[Title 15 CFR ]
[Code of Federal Regulations (annual edition) - January 1, 1999 Edition]
[From the U.S. Government Printing Office]
15
Commerce and Foreign Trade
[[Page i]]
PARTS 0 TO 299
Revised as of January 1, 1999
CONTAINING
A CODIFICATION OF DOCUMENTS
OF GENERAL APPLICABILITY
AND FUTURE EFFECT
AS OF JANUARY 1, 1999
With Ancillaries
Published by
the Office of the Federal Register
National Archives and Records
Administration
as a Special Edition of
the Federal Register
[[Page ii]]
U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON : 1999
For sale by U.S. Government Printing Office
Superintendent of Documents, Mail Stop: SSOP, Washington, DC 20402-9328
[[Page iii]]
Table of Contents
Page
Explanation................................................. v
Title 15:
Subtitle A--Office of the Secretary of Commerce..... 3
Subtitle B--Regulations Relating to Commerce and Foreign
Trade:
Chapter I--Bureau of the Census, Department of
Commerce........................................... 289
Chapter II--National Institute of Standards and
Technology, Department of Commerce................. 333
Finding Aids:
Table of CFR Titles and Chapters........................ 479
Alphabetical List of Agencies Appearing in the CFR...... 497
List of CFR Sections Affected........................... 507
[[Page iv]]
----------------------------
Cite this Code: CFR
To cite the regulations in
this volume use title,
part and section number.
Thus, 15 CFR 0.735-1
refers to title 15, part
0, section 735-1.
----------------------------
[[Page v]]
EXPLANATION
The Code of Federal Regulations is a codification of the general and
permanent rules published in the Federal Register by the Executive
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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
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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
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[[Page vii]]
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Raymond A. Mosley,
Director,
Office of the Federal Register.
January 1, 1999.
[[Page ix]]
THIS TITLE
Title 15--Commerce and Foreign Trade is composed of three volumes.
The parts in these volumes are arranged in the following order: parts 0-
299, 300-799, and part 800-End. The first volume containing parts 0-299
is comprised of Subtitle A--Office of the Secretary of Commerce,
Subtitle B, chapter I--Bureau of the Census, Department of Commerce, and
chapter II--National Institute of Standards and Technology, Department
of Commerce. The second volume containing parts 300-799 is comprised of
chapter III--International Trade Administration, Department of Commerce,
chapter IV--Foreign-Trade Zones Board, and chapter VII--Bureau of Export
Administration, Department of Commerce. The third volume containing part
800-End is comprised of chapter VIII--Bureau of Economic Analysis,
Department of Commerce, chapter IX--National Oceanic and Atmospheric
Administration, Department of Commerce, chapter XI--Technology
Administration, Department of Commerce, chapter XIII--East-West Foreign
Trade Board, chapter XIV--Minority Business Development Agency, chapter
XX--Office of the United States Trade Representative, and chapter
XXIII--National Telecommunications and Information Administration,
Department of Commerce. The contents of these volumes represent all
current regulations codified under this title of the CFR as of January
1, 1999.
A redesignation table appears in the Finding Aids section of the
volume containing Parts 300-799
For this volume, Cheryl E. Sirofchuck was Chief Editor. The Code of
Federal Regulations publication program is under the direction of
Frances D. McDonald, assisted by Alomha S. Morris.
[[Page x]]
[[Page 1]]
TITLE 15--COMMERCE AND FOREIGN TRADE
(This book contains parts 0 to 299)
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Part
SUBTITLE A--Office of the Secretary of Commerce............. 0
SUBTITLE B--Regulations Relating to Commerce and Foreign Trade:
chapter i--Bureau of the Census, Department of Commerce..... 30
chapter ii--National Institute of Standards and Technology,
Department of Commerce.................................... 200
[[Page 3]]
Subtitle A--Office of the Secretary of Commerce
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Part Page
0 Employee responsibilities and conduct....... 5
1 The Seal of the Department of Commerce...... 26
2 Procedures for handling and settlement of
claims under the Federal Tort Claims Act 27
3 [Reserved]
4 Public information.......................... 29
4a Classification, declassification and public
availability of national security
information............................. 48
4b Privacy Act................................. 52
5 Operation of vending stands................. 71
6 Civil monetary penalty inflation adjustments 73
7 [Reserved]
8 Nondiscrimination in federally-assisted
programs of the Department of Commerce--
effectuation of Title VI of the Civil
Rights Act of 1964...................... 75
8a [Reserved]
8b Prohibition of discrimination against the
handicapped in federally assisted
programs operated by the Department of
Commerce................................ 89
8c Enforcement of nondiscrimination on the
basis of handicap in programs or
activities conducted by the Department
of Commerce............................. 102
9 Procedures for a voluntary labeling program
for household appliances and equipment
to effect energy conservation........... 108
10 Procedures for the development of voluntary
product standards....................... 111
11 Uniform relocation assistance and real
property acquisition for Federal and
federally assisted programs............. 121
12 Fair packaging and labeling................. 121
[[Page 4]]
13 Intergovernmental review of Department of
Commerce programs and activities........ 124
14 Uniform administrative requirements for
grants and agreements with institutions
of higher education, hospitals, other
non-profit, and commercial organizations 127
15 Legal proceedings........................... 154
16 Procedures for a voluntary consumer product
information labeling program............ 165
17 Licensing of Government-owned inventions in
the custody of the Department of
Commerce................................ 171
18 Attorney's fees and other expenses.......... 173
19 Referral of debts to the IRS for tax refund
offset.................................. 180
20 Nondiscrimination on the basis of age in
programs or activities receiving Federal
financial assistance.................... 181
21 Administrative offset....................... 187
22 Salary offset............................... 196
23 Use of penalty mail in the location and
recovery of missing children............ 200
24 Uniform administrative requirements for
grants and cooperative agreements to
State and local governments............. 203
25 Program..................................... 230
26 Governmentwide debarment and suspension
(nonprocurement) and governmentwide
requirements for drug-free workplace
(grants)................................ 245
27 Protection of human subjects................ 264
28 New restrictions on lobbying................ 275
[[Page 5]]
PART 0--EMPLOYEE RESPONSIBILITIES AND CONDUCT--Table of Contents
Subpart A--General Provisions
Sec.
0.735-1 Purpose.
0.735-2 Relation to basic provisions.
0.735-3 Applicability.
0.735-4 Definitions.
Subpart B--General Policy
0.735-5 General principles.
0.735-6 Standards required in the Federal service.
0.735-7 Special requirements of the Department.
0.735-8 Limitations on private activities and interests.
Subpart C--Statutory Limitations Upon Employee Conduct
0.735-9 Employee responsibilities.
Subpart D--Regulatory Limitations Upon Employee Conduct
0.735-10 Administrative extension of statutory limitations.
0.735-10a Proscribed actions.
0.735-11 Gifts, entertainment, and favors.
0.735-12 Outside employment or other activity.
0.735-13 Financial interests.
0.735-14 Use of Government time or property.
0.735-15 Misuse of employment or information.
0.735-16 Indebtedness.
0.735-17 Gambling, betting, and lotteries.
0.735-18 General conduct prejudicial to the Government.
0.735-19 Reporting undue influence to superiors.
Subpart E--Statements of Employment and Financial Interests
0.735-20 General provisions.
0.735-21 Form and content of statements.
0.735-22 Employees required to submit statements.
0.735-22a Employee's complaint on filing requirement.
0.735-23 Employees not required to submit statements.
0.735-24 Time and place for submission of original statements.
0.735-25 Supplementary statements.
0.735-26 Interests of employees' relatives.
0.735-27 Information not known by employees.
0.735-28 Information not required.
0.735-29 Confidentiality of employees' statements.
0.735-30 Relation of this part to other requirements.
0.735-31 Special Government employees.
Subpart F--Supplementary Regulations
0.735-32 Departmental.
0.735-33 Operating units.
0.735-34 Effective date of supplementary regulations.
Subpart G--Administration
0.735-35 Responsibilities of employees.
0.735-36 Responsibilities of operating units.
0.735-37 Procedure.
0.735-38 Availability for counseling.
0.735-39 Authorizations.
0.735-40 Disciplinary and other remedial action.
0.735-41 Inquiries and exceptions.
Subpart H--Disciplinary Actions Concerning Post-Employment Conflict of
Interest Violations
0.735-42 Scope.
0.735-43 Report of violations and investigation.
0.735-44 Initiation of proceedings.
0.735-45 Notice.
0.735-46 Hearing.
0.735-47 Decision absent a hearing.
0.735-48 Administrative appeal.
0.735-49 Sanctions.
0.735-50 Judicial review.
Appendix A to Part 0--Statutes Governing Conduct of Federal Employees
Appendix B to Part 0--Position Categories, Grade GS-13, and Above,
Requiring Statements of Employment and Financial Interests by
Incumbents
Appendix C to Part 0--Position Categories Below GS-13 Requiring
Statements of Employment and Financial Interests by Incumbents
Authority: E.O. 11222 of May 8, 1965, 30 FR 6469, 3 CFR, 1965 Supp.;
5 CFR 735.104, unless otherwise noted.
Source: 32 FR 15222, Nov. 2, 1967, unless otherwise noted.
Subpart A--General Provisions
Sec. 0.735-1 Purpose.
The purpose of this part is to set forth Department of Commerce
policy and procedure relating to employee responsibilities and conduct.
Sec. 0.735-2 Relation to basic provisions.
(a) This part implements the following:
[[Page 6]]
(1) The provisions of law cited in this part;
(2) Executive Order 11222 of May 8, 1965 (3 CFR, 1965 Supp. p. 130);
(3) Part 735 of the Civil Service regulations (5 CFR 735.101-
735.412, inclusive).
(b) This part prescribe additional standards of ethical and other
conduct and reporting requirements deemed appropriate in the light of
the particular functions and activities of this Department.
Sec. 0.735-3 Applicability.
This part applies to all persons included within the term
``employee'' as defined in Sec. 0.735-4, except as otherwise provided in
this part.
Sec. 0.735-4 Definitions.
For purposes of this part, except as otherwise indicated in this
part:
(a) Employee. (1) Shall include: (i) Every officer and employee of
the Department of Commerce (regardless of location), including
commissioned officers of the Environmental Science Services
Administration; and
(ii) Every other person who is retained, designated, appointed, or
employed by a Federal officer or employee, who is engaged in the
performance of a function of the Department under authority of law or an
Executive act, and who is subject to the supervision of a Federal
officer or employee while engaged in the performance of the duties of
his position not only as to what he does but also as to how he performs
his duties, regardless of whether the relationship to the Department is
created by assignment, detail, contract, agreement or otherwise.
(2) Shall not include: (i) Members of the Executive Reserve except
when they are serving as employees of the Department under the
circumstances described in paragraph (a)(1) of this section;
(ii) Members of crews of vessels owned or chartered to the
Government and operated by or for the Maritime Administration under a
General Agency Agreement; or
(iii) Any other person who is determined legally not to be an
officer or employee of the United States.
(b) Special Government employee shall mean an employee as defined in
paragraph (a) of this section who is retained, designated, appointed, or
employed to perform with or without compensation, for not to exceed 130
days during any period of 365 consecutive days, temporary duties on
either a full-time or intermittent basis.
(c) Personnel officer means a personnel official to whom the power
of appointment is redelegated under Administrative Order 202-250.
(d) Operating unit means, for purposes of this part, primary and
constituent operating units designated as such in the Department Order
Series of the Department of Commerce and, in addition, the Office of the
Secretary.
(e) Head of an operating unit, for the purposes of this part,
includes the Assistant Secretary for Administration with respect to the
performance of functions under this part for the Office of the
Secretary.
Subpart B--General Policy
Sec. 0.735-5 General principles.
Apart from statute, there are certain principles of fair dealing
which have the force of law and which are applicable to all officers of
the Government. A public office is a public trust. No public officer can
lawfully engage in business activities which are incompatible with the
duties of his office. He cannot, in his private or official character,
enter into engagements in which he has, or can have, a conflicting
personal interest. He cannot allow his public duties to be neglected by
reason of attention to his private affairs. Such conflicts of interest
are not tolerated in the case of any private fiduciary, and they are
doubly proscribed for a public trustee. (40 Ops. Atty. Gen. 187, 190.)
Sec. 0.735-6 Standards required in the Federal service.
5 CFR 735.101 states: ``The maintenance of unusually high standards
of honesty, integrity, impartiality, and conduct by Government employees
and special Government employees is essential to assure the proper
performance of the Government business and the maintenance of confidence
by citizens in their Government.''
[[Page 7]]
Sec. 0.735-7 Special requirements of the Department.
The close and sensitive relationship between the Department of
Commerce and the Nation's business community calls for special vigilance
on the part of all officers and employees to avoid even any appearance
of impropriety. The regulations set forth in this part have been adopted
in order to promote the efficiency of the service in the light of the
particular ethical and administrative problems arising out of the work
of the Department.
Sec. 0.735-8 Limitations on private activities and interests.
It is the policy of the Department to place as few limitations as
possible on private activities or interests consistent with the public
trust and the effective performance of the official business of the
Department. There is no general statutory or regulatory limitation on
the conduct of private activities for compensation by officers or
employees of the Department, when the private activity is not connected
with any interest of the Government. When the private activity does not
touch upon some interest, it may be conducted if it falls outside
applicable statutory limitations and regulatory limitations.
Subpart C--Statutory Limitations Upon Employee Conduct
Sec. 0.735-9 Employee responsibilities.
Each employee and special Government employee has a positive duty to
acquaint himself with the numerous statutes relating to the ethical and
other conduct of employees and special employees of the Department and
of the Government Appendix A of this part contains a listing of the more
important statutory provisions of general applicability. In case of
doubt on any question of statutory application to fact situations that
may arise, the employee should consult the text of the statutes, which
will be made available to him by his organization unit, and he should
also avail himself of the legal counseling provided by this part.
Subpart D--Regulatory Limitations Upon Employee Conduct
Sec. 0.735-10 Administrative extension of statutory limitations.
The provisions of the statutes identified in this part which relate
to the ethical and other conduct of Federal employees are adopted and
will be enforced as administrative regulations, violations of which may
in appropriate cases be the basis for disciplinary action, including
removal. The fact that a statute which may relate to employee conduct is
not identified in this part does not mean that it may not be the basis
for disciplinary action against an employee.
Sec. 0.735-10a Proscribed actions.
An employee shall avoid any action, whether or not specifically
prohibited by this subpart, which might result in, or create the
appearance of:
(a) Using public office for private gain;
(b) Giving preferential treatment to any person;
(c) Impeding Government efficiency or economy;
(d) Losing complete independence or impartiality;
(e) Making a government decision outside official channels; or
(f) Affecting adversely the confidence of the public in the
integrity of the Government.
Sec. 0.735-11 Gifts, entertainment, and favors.
(a) General limitations. Except as provided in paragraphs (b) and
(f) of this section, an employee shall not solicit or accept, directly
or indirectly, any gift, gratuity, favor, entertainment, loan, payment
of expenses, fee, compensation, or any other thing of monetary value,
for himself or another person, from a person who:
(1) Has, or is seeking to obtain, contractual or other business or
financial relations with the Department of Commerce;
(2) Conducts operations or activities that are regulated by the
Department of Commerce; or
(3) Has interests that may be substantially affected by the
performance or nonperformance of the employee's
[[Page 8]]
official duty or by actions of the Department.
(b) Exceptions. The following exceptions are authorized to the
limitation in paragraph (a) of this section:
(1) Acceptance of a gift, gratuity, favor, entertainment, loan,
payment of expenses, fee, compensation, or other thing of monetary value
incident to obvious family or personal relationships (such as those
between the employee and the parents, children, or spouse of the
employee) when the circumstances make it clear that it is those
relationships rather than the business of the persons concerned which
are the motivating factors.
(2) Acceptance of food and refreshments of nominal value on
infrequent occasions in the ordinary course of a luncheon or dinner
meeting or other meeting or on an inspection tour where an employee may
properly be in attendance. For the purpose of this section, ``nominal
value'' means that the value of the food or refreshments shall not be
unreasonably high under the circumstances.
(3) Acceptance of loans from banks or other financial institutions
on customary terms and on security not inconsistent with paragraph (a)
of this section, to finance proper and usual activities of employees,
such as home mortgage loans.
(4) Acceptance of unsolicited advertising or promotional material,
such as pens, pencils, note pads, calendars, and other items of nominal
intrinsic value.
(5) Acceptance of a gift, gratuity, favor, entertainment, loan,
payment of expenses, fee, compensation, or other thing of monetary value
when such acceptance is determined by the head of the operating unit
concerned to be necessary and appropriate in view of the work of the
Department and the duties and responsibilities of the employee. A copy
of each such determination shall be sent to the counselor of the
Department.
(6) Special Government employees are covered by this section only
while employed by the Department or in connection with such employment.
(c) [Reserved]
(d) Gifts to superiors. An employee shall not solicit a contribution
from another employee for a gift to an official superior, make a
donation as a gift to an official superior, or accept a gift from an
employee receiving less pay than himself (5 U.S.C. 7351). However, this
paragraph does not prohibit a voluntary gift of nominal value or
donation in a nominal amount made on a special occasion such as
marriage, illness, or retirement. An employee who violates these
requirements shall be removed from the service.
(e) Gifts from a foreign government. An employee shall not accept a
gift, present, decoration, or other thing from a foreign government
unless acceptance is (1) authorized by Congress as provided by the
Constitution and in Pub. L. 89-673, 80 Stat. 952, and (2) authorized by
the Department of Commerce as provided in Administrative Order 202-739.
(f) Reimbursement for travel expenses and subsistence. Neither this
section nor Sec. 0.735-12 precludes an employee from receipt of bona
fide reimbursement, unless prohibited by law, for expenses of travel and
such other necessary subsistence as is compatible with this part for
which no Government payment or reimbursement is made. However, this
paragraph does not allow an employee to be reimbursed, or payment to be
made on his behalf, for excessive personal living expenses, gifts,
entertainment, or other personal benefits, nor does it allow an employee
to be reimbursed by a person for travel on official business under
agency orders when reimbursement is proscribed by Decision B-128527 of
the Comptroller General dated March 7, 1967. (Requirements applicable to
Department of Commerce employees are set forth in Department of Commerce
Administrative Order 203-9.)
Sec. 0.735-12 Outside employment or other activity.
(a) Incompatible outside employment or other outside activity. An
employee shall not engage in outside employment or other outside
activity not compatible
(1) With the full and proper discharge of the duties and
responsibilities of his Government employment,
(2) With the policies or interests of the Department, or
[[Page 9]]
(3) With the maintenance of the highest standards of ethical and
moral conduct. Incompatible activities include but are not limited to:
(i) Acceptance of a fee, compensation, gift, payment of expense, or
any other thing of monetary value in circumstances in which acceptance
may result in, or create the appearance of, a conflict of interest;
(ii) Outside employment which tends to impair the employee's mental
or physical capacity to perform his Government duties and
responsibilities in an acceptable manner;
(iii) Employment with any foreign government, corporation,
partnership, instrumentality, or individual unless authorized by the
Department;
(iv) Employment by, or service rendered under contract with, any of
the persons listed in Sec. 0.735-11(a);
(v) Receipt by an employee, other than a special Government
employee, of any salary or anything of monetary value from a private
source as compensation for his services to the Government. (18 U.S.C.
209).
(b) Improper benefit from official activity. (1) No employee of the
Department shall receive compensation (e.g., an honorarium) or anything
of monetary value, other than that to which he is duly entitled from the
Government, for the performance of any activity during his service as
such employee of the Department and within the scope of his official
responsibilities.
(2) As used in this paragraph, ``within the scope of his official
responsibilities'' means in the course of or in connection with his
official responsibilities. (See 29 Comp. Gen. 163; 30 id. 246; 32 id.
454; 35 id. 354; B-131371, July 17, 1957.)
(3) An activity shall ordinarily be considered to be in the course
of or in connection with an employee's official responsibilities if it
is performed as a result of an invitation or request which is addressed
to the Department or a component thereof, or which is addressed to an
employee at his office at the Department, or which there is reason to
believe is extended partly because of the official position of the
employee concerned. (When in doubt, it may be asked whether it is likely
that the invitation would have been received if the recipient were not
associated with the Department.) Whether an employee is on leave while
performing an activity shall be considered irrelevant in determining
whether an activity is performed in the course of or in connection with
the employee's official responsibilities.
(4) Acceptance of a gift or bequest on behalf of the Department
shall be made in accordance with Department Order 3 and Administrative
Order 203-9.
(c) Teaching, lecturing, and writing. Employees are encouraged to
engage in teaching, lecturing, and writing that is not prohibited by
law. Executive Order 11222, 5 CFR Part 735, or the regulations in this
part and Administrative Order 201-4, ``Writing for Outside
Publication,'' subject to the following conditions:
(1) An employee shall not, either for or without compensation,
engage in teaching, lecturing, or writing, including teaching,
lecturing, or writing for the purpose of the special preparation of a
person or class of persons for an examination of the Office of Personnel
Management or the Board of Examiners for the Foreign Service, that
depends on information obtained as a result of his Government
employment, except when that information has been made available to the
general public or will be made available on request, or when the
Assistant Secretary for Administration or his designee gives written
authorization for the use of nonpublic information on the basis that the
use is in the public interest.
(2) No employee shall receive compensation or anything of monetary
value for any consultation, lecture, discussion, writing, or appearance,
the subject matter of which is devoted substantially to the
responsibilities, programs, or operations of the Department of Commerce,
or which draws substantially on official data or ideas which have not
become part of the body of public information. As used in this
paragraph, ``the body of public information'' shall mean information
which has been disseminated widely among segments of the public which
may be affected by or interested in the information concerned, or which
is known by such segments of the public
[[Page 10]]
to be freely available on request to a Government agency.
(d) [Reserved]
(e) Application of the limitations. This section does not preclude
an employee from:
(1) [Reserved]
(2) Participation in the activities of National or State political
parties not proscribed by law.
(3) Participation in the affairs of, or acceptance of an award for a
meritorious public contribution or achievement given by a charitable,
religious, professional, social, fraternal, nonprofit educational and
recreational, public service, or civic organization.
[32 FR 15222, Nov. 2, 1967, as amended at 33 FR 9765, July 6, 1968; 55
FR 53489, Dec. 31, 1990]
Sec. 0.735-13 Financial interests.
(a) An employee shall not: (1) Have a direct or indirect financial
interest that conflicts substantially, or appears to conflict
substantially, with his Government duties and responsibilities; or
(2) Engage in, directly or indirectly, a financial transaction as a
result of, or primarily relying on, information obtained through his
Government employment.
(b) No employee shall participate in any manner, on behalf of the
United States, in the negotiation of contracts, the making of loans, and
grants, the granting of subsidies, the fixing of rates, or the issuance
of valuable permits or certificates, or in any investigation or
prosecution, or in the transaction of any other official business, which
affects chiefly a person with whom he has any economic interest or any
pending negotiations concerning a prospective economic interest, except
with express prior authorization as provided for in subpart G of this
part.
(c) This section does not preclude an employee from having a
financial interest or engaging in financial transactions to the same
extent as a private citizen not employed by the Government so long as it
is not prohibited by law, Executive order, Civil Service regulations (5
CFR Part 735), or regulations in this part.
(d) The financial (or economic) interests described below are too
remote or too inconsequential to affect the integrity of an employee's
services in any matter involving them, and are thereby exempted from the
prohibitions of 18 U.S.C. 208(a), and do not exclude such employee's
participation in the transaction of any official business involving such
financial or economic interests:
Deposits in a bank, savings and loan association, building
association, credit union or similar financial institution; policies
held with an insurance company; constructive interests in companies and
other entities owned or held by a mutual fund or other diversified
investment company in which the employee has an interest.
These exempted financial (or economic) interests need not be reported by
employees in their statements of employment and financial interests
referred to in Sec. 0.735-21.
(18 U.S.C. 208(b); 5 CFR 735.404a)
[32 FR 15222, Nov. 2, 1967, as amended at 41 FR 34939, Aug. 18, 1976; 47
FR 3350, Jan. 25, 1982]
Sec. 0.735-14 Use of Government time or property.
(a) An employee shall not directly or indirectly use, or allow the
use of, Government time or property of any kind, including property
leased to the Government, for other than officially approved activities.
(b) Each employee shall protect and conserve Government property,
including equipment, supplies, and other property entrusted or issued to
him.
Sec. 0.735-15 Misuse of employment or information.
(a) Use of Government employment. An employee shall not use his
Government employment for a purpose that is, or gives the appearance of
being, motivated by the desire for private gain for himself or another
person, particularly one with whom he has family, business, or financial
ties.
(b) Use of inside information. For the purpose of furthering a
private interest, an employee shall not, except as provided in
Sec. 0.735-12(c), directly or indirectly use, or allow the use of,
information which has been or has the appearance of having been obtained
[[Page 11]]
through or in connection with his Government employment and which has
not been made available to the general public.
(c) Coercion. An employee shall not use his Government employment to
coerce, or give the appearance of coercing, a person to provide
financial benefit to himself or another person, particularly one with
whom he has family, business, or financial ties.
(d) Disclosure of restricted information. No employee shall divulge
restricted commercial or economic information, or restricted information
concerning the personnel or operations of any Government agency, or
release any such information in advance of the time prescribed for its
authorized release.
(e) Discrimination. No employee, acting in his official capacity,
shall, directly or indirectly, authorize, permit, or participate in any
act or course of conduct which, on the ground of race, color, creed,
national origin, or sex, excludes from participation, denies any benefit
to, or otherwise subjects to discrimination any person under any program
or activity administered or conducted by the Department or one of its
units, or such employee. (See Department Order 195.)
Sec. 0.735-16 Indebtedness.
(a) An employee shall pay each just financial obligation in a proper
and timely manner, especially one imposed by law such as Federal, State,
or local taxes. For purposes of this section, ``a just financial
obligation'' means one acknowledged by the employee or reduced to
judgment by a court, and ``in a proper and timely manner'' means in a
manner which, in the view of the Department, does not, under the
circumstances, reflect adversely on the Government as his employer.
(b) In the event of dispute between an employee and an alleged
creditor, this section does not require the Department to determine the
validity or amount of the disputed debt.
Sec. 0.735-17 Gambling, betting, and lotteries.
An employee shall not participate while on Government-owned or
leased property or while on duty for the Government, in any gambling
activity including the operation of a gambling device, in conducting a
lottery or pool, in a game for money or property or in selling or
purchasing a numbers slip or ticket. However, this section does not
preclude activities
(a) Necessitated by an employee's law enforcement duties, or
(b) Under section 3 of Executive Order 10927 (relating to
solicitations conducted by organizations composed of civilian employees
or members of the armed forces among their own members for
organizational support or for benefit or welfare funds for their own
members) and similar agency-approved activities.
Sec. 0.735-18 General conduct prejudicial to the Government.
(a) General policy. Officers and employees of the Federal Government
are servants of the people. Because of this, their conduct must, in many
instances, be subject to more restrictions and to higher standards than
may be the case in certain private employments. They are expected to
conduct themselves in a manner which will reflect favorably upon their
employer. Although the Government is not particularly interested in the
private lives of its employees, it does expect them to be honest,
reliable, trustworthy, and of good character and reputation. They are
expected to be loyal to the Government, and to the department or agency
in which they are employed.
(b) Specific policy. An employee shall not engage in criminal,
infamous, dishonest, immoral, or notoriously disgraceful conduct, or
other conduct prejudicial to the Government.
(c) Regulations applicable to public buildings and grounds. Each
employee is responsible for knowing and complying with regulations of
the General Services Administration and of the Department of Commerce
applicable to public buildings and grounds.
Sec. 0.735-19 Reporting undue influence to superiors.
Each employee shall report to his superior any instance in which
another person inside or outside the Federal Government uses or attempts
to use undue influence to induce, by reason of his official Government
position,
[[Page 12]]
former Government employment, family relationship, political position,
or otherwise, the employee to do or omit to do any official act in
derogation of his official duty.
Subpart E--Statements of Employment and Financial Interests
Sec. 0.735-20 General provisions.
(a) In order to carry out the purpose of this part, certain
employees of the Department, specified in or pursuant to this part, will
be required to submit statements of outside employment and financial
interests for review designed to disclose conflicts of interest,
apparent conflicts of interest on the part of employees, and other
matters within the purview of this part.
(b) When a conflict or apparent conflict of interest on the part of
an employee or other question of compliance with the provisions of this
part arises and is not resolved at a lower level within the Department,
e.g., by appropriate remedial action, the information concerning the
matter shall be reported to the Secretary through the counselor for the
Department designated in Sec. 0.735-38.
(c) In the event of a conflict or apparent conflict of interest on
the part of an employee or other question of compliance with the
provisions of this part, the employee concerned shall be provided an
opportunity to explain the matter. After consideration of the conflict
or apparent conflict of interest or other question of compliance, and
the employee's explanation thereof, appropriate action shall be taken.
Sec. 0.735-21 Form and content of statements.
(a) Statements of employment and financial interests shall be
submitted as far as practicable on one of the following forms, as
appropriate:
(1) Form CD-220, ``Confidential Statement of Employment and
Financial Interests (For Use by Government Employees Other Than Special
Government Employees)''; or
(2) Form CD-219, ``Confidential Statement of Employment and
Financial Interests (For Use by Special Government Employees).''
(b) Each of the foregoing forms shall contain, as a minimum, the
information required by the formats prescribed by the Office of
Personnel Management in the Federal Personnel Manual. Questions on a
statement of employment and financial interests that go beyond, or are
in greater detail than, those included on the Office's formats may be
included on a statement only with the approval of the Assistant
Secretary for Administration and the Office.
(c) [Reserved]
(d) The employee will not be required to reveal precise amounts of
financial interest when such information is not necessary for a proper
determination as to whether there is any apparent conflict of interest.
[32 FR 15222, Nov. 2, 1967, as amended at 55 FR 53489, Dec. 31, 1990]
Sec. 0.735-22 Employees required to submit statements.
Except as provided in Sec. 0.735-23, a statement of employment and
financial interests shall be submitted by the following employees other
than special Government employees:
(a) Employees paid at a level of the Executive Schedule in
Subchapter II of Chapter 53 of Title 5, United States Code.
(b) Employees classified at GS-13 or above under section 5332 of
Title 5, United States Code, or at a comparable pay level under another
authority, who are in positions the basic duties and responsibilities of
which are determined by the head of the operating unit concerned to
require the incumbent to make a Government decision or to take a
Government action in regard to:
(1) Contracting or procurement;
(2) Administering or monitoring grants or subsidies;
(3) Regulating or auditing private or other non-Federal enterprise;
or
(4) Other activities where the decision or action has an economic
impact on the interests of any non-Federal enterprise.
Each employee who occupies a position in one of the above-listed
categories and who is not excluded from the reporting requirement shall
be notified that he is subject to the reporting requirement.
[[Page 13]]
(c) The following employees classified at GS-13 or above under
section 5332 of Title 5, United States Code, or at a comparable pay
level under another authority, not otherwise subject to paragraph (b) of
this section:
(1) Employees in grade GS-16 or above, or in comparable or higher
positions.
(2) Employees in Schedule C positions.
(3) Employees in hearing examiner or hearing officer positions.
(4) Persons employed as experts, consultants, or advisers.
(5) Employees in positions or categories of positions, regardless of
their official title, identified in Appendix B of this part.
(d) Employees classified below GS-13 under section 5332 of Title 5,
United States Code, or at a comparable pay level under another
authority, who are in positions or categories of positions, regardless
of their official title, identified in Appendix C to this part.
(e) Appendices B and C. (1) Appendix B to this part shall be
maintained and changes made therein in accordance with the criteria in 5
CFR 735.403(c) and in accordance with the procedure in this paragraph.
Appendix C to this part shall be maintained and changes made therein in
accordance with the criteria in 5 CFR 735.403(d) and in accordance with
the procedure in this paragraph.
(2) Heads of operating units and heads of offices in the Office of
the Secretary shall, in conformity with the above-cited criteria,
recommend changes in Appendix B and Appendix C to the Assistant
Secretary for Administration for approval. Changes in Appendix C shall
be submitted, with specific justification, to the Office of Personnel
Management for further prior approval.
(3) Incumbents of positions added to Appendix B or to Appendix C
shall become subject to the reporting requirements of this part upon
receipt of notification that their position is subject to such
requirements. Appendix B and Appendix C shall be republished annually to
reflect changes in the lists.
[32 FR 15222, Nov. 2, 1967, as amended at 55 FR 53489, Dec. 31, 1990]
Sec. 0.735-22a Employee's complaint on filing requirement.
An employee shall have an opportunity for review through the
Department of Commerce grievance procedure, as provided by
Administrative Order 202-770, of a complaint by him that his position
has been improperly included under the regulations of the Department as
one requiring the submission of a statement of employment and financial
interests.
Sec. 0.735-23 Employees not required to submit statements.
(a) Employees in positions that meet the criteria in paragraph (b),
(c), or (d) of Sec. 0.735-22 may be excluded from the reporting
requirement when the head of the operating unit concerned determines
that:
(1) The duties of a position are such that the likelihood of the
incumbent's involvement in a conflicts-of-interest situation is remote;
or
(2) The duties of a position are at such a level of responsibility
that the submission of a statement of employment and financial interests
is not necessary because of the degree of supervision and review over
the incumbent or the inconsequential effect on the integrity of the
Government.
(b) A statement of employment and financial interests is not
required by this part from the Secretary of Commerce, from the head of
an independent agency for which the Department of Commerce performs
administrative services, or from a full-time member of a committee,
board, or commission appointed by the President. These employees are
subject to separate reporting requirements under section 401 of
Executive Order 11222.
Sec. 0.735-24 Time and place for submission of original statements.
(a) An employee required to submit a statement of employment and
financial interests under this part shall submit that statement not
later than:
(1) Ninety days after the effective date of this part if the
employee is employed by the Department on or before the effective date
of this part; or
(2) Thirty days after the employee's entrance on duty date, but in
no case
[[Page 14]]
earlier than 90 days after the effective date of this part.
(b) Statements shall be submitted to a personnel officer specified
by the head of the operating unit or to such other person as the head of
the operating unit, with the approval of the Secretary, may specify.
Secretarial officers and heads of operating units shall submit their
statements to the Secretary or to such person as the Secretary may
designate.
Sec. 0.735-25 Supplementary statements.
Changes in, or additions to, the information contained in an
employee's statement of employment and financial interests shall be
reported in a supplementary statement as of June 30 each year, except
when the Office of Personnel Management authorizes a different date on a
showing by the Department of necessity therefor. (The Commission has
authorized filing of the supplementary statement for 1967 as of
September 30, 1967.) If no changes or additions occur, a negative report
is required. Notwithstanding the filing of the annual report required by
this section, each employee shall at all times avoid acquiring a
financial interest that could result, or taking an action that would
result, in a violation of the conflicts-of-interest provisions of
section 208 of Title 18, United States Code, or subpart D of this part.
[32 FR 15222, Nov. 2, 1967, as amended at 55 FR 53489, Dec. 31, 1990]
Sec. 0.735-26 Interests of employees' relatives.
The interest of a spouse, minor child, or other member of an
employee's immediate household is considered to be an interest of the
employee. For the purpose of this section, ``member of an employee's
immediate household'' means those blood relations who are members of the
employee's household.
Sec. 0.735-27 Information not known by employees.
If any information required to be included on a statement of
employment and financial interests or supplementary statement, including
holdings placed in trust, is not known to the employee but is known to
another person, the employee shall request that other person to submit
information in his behalf.
Sec. 0.735-28 Information not required.
This part does not require an employee to submit on a statement of
employment and financial interests or supplementary statement any
information relating to the employee's connection with, or interest in,
a professional society or a charitable, religious, social, fraternal,
recreational, public service, civic, or political organization or a
similar organization not conducted as a business enterprise. For the
purpose of this section, educational and other institutions doing
research and development or related work involving grants of money from
or contracts with the Government are deemed ``business enterprises'' and
are required to be included in an employee's statement of employment and
financial interests.
Sec. 0.735-29 Confidentiality of employees' statements.
(a) No employee may have access to a statement of employment and
financial interests, or a supplementary statement, unless his official
duties make access necessary. Each employee who has access to such a
statement is responsible for maintaining it in confidence and shall not
allow access to, or allow information to be disclosed from, a statement
except to an employee of the Department of Commerce or the Office of
Personnel Management to carry out the purpose of this part or to other
persons as the Office of Personnel Management or the Assistant Secretary
for Administration may determine for good cause shown. (The foregoing
limitations do not apply to release of information by an employee with
respect to a statement he has submitted under this section.)
(b) The employees designated in paragraph (b) of Sec. 0.735-24 to
receive statements are authorized to review and retain the statements
and are responsible for maintaining the statements in confidence, as
provided in this section.
[32 FR 15222, Nov. 2, 1967, as amended at 55 FR 53489, Dec. 31, 1990]
[[Page 15]]
Sec. 0.735-30 Relation of this part to other requirements.
(a) The requirement that employees submit statements of employment
and financial interests and supplementary statements under this part is
in addition to, and not in substitution for, or in derogation of, any
similar requirement imposed by law, order, or regulation.
(b) The submission of a statement or supplementary statement by an
employee does not permit him or any other person to participate in a
matter in which his or the other person's participation is prohibited by
law, order, or regulation, including this part.
Sec. 0.735-31 Special Government employees.
(a) Special Government employees shall be required to report:
(1) All other employment; and
(2) Financial interests specified on Form CD-219.
(b) A waiver may be granted to the requirements of this section in
the case of a special Government employee who is not a consultant or
expert (as defined in Chapter 304 of the Federal Personnel Manual) when
a determination is made that the duties of the position held by that
special Government employee are of such a nature and at such a level of
responsibility that the submission of the statement by the incumbent is
not necessary to protect the integrity of the Government. Any such
waiver shall be approved by the head of the operating unit concerned or
his designee. A copy of the waiver shall be filed with the deputy
counselor for the organization unit concerned.
(c) The original statement of employment and financial interests
required to be submitted by a special Government employee shall be
submitted not later than his entry on duty. Each special employee shall
keep his statement current throughout his employment with the Department
by the submission of supplementary statements.
Subpart F--Supplementary Regulations
Sec. 0.735-32 Departmental.
The Assistant Secretary for Administration may prescribe
supplementary instructions consistent with this part.
Sec. 0.735-33 Operating units.
Each operating unit is hereby authorized and directed to prescribe,
after approval by the Assistant Secretary for Administration, such
additional regulations not inconsistent with this part as may be
necessary to effectuate the general purpose of this part in the light of
its individual operating requirements, including but not limited to
pertinent statutory provisions, such as:
(a) 35 U.S.C. 4, 122 (Patent Office);
(b) 46 U.S.C. 1111(b) (Maritime Administration);
(c) Certain provisions of the Defense Production Act of 1950, e.g.,
50 U.S.C. App. 2160(b)(2) (avoidance of conflicts of interest), 50
U.S.C. App. 2160(b)(6) (financial statements), and 50 U.S.C. App.
2160(f) (prohibition of use of confidential information for purposes of
speculation) (Business and Defense Services Administration and any other
primary operating unit affected); and
(d) Certain provisions of Pub. L. 89-136, the Public Works and
Economic Development Act of 1965, e.g., section 711 (restriction on
employing certain EDA employees by applicants for financial assistance),
and section 710(b) (embezzlement), false book entries, sharing in loans,
etc., and giving out unauthorized information for speculation).
Sec. 0.735-34 Effective date of supplementary regulations.
Supplementary regulations prescribed pursuant to Sec. 0.735-33,
shall become effective upon approval by the issuing officer unless a
different date is required by law or a later date is specified therein.
[[Page 16]]
Subpart G--Administration
Sec. 0.735-35 Responsibilities of employees.
It is the responsibility of each employee:
(a) To assure, at the outset of his employment, that each of his
interests and activities is consistent with the requirements established
by or pursuant to this part;
(b) To submit a statement of employment and financial interests at
such times and in such form as may be specified in or pursuant to this
part;
(c) To certify, upon entering on duty in the Department, that he has
read this part and applicable regulations supplementary thereto;
(d) To obtain prior written authorization of any interest or
activity about the propriety of which any doubt exists in the employee's
mind, as provided in Sec. 0.735-39;
(e) To confine each of his interests and activities at all times
within the requirements established by or pursuant to this part,
including any authorizations granted pursuant to this part; and
(f) To obtain a further written authorization whenever circumstances
change, or the nature or extent of the interest or activity changes, in
such a manner as to involve the possibility of a violation or appearance
of a violation of a limitation or requirement prescribed in or pursuant
to this part.
Sec. 0.735-36 Responsibilities of operating units.
The head of each operating unit, or his designee, shall:
(a) Furnish or make available to each employee a copy of this part
(or a comprehensive summary thereof) within 90 days after approval of
this part by the Office of Personnel Management, and, upon their
issuance, a copy of any regulations supplementary thereto (or a
comprehensive summary thereof);
(b) Furnish or make available to each new employee at the time of
his entrance on duty a copy of this part as it may be amended and any
supplementary regulations (or a comprehensive summary thereof);
(c) Bring this part (or as it may be amended and any supplementary
regulations thereto) to the attention of each employee annually, and at
such other times as circumstances may warrant as may be determined by
the Assistant Secretary for Administration;
(d) Have available for review by employees, as appropriate, copies
of laws, Executive orders, this part, supplementary regulations, and
pertinent Office of Personnel Management regulations and instructions
relating to ethical and other conduct of Government employees;
(e) Advise each employee who is a special Government employee of his
status for purposes of 18 U.S.C. 203 and 205;
(f) Require each employee specified in Sec. 0.735-22 to submit a
statement of employment and financial interests, as provided by or
pursuant to this part;
(g) Develop an appropriate form, with the approval of the counselor
of the Department, on which the employee may certify that he has read
this part and applicable regulations supplementary thereto, in
accordance with Sec. 0.735-35(c), and on which he may, if he so desires,
indicate that he has a private activity or interest about which he
requests advice and guidance as provided by Sec. 0.735-38.
(h) Require each employee upon entering on duty and at such other
times as may be specified, to execute the certification required by
Sec. 0.735-35(c);
(i) Report to the program Secretarial Officer concerned and to the
Assistant Secretary for Administration promptly any instance in which an
employee, after notice, fails to submit the certification required under
Sec. 0.735-35(c) or a statement of employment or financial interests
required under this part within 14 calendar days following the
prescribed time limit for doing so; and
(j) Take action to impress upon each employee required to submit a
statement of employment and financial interests, upon his supervisor,
and upon employees with whom the employee works, their responsibility as
follows:
(1) The employee's supervisor is responsible (i) for excluding from
the range of duties of the employee any contracts or other transactions
between the Government and his outside employer, clients, or entities in
which he has an interest within the purview
[[Page 17]]
of this part, and (ii) for overseeing the employee's activities in order
to insure that the public interest is protected from improper conduct on
his part and that he will not, through ignorance or inadvertence,
embarrass the Government or himself.
(2) The employee's supervisor and employees with whom he works are
responsible for avoiding the use of the employee's services in any
situation in which a violation of law, regulation, or ethical standards
is likely to occur or to appear to occur.
(3) The supervisor of an employee is responsible for initiating
prompt and proper disciplinary or remedial action when a violation,
intentional or innocent, is detected.
(4) Employees shall avoid divulging to a special Government employee
privileged Government information which is not necessary to the
performance of his governmental responsibility or information which
directly involves the financial interests of his non-Government
employer.
(5) An employee shall make every effort in his private work to avoid
any personal contact with respect to negotiations with the Department
for contracts, grants, or loans, if the subject matter is related to the
subject matter of his Government employment. When this is not possible,
he may participate if not otherwise prohibited by law (e.g., 18 U.S.C.
203 and 205) in the negotiations for his private employer only with the
prior approval of the head of the operating unit concerned.
[32 FR 15222, Nov. 2, 1967, as amended at 55 FR 53489, Dec. 31, 1990]
Sec. 0.735-37 Procedure.
The review of statements of employment and financial interests shall
include the following basic measures, among others:
(a) Statements shall be submitted to the designated officer, who
will review each employee's statement of employment and financial
interests to ascertain whether they are consistent with the requirements
established by or pursuant to this part. (See Sec. 0.735-24(b).)
(b) Where the statement raises any question of compliance with the
requirements of this part, it shall be submitted to a deputy counselor
for the organization unit concerned. The deputy counselor may, in his
discretion, utilize the advice and services of others (including
departmental facilities) to obtain further information needed to resolve
the questions.
(c) The designated officer shall maintain the statements of
employment and financial interests in a file apart from the official
personnel files and shall take every measure practicable to insure their
confidentiality. Statements of employment and financial interests shall
be preserved for 5 years following the separation of an employee from
the Department or following termination of any other relationship under
which the individual rendered service to the Department, except as may
be otherwise authorized by the Assistant Secretary for Administration or
as required by law.
Sec. 0.735-38 Availability for counseling.
(a) The General Counsel of the Department shall:
(1) Serve as the counselor for the Department of Commerce with
respect to matters covered by the basic provisions cited in Sec. 0.735-
2(a) and otherwise by or pursuant to this part;
(2) Serve as the Department of Commerce designee to the Office of
Personnel Management on matters covered by this part; and
(3) Coordinate the counseling services provided under this part and
assure that counseling and interpretations on questions of conflicts of
interest and other matters covered by this part are available to deputy
counselors designated under paragraph (b) of this section.
(b) The counselor shall designate employees who shall serve as
deputy counselors for employees of the Department of Commerce with
respect to matters covered by or pursuant to this part and shall give
authoritative advice and guidance to each employee who seeks advice and
guidance on questions of conflict of interests and other matters covered
by or pursuant to this part.
(c) Each operating unit shall notify its employees of the
availability of counseling services and of how and where these services
are available. This notification shall be given within 90 days after
approval of this part by the
[[Page 18]]
Office of Personnel Management and periodically thereafter. In the case
of a new employee appointed after the foregoing notification,
notification shall be made at the time of his entrance on duty.
(d) In each operating unit a deputy counselor shall advise and
counsel each employee concerning any adjustments necessary in his
financial interests or activities, or in any contemplated interests or
activities, in order to meet the requirements established by or pursuant
to this part.
[32 FR 15222, Nov. 2, 1967, as amended at 55 FR 53489, Dec. 31, 1990]
Sec. 0.735-39 Authorizations.
All requests for authorizations required under this part shall be
addressed to the head of the operating unit concerned. In the Office of
the Secretary such requests shall be addressed to the Secretary or such
person as he may designate. When granted, authorizations will be in
writing, and a copy of each authorization will be filed in the
employees' official personnel file.
(a) In case of doubt, or upon the request of the employee concerned,
cases or questions will be forwarded to the counselor or a deputy
counselor. (See Sec. 0.735-38.)
(b) Where an activity requested to be authorized can be conducted as
official business, it shall not be authorized as a private activity, but
shall be conducted as official business.
(c) Where authorizations involve speaking, writing, or teaching, use
of the official title of the employee for identification purposes may be
authorized, provided the employee makes it clear that his statements and
actions are not of an official nature.
(d) If an authorization has been granted for a specific activity or
interest, and the activity or interest is subsequently deemed to
constitute a violation of the limitations or requirements prescribed in
or pursuant to this part, the employee concerned shall be notified in
writing of the cancellation of the authorization and shall modify or
stop the activity or interest involved, as requested.
Sec. 0.735-40 Disciplinary and other remedial action.
(a) Violation of a requirement established in or pursuant to this
part shall be cause for appropriate disciplinary action, which may be in
addition to any penalty prescribed by law.
(b) When, after consideration of the explanation of the employee
provided by Sec. 0.735-20(c), the reviewing officer, in cooperation with
the responsible supervisory official, decides that remedial action is
required, he will take or cause to be taken immediate action to end the
conflict or appearance of conflict of interest. Remedial action may
include, but is not limited to:
(1) Changes in assigned duties;
(2) Divestment by the employee of his conflicting interest;
(3) Disciplinary action (including removal from the service); or
(4) Disqualification for a particular assignment.
Remedial action, whether disciplinary or otherwise, shall be effected in
accordance with applicable laws, Executive orders, and regulations.
(c) No disciplinary or remedial action may be taken under this
section against an employee of another Federal department or agency on
detail to the Department of Commerce other than through and with the
concurrence of the detailed employee's employing agency.
Sec. 0.735-41 Inquiries and exceptions.
(a) Inquiries relating to legal aspects of the limitations set forth
in or cited in or pursuant to this part should be submitted to the
appropriate deputy counselor. Inquiries relating to other aspects of
this part or regulations supplementary thereto should be referred to the
appropriate personnel office.
(b) Within the limits of administrative discretion permitted to the
Department, exceptions to the requirements of this part may be granted
from time to time in unusual cases by the head of the operating unit,
whenever the facts indicate that such an exception would promote the
efficiency of the service. Each request for such an exception should be
submitted in writing to the head of the operating unit concerned, and
shall contain a full statement of the justification for the
[[Page 19]]
request. Reports concerning such requests, if approved, shall be
forwarded to the program Secretarial Officer concerned and to the
Assistant Secretary for Administration by the head of the operating unit
concerned.
Subpart H--Disciplinary Actions Concerning Post-Employment Conflict of
Interest Violations
Authority: 18 U.S.C. 207(j); 5 CFR 737.27.
Source: 49 FR 32057, Aug. 10, 1984; 50 FR 928, Jan. 8, 1985, unless
otherwise noted.
Sec. 0.735-42 Scope.
(a) These regulations establish procedures for imposing sanctions
against a former employee for violating the post-employment restrictions
of the conflict of interest laws and regulations set forth in 18 U.S.C.
207 and 5 CFR Part 737. These procedures are established pursuant to the
requirement in 18 U.S.C. 207(j). The General Counsel is responsible for
resolving questions on the legal interpretation of 18 U.S.C. 207 or
regulations issued thereunder and for advising employees on these
provisions.
(b) For purposes of this subpart, (1) ``Former employee'' means a
former Government employee as defined in 5 CFR 737.3(a)(4) who had
served in the Department;
(2) ``Lesser included sanctions'' means sanctions of the same type
but more limited scope as the proposed sanction; thus a bar on
communication with an operating unit is a lesser included sanction of a
proposed bar on communication with the Department and a bar on
communication for one year is a lesser included sanction of a proposed
five year bar;
(3) ``Assistant Secretary'' means the Assistant Secretary for
Administration or designee;
(4) ``Director'' means the Director for Personnel and Civil Rights,
Office of the Secretary, or designee;
(5) ``Inspector General'' and ``General Counsel'' include any
persons designated by them to perform their functions under this
subpart; and
(6) ``Days'' means calendar days except that a dead-line which falls
on a weekend or holiday shall be extended to the next working day.
Sec. 0.735-43 Report of violations and investigation.
(a) If an employee has information which indicates that a former
employee has violated any provisions of 18 U.S.C. 207 or regulations
thereunder, that employee shall report such information to the Inspector
General.
(b) Upon receiving information as set forth in paragraph (a) of this
section from an employee or any other person, the Inspector General,
upon a determination that it is nonfrivolous, shall expeditiously
provide the information to the Director, Office of Government Ethics,
and to the Criminal Division, Department of Justice. The Inspector
General shall coordinate any investigation under this subpart with the
Department of Justice, unless the Department of Justice informs the
Inspector General that it does not intend to initiate criminal
prosecution.
(c) All investigations under this subpart shall be conducted in such
a way as to protect the privacy of former employees. To ensure this, to
the extent reasonable and practical, any information received as a
result of an investigation shall remain confidential except as necessary
to carry out the purposes of this subpart, including the conduct of an
investigation, hearing, or judicial proceeding arising thereunder, or as
may be required to be released by law.
(d) The Inspector General shall report the findings of the
investigation to the Director.
Sec. 0.735-44 Initiation of proceedings.
If the Director determines, after an investigation by the Inspector
General, that there is reasonable cause to believe that a former
employee has violated post-employment statutes or regulations, the
Director shall initiate administrative proceedings under this subpart by
proposing sanctions against the former employee and by providing notice
to the former employee as set forth in Sec. 0.735-45.
[[Page 20]]
Sec. 0.735-45 Notice.
(a) The Director shall notify the former employee of the proposed
disciplinary action in writing by registered or certified mail, return
receipt requested, or by any means which gives actual notice or is
reasonably calculated to give actual notice. Notice shall be considered
received if sent to the last known address of the former employee.
(b) The notice shall include:
(1) A statement of allegations and the basis thereof sufficiently
detailed to enable the former employee to prepare a defense;
(2) A statement that the former employee is entitled to a hearing if
requested within 20 days from date of notice;
(3) An explanation of the method by which the former employee may
request a hearing under this subpart including the name, address, and
telephone number of the person to contact if there are further
questions;
(4) A statement that the former employee has the right to submit
documentary evidence to the Director if a hearing is not requested and
an explanation of the method of submitting such evidence and the date by
which it must be received; and
(5) A statement of the sanctions which have been proposed.
Sec. 0.735-46 Hearing.
(a) Examiner. (1) Upon timely receipt of a request for a hearing,
the Director shall refer the matter to the Assistant Secretary who shall
appoint an examiner to conduct the hearing and render an initial
decision.
(2) The examiner shall be impartial, shall not be an individual who
has participated in any manner in the decision to initiate the
proceedings, and shall not have been employed under the immediate
supervision of the former employee or have been employed under a common
immediate supervisor. The examiner shall be admitted to practice law and
have suitable experience and training to conduct the hearing, reach a
determination and render an initial decision in an equitable manner.
(b) Time, date, and place. The hearing shall be conducted at a
reasonable time, date, and place as set by the examiner. In setting the
date, the examiner shall give due regard to the need for both parties to
adequately prepare for the hearing and the importance of expeditiously
resolving allegations that may be damaging to the former employee's
reputation.
(c) Former employee's rights. At a hearing, the former employee
shall have the right:
(1) To represent himself or herself or to be represented by counsel,
(2) To introduce and examine witnesses and to submit physical
evidence,
(3) To confront and cross-examine adverse witnesses,
(4) To present oral argument, and
(5) To receive a transcript or recording of the proceedings, on
request.
(d) Procedure and evidence. In a hearing under this subpart, the
Federal Rules of Evidence and Civil Procedure do not apply but the
examiner shall exclude irrelevant or unduly repetitious evidence and all
testimony shall be taken under oath or affirmation. The examiner may
make such orders and determinations regarding the admissibility of
evidence, conduct of examination and cross-examination, and similar
matters which the examiner deems necessary or appropriate to ensure
orderliness in the proceedings and fundamental fairness to the parties.
There shall be no discovery unless agreed to by the parties and ordered
by the examiner. The hearing shall not be open to the public unless the
former employee or the former employee's representative waives the right
to a closed hearing, in which case the examiner shall determine whether
the hearing will be open to the public.
(e) Ex-parte communications. The former employee, the former
employee's representative, and the agency representative shall not make
any ex-parte communications to the examiner concerning the merits of the
allegations against the former employee prior to the issuance of the
initial decision.
(f) Initial decision. (1) The proposed sanctions shall be sustained
in an initial decision upon a determination by the examiner that the
preponderance of the evidence indicated a violation of post-employment
statutes or regulations.
[[Page 21]]
(2) The examiner shall issue an initial decision which is based
exclusively on the transcript of testimony and exhibits together with
all papers and requests filed in connection with the proceeding and
which sets forth all findings of fact and conclusions of law relevant to
the matter at issue.
(3) The initial decision shall become final thirty days after
issuance if there has been no appeal filed under Sec. 0.735-48.
Sec. 0.735-47 Decision absent a hearing.
(a) If the former employee does not request a hearing in a timely
manner, the Director shall make an initial decision on the basis of
information compiled in the investigation, and any submissions made by
the former employee.
(b) The proposed sanction or a lesser included sanction shall be
imposed if the record indicates a violation of post-employment statutes
or regulations by a preponderance of the evidence.
(c) The initial decision shall become final thirty days after
issuance if there has been no appeal filed under Sec. 0.735-48.
Sec. 0.735-48 Administrative appeal.
(a) Within 30 days after issuance of the initial decision, either
party may appeal the initial decision or any portion thereof to the
Assistant Secretary. The opposing party shall have 20 days to respond.
(b) If an appeal is filed, the Assistant Secretary shall issue a
final decision which shall be based solely on the record, or portions
thereof cited by the parties to limit issues, and the appeal and
response. The Assistant Secretary shall also decide whether to impose
the proposed sanction or a lesser included sanction.
(c) If the final decision modifies or reverses the initial decision,
it shall state findings of fact and conclusions of law which differ from
the initial decision.
Sec. 0.735-49 Sanctions.
(a) If there has been a final determination that the former employee
has violated post-employment statutes or regulations, the Director shall
impose, subject to the authority of the Assistant Secretary under
Sec. 0.735-48(b), the sanction which was proposed in the notice to the
former employee or a lesser included sanction.
(b) Sanctions which may be imposed include:
(1) Prohibiting the former employee from making, on behalf of any
other person except the United States, any formal or informal appearance
before or, with the intent to influence, any oral or written
communication to the Department or any organizational sub-unit thereof
on any matter of business for a period not to exceed five years; and
(2) Other appropriate disciplinary action.
(c) The Director may enforce the sanctions of paragraph (b)(1) of
this section by directing any or all employees to refuse to participate
in any such appearance or to accept any such communication. As a method
of enforcement, the Director may establish a list of former employees
against whom sanctions have been imposed.
Sec. 0.735-50 Judicial review.
Any former employee found to have violated 18 U.S.C. 207, or
regulations issued thereunder, by a final administrative decision under
this subpart may seek judicial review of the administrative
determination.
Appendix A to Part 0--Statutes Governing Conduct of Federal Employees
There are numerous statutes pertaining to the ethical and other
conduct of Federal employees, far too many to attempt to list them all.
Consequently, only the more important ones of general applicability are
referred to in this appendix.
a. bribery and graft
.01 Title 18, U.S.C., section 201, prohibits anyone from bribing or
attempting to bribe a public official by corruptly giving, offering, or
promising him or any person selected by him, anything of value with
intent (a) to influence any official act by him, (b) to influence him to
commit or allow any fraud on the United States, or (c) to induce him to
do or omit to do any act in violation of his lawful duty. As used in
section 201, ``Public officials'' is broadly defined to include
officers, employees, and other persons carrying on activities for or on
behalf of the Government.
[[Page 22]]
.02 Section 201 also prohibits a public official's solicitation or
acceptance of, or agreement to take, a bribe. In addition, it forbids
offers or payments to, and solicitations or receipt by, a public
official of anything of value ``for or because of'' any official act
performed or to be performed by him.
.03 Section 201 further prohibits the offering to or the acceptance
by a witness of anything of value involving intent to influence his
testimony at a trial, Congressional hearing, or agency proceeding. A
similar provision applies to witnesses ``for or because of'' testimony
given or to be given. The provisions summarized in this section do not
preclude lawful witness fees, travel and subsistence expenses, or
reasonable compensation for expert testimony.
b. compensation to officers and employees in matters affecting the
government
.01 Title 18, U.S.C., section 203, prohibits an officer or employee
from receiving compensation for services rendered for others before a
Federal department or agency in matters in which the Government is a
party or is interested.
.02 Section 203 applies to a special Government employee as
follows:
a. If the special Government employee has served in the Department
of Commerce more than 60 days during the preceding period of 365 days,
section 203 applies to him only in relation to a particular matter
involving a specific party or parties (1) in which he has at any time
participated personally and substantially in his governmental capacity,
or (2) which is pending in the Department of Commerce; or
b. If the special Government employee has served in the Department
no more than 60 days during the preceding period of 365 days, section
203 applies to him only in relation to a particular matter involving a
specific party or parties in which he has at any time participated
personally and substantially in his governmental capacity.
.03 Section 203 does not apply to a retired officer of the
uniformed services while not on active duty and not otherwise an officer
or employee of the United States.
c. activities of officers and employees in claims against and other
matters affecting the government
.01 Title 18, U.S.C., section 205, prohibits an officer or
employee, otherwise than in the performance of his official duties,
from:
a. Acting as agent or attorney for prosecuting any claim against the
United States, or receiving any gratuity, or any share of or interest in
any such claim in consideration of assistance in the prosecution of such
claims; or
b. Acting as agent or attorney for anyone before any Government
agency, court, or officer in connection with any matter in which the
United States is a party or has a direct and substantial interest.
.02 Section 205 applies to a special Government employee as
follows:
a. If the special Government employee has served in the Department
more than 60 days during the preceding period of 365 days, section 205
applies to him only in relation to a particular matter involving a
specific party or parties (1) in which he has at any time participated
personally and substantially in his governmental capacity, or (2) which
is pending in the Department of Commerce; or
b. If the special Government employee has served in the Department
no more than 60 days during the preceding period of 365 days, section
205 applies to him only in relation to a particular matter involving a
specific party or parties in which he has at any time participated
personally and substantially in his governmental capacity.
.03 Section 205 does not preclude:
a. An employee, if not inconsistent with faithful performance of his
duties, from acting without compensation as agent or attorney for any
person who is the subject of disciplinary, loyalty, or other personnel
administration proceedings, in connection with those proceedings; or
b. An employee from giving testimony under oath or from making
statements required to be made under penalty for perjury or contempt.
.04 Sections 203 and 205 do not preclude:
a. An employee from acting as agent or attorney for his parents,
spouse, child, or any person for whom, or for any estate for which, he
is serving as guardian, executor, administrator, trustee, or other
personal fiduciary, except in those matters in which he has participated
personally and substantially as a Government employee or which are the
subject of his official responsibility, provided the head of the
operating unit concerned approves; or
b. A special Government employee from acting as agent or attorney
for another person in the performance of work under a grant by, or a
contract with, or for the benefit of, the United States, provided the
head of the operating unit concerned, with the approval of the
appropriate program Secretarial Officer, shall certify in writing that
the national interest so requires, and such certification shall be
published in the Federal Register.
.05 Section 205 does not apply to a retired officer of the
uniformed services while not on active duty and not otherwise an officer
or employee of the United States.
d. disqualification of former officers and employees in matters
connected with former duties or official responsibilities;
disqualification of partners
.01 Title 18 U.S.C., section 207:
[[Page 23]]
a. Provides that a former Government officer or employee, including
a former special Government employee, shall be permanently barred from
acting as agent or attorney for anyone other than the United States in
any matter in which the United States is a party or is interested and in
which he participated personally and substantially in a governmental
capacity;
b. Bars a former Government officer or employee, including a special
Government employee, of an agency, for a period of 1 year after his
employment with it has ceased, from appearing personally as agent or
attorney for another person before any court or agency in connection
with a matter in which the Government has an interest and which was
under his official responsibility at the employing agency (e.g.,
Department of Commerce) at any time within 1 year prior to the end of
such responsibility; and
c. Prohibits a partner of a person employed by the Government,
including a special Government employee, from acting as agent or
attorney for anyone other than the United States in matters in which the
employee participates or has participated personally and substantially
for the Government or which are the subject of his official
responsibility.
.02 Subparagraphs .01a. and .01b. of this section do not prevent a
former officer or employee or special Government employee who has
outstanding scientific or technical qualifications from acting as
attorney or agent or appearing personally before the Department of
Commerce in connection with a particular matter in a scientific or
technological field if the Assistant Secretary of Commerce for Science
and Technology shall make a certification in writing, published in the
Federal Register, that the national interest would be served by such
action or appearance by the former officer or employee.
e. acts affecting a personal financial interest
.01 Title 18, U.S.C., section 208 prohibits an officer or employee,
including a special Government employee, from participating personally
and substantially in a governmental capacity in any matter in which, to
his knowledge, he, his spouse, minor child, partner, organization in
which he is serving as officer, director, trustee, partner, or employee,
or any person or organization with whom he is negotiating or has any
arrangement concerning prospective employment, has a financial interest.
.02 Section 208 does not apply:
a. If the officer or employee first advises the head of the
operating unit concerned of the nature and circumstances of the matter
involved, makes full disclosure of the financial interest, and receives
in advance a written determination made by such official, with the
approval of the appropriate program Secretarial Officer, that the
interest is not so substantial as to be deemed likely to affect the
integrity of the services which the Government may expect from the
officer or employee; or
b. If, by general rule or regulation published in the Federal
Register, the financial interest has been exempted from the requirements
of section 208 as being too remote or too inconsequential to affect the
integrity of Government officers' or employees' services.
f. salary of government officials and employees
.01 Title 18, U.S.C., section 209, prohibits:
a. An officer or employee from receiving any salary, or any
contribution to or supplementation of salary, as compensation for his
services as an officer or employee of the United States from any source
other than the Government of the United States, except as may be
contributed out of the treasury of a State, county, or municipality; and
b. Any person or organization from paying, contributing to, or
supplementing the salary of an officer or employee under circumstances
which would make its receipt a violation of subparagraph .01a. of this
section.
.02 Section 209:
a. Does not prevent a Government employee from continuing to
participate in a bona fide pension or other welfare plan maintained by a
former employer;
b. Exempts special Government employees and employees serving the
Government without compensation, and grants a corresponding exemption to
any outside person paying compensation to such individuals; and
c. Does not prohibit the payment or acceptance of sums under the
terms of the Government Employees Training Act.
g. code of ethics for government service
``Code of Ethics for Government Service,'' House Concurrent
Resolution 175, 85th Congress, 2d Session, 72 Stat. B12 of July 11,
1958, which reads as follows:
``Any Person in Government Service Should:
``Put loyalty to the highest moral principles and to country above
loyalty to persons, party, or Government department.
``UPHOLD the Constitution, laws, and legal regulations of the United
States and all governments therein and never be a party to their
evasion.
``GIVE a full day's labor for a full day's pay; giving to the
performance of his duties his earnest effort and best thought.
``SEEK to find and employ more efficient and economical ways of
getting tasks accomplished.
[[Page 24]]
``NEVER discriminate unfairly by the dispensing of special favors or
privileges to anyone, whether for remuneration or not; and never accept
for himself or his family, favors or benefits under circumstances which
might be construed by reasonable persons as influencing the performance
of his governmental duties.
``MAKE no private promises of any kind binding upon the duties of
office, since a Government employee has no private word which can be
binding on public duty.
``ENGAGE in no business with the Government, either directly or
indirectly, which is inconsistent with the conscientious performance of
his governmental duties.
``NEVER use any information coming to him confidentially in the
performance of governmental duties as a means for making private profit.
``EXPOSE corruption wherever discovered.
``UPHOLD these principles, ever conscious that public office is a
public trust.''
h. prohibitions
.01 The prohibition against lobbying with appropriated funds (18
U.S.C. 1913) reads as follows:
``No part of the money appropriated by any enactment of Congress
shall, in the absence of express authorization by Congress, be used
directly or indirectly to pay for any personal service, advertisement,
telegram, telephone, letter, printed or written matter, or other device,
intended or designed to influence in any manner a Member of Congress, to
favor or oppose, by vote or otherwise, any legislation or appropriation
by Congress, whether before or after the introduction of any bill or
resolution proposing such legislation or appropriation, but this shall
not prevent officers or employees of the United States or of its
departments or agencies from communicating to Members of Congress on the
request of any Member or to Congress, through the proper official
channels, requests for legislation or appropriations which they deem
necessary for the efficient conduct of the public business.
``Whoever, being an officer or employee of the United States or of
any department or agency thereof, violates or attempts to violate this
section, shall be fined not more than $500 or imprisoned not more than 1
year, or both; and after notice and hearing by the superior officer
vested with the power of removing him, shall be removed from office or
employment.''
.02 The prohibitions against disloyalty and striking (5 U.S.C.
7311, 18 U.S.C. 1918). An individual may not accept or hold a position
in the Government of the United States if he:
a. Advocates the overthrow of our constitutional form of government;
b. Is a member of an organization that he knows advocates the
overthrow of our constitutional form of government;
c. Participates in a strike, or asserts the right to strike, against
the Government of the United States or the government of the District of
Columbia; or
d. Is a member of an organization of employees of the Government of
the United States or of individuals employed by the government of the
District of Columbia that he knows asserts the right to strike against
the Government of the United States or the government of the District of
Columbia.
.03 The prohibition against employment of a member of a Communist
organization (50 U.S.C. 784).
.04 The prohibitions against (a) the disclosure of classified
information (18 U.S.C. 798, 50 U.S.C. 788); and (b) the disclosure of
confidential information (18 U.S.C. 1905). Each employee who has access
to classified information, e.g., confidential, secret, or top secret, or
to a restricted area is responsible for knowing and for complying
strictly with the security regulations of the Department of Commerce.
(See Administrative Order 207-2.)
.05 The prohibition against employment in the competitive civil
service of any person who habitually uses intoxicating beverages to
excess (5 U.S.C. 7352).
.06 The prohibition against the misuse of a Government vehicle (31
U.S.C. 638a(c)). No employee may willfully use or authorize the use of a
Government-owned or Government-leased passenger motor vehicle or
aircraft for other than official purposes.
.07 The prohibition against the use of the franking privilege to
avoid payment of postage on private mail (18 U.S.C. 1719).
.08 The prohibition against the use of deceit in an examination or
personnel action in connection with Government employment (18 U.S.C.
1917).
.09 The prohibition against fraud or false statements in a
Government matter (18 U.S.C. 1001). An employee in connection with an
official matter shall not knowingly and willfully conceal or cover up a
material fact or falsify official papers or documents.
.10 The prohibition against mutilating or destroying a public
record (18 U.S.C. 2071). No employee may conceal, remove, mutilate, or
destroy Government documents or records except for the disposition of
records in accordance with law or regulation.
.11 The prohibition against counterfeiting and forging
transportation requests (18 U.S.C. 508). Falsely making, altering or
forging, in whole or in part, any form of transportation request is
prohibited.
.12 The prohibitions against:
a. Embezzlement of Government money or property (18 U.S.C. 641). No
employee may convert any Government money or Government property to his
own use or the use of another person.
[[Page 25]]
b. Failure to account for public money (18 U.S.C. 643). Any
employee, who, having received public money which he is not authorized
to retain, fails to render his accounts for same as provided by law, is
guilty of embezzlement.
c. Embezzlement of the money or property of another person in the
possession of the employee by reason of his employment (18 U.S.C. 654).
An employee is prohibited from embezzling or wrongfully converting for
his own use the money or property of another which comes under his
control as the result of his employment.
.13 The prohibition against unauthorized removal or use of
documents relating to claims from or by the Government (18 U.S.C. 285).
No employee, without authority, may remove from the place where it was
kept by authority of the United States any document, record, file, or
paper intended to be used to procure the payment of money from or by the
United States or the allowance or payment of any claim against the
United States, regardless of whether the document or paper has already
been used or the claim has already been allowed or paid; and no employee
may use or attempt to use any such document, record, file, or paper to
procure the payment of any money from or by the United States or the
allowance or payment of any claim against the United States.
.14 The prohibition against proscribed political activities,
including the following, among others:
a. Using official authority or influence for the purpose of
interfering with or influencing the result of an election, except as
authorized by law (5 U.S.C. 7324);
b. Taking an active part in political management or in political
campaigns, except as authorized by law (5 U.S.C. 7324);
c. Offering or promising to pay anything of value in consideration
of the use of, or promise to use, any influence to procure any
appointive office or place under the United States for any person (18
U.S.C. 210);
d. Soliciting or receiving, either as a political contribution or
for personal emolument, anything of value in consideration of a promise
of support or use of influence in obtaining for any person any
appointive office or place under the United States (18 U.S.C. 211);
e. Using official authority to interfere with a Federal election (18
U.S.C. 595);
f. Promising any employment compensation, or other benefit made
possible by Act of Congress in consideration of political activity or
support (18 U.S.C. 600);
g. Action by a Federal officer or employee to solicit or receive, or
to be in any manner concerned with soliciting or receiving, any
contribution for any political purpose whatever from any other Federal
officer or employee or from any person receiving compensation for
services from money derived from the Treasury of the United States (18
U.S.C. 602);
h. Soliciting or receiving (by any person) anything of value for any
political purpose whatever on any Government premises (18 U.S.C. 603);
i. Soliciting or receiving contributions for political purposes from
anyone on Federal relief or work relief (18 U.S.C. 604);
j. Payment of a contribution for political purposes by any Federal
officer or employee to another Federal officer or employee (18 U.S.C.
607); and
k. Payment of a political contribution in excess of statutory
limitations and purchase of goods, commodities, advertising, or articles
the proceeds of which inure to the benefit of certain political
candidates or organizations (18 U.S.C. 608).
.15 The prohibition against an employee acting as the agent of a
foreign principal registered under the Foreign Agents Registration Act
(18 U.S.C. 219).
Appendix B to Part 0--Position Categories, Grade GS-13, and Above,
Requiring Statements of Employment and Financial Interests by Incumbents
(1) Auditors.
(2) Attorneys other than attorneys engaged in patent examining or
trademark examining operations.
(3) Heads of divisions or comparable organization units, GS-15 or
above.
(4) Heads of field offices or installations, GS-15 or above.
(5) Employees in positions involving assigned duties and
responsibilities which require the incumbent to make fact-finding
determinations or to exercise judgment in recommending a decision or an
action in regard to:
a. Evaluation, appraisal, or selection of contractors or sub-
contractors, prospective contractors or prospective subcontractors,
proposals of such contractors or subcontractors, the activities
performed by such contractors or subcontractors, or determination of the
extent of compliance of such contractors or subcontractors with contract
provisions.
b. Negotiation, modification, or approval of contracts or
subcontracts.
c. Evaluation, appraisal, or selection of prospective project sites,
or locations of work or activities, including real property proposed for
acquisition by purchase or otherwise.
d. Inspection and quality assurance of material, products, or
components for acceptability.
e. Review or approval for access permits.
f. Technical planning or design which involves the preparation of
specifications or technical requirements.
[[Page 26]]
g. Negotiation of agreements for cooperation or implementing
arrangements with foreign countries, international organizations, or
non-Federal enterprises.
h. Analysis, evaluation, or review of license applications.
i. Analysis, evaluation, or review of licensees' compliance with
Department of Commerce regulations and requirements.
j. Utilization or disposal of excess or surplus property.
k. Procurement of materials, services, supplies, or equipment.
l. Authorization or monitoring of grants or subsidies to educational
institutions or other non-Federal enterprises.
m. Audit of financial transactions.
n. Promulgation of safety standards, procedures, and hazards
evaluation systems.
o. Other activities where the decision or action has a substantial
economic impact on the interests of a non-Federal enterprise.
Appendix C to Part 0--Position Categories Below GS-13 Requiring
Statements of Employment and Financial Interests by Incumbents
(1) Employees in the National Marine Fisheries Service, National
Oceanic and Atmospheric Administration, who are in the following
categories of positions:
(a) Special Agents (Fish and Wildlife), Series GS-1812, grades 5
through 12.
(b) Fishery Products Inspectors, Series GS-1863, grades 5 through
12.
(5 CFR 735.104, 735.403)
[50 FR 2276, Jan. 16, 1985]
PART 1--THE SEAL OF THE DEPARTMENT OF COMMERCE--Table of Contents
Sec.
1.1 Purpose.
1.2 Description and design.
1.3 Delegation of authority.
Authority: Sec. 1, 32 Stat. 825, as amended, 15 U.S.C. 1501.
Source: 33 FR 9337, June 26, 1968, unless otherwise noted.
Sec. 1.1 Purpose.
The purpose of this part is to describe the seal of the Department
of Commerce and to delegate authority to affix the seal to
certifications and documents of the Department.
Sec. 1.2 Description and design.
(a) The Act of February 14, 1903 (32 Stat. 825, as amended) (15
U.S.C. 1501), which established the Department of Commerce, provided
that ``The said Secretary shall cause a seal of office to be made for
the said department of such device as the President shall approve, and
judicial notice shall be taken of the said seal.'' On April 4, 1913, the
President approved and declared to be the seal of the Department of
Commerce the device which he described as follows:
Arms: Per fesse azure and or, a ship in full sail on waves of the
sea, in chief proper; and in base a lighthouse illumined proper.
Crest: The American Eagle displayed. Around the Arms, between two
concentric circles, are the words:
Department of Commerce
United States of America
(b) The design of the approved seal is as shown below. Where
necessitated by requirements of legibility, immediate comprehension, or
clean reproduction, the concentric circles may be eliminated from the
seal on publications and exhibits, and in slides, motion pictures, and
television. In more formal uses of the seal, such as on letterheads, the
full, proper rendition of the seal shall be used.
[GRAPHIC] [TIFF OMITTED] TC20SE91.005
(c) The official symbolism of the seal shall be the following: The
ship is a symbol of commerce; the blue denotes uprightness and
constancy; the lighthouse is a well-known symbol representing guidance
from the darkness which is translated to commercial enlightenment; and
the gold denotes purity. The crest is the American bald eagle denoting
the national scope of
[[Page 27]]
the Department's activities. (The above is a modification of the
original symbolism issued with the President's approval of the seal,
made necessary by
changes in the functions of the Department.)
Sec. 1.3 Delegation of authority.
(a) Pursuant to authority vested in the Secretary of Commerce by
law, (1) the Chief Administrative Officer of each operating unit, and
(2) the Director, Office of Administrative Services in the Office of the
Secretary, are hereby authorized to sign as Certifying Officers
certifications as to the official nature of copies of correspondence and
records from the files, publications and other documents of the
Department and to affix the seal of the Department of Commerce to such
certifications or documents for all purposes, including the purpose
authorized by 28 U.S.C. 1733(b).
(b) Delegations of authority to persons other than those named in
paragraph (a) of this section may be made by the Assistant Secretary for
Administration.
(c) This delegation shall not affect or prejudice the use of
properly authorized office or bureau seals in appropriate cases.
PART 2--PROCEDURES FOR HANDLING AND SETTLEMENT OF CLAIMS UNDER THE FEDERAL TORT CLAIMS ACT--Table of Contents
Sec.
2.1 Purpose.
2.2 Provisions of law and regulations thereunder.
2.3 Delegation of authority.
2.4 Procedure for filing claims.
2.5 Adjudication and settlement of claims.
2.6 Payment of claims.
2.7 Supplementary regulations.
Authority: 28 U.S.C. 2672.
Sec. 2.1 Purpose.
(a) The purpose of this part is to delegate authority to settle or
deny claims under the Federal Tort Claims Act (in part, 28 U.S.C. 2671-
2680) as amended by Pub. L. 89-506, 80 Stat. 306, and to establish
procedures for the administrative adjudication of such claims accruing
on or after January 18, 1967.
[32 FR 3769, Mar. 7, 1967, as amended at 48 FR 31636, July 11, 1983]
Sec. 2.2 Provisions of law and regulations thereunder.
(a) Section 2672 of Title 28, U.S. Code, as above amended, provides
that:
The head of each Federal agency or his designee, in accordance with
regulations prescribed by the Attorney General, may consider, ascertain,
adjust, determine, compromise, and settle any claim for money damages
against the United States for injury or loss of property or personal
injury or death caused by the negligent or wrongful act or omission of
any employee of the agency while acting within the scope of his office
or employment, under circumstances where the United States, if a private
person, would be liable to the claimant in accordance with the law of
the place where the act or omission occurred: Provided, that any award,
compromise, or settlement in excess of $25,000 shall be effected only
with the prior written approval of the Attorney General or his designee.
Subject to the provisions of this title relating to civil actions on
tort claims against the United States, any such award, compromise,
settlement, or determination shall be final and conclusive on all
officers of the Government, except when procured by means of fraud.
Any award, compromise, or settlement in an amount of $2,500 or less
made pursuant to this section shall be paid by the head of the Federal
agency concerned out of appropriations available to that agency. Payment
of any award, compromise, or settlement in an amount in excess of $2,500
made pursuant to this section or made by the Attorney General in any
amount pursuant to section 2677 of this title shall be paid in a manner
similar to judgments and compromises in like causes and appropriations
or funds available for the payment of such judgments and compromises are
hereby made available for the payment of awards, compromises, or
settlements under this chapter.
The acceptance by the claimant of any such award, compromise, or
settlement shall be final and conclusive on the claimant, and shall
constitute a complete release of any claim against the United States and
against the employee of the Government whose act or omission gave rise
to the claim, by reason of the same subject matter.
(b) Subsection (a) section 2675 of said Title 28 provides that:
An action shall not be instituted upon a claim against the United
States for money
[[Page 28]]
damages for injury or loss of property or personal injury or death
caused by the negligent or wrongful act or omission of any employee of
the Government while acting within the scope of his office or
employment, unless the claimant shall have first presented the claim to
the appropriate Federal agency and his claim shall have been finally
denied by the agency in writing and sent by certified or registered
mail. The failure of an agency to make final disposition of a claim
within 6 months after it is filed shall, at the option of the claimant
any time thereafter, be deemed a final denial of the claim for purposes
of this section. The provisions of this subsection shall not apply to
such claims as may be asserted under the Federal Rules of Civil
Procedure by third party complaint, crossclaim, or counterclaim.
(c) Section 2678 of said Title 28 provides that no attorney shall
charge fees in excess of 25 percent of a judgment or settlement after
litigation, or over 20 percent of administrative settlements.
(d) Section 2401(b) of said Title 28 provides that:
A tort claim against the United States shall be forever barred
unless it is presented in writing to the appropriate Federal agency
within 2 years after such claim accrues or unless action is begun within
6 months after the date of mailing, by certified or registered mail, of
notice of final denial of the claim by the agency to which it was
presented.
(e) Pursuant to section 2672 as amended, the Attorney General has
issued regulations (herein referred to as ``the Regulations''; 28 CFR
Part 14) prescribing standards and procedures for settlement of tort
claims (31 FR 16616). Persons delegated authority under this part shall
follow and be guided by such Regulations (28 CFR Part 14).
[32 FR 3769, Mar. 7, 1967, as amended at 63 FR 29945, June 2, 1998]
Sec. 2.3 Delegation of authority.
(a) The General Counsel is hereby named as the designee of the
Secretary ofCommerce with respect to tort claims filed under section
2672 of Title 28, U.S. Code, as described in Sec. 2.2, with authority to
act on such claims as provided in said section 2672, including denial
thereof.
(b) Authority delegated under this section may, with the approval of
the General Counsel, be redelegated to other designees.
(c) Settlement or denial of any claim under this part is final for
the Department of Commerce.
[48 FR 31636, July 11, 1983]
Sec. 2.4 Procedure for filing claims.
(a) The procedure for filing and the contents of claims shall be
pursuant to Secs. 14.2, 14.3, and 14.4 of the Regulations (28 CFR Part
14).
(b) Claims shall be filed with the Assistant General Counsel for
Finance and Litigation, Department of Commerce, Washington, D.C. 20230.
(c) If a claim is filed elsewhere in the Department, it shall
immediately be recorded and transmitted to the Assistant General Counsel
for Finance and Litigation.
[32 FR 3769, Mar. 7, 1967, as amended at 48 FR 31636, July 11, 1983; 63
FR 29945, June 2, 1998]
Sec. 2.5 Adjudication and settlement of claims.
(a) Upon receipt of a claim by the Assistant General Counsel for
Finance and Litigation, the time and date of receipt shall be recorded.
The Assistant General Counsel may, after recording the claim, transmit
it to the Departmental office or primary operating unit involved in the
claim and request that an investigation be conducted. The appropriate
Departmental office or primary operating unit shall designate an
official to conduct the investigation, who shall prepare a file, obtain
additional information as necessary, and prepare for the Assistant
General Counsel's signature a proposed award or denial of the claim. If
the investigation capabilities of the office or unit are insufficient
for a proper and complete investigation, the office or unit shall
consult with the Departmental Office of Investigations and Security to:
(1) Have that Office conduct the investigation or
(2) Request another Federal agency to conduct the investigation as
necessary, pursuant to Sec. 14.8 of the regulations (28 CFR Part 14),
all on a reimbursable basis.
(b) If the amount of the proposed award exceeds $25,000 (in which
case,
[[Page 29]]
approval by the Attorney General is required), or if consultation with
the Department of Justice is desired or required pursuant to Sec. 14.6
of the regulations, the Assistant General Counsel for Finance and
Litigation will prepare and compile the material required by the
Department of Justice under Sec. 14.7 of the Regulations.
(c) Denial of a claim shall be communicated as provided by Sec. 14.9
of the regulations (28 CFR Part 14).
(d) Designees hereunder are responsible for the control over and
expeditious handling of claims, bearing in mind the applicable statutory
time limitations for adjudications of claims.
[32 FR 3769, Mar. 7, 1967, as amended at 48 FR 31636, July 11, 1983; 63
FR 29945, June 2, 1998]
Sec. 2.6 Payment of claims.
When an award is made, the file on the case shall be transmitted to
the appropriate fiscal office for payment by the Department or for
transmittal for payment as prescribed by Sec. 14.10 of the Regulations
(28 CFR Part 14). Prior to payment appropriate releases shall be
obtained, as provided in said section.
[32 FR 3769, Mar. 7, 1967]
Sec. 2.7 Supplementary regulations.
(a) The Assistant General Counsel for Finance and Litigation may
from time to time issue such supplementary regulations or instructions
as he/she deems appropriate to carry out the purpose of this part.
(b) Any designee mentioned in paragraph (a) of Sec. 2.3 may issue
regulations or instructions covering his/her area of responsibility
hereunder which are consistent with this part and with those issued
under paragraph (a) of this section, such regulations and instructions
to be approved by the Assistant General Counsel for Finance and
Litigation.
[32 FR 3769, Mar. 7, 1967, as amended at 48 FR 31636, July 11, 1983.
Redesignated and amended at 63 FR 29945, June 2, 1998]
PART 3 [RESERVED]
PART 4--PUBLIC INFORMATION--Table of Contents
Sec.
4.1 Scope and purpose.
4.2 Policies.
4.3 Definitions.
4.4 Availability of materials for inspection and copying; indexes.
4.5 Requests for records.
4.6 Initial determinations of availability of records.
4.7 Predisclosure notification procedures for confidential commercial
information.
4.8 Appeals from initial determinations or untimely delays.
4.9 Fees.
Appendix A to Part 4--Department Administrative Order 205-12--Public
Information
Appendix B to Part 4--Freedom of Information Public Facilities and
Addresses for Requests for Records
Appendix C to Part 4--Officials Authorized to Make Initial Denials of
Requests for Records
Authority: 5 U.S.C. 301, 5 U.S.C. 552, 5 U.S.C. 553, Reorganization
Plan No. 5 of 1950; 31 U.S.C. 3717.
Source: 53 FR 6972, Mar. 4, 1988, unless otherwise noted.
Sec. 4.1 Scope and purpose.
(a) This part sets forth the rules of the Department of Commerce
whereby the Department and its organizational units are to make publicly
available the materials and indexes specified in 5 U.S.C. 552(a)(2) and
the records requested under 5 U.S.C. 552(a)(3).
(b) These rules conform to requirements of the Freedom of
Information Act, 5 U.S.C. 552; as amended, and supplement Department
Administrative Order 205-12, which contains policies, delegations of
authority, and other criteria implementing 5 U.S.C. 552. DAO 205-12 is
attached as Appendix A to this part.
(c) Certain units of the Department other than those identified in
Sec. 4.4(d) have, pursuant to delegated authority and for appropriate
reasons, established their own facilities for the public inspection and
copying of records. The units have provided for separate locations to
which requests for records are to be made. These facilities and
locations are identified in Appendix B to this part. The units may
publish in the Federal Register supplementary rules in addition to but
not inconsistent with this part, DAO 205-12, and the rules and
regulations contained in their respective chapters of the Code of
Federal Regulations or otherwise in
[[Page 30]]
the Federal Register. These supplementary rules shall be maintained in
the central public reference facility identified in Sec. 4.4(c), where
information about them may be obtained.
Sec. 4.2 Policies.
(a) Department Administrative Order 205-12 contains the basic
policies and other criteria to be considered in issuing and
administering these rules.
(b) Requests for records made under 5 U.S.C. 552(a)(3) apply only to
existing records. The Department is not required, in response to a
request, to create records by combining or compiling information
contained in existing records, to program or reprogram computers, or
otherwise to prepare new records. Departmental officials may, upon
request, provide or create new information in record form pursuant to
user charge statutes, such as 15 U.S.C. 1525-27, or in accord with
authority otherwise provided by law.
Sec. 4.3 Definitions.
(a) All terms used in this part which are defined in 5 U.S.C. 551
shall have the same meaning herein.
(b) As used in this part, Act means the ``Freedom of Information
Act,'' as amended, 5 U.S.C. 552.
(c) The terms Office of the Secretary and operating unit, as
explained in Department Organization Order 1-1, ``Mission and
Organization of the Department of Commerce'' (35 FR 19704, December 27,
1970), are defined as follows:
(1) The ``Office of the Secretary'' is the general management arm of
the Department and provides the principal support to the Secretary in
formulating policy and in providing advice to the President. It provides
program leadership for the Department's functions and exercises general
supervision over the operating units. It also directly carries out
program functions as may be assigned by the Secretary from time to time,
and provides, as determined to be more economical or efficient,
administrative and other support services for designated operating
units.
(2) An ``operating unit'' is an organizational entity outside the
Office of the Secretary charged with carrying out specified substantive
functions (i.e. programs) of the Department. The operating units
constitute the components of the Department through which most of its
substantive functions are carried out.
(d) The term unit as used in this part means
(1) An operating unit of the Department, and
(2) Each Secretarial officer and the persons and the Departmental
officers reporting to a Secretarial officer.
[53 FR 6972, Mar. 4, 1988; 53 FR 16211, May 5, 1988]
Sec. 4.4 Availability of materials for inspection and copying; indexes.
(a) The Assistant Secretary for Administration has established and
maintains a central public reference facility available to units of the
Department, at which place the following materials of those units
utilizing the facility shall be made available for public inspection and
copying:
(1) Final opinions and orders, including concurring and dissenting
opinions, made in the adjudication of cases;
(2) Those statements of policy and interpretations which have been
adopted by the participating organizations and are not published in the
Federal Register;
(3) Administrative staff manuals and instructions to staff that
affect a member of the public;
(4) Current indexes providing identifying information for the public
as to any matter which was issued, adopted, or promulgated after July 4,
1967, and is required by 5 U.S.C. 552(a)(2) to be made available or
published;
(5) Records of the final votes of each member in every proceeding of
an agency comprised of more than one member.
(6) Rules and decisions denying requests for records which otherwise
implement or relate to the Act; and
(7) Materials published in the Federal Register pursuant to 5 U.S.C.
552 (a)(1) and such other materials which each unit may consider
desirable and practical to make available for the convenience of the
public.
(b) The Secretary of Commerce has determined (DAO 205-12,
subparagraph 5.02a.5), that it is unnecessary and impracticable to
publish quarterly or more frequently and distribute (by sale
[[Page 31]]
or otherwise) copies of each index and supplements thereto, as provided
in 5 U.S.C. 552(a)(2). Upon request, copies of such indexes shall be
provided at a cost not to exceed the direct cost of duplication and
mailing, if required.
(c) The central facility established by the Assistant Secretary for
Administration is the Central Reference and Records Inspection Facility,
Room H6628, Department of Commerce Building, 14th Street between
Constitution and Pennsylvania Avenue NW., Washington, DC 20230. The
facility is open to the public Monday through Friday of each week,
except on official holidays of the Federal Government, between the hours
of 9 a.m. and 4:30 p.m. There are no fees or formal requirements for
inspection of materials. Equipment for making copies of these materials
is available for use by the public. Copies of various Commerce
Department materials regularly available for sale by the Department may
be purchased at the facility. Information about these materials can also
be obtained at this facility. Correspondence concerning materials
available at the facility or information about the rules implementing
the Act may be sent to the above address. The telephone number of the
facility is (202) 377-3271.
(d) The following units of the Department are participating in the
use of this central facility: All components of the Office of the
Secretary of Commerce.
(e) Other units of the Department which have established separate
public reference facilities, listed in Appendix B to this part, may
publish rules applicable to the services provided therein for public
inspection and copying of materials, provided such rules are not
inconsistent with the part.
Sec. 4.5 Requests for records.
(a) A request for a record (or information contained therein) of the
Department which is not customarily made available to the public as part
of the Department's regular informational services or which is not
available in a public reference facility described in Sec. 4.4(c) or
Appendix B to this part, shall be made in writing, with the envelope and
the letter clearly marked ``Freedom of Information Request'' to
distinguish it from other mail to the Department. Each such request, so
marked, shall be addressed to the unit of the Department identified in
Appendix B to this part which the requester knows or has reason to
believe is responsible for the records requested. If the requester is
not sure which is the responsible addressee unit, it shall address the
request to the central facility identified in Sec. 4.4(c), or obtain
advance information from that facility as to which is the responsible
addressee unit.
(b) Any request for records which is not marked and addressed as
specified in paragraph (a) of this section will be so marked and
addressed by Department personnel and forwarded immediately to the
responsible unit having possession or control of the records requested
or having primary concern with such records. A request which is
improperly addressed by the requester will not be deemed to have been
``received'' for purposes of the time period set forth in 5 U.S.C.
552(a)(6), until the earlier of the time that (1) forwarding of the
request to the responsible unit has been effected, or (2) such
forwarding would have been effected with the exercise of due diligence
by Department personnel. In each instance when a request is forwarded,
the responsible unit receiving it shall notify the requester that the
request was improperly addressed and of the date the request was
received by the unit.
(c) Requesters must reasonably describe the records sought. A
request for records shall identify the records sufficiently to enable
Department personnel familiar with the subject matter to locate them
with a reasonable amount of effort. The requester shall, to the extent
possible, furnish specific descriptive information regarding date and
place the records were made, the file descriptions, subject matter,
persons involved, and other pertinent details that will help identify
the records. If the request relates to a matter in pending litigation,
the court, location, and case shall be identified. When more than one
record is requested, the request shall clearly describe each specific
record, and the specific information requested which is contained in the
record, so that its
[[Page 32]]
availability may be separately determined. When appropriate, the
requester shall describe the intended use of the requested records.
Employees at a facility or at a specific address listed in Appendix B
will assist the public to a reasonable extent in framing a request.
[53 FR 6972, Mar. 4, 1988; 53 FR 16211, May 5, 1988]
Sec. 4.6 Initial determinations of availability of records.
(a) The responsible unit which receives a request for records shall
promptly log the receipt of the request, and within ten days of its
receipt (excluding Saturdays, Sundays, and legal public holidays) shall
initially determine:
(1) Whether the request is for records under the Act, is for
materials available otherwise than under the Act, or is for information
not contained in existing records and, therefore, not under the Act. The
requester shall be promptly notified in writing how the request is being
handled when it does not come within the Act.
(2) Whether the records requested are reasonably described and can
be located on the basis of the information supplied by the requester. If
any of the records requested cannot be identified and located from the
information furnished, the unit shall promptly so inform the requester
in writing, specifying what additional identification is needed to
assist the unit in locating the record, and offering to assist the
requester to reformulate the request.
(3) Whether the records no longer exist, or are not in the unit's
possession. The unit should, if it knows which unit of the Department or
other agency may have the records, forward the request to it. In each
instance, the unit shall promptly notify the requester in writing.
(4) Whether the requested records are the exclusive or primary
concern of another executive agency. If so, the unit shall refer the
request and the responsive records to that other agency for further
action under its rules, and promptly notify the requester in writing of
this referral. When the subject matter of a classified record originated
by another agency indicates that disclosure of the identity of the
orginating agency might itself compromise national security, that agency
shall be consulted prior to any referral of the responsive records.
(5) Whether the request is a categorical one. A categorical request,
i.e., one for all records falling within a reasonably specific but broad
category, shall be regarded as conforming to the statutory requirement
that records be reasonably described, if the particular records can be
identified, searched for, collected and produced without unduly
burdening or disrupting the unit's operations. If the categorical
request does not reasonably describe the records requested, the unit
shall promptly notify the requester in writing specifying what
additional identification is needed, and extend to the requester an
opportunity to confer with Department personnel to attempt to
reformulate the request so as to reasonably describe the records.
(6) In determining records responsive to a request a unit ordinarily
shall include only those records within a unit's possession and control
as of the date of its receipt of the request.
(7) In each of the situations set forth in paragraphs (a) and (b) of
this section, the procedures relating to fees described in Sec. 4.9
shall be applied and coordinated as appropriate.
(b) An authorized official in the responsible unit shall review the
request to determine the availability of the records requested.
(1) The determination shall be made within ten days (excluding
Saturdays, Sundays and legal public holidays) of the receipt of the
request (as defined in Sec. 4.5(b) of this part), unless the time is
extended as provided in paragraph (b)(2) of this section.
(2) In unusual circumstances, an appropriate official authorized to
make initial denials of requests may extend the time for initial
determination for up to ten days (excluding Saturdays, Sundays and legal
public holidays) by written notice to the requester setting forth the
reasons for the extension and the date on which a determination is
expected to be sent. Extensions of time for the initial determination
and extensions of time on appeal may not exceed a total of ten days, and
time taken for the former counts against
[[Page 33]]
available appeal extension time. ``Unusual circumstances'' means, but
only to the extent reasonably necessary to the processing of a
particular request:
(i) The need to search for and collect the requested records from
field facilities or other establishments that are separate from the
office processing the request;
(ii) The need to search for, collect, and examine a voluminous
amount of separate and distinct records which are the subject of a
single request, or
(iii) The need for consultation, which shall be conducted with all
practical speed, with another agency or unit having a substantial
interest in the determination of the request, or among two or more
components of the responsible unit having substantial subject-matter
interest in the pertinent documents.
(3) If no determination has been sent to the requester at the end of
the initial ten day period, or the last extension date, the requester
may consider the request to be initially denied, and exercise a right of
appeal of the denial. When no determination can be made within the
applicable time period, the responsible unit shall nevertheless exercise
due dilligence in continuing to process the request. It shall, on
expiration of the applicable time period, inform the requester of the
reason for the delay, of the date a determination is expected to be
sent, and of the requester's right to treat the delay as a denial and to
appeal. It may ask the requester to forego an appeal until a
determination is made.
(4) If it is determined that the records requested are to be made
available, and there are no further fees to be paid, the responsible
official shall promptly notify the requester as to how the disclosable
records will be made available. If there are fees still to be paid by
the requester, the requester shall be notified that upon payment the
records will immediately be made available.
(5) Appendix C lists the limited number of officials who have been
authorized to make initial denials of requests for records, except as
may be subsequently authorized. A reply initially denying, in whole or
in part, a request for records shall be in writing, signed by an
authorized official, and it shall include:
(i) A reference to the specific exemptions of the Act authorizing
the withholding of the records, stating briefly why the exemption
applies and, where relevant why a discretionary release is not
appropriate.
(ii) The name and title or position of each official responsible for
the denial.
(iii) A statement of the manner in which any reasonably segregable
portion of a record shall be provided to the requester after deletion of
the portion which is determined to be exempt.
(iv) A brief statement of the right of the requester to appeal the
determination to the General Counsel and the address to which the appeal
should be sent, in accordance with Sec. 4.8 (a) and (b).
(6) A copy of each initial denial and its incoming request for
records shall be provided to the Assistant General Counsel for
Administration.
[53 FR 6972, Mar. 4, 1988; 53 FR 16057, 16211, May 5, 1988]
Sec. 4.7 Predisclosure notification procedures for confidential commercial information.
(a) General policy. Confidential commercial or financial information
provided to the Department of Commerce by a submitter shall not be
disclosed pursuant to a Freedom of Information Act request except in
accordance with this section.
(b) Definitions. (1) The term ``confidential commercial or financial
information'' means records provided to the Department by a submitter
that arguably contain material exempt from release under Exemption 4 of
the Freedom of Information Act, 5 U.S.C. 552(b)(4), because disclosure
could reasonably be expected to cause substantial competitive harm to
the submitter.
(2) The term ``submitter'' means any person or entity who provides
confidential commercial or financial information to the Department. The
term ``submitter'' includes, but is not limited to corporations, state
governments and foreign governments.
(c) Notice to submitters. A unit of the Department of Commerce shall
provide
[[Page 34]]
a submitter with prompt written notice of a request for disclosure of
confidential commercial or financial information whenever required under
paragraph (d) of this section. Such written notice shall be sent via
certified mail, return receipt requested, or any other expeditious
manner which provides for documentation of receipt of such notice. The
notice shall either describe the exact nature of the information
requested or provide copies of the records or portions thereof
containing the confidential information.
(d) When notice is required. (1) For confidential commercial or
financial information submitted to the Department prior to January 1,
1988, the unit shall provide a submitter with notice of a request
whenever:
(i) The records are less than ten years old, and the information has
been designated by the submitter as confidential commercial or financial
information;
(ii) The Department has reason to believe that disclosure of the
information could reasonably be expected to cause substantial
competitive harm; or
(iii) The information is the subject of a prior express commitment
of confidentiality given by the Department to the submitter.
(2) For confidential commercial or financial information submitted
to the Department on or after January 1, 1988, the unit shall provide a
submitter with notice of a request whenever:
(i) The submitter has in good faith designated the information as
confidential commercial or financial information, or
(ii) The unit has reason to believe that disclosure of the
information could reasonably be expected to result in substantial
competitive harm to the submitter.
(3) When a submitter has designated commercial or financial
information as confidential, notice of a FOIA request for such
information shall be required for a period of not more than ten years
after the date of submission unless the submitter requests, and provides
acceptable justification for, a specific notice period of greater
duration. Whenever possible, the submitter's claim of confidentiality
should be supported by a statement or certification by an officer or
authorized representative of the submitter that the information at issue
is in fact confidential commercial or financial information which has
not been disclosed to the public.
(e) Opportunity to object to disclosure. Through the notice
described in paragraph (c) of this section, a unit shall afford a
submitter 7 working days from date of receipt of such notice within
which to provide the unit with a detailed statement of any objection to
disclosure. Such statement shall specify all grounds for withholding any
of the information and shall demonstrate why the information is
considered to be commercial or financial information whose disclosure is
likely to cause substantial competitive harm to the submitter.
Information provided by a submitter pursuant to this paragraph may
itself be subject to disclosure under the FOIA. Whenever notice is given
to a submitter under this section the requester shall be advised that
the submitter has been provided with notice and an opportunity to object
to disclosure.
(f) Notice of intent to disclose. A unit shall carefully consider a
submitter's objections and specific grounds for nondisclosure prior to
determining whether to disclose confidential commercial or financial
information. Whenever a unit decides to disclose information over the
objection of a submitter, the unit shall forward a written notice to the
submitter which includes:
(1) A statement of the reasons why the submitter's objections to
disclosure were not sustained;
(2) A description of the information to be disclosed; and
(3) A specified disclosure date. Notice of intent to disclose shall
be forwarded to the submitter via certified mail, return receipt
requested. Such notice shall state the unit's intent to disclose the
information on the expiration of 7 working days from the date of the
submitter's receipt of the notice. When notice of intent to disclose is
provided to the submitter, the requester shall be advised of such notice
and of the specified disclosure date.
(g) Notice of FOIA lawsuit. Whenever a requester brings a legal
action seeking to compel disclosure of information subject to the notice
requirements of
[[Page 35]]
paragraph (d) of this section, the unit shall promptly notify the
submitter.
(h) When notice is not required. The notice requirements of this
section shall not apply if:
(1) The Department determines that the information should not be
disclosed;
(2) The information has been published or has been officially made
available to the public;
(3) Disclosure of the information is required by law (other than 5
U.S.C. 552);
(4) The disclosure is required by an agency rule which: (i) was
adopted pursuant to notice and public comment; (ii) specifies narrow
classes of records submitted to the agency that are to be released under
the Freedom of Information Act; and (iii) provides in exceptional
circumstances for notice when the submitter provides written
justification, at the time the information is submitted or a reasonable
time thereafter, that disclosure of the information could reasonably be
expected to cause substantial competitive harm; or
(5) The designation made by the submitter of confidential commercial
or financial information appears obviously frivolous, except that the
Department must provide the submitter with written notice of any final
administrative disclosure determination 7 working days prior to the
specified disclosure date.
[53 FR 6972, Mar. 4, 1988; 53 FR 16057, May 5, 1988]
Sec. 4.8 Appeals from initial determinations or untimely delays.
(a) When a request for records has been initially denied in whole or
in part, or has not been timely determined, or when a requester has
received an adverse initial determination regarding any other matter
under this regulation, the requester may submit a written appeal within
thirty calendar days after the date of the written denial or, if there
has been no determination, on the last day of the applicable time limit.
The appeal shall include a copy of the original request, the initial
denial, if any, and a statement of the reasons why the records requested
should be made available and why the initial denial, if any, was in
error. No opportunity for personal appearance, oral argument or hearing
on appeal is provided.
(b) An appeal shall be addressed to the Assistant General Counsel
for Administration, Department of Commerce, Room 5882, 14th and
Constitution Avenue NW., Washington, DC 20230. Both the appeal envelope
and the letter shall be clearly marked ``Freedom of Information
Appeal.'' An appeal not addressed and marked as provided herein will be
so marked by Department personnel when it is so identified, and will be
forwarded immediately to the Assistant General Counsel for
Administration. An appeal incorrectly addressed will not be deemed to
have been ``received'' for purposes of the time period for appeal set
forth in 5 U.S.C. 552(a)(6), until the earlier of the time that
forwarding to the Assistant General Counsel for Administration has been
effected; or such forwarding would have been effected with the exercise
of due diligence by Department personnel. In each instance when an
appeal is so forwarded, the Office of the Assistant General Counsel for
Administration shall notify the requester that the appeal was improperly
addressed and of the date the appeal was received by the office. All
appeals shall be decided by the Assistant General Counsel for
Administration with the exception of appeals for records which were
initially denied by the Assistant General Counsel for Administration.
Appeals initially denied by the Assistant General Counsel for
Administration shall be decided by the General Counsel at the address
listed in this paragraph.
(c) The Assistant General Counsel for Administration shall make a
determination on an appeal within twenty days (excluding Saturdays,
Sundays and legal public holidays) of its receipt, unless an extension
of time is taken in unusual circumstances, when the time for action may
be extended up to ten days (excluding Saturdays, Sundays and legal
public holidays) minus any days of extension granted at the initial
request level. A notice of such extension shall be sent to the
requester, setting forth the reasons and the date on which a
determination of the appeal is expected to be sent. As
[[Page 36]]
used in this paragraph, ``unusual circumstances'' are defined in
Sec. 4.6(b)(2).
(d) If a decision on appeal is to make the records available to the
requester in part or whole, such records shall be promptly made
available as provided in Sec. 4.6.
(e) If no determination of an appeal has been sent to the requester
within the twenty day period or the last extension thereof, the
requester is deemed to have exhausted his administrative remedies with
respect to such request, giving rise to a right of judicial review as
specified in 5 U.S.C. 552(a)(6)(C). When no determination can be sent to
the requester within the time limit, the Assistant General Counsel for
Administration shall nonetheless exercise due diligence in continuing to
process the appeal. When the time limit expires, the requester shall be
informed of the reason for the delay, of the date when a determination
may be expected to be made, and of his right to seek judicial review.
The requester may be asked to forego judicial review until the appeal is
determined.
(f) A determination on appeal shall be in writing and, when it
denies records in whole or in part, the notice to the requester shall
include:
(1) Identification of the specific exemption or exemptions of the
Act authorizing the withholding, a brief explanation of how the
exemption applies, and, when relevant, a statement as to why a
discretionary release is not appropriate;
(2) A statement that the decision is final for the Department;
(3) Advice that judicial review of the denial is available in the
district in which the requester resides or has his principal place of
business, the district in which the agency records are located, or the
District of Columbia; and
(4) The names and titles or positions of each official responsible
for the denial of the appeal.
(g) The Assistant General Counsel for Administration shall send a
copy of each determination on appeal to the central public reference
facility referred to in Sec. 4.4(c) where it will be indexed and kept
available for public inspection and copying.
[53 FR 6972, Mar. 4, 1988; 53 FR 16058, May 5, 1988, as amended at 57 FR
28781, June 29, 1992]
Sec. 4.9 Fees.
(a) Definitions. The following definitions are applicable to this
section.
(1) The term ``direct costs'' means those expenditures which an
agency actually incurs in searching for and duplicating (and in the case
of commercial requesters, reviewing) documents to respond to a FOIA
request. Direct costs include, for example, the salary of the employee
performing work (the basic rate of pay for the employee plus 16 percent
of that rate to cover benefits) and the cost of operating duplicating
machinery. Not included in direct costs are overhead expenses such as
costs of space, and heating or lighting the facility in which the
records are stored.
(2) The term ``search'' includes all time spent looking for material
that is responsive to a request, including page-by-page or line-by-line
identification of material within documents. Such activity should be
distinguished, however, from ``review'' of material in order to
determine whether the material is exempt from disclosure (see paragraph
(a)(4) of this section). Searches may be done manually or by computer
using existing programming.
(3) The term ``duplication'' refers to the process of making a copy
of a document necessary to respond to a FOIA request. Such copies can
take the form of paper copy, microform, audio-visual materials, or
machine readable documentation (e.g., magnetic tape or disk), among
others. The copy provided must be in a form that is reasonably usable by
requesters.
(4) The term ``review'' refers to the process of examining documents
located in response to a request that is for a commercial use (see
paragraph (a)(5) of this section) to determine whether any portion of
any document located is permitted to be withheld. It also includes
processing any documents for disclosure, e.g., doing all that is
necessary to excise them and otherwise prepare them for release. Review
does not include time spent resolving general legal or policy issues
regarding the application of exemptions.
(5) The term ``commercial use request'' refers to a request from or
on behalf of one who seeks information for
[[Page 37]]
a use or purpose that furthers the commercial, trade, or profit
interests of the requester or the person on whose behalf the request is
made. In determining whether a requester properly belongs in this
category, the Department must determine the use to which a requester
will put the documents requested. Moreover, where the department has
reasonable cause to doubt the use to which a requester will put the
records sought, or where that use is not clear from the request itself,
the Department shall seek additional clarification before assigning the
request to a specific category.
(6) The term ``educational institution'' refers to a preschool, a
public or private elementary or secondary school, an institution of
graduate higher education, an institution of undergraduate higher
education, an institution of professional education and an institution
of vocational education, which operates a program or programs of
scholarly research.
(7) The term ``non-commercial scientific institution'' refers to an
institution that is not operated on a ``commercial'' basis as that term
is referenced in paragraph (a)(5) 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 products or industry.
(8) The term ``representative of the news media'' refers to any
person actively gathering news for an entity that is organized and
operated to publish or broadcast news to the public. The term ``news''
means information that is about current events or that would be of
current interest to the public. Examples of news media entities include
television or radio stations broadcasting to the public at large, and
publishers of periodicals (but only in those instances when they can
qualify as disseminators of ``news'') who make their products available
for purchase or subscription by the general public. These examples are
not intended to be all-inclusive. Moreover, as traditional methods of
news delivery evolve (e.g., electronic dissemination of newspapers
through telecommunications services), such alternative media would be
included in this category. In the case of ``freelance'' journalists,
they may be regarded as working for a news organization if they can
demonstrate a solid basis for expecting publication through that
organization, even though not actually employed by it. A publication
contract would be the clearest proof, but the Department may also look
to the past publication record of a requester in making this
determination.
(b) Application--Uniform fee schedule. The fees described in this
section apply to FOIA requests processed by all units of the Department.
They reflect rates for the full allocable direct cost of search, review,
and duplication. The fees to be charged shall be based on the requester
category.
(1) The four specific categories and chargeable fees are:
------------------------------------------------------------------------
Category Chargeable service
------------------------------------------------------------------------
(i) Commercial Use Requesters............. Search, Review, and
Duplication.
(ii) Educational and Noncommercial Duplication (excluding the
Scientific Institution Requesters. cost of the first 100
pages).
(iii) Representatives of the News Media... Duplication (excluding the
cost of the first 100
pages).
(iv) All Other Requesters................. Search and Duplication
(excluding the cost of the
first 2 hours of search and
100 pages).
------------------------------------------------------------------------
(2) Uniform fee schedule.
------------------------------------------------------------------------
Category Rate
------------------------------------------------------------------------
(i) Manual search......................... Actual salary rate of
employee involved, plus 16
percent of salary rate.
(ii) Computerized search.................. Actual direct cost,
including operator time.
(iii) Duplication of records:.............
(A) Paper copy reproduction............... $.07 per page.
(B) Computer tape or printout reproduction Actual cost, including
operator time.
(C) Other reproduction (i.e., microfilm, Actual direct cost,
microfiche, microform). including operator time.
(iv) Review of records (includes Actual salary rate of
preparation for release, i.e. excising). employee conducting review,
plus 16 percent of salary
rate.
------------------------------------------------------------------------
(3) Charging interest. Interest may be charged to those requesters
who fail to pay fees charged in a timely fashion. Assessment of such
interest will commence on the 31st day following the day on which the
billing was sent. Interest will be charged at the rate specified in
section 3717 of title 31 U.S.C. and will accrue from the date of the
billing. The Department reserves the right to utilize consumer reporting
[[Page 38]]
agencies, and collection agencies, when appropriate, to encourage
repayment as authorized by the Debt Collection Act of 1982 (Pub. L. 97-
365).
(c) Waiver or reduction of fees. (1) Documents shall be furnished
without charge, or at reduced charges if disclosure of the information
is in the public interest because it is likely to contribute
significantly to public understanding of the operations or activities of
the government, and is not primarily in the commercial interest of the
requester. To assure that the two basic requirements for waiver are met,
Commerce shall rely on the following factors in making a determination
on the fee waiver request:
(i) The subject of the request (whether the subject of the requested
records concerns the operations or activities of the government);
(ii) The informative value of the information to be disclosed
(whether the disclosure is likely to contribute to an understanding of
government operations or activities);
(iii) The contribution to an understanding of the subject by the
general public likely to result from disclosure (whether disclosure of
the requested information will contribute to public understanding);
(iv) The significance of the contribution to public understanding
(whether the disclosure is likely to contribute significantly to public
understanding of government operations or activities);
(v) The existence and magnitude of a commercial interest (whether
the requester has a commercial interest that would be furthered by the
requested disclosure);
(vi) The primary interest in disclosure (whether the magnitude of
the identified commercial interest of the requester is sufficiently
large, in comparison with the public interest in disclosure, that
disclosure is primarily in the commercial interest of the requester).
(2) Additionally, a fee shall not be charged, or alternatively it
may be reduced, in the following instances:
(i) Requests for Department records made by a Federal agency,
Federal court (excluding parties), Congressional committee or
subcommittee, the General Accounting Office, or the Library of Congress,
are not made under the Act, and fees payable under this part do not
apply.
(ii) The records are requested by a state or local government, an
intergovernmental agency, a foreign government, a public international
organization, or an agency thereof, and when it is determined by a
responsible Department official that it is an appropriate courtesy, or
the records are for purposes that are in the public interest and will
promote the objectives of the Act and of the Department.
(iii) A fee shall not be charged if the allowable charges are less
than or equal to the cost of routine collection and processing of the
fee. Therefore, if the total of charges due for processing a request is
$20 or less, no fee will be charged.
(d) Payment of fees. The following conditions shall apply to payment
of fees charged under this part.
(1) A search fee provided in paragraph (b) of this section is
chargeable even when no records responsive to the request are found, or
when the records requested are determined by the responsible Department
official to be totally exempt from disclosure. If the estimated search
or duplication charges exceed $25 the requester shall be notified of the
estimated amount of search or duplication fees, unless the requester has
previously advised the Department of a willingness to pay an amount
sufficient to cover the estimated fee. Such notice shall offer the
requester the opportunity to confer with Department personnel with the
object of reformulating the request in order to reduce the cost.
(2) A requester may be required to make an advance payment (i.e.,
payment before work is commenced or continued on a request) if the
estimated or determined allowable charges that a requester may be
required to pay will exceed $250 or the requester has previously failed
to pay a fee charged in a timely manner (i.e., within 30 days of the
date of the billing).
(i) When the estimated charges exceed $250, the Department shall
notify the requester of the likely cost and obtain satisfactory
assurance of full payment where the requester has a history
[[Page 39]]
of prompt payment of FOIA fees. If the requester has no history of
prompt payment of FOIA fees, the Department shall require an advance
payment of an amount up to the full estimated charges.
(ii) If a requester has previously failed to pay a fee charged in a
timely manner, the Department shall require the requester to pay the
full amount owed plus any applicable interest and to make an advance
payment of the full amount of the estimated fee before the Department
will process the request.
(3) Whenever the Department acts pursuant to paragraph (d)(2) of
this section, the administrative time limits prescribed in 5 U.S.C.
552(a)(6) will begin only after the agency has received payment of the
required fee.
(4) Upon the completion of processing of a request, when a specific
fee is determined to be payable and appropriate notice has been given to
the requester, the payment of such fee shall be received before the
requested records or a portion of the records are made available to the
requester.
(5) Payment of fees shall be made in cash or preferably by check or
money order payable to ``Treasury of the United States'', and they shall
be paid or sent to the unit stated in the billing notice or, if none, to
the unit handling the request. Where appropriate, the responsible
official may require that payment be made in the form of a certified
check.
(6) If an advance payment of an estimated fee exceeds the actual
total fee by $1 or more, the difference shall be refunded to the
requester.
(7) When the responsible official reasonably believes that a
requester or group of requesters acting in concert is attempting to
break a request into a series of requests for the purpose of evading the
assessment of fees, the unit may aggregate any such requests and charge
accordingly.
(e) Other charges. (1) This part does not apply to any special
statistical compilation, study, or other record requested pursuant to
statutes specifically providing for setting the level of fees for
particular types of records such as 15 U.S.C. 1525-1527. The fee for the
performance of such service is the actual cost of the work involved in
compiling the record. All monies received by the Department in payment
of the cost of this work are deposited in a separate account
administered under the direction of the Secretary, and may be used to
defray the ordinary expenses incidental to the work.
(2) The full cost of other special services will be assessed. Such
services would include:
(i) Certifying that records are true copies; and
(ii) Sending records by special methods such as express mail, etc.
[53 FR 6972, Mar. 4, 1988; 53 FR 16058, 16211, May 5, 1988]
Appendix A to Part 4--Department Administrative Order 205-12--Public
Information
Section 1. Purpose--.01 This order, and the rules and other
materials which implement it, are designed to carry out the
responsibilities of the Department of Commerce under the Freedom of
Information Act, as amended (5 U.S.C. 552), hereinafter referred to as
``the Act.''
02. This revision updates and clarifies the provisions of the order
(dated June 29, 1967) which it supersedes, in light of the amendments to
the Act which become effective February 19, 1975. Section 7,
``Compulsory Process Requesting Documents or Testimony'' contained in
the superseded order, is now found in Department Administrative Order
218-5, to be published separately in the Federal Register.
Sec. 2 Authorities--This order is issued pursuant to the Act: 5
U.S.C. 553; 5 U.S.C. 301; Reorganization Plan No. 5 of 1950; and other
authority vested by law in the Secretary applicable to the dissemination
of records and other information of the Department and charges for
services related thereto.
Sec. 3. Policies--.01 The Department of Commerce, in fulfilling its
statutory missions to foster, promote and develop the foreign and
domestic commerce of the United States and to administer the specific
programs entrusted to it, regularly develops, collects, analyzes, and
disseminates facts, statistics, consensus, charts, scientific findings,
technology, and other information, and performs other services, in order
to assist the business community and other segments of the public,
according to their needs and interest. This information which the
Department develops, collates, and disseminates is generally made
readily available, either without charge or by purchase, to the affected
persons and to anyone else who may be interested, through publications,
reprints
[[Page 40]]
of regulations (by subscription or otherwise), press releases, special
reports, correspondence and personal interviews or conferences with
staff, speeches, and other media. It is the policy of the Department to
continue its regular practices of disseminating information to the
public prepared as a part of its program responsibilities, to the
fullest extent legally permissible and economically feasible, and to
continue to handle public requests for such information (which may
include records) in the usual manner through its regular facilities and
channels, as distinguished from those requests for records subject to 5
U.S.C. 552(a)(3) which are to be made and handled in accord with the
rules established in and pursuant to subsections 5.03 and 5.04 of this
order.
In carrying out this policy, the officials designated in subsection 4.01
of this order shall: (a) Establish and continue an effective program of
communicating to the public the useful information obtained or developed
in the fulfillment of their organizational missions; (b) publicize the
availability of such informational materials in their rules or by other
practical means so that the public shall utilize the regular
informational programs of the Department, rather than resorting to the
formal procedures for requesting records established pursuant to 5
U.S.C. 552(a)(3); and (c) insure that any such information which is
given to individuals or special groups shall also be made available to
the general public in accord with subsections 5.01 and 5.02 of this
order, when and to the extent such information is subject to publication
or inspection under 5 U.S.C. 552(a)(1), (2), or (5).
.02 Officials responsible for determining, in accord with the Act
and this order:
(a) What materials are to be published in the Federal Register; (b)
What and how materials are to be made available for public inspection
and copying, including indexing; and (c) What and how records which are
requested are to be made available; shall, where discretion exists in
making such determinations, take an affirmative and constructive view of
the requirements of the Act. Accordingly, in making rules and specific
determinations, they shall among other factors: (1) Provide such
information to the affected public as well as enable it to deal
effectively and knowledgeably with their organizations; (2) keep within
the limits of demonstrable need the use of the legal authorities which
permit the withholding of information and records; (3) apply principles
of equal treatment to requests for records; (4) consider disclosure to
be the rule rather than the exception; (5) consider the public
convenience as well as the efficient conduct of their organizations'
business; (6) act in a timely manner; and (7) be guided by materials
prepared by the Department of Justice and the Office of General Counsel
of the Department, and by applicable court decisions.
Sec. 4. Delegation of authority--.01 The Secretary of Commerce is
responsible for the effective administration of the Act and other laws
applicable to the dissemination of records and other information of the
Department. Aside from the Secretary's retaining authority for his
immediate office, or as he otherwise may act, authority is hereby
delegated to the following officials of the Department to decide
initially whether or not to make publicly available records and other
information subject to the Act which are in the possession of their
organizations, in accord with the provisions of the Act, this order and
rules supplementing it, other applicable law, and as may be otherwise
provided by the Secretary:
a. Secretarial Officers, for their respective offices and for the
Department staff units reporting to them (as defined in Department
Organization Order 1-1, ``Mission and Organization of the Department of
Commerce'' (35 FR 19704, December 27, 1970)), as amended.
b. Heads of operating units of the Department (as defined in
Department Organization Order 1-1).
.02 Although the officials having authority under subsection 4.01
of this section may permit employees within their organizations to make
records and information publicly available under the Act, they shall
redelegate authority initially to deny such records and information only
to a limited number of officers or employees under them without power of
further redelegation.
.03 The authority to make final decisions on appeal of initially
denied requests for records is hereby delegated to the General Counsel
of the Department without power of further redelegation.
.04 The General Counsel of the Department, and his designees, shall
provide legal services to enable the officials designated in subsections
4.01 and 4.02 of this section to discharge their respective duties and
responsibilities under and pursuant to this order, and shall make legal
interpretations of questions arising thereunder. The General Counsel
shall also act as the focal point within the Department for consultation
or other communication with the Department of Justice with respect to
any actions to be taken in connection with the Act, this order, and
rules implementing it.
.05 Program officials shall provide all support and assistance
necessary to enable the General Counsel to perform the functions
delegated in this order. This shall include (i) keeping the Office of
the General Counsel informed of Freedom of Information Act requests
received by the unit; (ii) providing prompt responses to Office of the
General Counsel instructions, or requests for assistance; (iii) as
requested, allowing the Office of the General Counsel access to relevant
[[Page 41]]
records; and (iv) promptly consulting with the Office of the General
Counsel regarding any legal issues which arise during the processing of
a request.
b. The Office of the Inspector General shall comply with the
provisions of this order except that the Office of the Inspector General
need not allow the Office of the General Counsel access to records to
the extent that (i) information contained therein might reveal the
identity of a confidential source, or (ii) the Inspector General
determines that disclosure to Office of the General Counsel would
interfere with an audit, investigation, or prosecution.
Sec. 5. Functions and responsibilities--.01 Publication in the
Federal Register (5 U.S.C. 552(a)(1) of the Act).
a. The following information of the Department and its component
organizations shall be separately stated and currently published in the
Federal Register for the guidance of the public.
1. Descriptions of the central and field organizations and the
established places at which, the employees (and in the case of a
uniformed service, the members) from whom, and the methods whereby, the
public may secure information, make submittals or request, or obtain
decisions;
2. Statements of the general course and method by which functions
are channeled and determined, including the nature and requirements of
all formal and informal procedures available;
3. 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;
4. Substantive rules of general applicability adopted as authorized
by law, and statements of general policy or interpretations of general
applicability formulated and adopted by their agencies; and
5. Each amendment, revision, or repeal of the foregoing.
b. The information contained in paragraph 5.01a of this subsection
shall be published in the Federal Register in the form of or included
in:
1. Department Organization Orders, including any supplements and
appendices thereto. The Assistant Secretary for Administration shall
cause such materials to be published in the Federal Register. The
Department Organization Orders and their supplements and appendices
contain, among other information, the descriptions of the various
organizations, the descriptions of the various organizations of the
Department, and in many instances the other information indicated in
subparagraphs 5.01a.1 and 2. of this subsection.
2. Department Administrative Orders, including any supplements or
appendices thereto.
3. Other Office of the Secretary or operating unit directives.
4. Rules and orders contained in the various Titles of the Code of
Federal Regulations assigned to the Office of the Secretary and to the
operating units of the Department.
5. General notices.
6. Other forms of publications when incorporated by reference in the
Federal Register with the approval of the Director of the Federal
Register.
c. Officials responsible for determning what materials are to be
submitted for publication in the Federal Register pursuant to 5 U.S.C.
552(a)(1) shall consider, among other factors, in making such
determinations:
1. That those matters which fall within one or more of the
exemptions contained in 5 U.S.C. 552(b) need not be published. However,
it may be decided, in accord with subsection 3.02 of this order, that
publication even of such matters should in some instances and respects
be made.
2. That matters which are reasonably available to the class of
persons affected thereby and which have been or are to be incorporated
by reference in the Federal Register with the approval of the Director
of the Federal Register are deemed to be published in the Federal
Register. In such cases, the standards and procedures for incorporation
by reference established by the Director of the Federal Register (See 1
CFR Part 51; 37 FR 23614, November 4, 1972) shall be followed.
3. That matters to which members of the public do not have to resort
or by which they are not to be adversely affected, or which do not
impose burdens, obligations, conditions, or limitations upon persons
affected, need not be published in the Federal Register under 5 U.S.C.
552(a)(1). However, the policy considerations expressed in subsection
3.02 of this order may in certain instances suggest the publication of
such matters.
4. That no person shall in any manner be required to resort to or be
adversely affected by any matter required to be published in the Federal
Register under 5 U.S.C. 552(a)(1) when it is not so published. However,
actual and timely notice given to such a person having such actual
notice is equally bound as one having constructive notice by Federal
Register publication. Nevertheless, such actual notice should as a
matter of policy be in addition to, rather than instead of, publication.
5. That ``currently publish'' as provided in 5 U.S.C. 552(a)(1)
means promptly at the time that the action occurs.
.02 Availability of materials for inspection and copying; indexing
(5 U.S.C. 552(a)(2) and (5) of the Act).
a. The head of each operating unit of the Department shall for his
unit, and the Assistant Secretary for Administration shall
[[Page 42]]
for the officials, officers and units referred to in paragraph 4.01a. of
this order, in accordance with rules which they shall cause to be
published in the Federal Register, make available for public inspection
and copying the following materials, unless such materials are promptly
published and copies offered for sale:
1. Final opinion (including concurring and dissenting opinions), as
well as orders, made in the adjudication of cases.
2.. Those statements of policy and interpretations which have been
adopted by the agency and are not published in the Federal Register.
3. Administrative staff manuals and instructions to staff that
affect a member of the public.
4. Where applicable, a record of the final votes of each member of
an agency in every proceeding when the agency has more than one number.
(The terms ``agency proceeding'' and ``agency'' are defined in 5 U.S.C.
551, as amended by 5 U.S.C. 552(e).
5. An index, currently maintained, which provides identifying
information for the public as to any matter (a) which has been issued,
adopted, or promulgated since July 4, 1967, and (b) which is required to
be made available or published pursuant to 5 U.S.C. 552(a)(2). It is
hereby determined, subject to subsequent redetermination by the
Assistant Secretary for Administration pursuant to changed
circumstances, that it is unnecessary and impracticable to publish
quarterly or more frequently and distribute (by sale or otherwise)
copies of each such index and supplements thereto. Copies of such
indexes shall be provided upon request at a cost not to exceed the
direct cost of duplication.
b. The rules published in the Federal Register under paragraph 5.02a
of this subsection shall include provisions for the time, place, copying
fees, and any procedures applicable to making such materials available
at facilities or otherwise for public inspection and copying.
c. The Assistant Secretary for Administration shall establish and
maintain a centralized public reference facility for the inspection and
copying of materials subject to 5 U.S.C. 552(a)(2) and (5). The head of
an operating unit may, with the approval of the Assistant Secretary for
Administration, establish for this organization a separate place for
making the materials subject to 5 U.S.C. 552(a)(2) and (5) available to
the public for inspection and copying, and publish appropriate rules
applicable thereto approved by the Assistant Secretary for
Administration.
d. The officials responsible for determining the materials to be
available for public inspection and copying under paragraph 5.02a of
this subsection shall consider, among other factors, in promulgating the
published rules or in making such determinations:
1. That those matters which fall within one or more of the
exemptions contained in 5 U.S.C 552(b) are not required to be made
available. Nonetheless, they may be made available in any particular
respect if it is determined that this would better serve the public
interest.
2. That they may, to the extent required to prevent a clearly
unwarranted invasion of personal privacy, delete identifying details
from an opinion, statement of policy, interpretation, staff manual or
instruction, or other materials, when it is made available or published.
However, in each case the justification for the deletion shall be
explained fully in writing. Such action is to be taken in order to
provide the public with those information materials called for under 5
U.S.C. 552(a)(2), while at the same time protecting the medical, family
or other personal privacy rights of the individuals involved in such
agency materials. Agency explanations for deletions of identifying
details should provide such information as can be furnished without
defeating the purpose of the deletion provision. When an agency has a
number of recurring deletion situations, it may in its implementing
rules or other public notice specify the applicable reasons for such
deletions, and cite the rule in the preamble to each of the covered
documents, rather than contain the complete explanation in each
document.
3. That distinction should be made between those materials (a) which
do and which do not affect any member of the public, and (b) which are
and which are not to be relied upon, used or cited as precedent by the
agency against any private person or party. Those materials specified in
5 U.S.C. 552(a)(2) which affect the public and which have precedential
effect shall be made available for inspection and copying, and also
included in the index, as provided in this order, However, since the
basic purpose of this section of the Act is to disclose to the
interested members of the public essential information which will enable
them to deal effectively and knowingly with an agency, materials which
provide such information should be included in the appropriate
facilities.
4. That an advisory interpretation made by an agency on a specific
set of facts which is requested by and addressed to a particular person
need not be made generally available under paragraph 5.02a. of this
subsection if it is not to be cited or relied upon by any official of
the agency as a precedent in the disposition of other cases.
Nonetheless, if it may serve any useful public purpose, any such
interpretation may be made publicly available upon the deletion of
identifying details to the extent necessary to protect personal privacy.
5. That the agency is not precluded using as precedent against any
affected person those matters specified in subparagraphs 1.3.
[[Page 43]]
of paragraph 5.02a of this subsection as to which a person has actual
and timely notice of the terms thereof, even though they have not been
indexed and either made available or published. If the agency practice
is to furnish such notices, it is more desirable that it do so in
addition to, rather than instead of, indexing and making them publicly
available hereunder, in recognition of the purpose of 5 U.S.C. 552(a)(2)
to make the end product materials of the administrative process
available to the public.
6. That matters which are published in the Federal Register in
accordance with 5 U.S.C. 552(a)(1) are not required to be made available
under 5 U.S.C. 552(a)(2) for public inspection and copying nor need they
be indexed (the Federal Register has its own index). However, to the
extent that it would be useful and practicable to index and provide such
published information to the public for ready reference, it should be
included.
7. That an index provides sufficient identifying information for the
public if a person who exercises diligence may familiarize himself with
the materials through use of the index.
8. That an alternative to making materials available to the public
for inspection and copying is to promptly publish and offer them for
sale to the public. Such published materials, however, are subject to
the indexing requirement. If it would help the public and it is
practical to do so, a copy of such published materials should also be
made available in any facilities established for public inspection, and
if permissible, copies of the publications should be made available for
sale therein.
9. That materials required to be made available or published under 5
U.S.C. 552(a)(2), but which were adopted or issued by an agency prior to
July 4, 1967, may at any time be used, relied upon or cited as precedent
by the agency irrespective of whether they are listed in the agency's
index. Officials, however, may, to the extent they deem it practicable
and helpful to the public, also index such materials in whole or in
part.
03. Availability of records upon request (5 U.S.C. 552(a) (3), (4),
and (6) of the Act).
a. The Assistant Secretary for Administration shall cause to be
published in the Federal Register rules stating the time, place, fees
and procedures to be followed, with respect to making records of the
Department promptly available to any person requesting them, as provided
in 5 U.S.C. 552(a) (3), (4) and (6).
b. The rules published in the Federal Register pursuant to paragraph
5.03a. of this subsection shall, insofar as is practicable, be complete,
precise, and workable, suitable for the information of agency personnel
and the public alike, and shall include provisions, among other matters,
for the following:
1. Information as to the place to make requests, when requests will
be deemed received by the Department for purposes of the time limits
contained in 5 U.S.C. 552(a)(6), the timely handling of requests, and
the making of initial determinations concerning the availability of the
records requested.
2. Timely notice to the requester, as applicable, that a requested
record does not exist, has been disposed of as provided by law, or is
not in the possession or control of the Department.
3. A procedure whereby the time limits for responding to requests
for records or appeals from denials may be extended, as authorized by 5
U.S.C. 552(a)(6)(B), and wherein a failure of the agency to respond in a
timely manner may be considered a denial of the request.
4. Consultation with other operating units or offices within the
Department, or with other Federal executive agencies, when there is a
mutual agency interest or concern in the record or its contents and
there is a question as to its availability. The determination as to
availability should be made by the predominantly interested agency, if
there is one. When a record requested from the Department is the
exclusive concern of another executive agency, the request shall be
promptly referred to that other agency, and the requester so notified.
5. A procedure for administrative appeal of a request for a record
initially denied in whole or in part. The appeal procedure shall include
provisions which insure that: (i) The requester may file an appeal, in
writing, within thirty days of receipt of an initial denial; (ii) an
appeal shall be considered received when properly addressed to the
General Counsel: (iii) appeals shall be decided without right of the
requester for a personal appearance, oral argument, or hearing; (iv)
timely decisions on appeals or other notices concerning them shall be
made in writing, and communicated to the requester; (v) if the decision
is wholly or partly in favor of the requester, the General Counsel shall
make the particular records of information available to the requester or
order that such be done; and to the extent that the decision is adverse
to the requester, it shall briefly state the reason for the decision and
the identity of the official responsible for making it, (vi) whenever
applicable, requesters shall be effectively notified of their right to
seek judicial review.
6. A schedule of fees as authorized by the Act, with procedures
which (i) put requesters of records on timely notice as to substantial
search and copying fees estimated to be incurred with respect to a
request; (ii) attempt to insure that requester pay the chargeable fees
for work to be done; (iii) which provide for appropriate waiver or
reduction of fees; and (iv) which do not intend to discourage requests
for records under the Act. Work, services, publications, or documents
which
[[Page 44]]
the agency as part of its regular mission has been performing or
producing or will be performed or produced for members of the public or
for those who are engaged in the transaction of official business of or
with the Government, without charge, by user charge, or by publication
or subscription charge, are to be distinguished from those records
properly requested under 5 U.S.C. 552(a)(3) and the fees charged
thereunder.
c. The officials designated in subsections 4.01 and 4.02 of this
order who are responsible for initially determining whether any records
properly requested under the Act may be made available, shall include in
their consideration:
1. Whether the records are of the type referred to in subsection
3.01 of this order, and the request is to be handled in accord with the
policy set forth therein;
2. Whether the records are subject to 5 U.S.C. 552(a) (1), (2), or
(5) and have been otherwise made publicly available pursuant to
paragraphs 5.01a or 5.02a of this section;
3. Whether the requester has complied with the published rules
covering the making of requests and the payment of fees;
4. Whether the records or information contained in them are matters
which fall within one or more of the exemptions contained in 5 U.S.C.
552(b), and if so whether they are not to be disclosed or whether, if
such discretion exists, it would nevertheless be in the public interest
to make the record or information available in whole or in part;
5. Whether any reasonably segregable portion of the record can be
disclosed after deletion of the portions which it is determined should
not be disclosed.
d. The officials who establish a facility as provided in paragraph
5.02 of this section may utilize the facility to:
1. Receive and assist in processing requests for records;
2. Receive from officials the requested records which are made
available, maintain custody of them and supervise their inspection and
copying by requesters;
3. Arrange for making certified and other copies of available
records;
4. Collect and account for fees established for services connected
with the requests;
5. Return records after inspection to their place of custody;
6. Act as a central communication center between the requesters and
the organizations involved in recordkeeping and officials making
determinations as to their availability; and
7. Provide reasonable assistance to persons requesting records,
including explanations of the applicable procedure and other rules, and
making referrals to sources of information available under regular
informational programs of the Department.
e. The Assistant Secretary for Administration shall establish such
standard forms, procedures and instructions as he deems necessary for
processing requests for records, maintaining records of related
expenditures, and obtaining information for the Departmental report
required by 5 U.S.C. 552(d).
04. Special review requirements.--a. The General Counsel or one of
his designees shall be consulted before any initial denial is issued.
b. As provided in paragraph 7.03c. of DAO 205-12, the Operating Unit
Public Affairs Office shall receive a copy of each request at the same
time as the Action Office. If the Public Affairs Officer wishes to
monitor and/or comment on any response to a particular request prior to
transmittal, the Officer shall notify the Action Office within three (3)
working days after receiving a copy of the request. The Action Office
shall cooperate with the Public Affairs Officer in this effort; and give
due consideration to any recommendations or comments from the Officer.
In addition, the Director of the Office of Public Affairs or his or her
designee shall be informed before any decision on an appeal from an
initial denial is issued.
c. As provided in Part B, Chaper IV, subsection 5.06f. of the
Department's Handbook of Security Regulations and Procedures, appeals of
initial denials based, even in part, on the ground that the matter is
exempted from disclosure under 5 U.S.C. 552(b)(1) (classified
information) shall be referred to the Departmental Information Security
Program Committee. That Committee shall conduct a declassification
review and determine if the record(s) involved may be made available to
the public.
d. Whenever, on appeal from an initially denied request, the General
Counsel and the concerned Secretarial Officer or operating unit head
cannot agree on whether applicable exemptions should be waived, as
provided in subsection 03c.4. of this section, the matter shall be
promptly referred to the Secretary for resolution.
.05 Annual Report (5 U.S.C. 552(d) of the Act).
a. The Assistant Secretary for Administration shall prepare and
transmit to the Congress on or before March 1 of each year the annual
report by the Act.
b. To assist in the preparation of the report, each official
specified in subsection 4.01 of this order, shall, no later than January
31 of each year, provide the Assistant Secretary for Administration with
the information specified in the Act and such other information as he
may require.
Sec. 6. Supplementary rules--.01 The Secretary may from time to time
issue such supplementary rules or instructions as he deems appropriate
to carry out the purposes of this order.
.02 Each duly authorized official may issue rules covering his
respective area of responsibility designed to implement this order, and
which are consistent herewith and
[[Page 45]]
with any rules issued by the Assistant Secretary for Administration.
Sec. 7. Effect on other orders. This order supersedes Department
Administrative Order 205-12 of June 29, 1967, as amended. Any other
prior orders, rules, or instructions, or parts thereof, the provisions
of which are inconsistent or in conflict with the provisions of this
order, are hereby constructively amended or superseded.
Appendix B to Part 4--Freedom of Information Public Facilities and
Addresses for Requests for Records
The following public reference facilities have been established
within the Department of Commerce for: (a) Public inspection and copying
of materials from various units within the Department under 5 U.S.C.
552(a)(2), or determined to be available for response to requests made
under 5 U.S.C.(a)(3); (b) furnishing information and otherwise assisting
the public concerning Departmental operations under the Freedom of
Information Act; and (c) receipt and processing requests for records
under 5 U.S.C. 552(a)(3).
Commerce units that have separate mailing addresses are noted below.
Requests should be addressed to the unit which the requester knows or
has reason to believe has possession, control, or has primary concern
with the records sought. Otherwise, requests should be addressed to the
Central Reference and Records Inspection Facility.
Department of Commerce Freedom of Information Central Reference and
Records Inspection Facility, U.S. Department of Commerce, room 6020,
Herbert C. Hoover Building, 14th Street between Constitution Avenue and
Pennsylvania, NW., Washington, DC 20230. Phone (202) 377-4115. This
facility serves the Office of the Secretary and all other units of the
Department not identified below as explained at 15 CFR 4.4(c) and (d).
Bureau of the Census, Chief, Program and Policy Development Office, U.S.
Department of Commerce, room 2430, Federal Building 3, Washington, DC
20233. Phone (301) 763-2758.
The Bureau of the Census maintains a separate facility for
inspection of (a)(2) records. The location is room 2455, Federal
Building 3, Suitland, Maryland 20233.
Bureau of Economic Analysis, Public Reference Facility, U.S.
Department of Commerce, room 1115, Tower Building, 1401 K Street, NW.,
Washington, DC.
Mailing address: Freedom of Information Control Desk, Office of
Administration, Office of Economic and Statistical Affairs, U.S.
Department of Commerce, room 4838, Herbert C. Hoover Building, 14th
Street and Constitution Avenue, NW., Washington, DC 20230. Phone 377-
3308.
Economic Development Administration, Freedom of Information Records
Inspection Facility, U.S. Department of Commerce, room 7001, Herbert C.
Hoover Building, 14th Street and Constitution Avenue, NW., Washington,
DC 20230. Phone (202) 377-4687. Mailing address of Regional EDA offices:
--Philadelphia Regional Office, EDA, U.S. Department of Commerce,
Freedom of Information Request Control Desk, Liberty Square Building;
First floor, 105 South 7th Street, Philadelphia, Pennsylvania 19106.
--Atlanta Regional Office, EDA, U.S. Department of Commerce, Freedom of
Information Request Control Desk, suite 1820, 401 West Peachtree Street,
NW., Atlanta, Georgia 30308-3510.
--Denver Regional Office, EDA, U.S. Department of Commerce, Freedom of
Information Request Control Desk, room 670, 1244 Speer Boulevard,
Denver, Colorado 80204.
--Chicago Regional Office, EDA, U.S. Department of Commerce, Freedom of
Information Request Control Desk, 175 West Jackson Boulevard, suite A-
1630, Chicago, Illinois 60604.
--Seattle Regional Office, EDA, U.S. Department of Commerce, Freedom of
Information Request Control Desk, Jackson Federal Building, room 1856,
915 Second Avenue, Seattle, Washington 98174.
--Austin Regional Office, EDA, U.S. Department of Commerce, Freedom of
Information Request Control Desk, Grant Building, suite 201, 611 East
6th Street, Austin, Texas 78701.
Bureau of Export Administration, Freedom of Information Records
Inspection Facility, U.S. Department of Commerce, room 4525, Herbert C.
Hoover Building, 14th Street and Constitution Avenue, NW., Washington,
DC 20230. Phone (202) 377-5653.
International Trade Administration, Freedom of Information Records
Inspection Facility, U.S. Department of Commerce, room 4102, Herbert C.
Hoover Building, 14th Street and Constitution Avenue, NW., Washington,
DC 20230. Phone (202) 377-3031.
Minority Business Development Agency, Freedom of Information Office,
U.S. Department of Commerce, room 5073, Herbert C. Hoover Building, 14th
Street and Constitution Avenue, NW., Washington, DC 20230. Phone (202)
377-2881.
The Minority Business Development Agency maintains a separate
facility for public inspection of (a)(2) records. The location is room
5078B, Herbert C. Hoover Building, Washington, DC 20230.
National Institute of Standards and Technology, Freedom of
Information Records Inspection Facility, room E106, Administration
Building, Gaithersburg, Maryland 20234. Phone (301) 975-2389.
[[Page 46]]
Mailing address: National Institute of Standards and Technology,
Freedom of Information Request Control Desk, U.S. Department of
Commerce, room A-1105, Gaithersburg, Maryland 20234.
National Oceanic and Atmospheric Administration, Public Reference
Facility, room 714 WSC-5, 6010 Executive Boulevard, Rockville, Maryland
20852. Phone (301) 443-8967.
National Technical Information Service, Freedom of Information
Records Inspection Facility, room 209, Forbes Building, 5285 Port Royal
Road, Springfield, Virginia 22161. Phone (703) 487-4670.
National Telecommunications and Information Administration, Freedom
of Information Request Control Desk, U.S. Department of Commerce, room
4717, Herbert C. Hoover Building, 14th Street and Constitution Avenue,
NW., Washington, DC 20504. Phone (202) 377-1816.
Patent and Trademark Office, Freedom of Information Records
Inspection Facility, Public Search Room, room 1A01, Crystal Plaza 3,
Arlington, Virginia 20231. Mailing address: Patent and Trademark Office,
Freedom of Information Request Control Desk, Box 8, Washington, DC
20231. Phone (703) 557-4035.
United States Travel and Tourism Administration, Freedom of
Information Request Control Desk, U.S. Department of Commerce, room
1524, Herbert C. Hoover Building, 14th Street and Constitution Avenue,
NW., Washington, DC 20230. Phone (202) 377-3812.
[56 FR 20533, May 6, 1991]
Appendix C to Part 4--Officials Authorized To Make Initial Denials of
Requests for Records
The following officials of the Department have been delegated
authority to initially deny requests for records of their respective
units for which they are responsible. (The listings are subject to
change because of organizational changes or new delegations.)
Accordingly, the Director for Federal Assistance and Management
Support is specifically authorized to amend or revise this appendix from
time to time in order to reflect changes.
Office of the Secretary
Executive Secretariat, Director.
Office of the Deputy Secretary: Associate Deputy Secretary.
Office of Business Liaison: Director.
Office of Consumer Affairs: Director.
Office of Space Commerce: Director.
Office of the Assistant Secretary for Legislative and
Intergovernmental Affairs: Deputy Assistant Secretary for Legislative
and Intergovernmental Affairs.
Office of the Inspector General: Counsel to the Inspector General.
Deputy Counsel to the Inspector General.
Office of the General Counsel: Deputy General Counsel. Assistant
General Counsel for Administration. Director of Intelligence Liaison.
Assistant Secretary for Administration
Office of the Administrative Law Judge: Office Manager.
Office of Civil Rights: Director.
Office of Financial Management: Director.
Office of Federal Assistance and Management Support: Director.
Office of Federal Assistance: Director.
Office of Budget Operations: Director.
Office of Management Support: Director.
Departmental Freedom of Information Officer
Office of Budget, Planning and Organization: Director.
Office of Management and Organization: Director.
Office of Budget: Director.
Office of Program Planning and Evaluation: Director.
Office of Personnel: Director.
Office of Personnel Operations: Director.
Office of Information Resources Management: Director.
Office of Procurement and Administrative Services: Director.
Office of Administrative Services Management: Director.
Office of Federal Property Programs: Director.
Office of Publications: Director.
Office of Security: Director.
Office of Procurement: Director.
Office of Major Systems Procurement: Director.
Office of Procurement Operations: Director.
Office of Procurement Management: Director.
Office of Small and Disadvantaged Business Utilization: Director.
Economic and Statistical Affairs
Office of Administration: Director.
Bureau of Economic Analysis: Director.
Bureau of the Census: Chief, Program and Policy Development Office.
Technology Administration
Under Secretary for Technology: Deputy Under Secretary for
Technology. Assistant Secretary for Technology Policy. Chief Counsel.
Deputy Chief Counsel.
National Institute of Standards and Technology: Director of
Administration. Deputy Director of Administration.
National Technical Information Service: Director. Associate Director
for Administration.
[[Page 47]]
Economic Development Administration
Chief Counsel.
Deputy Chief Counsel.
Export Administration
Under Secretary.
Deputy Under Secretary.
Director for Administration
Assistant Secretary for Export Administration.
Director, Office of Technology and Policy Analysis.
Director, Office of Foreign Availability.
Director, Office of Export Licensing.
Deputy Assistant Secretary for Industrial Resource Administration.
Assistant Secretary for Export Enforcement.
Director, Office of Export Enforcement.
Director, Office of Antiboycott Compliance.
Director, Office of Enforcement Support.
International Trade Administration
Deputy Under Secretary for International Trade
Deputy Assistant Secretary for Planning
Director, Office of Public Affairs
Director, Office of Legislative and Intergovernmental Affairs
International Economic Policy
Director, Office of Policy Coordination
Director, Office of Multilateral Affairs
Director, Office of Africa
Director, Office of the Near East
Director, Office of South Asia
Director, Office of Western Europe
Director, Office of European Community Affairs
Director, Office of Eastern Europe, Russia and Independent States
Director, Office of Latin America
Director, Office of Mexico
Director, Office of Canada
Director, Office of the PRC and Hong Kong
Director, Office of the Pacific Basin
Director, Office of Japan Trade Policy
Director, Office of Japan Commercial Programs
Import Administration
Director, Foreign Trade Zones Staff
Director, Office of Policy
Director, Statutory Import Programs Staff
Director, Office of Antidumping Compliance
Director, Office of Countervailing Compliance
Director, Office of Countervailing Agreements Compliance
Director, Office of Antidumping Investigations
Director, Office of Countervailing Investigations
Director, Office of Accounting
Trade Development
Director, Office of Trade and Economic Analysis
Director, Office of Export Promotion Coordination
Director, Office of Planning, Coordination and Resource Management
Director, Office of Aerospace
Director, Office of Computers and Business Equipment
Director, Office of Microelectronics, Medical Equipment and
Instrumentation
Director, Office of Telecommunications
Director, Office of Automotive Affairs
Director, Office of Materials, Machinery and Chemicals
Director, Office of Energy, Environment and Infrastructure
Director, Office of Textiles and Apparel
Director, Office of Consumer Goods
Director, Office of Export Trading Company Affairs
Director, Office of Finance
Director, Office of Service Industries
U.S. and Foreign Commercial Service
Director, Office of Information Systems
Deputy Assistant Secretary for International Operations
Deputy Assistant Secretary for Domestic Operations
Director, Planning and Resource Management Staff
Manager, Export Promotion Services
Administration
Director, Office of Organization and Management Support
Director, Office of Personnel
Director, Office of Financial Management
Director, Office of Information Resources Management
Minority Business Development Agency
Freedom of Information Officer.
National Oceanic and Atmospheric Administration
Under Secretary.
Assistant Secretary.
Director, Office of Public Affairs.
Director, NOAA Corps.
General Counsel.
Assistant Administrator for Ocean Services and Coastal Zone
Management.
Assistant Administrator for Fisheries.
Assistant Administrator for Weather Service.
Assistant Administrator for Environmental Satellite, Data, and
Information Service.
Assistant Administrator for Oceanic and Atmospheric Research.
Director, Environmental Research Laboratories.
[[Page 48]]
Director, Office of Administration.
Director, Eastern Administrative Support Center.
Director, Central Administrative Support Center.
Director, Western Administrative Support Center.
Director, Mountain Administrative Support Center.
National Telecommunications and Information Administration
Deputy Assistant Secretary.
Chief Counsel.
Legal Advisor.
Patent and Trademark Office
Solicitor, Deputy Solicitor.
United States Travel and Tourism Administration
Under Secretary.
Director, Office of Management and Administration.
[56 FR 50233, May 6, 1991, as amended at 57 FR 28781, June 29, 1992; 57
FR 48969, Oct. 29, 1992]
PART 4a--CLASSIFICATION, DECLASSIFICATION AND PUBLIC AVAILABILITY OF NATIONAL SECURITY INFORMATION--Table of Contents
Subpart A--Classification of National Security Information
Sec.
4a.1 General.
4a.2 Director, Office of Security.
4a.3 Classification levels.
4a.4 Classification authority.
4a.5 Duration of classification.
Subpart B--Declassification
4a.6 General.
4a.7 Systematic review for declassification.
4a.8 Mandatory review for declassification.
4a.9 Requests under the Privacy Act and the Freedom of Information Act
involving classified records.
4a.10 Presidential information.
4a.11 Foreign government information.
4a.12 Public availability of declassified information.
Subpart C--Access to Classified Information
4a.13 Access by persons outside the Executive branch.
4a.14 Access by industrial, educational, and commercial entities.
4a.15 Access by historical researchers and former presidential
appointees.
4a.16 Access by foreign nationals, foreign governments, international
organizations and immigrant aliens.
Authority: Sec. 5.3(b), E.O. 12356; 47 FR 14874, April 6, 1982; 47
FR 15557, April 12, 1982.
Source: 48 FR 20040, May 4, 1983, unless otherwise noted.
Subpart A--Classification of National Security Information
Sec. 4a.1 General.
Executive Order 12356 provides the only basis for classifying
information within the Department of Commerce, except as provided in the
Atomic Energy Act of 1954. The policy of the Department of Commerce is
to make information concerning its activities available to the public
consistent with the need to protect the national defense or foreign
relations as required by the interests of the United States and its
citizens. Accordingly, security classification shall be applied only to
protect the national security.
Sec. 4a.2 Director, Office of Security.
The Director is responsible for (a) acting on all suggestions,
complaints, and appeals not otherwise resolved, concerning the
implementation and administration of E.O. 12356 and implementing
directives, and (b) deciding all appeals from denials of requests for
national security information under the Mandatory Review provision of
E.O. 12356, when the initial denial was based on continued
classification under the Order. When acting on such appeals the Director
shall confer, as necessary, with the Offices of the General Counsel,
Information Management, and Personnel. The Director may solicit advise
from various operating units as required. All suggestions, complaints,
or appeals should be addressed to the Director, Office of Security, Room
5044, 14th Street and Constitution Avenue, NW., Washington, D.C. 20230.
Sec. 4a.3 Classification levels.
Information may be classified as national security information by a
designated original classifier of the Department when it is determined
that the information concerns one or more of the categories prescribed
in E.O.
[[Page 49]]
12356 and when the unauthorized disclosure of the information, either by
itself or in the context of other information, reasonably could be
expected to cause damage to the national security. The levels
established by E.O. 12356 (Top Secret, Secret, and Confidential) are the
only terms which may be applied to national security information. Except
as provided by statute, no other terms shall be used within the
Department of Commerce in conjunction with any of the three
classification levels.
Sec. 4a.4 Classification authority.
Authority to originally classify information as Secret or
Confidential may be exercised only by the Secretary of Commerce and by
officials to whom such authority is specifically delegated. No official
of the Department of Commerce is authorized to originally classify
information as Top Secret.
Sec. 4a.5 Duration of classification.
Information shall remain classified as long as its unauthorized
disclosure would result in damage to the national security. When it can
be determined a specific date or event for declassification shall be set
by the original classification authority at the time the information is
originally classified. Automatic declassification markings applied under
predecessor executive orders shall remain valid unless the
classification is extended by an authorized declassification authority.
Information classified under predecessor orders and marked for
declassification review shall remain classified until reviewed for
declassification under the provisions of E.O. 12356 governing systematic
review or mandatory review for declassification.
Subpart B--Declassification
Sec. 4a.6 General.
Information that continues to meet the classification requirements
prescribed in E.O. 12356 despite the passage of time will continue to be
safeguarded. However, information which is properly classified at the
time it is developed may not necessarily require protection
indefinitely. National security information over which the Department of
Commerce exercises final classification jurisdiction shall be
declassified or downgraded as soon as national security considerations
permit. When information is determined to be no longer damaging to the
national security, it may continue to be exempt from public disclosure
by law. If so, when the information is declassified the declassification
authority shall indicate that all or portions of the information become
FOR OFFICIAL USE ONLY and shall cite the authority which permits
nondisclosure.
Sec. 4a.7 Systematic review for declassification.
Classified information constituting permanently valuable records of
the Government, as defined by U.S.C. 2103, that is in the possession and
control of the Department of Commerce or of the Archivist of the United
States, shall be systematically reviewed for declassification. This
review shall be in accordance with systematic review guidelines
authorized by the Secretary of Commerce.
Sec. 4a.8 Mandatory review for declassification.
(a) Requests. Classified information under the jurisdiction of the
Department of Commerce shall be reviewed for declassification upon
receipt of a request by a United States citizen or permanent resident
alien, a Federal agency, or a state or local government. A request for
mandatory review of classified information shall be submitted in writing
and describe the information with sufficient specificity to locate it
with a reasonable amount of effort. Request shall be submitted to the
Director, Office of Security, U.S. Department of Commerce, Room 5044,
14th Street and Constitution Avenue, NW., Washington, D.C. 20230.
(b) Processing requirements. (1) The Director, Office of Security,
shall acknowledge receipt of the request directly to the requester. When
a request does not satisfy the conditions of paragraph (a) of this
section, the requester shall be notified that unless additional
identifying information is provided, no further action will be taken.
The request shall be forwarded to the operating unit or office which
originated the information or which has primary
[[Page 50]]
interest in the subject matter. The unit or office assigned action shall
review the information within twenty working days as prescribed below.
(2) The action office shall determine whether, under the
declassification provisions of the Department of Commerce National
Security Information Manual, the entire document or portions thereof may
be declassified. The action office shall also determine whether, if the
document or portions are declassified, withholding the information is
otherwise warranted under applicable statutes. Declassification of the
information shall be accomplished by a designated declassification
authority. Upon declassification the information shall be remarked. If
the information may not be released in whole or in part, the reviewing
official shall provide the reasons for denial by citing the applicable
provision of section 1.3 of E.O. 12356. When the classification is a
derivative decision based on classified source material of another
Federal agency, the action office shall provide the information to the
originator for review.
(3) The action office shall also determine if declassified
information is otherwise available for public release under the Freedom
of Information Act. If the information is not releasable, the reviewing
official shall advise the Director, Office of Security, that the
information has been declassified but that it is exempt from disclosure,
citing the appropriate exemption of the Freedom of Information Act and
applicable regulations.
(4) If the request for declassification is denied in whole or in
part, the requester shall be notified of the right to appeal the
determination within sixty days and of the procedures for such an
appeal. If declassified information remains exempt from disclosure under
the Freedom of Information Act, the requester shall be advised of those
appellate procedures. All denials of information under the Freedom of
Information Act must be approved by the Office of the Assistant General
Counsel for Administration.
(c) Fees. If the request requires the rendering of services for
which fees may be charged, the unit assigned action may calculate the
anticipated amount of fees to be charged and ascertain the requester's
willingness to pay the allowable charges as a precondition to taking
further action on the request in accordance with Sec. 4.9 of Department
of Commerce Freedom of Information Act rules and Sec. 4b.11 of the
Department's Privacy Act rules.
(d) Right of appeal. (1) A requester may appeal to the Director,
Office of Security, when the requested information is not declassified
and released in whole. The Director shall determine, within thirty days
after receipt of an appeal, whether continued classification of the
requested information is required in whole or in part, notify the
requester of his determination, and make available to the requester any
information determined to be releasable. If continued classification is
required under the provisions of this manual, the requester shall be
notified of the final determination and of the reasons for denial.
(2) During the declassification review of information under appeal
the Director, Office of Security, may overrule previous determinations
in whole or in part when, in his judgment, continued protection in the
interest of national security is no longer required. If the Director
determines that the information no longer requires classification, it
shall be declassified and, unless it is otherwise exempt from
disclosure, released to the requester. The Director shall advise the
original reviewing Commerce office or unit of his decision.
Sec. 4a.9 Requests under the Privacy Act and the Freedom of Information Act involving classifed records.
(a) The Freedom of Information Act (FOIA), Title 5 U.S.C. 552(b)(1)
and the Privacy Act of 1974 (PA), Title 5 U.S.C. 552a(k)(1), authorize
withholding of records from public availability which are ``(1)
specifically authorized under criteria established by an Executive order
to be kept secret in the interest of national defense or foreign policy
and (2) are in fact properly classified pursuant to such Executive
order.''
(b) Under the FOIA a determination on an initial request must be
made within ten working days after receipt of the request. A
determination on an
[[Page 51]]
appeal to an initial denial must be made within twenty working days
after receipt of an FOIA appeal; or for a PA appeal, within thirty
working days. Time limits are mandatory for an FOIA request, but are
permissive for a PA request. Except for unusual circumstances, failure
to make a determination within the stated time limits means that a
requester has exhausted the administrative remedies and may bring suit
immediately.
(c) Persons who request information under the provisions of these
Acts, and whose requests are denied on appeal, may petition the courts
to enjoin the Department of Commerce from withholding the record and, in
this event, burden is on the Department of Commerce to sustain its
actions.
(d) To assure that PA/FOIA requests involving classified records are
subjected to a thorough classification review and that a response is
made within the specified time limits, the procedures in paragraphs (e)
and (f) shall apply as well as those of DAO 205-12 ``Public
Information,'' DAO 205-14 ``Processing Requests Under the Freedom of
Information Act,'' and DAO 205-15 ``Implementing the Privacy Act of
1974.''
(e) Initial requests involving classified records:
(1) The office determined to have primary interest shall conduct a
declassification review of the information as prescribed in Sec. 4a.8(b)
(2), (3), and (4).
(2) If the information is subsequently declassified, the action
office shall consult with the Office of the Assistant General Counsel
for Administration to determine releasibility with consideration only
for the legality of release within the purview of PA/FOIA.
(3) If the record warrants continued classification, the action
office shall coordinate with the Office of the Assistant General Counsel
for Administration and so advise the requester, and further advise the
requester of the right of appeal.
(4) If the classification review cannot be completed within the
prescribed time limit, due to unusual circumstances, the action office
shall advise the requester. An extension of time shall be arranged in
accordance with the FOIA and implementing Commerce PA/FOIA rules.
(f) Receipt of an appeal for reconsideration of denial of a
classified record under PA/FOIA: Appeals under this section shall be
addressed to the General Counsel who shall refer the record(s) to the
Director, Office of Security, for a declassification review. The
Director may overrule previous determinations in whole or in part when,
in his judgment, continued protection in the interest of national
security is no longer required. If the information under review no
longer requires classification, it shall be declassified. The Director
shall advise the General Counsel of his decision.
Sec. 4a.10 Presidential information.
Information originated by the President, by the White House Staff,
by committees, commissions, or boards appointed by the President, or by
others specifically providing advice and counsel to a President or
acting on behalf of a President is exempted from the provisions of
mandatory review for declassification, except as consistent with
applicable laws that pertain to presidential papers or records.
Sec. 4a.11 Foreign government information.
Requests for mandatory review for declassification of foreign
government information shall be processed as prescribed in Sec. 4a.8(b).
Consultation with the foreign source of the information through
appropriate channels may be required prior to final action on the
request.
Sec. 4a.12 Public availability of declassified information.
A fundamental policy of the Department of Commerce is to make
information available to the public to the maximum extent permitted by
law. Information which is declassified, for any reason, loses its
protective status in the interest of national security. Accordingly,
declassified information shall be handled in every respect on the same
basis as all other unclassified information.
[[Page 52]]
Subpart C--Access to Classified Information
Sec. 4a.13 Access by persons outside the Executive branch.
Department of Commerce classified information may be made available
to persons outside the Executive Branch provided that (a) they are
engaged in historical research projects or previously have occupied
policy-making positions to which they were appointed by the President,
or (b) the information is necessary for their performance of a function
related to a contract or other agreement with the U.S. Government. The
Director, Office of Security, shall determine, prior to the release of
classified information under this provision, the propriety of such
action in the interest of national security and obtain assurance of the
recipient's trustworthiness and need to know.
Sec. 4a.14 Access by industrial, educational, and commercial entities.
Bidders, contractors, grantees, educational, scientific or
industrial organizations may receive classified information under the
procedures prescribed in the Department of Defense Industrial Security
Manual.
Sec. 4a.15 Access by historical researchers and former presidential appointees.
(a) Persons who are engaged in historical research projects or who
have previously occupied policy-making positions to which they were
appointed by the President may be authorized access to classified
information provided that the head of the component with classification
jurisdiction over the information:
(1) Makes a written determination that access is consistent with the
interests of national security;
(2) Is assured by the Director, Office of Security, that the
requestors have an appropriate determination of trustworthiness as a
precondition to access;
(3) Obtains written agreements from requestors to safeguard the
information to which they are given access in accordance with these
regulations;
(4) Obtains written consent to a review by the Department of
Commerce of their resultant notes and manuscripts for the purpose of
determining that no classified information is contained therein; and
(5) Limits access granted to former Presidential appointees to items
that the person originated, reviewed, signed, or received while serving
as a Presidential appointee.
(b) The material requested should be clearly identified so that it
can be located and compiled with a reasonable amount of effort. If the
access requested by historical researchers or former Presidential
appointees requires the rendering of services for which fair and
equitable fees may be charged, the requestor shall be notified.
(c) The provisions of this section apply only to classified
information, or any part of it, originated by the Department of Commerce
or information that is now in the sole custody of the Department.
Otherwise, the researcher shall be referred to the classifying agency.
Operating units providing information under this section shall maintain
custody of classified information at a Commerce facility.
Sec. 4a.16 Access by foreign nationals, foreign governments, international organizations and immigrant aliens.
Foreign nationals employed by the Department of Commerce may be
granted access to classified information originated within the
Department only for the specific classified project to which they are
assigned and only after they have met those requirements set forth in
DAO 207-3, ``Security Requirements for Research Associates, Guest
Workers and Trainees,'' and Appendix B of DAO 207-4, ``Security and
Suitability Investigations of Personnel.'' If a need for access by
foreign nationals (other than employees) is indicated, the Director,
Office of Security, shall be consulted for decision on a case-by-case
basis.
PART 4b--PRIVACY ACT--Table of Contents
Sec.
4b.1 Purpose and scope.
4b.2 Definitions.
4b.3 Procedures for inquiries pertaining to individual records in a
record system.
[[Page 53]]
4b.4 Times, places, and requirements for identification of individuals
making requests for access.
4b.5 Disclosure of requested information to individuals.
4b.6 Special procedures: Medical records.
4b.7 Request for correction or amendment to record.
4b.8 Agency review of request for correction or amendment of record.
4b.9 Appeal of initial adverse agency determination on correction or
amendment.
4b.10 Disclosure of record to person other than the individual to whom
it pertains.
4b.11 Fees.
4b.12 Penalties.
4b.13 General exemptions.
4b.14 Specific exemptions.
Appendix A to Part 4b--Officials to Receive Inquiries, Requests for
Access and Requests for Correction or Amendment
Appendix B to Part 4b--Systems of Records Noticed by Other Federal
Agencies and Applicable to Records of the Department and
Applicability of This Part Thereto
Appendix C to Part 4b--Facsimile of Official Form for Inquiries and
Requests
Authority: 5 U.S.C. 552a; 5 U.S.C. 553; 5 U.S.C. 552; 5 U.S.C. 301;
44 U.S.C. 3101; Reorganization Plan No. 5 of 1950.
Source: 40 FR 45621, Oct. 2, 1975; 40 FR 50662, Oct. 30, 1975; 40 FR
51168, Nov. 3, 1975, unless otherwise noted.
Sec. 4b.1 Purpose and scope.
(a) The purpose of this part is to establish policies and procedures
for implementing the Privacy Act of 1974 (Pub. L. 93-579), particularly
5 U.S.C. 552a as added by the Act. The main objectives are to facilitate
full exercise of rights conferred on individuals under the Act and to
ensure the protection of privacy as to individuals on whom the
Department maintains records in systems of records under the Act. The
Department accepts the responsibility to act promptly and in accordance
with the Act upon receipt of any inquiry, request or appeal from a
citizen of the United States or an alien lawfully admitted for permanent
residence into the United States, regardless of the age of the
individual. Further, the Department accepts the obligations to maintain
only such information on individuals as is relevant and necessary to the
performance of its lawful functions, to maintain that information with
such accuracy, relevancy, timeliness, and completeness as is reasonably
necessary to assure fairness in determinations made by the Department
about the individual, to obtain information from the individual to the
extent practicable, and to take every reasonable step to protect that
information from unwarranted disclosure. The Department will maintain no
record describing how an individual exercises rights guaranteed by the
First Amendment unless expressly authorized by statute or by the
individual about whom the record is maintained or unless pertinent to
and within the scope of an authorized law enforcement activity. An
individual's name and address will not be sold or rented by the
Department unless such action is specifically authorized by law;
however, this provision shall not be construed to require the
withholding of names and addresses otherwise permitted to be made
public.
(b) This part applies to all units in the Department in order to
assure the maximum amount of uniformity and consistency within the
Department in its implementation of the Act. The units of the Department
may promulgate supplementary orders and rules not inconsistent with this
part.
(c) The Assistant Secretary for Administration is delegated
responsibility for maintaining this part, for issuing such orders and
directives internal to the Department as are necessary for full
compliance with the Act, and for effecting publication of all required
notices concerning systems of records.
(d) Matters outside the scope of this part include the following:
(1) Requests solely under the Freedom of Information Act (5 U.S.C.
552) and Part 4 of this title;
(2) Requests involving information pertaining to an individual which
is in a record or file but not within the scope of a system of records
notice published in the Federal Register;
(3) Requests to correct a record where a grievance procedure is
available to the individual either by regulation or by provision in a
collective bargaining agreement with the Department or a unit of the
Department, and the individual has initiated, or has expressed in
writing the intention of initiating, such grievance procedure. An
[[Page 54]]
individual selecting the grievance procedure waives the use of the
procedures in this part to correct or amend a record; and,
(4) Requests for employee-employer services and counseling which
were routinely granted prior to enactment of the Act, including, but not
limited to, test calculations of retirement benefits, explanations of
health and life insurance programs, and explanations of tax withholding
options.
(e) The selection of the appropriate method for processing an
individual's request for records depends on the status or capacity of
the individual, the wording of the request and the character of the
records requested. The Department anticipates the following situations
and will undertake processing as indicated:
(1) Requester is the individual to whom the record pertains and the
requester expressly states only that the request is under the Act--The
request will be processed under the Act and this part;
(2) Requester is the individual to whom the record pertains and the
requester expressly states only that the request is under the Freedom of
Information Act--The request will be processed under the Freedom of
Information Act and the Department's implementing regulations (Part 4 of
this chapter);
(3) Requester is the individual to whom the record pertains and the
requester expressly states that the request is under both the Act and
the Freedom of Information Act--The request will be processed
concurrently under both statutes and the Department's respective
implementing regulations. For such dual requests the Department will
follow the fee provisions under the Act and this part, and follow the
time limits under the Freedom of Information Act and Part 4 of this
title;
(4) Requester is the individual to whom the record pertains and the
requester fails to specify whether the request is under the Act or the
Freedom of Information Act or both--The Department will respond to the
requester and ask for clarification of the requester's intention as to
processing. The request will not be deemed to have been ``received'' for
purposes of measuring time periods for response until the clarification
actually has been received by the appropriate official of the
Department; and,
(5) Requester (i) is not an individual or (ii) is an individual but
not the individual to whom the record pertains or one asserting
parentage or guardianship as permitted under the Act--The request will
be processed under the Freedom of Information Act and the Department's
implementing regulations or under other applicable procedures.
[40 FR 45621, Oct. 2, 1975; 40 FR 50662, Oct. 30, 1975; 40 FR 51168,
Nov. 3, 1975, as amended at 53 FR 26236, July 12, 1988]
Sec. 4b.2 Definitions.
(a) All terms used in this part which are defined in 5 U.S.C. 552a
shall have the same meaning herein.
(b) As used in this part:
(1) The term Act means the ``Privacy Act of 1974,'' Pub. L. 93-579.
(2) The term appeal means the request by an individual that an
initial denial of a request for correction or amendment by that
individual be reviewed and reversed.
(3) The term Department means the Department of Commerce.
(4) The term inquiry means either a request for general information
regarding the Act and this part or a request by an individual (or that
individual's parent or guardian) that the Department determine whether
it has any record in a system of records which pertains to that
individual.
(5) The term person means any human being and also shall include but
not be limited to, corporations, associations, partnerships, trustees,
receivers, personal representatives, and public or private
organizations.
(6) The term Privacy Officer means those officials, identified in
Appendix A to this part, who are authorized to receive and act upon
inquiries, requests for access, and requests for correction or
amendment.
(7) The term request for access means a request by an individual to
see a record which is in a particular system of records and which
pertains to that individual.
[[Page 55]]
(8) The term request for correction or amendment means the request
by an individual that the Department change (either by correction,
amendment, addition or deletion) a particular record in a system of
records which pertains to that individual.
(9) The term unit of the Department and unit means the office of the
Secretary of Commerce and operating units of the Department as defined
in Department Organization Order 1-1, ``Mission and Organization of the
Department of Commerce'' (35 FR 19704, December 27, 1970).
[40 FR 45621, Oct. 2, 1975; 40 FR 50662, Oct. 30, 1975; 40 FR 51168,
Nov. 3, 1975, as amended at 53 FR 26236, July 12, 1988]
Sec. 4b.3 Procedures for inquiries pertaining to individual records in a record system.
(a) Any individual, regardless of age, who is a citizen of the
United States or an alien lawfully admitted for permanent residence into
the United States may submit an inquiry to the Department. The inquiry
should be made either in person or by mail addressed to the appropriate
Privacy Officer identified in Appendix A to this part or to the official
identified in the notification procedures paragraph of the systems of
records notice published in the Federal Register. If an individual
believes the Department maintains a record pertaining to that individual
but does not know which system of records might contain such a record
and/or which unit of the Department maintains the system of records,
assistance in person or by mail will be provided at the first address
listed in Appendix A to this part. The offices of Privacy Officers are
open to the public between the hours of 9:00 a.m. and 4:00 p.m., Monday
through Friday (excepting holidays).
(b) The processing of inquiries submitted by mail will be
facilitated if the words ``PRIVACY ACT INQUIRY'' appear in capital
letters on the face of the envelope.
(c) The Department has an official form for making inquiries and
requests, a facsimile of which is Appendix C to this part. Its use is
urged. Copies may be obtained by contacting any of the officials in
Appendix A to this part. Copies also may be obtained by contacting any
facility of the Department which offers direct services to the public.
Please consult your telephone directory under the listing ``United
States Government--Commerce Department.''
(d) If, for some reason, an individual is unable to use the
Department's official form, the letter should bear the words ``PRIVACY
ACT INQUIRY'' in capital letters at the top. If the inquiry is for
general information regarding the Act and this part, no particular
information is required. If the inquiry is a request that the Department
determine whether it has, in a given system of records, a record which
pertains to the individual, the following information should be
submitted:
(1) Name of individual whose record is sought;
(2) Individual whose record is sought is either a U.S. citizen or an
alien lawfully admitted for permanent residence;
(3) Identifying data that will help locate the record (for example,
maiden name, occupational license number, period or place of employment,
etc.);
(4) Record sought, by description and by record system name, if
known;
(5) Action requested (that is, send information on how to exercise
rights under the Act; does requested record exist; access to requested
record; or copy of requested record);
(6) Copy of court guardianship order or minor's birth certificate,
as provided in Sec. 4b.4(f)(3), but only if requester is guardian or
parent of individual whose record is sought;
(7) Requester's name (printed), signature, address, and telephone
number (optional);
(8) Date; and,
(9) Certification of request by notary or other official, but only
if (i) request is for notification that requested record exists, for
access to requested record or for copy of requested record; (ii) record
is not available to any person under 5 U.S.C. 552; and (iii) requester
does not appear before an employee of the Department for verification of
identity.
The Department reserves the right to require compliance with the
identification procedures appearing at Sec. 4b.4(f) where circumstances
warrant.
[[Page 56]]
(e) Any inquiry which is not addressed as specified in paragraph (a)
of this section or which is not marked as specified in paragraphs (b)
and (d) of this section will be so addressed and marked by Department
personnel and forwarded immediately to the responsible Privacy Officer.
An inquiry which is not properly addressed by the individual will not be
deemed to have been ``received'' for purposes of measuring time periods
for response until actual receipt by the Privacy Officer. In each
instance when an inquiry so forwarded is received, the Privacy Officer
shall notify the individual that his or her inquiry was improperly
addressed and the date when the inquiry was received at the proper
address.
(f)(1) Each inquiry received shall be acted upon promptly by the
responsible Privacy Officer. Every effort will be made to respond within
ten days (excluding Saturdays, Sundays and holidays) of the date of
receipt. If a response cannot be made within ten days, the Privacy
Officer shall send an acknowledgment during that period providing
information on the status of the inquiry and asking for such further
information as may be necessary to process the inquiry. The first
correspondence sent by the Privacy Officer to the requester shall
contain the Department's control number assigned to the request, as well
as a note that the requester should use that number in all future
contacts in order to facilitate processing. The Department shall use
that control number in all subsequent correspondence.
(2) If the Privacy Officer fails to send an acknowledgment within
ten days, as provided above, the requester may ask the General Counsel,
to take corrective action. No failure of a Privacy Officer to send an
acknowledgment shall confer administrative finality for purposes of
judicial review.
(g) An individual shall not be required to state a reason or
otherwise justify his or her inquiry.
(h) Special note should be taken of the fact that certain agencies
are responsible for publishing notices of systems of records having
Government-wide application to other agencies, including the Department.
The agencies known to be publishing these general notices and the types
of records covered therein appear in Appendix B to this part. These
general notices do not identify the Privacy Officers in the Department
to whom inquiries should be presented or mailed. The provisions of this
section, and particularly paragraph (a) of this section, should be
followed in making inquiries with respect to such records. Such records
in the Department are subject to the provisions of this part to the
extent indicated in Appendix B to this part. The exemptions, if any,
determined by the agency publishing a general notice shall be invoked
and applied by the Department after consultation, as necessary, with
that other agency.
[40 FR 45621, Oct. 2, 1975; 40 FR 50662, Oct. 30, 1975; 40 FR 51168,
Nov. 3, 1975, as amended at 53 FR 26236, July 12, 1988]
Sec. 4b.4 Times, places, and requirements for identification of individuals making requests for access.
(a) Any individual, regardless of age, who is a citizen of the
United States or an alien lawfully admitted for permanent residence into
the United States may submit a request for access to records to the
Department. The request should be made either in person or by mail
addressed to the responsible Privacy Officer identified in Appendix A to
this part. The offices of Privacy Officers are open to the public
between the hours of 9:00 a.m. and 4:00 p.m. Monday through Friday
(excluding holidays).
(b) The Department has an official form for making requests, a
facsimile of which is Appendix C to this part. Its use is urged. Copies
may be obtained by contacting any of the officials listed in Appendix A
to this part. Copies also may be obtained by contacting any facility of
the Department which offers direct services to the public. Please
consult your telephone directory under the listing ``United States
Government--Commerce Department.''
(c) The processing of requests submitted by mail will be facilitated
if the words ``PRIVACY ACT REQUEST'' appear in capital letters on the
face of the envelope. If, for some reason, an individual is unable to
use the Department's official form the letter should bear the words
``PRIVACY ACT REQUEST'' in capital letters at the top.
[[Page 57]]
(d) Any request which is not addressed as specified in paragraph (a)
of this section or which is not marked as specified in paragraph (c) of
this section will be so addressed and marked by Department personnel and
forwarded immediately to the responsible Privacy Officer. A request
which is not properly addressed by the individual will not be deemed to
have been ``received'' for purposes of measuring time periods for
response until actual receipt by the Privacy Officer. In each instance
when a request so forwarded is received, the Privacy Officer shall
notify the individual that his or her request was improperly addressed
and the date when the request was received at the proper address.
(e) If the request follows inquiry under Sec. 4b.3 in connection
with which the individual's identity was established by the Department,
the individual need only indicate the record to which access is sought,
give the Department control number assigned to the request, and sign and
date the request. If the request is not preceded by an inquiry under
Sec. 4b.3, the procedures of either Sec. 4b.3(c) or Sec. 4b.3(d) of this
part should be followed.
(f) The requirements for identification of individuals seeking
access to records are as follows:
(1) In person. Each individual making a request in person shall be
required to present satisfactory proof of identity. The means of proof,
in the order of preference and priority, are:
(i) A document bearing the individual's photograph (for example,
driver's license, passport or military or civilian identification card);
(ii) A document, preferably issued for participation in a federally
sponsored program, bearing the individual's signature (for example,
unemployment insurance book, employer's identification card, national
credit card, and professional, craft or union membership card); and,
(iii) A document bearing neither the photograph nor the signature of
the individual, preferably issued for participation in a federally
sponsored program (for example, Medicaid card).
In the event the individual can provide no suitable documentation of
identity, the Department will require a signed statement asserting the
individual's identity and stipulating that the individual understands
the penalty provision of 5 U.S.C. 552a(i)(3) recited in Sec. 4b.12(a).
For the convenience of the public, and in addition to the Privacy
Officers listed in Appendix A to this part, most facilities which are
open to the public and operated by the Department outside Metropolitan
Washington, D.C. have employees authorized to determine the identity of
an individual. However, such employees are not authorized to take any
other action with respect to a request except to transmit the request to
the responsible Privacy Officer. In order to avoid any unwarranted
disclosure of an individual's records, the Department reserves the right
to determine the adequacy of proof of identity offered by any
individual, particularly when the request involves a sensitive record.
(2) Not in person. If the individual making a request does not
appear in person before a Privacy Officer or other employee authorized
to determine identity, a certificate of a notary public or equivalent
officer empowered to administer oaths must accompany the request under
the circumstances prescribed in Sec. 4b.3(d)(9). The Department's
official form for requests contains a certificate. If, for some reason,
the individual is unable to use the official form, the certificate
within or attached to the letter must be substantially in accord with
the following text:
City of ------------
County of ---------------- :ss
(Name of individual), who affixed (his) (her) signature below in my
presence, came before me, a (title), in and for the aforesaid County and
State, this ------ day of ------------, 19--, and established (his)
(her) identity to my satisfaction.
My commission expires --------------.
(Signature)
(3) Parents of minors and legal guardians. An individual acting as
the parent of a minor or the legal guardian of the individual to whom a
record pertains shall establish his or her personal identity in the same
manner prescribed in either paragraph (f)(1) or (2) of this section. In
addition, such other individual shall establish his or her identity in
the representative capacity of parent or legal guardian. In the case of
the
[[Page 58]]
parent of a minor, the proof of identity shall be a certified or
authenticated copy of the minor's birth certificate. In the case of a
legal guardian of an individual who has been declared incompetent due to
physical or mental incapacity or age by a court of competent
jurisdiction, the proof of identity shall be a certified or
authenticated copy of the court's order. For purposes of the Act, a
parent or legal guardian may represent only a living individual, not a
decedent. A parent or legal guardian may be accompanied during personal
access to a record by another individual, provided the provisions of
Sec. 4b.5(f) are satisfied.
(g) When the provisions of this part are alleged to have the effect
of impeding an individual in exercising his or her right to access, the
Department will consider, from an individual making a request,
alternative suggestions regarding proof of identity and access to
records.
(h) An individual shall not be required to state a reason or
otherwise justify his or her request for access to a record.
[40 FR 45621, Oct. 2, 1975; 40 FR 50662, Oct. 30, 1975; 40 FR 51168,
Nov. 3, 1975, as amended at 53 FR 26236, July 12, 1988]
Sec. 4b.5 Disclosure of requested information to individuals.
(a)(1) Each request received shall be acted upon promptly by the
responsible Privacy Officer. Every effort will be made to respond within
ten days (excluding Saturdays, Sundays and holidays) of the date of
receipt. If a response cannot be made within ten days due to unusual
circumstances, the Privacy Officer shall send an acknowledgment during
that period providing information on the status of the request and
asking for such further information as may be necessary to process the
request. ``Unusual circumstances'' shall include circumstances where a
search for and collection of requested records from inactive storage,
field facilities or other establishments are required, cases where a
voluminous amount of data is involved, instances where information on
other individuals must be separated or expunged from the particular
record, and cases where consultations with other agencies having a
substantial interest in the determination of the request are necessary.
(2) If the Privacy Officer fails to send an acknowledgment within
ten days, as provided above, the requester may ask the responsible
General Counsel, to take corrective action. No failure of a Privacy
Officer to send an acknowledgment shall confer administrative finality
for purposes of judicial review.
(b) Grant of access--(1) Notification. An individual shall be
granted access to a record pertaining to him or her, except where the
provisions of paragraph (g)(1) of this section apply. The Privacy
Officer shall notify the individual of a determination to grant access
and provide the following information:
(i) The methods of access, as set forth in paragraph (b)(2) of this
section;
(ii) The place at which the record may be inspected;
(iii) The earliest date on which the record may be inspected and the
period of time that the records will remain available for inspection. In
no event shall the earliest date be later than thirty days from the date
of notification;
(iv) The estimated date by which a copy of the record could be
mailed and the estimate of fees pursuant to Sec. 4b.11 of this part. In
no event shall the estimated date be later than thirty days from the
date of notification;
(v) The fact that the individual, if he or she wishes, may be
accompanied by another individual during personal access, subject to the
procedures set forth in paragraph (f) of this section; and,
(vi) Any additional requirements needed to grant access to a
specific record.
(2) Methods of access. The following methods of access to records by
an individual may be available depending on the circumstances of a given
situation:
(i) Inspection in person may be had in the office specified by the
Privacy Officer granting access, during the hours indicated in
Sec. 4b.4(a);
(ii) Transfer of records to a Federal facility more convenient to
the individual may be arranged, but only if the
[[Page 59]]
Privacy Officer determines that a suitable facility is available, that
the individual's access can be properly supervised at that facility, and
that transmittal of the records to that facility will not unduly
interfere with operations of the Department or involve unreasonable
costs, in terms of both money and manpower; and,
(iii) Copies may be mailed at the request of the individual, subject
to payment of the fees prescribed in Sec. 4b.11. The Department, at its
own initiative, may elect to provide a copy by mail, in which case no
fee will be charged the individual.
(c) Access to medical records is governed by the provisions of
Sec. 4b.6.
(d) The Department shall supply such other information and
assistance at the time of access as to make the record intelligible to
the individual.
(e) The Department reserves the right to limit access to copies and
abstracts of original records, rather than the original records. This
election would be appropriate, for example, when the record is in an
automated data media such as tape or disc, when the record contains
information on other individuals, and when deletion of information is
permissible under exemptions (for example, 5 U.S.C. 552a(k)(2)). In no
event shall original records of the Department be made available to the
individual except under the immediate supervision of the Privacy Officer
or his designee. Title 18, United States Code, section 2701(a) makes it
a crime to conceal, mutilate, obliterate, or destroy any record filed in
a public office, or to attempt to do any of the foregoing.
(f) Any individual who requests access to a record pertaining to
that individual may be accompanied by another individual of his or her
choice. ``Accompanied'' includes discussion of the record in the
presence of the other individual. The individual to whom the record
pertains shall authorize the presence of the other individual in writing
and shall include the name of the other individual, a specific
description of the record to which access is sought, the Department
control number assigned to the request, the date and the signature of
the individual to whom the record pertains. The other individual shall
sign the authorization in the presence of the Privacy Officer. An
individual shall not be required to state a reason or otherwise justify
his or her decision to be accompanied by another individual during
personal access to a record.
(g) Initial denial of access--(1) Grounds. Access by an individual
to a record which pertains to that individual will be denied only upon a
determination by the Privacy Officer that:
(i) The record is exempt under Secs. 4b.13 and 4b.14 or exempt by
determination of another agency publishing notice of the system of
records, as described in Sec. 4b.3(h);
(ii) The record is information compiled in reasonable anticipation
of a civil action or proceeding;
(iii) The provisions of Sec. 4b.6 pertaining to medical records
temporarily have been invoked; or,
(iv) The individual unreasonably has failed to comply with the
procedural requirements of this part.
(2) Notification. The Privacy Officer shall give notice of denial of
access to records to the individual in writing and shall include the
following information:
(i) The Privacy Officer's name and title or position;
(ii) The date of the denial;
(iii) The reasons for the denial, including citation to the
appropriate section of the Act and this part;
(iv) The individual's opportunities, if any, for further
administrative consideration, including the identity and address of the
responsible official. If no further administrative consideration within
the Department is available, the notice shall state that the denial is
administratively final; and,
(v) If stated to be administratively final within the Department,
the individual's right to judicial review provided under 5 U.S.C.
552a(g)(1), as limited by 5 U.S.C. 552a(g)(5).
(3) Administrative review. When an initial denial of a request is
issued by the Privacy Officer, the individual's opportunities for
further consideration shall be as follows:
(i) As to denial under paragraph (g)(1)(i) of this section, two
opportunities for further consideration are available in the
alternative:
[[Page 60]]
(A) If the individual contests the application of the exemption to
the records, review procedures in Sec. 4b.5(g)(3)(ii) shall apply; or,
(B) If the individual challenges the exemption itself, the procedure
is a petition for the issuance, amendment, or repeal of a rule under 5
U.S.C. 553(e). If the exemption was determined by the Department, such
petition shall be filed with the Assistant Secretary for Administration.
If the exemption was determined by another agency, referred to in
Sec. 4b.3(h), the Department will provide the individual with the name
and address of the other agency and any relief sought by the individual
shall be that provided by the regulations of the other agency. Within
the Department, no such denial is administratively final until such a
petition has been filed by the individual and disposed of on the merits
by the Assistant Secretary for Administration.
(ii) As to denial under paragraphs (g)(1)(ii), (g)(1)(iv) of this
section or (to the limited extent provided in paragraph (g)(3)(i)(A) of
this section) paragraph (g)(1)(i), the individual may file for review
with the General Counsel, as indicated in the Privacy Officer's initial
denial notification. The procedures appearing in Sec. 4b.8 shall be
followed by both the individual and the Department to the maximum extent
practicable.
(iii) As to denial under paragraph (g)(1)(iii) of this section, no
further administrative consideration within the Department is available
because the denial is not administratively final until expiration of the
time period indicated in Sec. 4b.6(a).
(h) If a request is partially granted and partially denied, the
Privacy Officer shall follow the appropriate procedures of this section
as to the records within the grant and the records within the denial.
[40 FR 45621, Oct. 2, 1975; 40 FR 50662, Oct. 30, 1975; 40 FR 51168,
Nov. 3, 1975, as amended at 53 FR 26236, July 12, 1988]
Sec. 4b.6 Special procedures: Medical records.
(a) No response to any request for access to medical records by an
individual will be issued by the Privacy Officer for a period of seven
days (excluding Saturdays, Sundays and holidays) from the date of
receipt.
(b) The Department has published as a routine use, for all systems
of records containing medical records, consultations with an
individual's physician or psychologist if, in the sole judgment of the
Department, disclosure could have an adverse effect upon the individual.
The mandatory waiting period set forth in paragraph (a) of this section
will permit exercise of this routine use in appropriate cases. The
Department will pay no cost of any such consultation.
(c) In every case of a request by an individual for access to
medical records, the Privacy Officer shall:
(1) Inform the individual of the waiting period prescribed in
paragraph (a) of this section;
(2) Obtain the name and address of the individual's physician and/or
psychologist, if the individual consents to give them;
(3) Obtain specific, written consent for the Department to consult
the individual's physician and/or psychologist in the event that the
Department believes such consultation is advisable, if the individual
consents to give such authorization;
(4) Obtain specific, written consent for the Department to provide
the medical records to the individual's physician or psychologist in the
event that the Department believes access to the record by the
individual is best effected under the guidance of the individual's
physician or psychologist, if the individual consents to give such
authorization; and,
(5) Forward the individual's medical record to the Department's
medical officer for review and a determination on whether consultation
with or transmittal of the medical records to the individual's physician
or psychologist is warranted. If the consultation with or transmittal of
such records to the individual's physician or psychologist is determined
to be warranted, the Department's medical officer shall so consult or
transmit. Whether or not such a consultation or transmittal occurs, the
Department's medical officer shall provide instruction to the Privacy
Officer regarding the conditions of access by
[[Page 61]]
the individual to his or her medical records.
(d) If an individual refuses in writing to give the names and
consents set forth in paragraphs (c)(2) through (4) of this section and
the Department has determined that disclosure could have an adverse
effect upon the individual, the Department shall give the individual
access to said records by means of a copy, provided without cost to the
requester, sent registered mail return receipt requested.
Sec. 4b.7 Request for correction or amendment to record.
(a) Any individual, regardless of age, who is a citizen of the
United States or an alien lawfully admitted for permanent residence into
the United States may submit a request for correction or amendment to
the Department. The request should be made either in person or by mail
addressed to the Privacy Officer who processed the individual's request
for access to the record, and to whom is delegated authority to make
initial determinations on requests for correction or amendment. The
offices of Privacy Officers are open to the public between the hours of
9:00 a.m. and 4:00 p.m. Monday through Friday (excluding holidays).
(b) The processing of requests submitted by mail will be facilitated
if the words ``PRIVACY ACT REQUEST'' appear in capital letters on the
face of the envelope. If, for some reason, the individual is unable to
use the Department's official form, the letter should bear the words
``PRIVACY ACT REQUEST'' in capital letters at the top.
(c) Any request which is not addressed as specified in paragraph (a)
of this section or which is not marked as specified in paragraph (b) of
this section will be so addressed and marked by Department personnel and
forwarded immediately to the responsible Privacy Officer. A request
which is not properly addressed by the individual will not be deemed to
have been ``received'' for purposes of measuring time periods for
response until actual receipt by the Privacy Officer. In each instance
when a request so forwarded is received, the Privacy Officer shall
notify the individual that his or her request was improperly addressed
and the date when the request was received at the proper address.
(d) Since the request, in all cases, will follow a request for
access under Sec. 4b.5, the individual's identity will be established by
his or her signature on the request and use of the Department control
number assigned to the request.
(e) A request for correction or amendment should include the
following:
(1) A specific identification of the record sought to be corrected
or amended (for example, description, title, date, paragraph, sentence,
line and words);
(2) The specific wording to be deleted, if any;
(3) The specific wording to be inserted or added, if any, and the
exact place at which to be inserted or added; and,
(4) A statement of the basis for the requested correction or
amendment, with all available supporting documents and materials which
substantiate the statement. The statement should identify the criterion
of the Act being invoked, that is, whether the information in the record
is unnecessary, inaccurate, irrelevant, untimely or incomplete.
Sec. 4b.8 Agency review of request for correction or amendment of record.
(a)(1)(i) Not later than ten days (excluding Saturdays, Sundays and
holidays) after receipt of a request to correct or amend a record, the
Privacy Officer shall send an acknowledgment providing an estimate of
time within which action will be taken on the request and asking for
such further information as may be necessary to process the request. The
estimate of time may take into account unusual circumstances as
described in Sec. 4b.5(a). No acknowledgment will be sent if the request
can be reviewed, processed and the individual notified of the results of
review (either compliance or denial) within the ten days. Requests filed
in person will be acknowledged in writing at the time submitted.
(ii) If the Privacy Officer fails to send the acknowledgment within
the ten days, as provided above, the requester may ask the General
Counsel, to take
[[Page 62]]
corrective action. No failure of a Privacy Officer to send an
acknowledgment shall confer administrative finality for purposes of
judicial review.
(2) Promptly after acknowledging receipt of a request, or after
receiving such further information as might have been requested, or
after arriving at a decision within the ten days, the Privacy Officer
shall either:
(i) Make the requested correction or amendment and advise the
individual in writing of such action, providing either a copy of the
corrected or amended record or a statement as to the means whereby the
correction or amendment was effected in cases where a copy cannot be
provided (for example, erasure of information from a record maintained
only in magnetically recorded computer files); or,
(ii) Inform the individual in writing that his or her request is
denied and provide the following information:
(A) The Privacy Officer's name and title or position;
(B) The date of the denial;
(C) The reasons for the denial, including citation to the
appropriate sections of the Act and this part; and,
(D) The procedures for appeal of the denial as set forth in
Sec. 4b.9, including the name and address of the General Counsel.
The term promptly in this subsection means within thirty days (excluding
Saturdays, Sundays and holidays). If the Privacy Officer cannot make the
determination within thirty days, the individual will be advised in
writing of the reason therefor and of the estimated date by which the
determination will be made.
(b) Whenever an individual's record is corrected or amended pursuant
to a request by that individual, the Privacy Officer shall see to the
notification of all persons and agencies to which the corrected or
amended portion of the record had been disclosed prior to its correction
or amendment, if an accounting of such disclosure required by the Act
was made. The notification shall require a recipient agency maintaining
the record to acknowledge receipt of the notification, to correct or
amend the record and to apprise any agency or person to which it had
disclosed the record of the substance of the correction or amendment.
(c) The following criteria will be considered by the Privacy Officer
in reviewing a request for correction or amendment:
(1) The sufficiency of the evidence submitted by the individual;
(2) The factual accuracy of the information;
(3) The relevance and necessity of the information in terms of
purpose for which it was collected;
(4) The timeliness and currency of the information in light of the
purpose for which it was collected;
(5) The completeness of the information in terms of the purpose for
which it was collected;
(6) The degree of risk that denial of the request could unfairly
result in determinations adverse to the individual;
(7) The character of the record sought to be corrected or amended;
and,
(8) The propriety and feasibility of complying with the specific
means of correction or amendment requested by the individual.
(d) The Department will not undertake to gather evidence for the
individual, but does reserve the right to verify the evidence which the
individual submits.
(e) Correction or amendment of a record requested by an individual
will be denied only upon a determination by the Privacy Officer that:
(1) The individual has failed to establish, by a preponderance of
the evidence, the propriety of the correction or amendment in light of
the criteria set forth in paragraph (c) of this section;
(2) The record sought to be corrected or amended is part of the
official record in a terminated judicial, quasi-judicial or quasi-
legislative proceeding to which the individual was a party or
participant;
(3) The information in the record sought to be corrected or amended,
or the record sought to be corrected or amended, is the subject of a
pending judicial, quasi-judicial or quasi-legislative proceeding to
which the individual is a party or participant;
[[Page 63]]
(4) The correction or amendment would violate a duly enacted statute
or promulgated regulation; or,
(5) The individual unreasonably has failed to comply with the
procedural requirements of this part.
(f) If a request is partially granted and partially denied, the
Privacy Officer shall follow the appropriate procedures of this section
as to the records within the grant and the records within the denial.
[40 FR 45621, Oct. 2, 1975; 40 FR 50662, Oct. 30, 1975; 40 FR 51168,
Nov. 3, 1975, as amended at 53 FR 26236, July 12, 1988]
Sec. 4b.9 Appeal of initial adverse agency determination on correction or amendment.
(a) When a request for correction or amendment has been denied
initially under Sec. 4b.8, the individual may submit a written appeal
within thirty days after the date of the initial denial. When an appeal
is submitted by mail, the postmark is conclusive as to timeliness.
(b) An appeal shall be addressed to the General Counsel, Department
of Commerce, Room 5882, Washington, DC 20230. The processing of appeals
will be facilitated if the words ``PRIVACY APPEAL'' appear in capital
letters on both the envelope and the top of the appeal papers. An appeal
not addressed and marked as provided herein will be so marked by
Department personnel when it is so identified, and will be forwarded
immediately to the General Counsel. An appeal which is not properly
addressed by the individual will not be deemed to have been ``received''
for purposes of measuring the time periods in this section until actual
receipt by the General Counsel. In each instance when an appeal so
forwarded is received, the General Counsel shall notify the individual
that his or her appeal was improperly addressed and the date when the
appeal was received at the proper address.
(c) The individual's appeal papers shall include a statement of the
reasons why the initial denial is believed to be in error and the
Department's control number assigned to the request. The appeal shall be
signed by the individual. The record which the individual requests be
corrected or amended and all correspondence between the Privacy Officer
and the requester will be supplied by the Privacy Officer who issued the
initial denial. While the foregoing normally will comprise the entire
record on appeal, the General Counsel may seek additional information
necessary to assure that the final determination is fair and equitable
and, in such instances, the additional information will be disclosed to
the individual to the greatest extent possible and an opportunity
provided for comment thereon.
(d) No personal appearance or hearing on appeal will be allowed.
(e) The General Counsel shall act upon the appeal and issue a final
determination in writing not later than thirty days (excluding
Saturdays, Sundays and holidays) from the date on which the appeal is
received; Provided, That the General Counsel may extend the thirty days
upon deciding that a fair and equitable review cannot be made within
that period, but only if the individual is advised in writing of the
reason for the extension and the estimated date by which a final
determination will issue. The estimated date should not be later than
the sixtieth day (excluding Saturdays, Sundays and holidays) after
receipt of the appeal unless unusual circumstances, as described in
Sec. 4b.5(a), are met.
(f) If the appeal is determined in favor of the individual, the
final determination shall include the specific corrections or amendments
to be made and a copy thereof shall be transmitted promptly both to the
individual and to the Privacy Officer who issued the initial denial.
Upon receipt of such final determination, the Privacy Officer promptly
shall take the actions set forth in Sec. 4b.8(a)(2)(i) and (b).
(g) If the appeal is denied, the final determination shall be
transmitted promptly to the individual and state the reasons for the
denial. The notice of final determination also shall inform the
individual of the following:
(1) The right of the individual under the Act to file a concise
statement of reasons for disagreeing with the final determination. The
statement ordinarily should not exceed one page and the Department
reserves the right to reject a statement of excessive length.
[[Page 64]]
Such a statement shall be filed with the General Counsel. It should
provide the Department control number assigned to the request, indicate
the date of the final determination and be signed by the individual. The
General Counsel shall acknowledge receipt of such statement and inform
the individual of the date on which it was received;
(2) The facts that any such disagreement statement filed by the
individual will be noted in the disputed record, that the purposes and
uses to which the statement will be put are those applicable to the
record in which it is noted, and that a copy of the statement will be
provided to persons and agencies to which the record is disclosed
subsequent to the date of receipt of such statement;
(3) The fact that the Department will append to any such
disagreement statement filed by the individual, a copy of the final
determination or summary thereof which also will be provided to persons
and agencies to which the disagreement statement is disclosed; and,
(4) The right of the individual to judicial review of the final
determination under 5 U.S.C. 552a(g)(1)(A), as limited by 5 U.S.C.
552a(g)(5).
(h) In making the final determination, the General Counsel shall
employ the criteria set forth in Sec. 4b.8(c) and shall deny an appeal
only on the grounds set forth in Sec. 4b.8(e).
(i) If an appeal is partially granted and partially denied, the
General Counsel shall follow the appropriate procedures of this section
as to the records within the grant and the records within the denial.
(j) Although a copy of the final determination or a summary thereof
will be treated as part of the individual's record for purposes of
disclosure in instances where the individual has filed a disagreement
statement, it will not be subject to correction or amendment by the
individual.
(k) The provisions of paragraphs (g)(1) through (3) of this section
satisfy the requirements of 5 U.S.C. 552a(e)(3).
[40 FR 45621, Oct. 2, 1975; 40 FR 50662, Oct. 30, 1975; 40 FR 51168,
Nov. 3, 1975, as amended at 53 FR 26236, July 12, 1988]
Sec. 4b.10 Disclosure of record to person other than the individual to whom it pertains.
(a) The Department may disclose a record pertaining to an individual
to a person other than the individual to whom it pertains only in the
following instances:
(1) Upon written request by the individual, including authorization
under Sec. 4b.5(f);
(2) With the prior written consent of the individual;
(3) To a parent or legal guardian under 5 U.S.C. 552a(h);
(4) When required by the Act and not covered explicitly by the
provisions of 5 U.S.C. 552a(b); and
(5) When permitted under 5 U.S.C. 552a(b)(1) through (11), which
read as follows:1
---------------------------------------------------------------------------
15 U.S.C. 552a(b)(4) has no application within the Department.
---------------------------------------------------------------------------
(i) To those officers and employees of the agency which maintains
the record who have a need for the record in the performance of their
duties;
(ii) Required under section 552 of this title;
(iii) For a routine use as defined in paragraph (a)(7) of this
section and described under paragraph (e)(4)(D) of this section;
(iv) To the Bureau of the Census for purposes of planning or
carrying out a census or survey or related activity pursuant to the
provisions of Title 13;
(v) To a recipient who has provided the agency with advance adequate
written assurance that the record will be used solely as a statistical
research or reporting record, and the record is to be transferred in a
form that is not individually identifiable;
(vi) To the National Archives of the United States as a record which
has sufficient historical or other value to warrant its continued
preservation by the United States Government, or for evaluation by the
Administrator of General Services or his designee to determine whether
the record has such value;
(vii) To another agency or to an instrumentality of any governmental
jurisdiction within or under the control of the United States for a
civil or criminal law enforcement activity if
[[Page 65]]
the activity is authorized by law, and if the head of the agency or
instrumentality has made a written request to the agency which maintains
the record specifying the particular portion desired and the law
enforcement activity for which the record is sought;
(viii) To a person pursuant to a showing of compelling circumstances
affecting the health or safety of an individual if upon such disclosure
notification is transmitted to the last known address of such
individual;
(ix) To either House of Congress, or, to the extent of matter within
its jurisdiction, any committee or subcommittee thereof, any joint
committee of Congress or subcommittee of any such joint committee;
(x) To the Comptroller General, or any of his authorized
representatives, in the course of the performance of the duties of the
General Accounting Office; or
(xi) Pursuant to the order of a court of competent jurisdiction.
(b) The situations referred to in paragraph (a)(4) of this section
include the following:
(1) 5 U.S.C. 552a(c)(4) requires dissemination of a corrected or
amended record or notation of a disagreement statement by the Department
in certain circumstances;
(2) 5 U.S.C. 552a(d) requires disclosure of records to the
individual to whom they pertain, upon request;
(3) 5 U.S.C. 552a(g) authorizes civil action by an individual and
requires disclosure by the Department to the court;
(4) Section 5(e)(2) of the Act author-izes release of any records or
information by the Department to the Privacy Protection Study Commission
upon request of the Chairman; and
(5) Section 6 of the Act authorizes the Office of Management and
Budget to provide the Department with continuing oversight and
assistance in implementation of the Act.
(c) The Privacy Officer shall make an accounting of each disclosure
by him of any record contained in a system of records in accordance with
5 U.S.C. 552a(c) (1) and (2). Except for a disclosure made under 5
U.S.C. 552a(b)(7), the Privacy Officer shall make such accounting
available to any individual, insofar as it pertains to that individual,
on request submitted in accordance with Sec. 4b.4. The Privacy Officer
shall make reasonable efforts to notify any individual when any record
in a system of records is disclosed to any person under compulsory legal
process, promptly upon being informed that such process has become a
matter of public record.
Sec. 4b.11 Fees.
(a) The only fees to be charged to or collected from an individual
under the provisions of this part are for copying records at the request
of the individual.
(1) No fees shall be charged or collected for the following: Search
for and retrieval of the records; review of the records; copying at the
initiative of the Department without a request from the individual;
transportation of records and personnel; and first-class postage.
(2) It is the policy of the Department to provide an individual with
one copy of each record corrected or amended pursuant to his or her
request without charge as evidence of the correction or amendment.
(3) As required by the United States Civil Service Commission in its
published regulations implementing the Act, the Department will charge
no fee for a single copy of a personnel record covered by that
Commission's Government-wide published notice of systems of records.
(b) The copying fees prescribed by paragraph (a) of this section
are:
$0.07.. Each copy of each page, up to 8\1/2\'' x 14'', made by
photocopy or similar process.
$0.25.. Each copy of each microform frame printed on paper.
$0.25.. Each aperture card.
$0.25.. Each 105-mm fiche.
$7.00.. Each 100' roll of 35-mm microfilm.
$6.00.. Each 100' roll of 16-mm microfilm.
$0.20.. Each page of computer printout without regard to the number of
carbon copies concurrently printed.
Other copying forms (e.g., typing or printing) will be charged at direct
cost, including personnel and equipment costs.
(c) All copying fees shall be paid by the individual before the
copying will be undertaken. Payments shall be made in cash or,
preferably, by check or money order payable to ``U.S. Department of
Commerce,'' and they
[[Page 66]]
shall be paid or sent to the office stated in the billing notice, or if
none, to the Privacy Officer processing the request. Where appropriate,
payment may be required in the form of certified check.
(d) A copying fee totaling $1 or less shall be waived, but the
copying fees for contemporaneous requests by the same individual shall
be aggregated to determine the total fee.
A copying fee shall not be charged or collected, or alternatively, it
may be reduced, when it is determined by the Privacy Officer, based on a
petition therefor, that the petitioning individual is indigent and that
Department resources permit a waiver of all or part of the fee. An
individual is deemed to be indigent when without income or resources
sufficient to pay the fees.
(e) Special and additional services provided at the request of the
individual, such as certification or authentication, postal insurance
and special mailing arrangement costs, will be charged to the individual
in accordance with other published regulations of the Department
pursuant to statute (for example, 31 U.S.C. 483a).
(f) This section applies only to individuals making requests under
this part. To the extent an individual makes a request under the Freedom
of Information Act, as provided in Sec. 4b.1(e) (2), (3) and (5), the
fees provisions of this chapter shall apply. All other persons shall
remain subject to fees and charges prescribed by other and appropriate
authorities.
Sec. 4b.12 Penalties.
(a) The Act provides, in pertinent part:
Any person who knowingly and willfully requests or obtains any
record concerning an individual from an agency under false pretenses
shall be guilty of a misdemeanor and fined not more than $5,000. (5
U.S.C. 552a(i)(3)).
(b) A person who falsely or fraudulently attempts to obtain records
under the Act also may be subject to prosecution under such other
criminal statutes as 18 U.S.C. 494, 495 and 1001.
Sec. 4b.13 General exemptions.
(a) Individuals may not have access to records maintained by the
Department but which were provided by another agency which has
determined by regulation that such information is subject to general
exemption under 5 U.S.C. 552a(j). If such exempt records are within a
request for access, the Department will advise the individual of their
existence and of the name and address of the source agency. For any
further information concerning the record and the exemption, the
individual must contact that source agency.
(b) The general exemptions determined to be necessary and proper
with respect to systems of records maintained by the Department,
including the parts of each system to be exempted, the provisions of the
Act from which they are exempted, and the justification for the
exemption, are as follows:
(1) Individuals identified in Export Administration compliance
proceedings or investigations--COMMERCE/ITA-1. Pursuant to 5 U.S.C.
552a(j)(2), these records are hereby determined to be exempt from all
provisions of the Act, except 5 U.S.C. 552a (b), (c) (1) and (2), (e)(4)
(A) through (F), (e) (6), (7), (9), (10), and (11), and (i). These
exemptions are necessary to insure the proper functioning of the law
enforcement activity, to protect confidential sources of information, to
fulfill promises of confidentiality, to maintain the integrity of the
law enforcement process, to avoid premature disclosure of the knowledge
of criminal activity and the evidentiary bases of possible enforcement
actions, to prevent interference with law enforcement proceedings, to
avoid disclosure of investigative techniques, and to avoid the
endangering of law enforcement personnel. Section 7(c) of the Export
Adminstration Act of 1969, as amended, also protects this information
from disclosure.
(2) Fisheries Law Enforcement Case Files--COMMERCE/NOAA-11.
Pursuant to 5 U.S.C. 552a(j)(2), these records are hereby determined to
be exempt from all provisions of the Act, except 5 U.S.C. 552a (b), (c)
(1) and (2), (e) (4) (A) through (F), (e) (6), (7), (9), (10), and (11),
and (i). These exemptions are necessary to insure the proper functioning
[[Page 67]]
of the law enforcement activity, to protect confidential sources of
information, to fulfill promises of confidentiality, to prevent
interference with law enforcement proceedings, to avoid the disclosure
of investigative techniques, to avoid the endangering of law enforcement
personnel, to avoid premature disclosure of the knowledge of criminal
activity and the evidentiary bases of possible enforcement actions, and
to maintain the integrity of the law enforcement process.
(3) Investigative Records--Contract and Grant Frauds and Employee
Criminal Misconduct--COMMERCE/DEPT.-12. Pursuant to 5 U.S.C. 552a(j)(2),
these records are hereby determined to be exempt from all provisions of
the Act, except 5 U.S.C. 552a (b), (c) (1) and (2), (e)(4) (A) through
(F), (e) (6), (7), (9), (10), and (11), and (i). These exemptions are
necessary to insure the proper functions of the law enforcement
activity, to protect confidential sources of information, to fulfill
promises of confidentiality, to prevent interference with law
enforcement proceedings, to avoid the disclosure of investigative
techniques, to avoid the endangering of law enforcement personnel, to
avoid premature disclosure of the knowledge of criminal activity and the
evidentiary bases of possible enforcement actions, and to maintain the
integrity of the law enforcement process.
[40 FR 45621, Oct. 2, 1975; 40 FR 50662, Oct. 30, 1975; 40 FR 51168,
Nov. 3, 1975, as amended at 43 FR 43020, Sept. 22, 1978]
Sec. 4b.14 Specific exemptions.
(a) Some systems of records under the Act which are maintained by
the Department contain, from time to time, material subject to the
exemption appearing at 5 U.S.C. 552a(k)(1), relating to national defense
and foreign policy materials. The systems of records published in the
Federal Register by the Department which are within this exemption are:
COMMERCE/ITA-1, COMMERCE/ITA-2, COMMERCE/ITA-3, COMMERCE/NOAA-11,
COMMERCE/PAT-TM-4, COMMERCE/PAT-TM-6, COMMERCE/PAT-TM-7, COMMERCE/PAT-
TM-8, COMMERCE/PAT-TM-9, COMMERCE/DEPT-12, COMMERCE/DEPT-13, and
COMMERCE/DEPT-14.
The Department hereby asserts a claim to exemption of such materials
wherever they might appear in such systems of records, or any systems of
records, at present or in the future. The materials would be exempt from
5 U.S.C. 552a (c)(3), (d), (e)(1), (e)(4) (G), (H), and (I), and (f).
The reason therefor is to protect the materials required by Executive
order to be kept secret in the interest of the national defense and
foreign policy.
(b) The specific exemptions determined to be necessary and proper
with respect to systems of records maintained by the Department,
including the parts of each system to be exempted, the provisions of the
Act from which they are exempted, and the justification for the
exemption, are as follows:
(1) Exempt under 5 U.S.C. 552a(k)(1). The systems of records exempt
hereunder appear in paragraph (a) of this section. The claims for
exemption of COMMERCE/DEPT-12, COMMERCE/ITA-1, and COMMERCE/NOAA-11
under this paragraph are subject to the condition that the general
exemption claimed in Sec. 4b.13(b)(3) is held to be invalid.
(2) Exempt under 5 U.S.C. 552a(k)(2). The systems of records exempt
(some only conditionally), the sections of the Act from which exempted,
and the reasons therefor are as follows:
(i) Individuals identified in Export Administration compliance
proceedings or investigations--COMMERCE/ITA-1, but only on condition
that the general exemption claimed in Sec. 4b.13(b)(1) is held to be
invalid;
(ii) Individuals involved in export transactions--COMMERCE/ITA-2;
(iii) Fisheries Law Enforcement Case Files--COMMERCE/NOAA-11, but
only on condition that the general exemption claimed in Sec. 4b.13(b)(2)
is held to be invalid;
(iv) Investigative Records--Contract and Grant Frauds and Employee
Criminal Misconduct--COMMERCE/DEPT-12, but only on condition that the
general exemption claimed in Sec. 4b.13(b)(3) is held to be invalid;
(v) Investigative Records--Persons Within the Investigative
Jurisdiction of the Department--COMMERCE/DEPT-13;
[[Page 68]]
(vi) Litigation, Claims and Administrative Proceeding Records--
COMMERCE/DEPT-14; and
(vii) Non-Registered Persons Rendering Assistance to Patent
Applicants--COMMERCE/PAT-TM-5.
The foregoing are exempted from 5 U.S.C. 552a (c)(3), (d), (e)(1),
(e)(4)(G), (H), and (I), and (f). The reasons for asserting the
exemption are to prevent subjects of investigation from frustrating the
investigatory process, to insure the proper functioning and integrity of
law enforcement activities, to prevent disclosure of investigative
techniques, to maintain the ability to obtain necessary information, to
fulfill commitments made to sources to protect their identities and the
confidentiality of information and to avoid endangering these sources
and law enforcement personnel. Special note is taken of the fact that
the proviso clause in this exemption imports due process and procedural
protections for the individual. The existence and general character of
the information exempted will be made known to the individual to whom it
pertains.
(3) Exempt under 5 U.S.C. 552a(k) (4). The systems of records
exempt, the sections of the Act from which exempted, and the reasons
therefor are as follows:
(i) Agricultural Census Records for 1964 (partial), 1969, and 1974--
COMMERCE/CENSUS-1;
(ii) Individual and Household Statistical Surveys and Special Census
Studies Records--COMMERCE/CENSUS-3;
(iii) Minority-Owned Business Enterprises Survey Records--COMMERCE/
CENSUS-4;
(iv) Population and Housing Census Records for 1960 and 1970--
COMMERCE/CENSUS-5;
(v) Population Census Personal Service Records for 1900 and All
Subsequent Decennial Censuses--COMMERCE/CENSUS-6; and
(vi) Special Censuses of Population Conducted for State and Local
Government--COMMERCE/CENSUS-7.
The foregoing are exempted from 5 U.S.C. 552a(c)(3), (d), (e)(1),
(e)(4)(G) (H), and (I), and (f). The reasons for asserting the exemption
are to comply with the prescription of Title 13, United States Code,
especially sections 8 and 9 relating to prohibitions against disclosure,
and to avoid needless consideration of these records whose sole
statistical use comports fully with a basic purpose of the Act, namely,
no adverse determinations may be made from these records as to any
identifiable individual.
(4) Exempt under 5 U.S.C. 552a(k)(5). The systems of records exempt
(some only conditionally), the sections of the act from which exempted,
and the reasons therefor are as follows:
(i) Applications to U.S. Merchant Marine Academy (USMMA)--COMMERCE/
MA-1;
(ii) USMMA Midshipman Medical Files--COMMERCE/MA-17;
(iii) USMMA Midshipman Personnel Files--COMMERCE/MA-18;
(iv) USMMA Non-Appropriated fund Employees--COMMERCE/MA-19;
(v) Applicants for the NOAA Corps--COMMERCE/NOAA-4;
(vi) Commissioned Officer Official Personnel Folders--COMMERCE/NOAA-
7;
(vii) Conflict of Interest Records, Appointed Officials--COMMERCE/
DEPT-3;
(viii) Investigative Records--Contract and Grant Frauds and Employee
Criminal Misconduct--COMMERCE/DEPT-12, but only on condition that the
general exemption claimed in Sec. 4b.13(b)(3) is held to be invalid;
(ix) Investigative Records--Persons Within the Investigative
Jurisdiction of the Department--COMMERCE/DEPT-13; and
(x) Litigation, Claims, and Administrative Proceeding Records--
COMMERCE/DEPT-14.
The foregoing are exempted from 5 U.S.C. 552a (c)(3), (d), (e)(1),
(e)(4) (G), (H), and (I), and (f). The reasons for asserting the
exemption are to maintain the ability to obtain candid and necessary
information, to fulfill commitments made to sources to protect the
confidentiality of information, to avoid endangering these sources and,
ultimately, to facilitate proper selection or continuance of the best
applicants
[[Page 69]]
or persons for a given position or contract. Special note is made of the
limitation on the extent to which this exemption may be asserted. The
existence and general character of the information exempted will be made
known to the individual to whom it pertains.
(c) At the present time, the Department claims no exemption under 5
U.S.C. 552a(k) (3), (6) and (7).
[40 FR 45621, Oct. 2, 1975; 40 FR 50662, Oct. 30, 1975; 40 FR 51168,
Nov. 3, 1975, as amended at 43 FR 43021, Sept. 22, 1978]
Appendix A to Part 4b--Officials to Receive Inquiries, Requests for
Access and Requests for Correction or Amendment
------------------------------------------------------------------------
For records in systems of records located
in\1\-- Privacy officer
------------------------------------------------------------------------
The Office of the Secretary and all Chief, Information
departmental staff offices. Management Division, Room
6622, Herbert C. Hoover
Building, Washington, D.C.
20230.
Office of the Inspector General........... Counsel to the Inspector
General, Office of the
Inspector General, Room
7892, Herbert C. Hoover
Building, Washington, D.C.
20230.
Economic Affairs \2\...................... Privacy Act Officer, Office
of Administration, Economic
Affairs, Room 4079, Herbert
C. Hoover Building,
Washington, D.C. 20230.
Bureau of the Census...................... Associate Director for
Management Services, Bureau
of the Census, Room 2027,
Federal Building 3,
Washington, D.C. 20233.
Bureau of Export Administration........... Privacy Act Officer, Office
of Security and Management
Support, Bureau of Export
Administration, Room 3889,
Herbert C. Hoover Building,
Washington, DC 20230.
Economic Development Administration....... Assistant Chief Counsel,
Economic Development
Administration, Room 7001,
Herbert C. Hoover Building,
Washington, D.C. 20230.
International Trade Administration........ Privacy Act Officer, Office
of Organization and
Management Support,
International Trade
Administration, Room 4102,
Herbert C. Hoover Building,
Washington, D.C. 20230.
Minority Business Development Agency...... Assistant Director for
Operations, Minority
Business Development
Agency, Room 6723, Herbert
C. Hoover Building,
Washington, D.C. 20230.
National Institute of Standards & Deputy Director of
Technoloyy. Administration, National
Institute of Standards &
Technology, Room A1105,
Administration Building,
Washington, D.C. 20234.
National Oceanic and Atmospheric Director, Office of
Administration. Administration, National
Oceanic and Atmospheric
Administration, Room 1109,
Herbert C. Hoover Building,
Washington, D.C. 20230.
National Telecommunications and Director of Administration,
Information Administration. National Telecommunications
and Information
Administration, Room 4717,
Herbert C. Hoover Building,
Washington, D.C. 20230.
National Technical Information Service.... Manager, Management Analysis
Division, National
Technical Information
Service, Room 209, Forbes
Building, Springfield,
Virginia 22161.
Patent and Trademark Office............... Solicitor, Patent and
Trademark Office, Room
12C08 Gateway 2, Crystal
City, Virginia 20231.
United States Travel and Tourism Director, Office of
Administration. Management and
Administration, United
States Travel and Tourism
Administration, Room 1524,
Herbert C. Hoover Building,
Washington, D.C. 20230.
------------------------------------------------------------------------
\1\ If the location of the records within the Department is unknown,
address the inquiry to the Privacy Officer for the Office of the
Secretary.
\2\ Economic Affairs includes: Office of the Under Secretary for
Economic Affairs; Office of Chief Economist; Office of Strategic
Resources; Office of Business Analysis; Bureau of Economic Analysis.
The Bureau of the Census, and the National Technical Information
Service, which also fall organizationally under Economic Affairs, are
listed separately.
[51 FR 32207, Sept. 10, 1986, as amended at 53 FR 26236, July 12, 1988;
55 FR 38314, Sept. 18, 1990; 55 FR 38983, Sept. 24, 1990]
Appendix B to Part 4b--Systems of Records Noticed by Other Federal
Agencies and Applicable to Records of the Department and Applicability
of This Part Thereto
[See footnotes at end of table]
------------------------------------------------------------------------
Category of Records Other Federal agency
------------------------------------------------------------------------
Federal Personnel Records................. Office of Personnel
Management \1\
Federal Employee Compensation Act Program. Department of Labor.\2\
Equal Employment Opportunity Appeal Equal Employment Opportunity
Complaints. Commission.\3\
Formal Complaints/Appeals of Adverse Merit Systems Protection
Personnel Actions. Board.\4\
------------------------------------------------------------------------
\1\ The provisions of this part do not apply to these records covered by
notices of systems of records published by the Office of Personnel
Management for all agencies. The regulations of OPM alone apply.
\2\ The provisions of this part apply only initially to these records
covered by notices of systems of records published by the U.S.
Department of Labor for all agencies. The regulations of that
Department attach at the point of any denial for access or for
correction or amendment.
\3\ The provisions of this part do not apply to these records covered by
notices of systems of records published by the Equal Employment
Opportunity Commission for all agencies. The regulations of the
Commission alone apply.
[[Page 70]]
\4\ The provisions of this part do not apply to these records covered by
notices of systems of records published by the Merit Systems
Protection Board for all agencies. The regulations of the Board alone
apply.
[51 FR 32207, Sept. 10, 1986. Redesignated at 53 FR 26236, July 12,
1988]
[GRAPHIC] [TIFF OMITTED] TC15NO91.216
[[Page 71]]
[40 FR 45621, Oct. 2, 1975; 40 FR 50662, Oct. 30, 1975; 40 FR 51168,
Nov. 3, 1975. Redesignated at 53 FR 26236, July 12, 1988]
PART 5--OPERATION OF VENDING STANDS--Table of Contents
Sec.
5.1 Purpose.
5.2 Policy.
5.3 Assignment of functions and authorities.
5.4 Permits.
5.5 Vending machines.
5.6 Appeals.
5.7 Reports.
5.8 Approval of regulations.
Authority: Sec. 4, 68 Stat. 663; 20 U.S.C. 107.
Source: 28 FR 7772, July 31, 1963, unless otherwise noted.
Sec. 5.1 Purpose.
This part prescribes regulations to assure the granting of
preference to blind persons licensed under the provisions of the
Randolph-Sheppard Vending Stand Act (49 Stat. 1559, as amended by the
act of August 3, 1954, 68 Stat. 663; 20 U.S.C. 107) for the operation of
vending stands (which term as used in this order includes vending
machines).
Sec. 5.2 Policy.
(a) The Department adopts the Federal policy announced in the
Randolph-Sheppard Vending Stand Act, as amended, to provide blind
persons with remunerative employment to enlarge the economic
opportunities of the blind and to stimulate the blind to greater efforts
in striving to make themselves self-supporting.
(b) It shall be the policy of the Department to authorize blind
persons licensed under the provisions of the Randolph-Sheppard Vending
Stand Act, as amended to operate vending stands without any charge for
space or necessary utilities on properties owned and occupied by the
Department or on which the Department controls maintenance, operation,
and protection.
(c) The Department will cooperate with the Department of Education
and State licensing agencies in making surveys to determine whether and
where vending stands may be properly and profitably operated by licensed
blind persons.
(d) The application of a State licensing agency for a permit may be
denied or revoked if it is determined that the interests of the United
States would be adversely affected or the Department would be unduly
inconvenienced by the issuance of a permit or its continuance.
(e) Disagreements concerning the denial, revocation, or modification
of a permit may be appealed by the State licensing agency as set forth
in Sec. 5.6.
[28 FR 7772, July 31, 1963, as amended at 55 FR 53489, Dec. 31, 1990]
Sec. 5.3 Assignment of functions and authorities.
(a) The Director, Office of Administrative Services, shall carry out
the Department's responsibility to provide, in accordance with
applicable law and regulation, the maximum opportunity for qualified
blind persons to operate vending stands.
(b) Subject to instructions issued by the Director, Office of
Administrative Services, the head of each primary organization unit
shall be responsible for implementing this program within his area.
(c) The Director, Office of Administrative Services for the primary
organization units located in the main Commerce building and the head of
each other primary organization unit will make determinations with
respect to the terms of permits including the location and operation of
vending stands and machines in their respective areas.
(d) Unresolved differences and significant violations of the terms
of permits shall be reported to the State licensing agency. Where no
corrective action is forthcoming, the matter shall be referred to the
Office of Vocational Rehabilitation, Department of Education for
consideration prior to further action.
[28 FR 7772, July 31, 1963, as amended at 55 FR 53489, Dec. 31, 1990]
Sec. 5.4 Permits.
(a) No permit, lease, or other arrangement for the operation of a
vending stand on property under control of
[[Page 72]]
the Department shall be entered into or renewed without first consulting
the State licensing agency or equivalent authority.
(b) The permit shall be conditioned upon the vending stand meeting
specified standards, including standards relating to appearance, safety,
sanitation, maintenance, and efficiency of operation. Due regard shall
be given to laws and regulations for the public welfare which are
applicable, or would be applicable, if the property involved was not
owned or controlled by the Federal Government.
(c) The permit shall specify the types of articles specified in
section 2(a)(4) of the Act as amended (newspapers, periodicals,
confections, tobacco products, articles dispensed automatically or in
containers or wrappings in which they are placed before delivery to the
vending stand). Such other related articles as the State licensing
agency asks to be included shall be permitted to be sold, unless such
factors as inadequacy of available facilities, safety, health, public
welfare, or legal requirements demand otherwise.
(d) The permit shall contain a provision that alterations made by
other than the United States shall be approved by and conducted under
the supervision of an appropriate official of the Department or the
primary organization unit concerned.
(e) The permit may contain other reasonable conditions necessary for
the protection of the Government and prospective patrons of the stand.
(f) The permit shall describe the location of the stand proper and
the location of any vending machines which are operated in conjunction
with it.
Sec. 5.5 Vending machines.
(a) The income from any vending machines which are located within
reasonable proximity to and are in direct competition with a vending
stand for which a permit has been issued under these regulations shall
be assigned to the operator of such stand.
(b) If a vending machine vends articles of a type authorized by the
permit and is so located that it attracts customers who would otherwise
patronize the vending stand, such machine shall be deemed to be in
reasonable proximity to and direct competition with the stand.
Sec. 5.6 Appeals.
(a) In any instance where the Department of Commerce official as
provided in Sec. 5.3(c) and the State licensing agency fail to reach
agreement concerning the granting, revocation, or modification of a
permit, the location, method of operation, assignment of proceeds, or
other terms of a permit (including articles which may be sold), the
State licensing agency shall be notified in writing by the Commerce
official concerned that it has the right to appeal such disagreements,
within 30 days of the notice, to the Assistant Secretary for
Administration for investigation and final decision.
(b) Upon receipt of a timely appeal the Assistant Secretary for
Administration will cause a full investigation to be made. The State
licensing agency shall be given an opportunity to present information
pertinent to the facts and circumstances of the case. The complete
investigation report including the recommendations of the investigating
officer shall be submitted to the Assistant Secretary for Administration
within 60 days from the date of the appeal.
(c) The Assistant Secretary for Administration will render a final
decision on the appeal within 90 days of the date of appeal.
(d) The State licensing agency will be informed of the final
decision on its appeal. Copies of the decision will be forwarded to the
Department of Commerce official concerned and the Department of
Education.
[28 FR 7772, July 31, 1963, as amended at 55 FR 53489, Dec. 31, 1990]
Sec. 5.7 Reports.
No later than fifteen days following the end of each fiscal year the
responsible officials set forth in Sec. 5.3(c) shall forward to the
Director, Office of Administrative Services a report on activities under
this order. The report shall include:
(a) The number of applications, including requests for installations
initiated by the Department, for vending stands received from State
licensing agencies;
[[Page 73]]
(b) The number of such requests accepted or approved;
(c) The number denied, on which no appeal was made and the number
denied on which an appeal was made; and
(d) The number and status of any requests still pending.
Sec. 5.8 Approval of regulations.
The provisions of this part have been approved by the Director,
Bureau of the Budget, pursuant to Executive Order 10604, of April 22,
1955.
PART 6--CIVIL MONETARY PENALTY INFLATION ADJUSTMENTS--Table of Contents
Sec.
6.1 Definitions.
6.2 Purpose and scope.
6.3 Limitation on First Adjustments.
6.4 Adjustments to penalties.
6.5 Effective date of adjustments.
6.6 Subsequent adjustments.
Authority: Sec. 4, as amended, and sec. 5, Pub. L. 101-410, 104
Stat. 890 (28 U.S.C. 2461 note); Pub. L. 104-134, 110 Stat. 1321, 28
U.S.C. 2461 note.
Source: 61 FR 55093, Oct. 24, 1996, unless otherwise noted.
Sec. 6.1 Definitions.
As used in this part:
(a) Inflation Adjustment Act means the Federal Civil Penalties
Inflation Adjustment Act of 1990 (Pub. L. 101-410, October 5, 1990, 104
Stat. 890, 28 U.S.C. 2461 note).
(b) Improvement Act means the Debt Collection Improvement Act of
1996 (Public Law 104-134, April 26, 1996).
(c) Amended Section Four means section 4 of the Inflation Adjustment
Act, as amended by the Improvement Act.
(d) Section Five means section 5 of the Inflation Adjustment Act.
(e) Department means the Department of Commerce.
(f) Secretary means the Secretary of the Department of Commerce.
(g) First Adjustments means the inflation adjustments made by
Sec. 6.4 of this part which, as provided in Sec. 6.5 of this part, are
effective on October 23, 1996.
Sec. 6.2 Purpose and scope.
The purpose of this part is to make the inflation adjustment,
described in Section Five and required by Amended Section Four, of each
minimum and maximum civil monetary penalty provided by law within the
jurisdiction of the Department.
Sec. 6.3 Limitation on First Adjustments.
Each of the First Adjustments may not exceed ten percent (10%) of
the respective penalty being adjusted.
Sec. 6.4 Adjustments to penalties.
The civil monetary penalties provided by law within the jurisdiction
of the respective agencies or bureaus of the Department, as set forth
below in this section, are hereby adjusted in accordance with the
inflation adjustment procedures prescribed in Section Five, from the
amounts of such penalties in effect prior to October 23, 1996, to the
amounts of such penalties, as thus adjusted.
(a) Bureau of Export Administration.
(1) 50 U.S.C. app. 2410(c), Export Administration Act,1
Non-national security violation: from $10,000 to $11,000.
---------------------------------------------------------------------------
\1\ See E.O. 12851 (June 11, 1993).
---------------------------------------------------------------------------
(2) 50 U.S.C. app. 2410(c), Export Administration Act 1
and Section 38 Arms Export Control Act, National security violation:
from $100,000 to $110,000.
(3) 50 U.S.C. 1705(b), International Emergency Economic Powers Act,
as invoked by E.O. 12924 (August 19, 1994) and E.O. 12938 (November 14,
1994), Export Administration Regulation violation: from $10,000 to
$11,000.
(b) Economic Development Administration.
(1) 19 U.S.C. 2349, Trade Act of 1974, False statement, etc.: from
$5,000 to $5,500.
(2) 42 U.S.C. 3220(a), Public Works and Economic Development Act of
1965, False statement, etc.: from $10,000 to $11,000.
(3) 42 U.S.C. 3220(b), Public Works and Economic Development Act of
1965, Embezzlement, etc.: from $10,000 to $11,000.
(c) Economics and Statistics Administration (ESA)/Census.
(1) 13 U.S.C. 304, Delinquency on delayed filing of export
documentation: from $100 per/day (up to $1,000) to $110 per/day (up to
$1,100).
[[Page 74]]
(2) 13 U.S.C. 305, Collection of foreign trade statistics
violations: from $1,000 to $1,100.
(d) ESA/Bureau of Economic Analysis.
(1) 22 U.S.C. 3105(a), International Investment and Trade in
Services Act, Failure to furnish information: from a minimum of $2,500
to $2,750, and from a maximum of $25,000 to $27,500.
(2) [Reserved]
(e) Import Administration.
(1) 19 U.S.C. 81s, Foreign Trade Zone violation: from $1,000 to
$1,100.
(2) 19 U.S.C. 1677f(f)(4), North American Free Trade Agreement
Protective Order violation: from $100,000 to $110,000.
(f) National Oceanic and Atmospheric Administration.
(1) 15 U.S.C. 5623, Land Remote Sensing Policy Act of 1992
violation: from $10,000 to $10,900.
(2) 15 U.S.C. 5658, Land Remote Sensing Policy Act of 1992
violation: from $10,000 to $10,900.
(3) 16 U.S.C. 773f(3), Northern Pacific Halibut Act of 1982
violation: from $25,000 to $27,500.
(4) 16 U.S.C. 783, Sponge Act (1914), Violation involving catching
or taking within specific areas: from $500 to $550.
(5) 16 U.S.C. 957, Tuna Convention Act of 1950 (1962):
(i) Violation of Sec. 957(a) [Fine at Sec. 957(d)]: from $25,000 to
$27,500.
(A) Subsequent violation of section 957(a) [Fine at Sec. 957(d)]:
from $50,000 to $55,000.
(B) [Reserved]
(ii) Violation of section 957(b) [Fine at section 957(e)]: from
$1,000 to $1,100.
(A) Subsequent violation of Sec. 957(b) Fine at Sec. 957(e)]: from
$5,000 to $5,500.
(B) [Reserved]
(iii) Violation of section 957(c) [Fine at section 957(f)]: from
$100,000 to $110,000.
(6) 16 U.S.C. 971e(e), Atlantic Tunas Convention Act of 1975 (1995)
violation: from $100,000 to $100,000.
(7) 16 U.S.C. 972f(b), Eastern Pacific Tuna Licensing Act of 1984:
(i) Violation of section 972f(a)(1)-(3): from $25,000 to $27,500.
(A) Subsequent violation of Sec. 972f(a)(1)-(3): from $50,000 to
$55,000.
(B) [Reserved]
(ii) Violation of section 972f(a)(4)-(5): from $5,000 to $5,500.
(A) Subsequent violation of Sec. 972f(a)(4)-(5): from $5,000 to
$5,500.
(B) [Reserved]
(iii) Violation of section 972f(a)(6): from $100,000 to $110,000.
(8) 16 U.S.C. 973f(a), South Pacific Tuna Act of 1988 violation:
from $250,000 to $275,000.
(9) 16 U.S.C. 1375(a)(1), Marine Mammal Protection Act of 1972:
(i) Violation: from $10,000 to $11,000.
(ii) Knowing violation (1981): from $20,000 to $22,000.
(10) 16 U.S.C. 1437(c)(1), National Marine Sanctuaries Act (1992)
violation: from $100,000 to $109,000.
(11) 16 U.S.C. 1540(a)(1), Endangered Species Act of 1973:
(i) Knowing violations or engaged in business of section 1538
(a)(1)(A), (B), (C), (D), (E), or (F), (a)(2)(A), (B), (C), or (D), (c),
(d) (other than recordkeeping or filing reports), (f), or (g) (1988):
from $25,000 to $27,500.
(ii) Other knowing or business-related violations (1988): from
$12,000 to $13,200.
(iii) Otherwise (1978): from $500 to $550.
(12) 16 U.S.C. 1851 Note (Sec.5)(c)(1), Atlantic Striped Bass
Conservation Act (1984) violation: from $1,000 to $1,100.
(13) 16 U.S.C. 1858, Magnuson Fishery Conservation and Management
Act (1990): from $100,000 to $110,000.
(14) 16 U.S.C. 2437(a)(1), Antarctic Marine Living Resources
Convention Act (1984):
(i) Knowing violation: from $10,000 to $11,000.
(ii) Violation: from $5,000 to $5,500.
(15) 16 U.S.C. 3373(a), Lacey Act Amendments of 1981:
(i) Violations involving possession, sale, or transport of fish/
plants/wildlife (1981): from $10,000 to $11,000.
(ii) Marking violations of fish/plant/wildlife (1981): from $250 to
$275.
(iii) False labeling/knowingly (1988): from $10,000 to $11,000.
(16) 16 U.S.C. 3606, Atlantic Salmon Convention Act of 1982 (1990):
from $100,000 to $110,000.
(17) 16 U.S.C. 3637, Pacific Salmon Treaty Act of 1985 (1990): from
$100,000 to $110,000.
[[Page 75]]
(18) 30 U.S.C. 1462(a), Deep Seabed Hard Mineral Resources Act
(1980): from $25,000 to $27,500.
(19) 42 U.S.C. 9152(c)(1), Ocean Thermal Energy Conversion Act of
1980: from $25,000 to $27,500.
Sec. 6.5 Effective date of adjustments.
The First Adjustments made by Sec. 6.4 of this part, of the
penalties there specified, are effective on October 23, 1996, and said
penalties, as thus adjusted by the First Adjustments made by Sec. 6.4 of
this part, shall apply only to violations occurring after October 23,
1996, and before the effective date of any future inflation adjustment
thereto made subsequent to October 23, 1996, as provided in Sec. 6.6 of
this part. The penalties specified in Sec. 6.4 of this part which became
effective prior to October 23, 1996, shall, without any First
Adjustments thereto, apply only to violations occurring before October
24, 1996.
Sec. 6.6 Subsequent adjustments.
The Secretary or his or her designee by regulation shall, at least
once every four years after October 23, 1996, make the inflation
adjustment, described in Section Five and required by Amended Section
Four, of each civil monetary penalty provided by law and within the
jurisdiction of the Department.
PART 7 [RESERVED]
PART 8--NONDISCRIMINATION IN FEDERALLY-ASSISTED PROGRAMS OF THE DEPARTMENT OF COMMERCE--EFFECTUATION OF TITLE VI OF THE CIVIL RIGHTS ACT OF 1964--Table of Contents
Subpart A--General Provisions; Prohibitions: Nondiscrimination Clause;
Applicability to Programs
Sec.
8.1 Purpose.
8.2 Application of this part.
8.3 Definitions.
8.4 Discrimination prohibited.
8.5 Nondiscrimination clause.
8.6 Applicability of this part to Department assisted programs.
Subpart B--General Compliance
8.7 Cooperation, compliance reports and reviews and access to records.
8.8 Complaints.
8.9 Intimidatory or retaliatory acts prohibited.
8.10 Investigations.
8.11 Procedures for effecting compliance.
8.12 Hearings.
8.13 Decisions and notices.
8.14 Judicial review.
8.15 Effect on other laws; supplementary instructions; coordination.
Appendix A to Part 8--Programs Covered By Title VI
Authority: Sec. 602, Civil Rights Act of 1964 (42 U.S.C. 2000d-1).
Source: 38 FR 17938, July 5, 1973, unless otherwise noted.
Subpart A--General Provisions; Prohibitions: Nondiscrimination Clause;
Applicability to Programs
Sec. 8.1 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 ground of
race, color, or national origin, be excluded from participation in, be
denied the benefits of, or be otherwise subjected to discrimination
under any program receiving Federal financial assistance from the
Department of Commerce. This part is consistent with achievement of the
objectives of the statutes authorizing the financial assistance given by
the Department of Commerce as provided in section 602 of the Act.
Sec. 8.2 Application of this part.
(a) This part applies to any program for which Federal financial
assistance is authorized under a law administered by the Department,
including the federally assisted programs listed in Appendix A to this
part and as said Appendix may be amended. It applies to money paid,
property transferred, or other Federal financial assistance extended
under any such program after January 9, 1965, pursuant to an application
approved prior to such effective date.
[[Page 76]]
(b) This part does not apply to (1) any Federal financial assistance
by way of insurance or guaranty contracts, (2) money paid, property
transferred, or other assistance extended under any such program before
January 9, 1965, except where such assistance was subject to the title
VI regulations of this Department or of any other agency whose
responsibilities are now exercised by this Department, (3) any
assistance to any individual who is the ultimate beneficiary under any
such program, or (4) any employment practice, under any such program, of
any employer, employment agency, or labor organization except to the
extent described in Sec. 8.4(c). The fact that a program is not listed
in Appendix A shall not mean, if title VI of the Act is otherwise
applicable, that such program is not covered. Other programs under
statutes now in force or hereinafter enacted may be added to the list by
notice published in the Federal Register.
Sec. 8.3 Definitions.
(a) Department means the Department of Commerce, and includes each
and all of its operating and equivalent other units.
(b) Secretary means the Secretary of Commerce.
(c) 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 anyone of the foregoing.
(d) Person means an individual in the United States who is or is
eligible to be a participant in or an ultimate beneficiary of any
program which receives Federal financial assistance, and includes an
individual who is an owner or member of a firm, corporation, or other
business or organization which is or is eligible to be a participant in
or an ultimate beneficiary of such a program. Where a primary objective
of the Federal financial assistance to a program is to provide
employment, ``person'' includes employees or applicants for employment
of a recipient or other party subject to this part under such program.
(e) Responsible department official with respect to any program
receiving Federal financial assistance means the Secretary or other
official of the Department who by law or by delegation has the principal
authority within the Department for the administration of a law
extending such assistance. It also means any officials so designated by
due delegation of authority within the Department to act in such
capacity with regard to any program under this part.
(f) Federal financial assistance includes
(1) Grants, loans, or agreements for participation in loans, of
Federal funds,
(2) The grant or donation of Federal property or interests in
property,
(3) The sale or lease of, or the permission to use (on other than a
casual or transient basis), Federal property or any interest in such
property or in property in which the Federal Government has an interest,
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 or use by the recipient,
(4) Waiver of charges which would normally be made for the
furnishing of Government services,
(5) The detail of Federal personnel,
(6) Technical assistance, and
(7) Any Federal agreement, arrangement, contract, or other
instrument which has as one of its purposes the provision of assistance.
(g) Program includes any program, project, or activity for the
planning or provision of services, financial aid, property, other
benefits, or facilities for furnishing services, financial aid,
property, or other benefits, whether provided by the recipient or by
others through contracts or other arrangements with the recipient, with
the aid of Federal financial assistance, or with the aid of any non-
Federal funds, property, facilities or other resources which are
provided to meet the conditions under which Federal financial assistance
is extended or which utilizes federally assisted property, facilities or
resources.
[[Page 77]]
(h) Facility includes all or any portion of structures, equipment,
vessels, or other real or personal property or interests therein, and
the provision of facilities includes the construction, expansion,
renovation, remodeling, alteration, contract for use, or acquisition of
facilities.
(i) Recipient means any governmental, public or private agency,
institution, organization, or other entity, or any individual, who or
which is an applicant for Federal financial assistance, or to whom
Federal financial assistance is extended directly or through another
recipient for or in connection with any program. Recipient further
includes a subgrantee, an entity which leases or operates a facility for
or on behalf of a recipient, and any successors, assignees, or
transferees of any kind of the recipient, but does not include any
person who is an ultimate beneficiary under any program.
(j) Primary recipient means any recipient which is authorized or
required to extend or distribute Federal financial assistance to another
recipient for the purpose of carrying out a program.
(k) Applicant means one who submits an application, request, or plan
required to be approved by a responsible Department official, or by a
primary recipient, as a condition to eligibility for Federal financial
assistance, and ``application'' means such an application, request, or
plan.
(l) Other parties subject to this part includes any governmental,
public or private agency, institution, organization, or other entity, or
any individual, who or which, like a recipient, is not to engage in
discriminatory acts with respect to applicable persons covered by this
part, because of his or its direct or substantial participation in any
program, such as a contractor, subcontractor, provider of employment, or
user of facilities or services provided under any program.
Sec. 8.4 Discrimination prohibited.
(a) General. No person in the United States shall, on the ground of
race, color, or national origin be excluded from participation in, be
denied the benefits of, or be otherwise subjected to discrimination
under, any program to which this part applies.
(b) Specific discriminatory acts prohibited. (1) A recipient of
Federal financial assistance, or other party subject to this part under
any program to which this part applies, shall not participate, directly
or through contractual or other arrangements, in any act or course of
conduct which, on the ground of race, color, or national origin:
(i) Denies to a person any service, financial aid, or other benefit
provided under the program;
(ii) Provides any service, financial aid, or other benefit, to a
person which is different, or is provided in a different manner, from
that provided to others under the program;
(iii) Subjects a person to segregation or separate or other
discriminatory treatment in any matter related to his receipt (or
nonreceipt) of any such service, financial aid, property, or other
benefit under the program.
(iv) Restricts a person in any way in the enjoyment of services,
facilities, or any other advantage, privilege, property, or benefit
provided to others under the programs;
(v) Treats a person differently from others in determining whether
he satisfies any admission, enrollment, quota, eligibility, membership,
or other requirement or condition which persons must meet in order to be
provided any service, financial aid, or other benefit provided under the
program;
(vi) Denies a person an opportunity to participate in the program
through the provision of property or services or otherwise, or affords
him an opportunity to do so which is different from that afforded others
under the program (including the opportunity to participate in the
program as an employee but only to the extent set forth in paragraph (c)
of this section);
(vii) Denies a person the same opportunity or consideration given
others to be selected or retained or otherwise to participate as a
contractor, subcontractor, or subgrantee when a program is applicable
thereto;
(viii) Denies a person the opportunity to participate as a member of
a planning or advisory body which is an integral part of the program.
[[Page 78]]
(2) A recipient, or other party subject to this part under any
program, 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 persons to whom, or the situations in which, such
services, financial aid, other benefits, or facilities will be provided
under any such program, or the class of persons to be afforded an
opportunity to participate in any such program, shall not, directly or
through contractual or other arrangements, utilize criteria or methods
of administration which have the effect of subjecting persons to
discrimination because of their race, color, or national origin, or have
the effect of defeating or substantially impairing accomplishment of the
objectives of the program as respect any persons of a particular race,
color, or national origin.
(3) In determining the site or location of facilities, a recipient
or other party subject to this part may not make selections with the
purpose or effect of excluding persons from, denying them the benefits
of, or subjecting them to discrimination under any program to which this
part applies, on the grounds of race, color or national origin; or with
the purpose or effect of defeating or substantially impairing the
accomplishment of the objectives of the Act or this part.
(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 or made available in or through or utilizing 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)(i) In administering a program regarding which the recipient has
previously discriminated against persons on the ground of race, color,
or national origin, the recipient must take affirmative action to
overcome the effects of prior discrimination.
(ii) Even in the absence of such prior discrimination, a recipient
in administering a program may take affirmative action to overcome the
effects of conditions which resulted in limiting participation by
persons of a particular race, color or national origin.
(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 or other party subject to this part
shall not, directly or through contractual or other arrangements,
subject a person to discrimination on the ground of race, color, or
national origin in its employment practices under such program
(including recruitment or recruitment advertising, hiring, firing,
upgrading, promotion, demotion, transfer, layoff, termination, rates of
pay or other forms of compensation or benefits, selection for training
or apprenticeship, use of facilities, and treatment of employees). Such
recipients and other parties subject to this part shall take affirmative
action to ensure that applicants are employed, and employees are treated
during employment without regard to their race, color, or national
origin. Such recipients and other parties subject to this part shall, as
may be required by supplemental regulations, develop a written
affirmative action program. The requirements applicable to construction
employment under any such program shall be in addition to those
specified in or pursuant to Part III of Executive Order 11246 or any
Executive order which supersedes it. Federal financial assistance to
programs under laws funded or administered by the Department which has
as a primary objective the providing of employment include those set
forth in Appendix A II of this part.
(2) Where a primary objective of the Federal financial assistance to
a program to which this part applies 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 party subject to this
part, tends, on the grounds of race, color, or national origin, to
exclude persons from participating in, to deny them the benefits of, or
to subject them to discrimination
[[Page 79]]
under any such program, the provisions of paragraph (c)(1) of this
section shall apply to the employment practices of the recipient or
other party subject to this part, to the extent necessary to assure
equality of opportunity to, and nondiscriminatory treatment of such
persons.
[38 FR 17938, July 5, 1973; 38 FR 23777, Sept. 4, 1973]
Sec. 8.5 Nondiscrimination clause.
(a) Applicability. Every application for, and every grant, loan, or
contract authorizing approval of, Federal financial assistance to carry
out a program and to provide a facility subject to this part, and every
modification or amendment thereof, shall, as a condition to its approval
and to the extension of any Federal financial assistance pursuant
thereto, contain or be accompanied by an assurance that the program will
be conducted in compliance with all requirements imposed by or pursuant
to this part. The assurances shall be set forth in a nondiscrimination
clause. The responsible Department official shall specify the form and
contents of the nondiscrimination clause for each program as
appropriate.
(b) Contents. Without limiting its scope or language in any way, a
nondiscrimination clause shall contain, where determined to be
appropriate, and in an appropriate form, reference to the following
assurances, undertakings, and other provisions:
(1) That the recipient or other party subject to this part will not
participate directly or indirectly in the discrimination prohibited by
Sec. 8.4, including employment practices when a program covering such is
involved.
(2) That when employment practices are covered, the recipient or
other party subject to this part will (i) in all solicitations or
advertisements for employees placed by or for the recipient, state that
qualified applicants will receive consideration for employment without
regard to race, color, or national origin; (ii) notify each labor union
or representative of workers with which it has a collective bargaining
agreement or other contract or understanding of the recipient's
commitments under this section; (iii) post the nondiscrimination clause
and the notice to labor unions in conspicuous places available to
employees and applicants for employment; and (iv) otherwise comply with
the requirements of Sec. 8.4(c).
(3) That in a program involving continuing Federal financial
assistance, the recipient thereunder (i) will state that the program is
(or, in the case of a new program, will be) conducted in compliance with
all requirements imposed by or pursuant to this part, and (ii) will
provide for such methods of administration for the program as are found
by the responsible Department official to give reasonable assurance that
all recipients of Federal financial assistance under such program and
any other parties connected therewith subject to this part will comply
with all requirements imposed by or pursuant to this part.
(4) That the recipient agrees to secure the compliance or to
cooperate actively with the Department to secure the compliance by
others with this part and the nondiscrimination clause as may be
directed under an applicable program. For instance, the recipient may be
requested by the responsible Department official to undertake and agree
(i) to obtain or enforce or to assist and cooperate actively with the
responsible Department official in obtaining or enforcing, the
compliance of other recipients or of other parties subject to this part
with the nondiscrimination required by this part; (ii) to insert
appropriate nondiscrimination clauses in the respective contracts with
or grants to such parties; (iii) to obtain and to furnish to the
responsible Department official such information as he may require for
the supervision or securing of such compliance; (iv) to carry out
sanctions for noncompliance with the obligations imposed upon recipients
and other parties subject to this part; and (v) to comply with such
additional provisions as the responsible Department official deems
appropriate to establish and protect the interests of the United States
in the enforcement of these obligations. In the event that the
cooperating recipient becomes involved in litigation with a noncomplying
party
[[Page 80]]
as a result of such departmental direction, the cooperating recipient
may request the Department to enter into such litigation to protect the
interests of the United States.
(5) In the case of real property, structures or improvements
thereon, or interests therein, which are acquired for a program
receiving Federal financial assistance, or in the case where Federal
financial assistance is provided in the form of a transfer of real
property 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, or for as long as the recipient retains
ownership or possession of the property, whichever, is longer. Where no
transfer of property is involved, but property is improved with Federal
financial assistance, the recipient shall agree to include such a
covenant in any subsequent transfer of such property. Where the property
is obtained from the Federal Government, such covenant may also include
a condition coupled with a right to be reserved by the Department to
revert title to the property in the event of a breach of the covenant
where, in the discretion of the responsible Department official, such a
condition and right of reverter is appropriate to the program under
which the real property is obtained and to the nature of the grant and
the grantee. In such event if a transferee of real property proposes to
mortgage or otherwise encumber the real property as security for
financing construction of new, or improvement of existing facilities on
such property for the purposes for which the property was transferred,
the responsible Department official may agree, upon request of the
transferee and if necessary to accomplish such financing, and upon such
conditions as he deems appropriate to forebear the exercise of such
right to revert title for so long as the lien of such mortgage or other
encumbrance remains effective.
(6) In programs receiving Federal financial assistance in the form,
or for the acquisition, of real property or an interest in real property
to the extent that rights to space on, over, or under any such property
are included as part of the program receiving such assistance the
nondiscrimination requirements of this part shall extend to any facility
located wholly or in part in such space.
(7) That a recipient shall not take action that is calculated to
bring about indirectly what this part forbids it to accomplish directly.
(8) Provisions specifying the extent to which like assurances will
be required of subgrantees, contractors and subcontractors, lessees,
transferees, successors in interest, and other participants in the
program.
(9) Provisions which give the United States a right to seek judicial
enforcement of the assurances.
(10) In the case where any assurances are required from an academic,
a medical care, detention or correctional, or any other institution or
facility, insofar as the assurances relate to the institution's
practices with respect to the admission, care, or other treatment of
persons by the institution or with respect to the opportunity of persons
to participate in the receiving or providing of services, treatment, or
benefits, such assurances shall be applicable to the entire institution
or facility. That requirement may be waived by the responsible
Department official if the party furnishing the assurances establishes
to the satisfaction of the responsible Department official that the
practices in designated parts or programs of the institution or facility
will in no way affect its practices in the program of the institution or
facility for which Federal financial assistance is or is sought to be
provided, or affect the beneficiaries of or participants in such
program. If in any such case the assistance is or is sought for the
construction of a facility or part of a facility, the assurances shall
in any event extend to the entire facility and to facilities operated in
connection therewith.
(11) In the case where the Federal financial assistance is in the
form of or to aid in the acquisition of personal
[[Page 81]]
property, or real property or interest therein or structures thereon,
the assurance shall obligate the recipients, 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 or
transferee retains ownership or possession of the property, whichever is
longer. In the case of any other type or form of assistance, the
assurances shall be in effect for the duration of the period during
which Federal financial assistance is extended to the program.
[38 FR 17938, July 5, 1973; 38 FR 23777, Sept. 4, 1973]
Sec. 8.6 Applicability of this part to Department assisted programs.
The following examples illustrate the applicability of this part to
programs which receive or may receive Federal financial assistance
administered by the Department. The fact that a particular program is
not listed does not indicate that it is not covered by this part, The
discrimination referred to is that described in Sec. 8.4 against persons
on the ground of race, color, or national origin.
(a) Assistance to support economic development programs.
Discrimination in which recipients and other parties subject to this
part shall not engage, directly or indirectly, includes discrimination
in
(1) The letting of contracts or other arrangements for the planning,
designing, engineering, acquisition, construction, rehabilitation,
conversion, enlargement, installation, occupancy, use, maintenance,
leasing, subleasing, sales, or other utilization or disposition of
property or facilities purchased or financed in whole or in part with
the aid of Federal financial assistance;
(2) The acquisition of goods or services, or the production,
preparation, manufacture, marketing, transportation, or distribution of
goods or services in connection with a program or its operations;
(3) The onsite operation of the project or facilities;
(4) Services or accommodations offered to the public in connection
with the program; and
(5) In employment practices in connection with or which affect the
program (as defined in Sec. 8.4(c)); in the following programs:
(i) Any program receiving Federal financial assistance for the
purchase or development of land and facilities (including machinery and
equipment) for industrial or commercial usage.
(ii) Any program receiving Federal financial assistance in the form
of loans or direct or supplementary grants for the acquisition or
development of land and improvements for public works, public service or
development facility usage, and the acquisition, construction,
rehabilitation, alteration, expansion, or improvement of such
facilities, including related machinery and equipment.
(iii) In any program receiving any form of technical assistance
designed to alleviate or prevent conditions of excessive employment or
underemployment.
(iv) In any program receiving Federal financial assistance in the
form of administrative expense grants.
(b) Assistance to support the training of students. A current
example of such assistance is that received by State maritime academies
or colleges, by contract, of facilities (vessels), related equipment and
funds to train merchant marine officers. In this and other student
training programs, discrimination which is prohibited by recipients and
other parties subject to this part includes discrimination in the
selection of persons to be trained and in their treatment by the
recipients in any aspect of the educational process and discipline
during their training, or in the availability or use of any academic,
housing, eating, recreational, or other facilities and services, or in
financial assistance to students furnished or controlled by the
recipients or incidental to the program. In any case where selection of
trainees is made from a predetermined group, such as the students in an
institution or area, the group must be selected without discrimination.
[[Page 82]]
(c) Assistance to support mobile or other trade fairs. In programs
in which operators of mobile trade fairs using U.S. flag vessels and
aircraft and designed to exhibit and sell U.S. products abroad, or in
which other trade fairs or exhibitions, receive technical and financial
assistance, discrimination which is prohibited by recipients and other
parties subject to this part includes discrimination in the selection or
retention of any actual or potential exhibitors, or in access to or use
of the services or accommodations by, or otherwise with respect to
treatment of, exhibitors or their owners, officers, employees, or
agents.
(d) Assistance to support business entities eligible for trade
adjustment assistance. In programs in which eligible business entities
receive any measure or kind of technical, financial or tax adjustment
assistance because of or in connection with the impact of U.S.
international trade upon such business, discrimination which is
prohibited by recipients and other parties subject to this part includes
discrimination in their employment practices as defined in Sec. 8.4(c).
(e) Assistance to support research and development and related
activities. In programs in which individuals, educational or other
institutions, public governmental or business entities receive Federal
financial assistance in order to encourage or foster research or
development activities as such, or to obtain, promote, develop, or
protect thereby technical, scientific, environmental, or other
information, products, facilities, resources, or services which are to
be made available to or used by others; but where such programs do not
constitute Government procurement of property or services,
discrimination which is prohibited by recipients and other parties
subject to this part includes discrimination with respect to (1) the
choice, retention or treatment of contractors, subcontractors,
subgrantees or of any other person; (2) the provision of services,
facilities, or financial aid; (3) the participation of any party in the
research activities; (4) the dissemination to or use by any person of
the results or benefits of the research or development, whether in the
form of information, products, services, facilities, resources, or
otherwise. If research is performed within an educational institution
under which it is expected that students or others will participate in
the research as a part of their experience or training, on a compensated
or uncompensated basis, there shall be no discrimination in admission of
students to, or in their treatment by, that part of the school from
which such students are drawn or in the selection otherwise of trainees
or participants. The recipient educational institutions will be required
to give the assurances provided in Sec. 8.5(b)(10).
(f) Assistance to aid in the operations of vessels engaged in U.S.
foreign commerce. In programs in which the operators of American-flag
vessels used to furnish shipping services in the foreign commerce of the
United States receive Federal financial assistance in the form of
operating differential subsidies, discrimination which is prohibited by
recipients and other parties subject to this part includes
discrimination in soliciting, accepting or serving in any way passengers
or shippers of cargo entitled to protection in the United States under
the Act.
Subpart B--General Compliance
Sec. 8.7 Cooperation, compliance reports and reviews and access to records.
(a) Cooperation and assistance. Each responsible Department official
shall to the fullest extent practicable seek the cooperation of
recipients and other parties subject to this part in obtaining
compliance with this part and shall provide assistance and guidance to
recipients and other parties to help them comply voluntarily with this
part.
(b) Compliance reports. Each recipient and other party subject to
this part shall keep such records and submit to the responsible
Department official timely, complete, and accurate compliance reports at
such times and in such form and containing such information as the
responsible Department official may determine to be necessary to enable
him to ascertain whether the recipient or such other party has complied
or is complying with this part. In general, recipients should have
available for the department racial and ethnic data showing the extent
to which
[[Page 83]]
members of minority groups are beneficiaries of federally assisted
programs. In the case of any program under which a primary recipient
extends Federal financial assistance to any other recipient, or under
which a recipient is obligated to obtain or to cooperate in obtaining
the compliance of other parties subject to this part, such other
recipients or other parties shall also submit such compliance reports to
the primary recipient or recipients as may be necessary to enable them
to carry out their obligations under this part.
(c) Access to sources of information. Each recipient or other party
subject to this part shall permit access by the responsible Department
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 or other party is in the
exclusive possession of another who fails or refuses to furnish this
information, the recipient or other party 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 or
other party subject to this part shall make available to participants,
beneficiaries, and other interested persons such information regarding
the provisions of this part and its applicability to the program under
which the recipient receives Federal financial assistance, and make such
information available to them in such manner as this part and the
responsible Department official finds necessary to apprise such persons
of the protections against discrimination assured them by the Act and
this part.
(e) Compliance review. The responsible Department official or his
designee shall from time to time review the practices of recipients and
other parties subject to this part to determine whether they are
complying with this part.
Sec. 8.8 Complaints.
(a) Filing complaints. Any person who believes himself or any
specific class of persons to be subjected to discrimination prohibited
by this part may by himself or by a representative file with the
responsible Department official a written complaint. A complaint shall
be filed not later than 180 days from the date of the alleged
discrimination, unless the time for filing is extended by the
responsible Department official.
[Reserved]
Sec. 8.9 Intimidatory or retaliatory acts prohibited.
(a) No recipient or other party subject to this part shall
intimidate, threaten, coerce, or discriminate against, any person for
the purpose of interfering with any right or privilege secured by
section 601 of the Act of this part, or because the person has made a
complaint, testified, assisted, or participated in any manner in an
investigation, proceeding, or hearing under this part.
(b) 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 or
other proceeding arising thereunder.
Sec. 8.10 Investigations.
(a) Making the investigation. The responsible Department official or
his designee will make a prompt investigation whenever a compliance
review, report, complaint, or any other information indicates a possible
failure to comply with this part. The investigation shall include, where
appropriate, a review of the pertinent practices and policies of the
recipient or other party subject to this part, the circumstances under
which the possible noncompliance with this part occurred, and other
factors relevant to a determination as to whether there has been a
failure to comply with this part.
(b) Resolution of matters. (1) If an investigation pursuant to
paragraph (a) of this section indicates a failure to comply with this
part, the responsible Department official will so inform the recipient
or other party subject to this part 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,
[[Page 84]]
action will be taken as provided for in Sec. 8.11.
(2) If an investigation does not warrant action pursuant to
paragraph (b)(1) of this section, the responsible Department official
will so inform the recipient or other party subject to this part and the
complainant, if any, in writing.
Sec. 8.11 Procedures 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
contractural undertaking, and (2) any applicable proceeding under State
or local law.
(b) Noncompliance with Sec. 8.5. If a recipient or other party
subject to this part fails or refuses to furnish an assurance required
under Sec. 8.5 or otherwise fails or refuses to comply with a
requirement imposed by or pursuant to that section, Federal financial
assistance may be refused in accordance with the procedures of paragraph
(c) of this section. The Department shall not be required to provide
assistance in such a case during the pendency of the administrative
proceedings under said paragraph except that the Department shall
continue assistance during the pendency of such proceedings where such
assistance is due and payable pursuant to an application or contract
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 Department official has advised the recipient
or other party subject to this part of his failure to comply and has
determined that compliance cannot be secured by voluntary means, (2)
there has been an express finding on the record, after opportunity for
hearing, of a failure by such recipient or other party to comply with a
requirement imposed by or pursuant to this part, (3) the action has been
approved by the Secretary pursuant to Sec. 8.13(e), and (4) the
expiration of 30 days after the Secretary has filed with the committee
of the House and the committee of the Senate having legislative
jurisdiction over the program involved, a full written report of the
circumstances and the grounds for such action. 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 recipient or other party 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 Department official has determined that compliance cannot be
secured by voluntary means, (2) the recipient or other party 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 10 days from the
mailing of such notice to the recipient or other party. During this
period of at least 10 days additional efforts shall be made to persuade
the recipient or other party to comply with this part and to take such
corrective action as may be appropriate.
Sec. 8.12 Hearings.
(a) Opportunity for hearing. Whenever an opportunity for a hearing
is required by Sec. 8.11(c), reasonable notice shall be given by
registered or certified mail, return receipt requested, to the affected
recipient or other party subject to this part. This notice shall advise
the recipient or other party of the action proposed to be taken, the
specific provision under which the proposed action against it is to be
taken,
[[Page 85]]
and the matters of fact or law asserted as the basis for this action,
and either (1) fix a date not less than 20 days after the date of such
notice within which the recipient or other party may request of the
responsible Department official that the matter be scheduled for
hearing, or (2) advise the recipient or other party 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. A recipient or other party may waive a hearing
and submit written information and argument for the record. The failure
of a recipient or other party to request a hearing under this paragraph
of this section 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. 8.11(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 Department in Washington, D.C., at a time fixed by the
responsible Department official or hearing officer unless he determines
that the convenience of the recipient or other party or of the
Department requires that another place be selected. Hearings shall be
held before the responsible Department official, or at his discretion,
before a hearing officer.
(c) Right to counsel. In all proceedings under this section, the
recipient or other party and the Department 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. 554-557 (sections 5-8 of the Administrative Procedures Act),
and in accordance with such rules of procedure as are proper (and not
inconsistent with this section) relating to the conduct of the hearing,
giving of notices subsequent to those provided for in paragraph (a) of
this section, taking of testimony, exhibits, arguments and briefs,
requests for findings, and other related matters. Both the Department
and the recipient or other party 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 programs to which this part applies, or
noncompliance with this part and the regulations of one or more other
Federal departments or agencies issued under Title VI of the Act, the
Secretary may, by agreement with such other departments or agencies
where applicable, provide for the conduct of consolidated or joint
hearings and for the application to such hearings of rules of procedures
not inconsistent with this part. Final decisions in such cases, insofar
as this part is concerned, shall be made in accordance with Sec. 8.13.
Sec. 8.13 Decisions and notices.
(a) Decision by person other than the responsible Department
official. If the hearing is held by a hearing officer such hearing
officer shall either make an initial decision, if so authorized, or
certify the entire record including his recommended findings and
proposed decision to the responsible Department official for a final
decision, and a copy of such initial decision or certification
[[Page 86]]
shall be mailed to the recipient or other party subject to this part.
Where the initial decision is made by the hearing officer, the recipient
or other party may within 30 days of the mailing of such notice of
initial decision file with the responsible Department official his
exceptions to the initial decision, with his reasons therefor. In the
absence of exceptions, the responsible Department official may on his
own motion within 45 days after the initial decision serve on the
recipient or other party a notice that he will review the decision. Upon
the filing of such exceptions or of such notice of review, the
responsible Department 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 Department
official.
(b) Decisions on record or review by the responsible Department
official. Whenever a record is certified to the responsible Department
official for decision or he reviews the decision of a hearing officer
pursuant to paragraph (a) of this section, or whenever the responsible
Department official conducts the hearing, the recipient or other party
shall be given reasonable opportunity to file with him briefs or other
written statements of its contentions, and a copy of the final decision
of the responsible Department official shall be given in writing to the
recipient or other party and to the complainant, if any.
(c) Decisions on record where a hearing is waived. Whenever a
hearing is waived pursuant to Sec. 8.12(a) a decision shall be made by
the responsible departmental official on the record and a copy of such
decision shall be given in writing to the recipient or other party, and
to the complainant, if any.
(d) Ruling required. Each decision of a hearing officer or
responsible Department official shall set forth his ruling on each
finding, conclusion, or exception presented, and shall identify the
requirement or requirements imposed by or pursuant to this part with
which it is found that the recipient or other party has failed to
comply.
(e) Approval by Secretary. Any final decision of a responsible
Department official (other than the Secretary) 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 of the Act, shall promptly be transmitted to
the Secretary, 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, under the program involved, and may
contain such terms, conditions, and other provisions as are consistent
with and will effectuate the purposes of the Act and this part,
including provisions designed to assure that no Federal financial
assistance will thereafter be extended under such program to the
recipient or other party 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 Department
official that it will fully comply with this part.
(g) Posttermination proceedings. (1) Any recipient or other party
which is adversely affected by an order issued under paragraph (f) of
this section shall be restored to full eligibility to receive Federal
financial assistance if it satisfies the terms and conditions of that
order for such eligibility or if it brings itself into compliance with
this part and provides reasonable assurance that it will fully comply
with this part.
(2) Any recipient or other party adversely affected by an order
entered pursuant to paragraph (f) of this section may at any time
request the responsible Department official to restore fully its
eligibility to receive Federal financial assistance. Any such request
shall be supported by information showing that the recipient or other
party has met the requirements of paragraph (g)(1) of this section. If
the responsible Department official determines that those requirements
have been satisfied, he shall restore such eligibility.
[[Page 87]]
(3) If the responsible Department official denies any such request,
the recipient or other party 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 Department official. The recipient or other party 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.
Sec. 8.14 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. 8.15 Effect on other laws; supplementary instructions; coordination.
(a) Effect on other laws. All regulations, orders, or like
directions heretofore issued by any officer of the Department which
impose requirements designed to prohibit any discrimination against
individuals on the ground of race, color, or national origin under any
program to which this part applies, and which authorizes the suspension
or termination of or refusal to grant or to continue Federal financial
assistance to any recipient or other party subject to this part of such
assistance under such program for failure to comply with such
requirements, are hereby superseded to the extent that such
discrimination is prohibited by this part, except that nothing in this
part shall be deemed to relieve any one of any obligations assumed or
imposed under any such superseded regulation, order, instruction, or
like direction prior to January 9, 1965. Nothing in this part, however,
shall be deemed to supersede any of the following (including future
amendments thereof):
(1) Executive Order 11246 and regulations issued thereunder, or
(2) Executive Order 11063 and regulations issued thereunder, or any
other regulations or instructions, insofar as such order, 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 Department official
shall issue and promptly make available to interested parties 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 Secretary may from time to
time assign to officials of the Department, or to officials of other
departments or agencies of the Government with the consent of such
departments or agencies, responsibilities in connection with the
effectuation of the purposes of title VI of the Act and this part (other
than responsibility for final decision as provided in Sec. 8.13),
including the achievement of effective coordination and maximum
uniformity within the Department and within the executive branch of the
government in the application of title VI and this part to similar
programs and in similar situations. Any action taken, determination
made, or requirement imposed by an official of another Department or
agency acting pursuant to an assignment of responsibility under this
paragraph shall have the same effect as though such action had been
taken by the responsible official of this Department.
Appendix A to Part 8--Programs Covered by Title VI
i. federal financial assistance to which title 15, subtitle a, part 8
applies
Economic Development Administration
1. Loans, grants, technical and other assistance for public works
and development facilities, for supplementing Federal grants-in-aid, for
private businesses, and for other purposes, including assistance in
connection with designated economic development districts and regions
(Public Works and Economic Development Act of 1965, as amended, 42
U.S.C. 3121 et seq.).
2. Financial and technical assistance to firms to aid economic
adjustment to the effects of increased imports in direct competition
with firm products (Trade Act of 1974, 19 U.S.C. 2341-2354).
[[Page 88]]
3. Assistance to communities adversely affected by increased imports
in direct competition with products manufactured in the community area
(Trade Act of 1974, 19 U.S.C. 2371-2374).
4. Assistance to projects involving construction of local and State
public facilities in order to reduce unemployment and provide State and
local governments with badly needed public facilities (Local Public
Works Capital Development and Assistance Act of 1976, 42 U.S.C. 6701-
6710).
5. Trade adjustment assistance: Loans, dissemination of technical
information (title II of the Trade Act of 1974, 19 U.S.C. 2341-2374).
Maritime Administration
1. Operating differential subsidy assistance to operators of U.S.
flag vessels engaged in U.S. foreign commerce (46 U.S.C. 1171 et seq.).
2. Assistance to operate State maritime academies and colleges to
train merchant marine officers (46 U.S.C. 1381-1388).
3. Ship construction differential subsidies, direct payments
(Merchant Marine Act of 1936, as amended, 46 U.S.C. 1151-1161).
National Bureau of Standards
1. Grants to universities and other research organizations for fire
research and safety programs (15 U.S.C. 278f).
National Fire Prevention and Control Administration
1. Academy planning assistance: To assist States in the development
of training and education in the fire prevention and control area (15
U.S.C. 2201-2219).
2. State fire incident reporting assistance: To assist States in the
establishment and operation of a statewide fire incident and casualty
reporting system (15 U.S.C. 2201-2219).
3. Public education assistance planning: Publications, audiovisual
presentations and demonstrations, research, testing, and experimentation
to determine the most effective means for such public education (15
U.S.C. 2205c).
4. Policy development assistance: Studies of the operations and
management aspects of fire services (15 U.S.C. 2207c).
National Oceanic and Atmospheric Administration
1. Assistance to States, educational institutions, and the
commercial fishing industry for the development of tuna and other latent
fisheries (16 U.S.C. 758e).
2. Assistance to States for the development and implementation of
programs to protect and study certain species of marine mammals (16
U.S.C. 1379b).
3. Financial assistance to States with agencies which have entered
into a cooperative agreement to assist in the preservation of threatened
and endangered species (16 U.S.C. 1535).
4. Assistance to coastal States for the development of estuarine
sanctuaries to serve as field laboratories and for acquiring access to
public beaches (16 U.S.C. 1461).
5. Assistance to coastal States for the development, implementation,
and administration of coastal zone management programs (16 U.S.C. 1454-
1455).
6. Assistance to coastal States to help communities in dealing with
the economic, social, and environmental consequences resulting from
expanded coastal energy activity (16 U.S.C. 1456).
7. Authority to enter into cooperative agreements with ``colleges
and universities, with game and fish departments of the several States,
and with nonprofit organizations relating to cooperative research
units.'' Assistance limited to assignment of personnel, supplies, and
incidental expenses (16 U.S.C. 753 a and b).
8. Grants for education and training of personnel in the field of
commercial fishing, ``to public and nonprofit private universities and
colleges * * *'' (16 U.S.C. 760d).
9. Grants for ``office and any other necessary space'' for the
Northern Pacific Halibut Commission (16 U.S.C. 772).
10. The ``Dingell Johnson Act'': Apportionment of dollars to States
for restoration and management of sport or recreational species (16
U.S.C. 777-777i; 777k).
11. Authority to cooperate with and provide assistance to States in
controlling jellyfish, etc. (16 U.S.C. 1201, 1202).
12. Authority to cooperate with and provide assistance to certain
States and territories in the study and control of ``Crown of Thorns''
starfish (16 U.S.C. 1211-1213).
13. Technical assistance to fishing cooperatives regarding catching
and marketing aquatic products (15 U.S.C. 521-522).
14. Fish research and experimentation program cooperation with other
agencies in acquisition of lands, construction of buildings, employment
of personnel in establishing and maintaining research stations (16
U.S.C. 778a).
15. Assistance to upgrade commercial fishing vessels and gear (16
U.S.C. 742c).
16. Assistance to State projects designed for the research and
development of commercial fisheries resources of the nation (16 U.S.C.
779a-779f).
17. Assistance to State and other non-Federal interests under
cooperative agreements to conserve, develop, and enhance anadromous and
Great Lakes Fisheries (16 U.S.C. 757a et seq.).
18. Grants and other assistance under the National Sea Grant College
and Program Act of 1966: To support establishment of major university
centers for marine research, education, training, and advisory services
(33 U.S.C. 1121-1124).
[[Page 89]]
19. Geodetic surveys and services; advisory services; dissemination
of technical information (33 U.S.C. 883a).
20. Nautical charts assistance; advisory services; dissemination of
technical information (33 U.S.C. 883a).
21. River and flood forecast and warning services; advisory services
(15 U.S.C. 313).
22. Weather forecast and warning services (15 U.S.C. 311 and 313, 49
U.S.C. 1351 and 1463).
23. Commercial fisheries disaster assistance (16 U.S.C. 779b).
24. Provision for the Weather Service to assist in joint projects
``of mutual interest'' (15 U.S.C. 1525).
National Telecommunications and Information Administration
1. Grants for the planning and construction of public
telecommunications facilities for the production and distribution of
noncommercial educational and cultural radio and television programming
and related instructional and informational materials. (Public
Telecommunications Financing Act of 1978, 47 U.S.C. Sections 390-394).
Office of Minority Business Enterprise
1. Assistance to minority business enterprises: Grants, contracts,
advisory service, technical information (15 U.S.C. 1512; title III of
the Public Works and Economic Development Act of 1965, as amended, 42
U.S.C. 3151; Executive Order 11625, Oct. 13, 1971).
Regional Action Planning Commissions
1. Supplemental grants to Federal grant-in-aid programs and
technical assistance funds for planning, investigations, studies,
training programs, and demonstration projects, including demonstrations
in energy, transportation, health and nutrition, education and
indigenous arts and crafts (title V of the Public Works and Economic
Development Act of 1965, as amended, 42 U.S.C. 3181-3196).
United States Travel Service
1. Assistance to strengthen the domestic and foreign commerce of the
United States, and to promote friendly understanding and appreciation of
the United States by encouraging foreign residents to visit the United
States (22 U.S.C. 2121 et seq.).
Departmentwide
1. Authority to make basis scientific research grants (42 U.S.C.
1891-1893; to be superseded no later than Feb. 3, 1979, by the Federal
Grant and Cooperative Agreement Act of 1977, Pub. L. 95-224).
ii. a primary objective of the financial assistance authorized by the
following statutes, already listed above in appendix ai, is to provide
employment
1. Public Works and Economic Development Act of 1965, as amended (42
U.S.C. 3121 et seq.).
2. Trade Act of 1974 (19 U.S.C. 2341-2354).
3. Local Public Works Capital Development and Assistance Act of 1976
(42 U.S.C. 6701-6710)
[43 FR 49303, Oct. 23, 1978, as amended at 44 FR 12642, Mar. 8, 1979]
PART 8a [RESERVED]
PART 8b--PROHIBITION OF DISCRIMINATION AGAINST THE HANDICAPPED IN FEDERALLY ASSISTED PROGRAMS OPERATED BY THE DEPARTMENT OF COMMERCE--Table of Contents
Subpart A--General Provisions
Sec.
8b.1 Purpose.
8b.2 Application.
8b.3 Definitions.
8b.4 Discrimination prohibited.
8b.5 Assurances required.
8b.6 Remedial action, voluntary action, and self-evaluation.
8b.7 Designation of responsible employee and adoption of grievance
procedures.
8b.8 Notice.
8b.9 Administrative requirements for small recipients.
8b.10 Effect of state or local law or other requirements and effect of
employment opportunities.
Subpart B--Employment Practices
8b.11 Discrimination prohibited.
8b.12 Reasonable accommodation.
8b.13 Employment criteria.
8b.14 Preemployment inquiries.
8b.15 Employment on ships.
Subpart C--Program Accessibility
8b.16 Discrimination prohibited.
8b.17 Existing facilities.
8b.18 New construction.
Subpart D--Post Secondary Education
8b.19 Application of this subpart.
8b.20 Admission and recruitment.
8b.21 Treatment of students.
8b.22 Academic adjustments.
8b.23 Housing provided by the recipient.
[[Page 90]]
8b.24 Financial and employment assistance to students.
8b.25 Nonacademic services.
Subpart E--Procedures
8b.26 Procedures.
Authority: 29 U.S.C. 794.
Source: 47 FR 17746, Apr. 23, 1982, unless otherwise noted.
Subpart A--General Provisions
Sec. 8b.1 Purpose.
Section 504 of the Rehabilitation Act of 1973, as amended, prohibits
discrimination on the basis of handicap in any program or activity
receiving or benefiting from Federal financial assistance. The purpose
of this part is to implement section 504 with respect to programs and
activities receiving or benefiting from Federal financial assistance
from the Department of Commerce.
Sec. 8b.2 Application.
This part applies to each recipient of Federal financial assistance
from the Department of Commerce and to each program receiving or
benefiting from such assistance. The requirements of this part do not
apply to the ultimate beneficiaries of Federal financial assistance in
the program receiving Federal financial assistance.
Sec. 8b.3 Definitions.
As used in this part, the term:
(a) The Act means the Rehabilitation Act of 1973, Pub. L. 93-112, as
amended by the Rehabilitation Act Amendments of 1974, Pub. L. 93-516,
and by the Rehabilitation, Comprehensive Services, and Developmental
Disabilities Amendments of 1978, Pub. L. 95-602 (codified at 29 U.S.C.
794 (1976 & Supp. II 1978)).
(b) Applicant for assistance means one who submits an application,
request, or plan required to be approved by a Department official or by
a recipient as a condition to becoming a recipient.
(c) Department means the Department of Commerce and any of its
constituent units authorized to provide Federal financial assistance.
(d) Facility means all or any portion of buildings, ships,
structures, equipment, roads, walks, parking lots, industrial parks, or
other real or personal property or interest in such property.
(e) Federal financial assistance means any grant, loan, contract
(other than a procurement contract or a contract of insurance or
guarantee), or any other arrangement by which the Department 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.
(f) Handicap means any condition or characteristic that renders a
person a handicapped person as defined in paragraph (g) of this section.
(g) Handicapped person--(1) Handicapped person means any person 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) For purposes of employment, the term ``handicapped person'' does
not include any person who is an alcoholic or drug abuser whose current
use of alcohol or drugs prevents that individual from performing the
duties of the job in question, or whose employment, because of current
alcohol or drug abuse, would constitute a direct threat to property or
to the safety of others.
(3) As used in paragraph (g)(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;
[[Page 91]]
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;
(C) 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, drug addiction and alcoholism.
(ii) Major life activities means functions such as caring for one's
self, performing manual tasks, walking, seeing, hearing, speaking,
breathing, learning, working, and receiving education or vocational
training.
(iii) Has a record of such an impairment means that the individual
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 that the individual:
(A) Has a physical or mental impairment that does not substantially
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 (g)(3)(i) of
this section, but is treated by a recipient as having such an
impairment.
(h) Qualified handicapped person means:
(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 post secondary 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;
(3) With respect to other services, a handicapped person who meets
the essential eligibility requirements for the receipt of such services.
(i) Recipient means any State or its political subdivisions, any
instrumentality of a State or its political subdivisions, any public or
private agency, institution, organization, or other entity, or any
person to which Federal financial assistance is extended directly or
indirectly through another recipient, or including any successor,
assignee, or transferee of a recipient, but excluding the ultimate
beneficiary of the assistance.
(j) Secretary means the Secretary of Commerce, U.S. Department of
Commerce.
(k) Section 504 means section 504 of the Act.
(l) Small recipient means a recipient who serves fewer than 15
beneficiaries and who employs fewer than 15 employees at all times
during a grant year.
Sec. 8b.4 Discrimination prohibited.
(a) General. No qualified handicapped individual 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 that receives or benefits from Federal financial assistance.
(b) Discriminatory actions prohibited. (1) A recipient, in providing
any aid, benefit, or service, may not, directly or through contractual,
licensing, or other arrangements, on the basis of handicap:
(i) Deny a qualified handicapped individual the opportunity to
participate in or benefit from the aid, benefit, or service;
(ii) Afford a qualified handicapped individual 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 individual with any 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 individuals or to any class of handicapped individuals,
unless such action
[[Page 92]]
is necessary to provide qualified handicapped individuals with aid,
benefits, or services that are as effective as those provided to others;
(v) Aid or perpetuate discrimination against a qualified handicapped
individual 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;
(vi) Deny a qualified handicapped individual the opportunity to
participate as a member of planning or advisory boards; or
(vii) Otherwise limit a qualified handicapped individual in the
enjoyment of any right, privilege, advantage, or opportunity enjoyed by
others receiving any aid, benefits, or services.
(2) For purposes of this part, aid, benefits, and services must
afford handicapped individuals an equal opportunity to obtain the same
result, to gain the same benefit, or to reach the same level of
achievement as afforded to others, in the most integrated setting
appropriate to the individual's needs. However, aid, benefits and
services, to be equally effective, need not produce the identical result
or level of achievement for handicapped and nonhandicapped individuals.
(3) A recipient may not deny a qualified handicapped individual the
opportunity to participate in its regular programs or activities,
despite the existence of separate or different programs or activities
which are established in accordance with this part.
(4) A recipient may not, directly or through contractual or other
arrangements, use criteria or methods of administration:
(i) That have the effect of subjecting qualified handicapped
individuals 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
with respect to handicapped individuals; 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 geographic site or location of a facility, an
applicant for assistance or a recipient may not make selections:
(i) That have the effect of excluding handicapped individuals from,
denying them the benefit of, or otherwise subjecting them to
discrimination under any program or activity that receives or benefits
from 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 handicapped individuals.
(6) As used in this section, the aid, benefit, or service provided
under a program or activity receiving or benefiting from Federal
financial assistance includes any aid, benefit, or service provided in
or through a facility that has been constructed, expanded, altered,
leased, rented or otherwise acquired, in whole or in part, with Federal
financial assistance.
(7)(i) In providing services under programs of Federal financial
assistance, recipients to which this subpart applies, except small
recipients, shall ensure that no handicapped participant is denied the
benefits of, excluded from participation in, or otherwise subjected to
discrimination under the program or activity operated by the recipient
because of the absence of auxiliary aids for participants with impaired
sensory, manual or speaking skills. A recipient shall operate each
program or activity to which this subpart applies so that, when viewed
in its entirety, auxiliary aids are readily available. The Secretary may
require small recipients to provide auxiliary aids in order to ensure
that no handicapped participant is denied the benefits of, excluded from
participation in, or otherwise subjected to discrimination under the
program or activity operated by small recipients, when this would not
significantly impair the ability of the small recipient to provide
benefits or services.
(ii) Auxiliary aids may include brailled and taped materials,
interpreters, telecommunications devices, or other equally effective
methods of making orally delivered information
[[Page 93]]
available to persons with hearing impairments, readers for persons with
visual impairments, equipment adapted for use by persons with manual
impairments, and other similar devices and actions. Recipients need not
provide attendants, individually prescribed devices, readers for
personal use or study, or other devices or services of a personal
nature.
(c) Programs limited by Federal law. The exclusion of non-
handicapped persons from the benefits of a program limited by Federal
statute or Executive order to handicapped individuals, or the exclusion
of a specific class of handicapped individuals from a program limited by
Federal statute or Executive order to a different class of handicapped
individuals is not prohibited by this part.
(d) Integrated setting. Recipients shall administer programs and
activities in the most integrated setting appropriate to the needs of
qualified handicapped individuals.
(e) Communications with individuals with impaired vision and
hearing. Recipients shall ensure that communications with their
applicants, employees and beneficiaries are available to persons with
impaired vision or hearing. Appropriate modes of communication may
include braille, enlarged type, sign language and telecommunications
devices.
Sec. 8b.5 Assurances required.
(a) Assurances. An applicant for Federal financial assistance for a
program or activity to which this part applies shall submit an
assurance, on a form specified by the Secretary, that the program will
be operated in compliance with this part. An applicant may incorporate
these assurances by reference in subsequent applications to the
Department.
(b) Duration of obligation. (1) In the case of Federal financial
assistance extended in the form of 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 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 or
the federally-funded program is operated, whichever is longer.
(c) Covenants. (1) Where Federal financial assistance is provided in
the form of real property or interest in the property from the
Department, the instrument effecting or recording this transfer shall
contain a covenant running with the land to assure 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.
(2) Where no transfer or property is involved but property is
purchased or improved with Federal financial assistance, the recipient
shall agree to include the covenant described in paragraph (c)(1) of
this section in the instrument effecting or recording any subsequent
transferee of the property.
(3) Where Federal financial assistance is provided in the form of
real property or interest in the property from the Department, the
covenant shall also include a condition coupled with a right to be
reserved by the Department to revert title to the property in the event
of a breach of the covenant. If a transferee of real property proposed
to mortgage or otherwise encumber the real property as security to
finance construction of new, or improvement of existing, facilities on
the property for the purposes for which the property was transferred,
the Secretary may agree to forbear the exercise of such right to revert
title for so long as the lien of such mortgage or other encumbrance
remains effective. Such an agreement by the Secretary may be entered
into only upon the request of the transferee (recipient) if it is
necessary to accomplish such financing and upon such terms and
conditions as the Secretary deems appropriate.
[[Page 94]]
(d) Interagency agreements. Where funds are granted by the
Department to another Federal agency to carry out a program under a law
administered by the Department, and where the grant obligates the
recipient agency to comply with the rules and regulations of the
Department applicable to that grant the provisions of this part shall
apply to programs and activities operated with such funds.
Sec. 8b.6 Remedial action, voluntary action, and self-evaluation.
(a) Remedial action. (1) If the Secretary 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 Secretary 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 Secretary, where appropriate, may require either or
both recipients to take remedial action.
(3) The Secretary 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 individuals who would have been
participants in the program had the discrimination not occurred; and
(ii) With respect to handicapped persons who are no longer
participants in the recipient's program, but who were participants in
the program when the discrimination occurred; and
(iii) with respect to employees and applicants for employment.
(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 individuals.
(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 individuals or organizations representing handicapped
individuals, 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 individuals or organizations representing handicapped
individuals, any policies and practices that do not meet the
requirements of this part; and
(iii) Take, after consultation with interested persons, including
handicapped individuals or organizations representing handicapped
individuals, appropriate remedial steps to eliminate the effects of any
discrimination that resulted from adherence to these policies and
practices.
(2) A recipient, other than a small recipient, 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 Secretary upon request:
(i) A list of the interested persons consulted;
(ii) A description of areas examined and any problems identified;
and
(iii) A description of any modifications made and of any remedial
steps taken.
(3) The Secretary may, as he or she deems necessary, direct
recipients to conduct additional self-evaluations, in accordance with
the requirements of paragraph (c)(1) of this section.
(Approved by the Office of Management and Budget under control number
0605-0006)
[47 FR 17746, Apr. 23, 1982, as amended at 47 FR 35472, Aug. 16, 1982]
Sec. 8b.7 Designation of responsible employee and adoption of grievance procedures.
(a) Designation of responsible employee. A recipient, other than a
small recipient, shall designate at least one person to coordinate its
efforts to comply with this part.
(b) Adoption of grievance procedures. A recipient, other than a
small recipient, 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
[[Page 95]]
not be established with respect to complaints from applicants for
employment or from applicants for admission to post secondary
educational institutions.
Sec. 8b.8 Notice.
(a) A recipient, other than a small recipient, shall take
appropriate initial and continuing steps to notify participants,
beneficiaries, applicants 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 of this part. The notification shall state, where
appropriate, that the recipient does not discriminate in the admission
or access to, or treatment or employment in, its programs and
activities. The notification shall also include an identification of the
responsible employee designated pursuant to Sec. 8b.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, publications
in newspapers and magazines, placement of notices in recipient's
publications, and distribution of memoranda or other written
communication. A recipient shall take appropriate steps to ensure that
notice is available to persons with impaired vision or hearing.
(b) If a recipient publishes or uses recruitment materials or
publications containing general information made 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.
Sec. 8b.9 Administrative requirements for small recipients.
The Secretary may require small recipients to comply with Secs. 8b.7
and 8b.8, in whole or in part, when the Secretary finds a violation of
this part or finds that such compliance will not significantly impair
the ability of the small recipient to provide benefits or services.
Sec. 8b.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 individuals to
receive services, participate in programs, or 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 individuals than
for nonhandicapped persons.
Subpart B--Employment Practices
Sec. 8b.11 Discrimination prohibited.
(a) General. (1) No qualified handicapped individual shall, on the
basis of handicap, be subjected to discrimination in employment under
any program or activity that receives or benefits from Federal financial
assistance.
(2) 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 limit, segregate, or classify applicants or employees in any way
that adversely affects their opportunities or status because of
handicap.
(3) 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
apprenticeship programs.
[[Page 96]]
(b) Specific activities. The prohibition against discrimination in
employment applies to the following activities:
(1) Recruitment, advertising and the processing of applicants 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; pension or other benefit the applicant or employee
receives from any other source.
Sec. 8b.12 Reasonable accommodation.
(a) A recipient shall make reasonable accommodation to the known
physical or metal 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.
(b) Reasonable accommodation may include:
(1) Making the facilities used by the employees in the area where
the program is conducted, including common areas used by all employees
such as hallways, restrooms, cafeterias and lounges, readily accessible
to and usable by handicapped persons; and
(2) Job restructuring, part-time or modified work schedules,
acquisition or modification of 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, factors to be considered include:
(1) The overall size of the recipient's program with respect to
number of employees, number of participants, 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.
(e) Nothing in this paragraph shall relieve a recipient of its
obligation to make its program accessible as required in subpart C of
this part, or to provide auxiliary aids, as required by Sec. 8b.4(b)(7).
Sec. 8b.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
individuals or any class of handicapped individuals 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 individuals are not shown by
the Secretary to be available.
(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 to reflect the applicant's or
employee's job skills aptitude, or whatever 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. 8b.14 Preemployment inquiries.
(a) Except as provided in paragraphs (b) and (c) of this section, a
recipient may not conduct preemployment inquiry of an applicant for
employment as to whether the applicant is a handicapped individual, 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. 8b.6(a), when a
recipient is taking voluntary action to overcome the effects
[[Page 97]]
of conditions that resulted in limited participation in this federally
assisted program or activity pursuant to Sec. 8b.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 employees are subject 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:
(1) Employing officials may obtain the information after making a
conditional decision to make a job offer to the applicant or the
applicant was placed conditionally in a job pool or placed conditionally
on an eligibility list;
(2) Supervisors and managers may be informed regarding restrictions
on the work or duties of qualified handicapped individuals and regarding
necessary accommodations;
(3) First aid and safety personnel may be informed, where
appropriate, if the condition might require emergency treatment; and
(4) Government officials investigating compliance with the Act shall
be provided information upon request.
Sec. 8b.15 Employment on ships.
No qualified handicapped individual possessing an appropriate
license or certificate obtained from the United States Coast Guard
pursuant to the requirements of 46 CFR 10.01-1 et seq. and 12.01-1 et
seq. shall, on the basis of handicap, be subjected to discrimination in
employment on ships under any program or activity to which this part
applies.
Subpart C--Program Accessibility
Sec. 8b.16 Discrimination prohibited.
No qualified handicapped individual shall, because a recipient's
facilities are inaccessible to or unusable by handicapped individuals,
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. 8b.17 Existing facilities.
(a) Program accessibility. A recipient shall operate each program or
activity to which this part applies so that the program or activity,
when viewed in its entirety, is readily accessible to qualified
handicapped individuals. 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 individuals. However,
if a particular program is available in only one location, that site
must be made accessible or the program must be made available at an
alternative accessible site or sites. Program accessibility requires
nonpersonal aids to make the program accessible to mobility impaired
persons.
(b) Methods. A recipient may comply with the requirements of
paragraph (a) of this section through such means as redesign of
equipment, reassignment of classes or other services to accessible
[[Page 98]]
buildings, assignment of aides to beneficiaries, home visits, delivery
of services at alternate accessible sites, alteration of existing
facilities and construction of new facilities in conformance with the
requirement of Sec. 8b.19, or any other method that results in making
its program or activity accessible to handicapped individuals. 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 offer programs and
activities to handicapped individuals in the most integrated setting
appropriate.
(c) If a small recipient finds, after consultation with a qualified
handicapped individual 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 or facility, the small
recipient may, as an alternative, refer the qualified handicapped
individual to other providers of those services that are accessible at
no additional cost to the handicapped.
(d) Time period. A recipient shall comply with the requirement of
paragraph (a) of this section within 60 days of the effective date of
this part. 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 handicapped persons or
organizations representing 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 individuals;
(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 program accessibility and, if the time period of the transition
plan is longer than one year, identify the steps 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 usable by
qualified handicapped individuals.
(Approved by the Office of Management and Budget under control number
0605-0006)
[47 FR 17746, Apr. 23, 1982, as amended at 47 FR 35472, Aug. 16, 1982]
Sec. 8b.18 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
individuals, 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 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 individuals.
(c) Conformance with Uniform Federal Accessibility Standards. (1)
Effective as of August 17, 1990, design, construction, or alteration of
buildings in conformance with sections 3-8 of the Uniform Federal
Accessibility Standards (UFAS) (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
[[Page 99]]
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 17746, Apr. 23, 1982, as amended at 55 FR 29320, Jul. 18, 1990]
Subpart D--Post Secondary Education
Sec. 8b.19 Application of this subpart.
Subpart D applies to post secondary education programs and
activities, including post secondary vocational education programs and
activities, that receive or benefit from Federal financial assistance
for the operation of, such programs or activities.
Sec. 8b.20 Admission and recruitment.
(a) General. Qualified handicapped 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 individuals who may be admitted; and
(2) May not make use of any test or criterion for admission that has
a disproportionate, adverse effect on handicapped individuals or any
class of handicapped individuals 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 Secretary to be available.
(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 of 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 individuals; and
(4) Except as provided in paragraph (c) of this section, may not
make pre-admission inquiry as to whether an applicant for admission is a
handicapped individual but, after admission, may make inquiries on a
confidential basis as to handicaps that may require accommodation.
(c) Pre-admission inquiry exception. When a recipient is taking
remedial action to correct the effects of past discrimination pursuant
to Sec. 8b.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. 8b.6(b), 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
[[Page 100]]
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. 8b.21 Treatment of students.
(a) General. 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 post secondary education program or activity
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, education
programs or activities 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 or
study, or other part of its education program or activity.
(d) A recipient to which this subpart applies shall operate its
programs and activities in the most integrated setting appropriate.
Sec. 8b.22 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, against a
qualified handicapped applicant or student. Academic requirements that
the recipient can demonstrate are essential to the program of
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 student's academic achievement in its program,
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 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. A recipient shall operate
each program or activity to which this subpart applies so that, when
viewed in its entirety, auxiliary aids are readily available.
(2) Auxiliary aids may include taped text, interpreters or other
effective methods of making orally delivered materials available to
students with
[[Page 101]]
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 attendants, individually prescribed devices, readers for
personal use or study, or other devices or services of a personal
nature.
Sec. 8b.23 Housing provided by the recipient.
(a) 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
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. 8b.24 Financial and employment assistance to students.
(a) Provision of financial assistance. (1) In providing financial
assistance to qualified handicapped individuals, 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 individuals 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, trust, bequest, 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 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 assists any agency, organization, or person in providing employment
opportunities to any of its students shall assure itself that such
employment opportunities, as a whole, are made available in a manner
that would not violate subpart B if they were provided by the recipient.
(c) Employment of student by recipients. A recipient that employs
any of its students may not do so in a manner that violates subpart B.
Sec. 8b.25 Nonacademic services.
(a) Physical education and athletics. (1) In providing physical
education courses and athletics and similar programs and activities 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 of differentiation is consistent with the requirements of
Sec. 8b.22(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
[[Page 102]]
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.
Subpart E--Procedures
Sec. 8b.26 Procedures.
The enforcement provisions applicable to Title VI of the Civil
Rights Act of 1964 found at Secs. 8.7 through 8.15 of this subtitle
shall apply to this part.
PART 8c--ENFORCEMENT OF NONDISCRIMINATION ON THE BASIS OF HANDICAP IN PROGRAMS OR ACTIVITIES CONDUCTED BY THE DEPARTMENT OF COMMERCE--Table of Contents
Sec.
8c.1 Purpose.
8c.2 Application.
8c.3 Definitions.
8c.4--8c.9 [Reserved]
8c.10 Self-evaluation.
8c.11 Notice.
8c.12--8c.29 [Reserved]
8c.30 General prohibitions against discrimination.
8c.31--8c.39 [Reserved]
8c.40 Employment.
8c.41--8c.48 [Reserved]
8c.49 Program accessibility: Discrimination prohibited.
8c.50 Program accessibility: Existing facilities.
8c.51 Program accessibility: New construction and alterations.
8c.52--8c.59 [Reserved]
8c.60 Communications.
8c.61--8c.69 [Reserved]
8c.70 Compliance procedures.
Authority: 29 U.S.C 794.
Source: 53 FR 19277, May 27, 1988, unless otherwise noted.
Sec. 8c.1 Purpose.
This part effectuates section 119 of the Rehabilitation,
Comprehensive Services, and Developmental Disabilities Amendments of
1978, which amended section 504 of the Rehabilitation Act of 1973 to
prohibit discrimination on the basis of handicap in programs or
activities conducted by Executive agencies or the United States Postal
Service.
Sec. 8c.2 Application.
This part applies to all programs or activities conducted by the
agency except for programs or activities conducted outside the United
States that do not involve individuals with handicaps in the United
States.
Sec. 8c.3 Definitions.
For purposes of this part, the term--
Agency means the Department of Commerce.
Assistant Attorney General means the Assistant Attorney General,
Civil Rights Division, United States Department of Justice.
Auxiliary aids means services or devices that enable persons with
impaired sensory, manual, or speaking skills to have an equal
opportunity to participate in, and enjoy the benefits of, programs or
activities conducted by the agency. For example, auxiliary aids useful
for persons with impaired vision include readers, Brailled materials,
audio recordings, and other similar services and devices. Auxiliary aids
useful for persons with impaired hearing include telephone handset
amplifiers, telephones compatible with hearing aids, telecommunication
devices for deaf persons (TDD's), interpreters, notetakers, written
materials, and other similar services and devices.
Complete complaint means a written statement that contains the
complainant's name and address and describes the agency's alleged
discriminatory action in sufficient detail to inform the agency of the
nature and date of the alleged violation of section 504. It shall be
signed by the complainant or by someone authorized to do so on his or
her behalf. Complaints filed on behalf of classes or third parties shall
describe or identify (by name, if possible) the alleged victims of
discrimination.
Facility means all or any portion of buildings, structures,
equipment, roads, walks, parking lots, rolling stock or other
conveyances, or other real or personal property.
[[Page 103]]
Individual with handicaps means any person who has a physical or
mental impairment that substantially limits one or more major life
activities, has a record of such an impairment, or is regarded as having
such an impairment. As used in this definition, the phrase:
(1) ``Physical or mental impairment'' includes--
(i) Any physiological disorder or condition, cosmetic disfigurement,
or anatomical loss affecting one or more of the following body systems:
Neurological; musculoskeletal; special sense organs; respiratory,
including speech organs; cardiovascular; reproductive; digestive;
genitourinary; hemic and lymphatic; skin; and endocrine; or
(ii) Any mental or psychological disorder, such as mental
retardation, organic brain syndrome, emotional or mental illness, and
specific learning disabilities. The term ``physical or mental
impairment'' includes, but is not limited to, such diseases and
conditions as orthopedic, visual, speech, and hearing impairments,
cerebral palsy, epilepsy, muscular dystrophy, multiple sclerosis,
cancer, heart disease, diabetes, mental retardation, emotional illness,
and drug addiction and alcoholism
(2) ``Major life activities'' includes functions such as caring for
one's self, performing manual tasks, walking, seeing, hearing, speaking,
breathing, learning, and working.
(3) ``Has a record of such an impairment'' means has a history of,
or has been misclassified as having, a mental or physical impairment
that substantially limits one or more major life activities.
(4) ``Is regarded as having an impairment'' means--
(i) Has a physical or mental impairment that does not substantially
limit major life activities but is treated by the agency as constituting
such a limitation;
(ii) Has a physical or mental impairment that substantially limits
major life activities only as a result of the attitudes of others
towards such impairment; or
(iii) Has none of the impairments defined in subparagraph (1) of
this definition but is treated by the agency as having such an
impairment.
Qualified individual with handicaps means--
(1) With respect to any agency program or activity under which a
person is required to perform services or to achieve a level of
accomplishment, an individual with handicaps who meets the essential
eligibility requirements and who can achieve the purpose of the program
or activity without modifications in the program or activity that the
agency can demonstrate would result in a fundamental alteration in its
nature;
(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. 8c.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);
the Rehabilitation, Comprehensive Services, and Developmental
Disabilities Amendments of 1978) Pub. L. 95-602, 92 Stat. 2955); and the
Rehabilitation Act Amendments of 1986 (Pub. L. 99-506, 100 Stat. 1810).
As used in this part, section 504 applies only to programs or activities
conducted by Executive agencies and not to federally assisted programs.
[53 FR 19277, May 27, 1988; 53 FR 25722, July 8, 1988]
Secs. 8c.4--8c.9 [Reserved]
Sec. 8c.10 Self-evaluation.
(a) The agency shall, by July 26, 1989, evaluate its current
policies and practices, and the effects thereof, that do not or may not
meet the requirements of this part, and, to the extent modification of
any such policies and practices is required, the agency shall proceed to
make the necessary modifications.
(b) The agency shall provide an opportunity to interested persons,
including individuals with handicaps or organizations representing
individuals with handicaps, to participate in the self-
[[Page 104]]
evaluation process by submitting comments (both oral and written).
(c) The agency shall, until three years following the completion of
the self-evaluation, maintain on file and make available for public
inspection:
(1) A description of areas examined and any problems identified, and
(2) A description of any modifications made.
Sec. 8c.11 Notice.
The agency shall make available to employees, applicants,
participants, beneficiaries, and other interested persons such
information regarding the provisions of this part and its applicability
to the programs or activities conducted by the agency, and make such
information available to them in such manner as the Secretary of
Commerce or the Secretary's designee finds necessary to apprise such
persons of the protections against discrimination assured them by
section 504 and this regulation.
Secs. 8c.12--8c.29 [Reserved]
Sec. 8c.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 agency.
(b)(1) The agency, in providing any aid, benefit, or service, may
not, directly or through contractual, licensing, or other arrangements,
on the basis of handicap--
(i) Deny a qualified individual with handicaps the opportunity to
participate in or benefit from the aid, benefit, or service;
(ii) Afford a qualified individual with handicaps an opportunity to
participate in or benefit from the aid, benefit, or service that is not
equal to that afforded others;
(iii) Provide a qualified individual with handicaps with an aid,
benefit, or service that is not as effective in affording equal
opportunity to obtain the same result, to gain the same benefit, or to
reach the same level of achievement as that provided to others;
(iv) Provide different or separate aid, benefits, or services to
individuals with handicaps or to any class of individuals with handicaps
than is provided to others unless such action is necessary to provide
qualified individuals with handicaps with aid, benefits, or services
that are as effective as those provided to others;
(v) Deny a qualified individual with handicaps the opportunity to
participate as a member of a planning or advisory board; 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 agency may not deny a qualified individual with handicaps
the opportunity to participate in programs or activities that are not
separate or different, despite the existence of permissibly separate or
different programs or activities.
(3) The agency may not, directly or through contractual or other
arrangements, utilize criteria or methods of administration the purpose
or effect of which would--
(i) Subject qualified individuals with handicaps to discrimination
on the basis of handicaps; or
(ii) Defeat or substantially impair accomplishment of the objectives
of a program or activity with respect to individuals with handicaps.
(4) The agency may not, in determining the site or location of a
facility, make selections the purpose or effect of which would--
(i) Exclude individuals with handicaps from, deny them the benefits
of, or otherwise subject them to discrimination under any program or
activity conducted by the agency; or
(ii) Defeat or substantially impair the accomplishment of the
objectives of a program with respect to individuals with handicaps.
(5) The agency, in the selection of procurement contractors, may not
use criteria that subject qualified individuals with handicaps to
discrimination on the basis of handicap.
(6) The agency may not administer a licensing or certification
program in a manner that subjects qualified individuals with handicaps
to discrimination
[[Page 105]]
on the basis of handicap, nor may the agency establish requirements for
the programs or activities of licensees or certified entities that
subject qualified individuals with handicaps to discrimination on the
basis of handicap. However, the programs or activities of entities that
are licensed or certified by the agency are not, themselves, covered by
this part.
(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 agency shall administer programs and activities in the most
integrated setting appropriate to the needs of qualified individuals
with handicaps.
Secs. 8c.31--8c.39 [Reserved]
Sec. 8c.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 agency. The definitions, requirements, and
procedures of section 501 of the Rehabilitation Act of 1973 (29 U.S.C.
791), as established by the Equal Employment Opportunity Commission in
29 CFR Part 1613, shall apply to employment in federally conducted
programs or activities.
Secs. 8c.41--8c.48 [Reserved]
Sec. 8c.49 Program accessibility: Discrimination prohibited.
Except as otherwise provided in Sec. 8c.50, no qualified individual
with handicaps shall, because the agency's facilities are inaccessible
to or unusable by individuals with handicaps, be denied the benefits of,
be excluded from participation in, or otherwise be subjected to
discrimination under any program or activity conducted by the agency.
Sec. 8c.50 Program accessibility: Existing facilities.
(a) General. The agency shall operate each program or activity so
that the program or activity, when viewed in its entirety, is readily
accessible to and usable by individuals with handicaps. This paragraph
does not--
(1) Necessarily require the agency to make each of its existing
facilities accessible to and usable by individuals with handicaps; or
(2) Require the agency to take any action that it can demonstrate
would result in a fundamental alteration in the nature of a program or
activity or in undue financial and administrative burdens. In those
circumstances where agency personnel believe that the proposed action
would fundamentally alter the program or activity or would result in
undue financial and administrative burdens, the agency has the burden of
proving that compliance with section Sec. 8c.50(a) would result in such
alteration or burdens. The decision that compliance would result in such
alteration or burdens must be made by the Secretary of Commerce or the
Secretary's designee after considering all agency resources available
for use in the funding and operation of the conducted program or
activity, and must be accompanied by a written statement of the reasons
for reaching that conclusion. If an action would result in such an
alteration or such burdens, the agency shall take any other action that
would not result in such an alteration or such burdens but would
nevertheless ensure that individuals with handicaps receive the benefits
and services of the program or activity.
(b) Methods. The agency may comply with the requirements of this
section through such means as redesign of equipment, reassignment of
services to accessible buildings, assignment of aides to beneficiaries,
home visits, delivery of services at alternate accessible sites,
alteration of existing facilities and construction of new facilities,
use of accessible rolling stock, or any other methods that result in
making its programs or activities readily accessible to and usable by
individuals with handicaps. The agency is not required to make
structural changes in existing facilities where other methods are
effective in achieving compliance with this section. The agency, in
making alterations to existing buildings, shall meet accessibility
requirements
[[Page 106]]
to the extent compelled by the Architectural Barriers Act of 1968, as
amended (42 U.S.C. 4151-4157), and any regulations implementing it. In
choosing among available methods for meeting the requirements of this
section, the agency shall give priority to those methods that offer
programs and activities to qualified individuals with handicaps in the
most integrated setting appropriate.
(c) Time period for compliance. The agency shall comply with the
obligations established under this section by September 26, 1988, except
that where structural changes in facilities are undertaken, such changes
shall be made by July 26, 1991, but in any event as expeditiously as
possible.
(d) Transition plan. In the event that structural changes to
facilities will be undertaken to achieve program accessibility, the
agency shall develop, by January 26, 1989, a transition plan setting
forth the steps necessary to complete such changes. The agency shall
provide an opportunity to interested persons, including individuals with
handicaps or organizations representing individuals with handicaps, to
participate in the development of the transition plan by submitting
comments (both oral and written). A copy of the transition plan shall be
made available for public inspection. The plan shall, at a minimum--
(1) Identify physical obstacles in the agency's facilities that
limit the accessibility of its program or activities to individuals with
handicaps;
(2) Describe in detail the methods that will be used to make the
facilities accessible;
(3) Specify the schedule for taking the steps necessary to achieve
compliance with this section and, if the time period of the transition
plan is longer than one year, identify steps that will be taken during
each year of the transition period; and
(4) Indicate the official responsible for implementation of the
plan.
Sec. 8c.51 Program accessibility: New construction and alterations.
Each building or part of a building that is constructed or altered
by, on behalf of, or for the use of the agency shall be designed,
constructed, or altered so as to be readily accessible to and usable by
individuals with handicaps. The definitions, requirements, and standards
of the Architectural Barriers Act (42 U.S.C. 4151-4157), as established
in 41 CFR 101-19.600 to 101-19.607, apply to buildings covered by this
section.
Secs. 8c.52--8c.59 [Reserved]
Sec. 8c.60 Communications.
(a) The agency shall take appropriate steps to ensure effective
communication with applicants, participants, personnel of other Federal
entities, and members of the public.
(1) The agency shall furnish appropriate auxiliary aids where
necessary to afford an individual with handicaps an equal opportunity to
participate in, and enjoy the benefits of, a program or activity
conducted by the agency.
(i) In determining what type of auxiliary aid is necessary, the
agency shall give primary consideration to the requests of the
individual with handicaps.
(ii) The agency need not provide individually prescribed devices,
readers for personal use or study, or other devices of a personal
nature.
(2) Where the agency communicates with applications and
beneficiaries by telephone, telecommunication devices for deaf persons
(TDD's) or equally effective telecommunication systems shall be used.
(b) The agency shall ensure that interested persons, including
persons with impaired vision or hearing, can obtain information as to
the existence and location of accessible services, activities, and
facilities.
(c) The agency shall provide signs at a primary entrance to each of
its inaccessible facilities, directing users to a location at which they
can obtain information about accessible facilities. The international
symbol for accessibility shall be used at each primary entrance of an
accessible facility.
(d) This section does not require the agency to take any action that
it can demonstrate would result in a fundamental alteration in the
nature of a program or activity or in undue financial and administrative
burdens. In
[[Page 107]]
those circumstances where agency personnel believe that the proposed
action would fundamentally alter the program or activity or would result
in undue financial and administrative burdens, the agency has the burden
of proving that compliance with Sec. 8c.60 would result in such
alteration or burdens. The decision that compliance would result in such
alteration of burdens must be made by the Secretary of Commerce or the
Secretary's designee after considering all agency resources available
for use in the funding and operation of the conducted program or
activity, and must be accompanied by a written statement of the reasons
for reaching that conclusion. If an action required to comply with this
section would result in such an alteration or such burdens, the agency
shall take any other action that would not result in such an alteration
or such burdens but would nevertheless ensure that, to the maximum
extent possible, individuals with handicaps receive the benefits and
services of the program or activity.
Secs. 8c.61--8.69 [Reserved]
Sec. 8c.70 Compliance procedures
(a) Except as provided in paragraph (b) of this section, this
section applies to all allegations of discrimination on the basis of
handicap in programs or activities conducted by the agency.
(b) The agency shall process complaints alleging violations of
section 504 with respect to employment according to the procedures
established by the Equal Employment Opportunity Commission in 29 CFR
Part 1613 pursuant to section 501 of the Rehabilitation Act of 1973 (29
U.S.C. 791).
(c) The Chief of the Compliance Divison shall be responsible for
coordinating implemention of this section. Complaints may be sent to
Chief, Compliance Division, Office of Civil Rights, Room 6012, Herbert
C. Hoover Building, 14th and Constitution Avenue, Washington, DC, 20230.
(d) The agency shall accept and investigate all complete complaints
for which it has jurisdiction. All complete complaints must be filed
within 180 days of the alleged act of discrimination. The agency may
extend this time period for good cause.
(e) If the agency receives a complaint over which it does not have
jurisdiction, it shall promptly notify the complainant and shall make
reasonable efforts to refer the complaint to the appropriate government
entity.
(f) The agency shall notify the Architectural and Transportation
Barriers Compliance Board upon receipt of any complaint alleging that a
building or facility that is subject to the Architectural Barriers Act
of 1968, as amended (42 U.S.C. 4151-4157), is not readily accessible to
and usable by individuals with handicaps.
(g) Within 180 days of the receipt of a complete complaint for which
it has jurisdiction, the agency shall notify the complainant of the
results of the investigation in a letter containing--
(1) Findings of fact and conclusions of law;
(2) A description of a remedy for each violation found; and
(3) A notice of the right to appeal.
(h) Appeals of the findings of fact and conclusions of law or
remedies must be filed by the complainant within 90 days of receipt from
the agency of the letter required by Sec. 8c.70(g). The agency may
extend this time for good cause.
(i) Timely appeals shall be accepted and processed by the Assistant
Secretary for Administration.
(j) The Assistant Secretary for Administration shall notify the
complainant of the results of the appeal within 60 days of the receipt
of the request. If the Assistant Secretary for Administration determines
that additional information is needed from the complainant, he or she
shall have 60 days from the date of receipt of the additonal information
to make his or her determination on the appeal.
(k) The time limits cited in paragraphs (g) and (j) of the section
may be extended with the permission of the Assistant Attorney General.
(l) The agency may delegate its authority for conducting complaint
investigations to other Federal agencies, except that the authority for
making the final determination may not be delegated to another agency.
[53 FR 19277, May 27, 1988; 53 FR 25722, July 8, 1988]
[[Page 108]]
PART 9--PROCEDURES FOR A VOLUNTARY LABELING PROGRAM FOR HOUSEHOLD APPLIANCES AND EQUIPMENT TO EFFECT ENERGY CONSERVATION--Table of Contents
Sec.
9.0 Purpose.
9.1 Goal of program.
9.2 Definitions.
9.3 Appliances and equipment included in program.
9.4 Development of voluntary energy conservation specifications.
9.5 Participation of manufacturers.
9.6 Termination of participation.
9.7 Department of Commerce energy conservation mark.
9.8 Amendment or revision of voluntary energy conservation
specifications.
9.9 Consumer education.
9.10 Coordination with State and local programs.
9.11 Annual report.
Authority: Sec. 2, 31 Stat. 1449, as amended, sec. 1, 64 Stat. 371;
15 U.S.C. 272, Reorganization Plan No. 3 of 1946, Part VI; Message from
the President of the United States Concerning Energy Resources, April
18, 1973 (119 Cong. Rec. H2886).
Source: 38 FR 29574, Oct. 26, 1973, unless otherwise noted.
Sec. 9.0 Purpose.
The purpose of this part is to establish procedures relating to the
Department's voluntary labeling program for household appliances and
equipment to promote and effect energy conservation.
Sec. 9.1 Goal of program.
(a) This program was initiated in response to the direction of
President Nixon in his 1973 Energy Message that the Department of
Commerce in cooperation with the Council on Environmental Quality and
the Environmental Protection Agency develop a voluntary labeling program
which would apply to energy-consuming home appliances.
(b) The goal of this program is to encourage manufacturers to
provide consumers, at the point of sale, with information on the energy
consumption and energy efficiency of household appliances and equipment.
Such information, presented in a uniform manner readily understandable
to consumers, would be displayed on labels attached to or otherwise
provided with the appliances or equipment. The labels will include a
system intended to make it possible for consumers to compare by cost or
otherwise the energy consumption and energy efficiency characteristics
when purchasing household appliances and equipment and to select those
that can effect savings in energy consumption.
Sec. 9.2 Definitions.
(a) The term Secretary means the Secretary of Commerce.
(b) The term manufacturer means any person engaged in the
manufacturing or assembling of new appliances or equipment in the United
States, or in the importing of such products for sale or resale, or any
person whose brand or trademark appears on such products who owns such
brand or trademark and has authorized its use on such products, if the
brand or trademark of the person actually manufacturing or assembling
the products does not appear on the products.
(c) The term energy consumption means the energy resources used by
appliances or equipment under conditions of use approximating actual
operating conditions insofar as practical as determined through test
procedures contained or identified in a final Voluntary Energy
Conservation Specification published under Sec. 9.4(e).
(d) The term energy efficiency means the energy use of appliances or
equipment relative to their output of services, as determined through
test procedures contained or identified in a final Voluntary Energy
Conservation Specification published under Sec. 9.4(e).
(e) The term consumer means the first person who purchases a new
appliance or item of equipment for purposes other than resale.
(f) The term class of appliance or equipment means a group of
appliances or equipment whose functions or features are similar, and
whose functional output covers a range that may be of interest to
consumers.
(g) The term Specification means a Voluntary Energy Conservation
Specification developed under Sec. 9.4.
(h) The term label means printed matter affixed to or otherwise
provided with appliances or equipment and
[[Page 109]]
meeting all the requirements called for in a Voluntary Energy
Conservation Specification published under Sec. 9.4(e).
[38 FR 29574, Oct. 26, 1973, as amended at 40 FR 33966, Aug. 13, 1975]
Sec. 9.3 Appliances and equipment included in program.
The appliances and equipment included in this program are room and
central air conditioners, household refrigerators, home freezers,
clothes washers, dishwashers, clothes dryers, kitchen ranges and ovens,
water heaters, comfort heating equipment, and television receivers.
Additional appliances and equipment may be included in the program by
the Secretary pursuant to rule making procedures as set out in 5 U.S.C.
553. Individual units of appliances and equipment manufactured for
export are not included in this program.
[38 FR 29574, Oct. 26, 1973, as amended at 40 FR 33966, Aug. 13, 1975]
Sec. 9.4 Development of voluntary energy conservation specifications.
(a) The Secretary in cooperation with appropriate Federal agencies
and in cooperation with affected manufacturers, distributors, retailers,
consumers, environmentalists, and other interested parties shall develop
proposed Specifications for the specific classes of appliances and
equipment covered under Sec. 9.3.
(b) Each Specification shall as a minimum include:
(1) A description of the class of appliance or equipment covered by
the Specification, listing the distribution of energy efficiencies for
that class of appliance or equipment.
(2) Listings or descriptions of test methods to be used in measuring
the energy consumption and/or energy efficiency characteristics of the
class of appliance or equipment.
(3) A prototype Label and directions for displaying the Label on or
with appliances or equipment of that class. The Label shall be
prominent, readable, and visible and shall include information that will
assist the consumer in comparing by cost or otherwise the energy
consumption and/or energy efficiency characteristics of a particular
appliance or item of equipment with all others in its class. The Label
shall also include the Department of Commerce Energy Conservation Mark
specified in Sec. 9.7.
(4) Conditions for the participation of manufacturers in the
program.
(c) The test methods listed or described in the Specification
pursuant to Sec. 9.4(b)(2) shall be those described in existing
nationally-recognized voluntary standards where such methods are
appropriate. Where appropriate test methods do not so exist, they will
be developed by the Department of Commerce in cooperation with
interested parties.
(d) The Secretary upon development of a proposed Specification shall
publish in the Federal Register a notice giving the complete text of the
proposed Specification, and any other pertinent information, and
inviting any interested person to submit written comments on the
proposed Specification within 30 days after its publication in the
Federal Register, unless another time limit is provided by the
Secretary. Interested persons wanting to express their views in an
informal hearing may do so if, within 15 days after the proposed
Specification is published in the Federal Register, they request the
Secretary to hold a hearing. Such informal hearings shall be held so as
to give all interested persons opportunity for the oral presentation of
data, views, or arguments in addition to the opportunity to make written
submissions. Notice of such hearings shall be published in the Federal
Register. A transcript shall be kept of any oral presentations.
(e) The Secretary, after consideration of all written and oral
comments and other materials received in accordance with paragraph (d)
of this section, shall publish in the Federal Register within 30 days
after the final date for receipt of comments, or as soon as practicable
thereafter, a notice either:
(1) Giving the complete text of a final Specification, including
conditions of use, and stating that any manufacturer of appliances or
equipment in the class concerned desiring voluntarily to use the Label
and Energy Conservation Mark with such appliances or equipment must
advise the Department of Commerce; or
[[Page 110]]
(2) Stating that the proposed Specification will be further
developed before final publication; or
(3) Withdrawing the proposed Specification from further
consideration.
Sec. 9.5 Participation of manufacturers.
(a) Manufacturers desiring to participate in this program will so
notify the Department of Commerce. The notification will identify the
particular Specification to be used and the manufacturer's model numbers
for the products to be labeled. The notification will also state that
the manufacturer will abide by all conditions contained in the
Specification and will desist from using the Label and Energy
Conservation Mark if requested by the Department of Commerce under the
provisions of Sec. 9.6.
(b) The conditions for participation will be set out in the
Specification and will include, but not be limited to, the following:
(1) Prior to the use of a Label the manufacturer will make or have
made the measurements to obtain the information required for inclusion
on the Label and, if requested, will forward within 30 days such
measurement data to the Department of Commerce. Such measurement data
will be kept on file by the manufacturer or his agent for two years
after that model of appliance or equipment is no longer manufactured
unless otherwise provided in the Specification. The use of independent
test laboratories or national certification programs available to any
manufacturer is acceptable for the purposes of this program.
(2) The manufacturer will describe the test results on the Label as
prescribed in the Specification.
(3) The manufacturer will display or arrange to display, in
accordance with the appropriate Specification, the Label on or with each
individual unit of appliance or equipment within the subject class and
with the same brand name manufactured by him except for units exported
from the United States. All models with the same brand name that fall
within the class must be included in the program unless they are for
export only.
(4) The manufacturer agrees at his expense to comply with any
reasonable request of the Department of Commerce to have appliances or
equipment manufactured by him tested to determine that testing has been
done according to the relevant Specification.
(5) Manufacturers may reproduce the Department of Commerce Labels
and Energy Conservation Mark in advertising provided that the entire
Label, complete with all information required to be displayed at the
point of retail sale, is shown legibly.
Sec. 9.6 Termination of participation.
(a) The Department of Commerce upon finding that a manufacturer is
not complying with the conditions of participation set out in these
procedures or in a Specification may terminate upon 30 days notice the
manufacturer's participation in the program: Provided, That the
manufacturer shall first be given an opportunity to show cause why the
participation should not be terminated. Upon receipt of a notice of
termination, a manufacturer may request within 30 days a hearing under
the provisions of 5 U.S.C. 558.
(b) A manufacturer may at any time terminate his participation and
responsibilities under this program with regard to a specific class of
products by giving written notice to the Secretary that he has
discontinued use of the Label and Energy Conservation Mark for all
appliances or equipment within that class.
Sec. 9.7 Department of Commerce energy conservation mark.
The Department of Commerce shall develop an Energy Conservation Mark
which shall be registered in the U.S. Patent Office under 15 U.S.C. 1054
for use on each Label described in a Specification.
Sec. 9.8 Amendment or revision of voluntary energy conservation specifications.
The Secretary may by order amend or revise any Specification
published under Sec. 9.4. The procedure applicable to the establishment
of a Specification under Sec. 9.4 shall be followed in amending or
revising such Specification. Such amendment or revision shall not
[[Page 111]]
apply to appliances or equipment manufactured prior to the effective
date of the amendment or revision.
Sec. 9.9 Consumer education.
The Department of Commerce, in close cooperation and coordination
with interested Government agencies, appropriate industry trade
associations and industry members, and interested consumers and
environmentalists shall carry out a program to educate consumers
relative to the significance of the labeling program. Some elements of
this program shall also be directed toward informing retailers and other
interested groups about the program.
Sec. 9.10 Coordination with State and local programs.
The Department of Commerce will establish and maintain an active
program of communication with appropriate state and local government
offices and agencies and will furnish and make available information and
assistance that will promote to the greatest practicable extent
uniformity in State, local, and Federal programs for the labeling of
household appliances and equipment to effect energy conservation.
Sec. 9.11 Annual report.
The Secretary will prepare an annual report of activities under the
program, including an evaluation of the program and a list of
participating manufacturers and classes of appliances and equipment.
PART 10--PROCEDURES FOR THE DEVELOPMENT OF VOLUNTARY PRODUCT STANDARDS--Table of Contents
Sec.
10.0 General.
10.1 Initiating development of a new standard.
10.2 Funding.
10.3 Development of a proposed standard.
10.4 Establishment of the Standard Review Committee.
10.5 Development of a recommended standard.
10.6 Procedures for acceptance of a recommended standard.
10.7 Procedure when a recommended standard is not supported by a
consensus.
10.8 Standing Committee.
10.9 Publication of a standard.
10.10 Review of published standards.
10.11 Revision or amendment of a standard.
10.12 Editorial changes.
10.13 Withdrawal of a published standard.
10.14 Appeals.
10.15 Interpretations.
10.16 Effect of procedures.
Authority: Sec. 2.31 Stat. 1449, as amended, sec. 1, .64 Stat 371;
15 U.S.C. 272, Reorganization Plan No. 3 of 1946, Part VI (3 CFR 1943-
1948 Comp., p. 1065).
Source: 51 FR 22497, June 20, 1986, unless otherwise noted.
Sec. 10.0 General.
(a) Introduction. The Department of Commerce (hereinafter referred
to as the ``Department'') recognizes the importance, the advantages, and
the benefits of voluntary standards and standardization activities. Such
standards may cover, but are not limited to, terms, classes, sizes
(including quantities of packaged consumer commodities), dimensions,
capacities, quality levels, performance criteria, inspection
requirements, marking requirements, testing equipment, test procedures
and installation procedures. Economic growth is promoted through:
(1) Reduction of manufacturing costs, inventory costs, and
distribution costs;
(2) Better understanding among manufacturers, producers, or
packagers (hereinafter referred to as producers), distributors, users,
and consumers; and
(3) Simplification of the purchase, installation, and use of the
product being standardized.
(b) Requirements for Department of Commerce sponsorship. The
Department may sponsor the development of a voluntary Product Standard
if, upon receipt of a request, the Department determines that:
(1) The proposed standard is likely to have substantial public
impact;
(2) The proposed standard reflects the broad interest of an industry
group or an organization concerned with the manufacture, production,
packaging, distribution, testing, consumption, or use of the product, or
the interest of a Federal or State agency;
(3) The proposed standard would not duplicate a standard published
by, or actively being developed or revised by, a private standards-
writing organization to such an extent that it would
[[Page 112]]
contain similar requirements and test methods for identical types of
products, unless such duplication was deemed by the Department to be in
the public interest;
(4) Lack of government sponsorship would result in significant
public disadvantage for legal reasons or reasons of domestic and
international trade;
(5) The proposed standard is not appropriate for development and
maintenance by a private standards-writing organization; and
(6) The proposed standard will be funded by a proponent organization
or government agency to cover costs for administrative and technical
support services provided by the Department.
(c) Role of the Department. The Department assists in the
establishment of a Voluntary Product Standard as follows:
(1) Acts as an unbiased coordinator in the development of the
standard;
(2) Provides editorial assistance in the preparation of the
standard;
(3) Supplies such assistance and review as is required to assure the
technical soundness of the standard;
(4) Seeks satisfactory adjustment of valid points of disagreement;
(5) Determines the compliance with the criteria established in these
procedures for such voluntary standards;
(6) Provides secretarial functions for each committee appointed by
the Department under these procedures;
(7) Publishes the standard as a public document;
(8) Administers the funds for administrative and technical support
services; and
(9) Seeks listing for standards developed under these procedures as
American National Standards through the American National Standards
Institute, when deemed appropriate by the Department.
(d) Role of producers, distributors, users, and consumers.
Producers, distributors, users, consumers, and other interested groups
may contribute to the development of a Voluntary Product Standard as
follows:
(1) Initiate and participate in the development of the standard;
(2) Provide technical or other relevant counsel, as appropriate,
relating to the standard;
(3) Promote the use of, and support for, the standard; and
(4) Assist in keeping the standard current with respect to advancing
technology and marketing practices.
(e) Role of the National Institute of Standards & Technology. The
National Institute of Standards & Technology (NIST) administers these
procedures for the Department. Any communications concerning these
procedures (e.g., questions, clarifications, appeals) should be
addressed to the Office of Product Standards Policy, National Institute
of Standards & Technology, Gaithersburg, Maryland 20899.
[51 FR 22497, June 20, 1986, as amended at 55 FR 38315, Sept. 18, 1990]
Sec. 10.1 Initiating development of a new standard.
(a) Any group or association of producers, distributors, users, or
consumers, or a testing laboratory, or a State or Federal agency, may
request the Department to initiate the development and publication of a
Voluntary Product Standard under these procedures. Requests shall be in
writing, signed by a representative of the group or agency, and
forwarded to the Department. The initial request may be accompanied by a
copy of a draft of the suggested standard.
(b) The request shall include a commitment to provide sufficient
funding to cover all costs associated with the development and
maintenance of the proposed Voluntary Product Standard.
(c) The Department may require additional information such as
technical, marketing, or other appropriate data essential to discussion
and development of the proposed standard, including, but not limited to,
physical, mechanical, chemical, or performance characteristics, and
production figures.
(d) Upon receipt of an appropriate request and after a determination
by the Department that the development of a Voluntary Product Standard
is justified, the Department may initiate the development by requesting
that a draft of the suggested standard be prepared by an appropriate
committee, provided such a draft has not previously been submitted under
paragraph (a) of this section.
[[Page 113]]
(e) The Department may initiate the development of a Voluntary
Product Standard, if such action is deemed by the Department to be in
the public interest, notwithstanding the absence of a request from an
outside source. A voluntary standard initiated by the Department shall
be processed in accordance with all requirements of these procedures and
shall be developed in the same manner as a voluntary standard initiated
by any group referred to in paragraph (a) of this section.
(f) An agreement regarding funding procedures and receipt of a
deposit estimated by the Department to be sufficient to cover the first
year's costs shall occur prior to the initiation of any project.
Sec. 10.2 Funding.
Groups who represent producers, distributors, consumers or users, or
others that wish to act or continue to act as proponent organizations
for the development or maintenance of a Voluntary Product Standard will
be required to pay for administrative and technical support services
provided by the National Institute of Standards & Technology and such
other direct or indirect costs associated with the development or
maintenance of that standard as may be deemed appropriate by the
Department, including costs to the Department in connection with the
operation of the Standard Review Committee and the Standing Committee.
Funds may also be provided by a government agency at the request of a
proponent organization or when acting on its own behalf for the
development or maintenance of a Voluntary Product Standard. Proponents
of standards that meet sponsorship criteria established in these
procedures shall furnish an initial deposit of funds sufficient to cover
the first year's services and other costs. Estimated annual costs will
be based on an hourly rate for salary and overhead established by the
Department for the National Institute of Standards & Technology's
administrative and technical support services plus estimates of direct
costs to provide funds for such items as the travel of consumer
representatives unable to otherwise attend committee meetings, travel
for Department staff, and printing costs. Project funds will be reviewed
annually. Excess funds may be refunded or applied to the next accounting
period. Should funds from deposits be inadequate during an accounting
period, work on the project will continue only if funds are restored to
a level estimated adequate to complete the 12-month period.
[51 FR 22497, June 20, 1986, as amended at 55 FR 38315, Sept. 18, 1990]
Sec. 10.3 Development of a proposed standard.
(a) A proposed standard as submitted to the Department:
(1) Shall be based on adequate technical information, or, in the
case of size standards (including standards covering the quantities for
packaged consumer commodities), on adequate marketing information, or
both, as determined to be appropriate by the Department;
(2) Shall not be contrary to the public interest;
(3) Shall be technically appropriate and such that conformance or
nonconformance with the standard can be determined either during or
after the manufacturing process by inspection or other procedures which
may be utilized by either an individual or a testing facility competent
in the particular field;
(4) Shall follow the format prescribed by the National Institute of
Standards & Technology. (Copies of the recommended format may be
obtained from the Office of Product Standards Policy, National Institute
of Standards & Technology, Gaithersburg, Maryland 20899.);
(5) Shall include performance requirements if such are deemed by the
Department to be technically sound, feasible, and practical, and the
inclusion of such is deemed to be appropriate;
(6) May include dimensions, sizes, material specifications, product
requirements, design stipulations, component requirements, test methods,
testing equipment descriptions, and installation procedures. The
appropriateness of the inclusion in a standard of any particular item
listed in this subparagraph shall be determined by the Department; and
[[Page 114]]
(7) Shall be accompanied by rational statements pertaining to the
requirements and test methods contained in the standard, if deemed
necessary by the Department.
(b) A proposed standard that is determined by the Department to meet
the criteria set forth in paragraph (a) of this section may be subjected
to further review by an appropriate individual, committee, organization,
or agency (either government or nongovernment, but not associated with
the proponent group).
(c) A proposed standard may be circulated by the Department to
appropriate producers, distributors, users, consumers, and other
interested groups for consideration and comment as well as to others
requesting the opportunity to comment.
(d) The proponent group or appropriate committee which drafted the
initial proposal under Sec. 10.1(d) shall consider all comments and
suggestions submitted by the reviewer designated under paragraph (b) of
this section, and those received by the Department as a result of any
circulation under paragraph (c) of this section, and may make such
adjustments in the proposal as are technically sound and as are believed
to cause the standard to be generally acceptable to producers,
distributors, users, consumers, and other interested parties. The
proposal will then be submitted to the Department for further
processing.
[51 FR 22497, June 20, 1986, as amended at 55 FR 38315, Sept. 18, 1990]
Sec. 10.4 Establishment of the Standard Review Committee.
(a) The Department shall establish and appoint the members of a
Standard Review Committee within a reasonable time after receiving a
proposed standard. The committee shall consist of qualified
representatives of producers, distributors, and users or consumers of
product for which a standard is sought or any other appropriate general
interest groups such as State and Federal agencies. When requested by
the Standard Review Committee, the Department shall appoint one voting
member from among the representatives of the Federal agencies, other
than the Department of Commerce. All other representatives of Federal
agencies on the Standard Review Committees shall be advisory nonvoting
members. (Alternates to committee members may be designated by the
Department.) When deemed appropriate by the Department, project funds
under Sec. 10.2 may be made available to assure participation by
consumer interests on the committee at required meetings.
(b) A Standard Review Committee may remain in existence for a period
necessary for the final development of the standard, or for 2 years,
whichever is less.
(c) The Department shall be responsible for the organization of the
committee. Any formal operating procedures developed by the committee
shall be subject to approval by the Department. The committee may
conduct business either in a meeting or through correspondence, but only
if a quorum participates. A quorum shall consist of two-thirds of all
voting members of the committee. A majority of the voting members of the
committee participating shall be required to approve any actions taken
by the committee except for the action of recommending a standard to the
Department, the requirements for which are contained in Sec. 10.5(b).
Sec. 10.5 Development of a recommended standard.
(a) The Standard Review Committee, with the guidance and assistance
of the Department and, if appropriate, the reviewer designated under
Sec. 10.3(b), shall review a proposed standard promptly. If the
committee finds that the proposal meets the requirements set forth in
Sec. 10.3(a), it may recommend to the Department that the proposal be
circulated for acceptance under Sec. 10.6. If, however, the committee
finds that the proposal being reviewed does not meet the requirements
set forth in Sec. 10.3(a), the committee shall change the proposal,
after consulting with the proponent group, so that these requirements
are met, before recommending such proposal to the Department.
(b) The recommendation of a standard by the Standard Review
Committee shall be approved by at least three-quarters, or rejected by
more than one-quarter, of all of the members of the
[[Page 115]]
committee eligible to vote. The voting on the recommendation of a
standard shall be conducted by the Department if conducted by letter
ballot. If such voting is accomplished at a meeting of the committee,
the balloting shall be either by roll call or by signed written ballot
conducted by the Department or the chairman of this committee. If
conducted by the chairman, a report of the vote shall be made to the
Department within 15 days. If the balloting at the meeting does not
result in either approval by at least three-quarters of all members (or
alternates) eligible to vote (whether present or not), or rejection by
more than one-quarter of the members (or alternates) or the committee
eligible to vote, the balloting shall be disregarded and the Department
shall subsequently conduct a letter ballot of all members of the
committee.
(c) Any member of the committee casting a negative ballot shall have
the right to support an objection by furnishing the chairman of the
committee and the Department with a written statement setting forth the
basis for the objection. The written statement of objection shall be
filed within 15 days after the date of the meeting during which the
voting on the standard was accomplished, or, in the case of a letter
ballot, within the time limit established for the return of the ballot.
(d) At the time a recommended standard is submitted to the
Department, the Chairman of the Standard Review Committee shall furnish
a written report in support of the committee's recommendation. Such
report shall include a statement with respect to compliance with the
requirements as established by these procedures, a discussion of the
manner in which any objections were resolved, and a discussion of any
unresolved objections together with the committee's reasons for
rejecting such unresolved objections.
Sec. 10.6 Procedures for acceptance of a recommended standard.
(a) Upon receipt from the Standard Review Committee of a recommended
standard and report, the Department shall give appropriate public notice
and distribute the recommended standard for acceptance unless:
(1) Upon a showing by any member of the committee who has voted to
oppose the recommended standard on the basis of an unresolved objection,
the Department determines that if such objection were not resolved, the
recommended standard:
(i) Would be contrary to the public interest, if published;
(ii) Would be technically inadequate; or
(iii) Would be inconsistent with law or established public policy;
or
(2) The Department determines that all criteria and procedures set
forth herein have not been met satisfactorily or that there is a legal
impediment to the recommended standard.
(b) Distribution for acceptance or rejection for the purpose of
determining general concurrence will be made to a list compiled by the
Department, which, in the judgment of the Department, shall be
representative of producers, distributors, and users and consumers.
(c) Distribution for comment will be made to any party filing a
written request with the Department, and to such other parties as the
Department may deem appropriate, including testing laboratories and
interested State and Federal agencies.
(d) The Department shall analyze the recommended standard and the
responses received under paragraphs (b) and (c) of this section. If such
analysis indicates that the recommended standard is supported by a
consensus, it shall be published as a Voluntary Product Standard by the
Department: Provided, That all other requirements listed in these
procedures have been satisfied.
(e) The following definitions shall apply to the term used in this
section:
(1) ``Consensus'' means general concurrence and, in addition, no
substantive objection deemed valid by the Department.
(2) ``General concurrence'' means acceptance among those responding
to the distribution made under paragraph (b) of this section in
accordance with the conditions set forth in paragraph (f) of this
section.
[[Page 116]]
(3) ``Substantive objection'' means a documented objection based on
grounds that one or more of the criteria set forth in these procedures
has not been satisfied.
(4) ``Average industry acceptance'' means a percentage equal to the
sum of the percentages of acceptance obtained from responses to
distribution of the recommended standard in the producer segment, the
distributor segment, and the user and consumer segment, divided by
three. No consideration will be given to volume of production or volume
of distribution in determining average industry acceptance.
(5) ``Producer segment'' means those persons who manufacture or
produce the product covered by the standard.
(6) ``Distributor segment'' means those persons who distribute at
wholesale or retail the product covered by the standard.
(7) ``User and consumer segment'' means those persons who use or
consume the product covered by the standard.
(8) ``Acceptance by volume of production'' means the weighted
percentage of acceptance of those responding to the distribution in the
producer segment. The weighting of each response will be made in
accordance with the volume of production represented by each respondent.
(9) ``Acceptance by volume of distribution'' means the weighted
percentage of acceptance of those responding to the distribution in the
distributor segment. The weighting of each response will be made in
accordance with the volume of distribution represented by each
respondent.
(f) A recommended standard shall be deemed to be supported by
general concurrence whenever:
(1) An analysis of the responses to the distribution under paragraph
(b) of this section indicates:
(i) An average industry acceptance of not less than 75 percent;
(ii) Acceptance of not less than 70 percent by the producer segment,
the distributor segment, and the user and consumer segment, each segment
being considered separately; and
(iii) Acceptance by volume of production and acceptance by volume of
distribution of not less than 70 percent in each case: Provided, That
the Department shall disregard acceptance by volume of production or
acceptance by volume of distribution or both unless, in the judgment of
the Department, accurate figures for the volume of production or
distribution are reasonably available and an evaluation of either or
both of such acceptances is deemed necessary by the Department; or
(2) The Department determines that publication of the standard is
appropriate under the procedures set forth in paragraph (g) of this
section and, in addition, an analysis of the responses to the
distribution under paragraph (b) of this section indicates:
(i) An average industry acceptance of not less than 66\2/3\ percent;
(ii) Acceptance of not less than 60 percent by the producer segment,
the distributor segment, and the user and consumer segment, each segment
being considered separately; and
(iii) Acceptance by volume of production and acceptance by volume of
distribution of not less than 60 percent in each case: Provided, That
the Department shall disregard acceptance by volume of production or
acceptance by volume of distribution or both unless, in the judgment of
the Department, accurate figures for the volume of production or
distribution are reasonably available and an evaluation of either or
both of such acceptances is deemed necessary by the Department.
(g) A recommended standard which fails to achieve the acceptance
requirements of paragraph (f)(1) of this section, but which satisfies
the acceptance criteria of paragraph (f)(2) of this section, shall be
returned to the Standard Review Committee for reconsideration. The
committee, by the affirmative vote of not less than three-quarters of
all members eligible to vote, may resubmit the recommended standard
without change to the Department with a recommendation that the standard
be published as a Voluntary Product Standard. The Department shall then
conduct a public rulemaking hearing in accordance with the requirements
of law as set forth in section 553 of Title 5, United States Code, to
assist it in determining whether publication of the standard is in the
public interest. If the Department determines that
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publication of the standard is in the public interest, the standard
shall be published as a Voluntary Product Standard.
Sec. 10.7 Procedure when a recommended standard is not supported by a consensus.
If the Department determines that a recommended standard is not
supported by a consensus, the Department may:
(a) Return the recommended standard to the Standard Review Committee
for further action, with or without suggestions;
(b) Terminate the development of the recommended standard under
these procedures; or
(c) Take such other action as it may deem necessary or appropriate
under the circumstances.
Sec. 10.8 Standing Committee.
(a) The Department shall establish and appoint the members of a
Standing Committee prior to the publication of a standard. The committee
may include members from the Standard Review Committee, and shall
consist of qualified representatives of producers, distributors, and
users or consumers of the product covered by the standard, and
representatives of appropriate general interest groups such as
municipal, State, and Federal agencies. When requested by the Standing
Committee, the Department shall appoint one voting member from among the
representatives of the Federal agencies, other than the Department of
Commerce. When requested by the Standing Committee for PS 20-70,
``American Softwood Lumber Standard,'' the Department shall appoint two
voting members from among the representatives of the Federal agencies,
other than the Department of Commerce. All other representatives of
Federal agencies shall be advisory nonvoting members of Standing
Committees. (Alternates to committee members may be designated by the
Department.) When deemed appropriate by the Department, project funds
under Sec. 10.2, may be made available to assure participation by
consumer interests on the committee at required meetings.
(b) Appointments to a Standing Committee may not exceed a term of 5
years. However, the committee may be reconstituted by the Department
whenever appropriate, and members may be reappointed by the Department
to succeeding terms. Appointments to the committee will be terminated
upon the withdrawal of the standard.
(c) The Department shall be responsible for the organization of the
committee. Any formal operating procedures developed by the committee
shall be subject to approval by the Department. The committee may
conduct business either in a meeting or through correspondence, but only
if a quorum participates. A quorum shall consist of two-thirds of all
voting members of the committee. A majority of the voting members of the
committee participating shall be required to approve any actions taken
by the committee except for the approval of revisions of the standard
which shall be governed by the provisions of Sec. 10.5 (b), (c), and
(d),
(d) The members of a Standing Committee should be knowledgeable
about:
(1) The product or products covered by the standard;
(2) The standard itself; and
(3) Industry and trade practices relating to the standard.
(e) The committee shall:
(1) Keep itself informed of any advancing technology that might
affect the standard;
(2) Provide the Department with interpretations of provisions of the
standard upon request;
(3) Make recommendations to the Department concerning the
desirability or necessity of revising or amending the standard;
(4) Receive and consider proposals to revise or amend the standard;
and
(5) Recommend to the Department the revision or amendment of a
standard.