profit Organizations.'' The audits shall be made by 
an independent auditor in accordance with generally accepted government 
auditing standards covering financial audits.
    (b) Subgrantees. State or local governments, as those terms are 
defined for purposes of the Single Audit Act Amendments of 1996, that 
provide Federal awards to a subgrantee, which expends $300,000 or more 
(or other amount as specified by OMB) in Federal awards in a fiscal 
year, shall:
    (1) Determine whether State or local subgrantees have met the audit 
requirements of the Act and whether subgrantees covered by OMB Circular 
A-110, ``Uniform Administrative Requirements for Grants and Agreements 
with Institutions of Higher Education, Hospitals, and Other Non-Profit 
Organizations,'' have met the audit requirements of the Act. Commercial 
contractors (private for-profit and private and governmental 
organizations) providing goods and services to State and local 
governments are not required to have a single audit performed. State and 
local governments should use their own procedures to ensure that the 
contractor has complied with laws and regulations affecting the 
expenditure of Federal funds;
    (2) Determine whether the subgrantee spent Federal assistance funds 
provided in accordance with applicable laws and regulations. This may be 
accomplished by reviewing an audit of the subgrantee made in accordance 
with the Act, Circular A-110, or through other means (e.g., program 
reviews) if the subgrantee has not had such an audit;
    (3) Ensure that appropriate corrective action is taken within six 
months after receipt of the audit report in instance of noncompliance 
with Federal laws and regulations;
    (4) Consider whether subgrantee audits necessitate adjustment of the 
grantee's own records; and
    (5) Require each subgrantee to permit independent auditors to have 
access to the records and financial statements.
    (c) Auditor selection. In arranging for audit services, Sec. 602.36 
shall be followed.

[53 FR 8080, 8087, Mar. 11, 1988, as amended at 62 FR 45939, 45946, Aug. 
29, 1997]

                    Changes, Property, and Subawards



Sec. 602.30  Changes.

    (a) General. Grantees and subgrantees are permitted to rebudget 
within the approved direct cost budget to meet unanticipated 
requirements and may make limited program changes to the approved 
project. However, unless waived by the awarding agency, certain types of 
post-award changes in budgets and projects shall require the prior 
written approval of the awarding agency.
    (b) Relation to cost principles. The applicable cost principles (see 
Sec. 602.22) contain requirements for prior approval of certain types 
of costs. Except where waived, those requirements apply to all grants 
and subgrants even if paragraphs (c) through (f) of this section do not.
    (c) Budget changes--(1) Nonconstruction projects. Except as stated 
in other regulations or an award document, grantees or subgrantees shall 
obtain the prior approval of the awarding agency whenever any of the 
following changes is anticipated under a nonconstruction award:
    (i) Any revision which would result in the need for additional 
funding.
    (ii) Unless waived by the awarding agency, cumulative transfers 
among direct cost categories, or, if applicable, among separately 
budgeted programs, projects, functions, or activities which exceed or 
are expected to exceed ten percent of the current total approved budget, 
whenever the awarding agency's share exceeds $100,000.
    (iii) Transfer of funds allotted for training allowances (i.e., from 
direct payments to trainees to other expense categories).
    (2) Construction projects. Grantees and subgrantees shall obtain 
prior written approval for any budget revision which would result in the 
need for additional funds.
    (3) Combined construction and nonconstruction projects. When a grant 
or subgrant provides funding for both construction and nonconstruction 
activities, the grantee or subgrantee must obtain prior written approval 
from the awarding agency before making any

[[Page 54]]

fund or budget transfer from nonconstruction to construction or vice 
versa.
    (d) Programmatic changes. Grantees or subgrantees must obtain the 
prior approval of the awarding agency whenever any of the following 
actions is anticipated:
    (1) Any revision of the scope or objectives of the project 
(regardless of whether there is an associated budget revision requiring 
prior approval).
    (2) Need to extend the period of availability of funds.
    (3) Changes in key persons in cases where specified in an 
application or a grant award. In research projects, a change in the 
project director or principal investigator shall always require approval 
unless waived by the awarding agency.
    (4) Under nonconstruction projects, contracting out, subgranting (if 
authorized by law) or otherwise obtaining the services of a third party 
to perform activities which are central to the purposes of the award. 
This approval requirement is in addition to the approval requirements of 
Sec. 602.36 but does not apply to the procurement of equipment, 
supplies, and general support services.
    (e) Additional prior approval requirements. The awarding agency may 
not require prior approval for any budget revision which is not 
described in paragraph (c) of this section.
    (f) Requesting prior approval. (1) A request for prior approval of 
any budget revision will be in the same budget formal the grantee used 
in its application and shall be accompanied by a narrative justification 
for the proposed revision.
    (2) A request for a prior approval under the applicable Federal cost 
principles (see Sec. 602.22) may be made by letter.
    (3) A request by a subgrantee for prior approval will be addressed 
in writing to the grantee. The grantee will promptly review such request 
and shall approve or disapprove the request in writing. A grantee will 
not approve any budget or project revision which is inconsistent with 
the purpose or terms and conditions of the Federal grant to the grantee. 
If the revision, requested by the subgrantee would result in a change to 
the grantee's approved project which requires Federal prior approval, 
the grantee will obtain the Federal agency's approval before approving 
the subgrantee's request.



Sec. 602.31  Real property.

    (a) Title. Subject to the obligations and conditions set forth in 
this section, title to real property acquired under a grant or subgrant 
will vest upon acquisition in the grantee or subgrantee respectively.
    (b) Use. Except as otherwise provided by Federal statutes, real 
property will be used for the originally authorized purposes as long as 
needed for that purposes, and the grantee or subgrantee shall not 
dispose of or encumber its title or other interests.
    (c) Disposition. When real property is no longer needed for the 
originally authorized purpose, the grantee or subgrantee will request 
disposition instructions from the awarding agency. The instructions will 
provide for one of the following alternatives:
    (1) Retention of title. Retain title after compensating the awarding 
agency. The amount paid to the awarding agency will be computed by 
applying the awarding agency's percentage of participation in the cost 
of the original purchase to the fair market value of the property. 
However, in those situations where a grantee or subgrantee is disposing 
of real property acquired with grant funds and acquiring replacement 
real property under the same program, the net proceeds from the 
disposition may be used as an offset to the cost of the replacement 
property.
    (2) Sale of property. Sell the property and compensate the awarding 
agency. The amount due to the awarding agency will be calculated by 
applying the awarding agency's percentage of participation in the cost 
of the original purchase to the proceeds of the sale after deduction of 
any actual and reasonable selling and fixing-up expenses. If the grant 
is still active, the net proceeds from sale may be offset against the 
original cost of the property. When a grantee or subgrantee is directed 
to sell property, sales procedures shall be followed that provide for 
competition to the extent practicable and result in the highest possible 
return.

[[Page 55]]

    (3) Transfer of title. Transfer title to the awarding agency or to a 
third-party designated/approved by the awarding agency. The grantee or 
subgrantee shall be paid an amount calculated by applying the grantee or 
subgrantee's percentage of participation in the purchase of the real 
property to the current fair market value of the property.



Sec. 602.32  Equipment.

    (a) Title. Subject to the obligations and conditions set forth in 
this section, title to equipment acquired under a grant or subgrant will 
vest upon acquisition in the grantee or subgrantee respectively.
    (b) States. A State will use, manage, and dispose of equipment 
acquired under a grant by the State in accordance with State laws and 
procedures. Other grantees and subgrantees will follow paragraphs (c) 
through (e) of this section.
    (c) Use. (1) Equipment shall be used by the grantee or subgrantee in 
the program or project for which it was acquired as long as needed, 
whether or not the project or program continues to be supported by 
Federal funds. When no longer needed for the original program or 
project, the equipment may be used in other activities currently or 
previously supported by a Federal agency.
    (2) The grantee or subgrantee shall also make equipment available 
for use on other projects or programs currently or previously supported 
by the Federal Government, providing such use will not interfere with 
the work on the projects or program for which it was originally 
acquired. First preference for other use shall be given to other 
programs or projects supported by the awarding agency. User fees should 
be considered if appropriate.
    (3) Notwithstanding the encouragement in Sec. 602.25(a) to earn 
program income, the grantee or subgrantee must not use equipment 
acquired with grant funds to provide services for a fee to compete 
unfairly with private companies that provide equivalent services, unless 
specifically permitted or contemplated by Federal statute.
    (4) When acquiring replacement equipment, the grantee or subgrantee 
may use the equipment to be replaced as a trade-in or sell the property 
and use the proceeds to offset the cost of the replacement property, 
subject to the approval of the awarding agency.
    (d) Management requirements. Procedures for managing equipment 
(including replacement equipment), whether acquired in whole or in part 
with grant funds, until disposition takes place will, as a minimum, meet 
the following requirements:
    (1) Property records must be maintained that include a description 
of the property, a serial number or other identification number, the 
source of property, who holds title, the acquisition date, and cost of 
the property, percentage of Federal participation in the cost of the 
property, the location, use and condition of the property, and any 
ultimate disposition data including the date of disposal and sale price 
of the property.
    (2) A physical inventory of the property must be taken and the 
results reconciled with the property records at least once every two 
years.
    (3) A control system must be developed to ensure adequate safeguards 
to prevent loss, damage, or theft of the property. Any loss, damage, or 
theft shall be investigated.
    (4) Adequate maintenance procedures must be developed to keep the 
property in good condition.
    (5) If the grantee or subgrantee is authorized or required to sell 
the property, proper sales procedures must be established to ensure the 
highest possible return.
    (e) Disposition. When original or replacement equipment acquired 
under a grant or subgrant is no longer needed for the original project 
or program or for other activities currently or previously supported by 
a Federal agency, disposition of the equipment will be made as follows:
    (1) Items of equipment with a current per-unit fair market value of 
less than $5,000 may be retained, sold or otherwise disposed of with no 
further obligation to the awarding agency.
    (2) Items of equipment with a current per unit fair market value in 
excess of $5,000 may be retained or sold and the awarding agency shall 
have a right to an amount calculated by multiplying

[[Page 56]]

the current market value or proceeds from sale by the awarding agency's 
share of the equipment.
    (3) In cases where a grantee or subgrantee fails to take appropriate 
disposition actions, the awarding agency may direct the grantee or 
subgrantee to take excess and disposition actions.
    (f) Federal equipment. In the event a grantee or subgrantee is 
provided federally-owned equipment:
    (1) Title will remain vested in the Federal Government.
    (2) Grantees or subgrantees will manage the equipment in accordance 
with Federal agency rules and procedures, and submit an annual inventory 
listing.
    (3) When the equipment is no longer needed, the grantee or 
subgrantee will request disposition instructions from the Federal 
agency.
    (g) Right to transfer title. The Federal awarding agency may reserve 
the right to transfer title to the Federal Government or a third part 
named by the awarding agency when such a third party is otherwise 
eligible under existing statutes. Such transfers shall be subject to the 
following standards:
    (1) The property shall be identified in the grant or otherwise made 
known to the grantee in writing.
    (2) The Federal awarding agency shall issue disposition instruction 
within 120 calendar days after the end of the Federal support of the 
project for which it was acquired. If the Federal awarding agency fails 
to issue disposition instructions within the 120 calendar-day period the 
grantee shall follow Sec. 602.32(e).
    (3) When title to equipment is transferred, the grantee shall be 
paid an amount calculated by applying the percentage of participation in 
the purchase to the current fair market value of the property.



Sec. 602.33  Supplies.

    (a) Title. Title to supplies acquired under a grant or subgrant will 
vest, upon acquisition, in the grantee or subgrantee respectively.
    (b) Disposition. If there is a residual inventory of unused supplies 
exceeding $5,000 in total aggregate fair market value upon termination 
or completion of the award, and if the supplies are not needed for any 
other federally sponsored programs or projects, the grantee or 
subgrantee shall compensate the awarding agency for its share.



Sec. 602.34  Copyrights.

    The Federal awarding agency reserves a royalty-free, nonexclusive, 
and irrevocable license to reproduce, publish or otherwise use, and to 
authorize others to use, for Federal Government purposes:
    (a) The copyright in any work developed under a grant, subgrant, or 
contract under a grant or subgrant; and
    (b) Any rights of copyright to which a grantee, subgrantee or a 
contractor purchases ownership with grant support.



Sec. 602.35  Subawards to debarred and suspended parties.

    Grantees and subgrantees must not make any award or permit any award 
(subgrant or contract) at any tier to any party which is debarred or 
suspended or is otherwise excluded from or ineligible for participation 
in Federal assistance programs under Executive Order 12549, ``Debarment 
and Suspension.''



Sec. 602.36  Procurement.

    (a) States. When procuring property and services under a grant, a 
State will follow the same policies and procedures it uses for 
procurements from its non-Federal funds. The State will ensure that 
every purchase order or other contract includes any clauses required by 
Federal statutes and executive orders and their implementing 
regulations. Other grantees and subgrantees will follow paragraphs (b) 
through (i) in this section.
    (b) Procurement standards. (1) Grantees and subgrantees will use 
their own procurement procedures which reflect applicable State and 
local laws and regulations, provided that the procurements conform to 
applicable Federal law and the standards identified in this section.
    (2) Grantees and subgrantees will maintain a contract administration 
system which ensures that contractors perform in accordance with the 
terms,

[[Page 57]]

conditions, and specifications of their contracts or purchase orders.
    (3) Grantees and subgrantees will maintain a written code of 
standards of conduct governing the performance of their employees 
engaged in the award and administration of contracts. No employee, 
officer or agent of the grantee or subgrantee shall participate in 
selection, or in the award or administration of a contract supported by 
Federal funds if a conflict of interest, real or apparent, would be 
involved. Such a conflict would arise when:
    (i) The employee, officer or agent,
    (ii) Any member of his immediate family,
    (iii) His or her partner, or
    (iv) An organization which employs, or is about to employ, any of 
the above, has a financial or other interest in the firm selected for 
award. The grantee's or subgrantee's officers, employees or agents will 
neither solicit nor accept gratuities, favors or anything of monetary 
value from contractors, potential contractors, or parties to 
subagreements. Grantee and subgrantees may set minimum rules where the 
financial interest is not substantial or the gift is an unsolicited item 
of nominal intrinsic value. To the extent permitted by State or local 
law or regulations, such standards or conduct will provide for 
penalties, sanctions, or other disciplinary actions for violations of 
such standards by the grantee's and subgrantee's officers, employees, or 
agents, or by contractors or their agents. The awarding agency may in 
regulation provide additional prohibitions relative to real, apparent, 
or potential conflicts of interest.
    (4) Grantee and subgrantee procedures will provide for a review of 
proposed procurements to avoid purchase of unnecessary or duplicative 
items. Consideration should be given to consolidating or breaking out 
procurements to obtain a more economical purchase. Where appropriate, an 
analysis will be made of lease versus purchase alternatives, and any 
other appropriate analysis to determine the most economical approach.
    (5) To foster greater economy and efficiency, grantees and 
subgrantees are encouraged to enter into State and local 
intergovernmental agreements for procurement or use of common goods and 
services.
    (6) Grantees and subgrantees are encouraged to use Federal excess 
and surplus property in lieu of purchasing new equipment and property 
whenever such use is feasible and reduces project costs.
    (7) Grantees and subgrantees are encouraged to use value engineering 
clauses in contracts for construction projects of sufficient size to 
offer reasonable opportunities for cost reductions. Value engineering is 
a systematic and creative analysis of each contract item or task to 
ensure that its essential function is provided at the overall lower 
cost.
    (8) Grantees and subgrantees will make awards only to responsible 
contractors possessing the ability to perform successfully under the 
terms and conditions of a proposed procurement. Consideration will be 
given to such matters as contractor integrity, compliance with public 
policy, record of past performance, and financial and technical 
resources.
    (9) Grantees and subgrantees will maintain records sufficient to 
detail the significant history of a procurement. These records will 
include, but are not necessarily limited to the following: rationale for 
the method of procurement, selection of contract type, contractor 
selection or rejection, and the basis for the contract price.
    (10) Grantees and subgrantees will use time and material type 
contracts only--
    (i) After a determination that no other contract is suitable, and
    (ii) If the contract includes a ceiling price that the contractor 
exceeds at its own risk.
    (11) Grantees and subgrantees alone will be responsible, in 
accordance with good administrative practice and sound business 
judgment, for the settlement of all contractual and administrative 
issues arising out of procurements. These issues include, but are not 
limited to source evaluation, protests, disputes, and claims. These 
standards do not relieve the grantee or subgrantee of any contractual 
responsibilities under its contracts. Federal agencies will not 
substitute their judgment for

[[Page 58]]

that of the grantee or subgrantee unless the matter is primarily a 
Federal concern. Violations of law will be referred to the local, State, 
or Federal authority having proper jurisdiction.
    (12) Grantees and subgrantees will have protest procedures to handle 
and resolve disputes relating to their procurements and shall in all 
instances disclose information regarding the protest to the awarding 
agency. A protestor must exhaust all administrative remedies with the 
grantee and subgrantee before pursuing a protest with the Federal 
agency. Reviews of protests by the Federal agency will be limited to:
    (i) Violations of Federal law or regulations and the standards of 
this section (violations of State or local law will be under the 
jurisdiction of State or local authorities) and
    (ii) Violations of the grantee's or subgrantee's protest procedures 
for failure to review a complaint or protest. Protests received by the 
Federal agency other than those specified above will be referred to the 
grantee or subgrantee.
    (c) Competition. (1) All procurement transactions will be conducted 
in a manner providing full and open competition consistent with the 
standards of Sec. 602.36. Some of the situations considered to be 
restrictive of competition include but are not limited to:
    (i) Placing unreasonable requirements on firms in order for them to 
qualify to do business,
    (ii) Requiring unnecessary experience and excessive bonding,
    (iii) Noncompetitive pricing practices between firms or between 
affiliated companies,
    (iv) Noncompetitive awards to consultants that are on retainer 
contracts,
    (v) Organizational conflicts of interest,
    (vi) Specifying only a ``brand name'' product instead of allowing 
``an equal'' product to be offered and describing the performance of 
other relevant requirements of the procurement, and
    (vii) Any arbitrary action in the procurement process.
    (2) Grantees and subgrantees will conduct procurements in a manner 
that prohibits the use of statutorily or administratively imposed in-
State or local geographical preferences in the evaluation of bids or 
proposals, except in those cases where applicable Federal statutes 
expressly mandate or encourage geographic preference. Nothing in this 
section preempts State licensing laws. When contracting for 
architectural and engineering (A/E) services, geographic location may be 
a selection criteria provided its application leaves an appropriate 
number of qualified firms, given the nature and size of the project, to 
compete for the contract.
    (3) Grantees will have written selection procedures for procurement 
transactions. These procedures will ensure that all solicitations:
    (i) Incorporate a clear and accurate description of the technical 
requirements for the material, product, or service to be procured. Such 
description shall not, in competitive procurements, contain features 
which unduly restrict competition. The description may include a 
statement of the qualitative nature of the material, product or service 
to be procured, and when necessary, shall set forth those minimum 
essential characteristics and standards to which it must conform if it 
is to satisfy its intended use. Detailed product specifications should 
be avoided if at all possible. When it is impractical or uneconomical to 
make a clear and accurate description of the technical requirements, a 
``brand name or equal'' description may be used as a means to define the 
performance or other salient requirements of a procurement. The specific 
features of the named brand which must be met by offerors shall be 
clearly stated; and
    (ii) Identify all requirements which the offerors must fulfill and 
all other factors to be used in evaluating bids or proposals.
    (4) Grantees and subgrantees will ensure that all prequalified lists 
of persons, firms, or products which are used in acquiring goods and 
services are current and include enough qualified sources to ensure 
maximum open and free competition. Also, grantees and subgrantees will 
not preclude potential bidders from qualifying during the solicitation 
period.
    (d) Methods of procurement to be followed--(1) Procurement by small 
purchase procedures. Small purchase procedures

[[Page 59]]

are those relatively simple and informal procurement methods for 
securing services, supplies, or other property that do not cost more 
than the simplified acquisition threshold fixed at 41 U.S.C. 403(11) 
(currently set at $100,000). If small purchase procedures are used, 
price or rate quotations shall be obtained from an adequate number of 
qualified sources.
    (2) Procurement by sealed bids (formal advertising). Bids are 
publicly solicited and a firm-fixed-price contract (lump sum or unit 
price) is awarded to the responsible bidder whose bid, conforming with 
all the material terms and conditions of the invitation for bids, is the 
lowest in price. The sealed bid method is the preferred method for 
procuring construction, if the conditions in Sec. 602.36(d)(2)(i) 
apply.
    (i) In order for sealed bidding to be feasible, the following 
conditions should be present:
    (A) A complete, adequate, and realistic specification or purchase 
description is available;
    (B) Two or more responsible bidders are willing and able to compete 
effectively and for the business; and
    (C) The procurement lends itself to a firm fixed price contract and 
the selection of the successful bidder can be made principally on the 
basis of price.
    (ii) If sealed bids are used, the following requirements apply:
    (A) The invitation for bids will be publicly advertised and bids 
shall be solicited from an adequate number of known suppliers, providing 
them sufficient time prior to the date set for opening the bids;
    (B) The invitation for bids, which will include any specifications 
and pertinent attachments, shall define the items or services in order 
for the bidder to properly respond;
    (C) All bids will be publicly opened at the time and place 
prescribed in the invitation for bids;
    (D) A firm fixed-price contract award will be made in writing to the 
lowest responsive and responsible bidder. Where specified in bidding 
documents, factors such as discounts, transportation cost, and life 
cycle costs shall be considered in determining which bid is lowest. 
Payment discounts will only be used to determine the low bid when prior 
experience indicates that such discounts are usually taken advantage of; 
and
    (E) Any or all bids may be rejected if there is a sound documented 
reason.
    (3) Procurement by competitive proposals. The technique of 
competitive proposals is normally conducted with more than one source 
submitting an offer, and either a fixed-price or cost-reimbursement type 
contract is awarded. It is generally used when conditions are not 
appropriate for the use of sealed bids. If this method is used, the 
following requirements apply:
    (i) Requests for proposals will be publicized and identify all 
evaluation factors and their relative importance. Any response to 
publicized requests for proposals shall be honored to the maximum extent 
practical;
    (ii) Proposals will be solicited from an adequate number of 
qualified sources;
    (iii) Grantees and subgrantees will have a method for conducting 
technical evaluations of the proposals received and for selecting 
awardees;
    (iv) Awards will be made to the responsible firm whose proposal is 
most advantageous to the program, with price and other factors 
considered; and
    (v) Grantees and subgrantees may use competitive proposal procedures 
for qualifications-based procurement of architectural/engineering (A/E) 
professional services whereby competitors' qualifications are evaluated 
and the most qualified competitor is selected, subject to negotiation of 
fair and reasonable compensation. The method, where price is not used as 
a selection factor, can only be used in procurement of A/E professional 
services. It cannot be used to purchase other types of services though 
A/E firms are a potential source to perform the proposed effort.
    (4) Procurement by noncompetitive proposals is procurement through 
solicitation of a proposal from only one source, or after solicitation 
of a number of sources, competition is determined inadequate.
    (i) Procurement by noncompetitive proposals may be used only when 
the award of a contract is infeasible under small purchase procedures, 
sealed bids

[[Page 60]]

or competitive proposals and one of the following circumstances applies:
    (A) The item is available only from a single source;
    (B) The public exigency or emergency for the requirement will not 
permit a delay resulting from competitive solicitation;
    (C) The awarding agency authorizes noncompetitive proposals; or
    (D) After solicitation of a number of sources, competition is 
determined inadequate.
    (ii) Cost analysis, i.e., verifying the proposed cost data, the 
projections of the data, and the evaluation of the specific elements of 
costs and profits, is required.
    (iii) Grantees and subgrantees may be required to submit the 
proposed procurement to the awarding agency for pre-award review in 
accordance with paragraph (g) of this section.
    (e) Contracting with small and minority firms, women's business 
enterprise and labor surplus area firms. (1) The grantee and subgrantee 
will take all necessary affirmative steps to assure that minority firms, 
women's business enterprises, and labor surplus area firms are used when 
possible.
    (2) Affirmative steps shall include:
    (i) Placing qualified small and minority businesses and women's 
business enterprises on solicitation lists;
    (ii) Assuring that small and minority businesses, and women's 
business enterprises are solicited whenever they are potential sources;
    (iii) Dividing total requirements, when economically feasible, into 
smaller tasks or quantities to permit maximum participation by small and 
minority business, and women's business enterprises;
    (iv) Establishing delivery schedules, where the requirement permits, 
which encourage participation by small and minority business, and 
women's business enterprises;
    (v) Using the services and assistance of the Small Business 
Administration, and the Minority Business Development Agency of the 
Department of Commerce; and
    (vi) Requiring the prime contractor, if subcontracts are to be let, 
to take the affirmative steps listed in paragraphs (e)(2) (i) through 
(v) of this section.
    (f) Contract cost and price. (1) Grantees and subgrantees must 
perform a cost or price analysis in connection with every procurement 
action including contract modifications. The method and degree of 
analysis is dependent on the facts surrounding the particular 
procurement situation, but as a starting point, grantees must make 
independent estimates before receiving bids or proposals. A cost 
analysis must be performed when the offeror is required to submit the 
elements of his estimated cost, e.g., under professional, consulting, 
and architectural engineering services contracts. A cost analysis will 
be necessary when adequate price competition is lacking, and for sole 
source procurements, including contract modifications or change orders, 
unless price reasonableness can be established on the basis of a catalog 
or market price of a commercial product sold in substantial quantities 
to the general public or based on prices set by law or regulation. A 
price analysis will be used in all other instances to determine the 
reasonableness of the proposed contract price.
    (2) Grantees and subgrantees will negotiate profit as a separate 
element of the price for each contract in which there is no price 
competition and in all cases where cost analysis is performed. To 
establish a fair and reasonable profit, consideration will be given to 
the complexity of the work to be performed, the risk borne by the 
contractor, the contractor's investment, the amount of subcontracting, 
the quality of its record of past performance, and industry profit rates 
in the surrounding geographical area for similar work.
    (3) Costs or prices based on estimated costs for contracts under 
grants will be allowable only to the extent that costs incurred or cost 
estimates included in negotiated prices are consistent with Federal cost 
principles (see Sec. 602.22). Grantees may reference their own cost 
principles that comply with the applicable Federal cost principles.
    (4) The cost plus a percentage of cost and percentage of 
construction cost methods of contracting shall not be used.

[[Page 61]]

    (g) Awarding agency review. (1) Grantees and subgrantees must make 
available, upon request of the awarding agency, technical specifications 
on proposed procurements where the awarding agency believes such review 
is needed to ensure that the item and/or service specified is the one 
being proposed for purchase. This review generally will take place prior 
to the time the specification is incorporated into a solicitation 
document. However, if the grantee or subgrantee desires to have the 
review accomplished after a solicitation has been developed, the 
awarding agency may still review the specifications, with such review 
usually limited to the technical aspects of the proposed purchase.
    (2) Grantees and subgrantees must on request make available for 
awarding agency pre-award review procurement documents, such as requests 
for proposals or invitations for bids, independent cost estimates, etc. 
when:
    (i) A grantee's or subgrantee's procurement procedures or operation 
fails to comply with the procurement standards in this section; or
    (ii) The procurement is expected to exceed the simplified 
acquisition threshold and is to be awarded without competition or only 
one bid or offer is received in response to a solicitation; or
    (iii) The procurement, which is expected to exceed the simplified 
acquisition threshold, specifies a ``brand name'' product; or
    (iv) The proposed award is more than the simplified acquisition 
threshold and is to be awarded to other than the apparent low bidder 
under a sealed bid procurement; or
    (v) A proposed contract modification changes the scope of a contract 
or increases the contract amount by more than the simplified acquisition 
threshold.
    (3) A grantee or subgrantee will be exempt from the pre-award review 
in paragraph (g)(2) of this section if the awarding agency determines 
that its procurement systems comply with the standards of this section.
    (i) A grantee or subgrantee may request that its procurement system 
be reviewed by the awarding agency to determine whether its system meets 
these standards in order for its system to be certified. Generally, 
these reviews shall occur where there is a continuous high-dollar 
funding, and third-party contracts are awarded on a regular basis.
    (ii) A grantee or subgrantee may self-certify its procurement 
system. Such self-certification shall not limit the awarding agency's 
right to survey the system. Under a self-certification procedure, 
awarding agencies may wish to rely on written assurances from the 
grantee or subgrantee that it is complying with these standards. A 
grantee or subgrantee will cite specific procedures, regulations, 
standards, etc., as being in compliance with these requirements and have 
its system available for review.
    (h) Bonding requirements. For construction or facility improvement 
contracts or subcontracts exceeding the simplified acquisition 
threshold, the awarding agency may accept the bonding policy and 
requirements of the grantee or subgrantee provided the awarding agency 
has made a determination that the awarding agency's interest is 
adequately protected. If such a determination has not been made, the 
minimum requirements shall be as follows:
    (1) A bid guarantee from each bidder equivalent to five percent of 
the bid price. The ``bid guarantee'' shall consist of a firm commitment 
such as a bid bond, certified check, or other negotiable instrument 
accompanying a bid as assurance that the bidder will, upon acceptance of 
his bid, execute such contractual documents as may be required within 
the time specified.
    (2) A performance bond on the part of the contractor for 100 percent 
of the contract price. A ``performance bond'' is one executed in 
connection with a contract to secure fulfillment of all the contractor's 
obligations under such contract.
    (3) A payment bond on the part of the contractor for 100 percent of 
the contract price. A ``payment bond'' is one executed in connection 
with a contract to assure payment as required by law of all persons 
supplying labor and material in the execution of the work provided for 
in the contract.

[[Page 62]]

    (i) Contract provisions. A grantee's and subgrantee's contracts must 
contain provisions in paragraph (i) of this section. Federal agencies 
are permitted to require changes, remedies, changed conditions, access 
and records retention, suspension of work, and other clauses approved by 
the Office of Federal Procurement Policy.
    (1) Administrative, contractual, or legal remedies in instances 
where contractors violate or breach contract terms, and provide for such 
sanctions and penalties as may be appropriate. (Contracts more than the 
simplified acquisition threshold)
    (2) Termination for cause and for convenience by the grantee or 
subgrantee including the manner by which it will be effected and the 
basis for settlement. (All contracts in excess of $10,000)
    (3) Compliance with Executive Order 11246 of September 24, 1965, 
entitled ``Equal Employment Opportunity,'' as amended by Executive Order 
11375 of October 13, 1967, and as supplemented in Department of Labor 
regulations (41 CFR chapter 60). (All construction contracts awarded in 
excess of $10,000 by grantees and their contractors or subgrantees)
    (4) Compliance with the Copeland ``Anti-Kickback'' Act (18 U.S.C. 
874) as supplemented in Department of Labor regulations (29 CFR Part 3). 
(All contracts and subgrants for construction or repair)
    (5) Compliance with the Davis-Bacon Act (40 U.S.C. 276a to 276a-7) 
as supplemented by Department of Labor regulations (29 CFR Part 5). 
(Construction contracts in excess of $2000 awarded by grantees and 
subgrantees when required by Federal grant program legislation)
    (6) Compliance with Sections 103 and 107 of the Contract Work Hours 
and Safety Standards Act (40 U.S.C. 327-330) as supplemented by 
Department of Labor regulations (29 CFR Part 5). (Construction contracts 
awarded by grantees and subgrantees in excess of $2000, and in excess of 
$2500 for other contracts which involve the employment of mechanics or 
laborers)
    (7) Notice of awarding agency requirements and regulations 
pertaining to reporting.
    (8) Notice of awarding agency requirements and regulations 
pertaining to patent rights with respect to any discovery or invention 
which arises or is developed in the course of or under such contract.
    (9) Awarding agency requirements and regulations pertaining to 
copyrights and rights in data.
    (10) Access by the grantee, the subgrantee, the Federal grantor 
agency, the Comptroller General of the United States, or any of their 
duly authorized representatives to any books, documents, papers, and 
records of the contractor which are directly pertinent to that specific 
contract for the purpose of making audit, examination, excerpts, and 
transcriptions.
    (11) Retention of all required records for three years after 
grantees or subgrantees make final payments and all other pending 
matters are closed.
    (12) Compliance with all applicable standards, orders, or 
requirements issued under section 306 of the Clean Air Act (42 U.S.C. 
1857(h)), section 508 of the Clean Water Act (33 U.S.C. 1368), Executive 
Order 11738, and Environmental Protection Agency regulations (40 CFR 
part 15). (Contracts, subcontracts, and subgrants of amounts in excess 
of $100,000)
    (13) Mandatory standards and policies relating to energy efficiency 
which are contained in the state energy conservation plan issued in 
compliance with the Energy Policy and Conservation Act (Pub. L. 94-163, 
89 Stat. 871).

[53 FR 8080, 8087 Mar. 11, 1988, as amended at 60 FR 19639, 19645, Apr. 
19, 1995]



Sec. 602.37  Subgrants.

    (a) States. States shall follow state law and procedures when 
awarding and administering subgrants (whether on a cost reimbursement or 
fixed amount basis) of financial assistance to local and Indian tribal 
governments. States shall:
    (1) Ensure that every subgrant includes any clauses required by 
Federal statute and executive orders and their implementing regulations;
    (2) Ensure that subgrantees are aware of requirements imposed upon 
them by Federal statute and regulation;

[[Page 63]]

    (3) Ensure that a provision for compliance with Sec. 602.42 is 
placed in every cost reimbursement subgrant; and
    (4) Conform any advances of grant funds to subgrantees substantially 
to the same standards of timing and amount that apply to cash advances 
by Federal agencies.
    (b) All other grantees. All other grantees shall follow the 
provisions of this part which are applicable to awarding agencies when 
awarding and administering subgrants (whether on a cost reimbursement or 
fixed amount basis) of financial assistance to local and Indian tribal 
governments. Grantees shall:
    (1) Ensure that every subgrant includes a provision for compliance 
with this part;
    (2) Ensure that every subgrant includes any clauses required by 
Federal statute and executive orders and their implementing regulations; 
and
    (3) Ensure that subgrantees are aware of requirements imposed upon 
them by Federal statutes and regulations.
    (c) Exceptions. By their own terms, certain provisions of this part 
do not apply to the award and administration of subgrants:
    (1) Section 602.10;
    (2) Section 602.11;
    (3) The letter-of-credit procedures specified in Treasury 
Regulations at 31 CFR part 205, cited in Sec. 602.21; and
    (4) Section 602.50.

              Reports, Records, Retention, and Enforcement



Sec. 602.40  Monitoring and reporting program performance.

    (a) Monitoring by grantees. Grantees are responsible for managing 
the day-to-day operations of grant and subgrant supported activities. 
Grantees must monitor grant and subgrant supported activities to assure 
compliance with applicable Federal requirements and that performance 
goals are being achieved. Grantee monitoring must cover each program, 
function or activity.
    (b) Nonconstruction performance reports. The Federal agency may, if 
it decides that performance information available from subsequent 
applications contains sufficient information to meet its programmatic 
needs, require the grantee to submit a performance report only upon 
expiration or termination of grant support. Unless waived by the Federal 
agency this report will be due on the same date as the final Financial 
Status Report.
    (1) Grantees shall submit annual performance reports unless the 
awarding agency requires quarterly or semi-annual reports. However, 
performance reports will not be required more frequently than quarterly. 
Annual reports shall be due 90 days after the grant year, quarterly or 
semi-annual reports shall be due 30 days after the reporting period. The 
final performance report will be due 90 days after the expiration or 
termination of grant support. If a justified request is submitted by a 
grantee, the Federal agency may extend the due date for any performance 
report. Additionally, requirements for unnecessary performance reports 
may be waived by the Federal agency.
    (2) Performance reports will contain, for each grant, brief 
information on the following:
    (i) A comparison of actual accomplishments to the objectives 
established for the period. Where the output of the project can be 
quantified, a computation of the cost per unit of output may be required 
if that information will be useful.
    (ii) The reasons for slippage if established objectives were not 
met.
    (iii) Additional pertinent information including, when appropriate, 
analysis and explanation of cost overruns or high unit costs.
    (3) Grantees will not be required to submit more than the original 
and two copies of performance reports.
    (4) Grantees will adhere to the standards in this section in 
prescribing performance reporting requirements for subgrantees.
    (c) Construction performance reports. For the most part, on-site 
technical inspections and certified percentage-of-completion data are 
relied on heavily by Federal agencies to monitor progress under 
construction grants and subgrants. The Federal agency will require 
additional formal performance reports only when considered necessary, 
and never more frequently than quarterly.

[[Page 64]]

    (d) Significant developments. Events may occur between the scheduled 
performance reporting dates which have significant impact upon the grant 
or subgrant supported activity. In such cases, the grantee must inform 
the Federal agency as soon as the following types of conditions become 
known:
    (1) Problems, delays, or adverse conditions which will materially 
impair the ability to meet the objective of the award. This disclosure 
must include a statement of the action taken, or contemplated, and any 
assistance needed to resolve the situation.
    (2) Favorable developments which enable meeting time schedules and 
objectives sooner or at less cost than anticipated or producing more 
beneficial results than originally planned.
    (e) Federal agencies may make site visits as warranted by program 
needs.
    (f) Waivers, extensions. (1) Federal agencies may waive any 
performance report required by this part if not needed.
    (2) The grantee may waive any performance report from a subgrantee 
when not needed. The grantee may extend the due date for any performance 
report from a subgrantee if the grantee will still be able to meet its 
performance reporting obligations to the Federal agency.



Sec. 602.41  Financial reporting.

    (a) General. (1) Except as provided in paragraphs (a) (2) and (5) of 
this section, grantees will use only the forms specified in paragraphs 
(a) through (e) of this section, and such supplementary or other forms 
as may from time to time be authorized by OMB, for:
    (i) Submitting financial reports to Federal agencies, or
    (ii) Requesting advances or reimbursements when letters of credit 
are not used.
    (2) Grantees need not apply the forms prescribed in this section in 
dealing with their subgrantees. However, grantees shall not impose more 
burdensome requirements on subgrantees.
    (3) Grantees shall follow all applicable standard and supplemental 
Federal agency instructions approved by OMB to the extend required under 
the Paperwork Reduction Act of 1980 for use in connection with forms 
specified in paragraphs (b) through (e) of this section. Federal 
agencies may issue substantive supplementary instructions only with the 
approval of OMB. Federal agencies may shade out or instruct the grantee 
to disregard any line item that the Federal agency finds unnecessary for 
its decisionmaking purposes.
    (4) Grantees will not be required to submit more than the original 
and two copies of forms required under this part.
    (5) Federal agencies may provide computer outputs to grantees to 
expedite or contribute to the accuracy of reporting. Federal agencies 
may accept the required information from grantees in machine usable 
format or computer printouts instead of prescribed forms.
    (6) Federal agencies may waive any report required by this section 
if not needed.
    (7) Federal agencies may extend the due date of any financial report 
upon receiving a justified request from a grantee.
    (b) Financial Status Report--(1) Form. Grantees will use Standard 
Form 269 or 269A, Financial Status Report, to report the status of funds 
for all nonconstruction grants and for construction grants when required 
in accordance with paragraph Sec. 602.41(e)(2)(iii) of this section.
    (2) Accounting basis. Each grantee will report program outlays and 
program income on a cash or accrual basis as prescribed by the awarding 
agency. If the Federal agency requires accrual information and the 
grantee's accounting records are not normally kept on the accural basis, 
the grantee shall not be required to convert its accounting system but 
shall develop such accrual information through and analysis of the 
documentation on hand.
    (3) Frequency. The Federal agency may prescribe the frequency of the 
report for each project or program. However, the report will not be 
required more frequently than quarterly. If the Federal agency does not 
specify the frequency of the report, it will be submitted annually. A 
final report will be required upon expiration or termination of grant 
support.
    (4) Due date. When reports are required on a quarterly or semiannual

[[Page 65]]

basis, they will be due 30 days after the reporting period. When 
required on an annual basis, they will be due 90 days after the grant 
year. Final reports will be due 90 days after the expiration or 
termination of grant support.
    (c) Federal Cash Transactions Report--(1) Form. (i) For grants paid 
by letter or credit, Treasury check advances or electronic transfer of 
funds, the grantee will submit the Standard Form 272, Federal Cash 
Transactions Report, and when necessary, its continuation sheet, 
Standard Form 272a, unless the terms of the award exempt the grantee 
from this requirement.
    (ii) These reports will be used by the Federal agency to monitor 
cash advanced to grantees and to obtain disbursement or outlay 
information for each grant from grantees. The format of the report may 
be adapted as appropriate when reporting is to be accomplished with the 
assistance of automatic data processing equipment provided that the 
information to be submitted is not changed in substance.
    (2) Forecasts of Federal cash requirements. Forecasts of Federal 
cash requirements may be required in the ``Remarks'' section of the 
report.
    (3) Cash in hands of subgrantees. When considered necessary and 
feasible by the Federal agency, grantees may be required to report the 
amount of cash advances in excess of three days' needs in the hands of 
their subgrantees or contractors and to provide short narrative 
explanations of actions taken by the grantee to reduce the excess 
balances.
    (4) Frequency and due date. Grantees must submit the report no later 
than 15 working days following the end of each quarter. However, where 
an advance either by letter of credit or electronic transfer of funds is 
authorized at an annualized rate of one million dollars or more, the 
Federal agency may require the report to be submitted within 15 working 
days following the end of each month.
    (d) Request for advance or reimbursement--(1) Advance payments. 
Requests for Treasury check advance payments will be submitted on 
Standard Form 270, Request for Advance or Reimbursement. (This form will 
not be used for drawdowns under a letter of credit, electronic funds 
transfer or when Treasury check advance payments are made to the grantee 
automatically on a predetermined basis.)
    (2) Reimbursements. Requests for reimbursement under nonconstruction 
grants will also be submitted on Standard Form 270. (For reimbursement 
requests under construction grants, see paragraph (e)(1) of this 
section.)
    (3) The frequency for submitting payment requests is treated in 
Sec. 602.41(b)(3).
    (e) Outlay report and request for reimbursement for construction 
programs. (1) Grants that support construction activities paid by 
reimbursement method.
    (i) Requests for reimbursement under construction grants will be 
submitted on Standard Form 271, Outlay Report and Request for 
Reimbursement for Construction Programs. Federal agencies may, however, 
prescribe the Request for Advance or Reimbursement form, specified in 
Sec. 602.41(d), instead of this form.
    (ii) The frequency for submitting reimbursement requests is treated 
in Sec. 602.41(b)(3).
    (2) Grants that support construction activities paid by letter of 
credit, electronic funds transfer or Treasury check advance.
    (i) When a construction grant is paid by letter of credit, 
electronic funds transfer or Treasury check advances, the grantee will 
report its outlays to the Federal agency using Standard Form 271, Outlay 
Report and Request for Reimbursement for Construction Programs. The 
Federal agency will provide any necessary special instruction. However, 
frequency and due date shall be governed by Sec. 602.41(b) (3) and (4).
    (ii) When a construction grant is paid by Treasury check advances 
based on periodic requests from the grantee, the advances will be 
requested on the form specified in Sec. 602.41(d).
    (iii) The Federal agency may substitute the Financial Status Report 
specified in Sec. 602.41(b) for the Outlay Report and Request for 
Reimbursement for Construction Programs.

[[Page 66]]

    (3) Accounting basis. The accounting basis for the Outlay Report and 
Request for Reimbursement for Construction Programs shall be governed by 
Sec. 602.41(b)(2).



Sec. 602.42  Retention and access requirements for records.

    (a) Applicability. (1) This section applies to all financial and 
programmatic records, supporting documents, statistical records, and 
other records of grantees or subgrantees which are:
    (i) Required to be maintained by the terms of this part, program 
regulations or the grant agreement, or
    (ii) Otherwise reasonably considered as pertinent to program 
regulations or the grant agreement.
    (2) This section does not apply to records maintained by contractors 
or subcontractors. For a requirement to place a provision concerning 
records in certain kinds of contracts, see Sec. 602.36(i)(10).
    (b) Length of retention period. (1) Except as otherwise provided, 
records must be retained for three years from the starting date 
specified in paragraph (c) of this section.
    (2) If any litigation, claim, negotiation, audit or other action 
involving the records has been started before the expiration of the 3-
year period, the records must be retained until completion of the action 
and resolution of all issues which arise from it, or until the end of 
the regular 3-year period, whichever is later.
    (3) To avoid duplicate recordkeeping, awarding agencies may make 
special arrangements with grantees and subgrantees to retain any records 
which are continuously needed for joint use. The awarding agency will 
request transfer of records to its custody when it determines that the 
records possess long-term retention value. When the records are 
transferred to or maintained by the Federal agency, the 3-year retention 
requirement is not applicable to the grantee or subgrantee.
    (c) Starting date of retention period--(1) General. When grant 
support is continued or renewed at annual or other intervals, the 
retention period for the records of each funding period starts on the 
day the grantee or subgrantee submits to the awarding agency its single 
or last expenditure report for that period. However, if grant support is 
continued or renewed quarterly, the retention period for each year's 
records starts on the day the grantee submits its expenditure report for 
the last quarter of the Federal fiscal year. In all other cases, the 
retention period starts on the day the grantee submits its final 
expenditure report. If an expenditure report has been waived, the 
retention period starts on the day the report would have been due.
    (2) Real property and equipment records. The retention period for 
real property and equipment records starts from the date of the 
disposition or replacement or transfer at the direction of the awarding 
agency.
    (3) Records for income transactions after grant or subgrant support. 
In some cases grantees must report income after the period of grant 
support. Where there is such a requirement, the retention period for the 
records pertaining to the earning of the income starts from the end of 
the grantee's fiscal year in which the income is earned.
    (4) Indirect cost rate proposals, cost allocations plans, etc. This 
paragraph applies to the following types of documents, and their 
supporting records: indirect cost rate computations or proposals, cost 
allocation plans, and any similar accounting computations of the rate at 
which a particular group of costs is chargeable (such as computer usage 
chargeback rates or composite fringe benefit rates).
    (i) If submitted for negotiation. If the proposal, plan, or other 
computation is required to be submitted to the Federal Government (or to 
the grantee) to form the basis for negotiation of the rate, then the 3-
year retention period for its supporting records starts from the date of 
such submission.
    (ii) If not submitted for negotiation. If the proposal, plan, or 
other computation is not required to be submitted to the Federal 
Government (or to the grantee) for negotiation purposes, then the 3-year 
retention period for the proposal plan, or computation and its 
supporting records starts from end of the fiscal year (or other 
accounting period) covered by the proposal, plan, or other computation.

[[Page 67]]

    (d) Substitution of microfilm. Copies made by microfilming, 
photocopying, or similar methods may be substituted for the original 
records.
    (e) Access to records--(1) Records of grantees and subgrantees. The 
awarding agency and the Comptroller General of the United States, or any 
of their authorized representatives, shall have the right of access to 
any pertinent books, documents, papers, or other records of grantees and 
subgrantees which are pertinent to the grant, in order to make audits, 
examinations, excerpts, and transcripts.
    (2) Expiration of right of access. The rights of access in this 
section must not be limited to the required retention period but shall 
last as long as the records are retained.
    (f) Restrictions on public access. The Federal Freedom of 
Information Act (5 U.S.C. 552) does not apply to records Unless required 
by Federal, State, or local law, grantees and subgrantees are not 
required to permit public access to their records.



Sec. 602.43  Enforcement.

    (a) Remedies for noncompliance. If a grantee or subgrantee 
materially fails to comply with any term of an award, whether stated in 
a Federal statute or regulation, an assurance, in a State plan or 
application, a notice of award, or elsewhere, the awarding agency may 
take one or more of the following actions, as appropriate in the 
circumstances:
    (1) Temporarily withhold cash payments pending correction of the 
deficiency by the grantee or subgrantee or more severe enforcement 
action by the awarding agency,
    (2) Disallow (that is, deny both use of funds and matching credit 
for) all or part of the cost of the activity or action not in 
compliance,
    (3) Wholly or partly suspend or terminate the current award for the 
grantee's or subgrantee's program,
    (4) Withhold further awards for the program, or
    (5) Take other remedies that may be legally available.
    (b) Hearings, appeals. In taking an enforcement action, the awarding 
agency will provide the grantee or subgrantee an opportunity for such 
hearing, appeal, or other administrative proceeding to which the grantee 
or subgrantee is entitled under any statute or regulation applicable to 
the action involved.
    (c) Effects of suspension and termination. Costs of grantee or 
subgrantee resulting from obligations incurred by the grantee or 
subgrantee during a suspension or after termination of an award are not 
allowable unless the awarding agency expressly authorizes them in the 
notice of suspension or termination or subsequently. Other grantee or 
subgrantee costs during suspension or after termination which are 
necessary and not reasonably avoidable are allowable if:
    (1) The costs result from obligations which were properly incurred 
by the grantee or subgrantee before the effective date of suspension or 
termination, are not in anticipation of it, and, in the case of a 
termination, are noncancellable, and,
    (2) The costs would be allowable if the award were not suspended or 
expired normally at the end of the funding period in which the 
termination takes effect.
    (d) Relationship to debarment and suspension. The enforcement 
remedies identified in this section, including suspension and 
termination, do not preclude grantee or subgrantee from being subject to 
``Debarment and Suspension'' under E.O. 12549 (see Sec. 602.35).



Sec. 602.44  Termination for convenience.

    Except as provided in Sec. 602.43 awards may be terminated in whole 
or in part only as follows:
    (a) By the awarding agency with the consent of the grantee or 
subgrantee in which case the two parties shall agree upon the 
termination conditions, including the effective date and in the case of 
partial termination, the portion to be terminated, or
    (b) By the grantee or subgrantee upon written notification to the 
awarding agency, setting forth the reasons for such termination, the 
effective date, and in the case of partial termination, the portion to 
be terminated. However, if, in the case of a partial termination, the 
awarding agency determines that the remaining portion of

[[Page 68]]

the award will not accomplish the purposes for which the award was made, 
the awarding agency may terminate the award in its entirety under either 
Sec. 602.43 or paragraph (a) of this section.



                 Subpart D_After-the-Grant Requirements



Sec. 602.50  Closeout.

    (a) General. The Federal agency will close out the award when it 
determines that all applicable administrative actions and all required 
work of the grant has been completed.
    (b) Reports. Within 90 days after the expiration or termination of 
the grant, the grantee must submit all financial, performance, and other 
reports required as a condition of the grant. Upon request by the 
grantee, Federal agencies may extend this timeframe. These may include 
but are not limited to:
    (1) Final performance or progress report.
    (2) Financial Status Report (SF 269) or Outlay Report and Request 
for Reimbursement for Construction Programs (SF-271) (as applicable).
    (3) Final request for payment (SF-270) (if applicable).
    (4) Invention disclosure (if applicable).
    (5) Federally-owned property report:

In accordance with Sec. 602.32(f), a grantee must submit an inventory 
of all federally owned property (as distinct from property acquired with 
grant funds) for which it is accountable and request disposition 
instructions from the Federal agency of property no longer needed.
    (c) Cost adjustment. The Federal agency will, within 90 days after 
receipt of reports in paragraph (b) of this section, make upward or 
downward adjustments to the allowable costs.
    (d) Cash adjustments. (1) The Federal agency will make prompt 
payment to the grantee for allowable reimbursable costs.
    (2) The grantee must immediately refund to the Federal agency any 
balance of unobligated (unencumbered) cash advanced that is not 
authorized to be retained for use on other grants.



Sec. 602.51  Later disallowances and adjustments.

    The closeout of a grant does not affect:
    (a) The Federal agency's right to disallow costs and recover funds 
on the basis of a later audit or other review;
    (b) The grantee's obligation to return any funds due as a result of 
later refunds, corrections, or other transactions;
    (c) Records retention as required in Sec. 602.42;
    (d) Property management requirements in Sec. Sec. 602.31 and 
602.32; and
    (e) Audit requirements in Sec. 602.26.



Sec. 602.52  Collection of amounts due.

    (a) Any funds paid to a grantee in excess of the amount to which the 
grantee is finally determined to be entitled under the terms of the 
award constitute a debt to the Federal Government. If not paid within a 
reasonable period after demand, the Federal agency may reduce the debt 
by:
    (1) Making an adminstrative offset against other requests for 
reimbursements,
    (2) Withholding advance payments otherwise due to the grantee, or
    (3) Other action permitted by law.
    (b) Except where otherwise provided by statutes or regulations, the 
Federal agency will charge interest on an overdue debt in accordance 
with the Federal Claims Collection Standards (4 CFR Ch. II). The date 
from which interest is computed is not extended by litigation or the 
filing of any form of appeal.

Subpart E--Entitlements [Reserved]



PART 604_NEW RESTRICTIONS ON LOBBYING--Table of Contents




                            Subpart A_General

Sec.
604.100 Conditions on use of funds.
604.105 Definitions.
604.110 Certification and disclosure.

                  Subpart B_Activities by Own Employees

604.200 Agency and legislative liaison.
604.205 Professional and technical services.
604.210 Reporting.

[[Page 69]]

            Subpart C_Activities by Other Than Own Employees

604.300 Professional and technical services.

                   Subpart D_Penalties and Enforcement

604.400 Penalties.
604.405 Penalty procedures.
604.410 Enforcement.

                          Subpart E_Exemptions

604.500 Secretary of Defense.

                        Subpart F_Agency Reports

604.600 Semi-annual compilation.
604.605 Inspector General report.

Appendix A to Part 604--Certification Regarding Lobbying
Appendix B to Part 604--Disclosure Form To Report Lobbying

    Authority: Sec. 319, Pub. L. 101-121 (31 U.S.C. 1352); 42 U.S.C. 
1870.

    Source: 55 FR 6737, 6754, Feb. 26, 1990, unless otherwise noted.

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



                            Subpart A_General



Sec. 604.100  Conditions on use of funds.

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



Sec. 604.105  Definitions.

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

[[Page 70]]

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

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

[[Page 71]]

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



Sec. 604.110  Certification and disclosure.

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

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

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

[[Page 72]]

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



                  Subpart B_Activities by Own Employees



Sec. 604.200  Agency and legislative liaison.

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



Sec. 604.205  Professional and technical services.

    (a) The prohibition on the use of appropriated funds, in Sec. 
604.100 (a), does not apply in the case of a payment of reasonable 
compensation made to an officer or employee of a person requesting or 
receiving a Federal contract, grant, loan, or cooperative agreement or 
an extension, continuation, renewal, amendment, or modification of a 
Federal contract, grant, loan, or cooperative agreement if payment is 
for professional or technical services rendered directly in the 
preparation, submission, or negotiation of any bid, proposal, or 
application for that Federal contract, grant, loan, or cooperative 
agreement or for meeting requirements imposed by or pursuant to law as a 
condition for receiving that Federal contract, grant, loan, or 
cooperative agreement.
    (b) For purposes of paragraph (a) of this section, ``professional 
and technical services'' shall be limited to advice and analysis 
directly applying any professional or technical discipline. For example, 
drafting of a legal document accompanying a bid or proposal

[[Page 73]]

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



Sec. 604.210  Reporting.

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



            Subpart C_Activities by Other Than Own Employees



Sec. 604.300  Professional and technical services.

    (a) The prohibition on the use of appropriated funds, in Sec. 
604.100 (a), does not apply in the case of any reasonable payment to a 
person, other than an officer or employee of a person requesting or 
receiving a covered Federal action, if the payment is for professional 
or technical services rendered directly in the preparation, submission, 
or negotiation of any bid, proposal, or application for that Federal 
contract, grant, loan, or cooperative agreement or for meeting 
requirements imposed by or pursuant to law as a condition for receiving 
that Federal contract, grant, loan, or cooperative agreement.
    (b) The reporting requirements in Sec. 604.110 (a) and (b) 
regarding filing a disclosure form by each person, if required, shall 
not apply with respect to professional or technical services rendered 
directly in the preparation, submission, or negotiation of any 
commitment providing for the United States to insure or guarantee a 
loan.
    (c) For purposes of paragraph (a) of this section, ``professional 
and technical services'' shall be limited to advice and analysis 
directly applying any professional or technical discipline. For example, 
drafting or a legal document accompanying a bid or proposal by a lawyer 
is allowable. Similarly, technical advice provided by an engineer on the 
performance or operational capability of a piece of equipment rendered 
directly in the negotiation of a contract is allowable. However, 
communications with the intent to influence made by a professional (such 
as a licensed lawyer) or a technical person (such as a licensed 
accountant) are not allowable under this section unless they provide 
advice and analysis directly applying their professional or technical 
expertise and unless the advice or analysis is rendered directly and 
solely in the preparation, submission or negotiation of a covered 
Federal action. Thus, for example, communications with the intent to 
influence made by a lawyer that do not provide legal advice or analysis 
directly and solely related to the legal aspects of

[[Page 74]]

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



                   Subpart D_Penalties and Enforcement



Sec. 604.400  Penalties.

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



Sec. 604.405  Penalty procedures.

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



Sec. 604.410  Enforcement.

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



                          Subpart E_Exemptions



Sec. 604.500  Secretary of Defense.

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

[[Page 75]]

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



                        Subpart F_Agency Reports



Sec. 604.600  Semi-annual compilation.

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



Sec. 604.605  Inspector General report.

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

[[Page 76]]



      Sec. Appendix A to Part 604--Certification Regarding Lobbying

 Certification for Contracts, Grants, Loans, and Cooperative Agreements

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

            Statement for Loan Guarantees and Loan Insurance

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

[[Page 77]]



     Sec. Appendix B to Part 604--Disclosure Form To Report Lobbying
[GRAPHIC] [TIFF OMITTED] TC01JA91.007


[[Page 78]]


[GRAPHIC] [TIFF OMITTED] TC01JA91.008


[[Page 79]]


[GRAPHIC] [TIFF OMITTED] TC01JA91.009


[[Page 80]]





PART 605_NONDISCRIMINATION ON THE BASIS OF HANDICAP IN PROGRAMS OR 
ACTIVITIES RECEIVING FEDERAL FINANCIAL ASSISTANCE--Table of Contents




                      Subpart A_General Provisions

Sec.
605.0 Adoption of HHS regulations.
605.1 Purpose.
605.2 Application.
605.3 Definitions.
605.4 Discrimination prohibited.
605.5 Assurances required.
605.6 Remedial action, voluntary action, and self-evaluation.
605.7 Designation of responsible employee and adoption of grievance 
          procedures.
605.8 Notice.
605.9 Administrative requirements for small recipients.
605.10 Effect of state or local law or other requirements and effect of 
          employment opportunities.

                     Subpart B_Employment Practices

605.11 Discrimination prohibited.
605.12 Reasonable accommodation.
605.13 Employment criteria.
605.14 Preemployment inquiries.
605.15-605.20 [Reserved]

                         Subpart C_Accessibility

605.21 Discrimination prohibited.
605.22 Existing facilities.
605.23 New construction.
605.24-605.30 [Reserved]

        Subpart D_Preschool, Elementary, and Secondary Education

605.31 Application of this subpart.
605.32 Location and notification.
605.33 Free appropriate public education.
605.34 Educational setting.
605.35 Evaluation and placement.
605.36 Procedural safeguards.
605.37 Nonacademic services.
605.38 Preschool and adult education.
605.39 Private education.
605.40 [Reserved]

                    Subpart E_Postsecondary Education

605.41 Application of this subpart.
605.42 Admissions and recruitment.
605.43 Treatment of students; general.
605.44 Academic adjustments.
605.45 Housing.
605.46 Financial and employment assistance to students.
605.47 Nonacademic services.
605.48-605.50 [Reserved]

             Subpart F_Health, Welfare, and Social Services

605.51 Application of this subpart.
605.52 Health, welfare, and other social services.
605.53 Drug and alcohol addicts.
605.54 Education of institutionalized persons.
605.55-605.60 [Reserved]

                          Subpart G_Procedures

605.61 Procedures.
605.62-605.90 [Reserved]

    Authority: 29 U.S.C. 794.

    Source: 47 FR 8573, Mar. 1, 1982, unless otherwise noted.



                      Subpart A_General Provisions



Sec. 605.0  Adoption of HHS regulations.

    The regulations of the Department of Health and Human Services on 
Nondiscrimination on the Basis of Handicap, 45 CFR part 84, including 
any amendments thereto, have been adopted almost in their entirety to 
programs or activities receiving Federal financial assistance from the 
National Science Foundation. The few changes in the Foundation's rules 
include a newly added sub-paragraph (5) to paragraph (k) of Sec. 605.3; 
and modifications in paragraph (j), Sec. 605.3; paragraph (a) of Sec. 
605.5; paragraph (b) of Sec. 605.46; and Sec. 605.61. Paragraph (c) of 
Sec. 605.5 has been removed, and ``qualified handicapped persons'' has 
been substituted for ``handicapped persons'' wherever that phrase 
appears in Sec. 605.4(b)(5) and in Subpart C (Sec. Sec. 605.21 through 
605.23). The date for compliance with Sec. 605.33(d) has been changed.

[47 FR 8573, Mar. 1, 1982, as amended at 61 FR 51021, Sept. 30, 1996; 68 
FR 51381, Aug. 26, 2003]



Sec. 605.1  Purpose.

    The purpose of this part is to effectuate section 504 of the 
Rehabilitation Act of 1973, which is designed to eliminate 
discrimination on the basis of handicap in any program or activity 
receiving Federal financial assistance.



Sec. 605.2  Application.

    This part applies to each recipient of Federal financial assistance 
from the National Science Foundation and to

[[Page 81]]

each program or activity that receives such assistance.

[47 FR 8573, Mar. 1, 1982, as amended at 68 FR 51381, Aug. 26, 2003]



Sec. 605.3  Definitions.

    As used in this part, the term:
    (a) The Act means the Rehabilitation Act of 1973, Public Law 93-112, 
as amended by the Rehabilitation Act Amendments of 1974, Public Law 93-
516, 29 U.S.C. 794.
    (b) Section 504 means section 504 of the Act.
    (c) Education of the Handicapped Act means that statute as amended 
by the Education for all Handicapped Children Act of 1975, Public Law 
94-142, 20 U.S.C. 1401 et seq.
    (d) Foundation means the National Science Foundation.
    (e) Director means the Director of the National Science Foundation.
    (f) Recipient means any state or its political subdivision, any 
instrumentality of a state or its political subdivision, any public or 
private agency, institution, organization, or other entity, or any 
person to which Federal financial assistance is extended directly or 
through another recipient, including any successor, assignee, or 
transferee of a recipient, but excluding the ultimate beneficiary of the 
assistance.
    (g) Applicant for assistance means one who submits an application, 
request, or plan required to be approved by a Foundation official or by 
a recipient as a condition to becoming a recipient.
    (h) Federal financial assistance means any grant, loan, contract 
(other than a procurement contract or a contract of insurance or 
guaranty), or any other arrangement by which the Foundation provides or 
otherwise makes available assistance in the form of:
    (1) Funds;
    (2) Services of Federal personnel; or
    (3) Real and personal property or any interest in or use of such 
property, including:
    (i) Transfers or leases of such property for less than fair market 
value or for reduced consideration; and
    (ii) Proceeds from a subsequent transfer or lease of such property 
if the Federal share of its fair market value is not returned to the 
Federal Government.
    (i) Facility means all or any portion of buildings, structures, 
equipment, roads, walks, parking lots, or other real or personal 
property or interest in such property.
    (j) Handicapped person. (1) Handicapped persons means any person in 
the United States who (i) has a physical or mental impairment which 
substantially limits one or more major life activities, (ii) has a 
record of such an impairment, or (iii) is regarded as having such an 
impairment.
    (2) As used in paragraph (j)(1) of this section, the phrase:
    (i) Physical or mental impairment means (A) 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, genito-urinary; hemic 
and lymphatic; skin; and endocrine; or (B) any mental or psychological 
disorder, such as mental retardation, organic brain syndrome, emotional 
or mental illness, and specific learning disabilities.
    (ii) Major life activities means functions such as caring for one's 
self, performing manual tasks, walking, seeing, hearing, speaking, 
breathing, learning, and working.
    (iii) 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.
    (iv) Is regarded as having an impairment means (A) has a physical or 
mental impairment that does not subtantially limit major life activities 
but that is treated by a recipient as constituting such a limitation; 
(B) 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 (C) has none of the impairments defined in paragraph 
(j)(2)(i) of this section but is treated by a recipient as having such 
an impairment.
    (k) Qualified handicapped person means:

[[Page 82]]

    (1) With respect to employment, a handicapped person who, with 
reasonable accommodation, can perform the essential functions of the job 
in question;
    (2) With respect to public preschool elementary, secondary, or adult 
educational services, a handicapped person (i) of an age during which 
nonhandicapped persons are provided such services, (ii) of any age 
during which it is mandatory under state law to provide such services to 
handicapped persons, or (iii) to whom a state is required to provide a 
free appropriate public education under section 612 of the Education of 
the Handicapped Act; and
    (3) With respect to postsecondary and vocational education services, 
a handicapped person who meets the academic and technical standards 
requisite to admission or participation in the recipient's education 
program or activity;
    (4) With respect to other services, a handicapped person who meets 
the essential eligibility requirements for the receipt of such services.
    (5) With respect to scientific and technical experimentation, 
observation, or field work a person who meets the academic, scientific 
and technical standards for participation and any reasonable physical 
qualifications for participation. Physical qualifications are not 
``reasonable,'' however, if they can be obviated without unreasonable 
burden by modifying facilities or aid, benefits, or services or by 
providing auxiliary aids. In determining whether the burdens are 
unreasonable, factors such as cost, risks, or sacrifice of legitimate 
objectives may be considered. In exceptional cases psychological 
qualifications may be considered `reasonable physical qualifications' 
under this paragraph. Nothing in this provision or these regulations 
requires reversal of scientific judgments on research, including choice 
of experiments, protocols for experiments, location of observing sites, 
or the like that are considered necessary to any line of scientific 
inquiry by the research scientists involved.
    (l) Handicap means any condition or characteristic that renders a 
person a handicapped person as defined in paragraph (j) of this section.
    (m) Program or activity means all of the operations of any entity 
described in paragraphs (m)(1) through (4) of this section, any part of 
which is extended Federal financial assistance:
    (1)(i) A department, agency, special purpose district, or other 
instrumentality of a State or of a local government; or
    (ii) The entity of such State or local government that distributes 
such assistance and each such department or agency (and each other State 
or local government entity) to which the assistance is extended, in the 
case of assistance to a State or local government;
    (2)(i) A college, university, or other postsecondary institution, or 
a public system of higher education; or
    (ii) A local educational agency (as defined in 20 U.S.C. 7801), 
system of vocational education, or other school system;
    (3)(i) An entire corporation, partnership, or other private 
organization, or an entire sole proprietorship--
    (A) If assistance is extended to such corporation, partnership, 
private organization, or sole proprietorship as a whole; or
    (B) Which is principally engaged in the business of providing 
education, health care, housing, social services, or parks and 
recreation; or
    (ii) The entire plant or other comparable, geographically separate 
facility to which Federal financial assistance is extended, in the case 
of any other corporation, partnership, private organization, or sole 
proprietorship; or
    (4) Any other entity which is established by two or more of the 
entities described in paragraph (m)(1), (2), or (3) of this section.

[47 FR 8573, Mar. 1, 1982, as amended at 68 FR 51380, Aug. 26, 2003]



Sec. 605.4  Discrimination prohibited.

    (a) General. 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 which receives Federal financial assistance.
    (b) Discriminatory actions prohibited. (1) A recipient, in providing 
any aid, benefit, or service, may not, directly or

[[Page 83]]

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 as that provided to others;
    (iv) Provide different or separate aid, benefits, or services to 
handicapped persons or to any class of handicapped persons 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) Aid or perpetuate discrimination against a qualified handicapped 
person by providing significant assistance to an agency, organization, 
or person that discriminates on the basis of handicap in providing any 
aid, benefit, or service to beneficiaries of the recipient's program or 
activity;
    (vi) Deny a qualified handicapped person the opportunity to 
participate as a member of planning or advisory boards; or
    (vii) Otherwise limit a qualified handicapped person in the 
enjoyment of any right, privilege, advantage, or opportunity enjoyed by 
others receiving an aid, benefit, or service.
    (2) For purposes of this part, aids, benefits, and services, to be 
equally effective, are not required to produce the identical result or 
level of achievement for handicapped and nonhandicapped persons, but 
must afford handicapped persons equal opportunity to obtain the same 
result, to gain the same benefit, or to reach the same level of 
achievement, in the most integrated setting appropriate to the person's 
needs.
    (3) Despite the existence of separate or different aid, benefits, or 
services provided in accordance with this part, a recipient may not deny 
a qualified handicapped person the opportunity to participate in such 
programs or activities that are not separate or different.
    (4) A recipient may not, directly or through contractual or other 
arrangements, utilize criteria or methods of administration (i) that 
have the effect of subjecting qualified handicapped persons to 
discrimination on the basis of handicap, (ii) that have the purpose or 
effect of defeating or substantially impairing accomplishment of the 
objectives of the recipient's program or activity with respect to 
handicapped persons, or (iii) that perpetuate the discrimination of 
another recipient if both recipients are subject to common 
administrative control or are agencies of the same State.
    (5) In determining the site or location of a facility, an applicant 
for assistance or a recipient may not make selections (i) that have the 
effect of excluding qualified handicapped persons from, denying them the 
benefits of, or otherwise subjecting them to discrimination under any 
program or activity that receives Federal financial assistance or (ii) 
that have the purpose or effect of defeating or substantially impairing 
the accomplishment of the objectives of the program or activity with 
respect to qualified handicapped persons.
    (6) As used in this section, the aid, benefit, or service provided 
under a program or activity receiving Federal financial assistance 
includes any aid, benefit, or service provided in or through a facility 
that has been constructed, expanded, altered, leased or rented, or 
otherwise acquired, in whole or in part, with Federal financial 
assistance.
    (c) Aid, benefits, or services limited by Federal law. The exclusion 
of nonhandicapped persons from aid, benefits, or services limited by 
Federal statute or executive order to handicapped persons or the 
exclusion of a specific class of handicapped persons from aid, benefits, 
or services limited by Federal statute or executive order to a different 
class of handicapped persons is not prohibited by this part.

[47 FR 8573, Mar. 1, 1982, as amended at 68 FR 51381, Aug. 26, 2003]

[[Page 84]]



Sec. 605.5  Assurances required.

    (a) Assurances. Recipients of Federal financial assistance to which 
this part applies will assure NSF, in a manner specified by the 
Director, that the programs or activities will be operated in compliance 
with this part.
    (b) Duration of obligation. (1) In the case of Federal financial 
assistance extended in the form of real property or to provide real 
property or structures on the property, the assurance will obligate the 
recipient or, in the case of a subsequent transfer, the transferee, for 
the period during which the real property or structures are used for the 
purpose for which Federal financial assistance is extended or for 
another purpose involving the provision of similar services or benefits.
    (2) In the case of Federal financial assistance extended to provide 
personal property, the assurance will obligate the recipient for the 
period during which it retains ownership or possession of the property.
    (3) In all other cases the assurance will obligate the recipient for 
the period during which Federal financial assistance is extended.

[47 FR 8573, Mar. 1, 1982, as amended at 68 FR 51381, Aug. 26, 2003]



Sec. 605.6  Remedial action, voluntary action, and self-evaluation.

    (a) Remedial action. (1) If the Director finds that a recipient has 
discriminated against persons on the basis of handicap in violation of 
section 504 or this part, the recipient shall take such remedial action 
as the Director deems necessary to overcome the effects of the 
discrimination.
    (2) Where a recipient is found to have discriminated against persons 
on the basis of handicap in violation of section 504 or this part and 
where another recipient exercises control over the recipient that has 
discriminated, the Director, where appropriate, may require either or 
both recipients to take remedial action.
    (3) The Director may, where necessary to overcome the effects of 
discrimination in violation of section 504 or this part, require a 
recipient to take remedial action (i) with respect to handicapped 
persons who are no longer participants in the recipient's program or 
activity but who were participants in the program when such 
discrimination occurred or (ii) with respect to handicapped persons who 
would have been participants in the program or activity had the 
discrimination not occurred.
    (b) Voluntary action. A recipient may take steps, in addition to any 
action that is required by this part, to overcome the effects of 
conditions that resulted in limited participation in the recipient's 
program or activity by qualified handicapped persons.
    (c) Self-evaluation. (1) A recipient shall, within one year of the 
effective date of this part:
    (i) Evaluate, with the assistance of interested persons, including 
handicapped persons or organizations representing handicapped persons, 
its current policies and practices and the effects thereof that do not 
or may not meet the requirements of this part;
    (ii) Modify, after consultation with interested persons, including 
handicapped persons or organizations representing handicapped persons, 
any policies and practices that do not meet the requirements of this 
part; and
    (iii) Take, after consultation with interested persons, including 
handicapped persons or organizations representing handicapped persons, 
appropriate remedial steps to eliminate the effects of any 
discrimination that resulted from adherence to these policies and 
practices.
    (2) A recipient that employs fifteen or more persons shall, for at 
least three years following completion of the evaluation required under 
paragraph (c)(1) of this section, maintain on file, make available for 
public inspection, and provide to the Director upon request: (i) A list 
of the interested person consulted (ii) a description of areas examined 
and any problems identified, and (iii) a description of any 
modifications made and any remedial steps taken.

[47 FR 8573, Mar. 1, 1982, as amended at 68 FR 51381, Aug. 26, 2003]



Sec. 605.7  Designation of responsible employee and adoption of grievance 
procedures.

    (a) Designation of responsible employee. A recipient that employs 
fifteen or

[[Page 85]]

more persons shall designate at least one person to coordinate its 
efforts to comply with this part.
    (b) Adoption of grievance procedures. A recipient that employs 
fifteen or more persons shall adopt grievance procedures that 
incorporate appropriate due process standards and that provide for the 
prompt and equitable resolution of complaints alleging any action 
prohibited by this part. Such procedures need not be established with 
respect to complaints from applicants for employment or from applicants 
for admission to postsecondary educational institutions.



Sec. 605.8  Notice.

    (a) A recipient that employs fifteen or more persons shall take 
appropriate initial and continuing steps to notify participants, 
beneficiaries, applications, and employees, including those with 
impaired vision or hearing, and unions or professional organizations 
holding collective bargaining or professional agreements with the 
recipient that it does not discriminate on the basis of handicap in 
violation of section 504 and this part. The notification shall state, 
where appropriate, that the recipient does not discriminate in admission 
or access to, or treatment or employment in, its programs or activities. 
The notification shall also include an identification of the responsible 
employee designated pursuant to Sec. 605.7(a). A recipient shall make 
the initial notification required by this paragraph within 90 days of 
the effective date of this part. Methods of initial and continuing 
notification may include the posting of notices, publication in 
newspapers and magazines, placement of notices in recipient's 
publication, and distribution of memoranda or other written 
communications.
    (b) If a recipient publishes or uses recruitment materials or 
publications containing general information that it makes available to 
participants, beneficiaries, applicants, or employees, it shall include 
in those materials or publications a statement of the policy described 
in paragraph (a) of this section. A recipient may meet the requirement 
of this paragraph either by including appropriate inserts in existing 
materials and publications or by revising and reprinting the materials 
and publications.

[47 FR 8573, Mar. 1, 1982, as amended at 68 FR 51381, Aug. 26, 2003]



Sec. 605.9  Administrative requirements for small recipients.

    The Director may require any recipient with fewer than fifteen 
employees, or any class of such recipients, to comply with Sec. Sec. 
605.7 and 605.8, in whole or in part, when the Director finds a 
violation of this part or finds that such compliance will not 
significantly impair the ability of the recipient or class or recipients 
to provide benefits or services.



Sec. 605.10  Effect of state or local law or other requirements and
effect of employment opportunities.

    (a) The obligation to comply with this part is not obviated or 
alleviated by the existence of any state or local law or other 
requirement that, on the basis of handicap, imposes prohibitions or 
limits upon the eligibility of qualified handicapped persons to receive 
services or to practice any occupation or profession.
    (b) The obligation to comply with this part is not obviated or 
alleviated because employment opportunities in any occupation or 
profession are or may be more limited for handicapped persons than for 
nonhandicapped persons.



                     Subpart B_Employment Practices



Sec. 605.11  Discrimination prohibited.

    (a) General. (1) No qualified handicapped person shall, on the basis 
of handicap, be subjected to discrimination in employment under any 
program or activity to which this part applies.
    (2) A recipient that receives assistance under the Education of the 
Handicapped Act shall take positive steps to employ and advance in 
employment qualified handicapped persons in programs or activities 
assisted under that Act.
    (3) A recipient shall make all decisions concerning employment under 
any program or activity to which this part applies in a manner which 
ensures that discrimination on the basis of handicap does not occur and 
may not

[[Page 86]]

limit, segregate, or classify applicants or employees in any way that 
adversely affects their opportunities or status because of handicap.
    (4) A recipient may not participate in a contractual or other 
relationship that has the effect of subjecting qualified handicapped 
applicants or employees to discrimination prohibited by this subpart. 
The relationships referred to in this subparagraph include relationships 
with employment and referral agencies, with labor unions, with 
organizations providing or administering fringe benefits to employees of 
the recipient, and with organizations providing training and 
apprenticeships.
    (b) Specific activities. The provisions of this subpart apply to:
    (1) Recruitment, advertising, and the processing of applications for 
employment;
    (2) Hiring, upgrading, promotion, award of tenure, demotion, 
transfer, layoff, termination, right of return from layoff and rehiring;
    (3) Rates of pay or any other form of compensation and changes in 
compensation;
    (4) Job assignments, job classifications, organizational structures, 
position descriptions, lines of progression, and seniority lists;
    (5) Leaves of absence, sick leave, or any other leave;
    (6) Fringe benefits available by virtue of employment, whether or 
not administered by the recipient;
    (7) Selection and financial support for training, including 
apprenticeship, professional meetings, conferences, and other related 
activities, and selection for leaves of absence to pursue training;
    (8) Employer sponsored activities, including those that are social 
or recreational; and
    (9) Any other term, condition, or privilege of employment.
    (c) A recipient's obligation to comply with this subpart is not 
affected by any inconsistent term of any collective bargaining agreement 
to which it is a party.

[47 FR 8573, Mar. 1, 1982, as amended at 68 FR 51381, Aug. 26, 2003]



Sec. 605.12  Reasonable accommodation.

    (a) A recipient shall make reasonable accommodation to the known 
physical or mental limitations of an otherwise qualified handicapped 
applicant or employee unless the recipient can demonstrate that the 
accommodation would impose an undue hardship on the operation of its 
program or activity.
    (b) Reasonable accommodation may include: (1) Making facilities used 
by employees readily accessible to and usable by handicapped persons, 
and (2) job restructuring, part-time or modified work schedules, 
acquisition or modification or equipment or devices, the provision of 
readers or interpreters, and other similar actions.
    (c) In determining pursuant to paragraph (a) of this section whether 
an accommodation would impose an undue hardship on the operation of a 
recipient's program or activity, factors to be considered include:
    (1) The overall size of the recipient's program or activity with 
respect to number of employees, number and type of facilities, and size 
of budget;
    (2) The type of the recipient's operation, including the composition 
and structure of the recipient's workforce; and
    (3) The nature and cost of the accommodation needed.
    (d) A recipient may not deny any employment opportunity to a 
qualified handicapped employee or applicant if the basis for the denial 
is the need to make reasonable accommodation to the physical or mental 
limitations of the employee or applicant.

[47 FR 8573, Mar. 1, 1982, as amended at 68 FR 51381, Aug. 26, 2003]



Sec. 605.13  Employment criteria.

    (a) A recipient may not make use of any employment test or other 
selection criterion that screens out or tends to screen out handicapped 
persons or any class of handicapped persons unless: (1) The test score 
or other selection criterion, as used by the recipient, is shown to be 
job-related for the position in question, and (2) alternative job-
related tests or criteria that do not screen out or tend to screen out 
as many handicapped persons are not shown by the Director to be 
available.

[[Page 87]]

    (b) A recipient shall select and administer tests concerning 
employment so as best to ensure that, when administered to an applicant 
or employee who has a handicap that impairs sensory, manual, or speaking 
skills, the test results accurately reflect the applicant's or 
employee's job skills, aptitude, or whatever other factor the test 
purports to measure, rather than reflecting the applicant's or 
employee's impaired sensory, manual, or speaking skills (except where 
those skills are the factors that the test purports to measure).



Sec. 605.14  Preemployment inquiries.

    (a) Except as provided in paragraphs (b) and (c) of this section, a 
recipient may not conduct a preemployment medical examination or may not 
make preemployment inquiry of an applicant as to whether the applicant 
is a handicapped person or as to the nature or severity of a handicap. A 
recipient may, however, make preemployment inquiry into an applicant's 
ability to perform job-related functions.
    (b) When a recipient is taking remedial action to correct the 
effects of past discrimination pursuant to Sec. 605.6(a), when a 
recipient is taking voluntary action to overcome the effects of 
conditions that resulted in limited participation in its federally 
assisted program or activity pursuant to Sec. 605.6(b), or when a 
recipient is taking affirmative action pursuant to section 503 of the 
Act, the recipient may invite applicants for employment to indicate 
whether and to what extent they are handicapped, Provided, That:
    (1) The recipient states clearly on any written questionnaire used 
for this purpose or makes clear orally if no written questionnaire is 
used that the information requested is intended for use solely in 
connection with its remedial action obligations or its voluntary or 
affirmative action efforts; and
    (2) The recipient states clearly that the information is being 
requested on a voluntary basis, that it will be kept confidential as 
provided in paragraph (d) of this section, that refusal to provide it 
will not subject the applicant or employee to any adverse treatment, and 
that it will be used only in accordance with this part.
    (c) Nothing in this section shall prohibit a recipient from 
conditioning an offer of employment on the results of a medical 
examination conducted prior to the employee's entrance on duty, 
Provided, That: (1) All entering employees are subjected to such an 
examination regardless of handicap, and (2) the results of such an 
examination are used only in accordance with the requirements of this 
part.
    (d) Information obtained in accordance with this section as to the 
medical condition or history of the applicant shall be collected and 
maintained on separate forms that shall be accorded confidentiality as 
medical records, except that:
    (1) Supervisors and managers may be informed regarding restrictions 
on the work or duties of handicapped persons and regarding necessary 
accommodations;
    (2) First aid and safety personnel may be informed, where 
appropriate, if the condition might require emergency treatment; and
    (3) Government officials investigating compliance with the Act shall 
be provided relevant information upon request.



Sec. Sec. 605.15-605.20  [Reserved]



                         Subpart C_Accessibility



Sec. 605.21  Discrimination prohibited.

    No qualified handicapped person shall, because a recipient'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 to which 
this part applies.



Sec. 605.22  Existing facilities.

    (a) Accessibility. A recipient shall operate each program or 
activity to which this part applies so that when each part is viewed in 
its entirety it is readily accessible to qualified handicapped persons. 
This paragraph does not require a recipient to make each of its existing 
facilities or every part of a facility accessible to and usable by 
qualified handicapped persons.
    (b) Methods. A recipient may comply with the requirements of 
paragraph (a)

[[Page 88]]

of this section through such means as redesign of equipment, 
reassignment of classes or other services to accessible buildings, 
assignment of aides to beneficiaries, home visits, delivery of health, 
welfare, or other social services at alternate accessible sites, 
alteration of existing facilities and construction of new facilities in 
conformance with the requirements of Sec. 605.23, or any other methods 
that result in making its program or activity accessible to qualified 
handicapped persons. A recipient is not required to make structural 
changes in existing facilities where other methods are effective in 
achieving compliance with paragraph (a) of this section. In choosing 
among available methods for meeting the requirement of paragraph (a) of 
this section, a recipient shall give priority to those methods that 
serve qualified handicapped persons in the most integrated setting 
appropriate.
    (c) Small health, welfare, or other social service providers. If a 
recipient with fewer than fifteen employees that provides health, 
welfare, or other social services finds, after consultation with a 
qualified handicapped person seeking its services, that there is no 
method of complying with paragraph (a) of this section other than making 
a significant alteration in its existing facilities, the recipient may, 
as an alternative, refer the qualified handicapped person to other 
providers of those services that are accessible.
    (d) Time period. A recipient shall comply with the requirement of 
paragraph (a) of this section within sixty days of the effective date of 
this part except that where structural changes in facilities are 
necessary, such changes shall be made within three years of the 
effective date of this part, but in any event as expeditiously as 
possible.
    (e) Transition plan. In the event that structural changes to 
facilities are necessary to meet the requirement of paragraph (a) of 
this section, a recipient shall develop, within six months of the 
effective date of this part, a transition plan setting forth the steps 
necessary to complete such changes. The plan shall be developed with the 
assistance of interested persons, including qualified handicapped 
persons or organizations representing qualified handicapped persons. 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 recipient's facilities that 
limit the accessibility of its program or activity to qualified 
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 
full accessibility under paragraph (a) of this section and, if the time 
period of the transition plan is longer than one year, identify the 
steps of that will be taken during each year of the transition period; 
and
    (4) Indicate the person responsible for implementation of the plan.
    (f) Notice. The recipient shall adopt and implement procedures to 
ensure that interested persons, including persons with impaired vision 
or hearing, can obtain information as to the existence and location of 
services, activities, and facilities that are accessible to and usuable 
by qualified handicapped persons.

[47 FR 8573, Mar. 1, 1982, as amended at 68 FR 51381, Aug. 26, 2003]



Sec. 605.23  New construction.

    (a) Design and construction. Each facility or part of a facility 
constructed by, on behalf of, or for the use of a recipient shall be 
designed and constructed in such manner that the facility or part of the 
facility is readily accessible to and usable by qualified handicapped 
persons, if the construction was commenced after the effective date of 
this part.
    (b) Alteration. Each facility or part of a facility which is altered 
by, on behalf of, or for the use of a recipient after the effective date 
of this part in a manner that affects or could affect the usability of 
the facility or part of the facility shall, to the maximum extent 
feasible, be altered in such manner that the altered portion of the 
facility is readily accessible to and usable by qualified handicapped 
persons.
    (c) Conformance with Uniform Federal Accessibility Standards. (1) 
Effective as

[[Page 89]]

of January 18, 1991, design, construction, or alteration of buildings in 
conformance with sections 3-8 of the Uniform Federal Accessibility 
Standards (USAF) (appendix A to 41 CFR subpart 101-19.6) shall be deemed 
to comply with the requirements of this section with respect to those 
buildings. Departures from particular technical and scoping requirements 
of UFAS by the use of other methods are permitted where substantially 
equivalent or greater access to and usability of the building is 
provided.
    (2) For purposes of this section, section 4.1.6(1)(g) of UFAS shall 
be interpreted to exempt from the requirements of UFAS only mechanical 
rooms and other spaces that, because of their intended use, will not 
require accessibility to the public or beneficiaries or result in the 
employment or residence therein of persons with physical handicaps.
    (3) This section does not require recipients to make building 
alterations that have little likelihood of being accomplished without 
removing or altering a load-bearing structural member.

[47 FR 8573, Mar. 1, 1982, as amended at 55 FR 52138, 52142, Dec. 19, 
1990]



Sec. Sec. 605.24-605.30  [Reserved]



        Subpart D_Preschool, Elementary, and Secondary Education



Sec. 605.31  Application of this subpart.

    Subpart D applies to preschool, elementary, secondary, and adult 
education programs or activities that receive or benefit from Federal 
financial assistance and to recipients that operate, or that receive 
Federal financial assistance for the operation of, such programs or 
activities.

[47 FR 8573, Mar. 1, 1982, as amended at 68 FR 51381, Aug. 26, 2003]



Sec. 605.32  Location and notification.

    A recipient that operates a public elementary or secondary education 
program shall annually:
    (a) Undertake to identify and locate every qualified handicapped 
person residing in the recipient's jurisdiction who is not receiving a 
public education; and
    (b) Take appropriate steps to notify handicapped persons and their 
parents or guardians or the recipient's duty under this subpart.



Sec. 605.33  Free appropriate public education.

    (a) General. A recipient that operates a public elementary or 
secondary education program shall provide a free appropriate public 
education to each qualified handicapped person who is in the recipient's 
jurisdiction, regardless of the nature or severity of the person's 
handicap.
    (b) Appropriate education. (1) For the purpose of this subpart, the 
provision of an appropriate education is the provision of regular or 
special education and related aids and services that (i) are designed to 
meet individual educational needs of handicapped persons as adequately 
as the needs of nonhandicapped persons are met and (ii) are based upon 
adherence to procedures that satisfy the requirements of Sec. Sec. 
605.34, 605.35 and 605.36.
    (2) Implementation of an Individualized Education Program developed 
in accordance with the Education of the Handicapped Act is one means of 
meeting the standard established in paragraph (b)(1)(i) of this section.
    (3) A recipient may place a handicapped person or refer such person 
for aid, benefits, or services other than those that it operates or 
provides as its means of carrying out the requirements of this subpart. 
If so, the recipient remains responsible for ensuring that the 
requirements of this subpart are met with respect to any handicapped 
person so placed or referred.
    (c) Free education--(1) General. For the purpose of this section, 
the provision of a free education is the provision of educational and 
related services without cost to the handicapped person or to his or her 
parents or guardian, except for those fees that are imposed on non-
handicapped persons or their parents or guardian. It may consist either 
of the provision of free services or, if a recipient places a 
handicapped person or refers such person for aid, benefits, or services 
not operated or provided by the recipient as its means of carrying out 
the requirements of this subpart, of

[[Page 90]]

payment for the costs of the aid, benefits, or services. Funds available 
from any public or private agency may be used to meet the requirements 
of this subpart. Nothing in this section shall be construed to relieve 
an insurer or similar third party from an otherwise valid obligation to 
provide or pay for services provided to a handicapped person.
    (2) Transportation. If a recipient places a handicapped person or 
refers such person for aid, benefits, or services not operated or 
provided by the recipient as its means of carrying out the requirements 
of this subpart, the recipient shall ensure that adequate transportation 
to and from the aid, benefits, or services is provided at no greater 
cost than would be incurred by the person or his or her parents or 
guardian if the person were placed in the program operated by the 
recipient.
    (3) Residential placement. If a public or private residential 
placement is necessary to provide a free appropriate public education to 
a handicapped person because of his or her handicap, the placement, 
including non-medical care and room and board, shall be provided at no 
cost to the person or his or her parents or guardian.
    (4) Placement of handicapped persons by parents. If a recipient has 
made available, in conformance with the requirements of this section and 
Sec. 605.34, a free appropriate public education to a handicapped 
person and the person's parents or guardian chooses to place the person 
in a private school, the recipient is not required to pay for the 
person's education in the private school. Disagreements between a parent 
or guardian and a recipient regarding whether the recipient has made a 
free appropriate public education available or otherwise regarding the 
question of financial responsibility are subject to the due process 
procedures of Sec. 605.36.
    (d) Compliance. A recipient may not exclude any qualified 
handicapped person from a public elementary or secondary education after 
the effective date of this part. A recipient that is not, on the 
effective date of this regulation, in full compliance with the other 
requirements of the preceding paragraphs of this section shall meet such 
requirements at the earliest practicable time and in no event later than 
July 1, 1983.

[47 FR 8573, Mar. 1, 1982, as amended at 68 FR 51381, Aug. 26, 2003]



Sec. 605.34  Educational setting.

    (a) Academic setting. A recipient to which this subpart applies 
shall educate, or shall provide for the education of, each qualified 
handicapped person in its jurisdiction with persons who are not 
handicapped to the maximum extent appropriate to the needs of the 
handicapped person. A recipient shall place a handicapped person in the 
regular educational environment operated by the recipient unless it is 
demonstrated by the recipient that the education of the person in the 
regular environment with the use of supplementary aids and services 
cannot be achieved satisfactorily. Whenever a recipient places a person 
in a setting other than the regular educational environment pursuant to 
this paragraph, it shall take into account the proximity of the 
alternate setting to the person's home.
    (b) Nonacademic settings. In providing or arranging for the 
provision of nonacademic and extracurricular services and activities, 
including meals, recess periods, and the services and activities set 
forth in Sec. 605.37(a)(2), a recipient shall ensure that handicapped 
persons participate with nonhandicapped persons in such activities and 
services to the maximum extent appropriate to the needs of the 
handicapped person in question.
    (c) Comparable facilities. If a recipient, in compliance with 
paragraph (a) of this section, operates a facility that is identifiable 
as being for handicapped persons, the recipient shall ensure that the 
facility and the services and activities provided therein are comparable 
to the other facilities, services, and activities of the recipient.



Sec. 605.35  Evaluation and placement.

    (a) Preplacement evaluation. A recipient that operates a public 
elementary or secondary education program or activity shall conduct an 
evaluation in accordance with the requirements of paragraph (b) of this 
section of any person who, because of handicap, needs or

[[Page 91]]

is believed to need special education or related services before taking 
any action with respect to the initial placement of the person in 
regular or special education and any subsequent significant change in 
placement.
    (b) Evaluation procedures. A recipient to which this subpart applies 
shall establish standards and procedures for the evaluation and 
placement of persons who, because of handicap, need or are believed to 
need special education or related services which ensure that:
    (1) Tests and other evaluation materials have been validated for the 
specific purpose for which they are used and are administered by trained 
personnel in conformance with the instructions provided by their 
producer;
    (2) Tests and other evaluation materials include those tailored to 
assess specific areas of educational need and not merely those which are 
designed to provide a single general intelligence quotient; and
    (3) Tests are selected and administered so as best to ensure that, 
when a test is administered to a student with impaired sensory, manual, 
or speaking skills, the test results accurately reflect the student's 
aptitude or achievement level or whatever other factor the test purports 
to measure, rather than reflecting the student's impaired sensory, 
manual, or speaking skills (except where those skills are the factors 
that the test purports to measure).
    (c) Placement procedures. In interpreting evaluation data and in 
making placement decisions, a recipient shall (1) draw upon information 
from a variety of sources, including aptitude and achievement tests, 
teacher recommendations, physical condition, social or cultural 
background, and adaptive behavior, (2) establish procedures to ensure 
that information obtained from all such sources is documented and 
carefully considered, (3) ensure that the placement decision is made by 
a group of persons, including persons knowledgeable about the child, the 
meaning of the evaluation data, and the placement options, and (4) 
ensure that the placement decision is made in conformity with Sec. 
605.34.
    (d) Reevaluation. A recipient to which this section applies shall 
establish procedures, in accordance with paragraph (b) of this section, 
for periodic reevaluation of students who have been provided special 
education and related services. A reevaluation procedure consistent with 
the Education for the Handicapped Act is one means of meeting this 
requirement.

[47 FR 8573, Mar. 1, 1982, as amended at 68 FR 51381, Aug. 26, 2003]



Sec. 605.36  Procedural safeguards.

    A recipient that operates a public elementary or secondary education 
program shall establish and implement, with respect to actions regarding 
the identification, evaluation, or educational placement of persons who, 
because of handicap, need or are believed to need special instruction or 
related services, a system of procedural safeguards that includes 
notice, an opportunity for the parents or guardian of the person to 
examine relevant records, an impartial hearing with opportunity for 
participation by the person's parents or guardian and representation by 
counsel, and a review procedure. Compliance with the procedural 
safeguards of section 615 of the Education of the Handicapped Act is one 
means of meeting this requirement.



Sec. 605.37  Nonacademic services.

    (a) General. (1) A recipient to which this subpart applies shall 
provide nonacademic and extracurricular services and activities in such 
manner as is necessary to afford handicapped students an equal 
opportunity for participation in such services and activities.
    (2) Nonacademic and extracurricular services and activities may 
include counseling services, physical recreational athletics, 
transportation, health services, recreational activities, special 
interest groups or clubs sponsored by the recipients, referrals to 
agencies which provide assistance to handicapped persons, and employment 
of students, including both employment by the recipient and assistance 
in making available outside employment.
    (b) Counseling services. A recipient to which this subpart applies 
that provides personal, academic, or vocational counseling, guidance, or 
placement services to its students shall provide these services without 
discrimination on the basis of handicap. The recipient

[[Page 92]]

shall ensure that qualified handicapped students are not counseled 
toward more restrictive career objectives than are nonhandicapped 
students with similar interests and abilities.
    (c) Physical education and athletics. (1) In providing physical 
education courses and athletics and similar aid, benefits, or services 
to any of its students, a recipient to which this subpart applies may 
not discriminate on the basis of handicap. A recipient that offers 
physical education courses or that operates or sponsors interscholastic, 
club, or intramural athletics shall provide to qualified handicapped 
students an equal opportunity for participation.
    (2) A recipient may offer to handicapped students physical education 
and athletic activities that are separate or different from those 
offered to nonhandicapped students only if separation or differentiation 
is consistent with the requirements of Sec. 605.34 and only if no 
qualified handicapped student is denied the opportunity to compete for 
teams or to participate in courses that are not separate or different.

[47 FR 8573, Mar. 1, 1982, as amended at 68 FR 51381, Aug. 26, 2003]



Sec. 605.38  Preschool and adult education.

    A recipient to which this subpart applies that provides preschool 
education or day care or adult education may not, on the basis of 
handicap, exclude qualified handicapped persons and shall take into 
account the needs of such persons in determining the aid, benefits, or 
services to be provided.

[47 FR 8573, Mar. 1, 1982, as amended at 68 FR 51381, Aug. 26, 2003]



Sec. 605.39  Private education.

    (a) A recipient that provides private elementary or secondary 
education may not, on the basis of handicap, exclude a qualified 
handicapped person if the person can, with minor adjustments, be 
provided an appropriate education, as defined in Sec. 605.33(b)(1), 
within that recipient's program or activity.
    (b) A recipient to which this section applies may not charge more 
for the provision of an appropriate education to handicapped persons 
than to nonhandicapped persons except to the extent that any additional 
charge is justified by a substantial increase in cost to the recipient.
    (c) A recipient to which this section applies that provides special 
education shall do so in accordance with the provisions of Sec. Sec. 
605.35 and 605.36. Each recipient to which this section applies is 
subject to the provisions of Sec. Sec. 605.34, 605.37 and 605.38.

[47 FR 8573, Mar. 1, 1982, as amended at 68 FR 51381, Aug. 26, 2003]



Sec. 605.40  [Reserved]



                    Subpart E_Postsecondary Education



Sec. 605.41  Application of this subpart.

    Subpart E applies to postsecondary education programs or activities, 
including postsecondary vocational education programs or activities, 
that receive Federal financial assistance and to recipients that 
operate, or that receive Federal financial assistance for the operation 
of, such programs or activities.

[47 FR 8573, Mar. 1, 1982, as amended at 68 FR 51381, Aug. 26, 2003]



Sec. 605.42  Admissions and recruitment.

    (a) General. Qualified handicapped persons may not, on the basis of 
handicap, be denied admission or be subjected to discrimination in 
admission or recruitment by a recipient to which this subpart applies.
    (b) Admissions. In administering its admission policies, a recipient 
to which this subpart applies:
    (1) May not apply limitations upon the number or proportion of 
handicapped persons who may be admitted;
    (2) May not make use of any test or criterion for admission that has 
a disproportionate, adverse effect on handicapped persons or any class 
of handicapped persons unless (i) the test or criterion, as used by the 
recipient, has been validated as a predictor of success in the education 
program or activity in question and (ii) alternate tests or criteria 
that have a less disproportionate, adverse effect are not shown by the 
Director to be available.

[[Page 93]]

    (3) Shall assure itself that (i) admissions tests are selected and 
administered so as best to ensure that, when a test is administered to 
an applicant who has a handicap that impairs sensory, manual, or 
speaking skills, the test results accurately reflect the applicant's 
aptitude or achievement level or whatever other factor the test purports 
to measure, rather than reflecting the applicant's impaired sensory, 
manual, or speaking skills (except where those skills are the factors 
that the test purports to measure); (ii) admissions tests that are 
designed for persons with impaired sensory, manual, or speaking skills 
are offered as often and in as timely a manner as are other admissions 
tests; and (iii) admissions tests are administered in facilities that, 
on the whole, are accessible to handicapped persons; and
    (4) Except as provided in paragraph (c) of this section, may not 
make preadmission inquiry as to whether an applicant for admission is a 
handicapped person but, after admission, may make inquiries on a 
confidential basis as to handicaps that may require accommodation.
    (c) Preadmission inquiry exception. When a recipient is taking 
remedial action to correct the effects of past discrimination pursuant 
to Sec. 605.6(a) or when a recipient is taking voluntary action to 
overcome the effects of conditions that resulted in limited 
participation in its federally assisted program or activity pursuant to 
Sec. 605.6(6), the recipient may invite applicants for admission to 
indicate whether and to what extent they are handicapped, Provided, 
That:
    (1) The recipient states clearly on any written questionnaire used 
for this purpose or makes clear orally if no written questionnaire is 
used that the information requested is intended for use solely in 
connection with its remedial action obligations or its voluntary action 
efforts; and
    (2) The recipient states clearly that the information is being 
requested on a voluntary basis, that it will be kept confidential, that 
refusal to provide it will not subject the applicant to any adverse 
treatment, and that it will be used only in accordance with this part.
    (d) Validity studies. For the purpose of paragraph (b)(2) of this 
section, a recipient may base prediction equations on first year grades, 
but shall conduct periodic validity studies against the criterion of 
overall success in the education program or activity in question in 
order to monitor the general validity of the test scores.



Sec. 605.43  Treatment of students; general.

    (a) No qualified handicapped student shall, on the basis of 
handicap, be excluded from participation in, be denied the benefits of, 
or otherwise be subjected to discrimination under any academic, 
research, occupational training, housing, health insurance, counseling, 
financial aid, physical education, athletics, recreation, 
transportation, other extracurricular, or other postsecondary education 
aid, benefits, or services to which this subpart applies.
    (b) A recipient to which this subpart applies that considers 
participation by students in education programs or activities not 
operated wholly by the recipient as part of, or equivalent to, an 
education program or activity operated by the recipient shall assure 
itself that the other education program or activity, as a whole, 
provides an equal opportunity for the participation of qualified 
handicapped persons.
    (c) A recipient to which this subpart applies may not, on the basis 
of handicap, exclude any qualified handicapped student from any course, 
course of study, or other part of its education program or activity.
    (d) A recipient to which this subpart applies shall operate its 
program or activity in the most integrated setting appropriate.

[47 FR 8573, Mar. 1, 1982, as amended at 68 FR 51381, Aug. 26, 2003]



Sec. 605.44  Academic adjustments.

    (a) Academic requirements. A recipient to which this subpart applies 
shall make such modifications to its academic requirements as are 
necessary to ensure that such requirements do not discriminate or have 
the effect of discriminating, on the basis of handicap,

[[Page 94]]

against a qualified handicapped applicant or student. Academic 
requirements that the recipient can demonstrate are essential to the 
instruction being pursued by such student or to any directly related 
licensing requirement will not be regarded as discriminatory within the 
meaning of this section. Modifications may include changes in the length 
of time permitted for the completion of degree requirements, 
substitution of specific courses required for the completion of degree 
requirements, and adaptation of the manner in which specific courses are 
conducted.
    (b) Other rules. A recipient to which this subpart applies may not 
impose upon handicapped students other rules, such as the prohibition of 
tape recorders in classrooms or of dog guides in campus buildings, that 
have the effect of limiting the participation of handicapped students in 
the recipient's education program or activity.
    (c) Course examinations. In its course examinations or other 
procedures for evaluating students' academic achievement, a recipient to 
which this subpart applies shall provide such methods for evaluating the 
achievement of students who have a handicap that impairs sensory, 
manual, or speaking skills as will best ensure that the results of the 
evaluation represents the student's achievement in the course, rather 
than reflecting the student's impaired sensory, manual, or speaking 
skills (except where such skills are the factors that the test purports 
to measure).
    (d) Auxiliary aids. (1) A recipient to which this subpart applies 
shall take such steps as are necessary to ensure that no handicapped 
student is denied the benefits of, excluded from participation in, or 
otherwise subjected to discrimination under the education program or 
activity operated by the recipient because of the absence of educational 
auxiliary aids for students with impaired sensory, manual, or speaking 
skills.
    (2) Auxiliary aids may include taped texts, interpreters or other 
effective methods of making orally delivered materials available to 
students with hearing impairments, readers in libraries for students 
with visual impairments, classroom equipment adapted for use by students 
with manual impairments, and other similar services and actions. 
Recipients need not provide attendents, individually prescribed devices, 
readers for personal use or study, or other devices or services of a 
personal nature.

[47 FR 8573, Mar. 1, 1982, as amended at 68 FR 51381, Aug. 26, 2003]



Sec. 605.45  Housing.

    (a) Housing provided by the recipient. A recipient that provides 
housing to its nonhandicapped students shall provide comparable, 
convenient, and accessible housing to handicapped students at the same 
cost as to others. At the end of the transition period provided for in 
subpart C, such housing shall be available in sufficient quantity and 
variety so that the scope of handicapped students' choice of living 
accommodations is, as a whole, comparable to that of nonhandicapped 
students.
    (b) Other housing. A recipient that assists any agency, 
organization, or person in making housing available to any of its 
students shall take such action as may be necessary to assure itself 
that such housing is, as a whole, made available in a manner that does 
not result in discrimination on the basis of handicap.



Sec. 605.46  Financial and employment assistance to students.

    (a) Provision of financial assistance. (1) In providing financial 
assistance to qualified handicapped persons, a recipient to which this 
subpart applies may not (i), on the basis of handicap, provide less 
assistance than is provided to nonhandicapped persons, limit eligibility 
for assistance, or otherwise discriminate or (ii) assist any entity or 
person that provides assistance to any of the recipient's students in a 
manner that discriminates against qualified handicapped persons on the 
basis of handicap.
    (2) A recipient may administer or assist in the administration of 
scholarships, fellowships, or other forms of financial assistance 
established under wills, trusts, bequests, or similar legal instruments 
that require awards to be made on the basis of factors that discriminate 
or have the effect of discriminating on the basis of handicap

[[Page 95]]

only if the overall effect of the award of scholarships, fellowships, 
and other forms of financial assistance is not discriminatory on the 
basis of handicap.
    (b) Assistance in making available outside employment. A recipient 
that helps its students to obtain employment shall assure itself that 
the employment opportunities it helps to make available to students are, 
as a whole, made available in a manner that would not violate subpart B 
if they were provided by the recipient.
    (c) Employment of students by recipients. A recipient that employs 
any of its students may not do so in a manner that violates subpart B.



Sec. 605.47  Nonacademic services.

    (a) Physical education and athletics. (1) In providing physical 
education courses and athletics and similar aid, benefits, or services 
to any of its students, a recipient to which this subpart applies may 
not discriminate on the basis of handicap. A recipient that offers 
physical education courses or that operates or sponsors intercollegiate, 
club, or intramural athletics shall provide to qualified handicapped 
students an equal opportunity for participation in these activities.
    (2) A recipient may offer to handicapped students physical education 
and athletic activities that are separate or different only if 
separation or differentiation is consistent with the requirements of 
Sec. 605.43(d) and only if no qualified handicapped student is denied 
the opportunity to compete for teams or to participate in courses that 
are not separate or different.
    (b) Counseling and placement services. A recipient to which this 
subpart applies that provides personal, academic, or vocational 
counseling, guidance, or placement services to its students shall 
provide these services without discrimination on the basis of handicap. 
The recipient shall ensure that qualified handicapped students are not 
counseled toward more restrictive career objectives than are 
nonhandicapped students with similar interests and abilities. This 
requirement does not preclude a recipient from providing factual 
information about licensing and certification requirements that may 
present obstacles to handicapped persons in their pursuit of particular 
careers.
    (c) Social organizations. A recipient that provides significant 
assistance to fraternities, sororities, or similar organizations shall 
assure itself that the membership practices of such organizations do not 
permit discrimination otherwise prohibited by this subpart.

[47 FR 8573, Mar. 1, 1982, as amended at 68 FR 51381, Aug. 26, 2003]



Sec. Sec. 605.48-605.50  [Reserved]



             Subpart F_Health, Welfare, and Social Services



Sec. 605.51  Application of this subpart.

    Subpart F applies to health, welfare, and other social service 
programs or activities that receive Federal financial assistance and to 
recipients that operate, or that receive Federal financial assistance 
for the operation of, such programs or activities.

[47 FR 8573, Mar. 1, 1982, as amended at 68 FR 51381, Aug. 26, 2003]



Sec. 605.52  Health, welfare, and other social services.

    (a) General. In providing health, welfare, or other social services 
or benefits, a recipient may not, on the basis of handicap:
    (1) Deny a qualified handicapped person these benefits or services;
    (2) Afford a qualified handicapped person an opportunity to receive 
benefits or services that is not equal to that offered nonhandicapped 
persons;
    (3) Provide a qualified handicapped person which benefits or 
services that are not as effective (as defined in Sec. 605.4(b)) as the 
benefits or services provided to others;
    (4) Provide benefits or services in a manner that limits or has the 
effect of limiting the participation of qualified handicapped persons; 
or
    (5) Provide different or separate benefits or services to 
handicapped persons except where necessary provide qualified handicapped 
persons with benefits and services that are as effective as those 
provided to others.
    (b) Notice. A recipient that provides notice concerning benefits or 
services or written material concerning waivers

[[Page 96]]

of rights or consent to treatment shall take such steps as are necessary 
to ensure that qualified handicapped persons, including those with 
impaired sensory or speaking skills, are not denied effective notice 
because of their handicap.
    (c) Emergency treatment for the hearing impaired. A recipient 
hospital that provides health services or benefits shall establish a 
procedure for effective communication with persons with impaired hearing 
for the purpose of providing emergency health care.
    (d) Auxiliary aids. (1) A recipient to which this subpart applies 
that employs fifteen or more persons shall provide appropriate auxiliary 
aids to persons with impaired sensory, manual, or speaking skills, where 
necessary to afford such persons an equal opportunity to benefit from 
the service in question.
    (2) The Director may require recipients with fewer than fifteen 
employees to provide auxiliary aids where the provision of aids would 
not significantly impair the ability of the recipient to provide its 
benefits or services.
    (3) For the purpose of this paragraph, auxiliary aids may include 
brailled and taped material, interpreters, and other aids for persons 
with impaired hearing or vision.



Sec. 605.53  Drug and alcohol addicts.

    A recipient to which this subpart applies that operates a general 
hospital or outpatient facility may not discriminate in admission or 
treatment against a drug or alcohol abuser or alcoholic who is suffering 
from a medical condition, because of the person's drug or alcohol abuse 
or alcoholism.



Sec. 605.54  Education of institutionalized persons.

    A recipient to which this subpart applies and that operates or 
supervises a program or activity that provides aid, benefits, or 
services for persons who are institutionalized because of handicap shall 
ensure that each qualified handicapped person, as defined in Sec. 
605.3(k)(2), in its program or activity is provided an appropriate 
education, as defined in Sec. 605.33(b). Nothing in this section shall 
be interpreted as altering in any way the obligations of recipients 
under subpart D.

[47 FR 8573, Mar. 1, 1982, as amended at 68 FR 51381, Aug. 26, 2003]



Sec. Sec. 605.55-605.60  [Reserved]



                          Subpart G_Procedures



Sec. 605.61  Procedures.

    The procedural provisions applicable to title VI of the Civil Rights 
Act of 1964 apply to this part. These procedures are found in Sec. Sec. 
611.6 through 611.10 of this title (45 CFR). In the event that the 
Department of Education or the Department of Health and Human Services 
conducts a hearing under this part on behalf of NSF, the provisions of 
45 CFR 84.61 shall also apply except that the Director of NSF or his 
designee shall also be ``the responsible Department official'' for 
purposes of 45 CFR 81.102 and 81.121 and ``the reviewing authority'' for 
purposes of 45 CFR 81.103, 81.104, and 81.105. Also, in such cases, the 
Director of NSF rather than the Secretary of HHS or Education shall 
conduct the review provided for in 45 CFR 81.106.



Sec. Sec. 605.62-605.90  [Reserved]



PART 606_ENFORCEMENT OF NONDISCRIMINATION ON THE BASIS OF HANDICAP IN 
PROGRAMS OR ACTIVITIES CONDUCTED BY THE NATIONAL SCIENCE FOUNDATION--

Table of Contents




Sec.
606.1 Purpose.
606.2 Application.
606.3 Definitions.
606.4-606.9 [Reserved]
606.10 Self-evaluation.
606.11 Notice.
606.12-606.29 [Reserved]
606.30 General prohibitions against discrimination.
606.31-606.39 [Reserved]
606.40 Employment.
606.41-606.49 [Reserved]
606.50 Program accessibility: Discrimination prohibited.
606.51 Program accessibility: Existing facilities.
606.52 Program accessibility: New construction and alterations.
606.53-606.59 [Reserved]
606.60 Communications.

[[Page 97]]

606.61-606.69 [Reserved]
606.70 Complaint procedures.
606.71-606.99 [Reserved]

    Authority: 29 U.S.C. 794.

    Source: 54 FR 4791, Jan. 31, 1989, unless otherwise noted.



Sec. 606.1  Purpose.

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



Sec. 606.2  Application.

    This part applies to all programs or activities conducted by the 
Foundation, except for programs or activities conducted outside the 
United States that do not involve individuals with handicaps in the 
United States. Programs and activities receiving Federal financial 
assistance from the Foundation are covered by 45 CFR part 605.



Sec. 606.3  Definitions.

    For purposes of this part, the term--
    Assistant Attorney General means the Assistant Attorney General, 
Civil Rights Division, 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 Foundation. For example, auxiliary aids 
useful for persons with impaired vision include readers, Brailled 
materials, audio recordings, and other similar services and devices. 
Auxiliary aids useful for persons with impaired hearing include 
telephone handset amplifiers, telephones compatible with hearing aids, 
telecommunication devices for deaf persons (TDD's), interpreters, note 
takers, 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 Foundation's alleged 
discriminatory action in sufficient detail to inform the Foundation 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.
    Foundation means the National Science Foundation.
    Individual with handicaps means any person in the United States who 
has a physical or mental impairment that substantially limits one or 
more major life activities, has a record of such an impairment, or is 
regarded as having such an impairment. As used in this definition, the 
phrase:
    (1) Physical or mental impairment includes--
    (i) Any physiological disorder or condition, cosmetic disfigurement, 
or anatomical loss affecting one or more of the following body systems: 
neurological; musculoskeletal; special sense organs; respiratory, 
including speech organs; cardiovascular; reproductive; digestive; 
genitourinary; hemic and lymphatic; skin; and endocrine; or
    (ii) Any mental or psychological disorder, such as mental 
retardation, organic brain syndrome, emotional or mental illness, and 
specific learning disabilities. The term physical or mental impairment 
includes, but is not limited to, such diseases and conditions as 
orthopedic, visual, speech, and hearing impairments, cerebral palsy, 
epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, 
diabetes, mental retardation, emotional illness, and drug addiction and 
alcoholism.
    (2) Major life activities includes functions such as caring for 
one's self, performing manual tasks, walking, seeing, hearing, speaking, 
breathing, learning, and working.
    (3) Has a record of such an impairment means has a history of, or 
has been misclassified as having, a mental or physical impairment that 
substantially limits one or more major life activities.

[[Page 98]]

    (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 Foundation 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 Foundation as having such an 
impairment.
    Qualified individual with handicaps means--
    (1) With respect to any Foundation program or activity under which a 
person is required to perform services or to achieve a level of 
accomplishment, an individual with handicaps who meets the essential 
eligibility requirements and who can achieve the purpose of the program 
or activity without modifications in the program or activity that the 
Foundation can demonstrate would result in a fundamental alteration in 
its nature;
    (2) With respect to any other program or activity, an individual 
with handicaps who meets the essential eligibility requirements for 
participation in, or receipt of benefits from, that program or activity; 
and
    (3) Qualified handicapped person as that term is defined for 
purposes of employment in 29 CFR 1613.702(f), which is made applicable 
to this part by Sec. 606.40.
    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); the 
Rehabilitation Act Amendments of 1986 (Pub. L. 99-506, 100 Stat. 1810); 
and the Civil Rights Restoration Act of 1987 (Pub. L. 100-259, 102 Stat. 
28). As used in this part, section 504 applies only to programs or 
activities conducted by Executive agencies and not to federally assisted 
programs.



Sec. Sec. 606.4-606.9  [Reserved]



Sec. 606.10  Self-evaluation.

    (a) The Foundation shall, within one year of the effective date of 
this part, 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 Foundation shall proceed to make the necessary 
modifications.
    (b) The Foundation shall provide an opportunity to interested 
persons, including individuals with handicaps or organizations 
representing individuals with handicaps, to participate in the self-
evaluation process by submitting comments (both oral and written).
    (c) The Foundation shall, for at least three years following 
completion of the evaluation required under paragraph (a) of this 
section, maintain on file and make available for public inspection:
    (1) A list of the interested persons who made comments;
    (2) A description of areas examined and any problems identified; and
    (3) A description of any modifications made.



Sec. 606.11  Notice.

    The Foundation 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 Foundation and make such 
information available to them in such manner as the Director of the 
Foundation finds necessary to apprise such persons of the protections 
against discrimination assured them by section 504 and this regulation.



Sec. Sec. 606.12-606.29  [Reserved]



Sec. 606.30  General prohibitions against discrimination.

    (a) No qualified individual with handicaps shall, on the basis of 
handicap, be excluded from participation in, be denied the benefits of, 
or otherwise be subjected to discrimination under any program or 
activity conducted by the Foundation.

[[Page 99]]

    (b)(1) The Foundation, in providing any aid, benefit, or service, 
may not, directly or through contractual, licensing, or other 
arrangements, on the basis of handicap--
    (i) Deny a qualified individual with handicaps the opportunity to 
participate in or benefit from the aid, benefit, or service;
    (ii) Afford a qualified individual with handicaps an opportunity to 
participate in or benefit from the aid, benefit, or service that is not 
equal to that afforded others;
    (iii) Provide a qualified individual with handicaps with an aid, 
benefit, or service that is not as effective in affording equal 
opportunity to obtain the same result, to gain the same benefit, or to 
reach the same level of achievement as that provided to others;
    (iv) Provide different or separate aid, benefits, or services to 
individuals with handicaps or to any class of individuals with handicaps 
than is provided to others unless such action is necessary to provide 
qualified individuals with handicaps with aid, benefits, or services 
that are as effective as those provided to others;
    (v) Deny a qualified individual with handicaps the opportunity to 
participate as a member of planning or advisory boards; or
    (vi) Otherwise limit a qualified individual with handicaps in the 
enjoyment of any right, privilege, advantage, or opportunity enjoyed by 
others receiving the aid, benefit, or service.
    (2) The Foundation may not deny a qualified individual with 
handicaps the opportunity to participate in programs or activities that 
are not separate or different, despite the existence of permissibly 
separate or different programs or activities.
    (3) The Foundation may not, directly or through contractual or other 
arrangements, utilize criteria or methods of administration the purpose 
or effect of which would--
    (i) Subject qualified individuals with handicaps to discrimination 
on the basis of handicap; or
    (ii) Defeat or substantially impair accomplishment of the objectives 
of a program or activity with respect to individuals with handicaps.
    (4) The Foundation may not, in determining the site or location of a 
facility, make selections the purpose or effect of which would--
    (i) Exclude qualified individuals with handicaps from, deny them the 
benefits of, or otherwise subject them to discrimination under any 
program or activity conducted by the Foundation; or
    (ii) Defeat or substantially impair the accomplishment of the 
objectives of a program or activity with respect to individuals with 
handicaps.
    (5) The Foundation, in the selection of procurement contractors, may 
not use criteria that subject qualified individuals with handicaps 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 individuals 
with handicaps or the exclusion of a specific class of individuals with 
handicaps from a program limited by Federal statute or Executive order 
to a different class of individuals with handicaps is not prohibited by 
this part.
    (d) The Foundation shall administer programs and activities in the 
most integrated setting appropriate to the needs of qualified 
individuals with handicaps.



Sec. Sec. 606.31-606.39  [Reserved]



Sec. 606.40  Employment.

    No qualified individual with handicaps shall, on the basis of 
handicap, be subjected to discrimination in employment under any program 
or activity conducted by the Foundation. 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. 606.41-606.49  [Reserved]



Sec. 606.50  Program accessibility: Discrimination prohibited.

    Except as otherwise provided in Sec. 606.51, no qualified 
individual with handicaps shall, because the Foundation's facilities are 
inaccessible to or

[[Page 100]]

unusable by individuals with handicaps, be denied the benefits of, be 
excluded from participation in, or otherwise be subjected to 
discrimination under any program or activity conducted by the 
Foundation.



Sec. 606.51  Program accessibility: Existing facilities.

    (a) General. The Foundation shall operate each program or activity 
so that the program or activity, when viewed in its entirety, is readily 
accessible to and usable by individuals with handicaps. This paragraph 
does not--
    (1) Necessarily require the Foundation to make each of its existing 
facilities accessible to and usable by individuals with handicaps; or
    (2) Require the Foundation 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 Foundation personnel believe that the proposed 
action would fundamentally alter the program or activity or would result 
in undue financial and administrative burdens, the Foundation has the 
initial burden of establishing that compliance with Sec. 606.51(a) 
would result in such alteration or burdens. The decision that compliance 
would result in such alteration or burdens must be made by the 
Foundation Director or his or her designee after considering all 
Foundation 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 burdens, the Foundation shall take 
any other action that would not result in such an alteration or such 
burdens but would nevertheless ensure that individuals with handicaps 
receive the benefits and services of the program or activity.
    (b) Methods. The Foundation may comply with the requirements of this 
section through such means as redesign of equipment, reassignment of 
services to accessible buildings, assignment of aides to beneficiaries, 
home visits, delivery of services at alternate accessible sites, 
alteration of existing facilities and construction of new facilities, 
use of accessible rolling stock, or any other methods that result in 
making its programs or activities readily accessible to and usable by 
individuals with handicaps. The Foundation is not required to make 
structural changes in existing facilities where other methods are 
effective in achieving compliance with this section. The Foundation, 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 Foundation shall give priority to 
those methods that offer programs and activities to qualified 
individuals with handicaps in the most integrated setting appropriate.
    (c) Time period for compliance. The Foundation shall comply with the 
obligations established under this section within 60 days of the 
effective date of this part except that where structural changes in 
facilities are undertaken, such changes shall be made within three years 
of the effective date of this part, 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 
Foundation shall develop, within six months of the effective date of 
this part, a transition plan setting forth the steps necessary to 
complete such changes. The Foundation shall provide an opportunity to 
interested persons, including individuals with handicaps or 
organizations representing individuals with handicaps, to participate in 
the development of the transition plan by submitting comments (both oral 
and written). A copy of the transition plan shall be made available for 
public inspection. The plan shall, at a minimum--
    (1) Identify physical obstacles in the Foundation's facilities that 
limit the accessibility of its programs or activities to individuals 
with handicaps;
    (2) Describe in detail the methods that will be used to make the 
facilities accessible;

[[Page 101]]

    (3) Specify the schedule for taking the steps necessary to achieve 
compliance with this section and, if the time period of 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. 606.52  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 Foundation shall be designed, 
constructed, or altered so as to be readily accessible to and usable by 
individuals with handicaps. The definitions, requirements, and standards 
of the Architectural Barriers Act (42 U.S.C. 4151-4157), as established 
in 41 CFR 101-19.600 to 101-19.607, apply to buildings covered by this 
section.



Sec. Sec. 606.53-606.59  [Reserved]



Sec. 606.60  Communications.

    (a) The Foundation shall take appropriate steps to ensure effective 
communication with applicants, participants, personnel of other Federal 
entities, and members of the public.
    (1) The Foundation shall furnish appropriate auxiliary aids where 
necessary to afford an individual with handicaps an equal opportunity to 
participate in, and enjoy the benefits of, a program or activity 
conducted by the Foundation.
    (i) In determining what type of auxiliary aid is necessary, the 
Foundation shall give primary consideration to the requests of the 
individual with handicaps.
    (ii) The Foundation need not provide individually prescribed 
devices, readers for personal use or study, or other devices of a 
personal nature.
    (2) Where the Foundation communicates with applicants and 
beneficiaries by telephone, telecommunications devices for deaf persons 
(TDD's) or equally effective telecommunication systems shall be used to 
communicate with persons with impaired hearing.
    (b) The Foundation 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 Foundation 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 Foundation 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 Foundation personnel believe that 
the proposed action would fundamentally alter the program or activity or 
would result in undue financial and administrative burdens, the 
Foundation has the initial burden of establishing that compliance with 
Sec. 606.60 would result in such alteration or burdens. The decision 
that compliance would result in such alteration or burdens must be made 
by the Foundation Director or his or her designee after considering all 
Foundation 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 Foundation shall take any other action that would 
not result in such an alteration or such burdens but would nevertheless 
ensure that, to the maximum extent possible, individuals with handicaps 
receive the benefits and services of the program or activity.



Sec. Sec. 606.61-606.69  [Reserved]



Sec. 606.70  Complaint 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 Foundation.
    (b) The Foundation shall process complaints alleging violations of 
section 504 with respect to employment

[[Page 102]]

according to the procedures established by the Equal Employment 
Opportunity Commission in 29 CFR part 1613 pursuant to section 501 of 
the Rehabilitation Act of 1973 (29 U.S.C. 791).
    (c) The Director, Office of Equal Opportunity Programs (OEOP), shall 
coordinate implementation of this section.
    (d) Persons wishing to submit complaints should submit complete 
complaints (see Sec. 606.03) to the Office of Equal Opportunity 
Programs, National Science Foundation, 4201 Wilson Boulevard, Arlington, 
VA 22230. In accordance with the procedures outlined below, the 
Foundation will accept all complete complaints and will either undertake 
to investigate them if they are within the jurisdiction of the 
Foundation and submitted within 180 days of the alleged acts of 
discrimination or in the case of complaints not within the jurisdiction 
of the Foundation, it shall promptly notify the complainant and shall 
make reasonable efforts to refer the complaint to the appropriate 
government entity. Complete complaints submitted after the 180 day time 
limit may also be acted upon at the discretion of the Foundation if good 
cause for the delay in submission is found.
    (e) The Foundation shall notify the Architectural and Transportation 
Barriers Compliance Board upon receipt of any complaint alleging that a 
building or a facility that is subject to the Architectural Barriers Act 
of 1968, as amended (42 U.S.C. 4151-4157), is not readily accessible to 
and usable by individuals with handicaps.
    (f) Within 180 days of the receipt of a complete complaint, the 
Director, Office of Equal Opportunity Programs (OEOP), or his or her 
designee or delegate, will investigate the complaint and 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 a right to appeal to the Director of the Foundation.
    (g)(1) A complainant may appeal findings of fact, conclusions of 
law, or remedies to the Director of the Foundation. Such appeals must be 
in writing and must state fully the basis for the appeal, proposed 
alternative findings of fact, conclusions of law, or remedies. They must 
be sent (as evidenced by an appropriate postmark or other satisfactory 
evidence) within 90 days after the date of receipt from the Foundation 
of the letter described in paragraph (f) of this section. The Foundation 
may extend this time for good cause.
    (2) The Director shall notify the complainant of the results of the 
appeal within 30 days of the receipt of the appeal. If the Director 
determines that additional information is needed from the complainant, 
the Director shall have 30 days from the date such additional 
information is received from the complainant to make a determination on 
the appeal.
    (h) The time limits for sending a letter to the complainant in 
paragraph (f) and for deciding an appeal in paragraph (g)(2) of this 
section may be extended with the permission of the Assistant Attorney 
General.

[54 FR 4791, Jan. 31, 1989, as amended at 59 FR 37437, July 22, 1994]



Sec. Sec. 606.71-606.99  [Reserved]



PART 607_SALARY OFFSET--Table of Contents




Sec.
607.1 Purpose and scope.
607.2 Definitions.
607.3 Applicability.
607.4 Notice requirements before offset.
607.5 Hearing.
607.6 Written decision.
607.7 Coordinating offset with another Federal agency.
607.8 Procedures for salary offset.
607.9 Refunds.
607.10 Statute of limitations.
607.11 Non-waiver of rights.
607.12 Interest, penalties, and administrative costs.

    Authority: 5 U.S.C. 5514; E.O. 12107, 3 CFR, 1978 Comp., p. 264; 5 
CFR part 550, subpart K.

    Source: 58 FR 68769, Dec. 29, 1993, unless otherwise noted.



Sec. 607.1  Purpose and scope.

    (a) This part provides procedures for the collection by 
administrative offset of a federal employee's salary without his or her 
consent to satisfy certain

[[Page 103]]

debts owed to the Federal government. This part applies to all Federal 
employees who owe debts to the National Science Foundation (NSF) and to 
current employees of NSF who owe debts to other Federal agencies. This 
part does not apply when the employee consents to recovery from his or 
her current pay account.
    (b) This part does not apply to debts or claims arising under:
    (1) The Internal Revenue Code of 1954, as amended, 26 U.S.C. 1 et 
seq.;
    (2) The Social Security Act, 42 U.S.C. 301 et seq.;
    (3) The tariff laws of the United States; or
    (4) Any case where a collection of a debt by salary offset is 
explicitly provided for or prohibited by another statute.
    (c) This part does not apply to any adjustment to pay arising out of 
an employee's selection of coverage or a change in coverage under a 
Federal benefits program requiring periodic deductions from pay if the 
amount to be recovered was accumulated over four pay periods or less.
    (d) This part does not preclude the compromise, suspension, or 
termination of collection action where appropriate under the standards 
implementing the Federal Claims Collection Act, 31 U.S.C. 3711 et seq., 
and 4 CFR parts 101 through 105.
    (e) This part does not preclude an employee from requesting waiver 
of an overpayment under 5 U.S.C. 5584, 10 U.S.C. 2774, or 32 U.S.C. 716, 
or in any way questioning the amount or validity of the debt by 
submitting a subsequent claim to the General Accounting Office. This 
part does not preclude an employee from requesting a waiver pursuant to 
other statutory provisions applicable to the particular debt being 
collected.
    (f) Matters not addressed in this part should be reviewed in 
accordance with the Federal Claims Collection Standards at 4 CFR 101.1 
et seq.



Sec. 607.2  Definitions.

    For the purposes of this part the following definitions will apply:
    Agency means an executive agency as defined at 5 U.S.C. 105, 
including the U.S. Postal Service and the U.S. Postal Rate Commission; a 
military department as defined at 5 U.S.C. 102; an agency or court in 
the judicial branch; an agency of the legislative branch, including the 
U.S. Senate and House of Representatives; and other independent 
establishments that are entities of the Federal government.
    Certification means a written debt claim received from a creditor 
agency which requests the paying agency to offset the salary of an 
employee.
    Chief Financial Officer means the Chief Financial Officer of NSF or 
such other official of NSF who is designated by the Chief Financial 
Officer to determine whether an employee is indebted to the United 
States and to take action to collect such debts.
    Creditor agency means an agency of the Federal Government to which 
the debt is owed.
    Debt means an amount owed by a Federal employee to the United States 
from sources which include loans insured or guaranteed by the United 
States and all other amounts due the United States from fees, leases, 
rents, royalties, services, sales of real or personal property, 
overpayments, penalties, damages, interests, fines, forfeitures (except 
those arising under the Uniform Code of Military Justice), and all other 
similar sources.
    Disposable pay means the amount that remains from an employee's 
Federal pay after required deductions for social security, Federal, 
State or local income tax, health insurance premiums, retirement 
contributions, life insurance premiums, Federal employment taxes, and 
any other deductions that are required to be withheld by law.
    Hearing official means an individual responsible for conducting a 
hearing with respect to the existence or amount of a debt claimed, or 
the repayment schedule of a debt, and who renders a decision on the 
basis of such hearing. A hearing official may not be under the 
supervision or control of the Chief Financial Officer or of persons 
having supervision or control over the Chief Financial Officer.
    NSF means the National Science Foundation.
    Paying agency means the agency that employs the individual who owes 
the

[[Page 104]]

debt and authorizes the payment of his or her current pay.
    Salary offset means an administrative offset to collect a debt 
pursuant to 5 U.S.C. 5514 by deduction(s) at one or more officially 
established pay intervals from the current pay account of an employee 
without his or her consent.



Sec. 607.3  Applicability.

    The regulations in this part are to be followed when:
    (a) NSF is owed a debt by an individual who is a current employee of 
the NSF; or
    (b) NSF is owed a debt by an individual currently employed by 
another Federal agency; or
    (c) NSF employs an individual who owes a debt to another Federal 
agency.



Sec. 607.4  Notice requirements before offset.

    (a) Salary offset shall not be made against an employee's pay unless 
the employee is provided with written notice signed by the Chief 
Financial Officer of the debt at least 30 days before salary offset 
commences.
    (b) The written notice shall contain:
    (1) A statement that the debt is owed and an explanation of its 
nature and amount;
    (2) The agency's intention to collect the debt by deducting from the 
employee's current disposable pay account;
    (3) The amount, frequency, proposed beginning date, and duration of 
the intended deduction(s);
    (4) An explanation of interest, penalties, and administrative 
charges, including a statement that such charges will be assessed unless 
excused in accordance with the Federal Claims Collections Standards at 4 
CFR 101.1;
    (5) The employee's right to inspect, request, and receive a copy of 
government records relating to the debt;
    (6) The employee's opportunity to establish a written schedule for 
the voluntary repayment of the debt in lieu of offset;
    (7) The employee's right to an oral hearing or a determination based 
on a review of the written record (``paper hearing'') conducted by an 
impartial hearing official concerning the existence or the amount of the 
debt, or the terms of the repayment schedule;
    (8) The procedures and time period for petitioning for a hearing;
    (9) A statement that a timely filing of a petition for a hearing 
will stay the commencement of collection proceedings;
    (10) A statement that a final decision on the hearing (if requested) 
will be issued by the hearing official not later than 60 days after the 
filing of the petition requesting the hearing unless the employee 
requests and the hearing official grants a delay in the proceedings;
    (11) A statement that knowingly false or frivolous statements, 
representations, or evidence may subject the employee to appropriate 
disciplinary procedures and/or statutory penalties;
    (12) A statement of other rights and remedies available to the 
employee under statutes or regulations governing the program for which 
the collection is being made;
    (13) Unless there are contractual or statutory provisions to the 
contrary, a statement that 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
    (14) A statement that the proceedings regarding such debt are 
governed by section 5 of the Debt Collection Act of 1982 (5 U.S.C. 
5514).



Sec. 607.5  Hearing.

    (a) Request for hearing. (1) An employee may file a petition for an 
oral or paper hearing in accordance with the instructions outlined in 
the agency's notice to offset.
    (2) A hearing may be requested by filing a written petition 
addressed to the Chief Financial Officer stating why the employee 
disputes the existence or amount of the debt or, in the case of an 
individual whose repayment schedule has been established other than by a 
written agreement, concerning the terms of the repayment schedule. The 
petition for a hearing must be received by the Chief Financial Officer 
not later than fifteen (15) calendar days after the employee's receipt 
of the offset notice, or notice of the terms of the payment schedule, 
unless the employee can show

[[Page 105]]

good cause for failing to meet the filing deadline.
    (b) Hearing procedures. (1) The hearing will be presided over by an 
impartial hearing official.
    (2) The hearing shall conform to procedures contained in the Federal 
Claims Collection Standards, 4 CFR 102.3(c). The burden shall be on the 
employee to demonstrate that the existence or the amount of the debt is 
in error.



Sec. 607.6  Written decision.

    (a) The hearing official shall issue a final written opinion no 
later than 60 days after the filing of the petition.
    (b) The written opinion will include a statement of the facts 
presented to demonstrate the nature and origin of the alleged debt; the 
hearing official's analysis, findings, and conclusions; the amount and 
validity of the debt, if any; and the repayment schedule, if any.



Sec. 607.7  Coordinating offset with another Federal agency.

    (a) When the NSF is the creditor agency and the Chief Financial 
Officer determines that an employee of another agency (i.e., the paying 
agency) owes a debt to the NSF, the Chief Financial Officer shall, as 
appropriate:
    (1) Certify in writing to the paying agency that the employee owes 
the debt, the amount and basis of the debt, the date on which payment 
was due, and the date the Government's right to collect the debt 
accrued, and that this part 607 has been approved by the Office of 
Personnel Management.
    (2) Unless the employee has consented to salary offset in writing or 
signed a statement acknowledging receipt of the required procedures, and 
the written consent is sent to the paying agency, the Chief Financial 
Officer must advise the paying agency of the action(s) taken under this 
part 607, and the date(s) they were taken.
    (3) Request the paying agency to collect the debt by salary offset. 
If deductions must be made in installments, the Chief Financial Officer 
may recommend to the paying agency the amount or percentage of 
disposable pay to be collected in each installment;
    (4) Arrange for a hearing upon the proper petitioning by the 
employee.
    (b) When the NSF is the creditor agency and the employee is in the 
process of separating from the Federal service, the NSF must submit its 
debt claim to the paying agency as provided in this part. The paying 
agency must certify the total amount collected, give a copy of the 
certification to the employee, and send a copy of the certification and 
notice of the employee's separation to the NSF. If the paying agency is 
aware that the employee is entitled to Civil Service Retirement and 
Disability Fund or other similar payments, it must certify to the agency 
responsible for making such payments that the debtor owes a debt, 
including the amount of the debt, and that the provisions of 5 CFR 
550.1108 have been followed.
    (c) When the NSF is the creditor agency and the employee has already 
separated from Federal service and all payments due from the paying 
agency have been paid, the Chief Financial Officer may request, unless 
otherwise prohibited, that money payable to the employee from the Civil 
Service Retirement and Disability Fund or other similar funds be 
collected by administrative offset.
    (d) When the NSF is the paying agency, upon receipt of a properly 
certified debt claim from another agency, deductions will be scheduled 
to begin at the next established pay interval. The employee must receive 
written notice that NSF has received a certified debt claim from the 
creditor agency, the amount of the debt, the date salary offset will 
begin, and the amount of the deduction(s). NSF shall not review the 
merits of the creditor agency's determination of the validity or the 
amount of the certified claim. If the employee transfers to another 
agency after the creditor agency has submitted its debt claim to NSF and 
before the debt is collected completely, NSF must certify the amount 
collected. One copy of the certification must be furnished to the 
employee. A copy must be furnished to the creditor agency with notice of 
the employee's transfer.



Sec. 607.8  Procedures for salary offset.

    (a) Deductions to liquidate an employee's debt will be by the method 
and

[[Page 106]]

in the amount stated in the Chief Financial Officer's notice of 
intention to offset as provided in Sec. 607.4. Debts will be collected 
in one lump sum where possible. If the employee is financially unable to 
pay in one lump sum, collection must be made in installments.
    (b) Debts will be collected by deduction at officially established 
pay intervals from an employee's current pay account unless alternative 
arrangements for repayment are made.
    (c) Installment deductions will be made over a period not greater 
than the anticipated period of employment. The size of installment 
deductions must bear a reasonable relationship to the size of the debt 
and the employee's ability to pay. The deduction for the pay intervals 
for any period must not exceed 15% of disposable pay unless the employee 
has agreed in writing to a deduction of a greater amount.
    (d) Unliquidated debts may be offset against any financial payment 
due to a separated employee including but not limited to final salary or 
leave payment in accordance with 31 U.S.C. 3716.



Sec. 607.9  Refunds.

    (a) NSF will promptly refund to an employee any amounts deducted to 
satisfy debts owed to NSF when the debt is waived, found not owed to 
NSF, or when directed by an administrative or judicial order.
    (b) Another creditor agency will promptly return to NSF any amounts 
deducted by NSF to satisfy debts owed to the creditor agency when the 
debt is waived, found not owed, or when directed by an administrative or 
judicial order.
    (c) Unless required by law, refunds under this section shall not 
bear interest.



Sec. 607.10  Statute of limitations.

    If a debt has been outstanding for more than 10 years after NSF's 
right to collect the debt first accrued, the agency may not collect by 
salary offset unless facts material to the Government's right to collect 
were not known and could not reasonably have been known by the official 
or officials who were charged with the responsibility for discovery and 
collection of such debts.



Sec. 607.11  Non-waiver of rights.

    An employee's involuntary payment of all or any part of a debt 
collected under the regulations in this part will not be construed as a 
waiver of any rights that the employee may have under 5 U.S.C. 5514 or 
any other provision of law.



Sec. 607.12  Interest, penalties, and administrative costs.

    Charges may be assessed on a debt for interest, penalties, and 
administrative costs in accordance with 31 U.S.C. 3717 and the Federal 
Claims Collection Standards, 4 CFR 101.1.



PART 608_CLAIMS COLLECTION AND ADMINISTRATIVE OFFSET--Table of Contents




Sec.
608.1 Purpose and scope.
608.2 Collection, compromise, and use of consumer reporting agencies.
608.3 Administrative offset.
608.4 Reductions of tax refunds.

    Authority: 31 U.S.C. 3711, 3716, 3718 and 3720A.

    Source: 58 FR 68772, Dec. 29, 1993, unless otherwise noted.



Sec. 608.1  Purpose and scope.

    (a) This part sets forth policies and procedures for the collection 
and compromise claims and the administrative offset of claims by the 
National Science Foundation (NSF) pursuant to 31 U.S.C. 3711, 3716, 3718 
and 3720A. It is not intended to limit or govern the rights of the NSF 
or the United States to collect, compromise, or administratively offset 
debts or claims under other authority and procedures that may be legally 
available to it.
    (b) Matters not addressed in this part should be reviewed and 
handled in accordance with applicable statutory provisions and the 
Federal Claims Collection Standards issued jointly by the Attorney 
General and the Comptroller General (4 CFR parts 101 through 105).
    (c) Any action other than the issuance of regulations specifically 
required to be done by the head of the agency by any of the statutes or 
regulations referred to in paragraphs (a) and (b) of this section shall 
be done on behalf of NSF by its Chief Financial

[[Page 107]]

Officer or by those to whom the Chief Financial Officer delegates 
authority. This is not intended to prevent the Chief Financial Officer 
from issuing additional internal procedures and guidance consistent with 
this part.



Sec. 608.2  Collection, compromise, and use of consumer reporting agencies.

    (a) Subject to the specific limitations and procedures of 31 U.S.C. 
3711 and in accordance with the applicable provisions of the Federal 
Claims Collection Standards, NSF, acting through its Chief Financial 
Officer or those to whom he or she delegates authority or assigns 
responsibilities, shall try to collect claims of the United States 
Government for money or property arising out of the activities of NSF or 
that are referred to NSF and may compromise or suspend or end collection 
action of certain claims. In making demands for payment, NSF will follow 
the guidance set forth at 4 CFR 102.2. In appropriate cases, as 
authorized by and subject to 31 U.S.C. 3718 and 4 CFR 102.6, NSF may 
contract for collection services. Before compromising or suspending or 
ending the collection of a claim in excess of $5,000, the matter shall 
be referred to the NSF Office of General Counsel for legal review.
    (b) When trying to collect a claim of the Government (except for 
claims under the Internal Revenue Code of 1986, 26 U.S.C. 1 et seq.), 
NSF may disclose to a consumer reporting agency information from a 
system of records that an individual is responsible for a claim if (1) a 
notice published pursuant to 5 U.S.C. 552a(3)(4) indicates that 
information in the system of records may be disclosed to a consumer 
reporting agency that an individual is responsible for a claim and (2) 
if the Chief Financial Officer of NSF decides that the claim is valid 
and overdue. Such disclosures to a consumer reporting agency will be 
done only under the conditions and procedures specified in 31 U.S.C. 
3711(f) and in the Federal Claims Collections Standards. Specifically, 
before NSF provides the information to the consumer reporting agency, 
the individual will be given the notice required by 31 U.S.C. 
3711(f)(1)(C); and in accordance with 4 CFR 102.5(c), the right of 
administrative review to be provided to the individual shall be 
consistent with the provisions of 4 CFR 102.3(c). If NSF does not have a 
current address for the individual in its files, it will take reasonable 
action to locate the individual, but if unsuccessful will mail the 
notice to the individual's last known address. NSF will disclose 
information only to a consumer reporting agency that gives satisfactory 
assurances that it is complying with all laws of the United States 
relating to providing consumer credit information. The information 
provided by NSF shall be limited to the type of information described in 
31 U.S.C. 3711(f)(1)(F). Moreover, NSF will not provide such information 
until it has established internal procedures to disclose promptly to a 
consumer reporting agency to which disclosure is made of any substantial 
changes in the condition or amount of the claim and to verify or correct 
promptly information about the claim on request of a consumer reporting 
agency for verification of information disclosed.
    (c) If in response to the notice referred to in paragraph (b) of 
this section, the individual repays or agrees in writing with NSF to a 
repayment plan, the information will not be disclosed to a consumer 
reporting agency. If in response to the notice referred to in paragraph 
(b) the individual requests a review or reconsideration of the claim, 
information shall not be disclosed to the consumer reporting agency 
until such a review is provided.
    (d) The review referred to in paragraph (c) of this section shall be 
based only on the written documentation in the file, including any 
additional written information provided by the individual in response to 
the notice referred to in paragraph (b). A written summary briefly 
describing the nature of the review performed and the conclusion reached 
shall be made. The written summary and conclusion shall be referred to 
the NSF Office of General Counsel for legal review. After legal review, 
a copy of the written summary shall be sent to the individual.



Sec. 608.3  Administrative offset.

    (a) If NSF is unable to collect a claim from a person after trying 
to do so in

[[Page 108]]

accordance with Sec. 608.2, NSF may collect the claim by administrative 
offset subject to the procedures and limitations of 31 U.S.C. 3716 and 
the applicable provisions of the Federal Claims Collection Standards. 
Determinations to pursue administrative offset shall be made on a case-
by-case basis taking into account the considerations specified at 31 
U.S.C. 3716(b) and 4 CFR 102.3(a). Before employing administrative 
offset, NSF will comply with the notice, hearing, review, or other 
procedural requirements of 31 U.S.C. 3716(a) and 4 CFR 102.3(b) and (c). 
Furthermore, before an administrative offset is taken by NSF pursuant to 
the authority of this part 608, the matter shall be referred to the 
Office of General Counsel for legal review to ensure that the required 
procedures have been followed.
    (b) When another agency requests NSF to administratively offset a 
claim owing to that agency, NSF will normally comply with such request 
if the requesting agency has provided the certification required by 4 
CFR 102.3(f) and offset would not be contrary to law. Before imposing 
administrative offsets at the request of another agency under this part 
608, the matter shall be referred to the NSF Office of General Counsel 
for legal review.
    (c)(1) In appropriate cases, NSF may request another agency to 
administratively setoff a claim owed to NSF. Before making the 
certification to the other agency required by 4 CFR 102.3(f), the matter 
shall be referred to the NSF Office of General Counsel for legal review.
    (2) Unless otherwise prohibited by law, NSF may request that moneys 
that are due and payable to a debtor from the Civil Service Retirement 
and Disability Fund, the Foreign Service Retirement Fund or any other 
Federal retirement fund be administratively offset in reasonable amounts 
in order to collect in one full payment or a minimal number of payments 
debts owed the United States by the debtor. Such requests shall be made 
to the appropriate officials of the respective fund servicing agency in 
accordance with such regulations as may be prescribed by that agency. 
The requests for administrative offset will certify in writing that (i) 
the debtor owes the United States a debt and the amount of the debt; 
(ii) NSF has complied with applicable regulations and procedures; and 
(iii) NSF has followed the requirements of the Federal Claims Collection 
Standards as made applicable by this section. Once NSF decides to 
request offset from a Federal retirement fund, it will make the request 
as soon as practical after completion of the applicable procedures in 
order that the fund servicing agency may identify and flag the debtor's 
account in anticipation of the time when the debtor requests or becomes 
eligible to receive payments from the fund and to ensure that offset 
will be initiated prior to the expiration of the statute of limitations.
    (3) If NSF collects part or all of the debt by other means before 
deductions are made or completed pursuant to this paragraph (c), NSF 
shall act promptly to modify or terminate its request for offset.
    (4) This paragraph (c) does not require or authorize the fund 
servicing agency to review the merits of (i) NSF's determination with 
respect to the amount and validity of the debt, (ii) NSF's determination 
as to waiver under an applicable statute, or (iii) NSF's determination 
to provide or not provide an oral hearing.
    (d) No collection by administrative offset shall be made on any debt 
that has been outstanding for more than ten years unless facts material 
to the Government's right to collect the debt were not known, and 
reasonably could not have been known, by the official or officials 
responsible for discovering the debt.
    (e) Administrative offset under this section will not be initiated 
against:
    (1) A debt in which administrative offset of the type of debt 
involved is explicitly provided for or prohibited by a statutes other 
than 31 U.S.C. 3716, including debts subject to the Salary offset 
procedures at 45 CFR part 607;
    (2) Debts owed by other agencies of the United States or by any 
State or local Government; or
    (3) Debts arising under the Internal Revenue Code of 1954; the 
Social Security Act; or the tariff laws of the United States.

[[Page 109]]



Sec. 608.4  Reductions of tax refunds.

    (a) In accordance with regulations and guidance issued by the 
Secretary of the Treasury at 26 CFR 301.6402-6 and the requirements of 
31 U.S.C. 3720A, NSF will participate in the Federal Tax Refund Offset 
Program for offset against income tax refunds of persons owing past due 
legally enforceable debts to NSF.
    (b) For purposes of this section, a past-due legally enforceable 
debt referable to the IRS is a debt which is owed to the United States 
and:
    (1) Except in the case of a judgment debt, has been delinquent for 
at least three months but has not been delinquent for more than ten 
years at the time the offset is made;
    (2) Cannot be currently collected pursuant to the salary offset 
provisions of 5 U.S.C. 5514(a)(1);
    (3) Is ineligible for administrative offset under 31 U.S.C. 3716(a) 
by reason of 31 U.S.C. 3716(c)(2) or cannot be collected by 
administrative offset under 31 U.S.C. 3716(a) by NSF against amounts 
payable to or on behalf of the debtor by or on behalf of NSF;
    (4) With respect to which NSF has notified or has made a reasonable 
attempt to notify the taxpayer that the debt is past-due and, unless 
repaid within 60 days thereafter, the debt will be referred to the IRS 
for offset against any overpayment of tax;
    (5) With respect to which NSF has given the taxpayer at least 60 
days from the date of notification to present evidence that all or part 
of the debt is not past-due or legally enforceable, has considered the 
evidence presented by such taxpayer, and has determined that an amount 
of such debt is past-due and legally enforceable;
    (6) Has been disclosed by NSF to a consumer reporting agency as 
authorized by 31 U.S.C. 3711(f), unless a consumer reporting agency 
would be prohibited from using such information by 15 U.S.C. 1681c, or 
unless the amount of the debt does not exceed $100.00;
    (7) Is at least $25.00;
    (8) All other requirements of 31 U.S.C. 3720A and the Internal 
Revenue Service regulations at 26 CFR 301.6402-6 relating to the 
eligibility of a debt for tax return offset have been satisfied.
    (c) NSF will make a request for reduction of an IRS tax refund only 
after the NSF determines that an amount is owed and past-due and 
provides the debtor with 60 days written notice. NSF's notice of 
intention to collect by IRS tax refund offset (Notice of Intent) will 
state:
    (1) The amount of the debt;
    (2) That unless the debt is repaid within 60 days from the date of 
the NSF's Notice of Intent, NSF intends to collect the debt by 
requesting the IRS to reduce any amounts payable to the debtor as 
refunds of Federal taxes paid by an amount equal to the amount of the 
debt and all accumulated interest and other charges;
    (3) That the debtor has a right to present evidence that all or part 
of the debt is not past-due or legally enforceable; and
    (4) A mailing address for forwarding any written correspondence and 
a contact name and phone number for any questions.
    (d) A debtor who receives a Notice of Intent has the right to 
present evidence that all or part of the debt is not past-due or not 
legally enforceable. To exercise this right, the debtor must:
    (1) Send a written request for a review of the evidence to the 
address provided in the notice.
    (2) State in the request the amount disputed and the reasons why the 
debtor believes that the debt is not past-due or is not legally 
enforceable.
    (3) Include with the request any documents which the debtor wishes 
to be considered or state that additional information will be submitted 
within the remainder of the 60-day period.
    (e) The failure of a debtor to respond as provided in paragraph (d) 
of this section will result in an automatic referral of the debt to the 
IRS without further action by NSF. If the debtor responds, NSF will 
consider all available evidence related to the debt and issue a written 
determination, including supporting rationale, whether its prior 
determination that the debt is past-due and legally enforceable is 
sustained, amended, or canceled. Before this determination is made the 
matter shall be referred to the NSF Office of General Counsel for legal 
review. NSF will

[[Page 110]]

give prompt notification of this determination to the debtor.



PART 611_NONDISCRIMINATION IN FEDERALLY-ASSISTED PROGRAMS OF THE NATIONAL 
SCIENCE FOUNDATION_EFFECTUATION OF TITLE VI OF THE CIVIL RIGHTS ACT OF 1964--

Table of Contents




Sec.
611.1 Purpose.
611.2 Application of part.
611.3 Discrimination prohibited.
611.4 Assurances required.
611.5 Illustrative applications.
611.6 Compliance information.
611.7 Conduct of investigations.
611.8 Procedure for effecting compliance.
611.9 Hearings.
611.10 Decisions and notices.
611.11 Judicial review.
611.12 Effect on other regulations; forms and instructions.
611.13 Definitions.

Appendix A to Part 611

    Authority: Sec. 11(a), National Science Foundation Act of 1950, as 
amended, 42 U.S.C. 1870(a); 42 U.S.C. 2000d-1.

    Source: 29 FR 16305, Dec. 4, 1964, unless otherwise noted.



Sec. 611.1  Purpose.

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



Sec. 611.2  Application of part.

    This part applies to any program for which Federal financial 
assistance is authorized under a law administered by the Foundation, 
including the types of Federal financial assistance listed in Appendix A 
of this part. It applies to money paid, property transferred, or other 
Federal financial assistance extended after the effective date of the 
regulation pursuant to an application approved prior to such effective 
date. This part does not apply to (a) any Federal financial assistance 
by way of insurance or guaranty contract, (b) money paid, property 
transferred, or other assistance extended before the effective date of 
this part, (c) any assistance to any individual who is the ultimate 
beneficiary, or (d) any employment practice, under any such program, of 
any employer, employment agency, or labor organization, except to the 
extent described in Sec. 611.3. The fact that a type of Federal 
financial assistance is not listed in the Appendix shall not mean, if 
title VI of the Act is otherwise applicable, that a program is not 
covered. Other types of Federal financial assistance under statutes now 
in force or hereafter enacted may be added to this list by notice 
published in the Federal Register.

[29 FR 16305, Dec. 4, 1964, as amended at 68 FR 51382, Aug. 26, 2003]



Sec. 611.3  Discrimination prohibited.

    (a) General. No person in the United States, shall, on grounds of 
race, color, or national origin be excluded from participation in, be 
denied the benefits of, or be otherwise subjected to discrimination 
under any program to which this part applies.
    (b) Specific discriminatory actions prohibited. (1) A recipient to 
which this part applies may not directly or through contractual or other 
arrangements, on the ground of race, color, or national origin:
    (i) Deny an individual any service, financial aid, or other benefit 
provided under the program;
    (ii) Provide any service, financial aid, or other benefit to an 
individual which is different, or is provided in a different manner, 
from that provided to others under the program;
    (iii) Subject an individual to segregation or separate treatment in 
any matter related to his receipt of any service, financial aid, or 
other benefit under the program;
    (iv) Restrict an individual in any way in the enjoyment of any 
advantage or privilege enjoyed by others receiving any service, 
financial aid, or other benefit under the program;
    (v) Treat an individual differently from others in determining 
whether he satisfies any admission, enrollment,

[[Page 111]]

quota, eligibility, membership or other requirement or condition which 
individuals must meet in order to be provided any service, financial 
aid, or other benefit provided under the program;
    (vi) Deny an individual an opportunity to participate in the program 
through the provision of services or otherwise or afford him an 
opportunity to do so which is different from that afforded others under 
the program (including the opportunity to participate in the program of 
an employee but only to the extent set forth in paragraph (c) of this 
section).
    (2) A recipient, in determining the types of services, financial 
aid, or other benefits, or facilities which will be provided under any 
such program, or the class of individuals to whom, or the situations in 
which, such services, financial aid, other benefits, or facilities will 
be provided under any such program, or the class of individuals to be 
afforded an opportunity to participate in any such program, may not 
directly or through contractual or other arrangements, utilize criteria 
or methods of administration which have the effect of subjecting 
individuals to discrimination because of their race, color, or national 
origin, or have the effect of defeating or substantially impairing 
accomplishment of the objectives of the program as respects individuals 
of a particular race, color, or national origin.
    (3) In determining the site or location of facilities, a recipient 
or applicant may not make selections with the purpose or effect of 
excluding individuals from, denying them the benefits of, or subjecting 
them to discrimination under any program to which this regulation 
applies, on the grounds of race, color, or national origin; or with the 
purpose or effect of defeating or substantially impairing the 
accomplishment of the objectives of the Act or this regulation.
    (4) As used in this section the services, financial aid, or other 
benefits provided under a program receiving Federal financial assistance 
shall be deemed to include any service, financial aid, or other benefit 
provided in or through a facility provided with the aid of Federal 
financial assistance.
    (5) The enumeration of specific forms of prohibited discrimination 
in this paragraph and paragraph (c) of this section does not limit the 
generality of the prohibition in paragraph (a) of this section.
    (6) This regulation does not prohibit the consideration of race, 
color, or national origin if the purpose and effect are to remove or 
overcome the consequences of practices or impediments which have 
restricted the availability of, or participation in, the program or 
activity receiving Federal financial assistance, on the grounds of race, 
color, or national origin. Where previous discriminatory practice or 
usage tends, on the grounds of race, color, or national origin, to 
exclude individuals from participation in, to deny them the benefits of, 
or to subject them to discrimination under any program or activity to 
which this regulation applies the applicant or recipient has an 
obligation to take reasonable action to remove or overcome the 
consequences of the prior discriminatory practice or usage, and to 
accomplish the purposes of the Act.
    (c) Employment practices. (1) Where a primary objective of the 
Federal financial assistance to a program to which this part applies is 
to provide employment, a recipient may not directly or through 
contractual or other arrangements subject an individual to 
discrimination on the ground of race, color, or national origin in its 
employment practices under such program (including recruitment or 
recruitment advertising, employment, layoff or termination, upgrading, 
demotion, or transfer, rates of pay or other forms of compensation and 
use of facilities), including programs where a primary objective of the 
Federal financial assistance is (i) to assist such individuals through 
employment to meet expenses incident to the commencement or continuation 
of their education or training or (ii) to provide work experience which 
contributes to the education or training of such individuals.
    (2) Types of Federal financial assistance listed in Appendix A as 
respects employment opportunities provided thereunder, or in facilities 
provided thereunder, which are limited, or for which preference is 
given, to students,

[[Page 112]]

fellows, or other persons, including research associates, where in 
training for the same or related employments, have one of the above 
purposes as a primary purpose.
    (3) The requirements applicable to construction employment under any 
such program shall be those specified in or pursuant to part III of 
Executive Order 11246 or any Executive order which supersedes it.
    (4) Where a primary objective of the Federal financial assistance is 
not to provide employment, but discrimination on the grounds of race, 
color, or national origin in the employment practices of the recipient 
or other persons subject to the regulation tends, on the grounds of 
race, color, or national origin, to exclude individuals from 
participation in, to deny them the benefits of, or to subject them to 
discrimination under any program to which this regulation applies, the 
provisions of paragraph (c)(3) of this section shall apply to the 
employment practices of the recipient or other persons subject to the 
regulation, to the extent necessary to assure equality of opportunity 
to, and nondiscriminatory treatment of, beneficiaries.
    (d) Medical emergencies. Notwithstanding the foregoing provisions of 
this section, a recipient of Federal financial assistance shall not be 
deemed to have failed to comply with paragraph (a) of this section if 
immediate provision of a service or other benefit to an individual is 
necessary to prevent his death or serious impairment of his health, and 
such service or other benefit cannot be provided except by or through a 
medical institution which refuses or fails to comply with paragraph (a) 
of this section.

[29 FR 16305, Dec. 4, 1964, as amended at 38 FR 17985, July 5, 1973; 68 
FR 51382, Aug. 26, 2003]



Sec. 611.4  Assurances required.

    (a) General. (1) Every application for Federal financial assistance 
to which this part applies, and every application for Federal financial 
assistance to provide a facility shall, as a condition to its approval 
and the extension of any Federal financial assistance pursuant to the 
application, contain or be accompanied by an assurance that the program 
will be conducted or the facility operated in compliance with all 
requirements imposed by or pursuant to this part. In the case where the 
Federal financial assistance is to provide or is in the form of personal 
property, or real property or interest therein or structures thereon, 
the assurance shall obligate the recipient, or, in the case of a 
subsequent transfer, the transferee, for the period during which the 
property is used for a purpose for which the Federal financial 
assistance is extended or for another purpose involving the provision of 
similar services and benefits, or for as long as the recipient retains 
ownership or possession of the property, whichever is longer. In all 
other cases the assurance shall obligate the recipient for the period 
during which Federal Financial assistance is extended pursuant to the 
application. The responsible Foundation official shall specify the form 
of the foregoing assurances and the extent to which like assurances will 
be required of subgrantees, contractors and subcontractors, successors 
in interest, and other participants. Any such assurance shall include 
provisions which give the United States a right to seek its judicial 
enforcement.
    (2) In the case where Federal financial assistance is provided in 
the form of a transfer of real property, structures, or improvements 
thereon, or interest therein, from the Federal Government, the 
instrument effecting or recording the transfer shall contain a covenant 
running with the land assuring nondiscrimination for the period during 
which the real property is used for a purpose for which the Federal 
financial assistance is extended or for another purpose involving the 
provision of similar services or benefits. Where no transfer of property 
or interest therein from the Federal Government is involved, but 
property is acquired or improved with Federal financial assistance, the 
recipient shall agree to include such covenant in any subsequent 
transfer of such property. When the property is obtained from the 
Federal Government, such covenant may also include a condition coupled 
with a right to be reserved by the

[[Page 113]]

Foundation to revert title to the property in the event of a breach of 
the covenant where, in the discretion of the responsible Foundation 
official, such a condition and right of reverter is appropriate to the 
statute under which the real property is obtained and to the nature of 
the grant and the grantee. In such event if a transferee of real 
property proposes to mortgage or otherwise encumber the real property as 
security for financing construction of new, or improvement of existing, 
facilities on such property for the purposes for which the property was 
transferred, the responsible Foundation official may agree, upon request 
of the transferee and if necessary to accomplish such financing, and 
upon such conditions as he deems appropriate, to subordinate such right 
of reversion to the lien of such mortgage or other encumbrance.
    (3) Transfers of surplus property are subject to regulations issued 
by the Administrator of the General Services Administration. (41 CFR 
101-6.2.)
    (b) Elementary and secondary schools. The requirements of paragraph 
(a) of this section with respect to any elementary or secondary school 
or school system shall be deemed to be satisfied if such school or 
school system (1) is subject to a final order of a court of the United 
States for the desegregation of such school or school system, and 
provides an assurance that it will comply with such order, including any 
future modification of such order, or (2) submits a plan for the 
desegregation of such school or school system which the responsible 
Official of the Department of Health, Education, and Welfare determines 
is adequate to accomplish the purposes of the Act and this part, and 
provides reasonable assurance that it will carry out such plan. In any 
case of continuing Federal financial assistance the responsible Official 
of the Department of Health, Education, and Welfare may reserve the 
right to redetermine, after such period as may be specified by him, the 
adequacy of the plan to accomplish the purposes of the Act and this 
part. In any case in which a final order of a court of the United States 
for the desegregation of such school or school system is entered after 
submission of such a plan, such plan shall be revised to conform to such 
final order, including any future modification of such order.
    (c) Assurances from institutions. (1) In the case of any application 
for Federal financial assistance to an institution of higher education 
(including assistance for construction, for research for a special 
training project, or for any other purpose), the assurance required by 
this section shall extend to admission practices and to all other 
practices relating to the treatment of students.
    (2) The assurance required with respect to an institution of higher 
education, hospital, or any other institution, insofar as the assurance 
relates to the institution's practices with respect to admission or 
other treatment of individuals as students, patients, or clients of the 
institution or to the opportunity to participate in the provision of 
services or other benefits to such individuals, shall be applicable to 
the entire institution.

[29 FR 16305, Dec. 4, 1964, as amended at 38 FR 17985, July 5, 1973; 68 
FR 51382, Aug. 26, 2003]



Sec. 611.5  Illustrative applications.

    The following examples will illustrate the application of the 
foregoing provisions to some of the programs aided by the Foundation. 
(In all cases the discrimination prohibited is discrimination on the 
ground of race, color, or national origin prohibited by title VI of the 
Act and this part, as a condition of the receipt of Federal financial 
assistance.)

    1. For support to elementary or secondary schools such as for the 
acquisition of equipment discrimination by the recipient school district 
in any of its elementary or secondary schools, or by the recipient 
private institution, in the admission of students, or in the treatment 
of its students in any aspect of the educational process, is prohibited. 
In this and the following illustration the prohibition of discrimination 
in the treatment of students or other trainees includes the prohibition 
of discrimination among the students or trainees in the availability or 
use of any academic, dormitory, eating, recreational, or other 
facilities of the grantee or other recipient.
    2. In a research, training, or other grant to a university for 
activities to be conducted in a graduate school, discrimination in the 
admission and treatment of students in the

[[Page 114]]

graduate school is prohibited, and the prohibition extends to the entire 
university.
    3. In a training grant to a hospital or other nonacademic 
institution, discrimination is prohibited in the selection of 
individuals to be trained and in their treatment by the grantee during 
their training. In a research or demonstration grant to such an 
institution, discrimination is prohibited with respect to any 
educational activity, any provision of medical or other services and any 
financial aid to individuals incident to the program.
    4. In grants to assist in the construction of facilities for 
research or for the provision of educational services, assurances will 
be required that services will be provided without discrimination, to 
the same extent that discrimination would be prohibited as a condition 
of Federal operating grants for the support of such services. Thus, as a 
condition of grants for the construction of academic, research, or other 
facilities at institutions of higher education, assurances will be 
required that there will be no discrimination in the admission or 
treatment of students. In other construction grants the assurances 
required will similarly be adapted to the nature of the activities to be 
conducted in the facilities for construction of which the grants have 
been authorized by Congress.
    5. Upon transfers of real or personal property for research or 
educational uses, discrimination is prohibited to the same extent as in 
the case of grants for the construction of facilities or the provision 
of equipment for like purposes.
    6. In some situations even though past discriminatory practices have 
been abandoned, the consequences of such practices continue to impede 
the full availability of a benefit. If the efforts required of the 
applicant or recipient under Sec. 611.6(d) to provide information as to 
the availability of the program or activity, and the rights of 
beneficiaries under this regulation, have failed to overcome these 
consequences, it will become necessary for such applicant or recipient 
to take additional steps to make the benefits fully available to racial 
and nationality groups previously subjected to discrimination. This 
action might take the form, for example, of special arrangements for 
obtaining referrals which will insure that groups previously subjected 
to discrimination are adequately served but not the establishment of 
discriminatory qualifications for participation in any program.
    7. Even though an applicant or recipient has never used 
discriminatory policies, the services and benefits of the program or 
activity it administers may not in fact be equally available to some 
racial or nationality groups. In such circumstances an applicant or 
recipient may properly give special consideration to race, color, or 
national origin to make the benefits of its program more widely 
available to such groups, not then being adequately served. For example, 
where a university is not adequately serving members of a particular 
racial or nationality group, it may establish special recruitment 
policies to make its program better known and more readily available to 
such group, and take other steps to provide that group with more 
adequate service.

[29 FR 16305, Dec. 4, 1964, as amended at 38 FR 17985, July 5, 1973; 68 
FR 51382, Aug. 26, 2003]



Sec. 611.6  Compliance information.

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

[[Page 115]]

and other interested persons such information regarding the provisions 
of this part and its applicability to the program for which the 
recipient receives Federal financial assistance, and make such 
information available to them in such manner, as the responsible 
Foundation official finds necessary to apprise such persons of the 
protections against discrimination assured them by the Act and this 
part.

(Approved by the Office of Management and Budget under control number 
3l45-0087)

[29 FR l6305, Dec. 4, 1964, as amended at 49 FR 37595, Sept. 25, 1984; 
68 FR 51382, Aug. 26, 2003]



Sec. 611.7  Conduct of investigations.

    (a) Periodic compliance reviews. The responsible Foundation official 
shall from time to time review the practices of recipients to determine 
whether they are complying with this part.
    (b) Complaints. Any person who believes himself or any specific 
class of individuals to be subjected to discrimination prohibited by 
this part may by himself or by a representative file with the 
responsible Foundation official a written complaint. A complaint must be 
filed not later than 90 days from the date of the alleged 
discrimination, unless the time for filing is extended by the 
responsible Foundation official.
    (c) Investigations. The responsible Foundation official will make a 
prompt investigation whenever a compliance review, report, complaint, or 
any other information indicates a possible failure to comply with this 
part. The investigation should include, where appropriate, a review of 
the pertinent practices and policies of the recipient, the circumstances 
under which the possible noncompliance with this part occurred, and 
other factors relevant to a determination as to whether the recipient 
has failed to comply with this part.
    (d) Resolution of matters. (1) If an investigation pursuant to 
paragraph (c) of this section indicates a failure to comply with this 
regulation, the responsible Foundation official will so inform the 
recipient and the matter will be resolved by informal means whenever 
possible. If it has been determined that the matter cannot be resolved 
by informal means, action will be taken as provided for in Sec. 611.8.
    (2) If an investigation does not warrant action pursuant to 
paragraph (d)(1) of this section the responsible Foundation official 
will so inform the recipient and the complainant, if any, in writing.
    (e) Intimidatory or retaliatory acts prohibited. No recipient or 
other person shall intimidate, threaten, coerce, or discriminate against 
any individual for the purpose of interfering with any right or 
privilege secured by section 601 of the Act or this part, or because he 
has made a complaint, testified, assisted, or participated in any manner 
in an investigation, proceeding, or hearing under this part. The 
identity of complainants shall be kept confidential except to the extent 
necessary to carry out the purposes of this part, including the conduct 
of any investigation, hearing, or judicial proceeding arising 
thereunder.



Sec. 611.8  Procedure for effecting compliance.

    (a) General. If there appears to be a failure or threatened failure 
to comply with this part, and if the noncompliance or threatened 
noncompliance cannot be corrected by informal means, compliance with 
this part may be effected by the suspension or termination of or refusal 
to grant or to continue Federal financial assistance or by any other 
means authorized by law. Such other means may include, but are not 
limited to (1) a reference to the Department of Justice with a 
recommendation that appropriate proceedings be brought to enforce any 
rights of the United States under any law of the United States 
(including other titles of the Act), or any assurance or other 
contractual undertaking, and (2) any applicable proceeding under State 
or local law.
    (b) Noncompliance with Sec. 611.4. If an applicant fails or refuses 
to furnish an assurance required under Sec. 611.4 or otherwise fails to 
comply with that section, Federal financial assistance may be refused in 
accordance with the procedures of paragraph (c) of this section. The 
Foundation shall not be required to provide assistance in such a case 
during the pendency of the administrative proceedings under such 
subsection,

[[Page 116]]

except that the Foundation shall continue assistance during the pendency 
of such proceedings where such assistance is due and payable pursuant to 
an application therefor approved prior to the effective date of this 
part.
    (c) Termination of or refusal to grant or to continue Federal 
financial assistance. No order suspending, terminating, or refusing to 
grant or continue Federal financial assistance shall become effective 
until:
    (1) The responsible Foundation official has advised the applicant or 
recipient of his failure to comply and has determined that compliance 
cannot be secured by voluntary means,
    (2) There has been an express finding on the record, after 
opportunity for hearings, of a failure by the applicant or recipient to 
comply with a requirement imposed by or pursuant to this part,
    (3) The action has been approved by the Director pursuant to Sec. 
611.10(e) and
    (4) The expiration of thirty days after the Director has filed with 
the Committee of the House and the Committee of the Senate having 
legislative jurisdiction over the program involved, a full written 
report of the circumstances and the grounds for such action.

Any action to suspend or terminate or to refuse to grant or to continue 
Federal financial assistance shall be limited to the particular 
political entity, or part thereof, or other applicant or recipient as to 
whom such a finding has been made and shall be limited in its effect to 
the particular program, or part thereof, in which such noncompliance has 
been so found.
    (d) Other means authorized by law. No action to effect compliance by 
any other means authorized by law shall be taken until (1) the 
responsible Foundation official has determined that compliance cannot be 
secured by voluntary means, (2) the recipient or other person has been 
notified of its failure to comply and of the action to be taken to 
effect compliance, and (3) the expiration of at least ten days from the 
mailing of such notice to the recipient or other person. During this 
period of at least ten days additional efforts shall be made to persuade 
the recipient or other person to comply with this part and to take such 
corrective action as may be appropriate.

[29 FR 16305, Dec. 4, 1964, as amended at 38 FR 17985, July 5, 1973; 51 
FR 22938, June 24, 1986]



Sec. 611.9  Hearings.

    (a) Opportunity for hearing. Whenever an opportunity for a hearing 
is required by Sec. 611.8(b), reasonable notice shall be given by 
registered or certified mail, return receipt requested, to the affected 
applicant or recipient. This notice shall advise the applicant or 
recipient of the action proposed to be taken, the specific provision 
under which the proposed action against it is to be taken, and the 
matters of fact or law asserted as the basis for this action, and either 
(1) fix a date not less than twenty days after the date of such notice 
within which the applicant or recipient may request of the responsible 
Foundation official that the matter be scheduled for hearing or (2) 
advise the applicant or recipient that the matter in question has been 
set down for hearing at a stated place and time. The time and place so 
fixed shall be reasonable and shall be subject to change for cause. The 
complainant, if any, shall be advised of the time and place of the 
hearing. An applicant or recipient may waive a hearing and submit 
written information and argument for the record. The failure of an 
applicant or recipient to request a hearing under this paragraph or to 
appear at a hearing for which a date has been set shall be deemed to be 
a waiver of the right to a hearing under section 602 of the Act and 
Sec. 611.8(c) and consent to the making of a decision on the basis of 
such information as is available.
    (b) Time and place of hearing. Hearings shall be held at the offices 
of the Foundation in Arlington, VA, at a time fixed by the responsible 
Foundation official unless he determines that the convenience of the 
applicant or recipient or of the Foundation requires that another place 
be selected. Hearings shall be held before the responsible Foundation 
official or, at the discretion of the Director, a hearing examiner 
designated in accordance with 5 U.S.C. 3105 and 3344.

[[Page 117]]

    (c) Right to counsel. In all proceedings under this section, the 
applicant or recipient and the Foundation shall have the right to be 
represented by counsel.
    (d) Procedures, evidence, and record. (1) The hearing, decision, and 
any administrative review thereof shall be conducted in conformity with 
5 U.S.C. 554 through 557, and in accordance with such rules of procedure 
as are proper (and not inconsistent with this section) relating to the 
conduct of the hearing, giving of notices subsequent to those provided 
for in paragraph (a) of this section, taking of testimony, exhibits, 
arguments and briefs, requests for findings, and other related matters. 
Both the Foundation and the applicant or recipient shall be entitled to 
introduce all relevant evidence on the issues as stated in the notice 
for hearing or as determined by the officer conducting the hearing at 
the outset of or during the hearing.
    (2) Technical rules of evidence shall not apply to hearings 
conducted pursuant to this part, but rules or principles designed to 
assure production of the most credible evidence available and to subject 
testimony to test by cross-examination shall be applied where reasonably 
necessary by the officer conducting the hearing. The hearing officer may 
exclude irrelevant, immaterial, or unduly repetitious evidence. All 
documents and other evidence offered or taken for the record shall be 
open to examination by the parties and opportunity shall be given to 
refute facts and arguments advanced on either side of the issues. A 
transcript shall be made of the oral evidence except to the extent the 
substance thereof is stipulated for the record. All decisions shall be 
based upon the hearing record and written findings shall be made.
    (e) Consolidated or joint hearings. In cases in which the same or 
related facts are asserted to constitute noncompliance with this part 
with respect to two or more Federal statutes, authorities, or other 
means by which Federal financial assistance is extended and to which 
this part applies or noncompliance with this part and the regulations of 
one or more other Federal departments or agencies issued under title VI 
of the Act, the Director may, by agreement with such other departments 
or agencies, where applicable, provide for the conduct of consolidated 
or joint hearings, and for the application to such hearings of rules of 
procedure not inconsistent with this part. Final decisions in such 
cases, insofar as this part is concerned, shall be made in accordance 
with Sec. 611.10.

[29 FR 16305, Dec. 4, 1964, as amended at 38 FR 17985, July 5, 1973; 59 
FR 37437, July 22, 1994; 68 FR 51382, Aug. 26, 2003]



Sec. 611.10  Decisions and notices.

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

[[Page 118]]

or other written statements of its contentions, and a copy of the final 
decision of the responsible Foundation official shall be given in 
writing to the applicant or recipient, and to the complainant, if any.
    (c) Decisions on record where a hearing is waived. Whenever a 
hearing is waived pursuant to Sec. 611.9(a), a decision shall be made 
by the responsible Foundation official on the record and a copy of such 
decision shall be given in writing to the applicant or recipient, and to 
the complainant, if any.
    (d) Rulings required. Each decision of a hearing officer, panel, or 
responsible Foundation official shall set forth the ruling on each 
finding, conclusion, or exception presented, and shall identify the 
requirement or requirements imposed by or pursuant to this part with 
which it is found that the applicant or recipient has failed to comply.
    (e) Approval by Director. Any final decision of a responsible 
Foundation official (other than the Director) which provides for the 
suspension or termination of, or the refusal to grant or continue 
Federal financial assistance, or the imposition of any other sanction 
available under this part or the Act, shall promptly be transmitted to 
the Director who may approve such decision, may vacate it, or remit or 
mitigate any sanction imposed.
    (f) Content of orders. The final decision may provide for suspension 
or termination of, or refusal to grant or continue Federal financial 
assistance, in whole or in part, to which this regulation applies, and 
may contain such terms, conditions, and other provisions as are 
consistent with and will effectuate the purposes of the Act and this 
part, including provisions designed to assure that no Federal financial 
assistance to which this regulation applies will thereafter be extended 
to the applicant or recipient determined by such decision to be in 
default in its performance of an assurance given by it pursuant to this 
part, or to have otherwise failed to comply with this part, unless and 
until it corrects its noncompliance and satisfies the responsible 
Foundation official that it will fully comply with this part.
    (g) Posttermination proceedings. (1) An applicant or recipient 
adversely affected by an order issued under paragraph (f) of this 
section shall be restored to full eligibility to receive Federal 
financial assistance if it satisfies the terms and conditions of that 
order for such eligibility or if it brings itself into compliance with 
this regulation and provides reasonable assurance that it will fully 
comply with this regulation.
    (2) Any applicant or recipient adversely affected by an order 
entered pursuant to paragraph (f) of this section may at any time 
request the responsible Foundation official to restore fully its 
eligibility to receive Federal financial assistance. Any such request 
shall be supported by information showing that the applicant or 
recipient has met the requirements of paragraph (g)(1) of this section. 
If the responsible Foundation official determines that those 
requirements have been satisfied, he shall restore such eligibility.
    (3) If the responsible Foundation official denies any such request, 
the applicant or recipient may submit a request for a hearing in 
writing, specifying why it believes such official to have been in error. 
It shall thereupon be given an expeditious hearing, with a decision on 
the record, in accordance with rules of procedure issued by the 
responsible Foundation official. The applicant or recipient will be 
restored to such eligibility if it proves at such a hearing that it 
satisfied the requirements of paragraph (g)(1) of this section. While 
proceedings under this paragraph are pending, the sanctions imposed by 
the order issued under paragraph (f) of this section shall remain in 
effect.

[29 FR 16305, Dec. 4, 1964, as amended at 38 FR 17985, July 5, 1973; 51 
FR 22939, June 24, 1986; 68 FR 51382, Aug. 26, 2003]



Sec. 611.11  Judicial review.

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



Sec. 611.12  Effect on other regulations; forms and instructions.

    (a) Effect on other regulations. All regulations, orders, or like 
directions heretofore issued by any officer of the Foundation which 
impose requirements designed to prohibit any discrimination against 
individuals on the ground

[[Page 119]]

of race, color, or national origin under any program to which this part 
applies, and which authorize the suspension or termination of or refusal 
to grant or to continue Federal financial assistance to any applicant 
for or recipient of such assistance for failure to comply with such 
requirements, are hereby superseded to the extent that such 
discrimination is prohibited by this part, except that nothing in this 
part shall be deemed to relieve any person of any obligation assumed or 
imposed under any such superseded regulation, order, instruction, or 
like direction prior to the effective date of this part. Nothing in this 
part, however, supersedes any of the following (including future 
amendments thereof): (1) Executive Order 11246 and regulation issued 
thereunder, or (2) any other orders, regulations, or instructions, 
insofar as such orders, regulations, or instructions prohibit 
discrimination on the ground of race, color, or national origin in any 
program or situation to which this part is inapplicable, or prohibit 
discrimination on any other ground.
    (b) Forms and instructions. Each responsible Foundation official 
shall issue and promptly make available to interested persons forms and 
detailed instructions and procedures for effectuating this part as 
applied to programs to which this part applies and for which he is 
responsible.
    (c) Supervision and coordination. The Director may from time to time 
assign to officials of other departments or agencies of the Government, 
with the consent of such departments or agencies, responsibilities in 
connection with the effectuation of the purposes of title VI of the Act 
and this part (other than responsibility for final decision as provided 
in Sec. 611.10), including the achievement of effective coordination 
and maximum uniformity within the Foundation and within the Executive 
Branch of the Government in the application of title VI and this 
regulation to similar programs and in similar situations. Any action 
taken, determination made, or requirement imposed by an official of 
another Department or agency acting pursuant to an assignment of 
responsibility under this subsection shall have the same effect as 
though such action had been taken by the responsible official of this 
agency.

[29 FR 16305, Dec. 4, 1964, as amended at 38 FR 17985, July 5, 1973; 68 
FR 51382, Aug. 26, 2003]



Sec. 611.13  Definitions.

    As used in this part:
    (a) The term Foundation means the National Science Foundation, and 
includes each of its organizational units.
    (b) The term Director means the Director of the National Science 
Foundation.
    (c) The term responsible Foundation official with respect to any 
program receiving Federal financial assistance means the Director or 
other official of the Foundation designated by the Director.
    (d) The term United States means the States of the United States, 
the District of Columbia, Puerto Rico, the Virgin Islands, American 
Samoa, Guam, Wake Island, the Canal Zone, and the territories and 
possessions of the United States, and the term State means any one of 
the foregoing.
    (e) The term Federal financial assistance includes (1) grants and 
loans of Federal funds, (2) the grant or the donation of Federal 
property and interests in property, (3) the detail of Federal personnel, 
(4) the sale and lease of, and the permission to use (on other than a 
casual or transient basis), Federal property or any interest in such 
property without consideration or at a nominal consideration, or at a 
consideration which is reduced for the purpose of assisting the 
recipient, or in recognition of the public interest to be served by such 
sale or lease to the recipient, and (5) any Federal agreement, 
arrangement, or other contract which has as one of its purposes the 
provision of assistance.
    (f) The terms program or activity and program mean all of the 
operations of any entity described in paragraphs (f)(1) through (4) of 
this section, any part of which is extended Federal financial 
assistance:
    (1)(i) A department, agency, special purpose district, or other 
instrumentality of a State or of a local government; or

[[Page 120]]

    (ii) The entity of such State or local government that distributes 
such assistance and each such department or agency (and each other State 
or local government entity) to which the assistance is extended, in the 
case of assistance to a State or local government;
    (2)(i) A college, university, or other postsecondary institution, or 
a public system of higher education; or
    (ii) A local educational agency (as defined in 20 U.S.C. 7801), 
system of vocational education, or other school system;
    (3)(i) An entire corporation, partnership, or other private 
organization, or an entire sole proprietorship--
    (A) If assistance is extended to such corporation, partnership, 
private organization, or sole proprietorship as a whole; or
    (B) Which is principally engaged in the business of providing 
education, health care, housing, social services, or parks and 
recreation; or
    (ii) The entire plant or other comparable, geographically separate 
facility to which Federal financial assistance is extended, in the case 
of any other corporation, partnership, private organization, or sole 
proprietorship; or
    (4) Any other entity which is established by two or more of the 
entities described in paragraph (f)(1), (2), or (3) of this section.
    (g) The term facility includes all or any portion of structures, 
equipment, or other real or personal property or interests therein, and 
the provision of facilities includes the construction, expansion, 
renovation, remodeling, alteration or acquisition of facilities.
    (h) The term recipient means any State, political subdivision of any 
State, or instrumentality of any State or political subdivision, any 
public or private agency, institution, or organization, or other entity 
or any individual, in any State, to whom Federal financial assistance is 
extended, directly or through another recipient, including any 
successor, assign, or transferee thereof, but such term does not include 
any ultimate beneficiary.
    (i) The term primary recipient means any recipient which is 
authorized or required to extend Federal financial assistance to another 
recipient.
    (j) The term applicant means one who submits an application, 
request, or plan required to be approved by a responsible Foundation 
official, or by a primary recipient, as a condition to eligibility for 
Federal financial assistance, and the term application means such an 
application, request, or plan.

[29 FR 16305, Dec. 4, 1964, as amended at 68 FR 51382, Aug. 26, 2003]



                       Sec. Appendix A to Part 611

    Statutory Provisions under which the National Science Foundation 
provides Federal financial assistance:
The National Science Foundation Act of 1950, as amended (42 U.S.C. 1861-
1875).

[38 FR 17986, July 5, 1973, as amended at 59 FR 37437, July 22, 1994]



PART 612_AVAILABILITY OF RECORDS AND INFORMATION--Table of Contents




Sec.
612.1 General provisions.
612.2 Public reading room.
612.3 Requirements for making requests.
612.4 Responding to requests.
612.5 Timing of responses to requests.
612.6 Processing requests.
612.7 Exemptions.
612.8 Business information.
612.9 Appeals.
612.10 Fees.
612.11 Other rights and services.

    Authority: 5 U.S.C. 552, as amended.

    Source: 74 FR 31622, July 2, 2009, unless otherwise noted.



Sec. 612.1  General provisions.

    This part contains the rules that the National Science Foundation 
follows in processing requests for records under the Freedom of 
Information Act (FOIA), 5 U.S.C. 552. Information routinely made 
available to the public as part of a regular Foundation activity (for 
example, program announcements and solicitations, summary of awarded 
proposals, statistical reports on U.S. science, news releases) may be 
provided to the public without reliance on this Part. As a matter of 
policy, the Foundation also makes discretionary disclosures of records 
or information otherwise exempt under the FOIA whenever disclosure would 
not foreseeably harm an interest protected by a FOIA exemption. This 
policy, however, does not

[[Page 121]]

create any right enforceable in court. When individuals seek records 
about themselves under the Privacy Act of 1974, 5 U.S.C. 552a, NSF 
processes those requests under both NSF's Privacy regulations at part 
613, and this part.



Sec. 612.2  Public reading room.

    (a) The Foundation maintains a public reading room located in the 
NSF Library at 4201 Wilson Boulevard, Suite 225, Arlington, Virginia, 
open during regular working hours Monday through Friday. It contains the 
records that the FOIA requires to be made regularly available for public 
inspection and copying and has computers and printers available for 
public use in accessing records. Also available for public inspection 
and copying are current subject matter indexes of reading room records.
    (b) Information about FOIA and Privacy at NSF and copies of 
frequently requested FOIA releases are available online at http://
www.nsf.gov/pubinfo/foia.html. Most NSF policy documents, staff 
instructions, manuals, and other publications that affect a member of 
the public, are available in electronic form through the ``Documents'' 
option on the tool bar on NSF's Home Page on the internet at http://
www.nsf.gov.



Sec. 612.3  Requirements for making requests.

    (a) Where to send a request. The National Science Foundation has one 
Agency component. You may make a FOIA request for records of the 
National Science Foundation by writing directly to the FOIA Officer, 
Office of the General Counsel, National Science Foundation, 4201 Wilson 
Boulevard, Suite 1265, Arlington, VA 22230. For records maintained by 
the NSF Office of the Inspector General (OIG), a designated Agency 
component, you may write directly to the Office of Inspector General, 
National Science Foundation, 4201 Wilson Boulevard, Suite 1135, 
Arlington, VA 22230. The Agency FOIA officer and the OIG component will 
also forward requests as appropriate. Requests may also be sent by 
facsimile to the Agency FOIA Officer on (703) 292-9041 or by e-mail to 
foia@nsf.gov; or, as appropriate to the OIG component via Fax on (703) 
292-9158.
    (b) Form of request. A FOIA request need not be in any particular 
format, but it must be in writing, include the requester's name and 
mailing address, and be clearly identified both on the envelope and in 
the letter, or in a facsimile or electronic mail message as a Freedom of 
Information Act or ``FOIA'' request. It must describe the records sought 
with sufficient specificity to permit identification, and include 
agreement to pay applicable fees chargeable under the Foundation's fee 
schedule as described in Sec. 612.10.
    (c) (1) If you are making a request for records about yourself and 
the records are not contained in a Privacy Act system of records, your 
request will be processed only under the FOIA, since the Privacy Act 
does not apply. If the records about you are contained in a Privacy Act 
system of records, NSF will respond with information on how to make a 
Privacy Act request (see NSF Privacy Act regulations at 45 CFR 613.2).
    (2) If you are making a request for personal information about 
another individual, either a written authorization signed by that 
individual in accordance with Sec. 613.2(f) permitting disclosure of 
those records to you, or proof that that individual is deceased (for 
example, a copy of a death certificate or a published obituary) will 
help the agency process your request.
    (d) Description of records sought. Your request must describe the 
records that you seek in enough detail to enable NSF personnel to locate 
them with a reasonable amount of effort. A record must have been created 
or obtained by NSF and under the control of NSF at the time of the 
request to be subject to the FOIA. NSF has no obligation under the FOIA 
to create, compile or obtain a record to satisfy a FOIA request. 
Whenever possible, your request should include specific descriptive 
information about each record sought, such as the date, title or name, 
author, recipient, and subject matter of the record. As a general rule, 
the more specific you are about the records or type of records that you 
want, the more likely the Foundation will be able to locate those 
records in response to your request, and the more likely fees will be 
reduced or eliminated. If NSF determines

[[Page 122]]

that your request does not reasonably describe records, you will be 
advised what additional information is needed to perfect your request or 
why your request is otherwise insufficient.
    (e) Agreement to pay fees. Your request must state that you will 
promptly pay the total fees chargeable under this regulation or set a 
maximum amount you are willing to pay. NSF does not charge if fees total 
less than $25.00. If you seek a waiver of fees, please see Sec. 
612.10(k) for a discussion of the factors you must address. If you place 
an inadequate limit on the amount you will pay, or have failed to make 
payments for previous requests, NSF may require advance payment (see 
Sec. 612.10(i)).
    (f) Receipt date. A request that meets the requirements of this 
section will be considered received on the date it is received by the 
Office of the General Counsel or the Office of the Inspector General. In 
determining which records are responsive to a FOIA request, the 
Foundation will include only records in its possession as of the date 
the search begins.
    (g) Publications excluded. For the purpose of public requests for 
records the term ``record'' does not include publications which are 
available to the public in the Federal Register, or by sale or free 
distribution. NSF publications are available in print. To request one or 
more print publications (http://www.nsf.gov/publications/obtain.jsp), 
you may:
    (1) Fill out web-based order form. http://www.nsf.gov/publications/
orderpub.jsp
    (2) Contact NSF Publications at (703) 292-PUBS (7827).
    (3) Send a letter with the publication number(s) clearly stated to: 
NSF Publications, National Science Foundation, 4201 Wilson Boulevard, 
Suite P-60, Arlington, VA 22230.



Sec. 612.4  Responding to requests.

    (a) Monitoring of requests. The NSF Office of the General Counsel 
(OGC), or such other office as may be designated by the Director, will 
serve as the central office for administering these regulations. For 
records maintained by the Office of Inspector General, that Office will 
control incoming requests made directly or referred to it, dispatch 
response letters, and maintain administrative records. For all other 
records maintained by NSF, OGC (or such other office as may be 
designated by the Director) will control incoming requests, assign them 
to appropriate action offices, monitor compliance, consult with action 
offices on disclosure, approve necessary extensions, dispatch denial and 
other letters, and maintain administrative records.
    (b) Consultations and referrals. When the Foundation receives a 
request for a record in its possession that originated with another 
agency or in which another agency has a substantial interest, it may 
decide that the other agency of the Federal Government is better able to 
determine whether the record should or should not be released under the 
FOIA.
    (1) If the Foundation determines that it is the agency best able to 
process the record in response to the request, then it will do so, after 
consultation with the other interested agencies where appropriate.
    (2) If it determines that it is not the agency best able to process 
the record, then it will refer the request regarding that record (or 
portion of the record) to the agency that originated or has a 
substantial interest in the record in question (but only if that agency 
is subject to the FOIA). Ordinarily, the agency that originated a record 
will be presumed to be best able to determine whether to disclose it.
    (c) Notice of referral. Whenever the Foundation refers all or any 
part of the responsibility for responding to a request to another 
agency, it ordinarily will notify the requester of the referral and 
inform the requester of the name of each agency to which the request has 
been referred and of the part of the request that has been referred, 
unless such notification would disclose information otherwise exempt.



Sec. 612.5  Timing of responses to requests.

    (a) In general. NSF ordinarily will initiate processing of requests 
according to their order of receipt.
    (b) Time for response. The Foundation will make reasonable effort to 
act on a

[[Page 123]]

request within 20 days of when a request is received by the OGC or the 
OIG or perfected (excluding the date of receipt, weekends, and legal 
holidays). A request is perfected when you have reasonably described the 
records sought under Sec. 612.3(d), agreed to pay fees chargeable under 
Sec. 612.3(c), or otherwise met the fee requirements under Sec. 
612.10.
    (c) Unusual circumstances. (1) Where the time limits for processing 
a request cannot be met because of ``unusual circumstances'' as defined 
in the FOIA, the FOIA Officer or the OIG component will notify the 
requester as soon as practicable in writing of the unusual circumstances 
and may extend the response period for up to ten working days.
    (2) Where the extension is for more than ten working days, the FOIA 
Officer or the OIG component will provide the requester with an 
opportunity either to modify the request so that it may be processed 
within the time limits or to arrange an agreed upon alternative time 
period with the FOIA Officer or the OIG component for processing the 
request or a modified request.
    (d) Expedited processing. (1) (i) If you want to receive expedited 
processing you must submit a statement, certified to be true and correct 
to the best of your knowledge and belief, explaining in detail the basis 
for requesting expedited processing.
    (ii) Requests and appeals will be given expedited treatment whenever 
it is determined that a requester has demonstrated compelling need by 
presenting:
    (A) 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
    (B) 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) For example, a requester who is 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. Such requester 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, and that the information sought has 
particular value that would be lost if not disseminated quickly.
    (3) Within ten calendar days of receipt of a request for expedited 
processing, the FOIA Officer or OIG component will decide whether to 
grant it, and will notify the requester of the decision orally or in 
writing. If a request for expedited treatment is granted, the request 
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.



Sec. 612.6  Processing requests.

    (a) Acknowledgment of requests. Each request is assigned a tracking 
number and the requester is advised of this FOIA number, the receipt 
date and the estimated date of action on the request.
    (b) Grants of requests. Once the Foundation makes a determination to 
grant a request in whole or in part, it will notify the requester in 
writing. The Foundation will inform the requester in the notice of any 
applicable fee and will disclose records to the requester promptly on 
payment of applicable fees. Records disclosed in part will be marked or 
annotated to show both the amount, the location and the FOIA Exemption 
under which the deletion is made.
    (c) Denials of requests. (1) Denials of FOIA requests will be made 
by the Office of the General Counsel, the Office of the Inspector 
General, or such other office as may be designated by the Director. The 
response letter will briefly set forth the reasons for the denial, 
including any FOIA exemption(s) applied by the Foundation or the OIG in 
denying the request. It will also provide the name and title or position 
of the person responsible for the denial, will inform the requester of 
the right to appeal, and will, where appropriate, include an estimate of 
the volume of any requested materials withheld. An estimate need not be 
provided when the volume is otherwise indicated through

[[Page 124]]

deletions on records disclosed in part, or if providing an estimate 
would harm an interest protected by an applicable exemption.
    (2) Requesters can appeal an agency determination to withhold all or 
part of any requested record; a determination that a requested record 
does not exist or cannot be located; a determination that what has been 
requested is not a record subject to the Act; a disapproval of a fee 
category claim by a requester; denial of a fee waiver or reduction; or a 
denial of a request for expedited treatment (see Sec. 612.9).



Sec. 612.7  Exemptions.

    (a) Exemptions from disclosure. The following types of records or 
information may be withheld as exempt in full or in part from mandatory 
public disclosure:
    (1) Exemption 1--5 U.S.C. 552(b)(1). Records specifically authorized 
and properly classified pursuant to Executive Order to be kept secret in 
the interest of national defense or foreign policy. NSF does not have 
classifying authority and normally does not deal with classified 
materials.
    (2) Exemption 2--5 U.S.C. 552(b)(2). Records related solely to the 
internal personnel rules and practices of NSF. This exemption primarily 
protects information that if released would allow the recipient to 
circumvent a statute or agency regulation. Administrative information 
such as rules relating to the work hours, leave, and working conditions 
of NSF personnel, or similar matters, can be disclosed to the extent 
that no harm would be caused to the functions to which the information 
pertains. Examples of records exempt from disclosure include, but are 
not limited to:
    (i) Operating rules, guidelines, manuals on internal procedure, 
schedules and methods utilized by NSF investigators, inspectors, 
auditors and examiners.
    (ii) Negotiating positions or limits at least until the execution of 
a contract (including a grant or cooperative agreement) or the 
completion of the action to which the negotiating positions were 
applicable. They may also be exempt pursuant to other provisions of this 
section.
    (iii) Information relating to position management and manpower 
utilization, such as internal staffing plans, authorizations or 
controls, or involved in determination of the qualifications of 
candidates for employment, advancement, or promotion including 
examination questions and answers.
    (iv) Computer software, the release of which would allow 
circumvention of a statute or NSF rules, regulations, orders, manuals, 
directives, instructions, or procedures; or the integrity and security 
of data systems.
    (3) Exemption 3--5 U.S.C. 552(b)(3). Records specifically exempted 
from disclosure by another statute that either requires that the 
information be withheld in such a way that the agency has no discretion 
in the matter; or establishes particular criteria for withholding or 
refers to particular types of information to be withheld. Examples of 
records exempt from disclosure include, but are not limited to:
    (i) Trade secrets, processes, operations, style of work, or 
apparatus; or the confidential statistical data, type, amount, or source 
of any income, profits, losses, or expenditures of any person, firm, 
partnership, corporation or association, 18 U.S.C. 1905;
    (ii) Records that disclose any invention in which the Federal 
Government owns or may own a right, title, or interest (including a 
nonexclusive license), 35 U.S.C. 205;
    (iii) Contractor proposals not specifically set forth or 
incorporated by reference into a contract, 41 U.S.C. 253b(m);
    (iv) Information protected by the Procurement Integrity Act, 41 
U.S.C. 423.
    (4) Exemption 4--5 U.S.C. 552(b)(4). Trade secrets and commercial or 
financial information obtained from a person, and privileged or 
confidential. Information subject to this exemption is that customarily 
held in confidence by the originator(s), including nonprofit 
organizations and their employees. Release of such information is likely 
to cause substantial harm to the competitive position of the originator 
or submitter, or impair the Foundation's ability to obtain such 
information in

[[Page 125]]

the future. NSF will process information potentially exempted from 
disclosure by Exemption 4 under section 612.8. Examples of information 
exempt from disclosure include, but are not limited to:
    (i) Information received in confidence, such as grant applications, 
fellowship applications, and research proposals prior to award;
    (ii) Confidential scientific and manufacturing processes or 
developments, and technical, scientific, statistical data or other 
information developed by a grantee.
    (iii) Technical, scientific, or statistical data, and commercial or 
financial information privileged or received in confidence from an 
existing or potential contractor or subcontractor, in connection with 
bids, proposals, or contracts, concerning contract performance, income, 
profits, losses, and expenditures, as well as trade secrets, inventions, 
discoveries, or other proprietary data. When the provisions of 41 U.S.C. 
253b(m) or 41 U.S.C. 423 are met, certain proprietary and source 
selection information may also be withheld under Exemption 3.
    (iv) Confidential proprietary information submitted on a voluntary 
basis.
    (v) Statements or information collected in the course of 
inspections, investigations, or audits, when such statements are 
received in confidence from the individual and retained in confidence 
because they reveal trade secrets or commercial or financial information 
normally considered confidential or privileged.
    (5) Exemption 5--5 U.S.C. 552(b)(5). Inter-agency or intra-agency 
memoranda or letters which would not be available by law to a private 
party in litigation with NSF. Factual material contained in such records 
will be considered for release if it can be reasonably segregated and is 
not otherwise exempt. Examples of records exempt from disclosure 
include, but are not limited to:
    (i) Reports, memoranda, correspondence, work papers, minutes of 
meetings, and staff papers, containing evaluations, advice, opinions, 
suggestions, or other deliberative material that are prepared for use 
within NSF or within the Executive Branch of the Government by agency 
personnel and others acting in a consultant or advisory capacity;
    (ii) Advance information on proposed NSF plans to procure, lease, or 
otherwise acquire, or dispose of materials, real estate, facilities, 
services or functions, when such information would provide undue or 
unfair competitive advantage to private interests or impede legitimate 
government functions;
    (iii) Trade secret or other confidential research development, or 
commercial information owned by the Government, where premature release 
is likely to affect the Government's negotiating position or other 
commercial interest;
    (iv) Records prepared for use in proceedings before any Federal or 
State court or administrative body;
    (v) Evaluations of and comments on specific grant applications, 
research projects or proposals, or potential contractors and their 
products, whether made by NSF personnel or by external reviewers acting 
either individually or in panels, committees or similar groups;
    (vi) Preliminary, draft or unapproved documents, such as opinions, 
recommendations, evaluations, decisions, or studies conducted or 
supported by NSF;
    (vii) Proposed budget requests, and supporting projections used or 
arising in the preparation and/or execution of a budget; proposed annual 
and multi-year policy, priorities, program and financial plan and 
supporting papers;
    (viii) Those portions of official reports of inspection, reports of 
the Inspector General, audits, investigations, or surveys pertaining to 
safety, security, or the internal management, administration, or 
operation of NSF, when these records have traditionally been treated by 
the courts as privileged against disclosure in litigation.
    (6) Exemption 6--5 U.S.C. 552(b)(6). Personnel and medical files and 
similar files, the disclosure of which would constitute a clearly 
unwarranted invasion of personal privacy. The exemption applies to 
living persons and to family members of a deceased person identified in 
a record. Information in such files which is not otherwise exempt from 
disclosure pursuant to other

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provisions of this section will be released to the subject or to his 
designated legal representative, and may be disclosed to others with the 
subject's written consent. Examples of records exempt from disclosure 
include, but are not limited to:
    (i) Reports, records, and other materials pertaining to individual 
cases in which disciplinary or other administrative action has been or 
may be taken. Opinions and orders resulting from those administrative or 
disciplinary proceedings shall be disclosed without identifying details 
if used, cited, or relied upon as precedent.
    (ii) Records compiled to evaluate or adjudicate the suitability of 
candidates for employment, and the eligibility of individuals (civilian 
or contractor employees) for security clearances, or for access to 
classified information.
    (iii) Reports and evaluations which reflect upon the qualifications 
or competence of individuals.
    (iv) Personal information such as home addresses and telephone and 
facsimiles numbers, private e-mail addresses, social security numbers, 
dates of birth, marital status and the like.
    (v) The exemption also applies when the fact of the existence or 
nonexistence of a responsive record would itself reveal personally 
private information, and the public interest in disclosure is not 
sufficient to outweigh the privacy interest.
    (7) Exemption 7--5 U.S.C. 552(b)(7). Records or information compiled 
for civil or criminal law enforcement purposes, including the 
implementation of Executive Orders or regulations issued pursuant to 
law. This exemption may exempt from mandatory disclosure records not 
originally created, but later gathered, for law enforcement purposes.
    (i) This exemption applies only to the extent that the production of 
such law enforcement records or information:
    (A) Could reasonably be expected to interfere with enforcement 
proceedings;
    (B) Would deprive a person of the right to a fair trial or an 
impartial adjudication;
    (C) Could reasonably be expected to constitute an unwarranted 
invasion of personal privacy of a living person, or family members of a 
deceased person identified in a record;
    (D) Could reasonably be expected to disclose the identity of a 
confidential source, including a source within the Federal Government, 
or a State, local, or foreign agency or authority, or any private 
institution, that furnished information on a confidential basis; and 
information furnished by a confidential source and obtained by a 
criminal law enforcement authority in a criminal investigation;
    (E) 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
    (F) Could reasonably be expected to endanger the life or physical 
safety of any individual.
    (ii) Examples of records exempt from disclosure include, but are not 
limited to:
    (A) The identity and statements of complainants or witnesses, or 
other material developed during the course of an investigation and all 
materials prepared in connection with related government litigation or 
adjudicative proceedings;
    (B) The identity of firms or individuals investigated for alleged 
irregularities involving NSF grants, contracts or other matters when no 
indictment has been obtained, no civil action has been filed against 
them by the United States, or no government-wide public suspension or 
debarment has occurred;
    (C) Information obtained in confidence, expressed or implied, in the 
course of a criminal investigation by the NSF Officer of the Inspector 
General.
    (iii) The exclusions contained in 5 U.S.C. 552(c)(1) and (2) may 
also apply to these records.
    (8) Exemption 8--5 U.S.C. 552(b)(8). Records contained in or related 
to examination, operating, or condition reports prepared by, on behalf 
of, or for the use of any agency responsible for the regulation or 
supervision of financial institutions.

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    (9) Exemption 9--5 U.S.C. 552(b)(9). Records containing geological 
and geophysical information and data, including maps, concerning wells.
    (b) Deletion of exempt portions and identifying details. Any 
reasonably segregable portion of a record will be provided to requesters 
after deletion of the portions which are exempt. Whenever any final 
opinion, order, or other materials required to be made available relates 
to a private party or parties and the release of the name(s) or other 
identifying details will constitute a clearly unwarranted invasion of 
personal privacy, the record shall be published or made available with 
such identifying details left blank, or shall be published or made 
available with obviously fictitious substitutes and with a notification 
such as the following: names of parties and certain other identifying 
details have been removed (and fictitious names substituted) in order to 
prevent a clearly unwarranted invasion of the personal privacy of the 
individuals involved.



Sec. 612.8  Business information.

    (a) In general. Business information obtained by the Foundation from 
a submitter of that information will be disclosed under the FOIA only 
under this section's procedures.
    (b) Definitions. For purposes of this section:
    (1) ``Business Information'' means commercial or financial 
information obtained by the Foundation from a submitter that may be 
protected from disclosure under Exemption 4 of the FOIA and Sec. 
612.7(a)(4).
    (2) ``Submitter'' means any person or entity from whom the 
Foundation obtains business information, directly or indirectly. The 
term includes corporations; state, local, and tribal governments; and 
foreign governments.
    (c) Designation of business information. A submitter of business 
information must use good faith efforts to designate, by appropriate 
markings, either at the time of submission or at a reasonable time 
thereafter, any portions of its submission that it considers to be 
protected from disclosure under Exemption 4. These designations will 
expire ten years after the date of the submission unless the submitter 
requests, and provides justification for, a longer designation period.
    (d) Notice to submitters. The Foundation will provide a submitter 
with prompt written notice of a FOIA request or administrative appeal 
that seeks its business information wherever required under this 
section, in order to give the submitter an opportunity to object to 
disclosure of any specified portion of that information under paragraph 
(f) of this section. The notice shall either describe the business 
information requested or include copies of the requested records or 
record portions containing the information.
    (e) Where notice is required. Notice will be given to a submitter 
wherever:
    (1) The information has been designated in good faith by the 
submitter as information considered protected from disclosure under 
Exemption 4; or
    (2) The Foundation has reason to believe that the information may be 
protected from disclosure under Exemption 4.
    (f) Opportunity to object to disclosure. NSF will allow a submitter 
a reasonable time, consistent with statutory requirements, to respond to 
the notice described in paragraph (d) of this section. If a submitter 
has any objection to disclosure, it must submit a detailed written 
statement. The statement must specify all grounds for withholding any 
portion of the information under any exemption of the FOIA and, in the 
case of Exemption 4, must show why the information is a trade secret, or 
commercial or financial information that is privileged or confidential. 
In the event that a submitter fails to respond within the time specified 
in the notice, the submitter will be considered to have no objection to 
disclosure of the information. Information provided by a submitter under 
this paragraph may itself be a record subject to disclosure under the 
FOIA.
    (g) Notice of intent to disclose. The Foundation will consider a 
submitter's objections and specific grounds for nondisclosure in 
deciding whether to disclose business information. Whenever it decides 
to disclose business information over the objection of a submitter, the 
Foundation will give the submitter written notice, which will include:

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    (1) A statement of the reason(s) why the submitter's disclosure 
objections were not sustained;
    (2) A description of the business information to be disclosed; and
    (3) A specified disclosure date, which will be a reasonable time 
subsequent to the notice.
    (h) Exceptions to notice requirements. The notice requirements of 
paragraphs (d) and (g) of this section will not apply if:
    (1) The Foundation determines that the information should not be 
disclosed (the Foundation protects from disclosure to third parties 
information about specific unfunded applications, including pending, 
withdrawn, or declined proposals);
    (2) The information lawfully has been published or has been 
officially made available to the public;
    (3) Disclosure of the information is required by statute (other than 
the FOIA) or by a regulation issued in accordance with the requirements 
of Executive Order 12600 (3 CFR, 1988 Comp., p. 235); or
    (4) The designation made by the submitter under paragraph (c) of 
this section appears obviously frivolous, in which case the Foundation 
will, within a reasonable time prior to a specified disclosure date, 
give the submitter written notice of any final decision to disclose the 
information.
    (i) Notice of FOIA lawsuit. Whenever a requester files a lawsuit 
seeking to compel the disclosure of business information, the Foundation 
will promptly notify the submitter(s). Whenever a submitter files a 
lawsuit seeking to prevent the disclosure of business information, the 
Foundation will notify the requester(s).



Sec. 612.9  Appeals.

    (a) Appeals of denials. You may appeal a denial of your request to 
the General Counsel, National Science Foundation, 4201 Wilson Boulevard, 
Suite 1265, Arlington, VA 22230. You must make your appeal in writing 
and it must be received by the Office of the General Counsel within ten 
days of the receipt of the denial (weekends, legal holidays, and the 
date of receipt excluded). Clearly mark your appeal letter and the 
envelope ``Freedom of Information Act Appeal.'' Your appeal letter must 
include a copy of your written request and the denial together with any 
written argument you wish to submit.
    (b) Responses to appeals. A written decision on your appeal will be 
made by the General Counsel. A decision affirming an adverse 
determination in whole or in part will contain a statement of the 
reason(s) for the affirmance, including any FOIA exemption(s) applied, 
and will inform you of the FOIA provisions for court review of the 
decision. If the adverse determination is reversed or modified on 
appeal, in whole or in part, you will be notified in a written decision 
and your request will be reprocessed in accordance with that appeal 
decision.
    (c) When appeal is required. If you wish to seek review by a court 
of any denial, you must first appeal it under this section.



Sec. 612.10  Fees.

    (a) In general. NSF will charge for processing requests under the 
FOIA in accordance with paragraph (c) of this section, except where fees 
are limited under paragraph (d) of this section or where a waiver or 
reduction of fees is granted under paragraph (k) of this section. If 
fees are applicable, NSF will itemize the amounts charged. NSF may 
collect all applicable fees before sending copies of requested records 
to a requester. Requesters must pay fees by check or money order made 
payable to the Treasury of the United States.
    (b) Definitions. For purposes of this section:
    (1) Commercial use request means a request from or on behalf of a 
person who seeks information for a use or purpose that furthers his or 
her commercial, trade, or profit interests, which can include furthering 
those interests through litigation. When it appears that the requester 
will put the records to a commercial use, either because of the nature 
of the request itself or because NSF has reasonable cause to doubt a 
requester's stated use, NSF will provide the requester a reasonable 
opportunity to submit further clarification.
    (2) Direct costs means those expenses that an agency actually incurs 
in searching for and duplicating (and, in

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the case of commercial use requests, reviewing) records to respond to a 
FOIA request. Direct costs include, for example, the salary of the 
employee performing the work (the basic rate of pay for the employee, 
plus 16 percent of that rate to cover benefits) and the cost of 
operating duplication machinery. Not included in direct costs are 
overhead expenses such as the costs of space and heating or lighting of 
the facility in which the records are kept.
    (3) Duplication means the making of a copy of a record, or of the 
information contained in it, necessary to respond to a FOIA request. 
Copies can take the form of paper, microform, audiovisual materials, or 
electronic records (for example, magnetic tape or disk) among others. 
NSF will honor a requester's specified preference of form or format of 
disclosure if the record is readily reproducible by NSF, with reasonable 
effort, in the requested form or format.
    (4) Educational institution means a preschool, a public or private 
elementary or secondary school, an institution of undergraduate higher 
education, an institution of graduate higher education, an institution 
of professional education, or an institution of vocational education, 
that operates a program of scholarly research. To be in this category, a 
requester must show that the request is authorized by and made under the 
auspices of a qualifying institution and that the records are not sought 
for a commercial use, but are sought to further scholarly research.
    (5) Noncommercial scientific institution means an institution that 
is not operated on a ``commercial'' basis, as that term is defined in 
paragraph (b) (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. To be in this 
category, a requester must show that the request is authorized by and 
made under the auspices of a qualifying institution and that the records 
are not sought for a commercial use or to promote any particular product 
or industry, but are sought to further scientific research.
    (6) Representative of the news media or news media requester means 
any person actively gathering news for an entity that is organized and 
operated to publish or broadcast news to the public. The term ``news'' 
means information that is about current events or that would be of 
current interest to the public. Examples of news media entities include 
television or radio stations broadcasting to the public at large and 
publishers of periodicals (but only in those instances where they can 
qualify as disseminators of ``news'') who make their products available 
for purchase or subscription by the general public. For ``freelance'' 
journalists to be regarded as working for a news organization, they must 
demonstrate a solid basis for expecting publication through that 
organization. A publication contract would be the clearest proof, but 
the Agency or the OIG, as appropriate, shall also look to the past 
publication record of a requester in making this determination. To be in 
this category, a requester must not be seeking the requested records for 
a commercial use. However, a request for records supporting the news-
dissemination function of the requester shall not be considered to be 
for a commercial use.
    (7) Review means the examination of a record located in response to 
a request in order to determine whether any portion of it is exempt from 
disclosure. It also includes processing any record for disclosure, for 
example, doing all that is necessary to redact it and prepare it for 
disclosure. Review costs are recoverable even if a record ultimately is 
not disclosed. Review time includes time spent considering any formal 
objection to disclosure made by a business submitter under Sec. 612.8, 
but does not include time spent resolving general legal or policy issues 
regarding the application of exemptions.
    (8) 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. NSF will ensure that searches 
are done in the most efficient and least expensive manner reasonably 
possible. For example, NSF will not search line by line where 
duplicating

[[Page 130]]

an entire document would be quicker and less expensive.
    (c) Fees. In responding to FOIA requests, NSF will charge the 
following fees unless a waiver or reduction of fees has been granted 
under paragraph (k) of this section:
    (1) Search. (i) Search fees will be charged for all requests--other 
than requests made by educational institutions, noncommercial scientific 
institutions, or representatives of the news media--subject to the 
limitations of paragraph (d) of this section. NSF may charge for time 
spent searching even if responsive records are not located or are 
withheld entirely as exempt from disclosure.
    (ii) Manual searches for records. Whenever feasible, NSF will charge 
at the salary rate(s) (i.e., basic pay plus 16 percent) of the 
employee(s) conducting the search. Where a homogeneous class of 
personnel is used exclusively (e.g., all administrative/clerical or all 
professional/executive), NSF has established an average rate for the 
range of grades typically involved. Routine search for records by 
clerical personnel are charged at $2.50 for each quarter hour. When a 
non-routine, non-clerical search by professional personnel is conducted 
(for example, where the task of determining which records fall within a 
request requires professional time) the charge is $7.50 for each quarter 
hour.
    (iii) Computer searches of records. NSF will charge at the actual 
direct cost of conducting the search. This will include the cost of 
computer operations for that portion of operating time that is directly 
attributable to searching for records responsive to a FOIA request and 
operator/programmer salary (i.e., basic pay plus 16 percent) 
apportionable to the search. When NSF can establish a reasonable agency-
wide average rate for computer operating costs and operator/programmer 
salaries involved in FOIA searches, the Foundation will do so and charge 
accordingly.
    (2) Duplication. Duplication fees will be charged to all requesters, 
subject to the limitations of paragraph (d) of this section. For a paper 
photocopy of a record (no more than one copy of which need be supplied), 
the fee will be 25 cents per page. For copies produced by computer, such 
as tapes or printouts, NSF will charge the direct costs, including 
operator time, of producing the copy. For other forms of duplication, 
NSF will charge the direct costs of that duplication.
    (3) Review. Review fees will be charged to requesters who make a 
commercial use request. Review fees will be charged only for the initial 
record review--in other words, the review done when NSF determines 
whether an exemption applies to a particular record or record portion at 
the initial request level. NSF may charge for review even if a record 
ultimately is not disclosed. No charge will be made for review at the 
administrative appeal level for an exemption already applied. However, 
records or record portions withheld under an exemption that is 
subsequently determined not to apply may be reviewed again to determine 
whether any other exemption not previously considered applies; the costs 
of that review are chargeable where it is made necessary by a change of 
circumstances. Review fees will be charged at the salary rate (basic pay 
plus 16%) of the employee(s) performing the review.
    (d) Limitations on charging fees. (1) No search fee will be charged 
for requests by educational institutions, noncommercial scientific 
institutions, or representatives of the news media.
    (2) Except for requesters seeking records for a commercial use, NSF 
will provide without charge:
    (i) The first 100 pages of duplication (or the cost equivalent); and
    (ii) The first two hours of search (or the cost equivalent).
    (3) Whenever a total fee calculated under paragraph (c) of this 
section is $25.00 or less for any request, no fee will be charged.
    (4) The provisions of paragraphs (d) (2) and (3) of this section 
work together. This means that noncommercial requesters will be charged 
no fees unless the cost of search in excess of two hours plus the cost 
of duplication in excess of 100 pages totals more than $25.00. 
Commercial requesters will not be charged unless the costs of search, 
review, and duplication total more than $25.00.

[[Page 131]]

    (e) Notice of anticipated fees in excess of $25.00. When NSF 
determines or estimates that the fees to be charged under this section 
will exceed $25.00, it will notify the requester of the actual or 
estimated amount of the fees, unless the requester has indicated a 
willingness to pay fees as high as those anticipated. If only a portion 
of the fee can be estimated readily, NSF will advise the requester that 
the estimated fee may be only a portion of the total fee. In cases in 
which a requester has been notified that actual or estimated fees exceed 
$25.00, the request will not be considered perfected and further work 
will not be done until the requester agrees to pay the anticipated total 
fee. Any such agreement should be memorialized in writing. A notice 
under this paragraph will offer the requester an opportunity to discuss 
the matter with Foundation personnel in order to reformulate the request 
to meet the requester's needs at a lower cost, if possible. If a 
requester fails to respond within 60 days of notice of actual or 
estimated fees with an agreement to pay those fees, NSF may 
administratively close the request.
    (f) Charges for other services. Apart from the other provisions of 
this section, when NSF chooses as a matter of administrative discretion 
to provide a requested special service--such as certifying that records 
are true copies or sending them by other than ordinary mail--the direct 
costs of providing the service will be charged to the requester.
    (g) Charging interest. NSF may charge interest on any unpaid bill 
starting on the 31st day following the date of billing the requester. 
Interest charges will be assessed at the rate provided in 31 U.S.C. 3717 
and will accrue from the date of the billing until payment is received 
by NSF. NSF will follow the provisions of the Debt Collection Act of 
1982 (Pub. L. 97-365, 96 Stat. 1749), as amended, and its administrative 
procedures, including the use of consumer reporting agencies, collection 
agencies, and offset.
    (h) Aggregating requests. Where NSF reasonably believes that a 
requester or a group of requesters acting together is attempting to 
divide a request into a series of requests for the purpose of avoiding 
fees, the agency may aggregate those requests and charge accordingly. 
NSF may presume that multiple requests of this type made within a 30-day 
period have been made in order to avoid fees. Where requests are 
separated by a longer period, NSF will aggregate them only where there 
exists a solid basis for determining that aggregation is warranted under 
all the circumstances involved. Multiple requests involving unrelated 
matters will not be aggregated.
    (i) Advance payments. (1) For requests other than those described in 
paragraphs (i)(2) and (3) of this section, NSF will not require the 
requester to make an advance payment--in other words, a payment made 
before work is begun or continued on a request. Payment owed for work 
already completed (i.e., a prepayment before copies are sent to a 
requester) is not an advance payment.
    (2) Where NSF determines or estimates that a total fee to be charged 
under this section will be more than $250.00, it may require the 
requester to make an advance payment of an amount up to the amount of 
the entire anticipated fee before beginning to process the request, 
except where it receives a satisfactory assurance of full payment from a 
requester that has a history of prompt payment.
    (3) Where a requester has previously failed to pay a properly 
charged fee to any agency within 30 days of the date of billing, NSF may 
require the requester to pay the full amount due, plus any applicable 
interest, and to make an advance payment of the full amount of any 
anticipated fee, before NSF begins to process a new request or continues 
to process a pending request from that requester.
    (4) In cases in which NSF requires advance payment or payment due 
under paragraph (i)(2) or (3) of this section, the request will not be 
considered perfected and further work will not be done on it until the 
required payment is received.
    (j) Other statutes specifically providing for fees. The fee schedule 
of this section does not apply to fees charged under any statute that 
specifically requires an agency to set and collect fees for particular 
types of records. Where

[[Page 132]]

records responsive to requests are maintained for distribution by 
agencies operating such statutorily based fee schedule programs, NSF 
will inform requesters of the steps for obtaining records from those 
sources so that they may do so most economically.
    (k) Waiver or reduction of fees. (1) Records responsive to a request 
will be furnished without charge or at a charge reduced below that 
established under paragraph (c) of this section where NSF determines, 
based on all available information, that disclosure of the requested 
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.
    (2) To determine whether the first fee waiver requirement is met, 
NSF will consider the following factors:
    (i) The subject of the request: Whether the subject of the requested 
records concerns ``the operations or activities of the government.'' The 
subject of the requested records must concern identifiable operations or 
activities of the federal government, with a connection that is direct 
and clear, not remote or attenuated.
    (ii) The informative value of the information to be disclosed: 
Whether disclosure is ``likely to contribute'' to an understanding of 
government operations or activities. The disclosable portions of the 
requested records must be meaningfully informative about government 
operations or activities in order to be ``likely to contribute'' to an 
increased public understanding of those operations or activities. 
Disclosure of information already in the public domain, in either 
duplicative or substantially identical form, is unlikely to contribute 
to such understanding where nothing new would be added to the public's 
understanding.
    (iii) The contribution to an understanding of the subject by the 
public likely to result from disclosure: Whether disclosure of the 
requested information will contribute to ``public understanding.'' The 
disclosure must contribute to the understanding of a reasonably broad 
audience of persons interested in the subject as opposed to the 
individual understanding of the requester. A requester's expertise in 
the subject area and ability and intention to effectively convey 
information to the public will be considered. A representative of the 
news media as defined in paragraph (b)(6) of this section will normally 
be presumed to satisfy this consideration.
    (iv) The significance of the contribution to public understanding: 
Whether disclosure is likely to contribute ``significantly'' to public 
understanding of government operations or activities. The public's 
understanding of the subject in question must be enhanced by the 
disclosure to a significant extent as compared to the level of public 
understanding existing prior to the disclosure. NSF will make no value 
judgments about whether information that would contribute significantly 
to public understanding of the operations or activities of the 
government is ``important'' enough to be made public.
    (3) To determine whether the second fee waiver requirement is met, 
NSF will consider the following factors:
    (i) The existence and magnitude of a commercial interest: Whether 
the requester has a commercial interest that would be furthered by the 
requested disclosure. NSF will consider any commercial interest of the 
requester (with reference to the definition of ``commercial use'' in 
paragraph (b)(1) of this section), or of any person on whose behalf the 
requester may be acting, that would be furthered by the requested 
disclosure. Requesters will be given an opportunity in the 
administrative process to provide explanatory information regarding this 
consideration.
    (ii) The primary interest in disclosure: Whether any identified 
commercial interest of the requester is sufficiently large, in 
comparison with the public interest in disclosure, that disclosure is 
``primarily in the commercial interest of the requester.'' A fee waiver 
or reduction is justified where the public interest standard is 
satisfied and that public interest is greater in magnitude than that of 
any identified commercial interest in disclosure. NSF ordinarily will 
presume that where a news media requester has satisfied the public 
interest standard, the public interest will be the interest primarily

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served by disclosure to that requester. Disclosure to data brokers or 
others who merely compile and market government information for direct 
economic return will not be presumed to primarily serve the public 
interest.
    (4) Where only some of the requested records satisfy the 
requirements for a waiver of fees, a waiver will be granted for those 
records.
    (5) Requests for the waiver or reduction of fees should address the 
factors listed in paragraphs (k) (2) and (3) of this section, insofar as 
they apply to each request.



Sec. 612.11  Other rights and services.

    Nothing in this part will be construed to entitle any person, as of 
right, to any service or to the disclosure of any record to which such 
person is not entitled under the FOIA.



PART 613_PRIVACY ACT REGULATIONS--Table of Contents




Sec.
613.1 General provisions.
613.2 Requesting access to records.
613.3 Responding to requests for access to records.
613.4 Amendment of records.
613.5 Exemptions.
613.6 Other rights and services.

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

    Source: 70 FR 43068, July 26, 2005, unless otherwise noted.



Sec. 613.1  General Provisions.

    This part sets forth the National Science Foundation procedures 
under the Privacy Act of 1974. The rules in this part apply to all 
records in systems of records maintained by NSF that are retrieved by an 
individual's name or personal identifier. They describe the procedures 
by which individuals, as defined in the Privacy Act, may request access 
to records about themselves and request amendment or correction of those 
records. All Privacy Act requests for access to records are also 
processed under the Freedom of Information Act, 5 U.S.C. 552 (as 
provided in part 612 of this chapter), which gives requesters the 
benefit of both statutes. Notice of systems of records maintained by the 
National Science Foundation are published in the Federal Register.



Sec. 613.2  Requesting access to records.

    (a) Where to make a request. You may make a request for access to 
NSF records about yourself by appearing in person at the National 
Science Foundation or by making a written request. If you choose to 
visit the Foundation, you must contact the NSF Security Desk and ask to 
speak with the Foundation's Privacy Act Officer of the General Counsel. 
Written requests should be sent to the NSF Privacy Act Officer, National 
Science Foundation, 4201 Wilson Boulevard, Suite 1265, Arlington, VA 
22230. Written requests are recommended, since in many cases it may take 
several days to determine whether a record exists, and additional time 
may be required for record(s) retrieval and processing.
    (b) Description of requested records. You must describe the records 
that you seek in enough detail to enable NSF personnel to locate the 
system of records containing them with a reasonable amount of effort. 
Providing information about the purpose for which the information was 
collected, applicable time periods, and name or identifying number of 
each system of records in which you think records about you may be kept, 
will help speed the processing of your request. NSF publishes notices in 
the Federal Register that describe the systems of records maintained by 
the Foundation. The Office of the Federal Register publishes a biennial 
``Privacy Act compilation'' that includes NSF system notices. This 
compilation is available in many large reference and university 
libraries, and can be accessed electronically at the Government Printing 
Office's Web site at www.access.gpo/su--docs/aces/PrivacyAct.shtml.
    (c) Verification of identity. When requesting access to records 
about yourself, NSF requires that you verify your identity in an 
appropriate fashion. Individuals appearing in person should be prepared 
to show reasonable picture identification such as driver's license, 
government or other employment identification card, or passport. Written 
requests must state your full name and

[[Page 134]]

current address. you must sign your request and your signature must 
either be notarized, or submitted by you under 28 U.S.C. 1746, a law 
that permits statements to be made under penalty of perjury as a 
substitute for notarization. While no specific form is required, you may 
obtain information about these required elements for requests from the 
NSF Privacy Act Officer, Suite 1265, 4201 Wilson Blvd, Arlington, VA 
22230, or from the NSF Home Page under ``Public & media Information--
FOIA and Privacy Act'' at http://www.nsf.gov/home/pubinfo/foia.htm. In 
order to help agency personnel in locating and identifying requested 
records, you may also, at your option, include your social security 
number, and/or date and place of birth. An individual reviewing his or 
her record(s) in person may be accompanied by an individual of his or 
her choice after signing a written statement authorizing that 
individual's presence. Individuals requesting or authorizing the 
disclosure of records to a third party must verify their identity and 
specifically name the third party and identify the information to be 
disclosed.
    (d) Verification of guardianship. When making a request as the 
parent or guardian of a minor or as the guardian of someone determined 
by a court of competent jurisdiction to be incompetent, for access to 
records about that individual, you must establish:
    (1) The identity of the record subject, by stating individuals' name 
and current address and, at your option, the social security number and/
or date and place of birth of the individual;
    (2) Your own identity, as required in paragraph (c) of this section;
    (3) That you are the parent or guardian of that individual, which 
you may prove by providing a copy of the individual's birth certificate 
showing your parentage or by providing a court order establishing your 
guardianship; and
    (4) That you are acting on behalf of that individual in making the 
request.
    (e) The procedures of paragraphs (a) through (d) of this section 
shall also apply to requests made pursuant to 5 U.S.C. 552a(c)(3).



Sec. 613.3  Responding to requests for access to records.

    (a) Timing of responses to requests. The Foundation will make 
reasonable effort to act on a request for access to records within 20 
days of its receipt by the Privacy Act Officer (excluding date of 
receipt, weekends, and legal holidays) or from the time any required 
identification is received by the Privacy Act Officer, whichever is 
later. In determining which records are responsive to a request, the 
Foundation will include only records in its possession as of the date of 
receipt. When the agency cannot complete processing of a request within 
20 working days, the foundation will send a letter explaining the delay 
and notifying the requester of the date by which processing is expected 
to be completed.
    (b) Authority to grant or deny requests. The Privacy Act Officer, or 
his or her designee in the office with responsibility for the requested 
records, is authorized to grant or deny access to a Foundation record.
    (c) Granting access to records. When a determination is made to 
grant a request for access in whole or part, the requester will be 
notified as soon as possible of the Foundation's decision. Where a 
requester has previously failed to pay a properly charged fee to any 
agency within 30 days of the date of billing, NSF may require the 
requester to pay the full amount due, plus any applicable interest, and 
to make an advance payment of the full amount of any anticipated fee, 
before NSF begins to process a new request or continues to process a 
pending request from that requester.
    (1) Requests made in person. When a request is made in person, if 
the records can be found, and reviewed for access without unreasonable 
disruption of agency operations, the Foundation may disclose the records 
to the requester directly upon payment of any applicable fee. A written 
record should be made documenting the granting of the request. If a 
requester is accompanied by another person, the requester shall be 
required to authorize in writing any discussion of the records in the 
presence of the other person.
    (2) Requests made in writing. The Foundation will send the records 
to the

[[Page 135]]

requester promptly upon payment of any applicable fee.
    (d) Denying access to records. The requester will be notified in 
writing of any determination to deny a request for access to records. 
The notification letter will be signed by the Privacy Act Officer, or 
his or designee, as the individual responsible for the denial and will 
include a brief statement of the reason(s) for the denial, including any 
Privacy Act exemption(s) applied in denying the request.
    (e) Fees. The Foundation will charge for duplication of records 
requested under the Privacy Act in the same way it charges for 
duplication under the Freedom of Information Act (see CFR 612.10). No 
search or review fee may be charged for the record unless the record has 
been exempted from access under Exemptions (j)(2) or (k)(2) of the 
Privacy Act.



Sec. 613.4  Amendment of records.

    (a) Where to make a request. An individual may request amendment of 
records pertaining to him or her that are maintained in an NSF Privacy 
Act system of records, except that certain records described in 
paragraph (h) of this section are exempt from amendment. Request for 
amendment of records must be made in writing to the NSF Privacy Act 
Officer, National Science Foundation, Suite 1265, 4201 Wilson Boulevard, 
Arlington, VA 22230.
    (b) How to make a request. Your request should identify each 
particular record in question, state the amendment you want to take 
place and specify why you believe that the record is not accurate, 
relevant, timely, or complete. You may submit any documentation that you 
think would be helpful. Providing an edited copy of the record(s) 
showing the desired change will assist the agency in making a 
determination about your request. If you believe that the same 
information is maintained in more than one NSF system of records you 
should include that information in your request. You must sign your 
request and provide verification of your identity as specified in 
613.2(c).
    (c) Timing of responses to requests. The Privacy Act Officer, or his 
or her designee, will acknowledge receipt of request for amendment 
within 10 working days of receipt. Upon receipt of a proper request the 
Privacy Act Officer will promptly confer with the NSF Directorate or 
Office with responsibility for the record to determine if the request 
should be granted in whole or part.
    (d) Granting request for amendment. When a determination is made to 
grant a request for amendment in whole or part, notification to the 
requester will be made as soon as possible, normally within 30 wording 
days of the Privacy Act Officer receiving the request, describing the 
amendment made and including a copy of the amended record, in 
disclosable form.
    (e) Denying request for amendment. When a determination is made that 
amendment, in whole or part, is unwarranted, the matter shall be brought 
to the attention of the Inspector General, if it pertains to records 
maintained by the Office of the Inspector General, or to the attention 
of the General Counsel, if it pertains to other NSF records. If the 
General Counsel or Inspector General or their designee agrees with the 
determination that amendment is not warranted, the Privacy Act Officer 
will notify the requester in writing, normally within 30 working days of 
the Privacy Act Officer receiving the request. The notification letter 
will be signed by the Privacy Act Officer or his or her designee, and 
will include a statement of the reason(s) for the denial and how to 
appeal the decision.
    (f) Appealing a denial. You may appeal a denial of a request to 
amend records to the General Counsel, National Science Foundation, 4201 
Wilson Blvd., Suite 1265, Arlington, VA 22230. You must make your appeal 
in writing and it must be received by the Office of the General Counsel 
within ten days of the receipt of the denial (weekends, legal holidays, 
and the date of receipt excluded). Clearly mark your appeal letter and 
envelope ``Privacy Act Appeal.'' Your appeal letter must include a copy 
of your original request for amendment and the denial letter, along with 
any additional documentation or argument you wish to submit in favor of 
amending the records. It must be signed by you or your officially 
designated representative.

[[Page 136]]

    (g) Responses to appeals. The General Counsel, or his or her 
designee, will normally render a decision on the appeal within thirty 
working days after proper receipt of the written appeal by the General 
Counsel. If additional time to make a determination is necessary you 
will be advised in writing of the need for an extension.
    (1) Amendment appeal granted. If on appeal the General Counsel, or 
his or her designee, determines that amendment of the record should take 
place, you will be notified as soon as possible of the Foundation's 
decision. The notification will describe the amendment made and include 
a copy of the amended record, in disclosable form.
    (2) Amendment appeal denied--Statement of disagreement. If on appeal 
the General Counsel, or his or her designee, upholds a denial of a 
request for amendment of records, you will be notified in writing of the 
reasons why the appeal was denied and advised of your right to seek 
judicial review of the decision. The letter will also notify you of your 
right to file with the Foundation a concise statement setting forth the 
reasons for your disagreement with the refusal of the Foundation to 
amend the record. The statement should be sent to the Privacy Act 
Officer, who will ensure that a copy of the statement is placed with the 
disputed record. A copy of the statement will be included with any 
subsequent disclosure of the record.
    (h) Records not subject to amendment. The following records are not 
subject to amendment:
    (1) Transcripts of testimony given under oath or written statements 
made under oath;
    (2) Transcripts of grand jury proceedings, judicial proceedings, or 
quasi-judicial proceedings, which are the official record of those 
proceedings;
    (3) Pre-sentence records that originated with the courts; and
    (4) Records in systems of records that have been exempted from 
amendment under Privacy Act, 5 U.S.C. 552a(j) or (k) by notice published 
in the Federal Register.



Sec. 613.5  Exemptions.

    (a) Fellowships and other support. Pursuant to 5 U.S.C. 552a(k)(6), 
the Foundation hereby exempts from the application of 5 U.S.C. 
552a(c)(3) and (d) any materials which would reveal the identity of 
references of fellowship or other award applicants or nominees, or 
reviewers of applicants for Federal contracts (including grants and 
cooperative agreements) contained in any of the following systems of 
records:
    (1) ``Fellowships and Other Awards,''
    (2) ``Principal Investigator/Proposal File and Associated Records,''
    (3) ``Reviewer/Proposal File and Associated Records,'' and
    (4) ``Reviewer/Fellowship and Other Awards File and Associated 
Records.''
    (b) OIG Files Compiled for the Purpose of a Criminal Investigation 
and for Related Purposes. Pursuant to 5 U.S.C. 552a(j)(2), the 
Foundation hereby exempts the system of records entitled ``Office of 
Inspector General Investigative Files,'' insofar as it consists of 
information compiled for the purpose of a criminal investigation or for 
other purposes within the scope of 5 U.S.C. 552a(j)(2), from the 
application of 5 U.S.C. 552a, except for subsections (b), (c)(1) and 
(2), (e)(4)(A) through (F), (e)(6), (7), (9), (10) and (11), and (i).
    (c) OIG and ACA Files Compiled for Other Law Enforcement Purposes. 
Pursuant to 5 U.S.C. 552a(k)(2), the Foundation hereby exempts the 
systems of records entitled ``Office of Inspector General Investigative 
Files'' and ``Antarctic Conservation Act Files'' insofar as they consist 
of information compiled for law enforcement purposes other than material 
within the scope of 5 U.S.C. 552a(j)(2), from the application of 5 
U.S.C. 552a(c)(3), (d), (e)(1), (e)(4)(G), (H), and (I), and (f).
    (d) Investigations of Scientific Misconduct. Pursuant to 5 U.S.C. 
552a(k)(2) and (k)(5), the Foundation hereby exempts from the 
application of 5 U.S.C. 552a(c)(3) and (d) any materials which would 
reveal the identity of confidential sources of information contained in 
the following system of records: ``Debarment/Scientific Misconduct 
Files.''
    (e) Personnel Security Clearances. Pursuant to 5 U.S.C. 552a(k)(5), 
the Foundation hereby exempts from the application of 5 U.S.C. 
552a(c)(3) and (d) any

[[Page 137]]

materials which would reveal the identity of confidential sources of 
information contained in the following system of records: ``Personnel 
Security.''
    (f) Applicants for Employment. Records on applicants for employment 
at NSF are covered by the Office of Personnel Management (OPM) 
government-wide system notice ``Recruiting, Examining and Placement 
Records.'' These records are exempted as claimed in 5 CFR 297.501(b)(7).
    (g) Statistical records. Pursuant to 5 U.S.C. 552a(k)(4), the 
Foundation hereby exempts the systems of records entitled ``Doctorate 
Records Files,'' ``Doctorate Work History Files,'' and ``National Survey 
of Recent College Graduates & Follow-up Files'' from the application of 
5 U.S.C. 552a(c)(3), (d), (e)(1), (e)(4)(G), (H), and (I), and (f).
    (h) Other records. The Foundation may also assert exemptions for 
records received from another agency that could properly be claimed by 
that agency in responding to a request.



Sec. 613.6  Other rights and services.

    Nothing in this subpart shall be construed to entitle any person, as 
of right, to any service or to the disclosure of any record to which 
such person is not entitled under the Privacy Act.



PART 614_GOVERNMENT IN THE SUNSHINE ACT REGULATIONS OF THE NATIONAL 
SCIENCE BOARD--Table of Contents




Sec.
614.1 General rule.
614.2 Grounds for closing meetings.
614.3 Materials relating to closed portions of meetings.
614.4 Opening of transcript or recording.
614.5 Public announcement.
614.6 Meeting changes.
614.7 Record vote.
614.8 Application to Board Executive Committee.

    Authority: Government in the Sunshine Act, sec. 552b of title 5, 
U.S.C.; 90 Stat. 1241.

    Source: 42 FR 14719, Mar. 16, 1977, unless otherwise noted.



Sec. 614.1  General rule.

    Except as otherwise provided in these regulations, every portion of 
every meeting of the National Science Board will be open to public 
observation.



Sec. 614.2  Grounds for closing meetings.

    (a) The National Science Board may by record vote close any portion 
of any meeting if it properly determines that an open meeting:
    (1) Is likely to disclose matters that (i) are specifically 
authorized under criteria established by Executive Order to be kept 
secret in the interests of national defense or foreign policy and (ii) 
are in fact properly classified pursuant to the Executive Order;
    (2) Is likely to relate solely to the internal personnel rules and 
practices of the National Science Foundation;
    (3) Is likely to disclose matters specifically exempted from 
disclosure by statute (other than 5 U.S.C. 552): Provided, That the 
statute (i) requires in such a manner as to leave no discretion on the 
issue that the matters be withheld from the public, or (ii) establishes 
particular criteria for withholding or refers to particular types of 
matters to be withheld;
    (4) Is likely to disclose trade secrets and commercial or financial 
information obtained from a person and privileged or confidential;
    (5) Is likely to involve accusing any person of a crime, or formally 
censuring any person;
    (6) Is likely to disclose personal information where the disclosure 
would constitute a clearly unwarranted invasion of personal privacy;
    (7) Is likely to disclose investigatory law-enforcement records, or 
information which, if written, would be contained in such records, but 
only to the extent provided in 5 U.S.C. 552b(c)(7);
    (8) Is likely to disclose information contained in or related to 
examination, operating, or condition reports prepared by, on behalf of, 
or for the use of an agency responsible for the regulation or 
supervision of financial institutions;
    (9) Is likely to disclose information, the premature disclosure of 
which would:
    (i) In the case of information received from an agency which 
regulates currencies, securities, commodities, or financial 
institutions, be likely to (A) lead to significant financial speculation 
in currencies, securities, or commodities, or (B) significantly endanger

[[Page 138]]

the stability of any financial institution; or
    (ii) Be likely to significantly frustrate implementation of a 
proposed Foundation action, unless the Foundation has already disclosed 
to the public the content or nature of its proposed action or is 
required by law to make such disclosure on its own initiative before 
taking final action; or
    (10) Is likely to specifically concern the Foundation's 
participation in a civil action or proceeding, an action in a foreign 
court or international tribunal, or an arbitration.
    (b) Anyone who believes his interests may be directly affected by a 
portion of a meeting may request that the Board close it to the public 
for any reason referred to in paragraph (a) (5), (6), or (7) of this 
section. The request should be addressed to the Executive Officer, 
National Science Board, National Science Foundation, 4201 Wilson 
Boulevard, Arlington, VA 22230. It will be circulated to Members of the 
Board if received at least three full days before the meeting, and on 
motion of any Member the Board will determine by record vote whether to 
close the affected portion of the meeting.

[42 FR 14719, Mar. 16, 1977, as amended at 59 FR 37438, July 22, 1994]



Sec. 614.3  Materials relating to closed portions of meetings.

    If a portion or portions of any meeting of the National Science 
Board are closed to the public under Sec. 614.2:
    (a) The General Counsel of the National Science Foundation shall 
publicly certify that, in his opinion, that portion or portions may 
properly be closed to the public. The certificate shall state the 
exemptions under 5 U.S.C. 552b(c) that make the closings proper.
    (b) The presiding officer of the meeting (usually the Chairman of 
the Board) shall furnish a statement setting forth the time and place of 
the meeting and the persons present.
    (c) The Board shall make a complete transcript or electronic 
recording adequate to record fully the proceedings of each portion of 
the meeting that is closed to the public.
    (d) The National Science Board Office shall maintain the General 
Counsel's certificate, the presiding officer's statement, and the 
transcript or recording of the meeting for at least two years after the 
meeting and at least one year after the Board completes consideration of 
any proposal, report, resolution, or similar matter discussed in any 
closed portion of the meeting.



Sec. 614.4  Opening of transcript or recording.

    (a) Except as otherwise provided in this section, the transcript or 
electronic recording of every portion of every meeting closed to the 
public will promptly be made available on request to any member of the 
public in an easily accessible place.
    (b) Informal requests to inspect or copy the transcript or 
electronic recording of a closed session may be made to the staff of the 
National Science Board and will be handled informally and expeditiously. 
Written requests to inspect or copy such a transcript or recording that 
cite the Freedom of Information Act or the Sunshine Act will be treated 
as formal requests made under the Freedom of Information Act. They will 
be handled under the Foundation's Freedom of Information procedures 
described in 45 CFR part 612. The exemptions of these Sunshine Act 
regulations, 45 CFR 614.2, will govern, however, in determining what 
portions of the transcript or recording may be withheld.
    (c) A request to inspect or copy a transcript or electronic 
recording should specify the date of the meeting and the agenda item or 
items to which the request pertains. It should contain a promise to pay 
the costs of any duplication requested.
    (d) No search or transcription fees will be charged. Duplication 
fees may be charged as provided in 45 CFR 612.6.

[42 FR 55619, Oct. 18, 1977]



Sec. 614.5  Public announcement.

    (a) Except as provided in paragraphs (c) and (d) of this section, 
the National Science Board will make a public announcement of each Board 
meeting at least one week before the meeting takes place. The 
announcement will cover:
    (1) The time, place, and subject matter of the meeting;

[[Page 139]]

    (2) What portions of the meeting, if any, are to be closed to the 
public; and
    (3) The name and telephone number of the official designated to 
respond to requests for information on the meeting.
    (b) Each such announcement will be promptly posted on public notice 
boards at the National Science Foundation and made available to journals 
of general scientific interest. Immediately following the issuance of 
such an announcement, it will be submitted for publication in the 
Federal Register.
    (c) The announcement may be made less than a week before the meeting 
it announces or after the meeting only if (1) the Board by record vote 
determines that agency business requires the meeting to be called on 
such short or after-the-fact notice and (2) an announcement is made at 
the earliest practicable time.
    (d) All or any portion of the announcement of any meeting may be 
omitted if the Board by record vote determines that the announcement 
would disclose information which should be withheld under the same 
standards as apply for closing meetings under Sec. 614.2.



Sec. 614.6  Meeting changes.

    (a) The time or place of a meeting of the National Science Board 
that has been publicly announced as provided in Sec. 614.5 may 
subsequently be changed, but any such change will be publicly announced 
at the earliest practicable time.
    (b) The subject matter of any portion of any meeting of the Board 
that has been publicly announced as provided in Sec. 614.5 or the 
determination whether any portion of any meeting so publicly announced 
will be open or closed may subsequently be changed, but only when:
    (1) The Board determines by record vote that agency business so 
requires and that no earlier announcement of the change was possible; 
and
    (2) The Board publicly announces the change and the vote of each 
Member on the change at the earliest practicable time.



Sec. 614.7  Record vote.

    (a) For purposes of this part a vote of the National Science Board 
is a ``record vote'' if:
    (1) It carries by a majority of all those holding office as Board 
Members at the time of the vote;
    (2) No proxies are counted toward the necessary majority; and
    (3) The individual vote of each Member present and voting is 
recorded.
    (b) Within one day of any such record vote or any attempted record 
vote that fails to achieve the necessary majority under paragraph (a)(1) 
of this section, the Board Office will make publicly available a written 
record showing the vote of each Member on the question.
    (c) Within one day of any record vote under which any portion or 
portions of a Board meeting are to be closed to the public, the Board 
Office will make available a full written explanation of the Board's 
action and a list of all persons expected to attend the meeting, showing 
their affiliations.



Sec. 614.8  Application to Board Executive Committee.

    All the provisions of this part applicable to the National Science 
Board shall apply equally to the Executive Committee of the Board 
whenever the Executive Committee is meeting pursuant to its authority to 
act on behalf of the Board.



PART 615_TESTIMONY AND PRODUCTION OF RECORDS--Table of Contents




Sec.
615.1 Purpose.
615.2 Applicability.
615.3 Definitions.
615.4 Legal proceedings before NSF or in which the United States is a 
          party.
615.5 Legal proceedings between private litigants: Testimony and 
          production of documents.
615.6 Legal proceedings between private litigants: Procedure when demand 
          is made.
615.7 Legal proceedings between private litigants: Office of Inspector 
          General employees.

    Authority: 42 U.S.C. 1870(a).

    Source: 59 FR 44056, Aug. 26, 1994, unless otherwise noted.

[[Page 140]]



Sec. 615.1  Purpose.

    (a) This part sets forth policies and procedures to be followed 
when, in connection with a legal proceeding, an NSF employee is issued a 
demand to provide testimony or produce official records and information.
    (b) The provisions of this part are intended to promote economy and 
efficiency in NSF's programs and operations; minimize the possibility of 
involving NSF in controversial issues not related to its functions; 
maintain the impartiality of NSF among private litigants; and protect 
sensitive, confidential information and the deliberative process.
    (c) This part is not intended to and does not waive the sovereign 
immunity of the United States.
    (d) This part is intended only to provide guidance for the internal 
operations of NSF, 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 United States.



Sec. 615.2  Applicability.

    This part applies to demands and requests for factual or expert 
testimony or for official records or information in legal proceedings, 
whether or not the United States is a party, except that it does not 
apply to:
    (a) Demands upon or requests for an NSF employee to testify as to 
facts or events that are in no way related to his or her official duties 
or to the functions of NSF,
    (b) Demands upon or requests for a former NSF employee to testify as 
to matters in which the former employee was not directly or materially 
involved while at NSF,
    (c) Demands upon or requests for an NSF reviewer to testify as to 
matters not directly related to that individual's employment by or 
service to NSF, and
    (d) Congressional demands and requests for testimony or records.



Sec. 615.3  Definitions.

    (a) Demand--A subpoena, order, or other demand of a court or other 
competent authority for the production of records or for the appearance 
and testimony of an NSF employee, issued in a legal proceeding between 
private litigants.
    (b) Foundation or NSF means the National Science Foundation.
    (c) General Counsel means the General Counsel of the Foundation, or 
any person to whom the General Counsel has delegated authority under 
this part.
    (d) Legal proceeding means any proceeding before a court of law, 
administrative board or commission, hearing officer, or other body 
conducting a legal or administrative proceeding.
    (e) Official records and information means all documents and 
material which are records of the Foundation under the Freedom of 
Information Act, 5 U.S.C. 552; all other records contained in NSF's 
files; and all other information or material acquired by an NSF employee 
in the performance of his or her official duties or because of his or 
her official status.
    (f) NSF employee or employee means any present or former officer or 
employee of NSF; any other individual hired through contractual 
agreement by or on behalf of NSF, or who has performed or is performing 
services under such an agreement for NSF; and any individual who served 
or is serving on any advisory committee or in any advisory capacity, 
whether formal or informal.
    (g) Request means any informal request, by whatever method, for the 
production of official records and information or for testimony which 
has not been ordered by a court or other competent authority.
    (h) Testimony means any written or oral statement by a witness, 
including depositions, answers to interrogatories, affidavits, 
declarations, and statements at a hearing or trial.



Sec. 615.4  Legal proceedings before NSF or in which the United States
is a party.

    In any legal proceeding before NSF or to which the United States is 
a party, the General Counsel shall arrange for a current employee to 
testify as a witness for the United States whenever the attorney 
representing the United States requests it. The employee may testify for 
the United States both as to facts within the employee's personal 
knowledge and as an

[[Page 141]]

expert or opinion witness. For any party other than the United States, 
the employee may testify only as to facts within his or her personal 
knowledge.



Sec. 615.5  Legal proceedings between private litigants: Testimony and 
production of documents.

    (a) No employee may produce official records and information or 
provide any testimony in response to a demand or request unless 
authorized to do so by the General Counsel in accordance with this part.
    (b) The General Counsel, in his or her discretion, may grant an 
employee permission to testify or produce official records and 
information in response to a demand or request. In making this decision, 
the General Counsel shall consider whether:
    (1) The purposes of this part are met;
    (2) Allowing such testimony or production of records would be 
necessary to prevent a miscarriage of justice;
    (3) NSF has an interest in the decision that may be rendered in the 
legal proceeding; and
    (4) Allowing such testimony or production of records would be in the 
best interest of NSF or the United States.
    (c) If authorized to testify pursuant to this part, an employee may 
testify as to facts within his or her personal knowledge, but, unless 
specifically authorized to do so by the General Counsel, shall not:
    (1) Disclose confidential or privileged information;
    (2) Testify as to facts when the General Counsel determines such 
testimony would not be in the best interest of the Foundation or the 
United States; or
    (3) Testify as an expert or opinion witness with regard to any 
matter arising out of the employee's official duties or the functions of 
the Foundation.



Sec. 615.6  Legal proceedings between private litigants: Procedure when
demand is made.

    (a) Whenever an employee is served with a demand to testify in his 
or her official capacity, or to produce official records and 
information, the employee shall immediately notify the General Counsel.
    (b) The General Counsel shall review the demand and, in accordance 
with the provisions of Sec. 615.5, determine whether, or on what 
conditions, to authorize the employee to testify and/or produce official 
records and information.
    (c) If a response to a demand is required before the General Counsel 
has made the determination referred to in Sec. 615.6(b), the General 
Counsel shall provide the court or other competent authority with a copy 
of this part, inform the court or other competent authority that the 
demand is being reviewed, and seek a stay of the demand pending a final 
determination. If the court fails to stay the demand, the employee must 
appear at the stated time and place, produce a copy of this part, and 
respectfully decline to comply with the demand. ``United States ex rel 
Touhy v. Ragen,'' 340 US 462 (1951).
    (d) If a court or other competent authority orders that a demand be 
complied with notwithstanding a final decision by the General Counsel to 
the contrary, or at any other stage in the process, the General Counsel 
may take steps to arrange for legal representation for the employee, and 
shall advise the employee on how to respond to the demand.



Sec. 615.7  Legal proceedings between private litigants: Office of 
Inspector General employees.

    Notwithstanding the requirements set forth in Sec. Sec. 615.1 
through 615.6, when an employee of the Office of Inspector General is 
issued a demand or receives a request to provide testimony or produce 
official records and information, the Inspector General or his or her 
designee shall be responsible for performing the functions assigned to 
the General Counsel with respect to such demand or request pursuant to 
the provisions of this part.

[73 FR 21549, Apr. 22, 2008]



PART 617_NONDISCRIMINATION ON THE BASIS OF AGE IN PROGRAMS OR ACTIVITIES 
RECEIVING FEDERAL FINANCIAL ASSISTANCE FROM NSF--Table of Contents




Sec.
617.1 Purpose.
617.2 Definitions.
617.3 Standards.

[[Page 142]]

617.4 General duties of recipients.
617.5 Self-evaluation.
617.6 Information requirements.
617.7 Compliance reviews.
617.8 Pre-award reviews.
617.9 Complaints.
617.10 Mediation.
617.11 Investigation.
617.12 Compliance procedure.
617.13 Hearings, decisions, post-termination proceedings.
617.14 Remedial action by recipients.
617.15 Exhaustion of administrative remedies.
617.16 Prohibition against intimidation or retaliation.

Appendix I to Part 617--List of Age Distinctions Provided in Federal 
          Statutes or Regulations Affecting Federal Financial Assistance 
          Administered by NSF

    Authority: Age Discrimination Act of 1975, as amended, 42 U.S.C. 
6101, et seq.; 45 CFR part 90.

    Source: 49 FR 49628, Dec. 21, 1984, unless otherwise noted.



Sec. 617.1  Purpose.

    This part prescribes NSF's policies and procedures under the Age 
Discrimination Act of 1975 and the Department of Health and Human 
Services government-wide age discrimination regulations at 45 CFR part 
90. The Act and part 90 prohibit discrimination on the basis of age in 
programs or activities receiving Federal financial assistance. The Act 
and part 90 permit federally assisted programs or activities and 
recipients of Federal funds to continue to use age distinctions and 
factors other than age which meet the requirements of the Act and part 
90.

[49 FR 49628, Dec. 21, 1984, as amended at 68 FR 51383, Aug. 26, 2003]



Sec. 617.2  Definitions.

    The following terms used in this part are defined in part 90:

Act
Action
Age
Age distinction
Age-related term
Agency
Federal financial assistance
Program or activity
Recipient (including subrecipients)
United States

[49 FR 49628, Dec. 21, 1984, as amended at 68 FR 51383, Aug. 26, 2003]



Sec. 617.3  Standards.

    Standards for determining whether an age distinction or age-related 
term is prohibited are set out in part 90 of this title 45. See also 
appendix I to this part.



Sec. 617.4  General duties of recipients.

    Each recipient of Federal financial assistance from NSF shall comply 
with the Act, part 90, and this part. Each NSF award of Federal 
financial assistance shall contain the following provision:

                 Compliance With Age Discrimination Act

    The recipient agrees to comply with the Age Discrimination Act of 
1975 as implemented by the Department of Health and Human Services 
regulations at 45 CFR part 90 and the regulations of the Foundation at 
45 CFR part 617. In the event the recipient passes on NSF financial 
assistance to sub-recipients, this provision shall apply to the 
subrecipients, and the instrument under which the Federal financial 
assistance is passed to the subrecipient shall contain a provision 
identical to this provision.



Sec. 617.5  Self-evaluation.

    (a) Each recipient (including subrecipients) employing the 
equivalent of fifteen or more full-time employees shall complete a 
written self-evaluation of its compliance under this part within 18 
months of the effective date of these regulations, unless a similar 
evaluation has been completed for another agency.
    (b) In its self-evaluation, each recipient shall identify all age 
distinctions it uses and justify each age distinction it imposes on the 
program or activity receiving Federal financial assistance from NSF.
    (c) Each recipient shall take corrective action whenever a self-
evaluation indicates a violation of the Act.
    (d) Each recipient shall make the self-evaluation available on 
request to NSF and the public for three years after its completion.



Sec. 617.6  Information requirements.

    Each recipient shall:
    (a) Make available upon request to NSF information necessary to 
determine whether the recipient is complying with the Act.

[[Page 143]]

    (b) Permit reasonable access by NSF or its designee to the books, 
records, accounts, and other recipient facilities and sources of 
information to the extent necessary to determine whether a recipient is 
complying with the Act.



Sec. 617.7  Compliance reviews.

    (a) NSF may conduct compliance reviews of recipients that will 
permit it to investigate and correct violations of the Act. NSF may 
conduct these reviews even in the absence of a complaint against a 
recipient. The review may be as comprehensive as necessary to determine 
whether a violation of the Act has occurred.
    (b) If a compliance review indicates a violation of the Act, NSF 
will attempt to achieve voluntary compliance with the Act. If voluntary 
compliance cannot be achieved, NSF may arrange for enforcement as 
described in Sec. 617.12.



Sec. 617.8  Pre-award reviews.

    NSF reserves the right to conduct pre-award reviews of applicants 
for Federal financial assistance from NSF in cases where the NSF has 
substantial reason to believe that a potential recipient who is not then 
a recipient of other NSF financial assistance under the same program or 
activity may engage in practices under that program or activity that 
would violate the Act. However, the results of any such review shall not 
constitute a basis for NSF refusal to grant financial assistance to the 
applicant under that program or activity unless the procedural 
requirements of the Act (42 U.S.C. 6104) and Sec. Sec. 617.12 and 
617.13 of this part have been followed.

[49 FR 49628, Dec. 21, 1984, as amended at 68 FR 51383, Aug. 26, 2003]



Sec. 617.9  Complaints.

    (a) Any person, individually or as a member of a class or on behalf 
of others, may file a complaint with NSF, alleging discrimination 
prohibited by the Act. A complainant shall file a complaint within 180 
days from the date the complainant first had knowledge of the alleged 
act of discrimination. However, for good cause shown, NSF may extend 
this time limit.
    (b) NSF will accept as a sufficient complaint, any written statement 
which identifies the parties involved and the date the complainant first 
had knowledge of the alleged violation, describes generally the action 
or practice complained of, and is signed by the complainant. If an 
insufficient complaint is amended within 10 working days after notice by 
NSF to the complainant of the deficiency, NSF will consider the amended 
complaint as filed on the date the original insufficient complaint was 
filed for purposes of determining if it was timely filed. However, all 
other time requirements established by the Act and this part shall run 
from the date the amended complaint was filed.
    (c) On receipt of any complaint NSF shall promptly send written 
acknowledgement to the complainant, and a copy of the complaint to the 
recipient. In addition, NSF shall send either copies of this part or 
other pertinent information describing the rights and obligations of the 
parties.
    (d) NSF will return to the complainant any complaint outside the 
coverage of this part, and will state why it is outside the coverage of 
this part.



Sec. 617.10  Mediation.

    (a) NSF will refer to the Federal Mediation and Conciliation Service 
all complaints that fall within the jurisdiction of this part and 
contain all information necessary for further processing.
    (b) Both the complainant and the recipient shall participate in the 
mediation process to the extent necessary to reach an agreement or for a 
mediator to make an informed judgement that an agreement is not 
possible. NSF will take no further administrative action on any 
complaint if the complainant refuses to participate in the mediation 
process.
    (c) If the complainant and the recipient reach an agreement, the 
mediator shall prepare a written statement of the agreement and have the 
complainant and recipient sign it. The mediator shall send a copy of the 
agreement to NSF. NSF shall take no further action on the complaint 
unless the complainant or the recipient fails to comply with the 
agreement, in which case the other party may request that the complaint 
be reopened.

[[Page 144]]

    (d) The mediator shall protect the confidentiality of all 
information obtained in the course of the mediation process. No mediator 
shall testify in any adjudicative proceeding, produce any document, or 
otherwise disclose any information obtained in the course of the 
mediation process without prior approval of the head of the Federal 
Mediation and Conciliation Service.
    (e) NSF will use the mediation process for a maximum of 60 days 
after receiving a complaint. Mediation ends if:
    (1) 60 days elapse from the time NSF receives a sufficient 
complaint: or
    (2) Before the end of the 60 day period, an agreement is reached; or
    (3) Before the end of the 60 day period, the mediator determines 
that an agreement cannot be reached.
    (f) The mediator shall return unresolved complaints to NSF.



Sec. 617.11  Investigation.

    (a) Informal investigation. (1) NSF will investigate complaints that 
are unresolved after mediation or are reopened because of violation of a 
mediation agreement.
    (2) As part of the initial investigation, NSF will use informal fact 
finding methods, including joint or separate discussions with the 
complainant and recipient, to establish the facts, and, if possible, 
will settle the complaint on terms that are agreeable to the parties. 
NSF may seek the assistance of any involved State agency.
    (3) NSF will put any agreement in writing and have it signed by the 
parties and an authorized official of NSF.
    (4) A settlement shall not affect other enforcement efforts of NSF, 
including compliance reviews, or individual complaints that involve the 
recipient.
    (5) A settlement is not a finding of discrimination against the 
recipient.
    (b) Formal investigation. If NSF cannot resolve the complaint 
through informal investigation, it will begin to develop formal findings 
through further investigation of the complaint. If the investigation 
indicates a violation of the Act, NSF will try to obtain voluntary 
compliance. If NSF cannot obtain voluntary compliance, it will begin 
enforcement as described in Sec. 617.12. If the investigation does not 
indicate a violation of the Act, NSF will issue a written determination 
in favor of the recipient.

[49 FR 49628, Dec. 21, 1984, as amended at 68 FR 51383, Aug. 26, 2003]



Sec. 617.12  Compliance procedure.

    (a) NSF may enforce this part by either termination of a recipient's 
financial asistance from NSF for the program or activity involved where 
the recipient has violated the Act or this part or refusal to grant 
further financial assistance under the program or activity involved 
where the recipient has violated the Act or this part. The determination 
of the recipient's violation may be made only after a recipient has had 
an opportunity for a hearing on the record before an administrative law 
judge. Therefore, cases settled in the mediation process or before a 
hearing will not involve termination of a recipient's Federal financial 
assistance from NSF.
    (b) NSF may also enforce this part by any other means authorized by 
law, including but not limited to:
    (1) Referral to the Department of Justice for proceedings to enforce 
any rights of the United States or obligations by this part.
    (2) Use of any requirement of or referral to any Federal, State, or 
local government agency that will have the effect of correcting a 
violation of the Act or this part.
    (c) NSF will limit any termination or refusal to grant further 
financial assistance to the particular recipient and the particular 
program or activity found to be in violation of the Act. NSF will not 
base any part of a termination or refusal on a finding with respect to 
any program or activity of the recipient which does not receive Federal 
financial assistance for NSF.
    (d) NSF will not begin any hearing under paragraph (a) until the 
Director has advised the recipient of its failure to comply with this 
part and has determined that voluntary compliance cannot be obtained.
    (e) NSF will not terminate or refuse to grant financial assistance 
until thirty days have elapsed after the Director has sent a written 
report of the circumstances and grounds of the action

[[Page 145]]

to the committees of the Congress having legislative jurisdiction over 
the program or activity involved. The Director will file a report 
whenever any action is taken under paragraph (f) of this section.
    (f) Alternate Funds Disbursal Procedures. (1) When NSF withholds 
funds from a recipient under these regulations, the Secretary may 
disburse the withheld funds directly to an alternate recipient: Any 
public or non-profit private organization or agency, or State or 
political subdivision of the State.
    (2) The Director will require any alternate recipient to 
demonstrate:
    (i) The ability to comply with these regulations; and
    (ii) The ability to achieve the goals of the Federal statute 
authorizing the Federal financial assistance.

[49 FR 49628, Dec. 21, 1984, as amended at 68 FR 51383, Aug. 26, 2003]



Sec. 617.13  Hearings, decisions, post-termination proceedings.

    Procedures prescribed in 45 CFR 611.9 and 611.10 for NSF enforcement 
of Title VI of the Civil Rights Act of 1964 shall apply also for NSF 
enforcement of this part. At the conclusion of any action taken under 
Sec. 617.12, NSF, shall remind both parties of the right to judicial 
review established by 42 U.S.C. 6105.



Sec. 617.14  Remedial action by recipients.

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



Sec. 617.15  Exhaustion of administrative remedies.

    (a) A complainant may file a civil action after exhausting 
administrative remedies under the Act. Administrative remedies are 
exhausted if:
    (1) 180 days have elapsed since the complainant filed a sufficient 
complaint and NSF has made no finding with regard to the complaint; or
    (2) NSF issues any finding in favor of the recipient.
    (b) If NSF fails to make a finding within 180 days or issues a 
finding in favor of the recipient, NSF will:
    (1) Promptly advise the complainant of this fact; and
    (2) Advise the complainant of his or her right to bring a civil 
action for injunctive relief under 42 U.S.C. 6104; and
    (3) Inform the complainant that under 42 U.S.C. 6104:
    (i) The complainant may bring a civil action only in a United States 
District court for the district in which the recipient is located or 
transacts business;
    (ii) A complainant prevailing in a civil action has the right to be 
awarded the costs of the action, including reasonable attorney's fees, 
but that the complainant must demand these costs in the complaint;
    (iii) Before commencing the action the complainant shall give 30 
days notice by registered mail to the Director, the Attorney General of 
the United States, and the recipient;
    (iv) The notice must state the alleged violation of the Act; the 
relief requested; the court in which the complainant is bringing the 
action; and whether or not attorney's fees are demanded in the event the 
complainant prevails; and
    (v) The complainant may not bring an action if the same alleged 
violation of the Act by the same recipient is the subject of a pending 
action in any court of the United States.



Sec. 617.16  Prohibition against intimidation or retaliation.

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



   Sec. Appendix I to Part 617--List of Age Distinctions Provided in 
 Federal Statutes or Regulations Affecting Federal Financial Assistance 
                           Administered by NSF

    I. Section 6 of Pub. L. 94-86, 42 U.S.C. 1881a:
    This statute authorizes the Foundation to establish the Alan T. 
Waterman Award to recognize and encourage the work of

[[Page 146]]

``younger'' scientists. Under NSF procedures awards have been limited to 
persons 35 years of age or under.



PART 618_NONDISCRIMINATION ON THE BASIS OF SEX IN EDUCATION PROGRAMS 
OR ACTIVITIES RECEIVING FEDERAL FINANCIAL ASSISTANCE--Table of Contents




                         Subpart A_Introduction

Sec.
618.100 Purpose and effective date.
618.105 Definitions.
618.110 Remedial and affirmative action and self-evaluation.
618.115 Assurance required.
618.120 Transfers of property.
618.125 Effect of other requirements.
618.130 Effect of employment opportunities.
618.135 Designation of responsible employee and adoption of grievance 
          procedures.
618.140 Dissemination of policy.

                           Subpart B_Coverage

618.200 Application.
618.205 Educational institutions and other entities controlled by 
          religious organizations.
618.210 Military and merchant marine educational institutions.
618.215 Membership practices of certain organizations.
618.220 Admissions.
618.225 Educational institutions eligible to submit transition plans.
618.230 Transition plans.
618.235 Statutory amendments.

     Subpart C_Discrimination on the Basis of Sex in Admission and 
                         Recruitment Prohibited

618.300 Admission.
618.305 Preference in admission.
618.310 Recruitment.

 Subpart D_Discrimination on the Basis of Sex in Education Programs or 
                          Activities Prohibited

618.400 Education programs or activities.
618.405 Housing.
618.410 Comparable facilities.
618.415 Access to course offerings.
618.420 Access to schools operated by LEAs.
618.425 Counseling and use of appraisal and counseling materials.
618.430 Financial assistance.
618.435 Employment assistance to students.
618.440 Health and insurance benefits and services.
618.445 Marital or parental status.
618.450 Athletics.
618.455 Textbooks and curricular material.

Subpart E_Discrimination on the Basis of Sex in Employment in Education 
                    Programs or Activities Prohibited

618.500 Employment.
618.505 Employment criteria.
618.510 Recruitment.
618.515 Compensation.
618.520 Job classification and structure.
618.525 Fringe benefits.
618.530 Marital or parental status.
618.535 Effect of state or local law or other requirements.
618.540 Advertising.
618.545 Pre-employment inquiries.
618.550 Sex as a bona fide occupational qualification.

                          Subpart F_Procedures

618.600 Notice of covered programs.
618.605 Enforcement procedures.

    Authority: 20 U.S.C. 1681, 1682, 1683, 1685, 1686, 1687, 1688.

    Source: 65 FR 52865, 52893, Aug. 30, 2000, unless otherwise noted.



                         Subpart A_Introduction



Sec. 618.100  Purpose and effective date.

    The purpose of these Title IX regulations is to effectuate Title IX 
of the Education Amendments of 1972, as amended (except sections 904 and 
906 of those Amendments) (20 U.S.C. 1681, 1682, 1683, 1685, 1686, 1687, 
1688), which is designed to eliminate (with certain exceptions) 
discrimination on the basis of sex in any education program or activity 
receiving Federal financial assistance, whether or not such program or 
activity is offered or sponsored by an educational institution as 
defined in these Title IX regulations. The effective date of these Title 
IX regulations shall be September 29, 2000.



Sec. 618.105  Definitions.

    As used in these Title IX regulations, the term:
    Administratively separate unit means a school, department, or 
college of an educational institution (other than a local educational 
agency) admission to which is independent of admission to any other 
component of such institution.
    Admission means selection for part-time, full-time, special, 
associate,

[[Page 147]]

transfer, exchange, or any other enrollment, membership, or 
matriculation in or at an education program or activity operated by a 
recipient.
    Applicant means one who submits an application, request, or plan 
required to be approved by an official of the Federal agency that awards 
Federal financial assistance, or by a recipient, as a condition to 
becoming a recipient.
    Designated agency official means General Counsel and head of the 
policy office, Division of Contracts, Policy, and Oversight.
    Educational institution means a local educational agency (LEA) as 
defined by 20 U.S.C. 8801(18), a preschool, a private elementary or 
secondary school, or an applicant or recipient that is an institution of 
graduate higher education, an institution of undergraduate higher 
education, an institution of professional education, or an institution 
of vocational education, as defined in this section.
    Federal financial assistance means any of the following, when 
authorized or extended under a law administered by the Federal agency 
that awards such assistance:
    (1) A grant or loan of Federal financial assistance, including funds 
made available for:
    (i) The acquisition, construction, renovation, restoration, or 
repair of a building or facility or any portion thereof; and
    (ii) Scholarships, loans, grants, wages, or other funds extended to 
any entity for payment to or on behalf of students admitted to that 
entity, or extended directly to such students for payment to that 
entity.
    (2) A grant of Federal real or personal property or any interest 
therein, including surplus property, and the proceeds of the sale or 
transfer of such property, if the Federal share of the fair market value 
of the property is not, upon such sale or transfer, properly accounted 
for to the Federal Government.
    (3) Provision of the services of Federal personnel.
    (4) Sale or lease of Federal property or any interest therein at 
nominal consideration, or at consideration reduced for the purpose of 
assisting the recipient or in recognition of public interest to be 
served thereby, or permission to use Federal property or any interest 
therein without consideration.
    (5) Any other contract, agreement, or arrangement that has as one of 
its purposes the provision of assistance to any education program or 
activity, except a contract of insurance or guaranty.
    Institution of graduate higher education means an institution that:
    (1) Offers academic study beyond the bachelor of arts or bachelor of 
science degree, whether or not leading to a certificate of any higher 
degree in the liberal arts and sciences;
    (2) Awards any degree in a professional field beyond the first 
professional degree (regardless of whether the first professional degree 
in such field is awarded by an institution of undergraduate higher 
education or professional education); or
    (3) Awards no degree and offers no further academic study, but 
operates ordinarily for the purpose of facilitating research by persons 
who have received the highest graduate degree in any field of study.
    Institution of professional education means an institution (except 
any institution of undergraduate higher education) that offers a program 
of academic study that leads to a first professional degree in a field 
for which there is a national specialized accrediting agency recognized 
by the Secretary of Education.
    Institution of undergraduate higher education means:
    (1) An institution offering at least two but less than four years of 
college-level study beyond the high school level, leading to a diploma 
or an associate degree, or wholly or principally creditable toward a 
baccalaureate degree; or
    (2) An institution offering academic study leading to a 
baccalaureate degree; or
    (3) An agency or body that certifies credentials or offers degrees, 
but that may or may not offer academic study.
    Institution of vocational education means a school or institution 
(except an institution of professional or graduate or undergraduate 
higher education) that has as its primary purpose preparation of 
students to pursue a

[[Page 148]]

technical, skilled, or semiskilled occupation or trade, or to pursue 
study in a technical field, whether or not the school or institution 
offers certificates, diplomas, or degrees and whether or not it offers 
full-time study.
    Recipient means any State or political subdivision thereof, or any 
instrumentality of a State or political subdivision thereof, any public 
or private agency, institution, or organization, or other entity, or any 
person, to whom Federal financial assistance is extended directly or 
through another recipient and that operates an education program or 
activity that receives such assistance, including any subunit, 
successor, assignee, or transferee thereof.
    Student means a person who has gained admission.
    Title IX means Title IX of the Education Amendments of 1972, Public 
Law 92-318, 86 Stat. 235, 373 (codified as amended at 20 U.S.C. 1681-
1688) (except sections 904 and 906 thereof), as amended by section 3 of 
Public Law 93-568, 88 Stat. 1855, by section 412 of the Education 
Amendments of 1976, Public Law 94-482, 90 Stat. 2234, and by Section 3 
of Public Law 100-259, 102 Stat. 28, 28-29 (20 U.S.C. 1681, 1682, 1683, 
1685, 1686, 1687, 1688).
    Title IX regulations means the provisions set forth at Sec. Sec. 
618.100 through 618.605.
    Transition plan means a plan subject to the approval of the 
Secretary of Education pursuant to section 901(a)(2) of the Education 
Amendments of 1972, 20 U.S.C. 1681(a)(2), under which an educational 
institution operates in making the transition from being an educational 
institution that admits only students of one sex to being one that 
admits students of both sexes without discrimination.



Sec. 618.110  Remedial and affirmative action and self-evaluation.

    (a) Remedial action. If the designated agency official finds that a 
recipient has discriminated against persons on the basis of sex in an 
education program or activity, such recipient shall take such remedial 
action as the designated agency official deems necessary to overcome the 
effects of such discrimination.
    (b) Affirmative action. In the absence of a finding of 
discrimination on the basis of sex in an education program or activity, 
a recipient may take affirmative action consistent with law to overcome 
the effects of conditions that resulted in limited participation therein 
by persons of a particular sex. Nothing in these Title IX regulations 
shall be interpreted to alter any affirmative action obligations that a 
recipient may have under Executive Order 11246, 3 CFR, 1964-1965 Comp., 
p. 339; as amended by Executive Order 11375, 3 CFR, 1966-1970 Comp., p. 
684; as amended by Executive Order 11478, 3 CFR, 1966-1970 Comp., p. 
803; as amended by Executive Order 12086, 3 CFR, 1978 Comp., p. 230; as 
amended by Executive Order 12107, 3 CFR, 1978 Comp., p. 264.
    (c) Self-evaluation. Each recipient education institution shall, 
within one year of September 29, 2000:
    (1) Evaluate, in terms of the requirements of these Title IX 
regulations, its current policies and practices and the effects thereof 
concerning admission of students, treatment of students, and employment 
of both academic and non-academic personnel working in connection with 
the recipient's education program or activity;
    (2) Modify any of these policies and practices that do not or may 
not meet the requirements of these Title IX regulations; and
    (3) Take appropriate remedial steps to eliminate the effects of any 
discrimination that resulted or may have resulted from adherence to 
these policies and practices.
    (d) Availability of self-evaluation and related materials. 
Recipients shall maintain on file for at least three years following 
completion of the evaluation required under paragraph (c) of this 
section, and shall provide to the designated agency official upon 
request, a description of any modifications made pursuant to paragraph 
(c)(2) of this section and of any remedial steps taken pursuant to 
paragraph (c)(3) of this section.



Sec. 618.115  Assurance required.

    (a) General. Either at the application stage or the award stage, 
Federal agencies must ensure that applications for Federal financial 
assistance or awards

[[Page 149]]

of Federal financial assistance contain, be accompanied by, or be 
covered by a specifically identified assurance from the applicant or 
recipient, satisfactory to the designated agency official, that each 
education program or activity operated by the applicant or recipient and 
to which these Title IX regulations apply will be operated in compliance 
with these Title IX regulations. An assurance of compliance with these 
Title IX regulations shall not be satisfactory to the designated agency 
official if the applicant or recipient to whom such assurance applies 
fails to commit itself to take whatever remedial action is necessary in 
accordance with Sec. 618.110(a) to eliminate existing discrimination on 
the basis of sex or to eliminate the effects of past discrimination 
whether occurring prior to or subsequent to the submission to the 
designated agency official of such assurance.
    (b) Duration of obligation. (1) In the case of Federal financial 
assistance extended to provide real property or structures thereon, such 
assurance shall obligate the recipient or, in the case of a subsequent 
transfer, the transferee, for the period during which the real property 
or structures are used to provide an education program or activity.
    (2) In the case of Federal financial assistance extended to provide 
personal property, such assurance shall obligate the recipient for the 
period during which it retains ownership or possession of the property.
    (3) In all other cases such assurance shall obligate the recipient 
for the period during which Federal financial assistance is extended.
    (c) Form. (1) The assurances required by paragraph (a) of this 
section, which may be included as part of a document that addresses 
other assurances or obligations, shall include that the applicant or 
recipient will comply with all applicable Federal statutes relating to 
nondiscrimination. These include but are not limited to: Title IX of the 
Education Amendments of 1972, as amended (20 U.S.C. 1681-1683, 1685-
1688).
    (2) The designated agency official will specify the extent to which 
such assurances will be required of the applicant's or recipient's 
subgrantees, contractors, subcontractors, transferees, or successors in 
interest.



Sec. 618.120  Transfers of property.

    If a recipient sells or otherwise transfers property financed in 
whole or in part with Federal financial assistance to a transferee that 
operates any education program or activity, and the Federal share of the 
fair market value of the property is not upon such sale or transfer 
properly accounted for to the Federal Government, both the transferor 
and the transferee shall be deemed to be recipients, subject to the 
provisions of Sec. Sec. 618.205 through 618.235(a).



Sec. 618.125  Effect of other requirements.

    (a) Effect of other Federal provisions. The obligations imposed by 
these Title IX regulations are independent of, and do not alter, 
obligations not to discriminate on the basis of sex imposed by Executive 
Order 11246, 3 CFR, 1964-1965 Comp., p. 339; as amended by Executive 
Order 11375, 3 CFR, 1966-1970 Comp., p. 684; as amended by Executive 
Order 11478, 3 CFR, 1966-1970 Comp., p. 803; as amended by Executive 
Order 12087, 3 CFR, 1978 Comp., p. 230; as amended by Executive Order 
12107, 3 CFR, 1978 Comp., p. 264; sections 704 and 855 of the Public 
Health Service Act (42 U.S.C. 295m, 298b-2); Title VII of the Civil 
Rights Act of 1964 (42 U.S.C. 2000e et seq.); the Equal Pay Act of 1963 
(29 U.S.C. 206); and any other Act of Congress or Federal regulation.
    (b) Effect of State or local law or other requirements. The 
obligation to comply with these Title IX regulations is not obviated or 
alleviated by any State or local law or other requirement that would 
render any applicant or student ineligible, or limit the eligibility of 
any applicant or student, on the basis of sex, to practice any 
occupation or profession.
    (c) Effect of rules or regulations of private organizations. The 
obligation to comply with these Title IX regulations is not obviated or 
alleviated by any rule or regulation of any organization, club, athletic 
or other league, or association that would render any applicant or 
student ineligible to participate or limit the eligibility or 
participation of any applicant or student, on

[[Page 150]]

the basis of sex, in any education program or activity operated by a 
recipient and that receives Federal financial assistance.



Sec. 618.130  Effect of employment opportunities.

    The obligation to comply with these Title IX regulations is not 
obviated or alleviated because employment opportunities in any 
occupation or profession are or may be more limited for members of one 
sex than for members of the other sex.



Sec. 618.135  Designation of responsible employee and adoption of 
grievance procedures.

    (a) Designation of responsible employee. Each recipient shall 
designate at least one employee to coordinate its efforts to comply with 
and carry out its responsibilities under these Title IX regulations, 
including any investigation of any complaint communicated to such 
recipient alleging its noncompliance with these Title IX regulations or 
alleging any actions that would be prohibited by these Title IX 
regulations. The recipient shall notify all its students and employees 
of the name, office address, and telephone number of the employee or 
employees appointed pursuant to this paragraph.
    (b) Complaint procedure of recipient. A recipient shall adopt and 
publish grievance procedures providing for prompt and equitable 
resolution of student and employee complaints alleging any action that 
would be prohibited by these Title IX regulations.



Sec. 618.140  Dissemination of policy.

    (a) Notification of policy. (1) Each recipient shall implement 
specific and continuing steps to notify applicants for admission and 
employment, students and parents of elementary and secondary school 
students, employees, sources of referral of applicants for admission and 
employment, and all unions or professional organizations holding 
collective bargaining or professional agreements with the recipient, 
that it does not discriminate on the basis of sex in the educational 
programs or activities that it operates, and that it is required by 
Title IX and these Title IX regulations not to discriminate in such a 
manner. Such notification shall contain such information, and be made in 
such manner, as the designated agency official finds necessary to 
apprise such persons of the protections against discrimination assured 
them by Title IX and these Title IX regulations, but shall state at 
least that the requirement not to discriminate in education programs or 
activities extends to employment therein, and to admission thereto 
unless Sec. Sec. 618.300 through 618.310 do not apply to the recipient, 
and that inquiries concerning the application of Title IX and these 
Title IX regulations to such recipient may be referred to the employee 
designated pursuant to Sec. 618.135, or to the designated agency 
official.
    (2) Each recipient shall make the initial notification required by 
paragraph (a)(1) of this section within 90 days of September 29, 2000 or 
of the date these Title IX regulations first apply to such recipient, 
whichever comes later, which notification shall include publication in:
    (i) Newspapers and magazines operated by such recipient or by 
student, alumnae, or alumni groups for or in connection with such 
recipient; and
    (ii) Memoranda or other written communications distributed to every 
student and employee of such recipient.
    (b) Publications. (1) Each recipient shall prominently include a 
statement of the policy described in paragraph (a) of this section in 
each announcement, bulletin, catalog, or application form that it makes 
available to any person of a type, described in paragraph (a) of this 
section, or which is otherwise used in connection with the recruitment 
of students or employees.
    (2) A recipient shall not use or distribute a publication of the 
type described in paragraph (b)(1) of this section that suggests, by 
text or illustration, that such recipient treats applicants, students, 
or employees differently on the basis of sex except as such treatment is 
permitted by these Title IX regulations.
    (c) Distribution. Each recipient shall distribute without 
discrimination on the basis of sex each publication described in 
paragraph (b)(1) of this section, and shall apprise each of its 
admission and employment recruitment

[[Page 151]]

representatives of the policy of nondiscrimination described in 
paragraph (a) of this section, and shall require such representatives to 
adhere to such policy.



                           Subpart B_Coverage



Sec. 618.200  Application.

    Except as provided in Sec. Sec. 618.205 through 618.235(a), these 
Title IX regulations apply to every recipient and to each education 
program or activity operated by such recipient that receives Federal 
financial assistance.



Sec. 618.205  Educational institutions and other entities controlled 
by religious organizations.

    (a) Exemption. These Title IX regulations do not apply to any 
operation of an educational institution or other entity that is 
controlled by a religious organization to the extent that application of 
these Title IX regulations would not be consistent with the religious 
tenets of such organization.
    (b) Exemption claims. An educational institution or other entity 
that wishes to claim the exemption set forth in paragraph (a) of this 
section shall do so by submitting in writing to the designated agency 
official a statement by the highest-ranking official of the institution, 
identifying the provisions of these Title IX regulations that conflict 
with a specific tenet of the religious organization.



Sec. 618.210  Military and merchant marine educational institutions.

    These Title IX regulations do not apply to an educational 
institution whose primary purpose is the training of individuals for a 
military service of the United States or for the merchant marine.



Sec. 618.215  Membership practices of certain organizations.

    (a) Social fraternities and sororities. These Title IX regulations 
do not apply to the membership practices of social fraternities and 
sororities that are exempt from taxation under section 501(a) of the 
Internal Revenue Code of 1954, 26 U.S.C. 501(a), the active membership 
of which consists primarily of students in attendance at institutions of 
higher education.
    (b) YMCA, YWCA, Girl Scouts, Boy Scouts, and Camp Fire Girls. These 
Title IX regulations do not apply to the membership practices of the 
Young Men's Christian Association (YMCA), the Young Women's Christian 
Association (YWCA), the Girl Scouts, the Boy Scouts, and Camp Fire 
Girls.
    (c) Voluntary youth service organizations. These Title IX 
regulations do not apply to the membership practices of a voluntary 
youth service organization that is exempt from taxation under section 
501(a) of the Internal Revenue Code of 1954, 26 U.S.C. 501(a), and the 
membership of which has been traditionally limited to members of one sex 
and principally to persons of less than nineteen years of age.



Sec. 618.220  Admissions.

    (a) Admissions to educational institutions prior to June 24, 1973, 
are not covered by these Title IX regulations.
    (b) Administratively separate units. For the purposes only of this 
section, Sec. Sec. 618.225 and 618.230, and Sec. Sec. 618.300 through 
618.310, each administratively separate unit shall be deemed to be an 
educational institution.
    (c) Application of Sec. Sec. 618.300 through .310. Except as 
provided in paragraphs (d) and (e) of this section, Sec. Sec. 618.300 
through 618.310 apply to each recipient. A recipient to which Sec. Sec. 
618.300 through 618.310 apply shall not discriminate on the basis of sex 
in admission or recruitment in violation of Sec. Sec. 618.300 through 
618.310.
    (d) Educational institutions. Except as provided in paragraph (e) of 
this section as to recipients that are educational institutions, 
Sec. Sec. 618.300 through 618.310 apply only to institutions of 
vocational education, professional education, graduate higher education, 
and public institutions of undergraduate higher education.
    (e) Public institutions of undergraduate higher education. 
Sec. Sec. 618.300 through 618.310 do not apply to any public 
institution of undergraduate higher education that traditionally and 
continually from its establishment has had a policy of admitting 
students of only one sex.

[[Page 152]]



Sec. 618.225  Educational institutions eligible to submit transition
plans.

    (a) Application. This section applies to each educational 
institution to which Sec. Sec. 618.300 through 618.310 apply that:
    (1) Admitted students of only one sex as regular students as of June 
23, 1972; or
    (2) Admitted students of only one sex as regular students as of June 
23, 1965, but thereafter admitted, as regular students, students of the 
sex not admitted prior to June 23, 1965.
    (b) Provision for transition plans. An educational institution to 
which this section applies shall not discriminate on the basis of sex in 
admission or recruitment in violation of Sec. Sec. 618.300 through 
618.310.



Sec. 618.230  Transition plans.

    (a) Submission of plans. An institution to which Sec. 618.225 
applies and that is composed of more than one administratively separate 
unit may submit either a single transition plan applicable to all such 
units, or a separate transition plan applicable to each such unit.
    (b) Content of plans. In order to be approved by the Secretary of 
Education, a transition plan shall:
    (1) State the name, address, and Federal Interagency Committee on 
Education Code of the educational institution submitting such plan, the 
administratively separate units to which the plan is applicable, and the 
name, address, and telephone number of the person to whom questions 
concerning the plan may be addressed. The person who submits the plan 
shall be the chief administrator or president of the institution, or 
another individual legally authorized to bind the institution to all 
actions set forth in the plan.
    (2) State whether the educational institution or administratively 
separate unit admits students of both sexes as regular students and, if 
so, when it began to do so.
    (3) Identify and describe with respect to the educational 
institution or administratively separate unit any obstacles to admitting 
students without discrimination on the basis of sex.
    (4) Describe in detail the steps necessary to eliminate as soon as 
practicable each obstacle so identified and indicate the schedule for 
taking these steps and the individual directly responsible for their 
implementation.
    (5) Include estimates of the number of students, by sex, expected to 
apply for, be admitted to, and enter each class during the period 
covered by the plan.
    (c) Nondiscrimination. No policy or practice of a recipient to which 
Sec. 618.225 applies shall result in treatment of applicants to or 
students of such recipient in violation of Sec. Sec. 618.300 through 
618.310 unless such treatment is necessitated by an obstacle identified 
in paragraph (b)(3) of this section and a schedule for eliminating that 
obstacle has been provided as required by paragraph (b)(4) of this 
section.
    (d) Effects of past exclusion. To overcome the effects of past 
exclusion of students on the basis of sex, each educational institution 
to which Sec. 618.225 applies shall include in its transition plan, and 
shall implement, specific steps designed to encourage individuals of the 
previously excluded sex to apply for admission to such institution. Such 
steps shall include instituting recruitment programs that emphasize the 
institution's commitment to enrolling students of the sex previously 
excluded.



Sec. 618.235  Statutory amendments.

    (a) This section, which applies to all provisions of these Title IX 
regulations, addresses statutory amendments to Title IX.
    (b) These Title IX regulations shall not apply to or preclude:
    (1) Any program or activity of the American Legion undertaken in 
connection with the organization or operation of any Boys State 
conference, Boys Nation conference, Girls State conference, or Girls 
Nation conference;
    (2) Any program or activity of a secondary school or educational 
institution specifically for:
    (i) The promotion of any Boys State conference, Boys Nation 
conference, Girls State conference, or Girls Nation conference; or
    (ii) The selection of students to attend any such conference;
    (3) Father-son or mother-daughter activities at an educational 
institution or in an education program or activity,

[[Page 153]]

but if such activities are provided for students of one sex, 
opportunities for reasonably comparable activities shall be provided to 
students of the other sex;
    (4) Any scholarship or other financial assistance awarded by an 
institution of higher education to an individual because such individual 
has received such award in a single-sex pageant based upon a combination 
of factors related to the individual's personal appearance, poise, and 
talent. The pageant, however, must comply with other nondiscrimination 
provisions of Federal law.
    (c) Program or activity or program means:
    (1) All of the operations of any entity described in paragraphs 
(c)(1)(i) through (iv) of this section, any part of which is extended 
Federal financial assistance:
    (i)(A) A department, agency, special purpose district, or other 
instrumentality of a State or of a local government; or
    (B) The entity of such State or local government that distributes 
such assistance and each such department or agency (and each other State 
or local government entity) to which the assistance is extended, in the 
case of assistance to a State or local government;
    (ii)(A) A college, university, or other postsecondary institution, 
or a public system of higher education; or
    (B) A local educational agency (as defined in section 8801 of title 
20), system of vocational education, or other school system;
    (iii)(A) An entire corporation, partnership, or other private 
organization, or an entire sole proprietorship--
    (1) If assistance is extended to such corporation, partnership, 
private organization, or sole proprietorship as a whole; or
    (2) Which is principally engaged in the business of providing 
education, health care, housing, social services, or parks and 
recreation; or
    (B) The entire plant or other comparable, geographically separate 
facility to which Federal financial assistance is extended, in the case 
of any other corporation, partnership, private organization, or sole 
proprietorship; or
    (iv) Any other entity that is established by two or more of the 
entities described in paragraphs (c)(1)(i), (ii), or (iii) of this 
section.
    (2)(i) Program or activity does not include any operation of an 
entity that is controlled by a religious organization if the application 
of 20 U.S.C. 1681 to such operation would not be consistent with the 
religious tenets of such organization.
    (ii) For example, all of the operations of a college, university, or 
other postsecondary institution, including but not limited to 
traditional educational operations, faculty and student housing, campus 
shuttle bus service, campus restaurants, the bookstore, and other 
commercial activities are part of a ``program or activity'' subject to 
these Title IX regulations if the college, university, or other 
institution receives Federal financial assistance.
    (d)(1) Nothing in these Title IX regulations shall be construed to 
require or prohibit any person, or public or private entity, to provide 
or pay for any benefit or service, including the use of facilities, 
related to an abortion. Medical procedures, benefits, services, and the 
use of facilities, necessary to save the life of a pregnant woman or to 
address complications related to an abortion are not subject to this 
section.
    (2) Nothing in this section shall be construed to permit a penalty 
to be imposed on any person or individual because such person or 
individual is seeking or has received any benefit or service related to 
a legal abortion. Accordingly, subject to paragraph (d)(1) of this 
section, no person shall be excluded from participation in, be denied 
the benefits of, or be subjected to discrimination under any academic, 
extracurricular, research, occupational training, employment, or other 
educational program or activity operated by a recipient that receives 
Federal financial assistance because such individual has sought or 
received, or is seeking, a legal abortion, or any benefit or service 
related to a legal abortion.

[[Page 154]]



     Subpart C_Discrimination on the Basis of Sex in Admission and 
                         Recruitment Prohibited



Sec. 618.300  Admission.

    (a) General. No person shall, on the basis of sex, be denied 
admission, or be subjected to discrimination in admission, by any 
recipient to which Sec. Sec. 618.300 through Sec. Sec. 618.310 apply, 
except as provided in Sec. Sec. 618.225 and Sec. Sec. 618.230.
    (b) Specific prohibitions. (1) In determining whether a person 
satisfies any policy or criterion for admission, or in making any offer 
of admission, a recipient to which Sec. Sec. 618.300 through 618.310 
apply shall not:
    (i) Give preference to one person over another on the basis of sex, 
by ranking applicants separately on such basis, or otherwise;
    (ii) Apply numerical limitations upon the number or proportion of 
persons of either sex who may be admitted; or
    (iii) Otherwise treat one individual differently from another on the 
basis of sex.
    (2) A recipient shall not administer or operate any test or other 
criterion for admission that has a disproportionately adverse effect on 
persons on the basis of sex unless the use of such test or criterion is 
shown to predict validly success in the education program or activity in 
question and alternative tests or criteria that do not have such a 
disproportionately adverse effect are shown to be unavailable.
    (c) Prohibitions relating to marital or parental status. In 
determining whether a person satisfies any policy or criterion for 
admission, or in making any offer of admission, a recipient to which 
Sec. Sec. 618.300 through 618.310 apply:
    (1) Shall not apply any rule concerning the actual or potential 
parental, family, or marital status of a student or applicant that 
treats persons differently on the basis of sex;
    (2) Shall not discriminate against or exclude any person on the 
basis of pregnancy, childbirth, termination of pregnancy, or recovery 
therefrom, or establish or follow any rule or practice that so 
discriminates or excludes;
    (3) Subject to Sec. 618.235(d), shall treat disabilities related to 
pregnancy, childbirth, termination of pregnancy, or recovery therefrom 
in the same manner and under the same policies as any other temporary 
disability or physical condition; and
    (4) Shall not make pre-admission inquiry as to the marital status of 
an applicant for admission, including whether such applicant is ``Miss'' 
or ``Mrs.'' A recipient may make pre-admission inquiry as to the sex of 
an applicant for admission, but only if such inquiry is made equally of 
such applicants of both sexes and if the results of such inquiry are not 
used in connection with discrimination prohibited by these Title IX 
regulations.



Sec. 618.305  Preference in admission.

    A recipient to which Sec. Sec. 618.300 through 618.310 apply shall 
not give preference to applicants for admission, on the basis of 
attendance at any educational institution or other school or entity that 
admits as students only or predominantly members of one sex, if the 
giving of such preference has the effect of discriminating on the basis 
of sex in violation of Sec. Sec. 618.300 through 618.310.



Sec. 618.310  Recruitment.

    (a) Nondiscriminatory recruitment. A recipient to which Sec. Sec. 
618.300 through 618.310 apply shall not discriminate on the basis of sex 
in the recruitment and admission of students. A recipient may be 
required to undertake additional recruitment efforts for one sex as 
remedial action pursuant to Sec. 618.110(a), and may choose to 
undertake such efforts as affirmative action pursuant to Sec. 
618.110(b).
    (b) Recruitment at certain institutions. A recipient to which 
Sec. Sec. 618.300 through 618.310 apply shall not recruit primarily or 
exclusively at educational institutions, schools, or entities that admit 
as students only or predominantly members of one sex, if such actions 
have the effect of discriminating on the basis of sex in violation of 
Sec. Sec. 618.300 through 618.310.

[[Page 155]]



 Subpart D_Discrimination on the Basis of Sex in Education Programs or 
                          Activities Prohibited



Sec. 618.400  Education programs or activities.

    (a) General. Except as provided elsewhere in these Title IX 
regulations, no person shall, on the basis of sex, be excluded from 
participation in, be denied the benefits of, or be subjected to 
discrimination under any academic, extracurricular, research, 
occupational training, or other education program or activity operated 
by a recipient that receives Federal financial assistance. Sections 
618.400 through 618.455 do not apply to actions of a recipient in 
connection with admission of its students to an education program or 
activity of a recipient to which Sec. Sec. 618.300 through 618.310 do 
not apply, or an entity, not a recipient, to which Sec. Sec. 618.300 
through 618.310 would not apply if the entity were a recipient.
    (b) Specific prohibitions. Except as provided in Sec. Sec. 618.400 
through 618.455, in providing any aid, benefit, or service to a student, 
a recipient shall not, on the basis of sex:
    (1) Treat one person differently from another in determining whether 
such person satisfies any requirement or condition for the provision of 
such aid, benefit, or service;
    (2) Provide different aid, benefits, or services or provide aid, 
benefits, or services in a different manner;
    (3) Deny any person any such aid, benefit, or service;
    (4) Subject any person to separate or different rules of behavior, 
sanctions, or other treatment;
    (5) Apply any rule concerning the domicile or residence of a student 
or applicant, including eligibility for in-state fees and tuition;
    (6) Aid or perpetuate discrimination against any person by providing 
significant assistance to any agency, organization, or person that 
discriminates on the basis of sex in providing any aid, benefit, or 
service to students or employees;
    (7) Otherwise limit any person in the enjoyment of any right, 
privilege, advantage, or opportunity.
    (c) Assistance administered by a recipient educational institution 
to study at a foreign institution. A recipient educational institution 
may administer or assist in the administration of scholarships, 
fellowships, or other awards established by foreign or domestic wills, 
trusts, or similar legal instruments, or by acts of foreign governments 
and restricted to members of one sex, that are designed to provide 
opportunities to study abroad, and that are awarded to students who are 
already matriculating at or who are graduates of the recipient 
institution; Provided, that a recipient educational institution that 
administers or assists in the administration of such scholarships, 
fellowships, or other awards that are restricted to members of one sex 
provides, or otherwise makes available, reasonable opportunities for 
similar studies for members of the other sex. Such opportunities may be 
derived from either domestic or foreign sources.
    (d) Aids, benefits or services not provided by recipient. (1) This 
paragraph (d) applies to any recipient that requires participation by 
any applicant, student, or employee in any education program or activity 
not operated wholly by such recipient, or that facilitates, permits, or 
considers such participation as part of or equivalent to an education 
program or activity operated by such recipient, including participation 
in educational consortia and cooperative employment and student-teaching 
assignments.
    (2) Such recipient:
    (i) Shall develop and implement a procedure designed to assure 
itself that the operator or sponsor of such other education program or 
activity takes no action affecting any applicant, student, or employee 
of such recipient that these Title IX regulations would prohibit such 
recipient from taking; and
    (ii) Shall not facilitate, require, permit, or consider such 
participation if such action occurs.



Sec. 618.405  Housing.

    (a) Generally. A recipient shall not, on the basis of sex, apply 
different rules or regulations, impose different fees or requirements, 
or offer different services or benefits related to housing,

[[Page 156]]

except as provided in this section (including housing provided only to 
married students).
    (b) Housing provided by recipient. (1) A recipient may provide 
separate housing on the basis of sex.
    (2) Housing provided by a recipient to students of one sex, when 
compared to that provided to students of the other sex, shall be as a 
whole:
    (i) Proportionate in quantity to the number of students of that sex 
applying for such housing; and
    (ii) Comparable in quality and cost to the student.
    (c) Other housing. (1) A recipient shall not, on the basis of sex, 
administer different policies or practices concerning occupancy by its 
students of housing other than that provided by such recipient.
    (2)(i) A recipient which, through solicitation, listing, approval of 
housing, or otherwise, assists any agency, organization, or person in 
making housing available to any of its students, shall take such 
reasonable action as may be necessary to assure itself that such housing 
as is provided to students of one sex, when compared to that provided to 
students of the other sex, is as a whole:
    (A) Proportionate in quantity; and
    (B) Comparable in quality and cost to the student.
    (ii) A recipient may render such assistance to any agency, 
organization, or person that provides all or part of such housing to 
students of only one sex.



Sec. 618.410  Comparable facilities.

    A recipient may provide separate toilet, locker room, and shower 
facilities on the basis of sex, but such facilities provided for 
students of one sex shall be comparable to such facilities provided for 
students of the other sex.



Sec. 618.415  Access to course offerings.

    (a) A recipient shall not provide any course or otherwise carry out 
any of its education program or activity separately on the basis of sex, 
or require or refuse participation therein by any of its students on 
such basis, including health, physical education, industrial, business, 
vocational, technical, home economics, music, and adult education 
courses.
    (b)(1) With respect to classes and activities in physical education 
at the elementary school level, the recipient shall comply fully with 
this section as expeditiously as possible but in no event later than one 
year from September 29, 2000. With respect to physical education classes 
and activities at the secondary and post-secondary levels, the recipient 
shall comply fully with this section as expeditiously as possible but in 
no event later than three years from September 29, 2000.
    (2) This section does not prohibit grouping of students in physical 
education classes and activities by ability as assessed by objective 
standards of individual performance developed and applied without regard 
to sex.
    (3) This section does not prohibit separation of students by sex 
within physical education classes or activities during participation in 
wrestling, boxing, rugby, ice hockey, football, basketball, and other 
sports the purpose or major activity of which involves bodily contact.
    (4) Where use of a single standard of measuring skill or progress in 
a physical education class has an adverse effect on members of one sex, 
the recipient shall use appropriate standards that do not have such 
effect.
    (5) Portions of classes in elementary and secondary schools, or 
portions of education programs or activities, that deal exclusively with 
human sexuality may be conducted in separate sessions for boys and 
girls.
    (6) Recipients may make requirements based on vocal range or quality 
that may result in a chorus or choruses of one or predominantly one sex.



Sec. 618.420  Access to schools operated by LEAs.

    A recipient that is a local educational agency shall not, on the 
basis of sex, exclude any person from admission to:
    (a) Any institution of vocational education operated by such 
recipient; or
    (b) Any other school or educational unit operated by such recipient, 
unless such recipient otherwise makes available to such person, pursuant 
to the same policies and criteria of admission,

[[Page 157]]

courses, services, and facilities comparable to each course, service, 
and facility offered in or through such schools.



Sec. 618.425  Counseling and use of appraisal and counseling materials.

    (a) Counseling. A recipient shall not discriminate against any 
person on the basis of sex in the counseling or guidance of students or 
applicants for admission.
    (b) Use of appraisal and counseling materials. A recipient that uses 
testing or other materials for appraising or counseling students shall 
not use different materials for students on the basis of their sex or 
use materials that permit or require different treatment of students on 
such basis unless such different materials cover the same occupations 
and interest areas and the use of such different materials is shown to 
be essential to eliminate sex bias. Recipients shall develop and use 
internal procedures for ensuring that such materials do not discriminate 
on the basis of sex. Where the use of a counseling test or other 
instrument results in a substantially disproportionate number of members 
of one sex in any particular course of study or classification, the 
recipient shall take such action as is necessary to assure itself that 
such disproportion is not the result of discrimination in the instrument 
or its application.
    (c) Disproportion in classes. Where a recipient finds that a 
particular class contains a substantially disproportionate number of 
individuals of one sex, the recipient shall take such action as is 
necessary to assure itself that such disproportion is not the result of 
discrimination on the basis of sex in counseling or appraisal materials 
or by counselors.



Sec. 618.430  Financial assistance.

    (a) General. Except as provided in paragraphs (b) and (c) of this 
section, in providing financial assistance to any of its students, a 
recipient shall not:
    (1) On the basis of sex, provide different amounts or types of such 
assistance, limit eligibility for such assistance that is of any 
particular type or source, apply different criteria, or otherwise 
discriminate;
    (2) Through solicitation, listing, approval, provision of 
facilities, or other services, assist any foundation, trust, agency, 
organization, or person that provides assistance to any of such 
recipient's students in a manner that discriminates on the basis of sex; 
or
    (3) Apply any rule or assist in application of any rule concerning 
eligibility for such assistance that treats persons of one sex 
differently from persons of the other sex with regard to marital or 
parental status.
    (b) Financial aid established by certain legal instruments. (1) A 
recipient may administer or assist in the administration of 
scholarships, fellowships, or other forms of financial assistance 
established pursuant to domestic or foreign wills, trusts, bequests, or 
similar legal instruments or by acts of a foreign government that 
require that awards be made to members of a particular sex specified 
therein; Provided, that the overall effect of the award of such sex-
restricted scholarships, fellowships, and other forms of financial 
assistance does not discriminate on the basis of sex.
    (2) To ensure nondiscriminatory awards of assistance as required in 
paragraph (b)(1) of this section, recipients shall develop and use 
procedures under which:
    (i) Students are selected for award of financial assistance on the 
basis of nondiscriminatory criteria and not on the basis of availability 
of funds restricted to members of a particular sex;
    (ii) An appropriate sex-restricted scholarship, fellowship, or other 
form of financial assistance is allocated to each student selected under 
paragraph (b)(2)(i) of this section; and
    (iii) No student is denied the award for which he or she was 
selected under paragraph (b)(2)(i) of this section because of the 
absence of a scholarship, fellowship, or other form of financial 
assistance designated for a member of that student's sex.
    (c) Athletic scholarships. (1) To the extent that a recipient awards 
athletic scholarships or grants-in-aid, it must provide reasonable 
opportunities for such awards for members of each sex in proportion to 
the number of students of each sex participating in interscholastic or 
intercollegiate athletics.

[[Page 158]]

    (2) A recipient may provide separate athletic scholarships or 
grants-in-aid for members of each sex as part of separate athletic teams 
for members of each sex to the extent consistent with this paragraph (c) 
and Sec. 618.450.



Sec. 618.435  Employment assistance to students.

    (a) Assistance by recipient in making available outside employment. 
A recipient that assists any agency, organization, or person in making 
employment available to any of its students:
    (1) Shall assure itself that such employment is made available 
without discrimination on the basis of sex; and
    (2) Shall not render such services to any agency, organization, or 
person that discriminates on the basis of sex in its employment 
practices.
    (b) Employment of students by recipients. A recipient that employs 
any of its students shall not do so in a manner that violates Sec. Sec. 
618.500 through 618.550.



Sec. 618.440  Health and insurance benefits and services.

    Subject to Sec. 618.235(d), in providing a medical, hospital, 
accident, or life insurance benefit, service, policy, or plan to any of 
its students, a recipient shall not discriminate on the basis of sex, or 
provide such benefit, service, policy, or plan in a manner that would 
violate Sec. Sec. 618.500 through 618.550 if it were provided to 
employees of the recipient. This section shall not prohibit a recipient 
from providing any benefit or service that may be used by a different 
proportion of students of one sex than of the other, including family 
planning services. However, any recipient that provides full coverage 
health service shall provide gynecological care.



Sec. 618.445  Marital or parental status.

    (a) Status generally. A recipient shall not apply any rule 
concerning a student's actual or potential parental, family, or marital 
status that treats students differently on the basis of sex.
    (b) Pregnancy and related conditions. (1) A recipient shall not 
discriminate against any student, or exclude any student from its 
education program or activity, including any class or extracurricular 
activity, on the basis of such student's pregnancy, childbirth, false 
pregnancy, termination of pregnancy, or recovery therefrom, unless the 
student requests voluntarily to participate in a separate portion of the 
program or activity of the recipient.
    (2) A recipient may require such a student to obtain the 
certification of a physician that the student is physically and 
emotionally able to continue participation as long as such a 
certification is required of all students for other physical or 
emotional conditions requiring the attention of a physician.
    (3) A recipient that operates a portion of its education program or 
activity separately for pregnant students, admittance to which is 
completely voluntary on the part of the student as provided in paragraph 
(b)(1) of this section, shall ensure that the separate portion is 
comparable to that offered to non-pregnant students.
    (4) Subject to Sec. 618.235(d), a recipient shall treat pregnancy, 
childbirth, false pregnancy, termination of pregnancy and recovery 
therefrom in the same manner and under the same policies as any other 
temporary disability with respect to any medical or hospital benefit, 
service, plan, or policy that such recipient administers, operates, 
offers, or participates in with respect to students admitted to the 
recipient's educational program or activity.
    (5) In the case of a recipient that does not maintain a leave policy 
for its students, or in the case of a student who does not otherwise 
qualify for leave under such a policy, a recipient shall treat 
pregnancy, childbirth, false pregnancy, termination of pregnancy, and 
recovery therefrom as a justification for a leave of absence for as long 
a period of time as is deemed medically necessary by the student's 
physician, at the conclusion of which the student shall be reinstated to 
the status that she held when the leave began.



Sec. 618.450  Athletics.

    (a) General. No person shall, on the basis of sex, be excluded from 
participation in, be denied the benefits of, be treated differently from 
another person, or otherwise be discriminated

[[Page 159]]

against in any interscholastic, intercollegiate, club, or intramural 
athletics offered by a recipient, and no recipient shall provide any 
such athletics separately on such basis.
    (b) Separate teams. Notwithstanding the requirements of paragraph 
(a) of this section, a recipient may operate or sponsor separate teams 
for members of each sex where selection for such teams is based upon 
competitive skill or the activity involved is a contact sport. However, 
where a recipient operates or sponsors a team in a particular sport for 
members of one sex but operates or sponsors no such team for members of 
the other sex, and athletic opportunities for members of that sex have 
previously been limited, members of the excluded sex must be allowed to 
try out for the team offered unless the sport involved is a contact 
sport. For the purposes of these Title IX regulations, contact sports 
include boxing, wrestling, rugby, ice hockey, football, basketball, and 
other sports the purpose or major activity of which involves bodily 
contact.
    (c) Equal opportunity. (1) A recipient that operates or sponsors 
interscholastic, intercollegiate, club, or intramural athletics shall 
provide equal athletic opportunity for members of both sexes. In 
determining whether equal opportunities are available, the designated 
agency official will consider, among other factors:
    (i) Whether the selection of sports and levels of competition 
effectively accommodate the interests and abilities of members of both 
sexes;
    (ii) The provision of equipment and supplies;
    (iii) Scheduling of games and practice time;
    (iv) Travel and per diem allowance;
    (v) Opportunity to receive coaching and academic tutoring;
    (vi) Assignment and compensation of coaches and tutors;
    (vii) Provision of locker rooms, practice, and competitive 
facilities;
    (viii) Provision of medical and training facilities and services;
    (ix) Provision of housing and dining facilities and services;
    (x) Publicity.
    (2) For purposes of paragraph (c)(1) of this section, unequal 
aggregate expenditures for members of each sex or unequal expenditures 
for male and female teams if a recipient operates or sponsors separate 
teams will not constitute noncompliance with this section, but the 
designated agency official may consider the failure to provide necessary 
funds for teams for one sex in assessing equality of opportunity for 
members of each sex.
    (d) Adjustment period. A recipient that operates or sponsors 
interscholastic, intercollegiate, club, or intramural athletics at the 
elementary school level shall comply fully with this section as 
expeditiously as possible but in no event later than one year from 
September 29, 2000. A recipient that operates or sponsors 
interscholastic, intercollegiate, club, or intramural athletics at the 
secondary or postsecondary school level shall comply fully with this 
section as expeditiously as possible but in no event later than three 
years from September 29, 2000.



Sec. 618.455  Textbooks and curricular material.

    Nothing in these Title IX regulations shall be interpreted as 
requiring or prohibiting or abridging in any way the use of particular 
textbooks or curricular materials.



Subpart E_Discrimination on the Basis of Sex in Employment in Education 
                    Programs or Activities Prohibited



Sec. 618.500  Employment.

    (a) General. (1) No person shall, on the basis of sex, be excluded 
from participation in, be denied the benefits of, or be subjected to 
discrimination in employment, or recruitment, consideration, or 
selection therefor, whether full-time or part-time, under any education 
program or activity operated by a recipient that receives Federal 
financial assistance.
    (2) A recipient shall make all employment decisions in any education 
program or activity operated by such recipient in a nondiscriminatory 
manner and shall not limit, segregate, or classify applicants or 
employees in any way that could adversely affect any applicant's or 
employee's employment opportunities or status because of sex.

[[Page 160]]

    (3) A recipient shall not enter into any contractual or other 
relationship which directly or indirectly has the effect of subjecting 
employees or students to discrimination prohibited by Sec. Sec. 618.500 
through 618.550, including relationships with employment and referral 
agencies, with labor unions, and with organizations providing or 
administering fringe benefits to employees of the recipient.
    (4) A recipient shall not grant preferences to applicants for 
employment on the basis of attendance at any educational institution or 
entity that admits as students only or predominantly members of one sex, 
if the giving of such preferences has the effect of discriminating on 
the basis of sex in violation of these Title IX regulations.
    (b) Application. The provisions of Sec. Sec. 618.500 through 
618.550 apply to:
    (1) Recruitment, advertising, and the process of application for 
employment;
    (2) Hiring, upgrading, promotion, consideration for and award of 
tenure, demotion, transfer, layoff, termination, application of nepotism 
policies, right of return from layoff, and rehiring;
    (3) Rates of pay or any other form of compensation, and changes in 
compensation;
    (4) Job assignments, classifications, and structure, including 
position descriptions, lines of progression, and seniority lists;
    (5) The terms of any collective bargaining agreement;
    (6) Granting and return from leaves of absence, leave for pregnancy, 
childbirth, false pregnancy, termination of pregnancy, leave for persons 
of either sex to care for children or dependents, or any other leave;
    (7) Fringe benefits available by virtue of employment, whether or 
not administered by the recipient;
    (8) Selection and financial support for training, including 
apprenticeship, professional meetings, conferences, and other related 
activities, selection for tuition assistance, selection for sabbaticals 
and leaves of absence to pursue training;
    (9) Employer-sponsored activities, including social or recreational 
programs; and
    (10) Any other term, condition, or privilege of employment.



Sec. 618.505  Employment criteria.

    A recipient shall not administer or operate any test or other 
criterion for any employment opportunity that has a disproportionately 
adverse effect on persons on the basis of sex unless:
    (a) Use of such test or other criterion is shown to predict validly 
successful performance in the position in question; and
    (b) Alternative tests or criteria for such purpose, which do not 
have such disproportionately adverse effect, are shown to be 
unavailable.



Sec. 618.510  Recruitment.

    (a) Nondiscriminatory recruitment and hiring. A recipient shall not 
discriminate on the basis of sex in the recruitment and hiring of 
employees. Where a recipient has been found to be presently 
discriminating on the basis of sex in the recruitment or hiring of 
employees, or has been found to have so discriminated in the past, the 
recipient shall recruit members of the sex so discriminated against so 
as to overcome the effects of such past or present discrimination.
    (b) Recruitment patterns. A recipient shall not recruit primarily or 
exclusively at entities that furnish as applicants only or predominantly 
members of one sex if such actions have the effect of discriminating on 
the basis of sex in violation of Sec. Sec. 618.500 through 618.550.



Sec. 618.515  Compensation.

    A recipient shall not make or enforce any policy or practice that, 
on the basis of sex:
    (a) Makes distinctions in rates of pay or other compensation;
    (b) Results in the payment of wages to employees of one sex at a 
rate less than that paid to employees of the opposite sex for equal work 
on jobs the performance of which requires equal skill, effort, and 
responsibility, and that are performed under similar working conditions.



Sec. 618.520  Job classification and structure.

    A recipient shall not:

[[Page 161]]

    (a) Classify a job as being for males or for females;
    (b) Maintain or establish separate lines of progression, seniority 
lists, career ladders, or tenure systems based on sex; or
    (c) Maintain or establish separate lines of progression, seniority 
systems, career ladders, or tenure systems for similar jobs, position 
descriptions, or job requirements that classify persons on the basis of 
sex, unless sex is a bona fide occupational qualification for the 
positions in question as set forth in Sec. 618.550.



Sec. 618.525  Fringe benefits.

    (a) ``Fringe benefits'' defined. For purposes of these Title IX 
regulations, fringe benefits means: Any medical, hospital, accident, 
life insurance, or retirement benefit, service, policy or plan, any 
profit-sharing or bonus plan, leave, and any other benefit or service of 
employment not subject to the provision of Sec. 618.515.
    (b) Prohibitions. A recipient shall not:
    (1) Discriminate on the basis of sex with regard to making fringe 
benefits available to employees or make fringe benefits available to 
spouses, families, or dependents of employees differently upon the basis 
of the employee's sex;
    (2) Administer, operate, offer, or participate in a fringe benefit 
plan that does not provide for equal periodic benefits for members of 
each sex and for equal contributions to the plan by such recipient for 
members of each sex; or
    (3) Administer, operate, offer, or participate in a pension or 
retirement plan that establishes different optional or compulsory 
retirement ages based on sex or that otherwise discriminates in benefits 
on the basis of sex.



Sec. 618.530  Marital or parental status.

    (a) General. A recipient shall not apply any policy or take any 
employment action:
    (1) Concerning the potential marital, parental, or family status of 
an employee or applicant for employment that treats persons differently 
on the basis of sex; or
    (2) Which is based upon whether an employee or applicant for 
employment is the head of household or principal wage earner in such 
employee's or applicant's family unit.
    (b) Pregnancy. A recipient shall not discriminate against or exclude 
from employment any employee or applicant for employment on the basis of 
pregnancy, childbirth, false pregnancy, termination of pregnancy, or 
recovery therefrom.
    (c) Pregnancy as a temporary disability. Subject to Sec. 
618.235(d), a recipient shall treat pregnancy, childbirth, false 
pregnancy, termination of pregnancy, recovery therefrom, and any 
temporary disability resulting therefrom as any other temporary 
disability for all job-related purposes, including commencement, 
duration, and extensions of leave, payment of disability income, accrual 
of seniority and any other benefit or service, and reinstatement, and 
under any fringe benefit offered to employees by virtue of employment.
    (d) Pregnancy leave. In the case of a recipient that does not 
maintain a leave policy for its employees, or in the case of an employee 
with insufficient leave or accrued employment time to qualify for leave 
under such a policy, a recipient shall treat pregnancy, childbirth, 
false pregnancy, termination of pregnancy, and recovery therefrom as a 
justification for a leave of absence without pay for a reasonable period 
of time, at the conclusion of which the employee shall be reinstated to 
the status that she held when the leave began or to a comparable 
position, without decrease in rate of compensation or loss of 
promotional opportunities, or any other right or privilege of 
employment.



Sec. 618.535  Effect of state or local law or other requirements.

    (a) Prohibitory requirements. The obligation to comply with 
Sec. Sec. 618.500 through 618.550 is not obviated or alleviated by the 
existence of any State or local law or other requirement that imposes 
prohibitions or limits upon employment of members of one sex that are 
not imposed upon members of the other sex.
    (b) Benefits. A recipient that provides any compensation, service, 
or benefit to members of one sex pursuant to a State or local law or 
other requirement shall provide the same compensation,

[[Page 162]]

service, or benefit to members of the other sex.



Sec. 618.540  Advertising.

    A recipient shall not in any advertising related to employment 
indicate preference, limitation, specification, or discrimination based 
on sex unless sex is a bona fide occupational qualification for the 
particular job in question.



Sec. 618.545  Pre-employment inquiries.

    (a) Marital status. A recipient shall not make pre-employment 
inquiry as to the marital status of an applicant for employment, 
including whether such applicant is ``Miss'' or ``Mrs.''
    (b) Sex. A recipient may make pre-employment inquiry as to the sex 
of an applicant for employment, but only if such inquiry is made equally 
of such applicants of both sexes and if the results of such inquiry are 
not used in connection with discrimination prohibited by these Title IX 
regulations.



Sec. 618.550  Sex as a bona fide occupational qualification.

    A recipient may take action otherwise prohibited by Sec. Sec. 
618.500 through 618.550 provided it is shown that sex is a bona fide 
occupational qualification for that action, such that consideration of 
sex with regard to such action is essential to successful operation of 
the employment function concerned. A recipient shall not take action 
pursuant to this section that is based upon alleged comparative 
employment characteristics or stereotyped characterizations of one or 
the other sex, or upon preference based on sex of the recipient, 
employees, students, or other persons, but nothing contained in this 
section shall prevent a recipient from considering an employee's sex in 
relation to employment in a locker room or toilet facility used only by 
members of one sex.



                          Subpart F_Procedures



Sec. 618.600  Notice of covered programs.

    Within 60 days of September 29, 2000, each Federal agency that 
awards Federal financial assistance shall publish in the Federal 
Register a notice of the programs covered by these Title IX regulations. 
Each such Federal agency shall periodically republish the notice of 
covered programs to reflect changes in covered programs. Copies of this 
notice also shall be made available upon request to the Federal agency's 
office that enforces Title IX.



Sec. 618.605  Enforcement procedures.

    The investigative, compliance, and enforcement procedural provisions 
of Title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d) (``Title 
VI'') are hereby adopted and applied to these Title IX regulations. 
These procedures may be found at 45 CFR part 611.



PART 630_GOVERNMENTWIDE REQUIREMENTS FOR DRUG-FREE WORKPLACE (FINANCIAL
ASSISTANCE)--Table of Contents




                     Subpart A_Purpose and Coverage

Sec.
630.100 What does this part do?
630.105 Does this part apply to me?
630.110 Are any of my Federal assistance awards exempt from this part?
630.115 Does this part affect the Federal contracts that I receive?

      Subpart B_Requirements for Recipients Other Than Individuals

630.200 What must I do to comply with this part?
630.205 What must I include in my drug-free workplace statement?
630.210 To whom must I distribute my drug-free workplace statement?
630.215 What must I include in my drug-free awareness program?
630.220 By when must I publish my drug-free workplace statement and 
          establish my drug-free awareness program?
630.225 What actions must I take concerning employees who are convicted 
          of drug violations in the workplace?
630.230 How and when must I identify workplaces?

        Subpart C_Requirements for Recipients Who Are Individuals

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

   Subpart D_Responsibilities of National Science Foundation Awarding 
                                Officials

630.400 What are my responsibilities as a National Science Foundation 
          awarding official?

[[Page 163]]

           Subpart E_Violations of This Part and Consequences

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

                          Subpart F_Definitions

630.605 Award.
630.610 Controlled substance.
630.615 Conviction.
630.620 Cooperative agreement.
630.625 Criminal drug statute.
630.630 Debarment.
630.635 Drug-free workplace.
630.640 Employee.
630.645 Federal agency or agency.
630.650 Grant.
630.655 Individual.
630.660 Recipient.
630.665 State.
630.670 Suspension.

    Authority: 41 U.S.C. 701 et seq.

    Source: 68 FR 66557, 66634, Nov. 26, 2003, unless otherwise noted.



                     Subpart A_Purpose and Coverage



Sec. 630.100  What does this part do?

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



Sec. 630.105  Does this part apply to me?

    (a) Portions of this part apply to you if you are either--
    (1) A recipient of an assistance award from the National Science 
Foundation; or
    (2) A(n) National Science Foundation awarding official. (See 
definitions of award and recipient in Sec. Sec. 630.605 and 630.660, 
respectively.)
    (b) The following table shows the subparts that apply to you:

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



Sec. 630.110  Are any of my Federal assistance awards exempt from this part?

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



Sec. 630.115  Does this part affect the Federal contracts that I receive?

    It will affect future contract awards indirectly if you are debarred 
or suspended for a violation of the requirements of this part, as 
described in Sec. 630. 510(c). However, this part does not apply 
directly to procurement contracts. The portion of the Drug-Free 
Workplace Act of 1988 that applies to Federal procurement contracts is 
carried out through the Federal Acquisition Regulation in chapter 1 of 
Title 48 of the Code of Federal Regulations (the drug-free workplace 
coverage currently is in 48 CFR part 23, subpart 23.5).



      Subpart B_Requirements for Recipients Other Than Individuals



Sec. 630.200  What must I do to comply with this part?

    There are two general requirements if you are a recipient other than 
an individual.
    (a) First, you must make a good faith effort, on a continuing basis, 
to maintain a drug-free workplace. You must agree to do so as a 
condition for receiving any award covered by this part. The specific 
measures that you must take in this regard are described in more detail 
in subsequent sections of this subpart. Briefly, those measures are to--
    (1) Publish a drug-free workplace statement and establish a drug-
free awareness program for your employees (see Sec. Sec. 630.205 
through 630.220); and
    (2) Take actions concerning employees who are convicted of violating 
drug statutes in the workplace (see Sec. 630.225).

[[Page 164]]

    (b) Second, you must identify all known workplaces under your 
Federal awards (see Sec. 630.230).



Sec. 630.205  What must I include in my drug-free workplace statement?

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



Sec. 630.210  To whom must I distribute my drug-free workplace statement?

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



Sec. 630.215  What must I include in my drug-free awareness program?

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



Sec. 630.220  By when must I publish my drug-free workplace statement
and establish my drug-free awareness program?

    If you are a new recipient that does not already have a policy 
statement as described in Sec. 630.205 and an ongoing awareness program 
as described in Sec. 630.215, you must publish the statement and 
establish the program by the time given in the following table:

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



Sec. 630.225  What actions must I take concerning employees who are 
convicted of drug violations in the workplace?

    There are two actions you must take if an employee is convicted of a 
drug violation in the workplace:
    (a) First, you must notify Federal agencies if an employee who is 
engaged in the performance of an award informs you about a conviction, 
as required by Sec. 630.205(c)(2), or you otherwise learn of the 
conviction. Your notification to the Federal agencies must--
    (1) Be in writing;
    (2) Include the employee's position title;
    (3) Include the identification number(s) of each affected award;
    (4) Be sent within ten calendar days after you learn of the 
conviction; and
    (5) Be sent to every Federal agency on whose award the convicted 
employee was working. It must be sent to every awarding official or his 
or her official designee, unless the Federal agency has specified a 
central point for the receipt of the notices.
    (b) Second, within 30 calendar days of learning about an employee's 
conviction, you must either--
    (1) Take appropriate personnel action against the employee, up to 
and including termination, consistent with the requirements of the 
Rehabilitation Act of 1973 (29 U.S.C. 794), as amended; or
    (2) Require the employee to participate satisfactorily in a drug 
abuse assistance or rehabilitation program approved for these purposes 
by a Federal,

[[Page 165]]

State or local health, law enforcement, or other appropriate agency.



Sec. 630.230  How and when must I identify workplaces?

    (a) You must identify all known workplaces under each National 
Science Foundation award. A failure to do so is a violation of your 
drug-free workplace requirements. You may identify the workplaces--
    (1) To the National Science Foundation official that is making the 
award, either at the time of application or upon award; or
    (2) In documents that you keep on file in your offices during the 
performance of the award, in which case you must make the information 
available for inspection upon request by National Science Foundation 
officials or their designated representatives.
    (b) Your workplace identification for an award must include the 
actual address of buildings (or parts of buildings) or other sites where 
work under the award takes place. Categorical descriptions may be used 
(e.g., all vehicles of a mass transit authority or State highway 
department while in operation, State employees in each local 
unemployment office, performers in concert halls or radio studios).
    (c) If you identified workplaces to the National Science Foundation 
awarding official at the time of application or award, as described in 
paragraph (a)(1) of this section, and any workplace that you identified 
changes during the performance of the award, you must inform the 
National Science Foundation awarding official.



        Subpart C_Requirements for Recipients Who Are Individuals



Sec. 630.300  What must I do to comply with this part if I am an 
individual recipient?

    As a condition of receiving a(n) National Science Foundation award, 
if you are an individual recipient, you must agree that--
    (a) You will not engage in the unlawful manufacture, distribution, 
dispensing, possession, or use of a controlled substance in conducting 
any activity related to the award; and
    (b) If you are convicted of a criminal drug offense resulting from a 
violation occurring during the conduct of any award activity, you will 
report the conviction:
    (1) In writing.
    (2) Within 10 calendar days of the conviction.
    (3) To the National Science Foundation awarding official or other 
designee for each award that you currently have, unless Sec. 630.301 or 
the award document designates a central point for the receipt of the 
notices. When notice is made to a central point, it must include the 
identification number(s) of each affected award.



Sec. 630.301  [Reserved]



   Subpart D_Responsibilities of National Science Foundation Awarding 
                                Officials



Sec. 630.400  What are my responsibilities as a(n) National Science 
Foundation awarding official?

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



           Subpart E_Violations of this Part and Consequences



Sec. 630.500  How are violations of this part determined for recipients
other than individuals?

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

[[Page 166]]



Sec. 630.505  How are violations of this part determined for recipients 
who are individuals?

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



Sec. 630.510  What actions will the Federal Government take against a 
recipient determined to have violated this part?

    If a recipient is determined to have violated this part, as 
described in Sec. 630.500 or Sec. 630.505, the National Science 
Foundation may take one or more of the following actions--
    (a) Suspension of payments under the award;
    (b) Suspension or termination of the award; and
    (c) Suspension or debarment of the recipient under 45 CFR Part 620, 
for a period not to exceed five years.



Sec. 630.515  Are there any exceptions to those actions?

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



                          Subpart F_Definitions



Sec. 630.605  Award.

    Award means an award of financial assistance by the National Science 
Foundation or other Federal agency directly to a recipient.
    (a) The term award includes:
    (1) A Federal grant or cooperative agreement, in the form of money 
or property in lieu of money.
    (2) A block grant or a grant in an entitlement program, whether or 
not the grant is exempted from coverage under the Governmentwide rule 45 
CFR Part 602 that implements OMB Circular A-102 (for availability, see 5 
CFR 1310.3) and specifies uniform administrative requirements.
    (b) The term award does not include:
    (1) Technical assistance that provides services instead of money.
    (2) Loans.
    (3) Loan guarantees.
    (4) Interest subsidies.
    (5) Insurance.
    (6) Direct appropriations.
    (7) Veterans' benefits to individuals (i.e., any benefit to 
veterans, their families, or survivors by virtue of the service of a 
veteran in the Armed Forces of the United States).



Sec. 630.610  Controlled substance.

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



Sec. 630.615  Conviction.

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



Sec. 630.620  Cooperative agreement.

    Cooperative agreement means an award of financial assistance that, 
consistent with 31 U.S.C. 6305, is used to enter into the same kind of 
relationship as a grant (see definition of grant in Sec. 630.650), 
except that substantial involvement is expected between the Federal 
agency and the recipient when carrying out the activity contemplated by 
the award. The term does not include cooperative research and 
development agreements as defined in 15 U.S.C. 3710a.



Sec. 630.625  Criminal drug statute.

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

[[Page 167]]



Sec. 630.630  Debarment.

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



Sec. 630.635  Drug-free workplace.

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



Sec. 630.640  Employee.

    (a) Employee means the employee of a recipient directly engaged in 
the performance of work under the award, including--
    (1) All direct charge employees;
    (2) All indirect charge employees, unless their impact or 
involvement in the performance of work under the award is insignificant 
to the performance of the award; and
    (3) Temporary personnel and consultants who are directly engaged in 
the performance of work under the award and who are on the recipient's 
payroll.
    (b) This definition does not include workers not on the payroll of 
the recipient (e.g., volunteers, even if used to meet a matching 
requirement; consultants or independent contractors not on the payroll; 
or employees of subrecipients or subcontractors in covered workplaces).



Sec. 630.645  Federal agency or agency.

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



Sec. 630.650  Grant.

    Grant means an award of financial assistance that, consistent with 
31 U.S.C. 6304, is used to enter into a relationship--
    (a) The principal purpose of which is to transfer a thing of value 
to the recipient to carry out a public purpose of support or stimulation 
authorized by a law of the United States, rather than to acquire 
property or services for the Federal Government's direct benefit or use; 
and
    (b) In which substantial involvement is not expected between the 
Federal agency and the recipient when carrying out the activity 
contemplated by the award.



Sec. 630.655  Individual.

    Individual means a natural person.



Sec. 630.660  Recipient.

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



Sec. 630.665  State.

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



Sec. 630.670  Suspension.

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

[[Page 168]]

12689. Suspension of a recipient is a distinct and separate action from 
suspension of an award or suspension of payments under an award.



PART 640_COMPLIANCE WITH THE NATIONAL ENVIRONMENTAL POLICY ACT--Table of
Contents




Sec.
640.1 Purpose.
640.2 Committee on Environmental Matters.
640.3 Actions requiring an environmental assessment and categorical 
          exclusions.
640.4 Responsibilities and procedures for preparation of an 
          environmental assessment.
640.5 Responsibilities and procedures for preparation of an 
          environmental impact statement.

    Authority: NEPA; the Environmental Quality Improvement Act of 1970, 
as amended (42 U.S.C. 4371 et seq.); sec. 309 of the Clean Air Act, as 
amended (42 U.S.C. 7609); E.O. 11514, ``Protection and Enhancement of 
Environmental Quality'' (March 5, 1970, as amended by E.O. 11991, May 
24, 1977); and CEQ regulations at 40 CFR Parts 1500 through 1508.

    Source: 45 FR 40, Jan. 2, 1980, unless otherwise noted.



Sec. 640.1  Purpose.

    The purpose of this regulation is to adopt NSF procedures to 
supplement regulations at 40 CFR parts 1500 through 1508 (hereafter 
referred to as ``CEQ regulations'').



Sec. 640.2  Committee on Environmental Matters.

    (a) There is established an NSF Committee on Environmental Matters 
(hereafter referred to as the Committee) to consist of one 
representative from each directorate. The General Counsel, or his or her 
designee, shall serve as Chairman. At the discretion of the Chairman and 
with the concurrence of the Committee, additional members may be 
appointed.
    (b) All incoming correspondence from CEQ and other agencies 
concerning matters related to NEPA, including draft and final 
environmental impact statements, shall be brought to the attention of 
the Chairman. The Chairman will prepare or, at his or her discretion, 
coordinate replies to such correspondence.
    (c) The Committee shall meet regularly to discuss NSF policies and 
practices regarding NEPA, and make recommendations on the need for or 
adequacy of environmental impact assessments or statements.
    (d) With respect to actions of NSF, the Committee will:
    (1) Maintain a list of actions for which environmental impact 
statements are being prepared.
    (2) Revise this list at regular intervals, based on input from the 
directorates, and send revisions to CEQ.
    (3) Make the list available for public inspection on request.
    (4) Maintain a list of environmental impact assessments.
    (5) Maintain a file of draft and final environmental impact 
statements.
    (e) The Committee and/or the Chairman will perform such additional 
functions as are set forth elsewhere in this part and in other NSF 
issuances.

[45 FR 40, Jan. 2, 1980, as amended at 49 FR 37596, Sept. 25, 1984; 59 
FR 37438, July 22, 1994]



Sec. 640.3  Actions requiring an environmental assessment and categorical 
exclusions.

    (a) The types of actions to be classified as ``major Federal 
actions'' subject to NEPA procedures are discussed generally in the CEQ 
regulations. Paragraph (b) of this section describes various classes of 
NSF actions that normally require the preparation of an environmental 
assessment or an EIS, and those classes that are categorically excluded. 
(Categorical exclusion is defined at 40 CFR 1508.4.) The word 
``normally'' is stressed; there may be individual cases in which 
specific factors require contrary action. NSF directorates and offices 
are responsible for identifying situations in which an environmental 
assessment or an EIS should be prepared even if not normally required by 
paragraph (b) of this paragraph.
    (b) Most NSF awards support individual scientific research projects 
and are not ``major Federal actions significantly affecting the quality 
of the human environment'' except in the sense that the long term effect 
of the accumulation of human knowledge is likely to affect the quality 
of the human environment. However, such

[[Page 169]]

long term effects are basically speculative and unknowable in advance; 
thus they normally do not provide a sufficient basis for classifying 
research as subject to NEPA (See 40 CFR 1508.8) and are categorically 
excluded from an environmental assessment. Nevertheless, in some cases 
the actual procedures used in carrying out the research may have 
potential environmental effects, particularly where the project requires 
construction of facilities or major disturbance of the local environment 
brought about by blasting, drilling, excavating, or other means. 
Accordingly, except as provided in paragraph (c) of this section, the 
following types of activities require at least an environmental 
assessment:
    (1) Cases where developmental efforts are supported, if the project 
supports the transition of a particular technology from the development 
stage to large-scale commercial utilization.
    (2) Any project supporting construction, other than interior 
remodelling.
    (3) Cases where field work affecting the natural environment will be 
conducted.
    (4) Any project that will involve drilling of the earth, excavation, 
explosives, weather modification, or other techniques that may alter a 
local environment.
    (5) Any project that provides for the testing and release of 
biological-control agents for purposes of ecosystem manipulation and 
assessment of short- and long-term effects of major ecosystem 
perturbation.
    (c) Directorates having divisions or programs with a substantial 
number of projects that fall within categories (3), (4), and (5) in (b) 
of this section, are authorized to issue supplemental guidelines to 
Division Directors and Program Officers establishing subcategories of 
research methodologies or techniques for which environmental assessments 
need not be prepared. For example, if a program regularly supports 
research that involves noninvasive techniques or nonharmful invasive 
techniques (such as taking water or soil samples, or collecting non-
protected species of flora and fauna) the directorate may determine that 
field projects otherwise coming under paragraph (b)(3) of this section 
which involve only the use of such techniques do not require an 
environmental assessment. However, any such guidelines must be submitted 
to the Chairman for approval.
    (d) In some cases within the categories listed in paragraph (b) of 
this section, it will be evident at the outset or after the assessment 
process is begun that an EIS should be prepared. In such cases an 
assessment need not be completed, but the process of preparing an EIS 
(See Sec. 640.5, of this part) should be started.



Sec. 640.4  Responsibilities and procedures for preparation of an 
environmental assessment.

    (a) Program Officers, as the first point of decision in the review 
process, shall determine into which category incoming proposals fall, 
according to the criteria set forth in Sec. 640.3 of this part. 
Notwithstanding this responsibility of the Program Officer, the 
appropriate Division Director, Assistant Director, and other reviewing 
policy officials must assure that adequate analysis is being made.
    (b) Where appropriate, programs, divisions, or directorates will 
advise prospective applicants in program announcements, requests for 
proposals, and other NSF-prepared brochures of the requirement to 
furnish information regarding any environmental impact that the 
applicant's proposed study may have.
    (c) Should an environmental assessment be required, the directorate 
supporting the activity shall be responsible for its preparation. The 
grant or contract applicant may be asked to submit additional 
information in order that a reasonable and accurate assessment may be 
made. Though no specific format for an environmental assessment is 
prescribed, it shall be a separate document suitable for public review 
and shall serve the purpose described in 40 CFR 1508.9, which is quoted 
in full as follows:

                 Section 1508.9 Environmental Assessment

    ``Environmental Assessment'':
    (a) Means a concise public document for which a Federal agency is 
responsible that serves to:
    (1) Briefly provide sufficient evidence and analysis for determining 
whether to prepare

[[Page 170]]

an environmental impact statement or a finding of no significant impact.
    (2) Aid an agency's compliance with the Act when no environmental 
impact statement is necessary.
    (3) Facilitate preparation of a statement when one is necessary.
    (b) Shall include brief discussions of the need for the proposal, of 
alternatives as required by section 102(2)(E), of the environmental 
impacts of the proposed action and alternatives, and a listing of 
agencies and persons consulted.

    (d) A copy of the assessment or drafts shall accompany the 
appropriate proposal throughout the NSF internal review and approval 
process. At the option of the directorate preparing the assessment, a 
draft may be submitted to the Committee for its review and comments. 
Prior to an award decision, one copy of all completed assessments shall 
be sent to the Chairman for review and updating of the Committee listing 
of assessments.
    (e) If, on the basis of an environmental assessment, it is 
determined that an EIS is not required, a Finding of No Significant 
Impact (FNSI) as described in 40 CFR 1508.13 will be prepared. The FNSI 
shall include the environmental assessment or a summary of it and be 
available to the public from the Committee. If the proposed action is 
one that normally requires an EIS, is closely similar to an action 
normally requiring an EIS, or is without precedent, the FNSI shall be 
made available for a 30 day public review period before any action is 
taken.



Sec. 640.5  Responsibilities and procedures for preparation of an
environmental impact statement.

    (a) If initially or after an environmental assessment has been 
completed, it is determined that an environmental impact statement 
should be prepared, it and other related documentation will be prepared 
by the directorate responsible for the action in accordance with section 
102(2)(c) of the Act, this part, and the CEQ regulations. The 
responsible directorate will be in close communication with the grant or 
contract applicant and may have to rely extensively on his or her input 
in preparing the EIS. However, once a document is prepared it shall be 
submitted to the Chairman who, after such review by the Committee as is 
deemed necessary by the Chairman, shall transmit the document as 
required by CEQ regulations and this part. If the Chairman considers a 
document unsatisfactory, he or she shall return it to the responsible 
directorate for revision prior to an award decision.
    Specifically, the following steps, as discussed in the CEQ 
regulations, will be followed in preparing an EIS:
    (1) A notice of intent to prepare a draft EIS will be published as 
described in 40 CFR 1501.7.
    (2) Scoping, as described in 40 CFR 1501.7, will be conducted.
    (3) The format and contents of the draft and final EIS shall be as 
discussed in 40 CFR part 1502.
    (4) Comments on the draft EIS shall be invited as set forth in 40 
CFR 1503.1. The minimum period to be afforded for comments on a draft 
EIS shall be 45 days, unless a lesser period is necessary to comply with 
other specific statutory requirements or in case of emergency 
circumstances, as described in 40 CFR 1506.11.
    (5) The requirements of 40 CFR 1506.9 for filing of documents with 
the Environmental Protection Agency shall be followed.
    (6) The responsible directorate shall examine carefully the basis on 
which supportive studies have been conducted to assure that such studies 
are objective and comprehensive in scope and in depth.
    (7) The Act requires that the decisionmaking involved ``utilize a 
systematic, interdisciplinary approach that will insure the integrated 
use of the natural and social sciences and the environmental design 
arts.'' If such disciplines are not present on the NSF staff, 
appropriate use should be made of personnel of Federal, State, and local 
agencies, universities, non-profit organizations, or private industry.
    (8) A copy of the draft EIS or the final EIS (or a summary, if the 
size of the EIS does not make this practical) shall be included in and 
accompany the appropriate proposal throughout the NSF internal review 
and approval process.
    (b)(1) 40 CFR 1506.1 describes the types of actions that should not 
be taken during the NEPA process. Such

[[Page 171]]

actions shall be avoided by NSF personnel during the process of 
preparation of an EIS and for a period of thirty days after the final 
EIS is filed with EPA, unless such actions are necessary to comply with 
other specific statutory requirements.
    (2) 40 CFR 1506.10 also places certain limitations on the timing of 
agency decisions on taking ``major Federal actions''. In some cases the 
actual ``decision point'' may be more clear-cut than others. If the 
``action'' that necessitated the preparation of an EIS is one that would 
be carried out under grant, contract, or cooperative agreement, then the 
award shall not be made before the times set forth in 40 CFR 1506.10, 
unless such action is necessary to comply with other specific statutory 
requirements, or as exceptions are needed as provided in 40 CFR 1506.10, 
1506.11, or 1507.3. However, an award for preliminary planning proposals 
may be made before such times if it is so structured as to require 
further NSF approvals for funding the actual actions that might 
adversely affect the quality of the human environment. In such cases, 
the subsequent approvals for funding these actions will be considered 
the ``decision''. This is consistent with the requirement that 
environmental considerations undergo concurrent review with all other 
project planning considerations.
    (c) In appropriate cases, if the action involves other agencies, the 
Chairman may agree to designate another agency as ``lead agency'' and to 
cooperate as discussed in 40 CFR 1501.5 and 1501.6. In such cases, the 
Chairman has authority to alter the procedures described in (a) to the 
extent they are inconsistent with functions assigned to NSF under the 
``cooperating agency'' arrangements.
    (d) A public record of decision stating what the decision was; 
identifying alternatives that were considered, including the 
environmentally preferable one(s); discussing any national policy 
considerations that entered into the decision; and summarizing a 
monitoring and enforcement program if applicable for mitigation, will be 
prepared. This record of decision will be prepared at the time the 
decision is made, or if appropriate, when the agency makes its 
recommendation for action to Congress. (See 40 CFR 1505.2.)



PART 641_ENVIRONMENTAL ASSESSMENT PROCEDURES FOR PROPOSED NATIONAL SCIENCE
FOUNDATION ACTIONS IN ANTARCTICA--Table of Contents




Sec.
641.10 Purpose.
641.11 Policy.
641.12 Applicability.
641.13 Right of action.
641.14 Definitions.
641.15 Preliminary environmental review.
641.16 Preparation of environmental documents, generally.
641.17 Initial environmental evaluation.
641.18 Comprehensive environmental evaluation.
641.19 Modification of environmental documents.
641.20 Notification of the availability of environmental documents and 
          other information.
641.21 Monitoring.
641.22 Cases of emergency.

    Authority: E.O. 12114, 44 FR 1957, 3 CFR 1979 Comp., p. 356.

    Source: 57 FR 40339, Sept. 3, 1992, unless otherwise noted.



Sec. 641.10  Purpose.

    These procedures are designed to elicit and evaluate information 
that will inform the National Science Foundation (NSF) of the potential 
environmental consequences of proposed U.S. Antarctic Program (USAP) 
actions, so that relevant environmental considerations are taken into 
account by decisionmakers before reaching final decisions on whether or 
how to proceed with proposed actions. These procedures are consistent 
with and implement the requirements of:
    (a) Executive Order 12114 as it relates to NSF's Antarctic 
activities, and
    (b) the environmental assessment provisions of the Protocol on 
Environmental Protection to the Antarctic Treaty.



Sec. 641.11  Policy.

    It is the policy of NSF to use all practicable means, consistent 
with its authority, to ensure that potential environmental effects of 
actions undertaken by NSF in Antarctica, either

[[Page 172]]

independently or in cooperation with another country, are appropriately 
identified and considered during the decisionmaking process, and that 
appropriate environmental safeguards which would limit, mitigate or 
prevent adverse impacts on the Antarctic environment are identified.



Sec. 641.12  Applicability.

    The requirements set forth in this part apply to all proposed 
projects, programs and actions authorized or approved by, or subject to 
the control and responsibility of NSF that may have an impact on the 
Antarctic environment.



Sec. 641.13  Right of action

    The procedures set forth in this part establish internal procedures 
to be followed by NSF in considering the potential environmental effects 
of actions taken in Antarctica. Nothing in this part shall be construed 
to create a cause of action.



Sec. 641.14  Definitions.

    As used in these procedures, the term:
    (a) Action means a project, program or other activity, including the 
adoption of an official policy or formal plan, that is undertaken, 
authorized, adopted or approved by, or subject to the control or 
responsibility of NSF, the decommissioning of a physical plant or 
facility, and any change in the scope or intensity of a project, program 
or action.
    (b) Antarctica means the area south of 60 degrees south latitude.
    (c) Antarctic environment means the natural and physical environment 
of Antarctica and its dependent and associated ecosystems, but excludes 
social, economic and other environments.
    (d) Antarctic Treaty Consultative Meeting means a meeting of the 
Parties to the Antarctic Treaty, held pursuant to Article IX(1) of the 
Treaty.
    (e) Comprehensive Environmental Evaluation or CEE means a study of 
the reasonably foreseeable potential effects of a proposed action on the 
antarctic environment, prepared in accordance with the provisions of 
Sec. 641.18, and includes all comments thereon received during the 
comment period described in Sec. 641.18(c). A Comprehensive 
Environmental Evaluation shall constitute an environmental impact 
statement for purposes of the Executive Order.
    (f) Environmental Action Memorandum means a document briefly 
describing a proposed action and its potential impacts, if any, on the 
antarctic environment prepared by the responsible official when he or 
she determines that a proposed action will have less than a minor or 
transitory impact on the Antarctic environment.
    (g) Environmental document means an initial environmental evaluation 
or a comprehensive environmental evaluation.
    (h) Environmental review means the environmental review required by 
the provisions of this part, and includes preliminary environmental 
review and preparation of an environmental document, and review by the 
parties to the Protocol, and committees established under the Protocol 
for that purpose, and the public, as applicable.
    (i) Executive Order means Executive Order 12114, Environmental 
Effects Abroad of Major Federal Actions, 44 FR 1957.
    (j) Initial Environmental Evaluation or IEE means a study of the 
reasonably foreseeable potential effects of a proposed action on the 
antarctic environment, prepared in accordance with the provisions of 
Sec. 641.17.
    (k) Preliminary environmental review means the environmental review 
described in Sec. 641.15(a).
    (l) Protocol means the Protocol on Environmental Protection to the 
Antarctic Treaty, adopted on October 4, 1991, in Madrid, at the fourth 
session of the Eleventh Special Antarctic Treaty Consultative Meeting 
and signed by the United States on that date, and all annexes thereto.
    (m) Responsible official means the Director of the Office of Polar 
Programs, or any NSF employee(s) designated by the Director to be 
principally responsible for the preparation of environmental action 
memoranda or environmental documents under this part.
    (n) Treaty means the Antarctic Treaty signed in Washington, D.C., on 
December 1, 1959, T.I.A.S No. 4780.

[57 FR 40339, Sept. 3, 1992, as amended at 59 FR 37438, July 22, 1994]

[[Page 173]]



Sec. 641.15  Preliminary environmental review.

    (a) The responsible official shall be notified early in the general 
planning process of actions proposed by USAP components that may have 
impacts on the Antarctic environment, so that environmental review may 
be integrated into the planning and decisionmaking processes. The 
responsible official shall conduct a preliminary environmental review of 
each action, including consideration of the potential direct and 
reasonably foreseeable indirect effects of a proposed action on the 
Antarctic environment.
    (b) If, on the basis of the preliminary environmental review, the 
responsible official determines that an action will have less than a 
minor or transitory impact on the Antarctic environment, he will prepare 
an Environmental Action Memorandum briefly summarizing the environmental 
issues considered and conclusions drawn from the review. No further 
environmental review shall be necessary.



Sec. 641.16  Preparation of environmental documents, generally.

    (a) Preparation of an environmental document. If the responsible 
official determines, either initially or on the basis of a preliminary 
environmental review, that a proposed action may have at least a minor 
or transitory impact on the Antarctic environment, he will prepare an 
environmental document in accordance with the provisions of this part. 
In making this determination, the responsible official should consider 
whether and to what degree the proposed action:
    (1) Has the potential to adversely affect the Antarctic environment;
    (2) May adversely affect climate and weather patterns;
    (3) May adversely affect air or water quality;
    (4) May affect atmospheric, terrestrial (including aquatic), glacial 
or marine environments;
    (5) May detrimentally affect the distribution, abundance or 
productivity or species, or populations of species of fauna and flora;
    (6) May further jeopardize endangered or threatened species or 
populations of such species;
    (7) May degrade, or pose substantial risk to, areas of biological, 
scientific, historic, aesthetic or wilderness significance;
    (8) Has highly uncertain environmental effects, or involves unique 
or unknown environmental risks; or
    (9) Together with other actions, the effects of any one of which is 
individually insignificant, may have at least minor or transitory 
cumulative environmental effects.
    (b) Prior assessments. Notwithstanding the provisions of Sec. 
641.16(a), if (1) An environmental document (including a generic or 
programmatic CEE) or its equivalent has been prepared for a particular 
type of action; (2) That document includes an analysis of potential 
environmental effects that are directly relevant to the potential 
effects of the proposed action, taking in account factors such as the 
similarity of the actions and of the locations within which they take 
place; and (3) There are no potential site specific or other impacts 
that would require further evaluation, then a new environmental document 
need not be prepared. Instead, the responsible official shall prepare an 
Environmental Action Memorandum for the proposed action, cross-
referencing the previously prepared environmental document.
    (c) Exclusions. NSF has determined that the following actions will 
have less than a minor or transitory impact on the Antarctic 
environment, and are not subject to the procedures set forth in this 
part, except to the extent provided herein:
    (1) Scientific research activities involving:
    (i) Low volume collection of biological or geologic specimens, 
provided no more mammals or birds are taken than can normally be 
replaced by natural reproduction in the following season;
    (ii) Small-scale detonation of explosives in connection with seismic 
research conducted in the continental interior or Antarctica where there 
will be no potential for impact on native flora and fauna;
    (iii) Use of weather/research balloons, research rockets, and 
automatic weather stations that are to be retrieved; and

[[Page 174]]

    (iv) Use of radioisotopes, provided such use complies with 
applicable laws and regulations, and with NSF procedures for handling 
and disposing of radioisotopes.
    (2) Interior remodelling and renovation of existing facilities.

Notwithstanding the foregoing, if information developed during the 
planning of any of the actions described in this paragraph (c) indicates 
the possibility that the action may have at least a minor or transitory 
impact on the Antarctic environment, the environmental effects of the 
action shall be reviewed to determine the need for the preparation of an 
environmental document.
    (d) Coordination with other committees, offices and federal 
agencies. The responsible official shall notify NSF's Committee of 
Environmental Matters when he intends to prepare an environmental 
document, and will coordinate preparation of the document with those 
entities. Responsibility for preparation of the environmental document 
rests primarily with the responsible official, but, as soon as is 
feasible, he should consult with and encourage the participation of 
other knowledgeable individuals within NSF, and, where appropriate, with 
other individuals, government agencies and entities with relevant 
knowledge and expertise.
    (e) Type of environmental document. The type of environmental 
document required under this part depends on the nature of the proposed 
action under consideration. An IEE must be prepared for proposed actions 
which the responsible official concludes may have at least a minor or 
transitory impact on the Antarctic environment and for which a CEE is 
not prepared. A CEE must be prepared if an IEE indicates, or if it is 
otherwise determined, that a proposed action is likely to have more than 
a minor or transitory impact on the Antarctic environment.
    (f) Obligation of funds. Because of logistic constraints (i.e., 
constraints due to transportation difficulties, inaccessibility of 
Antarctic bases for much of the year, and the need to obtain items or 
materials requiring long lead times), it may not be possible to complete 
the environmental review of a proposed action before funds must be 
committed and/or disbursed. In such cases, funds for the proposed action 
may be committed and/or disbursed, provided:
    (1) The appropriate environmental review is completed before 
implementation of the proposed action in Antarctica, and
    (2) Implementation plans for the proposed action will be modified or 
canceled, if appropriate, in light of the completed environmental review 
(including public comments, if applicable).

[57 FR 40339, Sept. 3, 1992, as amended at 59 FR 37438, July 22, 1994]



Sec. 641.17  Initial environmental evaluation.

    (a) Contents. An IEE shall contain sufficient detail to assess 
whether a proposed action may have more than a minor or transitory 
impact on the Antarctic environment, and shall include the following 
information:
    (1) A description of the proposed action, including its purpose, 
location, duration and intensity; and
    (2) Consideration of alternatives to the proposed action and any 
impacts that the proposed action may have on the Antarctic environment, 
including cumulative impacts in light of existing and known planned 
actions and existing information on such actions.
    (b) Further environmental review. If an IEE indicates that a 
proposed action is likely to have no more than a minor or transitory 
impact on the Antarctic environment, no further environmental review of 
the action is necessary provided that appropriate procedures, which may 
include monitoring, are put in place to assess and verify the impact of 
the action.
    (c) Availability to public. An annual list of IEEs and a description 
of any decisions taken in consequence thereof shall be provided to the 
Department of State for circulation to all Parties to the Protocol and 
to organizations or committees established pursuant to the Protocol or 
the Treaty, as required. The Environmental Officer, Division of Polar 
Programs, shall also make the list and copies of final IEEs available to 
the public upon request.

[[Page 175]]



Sec. 641.18  Comprehensive environmental evaluation.

    (a) Scoping. If it is determined that a CEE will be prepared, the 
responsible official shall publish a notice of intent to prepare a CEE 
in the Federal Register, inviting interested persons and government 
agencies to participate in the process of identifying significant issues 
relating to the proposed action and determining the scope of the issues 
to be addressed in the CEE.
    (b) Contents of CEE. A CEE shall be a concise and analytical 
document, prepared in accordance with the range of relevant issues 
identified in the scoping process. It shall contain sufficient 
information to permit informed consideration of the reasonably 
foreseeable potential environmental effects of a proposed action and 
possible alternatives to that proposed action. Such information shall 
include the following:
    (1) A description of the proposed action including its purpose, 
location, duration and intensity;
    (2) A description of the initial base-line environmental state with 
which predicted changes are to be compared, and a prediction of the 
future environmental state in the absence of the proposed action;
    (3) A description of the methods and data used to forecast the 
potential impacts of the proposed action;
    (4) An estimate of the nature, extent, duration and intensity of the 
likely direct potential impacts of the proposed action;
    (5) A consideration of the potential indirect or second order 
impacts from the proposed action;
    (6) A consideration of potential cumulative impacts of the proposed 
action in light of existing activities and other known planned actions 
and available information on those actions;
    (7) A description of possible alternatives to the proposed action, 
including the alternative of not proceeding, and the potential 
consequences of those alternatives, in sufficient detail to allow a 
clear basis for choice among the alternatives and the proposed action;
    (8) Identification of measures, including monitoring, that could be 
employed to minimize, mitigate or prevent potential impacts of the 
proposed action, detect unforeseen impacts, provide early warning of any 
adverse effects, and carry out prompt and effective response to 
accidents;
    (9) Identification of unavoidable potential impacts of the proposed 
action;
    (10) Consideration of the potential effects of the proposed action 
on the conduct of scientific research and on other existing uses and 
values;
    (11) Identification of gaps in knowledge and uncertainties 
encountered in compiling the information required by this paragraph (b);
    (12) A non-technical summary of the information included in the CEE; 
and
    (13) The name and address of the person and/or organization which 
prepared the CEE, and the address to which comments thereon should be 
directed.
    (c) Circulation of draft CEE. A draft of each CEE shall be provided 
to the Department of State for circulation to all Parties to the 
Protocol and to organizations or committees established pursuant to the 
Protocol or Treaty, as required by the Protocol, and shall be made 
publicly available. Notice of such public availability shall be 
published in the Federal Register. All such parties shall have a period 
of not less than ninety (90) days within which to review and comment 
upon the draft CEE.
    (d) Final CEE. A final CEE shall address, and shall include or 
summarize, comments received on the draft CEE. The final CEE, notice of 
any decisions related thereto, and any evaluation of the significance of 
the predicted impacts in relation to the advantages of the proposed 
action shall be provided to the Department of State for circulation to 
all Parties to the Protocol, and shall be available to the public upon 
request, at least sixty (60) days prior to the commencement of the 
proposed activity in Antarctica. Notice of such public availability 
shall be published in the Federal Register.
    (e) Implementation of proposed action. No final decision shall be 
taken to proceed in Antarctica with an action for which a final CEE is 
required until after the earlier of:
    (1) The first Antarctic Treaty Consultative Meeting taking place at 
least one hundred and twenty days after circulation of the draft CEE, or

[[Page 176]]

    (2) Fifteen months following the circulation of the draft CEE.



Sec. 641.19  Modification of environmental documents.

    The responsible official should revise or supplement an 
environmental document if there is a change in a proposed action that 
may have more than a minor or transitory effect on the antarctic 
environment, or if there are new circumstances or information that 
indicate the action may have impacts not anticipated in the original 
environmental document.



Sec. 641.20  Notification of the availability of environmental documents
and other information.

    The Environmental Officer, Office of Polar Programs, shall make 
Environmental Action Memoranda, environmental documents and final data 
obtained under Sec. 641.21, available to the public upon request. 
However, notice of such availability need not be given, except as 
specifically provided in this part.

[57 FR 40339, Sept. 3, 1992, as amended at 59 FR 37438, July 22, 1994]



Sec. 641.21  Monitoring.

    Scientific, analytic and/or reporting procedures shall be put in 
place, including appropriate monitoring of key environmental indicators, 
to assess and verify the potential environmental impacts of actions 
which are the subject of a CEE. All proposed actions for which an 
environmental document has been prepared shall include procedures 
designed to provide a regular and verifiable record of the actual 
impacts of those actions, in order, inter alia, to
    (a) Enable assessments to be made of the extent to which such 
impacts are consistent with the Protocol; and
    (b) Provide information useful for minimizing or mitigating those 
impacts, and, where appropriate, information on the need for suspension, 
cancellation or modification of the action.



Sec. 641.22  Cases of emergency.

    This part shall not apply to actions taken in cases of emergency 
relating to the safety of human life or of ships, aircraft or equipment 
and facilities of high value, or the protection of the environment which 
require an action to be taken without completion of the environmental 
review required by this part. Notice of any such actions which would 
otherwise have required the preparation of a CEE shall be provided 
immediately to the Department of State for circulation to all Parties to 
the Protocol and to committees and organizations established pursuant to 
the Treaty or Protocol, as required. A description of the emergency 
action undertaken shall also be provided to the Department of State for 
appropriate circulation within ninety days of the action.



PART 650_PATENTS--Table of Contents




Sec.
650.1 Scope of part.
650.2 National Science Foundation patent policy.
650.3 Source of authority.
650.4 Standard patent rights clause.
650.5 Special patent provisions.
650.6 Awards not primarily for research.
650.7 Awards affected by international agreements.
650.8 Retention of rights by inventor.
650.9 Unwanted inventions.
650.10 Inventions also supported by another Federal agency.
650.11 Utilization reports.
650.12 Waivers and approvals.
650.13 Exercise of march-in rights.
650.14 Request for conveyance of title to NSF.
650.15 Appeals.
650.16 Background rights.
650.17 Subcontracts.
650.18 Delegation of authority.
650.19 Electronic invention handling.

Appendix A to Part 650--Optional Format for Confirmatory License

    Authority: 35 U.S.C. 200-212, 42 U.S.C. 1870(e) and 1871; and the 
Presidential Memorandum entitled ``Government Patent Policy'', issued 
February 18, 1983.

    Source: 57 FR 18053, Apr. 28, 1992, unless otherwise noted.



Sec. 650.1  Scope of part.

    This part contains the policies, procedures, and clauses that govern 
allocation of rights to inventions made in performance of NSF-assisted 
research. It applies to all current and future funding agreements 
entered into by the Foundation that relate to performance of scientific 
or engineering research.

[[Page 177]]

As stated in the NSF Acquisition Regulation (chapter 25 of title 48 of 
the Code of Federal Regulations), this part applies to contracts as well 
as to grants and cooperative agreements.



Sec. 650.2  National Science Foundation patent policy.

    As authorized by the National Science Board at its 230th meeting, 
October 15-16, 1981, the Director of the National Science Foundation has 
adopted the following statement of NSF patent policy.
    (a) In accordance with the Bayh-Dole Act and the Presidential 
Memorandum entitled ``Government Patent Policy'' issued February 18, 
1983, the Foundation will use the Patent Rights clause prescribed by the 
Department of Commerce in all its funding agreements for the performance 
of experimental, developmental, or research work, including awards made 
to foreign entities, unless the Foundation determines that some other 
provision would better serve the purposes of that Act or the interests 
of the United States and the general public.
    (b) In funding agreements covered by a treaty or agreement that 
provides that an international organization or foreign government, 
research institute, or inventor will own or share patent rights, the 
Foundation will acquire such patent rights as are necessary to comply 
with the applicable treaty or agreement.
    (c) If an awardee elects not to retain rights to an invention, the 
Foundation will allow the inventor to retain the principal patent rights 
unless the awardee, or the inventor's employer if other than the 
awardee, shows that it would be harmed by that action.
    (d) The Foundation will normally allow any patent rights not wanted 
by the awardee or inventor to be dedicated to the public through 
publication in scientific journals or as a statutory invention 
registration. However, if another Federal agency is known to be 
interested in the relevant technology, the Foundation may give it an 
opportunity to review and patent the invention so long as that does not 
inhibit the dissemination of the research results to the scientific 
community.



Sec. 650.3  Source of authority.

    (a) 35 U.S.C. 200-212, commonly called the Bayh-Dole Act, as amended 
by title V of Public Law 98-620 (98 stat. 3335, 3364). That law controls 
the allocation of rights to inventions made by employees of small 
business firms and domestic nonprofit organizations, including 
universities, during federally-supported experimentation, research, or 
development. Government-wide implementing regulations are contained in 
part 401 of title 37 of the Code of Federal Regulations.
    (b) Section 11(e) of the National Science Foundation Act of 1950, as 
amended, (42 U.S.C. 1870(e)) provides that the Foundation shall have the 
authority to do all things necessary to carry out the provisions of this 
Act, including, but without being limited thereto, the authority--to 
acquire by purchase, lease, loan, gift, or condemnation, and to hold and 
dispose of by grant, sale, lease, or loan, real and personal property of 
all kinds necessary for, or resulting from, the exercise of authority 
granted by this Act.
    (c) Section 12 of the NSF Act (42 U.S.C. 1871) provides that each 
contract or other arrangement executed pursuant to this Act which 
relates to scientific research shall contain provisions governing the 
disposition of inventions produced thereunder in a manner calculated to 
protect the public interest and the equities of the individual or 
organization with which the contract or other arrangement is executed.
    (d) The Presidential Memorandum entitled ``Government Patent 
Policy'' issued February 18, 1983, directs Federal agencies, to the 
extent permitted by law, to apply to all research performers the 
policies of the Bayh-Dole Act. Under the provisions of the National 
Science Foundation Act quoted above, the Foundation is permitted to 
apply the Bayh-Dole policies without restriction.



Sec. 650.4  Standard patent rights clause.

    (a) The following Patent Rights clause will be used in every funding 
agreement awarded by the Foundation that relates to scientific or 
engineering research unless a special patent clause has been negotiated 
(see Sec. 650.5).

[[Page 178]]

                      Patent Rights (August, 2005)

    (a) Definitions--(1) Invention means any invention or discovery 
which is or may be patentable or otherwise protectable under title 35 of 
the United States Code, to any novel variety of plant which is or may be 
protected under the Plant Variety Protection Act (7 U.S.C. 2321 et 
seq.).
    (2) Subject invention means any invention of the grantee conceived 
or first actually reduced to practice in the performance of work under 
this grant, provided that in the case of a variety of plant, the date of 
determination (as defined in section 41(d) of the Plant Variety 
Protection Act (7 U.S.C. 2401(d)) must also occur during the period of 
grant performance.
    (3) Practical application means to manufacture in the case of a 
composition or product, to practice in the case of a process or method, 
or to operate in the case of a machine or system; and, in each case, 
under such conditions as to establish that the invention is being 
utilized and that its benefits are to the extent permitted by law or 
Government regulations available to the public on reasonable terms.
    (4) Made when used in relation to any invention means the conception 
or first actual reduction to practice of such invention.
    (5) Small business firm means a domestic small business concern as 
defined at section 2 of Public Law 85-536 (15 U.S.C. 632) and 
implementing regulations of the Administrator of the Small Business 
Administration. For the purpose of this Patents Rights clause, the size 
standard for small business concerns involved in Government procurement 
and subcontracting at 13 CFR 121.3-8 and 13 CFR 121.3-12, respectively, 
will be used.
    (6) Nonprofit organization means a domestic university or other 
institution of higher education or an organization of the type described 
in section 501(c)(3) of the Internal Revenue Code of 1954 (26 U.S.C. 
501(c)) and exempt from taxation under section 501(a) of the Internal 
Revenue Code (26 U.S.C. 501(a)) or any domestic nonprofit scientific or 
educational organization qualified under a State nonprofit organization 
statute.
    (b) Allocation of Principal Rights. The grantee may retain the 
entire right, title, and interest throughout the world to each subject 
invention subject to the provisions of this Patents Rights clause and 35 
U.S.C. 203. With respect to any subject invention in which the grantee 
retains title, the Federal Government shall have a nonexclusive, 
nontransferable, irrevocable, paid-up license to practice or have 
practiced for or on behalf of the United States the subject invention 
throughout the world. If the award indicates it is subject to an 
identified international agreement or treaty, the National Science 
Foundation (NSF) also has the right to direct the grantee to convey to 
any foreign participant such patent rights to subject inventions as are 
required to comply with that agreement or treaty.
    (c) Invention Disclosure, Election of Title and Filing of Patent 
Applications by Grantee. (1) The grantee will disclose each subject 
invention to NSF within two months after the inventor discloses it in 
writing to grantee personnel responsible for the administration of 
patent matters. The disclosure to NSF will be submitted via the iEdison 
Invention Information Management System maintained by the National 
Institutes of Health and shall identify the grant under which the 
invention was made and the inventor(s). It shall be sufficiently 
complete in technical detail to convey a clear understanding of the 
nature, purpose, operation, and, to the extent known, the physical, 
chemical, biological or electrical characteristics of the invention. The 
disclosure shall also identify any publication, on sale or public use of 
the invention and whether a manuscript describing the invention has been 
submitted for publication and, if so, whether it has been accepted for 
publication at the time of disclosure. In addition, after disclosure to 
NSF, the grantee will promptly notify NSF of the acceptance of any 
manuscript describing the invention for publication or of any on sale or 
public use planned by the grantee.
    (2) The grantee will elect in writing whether or not to retain title 
to any such invention by notifying NSF within two years of disclosure to 
NSF. However, in any case where publication, on sale, or public use has 
initiated the one year statutory period wherein valid patent protection 
can still be obtained in the United States, the period for election of 
title may be shortened by NSF to a date that is no more than 60 days 
prior to the end of the statutory period.
    (3) The grantee will file its initial patent application on an 
invention to which it elects to retain title within one year after 
election of title or, if earlier, prior to the end of any statutory 
period wherein valid patent protection can be obtained in the United 
States after a publication, on sale, or public use. The grantee will 
file patent applications in additional countries or international patent 
offices within either ten months of the corresponding initial patent 
application, or six months from the date when permission is granted by 
the Commissioner of Patents and Trademarks to file foreign patent 
applications when such filing has been prohibited by a Secrecy Order.
    (4) Requests for extension of the time for disclosure to NSF, 
election, and filing under subparagraphs (c) (1), (2), and (3) of this 
clause may, at the discretion of NSF, be granted.
    (d) Conditions When the Government May Obtain Title. The grantee 
will convey to NSF, upon written request, title to any subject 
invention:

[[Page 179]]

    (1) If the grantee fails to disclose or elect the subject invention 
within the times specified in paragraph (c) above, or elects not to 
retain title; provided that NSF may only request title within 60 days 
after learning of the failure of the grantee to disclose or elect within 
the specified times.
    (2) In those countries in which the grantee fails to file patent 
applications within the times specified in paragraph (c) above; 
provided, however, that if the grantee has filed a patent application in 
a country after the times specified in paragraph (c) above, but prior to 
its receipt of the written request of NSF, the grantee shall continue to 
retain title in that country.
    (3) In any country in which the grantee decides not to continue the 
prosecution of any application for, to pay the maintenance fees on, or 
defend in a reexamination or opposition proceeding on, a patent on a 
subject invention.
    (e) Minimum Rights to Grantee. (1) The grantee will retain a 
nonexclusive royalty-free license throughout the world in each subject 
invention to which the Government obtains title, except if the grantee 
fails to disclose the subject invention within the times specified in 
paragraph (c) above. The grantee's license extends to its domestic 
subsidiaries and affiliates, if any, within the corporate structure of 
which the grantee is a party and includes the right to grant sublicenses 
of the same scope to the extent the grantee was legally obligated to do 
so at the time the grant was awarded. The license is transferable only 
with the approval of NSF except when transferred to the successor of 
that part of the grantee's business to which the invention pertains.
    (2) The grantee's domestic license may be revoked or modified by NSF 
to the extent necessary to achieve expeditious practical application of 
the subject invention pursuant to an application for an exclusive 
license submitted in accordance with applicable provisions at 37 CFR 
part 404. This license will not be revoked in that field of use or the 
geographical areas in which the grantee has achieved practical 
application and continues to make the benefits of the invention 
reasonably accessible to the public. The license in any foreign country 
may be revoked or modified at the discretion of NSF to the extent the 
grantee, its licensees, or its domestic subsidiaries or affiliates have 
failed to achieve practical application in that foreign country.
    (3) Before revocation or modification of the license, NSF will 
furnish the grantee a written notice of its intention to revoke or 
modify the license, and the grantee will be allowed thirty days (or such 
other time as may be authorized by NSF for good cause shown by the 
grantee) after the notice to show cause why the license should not be 
revoked or modified. The grantee has the right to appeal, in accordance 
with applicable regulations in 37 CFR part 404 concerning the licensing 
of Government-owned inventions, any decision concerning the revocation 
or modification of its license.
    (f) Grantee Action to Protect Government's Interest. (1) The grantee 
agrees to execute or to have executed and promptly deliver to NSF all 
instruments necessary to:
    (i) Establish or confirm the rights the Government has throughout 
the world in those subject inventions for which the grantee retains 
title, and
    (ii) Convey title to NSF when requested under paragraph (d) above, 
and to enable the Government to obtain patent protection throughout the 
world in that subject invention.
    (2) The grantee agrees to require, by written agreement, its 
employees, other than clerical and non-technical employees, to disclose 
promptly in writing to personnel identified as responsible for the 
administration of patent matters and in a format suggested by the 
grantee each subject invention made under this grant in order that the 
grantee can comply with the disclosure provisions of paragraph (c) 
above, and to execute all papers necessary to file patent applications 
on subject inventions and to establish the Government's rights in the 
subject inventions. The disclosure format should require, at a minimum, 
the information requested by paragraph (c)(1) above. The grantee shall 
instruct such employees through the employee agreements or other 
suitable educational programs on the importance of reporting inventions 
in sufficient time to permit the filing of patent applications prior to 
U.S. or foreign statutory bars.
    (3) The grantee will notify NSF of any decision not to continue 
prosecution of a patent application, pay maintenance fees, or defend in 
a reexamination or opposition proceeding on a patent, in any country, 
not less than thirty days before the expiration of the response period 
required by the relevant patent office.
    (4) The grantee agrees to include, within the specification of any 
United States patent application and any patent issuing thereon covering 
a subject invention, the following statement: ``This invention was made 
with Government support under (identify the grant) awarded by the 
National Science Foundation. The Government has certain rights in this 
invention.''
    (5) The grantee or its representative will complete, execute, and 
submit electronically to NSF via the iEdison Invention Information 
Management System maintained by the National Institutes of Health a 
confirmation of a License to the United States Government and the page 
of a United States patent application that contains the Federal support 
clause within two months of filing any domestic or foreign patent 
application.

[[Page 180]]

    (g) Subcontracts. (1) The grantee will include this Patents Rights 
clause, suitably modified to identify the parties, in all subcontracts, 
regardless of tier, for experimental, developmental, or research work. 
The subcontractor will retain all rights provided for the grantee in 
this Patents Rights clause, and the grantee will not, as part of the 
consideration for awarding the subcontract, obtain rights in the 
subcontractor's subject inventions.
    (2) In the case of subcontracts, at any tier, when the prime award 
by the Foundation was a contract (but not a grant or cooperative 
agreement), NSF, subcontractor, and contractor agree that the mutual 
obligations of the parties created by this Patents Rights clause 
constitute a contract between the subcontractor and the Foundation with 
respect to those matters covered by this Patents Rights clause.
    (h) Reporting on Utilization of Subject Inventions. The grantee 
agrees to submit on request periodic reports no more frequently than 
annually on the utilization of a subject invention or on efforts at 
obtaining such utilization that are being made by the grantee or its 
licensees or assignees. Such reports shall include information regarding 
the status of development, date of first commercial sale or use, gross 
royalties received by the grantee, and such other data and information 
as NSF may reasonably specify. The grantee also agrees to provide 
additional reports in connection with any march-in proceeding undertaken 
by NSF in accordance with paragraph (j) of this Patents Rights clause. 
As required by 35 U.S.C. 202(c)(5), NSF agrees it will not disclose such 
information to persons outside the Government without the permission of 
the grantee.
    (i) Preference for United States Industry. Notwithstanding any other 
provision of this Patents Rights clause, the grantee agrees that neither 
it nor any assignee will grant to any person the exclusive right to use 
or sell any subject invention in the United States unless such person 
agrees that any products embodying the subject invention or produced 
through the use of the subject invention will be manufactured 
substantially in the United States. However, in individual cases, the 
requirement for such an agreement may be waived by NSF upon a showing by 
the grantee or its assignee that reasonable but unsuccessful efforts 
have been made to grant licenses on similar terms to potential licensees 
that would be likely to manufacture substantially in the United States 
or that under the circumstances domestic manufacture is not commercially 
feasible.
    (j) March-in Rights. The grantee agrees that with respect to any 
subject invention in which it has acquired title, NSF has the right in 
accordance with procedures at 37 CFR 401.6 and NSF regulations at 45 CFR 
650.13 to require the grantee, an assignee or exclusive licensee of a 
subject invention to grant a nonexclusive, partially exclusive, or 
exclusive license in any field of use to a responsible applicant or 
applicants, upon terms that are reasonable under the circumstances, and 
if the grantee, assignee, or exclusive licensee refuses such a request, 
NSF has the right to grant such a license itself if NSF determines that:
    (1) Such action is necessary because the grantee or assignee has not 
taken, or is not expected to take within a reasonable time, effective 
steps to achieve practical application of the subject invention in such 
field of use;
    (2) Such action is necessary to alleviate health or safety needs 
which are not reasonably satisfied by the grantee, assignee, or their 
licensees;
    (3) Such action is necessary to meet requirements for public use 
specified by Federal regulations and such requirements are not 
reasonably satisfied by the grantee, assignee, or licensee; or
    (4) Such action is necessary because the agreement required by 
paragraph (i) of this Patents Rights clause has not been obtained or 
waived or because a licensee of the exclusive right to use or sell any 
subject invention in the United States is in breach of such agreement.
    (k) Special Provisions for Grants with Nonprofit Organizations. If 
the grantee is a nonprofit organization, it agrees that:
    (1) Rights to a subject invention in the United States may not be 
assigned without the approval of NSF, except where such assignment is 
made to an organization which has as one of its primary functions the 
management of inventions, provided that such assignee will be subject to 
the same provisions as the grantee;
    (2) The grantee will share royalties collected on a subject 
invention with the inventor, including Federal employee co-inventors 
(when NSF deems it appropriate) when the subject invention is assigned 
in accordance with 35 U.S.C. 202(e) and 37 CFR 401.10;
    (3) The balance of any royalties or income earned by the grantee 
with respect to subject inventions, after payment of expenses (including 
payments to inventors) incidental to the administration of subject 
inventions, will be utilized for the support of scientific research or 
education; and
    (4) It will make efforts that are reasonable under the circumstances 
to attract licensees of subject inventions that are small business firms 
and that it will give preference to a small business firm if the grantee 
determines that the small business firm has a plan or proposal for 
marketing the invention which, if executed, is equally likely to bring 
the invention to practical application as any plans or proposals from 
applicants that are not small business firms; provided that the

[[Page 181]]

grantee is also satisfied that the small business firm has the 
capability and resources to carry out it plan or proposal. The decision 
whether to give a preference in any specific case will be at the 
discretion of the grantee. However, the grantee agrees that the 
Secretary of Commerce may review the grantee's licensing program and 
decisions regarding small business applicants, and the grantee will 
negotiate changes to its licensing policies, procedures, or practices 
with the Secretary when the Secretary's review discloses that the 
grantee could take reasonable steps to implement more effectively the 
requirements of this paragraph (k)(4).
    (1) Communications. All communications required by this Patents 
Rights clause must be submitted through the iEdison Invention 
Information Management System maintained by the National Institutes of 
Health unless prior permission for another form of submission is 
obtained from the Patent Assistant at patents@nsf.gov or at Office of 
the General Counsel, National Science Foundation, 4201 Wilson Boulevard, 
Arlington, VA 22230.

    (b) When the above Patent Rights clause is used in a funding 
agreement other than a grant, ``grant'' and ``grantee'' may be replaced 
by ``contract'' and ``contractor'' or other appropriate terms.

(Approved by the Office of Management and Budget under control number 
3145-0084)

[57 FR 18053, Apr. 28, 1992, as amended at 59 FR 37438, July 22, 1994; 
62 FR 49938, Sept. 24, 1997; 70 FR 43071, July 26, 2005]



Sec. 650.5  Special patent provisions.

    At the request of the prospective awardee or on recommendation from 
NSF staff, a Grants or Contracts Officer, with the concurrence of the 
cognizant Program Manager, may negotiate special patent provisions when 
he or she determines that exceptional circumstances require restriction 
or elimination of the right of a prospective awardee to retain title to 
any subject invention in order to better promote the policy and 
objectives of chapter 18 of title 35 of the United States Code or the 
National Science Foundation Act. The Grants or Contracts Officer will 
prepare the written determination required by Sec. 401.3(e) of title 37 
of the Code of Federal Regulations and assure that appropriate reports 
are made to the Secretary of Commerce and Chief Counsel for Advocacy of 
the Small Business Administration as required in Sec. 401.3(f). Unless 
doing so would be inconsistent with an obligation imposed on the 
Foundation by statute, international agreement, or pact with other 
participants in or supporters of the research, every special patent 
provision will allow the awardee, after an invention has been made, to 
request that it be allowed to retain principal rights to that invention 
under Sec. 650.12(e) of this regulation.



Sec. 650.6  Awards not primarily for research.

    (a) Awards not primarily intended to support scientific or 
engineering research need contain no patent provision. Examples of such 
awards are travel and conference grants.
    (b) NSF fellowships and traineeships are primarily intended to 
support education or training, not particular research. Therefore, in 
accordance with section 212 of title 35 of the United States Code, the 
Foundation claims no rights to inventions made by fellows or trainees. 
The following provision will be included in each fellowship or 
traineeship program announcement and made part of the award:

                      Intellectual Property Rights

    The National Science Foundation claims no rights to any inventions 
or writings that might result from its fellowship or traineeship awards. 
However, fellows and trainees should be aware that the NSF, another 
Federal agency, or some private party may acquire such rights through 
other support for particular research. Also, fellows and trainees should 
note their obligation to include an Acknowledgment and Disclaimer in any 
publication.



Sec. 650.7  Awards affected by international agreements.

    (a) Some NSF awards are made as part of international cooperative 
research programs. The agreements or treaties underlying many of these 
programs require an allocation of patent rights different from that 
provided by the Patent Rights clause in Sec. 650.4(a). Therefore, as 
permitted by Sec. 401.5(d) of the implementing regulations for the 
Bayh-Dole Act (37 CFR 401.5(d)), paragraph (b) of the standard Patent 
Rights clause in Sec. 650.4(a) has been modified to provide that the 
Foundation may require the grantee to transfer to a foreign government 
or research performer

[[Page 182]]

such rights in any subject invention as are contemplated in the 
international agreement. The award instrument will identify the 
applicable agreement or treaty.
    (b) After an invention is disclosed to the Patent Assistant, the 
recipient of an award subject to an international agreement will be 
informed as to what rights, if any, it must transfer to foreign 
participants. Recipients may also ask the Program Manager to provide 
them with copies of the identified international agreements before or 
after accepting an award.



Sec. 650.8  Retention of rights by inventor.

    If an awardee elects not to retain rights to an invention, the 
inventor may request the NSF Patent Assistant for permission to retain 
principal patent rights. Such requests should be made as soon as 
possible after the awardee notifies the Patent Assistant that it does 
not want to patent the invention. Such requests will normally be granted 
unless either the awardee or the employer of the inventor shows that it 
would be harmed by that action. As required by Sec. 401.9 of the 
implementing regulations for the Bayh-Dole Act (37 CFR 401.9), the 
inventor will be subject to the same conditions that the awardee would 
have been, except that the special restrictions imposed on nonprofit 
organizations will not apply to the inventor.



Sec. 650.9  Unwanted inventions.

    (a) The Foundation will normally allow any patent rights not wanted 
by the awardee or inventor to be dedicated to the public through 
publication in scientific and engineering journals or as a statutory 
invention registration under section 157 of title 35 of the United 
States Code. Except as provided in paragraph (b) of this section, the 
NSF Patent Assistant will acknowledge a negative election by encouraging 
the awardee and inventor to promptly make all research results available 
to the scientific and engineering community.
    (b) If the NSF Patent Assistant believes that another Federal agency 
is interested in the relevant technology, he or she may, after receiving 
the awardee's election not to patent and ascertaining that the inventor 
also does not want to patent, send a copy of the invention disclosure to 
that agency to give it an opportunity to review and patent the 
invention. Unless the agency expresses an interest in the invention 
within thirty days, the Patent Assistant will acknowledge the awardee's 
negative election by encouraging prompt publication of all research 
results. If the agency does express an interest in patenting the 
invention, the Patent Assistant will transfer to it all rights to the 
invention.



Sec. 650.10  Inventions also supported by another Federal Agency.

    Section 401.13(a) of the implementing regulation for the Bayh-Dole 
Act (37 CFR 401.13(a)) provides that in the event that an invention is 
made under funding agreements of more than one federal agency, the 
agencies involved will, at the request of the grantee or contractor or 
on their own initiative, designate one agency to be responsible for the 
administration of the invention. Whenever the NSF Patent Assistant finds 
that another agency also supported an NSF subject invention, he or she 
will consult with the grantee or contractor and appropriate personnel in 
the other agency to determine if a single agency should be designated to 
administer the Government's rights in the invention. The Patent 
Assistant may transfer to, or accept from, any other Federal agency, 
responsibility for administering a jointly-supported invention.



Sec. 650.11  Utilization reports.

    Paragraph (h) of the standard Patent Rights clause set forth in 
Sec. 650.4 obliges grantees ``to submit on request periodic reports no 
more frequently than annually on the utilization of a subject invention 
or on efforts at obtaining such utilization''. At this time, the 
Foundation does not plan to request such reports except in connection 
with march-in investigations conducted under Sec. 650.13. This section 
will be amended to describe periodic reporting requirements if such are 
ever established.

[57 FR 18053, Apr. 28, 1992, as amended at 59 FR 37438, July 22, 1994]

[[Page 183]]



Sec. 650.12  Waivers and approvals.

    (a) Requests for extension of time to disclose to the NSF Patent 
Assistant, make an election to retain title to, or file a patent on a 
subject invention will be granted by the NSF Patent Assistant unless he 
or she determines that such an extension would either imperil the 
securing of valid patent protection or unacceptably restrict the 
publication of the results of the NSF-supported research.
    (b) Approval of assignments by nonprofit organizations (required by 
subparagraph (k)(1) of the Patent Rights clause in Sec. 650.4(a)) will 
be given by the Patent Assistant unless he or she determines that the 
interests of the United States Government will be adversely affected by 
such assignment.
    (c) Approval of long-term exclusive licensing of NSF-assisted 
inventions by nonprofit organizations (restricted by earlier versions of 
the NSF Patents Rights clause and by pre-Bayh-Dole Institutional Patent 
Agreements and waiver conditions) will be given by the Patent Assistant 
unless he or she determines that the interests of the United States 
Government will be adversely affected by such waiver.
    (d) The preference for United States industry imposed by paragraph 
(i) of the Patent Rights clause in Sec. 650.4(a) may be waived by the 
NSF Patent Assistant as provided in that paragraph.
    (e) Special restrictions on or limitation of the right of an awardee 
to retain title to subject inventions imposed under Sec. 650.5 of this 
regulation may be waived by the Grants or Contracting Officer whenever 
he or she determines, after consultation with the cognizant Program 
Manager, that the reasons for imposing the restrictions or limitations 
do not require their application to a particular invention.
    (f) Requests for approvals and waiver under this section should be 
addressed to the NSF Patent Assistant as provided in paragraph (1) of 
the Patent Rights clause in Sec. 650.4(a). Requests under paragraph (a) 
of this section for extensions of time to disclose, elect, or file may 
be made by telephone or electronic mail as well as in writing. A written 
request for extension of time to disclose, elect, or file can be assumed 
to have been approved unless the Patent Assistant replies negatively 
within ten business days of the date such request was mailed, 
telecopied, or otherwise dispatched. Requests for approvals or waivers 
under paragraphs (b), (c), (d), and (e) of this section must be in 
writing and should explain why an approval or waiver is justified under 
the stated criteria. The requester will be given a written explanation 
of the reasons for denial of a request covered by this section.



Sec. 650.13  Exercise of march-in rights.

    (a) The procedures established by this section supplement those 
prescribed by Sec. 401.6 of the implementing regulation for the Bayh-
Dole Act (37 CFR Sec. 401.6) and apply to all march-in rights held by 
NSF including those resulting from funding agreements not covered by the 
Bayh-Dole Act.
    (b) Petitions requesting that the NSF exercise a march-in right 
should be addressed to the NSF Patent Assistant. Such petitions should:
    (1) Identify the patent or patent application involved and the 
relevant fields of use of the invention;
    (2) State the grounds for the proposed march-in;
    (3) Supply evidence that one or more of the four conditions creating 
a march-in right (lack of practical application, unsatisfied health or 
safety needs, unmet requirements for public use, or failure to prefer 
United States industry) is present; and
    (4) Explain what action by the Foundation is necessary to correct 
that condition.
    (c) If evidence received from a petitioner or from the Foundation's 
administration of the Patent Rights clause indicates that one or more of 
the four conditions creating a march-in right might exist, the NSF 
Patent Assistant will informally review the matter as provided in Sec. 
401.6(b) of the implementing regulation. If that informal review 
indicates that one or more of the four conditions creating a march-in 
right probably exists, the Patent Assistant will initiate a formal 
march-in proceeding by issuing a written notice to the patent holder. 
That notice will provide all the information required by

[[Page 184]]

Sec. 401.6(c) of the implementing regulation. The patent holder may 
submit information and argument in opposition to the proposed march-in 
in person, in writing, or through a representative.
    (d) If the NSF Patent Assistant determines that a genuine dispute 
over material facts exists, he or she will identify the disputed facts 
and notify the NSF General Counsel. The General Counsel will create a 
cross-directorate fact-finding panel, which will establish its own fact-
finding procedures within the requirements of Sec. 401.6(e) of the 
implementing regulation based on the dimensions of the particular 
dispute. The Patent Assistant will serve as secretary to the panel, but 
will not take part in its deliberations. Written findings of facts will 
be submitted to the General Counsel, sent by certified mail to the 
patent holder, and made available to all other interested parties.
    (e) The NSF General Counsel will determine whether and how the 
Foundation should exercise a march-in right as provided in Sec. 
401.6(g) of the implementing regulation.



Sec. 650.14  Request for conveyance of title to NSF.

    (a) The procedures established by this section apply to the exercise 
of the Foundation's right under paragraph (d) of the Patent Rights 
clause in Sec. 650.4(a) to request conveyance of title to a subject 
invention if certain conditions exist.
    (b) The NSF Patent Assistant may request the recipient of an NSF 
award to convey to the Foundation or a designee title in one or more 
countries to any invention to which the awardee has elected not to 
retain title. The NSF Patent Assistant may request immediate conveyance 
of title to a subject invention if the awardee fails (1) to submit a 
timely invention disclosure, (2) to make a timely election to retain 
patent rights, or (3) to file a timely patent application; but only if 
he or she determines that such action is required to preserve patent 
rights.
    (c) The NSF Patent Assistant will informally review any apparent 
failure by an awardee to comply with the requirements of paragraph (c) 
of the Patent Rights clause in Sec. 650.4(a). The interested 
institution, the inventor, the patent holder, and any other interested 
party will be given an opportunity to explain why a particular invention 
was not disclosed, why an election was not made, or why a patent 
application was not filed. If the Patent Assistant determines that a 
genuine dispute over material facts exists, a cross-directorate fact-
finding panel will be appointed by the General Counsel. The panel will 
establish its own fact-finding procedures based on the dimensions of the 
particular dispute. Written findings of facts will be submitted to the 
General Counsel, sent by certified mail to the patent holder, and made 
available to all other interested parties.
    (d) The NSF General Counsel will determine whether the Foundation 
should request conveyance of title or if it should retain title obtained 
under Sec. 650.14(b).



Sec. 650.15  Appeals.

    (a) All actions by the NSF Patent Assistant under Sec. 650.8 
denying an inventor's request to retain rights to a subject invention, 
under Sec. 650.12 denying a request for waiver, or under Sec. 
650.14(d) denying the existence of a material dispute may be appealed to 
the Director of the NSF Division of Grants and Contracts by an affected 
party within thirty days. A request under Sec. 650.14(b) to immediately 
convey title to the Foundation may be appealed to the DGC Director by 
the title holder within five days.
    (b) All actions by a Grants and Agreements Officer or Contracting 
Officer refusing to eliminate restrictions on or limitation of the right 
of an awardee to retain title to subject inventions imposed under Sec. 
650.5 of this regulation may be appealed to the Director of the NSF 
Division of Contracts, Policy, and Oversight (CPO) by an affected party 
within thirty days.
    (c) A decision by the General Counsel to exercise a march-in right 
or to request conveyance of title may be appealed by the patent holder 
or any affected licensee to the NSF Deputy Director within thirty days. 
When a march-in was initiated in response to a petition, the General 
Counsel's decision not to exercise a march-in right or to exercise it in 
a manner different from that requested in the petition

[[Page 185]]

may be appealed by the petitioner to the NSF Deputy Director within 
thirty days.
    (d) In reviewing the actions of the NSF Patent Assistant, a Grants 
and Agreements Officer, a Contracting Officer, or the General Counsel, 
the CPO Director or NSF Deputy Director will consider both the factual 
and legal basis for the action or determination and its consistency with 
the policies and objectives of the Foundation and, if applicable, the 
Bayh-Dole Act (35 U.S.C. 200-212) and implementing regulations at part 
401 of title 37 of the Code of Federal Regulations.

[57 FR 18053, Apr. 28, 1992, as amended at 61 FR 51022, Sept. 30, 1996]



Sec. 650.16  Background rights.

    The Foundation will acquire rights to a research performer's pre-
existing technology only in exceptional circumstances where, due to the 
nature of the research being supported, the Foundation requires greater 
control over resulting inventions. The NSF Grants or Contracts Officer, 
with concurrence of the cognizant Program Manager, will negotiate a 
background rights provision. If the affected awardee is a small business 
firm or nonprofit organization, the provision will conform to the 
requirements of the Bayh-Dole Act (35 U.S.C. 202(f)) as implemented by 
37 CFR 401.12).



Sec. 650.17  Subcontracts.

    As provided in paragraph (g) of the Patent Rights clause in Sec. 
650.4(a), awardees should normally use that clause in all subcontracts. 
At the request of the awardee or subcontractor or on recommendation from 
NSF staff, the cognizant Grants or Contracts Officer may direct the 
awardee to insert into subcontracts relating to scientific research a 
special patent provision negotiated under Sec. 650.5.



Sec. 650.18  Delegation of authority.

    The General Counsel is responsible for implementing this regulation 
and is authorized to make any exceptions to or extensions of the NSF 
Patent Policy as may be required by particular circumstances. The 
General Counsel will designate the NSF Patent Assistant and that 
individual is authorized to carry out the functions assigned by this 
regulation.



Sec. 650.19  Electronic invention handling.

    (a) Grantees must use the iEdison Invention Information Management 
System maintained by the National Institutes of Health to disclose NSF 
subject inventions. Detailed instructions for use of that system are 
provided at http://s-edison.info.nih.gov/iEdison/ and should be followed 
for NSF subject inventions except that:
    (1) All communications required must be provided electronically as a 
PDF or TIFF file through iEdison unless prior permission for another 
form of submission is obtained from the Patent Assistant.
    (2) NSF does not require either an Annual Utilization Report or a 
Final Invention Statement and Certification.
    (b) Questions on use of iEdison and requests for permission to 
submit material in other forms may be sent to the NSF Patent Assistant 
at patents@nsf.gov or at Office of the General Counsel, National Science 
Foundation, 4201 Wilson Boulevard, Arlington, VA 22230.

[70 FR 43071, July 26, 2005]



  Sec. Appendix A to Part 650--Optional Format for Confirmatory License

    The following format may be used for the confirmatory license to the 
Government required by subparagraph (f)(5) of the Patent Rights clause 
in Sec. 650.4(a). Any equivalent instrument may also be used.

                 License to the United States Government

    This instrument confirms to the United States Government, as 
represented by the National Science Foundation, an irrevocable, 
nonexclusive, nontransferable, royalty-free license to practice or have 
practiced on its behalf throughout the world the following subject 
invention:

(invention title)

(inventor[s] name[s])

(patent application number and filing date)

(country, if other than United States)

(NSF Disclosure No.).

    This subject invention was made with NSF support through:

(grant or contract number)

(grantee or contractor).

    Principal rights to this subject invention have been left with the 
licensor.


[[Page 186]]


 Signed:________________________________________________________________

 Name:__________________________________________________________________

 Title:_________________________________________________________________

 Date:__________________________________________________________________

    Accepted on behalf of the Government:

                          NSF Patent Assistant

 Date:__________________________________________________________________



PART 660_INTERGOVERNMENTAL REVIEW OF THE NATIONAL SCIENCE FOUNDATION 
PROGRAMS AND ACTIVITIES--Table of Contents




Sec.
660.1 What is the purpose of these regulations?
660.2 What definitions apply to these regulations?
660.3 What programs and activities of the Foundation are subject to 
          these regulations?
660.4 [Reserved]
660.5 What is the Director's obligation with respect to Federal 
          interagency coordination?
660.6 What procedures apply to the selection of programs and activities 
          under these regulations?
660.7 How does the Director communicate with state and local officials 
          concerning the Foundation's programs and activities?
660.8 How does the Director provide states an opportunity to comment on 
          proposed Federal financial assistance and direct Federal 
          development?
660.9 How does the Director receive and respond to comments?
660.10 How does the Director make efforts to accommodate 
          intergovernmental concerns?
660.11 What are the Director's obligations in interstate situations?
660.12 [Reserved]
660.13 May the Director waive any provision of these regulations?

    Authority: E.O. 12372, July 14, 1982 (47 FR 30959), as amended Apr. 
8, 1983 (48 FR 15887); and sec. 401 of the Intergovernmental Cooperation 
Act of 1968 and as amended (31 U.S.C. 6506).

    Source: 48 FR 29365, June 24, 1983, unless otherwise noted.



Sec. 660.1  What is the purpose of these regulations?

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



Sec. 660.2  What definitions apply to these regulations?

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



Sec. 660.3  What programs and activities of the Foundation are subject
to these regulations?

    The Director publishes in the Federal Register a list of the 
Foundation's programs and activities that are subject to these 
regulations.



Sec. 660.4  [Reserved]



Sec. 660.5  What is the Director's obligation with respect to Federal 
interagency coordination?

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

[[Page 187]]

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



Sec. 660.6  What procedures apply to the selection of programs and 
activities under these regulations?

    (a) A state may select any program or activity published in the 
Federal Register in accordance with Sec. 660.3 of this part for 
intergovernmental review under these regulations. Each state, before 
selecting programs and activities, shall consult with local elected 
officials.
    (b) Each state that adopts a process shall notify the Director of 
the Foundation's programs and activities selected for that process.
    (c) A state may notify the Director of changes in its selections at 
any time. For each change, the state shall submit to the Director an 
assurance that the state has consulted with elected local elected 
officials regarding the change. The Foundation may establish deadlines 
by which states are required to inform the Director of changes in their 
program selections.
    (d) The Director uses a state's process as soon as feasible, 
depending on individual programs and activities, after the Director is 
notified of its selections.



Sec. 660.7  How does the Director communicate with state and local 
officials concerning the Foundation's programs and activities?

    (a) For those programs and activities covered by a state process 
under Sec. 660.6, the Director, to the extent permitted by law:
    (1) Uses the state process to determine views of state and local 
elected officials; and
    (2) Communicates with state and local elected officials, through the 
state process, as early in a program planning cycle as is reasonably 
feasible to explain specific plans and actions.
    (b) The Director provides notice to directly affected state, 
areawide, regional, and local entities in a state of proposed Federal 
financial assistance or direct Federal development if:
    (1) The state has not adopted a process under the Order; or
    (2) The assistance or development involves a program or activity not 
selected for the state process.

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



Sec. 660.8  How does the Director provide states an opportunity to 
comment on proposed Federal financial assistance and direct 
Federal development?

    (a) Except in unusual circumstances, the Director gives state 
processes or directly affected state, areawide, regional and local 
officials and entities:
    (1) At least 30 days from the date established by the Director to 
comment on proposed Federal financial assistance in covered programs 
(i.e., those referenced in Sec. 660.3) in the form of continuation 
awards that are not peer reviewed; and
    (2) At least 60 days from the date established by the Director to 
comment on proposed direct Federal development or Federal financial 
assistance in covered programs (i.e., those referenced Sec. 660.3) 
other than continuation awards that are not peer reviewed.
    (b) This section also applies to comments in cases in which the 
review, coordination, and communication with the Foundation have been 
delegated.



Sec. 660.9  How does the Director receive and respond to comments?

    (a) The Director follows the procedures in Sec. 660.10 if:
    (1) A state office or official is designated to act as a single 
point of contact between a state process and all Federal agencies, and
    (2) That office or official transmits a state process recommendation 
for a program selected under Sec. 660.6.
    (b)(1) The single point of contact is not obligated to transmit 
comments from state, areawide, regional or local officials and entities 
where there is no state process recommendation.
    (2) If a state process recommendation is transmitted by a single 
point of contact, all comments from state, areawide, regional, and local 
officials and entities that differ from it must also be transmitted.

[[Page 188]]

    (c) If a state has not established a process, or is unable to submit 
a state process recommendation, state, areawide, regional and local 
officials and entities may submit comments either to the applicant or to 
the Foundation.
    (d) If a program or activity is not selected for a state process, 
state, areawide, regional and local officials and entities may submit 
comments either to the applicant or to the Foundation. In addition, if a 
state process recommendation for a nonselected program or activity is 
transmitted to the Foundation by the single point of contact, the 
Director follows the procedures of Sec. 660.10 of this part.
    (e) The Director considers comments which do not constitute a state 
process recommendation submitted under these regulations and for which 
the Director is not required to apply the procedures of Sec. 660.10 of 
this part, when such comments are provided by a single point of contact, 
by the applicant, or directly to the Foundation by a commenting party.



Sec. 660.10  How does the Director make efforts to accommodate 
intergovernmental concerns?

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



Sec. 660.11  What are the Director's obligations in interstate 
situations?

    (a) The Director is responsible for:
    (1) Identifying proposed Federal financial assistance and direct 
Federal development that have an impact on interstate areas;
    (2) Notifying appropriate officials and entities in states which 
have adopted a process and which select the Foundation's program or 
activity.
    (3) Making efforts to identify and notify the affected state, 
areawide, regional, and local officials and entities in those states 
that have not adopted a process under the Order or do not select the 
Foundation's program or activity;
    (4) Responding pursuant to Sec. 660.10 of this part if the Director 
receives a recommendation from a designated areawide agency transmitted 
by a single point of contact, in cases in which the review, 
coordination, and communication with the Foundation have been delegated.
    (b) The Director uses the procedures in Sec. 660.10 if a state 
process provides a state process recommendation to the Foundation 
through a single point of contact.



Sec. 660.12  [Reserved]



Sec. 660.13  May the Director waive any provision of these regulations?

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



PART 670_CONSERVATION OF ANTARCTIC ANIMALS AND PLANTS--Table of Contents




                         Subpart A_Introduction

Sec.
670.1 Purpose of regulations.
670.2 Scope.
670.3 Definitions.

[[Page 189]]

                  Subpart B_Prohibited Acts, Exceptions

670.4 Prohibited acts.
670.5 Exception in extraordinary circumstances.
670.6 Prior possession exception.
670.7 Food exception.
670.8 Foreign permit exception.
670.9 Antarctic Conservation Act enforcement exception.
670.10 [Reserved]

                            Subpart C_Permits

670.11 Applications for permits.
670.12 General issuance criteria.
670.13 Permit administration.
670.14 Conditions of permits.
670.15 Modification, suspension, and revocation.
670.16 [Reserved]

       Subpart D_Native Mammals, Birds, Plants, and Invertebrates

670.17 Specific issuance criteria.
670.18 Content of permit applications.
670.19 Designation of native mammals.
670.20 Designation of native birds.
670.21 Designation of native plants.
670.22 [Reserved]

   Subpart E_Specially Protected Species of Mammals, Birds, and Plants

670.23 Specific issuance criteria.
670.24 Content of permit applications.
670.25 Designation of specially protected species of native mammals, 
          birds, and plants.
670.26 [Reserved]

              Subpart F_Antarctic Specially Protected Areas

670.27 Specific issuance criteria.
670.28 Content of permit applications.
670.29 Designation of Antarctic specially protected areas, specially 
          managed areas and historic sites and monuments.
670.30 [Reserved]

         Subpart G_Import Into and Export From the United States

670.31 Specific issuance criteria for imports.
670.32 Specific issuance criteria for exports.
670.33 Content of permit applications.
670.34 Entry and exit ports.
670.35 [Reserved]

       Subpart H_Introduction of Non-Indigenous Plants and Animals

670.36 Specific issuance criteria.
670.37 Content of permit applications.
670.38 Conditions of permits.
670.39 [Reserved]

    Authority: 16 U.S.C. 2405, as amended.

    Source: 63 FR 50164, Sept. 21, 1998, unless otherwise noted.



                         Subpart A_Introduction



Sec. 670.1  Purpose of regulations.

    The purpose of the regulations in this part is to conserve and 
protect the native mammals, birds, plants, and invertebrates of 
Antarctica and the ecosystem upon which they depend and to implement the 
Antarctic Conservation Act of 1978, Public Law 95-541, as amended by the 
Antarctic Science, Tourism, and Conservation Act of 1996, Public Law 
104-227.



Sec. 670.2  Scope.

    The regulations in this part apply to:
    (a) Taking mammals, birds, or plants native to Antarctica.
    (b) Engaging in harmful interference of mammals, birds, 
invertebrates, or plants native to Antarctica.
    (c) Entering or engaging in activities within Antarctic Specially 
Protected Areas.
    (d) Receiving, acquiring, transporting, offering for sale, selling, 
purchasing, importing, exporting or having custody, control, or 
possession of any mammal, bird, or plant native to Antarctica that was 
taken in violation of the Act.
    (e) Introducing into Antarctica any member of a non-native species.



Sec. 670.3  Definitions.

    In this part:
    Act means the Antarctic Conservation Act of 1978, Public Law 95-541 
(16 U.S.C. 2401 et seq.) as amended by the Antarctic Science, Tourism, 
and Conservation Act of 1996, Public Law 104-227.
    Antarctic Specially Protected Area means an area designated by the 
Antarctic Treaty Parties to protect outstanding environmental, 
scientific, historic, aesthetic, or wilderness values or to protect 
ongoing or planned scientific research, designated in subpart F of this 
part.
    Antarctica means the area south of 60 degrees south latitude.

[[Page 190]]

    Director means the Director of the National Science Foundation, or 
an officer or employee of the Foundation designated by the Director.
    Harmful interference means--
    (a) Flying or landing helicopters or other aircraft in a manner that 
disturbs concentrations of birds or seals;
    (b) Using vehicles or vessels, including hovercraft and small boats, 
in a manner that disturbs concentrations of birds or seals;
    (c) Using explosives or firearms in a manner that disturbs 
concentrations of birds or seals;
    (d) Willfully disturbing breeding or molting birds or concentrations 
of birds or seals by persons on foot;
    (e) Significantly damaging concentrations of native terrestrial 
plants by landing aircraft, driving vehicles, or walking on them, or by 
other means; and
    (f) Any activity that results in the significant adverse 
modification of habitats of any species or population of native mammal, 
native bird, native plant, or native invertebrate.
    Import means to land on, bring into, or introduce into, or attempt 
to land on, bring into or introduce into, any place subject to the 
jurisdiction of the United States, including the 12-mile territorial sea 
of the United States, whether or not such act constitutes an importation 
within the meaning of the customs laws of the United States.
    Management plan means a plan to manage the activities and protect 
the special value or values in an Antarctic Specially Protected Area 
designated by the United States as such a site consistent with plans 
adopted by the Antarctic Treaty Consultative Parties.
    Native bird means any member, at any stage of its life cycle, of any 
species of the class Aves which is indigenous to Antarctica or occurs 
there seasonally through natural migrations, that is designated in 
subpart D of this part. It includes any part, product, egg, or offspring 
of or the dead body or parts thereof excluding fossils.
    Native invertebrate means any terrestrial or freshwater 
invertebrate, at any stage of its life cycle, which is indigenous to 
Antarctica. It includes any part thereof, but excludes fossils.
    Native mammal means any member, at any stage of its life cycle, of 
any species of the class Mammalia, which is indigenous to Antarctica or 
occurs there seasonally through natural migrations, that is designated 
in subpart D of this part. It includes any part, product, offspring of 
or the dead body or parts thereof but excludes fossils.
    Native plant means any terrestrial or freshwater vegetation, 
including bryophytes, lichens, fungi, and algae, at any stage of its 
life cycle which is indigenous to Antarctica that is designated in 
subpart D of this part. It includes seeds and other propagules, or parts 
of such vegetation, but excludes fossils.
    Person has the meaning given that term in section 1 of title 1, 
United States Code, and includes any person subject to the jurisdiction 
of the United States and any department, agency, or other 
instrumentality of the Federal Government or of any State or local 
government.
    Protocol means the Protocol on Environmental Protection to the 
Antarctic Treaty, signed October 4, 1991, in Madrid, and all annexes 
thereto, including any future amendments to which the United States is a 
Party.
    Specially Protected Species means any native species designated as a 
Specially Protected Species that is designated in subpart E of this 
part.
    Take or taking means to kill, injure, capture, handle, or molest a 
native mammal or bird, or to remove or damage such quantities of native 
plants that their local distribution or abundance would be significantly 
affected or to attempt to engage in such conduct.
    Treaty means the Antarctic Treaty signed in Washington, DC on 
December 1, 1959.
    United States means the several states of the Union, the District of 
Columbia, the Commonwealth of Puerto Rico, American Samoa, the Virgin 
Islands, Guam, the Commonwealth of the Northern Mariana Islands, and 
other commonwealth, territory, or possession of the United States.

[[Page 191]]



                  Subpart B_Prohibited Acts, Exceptions



Sec. 670.4  Prohibited acts.

    Unless a permit has been issued pursuant to subpart C of this part 
or unless one of the exceptions stated in Sec. Sec. 670.5 through 670.9 
is applicable, it is unlawful to commit, attempt to commit, or cause to 
be committed any of the acts described in paragraphs (a) through (g) of 
this section.
    (a) Taking of native mammal, bird or plants. It is unlawful for any 
person to take within Antarctica a native mammal, a native bird, or 
native plants.
    (b) Engaging in harmful interference. It is unlawful for any person 
to engage in harmful interference in Antarctica of native mammals, 
native birds, native plants or native invertebrates.
    (c) Entry into Antarctic specially designated areas. It is unlawful 
for any person to enter or engage in activities within any Antarctic 
Specially Protected Area.
    (d) Possession, sale, export, and import of native mammals, birds, 
and plants. It is unlawful for any person to receive, acquire, 
transport, offer for sale, sell, purchase, export, import, or have 
custody, control, or possession of, any native bird, native mammal, or 
native plant which the person knows, or in the exercise of due care 
should have known, was taken in violation of the Act.
    (e) Introduction of non-indigenous animals and plants into 
Antarctica. It is unlawful for any person to introduce into Antarctica 
any animal or plant which is not indigenous to Antarctica or which does 
not occur there seasonally through natural migrations, as specified in 
subpart H of this part, except as provided in Sec. Sec. 670.7 and 
670.8.
    (f) Violations of regulations. It is unlawful for any person to 
violate the regulations set forth in this part.
    (g) Violation of permit conditions. It is unlawful for any person to 
violate any term or condition of any permit issued under subpart C of 
this part.



Sec. 670.5  Exception in extraordinary circumstances.

    (a) Emergency exception. No act described in Sec. 670.4 shall be 
unlawful if the person committing the act reasonably believed that the 
act was committed under emergency circumstances involving the safety of 
human life or of ships, aircraft, or equipment or facilities of high 
value, or the protection of the environment.
    (b) Aiding or salvaging native mammals or native birds. The 
prohibition on taking shall not apply to any taking of native mammals or 
native birds if such action is necessary to:
    (1) Aid a sick, injured or orphaned specimen;
    (2) Dispose of a dead specimen; or
    (3) Salvage a dead specimen which may be useful for scientific 
study.
    (c) Reporting. Any actions taken under the exceptions in this 
section shall be reported promptly to the Director.



Sec. 670.6  Prior possession exception.

    (a) Exception. Section 670.4 shall not apply to:
    (1) any native mammal, bird, or plant which is held in captivity on 
or before October 28, 1978; or
    (2) Any offspring of such mammal, bird, or plant.
    (b) Presumption. With respect to any prohibited act set forth in 
Sec. 670.4 which occurs after April 29, 1979, the Act creates a 
rebuttable presumption that the native mammal, native bird, or native 
plant involved in such act was not held in captivity on or before 
October 28, 1978, or was not an offspring referred to in paragraph (a) 
of this section.



Sec. 670.7  Food exception.

    Paragraph (e) of Sec. 670.4 shall not apply to the introduction of 
animals and plants into Antarctica for use as food as long as animals 
and plants used for this purpose are kept under carefully controlled 
conditions. This exception shall not apply to living species of animals. 
Unconsumed poultry or its parts shall be removed from Antarctica unless 
incinerated, autoclaved or otherwise sterilized.



Sec. 670.8  Foreign permit exception.

    Paragraphs (d) and (e) of Sec. 670.4 shall not apply to 
transporting, carrying, receiving, or possessing native mammals, native 
plants, or native birds or to the introduction of non-indigenous animals

[[Page 192]]

and plants when conducted by an agency of the United States Government 
on behalf of a foreign national operating under a permit issued by a 
foreign government to give effect to the Protocol.



Sec. 670.9  Antarctic Conservation Act enforcement exception.

    Paragraphs (a) through (d) of Sec. 670.4 shall not apply to acts 
carried out by an Antarctic Conservation Act Enforcement Officer 
(designated pursuant to 45 CFR 672.3) if undertaken as part of the 
Antarctic Conservation Act Enforcement Officer's official duties.



Sec. 670.10  [Reserved]



                            Subpart C_Permits



Sec. 670.11  Applications for permits.

    (a) General content of permit applications. All applications for a 
permit shall be dated and signed by the applicant and shall contain the 
following information:
    (1) The name and address of the applicant;
    (i) Where the applicant is an individual, the business or 
institutional affiliation of the applicant must be included; or
    (ii) Where the applicant is a corporation, firm, partnership, or 
institution, or agency, either private or public, the name and address 
of its president or principal officer must be included.
    (2) Where the applicant seeks to engage in a taking,
    (i) The scientific names, numbers, and description of native 
mammals, native birds or native plants to be taken; and
    (ii) Whether the native mammals, birds, or plants, or part of them 
are to be imported into the United States, and if so, their ultimate 
disposition.
    (3) Where the applicant seeks to engage in a harmful interference, 
the scientific names, numbers, and description of native birds or native 
seals to be disturbed; the scientific names, numbers, and description of 
native plants to be damaged; or the scientific names, numbers, and 
description of native invertebrates, native mammals, native plants, or 
native birds whose habitat will be adversely modified;
    (4) A complete description of the location, time period, and manner 
in which the taking or harmful interference would be conducted, 
including the proposed access to the location;
    (5) Where the application is for the introduction of non-indigenous 
plants or animals, the scientific name and the number to be introduced;
    (6) Whether agents as referred to in Sec. 670.13 will be used; and
    (7) The desired effective dates of the permit.
    (b) Content of specific permit applications. In addition to the 
general information required for permit applications set forth in this 
subpart, the applicant must submit additional information relating to 
the specific action for which the permit is being sought. These 
additional requirements are set forth in the sections of this part 
dealing with the subject matter of the permit applications as follows:

Native Mammals, Birds, Plants, and Invertebrates--Section 670.17
Specially Protected Species--Section 670.23
Specially Protected Areas--Section 670.27
Import and Export--Section 670.31
Introduction of Non-Indigenous Plants and Animals--Section 670.36

    (c) Certification. Applications for permits shall include the 
following certification:

    I certify that the information submitted in this application for a 
permit is complete and accurate to the best of my knowledge and belief. 
Any false statement will subject me to the criminal penalties of 18 
U.S.C. 1001.

    (d) Address to which applications should be sent. Each application 
shall be in writing, addressed to:

Permit Officer, Office of Polar Programs, National Science Foundation, 
Room 755, 4201 Wilson Boulevard, Arlington, Virginia 22230.

    (e) Sufficiency of application. The sufficiency of the application 
shall be determined by the Director. The Director may waive any 
requirement for information, or request additional information as 
determined to be relevant to the processing of the application.
    (f) Withdrawal. An applicant may withdraw an application at any 
time.
    (g) Publication of permit applications. The Director shall publish 
notice in the Federal Register of each application

[[Page 193]]

for a permit. The notice shall invite the submission by interested 
parties, within 30 days after the date of publication of the notice, of 
written data, comments, or views with respect to the application. 
Information received by the Director as a part of any application shall 
be available to the public as a matter of public record.



Sec. 670.12  General issuance criteria.

    Upon receipt of a complete and properly executed application for a 
permit and the expiration of the applicable public comment period, the 
Director will decide whether to issue the permit. In making the 
decision, the Director will consider, in addition to the specific 
criteria set forth in the appropriate subparts of this part:
    (a) Whether the authorization requested meets the objectives of the 
Act and the requirements of the regulations in this part;
    (b) The judgment of persons having expertise in matters germane to 
the application; and
    (c) Whether the applicant has failed to disclose material 
information required or has made false statements about any material 
fact in connection with the application.



Sec. 670.13  Permit administration.

    (a) Issuance of the permits. The Director may approve any 
application in whole or part. Permits shall be issued in writing and 
signed by the Director. Each permit may contain such terms and 
conditions as are consistent with the Act and this part.
    (b) Denial. The applicant shall be notified in writing of the denial 
of any permit request or part of a request and of the reason for such 
denial. If authorized in the notice of denial, the applicant may submit 
further information or reasons why the permit should not be denied. Such 
further submissions shall not be considered a new application.
    (c) Amendment of applications or permits. An applicant or permit 
holder desiring to have any term or condition of his application or 
permit modified must submit full justification and supporting 
information in conformance with the provisions of this subpart and the 
subpart governing the activities sought to be carried out under the 
modified permit. Any application for modification of a permit that 
involves a material change beyond the terms originally requested will 
normally be subject to the same procedures as a new application.
    (d) Notice of issuance or denial. Within 10 days after the date of 
the issuance or denial of a permit, the Director shall publish notice of 
the issuance or denial in the Federal Register.
    (e) Agents of the permit holder. The Director may authorize the 
permit holder to designate agents to act on behalf of the permit holder.
    (f) Marine mammals, endangered species, and migratory birds. If the 
Director receives a permit application involving any native mammal which 
is a marine mammal as defined by the Marine Mammal Protection Act of 
1972 (16 U.S.C. 1362(5)), any species which is an endangered or 
threatened species under the Endangered Species Act of 1973 (16 U.S.C. 
1531 et seq.) or any native bird which is protected under the Migratory 
Bird Treaty Act (16 U.S.C. 701 et seq.), the Director shall submit a 
copy of the application to the Secretary of Commerce or to the Secretary 
of the Interior, as appropriate. If the appropriate Secretary determines 
that a permit should not be issued pursuant to any of the cited acts, 
the Director shall not issue a permit. The Director shall inform the 
applicant of any denial by the appropriate Secretary and no further 
action shall be taken on the application. If, however, the appropriate 
Secretary issues a permit pursuant to the requirements of the cited 
acts, the Director still must determine whether the proposed action is 
consistent with the Act and the regulations in this part.



Sec. 670.14  Conditions of permits.

    (a) Possession of permits. Permits issued under the regulations in 
this part, or copies of them, must be in the possession of persons to 
whom they are issued and their agents when conducting the authorized 
action.
    (b) Display of permits. Any permit issued shall be displayed for 
inspection upon request to the Director, designated agents of the 
Director, or any

[[Page 194]]

person with enforcement responsibilities.
    (c) Filing of reports. Permit holders are required to file reports 
of the activities conducted under a permit. Reports shall be submitted 
to the Director not later than June 30 for the preceding 12 months.



Sec. 670.15  Modification, suspension, and revocation.

    (a) The Director may modify, suspend, or revoke, in whole or in 
part, any permit issued under this subpart:
    (1) In order to make the permit consistent with any change to any 
regulation in this part made after the date of issuance of this permit;
    (2) If there is any change in conditions which make the permit 
inconsistent with the purpose of the Act and the regulations in this 
part; or
    (3) In any case in which there has been any violation of any term or 
condition of the permit, any regulation in this part, or any provision 
of the Act.
    (b) Whenever the Director proposes any modifications, suspension, or 
revocation of a permit under this section, the permittee shall be 
afforded opportunity, after due notice, for a hearing by the Director 
with respect to such proposed modification, suspension or revocation. If 
a hearing is requested, the action proposed by the Director shall not 
take effect before a decision is issued by him after the hearing, unless 
the proposed action is taken by the Director to meet an emergency 
situation.
    (c) Notice of the modification, suspension, or revocation of any 
permit by the Director shall be published in the Federal Register, 
within 10 days from the date of the Director's decision.



Sec. 670.16  [Reserved]



       Subpart D_Native Mammals, Birds, Plants, and Invertebrates



Sec. 670.17  Specific issuance criteria.

    With the exception of specially protected species of mammals, birds, 
and plants designated in subpart E of this part, permits to engage in a 
taking or harmful interference:
    (a) May be issued only for the purpose of providing--
    (1) Specimens for scientific study or scientific information; or
    (2) Specimens for museums, zoological gardens, or other educational 
or cultural institutions or uses; or
    (3) For unavoidable consequences of scientific activities or the 
construction and operation of scientific support facilities; and
    (b) Shall ensure, as far as possible, that--
    (1) No more native mammals, birds, or plants are taken than are 
necessary to meet the purposes set forth in paragraph (a) of this 
section;
    (2) No more native mammals or native birds are taken in any year 
than can normally be replaced by net natural reproduction in the 
following breeding season;
    (3) The variety of species and the balance of the natural ecological 
systems within Antarctica are maintained; and
    (4) The authorized taking, transporting, carrying, or shipping of 
any native mammal or bird is carried out in a humane manner.



Sec. 670.18  Content of permit applications.

    In addition to the information required in subpart C of this part, 
an applicant seeking a permit to take a native mammal or native bird 
shall include a complete description of the project including the 
purpose of the proposed taking, the use to be made of the native mammals 
or native birds, and the ultimate disposition of the native mammals and 
birds. An applicant seeking a permit to engage in a harmful interference 
shall include a complete description of the project including the 
purpose of the activity which will result in the harmful interference. 
Sufficient information must be provided to establish that the taking, 
harmful interference, transporting, carrying, or shipping of a native 
mammal or bird shall be humane.



Sec. 670.19  Designation of native mammals.

    The following are designated native mammals:

Pinnipeds:
    Crabeater seal--Lobodon carcinophagus.
    Leopard seal--Hydrurga leptonyx.

[[Page 195]]

    Ross seal--Ommatophoca rossi.\1\
---------------------------------------------------------------------------

    \1\ These species of mammals have been designated as specially 
protected species and are subject to subpart E of this part.
---------------------------------------------------------------------------

    Southern elephant seal--Mirounga leonina.
    Southern fur seals--Arctocephalus spp.\1\
    Weddell seal--Leptonychotes weddelli.
Large Cetaceans (Whales):
    Blue whale--Balaenoptera musculus.
    Fin whale--Balaenoptera physalus.
    Humpback whale--Megaptera novaeangliae.
    Minke whale--Balaenoptera acutrostrata.
    Pygmy blue whale--Balaenoptera musculus brevicauda
    Sei whale--Balaenoptera borealis
    Southern right whale--Balaena glacialis australis
    Sperm whale--Physeter macrocephalus
    Small Cetaceans (Dolphins and porpoises):
    Arnoux's beaked whale--Berardius arnuxii.
    Commerson's dolphin--Cephalorhynchus commersonii
    Dusky dolphin--Lagenorhynchus obscurus
    Hourglass dolphin--Lagenorhynchus cruciger
    Killer whale--Orcinus orca
    Long-finned pilot whale--Globicephala melaena
    Southern bottlenose whale--Hyperoodon planifrons.
    Southern right whale dolphin--Lissodelphis peronii
    Spectacled porpoise--Phocoena dioptrica



Sec. 670.20  Designation of native birds.

    The following are designated native birds:

                                Albatross

    Black-browed--Diomedea melanophris.
    Gray-headed--Diomedea chrysostoma.
    Light-mantled sooty--Phoebetria palpebrata.
    Wandering--Diomedea exulans.

                                 Fulmar

    Northern Giant--Macronectes halli.
    Southern--Fulmarus glacialoides.
    Southern Giant--Macronectes giganteus.

                                  Gull

    Southern Black-backed--Larus dominicanus.

                                 Jaeger

    Parasitic--Stercorarius parasiticus.
    Pomarine--Stercorarius pomarinsus

                                 Penguin

    Adelie--Pygoscelis adeliae.
    Chinstrap--Pygoscelis antarctica.
    Emperor--Aptenodytes forsteri.
    Gentoo--Pygoscelis papua.
    King--Aptenodytes patagonicus.
    Macaroni--Eudyptes chrysolophus.
    Rockhopper--Eudyptes crestatus.

                                 Petrel

    Antarctic--Thalassoica antarctica.
    Black-bellied Storm--Fregetta tropica.
    Blue--Halobaena caerulea.
    Gray--Procellaria cinerea.
    Great-winged--Pterodroma macroptera.
    Kerguelen--Pterodroma brevirostris.
    Mottled--Pterodroma inexpectata.
    Snow--Pagodroma nivea.
    Soft-plumaged--Pterodroma mollis.
    South-Georgia Diving--Pelecanoides georgicus.
    White-bellied Storm--Fregetta grallaria.
    White-chinned--Procellaria aequinoctialis.
    White-headed--Pterodroma lessoni.
    Wilson's Storm--Oceanites oceanicus.

                                 Pigeon

    Cape--Daption capense.

                                 Pintail

    South American Yellow-billed--Anas georgica spinicauda.

                                  Prion

    Antarctic--Pachyptila desolata.
    Narrow-billed--Pachyptila belcheri.

                                  Shag

    Blue-eyed--Phalacrocorax atriceps.

                               Shearwater

    Sooty--Puffinus griseus.

                                  Skua

    Brown--Catharacta lonnbergi
    South Polar--Catharacta maccormicki.

                                 Swallow

    Barn--Hirundo rustica.

                               Sheathbill

    American--Chionis alba.

                                  Tern

    Antarctic--Sterna vittata.
    Arctic--Sterna paradisaea.

[66 FR 46739, Sept. 7, 2001]



Sec. 670.21  Designation of native plants.

    All plants whose normal range is limited to, or includes Antarctica 
are designated native plants, including:

Bryophytes
Freshwater algae
Fungi
Lichens
Marine algae
Vascular Plants

[[Page 196]]



Sec. 670.22  [Reserved]



   Subpart E_Specially Protected Species of Mammals, Birds, and Plants



Sec. 670.23  Specific issuance criteria.

    Permits authorizing the taking of mammals, birds, or plants 
designated as a Specially Protected Species of mammals, birds, and 
plants in Sec. 670.25 may only be issued if:
    (a) There is a compelling scientific purpose for such taking;
    (b) The actions allowed under any such permit will not jeopardize 
the existing natural ecological system, or the survival of the affected 
species or population;
    (c) The taking involves non-lethal techniques, where appropriate; 
and
    (d) The authorized taking, transporting, carrying or shipping will 
be carried out in a humane manner.



Sec. 670.24  Content of permit applications.

    In addition to the information required in subpart C of this part, 
an applicant seeking a permit to take a Specially Protected Species 
shall include the following in the application:
    (a) A detailed scientific justification of the need for taking the 
Specially Protected Species, including a discussion of possible 
alternative species;
    (b) Information demonstrating that the proposed action will not 
jeopardize the existing natural ecological system or the survival of the 
affected species or population; and
    (c) Information establishing that the taking, transporting, 
carrying, or shipping of any native bird or native mammal will be 
carried out in a humane manner.



Sec. 670.25  Designation of specially protected species of native 
mammals, birds, and plants.

    The following species has been designated as Specially Protected 
Species by the Antarctic Treaty Parties and is hereby designated 
Specially Protected Species:
    Common Name and Scientific Name
    Ross Seal--Ommatophoca rossii

[73 FR 14939, Mar. 20, 2008]



Sec. 670.26  [Reserved]



              Subpart F_Antarctic Specially Protected Areas



Sec. 670.27  Specific issuance criteria.

    Permits authorizing entry into any Antarctic Specially Protected 
Area designated in Sec. 670.29 may only be issued if:
    (a) The entry and activities to be engaged in are consistent with an 
approved management plan, or
    (b) A management plan relating to the area has not been approved by 
the Antarctic Treaty Parties, but
    (1) There is a compelling scientific purpose for such entry which 
cannot be served elsewhere, and
    (2) The actions allowed under the permit will not jeopardize the 
natural ecological system existing in such area.



Sec. 670.28  Content of permit application.

    In addition to the information required in subpart C of this part, 
an applicant seeking a permit to enter an Antarctic Specially Protected 
Area shall include the following in the application:
    (a) A detailed justification of the need for such entry, including a 
discussion of alternatives;
    (b) Information demonstrating that the proposed action will not 
jeopardize the unique natural ecological system in that area; and
    (c) Where a management plan exists, information demonstrating the 
consistency of the proposed actions with the management plan.



Sec. 670.29  Designation of Antarctic Specially Protected Areas, 
Specially Managed Areas and Historic Sites and Monuments.

    (a) The following areas have been designated by the Antarctic Treaty 
Parties for special protection and are hereby designated as Antarctic 
Specially Protected Areas (ASPA). The Antarctic Conservation Act of 
1978, as amended, prohibits, unless authorized by a permit, any person 
from entering or engaging in activities within an ASPA. Detailed maps 
and descriptions of the sites and complete management plans can be 
obtained from the National Science Foundation, Office of

[[Page 197]]

Polar Programs, National Science Foundation, Room 755, 4201 Wilson 
Boulevard, Arlington, Virginia 22230.

ASPA 101 Taylor Rookery, Mac. Robertson Land, East Antarctica
ASPA 102 Rookery Islands, Holme Bay, Mac. Robertson Land, East 
    Antarctica
ASPA 103 Ardery Island and Odbert Island, Budd Coast, Wilkes Land, East 
    Antarctica
ASPA 104 Sabrina Island, Balleny Islands
ASPA 105 Beaufort Island, Ross Sea (see ASPA 124)
ASPA 106 Cape Hallett, Victoria Land
ASPA 107 Emperor Island, Dion Islands, Marguerite Bay, Antarctic 
    Peninsula (see Measure 1, 2002)
ASPA 108 Green Island, Berthelot Islands, Antarctic Peninsula
ASPA 109 Moe Island, South Orkney Islands
ASPA 110 Lynch Island, South Orkney Islands
ASPA 111 Southern Powell Island and adjacent islands, South Orkney 
    Islands
ASPA 112 Coppermine Peninsula, Robert Island, South Shetland Islands
ASPA 113 Litchfield Island, Arthur Harbour, Anvers Island, Palmer 
    Archipelago
ASPA 114 Northern Coronation Island, South Orkney Islands
ASPA 115 Lagotellerie Island, Marguerite Bay, Antarctic Peninsula
ASPA 116 `New College Valley', Caughley Beach, Cape Bird, Ross Island
ASPA 117 Avian Island, off Adelaide Island, Antarctic Peninsula
ASPA 118 `Cryptogam Ridge', Mount Melbourne, Victoria Land
ASPA 119 Davis Valley and Forlidas Pond, Dufek Massif
ASPA 120 `Pointe-G[eacute]ologie Archipelego', Terre Ad[eacute]lie
ASPA 121 Cape Royds, Ross Island
ASPA 122 Arrival Heights, Hut Point Peninsula, Ross Island
ASPA 123 Barwick and Balham Valleys (see Measure 1, 2002), Victoria Land
ASPA 124 Cape Crozier, Ross Island
ASPA 125 Fildes Peninsula, King George Island, South Shetland Islands
ASPA 126 Byers Peninsula, Livingston Island, South Shetland Islands
ASPA 127 Haswell Island
ASPA 128 Western shore of Admiralty Bay, King George Island
ASPA 129 Rothera Point, Adelaide Island
ASPA 130 `Tramway Ridge', Mount Erebus, Ross Island
ASPA 131 Canada Glacier, Lake Fryxell, Taylor Valley, Victoria Land
ASPA 132 Potter Peninsula, `25 de Mayo' (King George) Island, South 
    Shetland Islands
ASPA 133 Harmony Point, west coast of Nelson Island, South Shetland 
    Islands
ASPA 134 Cierva Point and offshore islands, Danco Coast, Antarctic 
    Peninsula
ASPA 135 North-eastern Bailey Peninsula, Budd Coast, Wilkes Land
ASPA 136 Clark Peninsula, Budd Coast, Wilkes Land
ASPA 137 Northwest White Island, McMurdo Sound
ASPA 138 Linnaeus Terrace, Asgaard Range, Victoria Land
ASPA 139 Biscoe Point, Anvers Island
ASPA 140 Parts of Deception Island, South Shetland Islands
ASPA 141 `Yukidori Valley', Langhovde, L[uuml]tzow-Holmbukta
ASPA 142 Svarthamaren, M[uuml]hlig-Hofmannfjella, Dronning Maud Land
ASPA 143 Marine Plain, Mule Peninsula, Vestfold Hills, Princess 
    Elizabeth Land
ASPA 144 `Chile Bay' (Discovery Bay), Greenwich Island, South Shetland 
    Islands
ASPA 145 Port Foster, Deception Island, South Shetland Islands
ASPA 146 South Bay, Doumer Island, Palmer Archipelago
ASPA 147 Ablation Valley-Ganymede Heights, Alexander Island
ASPA 148 Mount Flora, Hope Bay, Antarctic Peninsula
ASPA 149 Cape Shirreff and San Telmo Island, Livingston Island, South 
    Shetland Islands
ASPA 150 Ardley Island, Maxwell Bay, King George Island
ASPA 151 Lions Rump, King George Island, South Shetland Islands

[[Page 198]]

ASPA 152 Western Bransfield Strait off Low Island, South Shetland 
    Islands
ASPA 153 Eastern Dallmann Bay off Brabant Island, Palmer Archipelago
ASPA 154 Botany Bay, Cape Geology, Victoria Land
ASPA 155 Cape Evans, Ross Island
ASPA 156 Lewis Bay, Mount Erebus, Ross Island
ASPA 157 Backdoor Bay, Cape Royds, Ross Island
ASPA 158 Hut Point, Ross Island
ASPA 159 Cape Adare, Borchgrevink Coast
ASPA 160 Frazier Islands, Wilkes Land, East Antarctica (see Measure 2, 
    2003)
ASPA 161 Terra Nova Bay, Ross Sea
ASPA 162 Mawson's Huts, Commonwealth Bay, George V Land, East Antarctica 
    (see Measure 2, 2004)
ASPA 163 Dakshin Gangotri Glacier, Dronning Maud Land
ASPA 164 Scullin and Murray Monoliths, Mac. Robertson Land, East 
    Antarctica
ASPA 165 Edmonson Point, Wood Bay, Ross Sea
ASPA 166 Port-Martin, Terre Ad[eacute]lie
ASPA 167 Hawker Island, Vestfold Hills, Ingrid Christensen Coast, 
    Princess Elizabeth Land, East Antarctica

    (b) The following areas have been designated by the Antarctic Treaty 
Parties for special management and are hereby designated as Antarctic 
Specially Managed Areas (ASMA). Detailed maps and descriptions of the 
sites and complete management plans can be obtained from the National 
Science Foundation, Office of Polar Programs, National Science 
Foundation, Room 755, 4201 Wilson Boulevard, Arlington, Virginia 22230.
ASMA 1 Admiralty Bay, King George Island, South Shetland Islands
ASMA 2 McMurdo Dry Valleys, Southern Victoria Land
ASMA 3 Cape Denison, Commonwealth Bay, George V Land
ASMA 4 Deception Island, South Shetland Islands
ASMA 5 Amundsen-Scott South Pole Station, South Pole
ASMA 6 Larsemann Hills, East Antarctica
    (c) The following areas have been designated by the Antarctic Treaty 
Parties as historic sites or monuments (HSM). The Antarctic Conservation 
Act of 1978, as amended, prohibits any damage, removal or destruction of 
a historic site or monument listed pursuant to Annex V to the Protocol. 
Descriptions of the sites or monuments can be obtained from the National 
Science Foundation, Office of Polar Programs, National Science 
Foundation, Room 755, 4201 Wilson Boulevard, Arlington, Virginia 22230.
HSM 1 Flag mast at South Pole
HSM 2 Rock cairn and plaques on Ongul Island, Prins Harald Kyst
HSM 3 Rock cairn and plaque on Proclamation Island, Enderby Land
HSM 4 Bust and plaque at `Pole of Inaccessibility'
HSM 5 Rock cairn and plaque at Cape Bruce, Mac. Robertson Land
HSM 6 Rock cairn and canister at Walkabout Rocks, Vestfold Hills, 
    Princess Elizabeth Land
HSM 7 Stone and plaque at Mabus Point, Queen Mary Land
HSM 8 Monument sledge and plaque at Mabus Point, Queen Mary Land
HSM 9 Cemetery on Buromskiy Island, Queen Mary Land
HSM 10 Observatory at Bunger Hills, Queen Mary Land
HSM 11 Tractor and plaque at Vostok Station
HSM 14 Ice cave at Inexpressible Island, Terra Nova Bay, Scott Coast
HSM 15 Hut at Cape Royds, Ross Island
HSM 16 Hut at Cape Evans, Ross Island
HSM 17 Cross at Cape Evans, Ross Island
HSM 18 Hut at Hut Point, Ross Island
HSM 19 Cross at Hut Point, Ross Island
HSM 20 Cross on Observation Hill, Ross Island
HSM 21 Hut at Cape Crozier, Ross Island
HSM 22 Hut at Cape Adare, Borchgrevink Coast
HSM 23 Grave at Cape Adare, Borchgrevink Coast
HSM 24 Rock cairn at Mount Betty, Queen Maud Range
HSM 26 Installations at Barry Island, Debenham Islands, Marguerite Bay, 
    Antarctic Peninsula

[[Page 199]]

HSM 27 Cairn with plaque at Megalestris Hill, Petermann Island, 
    Antarctic Peninsula
HSM 28 Cairn, pillar and plaque at Port Charcot, Booth Island, Antarctic 
    Peninsula
HSM 29 Lighthouse on Lambda Island, Melchior Islands, Antarctic 
    Peninsula
HSM 30 Shelter at Paradise Harbour, Danco Coast, Antarctic Peninsula
HSM 32 Monolith on Greenwich Island, South Shetland Islands
HSM 33 Shelter, cross and plaque on Greenwich Island, South Shetland 
    Islands
HSM 34 Bust on Greenwich Island, South Shetland Islands
HSM 35 Cross and statue on Greenwich Island, South Shetland Islands
HSM 36 Plaque at Potter Cove, King George Island, South Shetland Islands
HSM 37 Statue at Trinity Peninsula, Antarctic Peninsula
HSM 38 Hut of Snow Hill Island, Antarctic Peninsula
HSM 39 Hut at Hope Bay, Trinity Peninsula, Antarctic Peninsula
HSM 40 Bust, grotto, statue, flag mast, graveyard and stele at Hope Bay, 
    Trinity Peninsula, Antarctic Peninsula
HSM 41 Hut and grave at Paulet Island, Antarctic Peninsula
HSM 42 Huts, magnetic observatory and graveyard at Scotia Bay, Laurie 
    Island, South Orkney Islands
HSM 43 Cross at `Piedrabuena Bay', Filchner Ice Front, Weddell Sea
HSM 44 Plaque at Nivlisen Ice Front, Princesse Astrid Kyst, Dronning 
    Maud Land
HSM 45 Plaque at Metchnikoff Point, Brabant Island, Antarctic Peninsula
HSM 46 Buildings and installations at Port-Martin, Terre Ad[eacute]lie
HSM 47 Building on le des P[eacute]trels, Terre Ad[eacute]lie
HSM 48 Cross on le des P[eacute]trels, Terre Ad[eacute]lie
HSM 49 Pillar at Bunger Hill, Queen Mary Land
HSM 50 Plaque at Fildes Peninsula, King George Island, South Shetland 
    Islands
HSM 51 Grave and cross at Admiralty Bay, King George Island, South 
    Shetland Islands
HSM 52 Monolith at Fildes Peninsula, King George Island, South Shetland 
    Islands
HSM 53 Monolith and plaques on Elephant Island, South Shetland Islands
HSM 54 Bust on Ross Island
HSM 55 Buildings and artifacts on Stonington Island, Marguerite Bay, 
    Antarctic Peninsula
HSM 56 Remains of hut and environs at Waterboat Point, Danco Coast, 
    Antarctic Peninsula
HSM 57 Plaque at ``Yankee Bay'' (Yankee Harbour), MacFarlane Strait, 
    Greenwich Island, South Shetland Islands
HSM 59 Cairn on Half Moon Beach, Cape Shirreff, Livingston Island, South 
    Shetland Islands
HSM 60 Plaque and cairn at 'Penguins Bay', Seymour Island, James Ross 
    Island archipelago
HSM 61 `Base A' at Port Lockroy, Goudier Island, off Wiencke Island, 
    Antarctic Peninsula
HSM 62 `Base F (Wordie House)' on Winter Island, Argentine Islands
HSM 63 `Base Y' on Horseshoe Island, Marguerite Bay, western Graham Land
HSM 64 `Base E' on Stonington Island, Marguerite Bay, western Graham 
    Land
HSM 65 Message post on Foyn Island, Possession Islands
HSM 66 Cairn at Scott Nunataks, Alexandra Mountains
HSM 67 Rock shelter `Granite House' at Cape Geology, Granite Harbour
HSM 68 Depot at Hells Gate Moraine, Inexpressible Island, Terra Nova Bay
HSM 69 Message post at Cape Crozier, Ross Island
HSM 70 Message post at Cape Wadworth, Coulman Island
HSM 71 Whaling station at Whalers Bay, Deception Island
HSM 72 Cairn on Tryne Islands, Vestfold Hills
HSM 73 Memorial Cross, Lewis Bay, Ross Island
HSM 74 Wreckage of sailing ship, Elephant Island, South Shetland Islands
HSM 75 `A Hut', Pram Point, Ross Island
HSM 76 Ruins of base `Pedro Aguirre Cerda', Pendulum Cove, Deception 
    Island

[[Page 200]]

HSM 77 Cape Denison, Commonwealth Bay, George V Land
HSM 78 Memorial Plaque at India Point, Humboldt Mountains, Wohlthat 
    Massif, central Dronning Maud Land
HSM 79 Lilie Marleen Hut, Mt. Dockery, Everett Range, Northern Victoria 
    Land
HSM 80 Amundsen's Tent
HSM 81 Rocher du D[eacute]barquement (Landing Rock)
HSM 82 Monument to the Antarctic Treaty and Plaque

[73 FR 14940, Mar. 20, 2008]



Sec. 670.30  [Reserved]



         Subpart G_Import Into and Export From the United States



Sec. 670.31  Specific issuance criteria for imports.

    Subject to compliance with other applicable law, any person who 
takes a native mammal, bird, or plant under a permit issued under the 
regulations in this part may import it into the United States unless the 
Director finds that the importation would not further the purpose for 
which it was taken. If the importation is for a purpose other than that 
for which the native mammal, bird, or plant was taken, the Director may 
permit importation upon a finding that importation would be consistent 
with the purposes of the Act, the regulations in this part, or the 
permit under which they were taken.



Sec. 670.32  Specific issuance criteria for exports.

    The Director may permit export from the United States of any native 
mammal, bird, or native plants taken within Antarctica upon a finding 
that exportation would be consistent with the purposes of the Act, the 
regulations in this part, or the permit under which they were taken.



Sec. 670.33  Content of permit applications.

    In addition to the information required in subpart C of this part, 
an applicant seeking a permit to import into or export from the United 
States a native mammal, a native bird, or native plants taken within 
Antarctica shall include the following in the application:
    (a) Information demonstrating that the import or export would 
further the purposes for which the species was taken;
    (b) Information demonstrating that the import or export is 
consistent with the purposes of the Act or the regulations in this part;
    (c) A statement as to which U.S. port will be used for the import or 
export, and
    (d) Information describing the intended ultimate disposition of the 
imported or exported item.



Sec. 670.34  Entry and exit ports.

    (a) Any native mammal, native bird, or native plants taken within 
Antarctica that are imported into or exported from the United States 
must enter or leave the United States at ports designated by the 
Secretary of Interior in 50 CFR part 14. The ports currently designated 
are:
    (1) Los Angeles, California.
    (2) San Francisco, California.
    (3) Miami, Florida.
    (4) Honolulu, Hawaii.
    (5) Chicago, Illinois.
    (6) New Orleans, Louisiana.
    (7) New York, New York.
    (8) Seattle, Washington.
    (9) Dallas/Fort Worth, Texas.
    (10) Portland, Oregon.
    (11) Baltimore, Maryland.
    (12) Boston, Massachusetts.
    (13) Atlanta, Georgia.
    (b) Permits to import or export at non-designated ports may be 
sought from the Secretary of Interior pursuant to subpart C, 50 CFR part 
14.



Sec. 670.35  [Reserved]



       Subpart H_Introduction of Non-Indigenous Plants and Animals



Sec. 670.36  Specific issuance criteria.

    For purposes consistent with the Act, only the following plants and 
animals may be considered for a permit allowing their introduction into 
Antarctica:
    (a) Domestic plants; and
    (b) Laboratory animals and plants including viruses, bacteria, 
yeasts, and fungi.

[[Page 201]]

    Living non-indigenous species of birds shall not be introduced into 
Antarctica.



Sec. 670.37  Content of permit applications.

    Applications for the introduction of plants and animals into 
Antarctica must describe:
    (a) The species, numbers, and if appropriate, the age and sex, of 
the animals or plants to be introduced into Antarctica;
    (b) The need for the plants or animals;
    (c) What precautions the applicant will take to prevent escape or 
contact with native fauna and flora; and
    (d) How the plants or animals will be removed from Antarctica or 
destroyed after they have served their purpose.



Sec. 670.38  Conditions of permits.

    All permits allowing the introduction of non-indigenous plants and 
animals will require that the animal or plant be kept under controlled 
conditions to prevent its escape or contact with native fauna and flora 
and that after serving its purpose the plant or animal shall be removed 
from Antarctica or be destroyed in manner that protects the natural 
system of Antarctica.



Sec. 670.39  [Reserved]



PART 671_WASTE REGULATION--Table of Contents




                         Subpart A_Introduction

Sec.
671.1 Purpose of regulations.
671.2 Scope.
671.3 Definitions.

                  Subpart B_Prohibited Acts, Exceptions

671.4 Prohibited acts.
671.5 Exceptions.

                            Subpart C_Permits

671.6 Applications for permits.
671.7 General issuance criteria.
671.8 Permit administration.
671.9 Conditions of permit.
671.10 Review, modification, suspension, and revocation.

                       Subpart D_Waste Management

671.11 Waste storage.
671.12 Waste disposal.
671.13 Waste management for the USAP.

    Subpart E_Designation of Banned Substances; Reclassification of 
                               Pollutants

671.14 Annual review.
671.15 Publication of preliminary determination.
671.16 Designation and redesignation of pollutants.

                      Subpart F_Cases of Emergency

671.17 Cases of emergency.

    Authority: 16 U.S.C. 2405.

    Source: 58 FR 34719, June 29, 1993, unless otherwise noted.



                         Subpart A_Introduction



Sec. 671.1  Purpose of regulations.

    The purposes of these regulations in part 671 are to protect the 
Antarctic environment and dependent and associated ecosystems, to 
preserve Antarctica's value as an area for the conduct of scientific 
research, and to implement the Antarctic Conservation Act of 1978, 
Public Law 95-541, consistent with the provisions of the Protocol on 
Environmental Protection to the Antarctic Treaty, signed in Madrid, 
Spain, on October 4, 1991.



Sec. 671.2  Scope.

    These regulations in part 671 apply to any U.S. citizen's use or 
release of a banned substance, designated pollutant or waste in 
Antarctica.

[58 FR 34719, June 29, 1993, as amended at 59 FR 37438, July 22, 1994]



Sec. 671.3  Definitions.

    (a) Definitions. In this part:
    Act means the Antarctic Conservation Act of 1978, Public Law 95-541, 
92 Stat. 2048 (16 U.S.C. 2401 et seq.)
    Antarctic hazardous waste means any waste consisting of or 
containing one or more designated pollutants.
    Antarctica means the area south of 60 degrees south latitude.
    Banned substance means any polychlorinated biphenyls (PCBs), non-
sterile soil, polystyrene beads, plastic chips or similar loose 
polystyrene packing material, pesticides (other

[[Page 202]]

than those required for scientific, medical or hygiene purposes) or 
other substance designated as such under subpart E of this part.
    Designated pollutant means any substance designated as such by the 
Director pursuant to subpart E of this part; any pesticide, radioactive 
substance, or substance consisting of or containing any chemical listed 
by source, generic or chemical name at 40 CFR 61.01, Table 116.4A of 40 
CFR 116.4; subpart D of 40 CFR part 261, 40 CFR 302.4, part 355, and 
part 372; and any substance which exhibits a hazardous waste 
characteristic as defined in subparts B and C of 40 CFR part 261; but 
shall not include any banned substance.
    Director means the Director of the National Science Foundation, or 
an officer or employee of the Foundation designated by the Director.
    Incinerate or Incineration means the processing of material by 
mechanisms that (1) involve the control of combustion air and/or fuel so 
as to maintain adequate temperature for efficient combustion; (2) 
contain the combustion reaction in an enclosed device with sufficient 
residence time and mixing for complete processing; and (3) control 
emission of gaseous or particulate combustion products.
    Master permit means a permit issued to a federal agency, or its 
agents or contractors, or any other entity, covering activities 
conducted in connection with USAP or other group activities in 
Antarctica.
    NSF or Foundation means the National Science Foundation.
    Open burning means combustion of any material by means other than 
incineration.
    Permit means a permit issued pursuant to subpart C of this part.
    Private permit means any permit other than a master permit.
    Protocol means the Protocol on Environmental Protection to the 
Antarctic Treaty, signed by the United States in Madrid on October 4, 
1991, and any and all Annexes thereto, as amended or supplemented from 
time to time.
    Release means any spilling, leaking, pumping, pouring, emitting, 
emptying, discharging, injecting, leaching, dumping, burying or 
disposing of a substance, whether intentionally or accidentally.
    Station means McMurdo Station, Palmer Station, Amundsen-Scott South 
Pole Station and any other permanent USAP facility in Antarctica 
designed to accommodate at least 50 persons at any one time.
    Substance means any gas, liquid, or solid, or mixture thereof, 
including biological material.
    Treaty means the Antarctic Treaty signed in Washington, D.C., on 
December 1, 1959.
    United States means the several States of the Union, the District of 
Columbia, the Commonwealth of Puerto Rico, American Samoa, the Virgin 
Islands, Guam and the Trust Territory of the Pacific Islands, including 
the Federated States of Micronesia and the Commonwealth of the Northern 
Mariana Islands.
    United States Antarctic Program or USAP means the United States 
national program in Antarctica.
    U.S. citizen means any individual who is a citizen or national of 
the United States; any corporation, partnership, trust, association, or 
other legal entity existing or organized under the laws of any of the 
United States; and any department agency or other instrumentality of the 
Federal government or of any State, and any officer, employee, or agent 
of such instrumentality.
    Use means to use, generate or create a substance, or to import a 
substance into Antarctica, but does not include the shipboard use of a 
substance, provided that substance is not released or removed from the 
vessel.
    Waste means any substance that will no longer be used for any useful 
purpose, but does not include substances to be recycled in Antarctica, 
or substances to be reused in a manner different than their initial use, 
provided such substances are stored in a manner that will prevent their 
dispersal into the environment, and further provided that they are 
recycled, reused or disposed of in accordance with the provisions of 
this Part within three years. Recycling includes, but is not limited to, 
the reuse, further use, reclamation or extraction of a waste through a 
process or activity that is separate

[[Page 203]]

from the process or activity that produced the waste.
    (b) Pollutants, generally. All banned substances, designated 
pollutants and waste shall be considered pollutants for purposes of the 
Antarctic Conservation Act.



                  Subpart B_Prohibited Acts, Exceptions



Sec. 671.4  Prohibited acts.

    Unless one of the exceptions stated in Sec. 671.5 is applicable, it 
is unlawful for any U.S. citizen to:
    (a) Use or release any banned substance in Antarctica;
    (b) Use or release any designated pollutant in Antarctica, except 
pursuant to a permit issued by NSF under subpart C of this part;
    (c) Release any waste in Antarctica, except pursuant to a permit 
issued by NSF under subpart C of this part; or
    (d) Violate any term or condition of a permit issued by NSF under 
subpart C of this part, or any term or condition of any of the 
regulations issued under this part.



Sec. 671.5  Exceptions

    A permit shall not be required for any use or release of designated 
pollutants or waste allowed under the Act to Prevent Marine Pollution 
from Ships (33 U.S.C. 1901 et seq.), as amended, or for any shipboard 
use of banned substances or designated pollutants, provided such 
substances are not removed from the vessel in Antarctica.



                            Subpart C_Permits



Sec. 671.6  Applications for permits.

    (a) General content of permit applications. Each application for a 
permit shall be dated and signed by the applicant, and shall include the 
following information:
    (1) The applicant's name, address and telephone number, the business 
or institutional affiliation of the applicant, or the name, address and 
telephone number of the president, principal officer or managing partner 
of the applicant, as applicable;
    (2) A description of the types, expected concentrations and volumes 
of wastes and designated pollutants to be released in Antarctica; the 
nature and timing of such releases; arrangements for waste management, 
including, without limitation, plans for waste reduction, minimization, 
treatment and processing, recycling, storage, transportation and 
disposal; arrangements for training and educating personnel to comply 
with these waste management requirements and procedures, and 
arrangements for monitoring compliance; and other arrangements for 
minimizing and monitoring the environmental impacts of proposed 
operations and activities;
    (3) A description of the types, expected concentrations and volumes 
of designated pollutants to be used in Antarctica; the nature and timing 
of such uses; the method of storage of designated pollutants; and a 
contingency plan for controlling releases in a manner designed to 
minimize any resulting hazards to health and the environment;
    (4) The desired effective date and duration of the permit; and
    (5) The following certification:

    ``I certify that, to the best of my knowledge and belief, and based 
upon due inquiry, the information submitted in this application for a 
permit is complete and accurate. Any knowing or intentional false 
statement will subject me to the criminal penalties of 18 U.S.C. 1001.''

    (b) Address to which application should be sent. Each application 
shall be in writing, and sent to:

Permits Office, Office of Polar Programs, National Science Foundation, 
4201 Wilson Boulevard, Arlington, VA 22230.

    (c) Sufficiency of application. The sufficiency of the application 
shall be determined by the Director. The Director may waive any 
requirement for information, or require such additional information as 
he determines is relevant to the processing and evaluation of the 
application.
    (d) Publication of permit applications. The Director shall publish 
notice in the Federal Register of each application for a permit and the 
proposed conditions of its issuance (including duration). The notice 
shall invite the submission by interested parties, the Environmental 
Protection Agency and other federal agencies, within 30 days

[[Page 204]]

after the date of publication of notice, of written data, comments, or 
views with respect to the application. Information received by the 
Director as a part of any application shall be available to the public 
as a matter of public record.

[58 FR 34719, June 29, 1993, as amended at 59 FR 37438, July 22, 1994]



Sec. 671.7  General issuance criteria.

    (a) Upon receipt of a complete and properly executed application for 
a permit, the Director will decide whether and on what conditions he 
will issue a permit. In making this decision, the Director will 
carefully consider any comments or suggestions received from interested 
parties, the Environmental Protection Agency and other federal agencies 
pursuant to Sec. 671.6(d), and will determine whether the permit 
requested meets the objectives of the Act, the Protocol, and the 
requirements of these regulations.
    (b) Permits authorizing the use or release of designated pollutants 
or wastes may be issued only if, based on relevant available 
information, the Director determines that such use or release will not 
pose a substantial hazard to health or the environment, taking into 
account available information on the possible cumulative impact of 
multiple releases.



Sec. 671.8  Permit administration.

    (a) Issuance of permits. The Director may approve an application for 
a permit in whole or in part, and may condition such approval upon 
compliance with additional terms and conditions. Permits shall be issued 
in writing, shall be signed by the Director, shall specify duration, and 
shall contain such terms and conditions as may be established by the 
Director and as are consistent with the Act and this part.
    (b) Denial. An applicant shall be notified in writing of the denial 
of any permit request or part of a request, and the reason for such 
denial. If authorized in the notice of denial, the applicant may submit 
further information, or reasons why the permit should not be denied. 
Such further submissions shall constitute amendments of the application.
    (c) Amendment of applications or permits. An applicant or permit 
holder desiring to have any term or condition of his application or 
permit modified must submit full justification and supporting 
information in conformance with the provisions of this Part. Any 
application for modification of a permit that involves a material change 
beyond the terms originally requested will be subject to the same 
procedures as a new application.
    (d) Public notice of issuance or denial. Within 10 days after the 
date of the issuance or denial of a permit, the Director shall publish 
notice of the issuance or denial in the Federal Register, including the 
conditions of issuance or basis for denial, as appropriate.



Sec. 671.9  Conditions of permit.

    (a) Conditions. All permits issued pursuant to subpart C of this 
part shall be conditioned upon compliance with the relevant provisions 
of the ACA, the Treaty, the Protocol, such specific conditions or 
restrictions as may be imposed by the Director under Sec. 671.7, and 
the provisions of subpart D of this part.
    (b) Possession of permits. Permits issued under this part, or copies 
of them, must be in the possession of persons to whom they are issued or 
their agents when conducting the authorized action. Any permit issued 
shall be shown to the Director or to any other person with enforcement 
authority upon request.
    (c)(1) Reports. Permit holders must provide the Director with 
written reports of:
    (i) Any non-permitted release of designated pollutants or waste 
within fourteen days after the occurrence of such release, including the 
date, quantity and cause of the release, and plans for remediation;
    (ii) The identity and quantity of all designated pollutants removed 
from Antarctica or otherwise disposed of, and the method of disposal; 
and
    (iii) Any other violations of the terms and conditions of their 
permits.
    (2) The Director may also require permit holders to file reports of 
activities conducted under their permits. Such reports shall be 
submitted to the Director not later than June 30 for the

[[Page 205]]

preceding 12 month period ending May 31.



Sec. 671.10  Review, modification, suspension, and revocation.

    (a) The Director may modify, suspend or revoke, in whole or in part, 
any permit issued under this part:
    (1) In order to make the permit consistent with any change to any 
regulation in this Part made after the date of issuance of the permit;
    (2) If there is any change in conditions which makes the permit 
inconsistent with the Act and any regulation in this part; or
    (3) In any case in which there has been any violation of any term or 
condition of the permit, any regulation in this part, or any provision 
of the Act.
    (b) The Director shall review all unexpired permits issued under 
this part at least biennially to determine whether those permits should 
be modified, suspended or revoked as set forth in paragraph (a) of this 
section.
    (c) Whenever the Director proposes any modifications, suspensions or 
revocations of a permit under this Sec. 671.10, the permittee shall be 
afforded the opportunity, after due notice, for a hearing by the 
Director with respect to such proposed modification, suspension, or 
revocation. If a hearing is requested, the action proposed by the 
Director shall not take effect before a decision is issued by him after 
the hearing, unless the proposed action is taken by the Director to meet 
an emergency situation.
    (d) Notice of the modification, suspension, or revocation of any 
permit shall be published in the Federal Register within 10 days from 
the date of the Director's decision.



                       Subpart D_Waste Management



Sec. 671.11  Waste storage.

    (a) Pending the treatment, disposal or removal of any wastes 
pursuant to Sec. 671.12, all wastes shall be contained, confined or 
stored in a manner that will prevent dispersal into the environment;
    (b) All Antarctic hazardous wastes generated at or transported to 
any USAP station may be temporarily stored at such station prior to the 
treatment, disposal or removal of any wastes pursuant to Sec. 671.12, 
provided all such Antarctic hazardous waste is stored in either closed 
containers or tanks labeled to indicate their contents and the beginning 
date of accumulation of such waste, and further provided the following 
conditions are satisfied:
    (1) If Antarctic hazardous wastes, radioactive wastes, or medical 
wastes, are generated at or transported to McMurdo Station, they may be 
temporarily stored at that station for a period not to exceed 15 months;
    (2) If Antarctic hazardous wastes, radioactive wastes, or medical 
wastes, are generated at or transported to South Pole Station, they may 
be temporarily stored at that station while awaiting transport to 
McMurdo Station, for a period not to exceed 15 months;
    (3) If Antarctic hazardous wastes, radioactive wastes, or medical 
wastes, are generated at or transported to Palmer Station, they may be 
temporarily stored at that station while awaiting transport to McMurdo 
Station or other disposition, for a period not to exceed 28 months;
    (4) Containers holding Antarctic hazardous wastes must be:
    (i) In good, non-leaking condition with sufficient structural 
integrity for the storage of Antarctic hazardous waste;
    (ii) Made of or lined with materials which will not react with, and 
are otherwise compatible with, the Antarctic hazardous waste to be 
stored, so that the ability of the containers to contain such waste is 
not impaired;
    (iii) Stored in a manner that allows access for inspection and 
response to emergencies; and
    (iv) Inspected at least weekly for leakage and deterioration. All 
inspections must be appropriately documented.
    (5) Tank systems used for storing Antarctic hazardous wastes must be 
in good, non-leaking condition with sufficient structural integrity for 
the storing of hazardous wastes; and systems must be inspected weekly to 
detect corrosion or releases of waste and to collect data from 
monitoring and leak detection equipment, to the extent

[[Page 206]]

available, to ensure that they are functioning properly. All inspections 
must be appropriately documented. Prior to the expiration of the 15 
month period referred to in Sec. 671.11(b)(1), all Antarctic hazardous 
wastes shall be treated or removed from Antarctica in accordance with 
Sec. 671.12.
    (6) Ignitable, reactive or incompatible wastes shall be properly 
segregated and protected from sources of ignition or reaction, as 
appropriate.
    (c) All Antarctic hazardous wastes generated at a location other 
than a permanent station may be temporarily stored at such location for 
a period not to exceed 12 months, in closed, non-leaking containers 
marked to indicate their contents. Such containers must be in good 
condition and made of or lined with material which will not react with 
and is otherwise compatible with the Antarctic hazardous waste stored 
therein so as not to impair the ability of the container to contain the 
waste. Prior to the expiration of the 12 month period referred to above, 
all such hazardous wastes shall be either:
    (1) Treated or processed, disposed of or removed from Antarctica 
pursuant to Sec. 671.12, or
    (2) Removed to a permanent station and temporarily stored at that 
station in accordance with paragraph (b) of this section.



Sec. 671.12  Waste disposal.

    (a)(1) The following wastes shall be removed from Antarctica:
    (i) Radioactive materials;
    (ii) Electrical batteries;
    (iii) Fuel (both liquid and solid);
    (iv) Waste containing harmful levels of heavy metals or acutely 
toxic or harmful persistent compounds;
    (v) Poly-vinyl chloride (PVC), polyurethane foam, polystyrene foam, 
rubber and lubricating oils, treated timbers and other products 
containing additives which can produce harmful emissions or releases;
    (vi) All other plastic wastes except low density polyethylene 
containers (such as bags for storing wastes) provided such containers 
are incinerated in accordance with paragraph (e) of this section;
    (vii) Solid, non-combustible wastes; and
    (viii) Fuel, oil and chemical drums that constitute waste.
    (2) Notwithstanding paragraph (a)(1) of this section, the 
obligations set forth in paragraphs (a)(1) (vii) and (viii) of this 
section shall not apply if the Director determines that the removal of 
such wastes by any practicable option would cause greater adverse 
environmental impacts than would be caused by leaving them in their 
existing locations.
    (b) All liquid wastes other than sewage and domestic liquid wastes 
and wastes referred in paragraph (a) of this section shall be removed 
from Antarctica to the maximum extent practicable.
    (c) Sewage and domestic liquid wastes may be discharged directly 
into the sea, taking into account the assimilative capacity of the 
receiving marine environment, and provided that such discharge occurs, 
wherever practicable, where conditions exist for initial dilution and 
rapid dispersal, and further provided that large quantities of such 
wastes (generated in a station where the average weekly occupancy over 
the austral summer is approximately 30 individuals or more) shall be 
treated at least by maceration. If biological treatment processes are 
used, the by-product of such treatment may be disposed of into the sea 
provided disposal does not adversely affect the local environment.
    (d) Residues of introduced animal carcasses, laboratory culture of 
micro-organisms and plant pathogens, and introduced avian products must 
be removed from Antarctica unless incinerated, autoclaved or otherwise 
sterilized.
    (e) Combustible wastes not removed from Antarctica other than wastes 
referred to in paragraph (a) of this section, shall be burnt in 
incinerators which reduce harmful emissions or discharges to the maximum 
extent practicable and the solid residue of such incineration shall be 
removed from Antarctica; provided, however, that USAP may continue to 
bury such combustible wastes in snow pits at South Pole Station, but 
must phase out such practices before March 1, 1995. Any emission or 
discharge standards and equipment guidelines which may be recommended

[[Page 207]]

by the Committee for Environmental Protection constituted or to be 
constituted pursuant to the Protocol or by the Scientific Committee on 
Antarctic Research shall be taken into account.
    (f) Sewage and domestic liquid wastes and other liquid wastes not 
removed from Antarctica in accordance with other provisions of this 
section, shall, to the maximum extent practicable, not be disposed of 
onto sea ice, ice shelves or grounded ice-sheet unless such wastes were 
generated by stations located inland on ice shelves or on the grounded 
ice-sheet. In such event, the wastes may be disposed of in deep ice pits 
if that is the only practicable option, provided the ice pits are not 
located on known ice-flow lines which terminate at ice-free land areas 
or in blue ice areas of high ablation.
    (g) No wastes may be disposed of onto ice-free areas or into any 
fresh water system.
    (h) Open burning of wastes is prohibited at all permanent stations, 
and shall be phased out at all other locations by March 1, 1994. If it 
is necessary to dispose of waste by open burning prior to March 1, 1994, 
allowance shall be made for the wind direction and speed and the type of 
waste to be burnt to limit particulate deposition and to avoid such 
deposition over areas of special biological, scientific, historic, 
aesthetic or wilderness significance.
    (i) Each unauthorized release of waste in Antarctic shall be, to the 
maximum extent practicable, promptly cleaned up by the person 
responsible for such release.



Sec. 671.13  Waste management for the USAP.

    (a) In order to provide a basis for tracking USAP wastes, and to 
facilitate studies aimed at evaluating the environmental impacts of 
scientific activity and logistic support, the USAP shall classify its 
wastes in one of the following categories:
    (1) Sewage and domestic liquid wastes;
    (2) Other liquid wastes and chemicals, including fuels and 
lubricants;
    (3) Solid wastes to be combusted;
    (4) Other solid wastes; and
    (5) Radioactive material.
    (b) USAP shall prepare and annually review and update a waste 
management plan (including plans for waste reduction, storage and 
disposal) specifying for each of its permanent stations, field camps and 
ships (other than small boats that are part of the operations of 
permanent stations or are otherwise taken into account in existing 
management plans for ships):
    (1) Current and planned waste management arrangements, including 
final disposal;
    (2) Current and planned arrangement for assessing the environmental 
effects of waste and waste management;
    (3) Other efforts to minimize environmental effects of wastes and 
waste management; and
    (4) Programs for cleaning up existing waste disposal sites and 
abandoned work sites.
    (c) USAP shall designate one or more waste management officials to 
develop and monitor waste management plans and ensure that members of 
expeditions receive training so as to limit the impact of their 
activities on the Antarctic environment, and to inform them of the 
requirements of the Protocol and of this Part.
    (d) USAP shall, to the extent practicable, prepare an inventory of 
locations of past activities (i.e., traverses, fuel depots, field bases, 
crashed aircraft) so that such locations can be taken into account in 
planning future scientific, logistic and waste management programs.
    (e) USAP shall clean up its past and present waste disposal sites on 
land and abandoned work sites, except that it shall not be required to:
    (1) Remove any structure designated as a historic site or monument; 
or
    (2) Remove any structure or waste in circumstances where the removal 
would result in greater adverse environmental impact than leaving the 
structure or waste in its existing location.
    (f) USAP shall circulate waste management plans and inventories 
described in this section in accordance with the requirements of the 
Treaty and the Protocol.

[[Page 208]]



    Subpart E_Designation of Banned Substances; Reclassification of 
                               Pollutants



Sec. 671.14  Annual review.

    The Director shall review the list of banned substances and 
designated pollutants at least annually, and may propose the designation 
or redesignation of any substance as a banned substance, designated 
pollutant or other waste, based on the following criteria:
    (a) If the Director determines that a substance, including a 
designated pollutant, poses a substantial immediate hazard to health or 
the environment and such hazard cannot be eliminated through waste 
management practices or other methods, or if the Parties to the Protocol 
or Treaty agree that a substance should be banned from use in 
Antarctica, the Director may designate such substance a banned 
substance.
    (b) If the Director determines that a substance is liable to create 
a hazard to health or the environment if improperly treated or 
processed, stored, transported, or disposed of, the Director may 
designate such substance a designated pollutant.
    (c) If the Director determines that a substance previously 
designated a banned substance no longer displays the characteristics 
described in paragraph (a) of this section, the Director may remove such 
substance from the list of banned substances (to the extent consistent 
with the provisions of the Protocol), but if the Director determines 
that such substance has the characteristics described in paragraph (b) 
of this section, it shall be redesignated a designated pollutant.
    (d) If the Director determines that a substance previously 
designated a designated pollutant no longer displays the characteristics 
described in paragraph (b) of this section, the Director may remove such 
substance from the list of designated pollutants.
    (e) In making the determinations referred to in paragraphs (a) 
through (d) of this section, the Director shall take into account all 
relevant new information obtained through monitoring activities or 
otherwise.



Sec. 671.15  Publication of preliminary determination

    Prior to any designation or redesignation of substances pursuant to 
Sec. 671.14 (including removal of such substances from lists of banned 
substances or designated pollutants), the Director shall publish notice 
in the Federal Register of any proposed designation or redesignation, 
including the basis therefor. The notice shall invite the submission by 
interested parties, the Environmental Protection Agency and other 
federal agencies, within 30 days after the date of publication of 
notice, of written data, comments, or views with respect to such action.



Sec. 671.16  Designation and redesignation of pollutants

    After review of any comments or suggestions received from interested 
parties, the Environmental Protection Agency and other Federal agencies 
pursuant to Sec. 671.15, the Director will make a final determination 
to designate and redesignate various substances as set forth above. 
Within 10 days after the date of such final determination, the Director 
shall publish notice of any action taken in the Federal Register. Such 
action shall become effective no earlier than thirty days following 
publication of notice.



                      Subpart F_Cases of Emergency



Sec. 671.17  Cases of emergency.

    The provisions of this part shall not apply in cases of emergency 
relating to the safety of human life or of ships, aircraft or other 
equipment and facilities of high value, or the protection of the 
environment. Notice of any acts or omissions resulting from such 
emergency situations shall be reported promptly to the Director, who 
shall notify the Treaty parties in accordance with the requirements of 
the Treaty and the Protocol, and publish notice of such acts or 
omissions in the Federal Register.

[[Page 209]]



PART 672_ENFORCEMENT AND HEARING PROCEDURES--Table of Contents




Sec.
672.1 Hearing procedures--Scope of these rules.
672.2 Definitions.
672.3 Powers and duties of the Director; Presiding Official; Office of 
          Polar Programs.
672.4 Filing, service, and form of pleadings and documents.
672.5 Filing and service of rulings, orders, and decisions.
672.6 Appearances.
672.7 Issuance of complaint.
672.8 Answer to the complaint.
672.9 Motions.
672.10 Default order.
672.11 Informal settlement; consent agreement and order.
672.12 Prehearing conference.
672.13 Accelerated decision; decision to dismiss.
672.14 Scheduling the hearing.
672.15 Evidence.
672.16 Objections and offers of proof.
672.17 Burden of presentation; burden of persuasion.
672.18 Filing the transcript.
672.19 Proposed findings, conclusions, and order.
672.20 Initial decision.
672.21 Appeal from or review of interlocutory orders or rulings.
672.22 Appeal from or review of initial decision.
672.23 Final order on appeal.
672.24 Maximum civil monetary penalties for violations.

    Authority: 16 U.S.C. 2401 et seq., 28 U.S.C. 2461 note.

    Source: 54 FR 7132, Feb. 16, 1989, unless otherwise noted. 
Redesignated at 58 FR 34718, June 29, 1993.



Sec. 672.1  Hearing procedures--Scope of these rules.

    (a) These hearing rules govern all adjudicatory proceedings for the 
assessment of civil penalties or imposition of other sanctions pursuant 
to the Antarctic Conservation Act of 1978, 16 U.S.C. 2407; 2404(f); 
2401-2412; and
    (b) Other adjudicatory proceedings that the Foundation, in its 
discretion, determines are appropriate for handling under these rules, 
including proceedings governed by the Administrative Procedure Act 
requirements for ``hearings on the record.'' 5 U.S.C. 554 (1982).
    (c) Questions arising at any stage of the proceeding which are not 
addressed in these rules shall be resolved at the discretion of the 
Director or Presiding Officer.



Sec. 672.2  Definitions.

    (a) Throughout these rules, words in the singular also include the 
plural, and words in the masculine gender also include the feminine, and 
vice versa.
    (b) Act means the particular statute authorizing the initiation of 
the proceeding.
    (c) Administrative Law Judge means an Administrative Law Judge 
appointed under 5 U.S.C. 3105 (see also Pub. L. 95-251, 92 Stat. 183).
    (d) Complainant means any person authorized to issue a complaint on 
behalf of the Agency to persons alleged to be in violation of the Act. 
The complainant shall not be the Presiding Officer or any other person 
who will participate or advise in the decision.
    (e) Complaint means a written communication, alleging one or more 
violations of specific provisions of the Act, Treaties, NSF regulations 
or a permit promulgated thereunder, issued by the complainant to a 
person under this subpart.
    (f) Consent Agreement means any written document, signed by the 
parties, containing stipulations or conclusions of fact or law, and a 
proposed penalty, revocation or suspension of a permit, or other 
sanction.
    (g) Director means the Director of the National Science Foundation 
(NSF) or his delegatee.
    (h) Final Order means (1) an order issued by the Director after an 
appeal of an initial decision, accelerated decision, a decision to 
dismiss, or default order, or (2) an initial decision which becomes a 
final order.
    (i) Foundation, Agency, or NSF means the National Science 
Foundation.
    (j) Hearing means a hearing on the record open to the public and 
conducted under these rules.
    (k) Hearing Clerk is the person with whom all pleadings, motions, 
and other documents required under this subpart are filed.
    (l) Initial Decision means the decision issued by the Presiding 
Officer based

[[Page 210]]

upon the official record of the proceedings.
    (m) Party means any person that participates in a hearing as 
complainant, respondent, or intervenor.
    (n) Permit means a permit issued under section 5 of the Antarctic 
Conservation Act of 1978, 16 U.S.C. section 2404.
    (o) Person includes any individual, partnership, association, 
corporation, and any trustee, assignee, receiver or legal successor 
thereof; any organized group of persons whether incorporated or not; and 
any officer, employee, agent, department, agency or instrumentality of 
the Federal Government. of any State or local unit of government, or of 
any foreign government.
    (p) Presiding Officer means the attorney designated by the Director 
to conduct hearings or other proceedings under this subpart.
    (q) Respondent means any person proceeded against in the complaint.
    (r) Terms defined in the Act and not defined in these rules of 
practice are used consistent with the meanings given in the Act.



Sec. 672.3  Powers and duties of the Director; Presiding Official; 
Office of Polar Programs.

    (a) Director. The Director of NSF shall exercise all powers and 
duties as prescribed or delegated under the Act and these rules.
    (b) The Director may delegate all or part of his authority. Partial 
delegation does not prevent the Presiding Officer from referring any 
motion or case to the Director.
    (c) Presiding Officer. The Director may designate one or more 
Presiding Officers to perform the functions described below. The 
Presiding Officers shall be attorneys who are permanent or temporary 
employees of the Foundation or some other Federal Agency and may perform 
other duties compatible with their authority as hearing officers. 
Administrative Law Judges may perform the functions of Presiding 
Officers. The Presiding Officer shall have performed no prosecutorial or 
investigatory functions in connection with any matter related to the 
hearing.
    (d) The Presiding Officer shall conduct a fair and impartial 
proceeding, assure that the facts are fully elicited, adjudicate all 
issues, and avoid delay. The Presiding Officer shall have authority to:
    (1) Conduct administrative hearings under these rules of practice;
    (2) Rule upon motions, requests, and offers of proof, dispose of 
procedural requests, and issue all necessary orders;
    (3) Administer oaths and affirmations and take affidavits;
    (4) Examine witnesses and receive documentary or other evidence;
    (5) For good cause, upon motion or sua sponte, order a party, or an 
officer or agent thereof, to produce testimony, documents, or other 
nonprivileged evidence, and failing the production thereof without good 
cause being shown, draw adverse inferences against that party;
    (6) Admit or exclude evidence;
    (7) Hear and decide questions of facts, law or discretion;
    (8) Require parties to attend conferences for the settlement or 
simplification of the issues, or the expedition of facts, law or 
discretion;
    (9) Issue subpoenas authorized by the Act; and
    (10) Take all actions necessary for the maintenance of order and for 
the efficient, fair and impartial adjudication of issues arising in 
proceedings governed by these rules.
    (e) Disqualification; Withdrawal. (1) The Presiding Officer may not 
participate in any matter in which he (i) has a financial interest or 
(ii) has any relationship with a party or with the subject matter which 
would make it inappropriate for him to act. Any party may at any time by 
motion made to the Director, or his delegatee, request that the 
Presiding Officer be disqualified from the proceeding.
    (2) If the Presiding Officer is disqualified or withdraws from the 
proceeding, the Director shall assign a qualified replacement who has 
none of the infirmities listed in paragraph (e)(1) of this section. The 
Director, should he withdraw or disqualify himself, shall assign the 
Deputy Director to be his replacement.
    (f) Office of Polar Programs. The Office of Polar Programs (OPP) 
manages and operates the national program in Antarctica, including 
administration of

[[Page 211]]

the Antarctic Conservation Act (ACA) permit system. OPP is responsible 
for investigating alleged violations of the ``prohibited acts'' section 
of the ACA and alleged noncompliance with ACA permits. OPP will act as 
the official complainant in all proceedings under the ACA governed by 
these rules. OPP may delegate all or part of its investigatory duties to 
other appropriate NSF employees, other qualified federal employees, or 
consultants. OPP will prepare complaints with the assistance of 
designated prosecuting attorneys within NSF's Office of the General 
Counsel, other qualified federal attorneys, or other appropriate legal 
representative selected jointly by OPP and OGC. The designated 
prosecuting attorney will represent OPP in all proceedings governed by 
these rules.
    (g) The Office of Polar Programs, acting on behalf of the Director, 
may designate qualified individuals as enforcement officers empowered to 
execute all of the law enforcement functions set forth in section 10 of 
the ACA, 16 U.S.C. 2409, as well as any other appropriate actions 
ancillary to those statutory duties. OPP will provide each enforcement 
officer with official enforcement credentials for identification 
purposes and use during execution of official duties.

OPP may also designate knowledgeable individuals to provide educational 
and other information regarding the Antarctic to tour operators, their 
clients and employees, and other visitors to the Antarctic.
    (h) The Office of the General Counsel, with the concurrence of the 
Office of Polar Programs, may refer appropriate cases to the Department 
of Justice for possible prosecution of criminal violations of the 
Antarctic Conservation Act.

[54 FR 7132, Feb. 16, 1989. Redesignated at 58 FR 34718, June 29, 1993, 
and amended at 59 FR 37438, July 22, 1994; 61 FR 51022, Sept. 30, 1996; 
66 FR 42451, Aug. 13, 2001]



Sec. 672.4  Filing, service, and form of pleadings and documents.

    (a) Filing of pleadings and documents. (1) Except as otherwise 
provided, the original and one copy of the complaint, and the original 
of the answer and of all other documents served in the proceeding, shall 
be filed with the Hearing Clerk.
    (2) A certificate of service shall accompany each document filed or 
served. Except as otherwise provided, a party filing documents with the 
Hearing Clerk, after the filing of the answer, shall serve copies 
thereof upon all other parties and the Presiding Officer. The Presiding 
Officer shall maintain a duplicate file during the course of the 
proceeding.
    (3) When the Presiding Officer corresponds directly with the 
parties, he shall file the original of the correspondence with the 
Hearing Clerk, maintain a copy in the duplicate file, and send a copy to 
all parties. Parties who correspond directly with the Presiding Officer 
shall in addition to serving all other parties send a copy of all such 
correspondence to the Hearing Clerk. A certificate of service shall 
accompany each document served under this subsection.
    (b) Service of pleadings and documents--(1) Service of complaint. 
(i) Service of a copy of the signed original of the complaint, together 
with a copy of these rules, may be made personally or by certified mail, 
return receipt requested, on the respondent or his representative.
    (ii) Service upon a domestic or foreign corporation or upon a 
partnership or other unincorporated association which is subject to suit 
under a common name shall be made by personal service or certified mail, 
as prescribed by paragraph (b)(1)(i) of this section, directed to an 
officer, partner, a managing or general agent, or to any other person 
authorized by appointment or by Federal or State law to receive service 
of process.
    (iii) Service upon an officer or agency of the United States shall 
be made by delivering a copy of the complaint to the officer or agency, 
or in any manner prescribed for service by applicable regulations. If 
the agency is a corporation, the complaint shall be served as prescribed 
in paragraph (b)(1)(ii) of this section.
    (iv) Service upon a State or local unit of government, or a State or 
local officer, agency, department, corporation or other instrumentality 
shall be

[[Page 212]]

made by serving a copy of the complaint in the manner prescribed by the 
law of the State for the service of process on any such persons, or
    (A) If upon a State or local unit of government, or a State or local 
department, agency, corporation or other instrumentality, by delivering 
a copy of the complaint to the chief executive officer thereof; or
    (B) If upon a State or local officer by delivering a copy to such 
officer.
    (v) Proof of service of the complaint shall be made by affidavit of 
the person making personal service, or by properly executed return 
receipt. Such proof of service shall be filed with the complaint 
immediately upon completion of service.
    (2) The first page of every pleading, letter, or other document 
shall contain a caption identifying the respondent and the docket number 
which is exhibited on the complaint.
    (3) The original of any pleading, letter, or other document (other 
than exhibits) shall be signed by the party filing it or by his 
representative. The signature constitutes a representation by the signer 
that he has read the pleading, letter or other document, that to the 
best of his knowledge, information and belief, the statements made 
therein are true, and that it is not interposed for delay.
    (4) The initial document filed by any person shall contain his name, 
address and telephone number. Any changes in this information shall be 
communicated promptly to the Hearing Clerk, Presiding Officer, and all 
parties to the proceeding. A party who fails to furnish such information 
and any changes thereto shall be deemed to have waived his right to 
notice and service under these rules.



Sec. 672.5  Filing and service of rulings, orders, and decisions.

    (a) All rulings, orders, decisions, and other documents issued by 
the Presiding Officer shall be filed with the Hearing Clerk. Copies of 
all such documents shall be served personally, or by certified mail, 
return receipt requested, upon all parties.
    (b) Computation. In computing any period of time prescribed or 
allowed in these rules, except as otherwise provided, computation is by 
calendar days and does not include the day of the event from which the 
designated period begins to run. When a stated time expires on a 
Saturday, Sunday or legal holiday, the stated time period shall be 
extended to include the next business day.
    (c) Extensions of time. The Presiding Officer may grant an extension 
of time for the filing of any pleading, document, or motion (1) upon 
timely motion of a party to the proceeding, for good cause shown, and 
after consideration of prejudice to other parties, or (2) upon his own 
motion. Such a motion by a party may only be made after notice to all 
other parties, unless the movant can show good cause why serving notice 
is impracticable. The motion shall be filed in advance of the date on 
which the pleading, document or motion is due to be filed, unless the 
failure of a party to make timely motion for extension of time was the 
result of excusable neglect.
    (d) Service by mail. Service of the complaint is complete when the 
return receipt is signed. Service of all other pleadings and documents 
is complete upon mailing. Where a pleading or document is served by 
mail, five (5) days shall be added to the time allowed by these rules 
for the filing of a responsive pleading or document.
    (e) Ex parte discussion of proceeding. At no time after the issuance 
of the complaint shall the Presiding Officer, or any other person who is 
likely to advise these officials in the decision on the case, discuss ex 
parte the merits of the proceeding with any interested person outside 
the Agency, with any Agency staff member who performs a prosecutorial or 
investigative function in the proceeding or other factually related 
proceeding, or with any representative of such person. Any ex parte 
memorandum or other communication addressed to the Presiding Officer 
during the pendency of the proceeding and relating to the merits 
thereof, by or on behalf of any party, shall be regarded as argument 
made in the proceeding and shall be served upon all other parties. The 
Presiding Officer shall give the other parties an opportunity to reply.

[[Page 213]]

    (f) Subject to the provisions of law restricting the public 
disclosure of confidential information, any person may, during Agency 
business hours, inspect and copy any document filed in any proceeding. 
Such documents shall be made available by the Hearing Clerk.
    (g) The person seeking copies of any documents filed in a proceeding 
shall bear the cost of duplication. Upon a formal request the Agency may 
waive this cost in appropriate cases.



Sec. 672.6  Appearances.

    (a) Appearances. Any party may appear in person or by counsel or 
other representative. A partner may appear on behalf of a partnership 
and an officer may appear on behalf of a corporation. Persons who appear 
as counsel or other representative must conform to the standards of 
conduct and ethics required of practitioners before the courts of the 
United States.
    (b) Intervention. A motion for leave to intervene in any proceeding 
conducted under these rules must set forth the grounds for the proposed 
intervention, the position and interest of the movant, and whether the 
intervention will cause delay. Any person already a party to the 
proceeding may file an answer to a motion to intervene, making specific 
reference to the factors set forth in the foregoing sentence and 
paragraph (c) of this section, within ten (10) days after service of the 
motion for leave to intervene.
    (c) A motion for leave to intervene in a proceeding must ordinarily 
be filed before the first prehearing conference, or if there is no such 
conference, prior to the setting of a time and place for a hearing. Any 
motion filed after that time must include, in addition to the 
information set forth in paragraph (b) of this section, a statement of 
good cause for the failure to file in a timely manner. Agreements, 
arrangements, and other matters previously resolved during the 
proceeding are binding on the intervenor.
    (d) Disposition. The Presiding Officer may grant leave to intervene 
only if the movant demonstrates that (1) his presence in the proceeding 
would not unduly prolong or otherwise prejudice the adjudication of the 
rights of the original parties; (2) the movant will be adversely 
affected by a final order; and (3) the interests of the movant are not 
being adequately represented by the original parties. The intervenor 
becomes a full party to the proceeding upon the granting of leave to 
intervene.
    (e) Amicus curiae. Persons not parties to the proceeding who wish to 
file briefs may so move. The motion shall identify the interest of the 
applicant and shall state the reasons why the proposed amicus brief is 
desirable. If the motion is granted, the Presiding Officer or Director 
shall issue an order setting the time for filing such brief. An amicus 
curiae is eligible to participate in any briefing after his motion is 
granted, and shall be served with all briefs, motions, and orders 
relating to issues to be briefed.
    (f) Consolidation. The Presiding Officer may, by motion or sua 
sponte, consolidate any or all matters at issue in two or more 
proceedings docketed under these rules where (1) there exists common 
parties or common questions of fact or law; (2) consolidation would 
expedite and simplify consideration of the issues; and (3) consolidation 
would not adversely affect the rights of parties engaged in otherwise 
separate proceedings.
    (g) Severance. The Presiding Officer may, by motion or sua sponte, 
for good cause shown order any proceedings severed with respect to any 
or all parties or issues.



Sec. 672.7  Issuance of complaint.

    (a) General. If the complainant has reason to believe that a person 
has violated any provision of the Antarctic Conservation Act, other Act 
or attendant regulations, or a permit issued under the ACA, he may 
institute a proceeding for the assessment of a civil penalty or other 
sanctions by issuing a complaint under the Act and these rules.
    (b) If the complainant has reason to believe that (1) a permittee 
violated any term or condition of the permit, or (2) a permittee 
misrepresented or inaccurately described any material fact in the permit 
application or failed to disclose all relevant facts in the permit 
application, or (3) other good cause exists for such action, he may 
institute a

[[Page 214]]

proceeding for the revocation or suspension of a permit by issuing a 
complaint under the Act and these rules. A complaint may seek suspension 
or revocation of a permit in addition to the assessment of a civil 
penalty.
    (c) Content and amendment of the complaint. All complaints shall 
include:
    (1) A statement reciting the section(s) of the Act, regulations, 
and/or permit authorizing the issuance of the complaint;
    (2) A concise statement of the factual basis for all alleged 
violations; and
    (3) Notice of the respondent's right to request a hearing on any 
material fact contained in the complaint, or on the appropriateness of 
the proposed sanction.
    (d) Each complaint for the assessment of a civil penalty shall also 
include:
    (1) Specific reference to each provision of the Act and implementing 
regulations which respondent is alleged to have violated;
    (2) The amount of the civil penalty which is proposed to be 
assessed; and
    (3) A statement explaining the reasoning behind the proposed 
penalty;
    (e) Each complaint for the revocation or suspension of a permit 
shall also include:
    (1) Specific reference to each term or condition of the permit which 
the respondent is alleged to have violated, to each alleged inaccuracy 
or misrepresentation in respondent's permit application, to each fact 
which the respondent allegedly failed to disclose in his permit 
application, or to other reasons which form the basis for the complaint;
    (2) A request for an order to either revoke or suspend the permit 
and a statement of the terms and conditions of any proposed partial 
suspension or revocation; and
    (3) A statement indicating the basis for recommending the 
revocation, rather than the suspension, of the permit, or vice versa.
    A copy of these rules shall accompany each complaint served.
    (f) Derivation of proposed civil penalty. The complainant shall 
determine the dollar amount of the proposed civil penalty in accordance 
with any criteria set forth in the Act and with any civil penalty 
guidance issued by NSF.
    (g) Amendment of the complaint. The complainant may amend the 
complaint once as a matter of right at any time before the answer is 
filed. Otherwise the complainant may amend the complaint only upon 
motion granted by the Presiding Officer. Respondent shall have twenty 
(20) additional days from the date of service of the amended complaint 
to file his answer.
    (h) Withdrawal of the complaint. The complainant may withdraw the 
complaint, or any part thereof, without prejudice one time before the 
answer has been filed. After one withdrawal before the filing of an 
answer, or after the filing of an answer, the complainant may withdraw 
the complaint, or any part thereof, without prejudice, only upon motion 
granted by the Presiding Officer.
    (i) Complainant, in cooperation with the Office of General Counsel, 
may refer cases to the Department of Justice for possible criminal 
prosecution if there is reason to believe that respondent willfully 
violated the Antarctic Conservation Act or its attendant regulations. 
Such referral does not automatically preclude NSF from proceeding 
administratively under the Act and these rules against the same 
respondent.



Sec. 672.8  Answer to the complaint.

    (a) General. Where respondent (1) contests any material fact upon 
which the complaint is based; (2) contends that the amount of the 
penalty proposed in the complaint or the proposed revocation or 
suspension, as the case may be, is inappropriate; or (3) contends that 
he is entitled to judgment as a matter of law, he shall file a written 
answer to the complaint with the Hearing Clerk. Any such answer to the 
complaint must be filed with the Hearing Clerk within twenty (20) days 
after service of the complaint.
    (b) Contents of the answer. The answer shall clearly and directly 
admit, deny or explain each of the factual allegations contained in the 
complaint. If respondent asserts he has no knowledge of a particular 
factual allegation, the

[[Page 215]]

allegation is deemed denied. The answer shall also state (1) the 
circumstances or arguments which are alleged to constitute the grounds 
of defense; (2) the facts which respondent intends to place at issue; 
and (3) whether a hearing is requested.
    (c) Request for hearing. A hearing upon the issues raised by the 
complaint and answer shall be held upon request of respondent in the 
answer. The Presiding Officer may deem the right to a hearing waived if 
it is not requested by respondent. In addition, a hearing may be held at 
the discretion of the Presiding Officer, sua sponte, to examine issues 
raised in the answer.
    (d) Failure to admit, deny, or explain. Failure of respondent to 
admit, deny, or explain any material factual allegation contained in the 
complaint constitutes an admission of the allegation.
    (e) Amendment of the answer. The respondent may amend the answer to 
the complaint upon motion granted by the Presiding Officer.



Sec. 672.9  Motions.

    (a) General. All motions, except those made orally on the record 
during a hearing, shall (1) be in writing; (2) state the basis or 
grounds with particularity; (3) set forth the relief or order sought; 
and (4) be accompanied by any affidavit, certificate, or other evidence 
or legal memorandum relied upon.
    (b) Response to motions. A party must file a response to any written 
motion within ten (10) days after service of such motion, unless the 
Presiding Officer allows additional time. The response shall be 
accompanied by any affidavit, certificate, other evidence, or legal 
memorandum relied upon. If no response is filed within the designated 
period, the Presiding Officer may deem the parties to have waived any 
objection to the granting of the motion. The Presiding Officer may also 
set a shorter time for response, or make such other appropriate orders 
concerning the disposition of motions.
    (c) Ruling on Motions. The Presiding Officer shall rule on all 
motions, unless otherwise provided in these rules. The Presiding Officer 
may permit oral argument if he considers it necessary or desirable.



Sec. 672.10  Default order.

    (a) Default. The Presiding Officer may find a party in default (1) 
after motion, upon failure to file a timely answer to the complaint; (2) 
after motion or sua sponte, upon failure to comply with a prehearing or 
hearing order of the Presiding Officer; or (3) after motion or sua 
sponte, upon failure to appear at a conference or hearing without good 
cause being shown. No finding of default on the basis of a failure to 
appear at a hearing shall be made against the respondent unless the 
complainant presents sufficient evidence to the Presiding Officer to 
establish a prima facie case against the respondent. Any motion for a 
default order shall include a proposed default order and shall be served 
upon all parties. The alleged defaulting party shall have twenty (20) 
days from service to reply to the motion. Default by respondent 
constitutes, for purposes of the pending action only, an admission of 
all facts alleged in the complaint and a waiver of respondent's right to 
a hearing on such factual allegations. If the complaint is for the 
assessment of a civil penalty, the penalty proposed in the complaint 
shall become due and payable by respondent without further proceedings 
sixty (60) days after a final order issued upon default. If the 
complaint is for the revocation or suspension of a permit, the 
conditions of revocation or suspension proposed in the complaint shall 
become effective without further proceedings on the date designated by 
the Presiding Officer in his final order issued upon default. Default by 
the complainant shall result in the dismissal of the complaint with 
prejudice.
    (b) Procedures upon default. When the Presiding Officer finds a 
default has occurred, he shall issue a default order against the 
defaulting party. This order shall constitute the initial decision, and 
shall be filed with the Hearing Clerk.
    (c) Contents of a default order. A default order shall include 
findings of fact showing the grounds for the order, conclusions 
regarding all material issues of law or discretion, and the penalty 
which is recommended, or the terms and conditions of permit revocation 
or suspension, or other sanctions.

[[Page 216]]

    (d) The Presiding Officer may set aside a default order for good 
cause shown.



Sec. 672.11  Informal settlement; consent agreement and order.

    (a) Settlement policy. The Agency encourages settlement of a 
proceeding at any time if the settlement is consistent with the 
provisions and objectives of the Act and applicable regulations. The 
respondent may confer with complainant concerning settlement whether or 
not the respondent requests a hearing. Settlement conferences shall not 
affect the respondent's obligation to file a timely answer.
    (b) Consent agreement. The parties shall forward a written consent 
agreement and a proposed consent order to the Presiding Officer whenever 
settlement or compromise is proposed. The consent agreement shall state 
that, for the purpose of this proceeding, respondent (1) admits the 
jurisdictional allegations of the complaint; (2) admits the facts 
stipulated in the consent agreement or neither admits nor denies 
specific factual allegations contained in the complaint; and (3) 
consents to the assessment of a stated civil penalty or to the stated 
permit revocation or suspension, or to other sanctions or actions in 
mitigation. The consent agreement shall include any and all terms of the 
agreement, and shall be signed by all parties or their counsel or 
representatives.
    (c) Consent order. No settlement or consent agreement shall dispose 
of any proceeding under the rules without a consent order from the 
Director or his delegatee. Before signing such an order, the Director or 
his delegatee may require that the parties to the settlement appear 
before him to answer inquiries relating to the consent agreement or 
order.
    (d) Actions by respondent to clean, protect, enhance, or benefit the 
environment. NSF may accept from respondent environmentally beneficial 
actions, in lieu of penalties, in whole or in part, assessed under the 
Antarctic Conservation Act. An assessment of the monetary value of any 
action in mitigation shall be made before that action is incorporated as 
a part of any consent agreement and order.



Sec. 672.12  Prehearing conference.

    (a) Purpose of prehearing conference. Unless a conference appears 
unnecessary, the Presiding Officer, at any time before the hearing 
begins, shall direct the parties and their counsel or other 
representatives to appear at a conference before him to consider:
    (1) The settlement of the case;
    (2) The simplification of issues and stipulation of facts not in 
dispute;
    (3) The necessity or desirability of amendments to pleadings;
    (4) The exchange of exhibits, documents, prepared testimony, and 
admissions or stipulations of fact which will avoid unnecessary proof;
    (5) The limitation of the number of expert or other witnesses;
    (6) Setting a time and place for the hearing; and
    (7) Any other matters which may expedite the proceeding.
    (b) Exchange of witness lists and documents. Unless otherwise 
ordered by the Presiding Officer, each party at the prehearing 
conference shall make available to all other parties (1) the names of 
the expert and other witnesses he intends to call, together with a brief 
narrative summary of their expected testimony, and (2) copies of all 
documents and exhibits which each party intends to introduce into 
evidence. Documents and exhibits shall be marked for identification as 
ordered by the Presiding Officer. The Presiding Officer may exclude from 
evidence any document or testimony not disclosed at the prehearing 
conference. If the Presiding Officer permits the submittal of new 
evidence, he will grant parties a reasonable opportunity to respond.
    (c) Record of the prehearing conference. No transcript of a 
prehearing conference relating to settlement shall be made. With respect 
to other prehearing conferences, no transcript of any prehearing 
conferences shall be made unless ordered by the Presiding Officer upon 
motion of a party or sua sponte. The Presiding Officer shall prepare and 
file for the record a written summary of the action taken at the 
conference. The summary shall incorporate any written stipulations or 
agreements of the parties and all rulings and appropriate orders 
containing directions to the parties.

[[Page 217]]

    (d) Unavailability of a prehearing conference. If a prehearing 
conference is unnecessary or impracticable, the Presiding Officer, on 
motion or sua sponte, may conduct a telephonic conference or direct the 
parties to correspond with him to accomplish any of the objectives set 
forth in this section.
    (e) Other discovery. (1) Except as provided by paragraph (b) of this 
section, further discovery shall be permitted only upon determination by 
the Presiding Officer that (i) such discovery will not in any way 
unreasonably delay the proceeding; (ii) the information to be obtained 
is not otherwise obtainable; and (iii) such information has significant 
probative value.
    (2) The Presiding Officer shall order depositions upon oral 
questions only upon a showing of good cause and upon a finding that (i) 
the information sought cannot be obtained by alternative methods; or 
(ii) there is substantial reason to believe that relevant and probative 
evidence may otherwise not be preserved for presentation by a witness at 
the hearing.
    (3) Any party may request further discovery by motion. Such a motion 
shall set forth (i) the circumstances warranting the taking of the 
discovery; (ii) the nature of the information expected to be discovered; 
and (iii) the proposed time and place where it will be taken. If the 
Presiding Officer determines that the motion should be granted, he shall 
issue an order granting discovery, with any qualifying conditions and 
terms.
    (4) When the information sought to be obtained is within the control 
of one of the parties, failure to comply with an order issued pursuant 
to this paragraph may lead to (i) the inference that the information to 
be discovered would be adverse to the party from whom the information 
was sought; or (ii) the issuance of a default.



Sec. 672.13  Accelerated decision; decision to dismiss.

    (a) General. The Presiding Officer, upon motion of any party or sua 
sponte, may at any time render an accelerated decision in favor of the 
complainant or the respondent as to all or any part of the proceeding, 
without further hearing or upon such limited additional evidence, such 
as affidavits, as he may require, if no genuine issue of material fact 
exists and a party is entitled to judgment as a matter of law regarding 
all or any part of the proceeding. In addition, the Presiding Officer, 
upon motion of the respondent, may at any time dismiss an action without 
further hearing or upon such limited additional evidence as he requires, 
if complainant fails to establish a prima facie case, or if other 
grounds show complainant has no right to relief.
    (b) Effect. (1) If an accelerated decision or a decision to dismiss 
is issued as to all the issues and claims in the proceeding, the 
decision constitutes an initial decision of the Presiding Officer, and 
shall be filed with the Hearing Clerk.
    (2) If an accelerated decision or a decision to dismiss is rendered 
on less than all issues or claims in the proceeding, the Presiding 
Officer shall determine what material facts exist without substantial 
controversy and what material facts remain controverted in good faith. 
He shall then issue an interlocutory order specifying the facts which 
appear substantially uncontroverted, and the issues and claims upon 
which the hearing will proceed.



Sec. 672.14  Scheduling the hearing.

    (a) When an answer is filed, the Hearing Clerk shall forward the 
complaint, the answer, and any other documents filed thus far in the 
proceeding to the Presiding Officer, who will notify the parties of his 
assignment.
    (b) Notice of hearing. If the respondent requests a hearing in his 
answer, or one is ordered by the Presiding Officer, the Presiding 
Officer shall serve upon the parties a notice setting forth a time and 
place for the hearing. The Presiding Officer may issue the notice of 
hearing at any appropriate time, but not later than twenty (20) days 
prior to the date set for the hearing.
    (c) Postponement of hearing. The Presiding Officer will not grant a 
request for postponement of a hearing except upon motion and for good 
cause shown.

[[Page 218]]



Sec. 672.15  Evidence.

    (a) General. The Presiding Officer shall admit all evidence which is 
not irrelevant, immaterial, unduly repetitious, or otherwise unreliable 
or of little probative value. Notwithstanding the preceding sentence, 
evidence relating to settlement which would be excluded in the federal 
courts under Ru1e 408 of the Federal Rules of Evidence is inadmissible. 
In the presentation, admission, disposition, and use of evidence, the 
Presiding Officer shall preserve the confidentiality of trade secrets 
and other commercial and financial information. The confidential or 
trade secret status of any information shall not, however, preclude its 
introduction into evidence. The Presiding Officer may review such 
evidence in camera, and issue appropriate protective orders.
    (b) Examination of witnesses. Parties shall examine witnesses 
orally, under oath or affirmation, except as otherwise provided in these 
rules or by the Presiding Officer. Parties shall have the right to 
cross-examine a witness who appears at the hearing.
    (c) Verified statements. The Presiding Officer may admit into the 
record as evidence, in lieu of oral testimony, statements of fact or 
opinion prepared by a witness. The admissibility of the evidence 
contained in the statement shall be subject to the same rules as if the 
testimony were produced under oral examination. Before any such 
statement is read or admitted into evidence, the witness shall deliver a 
copy of the statement to the Presiding Officer, the reporter, and 
opposing counsel. The witness presenting the statement shall swear to or 
affirm the statement and shall be subject to appropriate oral cross-
examination.
    (d) Admission of affidavits where the witness is unavailable. The 
Presiding Officer may admit into evidence affidavits of witnesses who 
are ``unavailable,'' within the meaning of that term under Rule 804(a) 
of the Federal Rules of Evidence.
    (e) Exhibits. Where practicable, an original and one copy of each 
exhibit shall be filed with the Presiding Officer for the record and a 
copy shall be furnished to each party. A true copy of any exhibit may be 
substituted for the original.
    (f) Official notice. Official notice may be taken of any matter 
judicially noticeable in the Federal courts and of other facts within 
the specialized knowledge and experience of the Agency. Opposing parties 
shall be given adequate opportunity to show that such facts are 
erroneously noticed.



Sec. 672.16  Objections and offers of proof.

    (a) Objection. Any objection concerning the conduct of the hearing 
may be made orally or in writing during the hearing. The party raising 
the objection must supply a short statement of its grounds. The ruling 
by the Presiding Officer on any objection and the reasons given for it 
shall be part of the record. An exception to each objection overruled 
shall be automatic and is not waived by further participation in the 
hearing.
    (b) Offer of proof. Whenever evidence is excluded from the record, 
the party offering the evidence may make an offer of proof, which shall 
be included in the record. The offer of proof for excluded oral 
testimony shall consist of a brief statement describing the nature of 
the evidence excluded. The offer of proof for excluded documents or 
exhibits shall consist of the insertion in the record of the documents 
or exhibits excluded.



Sec. 672.17  Burden of presentation; burden of persuasion.

    The complainant has the burden of going forward with and of proving 
that the violation occurred as set forth in the complaint and that the 
proposed civil penalty, revocation, suspension, or other sanction, is 
appropriate. Following the establishment of a prima facie case, 
respondent has the burden of presenting and of going forward with any 
defense to the allegations set forth in the complaint. The Presiding 
Officer shall decide all controverted matters upon a preponderance of 
the evidence.



Sec. 672.18  Filing the transcript.

    The hearing shall be transcribed verbatim. After the Presiding 
Officer closes the record, the reporter shall promptly transmit the 
original and certified copies to the Hearing Clerk,

[[Page 219]]

and one certified copy directly to the Presiding Officer. A certificate 
of service shall accompany each copy of the transcript. The Hearing 
Clerk shall notify all parties of the availability of the transcript and 
shall furnish the parties with a copy of the transcript upon payment of 
the cost of reproduction, unless a party can show that the cost is 
unduly burdensome. Any person not a party to the proceeding may obtain a 
copy of the transcript upon payment of the reproduction fee, except for 
those parts of the transcript ordered to be kept confidential by the 
Presiding Officer.



Sec. 672.19  Proposed findings, conclusions, and order.

    Unless otherwise ordered by the Presiding Officer, any party may 
submit proposed findings of fact, conclusions of law, and a proposed 
order, together with supporting briefs, within twenty (20) days after 
the parties are notified of the availability of the transcript. The 
Presiding Officer shall set a time by which reply briefs must be 
submitted. All submissions shall be in writing, shall be served upon all 
parties, and shall contain adequate references to the record and relied-
upon authorities.



Sec. 672.20  Initial decision.

    (a) Filing and contents. The Presiding Officer shall issue and file 
with the Hearing Clerk an initial decision as soon as practicable after 
the period for filing reply briefs, if any, has expired. The initial 
decision shall contain findings of fact, conclusions regarding all 
material issues of law or discretion, the reasons for the findings and 
conclusions, a recommended civil penalty assessment or other sanction, 
if appropriate, and a proposed final order. Upon receipt of an initial 
decision, the Hearing Clerk shall forward a copy to all parties, and 
shall send the original, along with the record of the proceeding, to the 
Director.
    (b) Amount of civil penalty. If the Presiding Officer determines 
that a violation has occurred, he shall set the dollar amount of the 
recommended civil penalty in the initial decision in accordance with any 
criteria set forth in the Act, and must consider any civil penalty 
guidelines issued by NSF. If the Presiding Officer decides to assess a 
penalty different in amount from the penalty recommended in the 
complaint, he shall set forth in the initial decision the specific 
reasons for the increase or decrease. The Presiding Officer shall not 
raise a penalty from that recommended in the complaint if the respondent 
has defaulted.
    (c) Effect of initial decision. The initial decision of the 
Presiding Officer shall become the final order of the Agency within 
forty-five (45) days after its service upon the parties and without 
further proceedings unless (1) an appeal to the Director is filed by a 
party to the proceedings; or (2) the Director elects, sua sponte, to 
review the initial decision.
    (d) Motion to reopen a hearing. A motion to reopen a hearing to take 
further evidence must be made no later than twenty (20) days after 
service of the initial decision on the parties and shall (1) state the 
specific grounds upon which relief is sought; (2) state briefly the 
nature and purpose of the evidence to be adduced; (3) show that such 
evidence is not cumulative; and (4) show good cause why such evidence 
was not adduced at the hearing. The motion shall be made to the 
Presiding Officer and filed with the Hearing Clerk. Parties shall have 
ten (10) days following service to respond. The Presiding Officer shall 
grant or deny such motion as soon as practicable. The conduct of any 
proceeding which may be required as a result of the granting of any 
motion to reopen shall be governed by the provisions of the applicable 
sections of these rules. The filing of a motion to reopen a hearing 
shall automatically stay the running of all time periods specified under 
these Rules until such time as the motion is denied or the reopened 
hearing is concluded.



Sec. 672.21  Appeal from or review of interlocutory orders or rulings.

    (a) Request for interlocutory orders or rulings. Except as provided 
in this section, appeals to the Director or, upon delegation, to the 
General Counsel, shall obtain as a matter of right only

[[Page 220]]

from a default order, an accelerated decision or decision to dismiss, or 
an initial decision rendered after an evidentiary hearing. Appeals from 
other orders or rulings shall lie only if the Presiding Officer, upon 
motion of a party, certifies such orders or rulings to the Director on 
appeal. Requests for such certification shall be filed in writing within 
six (6) days of notice of the ruling or service of the order, and shall 
state briefly the grounds to be relied upon on appeal.
    (b) Availability of interlocutory appeal. The Presiding Officer may 
certify any ruling for appeal to the Director when (1) the order or 
ruling involves an important question of law or policy and there is 
substantial grounds for difference of opinion; and (2) either (i) an 
immediate appeal from the order or ruling will materially advance the 
ultimate resolution of the proceeding, or (ii) review after the final 
order is issued will be inadequate or ineffective.
    (c) Decision. If the Director or the General Counsel takes no action 
within thirty (30) days of the certification, the appeal is dismissed. 
If the Director or the General Counsel decides to hear the interlocutory 
appeal, he shall make and transmit his findings and conclusions to the 
Presiding Officer. When the Presiding Officer declines to certify an 
order or ruling to the Director on interlocutory appeal, it may be 
reviewed by the Director only upon appeal from the initial decision.
    (d) Stay of proceedings. The Presiding Officer may stay the 
proceedings for an interlocutory appeal. Proceedings will not be stayed 
except in extraordinary circumstances. Where the Presiding Officer 
grants a stay of more than thirty (30) days, such stay must be 
separately approved by the Director.



Sec. 672.22  Appeal from or review of initial decision.

    (a) Notice of appeal. Any party may appeal any adverse initial 
decision of the Presiding Officer by filing a notice of appeal and an 
accompanying appellate brief with the Hearing Clerk and upon all other 
parties and amicus curiae within twenty (20) days after the initial 
decision is served upon the parties. The notice of appeal shall set 
forth alternative findings of fact, alternative conclusions regarding 
issues of law or discretion, and a proposed order together with relevant 
references to the record and the initial decision. The appellant's brief 
shall contain a statement of the issues presented for review, argument 
on the issues presented, and a short conclusion stating the precise 
relief sought, together with appropriate references to the record. 
Within twenty (20) days of the service of notices of appeal and briefs, 
any other party or amicus curiae may file with the Hearing Clerk a reply 
brief responding to argument raised by the appellant, together with 
references to the relevant portions of the record, initial decision, or 
opposing brief. Reply briefs shall be limited to the scope of the appeal 
brief.
    (b) Sua sponte review by the Director. Whenever the Director 
determines sua sponte to review an initial decision, the Hearing Clerk 
shall serve notice of such intention on the parties within forty-five 
(45) days after the initial decision is served upon the parties. The 
notice shall include a statement of issues to be briefed by the parties 
and a time schedule for the service and filing of briefs.
    (c) Scope of appeal or review. The appeal of the initial decision 
shall be limited to those issues raised by the parties during the course 
of the proceeding. If the Director determines that issues raised, but 
not appealed by the parties, should be argued, he shall give the parties 
or their representatives written notice of such determination to permit 
preparation of adequate argument. Nothing herein shall prohibit the 
Director from remanding the case to the Presiding Officer for further 
proceedings.
    (d) Argument. The Director may, upon request of a party or sua 
sponte, assign a time and place for oral argument.



Sec. 672.23  Final order on appeal.

    (a) Contents of the final order. When an appeal has been taken or 
the Director issues a notice of intent to conduct review sua sponte, the 
Director shall issue a final order as soon as practicable after the 
filing of all appellate briefs or oral argument. The Director shall 
adopt, modify or set aside the findings and conclusions contained in

[[Page 221]]

the decision or order being reviewed and shall set forth in the final 
order the reasons for his actions. The Director may, in his discretion, 
increase or decrease the assessed penalty from the amount recommended in 
the decision or order being reviewed, except that if the order being 
reviewed is a default order, the Director may not increase the amount of 
the penalty.
    (b) Payment of a civil penalty. The respondent shall pay the full 
amount of the civil penalty assessed in the final order within sixty 
(60) days after receipt of the final order unless otherwise agreed by 
the parties. Payment shall be made by forwarding to the Hearing Clerk a 
cashier's check or certified check in the amount of the penalty assessed 
in the final order, payable to the Treasurer, United States of America.
    (c) Money due and owing the United States by virtue of an unappealed 
final decision or settlement order may be collected by referral to the 
Department of Justice for appropriate civil action against respondent.



Sec. 672.24  Maximum civil monetary penalties for violations.

    (a) For violations occurring before August 1, 1998, the maximum 
civil penalty that may be assessed under Sec. Sec. 672.20(b) and 
672.23(a) is set by the statute at $5,000 for any violation and $10,000 
for knowing violations.
    (b) For violations occurring between August 1, 1998 and August 31, 
2002, the maximum civil penalty was adjusted under authority of the 
Federal Civil Penalties Inflation Adjustment Act of 1990 (28 U.S.C. 2461 
note) as amended by the Debt Collection Improvement Act of 1996 (Pub. L. 
104-134) to $5,500 for any violation and $11,000 for knowing violations.
    (c) For violations occurring after August 31, 2002, the maximum 
civil penalty is adjusted under authority of the Federal Civil Penalties 
Inflation Adjustment Act of 1990 (28 U.S.C. 2461 note) as amended by the 
Debt Collection Improvement Act of 1996 (Pub. L. 104-134) to $6,500 for 
any violation and $11,000 for knowing violations.

[67 FR 55729, Aug. 30, 2002]



PART 673_ANTARCTIC NON-GOVERNMENTAL EXPEDITIONS--Table of Contents




Sec.
673.1 Purpose of regulations.
673.2 Scope.
673.3 Definitions.
673.4 Environmental protection information.
673.5 Emergency response plan.

    Authority: 16 U.S.C. 2401 et. seq.

    Source: 66 FR 42451, Aug. 13, 2001, unless otherwise noted.



Sec. 673.1  Purpose of regulations.

    The purpose of the regulations in this part is to implement the 
Antarctic Conservation Act of 1978, Public Law 95-541, as amended by the 
Antarctic Science, Tourism and Conservation Act of 1996, Public Law 104-
227, and Article 15 of the Protocol on Environmental Protection to the 
Antarctic Treaty done at Madrid on October 4, 1991. Specifically, this 
part requires that all non-governmental expeditions, for which advance 
notice by the United States is required under the Antarctic Treaty, who 
use non-flagged vessels ensure that the vessel owner or operator has an 
appropriate emergency response plan. This part is also designed to 
ensure that expedition members are informed of their environmental 
protection obligations under the Antarctic Conservation Act.

(Approved by the Office of Management and Budget under control number 
3145-0180)



Sec. 673.2  Scope.

    The requirements in this part apply to non-governmental expeditions 
to or within Antarctica for which the United States is required to give 
advance notice under Paragraph (5) of Article VII of the Antarctic 
Treaty.



Sec. 673.3  Definitions.

    In this part:
    Antarctica means the area south of 60 degrees south latitude.
    Expedition means an activity undertaken by one or more non-
governmental persons organized within or proceeding from the United 
States to or within Antarctica for which advance

[[Page 222]]

notification is required under Paragraph 5 of Article VII of the 
Antarctic Treaty.
    Person has the meaning given that term in section 1 of title 1, 
United States Code, and includes any person subject to the jurisdiction 
of the United States except that the term does not include any 
department, agency, or other instrumentality of the Federal Government.



Sec. 673.4  Environmental protection information.

    (a) Any person who organizes a non-governmental expedition to 
Antarctica and who does business in the United States shall notify 
expedition members of the environmental protection obligations of the 
Antarctic Conservation Act.
    (b) The National Science Foundation's Office of Polar Programs may 
prepare for publication and distribution explanation of the prohibited 
acts set forth in the Antarctic Conservation Act, as well as other 
appropriate educational material for tour operators, their clients, and 
employees. Such material provided to tour operators for distribution to 
their passengers and crew shall be disseminated prior to or during 
travel to the Antarctic.



Sec. 673.5  Emergency response plan.

    Any person organizing a non-governmental expedition to or within 
Antarctica who is transporting passengers aboard a non-U.S. flagged 
vessel shall ensure that:
    (a) The vessel owner's or operator's shipboard oil pollution 
emergency plan, prepared and maintained according to Regulation 26 of 
Annex I of the International Convention for the Prevention of Pollution 
from Ships, 1973, as modified by the Protocol of 1978 relating thereto 
(MARPOL 73/78), has provisions for prompt and effective response action 
to such emergencies as might arise in the performance of the vessel's 
activities in Antarctica. Any emergency response plan which satisfies 
the requirements contained in 33 CFR 151.26 of the U.S. Coast Guard 
regulations will also satisfy the requirements of this paragraph. If the 
vessel owner or operator does not have a shipboard oil pollution 
emergency plan, a separate plan for prompt and effective response action 
is required.
    (b) The vessel owner or operator agrees to take all reasonable 
measures to implement the plan for a prompt and effective response 
action in the event of an emergency, taking into account considerations 
of risk to human life and safety.



PART 674_ANTARCTIC METEORITES--Table of Contents




Sec.
674.1 Purpose of regulations.
674.2 Scope and applicability.
674.3 Definitions.
674.4 Restrictions on collection of meteorites in Antarctica.
674.5 Requirements for collection, handling, documentation and curation 
          of Antarctic meteorites.
674.6 Submission of information to NSF.
674.7 Exception for serendipitous finds.

    Authority: 16 U.S.C. 2401 et seq.

    Source: 68 FR 15379, Mar. 31, 2003, unless otherwise noted.



Sec. 674.1  Purpose of regulations.

    The purpose of the regulations in this part is to implement the 
Antarctic Conservation Act of 1978, as amended by the Antarctic Science, 
Tourism and Conservation Act of 1996, (16 U.S.C 2401 et seq.), and 
Article 7 of the Protocol on Environmental Protection to the Antarctic 
Treaty done at Madrid on October 4, 1991. Specifically, this part is 
designed to ensure meteorites in Antarctica will be collected for 
scientific research purposes only and that U.S. expedition organizers to 
Antarctica who plan to collect meteorites in Antarctica will ensure that 
any specimens collected will be properly collected, handled, documented 
and curated to preserve their scientific value.



Sec. 674.2  Scope and applicability.

    This part applies to any person who collects meteorites in 
Antarctica. The requirements of Sec. 674.5 apply to any person 
organizing an expedition to or within Antarctica for which the United 
States is required to give advance notice under Paragraph (5) of Article 
VII of the Antarctic Treaty where one of the purposes of the expedition 
is to collect meteorites in Antarctica. The requirements in this part 
only apply to

[[Page 223]]

the collection of meteorites in Antarctica after April 30, 2003.



Sec. 674.3  Definitions.

    In this part:
    Antarctica means the area south of 60 degrees south latitude.
    Expedition means an activity undertaken by one or more persons 
organized within or proceeding from the United States to or within 
Antarctica for which advance notification is required under Paragraph 5 
of Article VII of the Antarctic Treaty.
    Incremental cost is the extra cost involved in sharing the samples 
with other researchers. It does not include the initial cost of 
collecting the meteorites in Antarctica or the cost of maintaining the 
samples in a curatorial facility.
    Person has the meaning given that term in section 1 of title 1, 
United States Code, and includes any person subject to the jurisdiction 
of the United States.



Sec. 674.4  Restrictions on collection of meteorites in Antarctica.

    No person may collect meteorites in Antarctica for other than 
scientific research purposes.



Sec. 674.5  Requirements for collection, handling, documentation, and
curation of Antarctic meteorites.

    (a) Any person organizing an expedition to or within Antarctica, 
where one of the purposes of the expedition is to collect meteorites in 
Antarctica, shall ensure that the meteorites will be properly collected, 
documented, handled, and curated to preserve their scientific value. 
Curation includes making specimens available to bona fide scientific 
researchers on a timely basis, in accordance with specified procedures.
    (b) Expedition organizers described in paragraph (a) of this section 
shall develop and implement written procedures for the collection, 
documentation, and curation of specimens which include the following 
components:
    (1) Handling requirements. Handling procedures shall ensure that the 
specimens are properly labeled and handled to minimize the potential for 
contamination from the point of collection to the point of curation. At 
a minimum, handling procedures shall include:
    (i) Handling the samples with clean Teflon or polyethylene coated 
implements or stainless steel implements (or equivalent);
    (ii) Double bagging of samples in Teflon or polyethylene (or 
equivalent) bags;
    (iii) A unique sample identifier included with the sample;
    (iv) Keeping the samples frozen at or below -15 [deg]C until opened 
and thawed in a clean laboratory setting at the curation facility; and
    (v) Thawing in a clean, dry, non-reactive gas environment, such as 
nitrogen or argon.
    (2) Sample documentation. Documentation for each specimen, that 
includes, at a minimum:
    (i) A unique identifier for the sample;
    (ii) The date of find;
    (iii) The date of collection (if different from date of find);
    (iv) The latitude and longitude to within 500 meters of the location 
of the find and the name of the nearest named geographical feature;
    (v) The name, organizational affiliation, and address of the finder 
or the expedition organizer;
    (vi) A physical description of the specimen and of the location of 
the find; and
    (vii) Any observations of the collection activity, such as potential 
contamination of the specimen.
    (3) Curation. Make prior arrangements to ensure that any specimens 
collected in Antarctica will be maintained in a curatorial facility that 
will:
    (i) Preserve the specimens in a manner that precludes chemical or 
physical degradation;
    (ii) Produce an authoritative classification for meteorites that can 
be shown to belong to a well-established chemical and petrological 
group, and provide appropriate descriptions for those meteorites that 
cannot be shown to belong to an established chemical and petrological 
group;
    (iii) Develop and maintain curatorial records associated with the 
meteorites including collection information, authoritative 
classification, total known mass, information about handling and sample 
preparation activities that have

[[Page 224]]

been performed on the meteorite, and sub-sample information;
    (iv) Submit an appropriate summary of information about the 
meteorites to the Antarctic Master Directory via the National Antarctic 
Data Coordination Center as soon as possible, but no later than two 
years after receipt of samples at the curatorial facility;
    (v) Submit information on classification of the meteorite to an 
internationally recognized meteorite research catalog, such as the 
``Catalogue of Meteorites'' published by the Natural History Museum of 
London or the ``Meteoritical Bulletin'' published by the Meteoritical 
Society;
    (vi) Specify procedures by which requests for samples by bonafide 
scientific researchers will be handled;
    (vii) Make samples available to bonafide scientific researchers at 
no more than incremental cost and within a reasonable period of time; 
and
    (viii) In the event that the initial curatorial facility is no 
longer in a position to provide curation services for the specimens, or 
believes that the meteorites no longer merit curation, it shall consult 
with the National Science Foundation's Office of Polar Programs to 
identify another appropriate curatorial facility, or to determine 
another appropriate arrangement.



Sec. 674.6  Submission of information to NSF.

    A copy of the written procedures developed by expedition organizers 
pursuant to Sec. 674.5(b) shall be furnished to the National Science 
Foundation's Office of Polar Programs at a minimum of 90 days prior to 
the planned departure date of the expedition for Antarctica. NSF shall 
publish a notice of availability of the plan in the Federal Register 
that provides for a 15 day comment period. NSF shall evaluate the 
procedures in the plan to determine if they are sufficient to ensure 
that the meteorites will be properly collected, handled, documented, and 
curated. NSF shall provide comments on the adequacy of the plan within 
45 days of receipt. If NSF advises the expedition organizer that the 
procedures satisfy the requirements of Sec. 674.5 and the procedures 
are implemented, the expedition organizer will have satisfied the 
requirements of this part.



Sec. 674.7  Exception for serendipitous finds.

    A person who makes a serendipitous discovery of a meteorite in 
Antarctica which could not have been reasonably anticipated, may collect 
the meteorite for scientific research purposes, provided that the 
meteorite is collected in the manner most likely to prevent 
contamination under the circumstances, and provided that the meteorite 
is otherwise handled, documented and curated in accordance with the 
requirements of Sec. 674.5.



PART 675_MEDICAL CLEARANCE PROCESS FOR DEPLOYMENT TO ANTARCTICA--
Table of Contents




Sec.
675.1 Purpose and authority.
675.2 Medical examinations.
675.3 Medical clearance criteria.
675.4 Waiver process.

    Authority: 42 U.S.C. 1870.

    Source: 62 FR 31522, June 10, 1997, unless otherwise noted.



Sec. 675.1  Purpose and authority.

    (a) This part sets forth the procedures for medical screening to 
determine whether candidates for participation in the United States 
Antarctic Program (USAP) are physically qualified and psychologically 
adapted for assignment or travel to Antarctica. Medical screening 
examinations are necessary to determine the presence of any physical or 
psychological conditions that would threaten the health or safety of the 
candidate or other USAP participants or that could not be effectively 
treated by the limited medical care capabilities in Antarctica.
    (b) Presidential Memorandum No. 6646 (February 5, 1982) (available 
from the National Science Foundation, Office of Polar Programs, room 
755, 4201 Wilson Blvd., Arlington, VA 22230) sets forth the National 
Science Foundation's overall management responsibilities for the entire 
United States national program in Antarctica.

[[Page 225]]



Sec. 675.2  Medical examinations.

    (a) Any individual seeking to travel to Antarctica under sponsorship 
of the United States Antarctic Program must undergo a medical and dental 
examination to determine whether the individual is physically qualified 
for deployment to Antarctica.
    (b) The medical and dental examinations may be conducted by a 
qualified licensed physician or dentist of the candidate's choosing, or 
designated by the employing organization, following instructions 
provided by the USAP. The medical examinations shall include a medical 
history, physical examination and appropriate clinical tests which 
address major organ systems for medical conditions inconsistent with 
safe deployment to Antarctica.
    (c) The candidate's physician/dentist will submit the required 
medical information on the appropriate USAP-provided forms to a USAP-
designated physician who will determine whether the individual is 
qualified for deployment to Antarctica based upon Medical Clearance 
Criteria established by the USAP. All information requested on the forms 
shall be provided.
    (d) Candidates who anticipate spending the austral winter in 
Antarctica (when evacuation may be impossible) are subject to additional 
evaluation, including a determination of psychological adaptability for 
such an isolated assignment. Psychological evaluations of ``winter-
over'' candidates shall be performed by a qualified team of USAP-
designated physicians/clinical psychologists.



Sec. 675.3  Medical clearance criteria.

    (a) The USAP shall establish Medical Clearance Criteria for 
determining eligibility for deployment to Antarctica. (See Medical 
Standards for Antarctic Deployment available from the National Science 
Foundation, Office of Polar Programs, room 755.09, 4201 Wilson Blvd., 
Arlington, VA 22230).
    The criteria will include examination of the following major organ 
systems:
    (1) Lungs and chest wall.
    (2) Heart and vascular system.
    (3) Abdominal organs and gastrointestinal system.
    (4) Endocrine or metabolic system.
    (5) Genitalia and urinary system.
    (6) Musculoskeletal.
    (7) Skin and cellular tissues.
    (8) Neurological Disorders.
    (9) Psychiatric or psychological.
    (10) Dental.
    (b) The USAP may review and revise the Medical Clearance Criteria 
periodically as appropriate.



Sec. 675.4  Waiver process.

    (a) If an individual is found not physically qualified for 
deployment to Antarctica, the USAP's contractor will inform the 
individual of the determination and of the administrative waiver 
process, and will provide a waiver application package to the individual 
upon request.
    (b) The waiver applicant should send the completed waiver 
application package to the USAP's contractor which will forward the 
package to NSF's Office of Polar Programs for review and a determination 
on the appropriateness of a waiver. In making the waiver determination, 
the Office of Polar Programs may consult with other qualified medical 
personnel and may require waiver applicants to take further medical 
examinations or to furnish additional medical documentation in support 
of the waiver application.
    (c) The Director, Office of Polar Programs (or designee) will make a 
final determination, in the exercise of his or her discretion, on the 
appropriateness of a waiver on a case-by-case basis.
    (d) Individuals for whom a waiver is determined to be appropriate 
are eligible for deployment to Antarctica subject to any necessary 
limitations/restrictions identified by the Director, Office of Polar 
Programs, or designee.



PART 680_NATIONAL SCIENCE FOUNDATION RULES OF PRACTICE AND STATUTORY 
CONFLICT-OF-INTEREST EXEMPTIONS--Table of Contents




     Subpart A_Rules of Practice for the National Science Foundation

Sec.
680.10 Definitions; cross-references to employee ethical conduct 
          standards and financial disclosure regulations.
680.11 Staff involvement with NSF proposals and awards.

[[Page 226]]

680.12 One-year NSF post-employment restrictions.
680.13 Purposes for ``substitute'' requirements.

                     Subpart B_Statutory Exemptions

680.20 Exemptions under 18 U.S.C. 208(b).

    Authority: 5 U.S.C. 7301; 18 U.S.C. 208 (1988); 42 U.S.C. 1870(a); 5 
CFR 2635.105(c)(3), 2635.402(d)(1).

    Source: 47 FR 32131, July 26, 1982, unless otherwise noted.



     Subpart A_Rules of Practice for the National Science Foundation

    Source: 61 FR 59837, Nov. 25, 1996, unless otherwise noted.



Sec. 680.10  Definitions; cross-references to employee ethical conduct 
standards and financial disclosure regulations.

    (a) Definitions. Under this subpart, unless a provision plainly 
indicates otherwise:
    (1) Award means any grant, contract, cooperative agreement, loan, or 
other arrangement made by the Government.
    (2) Employee includes, in addition to any individual defined in 5 
CFR 2635.102(h), any individual working at NSF under the 
Intergovernmental Personnel Act. It includes any part-time or 
intermittent employee, temporary consultant; but not a special 
Government employee, as defined in 18 U.S.C. 202(a).
    (3) Institution means any university, college, business firm, 
research institute, professional society, or other organization. It 
includes all parts of a university or college, including all 
institutions in a multi-institution State or city system. It includes 
any university consortium or joint corporation; but not the universities 
that belong to such a consortium. Those universities shall be considered 
separate institutions for purposes of this part.
    (4) Proposal means an application for an award and includes a bid.
    (b) Cross-references to employee ethical conduct standards and 
financial disclosure regulations. Members of the National Science Board 
and other employees of the National Science Foundation (NSF), including 
special Government employees, should refer to the Standards of Ethical 
Conduct for Employees of the Executive Branch at 5 CFR part 2635, the 
National Science Foundation's regulations at 5 CFR part 5301 which 
supplement the executive branch Standards, and the executive branch 
financial disclosure regulations at 5 CFR part 2634.



Sec. 680.11  Staff involvement with NSF proposals and awards.

    (a)(1) Many scientists, engineers, and educators interrupt active 
research and teaching careers to spend a year or two at NSF and then 
return to research and teaching, usually at the same institution from 
which they came. Many such visiting scientists, engineers, and educators 
(and a few permanent employees) who have been principal investigators 
under NSF awards before coming to NSF, retain some interest or 
association with the work. If an individual is a principal investigator 
under an NSF award, the individual is not precluded from retaining ties 
to the work after becoming an NSF employee. The employee may stay in 
contact with those who are continuing the work in the employee's 
laboratory or on his or her project. The employee may continue to 
supervise graduate students. And the employee may visit and work in the 
laboratory on his or her own time for these and related purposes.
    (2) Before a prospective employee comes to NSF, the prospective 
employee and the grantee institution must designate, subject to NSF 
approval, a ``substitute principal investigator''--i.e., another 
scientist who will be responsible for the work and equipment and will 
represent the institution in any dealings with NSF officials while the 
prospective employee is at NSF.
    (3) Appointment of a substitute principal investigator is 
unnecessary if all work under an award is to be completely suspended 
while the employee is at NSF. If the work is to be suspended, the 
employee and the grantee institution must inform the NSF in writing 
before the employee's employment begins. Work under the award may be 
resumed when the employee completes his or her NSF employment,

[[Page 227]]

and its term may be extended to account for the time lost during the 
employee's NSF employment.
    (b)(1) NSF will entertain no proposal on which a current NSF 
employee would be a senior investigator or equivalent, unless it is a 
proposal for continuation or extension of support for work on which the 
employee served in that capacity before coming to NSF. Any proposal for 
continuation of NSF support at essentially the same level (with 
reasonable allowance for inflation) will normally be considered a 
proposal for continuation or extension if it would support the work of 
the same investigator and his or her laboratory or group (if any) in the 
same general field of science, engineering, or education, 
notwithstanding that the focus of the work may change in response to 
research opportunities or educational needs.
    (2) Someone other than the current NSF employee must submit any such 
proposal for continuation or extension of work NSF previously supported 
and handle all negotiations with NSF, but the capacity in which the 
current NSF employee will serve should be clearly spelled out in the 
proposal.
    (c) In accordance with 5 CFR 5301.103(a)(1), an NSF employee may not 
receive, directly or indirectly, any salary, consulting fee, honorarium, 
or other form of compensation for services, or reimbursement of 
expenses, from an NSF award.



Sec. 680.12  One-year NSF post-employment restrictions.

    (a) For one year after leaving NSF employment, a former NSF 
employee, including a special Government employee who has performed work 
for NSF on more than 60 days in the previous twelve months, shall not 
represent himself, herself, or any other person in dealings with any NSF 
official on any proposal, project, or other particular matter.
    (b) The one-year restriction contained in paragraph (a) of this 
section is in addition to any post-employment restriction imposed by 
statute, including 18 U.S.C. 207 and 41 U.S.C. 423. To the extent that 
any disqualification required by paragraph (a) of this section is not 
also required by statute, written exceptions may be granted by the NSF's 
General Counsel, whose decisions shall be final. Exceptions will be rare 
and will be granted only where strict application of the rules would 
result in undue hardship for former short-term employees or for other 
former employees, and when granting an exception would not result in an 
unfair advantage to the former employee.
    (c)(1) Paragraph (a) of this section applies to particular matters 
involving specific parties, such as grants, contracts, or other 
agreements; applications for permits, licenses, or the like; requests 
for rulings or similar official determinations; claims; investigations 
or audits; charges or accusations against individuals or firms; 
adjudicatory hearings; and court cases.
    (2) For former employees, other than special Government employees, 
paragraph (a) of this section also applies to particular matters that do 
not involve specific parties, such as:
    (i) Determinations to establish or dis-establish a particular 
program or set its budget level for a particular fiscal year;
    (ii) Decisions to undertake or terminate a particular project;
    (iii) Decisions to open or not open a contract to competitive 
bidding;
    (iv) General policy or rulemaking--including, for example, decisions 
on particular NSF rules or formal policy, such as adoption or amendment 
of a resolution by the National Science Board, promulgation or amendment 
of an NSF regulation or circular, amendment of standard grant or 
contract terms, or changes to NSF manuals or policy documents; and
    (v) Agency positions on particular legislative or regulatory 
proposals.
    (d) Paragraph (a) of this section does not apply to:
    (1) Any expression of a former employee's views on policy issues 
where the circumstances make it obvious that the former employee is only 
speaking as an informed and interested citizen, not representing any 
financial or other interests of his or her own or of any other person or 
institution with which he or she is associated;
    (2) Any appearance or communication concerning matters of a personal 
or individual nature, such as the

[[Page 228]]

former employee's taxes, salary, benefits, possible Federal employment, 
rights as a former employee, or the application of conflict-of-interest 
rules to something the former employee proposes to do;
    (3) Any appearance on the former employee's own behalf in any 
litigation or administrative proceeding; or
    (4) Any presentation of scientific or technical information (at a 
site visit, for example) or any other communication of scientific or 
technical information on work being proposed or conducted.
    (e) As soon as his or her NSF employment ceases, a former NSF 
employee (including any former special Government employee described in 
paragraph (a) of this section) may again be listed as principal 
investigator on an NSF award, may be listed as principal investigator in 
any proposal or award, and may sign a proposal as principal 
investigator. However, the former employee and the grantee institution 
shall formally designate, subject to NSF approval, a ``substitute 
negotiator'' who, though not principally responsible for the work, will 
represent the former employee and the institution in dealings with NSF 
officials on any proposal or project for as long as the former employee 
would be barred from representational contacts with NSF by paragraph (a) 
of this section or by statute.



Sec. 680.13  Purposes for ``substitute'' requirements.

    Appointment of a ``substitute principal investigator'' or 
``substitute negotiator'' ensures against unthinking violation of the 
restrictions on dealings with NSF officials. It serves this purpose by 
flagging proposals or awards affected by the restrictions and by 
identifying someone else with whom NSF officials can properly discuss 
them or negotiate over them. Designation of a substitute principal 
investigator while an employee is at NSF has two additional functions: 
it identifies another person to be responsible for the work and 
equipment, and it reminds all concerned that during an employee's NSF 
service his or her attentions should focus on NSF duties.



                     Subpart B_Statutory Exemptions



Sec. 680.20  Exemptions under 18 U.S.C. 208(b).

    (a) The Foundation exempts the interests described in the remainder 
of this section from the operation of section 208(a) and from case-by-
case formal determinations under section 208(b)(1) of title 18, United 
States Code.
    (b) Minor interests. The following financial interests are too 
inconsequential to affect the integrity of an employee's services to the 
Government:
    (1) Noncorporate bonds;
    (2) Shares in a well-diversified money market or mutual fund;
    (3) Stocks, bonds, or other securities of a corporation listed on 
the New York or American Stock Exchange if the aggregate market value of 
all the securities you hold in that corporation does not exceed $1,000;
    (4) Vested pension rights to which no further contributions are 
being made by your former employer.
    (c) Indirect interests. An NSF employee may be a stockholder, 
partner, employee, officer, or director of an institution, such as a 
mutual fund, that owns a financial interest in a second institution. If 
the owning institution's financial interest consists of securities or 
other evidences of debt of the second institution that amount to:
    (1) Less than 5 percent of the total portfolio of investments of the 
owning institution,
    (2) Less than 5 percent of the total outstanding amounts of the same 
classes of securities of the second institution, and
    (3) Less than would be needed to obtain effective control of the 
second institution,

then the interest is too remote and inconsequential to affect the 
integrity of the employee's services to the Government.
    (d) Policy determinations. Where a general policy determination of 
the Government might constitute a ``particular matter'' under 18 U.S.C. 
208(a) and might affect the home institution of an NSF officer or 
employee, but only in the same manner as all similar institutions, the 
officer or employee may participate in that determination.

[[Page 229]]

    (e) Support services for National Science Board tasks and 
responsibilities. A member of the National Science Board may need 
professional, clerical, and administrative services to support the 
member's personal efforts to carry out Board tasks and responsibilities. 
With the approval of the Director and the Chairman of the National 
Science Board and in accordance with other laws and regulations, the NSF 
may contract with the home insitution of the member to provide such 
services. The institution may receive reimbursement of all allowable 
costs, but no profit or fee. In such circumstances any financial 
interests the institution might have are normally too inconsequential to 
affect the integrity of the services provided by the Board member to the 
Government.

[47 FR 32131, July 26, 1982. Redesignated at 61 FR 59839, Nov. 25, 1996]



PART 681_PROGRAM FRAUD CIVIL REMEDIES ACT REGULATIONS--Table of Contents




              Purpose, Definitions, and Basis for Liability

Sec.
681.1 Purpose.
681.2 Definitions.
681.3 What is the basis for the imposition of civil penalties and 
          assessments?

              Procedures Leading to Issuance of a Complaint

681.4 Who investigates program fraud?
681.5 What happens if program fraud is suspected?
681.6 When may NSF issue a complaint?
681.7 What is contained in a complaint?
681.8 How will the complaint be served?

               Procedures Following Service of a Complaint

681.9 How does a defendant respond to the complaint?
681.10 What happens if a defendant fails to file an answer?
681.11 What happens once an answer is filed?

                           Hearing Procedures

681.12 What kind of hearing is contemplated?
681.13 At the hearing, what rights do the parties have?
681.14 What is the role of the ALJ?
681.15 How are the functions of the ALJ separated from those of the 
          investigating official and the reviewing official?
681.16 Can the reviewing official or the ALJ be disqualified?
681.17 What rights are there to review documents?
681.18 What type of discovery is authorized and how is it conducted?
681.19 Are witness lists exchanged before the hearing?
681.20 Can witnesses be subpoenaed?
681.21 Who pays the costs for a subpoena?
681.22 Are protective orders available?
681.23 How are documents filed and served with the ALJ?
681.24 How is time computed?
681.25 Where is the hearing held?
681.26 How will the hearing be conducted and who has the burden of 
          proof?
681.27 How is evidence presented at the hearing?
681.28 How is witness testimony presented?
681.29 Will the hearing proceedings be recorded?
681.30 Are ex parte communications between a party and the ALJ 
          permitted?
681.31 Are there sanctions for misconduct?
681.32 Are post-hearing briefs required?

                          Decisions and Appeals

681.33 How is the case decided?
681.34 How are penalty and assessment amounts determined?
681.35 Can a party request reconsideration of the initial decision?
681.36 When does the initial decision of the ALJ become final?
681.37 What are the procedures for appealing the ALJ decision?
681.38 What happens if an initial decision is appealed?
681.39 Are there any limitations on the right to appeal to the authority 
          head?
681.40 How does the authority head dispose of an appeal?
681.41 What judicial review is available?
681.42 Can the administrative complaint be settled voluntarily?
681.43 How are civil penalties and assessments collected?
681.44 Is there a right to administrative offset?
681.45 What happens to collections?
681.46 What if the investigation indicates criminal misconduct?

    Source: 74 FR 26794, June 4, 2009, unless otherwise noted.

              Purpose, Definitions, and Basis for Liability



Sec. 681.1  Purpose.

    This part implements the Program Fraud Civil Remedies Act of 1986, 
31 U.S.C. 3801-3812 (``PFCRA''). PFCRA provides NSF, and other Federal 
agencies, with an administrative remedy to

[[Page 230]]

impose civil penalties and assessments against persons who make, submit, 
or present, or cause to be made, submitted or presented, false, 
fictitious, or fraudulent claims or written statements to NSF. PFCRA 
also provides due process protections to all persons who are subject to 
administrative proceedings under this part.



Sec. 681.2  Definitions.

    For the purposes of this part--
    ALJ means an Administrative Law Judge in the authority appointed 
pursuant to section 3105 of title 5 or detailed to the authority 
pursuant to section 3344 of title 5.
    Authority means the National Science Foundation.
    Authority head means the Director of the National Science Foundation 
or the Director's designee.
    Benefit is intended to cover anything of value, including but not 
limited to, any advantage, preference, privilege, license, permit, 
favorable decision, ruling, status, or loan guarantee.
    Claim is defined in section 3801(a)(3) of title 31 of the United 
States Code.
    Complaint means the administrative complaint served by the reviewing 
official on the defendant under Sec. 681.8.
    Defendant means any person alleged in a complaint under Sec. 681.7 
to be liable for a civil penalty or assessment pursuant to PFCRA.
    Government means the United States Government.
    Individual means a natural person.
    Initial decision means the written decision of the ALJ required by 
Sec. 681.33, and includes a revised initial decision issued following a 
remand or a motion for reconsideration.
    Investigating official means the NSF Inspector General or an 
employee of the Office of Inspector General designated by the Inspector 
General.
    Knows or has reason to know is defined in section 3801(a)(5) of 
title 31 of the United States Code.
    Makes shall include the terms presents, submits, and causes to be 
made, presented, or submitted. As the context requires, making or made 
shall likewise include the corresponding forms of such terms.
    Person means any individual, partnership, corporation, association, 
or private organization, and includes the plural of that term.
    Representative means an attorney who is in good standing of the bar 
of any State, Territory, or possession of the United States, or of the 
District of Columbia, or the Commonwealth of Puerto Rico, or any other 
individual designated in writing by the defendant.
    Reviewing official means the General Counsel of NSF or the General 
Counsel's designee.
    Statement is defined in section 3801(a)(9) of title 5 of the United 
States Code.



Sec. 681.3  What is the basis for the imposition of civil penalties and
assessments?

    (a) Claims. (1) Any person shall be subject, in addition to any 
other remedy that may be prescribed by law, to a civil penalty of not 
more than $5,000 for each claim if that person makes a claim that the 
person knows or has reason to know--
    (i) Is false, fictitious, or fraudulent;
    (ii) Includes or is supported by any written statement which asserts 
a material fact which is false, fictitious, or fraudulent;
    (iii) Includes or is supported by any written statement that--
    (A) Omits a material fact;
    (B) Is false, fictitious, or fraudulent as a result of such 
omission; and
    (C) Is a statement in which the person making such statement has a 
duty to include such material fact; or
    (iv) Is for payment for the provision of property or services which 
the person has not provided as claimed.
    (2) Each voucher, invoice, claim form, or other individual request 
or demand for property, services, or money constitutes a separate claim.
    (3) A claim shall be considered made to the authority, recipient, or 
party when such a claim is actually made to an agent, fiscal 
intermediary, or other entity, including any State or political 
subdivision of a State, acting for or on behalf of NSF.
    (4) Each claim for property, services, or money is subject to a 
civil penalty regardless of whether such property, services, or money is 
actually delivered or paid.

[[Page 231]]

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

              Procedures Leading to Issuance of a Complaint



Sec. 681.4  Who investigates program fraud?

    The Inspector General, or his or her designee, is the investigating 
official responsible for investigating allegations that a false claim or 
statement has been made. In this regard, the Inspector General has 
authority under PFCRA and the Inspector General Act of 1978 (5 U.S.C. 
App. 3), as amended, to issue administrative subpoenas for the 
production of records and documents.



Sec. 681.5  What happens if program fraud is suspected?

    (a) If the investigating official concludes that an action under 
this part is warranted, the investigating official submits a report 
containing the findings and conclusions of the investigation to the 
reviewing official. If the reviewing official determines that the report 
provides adequate evidence that a person made a false, fictitious or 
fraudulent claim or statement, the reviewing official shall transmit to 
the Attorney General written notice of an intention to refer the matter 
for adjudication, with a request for approval of such referral. This 
notice will include the reviewing official's statements concerning:
    (1) The reasons for the referral;
    (2) The claims or statements upon which liability would be based;
    (3) The evidence that supports liability;
    (4) An estimate of the amount of money or the value of property, 
services, or other benefits requested or demanded in the false claim or 
statement;
    (5) Any exculpatory or mitigating circumstances that may relate to 
the claims or statements known by the reviewing official or the 
investigating official; and

[[Page 232]]

    (6) A statement that there is a reasonable prospect of collecting an 
appropriate amount of penalties and assessments.
    (b) If, at any time, the Attorney General or his or her designee 
requests in writing that this administrative process be stayed, the 
authority head, as identified in Sec. 681.2(c) of this part, must stay 
the process immediately. The authority head may order the process 
resumed only upon receipt of the written authorization of the Attorney 
General.



Sec. 681.6  When may NSF issue a complaint?

    NSF may issue a complaint:
    (a) If the Attorney General (or designee) approves the referral of 
the allegations for adjudication; and
    (b) In a case of submission of false claims, if the amount of money 
or the value of property or services demanded or requested in a false 
claim, or a group of related claims submitted at the same time, does not 
exceed $150,000.



Sec. 681.7  What is contained in a complaint?

    (a) A complaint is a written statement giving notice to the person 
alleged to be liable under 31 U.S.C. 3802 of the specific allegations 
being referred for adjudication and of the person's right to request a 
hearing with respect to those allegations.
    (b) The complaint will state that NSF seeks to impose civil 
penalties, assessments, or both, against the defendant and will include:
    (1) The allegations of liability against the defendant, including 
the statutory basis for liability, identification of the claims or 
statements involved, and the reasons liability allegedly arises from 
such claims or statements;
    (2) The maximum amount of penalties and assessments for which the 
defendant may be held liable;
    (3) A statement that the defendant may request a hearing by filing 
an answer and may be represented by a representative;
    (4) Instructions for filing such an answer; and
    (5) A warning that failure to file an answer within 30 days of 
service of the complaint will result in imposition of the maximum amount 
of penalties and assessments.
    (c) The reviewing official must serve any complaint on the defendant 
and, if a hearing is requested by the defendant, provide a copy to the 
ALJ assigned to the case.



Sec. 681.8  How will the complaint be served?

    (a) The complaint must be served on individual defendants directly, 
a partnership through a general partner, and on corporations or on 
unincorporated associations through an executive officer or a director, 
except that service also may be made on any person authorized by 
appointment or by law to receive process for the defendant.
    (b) The complaint may be served either by:
    (1) Registered or certified mail; or
    (2) Personal delivery by anyone 18 years of age or older.
    (c) The date of service is the date of personal delivery or, in the 
case of service by registered or certified mail, the date of postmark.
    (d) When served with the complaint, the defendant should also be 
served with a copy of this part 681 and 31 U.S.C. 3801-3812.

               Procedures Following Service of a Complaint



Sec. 681.9  How does a defendant respond to the complaint?

    (a) A defendant may file an answer with the reviewing official 
within 30 days of service of the complaint. An answer will be considered 
a request for an oral hearing.
    (b) In the answer, a defendant--
    (1) Must admit or deny each of the allegations of liability 
contained in the complaint (a failure to deny an allegation is 
considered an admission);
    (2) Must state any defense on which the defendant intends to rely;
    (3) May state any reasons why he or she believes the penalties, 
assessments, or both should be less than the statutory maximum; and
    (4) Must state the name, address, and telephone number of the person 
authorized by the defendant to act as the defendant's representative, if 
any.

[[Page 233]]

    (c) If the defendant is unable to file a timely answer which meets 
the requirements set forth in paragraph (b) of this section, the 
defendant may file with the reviewing official a general answer denying 
liability, requesting a hearing, and requesting an extension of time in 
which to file a complete answer. A general answer must be filed within 
30 days of service of the complaint.
    (d) If the defendant initially files a general answer requesting an 
extension of time, the reviewing official must promptly file with the 
ALJ the complaint, the general answer, and the request for an extension 
of time.
    (e) For good cause shown, the ALJ may grant the defendant up to 30 
additional days within which to file an answer meeting the requirements 
of paragraph (b) of this section. Such answer must be filed with the ALJ 
and a copy must be served on the reviewing official.



Sec. 681.10  What happens if a defendant fails to file an answer?

    (a) If a defendant does not file any answer within 30 days after 
service of the complaint, the reviewing official may refer the complaint 
to the ALJ.
    (b) Once the complaint is referred, the ALJ will promptly serve on 
the defendant a notice that an initial decision will be issued.
    (c) The ALJ will assume the facts alleged in the complaint to be 
true and, if such facts establish liability under the statute, the ALJ 
will issue an initial decision imposing the maximum amount of penalties 
and assessments allowed under PFCRA.
    (d) Except as otherwise provided in this section, when a defendant 
fails to file a timely answer, the defendant waives any right to further 
review of the penalties and assessments imposed in the initial decision.
    (e) The initial decision becomes final 30 days after it is issued.
    (f) At any time before an initial decision becomes final, a 
defendant may file a motion with the ALJ asking that the case be 
reopened. An ALJ may only reopen a case if, in this motion, he or she 
determines that the defendant set forth extraordinary circumstances that 
prevented the defendant from filing a timely answer. The initial 
decision will be stayed until the ALJ makes a decision on the motion. 
The reviewing official may respond to the motion.
    (g) If the ALJ determines that a defendant has demonstrated 
extraordinary circumstances excusing his failure to file a timely 
answer, the ALJ will withdraw the initial decision, and grant the 
defendant an opportunity to answer the complaint.
    (h) A decision by the ALJ to deny a defendant's motion to reopen a 
case is not subject to reconsideration under Sec. 681.35.
    (i) The defendant may appeal to the authority head the decision 
denying a motion to reopen by filing a notice of appeal with the 
authority head within 15 days after the ALJ denies the motion. The 
timely filing of a notice of appeal shall stay the initial decision 
until the authority head decides the issue.
    (j) If the defendant files a timely notice of appeal with the 
authority head, the ALJ shall forward the record of the proceeding to 
the authority head.
    (k) The authority head shall decide expeditiously, based solely on 
the record before the ALJ, whether extraordinary circumstances excuse 
the defendant's failure to file a timely answer.
    (l) If the authority head decides that extraordinary circumstances 
excused the defendant's failure to file a timely answer, the authority 
head shall remand the case to the ALJ with instructions to grant the 
defendant an opportunity to answer.
    (m) If the authority head decides that the defendant's failure to 
file a timely answer is not excused, the authority head shall reinstate 
the initial decision of the ALJ, which shall become final and binding 
upon the parties 30 days after the authority head issues such a 
decision.



Sec. 681.11  What happens once an answer is filed?

    (a) When the reviewing official receives an answer, he or she must 
file concurrently, the complaint and the answer with the ALJ, along with 
a designation of NSF's representative.
    (b) When the ALJ receives the complaint and the answer, the ALJ will

[[Page 234]]

promptly serve a notice of hearing upon the defendant and the NSF 
representative, in the same manner as the complaint, which is described 
in Sec. 681.8. The notice of oral hearing must be served within six 
years of the date on which the claim or statement is made.
    (c) The notice must include:
    (1) The tentative date, time, and place of the hearing;
    (2) The legal authority and jurisdiction under which the hearing is 
being held;
    (3) The matters of fact and law to be asserted;
    (4) A description of the procedures for the conduct of the hearing;
    (5) The name, address, and telephone number of the defendant's 
representative and the representative for NSF; and
    (6) Such other matters as the ALJ deems appropriate.

                           Hearing Procedures



Sec. 681.12  What kind of hearing is contemplated?

    The hearing is a formal proceeding conducted by the ALJ during which 
a defendant will have the opportunity to cross-examine witnesses, 
present testimony, and dispute liability.



Sec. 681.13  At the hearing, what rights do the parties have?

    Each party has the right to:
    (a) Be represented by a representative;
    (b) Request a pre-hearing conference and participate in any 
conference held by the ALJ;
    (c) Conduct discovery;
    (d) Agree to stipulations of fact or law which will be made a part 
of the record;
    (e) Present evidence relevant to the issues at the hearing;
    (f) Present and cross-examine witnesses;
    (g) Present arguments at the hearing as permitted by the ALJ; and
    (h) Submit written briefs and proposed findings of fact and 
conclusions of law after the hearing, as permitted by the ALJ.



Sec. 681.14  What is the role of the ALJ?

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



Sec. 681.15  How are the functions of the ALJ separated from those of
the investigating official and the reviewing official?

    (a) The investigating official, the reviewing official, and any 
employee or agent of the authority who takes part

[[Page 235]]

in investigating, preparing, or presenting a particular case may not, in 
such case or a factually related case:
    (1) Participate in the hearing as the ALJ;
    (2) Participate or advise in the review of the initial decision by 
the authority head; or
    (3) Make the collection of penalties and assessment under 31 U.S.C. 
3806.
    (b) The ALJ shall not be responsible to or subject to the 
supervision or direction of the investigating official or the reviewing 
official.



Sec. 681.16  Can the reviewing official or ALJ be disqualified?

    (a) A reviewing official or an ALJ may disqualify himself or herself 
at any time.
    (b) Upon motion of any party, the reviewing official or ALJ may be 
disqualified as follows:
    (1) The motion must be supported by an affidavit containing specific 
facts establishing that personal bias or other reason for 
disqualification exists, including the time and circumstances of the 
discovery of such facts;
    (2) The motion must be filed promptly after discovery of the grounds 
for disqualification or the objection will be deemed waived; and
    (3) The party, or representative of record, must certify in writing 
that the motion is made in good faith.
    (c) Once a motion has been filed to disqualify the reviewing 
official, the ALJ will halt the proceedings until resolving the matter 
of disqualification. If the ALJ determines that the reviewing official 
is disqualified, the ALJ will dismiss the complaint without prejudice. 
If the ALJ disqualifies himself or herself, the case will be promptly 
reassigned to another ALJ.



Sec. 681.17  What rights are there to review documents?

    (a) Once the ALJ issues a hearing notice pursuant to Sec. 
681.11(b), and upon written request to the reviewing official, the 
defendant may:
    (1) Review any relevant and material documents, transcripts, 
records, and other materials that relate to the allegations set out in 
the complaint and upon which the findings and conclusions of the 
investigating official are based, unless such documents are subject to a 
privilege under Federal law. Upon payment of fees for duplication, the 
defendant may obtain copies of such documents; and
    (2) Obtain a copy of all exculpatory information in the possession 
of the reviewing official or investigating official relating to the 
allegations in the complaint, even if it is contained in a document that 
would otherwise be privileged. If the document would otherwise be 
privileged, only that portion containing exculpatory information must be 
disclosed.
    (b) The notice sent to the Attorney General from the reviewing 
official as described in Sec. 681.5(a) is not discoverable under any 
circumstances.
    (c) If the reviewing official does not respond to the defendant's 
request within 20 days, the defendant may file a motion to compel 
disclosure of the documents with the ALJ subject to the provisions of 
this section. Such a motion may only be filed with the ALJ following the 
filing of an answer pursuant to Sec. 681.9.



Sec. 681.18  What type of discovery is authorized and how is it conducted?

    (a) The following types of discovery are authorized:
    (1) Requests for production of documents for inspection and copying;
    (2) Requests for admissions of authenticity of any relevant document 
or of the truth of any relevant fact;
    (3) Written interrogatories; and
    (4) Depositions.
    (b) For the purpose of this section, the term ``documents'' includes 
information, documents, reports, answers, records, accounts, papers, and 
other data and documentary evidence. Nothing contained herein shall be 
interpreted to require the creation of a document.
    (c) Unless mutually agreed to by the parties, discovery is available 
only as ordered by the ALJ. The ALJ shall regulate the timing of 
discovery.
    (d) Motions for discovery. (1) A party seeking discovery may file a 
motion with the ALJ. Such a motion shall be accompanied by a copy of the 
requested discovery, or in the case of depositions, a summary of the 
scope of the proposed deposition.

[[Page 236]]

    (2) Within ten days of service, a party may file an opposition to 
the motion and/or a motion for protective order as provided in Sec. 
681.22.
    (3) The ALJ may grant a motion for discovery only if he or she finds 
that the discovery sought--
    (i) Is necessary for the expeditious, fair, and reasonable 
consideration of the issues;
    (ii) Is not unduly costly or burdensome;
    (iii) Will not unduly delay the proceeding; and
    (iv) Does not seek privileged information.
    (4) The burden of showing that discovery should be allowed is on the 
party seeking discovery.
    (5) The ALJ may grant discovery subject to a protective order under 
Sec. 681.22.
    (e) Depositions. (1) If a motion for deposition is granted, the ALJ 
shall issue a subpoena for the deponent, which may require the deponent 
to produce documents. The subpoena shall specify the time and place at 
which the deposition will be held.
    (2) The party seeking to depose shall serve the subpoena in the 
manner prescribed by Sec. 681.8.
    (3) The deponent may file with the ALJ a motion to quash the 
subpoena or a motion for a protective order within ten days of service.
    (4) The party seeking to depose shall provide for the taking of a 
verbatim transcript of the deposition, which it shall make available to 
all other parties for inspection and copying.
    (f) Each party shall bear its own costs of discovery.



Sec. 681.19  Are witness lists exchanged before the hearing?

    (a) As ordered by the ALJ, the parties must exchange witness lists 
and copies of proposed hearing exhibits, including copies of any written 
statements or transcripts of deposition testimony that each party 
intends to offer in lieu of live testimony.
    (b) If a party objects, the ALJ will not admit into evidence the 
testimony of any witness whose name does not appear on the witness list 
or any exhibit not provided to an opposing party in advance unless the 
ALJ finds good cause for the omission or concludes that there is no 
prejudice to the objecting party.
    (c) Unless a party objects within the time set by the ALJ, documents 
exchanged in accordance with this section are deemed to be authentic for 
the purpose of admissibility at the hearing.



Sec. 681.20  Can witnesses be subpoenaed?

    (a) A party wishing to procure the appearance and testimony of any 
individual at the hearing may request that the ALJ issue a subpoena.
    (b) A subpoena requiring the attendance and testimony of an 
individual may also require the individual to produce documents at the 
hearing.
    (c) A party seeking a subpoena shall file a written request not less 
than 15 days before the date of the hearing unless otherwise allowed by 
the ALJ for good cause shown. Such request shall specify any documents 
to be produced and shall designate the witnesses and describe the 
address and location thereof with sufficient particularity to permit 
such witnesses to be found.
    (d) The subpoena shall specify the time and place at which the 
witness is to appear and any documents the witness is to produce.
    (e) The party seeking the subpoena shall serve it in the manner 
prescribed in Sec. 681.8. A subpoena on a party or upon an individual 
under the control of a party may be served by first class mail.
    (f) A party or the individual to whom the subpoena is directed may 
file with the ALJ a motion to quash the subpoena within ten days after 
service or on or before the time specified in the subpoena for 
compliance if it is less than ten days after service.



Sec. 681.21  Who pays the costs for a subpoena?

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

[[Page 237]]



Sec. 681.22  Are protective orders available?

    (a) A party or prospective witness or deponent may file a motion for 
a protective order with respect to discovery sought by an opposing party 
or with respect to the hearing, seeking to limit the availability or 
disclosure of evidence.
    (b) In issuing a protective order, the ALJ may make any order which 
justice requires to protect a party or person from annoyance, 
embarrassment, oppression, or undue burden or expense, including one or 
more of the following:
    (1) That the discovery not be had;
    (2) That the discovery may be had only on specified terms and 
conditions;
    (3) That the discovery may be had only through a method of discovery 
other than requested;
    (4) That certain matters not be inquired into, or that the scope of 
discovery be limited to certain matters;
    (5) That discovery be conducted with no one present except persons 
designated by the ALJ;
    (6) That the contents of the discovery be sealed;
    (7) That a deposition after being sealed be opened only by order of 
the ALJ;
    (8) That a trade secret or other confidential research, development, 
commercial information, or facts pertaining to any criminal 
investigation, proceeding, or other administrative investigation not be 
disclosed or be disclosed only in a designated way; or
    (9) That the parties simultaneously file specified documents or 
information enclosed in sealed envelopes to be opened as directed by the 
ALJ.



Sec. 681.23  How are documents filed and served with the ALJ?

    (a) Documents filed with the ALJ must include an original and two 
copies. Every document filed in the proceeding must contain a title 
(e.g., motion to quash subpoena), a caption setting forth the title of 
the action, and the case number assigned by the ALJ. Every document must 
be signed by the person on whose behalf the paper was filed, or his or 
her representative.
    (b) Documents are considered filed when they are mailed. The date of 
mailing may be established by a certificate from the party or its 
representative, or by proof that the document was sent by certified or 
registered mail.
    (c) A party filing a document with the ALJ must, at the time of 
filing, serve a copy of such document on every other party. When a party 
is represented by a representative, the party's representative must be 
served in lieu of the party.
    (d) A certificate of the individual serving the document constitutes 
proof of service. The certificate must set forth the manner in which the 
document was served.



Sec. 681.24  How is time computed?

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



Sec. 681.25  Where is the hearing held?

    The ALJ will hold the hearing in any judicial district of the United 
States:
    (a) In which the defendant resides or transacts business; or
    (b) In which the claim or statement on which liability is based was 
made to NSF; or
    (c) As agreed upon by the defendant and the ALJ.



Sec. 681.26  How will the hearing be conducted and who has the burden
of proof?

    (a) The ALJ conducts a hearing in order to determine whether a 
defendant is liable for a civil penalty, assessment, or both and, if so, 
the appropriate amount of the penalty and/or assessment. The hearing 
will be recorded and transcribed, and the transcript of testimony, 
exhibits admitted at the

[[Page 238]]

hearing, and all papers filed in the proceeding constitute the record 
for a decision by the ALJ.
    (b) NSF must prove a defendant's liability and any aggravating 
factors by a preponderance of the evidence.
    (c) A defendant must prove any affirmative defenses and any 
mitigating factors by a preponderance of the evidence.



Sec. 681.27  How is evidence presented at the hearing?

    (a) The ALJ shall determine the admissibility of evidence.
    (b) Except as provided in this part, the ALJ shall not be bound by 
the Federal Rules of Evidence. However, the ALJ may apply the Federal 
Rules of Evidence where he or she deems appropriate.
    (c) The ALJ shall exclude irrelevant and immaterial evidence.
    (d) Although relevant, evidence may be excluded if its probative 
value is substantially outweighed by the danger of unfair prejudice, 
confusion of the issues, or by considerations of undue delay or needless 
presentation of cumulative evidence.
    (e) Although relevant, evidence shall be excluded if it is 
privileged under Federal law.
    (f) Evidence concerning offers of compromise or settlement shall be 
inadmissible to the extent provided in Rule 408 of the Federal Rules of 
Evidence.
    (g) The ALJ shall permit the parties to introduce rebuttal witnesses 
and evidence.



Sec. 681.28  How is witness testimony presented?

    (a) Except as provided in paragraph (b) of this section, testimony 
at the hearing shall be given orally by witnesses under oath or 
affirmation.
    (b) At the discretion of the ALJ, testimony may be admitted in the 
form of a written statement or deposition. Any such statement must be 
provided to all other parties along with the last known address of such 
witness, in a manner which allows sufficient time for other parties to 
subpoena such witness for cross-examination at the hearing. Prior 
written statements of witnesses proposed to testify at the hearing and 
deposition transcripts shall be exchanged as provided in Sec. 681.19.
    (c) The ALJ shall exercise reasonable control over the mode and 
order of interrogating witnesses and presenting evidence.
    (d) The ALJ shall permit the parties to conduct such cross 
examination as may be required for a full and true disclosure of the 
facts.
    (e) Upon motion of any party, the ALJ shall order witnesses excluded 
from the hearing room so that they cannot hear the testimony of other 
witnesses. This rule does not authorize exclusion of--
    (1) A party who is an individual;
    (2) In the case of a party that is not an individual, an officer or 
employee of the party appearing for the entity pro se or designated by 
the party's representative; or
    (3) An individual whose presence is shown by a party to be essential 
to the presentation of its case, including an individual employed by the 
Government engaged in assisting the representative for the Government.



Sec. 681.29  Will the hearing proceedings be recorded?

    The hearing will be recorded and transcribed. The transcript of 
testimony, exhibits and other evidence admitted at the hearing, and all 
papers and requests filed in the proceeding constitute the record for 
the decision by the ALJ and the authority head.



Sec. 681.30  Are ex parte communications between a party and the ALJ
permitted?

    Ex parte communications between a party and the ALJ are not 
permitted unless the other party consents to such a communication taking 
place. This does not prohibit a party from inquiring about the status of 
a case or asking routine questions concerning administrative functions 
or procedures.



Sec. 681.31  Are there sanctions for misconduct?

    (a) The ALJ may sanction a person, including any party or 
representative, for failing to comply with an order, or for engaging in 
other misconduct that interferes with the speedy, orderly, and fair 
conduct of a hearing.

[[Page 239]]

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



Sec. 681.32  Are post-hearing briefs required?

    Post-hearing briefs are not required, but the ALJ may permit them at 
his or her discretion.

                          Decisions and Appeals



Sec. 681.33  How is the case decided?

    (a) The ALJ will issue an initial decision based only on the record. 
It will contain findings of fact, conclusions of law, and the amount of 
any penalties and assessments imposed.
    (b) The ALJ will serve the initial decision on all parties within 90 
days after the close of the hearing or, if the filing of post-hearing 
briefs were permitted, within 90 days after the final post-hearing brief 
was filed.
    (c) The findings of fact must include a finding on each of the 
following issues:
    (1) Whether any one or more of the claims or statements identified 
in the complaint violate this part; and
    (2) If the defendant is liable for penalties or assessments, the 
appropriate amount of any such penalties or assessments, considering any 
mitigating or aggravating factors.
    (d) The initial decision will include a description of the right of 
a defendant found liable for a civil penalty or assessment to file a 
motion for reconsideration with the ALJ or a notice of appeal with the 
authority head.



Sec. 681.34  How are penalty and assessment amounts determined?

    (a) In determining an appropriate amount of civil penalties and 
assessments, the ALJ and the authority head, upon appeal, should 
evaluate any circumstances that mitigate or aggravate the violation and 
should articulate in their opinions the reasons that support the 
penalties and assessments they impose. Although not exhaustive, the 
following factors are among those that may influence the ALJ and the 
authority head in determining the amount of penalties and assessments to 
impose with respect to the misconduct charged in the complaint:
    (1) The number of false, fictitious, or fraudulent claims or 
statements;
    (2) The time period over which such claims or statements were made;
    (3) The degree of the defendant's culpability with respect to the 
misconduct;
    (4) The amount of money or the value of the property, services, or 
benefit falsely claimed;
    (5) The value of the Government's actual loss as a result of the 
misconduct, including foreseeable consequential damages and the cost of 
the investigation;
    (6) The relationship of the amount imposed as civil penalties to the 
amount of the Government's loss;
    (7) The potential or actual impact of the misconduct upon public 
confidence in the management of Government programs and operations;
    (8) Whether the defendant has engaged in a pattern of the same or 
similar misconduct;
    (9) Whether the defendant attempted to conceal the misconduct;
    (10) The degree to which the defendant has involved others in the 
misconduct or in concealing it;

[[Page 240]]

    (11) Where the misconduct of employees or agents is imputed to the 
defendant, the extent to which the defendant's practices fostered or 
attempted to preclude such misconduct;
    (12) Whether the defendant cooperated in or obstructed an 
investigation of the misconduct;
    (13) Whether the defendant assisted in identifying and prosecuting 
other wrongdoers;
    (14) The complexity of the program or transaction, and the degree of 
the defendant's sophistication with respect to it, including the extent 
of the defendant's prior participation in the program or in similar 
transactions;
    (15) Whether the defendant has been found, in any criminal, civil, 
or administrative proceeding to have engaged in similar misconduct or to 
have dealt dishonestly with the Government of the United States or a 
state, directly or indirectly; and
    (16) The need to deter the defendant and others from engaging in the 
same or similar misconduct.
    (b) Nothing in this section shall be construed to limit the ALJ or 
the authority head from considering any other factors that in any given 
case may mitigate or aggravate the offense for which penalties and 
assessments are imposed.



Sec. 681.35  Can a party request reconsideration of the initial decision?

    (a) Any party may file a motion for reconsideration of the initial 
decision with the ALJ within 20 days of receipt of the initial decision. 
If the initial decision was served by mail, there is a rebuttable 
presumption that the initial decision was received by the party 5 days 
from the date of mailing.
    (b) A motion for reconsideration must be accompanied by a supporting 
brief and must describe specifically each allegedly erroneous decision.
    (c) Any response to a motion for reconsideration will only be 
allowed if it is requested by the ALJ.
    (d) The ALJ will dispose of a motion for reconsideration by denying 
it or by issuing a revised initial decision.
    (e) If the ALJ issues a revised initial decision upon motion of a 
party, no further motions for reconsideration may be filed by any party.



Sec. 681.36  When does the initial decision of the ALJ become final?

    (a) The initial decision of the ALJ becomes the final decision of 
NSF, and shall be binding on all parties 30 days after it is issued, 
unless any party timely files a motion for reconsideration or any 
defendant adjudged to have submitted a false, fictitious, or fraudulent 
claim or statement timely appeals to the authority head of NSF, as set 
forth in Sec. 681.37.
    (b) If the ALJ disposes of a motion for reconsideration by denying 
it or by issuing a revised initial decision, the ALJ's order on the 
motion for reconsideration becomes the final decision of NSF 30 days 
after the order is issued, unless a defendant adjudged to have submitted 
a false, fictitious, fraudulent claim or statement timely appeals to the 
authority head of NSF, as set forth in Sec. 681.37.



Sec. 681.37  What are the procedures for appealing the ALJ decision?

    (a) Any defendant who submits a timely answer and is found liable 
for a civil penalty or assessment in an initial decision may appeal the 
decision.
    (b) The defendant may file a notice of appeal with the authority 
head within 30 days following issuance of the initial decision, serving 
a copy of the notice of appeal on all parties and the ALJ. The authority 
head may extend this deadline for up to an additional 30 days if an 
extension request is filed within the initial 30-day period and shows 
good cause.
    (c) The defendant's appeal will not be considered until all timely 
motions for reconsideration have been resolved.
    (d) If a timely motion for reconsideration is denied, a notice of 
appeal may be filed within 30 days following such denial or issuance of 
a revised initial decision, whichever applies.
    (e) A notice of appeal must be supported by a written brief 
specifying why the initial decision should be reversed or modified.
    (f) The NSF representative may file a brief in opposition to the 
notice of appeal within 30 days of receiving the defendant's appeal and 
supporting brief.
    (g) If a defendant timely files a notice of appeal, and the time for 
filing reconsideration motions has expired,

[[Page 241]]

the ALJ will forward the record of the proceeding to the authority head.



Sec. 681.38  What happens if an initial decision is appealed?

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



Sec. 681.39  Are there any limitations on the right to appeal to the
authority head?

    (a) A defendant has no right to appear personally, or through a 
representative, before the authority head.
    (b) There is no right to appeal any interlocutory ruling.
    (c) The authority head will not consider any objection or evidence 
that was not raised before the ALJ unless the defendant demonstrates 
that the failure to object was caused by extraordinary circumstances. If 
the defendant demonstrates to the satisfaction of the authority head 
that extraordinary circumstances prevented the presentation of evidence 
at the hearing, and that the additional evidence is material, the 
authority head may remand the matter to the ALJ for consideration of the 
additional evidence.



Sec. 681.40  How does the authority head dispose of an appeal?

    (a) The authority head may affirm, reduce, reverse, compromise, 
remand, or settle any penalty or assessment imposed by the ALJ in the 
initial decision or reconsideration decision.
    (b) The authority head will promptly serve each party to the appeal 
and the ALJ with a copy of his or her decision. This decision must 
contain a statement describing the right of any person, against whom a 
penalty or assessment has been made, to seek judicial review.



Sec. 681.41  What judicial review is available?

    31 U.S.C. 3805 authorizes judicial review by the appropriate United 
States District Court of any final NSF decision imposing penalties or 
assessments, and specifies the procedures for such review. To obtain 
judicial review, a defendant must file a petition with the appropriate 
court in a timely manner.



Sec. 681.42  Can the administrative complaint be settled voluntarily?

    (a) Parties may make offers of compromise or settlement at any time. 
Any compromise or settlement must be in writing.
    (b) The reviewing official has the exclusive authority to compromise 
or settle the case from the date on which the reviewing official is 
permitted to issue a complaint until the ALJ issues an initial decision.
    (c) The authority head has exclusive authority to compromise or 
settle the case from the date of the ALJ's initial decision until 
initiation of any judicial review or any action to collect the penalties 
and assessments.
    (d) The Attorney General has exclusive authority to compromise or 
settle the case while any judicial review or any action to recover 
penalties and assessments is pending.
    (e) The investigating official may recommend settlement terms to the 
reviewing official, the authority head, or the Attorney General, as 
appropriate.



Sec. 681.43  How are civil penalties and assessments collected?

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



Sec. 681.44  Is there a right to administrative offset?

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



Sec. 681.45  What happens to collections?

    All amounts collected pursuant to this part shall be deposited as 
miscellaneous receipts in the Treasury of the

[[Page 242]]

United States, except as provided in 31 U.S.C. 3806(g).



Sec. 681.46  What if the investigation indicates criminal misconduct?

    (a) Any investigating official may:
    (1) Refer allegations of criminal misconduct directly to the 
Department of Justice for prosecution or for suit under the False Claims 
Act or other civil proceeding;
    (2) Defer or postpone a report or referral to the reviewing official 
to avoid interference with a criminal investigation or prosecution; or
    (3) Issue subpoenas under any other statutory authority.
    (b) Nothing in this part limits the requirement that NSF employees 
report suspected violations of criminal law to the NSF Office of 
Inspector General or to the Attorney General.



PART 689_RESEARCH MISCONDUCT--Table of Contents




Sec.
689.1 Definitions.
689.2 General policies and responsibilities.
689.3 Actions.
689.4 Role of awardee institutions.
689.5 Initial NSF handling of misconduct matters.
689.6 Investigations.
689.7 Pending proposals and awards.
689.8 Interim administrative actions.
689.9 Dispositions.
689.10 Appeals.

    Authority: 42 U.S.C. 1870(a).

    Source: 67 FR 11937, Mar. 18, 2002, unless otherwise noted.



Sec. 689.1  Definitions.

    The following definitions apply to this part:
    (a) Research misconduct means fabrication, falsification, or 
plagiarism in proposing or performing research funded by NSF, reviewing 
research proposals submitted to NSF, or in reporting research results 
funded by NSF.
    (1) Fabrication means making up data or results and recording or 
reporting them.
    (2) Falsification means manipulating research materials, equipment, 
or processes, or changing or omitting data or results such that the 
research is not accurately represented in the research record.
    (3) Plagiarism means the appropriation of another person's ideas, 
processes, results or words without giving appropriate credit.
    (4) Research, for purposes of paragraph (a) of this section, 
includes proposals submitted to NSF in all fields of science, 
engineering, mathematics, and education and results from such proposals.
    (b) Research misconduct does not include honest error or differences 
of opinion.



Sec. 689.2  General policies and responsibilities.

    (a) NSF will take appropriate action against individuals or 
institutions upon a finding that research misconduct has occurred. 
Possible actions are described in Sec. 689.3. NSF may also take interim 
action during an investigation, as described in Sec. 689.8.
    (b) NSF will find research misconduct only after careful inquiry and 
investigation by an awardee institution, by another Federal agency, or 
by NSF. An ``inquiry'' consists of preliminary information-gathering and 
preliminary fact-finding to determine whether an allegation or apparent 
instance of research misconduct has substance and if an investigation is 
warranted. An investigation must be undertaken if the inquiry determines 
the allegation or apparent instance of research misconduct has 
substance. An ``investigation'' is a formal development, examination and 
evaluation of a factual record to determine whether research misconduct 
has taken place, to assess its extent and consequences, and to evaluate 
appropriate action.
    (c) A finding of research misconduct requires that--
    (1) There be a significant departure from accepted practices of the 
relevant research community; and
    (2) The research misconduct be committed intentionally, or 
knowingly, or recklessly; and
    (3) The allegation be proven by a preponderance of evidence.
    (d) Before NSF makes any final finding of research misconduct or 
takes any final action on such a finding, NSF will normally afford the 
accused individual or institution notice, a chance to provide comments 
and rebuttal, and

[[Page 243]]

a chance to appeal. In structuring procedures in individual cases, NSF 
may take into account procedures already followed by other entities 
investigating or adjudicating the same allegation of research 
misconduct.
    (e) Debarment or suspension for research misconduct will be imposed 
only after further procedures described in applicable debarment and 
suspension regulations, as described in Sec. Sec. 689.8 and 689.9, 
respectively. Severe research misconduct, as established under the 
regulations in this part, is an independent cause for debarment or 
suspension under the procedures established by the debarment and 
suspension regulations.
    (f) The Office of Inspector General (OIG) oversees investigations of 
research misconduct and conducts any NSF inquiries and investigations 
into suspected or alleged research misconduct.
    (g) The Deputy Director adjudicates research misconduct proceedings 
and the Director decides appeals.
    (h) Investigative and adjudicative research misconduct records 
maintained by the agency are exempt from public disclosure under the 
Freedom of Information Act (5 U.S.C. 552) and the Privacy Act (5 U.S.C. 
552a) to the extent permitted by law and regulation.



Sec. 689.3  Actions.

    (a) Possible final actions listed in this paragraph (a) for guidance 
range from minimal restrictions (Group I) to the most severe and 
restrictive (Group III). They are not exhaustive and do not include 
possible criminal sanctions.
    (1) Group I actions. (i) Send a letter of reprimand to the 
individual or institution.
    (ii) Require as a condition of an award that for a specified period 
an individual or institution obtain special prior approval of particular 
activities from NSF.
    (iii) Require for a specified period that an institutional official 
other than those guilty of misconduct certify the accuracy of reports 
generated under an award or provide assurance of compliance with 
particular policies, regulations, guidelines, or special terms and 
conditions.
    (2) Group II actions. (i) Totally or partially suspend an active 
award, or restrict for a specified period designated activities or 
expenditures under an active award.
    (ii) Require for a specified period special reviews of all requests 
for funding from an affected individual or institution to ensure that 
steps have been taken to prevent repetition of the misconduct.
    (iii) Require a correction to the research record.
    (3) Group III actions. (i) Terminate an active award.
    (ii) Prohibit participation of an individual as an NSF reviewer, 
advisor, or consultant for a specified period.
    (iii) Debar or suspend an individual or institution from 
participation in Federal programs for a specified period after further 
proceedings under applicable regulations.
    (b) In deciding what final actions are appropriate when misconduct 
is found, NSF officials should consider:
    (1) How serious the misconduct was;
    (2) The degree to which the misconduct was knowing, intentional, or 
reckless;
    (3) Whether it was an isolated event or part of a pattern;
    (4) Whether it had a significant impact on the research record, 
research subjects, other researchers, institutions or the public 
welfare; and
    (5) Other relevant circumstances.
    (c) Interim actions may include, but are not limited to:
    (1) Totally or partially suspending an existing award;
    (2) Suspending eligibility for Federal awards in accordance with 
debarment-and-suspension regulations;
    (3) Proscribing or restricting particular research activities, as, 
for example, to protect human or animal subjects;
    (4) Requiring special certifications, assurances, or other, 
administrative arrangements to ensure compliance with applicable 
regulations or terms of the award;
    (5) Requiring more prior approvals by NSF;
    (6) Deferring funding action on continuing grant increments;
    (7) Deferring a pending award;

[[Page 244]]

    (8) Restricting or suspending participation as an NSF reviewer, 
advisor, or consultant.
    (d) For those cases governed by the debarment and suspension 
regulations, the standards of proof contained in the debarment and 
suspension regulations shall control. Otherwise, NSF will take no final 
action under this section without a finding of misconduct supported by a 
preponderance of the relevant evidence.



Sec. 689.4  Role of awardee institutions.

    (a) Awardee institutions bear primary responsibility for prevention 
and detection of research misconduct and for the inquiry, investigation, 
and adjudication of alleged research misconduct. In most instances, NSF 
will rely on awardee institutions to promptly:
    (1) Initiate an inquiry into any suspected or alleged research 
misconduct;
    (2) Conduct a subsequent investigation, if warranted;
    (3) Take action necessary to ensure the integrity of research, the 
rights and interests of research subjects and the public, and the 
observance of legal requirements or responsibilities; and
    (4) Provide appropriate safeguards for subjects of allegations as 
well as informants.
    (b) If an institution wishes NSF to defer independent inquiry or 
investigation, it should:
    (1) Complete any inquiry and decide whether an investigation is 
warranted within 90 days. If completion of an inquiry is delayed, but 
the institution wishes NSF deferral to continue, NSF may require 
submission of periodic status reports.
    (2) Inform OIG immediately if an initial inquiry supports a formal 
investigation.
    (3) Keep OIG informed during such an investigation.
    (4) Complete any investigation and reach a disposition within 180 
days. If completion of an investigation is delayed, but the institution 
wishes NSF deferral to continue, NSF may require submission of periodic 
status reports.
    (5) Provide OIG with the final report from any investigation.
    (c) NSF expects institutions to promptly notify OIG should the 
institution become aware during an inquiry or investigation that:
    (1) Public health or safety is at risk;
    (2) NSF's resources, reputation, or other interests need protecting;
    (3) There is reasonable indication of possible violations of civil 
or criminal law;
    (4) Research activities should be suspended;
    (5) Federal action may be needed to protect the interests of a 
subject of the investigation or of others potentially affected; or
    (6) The scientific community or the public should be informed.
    (d) Awardee institutions should maintain and effectively communicate 
to their staffs appropriate policies and procedures relating to research 
misconduct, which should indicate when NSF should be notified.



Sec. 689.5  Initial NSF handling of misconduct matters.

    (a) NSF staff who learn of alleged misconduct will promptly and 
discreetly inform OIG or refer informants to OIG.
    (b) The identity of informants who wish to remain anonymous will be 
kept confidential to the extent permitted by law or regulation.
    (c) If OIG determines that alleged research misconduct involves 
potential civil or criminal violations, OIG may refer the matter to the 
Department of Justice.
    (d) Otherwise OIG may:
    (1) Inform the awardee institution of the alleged research 
misconduct and encourage it to undertake an inquiry;
    (2) Defer to inquiries or investigations of the awardee institution 
or of another Federal agency; or
    (3) At any time proceed with its own inquiry.
    (e) If OIG proceeds with its own inquiry it will normally complete 
the inquiry no more than 90 days after initiating it.
    (f) On the basis of what it learns from an inquiry and in 
consultation as appropriate with other NSF offices, OIG will decide 
whether a formal NSF investigation is warranted.

[[Page 245]]



Sec. 689.6  Investigations.

    (a) When an awardee institution or another Federal agency has 
promptly initiated its own investigation, OIG may defer an NSF inquiry 
or investigation until it receives the results of that external 
investigation. If it does not receive the results within 180 days, OIG 
may proceed with its own investigation.
    (b) If OIG decides to initiate an NSF investigation, it must give 
prompt written notice to the individual or institutions to be 
investigated, unless notice would prejudice the investigation or unless 
a criminal investigation is underway or under active consideration. If 
notice is delayed, it must be given as soon as it will no longer 
prejudice the investigation or contravene requirements of law or Federal 
law-enforcement policies.
    (c) If a criminal investigation by the Department of Justice, the 
Federal Bureau of Investigation, or another Federal agency is underway 
or under active consideration by these agencies or the NSF, OIG will 
determine what information, if any, may be disclosed to the subject of 
the investigation or to other NSF employees.
    (d) An NSF investigation may include:
    (1) Review of award files, reports, and other documents already 
readily available at NSF or in the public domain;
    (2) Review of procedures or methods and inspection of laboratory 
materials, specimens, and records at awardee institutions;
    (3) Interviews with subjects or witnesses;
    (4) Review of any documents or other evidence provided by or 
properly obtainable from parties, witnesses, or other sources;
    (5) Cooperation with other Federal agencies; and
    (6) Opportunity for the subject of the investigation to be heard.
    (e) OIG may invite outside consultants or experts to participate in 
an NSF investigation. They should be appointed in a manner that ensures 
the official nature of their involvement and provides them with legal 
protections available to federal employees.
    (f) OIG will make every reasonable effort to complete an NSF 
investigation and to report its recommendations, if any, to the Deputy 
Director within 180 days after initiating it.



Sec. 689.7  Pending proposals and awards.

    (a) Upon learning of alleged research misconduct OIG will identify 
potentially implicated awards or proposals and when appropriate, will 
ensure that program, grant, and contracting officers handling them are 
informed (subject to Sec. 689.6(c)).
    (b) Neither a suspicion or allegation of research misconduct nor a 
pending inquiry or investigation will normally delay review of 
proposals. To avoid influencing reviews, reviewers or panelists will not 
be informed of allegations or of ongoing inquiries or investigations. 
However, if allegations, inquiries, or investigations have been rumored 
or publicized, the responsible Program Director may consult with OIG 
and, after further consultation with the Office of General Counsel, 
either defer review, inform reviewers to disregard the matter, or inform 
reviewers of the status of the matter.



Sec. 689.8  Interim administrative actions.

    (a) After an inquiry or during an external or NSF investigation the 
Deputy Director may order that interim actions (as described in Sec. 
689.3(c)) be taken to protect Federal resources or to guard against 
continuation of any suspected or alleged research misconduct. Such an 
order will normally be issued on recommendation from OIG and in 
consultation with the Division of Contracts, Policy, and Oversight or 
Division of Grants and Agreements, the Office of the General Counsel, 
the responsible Directorate, and other parts of the Foundation as 
appropriate.
    (b) When suspension is determined to be appropriate, the case will 
be referred to the suspending official pursuant to 2 CFR part 180, and 
the suspension procedures of 2 CFR part 180 will be followed, but the 
suspending official will be either the Deputy Director or an official 
designated by the Deputy Director.
    (c) Such interim actions may be taken whenever information developed 
during an investigation indicates a need to do so. Any interim action 
will

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be reviewed periodically during an investigation by NSF and modified as 
warranted. An interested party may request a review or modification by 
the Deputy Director of any interim action.
    (d) The Deputy Director will make and OIG will retain a record of 
interim actions taken and the reasons for taking them.
    (e) Interim administrative actions are not final agency actions 
subject to appeal.

[67 FR 11937, Mar. 18, 2002, as amended at 72 FR 4944, Feb. 2, 2007]



Sec. 689.9  Dispositions.

    (a) After receiving a report from an external investigation by an 
awardee institution or another Federal agency, OIG will assess the 
accuracy and completeness of the report and whether the investigating 
entity followed reasonable procedures. It will either recommend adoption 
of the findings in whole or in part or, normally within 30 days, 
initiate a new investigation.
    (b) When any satisfactory external investigation or an NSF 
investigation fails to confirm alleged misconduct--
    (1) OIG will notify the subject of the investigation and, if 
appropriate, those who reported the suspected or alleged misconduct. 
This notification may include the investigation report.
    (2) Any interim administrative restrictions that were imposed will 
be lifted.
    (c) When any satisfactory investigation confirms misconduct--(1) In 
cases in which debarment is considered by OIG to be an appropriate 
disposition, the case will be referred to the debarring official 
pursuant to 2 CFR part 180 and the procedures of 2 CFR part 180 will be 
followed, but:
    (i) The debarring official will be either the Deputy Director, or an 
official designated by the Deputy Director.
    (ii) Except in unusual circumstances, the investigation report and 
recommended disposition will be included among the materials provided to 
the subject of the investigation as part of the notice of proposed 
debarment.
    (iii) The notice of the debarring official's decision will include 
instructions on how to pursue an appeal to the Director.
    (2) In all other cases--
    (i) Except in unusual circumstances, the investigation report will 
be provided by OIG to the subject of the investigation, who will be 
invited to submit comments or rebuttal. Comments or rebuttal submitted 
within the period allowed, normally 30 days, will receive full 
consideration and may lead to revision of the report or of a recommended 
disposition.
    (ii) Normally within 45 days after completing an NSF investigation 
or receiving the report from a satisfactory external investigation, OIG 
will submit to the Deputy Director the investigation report, any 
comments or rebuttal from the subject of the investigation, and a 
recommended disposition. The recommended disposition will propose any 
final actions to be taken by NSF. Section 689.3 lists possible final 
actions and considerations to be used in determining them.
    (iii) The Deputy Director will review the investigation report and 
OIG's recommended disposition. Before issuing a disposition the Deputy 
Director may initiate further hearings or investigation. Normally within 
120 days after receiving OIG's recommendations or after completion of 
any further proceedings, the Deputy Director will send the affected 
individual or institution a written disposition, specifying actions to 
be taken. The decision will include instructions on how to pursue an 
appeal to the Director.

[67 FR 11937, Mar. 18, 2002, as amended at 72 FR 4944, Feb. 2, 2007]



Sec. 689.10  Appeals.

    (a) An affected individual or institution may appeal to the Director 
in writing within 30 days after receiving the Deputy Director's written 
decision. The Deputy Director's decision becomes a final administrative 
action if it is not appealed within the 30 day period.
    (b) The Director may appoint an uninvolved NSF officer or employee 
to review an appeal and make recommendations.
    (c) The Director will normally inform the appellant of a final 
decision within 60 days after receiving the appeal. That decision will 
be the final administrative action of the Foundation

[[Page 247]]



PART 690_PROTECTION OF HUMAN SUBJECTS--Table of Contents




Sec.
690.101 To what does this policy apply?
690.102 Definitions.
690.103 Assuring compliance with this policy--research conducted or 
          supported by any Federal department or agency.
690.104-690.106 [Reserved]
690.107 IRB membership.
690.108 IRB functions and operations.
690.109 IRB review of research.
690.110 Expedited review procedures for certain kinds of research 
          involving no more than minimal risk, and for minor changes in 
          approved research.
690.111 Criteria for IRB approval of research.
690.112 Review by institution.
690.113 Suspension or termination of IRB approval of research.
690.114 Cooperative research.
690.115 IRB records.
690.116 General requirements for informed consent.
690.117 Documentation of informed consent.
690.118 Applications and proposals lacking definite plans for 
          involvement of human subjects.
690.119 Research undertaken without the intention of involving human 
          subjects.
690.120 Evaluation and disposition of applications and proposals for 
          research to be conducted or supported by a Federal department 
          or agency.
690.121 [Reserved]
690.122 Use of Federal funds.
690.123 Early termination of research support: Evaluation of 
          applications and proposals.
690.124 Conditions.

    Authority: 5 U.S.C. 301; 42 U.S.C. 300v-1(b).

    Source: 56 FR 28012, 28022, June 18, 1991, unless otherwise noted.



Sec. 690.101  To what does this policy apply?

    (a) Except as provided in paragraph (b) of this section, this policy 
applies to all research involving human subjects conducted, supported or 
otherwise subject to regulation by any federal department or agency 
which takes appropriate administrative action to make the policy 
applicable to such research. This includes research conducted by federal 
civilian employees or military personnel, except that each department or 
agency head may adopt such procedural modifications as may be 
appropriate from an administrative standpoint. It also includes research 
conducted, supported, or otherwise subject to regulation by the federal 
government outside the United States.
    (1) Research that is conducted or supported by a federal department 
or agency, whether or not it is regulated as defined in Sec. 
690.102(e), must comply with all sections of this policy.
    (2) Research that is neither conducted nor supported by a federal 
department or agency but is subject to regulation as defined in Sec. 
690.102(e) must be reviewed and approved, in compliance with Sec. 
690.101, Sec. 690.102, and Sec. 690.107 through Sec. 690.117 of this 
policy, by an institutional review board (IRB) that operates in 
accordance with the pertinent requirements of this policy.
    (b) Unless otherwise required by department or agency heads, 
research activities in which the only involvement of human subjects will 
be in one or more of the following categories are exempt from this 
policy:
    (1) Research conducted in established or commonly accepted 
educational settings, involving normal educational practices, such as 
(i) research on regular and special education instructional strategies, 
or (ii) research on the effectiveness of or the comparison among 
instructional techniques, curricula, or classroom management methods.
    (2) Research involving the use of educational tests (cognitive, 
diagnostic, aptitude, achievement), survey procedures, interview 
procedures or observation of public behavior, unless:
    (i) Information obtained is recorded in such a manner that human 
subjects can be identified, directly or through identifiers linked to 
the subjects; and (ii) any disclosure of the human subjects' responses 
outside the research could reasonably place the subjects at risk of 
criminal or civil liability or be damaging to the subjects' financial 
standing, employability, or reputation.
    (3) Research involving the use of educational tests (cognitive, 
diagnostic, aptitude, achievement), survey procedures, interview 
procedures, or observation of public behavior that is not exempt under 
paragraph (b)(2) of this section, if:
    (i) The human subjects are elected or appointed public officials or 
candidates

[[Page 248]]

for public office; or (ii) federal statute(s) require(s) without 
exception that the confidentiality of the personally identifiable 
information will be maintained throughout the research and thereafter.
    (4) Research, involving the collection or study of existing data, 
documents, records, pathological specimens, or diagnostic specimens, if 
these sources are publicly available or if the information is recorded 
by the investigator in such a manner that subjects cannot be identified, 
directly or through identifiers linked to the subjects.
    (5) Research and demonstration projects which are conducted by or 
subject to the approval of department or agency heads, and which are 
designed to study, evaluate, or otherwise examine:
    (i) Public benefit or service programs; (ii) procedures for 
obtaining benefits or services under those programs; (iii) possible 
changes in or alternatives to those programs or procedures; or (iv) 
possible changes in methods or levels of payment for benefits or 
services under those programs.
    (6) Taste and food quality evaluation and consumer acceptance 
studies, (i) if wholesome foods without additives are consumed or (ii) 
if a food is consumed that contains a food ingredient at or below the 
level and for a use found to be safe, or agricultural chemical or 
environmental contaminant at or below the level found to be safe, by the 
Food and Drug Administration or approved by the Environmental Protection 
Agency or the Food Safety and Inspection Service of the U.S. Department 
of Agriculture.
    (c) Department or agency heads retain final judgment as to whether a 
particular activity is covered by this policy.
    (d) Department or agency heads may require that specific research 
activities or classes of research activities conducted, supported, or 
otherwise subject to regulation by the department or agency but not 
otherwise covered by this policy, comply with some or all of the 
requirements of this policy.
    (e) Compliance with this policy requires compliance with pertinent 
federal laws or regulations which provide additional protections for 
human subjects.
    (f) This policy does not affect any state or local laws or 
regulations which may otherwise be applicable and which provide 
additional protections for human subjects.
    (g) This policy does not affect any foreign laws or regulations 
which may otherwise be applicable and which provide additional 
protections to human subjects of research.
    (h) When research covered by this policy takes place in foreign 
countries, procedures normally followed in the foreign countries to 
protect human subjects may differ from those set forth in this policy. 
[An example is a foreign institution which complies with guidelines 
consistent with the World Medical Assembly Declaration (Declaration of 
Helsinki amended 1989) issued either by sovereign states or by an 
organization whose function for the protection of human research 
subjects is internationally recognized.] In these circumstances, if a 
department or agency head determines that the procedures prescribed by 
the institution afford protections that are at least equivalent to those 
provided in this policy, the department or agency head may approve the 
substitution of the foreign procedures in lieu of the procedural 
requirements provided in this policy. Except when otherwise required by 
statute, Executive Order, or the department or agency head, notices of 
these actions as they occur will be published in the Federal Register or 
will be otherwise published as provided in department or agency 
procedures.
    (i) Unless otherwise required by law, department or agency heads may 
waive the applicability of some or all of the provisions of this policy 
to specific research activities or classes of research activities 
otherwise covered by this policy. Except when otherwise required by 
statute or Executive Order, the department or agency head shall forward 
advance notices of these actions to the Office for Human Research 
Protections, Department of Health and Human Services (HHS), or any 
successor office, and shall also publish them in the Federal Register or 
in

[[Page 249]]

such other manner as provided in department or agency procedures. \1\
---------------------------------------------------------------------------

    \1\ Institutions with HHS-approved assurances on file will abide by 
provisions of title 45 CFR part 46 subparts A-D. Some of the other 
Departments and Agencies have incorporated all provisions of title 45 
CFR part 46 into their policies and procedures as well. However, the 
exemptions at 45 CFR 46.101(b) do not apply to research involving 
prisoners, subpart C. The exemption at 45 CFR 46.101(b)(2), for research 
involving survey or interview procedures or observation of public 
behavior, does not apply to research with children, subpart D, except 
for research involving observations of public behavior when the 
investigator(s) do not participate in the activities being observed.

[56 FR 28012, 28022, June 18, 1991; 56 FR 29756, June 28, 1991, as 
amended at 70 FR 36328, June 23, 2005]



Sec. 690.102  Definitions.

    (a) Department or agency head means the head of any federal 
department or agency and any other officer or employee of any department 
or agency to whom authority has been delegated.
    (b) Institution means any public or private entity or agency 
(including federal, state, and other agencies).
    (c) Legally authorized representative means an individual or 
judicial or other body authorized under applicable law to consent on 
behalf of a prospective subject to the subject's participation in the 
procedure(s) involved in the research.
    (d) Research means a systematic investigation, including research 
development, testing and evaluation, designed to develop or contribute 
to generalizable knowledge. Activities which meet this definition 
constitute research for purposes of this policy, whether or not they are 
conducted or supported under a program which is considered research for 
other purposes. For example, some demonstration and service programs may 
include research activities.
    (e) Research subject to regulation, and similar terms are intended 
to encompass those research activities for which a federal department or 
agency has specific responsibility for regulating as a research 
activity, (for example, Investigational New Drug requirements 
administered by the Food and Drug Administration). It does not include 
research activities which are incidentally regulated by a federal 
department or agency solely as part of the department's or agency's 
broader responsibility to regulate certain types of activities whether 
research or non-research in nature (for example, Wage and Hour 
requirements administered by the Department of Labor).
    (f) Human subject means a living individual about whom an 
investigator (whether professional or student) conducting research 
obtains
    (1) Data through intervention or interaction with the individual, or
    (2) Identifiable private information.

Intervention includes both physical procedures by which data are 
gathered (for example, venipuncture) and manipulations of the subject or 
the subject's environment that are performed for research purposes. 
Interaction includes communication or interpersonal contact between 
investigator and subject. ``Private information'' includes information 
about behavior that occurs in a context in which an individual can 
reasonably expect that no observation or recording is taking place, and 
information which has been provided for specific purposes by an 
individual and which the individual can reasonably expect will not be 
made public (for example, a medical record). Private information must be 
individually identifiable (i.e., the identity of the subject is or may 
readily be ascertained by the investigator or associated with the 
information) in order for obtaining the information to constitute 
research involving human subjects.
    (g) IRB means an institutional review board established in accord 
with and for the purposes expressed in this policy.
    (h) IRB approval means the determination of the IRB that the 
research has been reviewed and may be conducted at an institution within 
the constraints set forth by the IRB and by other institutional and 
federal requirements.
    (i) Minimal risk means that the probability and magnitude of harm or 
discomfort anticipated in the research are not greater in and of 
themselves than those ordinarily encountered in daily

[[Page 250]]

life or during the performance of routine physical or psychological 
examinations or tests.
    (j) Certification means the official notification by the institution 
to the supporting department or agency, in accordance with the 
requirements of this policy, that a research project or activity 
involving human subjects has been reviewed and approved by an IRB in 
accordance with an approved assurance.



Sec. 690.103  Assuring compliance with this policy--research conducted
or supported by any Federal department or agency.

    (a) Each institution engaged in research which is covered by this 
policy and which is conducted or supported by a federal department or 
agency shall provide written assurance satisfactory to the department or 
agency head that it will comply with the requirements set forth in this 
policy. In lieu of requiring submission of an assurance, individual 
department or agency heads shall accept the existence of a current 
assurance, appropriate for the research in question, on file with the 
Office for Human Research Protections, HHS, or any successor office, and 
approved for federalwide use by that office. When the existence of an 
HHS-approved assurance is accepted in lieu of requiring submission of an 
assurance, reports (except certification) required by this policy to be 
made to department and agency heads shall also be made to the Office for 
Human Research Protections, HHS, or any successor office.
    (b) Departments and agencies will conduct or support research 
covered by this policy only if the institution has an assurance approved 
as provided in this section, and only if the institution has certified 
to the department or agency head that the research has been reviewed and 
approved by an IRB provided for in the assurance, and will be subject to 
continuing review by the IRB. Assurances applicable to federally 
supported or conducted research shall at a minimum include:
    (1) A statement of principles governing the institution in the 
discharge of its responsibilities for protecting the rights and welfare 
of human subjects of research conducted at or sponsored by the 
institution, regardless of whether the research is subject to federal 
regulation. This may include an appropriate existing code, declaration, 
or statement of ethical principles, or a statement formulated by the 
institution itself. This requirement does not preempt provisions of this 
policy applicable to department- or agency-supported or regulated 
research and need not be applicable to any research exempted or waived 
under Sec. 690.101 (b) or (i).
    (2) Designation of one or more IRBs established in accordance with 
the requirements of this policy, and for which provisions are made for 
meeting space and sufficient staff to support the IRB's review and 
recordkeeping duties.
    (3) A list of IRB members identified by name; earned degrees; 
representative capacity; indications of experience such as board 
certifications, licenses, etc., sufficient to describe each member's 
chief anticipated contributions to IRB deliberations; and any employment 
or other relationship between each member and the institution; for 
example: full-time employee, part-time employee, member of governing 
panel or board, stockholder, paid or unpaid consultant. Changes in IRB 
membership shall be reported to the department or agency head, unless in 
accord with Sec. 690.103(a) of this policy, the existence of an HHS-
approved assurance is accepted. In this case, change in IRB membership 
shall be reported to the Office for Human Research Protections, HHS, or 
any successor office.
    (4) Written procedures which the IRB will follow (i) for conducting 
its initial and continuing review of research and for reporting its 
findings and actions to the investigator and the institution; (ii) for 
determining which projects require review more often than annually and 
which projects need verification from sources other than the 
investigators that no material changes have occurred since previous IRB 
review; and (iii) for ensuring prompt reporting to the IRB of proposed 
changes in a research activity, and for ensuring that such changes in 
approved research, during the period for which IRB approval has already 
been given, may not be initiated without IRB review and approval except 
when necessary to

[[Page 251]]

eliminate apparent immediate hazards to the subject.
    (5) Written procedures for ensuring prompt reporting to the IRB, 
appropriate institutional officials, and the department or agency head 
of (i) any unanticipated problems involving risks to subjects or others 
or any serious or continuing noncompliance with this policy or the 
requirements or determinations of the IRB and (ii) any suspension or 
termination of IRB approval.
    (c) The assurance shall be executed by an individual authorized to 
act for the institution and to assume on behalf of the institution the 
obligations imposed by this policy and shall be filed in such form and 
manner as the department or agency head prescribes.
    (d) The department or agency head will evaluate all assurances 
submitted in accordance with this policy through such officers and 
employees of the department or agency and such experts or consultants 
engaged for this purpose as the department or agency head determines to 
be appropriate. The department or agency head's evaluation will take 
into consideration the adequacy of the proposed IRB in light of the 
anticipated scope of the institution's research activities and the types 
of subject populations likely to be involved, the appropriateness of the 
proposed initial and continuing review procedures in light of the 
probable risks, and the size and complexity of the institution.
    (e) On the basis of this evaluation, the department or agency head 
may approve or disapprove the assurance, or enter into negotiations to 
develop an approvable one. The department or agency head may limit the 
period during which any particular approved assurance or class of 
approved assurances shall remain effective or otherwise condition or 
restrict approval.
    (f) Certification is required when the research is supported by a 
federal department or agency and not otherwise exempted or waived under 
Sec. 690.101 (b) or (i). An institution with an approved assurance 
shall certify that each application or proposal for research covered by 
the assurance and by Sec. 690.103 of this Policy has been reviewed and 
approved by the IRB. Such certification must be submitted with the 
application or proposal or by such later date as may be prescribed by 
the department or agency to which the application or proposal is 
submitted. Under no condition shall research covered by Sec. 690.103 of 
the Policy be supported prior to receipt of the certification that the 
research has been reviewed and approved by the IRB. Institutions without 
an approved assurance covering the research shall certify within 30 days 
after receipt of a request for such a certification from the department 
or agency, that the application or proposal has been approved by the 
IRB. If the certification is not submitted within these time limits, the 
application or proposal may be returned to the institution.

(Approved by the Office of Management and Budget under Control Number 
0990-0260.)

[56 FR 28012, 28022, June 18, 1991; 56 FR 29756, June 28, 1991, as 
amended at 70 FR 36328, June 23, 2005]



Sec. Sec. 690.104-690.106  [Reserved]



Sec. 690.107  IRB membership.

    (a) Each IRB shall have at least five members, with varying 
backgrounds to promote complete and adequate review of research 
activities commonly conducted by the institution. The IRB shall be 
sufficiently qualified through the experience and expertise of its 
members, and the diversity of the members, including consideration of 
race, gender, and cultural backgrounds and sensitivity to such issues as 
community attitudes, to promote respect for its advice and counsel in 
safeguarding the rights and welfare of human subjects. In addition to 
possessing the professional competence necessary to review specific 
research activities, the IRB shall be able to ascertain the 
acceptability of proposed research in terms of institutional commitments 
and regulations, applicable law, and standards of professional conduct 
and practice. The IRB shall therefore include persons knowledgeable in 
these areas. If an IRB regularly reviews research that involves a 
vulnerable category of subjects, such as children, prisoners, pregnant 
women, or handicapped or mentally disabled persons, consideration shall 
be given to the inclusion of one or more individuals who

[[Page 252]]

are knowledgeable about and experienced in working with these subjects.
    (b) Every nondiscriminatory effort will be made to ensure that no 
IRB consists entirely of men or entirely of women, including the 
institution's consideration of qualified persons of both sexes, so long 
as no selection is made to the IRB on the basis of gender. No IRB may 
consist entirely of members of one profession.
    (c) Each IRB shall include at least one member whose primary 
concerns are in scientific areas and at least one member whose primary 
concerns are in nonscientific areas.
    (d) Each IRB shall include at least one member who is not otherwise 
affiliated with the institution and who is not part of the immediate 
family of a person who is affiliated with the institution.
    (e) No IRB may have a member participate in the IRB's initial or 
continuing review of any project in which the member has a conflicting 
interest, except to provide information requested by the IRB.
    (f) An IRB may, in its discretion, invite individuals with 
competence in special areas to assist in the review of issues which 
require expertise beyond or in addition to that available on the IRB. 
These individuals may not vote with the IRB.



Sec. 690.108  IRB functions and operations.

    In order to fulfill the requirements of this policy each IRB shall:
    (a) Follow written procedures in the same detail as described in 
Sec. 690.103(b)(4) and, to the extent required by, Sec. 690.103(b)(5).
    (b) Except when an expedited review procedure is used (see Sec. 
690.110), review proposed research at convened meetings at which a 
majority of the members of the IRB are present, including at least one 
member whose primary concerns are in nonscientific areas. In order for 
the research to be approved, it shall receive the approval of a majority 
of those members present at the meeting.



Sec. 690.109  IRB review of research.

    (a) An IRB shall review and have authority to approve, require 
modifications in (to secure approval), or disapprove all research 
activities covered by this policy.
    (b) An IRB shall require that information given to subjects as part 
of informed consent is in accordance with Sec. 690.116. The IRB may 
require that information, in addition to that specifically mentioned in 
Sec. 690.116, be given to the subjects when in the IRB's judgment the 
information would meaningfully add to the protection of the rights and 
welfare of subjects.
    (c) An IRB shall require documentation of informed consent or may 
waive documentation in accordance with Sec. 690.117.
    (d) An IRB shall notify investigators and the institution in writing 
of its decision to approve or disapprove the proposed research activity, 
or of modifications required to secure IRB approval of the research 
activity. If the IRB decides to disapprove a research activity, it shall 
include in its written notification a statement of the reasons for its 
decision and give the investigator an opportunity to respond in person 
or in writing.
    (e) An IRB shall conduct continuing review of research covered by 
this policy at intervals appropriate to the degree of risk, but not less 
than once per year, and shall have authority to observe or have a third 
party observe the consent process and the research.

(Approved by the Office of Management and Budget under Control Number 
0990-0260.)

[56 FR 28012, 28022, June 18, 1991, as amended at 70 FR 36328, June 23, 
2005]



Sec. 690.110  Expedited review procedures for certain kinds of research
involving no more than minimal risk, and for minor changes in 

approved research.

    (a) The Secretary, HHS, has established, and published as a Notice 
in the Federal Register, a list of categories of research that may be 
reviewed by the IRB through an expedited review procedure. The list will 
be amended, as appropriate after consultation with other departments and 
agencies, through periodic republication by the Secretary, HHS, in the 
Federal Register. A copy of the list is available from the Office for 
Human Research

[[Page 253]]

Protections, HHS, or any successor office.
    (b) An IRB may use the expedited review procedure to review either 
or both of the following:
    (1) Some or all of the research appearing on the list and found by 
the reviewer(s) to involve no more than minimal risk,
    (2) Minor changes in previously approved research during the period 
(of one year or less) for which approval is authorized.

Under an expedited review procedure, the review may be carried out by 
the IRB chairperson or by one or more experienced reviewers designated 
by the chairperson from among members of the IRB. In reviewing the 
research, the reviewers may exercise all of the authorities of the IRB 
except that the reviewers may not disapprove the research. A research 
activity may be disapproved only after review in accordance with the 
non-expedited procedure set forth in Sec. 690.108(b).
    (c) Each IRB which uses an expedited review procedure shall adopt a 
method for keeping all members advised of research proposals which have 
been approved under the procedure.
    (d) The department or agency head may restrict, suspend, terminate, 
or choose not to authorize an institution's or IRB's use of the 
expedited review procedure.

[56 FR 28012, 28022, June 18, 1991, as amended at 70 FR 36328, June 23, 
2005]



Sec. 690.111  Criteria for IRB approval of research.

    (a) In order to approve research covered by this policy the IRB 
shall determine that all of the following requirements are satisfied:
    (1) Risks to subjects are minimized: (i) By using procedures which 
are consistent with sound research design and which do not unnecessarily 
expose subjects to risk, and (ii) whenever appropriate, by using 
procedures already being performed on the subjects for diagnostic or 
treatment purposes.
    (2) Risks to subjects are reasonable in relation to anticipated 
benefits, if any, to subjects, and the importance of the knowledge that 
may reasonably be expected to result. In evaluating risks and benefits, 
the IRB should consider only those risks and benefits that may result 
from the research (as distinguished from risks and benefits of therapies 
subjects would receive even if not participating in the research). The 
IRB should not consider possible long-range effects of applying 
knowledge gained in the research (for example, the possible effects of 
the research on public policy) as among those research risks that fall 
within the purview of its responsibility.
    (3) Selection of subjects is equitable. In making this assessment 
the IRB should take into account the purposes of the research and the 
setting in which the research will be conducted and should be 
particularly cognizant of the special problems of research involving 
vulnerable populations, such as children, prisoners, pregnant women, 
mentally disabled persons, or economically or educationally 
disadvantaged persons.
    (4) Informed consent will be sought from each prospective subject or 
the subject's legally authorized representative, in accordance with, and 
to the extent required by Sec. 690.116.
    (5) Informed consent will be appropriately documented, in accordance 
with, and to the extent required by Sec. 690.117.
    (6) When appropriate, the research plan makes adequate provision for 
monitoring the data collected to ensure the safety of subjects.
    (7) When appropriate, there are adequate provisions to protect the 
privacy of subjects and to maintain the confidentiality of data.
    (b) When some or all of the subjects are likely to be vulnerable to 
coercion or undue influence, such as children, prisoners, pregnant 
women, mentally disabled persons, or economically or educationally 
disadvantaged persons, additional safeguards have been included in the 
study to protect the rights and welfare of these subjects.



Sec. 690.112  Review by institution.

    Research covered by this policy that has been approved by an IRB may 
be subject to further appropriate review and approval or disapproval by 
officials of the institution. However, those officials may not approve 
the research if it has not been approved by an IRB.

[[Page 254]]



Sec. 690.113  Suspension or termination of IRB approval of research.

    An IRB shall have authority to suspend or terminate approval of 
research that is not being conducted in accordance with the IRB's 
requirements or that has been associated with unexpected serious harm to 
subjects. Any suspension or termination of approval shall include a 
statement of the reasons for the IRB's action and shall be reported 
promptly to the investigator, appropriate institutional officials, and 
the department or agency head.

(Approved by the Office of Management and Budget under Control Number 
0990-0260.)

[56 FR 28012, 28022, June 18, 1991, as amended at 70 FR 36328, June 23, 
2005]



Sec. 690.114  Cooperative research.

    Cooperative research projects are those projects covered by this 
policy which involve more than one institution. In the conduct of 
cooperative research projects, each institution is responsible for 
safeguarding the rights and welfare of human subjects and for complying 
with this policy. With the approval of the department or agency head, an 
institution participating in a cooperative project may enter into a 
joint review arrangement, rely upon the review of another qualified IRB, 
or make similar arrangements for avoiding duplication of effort.



Sec. 690.115  IRB records.

    (a) An institution, or when appropriate an IRB, shall prepare and 
maintain adequate documentation of IRB activities, including the 
following:
    (1) Copies of all research proposals reviewed, scientific 
evaluations, if any, that accompany the proposals, approved sample 
consent documents, progress reports submitted by investigators, and 
reports of injuries to subjects.
    (2) Minutes of IRB meetings which shall be in sufficient detail to 
show attendance at the meetings; actions taken by the IRB; the vote on 
these actions including the number of members voting for, against, and 
abstaining; the basis for requiring changes in or disapproving research; 
and a written summary of the discussion of controverted issues and their 
resolution.
    (3) Records of continuing review activities.
    (4) Copies of all correspondence between the IRB and the 
investigators.
    (5) A list of IRB members in the same detail as described is Sec. 
690.103(b)(3).
    (6) Written procedures for the IRB in the same detail as described 
in Sec. 690.103(b)(4) and Sec. 690.103(b)(5).
    (7) Statements of significant new findings provided to subjects, as 
required by Sec. 690.116(b)(5).
    (b) The records required by this policy shall be retained for at 
least 3 years, and records relating to research which is conducted shall 
be retained for at least 3 years after completion of the research. All 
records shall be accessible for inspection and copying by authorized 
representatives of the department or agency at reasonable times and in a 
reasonable manner.

(Approved by the Office of Management and Budget under Control Number 
0990-0260.)

[56 FR 28012, 28022, June 18, 1991, as amended at 70 FR 36328, June 23, 
2005]



Sec. 690.116  General requirements for informed consent.

    Except as provided elsewhere in this policy, no investigator may 
involve a human being as a subject in research covered by this policy 
unless the investigator has obtained the legally effective informed 
consent of the subject or the subject's legally authorized 
representative. An investigator shall seek such consent only under 
circumstances that provide the prospective subject or the representative 
sufficient opportunity to consider whether or not to participate and 
that minimize the possibility of coercion or undue influence. The 
information that is given to the subject or the representative shall be 
in language understandable to the subject or the representative. No 
informed consent, whether oral or written, may include any exculpatory 
language through which the subject or the representative is made to 
waive or appear to waive any of the subject's legal rights, or releases 
or appears to release the investigator, the sponsor, the institution or 
its agents from liability for negligence.
    (a) Basic elements of informed consent. Except as provided in 
paragraph

[[Page 255]]

(c) or (d) of this section, in seeking informed consent the following 
information shall be provided to each subject:
    (1) A statement that the study involves research, an explanation of 
the purposes of the research and the expected duration of the subject's 
participation, a description of the procedures to be followed, and 
identification of any procedures which are experimental;
    (2) A description of any reasonably foreseeable risks or discomforts 
to the subject;
    (3) A description of any benefits to the subject or to others which 
may reasonably be expected from the research;
    (4) A disclosure of appropriate alternative procedures or courses of 
treatment, if any, that might be advantageous to the subject;
    (5) A statement describing the extent, if any, to which 
confidentiality of records identifying the subject will be maintained;
    (6) For research involving more than minimal risk, an explanation as 
to whether any compensation and an explanation as to whether any medical 
treatments are available if injury occurs and, if so, what they consist 
of, or where further information may be obtained;
    (7) An explanation of whom to contact for answers to pertinent 
questions about the research and research subjects' rights, and whom to 
contact in the event of a research-related injury to the subject; and
    (8) A statement that participation is voluntary, refusal to 
participate will involve no penalty or loss of benefits to which the 
subject is otherwise entitled, and the subject may discontinue 
participation at any time without penalty or loss of benefits to which 
the subject is otherwise entitled.
    (b) Additional elements of informed consent. When appropriate, one 
or more of the following elements of information shall also be provided 
to each subject:
    (1) A statement that the particular treatment or procedure may 
involve risks to the subject (or to the embryo or fetus, if the subject 
is or may become pregnant) which are currently unforeseeable;
    (2) Anticipated circumstances under which the subject's 
participation may be terminated by the investigator without regard to 
the subject's consent;
    (3) Any additional costs to the subject that may result from 
participation in the research;
    (4) The consequences of a subject's decision to withdraw from the 
research and procedures for orderly termination of participation by the 
subject;
    (5) A statement that significant new findings developed during the 
course of the research which may relate to the subject's willingness to 
continue participation will be provided to the subject; and
    (6) The approximate number of subjects involved in the study.
    (c) An IRB may approve a consent procedure which does not include, 
or which alters, some or all of the elements of informed consent set 
forth above, or waive the requirement to obtain informed consent 
provided the IRB finds and documents that:
    (1) The research or demonstration project is to be conducted by or 
subject to the approval of state or local government officials and is 
designed to study, evaluate, or otherwise examine: (i) Public benefit of 
service programs; (ii) procedures for obtaining benefits or services 
under those programs; (iii) possible changes in or alternatives to those 
programs or procedures; or (iv) possible changes in methods or levels of 
payment for benefits or services under those programs; and
    (2) The research could not practicably be carried out without the 
waiver or alteration.
    (d) An IRB may approve a consent procedure which does not include, 
or which alters, some or all of the elements of informed consent set 
forth in this section, or waive the requirements to obtain informed 
consent provided the IRB finds and documents that:
    (1) The research involves no more than minimal risk to the subjects;
    (2) The waiver or alteration will not adversely affect the rights 
and welfare of the subjects;
    (3) The research could not practicably be carried out without the 
waiver or alteration; and

[[Page 256]]

    (4) Whenever appropriate, the subjects will be provided with 
additional pertinent information after participation.
    (e) The informed consent requirements in this policy are not 
intended to preempt any applicable federal, state, or local laws which 
require additional information to be disclosed in order for informed 
consent to be legally effective.
    (f) Nothing in this policy is intended to limit the authority of a 
physician to provide emergency medical care, to the extent the physician 
is permitted to do so under applicable federal, state, or local law.

(Approved by the Office of Management and Budget under Control Number 
0990-0260.)

[56 FR 28012, 28022, June 18, 1991, as amended at 70 FR 36328, June 23, 
2005]



Sec. 690.117  Documentation of informed consent.

    (a) Except as provided in paragraph (c) of this section, informed 
consent shall be documented by the use of a written consent form 
approved by the IRB and signed by the subject or the subject's legally 
authorized representative. A copy shall be given to the person signing 
the form.
    (b) Except as provided in paragraph (c) of this section, the consent 
form may be either of the following:
    (1) A written consent document that embodies the elements of 
informed consent required by Sec. 690.116. This form may be read to the 
subject or the subject's legally authorized representative, but in any 
event, the investigator shall give either the subject or the 
representative adequate opportunity to read it before it is signed; or
    (2) A short form written consent document stating that the elements 
of informed consent required by Sec. 690.116 have been presented orally 
to the subject or the subject's legally authorized representative. When 
this method is used, there shall be a witness to the oral presentation. 
Also, the IRB shall approve a written summary of what is to be said to 
the subject or the representative. Only the short form itself is to be 
signed by the subject or the representative. However, the witness shall 
sign both the short form and a copy of the summary, and the person 
actually obtaining consent shall sign a copy of the summary. A copy of 
the summary shall be given to the subject or the representative, in 
addition to a copy of the short form.
    (c) An IRB may waive the requirement for the investigator to obtain 
a signed consent form for some or all subjects if it finds either:
    (1) That the only record linking the subject and the research would 
be the consent document and the principal risk would be potential harm 
resulting from a breach of confidentiality. Each subject will be asked 
whether the subject wants documentation linking the subject with the 
research, and the subject's wishes will govern; or
    (2) That the research presents no more than minimal risk of harm to 
subjects and involves no procedures for which written consent is 
normally required outside of the research context.
    In cases in which the documentation requirement is waived, the IRB 
may require the investigator to provide subjects with a written 
statement regarding the research.

(Approved by the Office of Management and Budget under Control Number 
0990-0260.)

[56 FR 28012, 28022, June 18, 1991, as amended at 70 FR 36328, June 23, 
2005]



Sec. 690.118  Applications and proposals lacking definite plans for
involvement of human subjects.

    Certain types of applications for grants, cooperative agreements, or 
contracts are submitted to departments or agencies with the knowledge 
that subjects may be involved within the period of support, but definite 
plans would not normally be set forth in the application or proposal. 
These include activities such as institutional type grants when 
selection of specific projects is the institution's responsibility; 
research training grants in which the activities involving subjects 
remain to be selected; and projects in which human subjects' involvement 
will depend upon completion of instruments, prior animal studies, or 
purification of compounds. These applications need not be reviewed by an 
IRB before an award may be made. However, except for research exempted 
or waived under Sec. 690.101 (b) or (i), no human subjects

[[Page 257]]

may be involved in any project supported by these awards until the 
project has been reviewed and approved by the IRB, as provided in this 
policy, and certification submitted, by the institution, to the 
department or agency.



Sec. 690.119  Research undertaken without the intention of involving 
human subjects.

    In the event research is undertaken without the intention of 
involving human subjects, but it is later proposed to involve human 
subjects in the research, the research shall first be reviewed and 
approved by an IRB, as provided in this policy, a certification 
submitted, by the institution, to the department or agency, and final 
approval given to the proposed change by the department or agency.



Sec. 690.120  Evaluation and disposition of applications and proposals 
for research to be conducted or supported by a Federal department

or agency.

    The department or agency head will evaluate all applications and 
proposals involving human subjects submitted to the department or agency 
through such officers and employees of the department or agency and such 
experts and consultants as the department or agency head determines to 
be appropriate. This evaluation will take into consideration the risks 
to the subjects, the adequacy of protection against these risks, the 
potential benefits of the research to the subjects and others, and the 
importance of the knowledge gained or to be gained.
    (b) On the basis of this evaluation, the department or agency head 
may approve or disapprove the application or proposal, or enter into 
negotiations to develop an approvable one.



Sec. 690.121  [Reserved]



Sec. 690.122  Use of Federal funds.

    Federal funds administered by a department or agency may not be 
expended for research involving human subjects unless the requirements 
of this policy have been satisfied.



Sec. 690.123  Early termination of research support: Evaluation of
applications and proposals.

    (a) The department or agency head may require that department or 
agency support for any project be terminated or suspended in the manner 
prescribed in applicable program requirements, when the department or 
agency head finds an institution has materially failed to comply with 
the terms of this policy.
    (b) In making decisions about supporting or approving applications 
or proposals covered by this policy the department or agency head may 
take into account, in addition to all other eligibility requirements and 
program criteria, factors such as whether the applicant has been subject 
to a termination or suspension under paragarph (a) of this section and 
whether the applicant or the person or persons who would direct or has 
have directed the scientific and technical aspects of an activity has 
have, in the judgment of the department or agency head, materially 
failed to discharge responsibility for the protection of the rights and 
welfare of human subjects (whether or not the research was subject to 
federal regulation).



Sec. 690.124  Conditions.

    With respect to any research project or any class of research 
projects the department or agency head may impose additional conditions 
prior to or at the time of approval when in the judgment of the 
department or agency head additional conditions are necessary for the 
protection of human subjects.

[[Page 259]]



                 CHAPTER VII--COMMISSION ON CIVIL RIGHTS




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Part                                                                Page
701             Organization and functions of the Commission         261
702             Rules on hearings, reports, and meetings of 
                    the Commission..........................         264
703             Operations and functions of State Advisory 
                    Committees..............................         273
704             Information disclosure and communications...         276
705             Materials available pursuant to 5 U.S.C. 
                    552a....................................         283
706             Employee responsibilities and conduct.......         288
707             Enforcement of nondiscrimination on the 
                    basis of disability in programs or 
                    activities conducted by U.S. Commission 
                    on Civil Rights.........................         289
708             Collection by salary offset from indebted 
                    current and former employees............         295

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PART 701_ORGANIZATION AND FUNCTIONS OF THE COMMISSION--Table of Contents




                  Subpart A_Organizations and Functions

Sec.
701.1 Establishment.
701.2 Responsibilities.

                    Subpart B_Organization Statement

701.10 Membership of the Commission.
701.11 Commission meetings--duties of the Chairperson.
701.12 Staff Director.
701.13 Staff organization and functions.

    Authority: 42 U.S.C. 1975, 1975a, 1975b.

    Source: 67 FR 70482, Nov. 22, 2002, unless otherwise noted.



                  Subpart A_Organizations and Functions



Sec. 701.1  Establishment.

    The United States Commission on Civil Rights (hereinafter referred 
to as the ``Commission'') is a bipartisan agency of the executive branch 
of the Government. The predecessor agency to the present Commission was 
established by the Civil Rights Act of 1957, 71 Stat. 634. This Act was 
amended by the Civil Rights Act of 1960, 74 Stat. 86; the Civil Rights 
Act of 1964, 78 Stat. 241; by 81 Stat. 582 (1967); by 84 Stat. 1356 
(1970); by 86 Stat. 813 (1972); and by the Civil Rights Act of 1978, 92 
Stat. 1067. The present Commission was established by the United States 
Commission on Civil Rights Act of 1983, 97 Stat. 1301, as amended by the 
Civil Rights Commission Amendments Act of 1994, 108 Stat. 4339. The 
statutes are codified in 42 U.S.C. 1975 through 1975d. (Hereinafter, the 
1994 Act will be referred to as ``the Act.'')



Sec. 701.2  Responsibilities.

    (a) The Commission's authority under 42 U.S.C. 1975a(a) may be 
summarized as follows:
    (1) To investigate allegations in writing under oath or affirmation 
that citizens of the United States are being deprived of their right to 
vote and have that vote counted by reason of color, race, religion, sex, 
age, disability, or national origin;
    (2) To study and collect information relating to discrimination or a 
denial of equal protection of the laws under the Constitution because of 
color, race, religion, sex, age, disability or national origin or in the 
administration of justice;
    (3) To appraise the laws and policies of the Federal Government 
relating to discrimination or denials of equal protection of the laws 
under the Constitution because of, color, race, religion, sex, age, 
disability, or national origin or in the administration of justice;
    (4) To serve as a national clearinghouse for information relating to 
discrimination or denials of equal protection of the laws because of 
color, race, religion, sex, age, disability, or national origin;
    (5) To prepare public service announcements and advertising 
campaigns to discourage discrimination or denials of equal protection of 
the laws because of color, race, religion, sex, age, disability, or 
national origin.
    (b) Under 42 U.S.C. 1975a(c), the Commission is required to submit 
at least one report annually that monitors Federal civil rights 
enforcement efforts in the United States and other such reports to the 
President and to the Congress at such times as the Commission, the 
Congress, or the President shall deem appropriate.
    (c) In fulfilling these responsibilities the Commission is 
authorized by the Act to hold hearings and to issue subpoenas for the 
attendance of witnesses; to consult with governors, attorneys general; 
and other representatives of State and local governments, and private 
organizations; and is required to establish an advisory committee in 
each State. The Act also provides that all Federal agencies shall 
cooperate fully with the Commission so that it may effectively carry out 
its functions and duties.



                    Subpart B_Organization Statement



Sec. 701.10  Membership of the Commission.

    (a) The Commission is composed of eight members (or 
``Commissioners''), not more than four of whom may be of the same 
political party. The President shall appoint four members, the President 
pro tempore of the Senate shall

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appoint two, and the Speaker of the House of Representatives shall 
appoint two.
    (b) The Chairperson and Vice Chairperson of the Commission are 
designated by the President with the concurrence of a majority of the 
Commissioners. The Vice Chairperson acts as Chairperson in the absence 
or disability of the Chairperson or in the event of a vacancy in that 
office.
    (c) No vacancy in the Commission affects its powers and any vacancy 
is filled in the same manner and is subject to the same limitations with 
respect to party affiliations as previous appointments.
    (d) Five members of the Commission constitute a quorum.



Sec. 701.11  Commission meetings--duties of the Chairperson.

    (a) At a meeting of the Commission in each calendar year, the 
Commission shall, by vote of the majority, adopt a schedule of 
Commission meetings for the following calendar year.
    (b) In addition to the regularly scheduled meetings, it is the 
responsibility of the Chairperson to call the Commission to meet in a 
special open meeting at such time and place as he or she shall deem 
appropriate; provided however, that upon the motion of a member, and a 
favorable vote by a majority of Commission members, a special meeting of 
the Commission may be held in the absence of a call by the Chairperson.
    (c) The Chairperson, after consulting with the Staff Director, shall 
establish the agenda for each meeting. The agenda at the meeting of the 
Commission may be modified by the addition or deletion of specific items 
upon the motion of a Commissioner and a favorable vote by a majority of 
the members.
    (d) In the event that after consulting with the members of the 
Commission and consideration of the views of the members the Chairperson 
determines that there are insufficient substantive items on a proposed 
meeting agenda to warrant holding a scheduled meeting, the Chairperson 
may cancel such meeting.



Sec. 701.12  Staff Director.

    A Staff Director for the Commission is appointed by the President 
with the concurrence of a majority of the Commissioners. The Staff 
Director is the administrative head of the agency.



Sec. 701.13  Staff organization and functions.

    The Commission staff organization and function are as follows:
    (a) Office of the Staff Director. Under the direction of the Staff 
Director, this Office defines and disseminates to staff the policies 
established by the Commissioners; develops program plans for 
presentation to the Commissioners; evaluates program results; supervises 
and coordinates the work of other agency offices; manages the 
administrative affairs of the agency; appoints an Equal Employment 
Opportunity Officer for the agency's in-house Equal Employment 
Opportunity Program; and conducts agency liaison with the Executive 
Office of the President, the Congress, and other Federal agencies.
    (b) Office of the Deputy Staff Director. Under the direction of the 
Deputy Staff Director, this Office is responsible for the day-to-day 
administration of the agency; evaluation of quantity and quality of 
program efforts; personnel administration; and the supervision of Office 
Directors who do not report directly to the Staff Director.
    (c) Office of the General Counsel. Under the direction of the 
General Counsel, who reports directly to the Staff Director, this office 
serves as legal counsel to the Commissioners and to the agency; legal 
aspects of agency-related personnel actions, employment issues, and 
labor relations issues; plans and conducts hearings and consultations 
for the Commission; conducts legal studies; prepares reports of legal 
studies and hearings; drafts or reviews proposals for legislative and 
executive action; receives and responds to requests for material under 
the Freedom of Information Act, Federal Advisory Committee Act, 
Administrative Procedures Act, and the Sunshine Act; serves as the 
agency's ethics office and responds to requests for advice and guidance 
on questions of ethical conduct,

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conflicts of interest, and reporting financial interest; and reviews all 
agency publications and congressional testimony for legal sufficiency.
    (d) Office of Management. This Office is responsible for all 
administrative, management, and facilitative services necessary for the 
operation of the agency, including financial management, personnel, 
publications, and the National Clearinghouse Library. This office 
consists of three divisions reporting directly to the Staff Director.
    (1) Administrative Services and Clearinghouse Division. Under the 
direction of the Chief of Administrative Services, this Division is 
responsible for the identification and acquisition of Commission hearing 
facilities; oversight of the Rankin Library and the distribution of 
publications; procurement; information and resources management; 
security; telecommunications; transportation; space management; repair 
and maintenance services; supplies; central mailing lists; and assorted 
other administrative duties and functions;
    (2) Budget and Finance Division. Under the direction of the Chief of 
Budget and Finance, this Division is responsible for budget preparation, 
formulation, justification, and execution; financial management; and 
accounting, including travel for Commissioners and staff; and
    (3) Human Resources Division. Under the direction of the Director of 
Human Resources, this Division is responsible for human resources 
development, including career staffing, classification, benefits, time 
and attendance, training, and compensation.
    (e) Office of Federal Civil Rights Evaluation. Under the direction 
of an Assistant Staff Director, this Office is responsible for 
monitoring, evaluating and reporting on the civil rights enforcement 
effort of the Federal Government; developing concepts for programs, 
projects, and policies directed toward the achievement of Commission 
goals; preparing documents that articulate the Commission's views and 
concerns regarding Federal civil rights to Federal agencies having 
appropriate jurisdiction; and receiving complaints alleging denial of 
civil rights because of color, race, religion, sex, age, disability, or 
national origin and referring these complaints to the appropriate 
government agency for investigation and resolution.
    (f) Congressional Affairs Unit. This Unit is responsible for liaison 
with committees and members of Congress or their staffs, monitoring 
legislative activities relating to civil rights, and preparing testimony 
for presentation before committees of Congress when such testimony has 
been requested by a committee.
    (g) Public Affairs Unit. Under the direction of the Chief of Public 
Affairs, this Unit is responsible for planning and managing briefings at 
which the Commission receives information regarding civil rights issues; 
developing plans for community outreach activities; managing the 
Commission's public service announcements; media releases and press 
conferences; preparing for publication periodic updates of Commission 
activities and a Commission civil rights magazine; and keeping the 
Commission and Commission staff apprised of civil rights conferences and 
activities.
    (h) Regional Programs Coordination Unit. Under the direction of the 
Chief of the Regional Programs Coordination Unit, this Unit is 
responsible for directing and coordinating the programs and work of the 
regional offices and 51 State Advisory Committees to the Commission and 
maintaining liaison between the regional offices and the various 
headquarters' offices of the Commission.
    (i) Regional Offices. The Commission has six regional offices, each 
headed by a Director, that coordinate studies and fact-finding 
activities on a variety of civil rights issues addressed by the State 
Advisory Committees (SAC) in their regions and approved by the Staff 
Director; report to the Commission on the results of SAC activities; 
submit SAC reports to the Commission for action; and assist with follow-
up on recommendations included in SAC or Commission reports. The name of 
the Director, the address, and telephone and facsimile numbers for each 
regional office are published annually in the ``United States Government 
Manual''. The regions and the SACs that they serve are:

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            Region I: Eastern Regional Office, Washington, DC

    Connecticut, Delaware, District of Columbia, Maine, Maryland, 
Massachusetts, New Hampshire, New Jersey, New York, Pennsylvania, Rhode 
Island, and Vermont, Virginia, West Virginia.

          Region II: Southern Regional Office, Atlanta, Georgia

    Florida, Georgia, Kentucky, Nort