[Title 7 CFR ]
[Code of Federal Regulations (annual edition) - January 1, 2004 Edition]
[From the U.S. Government Printing Office]
[[Page i]]
7
Part 2000 to End
Revised as of January 1, 2004
Agriculture
Containing a codification of documents of general
applicability and future effect
As of January 1, 2004
With Ancillaries
Published by:
Office of the Federal Register
National Archives and Records
Administration
A Special Edition of the Federal Register
[[Page ii]]
U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON : 2004
For sale by the Superintendent of Documents, U.S. Government Printing
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[[Page iii]]
Table of Contents
Page
Explanation................................................. vi
Title 7:
Subtitle B--Regulations of the Department of Agriculture
(Continued)
Chapter XVIII--Rural Housing Service, Rural
Business-Cooperative Service, Rural Utilities
Service, and Farm Service Agency, Department of
Agriculture (Continued) 5
Chapter XX--Local Television Loan Guarantee Board 23
Chapter XXVI--Office of Inspector General,
Department of Agriculture 59
Chapter XXVII--Office of Information Resources
Management, Department of Agriculture 67
Chapter XXVIII--Office of Operations, Department of
Agriculture 73
Chapter XXIX--Office of Energy, Department of
Agriculture 81
Chapter XXX--Office of the Chief Financial Officer,
Department of Agriculture 95
Chapter XXXI--Office of Environmental Quality,
Department of Agriculture 269
Chapter XXXII--Office of Procurement and Property
Management, Department of Agriculture 277
Chapter XXXIII--Office of Transportation, Department
of Agriculture 283
Chapter XXXIV--Cooperative State Research,
Education, and Extension Service, Department of
Agriculture 297
[[Page iv]]
Chapter XXXV--Rural Housing Service, Department of
Agriculture 419
Chapter XXXVI--National Agricultural Statistics
Service, Department of Agriculture 523
Chapter XXXVII--Economic Research Service,
Department of Agriculture 531
Chapter XXXVIII--World Agricultural Outlook Board,
Department of Agriculture 537
Chapter XLI [Reserved]
Chapter XLII--Rural Business-Cooperative Service and
Rural Utilities Service, Department of Agriculture 541
Finding Aids:
Table of CFR Titles and Chapters........................ 621
Alphabetical List of Agencies Appearing in the CFR...... 639
List of CFR Sections Affected........................... 649
[[Page v]]
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Cite this Code: CFR
To cite the regulations in
this volume use title,
part and section number.
Thus, 7 CFR 2003.1 refers
to title 7, part 2003,
section 1.
----------------------------
[[Page vi]]
EXPLANATION
The Code of Federal Regulations is a codification of the general and
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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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[[Page vii]]
Many agencies have begun publishing numerous OMB control numbers as
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[[Page viii]]
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Raymond A. Mosley,
Director,
Office of the Federal Register.
January 1, 2004.
[[Page ix]]
THIS TITLE
Title 7--Agriculture is composed of fifteen volumes. The parts in
these volumes are arranged in the following order: parts 1-26, 27-52,
53-209, 210-299, 300-399, 400-699, 700-899, 900-999, 1000-1199, 1200-
1599, 1600-1899, 1900-1939, 1940-1949, 1950-1999, and part 2000 to end.
The contents of these volumes represent all current regulations codified
under this title of the CFR as of January 1, 2004.
The Food and Nutrition Service current regulations in the volume
containing parts 210-299, include the Child Nutrition Programs and the
Food Stamp Program. The regulations of the Federal Crop Insurance
Corporation are found in the volume containing parts 400-699.
All marketing agreements and orders for fruits, vegetables and nuts
appear in the one volume containing parts 900-999. All marketing
agreements and orders for milk appear in the volume containing parts
1000-1199. Part 900--General Regulations is carried as a note in the
volume containing parts 1000-1199, as a convenience to the user.
[[Page x]]
[[Page 1]]
TITLE 7--AGRICULTURE
(This book contains part 2000 to End)
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SUBTITLE B--Regulations of the Department of Agriculture (Continued)
Part
chapter xviii--Rural Housing Service, Rural Business-
Cooperative Service, Rural Utilities Service, and Farm
Service Agency, Department of Agriculture (Continued)..... 2003
chapter xx--Local Television Loan Guarantee Board Procedures 2200
chapter xxvi--Office of Inspector General, Department of
Agriculture............................................... 2610
chapter xxvii--Office of Information Resources Management,
Department of Agriculture................................. 2700
chapter xxviii--Office of Operations, Department of
Agriculture............................................... 2810
chapter xxix--Office of Energy, Department of Agriculture... 2900
chapter xxx--Office of the Chief Financial Officer,
Department of Agriculture................................. 3010
chapter xxxi--Office of Environmental Quality, Department of
Agriculture............................................... 3100
chapter xxxii--Office of Procurement and Property
Management, Department of Agriculture..................... 3200
chapter xxxiii--Office of Transportation, Department of
Agriculture............................................... 3300
chapter xxxiv--Cooperative State Research, Education, and
Extension Service, Department of Agriculture.............. 3400
chapter xxxv--Rural Housing Service, Department of
Agriculture............................................... 3550
chapter xxxvi--National Agricultural Statistics Service,
Department of Agriculture................................. 3600
[[Page 2]]
chapter xxxvii--Economic Research Service, Department of
Agriculture............................................... 3700
chapter xxxviii--World Agricultural Outlook Board,
Department of Agriculture................................. 3800
chapter xli [Reserved]......................................
chapter xlii--Rural Business-Cooperative Service and Rural
Utilities Service, Department of Agriculture.............. 4274
[[Page 3]]
Subtitle B--Regulations of the Department of Agriculture (Continued)
[[Page 5]]
CHAPTER XVIII--RURAL HOUSING SERVICE, RURAL BUSINESS-COOPERATIVE
SERVICE, RURAL UTILITIES SERVICE, AND FARM SERVICE AGENCY, DEPARTMENT OF
AGRICULTURE (CONTINUED)
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Editorial Note: Nomenclature changes to chapter XVIII appear at 59 FR
66443, Dec. 27, 1994; 61 FR 1109, Jan. 16, 1996; and 61 FR 2899, Jan.
30, 1996.
SUBCHAPTER I--ADMINISTRATIVE REGULATIONS
Part Page
2003 Organization................................ 7
2018 General..................................... 17
2045 General..................................... 19
[[Page 7]]
SUBCHAPTER I_ADMINISTRATIVE REGULATIONS
PART 2003_ORGANIZATION--Table of Contents
Subpart A_Functional Organization of the Rural Development Mission Area
Sec.
2003.1 Definitions.
2003.2 General.
2003.3-2003.4 [Reserved]
2003.5 Headquarters organization.
2003.6 Office of the Under Secretary.
2003.7-2003.9 [Reserved]
2003.10 Rural Development State Offices.
2003.11-2003.13 [Reserved]
2003.14 Field Offices.
2003.15-2003.16 [Reserved]
2003.17 Availability of information.
2003.18 Functional organization of RHS.
2003.19-2003.21 [Reserved]
2003.22 Functional organization of RUS.
2003.23-2003.25 [Reserved]
2003.26 Functional organization of RBS.
2003.27-2003.50 [Reserved]
Authority: 5 U.S.C. 301; 7 U.S.C. 6941; and 7 CFR 2.17.
Source: 62 FR 67259, Dec. 24, 1997, unless otherwise noted.
Subpart A_Functional Organization of the Rural Development Mission Area
Sec. 2003.1 Definitions.
EEO--the Equal Employment Opportunity Act of 1972, 42 U.S.C. Sec.
2000e et seq.
O&M--Operations and Management.
P&P--Policy and Planning.
RBS--Rural Business-Cooperative Development Service, USDA, or any
successor agency.
RHS--Rural Housing Service, USDA, or any successor agency.
RTB--Rural Telephone Bank authorized by 7 U.S.C. 944.
Rural Development--Rural Development mission area of USDA.
RUS--Rural Utilities Service, USDA, or any successor agency.
Secretary--the Secretary of USDA.
USDA--the United States Department of Agriculture.
Sec. 2003.2 General.
The Rural Development mission area of the Department of Agriculture
was established as a result of the Department of Agriculture
Reorganization Act of 1994, Title II of Pub.L. 103-354. Rural
Development's basic organization consists of Headquarters in Washington,
D.C. and 47 State Offices. Headquarters maintains overall planning,
coordination, and control of Rural Development agency programs.
Administrators head RHS, RBS, and RUS under the direction of the Under
Secretary for Rural Development. State Directors head the State Offices
and are directly responsible to the Under Secretary for the execution of
all Rural Development agency programs within the boundaries of their
states.
Sec. Sec. 2003.3-2003.4 [Reserved]
Sec. 2003.5 Headquarters organization.
(a) The Rural Development Headquarters is comprised of:
(1) The Office of the Under Secretary;
(2) Two Deputy Under Secretaries; and,
(3) Three Administrators and their staffs.
(b) The Rural Development Headquarters is located at 1400
Independence Avenue, SW., Washington, DC. 20250-0700
Sec. 2003.6 Office of the Under Secretary.
In accordance with 7 CFR Sec. 2.17 the Secretary has delegated to
the Under Secretary, Rural Development, authority to manage and
administer programs and support functions of the Rural Development
mission area.
(a) Office of the Deputy Under Secretary for P&P. This office is
headed by the Deputy Under Secretary for P&P. The Under Secretary, Rural
Development, has delegated to the Deputy Under Secretary for P&P,
responsibility for formulation and development of short-and long-range
rural development policies of the Department in accordance with 7 CFR
Sec. 2.45. The Deputy Under Secretary for P&P reports directly to the
Under Secretary, Rural Development, and provides guidance and
supervision for research, policy analysis and development, strategic
planning, partnerships and special initiatives. For budget and
accounting
[[Page 8]]
purposes, all of the staff offices under the Deputy Under Secretary for
P&P are housed in RBS.
(1) The Budget Analysis Division assesses potential impacts of
alternative policies on the mission area's programs and operations and
develops recommendations for change. The units are headed by the Chief
Budget Officer, who individually serves as the top policy advisor to the
Under Secretary and Deputy Under Secretary on all matters relating to
mission area budget policy.
(2) The Research, Analysis and Information Division analyzes
information on rural conditions and the strategies and techniques for
promoting rural development. The division performs, or arranges to have
conducted, short-term and major research studies needed to formulate
policy.
(3) The Reinvention and Capacity Building Division coordinates the
mission area's strategic planning initiatives, both at the National
level and in the State Offices. The division assists the Rural
Development agencies in their implementation of the Government
Performance and Results Act (GPRA) and special initiatives of the
Administration, USDA, and the Office of the Under Secretary.
(4) The Rural Initiatives and Partnership Division manages the
mission area's involvement and coordination with other Federal and state
departments and agencies to assess rural issues and develop model
partnerships and initiatives to achieve shared rural development goals.
The division is responsible for managing the National Rural Development
Partnership and providing support and oversight of 37 State Rural
Development Councils.
(b) Office of the Deputy Under Secretary for O&M. In accordance with
7 CFR 2.45, the Under Secretary, Rural Development, has delegated to the
Deputy Under Secretary for O&M responsibility for providing leadership
in planning, developing, and administering overall administrative
management program policies and operational activities of the Rural
Development mission area. The Deputy Under Secretary for O&M reports
directly to the Under Secretary, Rural Development.
(1) Office of the Deputy Administrator for O&M. Headed by the Deputy
Administrator for O&M, this office reports directly to the Deputy Under
Secretary for O&M, and is responsible for directing and coordinating the
consolidated administrative and financial management functions for Rural
Development. This office provides overall guidance and supervision for
budget and financial management, human resources management and
personnel services, administrative and procurement services, information
resources management and automated data systems. For budget and
accounting purposes, all of the staff offices under the Deputy
Administrator for O&M are housed in RHS.
(i) Office of the Controller. Headed by the Chief Financial Officer,
this office supports the Deputy Administrator for O&M in executing Rural
Development requirements related to compliance with the Chief Financial
Officers Act of 1990 and provides leadership, coordination, and
oversight of all financial management matters and financial execution of
the budget for the Rural Development agencies. This office also has full
responsibility for Rural Development agencies' accounting, financial,
reporting, and internal controls. The office provides direct oversight
to the Headquarters Budget Division, Financial Management Division, and
the Office of the Assistant Controller, located in St. Louis, Missouri.
(ii) Office of Assistant Administrator for Procurement and
Administrative Services. Headed by the Assistant Administrator for
Procurement and Administrative Services, this office is responsible to
the Deputy Administrator for O&M for overseeing the Procurement
Management Division, the Property and Supply Management Division, and
the Support Services Division:
(A) The Procurement Management Division is responsible for
developing, implementing, and interpreting procurement and contracting
policies for the Rural Development mission area. Major functions include
planning outreach efforts and goals for small and disadvantaged
businesses, providing staff assistance reviews in State and Local
Offices, administering the Contracting Officer Professionalism Warrant
program for Rural Development
[[Page 9]]
agencies, and coordinating the development of Rural Development's
acquisition plans.
(B) The Property and Supply Management Division is responsible for
developing office space acquisition and utilization policies, providing
training to field office leasing officers, administering the Leasing
Officer Warrant program, assuring accessibility compliance in Rural
Development's work sites, administering Rural Development's Physical
Security program, and establishing and providing oversight to the
worksite Energy Conservation program. This office operates a nationwide
supply warehousing and distribution program, and oversees a nationwide
Personal Property Management and Utilization Program, manages the U.S.
Department of Agriculture (USDA) Excess Personal Property Program for
field level activities, and provides direct support services to Rural
Development's St. Louis facilities.
(C) The Support Services Division has responsibility for designing,
developing, administering, and controlling Rural Development's
directives management and issuance system, coordinating Rural
Development's Regulatory Agenda and Regulatory Program submissions to
USDA and OMB, serving as Federal Register liaison, and analyzing and
coordinating regulatory work plans for the Under Secretary. This office
submits Paperwork Reduction Act public burden clearances to OMB,
administers all printing programs, manages Rural Development travel
policies and programs, and manages Freedom of Information Act, Privacy
Act and Tort Claims programs.
(iii) Office of Information Resources Management (IRM). Headed by
the Chief Information Officer, this office is responsible to the Deputy
Administrator for O&M for developing Rural Development's IRM policies,
regulations, standards and guidelines. This office provides overall
leadership and direction to activities assigned to the following four
major divisions:
(A) The Customer Services Division is responsible for direct
customer and technical support (hardware and software).
(B) The Management Services Division coordinates all IRM
acquisition, budget, and policy and planning activities in support of
Rural Development automation.
(C) The Information Technology Division provides support technical
services in the areas of data administration, system integrity
management, research and development, and telecommunications.
(D) The Systems Services Division is responsible for planning,
directing, and controlling activities related to Rural Development's
Automated Information Systems.
(iv) Office of the Assistant Administrator for Human Resources.
Headed by the Assistant Administrator for Human Resources, this office
is responsible to the Deputy Administrator for O&M for the overall
development, implementation, and management, of personnel and human
resources support services for Rural Development. The office provides
direction to the Headquarters Personnel Services, Human Resources
Training and Mission Area Personnel Services Division, and Labor
Relations Staff offices. The office is also responsible for the
establishment of recruitment, retention, and development policies and
programs supporting workforce diversity and affirmative action.
(2) Office of Civil Rights Staff. Headed by a staff director, this
staff has primary responsibility for providing leadership and
administration of the Civil Rights Program for the Rural Development
mission area. The staff conducts on-site reviews of borrowers and
beneficiaries of Federal financial assistance to ensure compliance with
Titles VI and VII of the Civil Rights Act of 1964, as amended, Title
VIII of the Civil Rights Act of 1968, as amended, Section 504 of the
Rehabilitation Act, the Americans with Disabilities Act, and prepares
compliance reports. The staff conducts and evaluates Title VII
compliance visits to insure that EEO programs are adequately
implemented. In addition, the office develops, monitors, and evaluates
Affirmative Employment programs for minorities, women and persons with
disabilities, and coordinates and conducts community outreach activities
at historically black colleges and universities. It also has oversight
of special emphasis programs
[[Page 10]]
such as the Federal Women's Program, Hispanic Emphasis Program, and
Black Emphasis Program. The staff director reports directly to the
Deputy Under Secretary for O&M.
(3) Office of Communications. Headed by a director who reports
directly to the Deputy Under Secretary for O&M, this office has primary
responsibility for tracking legislation and development and institution
of policies to provide public communication and information services
related to the Rural Development. The office maintains a constituent
data base and conducts minority outreach efforts and administers a
public information and media center responsible for media inquiries,
news releases, program announcements, media advisories, and information
retrieval. This office also serves as a liaison with Office of
Congressional Relations (OCR), Office of the General Counsel (OGC), and
other Departmental units involved in Congressional relations and public
information. This office drafts testimony, prepares witnesses, and
provides staff for hearings and markups. In addition, the office briefs
Congressional members and staff on the Rural Development matters,
coordinates Rural Development's legislative activities with other USDA
agencies and OMB and develops and implements legislative strategy. The
staff also coordinates development and production of brochures, press
releases, and other public information materials.
Sec. Sec. 2003.7-2003.9 [Reserved]
Sec. 2003.10 Rural Development State Offices.
(a) Headed by State Directors, State Offices report directly to the
Under Secretary, Rural Development, and are responsible to the three
Rural Development agency Administrators for carrying out agency program
operations at the State level, ensuring adherence to program plans
approved for the State by the Under Secretary, and rendering staff
advisory and manpower support to Area and Local offices. The Rural
Development State Directors, for budget and accounting purposes, are
housed in the RHS agency.
(b) Program Directors within the State Office provide oversight and
leadership on major program functions. Major program functions include:
Single Family and Multi-Family Housing loans and grants, Community
Facility, Water and Waste Disposal, Business and Cooperative, and the
Empowerment Zones and Enterprise Communities (EZ/EC) programs.
(c) The USDA Rural Development State Office locations are as
follows:
------------------------------------------------------------------------
State Location
------------------------------------------------------------------------
Alabama................................... Montgomery, AL
Alaska.................................... Palmer, AK
Arizona................................... Phoenix, AZ
Arkansas.................................. Little Rock, AR
California................................ Woodland, CA
Colorado.................................. Lakewood, CO
Delaware.................................. Camden, DE
Florida................................... Gainesville, FL
Georgia................................... Athens, GA
Hawaii.................................... Hilo, HI
Idaho..................................... Boise, ID
Illinois.................................. Champaign, IL
Indiana................................... Indianapolis, IN
Iowa...................................... Des Moines, IA
Kansas.................................... Topeka, KS
Kentucky.................................. Lexington, KY
Louisiana................................. Alexandria, LA
Maine..................................... Bangor, ME
Massachusetts............................. Amherst, MA
Michigan.................................. East Lansing, MI
Minnesota................................. St. Paul, MN
Mississippi............................... Jackson, MS
Missouri.................................. Columbia, MO
Montana................................... Bozeman, MT
Nebraska.................................. Lincoln, NE
Nevada.................................... Carson City, NV
New Jersey................................ Mt. Holly, NJ
New Mexico................................ Albuquerque, NM
New York.................................. Syracuse, NY
North Carolina............................ Raleigh, NC
North Dakota.............................. Bismarck, ND
Ohio...................................... Columbus, OH
Oklahoma.................................. Stillwater, OK
Oregon.................................... Portland, OR
Pennsylvania.............................. Harrisburg, PA
Puerto Rico............................... Hato Rey, PR
South Carolina............................ Columbia, SC
South Dakota.............................. Huron, SD
Tennessee................................. Nashville, TN
Texas..................................... Temple, TX
Utah...................................... Salt Lake City, UT
Vermont................................... Montpelier, VT
Virginia.................................. Richmond, VA
Washington................................ Olympia, WA
West Virginia............................. Charleston, WV
Wisconsin................................. Stevens Point, WI
Wyoming................................... Casper, WY
------------------------------------------------------------------------
[62 FR 67259, Dec. 24, 1997; 63 FR 3256, Jan. 22, 1998]
Sec. Sec. 2003.11-2003.13 [Reserved]
Sec. 2003.14 Field Offices.
Rural Development field offices report to their respective State
Director
[[Page 11]]
and State Office Program Directors. State Directors may organizationally
structure their offices based on the program workloads within their
respective State. Field offices generally are patterned in a three or
two tier program delivery structure. In a three tier system, Local
offices report to an Area office, that reports to the State Office. In a
two tier system, a ``Local'' or ``Area'' office reports to the State
Office. Locations and telephone numbers of Area and Local Offices may be
obtained from the appropriate Rural Development State Office.
Sec. Sec. 2003.15-2003.16 [Reserved]
Sec. 2003.17 Availability of information.
Information concerning Rural Development programs and agencies may
be obtained from the Office of Communications, Rural Development, U. S.
Department of Agriculture, STOP 0705, 1400 Independence Avenue SW.,
Washington, DC 20250-0705.
Sec. 2003.18 Functional organization of RHS.
(a) General. The Secretary established RHS pursuant to Sec. 233 of
the Department of Agriculture Reorganization Act of 1994 (7 U.S.C.
6943).
(b) Office of the Administrator. According to 7 CFR 2.49, the
Administrator has responsibility for implementing programs aimed at
delivering loans and grant assistance to rural Americans and their
communities in obtaining adequate and affordable housing and community
facilities, in accordance with Title V of the Housing Act of 1949 (42
U.S.C. 1471 et seq.) and the Consolidated Farm and Rural Development Act
(7 U.S.C. 1921 et seq.).
(1) Legislative Affairs Staff. The duties and responsibilities of
this staff have now been aligned under the Office of Communication,
headed by a director who reports directly to the Under Secretary for
O&M. The Office of Communication is responsible for providing and
carrying out legislative, public communication, and information services
for the Rural Development mission area.
(2) Office of Program Support Staff. The Program Support Staff is
headed by a staff director who is responsible to the Administrator for
monitoring managerial and technical effectiveness of RHS programs. The
staff coordinates review and analysis of legislation, Executive Orders,
OMB circulars, and Department regulations for their impact on Agency
programs. The staff develops, implements, and reports on architectural
and environmental policies, in cooperation with the Department. Staff
responsibilities also include managing RHS's Hazardous Waste Management
Fund, coordinating the Debarment and Suspension process for RHS,
tracking the use of Program Loan Cost Expense funds, and maintaining the
RHS Internet ``Home Page.''
(3) Office of Deputy Administrator, Single Family Housing. Headed by
the Deputy Administrator, Single Family Housing, this office is
responsible to the Administrator for the development and implementation
of RHS's Single Family Housing programs, which extend supervised housing
credit to rural people of limited resources, for adequate, modest,
decent, safe, and sanitary homes. The office is responsible for
administering and managing sections 502 and 504 Rural Housing direct and
guaranteed loan and grant programs, Rural Housing and Self-Help Site
loans, the Self-Help Technical Assistance grant program, Housing
Application Packaging and Technical and Supervisory Assistance grants,
and Home Improvement and Repaid loans and grants. The office directs the
following three divisions: Single Family Housing Processing Division,
Single Family Housing Servicing and Property Management Division, and
Single Family Housing Centralized Servicing Center in St. Louis, Mo.
(i) Office of Single Family Housing Processing Division. Headed by a
division director, this division is responsible for development and
nationwide implementation of policies on processing Single Family
Housing direct and guaranteed program loans. In addition, the division
provides direction on the following: the Rural Housing Targeted Area
Set-Aside program, debarments, payment assistance, title clearance and
loan closing, site/subdivision development, Deferred Mortgage Payment
Program; construction
[[Page 12]]
defects, credit reports, appraisals, Manufactured Housing, coordinated
assessment reviews, Home Buyer's Counseling/Education Program, and
allocation of loan and grant program funds.
(ii) Office of Single Family Housing Servicing and Property
Management Division. Headed by a division director, this division is
responsible for the development and implementation of nationwide
policies for servicing RHS's multi-billion dollar portfolio of Single
Family Housing loans, and managing and selling Single Family Housing
inventory properties. The division also conducts state program
evaluations, identifies program weaknesses, makes recommendations for
improvements, and identifies corrective actions.
(iii) Office of Single Family Housing Centralized Servicing Center
(CSC)--St. Louis, Missouri. Headed by a director, CSC is responsible for
centrally servicing RHS's multi-billion dollar portfolio of Single
Family Housing loans. CSC provides interest credit or payment assistance
renewals, performs escrow activities for real estate taxes and property
hazard insurance, oversees collection of loan payments, and grants
interest credit, payment assistance, and moratoria.
(4) Office of the Deputy Administrator, Multi-Family Housing
Division. Headed by the Deputy Administrator, Multi-Family Housing, this
office is responsible for the development and nationwide implementation
of RHS's Multi-Family Housing programs, which extend supervised housing
credit to rural residents an opportunity to have decent, safe, and
sanitary rental housing. The following programs are administered and
managed by this office: Section 515 Rural Rental Housing, Rural
Cooperative and Congregate Housing Programs, Section 521 Rental
Assistance, Farm Labor Housing loan and grant programs, Housing
Preservation Grants, rural housing vouchers, and Housing Application
Packaging Grants. This office directs the following two divisions:
(i) Multi-Family Housing Processing Division. Headed by a division
director, this division is responsible for the development and
nationwide implementation of policies on processing Multi-Family Housing
program loans. The division manages the following program areas: elderly
and family rental housing, Farm Labor Housing loans and grants, outreach
contacts, congregate facilities, Housing Preservation Grants,
cooperative housing, rural housing vouchers, appraisals, Congregate
Housing Services Grants, Rental Assistance, Housing Application
Packaging Grants, targeted area and nonprofit set asides, Multi-Family
Housing suspensions and debarments, title clearance and loan closing,
allocation and monitoring of loan and grant funds, adverse decisions and
appeals, commercial credit reports, individual credit reports, and, site
development.
(ii) Multi-Family Housing Portfolio Management Division. Headed by a
division director, this division is responsible for the development and
institution of policies on the management and servicing of the
nationwide Multi-Family Housing programs. The Division implements
current and long range plans for servicing Rural Rental Housing loans,
Labor Housing loans and grants, and Rental Assistance or similar tenant
subsidies.
(5) Office of the Deputy Administrator, Community Programs. Headed
by the Deputy Administrator, Community Programs, this office is
responsible for overseeing the administration and management of
Community Facilities loans and grants to hospitals and nursing homes,
police and fire stations, libraries, schools, adult and child care
centers, etc. The office monitors and evaluates the administration of
loan and grant programs on a nationwide basis and provides guidance and
direction for community programs through two divisions, Community
Programs Loan Processing Division and Servicing and Special Authorities
Division.
(i) Community Programs Loan Processing Division. Headed by a
director, this division is responsible for the overall administration,
policy development, fund distribution, and processing of Community
Facilities loans and grants and other loan and grant programs assigned
to the Division.
(ii) Servicing and Special Authorities Division. Headed by a
division director, this division is responsible for the overall
administration, policy development, and servicing of the Community
[[Page 13]]
Facilities loan and grant programs. The division conducts program
evaluations, identifies program weaknesses, makes recommendations for
improvements, and identifies corrective actions. The division also
administers and services Nonprofit National Corporation loans and
grants.
[62 FR 67259, Dec. 24, 1997, as amended at 64 FR 32388, June 17, 1999]
Sec. Sec. 2003.19-2003.21 [Reserved]
Sec. 2003.22 Functional organization of RUS.
(a) General. The Secretary established RUS pursuant to Sec. 232 of
the Department of Agriculture Reorganization Act of 1994 (7 U.S.C.
6942).
(b) Office of the Administrator. According to 7 CFR 2.47, the
Administrator has responsibility for managing and administering the
programs and support functions of RUS to provide financial and technical
support for rural infrastructure to include electrification, clean
drinking water, telecommunications, and water disposal systems, pursuant
to the Consolidated Farm and Rural Development Act, as amended (7 U.S.C.
1921 et seq.), and the Rural Electrification Act of 1936, as amended (7
U.S.C. 901 et seq.). The office develops and implements strategic plans
concerning the Rural Electrification Act of 1936, as amended. The
Administrator serves as Governor of the Rural Telephone Bank (RTB) with
a 13-member board of directors, and exercises and performs all
functions, powers, and duties of the RTB in accordance with 7 U.S.C.
944.
(1) Borrower and Program Support Services. Borrower and Program
Support Services consist of the three following staffs which are
responsible to the Administrator for planning and carrying out a variety
of program and administrative services in support of all RUS programs,
and providing expert advice and coordination for the Administrator:
(i) Administrative Liaison Staff. Headed by a staff director, this
staff advises the Administrator on management issues and policies
relating to human resources, EEO, labor-management partnership,
administrative services, travel management, automated information
systems, and administrative budgeting and funds control.
(ii) Program Accounting Services Division. Headed by a division
director, this division develops and evaluates the accounting systems
and procedures of Electric, Telecommunications, and Water and Wastewater
borrowers; assures that accounting policies, systems, and procedures
meet regulatory, Departmental, General Accounting Office, OMB, and
Treasury Department requirements; examines borrowers' records and
operations, and reviews expenditures of loans and other funds; develops
audit requirements; and approves Certified Public Accountants to perform
audits of borrowers.
(iii) Program and Financial Services Staff. Headed by a staff
director, this staff evaluates the financial conditions of troubled
borrowers, negotiates settlements of delinquent loans, and makes
recommendations to program Assistant Administrators on ways to improve
the financial health of borrowers.
(2) Office of Assistant Administrator--Electric Program. Headed by
the Assistant Administrator--Electric Program, this office is
responsible to the Administrator for directing and coordinating the
Rural Electrification program of RUS nationwide. This office develops,
maintains, and implements regulations and program procedures on
processing and approving loans and loan-related activities for rural
electric borrowers. The office directs the following three divisions:
(i) Electric Regional Divisions. Headed by division directors, these
two divisions are responsible for administering the Rural
Electrification program in specific geographic areas and serving as the
single point of contact for all distribution borrowers. The divisions
provide guidance to borrowers on RUS loan policies and procedures,
maintain oversight of borrower rate actions, and make recommendations to
the Administrator on borrower applications for RUS financing. The
divisions also assure that power plant, distribution, and transmission
systems and facilities are designed and constructed in accordance with
the terms of the loan and proper engineering practices and
specifications.
[[Page 14]]
(ii) Power Supply Division. Headed by a division director, this
division is responsible for administering the Rural Electrification
program responsibilities with regard to power supply borrowers
nationwide and serves as primary point of contact between RUS and all
such borrowers. The division develops and maintains a loan processing
program for Rural Electrification Act purposes, and develops and
administers engineering and construction policies related to planning,
design, construction, operation, and maintenance for power supply
borrowers.
(iii) Electric Staff Division. Headed by a division director, this
division is responsible for engineering activities related to the
design, construction, and technical operations and maintenance of power
plants; distribution of power; and transmission systems and facilities,
including load management and communications. The division develops
criteria and techniques for evaluating the financing and performance of
electric borrowers and forecasting borrowers' future power needs; and
maintains financial expertise on the distribution and power supply loan
program, and retail and wholesale rates.
(3) Office of Assistant Administrator--Telecommunications Program.
Headed by the Assistant Administrator--Telecommunications Program, this
office is responsible to the Administrator for directing and
coordinating the National Rural Telecommunications, Distance Learning,
and Telemedicine programs of RUS. The Assistant Administrator,
Telecommunications Program, serves as Assistant Governor of the RTB and
is responsible for the day-to-day activities of the RTB. The office
develops, maintains, and implements regulations and program procedures
on the processing and approval of grants, loans, and loan-related
activities for all rural telecommunications borrowers and grant
recipients. The office directs the following three divisions:
(i) Telecommunications Standards Division. Headed by a division
director, this division is responsible for engineering staff activities
related to the design, construction, and technical operation and
maintenance of rural telecommunications systems and facilities. The
office develops engineering practices, policies, and technical data
related to borrowers' telecommunications systems; and evaluates the
application of new communications network technology, including distance
learning and telemedicine, to rural telecommunications systems.
(ii) Advanced Telecommunications Services Staff. Headed by a staff
director, this staff primarily serves the Assistant Administrator,
Telecommunications Program in the role of the Assistant Governor of the
RTB. The office performs analyses and makes recommendations to the AAT
on issues raised by the RTB Governor, Board of Directors, or RTB
borrowers. This staff maintains official records for the RTB Board and
prepares minutes of RTB Board meetings. The staff director serves as the
Assistant Secretary to the RTB. The staff performs the calculations
necessary to determine the cost of money rate to RTB borrowers and
recommends and develops program- wide procedures for loan and grant
programs. The office is responsible for the Telecommunications Program's
home page on the Internet.
(iii) Telecommunications Area Offices. Headed by area directors,
these four offices are responsible for administering the
Telecommunications, Distance Learning, and Telemedicine programs for
specific geographic areas, and serving as the single point of contact
for all program applicants and borrowers within their respective areas.
The offices provide guidance to applicants and borrowers on RUS and RTB
loan policies and procedures, and make recommendations to the
Administrator on applications for loans, guarantees, and grants. The
offices assure that borrower systems and facilities are designed and
constructed in accordance with the terms of the loan, acceptable
engineering practices and specifications, and acceptable loan security
standards.
(4) Office of the Assistant Administrator--Water and Environmental
Programs. Headed by the Assistant Administrator, Water and Environmental
Programs, this office is responsible to the Administrator for directing
and coordinating a nationwide Water and
[[Page 15]]
Waste Disposal Program for RUS as authorized under Section 306 of the
Consolidated Farm and Rural Development Act, as amended (7 U.S.C. 1926).
The office oversees administration of RUS policies on making and
servicing loans and grants for water and waste facilities in rural
America, and the development of engineering policies, and practices
related to the construction and operation of community water and waste
disposal systems. This office is responsible for development and
coordination of environmental programs with regard to the Water and
Waste Disposal Program and directs the following two divisions:
(i) Water Programs Division. Headed by the division director, this
division is responsible for administering the Water and Waste Disposal
loan and grant making and servicing and special authorities activities
nationwide. This office also makes allocation of loan and grant funds to
field offices and manages National Office reserves.
(ii) Engineering and Environmental Staff. Headed by a staff
director, this staff is responsible for engineering activities at all
stages of program implementation, including: review of preliminary
engineering plans and specifications, procurement practices, contract
awards, construction monitoring, and system operation and maintenance.
The staff also develops Agency engineering practices, policies, and
technical data related to the construction and operation of community
water and waste disposal systems. The staff is responsible for
coordinating environmental policy and providing technical support in
areas such as: hazardous waste, debarment and suspension, flood
insurance, drug free workplace requirements, and computer program
software.
Sec. Sec. 2003.23-2003.25 [Reserved]
Sec. 2003.26 Functional organization of RBS.
(a) General. The Secretary established RBS pursuant to Sec. 234 of
the Department of Agriculture Reorganization Act of 1994 (7 U.S.C.
6944).
(b) Office of the Administrator. According to 7 CFR 2.48, the
Administrator is responsible for managing and administering the programs
and support functions of RBS to provide assistance to disadvantaged
communities through grants and loans and technical assistance to
businesses and communities for rural citizens and cooperatives, pursuant
to the following authorities: the Rural Electrification Act of 1936, as
amended (7 U.S.C. 940c and 950aa et seq.), the Consolidated Farm and
Rural Development Act (7 U.S.C. 1921 et seq.), the Cooperative Marketing
Act of 1926 (7 U.S.C. 451-457), the Agricultural Marketing Act of 1946
(7 U.S.C. 1621-1627), and the Food Security Act of 1985 (7 U.S.C. 1932).
These grants, loans, and technical assistance improve community welfare
by enhancing organizational and management skills, developing effective
economic strategies, and expanding markets for a wide range of rural
products and services.
(1) Resources Coordination Staff. Headed by the staff director, this
staff is responsible to the Administrator for preparing legislative
initiatives and modifications for program enhancement. The staff
monitors legislative and regulatory proposals that potentially impact
RBS functions. The staff serves as liaison on budgetary and financial
management matters between RBS staff and the Office of the Controller,
and assists the Administrator in presenting and supporting RBS's budget
and program plans. The staff also advises the Administrator and RBS
officials on management issues and policies related to: human resources,
labor relations, civil rights, EEO, space, equipment, travel, Senior
Executive Service and Schedule C activities, contracting, automated
information systems, and accounting. The staff provides analysis and
recommendations on the effectiveness of administrative and management
activities, and performs liaison functions between RBS and the Office of
the Deputy Under Secretary for O&M on a wide variety of administrative
functions.
(2) Office of the Deputy Administrator, Business Programs. Headed by
the Deputy Administrator, Business Programs, this office is responsible
to the Administrator for overseeing and coordinating the Business and
Industry Guaranteed and Direct Loan programs, Intermediary Relending
Program
[[Page 16]]
loans, Rural Business Enterprise grants, Rural Business Opportunity
grants, Rural Economic Development loan and grant programs, and the
Rural Venture Capital Demonstration Program. The office participates in
policy planning, and program development and evaluation. It also directs
the following three divisions:
(i) Processing Division. Headed by the division director, this
division is responsible for developing and maintaining loan processing
regulations, and directs the processing and approval of guaranteed and
direct business and industry loans, and the Rural Venture Capital
Demonstration Program. It provides technical assistance to field
employees and borrowers on loan processing and develops approval
criteria and performance standards for loans. The division recommends
plans, programs, and activities related to business loan programs and
provides environmental guidance and support.
(ii) Servicing Division. Headed by the division director, this
office is responsible for developing and maintaining servicing
regulations. It directs and provides technical assistance to field
employees and borrowers on servicing business loans and grants. The
division reviews large, complex, or potentially controversial loan and
grant dockets related to loan servicing and recommends servicing plans,
programs, and activities related to business loan and grant programs.
(iii) Specialty Lenders Division. Headed by the division director,
this office is responsible for directing and developing and maintaining
regulations concerning the processing and approval of Intermediary
Relending loans, Rural Business Enterprise grants, Rural Business
Opportunity grants, and Rural Economic Development loan and grant
programs. The division provides technical assistance to field employees
and borrowers on loan and grant processing and other activities. It also
develops approval criteria and performance standards and recommends
plans, programs, and activities related to business loan and grant
programs.
(3) Office of the Deputy Administrator, Cooperative Services
Programs. Headed by the Deputy Administrator, Cooperative Services
Programs, this office is responsible to the Administrator for providing
service to cooperative associations by administering a program of
research and analysis of economic, social, legal, financial, and other
related issues concerning cooperatives. The office administers programs
to assist cooperatives in the organization and management of their
associations and a program for economic research and analysis of the
marketing aspects of cooperatives. The division administers and monitors
activities of the National Sheep Industry Improvement Center and the
Appropriate Technology Transfer to Rural Areas Program, and the Rural
Cooperative Development Grant Program. The office directs the following
three divisions:
(i) Cooperative Marketing Division. Headed by the division director,
this division is responsible for participating in the formulation of
National policies and procedures on cooperative marketing. The division
conducts research and analysis and gives technical assistance to farmer
cooperatives on cooperative marketing of certain crops, livestock,
aquaculture, forestry, poultry, semen, milk, and dairy products to
improve their market performance and economic position.
(ii) Cooperative Development Division. Headed by the division
director, this division is responsible for participating in the
formulation of National policies and procedures on cooperative
development. The office conducts evaluations and analysis of proposed
new cooperatives to develop plans for implementing feasible operations,
and advises and assists rural resident groups and developing
cooperatives in implementing sound business plans for new cooperatives.
It provides research, analysis, and technical assistance to rural
residents on cooperative development initiatives and strategies to
improve economic conditions through cooperative efforts.
(iii) Cooperative Resource Management Division. Headed by the
division director, this division is responsible for participating in the
formulating of National policies and procedures on cooperative resource
management. The division conducts research and analysis and gives
technical assistance to cooperatives on their overall structure,
[[Page 17]]
strategic management and planning, financial issues, and operational
characteristics to improve their use of resources, financial policies,
and ability to adapt to market conditions. The division conducts
research and analysis of policy, taxation, Federal laws, State statutes,
and common laws that apply to cooperative incorporation, structure, and
operation to assist cooperatives in meeting legal requirements.
(4) Office of the Deputy Administrator, Community Development.
Headed by the Deputy Administrator, Community Development, this office
is responsible to the Under Secretary, Rural Development, for
coordinating and overseeing all functions in the Community Outreach and
Empowerment Program areas. The office assists in providing leadership
and coordination to National and local rural economic and community
development efforts. For appropriation and accounting purposes, this
office is located under RBS. The office directs the following two
divisions:
(i) Empowerment Program Division. Headed by the division director,
this division is responsible for formulating policies and developing
plans, standards, procedures, and schedules for accomplishing RBS
activities related to ``community empowerment programs'', including EZ/
EC, AmeriCorps, and other initiatives. The office develops informational
materials and provides technical advice and services to support States
on community empowerment programs. It also generates information about
rural conditions and strategies and techniques for promoting rural
economic development for community empowerment programs.
(ii) Community Outreach Division. Headed by the division director,
this division is responsible for designing and overseeing overall
systems and developing resources to support State and community level
implementation activities for RBS programs. The office designs program
delivery systems and tools, removes impediments to effective community-
level action, supports field offices with specialized skills, and
establishes partnerships with National organizations with grass-roots
membership to assure that programs and initiatives are designed and
implemented in a way that empowers communities. It develops methods for
working with rural business intermediaries to assist them in providing
technical assistance to new, small business, and provides Internet-based
services to 1890 Land-grant universities, EZ/EC, and AmeriCorps
volunteers, linking RBS information support to communities with high
levels of need.
(5) Alternative Agricultural Research and Commercialization
Corporation. Headed by a director, this Corporation is responsible for
providing and monitoring financial assistance for the development and
commercialization of new nonfood and nonfeed products from agricultural
and forestry commodities in accordance with 7 U.S.C. 5901 et seq. The
Corporation acts as a catalyst in forming private and public
partnerships and promotes new uses of agricultural materials. It expands
market opportunities for U.S. farmers through development of value-added
industrial products and promotes environmentally friendly products. For
budget and accounting purposes, this office is assigned to RBS. The
director of the Corporation is responsible to the Office of the
Secretary.
Sec. Sec. 2003.27-2003.50 [Reserved]
PART 2018_GENERAL--Table of Contents
Subparts A-E [Reserved]
Subpart F_Availability of Information
Sec.
2018.251 General statement.
2018.252 Public inspection and copying.
2018.253 Indexes.
2018.254 Requests for records.
2018.255 Appeals.
2018.256-2018.300 [Reserved]
Authority: 5 U.S.C. 552.
Subparts A-E [Reserved]
Subpart F_Availability of Information
Source: 61 FR 32645, June 25, 1996, unless otherwise noted.
[[Page 18]]
Sec. 2018.251 General statement.
In keeping with the spirit of the Freedom of Information Act (FOIA),
the policy of Rural Development and its component agencies, Rural
Housing Service (RHS), Rural Utilities Service (RUS), and Rural
Business-Cooperative Service (RBS), governing access to information is
one of nearly total availability, limited only by the countervailing
policies recognized by the FOIA.
Sec. 2018.252 Public inspection and copying.
Facilities for inspection and copying are provided by the Freedom of
Information Officer (FOIO) in the National Office, by the State Director
in each State Office, by the Rural Development Manager (formerly,
District Director) in each District Office, and by the Community
Development Manager (formerly, County Supervisor) in each County Office.
A person requesting information may inspect such materials and, upon
payment of applicable fees, obtain copies. Material may be reviewed
during regular business hours. If any of the Rural Development materials
requested are not located at the office to which the request was made,
the request will be referred to the office where such materials are
available.
Sec. 2018.253 Indexes.
Since Rural Development does not maintain any materials to which 5
U.S.C. 552(a)(2) applies, it maintains no indexes.
Sec. 2018.254 Requests for records.
Requests for records are to be submitted in accordance with 7 CFR
1.3 and may be made to the appropriate Community Development Manager,
Rural Development Manager, State Administrative Management Program
Director (formerly, State Administrative Officer), State Director,
Freedom of Information/Privacy Act Specialist, or Freedom of Information
Officer. The last two positions are located in the Rural Development
Support Services Division, Washington, DC 20250. The phrase ``FOIA
REQUEST'' should appear on the outside of the envelope in capital
letters. The FOIA requests under the Farm Credit Programs (formally FmHA
Farmer Programs) should be forwarded to the Farm Service Agency (FSA),
Freedom of Information Officer, Room 3624, South Agriculture Building,
14th & Independence Avenue, SW., Washington, DC 20250-0506. Requests
should be as specific as possible in describing the records being
requested. The FOIO, Freedom of Information/Privacy Act Specialist, each
State Administrative Management Program Director, each State Director,
each Rural Development Manager, and each Community Development Manager
are delegated authority to act respectively at the national, state,
district, or county level on behalf of Rural Development to:
(a) Deny requests for records determined to be exempt under one or
more provisions of 5 U.S.C. 552(b);
(b) Make discretionary releases (unless prohibited by other
authority) of such records when it is determined that the public
interests in disclosure outweigh the public and/or private ones in
withholding; and
(c) Reduce or waive fees to be charged where determined to be
appropriate.
Sec. 2018.255 Appeals.
If all or any part of an initial request is denied, it may be
appealed in accordance with 7 CFR 1.7 to that particular Agency
possessing the documents. Please select the appropriate Agency to
forward your FOIA appeal from the following addresses: Administrator,
Rural Housing Service, Room 5014, AG Box 0701, 14th & Independence
Avenue, SW.--South Building, Washington, DC 20250-0701; Administrator,
Rural Business-Cooperative Service, Room 5045, AG Box 3201, 14th &
Independence Avenue, SW.--South Building, Washington, DC 20250-3201 and
Administrator, Rural Utilities Service, Room 4501, AG Box 1510, 14th &
Independence Avenue, SW.--South Building, Washington, DC 20250-1510. The
phrase ``FOIA APPEAL'' should appear on the front of the envelope in
capital letters.
[[Page 19]]
Sec. Sec. 2018.256-2018.300 [Reserved]
PART 2045_GENERAL--Table of Contents
Subparts A-II [Reserved]
Subpart JJ_Rural Development_Utilization of Gratuitous Services
Sec.
2045.1751 General.
2045.1752 Policy.
2045.1753 Authority to accept gratuitous services.
2045.1754 Scope of gratuitous services performed.
2045.1755 Preparation and disposition of agreement forms.
2045.1756 Records and reports.
Exhibit A to Subpart JJ--Agreement Form
Authority: 7 U.S.C. 1989; 42 U.S.C. 1480.
Source: 43 FR 3694, Jan. 27, 1978, unless otherwise noted.
Subparts A-II [Reserved]
Subpart JJ_Rural Development_Utilization of Gratuitous Services
Sec. 2045.1751 General.
Section 331(b) of the Consolidated Farm and Rural Development Act
(Pub. L. 92-419), and section 506(a) of the Housing Act of 1949, empower
the Secretary of Agriculture to accept and utilize voluntary and
uncompensated services in carrying out the provisions of the above cited
Acts. The Secretary has delegated those authorities to the Administrator
of the Farmers Home Administration (FmHA) or its successor agency under
Public Law 103-354 in 7 CFR 2.70(a) (1) and (2).
Sec. 2045.1752 Policy.
Voluntary and uncompensated (gratuitous) services may be accepted
with the consent of the agency concerned, from the following sources
under the conditions set forth in Exhibit A, ``Agreement for Utilization
of Employee of (Enter Official Title of Governing Body or Other
Authorized Organization) By the Farmers Home Administration or its
successor agency under Public Law 103-354'' (Agreement Form).
(a) Any agency of State government or of any territory or political
subdivision.
(b) Non-profit, educational, and charitable organizations, provided
that no partisan, political, or profit motive is involved either
explicitly or implicitly.
Sec. 2045.1753 Authority to accept gratuitous services.
(a) State Directors, Director, Personnel Division, and Director,
Finance Office, are hereby authorized to accept and utilize gratuitous
services offered by the governmental agencies listed in Sec.
2045.1752(a).
(b) An offer received by an FmHA or its successor agency under
Public Law 103-354 State or County Office from a source listed in Sec.
2045.1752(b) shall be transmitted to the National Office, Attention:
Director, Personnel Division, for decision. The offer will be
accompanied by copies of the Articles of Incorporation and By-laws (if
the organization is incorporated), a statement that the organization
accepts the conditions set forth in the Agreement Form, and evidence
that the organization is financially able to meet the required fiscal
obligations of the agreement.
Sec. 2045.1754 Scope of gratuitous services performed.
(a) Gratuitous services accepted in accordance with this subpart may
be utilized to perform any function performed by regular FmHA or its
successor agency under Public Law 103-354 employees (excluding Committee
members). Such services must not result in the displacement of
employees. Most of the gratuitous services should be performed at the
County Office level and conform to a standard FmHA or its successor
agency under Public Law 103-354 position description. A nonstandard
position description may be developed and used, depending on current
agency needs in a particular office and gratuitous skills available.
(b) Orientation and other training will be provided by FmHA or its
successor agency under Public Law 103-354 so that gratuitous services
may be performed in accordance with current FmHA or its successor agency
under Public Law 103-354 procedure.
(c) Persons performing authorized gratuitous services will be held
to the same standard as regular FmHA or its
[[Page 20]]
successor agency under Public Law 103-354 employees performing similar
duties. The issuance of, and accountability for, identification cards
and clearance of employee accountability will be as prescribed in FmHA
or its successor agency under Public Law 103-354 Instruction 2024-B
which is available in all FmHA or its successor agency under Public Law
103-354 Offices. Such persons, except Construction Inspectors may, when
under direct supervision of County Supervisors, act as Collection
Officers and be allowed to use receipt books.
[43 FR 3694, Jan. 27, 1978, as amended at 68 FR 61333, Oct. 28, 2003]
Sec. 2045.1755 Preparation and disposition of agreement forms.
(a) Agreements to accept and utilize gratuitous services must be
identical to the attached Exhibit A (Agreement Form) with such
exceptions as may be authorized by the Office of the General Counsel,
Department of Agriculture.
(b) Two copies of each signed Agreement Form will be forwarded to
the Personnel Division. One copy will be retained in the State or
Finance Office.
Sec. 2045.1756 Records and reports.
The FmHA or its successor agency under Public Law 103-354 official
signing the Agreement Form will maintain records to show the names, duty
assignments, time worked and work locations of all persons performing
gratuitous services. Copies of time reports submitted to the persons'
employers should suffice. These records will be necessary to respond to
occasional requests for reports on the acceptance and utilization of
gratuitous services in the FmHA or its successor agency under Public Law
103-354.
Exhibit A to Subpart JJ of Part 2045--Agreement Form
for utilization of employees of (official title of governing body or
other authorized organization, i.e., pickens county, ala., board of
commissioners)
by the Farmers Home Administration or its successor agency under Public
Law 103-354
1. This Agreement, date ------ between, --------------------, a
(political subdivision), (educational), (charitable), (or nonprofit) an
organization of the State of------------(hereinafter called the Agency)
and the United States of America acting through Farmers Home
Administration or its successor agency under Public Law 103-354, U.S.
Department of Agriculture (hereinafter called the Administration) is
entered into for the purpose of permitting certain employees of the
Agency (hereinafter called the Agency employees) to assist in the
Administration's effort to provide agricultural, housing and other
assistance for rural people of the State of------------in accordance
with Section 331(b) of the Consolidated Farm and Rural Development Act
and Section 506(a), Title V of the Housing Act of 1949.
2. The Administration certifies that it is empowered by the current
Federal laws cited above, and related rules and regulations, to accept
personnel assistance from the Agency as provided in paragraphs 4 and 5
below; and that the work assigned to Agency employees will be useful, in
the public interest, could not otherwise be provided, and will not
result in the displacement of employed workers.
3. The Agency certifies that it has the authority under the laws of
the State of------------to enter into this Agreeement and to provide the
services agreed upon in the manner provided for.
4. The Administration hereby supplies the Agency with a narrative
description which is made a part of this Agreement as Attachment ``A,''
explicitly setting forth the duties, knowledge, skills, and abilities to
be required of Agency employees.
5. The Administration agrees to:
(a) Provide training for and responsible supervision of qualified
and acceptable Agency employees in accordance with Attachment ``A.''
(b) Provide work within the State of------------for qualified and
acceptable Agency employees for periods not to exceed eight hours per
day and 40 hours per week.
(c) Provide the office space, tools, equipment, and supplies to be
used by Agency employees in performing work for the Administration.
(d) Report in the Agency, as required, the time worked by and work
accomplishments of Agency employees.
(e) Consult with the Agency, as necessary, on situations involving
delinquency, misconduct, neglect of work, and apparent conflicts of
interest of Agency employees.
(f) Reimburse Agency employees for proper and reasonable travel and
per diem expenses incurred in performing official duties for the
Administration, in accordance with Administration travel regulations.
(g) Consider Agency employees to be Federal employees for the
purposes of the Federal Employees Compensation Act (5 U.S.C.
[[Page 21]]
8101) and of the Federal Tort Claims Act (28 U.S.C. 2671-2680).
6. The Agency agrees to:
(a) Not discriminate against any employee or applicant for
employment because of race, color, religion, sex, age, marital status,
physical handicap, or national origin. The Agency will take affirmative
action to ensure that applicants are employed, and that employees are
treated during employment, without regard to their race, color,
religion, sex, age, marital status, physical handicap, or national
origin. Such action shall include, but not be limited to, the following
Employment, upgrading, demotion or transfer; recruitment or recruitment
advertising; layoff or termination; rates of pay or other forms of
compensation; and selection for training including apprenticeship. The
Agency will post in conspicuous places, available to employees and
appliants for employment, notices setting forth the provisions of this
nondiscriminating clause.
(b) Obtain fingerprints, police records, and work qualifications
checks on potential assignees, and divulge the results to the
Administration or permit the Administration to obtain this information.
(c) Assign only Agency employees who are acceptable to the
Administration in terms of meeting the same ability and suitability
standards which are applied to Federal employment.
(d) Pay all salaries and other expenses of Agency employees and
comply with Federal, State, and local minimum wage statutes. No monies
will be paid by the Administration under this agreement, either to the
Agency or its employees.
(e) Consider any Tort claims by third parties under applicable laws
and regulations.
(f) Reassign or terminate the assignment of Agency employees upon
request of the Administration.
7. The Agency and the Administration mutually understand and agree
that the reasons for determining that an Agency employee is unacceptable
or unsuitable for initial or continued assignment to Administration work
may include but shall not be limited to the following:
(a) Practicing or appearing to practice discrimination for reasons
of race, color, religion, sex, age, marital status, physical handicap,
or national origin.
(b) Being or becoming involved in real or apparent conflicts of
interest, such as, engaging directly or indirectly in business
transactions with Administration applicants or borrowers, or using or
appearing to use the Administration work assignment for private gain.
(c) Engaging in or having engaged in criminal, dishonest, or immoral
conduct, or conducting himself in a manner which might embarrass or
cause criticism of the Administration.
(d) Being absent from duty without authorization.
(e) Engaging in partisan political activity prohibited to Federal
employees doing similar work.
(f) Lack of work.
(g) Inability of the employee to perform the duties of the
assignment.
8. The term of this Agreement shall commence on the date thereof. It
shall end on----------------, unless extended by mutual agreement, or
unless terminated earlier by at least (30) days advanced written notice
by either party to the other.
9. The Agency and the Administration respectively certify, each for
itself, that its officer signing this Agreement is duly authorized
thereto.
(Enter Official Title of Agency, i.e., City Council, Modesto, Calif.)
BY
Chairman, City Council,
Modesto, Calif.
FARMERS HOME
ADMINISTRATION or its successor agency under Public Law 103-354
BY
FmHA or its successor agency under Public Law 103-354 State Director
for ( )
USDA
[[Page 23]]
CHAPTER XX--LOCAL TELEVISION LOAN GUARANTEE BOARD
--------------------------------------------------------------------
Part Page
2200 Access to local television signals
guaranteed loan program; general
policies and procedures................. 25
2201 Local television loan guarantee program--
program regulations..................... 36
[[Page 25]]
PART 2200_ACCESS TO LOCAL TELEVISION SIGNALS GUARANTEED LOAN PROGRAM;
GENERAL POLICIES AND PROCEDURES--Table of Contents
Sec.
2200.1 Definitions.
2200.2 Purpose and scope.
2200.3 Composition of the Board.
2200.4 Authority of the Board.
2200.5 Offices.
2200.6 Meetings and actions of the Board.
2200.7 Officer and staff responsibilities.
2200.8 Ex parte communications.
2200.9 Amendments.
2200.10 Restrictions on lobbying.
2200.11 Government-wide debarment and suspension (nonprocurement).
2200.12 Freedom of Information Act.
Authority: 47 U.S.C. 1101 et seq.; Pub. L. 106-553; Pub. L.107-171.
Source: 67 FR 76105, Dec. 11, 2002, unless otherwise noted.
Sec. 2200.1 Definitions.
(a) Act means the Launching Our Communities' Access to Local
Television Act of 2000, Title X of Public Law 106-553, 114 Stat. 2762A-
128.
(b) Administrator means the Administrator of the Rural Utilities
Service of the United States Department of Agriculture.
(c) Board means the Launching Our Communities' Access to Local
(LOCAL) Television Loan Guarantee Board.
(d) Person means any individual, corporation, cooperative,
partnership, joint venture, association, joint-stock company, limited
liability company or partnership, trust, unincorporated organization,
government entity, agency or instrumentality or any subdivision thereof.
[67 FR 76105, Dec. 11, 2002, as amended at 68 FR 74416, Dec. 23, 2003]
Sec. 2200.2 Purpose and scope.
This part is issued by the Board pursuant to Section 1004 of the
Act. This part describes the Board's organizational structure and the
means and rules by which the Board takes actions.
Sec. 2200.3 Composition of the Board.
The Board consists of the Secretary of the Treasury, the Chairman of
the Board of Governors of the Federal Reserve System, the Secretary of
Agriculture, and the Secretary of Commerce, or their respective
designees. An individual may be designated a member of the Board only if
the individual is an officer of the United States pursuant to an
appointment by the President, by and with the advice and consent of the
Senate.
Sec. 2200.4 Authority of the Board.
The Board is authorized to guarantee loans in accordance with the
provisions of the Act and procedures, rules, and regulations established
by the Board; to make the determinations authorized by the Act; and to
take such other actions as are necessary to carry out its functions in
accordance with the Act.
Sec. 2200.5 Offices.
The principal offices of the Board are at the U.S. Department of
Agriculture, Rural Utilities Service, Room 2919-S, Stop 1541; 1400
Independence Ave., SW.; Washington, DC 20256-1590.
Sec. 2200.6 Meetings and actions of the Board.
(a) Chair. At its initial meeting, the Board shall select a Chair by
an affirmative vote of not less than three members of the Board.
(b) Place and frequency. The Board meets, on the call of the Chair,
in order to consider matters requiring action by the Board. Time and
place for any such meeting shall be determined by the members of the
Board.
(c) Quorum and voting. Three voting members of the Board constitute
a quorum for the transaction of business. All decisions and
determinations of the Board shall be made by an affirmative vote of not
less than three members of the Board. All votes on determinations of the
Board required by the Act shall be recorded in the minutes. A Board
member may request that any vote be recorded according to individual
Board members.
(d) Agenda of meetings. To the extent practicable, an agenda for
each meeting shall be distributed to members of the Board at least two
days in advance of the date of the meeting, together with copies of
materials relevant to the agenda items.
[[Page 26]]
(e) Minutes. The Secretary shall keep minutes of each Board meeting
and of action taken without a meeting, a draft of which is to be
distributed to each member of the Board as soon as practicable after
each meeting or action. To the extent practicable, the minutes of a
Board meeting shall be corrected and approved at the next meeting of the
Board.
(f) Use of conference call communications equipment. Any member may
participate in a meeting of the Board through the use of conference
call, telephone or similar communications equipment, by means of which
all persons participating in the meeting can simultaneously speak to and
hear each other. Any member so participating in a meeting shall be
deemed present for all purposes. Actions taken by the Board at meetings
conducted through the use of such equipment, including the votes of each
member, shall be recorded in the usual manner in the minutes of the
meetings of the Board.
(g) Actions between meetings. When, in the judgment of the Chair,
circumstances occur making it desirable for the Board to consider action
when it is not feasible to call a meeting, the relevant information and
recommendations for action may be transmitted to the members by the
Secretary and the voting members may communicate their votes to the
Chair in writing (including an action signed in counterpart by each
Board member), electronically, or orally (including telephone
communication). Any action taken under this paragraph has the same
effect as an action taken at a meeting. Any such action shall be
recorded in the minutes.
(h) Officers and staff of the Board. The Board shall appoint a
Secretary and may appoint such other officers and staff as it deems
appropriate, including an Executive Director and a Legal Counsel. An
individual may hold more than one officer or staff position.
(i) Delegations of authority. The Board may delegate authority,
subject to such terms and conditions as the Board deems appropriate, to
officers and staff to take certain actions not required by the Act to be
taken by the Board. All delegations shall be made pursuant to
resolutions of the Board and recorded in writing, whether in the minutes
of a meeting or otherwise. Any action taken pursuant to such delegated
authority has the effect of an action taken by the Board.
Sec. 2200.7 Officer and staff responsibilities.
(a) Executive Director. The Executive Director advises and assists
the Board in carrying out its responsibilities under the Act, provides
general direction with respect to the administration of the Board's
actions, directs the activities of the staff, and performs such other
duties as the Board may require.
(b) Legal Counsel. The Legal Counsel provides legal advice relating
to the responsibilities of the Board and performs such other duties as
the Board may require.
(c) Secretary. The Secretary sends notice of all meetings, prepares
minutes of all meetings, maintains a complete record of all votes and
actions taken by the Board, has custody of all records of the Board, has
authority to publish documents in the Federal Register upon approval of
the Board and performs such other duties as the Board may require.
(d) Other. The responsibilities of any other officer or staff shall
be defined by the Board at the time of appointment of such position.
Sec. 2200.8 Ex parte communications.
Communication with the Board shall be conducted through the staff of
the Board. Oral or written communication, not on the public record,
between the Board, or any member of the Board, and any party or parties
interested in any matter pending before the Board concerning the
substance of that matter is prohibited.
Sec. 2200.9 Amendments.
The Board's rules may be adopted or amended, or new rules may be
adopted, only by the affirmative vote of not less than three members of
the Board. Authority to adopt or amend these rules may not be delegated.
Sec. 2200.10 Restrictions on lobbying.
(a) No funds received through a Loan guaranteed under this Program
in this chapter may be expended by the recipient of a Federal contract,
grant, loan,
[[Page 27]]
loan guarantee, or cooperative agreement to pay any person for
influencing or attempting to influence an officer or employee of any
agency, a Member of Congress, an officer or employee of Congress, or an
employee of a Member of Congress in connection with any of the following
covered Federal actions: the awarding of any Federal contract, the
making of any Federal grant, the making of any Federal loan or loan
Guarantee, the entering into of any cooperative agreement, and the
extension, continuation, renewal, amendment, or modification of any
Federal contract, grant, loan, loan Guarantee, or cooperative agreement.
(b) Each person who requests or receives from an agency a commitment
providing for the United States to insure or guarantee a loan shall file
with that agency a statement, set forth in the application form, whether
that person has made or has agreed to make any payment to influence or
attempt to influence an officer or employee of any agency, a Member of
Congress, an officer or employee of Congress, or an employee of a Member
of Congress in connection with that loan insurance or Guarantee.
(c) Each person who requests or receives from an agency a commitment
providing for the United States to insure or guarantee a loan shall file
with that agency a Standard Form-LLL if that person has made or has
agreed to make any payment to influence or attempt to influence an
officer or employee of any agency, a Member of Congress, an officer or
employee of Congress, or an employee of a Member of Congress in
connection with that loan insurance or Guarantee.
(d) Each person shall file a certification, contained in the
application form, and a disclosure form (Standard Form-LLL), if
required, with each submission that initiates agency consideration of
such person for:
(1) Award of a Federal contract, grant, or cooperative agreement
exceeding $100,000; or
(2) An award of a Federal loan or a commitment providing for the
United States to insure or guarantee a loan exceeding $150,000.
(e) Each person shall file a certification, and a disclosure form,
if required, upon receipt by such person of:
(1) A Federal contract, grant, or cooperative agreement exceeding
$100,000; or
(2) A Federal loan or a commitment providing for the United States
to insure or guarantee a loan exceeding $150,000, unless such person
previously filed a certification, and a disclosure form, if required,
under paragraph (c) of this section.
(f) Each person shall file a disclosure form at the end of each
calendar quarter in which there occurs any event that requires
disclosure or that materially affects the accuracy of the information
contained in any disclosure form previously filed by such person under
paragraphs (d) or (e) of this section. An event that materially affects
the accuracy of the information reported includes:
(1) A cumulative increase of $25,000 or more in the amount paid or
expected to be paid for influencing or attempting to influence a covered
Federal action; or
(2) A change in the person(s) or individual(s) influencing or
attempting to influence a covered Federal action; or
(3) A change in the officer(s), employee(s), or Member(s) contacted
to influence or attempt to influence a covered Federal action.
[68 FR 74416, Dec. 23, 2003]
Sec. 2200.11 Government-wide debarment and suspension (nonprocurement).
(a) Executive Order (E.O.) 12549 provides that, to the extent
permitted by law, Executive departments and agencies shall participate
in a governmentwide system for nonprocurement debarment and suspension.
A person who is debarred or suspended shall be excluded from Federal
financial and nonfinancial assistance and benefits under Federal
programs and activities. Debarment or suspension of a participant in a
program by one agency shall have governmentwide effect. The Board shall
review the List of Debarred entities prior to making final loan
Guarantee decisions. Suspension or debarment may be a basis for denying
a loan Guarantee.
[[Page 28]]
(b) This section applies to all persons who have participated, are
currently participating or may reasonably be expected to participate in
transactions under Federal nonprocurement programs. For purposes of this
section such transactions will be referred to as ``covered
transactions.''
(1) Covered transaction. For purposes of this section, a covered
transaction is a primary covered transaction or a lower tier covered
transaction. Covered transactions at any tier need not involve the
transfer of Federal funds.
(i) Primary covered transaction. Except as noted in paragraph (b)(2)
of this section, a primary covered transaction is any nonprocurement
transaction between an agency and a person, regardless of type,
including: grants, cooperative agreements, scholarships, fellowships,
contracts of assistance, loans, loan guarantees, subsidies, insurance,
payments for specified use, donation agreements and any other
nonprocurement transactions between a Federal agency and a person.
(ii) Lower tier covered transaction. A lower tier covered
transaction is:
(A) Any transaction between a participant and a person other than a
procurement contract for goods or services, regardless of type, under a
primary covered transaction;
(B) Any procurement contract for goods or services between a
participant and a person, regardless of type, expected to equal or
exceed the Federal procurement small purchase threshold fixed at 10
U.S.C. 2304(g) and 41 U.S.C. 253(g) (currently $100,000) under a primary
covered transaction;
(C) Any procurement contract for goods or services between a
participant and a person under a covered transaction, regardless of
amount, under which that person will have a critical influence on or
substantive control over that covered transaction. Such persons may
include loan officers or chief executive officers acting as principal
investigators and providers of federally required audit services.
(2) Exceptions. The following transactions are not covered:
(i) Statutory entitlements or mandatory awards (but not subtier
awards thereunder which are not themselves mandatory), including
deposited funds insured by the Federal Government;
(ii) Direct awards to foreign governments or public international
organizations, or transactions with foreign governments or foreign
governmental entities, public international organizations, foreign
government owned (in whole or in part) or controlled entities, entities
consisting wholly or partially of foreign governments or foreign
governmental entities;
(iii) Benefits to an individual as a personal entitlement without
regard to the individual's present responsibility (but benefits received
in an individual's business capacity are not accepted);
(iv) Federal employment;
(v) Transactions pursuant to national or agency-recognized
emergencies or disasters;
(vi) Incidental benefits derived from ordinary governmental
operations; and
(vii) Other transactions where the application of this section would
be prohibited by law.
(3) Board covered transactions. This section applies to the Board's
Loan Guarantees, subcontracts and transactions at any tier that are
charges as direct or indirect costs, regardless of type.
(c) Primary covered transactions. Except to the extent prohibited by
law, persons who are debarred or suspended shall be excluded from
primary covered transactions as either participants or principals
throughout the Executive Branch of the Federal Government for the period
of their debarment, suspension, or the period they are proposed for
debarment under 48 CFR part 9, subpart 9.4. Accordingly, no agency shall
enter into primary covered transactions with such excluded persons
during such period, except as permitted pursuant to paragraph (l) of
this section.
(d) Lower tier covered transactions. Except to the extent prohibited
by law, persons who have been proposed for debarment under 48 CFR part
9, subpart 9.4, debarred or suspended shall be excluded from
participating as either participants or principals in all lower tier
covered transactions (see paragraph (b)(1)(ii) of this section for the
period of their exclusion).
[[Page 29]]
(e) Exceptions. Debarment or suspension does not affect a person's
eligibility for:
(1) Statutory entitlements or mandatory awards (but not subtier
awards thereunder which are not themselves mandatory), including
deposited funds insured by the Federal Government;
(2) Direct awards to foreign governments or public international
organizations, or transactions with foreign governments or foreign
governmental entities, public international organizations, foreign
government owned (in whole or in part) or controlled entities, and
entities consisting wholly or partially of foreign governments or
foreign governmental entities;
(3) Benefits to an individual as a personal entitlement without
regard to the individual's present responsibility (but benefits received
in an individual's business capacity are not accepted);
(4) Federal employment;
(5) Transactions pursuant to national or agency-recognized
emergencies or disasters;
(6) Incidental benefits derived from ordinary governmental
operations; and
(7) Other transactions where the application of this section would
be prohibited by law.
(f) Persons who are ineligible are excluded in accordance with the
applicable statutory, executive order, or regulatory authority.
(g) Persons who accept voluntary exclusions are excluded in
accordance with the terms of their settlements. The Board shall, and
participants may, contact the original action agency to ascertain the
extent of the exclusion.
(h) The Board may grant an exception permitting a debarred,
suspended, or voluntarily excluded person, or a person proposed for
debarment under 48 CFR part 9, subpart 9.4, to participate in a
particular covered transaction upon a written determination by the
agency head or an authorized designee stating the reason(s) for
deviating from the Presidential policy established by Executive Order
12549. However, in accordance with the President's stated intention in
the Executive Order, exceptions shall be granted only infrequently.
Exceptions shall be reported in accordance with the Executive Order.
(i) Notwithstanding the debarment, suspension, proposed debarment
under 48 CFR part 9, subpart 9.4, determination of ineligibility, or
voluntary exclusion of any person by an agency, agencies and
participants may continue covered transactions in existence at the time
the person was debarred, suspended, proposed for debarment under 48 CFR
part 9, subpart 9.4, declared ineligible, or voluntarily excluded. A
decision as to the type of termination action, if any, to be taken
should be made only after thorough review to ensure the propriety of the
proposed action.
(j) Agencies and participants shall not renew or extend covered
transactions (other than no-cost time extensions) with any person who is
debarred, suspended, proposed for debarment under 48 CFR part 9, subpart
9.4, ineligible or voluntary excluded, except as provided in paragraph
(h) of this section.
(k) Except as permitted under paragraphs (h) or (i) of this section,
a participant shall not knowingly do business under a covered
transaction with a person who is:
(1) Debarred or suspended;
(2) Proposed for debarment under 48 CFR part 9, subpart 9.4; or
(3) Ineligible for or voluntarily excluded from the covered
transaction.
(l) Violation of the restriction under paragraph (k) of this section
may result in disallowance of costs, annulment or termination of award,
issuance of a stop work order, debarment or suspension, or other
remedies as appropriate.
(m) A participant may rely upon the certification of a prospective
participant in a lower tier covered transaction that it and its
principals are not debarred, suspended, proposed for debarment under 48
CFR part 9, subpart 9.4, ineligible, or voluntarily excluded from the
covered transaction, unless it knows that the certification is
erroneous. An agency has the burden of proof that a participant did
knowingly do business with a person that filed an erroneous
certification.
[68 FR 74416, Dec. 23, 2003]
[[Page 30]]
Sec. 2200.12 Freedom of Information Act.
(a) Definitions. All terms used in this section, which are defined
in 5 U.S.C. 551 or 5 U.S.C. 552 shall have the same meaning in this
section. In addition the following definitions apply to this section:
(1) FOIA, as used in this section, means the ``Freedom of
Information Act,'' as amended, 5 U.S.C. 552.
(2) Commercial use request means a request from or on behalf of one
who seeks information for a use or purpose that furthers the commercial,
trade, or profit interests of the requester or the person on whose
behalf the request is made.
(3) Direct costs mean those expenditures that the Board actually
incurs in searching for, reviewing, and duplicating documents in
response to a request made under paragraph (c) of this section. Direct
costs include, for example, the labor costs of the employee performing
the work (the basic rate of pay for the employee, plus 16 percent of
that rate to cover benefits). Not included in direct costs are overhead
expenses such as the costs of space and heating or lighting of the
facility in which the records are kept.
(4) Duplication means the process of making a copy of a document in
response to a request for disclosure of records or for inspection of
original records that contain exempt material or that otherwise cannot
be inspected directly. Among others, such copies may take the form of
paper, microfilm, audiovisual materials, or machine-readable
documentation (e.g., magnetic tape or disk).
(5) Educational institution means a preschool, a public or private
elementary or secondary school, or an institution of undergraduate
higher education, graduate higher education, professional education, or
an institution of vocational education that operates a program of
scholarly research.
(6) Noncommercial scientific institution refers to an institution
that is not operated on a ``commercial'' basis (as that term is used in
this section) and which is operated solely for the purpose of conducting
scientific research, the results of which are not intended to promote
any particular product or industry.
(7) News means information about current events or that would be of
current interest to the public. Examples of news media entities include,
but are not limited to, television or radio stations broadcasting to the
public at large, and publishers of newspapers and other 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. ``Freelance'' journalists may be regarded as
working for a news organization if they can demonstrate a solid basis
for expecting publication through that organization, even though not
actually employed by it.
(8) Representative of the news media means any person actively
gathering news for an entity that is organized and operated to publish
or broadcast news to the general public.
(9) Review means the process of examining documents, located in
response to a request for access, to determine whether any portion of a
document is exempt information. It includes doing all that is necessary
to excise the documents and otherwise to prepare them for release.
Review does not include time spent resolving general legal or policy
issues regarding the application of exemptions.
(10) Search means the process of looking for material that is
responsive to a request, including page-by-page or line-by-line
identification within documents. Searches may be done manually or by
computer.
(b) Records available for public inspection and copying. (1) Types
of records made available. The information in this section is furnished
for the guidance of the public and in compliance with the requirements
of the FOIA. This section sets forth the procedures the Board follows to
make publicly available the materials specified in 5 U.S.C. 552(a)(2).
These materials shall be made available for inspection and copying at
the Board's offices pursuant to 5 U.S.C. 552(a)(2). Information
routinely provided to the public as part of a regular Board activity
(for example, press releases) may be provided to the public without
following this section.
(2) Reading room procedures. Information available under this
section is
[[Page 31]]
available for inspection and copying, from 9 a.m. to 5 p.m. weekdays, at
1400 Independence Avenue, SW., Washington, DC.
(3) Electronic records. Information available under this section
shall also be available on the Board's Web site found at http://
www.usda.gov/rus/localtvboard.
(c) Records available to the public on request--(1) Types of records
made available. All records of the Board that are not available under
paragraph (b) of this section shall be made available upon request,
pursuant to the procedures in this section and the exceptions set forth
in the FOIA.
(2) Procedures for requesting records. A request for records shall
reasonably describe the records in a way that enables the Board's staff
to identify and produce the records with reasonable effort and without
unduly burdening or significantly interfering with any of the Board's
operations. The request shall be submitted in writing to the Secretary
of the Board at LOCAL Television Loan Guarantee Board, 1400 Independence
Avenue, SW., STOP 1575, Room 2919-S, Washington, DC 20250-1575, or sent
by facsimile to the Secretary of the Board at (202) 720-2734. The
request shall be clearly marked FREEDOM OF INFORMATION ACT REQUEST.
(3) Contents of request. The request shall contain the following
information:
(i) The name and address of the requester, and the telephone number
at which the requester can be reached during normal business hours;
(ii) Whether the requested information is intended for commercial
use, or whether the requester represents an educational or noncommercial
scientific institution, or news media;
(iii) A statement agreeing to pay the applicable fees, or a
statement identifying any fee limitation desired, or a request for a
waiver or reduction of fees that satisfies paragraph (f) of this
section.
(d) Processing requests--(1) Priority of responses. The date of
receipt for any request, including one that is addressed incorrectly or
that is referred to the Board by another agency, is the date the
Secretary of the Board actually receives the request. The Secretary of
the Board shall normally process requests in the order they are
received. However, in the Secretary of the Board's discretion, the Board
may use two or more processing tracks by distinguishing between simple
and more complex requests based on the number of pages involved, or some
other measure of the amount of work and/or time needed to process the
request, and whether the request qualifies for expedited processing as
described in paragraph (d)(2) of this section. When using multitrack
processing, the Secretary of the Board may provide requesters in the
slower track(s) with an opportunity to limit the scope of their requests
in order to qualify for faster processing. The Secretary of the Board
shall contact the requester by telephone or by letter, whichever is most
efficient in each case.
(2) Expedited processing. (i) A person may request expedited access
to records by submitting a statement, certified to be true and correct
to the best of that person's knowledge and belief, that demonstrates a
compelling need for the records, as defined in 5 U.S.C. 552(a)(6)(E)(v).
(ii) The Secretary of the Board shall notify a requester of the
determination whether to grant or deny a request for expedited
processing within ten working days of receipt of the request. If the
Secretary of the Board grants the request for expedited processing, the
Board shall process the request for access to information as soon as
practicable. If the Secretary of the Board denies a request for
expedited processing, the requester may file an appeal pursuant to the
procedures set forth in paragraph (e) of this section, and the Board
shall respond to the appeal within twenty days after the appeal was
received by the Board.
(3) Time limits. The time for response to requests shall be 20
working days, except:
(i) In the case of expedited treatment under paragraph (d)(2) of
this section;
(ii) Where the running of such time is suspended for payment of fees
pursuant to paragraph (f)(2)(ii) of this section;
(iii) Where the estimated charge is less than $250, and the
requester does
[[Page 32]]
not guarantee payment pursuant to paragraph (f)(2)(i) of this section;
or
(iv) In unusual circumstances, as defined in 5 U.S.C.
552(a)(6)(B)(iii), the time limit may be extended for a period of time
not to exceed 10 working days as provided by written notice to the
requester, setting forth the reasons for the extension and the date on
which a determination is expected to be dispatched; or such alternative
time period as mutually agreed to by the Secretary of the Board and the
requester when the Secretary of the Board notifies the requester that
the request cannot be processed in the specified time limit.
(4) Response to request. In response to a request that satisfies
paragraph (c) of this section, an appropriate search shall be conducted
of records in the custody and control of the Board on the date of
receipt of the request, and a review made of any responsive information
located. The Secretary of the Board shall notify the requester of:
(i) The Secretary of the Board's determination of the request and
the reasons therefore;
(ii) The information withheld, and the basis for withholding; and
(iii) The right to appeal any denial or partial denial, pursuant to
paragraph (e) of this section.
(5) Referral to another agency. To the extent a request covers
documents that were created by, obtained from, classified by, or is in
the primary interest of another agency, the Secretary of the Board may
refer the request to that agency for a direct response by that agency
and inform the requester promptly of the referral. The Secretary of the
Board shall consult with another Federal agency before responding to a
requester if the Board receives a request for a record in which:
(i) Another Federal agency subject to the FOIA has a significant
interest, but not the primary interest; or
(ii) Another Federal agency not subject to the FOIA has the primary
interest or a significant interest. Ordinarily, the agency that
originated a record will be presumed to have the primary interest in it.
(6) Providing responsive records. (i) A copy of records or portions
of records responsive to the request shall be sent to the requester by
regular U.S. mail to the address indicated in the request, unless the
requester elects to take delivery of the documents at the Board's
Freedom of Information Office or makes other acceptable arrangements, or
the Secretary of the Board deems it appropriate to send the documents by
another means. The Secretary of the Board shall provide a copy of the
record in any form or format requested if the record is readily
reproducible in that form or format, but the Secretary of the Board need
not provide more than one copy of any record to a requester.
(ii) The Secretary of the Board shall provide any reasonably
segregable portion of a record that is responsive to the request after
deleting those portions that are exempt under the FOIA or this section.
(iii) Except where disclosure is expressly prohibited by statute,
regulation, or order, the Secretary of the Board may authorize the
release of records that are exempt from mandatory disclosure whenever
the Board or designated Board members determine that there would be no
foreseeable harm in such disclosure.
(iv) The Board is not required in response to the request to create
records or otherwise to prepare new records.
(7) Prohibition against disclosure. Except as provided in this part,
no officer, employee, or agent of the Board shall disclose or permit the
disclosure of any unpublished information of the Board to any person
(other than Board officers, employees, or agents properly entitled to
such information for the performance of official duties), unless
required by law.
(e) Appeals. (1) Any person denied access to Board records requested
under paragraph (c) of this section, denied expedited processing under
paragraph (d) of this section, or denied a waiver of fees under
paragraph (f) of this section may file a written appeal within 30
calendar days after the date of such denial with the Board. The written
appeal shall prominently display the phrase FREEDOM OF INFORMATION ACT
APPEAL on the first page, and shall be addressed to Chairman of the
Board, LOCAL Television Loan Guarantee Board, 1400 Independence Avenue,
SW.,
[[Page 33]]
STOP 1575, Room 2919-S, Washington, DC 20250-1575, or sent by facsimile
to (202) 720-2734. The appeal shall include a copy of the original
request, the initial denial, if any, and a statement of the reasons why
the requested records should be made available and why the initial
denial was in error.
(2) The Chairman of the Board shall make a determination regarding
any appeal within 20 working days of actual receipt of the appeal, and
the determination letter shall notify the appealing party of the right
to seek judicial review in event of denial.
(f) Fee schedules and waiver of fees-- (1) Fee schedule. The fees
applicable to a request for records pursuant to paragraph (c) of this
section are set forth in the uniform fee schedule at the end of this
paragraph (f).
(i) Search. (A) Search fees shall be charged for all requests other
than requests made by educational institutions, noncommercial scientific
institutions, or representatives of the news media, subject to the
limitations of paragraph (f)(1)(iv) of this section. The Secretary of
the Board shall charge for time spent searching even if no responsive
record is located or if the Secretary of the Board withholds the
record(s) located as entirely exempt from disclosure. Search fees shall
be the direct costs of conducting the search by the involved employees.
(B) For computer searches of records, requesters will be charged the
direct costs of conducting the search, although certain requesters (as
provided in paragraph (f)(3) of this section) will be charged no search
fee and certain other requesters (as provided in paragraph (f)(3)) are
entitled to the cost equivalent of two hours of manual search time
without charge. These direct costs include the costs, attributable to
the search, of operating a central processing unit and operator/
programmer salary.
(ii) Duplication. Duplication fees will be charged to all
requesters, subject to the limitations of paragraph (f)(1)(iv) of this
section. For a paper photocopy of a record (no more than one copy of
which need be supplied), the fee shall be 15 cents per page. For copies
produced by computer, such as tapes or printouts, the Secretary of the
Board shall charge the direct costs, including operator time, of
producing the copy. For other forms of duplication, the Secretary of the
Board will charge the direct costs of that duplication.
(iii) Review. Review fees shall be charged to requesters who make a
commercial use request. Review fees shall be charged only for the
initial record review--the review done when the Secretary of the Board
determines whether an exemption applies to a particular record at the
initial request level. No charge will be made for review at the
administrative appeal level for an exemption already applied. However,
records withheld under an exemption that is subsequently determined not
to apply may be reviewed again to determine whether any other exemption
not previously considered applies, and the costs of that review are
chargeable. Review fees shall be the direct costs of conducting the
review by the involved employees.
(iv) Limitations on charging fees. (A) No search fee will be charged
for requests by educational institutions, noncommercial scientific
institutions, or representatives of the news media.
(B) No search fee or review fee will be charged for a quarter-hour
period unless more than half of that period is required for search or
review.
(C) Whenever a total fee calculated under this paragraph is $25 or
less for any request, no fee will be charged.
(D) For requesters other than those seeking records for a commercial
use, no fee will be charged unless the cost of search in excess of two
hours plus the cost of duplication in excess of 100 pages totals more
than $25.
(2) Payment procedures. All persons requesting records pursuant to
paragraph (c) of this section shall pay the applicable fees before the
Secretary of the Board sends copies of the requested records, unless a
fee waiver has been granted pursuant to paragraph (f)(6) of this
section. Requesters must pay fees by check or money order made payable
to the Treasury of the United States.
(i) Advance notification of fees. If the estimated charges are
likely to exceed $25, the Secretary of the Board shall notify the
requester of the estimated amount, unless the requester has indicated a
willingness to pay fees as high
[[Page 34]]
as those anticipated. Upon receipt of such notice, the requester may
confer with the Secretary of the Board to reformulate the request to
lower the costs. The processing of the request shall be suspended until
the requester provides the Secretary of the Board with a written
guarantee that payment will be made upon completion of the processing.
(ii) Advance payment. The Secretary of the Board shall require
advance payment of any fee estimated to exceed $250. The Secretary of
the Board shall also require full payment in advance where a requester
has previously failed to pay a fee in a timely fashion. 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. The time period for
responding to requests under paragraph (d)(4) of this section, and the
processing of the request shall be suspended until the Secretary of the
Board receives the required payment.
(iii) Late charges. The Secretary of the Board may assess interest
charges when fee payment is not made within 30 days of the date on which
the billing was sent. Assessment of such interest will commence on the
31st day following the day on which the billing was sent. Interest is at
the rate prescribed in 31 U.S.C. 3717.
(3) Categories of uses. The fees assessed depend upon the fee
category. In determining which category is appropriate, the Secretary of
the Board shall look to the identity of the requester and the intended
use set forth in the request for records. Where a requester's
description of the use is insufficient to make a determination, the
Secretary of the Board may seek additional clarification before
categorizing the request.
(i) Commercial use requester. The fees for search, duplication, and
review apply when records are requested for commercial use.
(ii) Educational, non-commercial scientific institutions, or
representatives of the news media requesters. The fees for duplication
apply when records are not sought for commercial use, and the requester
is a representative of the news media or an educational or noncommercial
scientific institution, whose purpose is scholarly or scientific
research. The first 100 pages of duplication, however, will be provided
free.
(iii) All other requesters. For all other requests, the fees for
search and duplication apply. The first two hours of search time and the
first 100 pages of duplication, however, will be provided free.
(4) Nonproductive search. Fees for search may be charged even if no
responsive documents are found. Fees for search and review may be
charged even if the request is denied.
(5) Aggregated requests. A requester may not file multiple requests
at the same time, solely in order to avoid payment of fees. If the
Secretary of the Board reasonably believes that a requester is
separating a request into a series of requests for the purpose of
evading the assessment of fees or that several requesters appear to be
acting together to submit multiple requests solely in order to avoid
payment of fees, the Secretary of the Board may aggregate such requests
and charge accordingly. It is considered reasonable for the Secretary of
the Board to presume that multiple requests by one requester on the same
topic made within a 30-day period have been made to avoid fees.
(6) Waiver or reduction of fees. A request for a waiver or reduction
of the fees, and the justification for the waiver, shall be included
with the request for records to which it pertains. If a waiver is
requested and the requester has not indicated in writing an agreement to
pay the applicable fees if the waiver request is denied, the time for
response to the request for documents, as set forth in under paragraph
(d)(4) of this section, shall not begin until a determination has been
made on the request for a waiver or reduction of fees.
(i) Standards for determining waiver or reduction. The Secretary of
the Board may grant a waiver or reduction of fees where it is determined
both that disclosure of the information is in the public interest
because it is likely to contribute significantly to public understanding
of the operation or activities of the government, and that the
disclosure of information is not primarily in the commercial interest of
[[Page 35]]
the requester. In making this determination, the following factors shall
be considered:
(A) Whether the subject of the records concerns the operations or
activities of the government;
(B) Whether disclosure of the information is likely to contribute
significantly to public understanding of government operations or
activities;
(C) Whether the requester has the intention and ability to
disseminate the information to the public;
(D) Whether the information is already in the public domain;
(E) Whether the requester has a commercial interest that would be
furthered by the disclosure; and, if so,
(F) 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.
(ii) Contents of request for waiver. A request for a waiver or
reduction of fees shall include a clear statement of how the request
satisfies the criteria set forth in paragraph (f)(6)(i) of this section.
(iii) Burden of proof. The burden shall be on the requester to
present evidence or information in support of a request for a waiver or
reduction of fees.
(iv) Determination by Secretary of the Board. The Secretary of the
Board shall make a determination on the request for a waiver or
reduction of fees and shall notify the requester accordingly. A denial
may be appealed to the Board in accordance with paragraph (e) of this
section.
(7) Uniform fee schedule.
------------------------------------------------------------------------
Service 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........... $.15 per page.
(B) Other reproduction (e.g., computer Actual direct cost,
disk or printout, microfilm, including operator time.
microfiche, or microform).
(iv) Review of records (includes employee Actual salary rate of
preparation for release, i.e. excising). conducting review, plus 16
percent of salary rate.
------------------------------------------------------------------------
(g) Request for confidential treatment of business information--(1)
Submission of request. Any submitter of information to the Board who
desires confidential treatment of business information pursuant to 5
U.S.C. 552(b)(4) shall file a request for confidential treatment with
the Board at the time the information is submitted or a reasonable time
after submission.
(2) Form of request. Each request for confidential treatment of
business information shall state in reasonable detail the facts
supporting the commercial or financial nature of the business
information and the legal justification under which the business
information should be protected. Conclusory statements that release of
the information would cause competitive harm generally will not be
considered sufficient to justify confidential treatment.
(3) Designation and separation of confidential material. All
information considered confidential by a submitter shall be clearly
designated ``PROPRIETARY'' or ``BUSINESS CONFIDENTIAL'' in the
submission and separated from information for which confidential
treatment is not requested. Failure to segregate confidential commercial
or financial information from other material may result in release of
the nonsegregated material to the public without notice to the
submitter.
(h) Request for access to confidential commercial or financial
information--(1) Request for confidential commercial or financial
information. A request by a submitter for confidential treatment of any
business information shall be considered in connection with a request
for access to that information.
(2) Notice to the submitter. (i) The Secretary of the Board shall
notify a submitter who requested confidential treatment of information
pursuant to 5 U.S.C. 552(b)(4), of the request for access.
(ii) Absent a request for confidential treatment, the Secretary of
the Board may notify a submitter of a request for
[[Page 36]]
access to submitter's business information if the Secretary of the Board
reasonably believes that disclosure of the information may cause
substantial competitive harm to the submitter.
(iii) The notice given to the submitter by mail, return receipt
requested, shall be given as soon as practicable after receipt of the
request for access, and shall describe the request and provide the
submitter seven working days from the date of notice, to submit written
objections to disclosure of the information. Such statement shall
specify all grounds for withholding any of the information and shall
demonstrate why the information which is considered to be commercial or
financial information, and that the information is a trade secret, is
privileged or confidential, or that its disclosure is likely to cause
substantial competitive harm to the submitter. If the submitter fails to
respond to the notice within the time specified, the submitter will be
considered to have no objection to the release of the information.
Information a submitter provides under this paragraph may itself be
subject to disclosure under the FOIA.
(3) Exceptions to notice to submitter. Notice to the submitter need
not be given if:
(i) The Secretary of the Board determines that the request for
access should be denied;
(ii) The requested information lawfully has been made available to
the public;
(iii) Disclosure of the information is required by law (other than 5
U.S.C. 552); or
(iv) The submitter's claim of confidentiality under 5 U.S.C.
552(b)(4) appears obviously frivolous or has already been denied by the
Secretary of the Board, except that in this last instance the Secretary
of the Board shall give the submitter written notice of the
determination to disclose the information at least seven working days
prior to disclosure.
(4) Notice to requester. At the same time the Secretary of the Board
notifies the submitter, the Secretary of the Board also shall notify the
requester that the request is subject to the provisions of this section.
(5) Determination by Secretary of the Board. The Secretary of the
Board's determination whether or not to disclose any information for
which confidential treatment has been requested pursuant to this section
shall be communicated to the submitter and the requester immediately. If
the Secretary of the Board determines to disclose the business
information over the objection of a submitter, the Secretary of the
Board shall give the submitter written notice via mail, return receipt
requested, or similar means, which shall include:
(i) A statement of reason(s) why the submitter's objections to
disclosure were not sustained;
(ii) A description of the business information to be disclosed; and
(iii) A statement that the component intends to disclose the
information seven working days from the date the submitter receives the
notice.
(6) Notice of lawsuit. The Secretary of the Board shall promptly
notify any submitter of information covered by this section of the
filing of any suit against the Board to compel disclosure of such
information, and shall promptly notify a requester of any suit filed
against the Board to enjoin the disclosure of requested documents.
[68 FR 74416, Dec. 23, 2003]
PART 2201_LOCAL TELEVISION LOAN GUARANTEE PROGRAM_PROGRAM REGULATIONS
--Table of Contents
Subpart A_General
Sec.
2201.1 Definitions.
2201.2--2201.8 [Reserved]
2201.9 Limitation on the applicability of the definition of Local
Television Broadcast signals.
Subpart B_Loan Guarantees
2201.10 Loan amount and Guarantee percentage.
2201.11 Application requirements.
2201.12 Applicant.
2201.13 Lender.
2201.14 Eligible Loan purposes.
2201.15 Ineligible Loan purposes.
2201.16 Environmental requirements.
2201.17 Submission of applications.
2201.18 Application selection.
2201.19 Loan terms.
2201.20 Collateral.
[[Page 37]]
2201.21 Fees.
2201.22 Issuance of Guarantees.
2201.23 Funding for the Program.
2201.24 Insurance.
2201.25 Performance Agreement.
2201.26 Lender standard of care.
2201.27 Assignment or transfer of Loans.
2201.28 Participation in guaranteed Loans.
2201.29 Supplemental guarantees.
2201.30 Adjustments.
2201.31 Indemnification.
2201.32 Termination of obligations.
2201.33 Defaults.
2201.34 OMB Control Number.
Authority: 47 U.S.C. 1101 et seq.; Pub. L. 106-553; Pub. L. 107-171.
Source: 68 FR 74422, Dec. 23, 2003, unless otherwise noted.
Subpart A_General
Sec. 2201.1 Definitions.
Act means Title X of Public Law 106-553, entitled the Launching Our
Communities' Access to Local Television (LOCAL TV) Act of 2000, as
amended.
Administrator means the Administrator of the Rural Utilities
Service, U.S. Department of Agriculture, acting pursuant to the Act and
on behalf of the Board.
Affiliate means any person or entity that controls, or is controlled
by, or is under common control with, another person or entity; and may
include any individual who is a director or senior management officer of
an Affiliate, a shareholder controlling more than 25 percent of the
voting securities of an Affiliate, or more than 25 percent of the
ownership interest in an Affiliate not organized in stock form.
Agent means that Lender authorized to take such actions, exercise
such powers, and perform such duties on behalf and in representation of
all Lenders party to a Guarantee of a single Loan, as is required by, or
necessarily incidental to, the terms and conditions of the Guarantee.
Applicant means any party that is seeking financing under the Act in
order to provide access to Local Television Broadcast Signals for
households in Nonserved Areas and Underserved Areas.
Asset means anything owned by the Applicant that has commercial or
exchange value including, but not limited to, cash flows and rights
thereto.
Banking Institution means a bank or bank holding company.
Board means the LOCAL Television Loan Guarantee Board authorized by
the Act to approve Guarantees to facilitate access, on a technologically
neutral basis, to Local Television Broadcast Signals for households
located in Nonserved Areas and Underserved Areas.
Borrower means the entity liable for the payment of principal and
interest on any Loan guaranteed under the Act, where such entity shall
be a corporation, partnership, joint venture trustee or government
entity, agency or instrumentality. An individual cannot be a Borrower.
Collateral means all Assets economically pledged by the Applicant,
any Affiliate of the Applicant, or both that is required under the
provisions of the Act or the Loan Documents to secure the repayment of
the indebtedness of the Borrower under the Loan Documents.
Default means a failure by a Borrower, other than a Payment Default,
on its obligations under the Loan Documents which has not been cured by
the Borrower or duly waived by the Lender within any applicable cure
period.
Designated Market Area (DMA) means an area designated as such by
Nielsen Media Research and published in the most recent Nielsen Station
Index Directory and Nielsen Station Index United States Television
Household Estimates.
Generally Accepted Accounting Principles (GAAP) means a common set
of accounting standards and procedures that are either promulgated by an
authoritative accounting rulemaking body or accepted as appropriate due
to wide-spread application in the United States.
Guarantee means the written agreement, including all terms and
conditions and all exhibits thereto, guaranteeing repayment of a
specified percentage of the principal of a Loan pursuant to the Act.
Guaranteed Portion means the portion of the principal of a loan that
is subject to the Guarantee.
[[Page 38]]
High-Speed Internet means a data connection to the Internet
providing an information rate exceeding 200 kilobits per second (kbps)
in the consumer's connection to the network in at least one direction,
either from the provider to the consumer (downstream) or from the
consumer to the provider (upstream).
Lender means an entity that has committed to make a Loan to an
Applicant, where such entity shall be:
(1) An entity currently engaged in commercial lending in the normal
course of its business; or
(2) A nonprofit corporation, including the National Rural Utilities
Cooperative Finance Corporation, engaged primarily in commercial
lending, but does not include any governmental entity or any Affiliate
thereof, the Federal Agricultural Mortgage Corporation, any institution
supervised by the Office of Federal Housing Enterprise Oversight, the
Federal Housing Finance Board, or any Affiliate of such entities.
Loan means a Loan guaranteed pursuant to the Act and includes the
funds made available to the Borrower by the Lender.
Loan Agreement means the contract between the Lender and the
Borrower, approved by the Board, setting forth the terms applicable to
the Loan.
Loan Documents means the Loan Agreement, Guarantee and all other
instruments, and all documentation between or among the Lender, the
Borrower, and the Board or Administrator, evidencing the making,
disbursing, securing, collecting, or otherwise administering of the
Loan.
Local Television Broadcast means the signals of all Television
Broadcast Stations located in a DMA. However, when more than one
commercial Television Broadcast Station within the same DMA is
affiliated with a particular Television Network, the signal of any one
of these commercial Television Broadcast Stations will qualify as the
Local Television Broadcast Signal of the network at that location,
unless such stations are licensed to communities in different States, in
which case both stations must be counted. Even if they are not
affiliated with the same Television Network, when two or more commercial
Television Broadcast Stations simultaneously broadcast the identical
programming for more than 50 percent of the broadcast week, the signal
of any one of these Television Broadcast Stations will qualify as the
Local Television Broadcast Signal. When two or more noncommercial
television stations simultaneously broadcast the same programming for
more than 50 percent of prime time as defined in 47 CFR 76.5(n), and
more than 50 percent outside of prime time over a 3-month period, the
signal of any one of these Television Broadcast Stations will qualify as
the Local Television Broadcast Signal. In areas not included in a DMA,
but under the jurisdiction of the Federal Communications Commission
(FCC), an appropriate set of Local Television Broadcast Signals will be
determined on a case-by-case basis, subject to the approval of the
Board.
Low Power Television Station means a station authorized by the FCC
under subpart G of part 74 of title 47, Code of Federal Regulations,
that may retransmit the programs and signals of a Television Broadcast
Station and that may originate programming in any amount greater than 30
seconds per hour and/or operates a subscription service.
Net equity means the value of the total Assets of an entity, less
the total liabilities of that entity, as recorded under Generally
Accepted Accounting Principles for the fiscal quarter ended immediately
prior to the date on which the subject Loan is approved.
Net Worth Ratio means the book value of equity over total Assets.
Nonserved Area means any area that is outside the grade B contour
(as determined using standards employed by the Federal Communications
Commission (FCC)) of the Local Television Broadcast Signals serving a
particular Designated Market Area and does not have access to such
signals by any commercial, for profit, multichannel video provider.
Offer of Guarantee means the Board's decision to approve an
application for, and extend a Guarantee under, the LOCAL TV Act.
Payment Default means any failure of a Borrower to pay any amount of
principal or interest on the Loan when and
[[Page 39]]
as due under the Loan Agreement (including, without limitation,
following any acceleration thereunder) which has not been cured within
any applicable cure period.
Payment Demand means a request, by the Lender or Agent, following a
Payment Default, in writing to the Board, for payment under the
Guarantee in respect of the defaulted principal.
Performance Agreement means the written agreement between the
Administrator and the Borrower (and Lender, if applicable), pursuant to
which the Borrower provides stipulated performance schedules with
respect to Local Television Broadcast Signals provided through the
Project.
Program means the LOCAL Television Loan Guarantee Program (LOCAL TV
Program) established under the Act.
Project means a proposal for the acquisition, improvement,
enhancement, construction, deployment, launch, or rehabilitation of the
means to deliver Local Television Broadcast Signals to a Nonserved Area
or Underserved Area.
Regulatory Capital Ratio means tier 1 and total capital ratios as
shown on a Banking Institution's balance sheet.
Security means all Collateral required by the provisions of the Act
or the Loan Documents to secure repayment of any indebtedness of the
Borrower under the Loan Documents.
Separate Tier of Local Television Broadcast Signals means a category
or package of services provided by the applicant, to include the Local
Television Broadcast Signals and all over-the-air television broadcast
signals carried pursuant to the must-carry requirement of the
Communications Act of 1934, as amended, offered as a distinct and
separate service choice to the applicant's subscribers at a specified
lower rate when compared to other program service choices.
Television Broadcast Station means an over-the-air commercial or
noncommercial Television Broadcast Station licensed by the FCC under
subpart E of part 73 of title 47, Code of Federal Regulations, except
that such term does not include a Low Power Television Station or
Television Broadcast Translator Station.
Television Broadcast Translator Station means a station in the
broadcast service operated for the purpose of retransmitting the
programs and signals of a Television Broadcast Station, without
significantly altering any characteristic of the original signal other
than its frequency and amplitude, for the purpose of providing
television reception to the general public.
Television Network means an entity which offers an interconnected
program service on a regular basis for 15 or more hours per week to at
least 25 affiliated broadcast stations in 10 or more States.
Term Sheet means an executed agreement between the Applicant and the
Lender or Agent that sets forth the key business terms and conditions of
the proposed Loan. Execution of this agreement represents evidence of
the commitment between the Applicant and Lender or Agent.
Underserved Area means any area that is outside the grade A contour
(as determined using standards employed by the Federal Communications
Commission) of the Local Television Broadcast Signals serving a
particular Designated Market Area and has access to such signals from
not more than one commercial, for profit, multichannel video provider.
Unguaranteed Portion means the portion of the principal of a Loan
that is not covered by the Guarantee.
Sec. Sec. 2201.2--2201.8 [Reserved]
Sec. 2201.9 Limitation on the applicability of the definition of Local
Television Broadcast Signals.
Notwithstanding the definition of Local Television Broadcast Signals
provided in Sec. 2201.1 of this part, if an area is being served by
either a satellite carrier which rebroadcasts signals of Television
Broadcast Stations located in the DMA or a cable television system, and
that satellite carrier or cable television system is currently in
compliance with the rules administered by the Federal Communications
Commission (FCC) as described in part 76 of title 47, Code of Federal
Regulations, the group of signals of Television Broadcast Stations
located in the DMA being retransmitted by such satellite carrier or
cable television system will be considered to meet the definition of
Local Television Broadcast
[[Page 40]]
Signals for the purposes of the regulation.
Subpart B_Loan Guarantees
Sec. 2201.10 Loan amount and Guarantee percentage.
(a) Aggregate Value of Loans. The aggregate value of all Loans for
which Guarantees are issued under the Program, including the
Unguaranteed Portions of such Loans, may not exceed $1,250,000,000.
(b) Guarantee Percentage. (1) A Guarantee approved by the Board may
not exceed an amount equal to 80 percent of the principal amount of a
Loan made to finance the acquisition, improvement, enhancement,
construction, deployment, launch, or rehabilitation of the means by
which Local Television Broadcast Signals are delivered to a Nonserved
Area or Underserved Area;
(2) If only a portion of a Loan is meant to achieve the purposes
described in paragraph (b)(1) of this section, the Board shall determine
that portion of the Loan meant to achieve such purpose and may approve a
Guarantee in an amount not exceeding 80 percent of that portion of the
Loan.
(3) The portion of the Loan meant to achieve the purposes described
in paragraph (b)(1) of this section will not be lowered simply because
the means by which Local Television Broadcast Signals are delivered to a
Nonserved Area or Underserved Area also enable either the provision of
signals other than Local Television Broadcast Signals or the provision
of signals to areas other than Nonserved or Underserved Areas. However,
any amounts of a Loan which the Board determines will be used for
separable costs not essential to funding the means by which Local
Television Broadcast Signals are delivered to a Nonserved Area or
Underserved Area, will be excluded from the portion of the Loan eligible
for a Guarantee.
(c) Minimum Loan Amount. The Board will not approve a Guarantee for
a Loan in an amount less than $1,000,000 (inclusive of both the
Guaranteed and Unguaranteed Portions of the Loan).
Sec. 2201.11 Application requirements.
A completed application consists of the following information:
(a) An executive summary of the Project. The Applicant must provide
the Board with a general Project overview that addresses each of the
following six categories:
(1) A general overview of the system to be developed and description
of the Project including the types of equipment, technologies, and
facilities to be used;
(2) An explanation of how the Applicant will provide Local
Television Broadcast Signals to Nonserved Areas and Underserved Areas;
(3) A short description of the Applicant including a written
narrative describing its demonstrated capability and experience in
providing access to Local Television Broadcast Signals for households;
(4) An explanation of the total Project cost including a breakdown
of the Loan required and the source of funding for the remainder of the
Project, if a portion of the Project is to be paid with non-Loan funds;
(5) The name of the Lender or Agent (including a listing of other
participating Lenders, if applicable) and a description of the financing
structure of the proposed Loan; and
(6) A general description of the geographic area to be served.
(b) Background information. General information concerning the
Applicant, its Affiliates, and its Lender or Agent, including a
description of any financial and contractual arrangements among the
parties. Specific information required of all Applicants is as follows:
(1) Evidence of legal authority and existence of the applicant. The
Applicant must provide evidence of its legal existence and authority to
execute the Loan Documents under the proposed Loan and perform the
activities proposed under the Project. Such evidence must include
Articles of Incorporation and bylaws for incorporated Applicants; other
types of Applicants should submit appropriate documentation for their
forms of organization. If the Applicant is a special purpose entity
(SPE) formed for the purpose of the Project, then the Applicant must
provide a copy of the Deed of Partnership or Articles of Organization
for the SPE.
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(2) Affiliates descriptions. A listing of all Affiliates of the
Applicant including a description of the nature of the Applicant's
relationship to each Affiliate. Any existing or proposed contractual
arrangements with each Affiliate should be described.
(3) Legal name. The legal name and form of organization of the
proposed Lender or Agent.
(4) Cover Form. A signed copy of Standard Form 424.
(5) Management Credentials. A description of the experience and
capabilities of the Applicant's management to carry out the Project.
(c) A business plan. A plan, satisfactory to the Board, presenting
in detail the fundamentals of the business and providing sufficient
financial data to indicate that the business will be economically
sustainable. The business plan should include, at a minimum:
(1) Risk Assessments. An assessment of the risks related to
construction, performance, demand, and financing structure, including a
narrative statement detailing planned risks mitigation strategies;
(2) Plans. A comprehensive operations and maintenance plan, as well
as a marketing strategy;
(3) Economic and Financial Analysis. A review of economic and
financial factors affecting the business in general and the Project in
particular. Applicants should refer to economic and financial conditions
in the past three years, and also discuss expectations of such
conditions in the future, including:
(i) The adequacy and stability of the business' customer base.
Applicants should provide information on the number of subscribers,
subscriber churn, subscriber acquisition cost or cost per gross added,
subscriber penetration, geographic concentration of customers, nature of
the terms of customer contracts, customer technical support, customer
satisfaction and retention;
(ii) The demand for services;
(iii) The sensitivity of the business to economic cycles;
(iv) Future capital needs;
(v) The adequacy, competitiveness and affordability of service fees;
(vi) An overview of the prevailing economic and demographic trends
in the target service area; and
(vii) Information on programming content and costs.
(4) Project Market Analysis. A breakdown of the key elements of the
Project, including:
(i) All proposed services to be offered, including High-speed
Internet Service, and whether a Separate Tier of Local Television
Broadcast Signals will be provided;
(ii) The total number of households, by DMA, and by Nonserved and
Underserved Area, which will have access to Local Television Broadcast
Signals under the Project;
(iii) The total number of households, by DMA, and by Nonserved and
Underserved Area, which will have access under the Project to any other
services as described pursuant to paragraph (c)(4)(i) of this section,
including an explanation if this number is greater than the total
identified in paragraph (c)(4)(ii);
(iv) Estimates of the number of households identified in paragraphs
(c)(4)(ii) and (c)(4)(iii) which will subscribe to each of the services
identified in paragraph (c)(4)(i) of this section by DMA, including a
breakdown of Nonserved and Underserved households;
(v) A breakdown of the Applicant's proposed pricing coupled with an
evaluation of any competitor's services offerings and pricings; and
(vi) A service deployment plan and a deployment performance
schedule, by DMA, for the services to access the Local Television
Broadcast Signals.
(d) Financial forecast and information. The Applicant must
demonstrate its financial ability to complete and maintain the Project
and repay its obligations. The financial data must include the
following:
(1) Audited financial statements. Income statements, balance sheets,
and cash flow statements for at least the last three years or from the
date of inception if less than three years. If the Applicant is an SPE,
then the Applicant must provide at least the last three years of audited
financial statements of the shareholders or partners of the SPE. If an
Affiliate has been designated by the Applicant as a source of
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credit support, then at least three years audited financial statements
for the Affiliate must be submitted as well.
(2) Plan of finance. An identification and explanation of all
sources and uses of funds throughout the proposed loan period,
including, but not limited to, any payments to Affiliates or
shareholders of the Applicant, estimated Project costs, and proposed
terms.
(3) A Pro-forma financial forecast covering the life of the proposed
loan, including balance sheets, income statements and cash flow
statements, with an explanation of assumptions. These Projections must
be prepared in accordance with Generally Accepted Accounting Principles
and should discuss such issues as the effects of inflation, competition,
ongoing repair and replacement needs, technological obsolescence,
working capital requirements, and other factors that may affect the
Applicant's ability to meet its debt service obligations.
(4) Project budget. A detailed cost breakdown of all facilities to
be constructed as part of the Project. This breakdown should be on a per
unit basis. It should also clearly show what will be financed with
guaranteed loan funds and what will be financed with other funds,
consistent with the plan of finance in paragraph (d)(2) of this section.
(5) Commitments. The Applicant must disclose all reasonably
foreseeable financial obligations, contingent liabilities, or other
commitments that could affect its financial health over the proposed
financing term. At the Board's request, the Applicant must take all
reasonable measures to insulate the Project and the Loan from external
factors that could affect timely payment of principal and interest. The
Board may ask for additional detailed information on commitments where
it is deemed necessary.
(6) Credit enhancement. In cases where an Affiliate provides credit
enhancement, the Applicant must provide documentation demonstrating the
Affiliate is sufficiently capitalized and evidencing the strength,
extent, limitations, and priority of the credit enhancement relative to
the other obligations of the Affiliate.
(e) A certified system plan, technical analysis, and design.
Prepared by qualified personnel on the Applicant's staff or by a
licensed consulting engineer, consisting of the following:
(1) A detailed description of the proposed service area including
maps of the service area;
(2) A TV Signals Coverage Diagram and detailed description of all
existing and proposed facilities. The diagram must include proposed
route miles of cable plant, if applicable, the estimated area served,
types of facilities to be deployed (terrestrial microwave or satellite
microwave, wireless, translator, fiber optic cable or coaxial cable,
electronic equipment, etc.), the capacity of the facilities (number of
fibers, size of the cables, and intended number of channels, frequencies
used, bandwidth capacity, etc.), and the serving area of the proposed
facilities;
(3) The intended capabilities of the Project's facilities, including
bandwidth, proposed television signal topology, standards, and
television signal transmission protocols. In addition, the Applicant
must explain the manner in which the transmission facilities will
deliver the proposed Local Television Broadcast Signals, including any
equipment necessary to receive the signals which will be located at the
subscribers' premises, and/or, near or on the subscribers' television
sets;
(4) A listing of all regulatory approvals required to operate
facilities, including licenses, permits, and franchises and the status
of any required approvals not obtained at the time of the application.
For any approvals not yet received, the Applicant should provide details
on the nature of the needed approval, the justification for expecting
such an approval, the track-record of the Applicant in obtaining such
approvals, and the contingency plan in the event the approval is
delayed;
(5) A description of the television signal sources (including, but
not limited to local, regional and national television signal
broadcasters, other television signal providers, content providers,
cable television operators and providers, enhanced service providers,
providers of satellite services, and the anticipated role of such
providers in the proposed Project);
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(6) The results of discussions, if any, with local television
broadcasters serving the Project area;
(7) An identification of all Local Television Broadcast Signals that
will be carried by the Project;
(8) An identification of the digital signal quality and capacity in
megabits per second (Mb/s) that will be required to digitally broadcast
all Local Television Broadcast Signals to be provided by the Project;
(9) An identification of the net usable bandwidth, in Mb/s, that are
surplus to the provision of the Local Television Broadcast Signals to be
provided by the Project and that will be used to provide High Speed
Internet Service; and
(10) A description of the extent to which the Project will enable
the delivery of Local Television Broadcast Signals by a means reasonably
compatible with existing systems or devices predominantly in use for the
reception of television signals.
(f) Lender information--(1) Lender. The Application shall include
the information described in Sec. 2201.13(b), (c) and (d) of this part
concerning the Lender or Lenders.
(2) Term Sheet. The Application shall include a signed Term Sheet.
(3) Lender's Analysis. The Applicant shall submit the Lender's
detailed analysis of the creditworthiness of the transaction at the time
of application and any supporting due diligence documentation, including
a complete underwriting analysis of the Project (assessing Applicant
creditworthiness and Project feasibility) exercising the Lender's
standard of care as set forth at Sec. 2201.26(a).
(4) Certification. The Lender must certify that the information
provided pursuant to paragraphs (f)(1), (2) and (3) of this section is
true and accurate.
(5) Additional Information. The Board will request any other
information the Board deems material to its assessment of the Lender.
(g) Other Financial Information--(1) Collateral. The Applicant shall
provide a detailed description and valuation of all Collateral to be
used to secure the Loan. This valuation shall be supported by an
independent, third party appraisal for existing Assets, and/or adequate
cost substantiation for Assets to be constructed for purposes of the
Project, and in all cases shall be acceptable to the Board. Such a
valuation should address, at a minimum, pledged Assets of the Applicant,
any designated Affiliate of the Applicant, or both as identified in the
Loan Documents, including primary Assets to be used in the delivery of
the service for which the Loan sought would be guaranteed. The Applicant
also must provide a depreciation schedule (as classified under and in
accordance with GAAP) for the major Assets in order for the Board to
determine the economically useful life of the primary Assets to be used
in delivery of the signals concerned. Appraisals of real property must
be prepared by State licensed or certified appraisers, and be consistent
with the ``Uniform Standards of Professional Appraisal Practice,''
promulgated by the Appraisal Standards Board of the Appraisal
Foundation.
(2) Credit Opinion. With respect to applications for a Loan of $15
million or more, the Applicant is required to obtain and submit to the
Board a preliminary credit rating opinion letter on the proposed
transaction at the time of application, prepared by a nationally
recognized statistical rating organization (rating agency) approved by
the Board. This preliminary credit rating opinion shall be based on the
financing structure proposed by the Applicant for the Project absent the
Federal Guarantee, without regard to recovery expectations. The Board
will utilize this preliminary credit assessment to assist in evaluating
the creditworthiness of the proposed transaction and determining whether
it provides a reasonable assurance of repayment. In addition, applicants
for loans less than $15 million that have a credit rating shall provide
that credit rating to the Board. The Board will utilize this preliminary
credit assessment (for loans over $15 million) or an existing credit
rating (for loans less than $15 million) to assist in evaluating the
creditworthiness of the proposed transaction and determining whether it
provides a reasonable assurance of repayment. The Board may approve a
Guarantee over $15 million only if it receives a final
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credit rating opinion letter from the rating agency on the Loan that is
in form and substance acceptable to the Board.
(3) Evidence of Lack of Credit Elsewhere. The Applicant shall
provide the information required pursuant to Sec. 2201.12(b)(2)(v) of
this part.
(h) Compliance with other Federal statutes, regulations and
Executive Orders. The Applicant must certify compliance with other
applicable Federal statutes, regulations, and Executive Orders.
(i) Environmental impact. The Applicant must provide information
describing the Project's impact on the environment as required pursuant
to Sec. 2201.16 of this part. The application may be submitted prior to
final determination of a Project's environmental impacts; however, a
Guarantee shall not be made and no Loan funds will be advanced prior to
such determination and demonstrated compliance with all environmental
statutes, regulations and executive orders.
(j) Federal debt certification. The Applicant must provide a
certification that it is not delinquent on any obligation owed to the
government (7 CFR parts 3016 and 3019). No Guarantee will be made if
either the Applicant or Lender has an outstanding, delinquent Federal
debt until:
(1) The delinquent account has been paid in full;
(2) A negotiated repayment schedule is established and at least one
payment has been received; or
(3) Other arrangements, satisfactory to the agency responsible for
collecting the debt, are made.
(k) Supplemental information. The Applicant should provide any
additional information it considers relevant to the Project and likely
to be helpful in determining the extent to which the Project would
further the purposes of the Act.
(l) Additional information required by the Board. The Applicant must
provide any additional information the Board determines is necessary to
adequately evaluate the application.
(m) Application Fee. For an application to be considered complete,
the Applicant must submit a check payable to the United States Treasury
in the amount of the application fee as set forth in Sec. 2201.21(a) of
this part.
(n) Incomplete application. An incomplete application, including any
fee submitted therewith, will be returned to the Applicant without
action.
Sec. 2201.12 Applicant.
(a) Eligibility. (1) The Board will make a determination of
eligibility of an Applicant to be a Borrower under the Program based
upon the Applicant's ability to directly provide, as a result of
financing received under the Program, Local Television Broadcast Signals
to households in Nonserved Areas and/or Underserved Areas and the
information provided pursuant to paragraph (b) of this section.
(2) A determination that an Applicant is eligible does not assure
that the Board will approve a Guarantee sought, or otherwise preclude
the Board from declining to approve a Guarantee.
(b) Documentation for Eligibility Determination. (1) An Applicant
must provide a Term Sheet evidencing a commitment of that Lender or
Agent, and the Lenders it represents, to make a Loan to the Applicant
upon an Offer of Guarantee by the Board, subject to the requirements of
the Act and the regulations set forth in this part.
(2) An Applicant must provide documentation demonstrating that:
(i) The Assets, facilities, or equipment covered by the Loan will be
utilized economically and efficiently;
(ii) The terms, conditions, security, and schedule and amount of
repayments of principal and the payment of interest with respect to the
Loan protect the financial interests of the United States and are
reasonable;
(iii) Appropriate and adequate Collateral secures the Loan sought to
be guaranteed;
(iv) All necessary and required regulatory and other approvals,
spectrum licenses, and delivery permissions for the Loan and the Project
under the Loan have been applied for or obtained (a Guarantee shall not
be made and no Loan funds will be advanced until all such approvals,
licenses and permissions have been obtained);
(v) The Loan would not be available on reasonable terms and
conditions
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without a Guarantee under this Program. To satisfy this requirement, an
Applicant must provide, with its application, documentation from at
least one lending institution other than the Lender to which the
Applicant has applied for financial assistance dated within six months
of submission of the application, indicating that the Applicant was
unable to obtain substantially the same Loan it is applying for on
reasonable terms and conditions; and
(vi) Repayment of the Loan can reasonably be expected.
Sec. 2201.13 Lender.
(a) Eligibility. (1) The Board will make a determination of
eligibility of a Lender to make a Loan to be guaranteed under the
Program based upon the criteria set forth in paragraphs (b) and (c) of
this section.
(2) A determination that a Lender is eligible does not assure that
the Board will approve a Guarantee sought, or otherwise preclude the
Board from declining to approve a Guarantee.
(b) Qualifications. In addition to evaluating an application
pursuant to Sec. 2201.18, in making a determination to approve a
Guarantee to a Lender, the Board will assess:
(1) The Lender's Regulatory Capital Ratios, in the case of Banking
Institutions, or Net Worth Ratios, in the case of other institutions;
(2) Whether the Lender possesses the ability to administer the Loan,
including its experience with loans to telecommunications companies;
(3) The scope, volume and duration of the Lender's activity in
administering loans, including federally guaranteed loans;
(4) The performance of the Lender's loan portfolio, including its
current delinquency rate;
(5) The Lender's charge-off rate, expressed as a percentage of
outstanding loans for its current fiscal year;
(6) If the Lender intends to sell participation interests in the
Loan, the plan of syndication; and
(7) Any other matter the Board deems material to its assessment of
the Lender.
(c) A Loan will not be guaranteed unless:
(1) If the Lender is not a nonprofit corporation and is subject to
loan-to-one-borrower and Affiliate transaction restrictions under
applicable law, the Loan is made in accordance with such restrictions;
(2) If the Lender is not a nonprofit corporation and is not subject
to the restrictions described in paragraph (c)(1) of this section, the
Loan is made to a Borrower that is not an Affiliate of the Lender and
the amount of the Loan, and all outstanding loans by the Lender to the
Borrower and any of its Affiliates, does not exceed 10 percent of the
Net Equity of the Lender; and
(3) If the Lender is a nonprofit corporation, the Board determines
that:
(i) Such nonprofit corporation has one or more issues of outstanding
long-term debt that is rated within the highest 3 rating categories of a
nationally recognized statistical rating organization, as evidenced by
written confirmation from the nationally recognized statistical rating
organization, subject to updating upon request of the Board; and
(ii) The making of the Loan would not cause a decline in the rating
of such Lender's long-term debt below the highest 3 rating categories of
a nationally recognized statistical rating organization, as evidenced by
written confirmation from the nationally recognized statistical rating
organization, subject to updating upon request of the Board.
(d) Agent. (1) An application for a Guarantee of a single Loan that
includes participation of more than one Lender must identify one of the
Lenders participating in such Loan to act as Agent for all Lenders. This
Agent is responsible for administering the Loan and shall have those
duties and responsibilities required of an Agent, as set forth in the
Guarantee.
(2) If more than one Lender is seeking a Guarantee of a single Loan,
each one of the Lenders on the application must meet the qualifications
set forth in paragraphs (b) and (c) of this section. However, only the
Agent must meet the qualifications set forth in paragraph (b)(2) and (3)
of this section.
(3) Each Lender, irrespective of any indemnities or other agreements
between the Lenders and the Agent, shall
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be bound by all actions, and/or failures to act, of the Agent. The Board
and the Administrator shall be entitled to rely upon such actions and/or
failures to act of the Agent as binding all Lenders.
Sec. 2201.14 Eligible Loan purposes.
To be guaranteed under the Program, a Loan must be made for the
purpose of financing the acquisition, improvement, enhancement,
construction, deployment, launch, or rehabilitation of the means by
which Local Television Broadcast Signals will be delivered to a
Nonserved Area or Underserved Area.
Sec. 2201.15 Ineligible Loan purposes.
(a) The proceeds of the Loan shall not be used for operating,
advertising, or promotion expenses, or for the acquisition of licenses
for the use of spectrum in any competitive bidding.
(b) The Applicant shall not transfer proceeds of the Loan to any
Affiliate(s).
(c) The Board will not fund a Project that is designed primarily to
serve one or more of the top 40 Designated Market Areas.
(d) The Board will not fund a Project that would alter or remove
National Weather Service warnings from Local Television Broadcast
Signals.
(e) No Guarantee may be granted or used to provide funds to a
Project that extends, upgrades, or enhances the services provided over
any cable system to an area that, as of the enactment of the Act, is
covered by a cable franchise agreement that expressly obligates a cable
operator to serve such area.
Sec. 2201.16 Environmental requirements.
(a) General. (1) Environmental assessments of the Board's actions
will be conducted in accordance with applicable statutes, regulations,
and other applicable authorities. Therefore, each application for a
Guarantee under the Program must be accompanied by information necessary
for the Board to meet the requirements of applicable law.
(2) Actions requiring compliance with NEPA. (i) The types of actions
classified as ``major Federal actions'' subject to NEPA procedures are
discussed in 40 CFR parts 1500 through 1508.
(ii) With respect to this Program, these actions typically include:
(A) Any Project, permanent or temporary, that will involve
construction and/or installations;
(B) Any Project, permanent or temporary, that will involve ground
disturbing activities; and
(C) Any Project supporting renovation, other than interior
remodeling.
(3) Environmental information required from the Applicant. (i)
Environmental data or documentation concerning the use of the proceeds
of any Loan guaranteed under this Program must be provided by the
Applicant to the Board to assist the Board in meeting its legal
responsibilities.
(ii) Such information includes:
(A) Documentation for an environmental threshold review from
qualified data sources, such as a Federal, State or local agency with
expertise and experience in environmental protection, or other sources,
qualified to provide reliable environmental information;
(B) Any previously prepared environmental reports or data relevant
to the Loan at issue;
(C) Any environmental review prepared by Federal, State, or local
agencies relevant to the Loan at issue; and
(D) Any other information that can be used by the Board to ensure
compliance with environmental laws.
(iii) All information supplied by the Applicant is subject to
verification by the Board.
(b) The regulations of the Council on Environmental Quality
implementing NEPA require the Board to provide public notice of the
availability of Project specific environmental documents such as
environmental impact statements, environmental assessments, findings of
no significant impact, records of decision, etc., to the affected
public. See 40 CFR 1506.6(b). Environmental information concerning
specific Projects can be obtained from the Board by contacting:
Secretary, LOCAL Television Loan Guarantee Board, 1400 Independence
Ave., SW., Room 2919-S, Stop 1575; Washington, DC 20250-1575.
(c) National Environmental Policy Act-- (1) Purpose. The purpose of
this paragraph (c) is to adopt procedures for
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compliance with the National Environmental Policy Act, 42 U.S.C. 4321 et
seq., by the Board. This paragraph supplements regulations at 40 CFR
Chapter V.
(2) Definitions. For purposes of this section, the following
definitions apply:
Categorical exclusion means a category of actions which do not
individually or cumulatively have a significant effect on the human
environment and for which neither an environmental assessment nor an
environmental impact statement is required.
Environmental assessment means a document that briefly discusses the
environmental consequences of a proposed action and alternatives
prepared for the purposes set forth in 40 CFR 1508.9.
EIS means an environmental impact statement prepared pursuant to
section 102(2)(C) of NEPA.
FONSI means a finding of no significant impact on the quality of
human environment after the completion of an environmental assessment.
NEPA means the National Environmental Policy Act, 42 U.S.C. 4321, et
seq.
Working capital loan means money used by an ongoing business concern
to fund its existing operations.
(3) Delegations to the Secretary of the Board. (i) All incoming
correspondence from Council on Environmental Quality (CEQ) and other
agencies concerning matters related to NEPA, including draft and final
EIS, shall be brought to the attention of the Secretary of the Board.
The Secretary of the Board will prepare or, at his or her discretion,
coordinated replies to such correspondence.
(ii) With respect to actions of the Board, the Board will:
(A) Ensure preparation of all necessary environmental assessments
and EISs;
(B) Maintain a list of actions for which environmental assessments
are being prepared;
(C) Revise this list at regular intervals, and send the revisions to
the Environmental Protection Agency;
(D) Make the list available for public inspection;
(E) Maintain a list of EISs; and
(F) Maintain a file of draft and final EISs.
(4) Categorical exclusions. (i) This paragraph describes various
classes of Board actions that normally do not have a significant impact
on the human environment and are categorically excluded. The word
``normally'' is stressed; there may be individual cases in which
specific factors require contrary action.
(ii) Subject to the limitations in paragraph (c)(4)(iii) of this
section, the actions described in this paragraph have been determined
not to have a significant impact on the quality of the human
environment. They are categorically excluded from the need to prepare an
environmental assessment or an EIS under NEPA.
(A) Guarantees of working capital loans; and
(B) Guarantees of loans for the refinancing of outstanding
indebtedness of the Applicant, regardless of the purpose for which the
original indebtedness was incurred.
(iii) Actions listed in paragraph (c)(4)(ii) of this section that
otherwise are categorically excluded from NEPA review are not
necessarily excluded from review if they would be located within, or in
other cases, potentially affect:
(A) A floodplain;
(B) A wetland;
(C) Important farmlands, or prime forestlands or rangelands;
(D) A listed species or critical habitat for an endangered species;
(E) A property that is listed on or may be eligible for listing on
the National Register of Historic Places;
(F) An area within an approved State Coastal Zone Management
Program;
(G) A coastal barrier or a portion of a barrier within the Coastal
Barrier Resources System;
(H) A river or portion of a river included in, or designated for,
potential addition to the Wild and Scenic Rivers System;
(I) A sole source aquifer recharge area;
(J) A State water quality standard (including designated and/or
existing beneficial uses and anti-degradation requirements); or
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(K) The release or disposal of regulated substances above the levels
set forth in a permit or license issued by an appropriate regulatory
authority.
(5) Responsibilities and procedures for preparation of an
environmental assessment. (i) The Board will request that the Lender and
Applicant prepare an environmental assessment that provides information
concerning all potentially significant environmental impacts of the
Applicant's proposed Project. The Board, consulting at its discretion
with CEQ, will review the information provided by the Lender and
Applicant. Though no specific format for an environmental assessment is
prescribed, it shall be a separate document, suitable for public review
and should include the following in conformance with 40 CFR 1508.9:
(A) Description of the environment. The existing environmental
conditions relevant to the Board's analysis determining the
environmental impacts of the proposed Project should be described. The
no action alternative also should be discussed;
(B) Documentation. Citations to information used to describe the
existing environment and to assess environmental impacts should be
clearly referenced and documented. These sources should include, as
appropriate, but not be limited to, local, tribal, regional, State, and
Federal agencies, as well as, public and private organizations and
institutions;
(C) Evaluating environmental consequences of proposed actions. A
brief discussion should be included of the need for the proposal, of
alternatives as required by 42 U.S.C. 4332(2)(E) and their environmental
impacts. The discussion of the environmental impacts should include
measures to mitigate adverse impacts and any irreversible or
irretrievable commitments of resources to the proposed Project.
(ii) An environmental assessment, may:
(A) Tier upon the information contained in a previous EIS, as
described in 40 CFR 1502.20;
(B) Incorporate by reference reasonably available material, as
described in 40 CFR 1502.21; and/or
(C) Adopt a previously completed EIS reasonably related to the
Project for which the proceeds of the Loan sought to be guaranteed under
the Program will be used, as described in 40 CFR 1506.3.
(iii) If, on the basis of the environmental assessment, the Board
determines that an EIS is not required, a FONSI, as described in 40 CFR
1508.13 will be prepared. The FONSI will include the environmental
assessment or a summary of it and be available to the public from the
Board. The Board shall maintain a record of these decisions, making them
available to interested parties upon request. Requests should be
directed to LOCAL Television Loan Guarantee Board, 1400 Independence
Ave., SW., Room 2919-S, Stop 1575; Washington, DC 20250-1575. Prior to a
final Guarantee decision, a copy of the NEPA documentation shall be sent
to the Board for consideration.
(6) Responsibilities and procedures for preparation of an
environmental impact statement. (i) If after the environmental
assessment has been completed, the Board determines that an EIS is
necessary, it and other related documentation will be prepared by the
Board in accordance with section 102(2)(c) of NEPA, this section, and 40
CFR parts 1500 through 1508. The Board may seek additional information
from the Applicant in preparing the EIS. Once the document is prepared,
the Board will transmit the document to the Environmental Protection
Agency.
(ii) EIS. (A) The following procedures, as discussed in 40 CFR parts
1500 through 1508, will be followed in preparing an EIS:
(1) The format and contents of the draft and final EIS shall be as
discussed in 40 CFR part 1502.
(2) The requirements of 40 CFR 1506.9 for filing of documents with
the Environmental Protection Agency shall be followed.
(3) The Board, consulting at its discretion with CEQ, shall examine
carefully the basis on which supportive studies have been conducted to
assure that such studies are objective and comprehensive in scope and in
depth.
(4) NEPA requires that the decision making ``utilize a systematic,
interdisciplinary approach that will ensure the integrated use of the
natural and social sciences and the environmental
[[Page 49]]
design arts.'' 42 U.S.C. 4332(A). If such disciplines are not present on
the Board staff, appropriate use should be made of personnel of Federal,
State, and local agencies, universities, non-profit organizations, or
private industry.
(B) Until the Board issues a record of decision as provided in 40
CFR 1502.2 no action concerning the proposal shall be taken which would:
(1) Have an adverse environmental impact; or
(2) Limit the choice of reasonable alternatives.
(3) 40 CFR 1506.10 places certain limitations on the timing of Board
decisions on taking ``major Federal actions.'' A Guarantee shall not be
made before the times set forth in 40 CFR 1506.10.
(iii) A public record of decision stating what the decision was;
identifying alternatives that were considered, including the
environmentally preferable one(s); discussing any national
considerations that entered into the decision; and summarizing a
monitoring and enforcement program if applicable for mitigating the
environmental effects of a proposal will be prepared. This record of
decision will be prepared at the time the decision is made.
Sec. 2201.17 Submission of applications.
(a) Applications should be submitted as follows:
(1) Applications for Guarantees shall be submitted to the LOCAL
Television Loan Guarantee Board, 1400 Independence Avenue, SW., Stop
1575, Room 2919-S, Washington, DC 20250-1575. Applications should be
marked Attention: Secretary, LOCAL Television Loan Guarantee Board.
(2) Applications must be submitted postmarked not later than the
application filing deadline established by the Board if the applications
are to be considered during the period for which the application was
submitted.
(3) All Applicants must submit an original and two copies of a
completed application.
(b) Application deadline. One or more application windows will be
announced. The duration of each application window for submission of
applications will be approximately 120 days. Notice of an application
window will be published in the Federal Register.
Sec. 2201.18 Application selection.
(a) Application Priority. When evaluating applications to determine
which Project or combinations of Projects will best facilitate access to
Local Television Broadcast Signals, the Board shall give priority in the
approval of Guarantees to the following categories:
(1) First, to applications for Projects that will serve households
in Nonserved Areas.
(2) Second, to applications for Projects that will serve households
in Underserved Areas.
(3) Within each category, the Board shall balance applications for
Projects that will serve the largest number of households with
applications for Projects that will serve remote, isolated communities
(including noncontiguous States) in areas that are unlikely to be served
through market mechanisms. The Board shall consider the Project's
estimated cost per household and shall give priority to those
applications for Projects that provide the highest quality service at
the lowest cost per household.
(b) Additional Considerations. (1) The Board shall give additional
consideration to applications for Projects that, in addition to
providing Local Television Broadcast Signals, also provide High-speed
Internet service.
(2) The Board shall consider other factors, which shall include
applications for Projects that:
(i) Offer a separate tier of Local Television Broadcast Signals at a
lower cost to consumers, except where prohibited by applicable Federal,
State, or local laws or regulations; and
(ii) Enable the delivery of Local Television Broadcast Signals
consistent with the purpose of the Act by means reasonably compatible
with existing systems or devices predominantly in use.
(c) Other Considerations. All other evaluation factors and priority
considerations being equal, the Board will give a preference in
approving Guarantees to those applications for Projects that provide
greater amounts and higher quality Collateral.
[[Page 50]]
(d) Protection of United States Financial Interests. The Board may
not approve the Guarantee of a Loan unless:
(1) The Board has been given documentation, assurances, and access
to information, persons, and entities necessary, as determined by the
Board, to address issues relevant to review of the Loan by the Board for
purposes of the Act; and
(2) The Board makes a determination in writing that:
(i) To the best of its knowledge upon due inquiry, the Assets,
facilities, or equipment covered by the Loan will be utilized
economically and efficiently;
(ii) The terms, conditions, security, and schedule and amount of
repayments of principal and the payment of interest with respect to the
Loan protect the financial interests of the United States and are
reasonable;
(iii) The value of Collateral provided by an Applicant is at least
equal to the unpaid balance of the Loan amount; and if the value of
Collateral provided by an Applicant is less than the Loan amount,
additional required Collateral is provided by the Applicant or an
Affiliate designated by the Applicant and acceptable to the Board;
(iv) All necessary and required regulatory and other approvals,
spectrum licenses, and delivery permissions have been received for the
Loan and the Project under the Loan;
(v) The Loan would not be available on reasonable terms and
conditions without a Guarantee under the Act; and
(vi) Repayment of the Loan can be reasonably expected.
(e) Non approvals. A Guarantee will not be approved if it is
determined that:
(1) The Applicant's proposal does not indicate financial
feasibility, or the Collateral is determined to not adequately secure
the Loan;
(2) The Applicant's proposal indicates technical flaws, which, in
the opinion of the Board, would prevent successful implementation, or
operation of the Project;
(3) Any other aspect of the Applicant's proposal fails to adequately
address any requirements of the Act or the regulations in this part or
contains inadequacies which would, in the opinion of the Board,
undermine the ability of the Project to meet the general purpose of the
Act or comply with requirements in this part; or
(4) Proceeds for the Loan will be used for any of the ineligible
purposes set forth in Sec. 2201.15.
(f ) Impact on Competition. A Loan shall not be guaranteed unless
the proposed Project, as determined by the Board in consultation with
the National Telecommunications and Information Administration, is not
likely to have a substantial adverse impact on competition that
outweighs the benefits of improving access to Local Television Broadcast
Signals in a Nonserved Area or Underserved Area and is commercially
viable.
Sec. 2201.19 Loan terms.
(a) All Loans guaranteed under the Program shall be due and payable
in full no later than the earlier of 25 years from date of the closing
of the Loan or the economically useful life of the primary Assets to be
used in delivery of the signals concerned, as determined by the Board.
(b) Loans guaranteed under the Program must:
(1) Bear a rate of interest determined by the Board to protect the
financial interests of the United States and to be reasonable. This
determination will be based on the Board's comparison of the:
(i) Difference, or interest rate spread, between the interest rate
on the Loan sought to be guaranteed and the current average yield on
outstanding marketable obligations of the United States of comparable
maturity; and
(ii) The interest rate spread between the rates on recently issued
and similarly rated and structured obligations and the current yields on
outstanding marketable obligations of the United States of comparable
maturity.
(2) Have terms that, in the judgment of the Board, are consistent in
material respects with the terms of similar obligations in the private
capital market.
(c) So long as any principal and interest is due and payable on a
Loan guaranteed under the Act, a Borrower shall:
[[Page 51]]
(1) Maintain Assets, equipment, facilities, and operations on a
continuing basis;
(2) Not make any discretionary dividend payments that impair its
ability to repay obligations guaranteed under the Act;
(3) Remain sufficiently capitalized; and
(4) Submit to and cooperate fully with any audit or Collateral
review required by the Board.
Sec. 2201.20 Collateral.
(a) Existence of adequate Collateral. An Applicant shall provide the
Board such documentation as is necessary, in the judgment of the Board,
to provide satisfactory evidence that appropriate and adequate
Collateral secures a Loan guaranteed under the Program. Prior to
approving a Guarantee, the Board shall require that the value of the
Collateral pledged be at least equal to the unpaid balance of the Loan
Amount.
(b) Form of Collateral. Collateral required by paragraph (a) of this
section shall consist solely of Assets of the Applicant, any Affiliate
of the Applicant, or both, as identified in the Loan Documents,
including primary Assets to be used in the delivery of the service for
which the Loan is guaranteed. Such Assets may include, but are not
limited to, the following:
(1) Tangible Assets, including current Assets (such as cash,
accounts receivable, and inventory), reserve funds, land, buildings,
machinery, fixtures, and equipment;
(2) Assignments of all relevant contractual agreements, including
contractual rights to certain cash flows, marketing arrangements, third-
party guarantees, insurance policies, contractors' bonds, and other
agreements or rights that may be of value;
(3) All permits, governmental approvals, franchises and licenses,
necessary to carry out and operate the required equipment or service;
and
(4) Other Assets, which, in the judgment of the Board, possess
Collateral value suitable for securing the Loan, including a pledge of
all or part of the Applicant's ownership interest in the Project or
company, and any after-acquired property.
(c) Applicant's compliance findings. An Applicant's compliance with
paragraphs (a) and (b) of this section does not assure a finding of
reasonable assurance of repayment, or assure the Board's Guarantee of
the Loan.
(d) Collateral for entire loan. The same Collateral shall secure the
entire Loan, including both the Guaranteed Portion and the Unguaranteed
Portion.
(e) Review of valuation. The value of Collateral securing a Loan is
subject to review and approval by the Board, and may be adjusted
downward by the Board if the Board reasonably believes such adjustment
is appropriate. The Board's evaluation of the proposed Collateral for
the Loan will be based on several factors, including but not limited to:
(1) The expected value of the pledged Collateral in the event of
defaults with specific consideration given to the residual value of
Project Assets to third-parties and the liquidity of such Assets;
(2) The cash flow characteristics of the Project;
(3) The contractual characteristics of the Project to the extent
Project-related agreements underpin the Project's estimated cash flows;
(4) The competitiveness of the Project's economics and the
associated certainty of cash flows in the future; and
(5) The creditworthiness of any designated Affiliates(s) that
provides services to the Applicant or provides any credit support.
(f) Ongoing Collateral Assessment. The Board shall require that the
value of the Collateral shall be at all times at least equal to the
unpaid balance of the Loan Amount. To ensure that the ongoing value of
the Collateral is properly maintained, the Board may require the
borrower to have an ongoing third-party inspection and valuation of the
Collateral that is acceptable to the Board. If the Collateral value at
the measurement date is less than the unpaid balance of the Loan Amount,
the Borrower or its designated Affiliates(s) will be required to pledge
additional acceptable Collateral to cover any deficit.
(g) Lien on Collateral. (1) Upon the Board's approval of a
Guarantee, the
[[Page 52]]
Administrator shall have liens on Collateral securing the Loan, which
shall be superior to all other liens on such Collateral. The value of
the Collateral (based on a determination satisfactory to the Board)
shall be at least equal to the unpaid balance of the Loan amount, giving
significant consideration to the expected value of the Collateral in the
event of defaults with specific consideration given to the residual
value of the Project Assets to third-parties and the liquidity of such
Assets.
(2) Both the Administrator and the Lender or Agent shall have a
perfected security interest in the Collateral fully sufficient to
protect the financial interests of the United States and the Lenders.
However, the security interest perfected by the Administrator shall
ensure that the Administrator has first priority in such Collateral.
Sec. 2201.21 Fees.
(a) Application Fee. The Board shall charge each Applicant for a
Guarantee under the Program a non-refundable fee, payable to the United
States Treasury, to cover the costs of making necessary determinations
and findings with respect to an application for a Guarantee under the
Program. The amount of the fee is $10,000 for Loans of $1 million up to
$50 million, $15,000 for Loans of $50 million up to $100 million,
$30,000 for Loans of $100 million up to $500 million, and $40,000 for
Loans of $500 million or greater.
(b) Guarantee Origination Fee. The Board shall charge and collect
from a Borrower a Guarantee Origination Fee. The amount of such fee will
be sufficient to cover the administrative costs of the Board associated
with the Loan. Upon extending an offer of Guarantee, the Board and the
Borrower shall enter into an agreement providing for the payment of the
Guarantee Origination Fee; the agreement shall include terms relating to
the schedule of payments and deposit of such payments into an escrow
account. The Guarantee Origination Fee must be paid in full no later
than and as a condition of the closing of any Loan. A Borrower will be
responsible for paying the administrative costs of the Board regardless
of whether the Loan actually closes.
(c) Lender Fees. A Lender or Agent may assess and collect from the
Borrower such fees and costs associated with the application and
origination of the Loan as are reasonable and customary, taking into
consideration the amount and complexity of the credit. The Board may
take such fees and costs into consideration when determining whether to
offer a Guarantee.
Sec. 2201.22 Issuance of Guarantees.
(a) The Board's decision to approve an application and extend an
Offer of Guarantee under the Program is conditioned upon:
(1) The Lender or Agent and Applicant obtaining any required
regulatory or judicial approvals;
(2) The Lender or Agent and Applicant being legally authorized to
enter into the Loan under the terms and conditions submitted to the
Board in the application;
(3) The Board's receipt of the Loan Documents and any related
instruments, in form and substance satisfactory to the Board all
properly executed by the Lender or Agent, Applicant, and any other
required party other than the Board;
(4) No material adverse change in the Applicant's ability to repay
the Loan between the date of the Board's approval and the date the
Guarantee is to be issued;
(5) Entering into the Guarantee violates no Loan covenants or
existing contractual obligations of the Borrower; and
(6) Such other conditions as determined by the Board.
(b) The Board may withdraw its approval of an application and
rescind its Offer of Guarantee if the Board determines that the Lender
or Agent or the Applicant cannot, or is unwilling to, provide adequate
documentation and proof of compliance with paragraph (a) of this section
within the time provided for in the Offer of Guarantee.
(c) Only after receipt of all the documentation required by this
section will the Administrator sign and deliver the Guarantee.
Sec. 2201.23 Funding for the Program.
(a) Costs incurred by the Government. The Act provides funding for
the costs
[[Page 53]]
incurred by the Government as a result of granting Guarantees under the
Program. While pursuing the goals of the Act, it is the intent of the
Board to minimize the cost of the Program to the Government. The Board
will estimate the risk posed by the guaranteed Loans to the funds
appropriated for the costs of the Guarantees under the Program and
operate the Program accordingly.
(b) Credit Risk Premium--(1) Establishment and approval. The Board
may establish and approve the acceptance of credit risk premiums with
respect to a Guarantee under this Act in order to offset the cost, as
defined in section 502(5) of the Federal Credit Reform Act of 1990, of
the Guarantee. To the extent that appropriations of budget authority are
insufficient to cover the cost, as so determined, of a Guarantee, and
the Board approves such a Guarantee, credit risk premiums shall be
accepted from a non-Federal source on behalf of a Borrower.
(2) Credit risk premium amount--(i) General. The Board shall
determine the amount of any credit risk premium to be accepted with
respect to a Guarantee on the basis of:
(A) The financial and economic circumstances of the Borrower,
including the amount of Collateral offered;
(B) The proposed schedule of Loan disbursements;
(C) The business plans of the Borrower;
(D) Any financial commitment from a broadcast signal provider; and
(E) The concurrence of the Director of the Office of Management and
Budget as to the amount of the credit risk premium.
(ii) Proportionality. To the extent that appropriations of budget
authority are sufficient to cover the cost, as determined under section
502(5) of the Federal Credit Reform Act of 1990, of Guarantees, the
credit risk premium with respect to each Guarantee shall be reduced
proportionately.
(iii) Payment of premiums. Credit risk premiums under this paragraph
shall be paid to an escrow account established in the Treasury, which
shall accrue interest. Such interest shall be retained by the escrow
account, subject to paragraph (b)(2)(iv) of this section.
(iv) Deductions from escrow account. If a liquidation of the
Collateral occurs pursuant to Sec. 2201.33(h), any shortfall between
the proceeds of the liquidation net of costs and expenses relating to
the liquidation, and the guarantee amount paid shall be deducted from
funds in the escrow account and credited to the Administrator for
payment of such shortfall. At such time as all Loans guaranteed under
this Program have been repaid or otherwise satisfied in accordance with
the Act and the regulations in this part, remaining funds in the escrow
account, if any, shall be refunded, on a pro rata basis, to Borrowers
whose Loans guaranteed under the Program were not in Payment Default or
Default, or where any Payment Default or Default was cured in accordance
with the terms of the Loan Documents.
Sec. 2201.24 Insurance.
The Borrower of a Loan guaranteed under the Program shall obtain, at
its expense, insurance sufficient to protect the financial interests of
the United States, as determined by the Board.
Sec. 2201.25 Performance Agreement.
(a) The Borrower of a Loan guaranteed under the Program shall enter
into a Performance Agreement with the Administrator with respect to the
Local Television Broadcast Signals to be provided through the Project.
(b) The Administrator may assess against and collect from a Borrower
a penalty not to exceed 3 times the interest accrued on the Loan during
the period of noncompliance if the Borrower fails to meet its stipulated
Performance Agreement entered into under paragraph (a) of this section.
Sec. 2201.26 Lender standard of care.
(a) The Lender or Agent shall exercise due care and diligence in
analyzing and administering the Loan as would be exercised by a
responsible and prudent Banking Institution when analyzing and
administering a secured loan of such Banking Institution's own funds
without a Guarantee. Such standards shall also apply to any and all
underwriting analysis, approvals,
[[Page 54]]
determinations, permissions, acceptances, requirements, or opinion made,
given, imposed or reached by Lender.
(b) The Lender or Agent shall have such other obligations and duties
to the Board and the Administrator as are set forth in the Act or Loan
Documents.
Sec. 2201.27 Assignment or transfer of Loans.
(a) Modifications. The Loan Documents may not be modified, in whole
or in part, without the prior written approval of the Board.
(b) Requirements. (1) Subject to the provisions of paragraphs (c)
and (d) of this section and other provisions of this part, a Lender or
Agent may assign or transfer the Loan including the Loan Documents to
another Lender that meets the eligibility requirements of Sec. 2201.13
of this part.
(2) Any assignment or transfer of a Loan, or any pledge or other use
of a Loan as security, including but not limited to any derivatives
transaction, will require the prior written approval of the Board.
(c) The provisions of paragraph (b) of this section shall not apply
to transfers which occur by operation of law.
(d) The Agent must hold an interest in a Loan guaranteed under the
Program equal to at least the lesser of $25 million or fifteen percent
of the aggregate amount of the Loan. Of this amount, the Agent must hold
an interest in the Unguaranteed Portion of the Loan equal to at least
the minimum amount of the Loan required to be held by the Agent under
the preceding sentence multiplied by the percentage of the entire Loan
that is not guaranteed. A non-Agent Lender must hold an interest in the
Unguaranteed Portion of the Loan representing no less than five percent
of such Lender's total interest in the Loan; provided, that a non-Agent
Lender may transfer its interest in the Unguaranteed Portion after
payment of the Guaranteed Portion has been made under the Guarantee.
(e) The Guarantee shall have no force or effect if any part of the
Guaranteed Portion of the Loan is transferred separate and apart from
the Unguaranteed Portion of the Loan. At least five percent of any
assignment or transfer interest in a Loan must be unguaranteed to ensure
that no part of the Guaranteed Portion of the Loan is transferred
separate and apart from the Unguaranteed Portion of the Loan.
Sec. 2201.28 Participation in guaranteed Loans.
(a) Subject to paragraphs (b), (c) and (d) of this section, a Lender
may distribute the risk of a portion of a Loan guaranteed under the
Program by sale of participations therein if:
(1) Neither the Loan note nor the Guarantee is assigned, conveyed,
sold, or transferred in whole or in part as a result of the sale of such
participations;
(2) The Lender remains solely responsible for the administration of
the Loan as an Agent; and
(3) The Board's ability to assert any and all defenses available to
it under the law and under the Loan Documents is not adversely affected.
(b) The following categories of entities may purchase participation
interests in Loans guaranteed under the Program:
(1) Lenders that meet the eligibility requirements of Sec. 2201.13
of this part;
(2) Qualified institutional buyers as defined in 17 CFR 230.144A
(a), known as Rule 144A (a) of the Securities and Exchange Commission
and issued under the Securities Act of 1933 (15 U.S.C. 77a et seq.); or
(3) Any other entity approved by the Board on a case-by-case basis.
(c) An Agent may not grant participations in that portion of its
interest in a Loan that may not be assigned or transferred under Sec.
2201.27(d) of this part. A Lender, other than the Agent, may not grant
participations in that portion of its interest in a Loan that may not be
assigned or transferred under Sec. 2201.27(d) of this part.
(d) At least five percent of any participation interest in a Loan
must be unguaranteed.
Sec. 2201.29 Supplemental guarantees.
The Board will allow the structure of a guaranteed Loan to include
one or more supplemental guarantees only from a State or local
governmental or tribal entity that cover the
[[Page 55]]
Unguaranteed Portion of the Loan, provided that:
(a) There shall be no supplemental guarantee with respect to the
Unguaranteed Portion required to be held by the Agent or sole Lender
pursuant to Sec. 2201.27(d) of this part;
(b) The Loan Documents relating to any supplemental guarantee shall
be acceptable in form and substance to the Board; and
(c) In approving the issuance of a Guarantee, the Board may impose
any conditions with respect to supplemental guarantee(s) relating to the
Loan that it considers appropriate.
Sec. 2201.30 Adjustments.
(a) The Board must approve the adjustment of any term or condition
of the Loan Documents under this Program, including the rate of
interest, time of payment of principal or interest, or Collateral
requirements. Adjustments may be approved by the Board only if:
(1) The adjustment is consistent with the financial interests of the
United States;
(2) Consent has been obtained from the parties to the Loan
Agreement;
(3) The adjustment is consistent with the underwriting criteria
developed for the Program;
(4) The adjustment does not adversely affect the interest of the
Federal Government in the Assets or Collateral of the Borrower;
(5) The adjustment does not adversely affect the ability of the
Borrower to repay the Loan; and
(6) The National Telecommunications and Information Administration
of the Department of Commerce has been consulted by the Board regarding
the adjustment.
(b) A Lender's decision to forego remedial action in the event of a
breach of financial covenants required under the Loan Agreement will not
constitute an adjustment under this section.
Sec. 2201.31 Indemnification.
(a) The United States may be indemnified by any Affiliate of a
Borrower designated in the Loan Documents for any losses that the United
States incurs as a result of:
(1) A judgment against the Borrower or any of its Affiliates;
(2) Any breach by the Borrower or any of its Affiliates of their
obligations under the Loan Documents;
(3) Any violation of the provisions of the Act, or the regulations
in this part, by the Borrower or any of its Affiliates;
(4) Any penalties incurred by the Borrower or any of its Affiliates
for any reason, including violation of a performance schedule stipulated
in a Performance Agreement; and
(5) Any other circumstances that the Board considers appropriate.
(b) The Board may require more than one Affiliate of a Borrower to
make the indemnifications referred to in paragraph (a) of this section.
(c) The indemnifications referred to in paragraph (a) of this
section shall be included in the Loan Documents.
Sec. 2201.32 Termination of obligations.
The Board shall have such rights to terminate the Guarantee as are
set forth in the Act and Loan Documents.
Sec. 2201.33 Defaults.
(a) In determining, following any Payment Default or Default,
whether to accelerate the maturity of any amounts outstanding under the
Loan Documents or otherwise to declare such amounts to be immediately
due and payable, or pursue other remedial actions available under the
Loan Documents, the Agent or Lender, as the case may be, shall act at
all times in accordance with the standard of care and diligence required
under Sec. 2201.26(a) of this part.
(b) Following any Payment Default, the Agent or Lender shall
promptly notify the Board and be entitled to make a Payment Demand. Any
Payment Demand shall:
(1) Identify the amount and due date of the defaulted payment of
principal and the outstanding amounts of principal and interest under
the Loan;
(2) Describe briefly the circumstances leading to the Payment
Default, including, without limitation,
[[Page 56]]
the nature of any precipitating Default, whether an acceleration has
occurred, and whether a bankruptcy proceeding has been instituted or
threatened; and
(3) Be accompanied by a copy of each of the Loan Documents and all
notices and other correspondence with the Borrower or other Lender
relating to the Payment Default and any precipitating Default.
(c) Following any Payment Demand being made, the Agent or Lender
shall furnish to the Board promptly upon request from the Board and, in
any event, not later than ninety (90) days from the date of such
request, each of the following:
(1) A written, detailed and reasonable plan for the partial or
complete foreclosure on and liquidation of the Collateral, including,
without limitation, detailed estimates by the Agent or Lender of the
time and reasonable costs of collection anticipated to be necessary in
order to carry out such plan; and
(2) A written, detailed and reasonable work-out plan, if such a plan
is feasible, for the continued operation of the Borrower calculated, in
the Agent's or Lender's judgment, to assure the best prospect for
repayment of principal and interest under the Loan without partial or
complete foreclosure and liquidation of the Collateral, including,
without limitation, detailed estimates of the time and expense required
for such work-out and an assessment of the risks to the Agent or Lender
and the Board associated therewith relative to such risks associated
with complete foreclosure and liquidation; and, if any partial
foreclosure and liquidation is a part of such proposed work-out plan, a
detailed estimate of the time and reasonable costs of collection
anticipated by the Agent or Lender to be required to effect such partial
liquidation.
(d) By making a Payment Demand, the Agent or Lender shall be
conclusively deemed to have certified, with full knowledge of the
provisions of 18 U.S.C. 1001 and 31 U.S.C. 3729 including, without
limitation, the provisions thereof for penalties and damages, to the
Board that it has fully and timely complied with all material provisions
and obligations under the Guarantee and the Loan Documents, that the
amount demanded is past due and owed by the Borrower under the Loan
Agreement, and that the demand is properly made and required to be
satisfied by the Board under the terms of the Guarantee.
(e) Following receipt of any Payment Demand, the Board or, on its
behalf, any duly authorized representative or designee, may conduct an
audit and investigation of compliance with all material provisions and
obligations under the Guarantee. The Agent and/or Lender shall cooperate
fully and diligently with any such audit and investigation.
(f) Within a reasonable period of time from receipt by the Board of
a Payment Demand, the Board shall approve payment of the amount to be
paid in respect of the unpaid principal amount under the Loan to which
the Payment Demand relates. The Board may withhold such payment if any
audit or investigation is pending or if information remains to be
furnished by the Agent or Lender. Further, payment shall not be made to
the extent it is determined by the Board, whether as the result of an
audit, investigation or otherwise, that the Board's payment obligation
has terminated. Payment shall be made by wire transfer in immediately
available funds to the bank and account designated by the Agent or
Lender for such purpose.
(g) The Board may take, or direct to be taken any action in
liquidating the Collateral that the Board determines to be necessary or
proper, consistent with Federal law and regulations.
(h) Pursuant to the Guarantee, upon Payment Demand by the Agent or
Lender, and whether the Board has approved any payment under the
Guarantee or any payment has been made under the Guarantee, the Board,
through the Administrator, shall have the right to liquidate, or cause
to be liquidated, the Collateral. The Board, at its sole discretion,
shall have the right to require that the Agent or Lender, solely or with
the Administrator, conduct to completion any liquidation of any of the
Collateral. Such liquidation shall be conducted by the Agent or Lender
in accordance with the standards of care specified in Sec. 2201.26(a)
of this part.
[[Page 57]]
Sec. 2201.34 OMB Control Number.
The information collection requirements in this part are approved by
the Office of Management and Budget and assigned OMB control number
0572-0135.
[[Page 59]]
CHAPTER XXVI--OFFICE OF INSPECTOR GENERAL,
DEPARTMENT OF AGRICULTURE
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Part Page
2610 Organization, functions, and delegations of
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2620 Availability of information to the public... 64
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PART 2610_ORGANIZATION, FUNCTIONS, AND DELEGATIONS OF AUTHORITY--Table
of Contents
Sec.
2610.1 General statement.
2610.2 Headquarters organization.
2610.3 Regional organization.
2610.4 Requests for service.
2610.5 Delegations of authority.
Authority: 5 U.S.C. 301 and 552, Pub. L. 95-452, 5 U.S.C. App., and
Pub. L. 97-98, 7 U.S.C. 2270.
Source: 60 FR 52840, Oct. 11, 1995, unless otherwise noted.
Sec. 2610.1 General statement.
(a) The Inspector General Act of 1978 as amended, Pub. L. 95-452, 5
U.S.C. App., establishes an Office of Inspector General (OIG) in the
U.S. Department of Agriculture (USDA) and transfers to it the functions,
powers, and duties of offices referred to in the Department as the
``Office of Investigation'' and the ``Office of Audit,'' previously
assigned to the OIG created by the Secretary's Memoranda 1915 and 1727,
dated March 23, 1977, and October 5, 1977, respectively. Under this Act,
OIG is established as an independent and objective unit, headed by the
Inspector General (IG), who is appointed by the President and reports to
and is under the general supervision of the Secretary.
(b) The mission of OIG is to provide policy direction; to conduct,
supervise, and coordinate audits and investigations of USDA programs and
operations to determine efficiency and effectiveness; to prevent and
detect fraud and abuse in such programs and operations; and to keep the
Secretary and the Congress informed of problems and deficiencies
relative to the programs and operations.
(c) The Secretary has made the following delegations of authority to
the IG (7 CFR 2.33):
(1) Advise the Secretary and General Officers in the planning,
development, and execution of Department policies and programs.
(2) Provide for the personal security of the Secretary and Deputy
Secretary.
(3) Serve as liaison official for the Department for all audits of
USDA performed by the General Accounting Office.
(4) In addition to the above delegations of authority, the IG, under
the general supervision of the secretary, has specific duties,
responsibilities, and authorities pursuant to the Act, including:
(i) Conduct and supervise audits and investigations relating to
programs and operations of the Department.
(ii) Provide leadership, coordination, and policy recommendations to
promote economy, efficiency, and effectiveness, and to prevent and
detect fraud and abuse in the administration of the Department's program
and operations.
(iii) Keep the Secretary and the congress fully and currently
informed about problems and deficiencies and the necessity for and
progress of corrective actions in the administration of the Department's
programs and operations.
(iv) Make such investigations and reports relating to the
administration of programs and operations of the Department as are in
the judgment of the IG, necessary or desirable.
(v) Review existing and proposed legislation and regulations and
make recommendations to the Secretary and the Congress on the impact
such laws or regulations will have on the economy and efficiency of
program administration or in the prevention and detection of fraud and
abuse in the programs and operations of the Department.
(vi) Have access to all records, reports, audits, reviews,
documents, papers, recommendations, or other material available to the
Department which relate to programs and operations for which the IG has
responsibility.
(vii) Report expeditiously to the Attorney General any matter where
there are reasonable grounds to believe there has been a violation of
Federal criminal law.
(viii) Issue subpoenas to other than Federal agencies for the
production of information, documents, reports, answers, records,
accounts, papers, and other data and documentary evidence necessary in
the performance of functions assigned by the Act.
(ix) Receive and investigate complaints or information from any
Department employee concerning possible
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violations of laws, rules or regulations, or mismanagement, gross waste
of funds, abuse of authority, or substantial and specific dangers to the
public health and safety.
(x) Select, appoint, and employ necessary officers and employees in
OIG in accordance with laws and regulations governing the civil service,
including an Assistant Inspector General for Auditing and an Assistant
Inspector General for Investigations.
(xi) Obtain services as authorized by Section 3109 of Title 5,
United States Code.
(xii) Enter into contracts and other arrangements for audits,
inspections, studies, analyses, and other services with public agencies
and private persons, and make such payments as may be necessary to carry
out the provisions of the Act to the extent and in such amounts as may
be provided in an appropriation act.
(d) The IG, under the Agriculture and Food Act of 1981, Pub. L. 97-
98, 7 U.S.C. 2270, and pursuant to rules issued by the Secretary in 7
CFR part 1a, has the authority to:
(1) Designate employees of the Office of Inspector General who
investigate alleged or suspected felony criminal violations of statutes
administered by the Secretary of Agriculture or any agency of USDA, when
engaged in the performance of official duties to:
(i) Execute and serve a warrant for an arrest, for the search of
premises, or the seizure of evidence when issued under authority of the
United States upon probable cause to believe that such a violation has
been committed;
(ii) Make an arrest without a warrant for any such violation if such
violation is committed or if the employee has probable cause to believe
that such violation is being committed in his/her presence; and
(iii) Carry a firearm.
(2) Issue directives and take the actions prescribed by the
Secretary's rules.
Sec. 2610.2 Headquarters organization.
(a) The OIG has a headquarters office in Washington, DC, and
regional offices throughout the United States. The headquarters office
consists of the immediate office of the IG and three operational units.
(b) Operational units. (1) The Assistant Inspector General for
Policy Development and Resources Management (AIG/PD&RM) formulates OIG
policies and procedures; develops, administers and directs comprehensive
programs for the management, budget, financial, personnel, systems
improvement, and information activities and operations of OIG; and is
responsible for OIG automated date processing (ADP) and OIG information
management systems. The staff maintains OIG's directives system;
Departmental Regulations and Federal Register issuances; administers the
Freedom of Information and Privacy Acts, which includes requests
received from the Congress, other Federal agencies, intergovernmental
organizations, the news media, and the public; and provides for the
administration of an OIG EEO program, including affirmative action. The
immediate office of the AIG/PD&RM and two divisions carry out these
functions.
(2) The Assistant Inspector General for Audit (AIG/A) carries out
the OIG's domestic and foreign audit operations through a headquarters
office, a Financial Management and ADP Audit Operations staff located in
Kansas City, Missouri, and six regional offices shown in Sec.
2610.3(a). The staff provides a continual audit review of ADP security
throughout USDA. Auditing officials conduct operational liaison on audit
matters; schedule and conduct audits; release audit reports to
management; follow agency action to assure that audit reports have been
properly acted upon through review of Department management follow up
system; monitor the quality of OIG audit reports; and coordinate
activities with the Assistant inspector General (AIG) for
Investigations. The staff also provides an integrated approach to fraud
prevention and detection and management improvement in USDA programs and
operations; reviews Department legislation and regulations through the
involvement and cooperation of the Department's principal officers and
program managers; coordinates analyses and reports on the conduct of
fraud
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vulnerability assessments; and recommends policies and provides
technical assistance for investigative and audit operations. The
Auditing headquarters office consists of the immediate office of the
AIG/A and four staff divisions.
(3) The Assistant Inspector General for Investigations (AIG/I)
carries out the OIG's domestic and foreign investigative operations
through a headquarters office and the seven regional offices shown in
Sec. 2610.3(b). Investigations officials conduct operational and
intelligence liaison on investigative matters with the FBI, Secret
Service, Internal Revenue Service (IRS), Interpol, and other Federal and
State law enforcement organizations; determine the need for
investigative action; conduct investigations; prepare factual reports of
investigative findings; refer reports for appropriate administrative or
legal action; followup on agency actions to assure that OIG
investigative reports have been properly acted upon; monitor the quality
of investigative reports; and coordinate activities with the AIG/A. The
staff also conducts special investigations of major programs,
operations, and high level officials; provides for the protection of the
Secretary and Deputy Secretary; receives and processes employee
complaints concerning possible violations of laws, rules, regulations or
mismanagement. The Investigations headquarters office consists of the
immediate office of the AIG/I and three staff divisions.
Sec. 2610.3 Regional organization.
(a) Each Regional Inspector General for Audit (RIG/A) is responsible
to the IG and to the AIG/A for supervising the performance of all OIG
auditing activities relating to the Department's domestic and foreign
programs and operations within an assigned geographic area. The
addresses and telephone numbers of the six Audit Regional Offices and
the territories served are as follows:
Audit Region, Address, Telephone Number, and Territory
Northeast Region, ATTN: Suite 5D06, 4700 River Road, Unit 151,
Riverdale, Maryland 20737-1237, (301) 734-8763; Connecticut, Delaware,
District of Columbia, Maine, Maryland, Massachusetts, New Hampshire, New
Jersey, New York, Pennsylvania, Puerto Rico, Rhode Island, Virgin
Islands, Vermont, Virginia, and West Virginia.
Southeast Region, 401 W. Peachtree Street NW., Room 2328, Atlanta,
Georgia 30365-3520, (404) 730-3210; Alabama, Florida, Georgia, Kentucky,
Mississippi, North Carolina, South Carolina, and Tennessee.
Midwest Region, 111 N. Canal Street, Suite 1130, Chicago, Illinois
60606-7295, (312) 353-1352; Illinois, Indiana, Michigan, Minnesota,
Ohio, and Wisconsin.
Southwest Region, 101 South Main, Room 324, Temple, Texas 76501, (817)
774-1430; Arkansas, Louisiana, New Mexico, Oklahoma, and Texas.
Great Plains Region, 9435 Holmes, Room 233, Kansas City, Missouri 64131,
Mailing address: PO Box 293, Kansas City, Missouri 64141, (816) 926-
7667; Colorado, Iowa, Kansas, Missouri, Montana, Nebraska, North Dakota,
South Dakota, Wyoming, and Utah.
Western Region, 600 Harrison Street, Suite 225, San Francisco,
California 94107, (415) 744-2851; Alaska, Arizona, California, Hawaii,
Idaho, Nevada, Oregon, Territory of Guam, Trust Territories of the
Pacific, and Washington.
(b) Each RIG/I is responsible to the IG and to the AIG/I for
supervising the performance of all OIG investigative activities relating
to the Department's domestic and foreign programs and operations within
an assigned geographic area. The addresses and telephone numbers of the
seven Investigations Regional Offices and the territories served are as
follows:
Investigations Region, Address, Telephone Number, and Territory
North Atlantic Region, 26 Federal Plaza, Room 1409, New York, New York
10278, (212) 264-8400; Connecticut, Maine, Massachusetts, New
Hampshire, New Jersey, New York, Puerto Rico, Rhode Island,
Vermont, and Virgin Islands.
Northeast Region, ATTN: Suite 5D06, 4700 River Road, Unit 151,
Riverdale, Maryland 20737-1237, (301) 734-8850; Delaware,
District of Columbia, Maryland, Pennsylvania, Virginia, and
West Virginia.
Southeast Region, 401 W. Peachtree Street NW., Room 2329, Atlanta,
Georgia 30365-3520, (404) 730-2170; Alabama, Florida, Georgia,
Kentucky, Mississippi, North Carolina, South Carolina, and
Tennessee.
Midwest Region, 111 N. Canal Street, Suite 1130, Chicago, Illinois
60606-7295, (312) 353-1358; Illinois, Indiana, Michigan,
Minnesota, Ohio, and Wisconsin.
Southwest Region, 101 South Main, Room 311, Temple, Texas 76501, (817)
774-1351;
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Arkansas, Louisiana, New Mexico, Oklahoma, and Texas.
Great Plains Region, 9435 Holmes, Room 210, Kansas City, Missouri 64131,
Mailing address: PO Box 293, Kansas City, Missouri 64141,
(816) 926-7606: Colorado, Iowa, Kansas, Missouri, Montana,
Nebraska, North Dakota, South Dakota, Wyoming, and Utah.
Western Region, 600 Harrison Street, Room 225, San Francisco, California
94107, (415) 744-2887; Alaska, Arizona, California, Hawaii,
Idaho, Nevada, Oregon, Territory of Guam, Trust Territories of
the Pacific, and Washington.
Sec. 2610.4 Requests for service.
(a) Heads of USDA agencies will direct requests for audit or
investigative service to the AIG/A, AIG/I, RIG/A, RIG/I, or to other OIG
audit or investigation officials responsible for providing service of
the type desired in the geographical area where service is desired.
(b) Agency officials or other employees may, at any time, direct to
the personal attention of the IG any audit or investigation matter that
warrants such attention.
(c) Other persons may address their communications regarding audit
or investigative matters to: The Inspector General, U.S. Department of
Agriculture, Ag Box 2301, Washington, DC 20250. Additionally, persons
may call or write the hotline office at 202-690-1622, 1-800-424-9121,
TDD 202-690-1202, or Office of Inspector General, PO Box 23399,
Washington, DC 20026. Bribes involving USDA programs may be reported
using the 24 hour bribery hotline number at 202 720-7257.
Sec. 2610.5 Delegations of authority.
(a) AIG's listed in Sec. 2610.2; and RIG's listed in Sec. 2610.3,
are authorized to take whatever actions are necessary to carry out their
assigned functions. This authority may be redelegated.
(b) The IG reserves the right to establish audit and investigation
policies, program, procedures, and standards; to allocate appropriated
funds; to determine audit and investigative jurisdiction; and to
exercise any of the powers or functions or perform any of the duties
referenced in the above delegation.
PART 2620_AVAILABILITY OF INFORMATION TO THE PUBLIC--Table of Contents
Sec.
2620.1 General statement.
2620.2 Public inspection and copying.
2620.3 Requests.
2620.4 Denials.
2620.5 Appeals.
Authority: 5 U.S.C. 301 and 552; 5 U.S.C. App.
Source: 60 FR 52842, Oct. 11, 1995, unless otherwise noted.
Sec. 2620.1 General statement.
This part is issued in accordance with, and subject to, the
regulations of the Secretary of Agriculture Sec. 1.1 through Sec. 1.23
(and appendix A of subpart A of part 1) of this title, implementing the
Freedom of Information Act, 5 U.S.C. 552, and governs the availability
of records of the Office of Inspector General (OIG) to the public upon
request.
Sec. 2620.2 Public inspection and copying.
5 U.S.C. 522(a)(2) requires that certain materials be made available
for public inspection and copying, and that a current index of these
materials be published quarterly or otherwise made available. OIG does
not maintain any materials within the scope of these requirements.
Sec. 2620.3 Requests.
(a) Requests for OIG records shall be in writing in accordance with
Sec. 1.6(a) of this title and addressed to the Assistant Inspector
General for Policy Development and Resources Management (AIG/PD&RM),
Office of Inspector General, U.S. Department of Agriculture, Ag Box
2310, Washington, DC 20250. The above official is hereby delegated
authority to make determinations regarding such requests in accordance
with Sec. 1.3(a)(3) of this title.
(b) Requests should be reasonably specific in identifying the record
requested and should include the name, address, and telephone number of
the requester.
(c) Available records may be inspected and copied in the office of
the AIG/PD&RM, from 8 a.m. to 4:30 p.m. local time on regular working
days or may be obtained by mail. Copies will
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be provided upon payment of applicable fees, unless waived or reduced,
in accordance with the Department's fee schedule as set forth in
appendix A of subpart A of part 1 of this title.
Sec. 2620.4 Denials.
If the AIG/PD&RM determines that a requested record is exempt from
mandatory disclosure and that discretionary release would be improper,
the AIG/PD&RM shall give written notice of denial in accordance with
Sec. 1.8(a) of this title.
Sec. 2620.5 Appeals.
The denial of a requested record may be appealed in accordance with
Sec. 1.6(e) of this title. Appeals shall be addressed to the Inspector
General, U.S. Department of Agriculture, Ag Box 2301, Washington, DC
20250. The Inspector General will give prompt notice of the
determination concerning an appeal in accordance with Sec. 1.8(d) of
this title.
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CHAPTER XXVII--OFFICE OF INFORMATION RESOURCES MANAGEMENT, DEPARTMENT OF
AGRICULTURE
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Part Page
2700 Organization and functions.................. 69
2710 Availability of information to the public... 69
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PART 2700_ORGANIZATION AND FUNCTIONS--Table of Contents
Sec.
2700.1 General statement.
2700.2 Organization.
2700.3 Functions.
Authority: 5 U.S.C. 301, 552; 7 CFR 2.81.
Source: 47 FR 39128, Sept. 7, 1982, unless otherwise noted.
Sec. 2700.1 General statement.
This part is issued in accordance with 5 U.S.C. 552(a) to provide
guidance for the general public as to the organization and functions of
the Office of Information Resources Management.
Sec. 2700.2 Organization.
The Office of Information Resources Management (OIRM) was
established on January 12, 1982. Delegations of authority to the
Director, OIRM appear at 7 CFR 2.81. The organization is comprised of
five headquarters divisions, an administrative staff and three computer
centers to serve the Department. The organization is headed by the
Director or, in the Director's absence, by the Deputy Director or, in
the absence of both, by the Director's desginee.
Sec. 2700.3 Functions.
(a) Director. Provides executive direction for OIRM. Develops and
recommends Departmental information resources management principles,
policies, and objectives; develops and disseminates Departmental
information resources management standards, guidelines, rules, and
regulations necessary to implement approved principles, policies, and
programs; designs, develops, implements, and revises systems, processes,
work methods, and techniques to improve the management of information
resources and the operational effectiveness of the Department; provides
telecommunications and automated data processing services to the
Department's agencies and staff offices.
(b) Deputy Director. Assists the Director and, in the absence of the
Director, serves as the Acting Director.
(c) Administrative Management Staff. Provides support for agency
management regarding budget, accounting, personnel, and other
administrative matters.
(d) Planning Division. Defines, develops, guides, and administers
the Department's long-range planning process for information resources.
(e) Information Management Division. Develops policy, standards and
guidelines for collection, protection, access, use and management of
information.
(f) Review and Evaluation Division. Reviews and evaluates
information resources programs and activities of Department agencies and
staff offices for conformance with plans, policies, and standards.
(g) Agency Technical Services Division. Advises and consults with
and assists Department agencies and staff offices on activities related
to the development and implementation of automated information systems.
(h) Operations and Telecommunications Division. Coordinates the
development and implementation of programs for ADP and
telecommunications resource planning within Departmental computer
centers and the National Finance Center, and for the acquisition and use
of Department-wide telecommunications facilities and services.
(i) Departmental Computer Centers. The following centers provide ADP
facilities and services to agencies and staff offices of the Department.
(1) Washington Computer Center, 14th and Independence Ave., SW., Rm.
S-107-South, Washington, DC 20250.
(2) Fort Collins Computer Center, 3825 E. Mulberry Street (P.O. Box
1206), Fort Collins, CO 80524.
(3) Kansas City Computer Center, 8930 Ward Parkway (P.O. Box 205),
Kansas City, MO 64141.
PART 2710_AVAILABILITY OF INFORMATION TO THE PUBLIC--Table of Contents
Sec.
2710.1 General statement.
2710.2 Public inspection and copying.
2710.3 Indexes.
2710.4 Initial request for records.
2710.5 Appeals.
Appendix A to Part 2710--List of Addresses
Authority: 5 U.S.C. 301, 552; 7 CFR 1.1-1.16.
Source: 47 FR 39129, Sept. 7, 1982, unless otherwise noted.
[[Page 70]]
Sec. 2710.1 General statement.
This part is issued in accordance with 7 CFR 1.4 of the U.S.
Department of Agriculture regulations governing the availability of
records (7 CFR 1.1-1.16 and Appendix A) under the Freedom of Information
Act (5 U.S.C. 552). The Department's regulations, as supplemented by the
regulations in this part, provide guidance for any person wishing to
request records from the Office of Information Resources Management
(OIRM).
Sec. 2710.2 Public inspection and copying.
(a) Background. 5 U.S.C. 552(a)(2) required that each agency make
certain kinds of records available for public inspection and copying.
(b) Procedure. Persons wishing to gain access to OIRM records should
contact the Information Access & Disclosure Officer by writing to the
address shown in 2710.4(b)(2).
Sec. 2710.3 Indexes.
(a) Background. 5 U.S.C. 552(a)(2) also required that each agency
maintain and make available for public inspection and copying current
indexes providing identifying information for the public with regard to
any records which are made available for public inspection and copying.
(b) Procedure. Persons wishing to get an index may contact the
division or center that maintains the records. Publication of these
indexes as a separate document is unnecessary and impractical.
Sec. 2710.4 Initial request for records.
(a) Background. The Information Access and Disclosure Officer is
authorized to:
(1) Grant or deny requests for OIRM records.
(2) Make discretionary releases of OIRM records when it is
determined that the public interests in disclosure outweigh the public
and/or private ones in withholding.
(3) Reduce or waive fees to be charged where determined to be
appropriate.
(b) Procedure. Persons wishing to request records from the Office of
Information Resources Management may do so as follows:
(1) How. Submit each initial request for OIRM records as prescribed
in 7 CFR 1.3(a).
(2) Where. Submit each initial request to the Information Access and
Disclosure Officer, Office of Information Resources Management, USDA,
14th and Independence Ave., SW., Room 407-W, Washington, DC 20250.
Sec. 2710.5 Appeals.
Procedure. Any person whose initial request is denied in whole or in
part may appeal that denial, in accordance with 7 CFR 1.3(e) and 1.7, to
the Director, Office of Information Resources Management, by sending the
appeal to the Information Access and Disclosure Officer, Office of
Information Resources Management, USDA, 14th and Independence Ave., SW.,
Room 407-W, Washington, DC 20250. The Director, Office of Information
Resources Management, will make the determination on the appeal.
Appendix A to Part 2710--List of Addresses
Section 1. General
This list provides the titles and mailing addresses of officials who
have custody of OIRM records. This list also identifies the normal
working hours, Monday through Friday, excluding holidays, during which
public inspection and copying of certain kinds of records, and indexes
to those records, is permitted.
Section 2. List of Addresses
Director, Office of Information Resources Management, 14th and
Independence Ave., SW., Rm. 113-W, Washington, DC 20250; Hours: 8:30
a.m.-5:00 p.m.
Chief, Planning Division, OIRM, 14th and Independence Ave., SW., Rm.
446-W, Washington, DC 20250; Hours: 8:30 a.m.-5:00 p.m.
Chief, Review and Evaluation Division, OIRM, 14th and Independence Ave.,
SW., Rm. 442-W, Washington, DC 20250; Hours: 8:30 a.m.-5:00 p.m.
Chief, Agency Technical Services Division, OIRM, 14th and Independence
Ave., SW., Rm. 416-W, Washington, DC 20250; Hours: 8:30 a.m.-5:00 p.m.
Chief, Operations and Telecommunications Division, OIRM, 14th and
Independence Ave., SW., Rm. 419-W, Washington, DC 20250; Hours: 8:30
a.m.-5:00 p.m.
Chief, Information Management Division, OIRM, 14th and Independence
Ave., SW., Rm. 404-W, Washington, DC 20250; Hours: 8:30 a.m.-5:00 p.m.
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Chief, St. Louis Computer Center, OIRM, 1520 Market Street, Rm. 3441,
St. Louis, MO 63101; Hours: 8:00 a.m.-4:40 p.m.
Director, Kansas City Computer Center, OIRM, 8930 Ward Parkway, (P.O.
Box 205), Kansas City, MO 64141; Hours: 8:00 a.m.-4:45 p.m.
Director, Fort Collins Computer Center, OIRM, 3825 E. Mulberry Street,
(P.O. Box 1206), Fort Collins, CO 80521; Hours: 8:00 a.m.-4:30 p.m.
Director, Washington Computer Center, OIRM, 14th and Independence Ave.,
SW., Rm. S-107-S, Washington, DC 20250; Hours: 8:30 a.m.-5:00 p.m.
Information Access and Disclosure Officer, OIRM, 14th and Independence
Ave., SW., Rm. 407-W, Washington, DC 20250; Hours: 8:30 a.m.-5:00 p.m.
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CHAPTER XXVIII--OFFICE OF OPERATIONS,
DEPARTMENT OF AGRICULTURE
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Part Page
2810 Organization and functions--Office of
Operations.............................. 75
2811 Availability of information to the public... 75
2812 Department of Agriculture guidelines for the
donation of excess research equipment
under 15 U.S.C. 3710(i)................. 77
[[Page 75]]
PART 2810_ORGANIZATION AND FUNCTIONS_OFFICE OF OPERATIONS--Table of Contents
Sec.
2810.1 General statement.
2810.2 Organization.
2810.3 Functions.
Authority: 5 U.S.C. 301 and 552; 7 CFR 2.76.
Source: 54 FR 52013, Dec. 20, 1989, unless otherwise noted.
Sec. 2810.1 General statement.
This part is issued in accordance with 5 U.S.C. 552(a) to provide
guidance for the general public as to Office of Operations (OO)
organization and functions.
Sec. 2810.2 Organization.
The Office of Operations (OO) was established January 12, 1982.
Delegations of authority to the Director, OO, appear at 7 CFR 2.76. The
organization is comprised of six divisions and one staff located at
Department headquarters. Description of the functions of these
organizational units are in the following section. The organization is
headed by a Director.
Sec. 2810.3 Functions.
(a) Director. Provides executive direction for OO. Develops and
promulgates overall policies and provides general direction, leadership,
oversight, and coordination of USDA management of procurement, real and
personal property activities, mail and copier management. Provides
executive services to the Office of the Secretary and operates
activities providing consolidated USDA administrative functions and
services.
(b) Deputy Director. Assists the Director, and in the absence of the
Director, serves as Acting Director.
(c) Administrative Unit. Provides support for agency management
regarding budget, accounting, personnel, and other administrative
matters.
(d) Executive Services Division. Provides executive services to the
Office of the Secretary in travel arrangements, supplies, furnishings,
communications, equipment, and records. Operates the central USDA DC
imprest fund.
(e) Facilities Management Division. Operates and maintains the USDA
DC headquarters building complex, including headquarters parking.
Oversees management and operation of USDA buildings nationwide, and
provides DC area labor services.
(f) Mail and Reproduction Management Division. Oversees USDA mail,
copier, and duplicating programs. Operates DC area central activities in
these areas.
(g) Personal Property Management Division. Oversees USDA supply,
motor vehicle, and personal property programs. Operates centralized
warehouse and property rehabilitation facilities.
(h) Procurement Division. Oversees USDA procurement programs.
Operates centralized purchasing operations for ADP and Washington area
activities.
(i) Real Property Management Division. Oversees USDA real property
management programs.
PART 2811_AVAILABILITY OF INFORMATION TO THE PUBLIC--Table of Contents
Sec.
2811.1 General statement.
2811.2 Public inspection and copying.
2811.3 Indexes.
2811.4 Initial requests for records.
2811.5 Appeals.
2811.6 Fee schedule.
Appendix A to Part 2811--List of Addresses
Authority: 5 U.S.C. 301 and 552 (as amended); 7 CFR 1.3.
Source: 54 FR 52014, Dec. 20, 1989, unless otherwise noted.
Sec. 2811.1 General statement.
This part is issued in accordance with 7 CFR 1.3 of the Department
of Agriculture regulations governing the availability of records (7 CFR
1.1-1.23 and Appendix A) under the Freedom of Information Act (FOIA), 5
U.S.C. 552. The Department's regulations, as supplemented by the
regulations in this part, provide guidance for any person wishing to
request records from Office of Operations.
Sec. 2811.2 Public inspection and copying.
(a) Background. 5 U.S.C. 552(a)(2) requires that each agency
maintain and make available for public inspection and copying certain
kinds of records.
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(b) Procedure. To gain access to OO records that are available for
public inspection, contact the division that maintains them. See
Appendix A, List of Addresses, for the location and hours of operation.
Sec. 2811.3 Indexes.
(a) Background. 15 U.S.C. 552(a)(2) also requires that each agency
maintain and make available for public inspection and copying current
indexes provided identifying information for the public with regard to
any records which are made available for public inspection and copying.
OO does not maintain any materials within the scope of these
requirements.
Sec. 2811.4 Initial requests for records.
(a) Background. The head of each OO division, each OO contracting
officer, each OO leasing officer, and the OO FOIA officer is authorized
to:
(1) Grant or deny requests for OO records.
(2) Make discretionary release of OO records when it is determined
that the public interest in disclosure outweighs the public and/or
private ones in withholding.
(3) Reduce or waive fees to be charged where determined to be
appropriate.
(4) Refer a request to the OO FOIA Officer for determination.
(b) Procedures. Persons wishing to request records from the Office
of Operations may do so as follows:
(1) How. Submit each initial request for OO records as prescribed in
7 CFR 1.6.
(2) Where. Submit each initial request to the head of the unit that
maintains the records. See Appendix A, List of Addresses. Contact the
FOIA Officer for guidance as needed. Or, submit the request to the FOIA
Officer for forwarding to the proper officials: FOIA Officer, Office of
Operations, USDA, Room 134-W Administration Building, 14th &
Independence Avenue SW., Washington, DC 20250.
Sec. 2811.5 Appeals.
Procedure. Any person whose initial request is denied in whole or in
part may appeal that denial, in accordance with 7 CFR 1.6(e) and 1.8, to
the Director, Office of Operations, USDA, Room 113-W Administration
Building, 14th & Independence Avenue SW., Washington, DC 20250.
Sec. 2811.6 Fee schedule.
Department regulations provide for a schedule of reasonable standard
charges for document search and duplication. See 7 CFR 1.2(b). Fees to
be charged are set forth in 7 CFR part 1, subpart A, appendix A.
Appendix A to Part 2811--List of Addresses
Section 1. General
This list provides the titles and mailing address of officials who
have custody of OO records. The normal working hours of these offices
are 8:30 a.m. to 5:00 p.m., Monday through Friday, exclusing holidays,
during which public inspection and copying of certain kinds of records
is permitted.
Section 2. List of Addresses
All of the following addresses are located at 14th Street and
Independence Avenue, Washington, DC. Address mail as follows:
Director, Office of Operations, USDA, Room 113-W Administration
Building, Washington, DC 20250.
FOIA Officer, Office of Operations, USDA, Room 134-W Administration
Building, Washington, DC 20250.
Chief, Administrative Unit, Office of Operations, USDA, Room 134-W,
Washington, DC 20250.
Chief, Executive Services Division, Office of Operations, USDA, Room 10-
A, Administration Building, Washington, DC 20250.
Chief, Facilities Management Division, Office of Operations, USDA, Room
S-313 South Building, Washington, DC 20250.
Chief, Mail and Reproduction Management Division, Office of Operations,
USDA, Room 1540 South Building, Washington, DC 20250.
Chief, Personal Property Management Division, Office of Operations, USDA
Room 1524 South Building, Washington, DC 20250.
Chief, Procurement Division, Office of Operations, USDA, Room 1550 South
Building, Washington, DC 20250.
Chief, Real Property Management Division, Office of Operations, USDA,
Room 1566, South Building, Washington, DC 20250.
[[Page 77]]
PART 2812_DEPARTMENT OF AGRICULTURE GUIDELINES FOR THE DONATION OF
EXCESS RESEARCH EQUIPMENT UNDER 15 U.S.C. 3710(i)--Table of Contents
Sec.
2812.1 Purpose.
2812.2 Eligibility.
2812.3 Definitions.
2812.4 Procedures.
2812.5 Restrictions.
2812.6 Title.
2812.7 Costs.
2812.8 Accountability and recordkeeping.
2812.9 Disposal.
2812.10 Liabilities and losses.
Authority: 5 U.S.C. 301; E.O. 12999, 61 FR 17227, 3 CFR, 1997 Comp.,
p. 180.
Source: 60 FR 34456, July 3, 1995, unless otherwise noted.
Sec. 2812.1 Purpose.
This part sets forth the procedures to be utilized by USDA agencies
and laboratories in the donation of excess research equipment to
educational institutions and non-profit organizations for the conduct of
technical and scientific education and research activities as authorized
by 15 U.S.C. 3710(i). Title to excess research equipment donated
pursuant to 15 U.S.C. 3710(i), shall pass to the donee.
Sec. 2812.2 Eligibility.
Eligible organizations are educational institutions or non-profit
organizations involved in the conduct of technical and scientific
educational and research activities.
Sec. 2812.3 Definitions.
(a) Cannibalization. The dismantling of equipment for parts to
repair or enhance other equipment. The residual is reported for
disposal. Cannibalization is only authorized if the property value is
greater when cannibalized than retention in the original condition.
(b) Community-based educational organization means nonprofit
organizations that are engaged in collaborative projects with pre-
kindergarten through twelfth grade educational institutions or that have
education as their primary focus. Such organizations shall qualify as
nonprofit educational institutions for purposes of section 203(j) of the
Federal Property and Administrative Services Act of 1949 (40 U.S.C.
484(j)).
(c) Educational institution means a public or private, non-profit
educational institution, encompassing pre-kindergarten through twelfth
grade and two- and four-year institutions of higher education, as well
as public school districts.
(d) Educationally useful Federal equipment means computers and
related peripheral tools (e.g., printers, modems, routers, and servers),
including telecommunications and research equipment, that are
appropriate for use in pre-kindergarten, elementary, middle, or
secondary school education. It shall also include computer software,
where the transfer of licenses is permitted.
(e) Excess personal property. Items of personal property no longer
required by the controlling Federal agency.
(f) Federal empowerment zone or enterprise community (EZ/EC) means a
rural area designated by the Secretary of Agriculture under 7 CFR part
25.
(g) Non-profit organization means any corporation, trust
association, cooperative, or other organization which:
(1) Is operated primarily for scientific, educational, service,
charitable, or similar purposes in the public interest;
(2) Is not organized primarily for profit; and
(3) Uses its net proceeds to maintain, improve, or expand its
operations. For the purposes of this part, ``non-profit organizations''
may include utilities affiliated with institutions of higher education,
or with state and local governments and federally recognized Indian
tribes.
(h) Research equipment. Federal property determined to be essential
to conduct scientific or technical educational research.
(i) Technical and scientific education and research activities. Non-
profit tax exempt public educational institutions or government
sponsored research organizations which serve to conduct technical and
scientific education and research.
[60 FR 34456, July 3, 1995, as amended at 65 FR 69857, Nov. 21, 2000]
[[Page 78]]
Sec. 2812.4 Procedures.
(a) [Reserved]
(b) Each agency head will designate in writing an authorized
official to approve donations of excess property/equipment under this
part.
(c) After USDA screening has been accomplished, excess personal
property targeted for donation under this part will be made available on
a first-come, first-served basis. If there are competing requests,
donations will be made to eligible recipients in the following priority
order:
(1) Educationally useful Federal equipment for pre-kindergarten
through twelfth grade educational institutions and community-based
educational organizations in rural EZ/EC communities;
(2) Educationally useful Federal equipment for pre-kindergarten
through twelfth grade educational institutions and community-based
educational organizations not in rural EZ/EC areas;
(3) All other eligible organizations.
(d) Upon reporting property for excess screening, if the pertinent
USDA agency has an eligible organization in mind for donation under this
part, it shall enter ``P.L. 102-245'' in the note field. The property
will remain in the excess system approximately 30 days, and if no USDA
agency or cooperator requests it during the excess cycle, the
Departmental Excess Personal Property Coordinator will send the agency a
copy of the excess report stamped, ``DONATION AUTHORITY TO THE HOLDING
AGENCY IN ACCORDANCE WITH P.L. 102-245.'' The holding USDA agency may
then donate the excess property to the eligible organization.
(e) Donations under this Part will be accomplished by preparing a
Standard Form (SF) 122, ``Transfer Order-Excess Personal Property''.
(f) The SF-122 should be signed by both an authorized official of
the agency and the Agency Property Management Officer. The following
information should also be provided.
(1) Name and address of Donee Institution (Ship to)
(2) Agency name and address (holding Agency)
(3) Location of property
(4) Shipping instructions (Donee contact person)
(5) Complete description of property, including acquisition amount,
serial no., condition code, quantity, and agency order no.
(6) This statement needs to be added following property
descriptions. ``The property requested hereon is certified to be used
for the conduct of technical and scientific education and research
activities. This donation is pursuant to the provisions of Pub. L. 102-
245.''
(g) Once the excess personal property/equipment is physically
received, the donee is required to immediately return a copy of the SF-
122 to the donating agency indicating receipt of requested items.
Cancellations should be reported to DEPPC so the property can be
reported to the General Services Administration (GSA).
Note: The USDA agency shall send an informational copy of the
transaction to GSA.
[60 FR 34456, July 3, 1995, as amended at 65 FR 69857, Nov. 21, 2000]
Sec. 2812.5 Restrictions.
(a) The authorized official (see Sec. 2812.4(b)) will approve the
donation of excess personal property/equipment in the following groups
to educational institutions or nonprofit organizations for the conduct
of technical and scientific educational and research activities.
Eligible Groups
------------------------------------------------------------------------
FSC group Name
------------------------------------------------------------------------
19..................................... Ships, Small Craft, Pontoons,
and Floating Docks.
23..................................... Vehicles, Trailers and Cycles.
24..................................... Tractors.
37..................................... Agricultural Machinery and
Equipment.
43..................................... Pumps, Compressors.
48..................................... Valves.
58..................................... Communication, Detection, and
Coherent Radiation Equipment.
59..................................... Electrical and Electronic
Equipment Components.
65..................................... Medical, Dental, and Veterinary
Equipment and Supplies.
66..................................... Instruments and Laboratory
Equipment.
67..................................... Photographic Equipment.
68..................................... Chemicals and Chemical
Products.
70..................................... General Purpose Automatic Data
Processing Equipment, Software
Supplies, and Support
Equipment.
74..................................... Office Machines and Visible
Record Equipment.
------------------------------------------------------------------------
[[Page 79]]
Note: Requests for items in FSC Groups or Classes other than the
above should be referred to the agency head for consideration and
approval.
(b) Excess personal property/equipment may be donated for
cannibalization purposes, provided the donee submits a supporting
statement which clearly indicates that cannibalizing the requested
property for secondary use has greater potential benefit than
utilization of the item in its existing form.
Sec. 2812.6 Title.
Title to excess personal property/equipment donated under this Part
will automatically pass to the donee once the sponsoring agency receives
the SF-122 indicating that the donee has received the property.
Sec. 2812.7 Costs.
Donated excess personal property/equipment is free of charge.
However, the donee must pay all costs associated with packaging and
transportation, unless the sponsoring agency has made other
arrangements. The donee should specify the method of shipment.
Sec. 2812.8 Accountability and recordkeeping.
USDA requires that property requested by a donee be placed into use
by the donee within a year of receipt and used for at least 1 year
thereafter. Donees must maintain accountable records for such property
during this time period.
Sec. 2812.9 Disposal.
When the property is no longer needed by the donee, it may be used
in support of other Federal projects or sold and the proceeds used for
technical and scientific education and research activities.
Sec. 2812.10 Liabilities and losses.
USDA assumes no liability with respect to accidents, bodily injury,
illness, or any other damages or loss related to excess personal
property/equipment donated under this part. The donee is advised to
insure or otherwise protect itself and others as appropriate.
[[Page 81]]
CHAPTER XXIX--OFFICE OF ENERGY,
DEPARTMENT OF AGRICULTURE
--------------------------------------------------------------------
Part Page
2900 Essential agricultural uses and volumetric
requirements--Natural Gas Policy Act.... 83
2901 Administrative procedures for adjustments of
natural gas curtailment priority........ 84
2903 Biodiesel fuel education program............ 88
[[Page 83]]
PART 2900_ESSENTIAL AGRICULTURAL USES AND VOLUMETRIC REQUIREMENTS_NATURAL
GAS POLICY ACT--Table of Contents
Sec.
2900.1 General.
2900.2 Definitions.
2900.3 Essential agricultural uses.
2900.4 Natural gas requirements.
2900.6 Effective date.
Authority: Pub. L. 95-621, Nov. 9, 1978.
Source: 44 FR 28786, May 17, 1979, unless otherwise noted.
Sec. 2900.1 General.
Section 401(c) of the Natural Gas Policy Act of 1978 (NGPA) requires
the Secretary of Agriculture to determine the essential uses of natural
gas, and to certify to the Secretary of Energy and the Federal Energy
Regulatory Commission (FERC) the natural gas requirements, expressed
either as volumes or percentages of use, of persons, or classes thereof,
for essential agricultural uses in order to meet requirements of full
food and fiber production. This rule covers establishments performing
functions classed as essential agricultural uses whose natural gas
supplies are distributed through the interstate pipeline systems even
though such establishments may receive such gas directly from an
intrastate pipeline or local distribution company. The rule provides to
the Secretary of Energy (for purposes of Section 401(a) of the NGPA) and
to the Federal Energy Regulatory Commission the following
certifications:
(a) Essential agricultural uses of natural gas, expressed as classes
of establishments that use gas for essential agricultural purposes; and
(b) Essential agricultural current requirements of natural gas,
expressed as percentages of use.
Sec. 2900.2 Definitions.
(a) Full food and fiber production means the entire output of food
and fiber produced for the domestic market, and for export, for building
of reserves, and crops for soil building or conservation. This term also
includes the processing of food and fiber into stable and storable
products, and the maintenance of food quality after processing.
(b) Establishment means an economic unit, generally at a single
physical location where business is conducted or where service or
industrial operations are performed (for example, a factory, mill,
store, mine, farm, sales office, or warehouse). (Note: This is the same
definition used in the Standard Industrial Classification Manual, 1972
edition).
(c) Essential Agricultural Use Establishment means any
Establishment, or the portion of an Establishment, which performs (or
has the capability to perform) activities specified in Sec. 2900.3.
(d) Current Natural Gas Requirements means the amount of natural gas
required by an Essential Agricultural Use Establishment to perform the
activities devoted to full food and fiber production.
(Pub. L. 95-621, Nov. 8, 1979, 92 Stat. 3350, 15 U.S.C. 3301 et seq.)
[44 FR 28786, May 17, 1979, as amended at 46 FR 47216, Sept. 25, 1981]
Sec. 2900.3 Essential agricultural uses.
For purposes of Section 401(c) of the NGPA the following classes or
portions of classes are certified as essential agricultural uses in
order to meet the requirements of full food and fiber production:
Essential Agricultural Uses
Industry SIC No. and Industry Description
Food and Natural Fiber Production
01 Agricultural Production--Crops
02 Agricultural Production--Livestock Excluding 0272--Horses and
Other Equines, and Nonfood Portions of 0279--Animal Specialties, Not
Elsewhere Classified.
0723 Crop Preparation Services for Market, Except Cotton Ginning
(see fiber processing).
4971 Irrigation Systems.
Fertilizer and Agricultural Chemicals
(Process and Feedstock Use Only)
1474 Potash, Soda, and Borate Materials.
1475 Phosphate Rock.
1477 Sulfur.
2819 Industrial Inorganic Chemicals, n.e.c. (Agricultural related
only).
2865 Cyclic Crudes and Cyclic Intermediates, Dyes and Organic
Pigments (Agricutural related only).
[[Page 84]]
2869 Industrial Organic Chemicals, n.e.c. (Agricutural related
only).
287 Agricultural Chemicals.
2899 Chemicals and Chemical Preparations, n.e.c. (Salt--Feed grade
only).
3274 Lime (Agricultural lime only).
Food and Natural Fiber Processing-Food
20 Food and Kindred Products Except 2047 Dog, Cat and Other Pet
Food, and 2048 Prepared Feeds and Feed Ingredients for Animals and
Fowls, Not Elsewhere Classified.
2869 Industrial Organic Chemicals (Monosodium Glutamate, Food-grade
Citric Acid and Food-grade Enzymes only).
2899 Chemicals and Chemical Preparations, n.e.c. (Salt for food use
only).
Animal Feeds, and Food
(Process and Feedstock Use Only)
2047 Dog, Cat and Other Pet Food.
2048 Prepared Feeds and Feed Ingredients for Animals and Fowls, Not
Elsewhere Classified.
Natural Fiber
0724 Cotton Ginning.
2141 Tobacco Stemming and Redrying.
2299 Textile Goods, n.e.c. (wool tops, combing and converting).
3111 Leather Tanning and Finishing.
Food Quality Maintenance--Food Packaging
2641 Paper Coating and Glazing (food related only).
2643 Bags, Except Textile (food related only).
2645 Die Cut Paper and Paperboard (food related only).
2646 Pressed and Molded Pulp Goods (food related only).
2649 Converted Paper Products (food related only).
2651 Folding Paperboard Boxes (food related only).
2653 Corrugated and Solid Fiber Boxes (food related only).
2654 Sanitary Food Containers.
2655 Fiber Cans, Tubes, Drums, and Similar Products (food related
only).
3079 Miscellaneous Plastic Products (food related only).
3221 Glass Containers (food related only).
3411 Metal Cans (food related only).
3412 Metal Shipping Barrels, Drums, Kegs, and Pails (food related
only).
3466 Metal Crowns and Closures (Food Related Only).
3497 Metal Foil and Leaf (food related only).
Petroleum wax, synthetic petroleum wax and polyethylene wax (food
grade only) as food containers.
Marketing and Distribution
4221 Farm Product Warehousing and Storage.
4222 Refrigerated Warehousing.
514 Groceries and Related Products.
5153 Farm Product Raw Materials--Grain.
54 Food Stores.
Energy Production
(1) Agricultural production on set-aside acreage or acreage diverted
from the production of a commodity (as provided under the Agricultural
Act of 1949) to be devoted to the production of any commodity for
conversion into alcohol or hydrocarbons for use as motor fuel or other
fuels;
(2) Sugar refining for production of alcohol; and
(3) Distillation of fuel-grade alcohol from food grains and other
biomass by facilities in existence on June 30, 1980 which do not have
the installed capability to burn coal lawfully, for a period ending June
29, 1985.
(Pub. L. 95-621, Nov. 8, 1978, 92 Stat. 3350; 15 U.S.C. 3301 et seq.)
[44 FR 28786, May 17, 1979, as amended at 45 FR 5298, Jan. 23, 1980; 45
FR 45887, 45888, July 8, 1980; 45 FR 50550, July 30, 1980; 47 FR 25320,
June 11, 1982; 48 FR 43670, Sept. 26, 1983; 49 FR 37733, Sept. 26, 1984]
Sec. 2900.4 Natural gas requirements.
For purposes of Section 401(c), NGPA, the natural gas requirements
for each Essential Agricultural Use Establishment, whether such
Essential Agricultural Use Establishment is in existence on the
effective date of this rule or comes into existence thereafter, are
certified to be 100 percent of Current Natural Gas Requirements.
Sec. 2900.6 Effective date.
This rule shall become effective on May 14, 1979.
PART 2901_ADMINISTRATIVE PROCEDURES FOR ADJUSTMENTS OF NATURAL GAS
CURTAILMENT PRIORITY--Table of Contents
Sec.
2901.1 Purpose and scope.
2901.2 Definitions.
2901.3 Oral presentation.
2901.4 Interpretations.
2901.5 Modifications and rescissions.
2901.6 Exceptions and exemptions.
2901.7 Review of denials.
2901.8 Judicial review.
2901.9 Effective date.
[[Page 85]]
Authority: Secs. 502, 507. Pub. L. 95-621, 92 Stat. 3397, 3405, Nov.
9, 1978.
Source: 44 FR 55803, Sept. 28, 1979, unless otherwise noted.
Sec. 2901.1 Purpose and scope.
The purpose of this part 2901 is to provide procedures for the
making of certain adjustments to the Secretary of Agriculture's
Essential Agricultural Uses and Requirements regulations in accordance
with section 502(c) of the Natural Gas Policy Act of 1978, in order to
prevent special hardship, inequity, or an unfair distribution of
burdens. The procedures in this part 2901 apply to any person seeking an
interpretation of, modification of, rescission of, exception of, or
exemption from the Essential Agricultural Uses and Requirements
regulations in part 2900 of this chapter.
Sec. 2901.2 Definitions.
(a) Person means any individual, firm, sole proprietorship,
partnership, association, company, joint venture or corporation.
(b) Director means the Director of the Office of Energy, U.S.
Department of Agriculture.
(c) Secretary means the Secretary of the U.S. Department of
Agriculture.
(d) Adjustment means an interpretation, modification, rescission of,
exception to or exemption from the Essential Agricultural Uses and
Requirements regulations, part 2900 of this chapter.
(e) NGPA means the Natural Gas Policy Act of 1978, Pub. L. 95-621.
(f) Petitioner means any person seeking an adjustment under this
part 2901.
Sec. 2901.3 Oral presentation.
Any person seeking an adjustment under this part 2901 shall be given
an opportunity to make an oral presentation of data, views and arguments
in support of the request for an adjustment, provided that a request to
make an oral presentation is submitted in writing with the request for
the adjustment. An official of the Department of Agriculture shall
preside at such oral presentation.
Sec. 2901.4 Interpretations.
(a) Request for an interpretation. (1) Any person seeking an
interpretation of the Essential Agricultural Uses and Requirements
regulations in part 2900 shall file a formal written request with the
Director. The request should contain a full and complete statement of
all relevant facts pertaining to the circumstances, act or transaction
that is the subject of the request and to the action sought, and should
state the special hardship, inequity, or unfair distribution of burdens
that will be prevented by the interpretation sought and why the
interpretation is consistent with the purposes of NGPA. The Director
shall publish a notice in the Federal Register advising the public that
a request for an interpretation has been received and that written
comments will be accepted with respect thereto, if received within 20
days of the notice. The Federal Register notice will provide that copies
of the request for interpretation from which confidential information
has been deleted in accordance with paragraph (a)(2) of this section may
be obtained from the petitioner.
(2) If the petitioner wishes to claim confidential treatment for any
information contained in the request or other documents submitted under
this part 2901, such person shall file together with the document a
second copy of the document from which has been deleted the information
for which such person wishes to claim confidential treatment. The
petitioner shall indicate in the original document that it is
confidential or contains confidential information and may file a
statement specifying the justification for non-disclosure of the
information for which non-disclosure is sought. The Director shall
consider such requests, and subject to the Freedom of Information Act, 5
U.S.C. 552 and other applicable laws and regulations, shall treat such
information as confidential.
(b) Investigations. The Director may initiate an investigation of
any statement in a request and utilize in his evaluation any relevant
facts obtained in such investigation. The Director may accept
submissions from third persons relevant to any request for
interpretation provided that the petitioner
[[Page 86]]
is afforded an opportunity to respond to all such submissions. In
evaluating a request for interpretation, the Director may consider any
other source of information.
(c) Applicability. Any interpretation issued hereunder shall be
issued on the basis of the information provided on the request, as
supplemented by other information brought to the attention of the
Director during the consideration of the request. The interpretation
shall, therefore, depend for its authority on the accuracy of the
factual statement and may be relied upon only to the extent that the
facts of the actual situation correspond to those upon which the
interpretation was based.
(d) Issuance of an interpretation. Upon consideration of the request
for interpretation and other relevant information received or obtained
by the Director, the Director may issue a written interpretation. A copy
of the written interpretation shall be provided to FERC and the
Secretary of Energy. Notice of the issuance of the written
interpretation shall be published in the Federal Register. The granting
of a request for issuance of an interpretation shall be considered final
agency action for purposes of judicial review under Sec. 2901.8.
(e) Denial of an interpretation. An interpretation shall be
considered denied for purpose of review of such denial under Sec.
2901.7 only if:
(1) The Director notifies the petitioner in writing that the request
is denied and that an interpretation will not be issued; or
(2) The Director does not respond to a request for an
interpretation, by (i) issuing an interpretation, or (ii) giving notice
of when an interpretation will be issued within 45 days of the date of
receipt of the request, or within such extended time as the Director may
prescribe by written notice within the 45-day period.
(f) For purposes of this part 2901 the word interpretation shall not
be deemed to include a simple clarification of an actual or purported
ambiguity in part 2900. The Director reserves the right to determine
whether a request involves simple clarification and shall advise the
requester of his decision.
Sec. 2901.5 Modifications and rescissions.
(a) Request for modification or rescission. (1) Any person seeking a
modification or a rescission of the Essential Agricultural Uses and
Requirements regulations of part 2900 shall file a formal written
request with the Director. The request shall contain a full and complete
statement of all relevant facts pertaining to the circumstance, act or
transaction that is the subject of the request and to the action sought.
The request should state the special hardship, inequity or unfair
distribution of burdens that will be prevented by making the
modification or rescission.
(2) If the petitioner wishes to claim confidential treatment for any
information contained in the request or other documents submitted under
this part 2901, such person shall file together with the document a
second copy of the document from which has been deleted the information
for which such person wishes to claim confidential treatment. The
petitioner shall indicate in the original document that it is
confidential or contains confidential information and may file a
statement specifying the justification for non-disclosure of the
information for which non-disclosure is sought. The Director shall
consider such requests, and subject to the Freedom of Information Act, 5
U.S.C. 552 and other applicable laws and regulations, shall treat such
information as confidential.
(3) The request shall be filed as a petition for rulemaking and
treated in accordance with the procedures, as applicable, of 7 CFR part
1, subpart B.
(b) Institution of rulemaking. Upon consideration of the request for
modification or rescission and other relevant information received or
obtained by the Director, the Director may institute rulemaking
proceedings in accordance with the Administrative Procedures Act 5
U.S.C. 551 et seq. and applicable regulations.
(c) Denial of a modification or rescission. If the Director (1)
denies the request for modification or rescission in writing by
notifying the petitioner that he does not intend to institute rulemaking
proceedings as proposed and stating the reasons therefor, or (2) does
not respond to a request for a
[[Page 87]]
modification or rescission in accordance with paragraph (b) of this
section or (3) notifies the petitioner in writing that the matter is
under continuing consideration and that no decision can be made at that
time because of the inadequacy of available information, changing
circumstances or other reasons as set forth therein, within 45 days of
the date of the receipt thereof, or within such extended time as the
Director may prescribe by written notice within that 45-day period, the
request shall be considered denied for the purpose of review of such
denial under Sec. 2901.7.
Sec. 2901.6 Exceptions and exemptions.
(a) Request for exception or exemption. (1) Any person seeking an
exception or exemption from the Essential Agricultural Uses and
Requirements regulations in part 2900 shall file a formal written
request with the Director. The request shall contain a full and complete
statement of all relevant facts pertaining to the circumstance, act, or
transaction that is the subject of the request and to the action sought.
The request should state the special hardship, inequity or unfair
distribution of burdens that will be prevented by making the exception
or exemption. The Director shall publish a notice in the Federal
Register advising the public that a request for an exception or
exemption has been received and that written comments will be accepted
with respect thereto if received within 20 days of the notice. The
Federal Register notice will provide that copies of the request from
which confidential information has been deleted in accordance with
paragraph (a)(2) of this section may be obtained from the petitioner.
The Petitioner shall be afforded an opportunity to respond to such
submissions.
(2) If the petitioner wishes to claim confidential treatment for any
information contained in the request or other documents submitted under
this part 2901, such person shall file together with the document a
second copy of the document from which has been deleted the information
for which such person wishes to claim confidential treatment. The
petitioner shall indicate in the original document that it is
confidential or contains confidential information and may file a
statement specifying the justification for non-disclosure of the
information for which non-disclosure is sought. The Director shall
consider such requests, and subject to the Freedom of Information Act, 5
U.S.C. 552 and other applicable laws and regulations, shall treat such
information as confidential.
(b) Decision and order. Upon consideration of the request for an
exception or exemption and other relevant information received or
obtained during the proceedings, the Director shall issue an order
granting or denying the request. The Director shall publish a notice in
the Federal Register of the issuance of a decision and order on the
request. The granting of a request for an exception or exemption shall
be considered final agency action for purposes of judicial review under
Sec. 2901.8.
(c) Denial of an exception or exemption. A request for an exception
or exemption shall be considered denied for purposes of review of such
denial under Sec. 2901.7 only if:
(1) The Director has notified the petitioner in writing that the
request is denied under paragraph (b) of this section; or
(2) The Director does not respond to a request for an exception or
exemption by (i) granting the request for an exception or exemption
under paragraph (b) of this section or (ii) giving notice of when a
decision will be made within 45 days of the receipt of the request, or
with such extended time as the Director may prescribe by written notice
within the 45-day period.
Sec. 2901.7 Review of denials.
(a) Request for review. (1) Any person aggrieved or adversely
affected by a denial of a request for any interpretation under Sec.
2901.4 may request a review of the denial by the Secretary, within 30
days from the date of the denial.
(2) Any person aggrieved or adversely affected by a denial of a
request for a modification or rescission under Sec. 2901.5, may request
a review of the denial by the Secretary within 30 days from the date of
the denial.
(3) Any person aggrieved or adversely affected by a denial of a
request for an exception or an exemption under
[[Page 88]]
Sec. 2901.6, may request a review of the denial by the Secretary within
30 days from the date of the denial.
(b) Procedures. Any request for review under Sec. 2901.7(a) shall
be in writing and shall set forth the specific ground upon which the
request is based. There is no final agency action for purposes of
judicial review under Sec. 2901.8 until that request has been acted
upon. If the request for review has not been acted upon within 30 days
after it is received, the request shall be deemed to have been denied.
That denial shall then constitute final agency action for the purpose of
judicial review under Sec. 2901.8.
Sec. 2901.8 Judicial review.
Any person aggrieved or adversely affected by a final agency action
taken on a request for an adjustment under this section may obtain
judicial review in accordance with section 506 of the Natural Gas Policy
Act of 1978.
Sec. 2901.9 Effective date.
This rule shall become effective on October 29, 1979.
PART 2903_BIODIESEL FUEL EDUCATION PROGRAM--Table of Contents
Subpart A_General Information
Sec.
2903.1 Applicability of regulations.
2903.2 Purpose of the program.
2903.3 Eligibility.
2903.4 Indirect costs.
2903.5 Matching requirements.
Subpart B_Program Description
2903.6 Project types.
2903.7 Project objectives.
Subpart C_Preparation of an Application
2903.8 Program application materials.
2903.9 Content of an application.
2903.10 Submission of an application.
2903.11 Acknowledgment of applications.
Subpart D_Application Review and Evaluation
2903.12 Application review.
2903.13 Evaluation criteria.
2903.14 Conflicts of interest and confidentiality.
Subpart E_Award Administration
2903.15 General.
2903.16 Organizational management information.
2903.17 Award document and notice of award.
Subpart F_Supplementary Information
2903.18 Access to review information.
2903.19 Use of funds; changes.
2903.20 Reporting requirements.
2903.21 Applicable Federal statutes and regulations.
2903.22 Confidential aspects of applications and awards.
2903.23 Definitions.
Authority: 7 U.S.C. 8104; 5 U.S.C. 301.
Source: 68 FR 56139, Sept. 30, 2003, unless otherwise noted.
Subpart A_General Information
Sec. 2903.1 Applicability of regulations.
(a) The regulations of this part only apply to Biodiesel Fuel
Education Program grants awarded under the provisions of section 9004 of
the Farm Security and Rural Investment Act of 2002 (FSRIA) (7 U.S.C.
8104) which authorizes the Secretary to award competitive grants to
eligible entities to educate governmental and private entities that
operate vehicle fleets, other interested entities (as determined by the
Secretary), and the public about the benefits of biodiesel fuel use.
Eligibility is limited to nonprofit organizations and institutions of
higher education (as defined in sec. 101 of the Higher Education Act of
1965 (20 U.S.C. 1001)) that have demonstrated both knowledge of
biodiesel fuel production, use, or distribution and the ability to
conduct educational and technical support programs. The Secretary
delegated this authority to the Chief Economist, who in turn delegated
this authority to the Director of OEPNU.
(b) The regulations of this part do not apply to grants awarded by
the Department of Agriculture under any other authority.
Sec. 2903.2 Purpose of the program.
The Biodiesel Fuel Education Program seeks to familiarize public and
private vehicle fleet operators, other interested entities, and the
public,
[[Page 89]]
with the benefits of biodiesel, a relatively new fuel option in the
United States. It will also address concerns previously identified by
fleet operators and other potential users of this alternative fuel,
including the need to balance the positive environmental, social and
human health impacts of biodiesel utilization with the increased per
gallon cost to the user. It is the Program's goal to stimulate biodiesel
demand and encourage the further development of a biodiesel industry in
the United States.
Sec. 2903.3 Eligibility.
(a) Eligibility is limited to nonprofit organizations and
institutions of higher education that have demonstrated both knowledge
of biodiesel fuel production, use, or distribution and the ability to
conduct educational and technical support programs.
(b) Award recipients may subcontract to organizations not eligible
to apply provided such organizations are necessary for the conduct of
the project.
Sec. 2903.4 Indirect costs.
(a) For the Biodiesel Fuel Education Program, applicants should use
the current indirect cost rate negotiated with the cognizant Federal
negotiating agency. Indirect costs may not exceed the negotiated rate.
If no indirect cost rate has been negotiated, a reasonable dollar amount
for indirect costs may be requested, which will be subject to approval
by USDA. In the latter case, if a proposal is recommended for funding,
an indirect cost rate proposal must be submitted prior to award to
support the amount of indirect costs requested.
(b) A proposer may elect not to charge indirect costs and, instead,
charge only direct costs to grant funds. Grantees electing this
alternative will not be allowed to charge, as direct costs, indirect
costs that otherwise would be in the grantee's indirect cost pool under
the applicable Office of Management and Budget cost principles. Grantees
who request no indirect costs will not be permitted to revise their
budgets at a later date to charge indirect costs to grant funds.
Sec. 2903.5 Matching requirements.
There are no matching funds requirements for the Biodiesel Fuel
Education Program and matching resources will not be factored into the
review process as evaluation criteria.
Subpart B_Program Description
Sec. 2903.6 Project types.
OEPNU intends to award continuation grants to successful Biodiesel
Fuel Education Program applicants. A continuation grant is a grant
instrument by which the Department agrees to support a specified level
of effort for a predetermined project period with a statement of
intention to provide additional support at a future date, provided that
performance has been satisfactory, appropriations are available for this
purpose, and continued government support would be in the best interest
of the Federal government and the public. If these three elements are
met, OEPNU plans to provide additional support to the funded project(s).
Sec. 2903.7 Project objectives.
(a) Successful projects will develop practical indicators or
milestones to measure their progress towards achieving the following
objectives:
(1) Enhance current efforts to collect and disseminate biodiesel
information;
(2) Coordinate with other biodiesel educational or promotional
programs, and with Federal, State and local programs aimed at
encouraging biodiesel use, including the EPAct program;
(3) Create a nationwide networking system that delivers biodiesel
information to targeted audiences, including users, distributors and
other infrastructure-related personnel;
(4) Identify and document the benefits of biodiesel (e.g., lifecycle
costing); and
(5) Gather data pertaining to information gaps and develop
strategies to address the gaps.
(b) [Reserved]
Subpart C_Preparation of an Application
Sec. 2903.8 Program application materials.
OEPNU will publish periodic program announcements to notify
potential applicants of the availability of funds for
[[Page 90]]
competitive continuation grants. The program announcement will provide
information about obtaining program application materials.
Sec. 2903.9 Content of an application.
(a) Applications should be prepared following the guidelines and the
instructions in the program announcement. At a minimum, applications
shall include: a proposal cover page, project summary, project
description, information about key personnel, documentation of
collaborative arrangements, information about potential conflicts-of-
interest, budget forms and a budget narrative, information about current
and pending support, and assurance statements.
(b) Proper preparation of applications will assist reviewers in
evaluating the merits of each application in a systematic, consistent
fashion. Specific instructions regarding additional application content
requirements and the ordering of application contents will be included
in the program announcement. These will include instructions about paper
size, margins, font type and size, line spacing, page numbering, the
inclusion of illustrations, and electronic submission.
Sec. 2903.10 Submission of an application.
The program announcement will provide the deadline date for
submitting an application, the number of copies of each application that
must be submitted, and the address to which proposals must be submitted.
Sec. 2903.11 Acknowledgment of applications.
The receipt of all applications will be acknowledged. Applicants who
do not receive an acknowledgment within 60 days of the submission
deadline should contact the program contact indicated on the program
announcement. Once the application has been assigned a proposal number,
that number should be cited on all future correspondence.
Subpart D_Application Review and Evaluation
Sec. 2903.12 Application review.
(a) Reviewers will include government and non-government
individuals. All reviewers will be selected based upon training and
experience in relevant scientific, extension, or education fields,
taking into account the following factors:
(1) The level of relevant formal scientific, technical education, or
extension experience of the individual, as well as the extent to which
an individual is engaged in relevant research, education, or extension
activities; and
(2) The need to include as reviewers experts from various areas of
specialization within relevant scientific, education, or extension
fields.
(b) In addition, when selecting non-government reviewers, the
following factors will be considered:
(1) The need to include as reviewers other experts (e.g., producers,
range or forest managers/operators, and consumers) who can assess
relevance of the applications to targeted audiences and to program
needs;
(2) The need to include as reviewers experts from a variety of
organizational types (e.g., colleges, universities, industry, state and
Federal agencies, private profit and non-profit organizations) and
geographic locations;
(3) The need to maintain a balanced composition of reviewers with
regard to minority and female representation and an equitable age
distribution; and
(4) The need to include reviewers who can judge the effective
usefulness to producers and the general public of each application.
(c) Authorized departmental officers will compile application
reviews and recommend awards to OEPNU. OEPNU will make final award
decisions.
Sec. 2903.13 Evaluation criteria.
(a) The following evaluation criteria will be used in reviewing
applications submitted for the Biodiesel Fuel Education Program:
(1) Relevance of proposed project to current and future issues
related to the production, use, distribution, fuel quality, and fuel
properties of biodiesel, including:
(i) Demonstrated knowledge about markets, state initiatives, impacts
on local economies, regulatory issues, standards, and technical issues;
[[Page 91]]
(ii) Demonstrated knowledge about issues associated with developing
a biodiesel infrastructure; and
(iii) Quality and extent of stakeholder involvement in planning and
accomplishment of program objectives.
(2) Reasonableness of project proposal, including:
(i) Sufficiency of scope and strategies to provide a consistent
message in keeping with existing standards and regulations;
(ii) Adequacy of Project Description, suitability and feasibility of
methodology to develop and implement program;
(iii) Clarity of objectives, milestones, and indicators of progress;
(iv) Adequacy of plans for reporting, assessing and monitoring
results over project's duration; and
(v) Demonstration of feasibility, and probability of success.
(3) Technical quality of proposed project, including:
(i) Suitability and qualifications of key project personnel;
(ii) Institutional experience and competence in providing
alternative fuel education, including:
(A) Demonstrated knowledge about programs involved in alternative
fuel research and education;
(B) Demonstrated knowledge about other fuels, fuel additives, engine
performance, fuel quality and fuel emissions;
(C) Demonstrated knowledge about Federal, State and local programs
aimed at encouraging alternative fuel use;
(D) Demonstrated ability in providing educational programs and
developing technical programs; and
(E) Demonstrated ability to analyze technical information relevant
to the biodiesel industry.
(iii) Adequacy of available or obtainable resources; and
(iv) Quality of plans to administer and maintain the project,
including collaborative efforts, evaluation and monitoring efforts.
(b) [Reserved]
Sec. 2903.14 Conflicts of interest and confidentiality.
(a) During the peer evaluation process, extreme care will be taken
to prevent any actual or perceived conflicts of interest that may impact
review or evaluation. Determinations of conflicts of interest will be
based on the academic and administrative autonomy of an institution. The
program announcement will specify the methodology for determining such
autonomy.
(b) Names of submitting institutions and individuals, as well as
application content and peer evaluations, will be kept confidential,
except to those involved in the review process, to the extent permitted
by law. In addition, the identities of peer reviewers will remain
confidential throughout the entire review process. Therefore, the names
of the reviewers will not be released to applicants. At the end of the
fiscal year, names of reviewers will be made available in such a way
that the reviewers cannot be identified with the review of any
particular application.
Subpart E_Award Administration
Sec. 2903.15 General.
Within the limit of funds available for such purpose, the Authorized
Departmental Officer (ADO) shall make grants to those responsible,
eligible applicants whose applications are judged most meritorious under
the procedures set forth in this part. The date specified by the ADO as
the effective date of the grant shall be no later than September 30 of
the Federal fiscal year in which the project is approved for support and
funds are appropriated for such purpose, unless otherwise permitted by
law. It should be noted that the project need not be initiated on the
grant effective date, but as soon thereafter as practical so that
project goals may be attained within the funded project period. All
funds granted by OEPNU under this program shall be expended solely for
the purpose for which the funds are granted in accordance with the
approved application and budget, the regulations of this part, the terms
and conditions of the award, the applicable Federal cost principles, and
the applicable Department assistance regulations (including part 3019 of
this title).
[[Page 92]]
Sec. 2903.16 Organizational management information.
Specific management information relating to an applicant shall be
submitted on a one-time basis as part of the responsibility
determination prior to the award of a grant identified under this
program, if such information has not been provided previously. Copies of
forms recommended for use in fulfilling these requirements will be
provided as part of the preaward process.
Sec. 2903.17 Award document and notice of award.
(a) The award document will provide pertinent instructions and
information including, at a minimum, the following:
(1) Legal name and address of performing organization or institution
to whom OEPNU has issued an award under this program;
(2) Title of project;
(3) Name(s) and institution(s) of PDs chosen to direct and control
approved activities;
(4) Identifying award number assigned by the Department;
(5) Project period;
(6) Total amount of Departmental financial assistance approved by
OEPNU during the project period;
(7) Legal authority(ies) under which the award is issued;
(8) Appropriate Catalog of Federal Domestic Assistance (CFDA)
number;
(9) Approved budget plan for categorizing allocable project funds to
accomplish the stated purpose of the award; and
(10) Other information or provisions deemed necessary by OEPNU and
the Authorized Departmental Officer to carry out the awarding activities
or to accomplish the purpose of a particular award.
(b) [Reserved]
Subpart F_Supplementary Information
Sec. 2903.18 Access to review information.
Copies of reviews, not including the identity of reviewers, and a
summary of the comments will be sent to the applicant PD after the
review process has been completed.
Sec. 2903.19 Use of funds; changes.
(a) Delegation of fiscal responsibility. Unless the terms and
conditions of the award state otherwise, the awardee may not in whole or
in part delegate or transfer to another person, institution, or
organization the responsibility for use or expenditure of award funds.
(b) Changes in project plans. (1) The permissible changes by the
awardee, PD(s), or other key project personnel in the approved project
shall be limited to changes in methodology, techniques, or other similar
aspects of the project to expedite achievement of the project's approved
goals. If the awardee or the PD(s) is uncertain as to whether a change
complies with this provision, the question must be referred to the
Authorized Departmental Officer (ADO) for a final determination. The ADO
is the signatory of the award document, not the program contact.
(2) Changes in approved goals or objectives shall be requested by
the awardee and approved in writing by the ADO prior to effecting such
changes. In no event shall requests for such changes be approved which
are outside the scope of the original approved project.
(3) Changes in approved project leadership or the replacement or
reassignment of other key project personnel shall be requested by the
awardee and approved in writing by the ADO prior to effecting such
changes.
(4) Transfers of actual performance of the substantive programmatic
work in whole or in part and provisions for payment of funds, whether or
not Federal funds are involved, shall be requested by the awardee and
approved in writing by the ADO prior to effecting such transfers, unless
prescribed otherwise in the terms and conditions of the award.
(5) Changes in project period. The project period may be extended by
OEPNU without additional financial support, for such additional
period(s) as the ADO determines may be necessary to complete or fulfill
the purposes of an approved project, but in no case shall the total
project period exceed five years. Any extension of time shall be
conditioned upon prior request by the awardee and approval in writing
[[Page 93]]
by the ADO, unless prescribed otherwise in the terms and conditions of
award.
(6) Changes in approved budget. Changes in an approved budget must
be requested by the awardee and approved in writing by the ADO prior to
instituting such changes if the revision will involve transfers or
expenditures of amounts requiring prior approval as set forth in the
applicable Federal cost principles, Departmental regulations, or award.
Sec. 2903.20 Reporting requirements.
The award document will give instructions regarding the submission
of progress reports, including the frequency and required contents of
the reports.
Sec. 2903.21 Applicable Federal statutes and regulations.
Several Federal statutes and regulations apply to grant applications
considered for review and to project grants awarded under this program.
These include, but are not limited to:
7 CFR Part 1, subpart A--USDA implementation of the Freedom of
Information Act.
7 CFR Part 3--USDA implementation of OMB Circular No. A-129
regarding debt collection.
7 CFR Part 15, subpart A--USDA implementation of Title VI of the
Civil Rights Act of 1964, as amended.
7 CFR Part 3017--USDA implementation of Governmentwide Debarment and
Suspension (Nonprocurement) and Governmentwide Requirements for Drug-
Free Workplace (Grants).
7 CFR Part 3018--USDA implementation of Restrictions on Lobbying.
Imposes prohibitions and requirements for disclosure and certification
related to lobbying on recipients of Federal contracts, grants,
cooperative agreements, and loans.
7 CFR Part 3019--USDA implementation of OMB Circular A-110, Uniform
Administrative Requirements for Grants and Other Agreements With
Institutions of Higher Education, Hospitals, and Other Nonprofit
Organizations.
7 CFR Part 3052--USDA implementation of OMB Circular No. A-133,
Audits of States, Local Governments, and Non-profit Organizations. 29
U.S.C. 794 (sec. 504, Rehabilitation Act of 1973) and 7 CFR part 15b
(USDA implementation of statute)--prohibiting discrimination based upon
physical or mental handicap in Federally assisted programs. 35 U.S.C.
200 et seq.--Bayh-Dole Act, controlling allocation of rights to
inventions made by employees of small business firms and domestic
nonprofit organizations, including universities, in Federally assisted
programs (implementing regulations are contained in 37 CFR part 401).
Sec. 2903.22 Confidential aspects of applications and awards.
When an application results in an award, it becomes a part of the
record of USDA transactions, available to the public upon specific
request. Information that the Secretary determines to be of a
confidential, privileged, or proprietary nature will be held in
confidence to the extent permitted by law. Therefore, any information
that the applicant wishes to have considered as confidential,
privileged, or proprietary should be clearly marked within the
application. The original copy of an application that does not result in
an award will be retained by the Agency for a period of one year. Other
copies will be destroyed. Such an application will be released only with
the consent of the applicant or to the extent required by law. An
application may be withdrawn at any time prior to the final action
thereon.
Sec. 2903.23 Definitions.
For the purpose of this program, the following definitions are
applicable:
Authorized departmental officer or ADO means the Secretary or any
employee of the Department who has the authority to issue or modify
grant instruments on behalf of the Secretary.
Authorized organizational representative or AOR means the president
or chief executive officer of the applicant organization or the
official, designated by the president or chief executive officer of the
applicant organization, who has the authority to commit the resources of
the organization.
[[Page 94]]
Biodiesel means a monoalkyl ester that meets the requirements of an
appropriate American Society for Testing and Materials Standard.
Budget period means the interval of time (usually 12 months) into
which the project period is divided for budgetary and reporting
purposes.
Department or USDA means the United States Department of
Agriculture.
Education activity means an act or process that imparts knowledge or
skills through formal or informal training and outreach.
Grant means the award by the Secretary of funds to an eligible
recipient for the purpose of conducting the identified project.
Grantee means the organization designated in the award document as
the responsible legal entity to which a grant is awarded.
Institution of higher education, as defined in sec. 101 of the
Higher Education Act of 1965 (20 U.S.C. 1001), means an educational
institution in any State that:
(1) Admits as regular students only persons having a certificate of
graduation from a school providing secondary education, or the
recognized equivalent of such a certificate;
(2) Is legally authorized within such State to provide a program of
education beyond secondary education;
(3) Provides an educational program for which the institution awards
a bachelor's degree or provides not less than a two-year program that is
acceptable for full credit toward such a degree;
(4) Is a public or other nonprofit institution; and
(5) Is accredited by a nationally recognized accrediting agency or
association, or if not so accredited, is an institution that has been
granted preaccreditation status by such an agency or association that
has been recognized by the Secretary of Education for the granting of
preaccreditation status, and the Secretary of Education has determined
that there is satisfactory assurance that the institution will meet the
accreditation standards of such an agency or association within a
reasonable time.
OEPNU means the Office of Energy Policy and New Uses.
Peer review is an evaluation of a proposed project performed by
experts with the scientific knowledge and technical skills to conduct
the proposed work whereby the technical quality and relevance to the
program are assessed.
Prior approval means written approval evidencing prior consent by an
authorized departmental officer (as defined in this section).
Program means the Biodiesel Fuel Education Program.
Project means the particular activity within the scope of the
program supported by a grant award.
Project director or PD means the single individual designated by the
grantee in the grant application and approved by the Secretary who is
responsible for the direction and management of the project, also known
as a principal investigator for research activities.
Project period means the period, as stated in the award document and
modifications thereto, if any, during which Federal sponsorship begins
and ends.
Secretary means the Secretary of Agriculture and any other officer
or employee of the Department to whom the authority involved may be
delegated.
[[Page 95]]
CHAPTER XXX--OFFICE OF
THE CHIEF FINANCIAL OFFICER,
DEPARTMENT OF AGRICULTURE
--------------------------------------------------------------------
Part Page
3010
[Reserved]
3011 Availability of information to the public... 97
3015 Uniform Federal assistance regulations...... 98
3016 Uniform administrative requirements for
grants and cooperative agreements to
State and local governments............. 148
3017 Governmentwide debarment and suspension
(nonprocurement)........................ 176
3018 New restrictions on lobbying................ 201
3019 Uniform administrative requirements for
grants and agreements with institutions
of higher education, hospitals, and
other non-profit organizations.......... 213
3021 Governmentwide requirements for drug-free
workplace (financial assistance)........ 240
3052 Audits of States, local governments, and
non-profit organizations................ 246
[[Page 97]]
PART 3011_AVAILABILITY OF INFORMATION TO THE PUBLIC--Table of Contents
Sec.
3011.1 General statement.
3011.2 Public inspection and copying.
3011.3 Indexes.
3011.4 Initial requests for records.
3011.5 Appeals.
3011.6 Fee schedule.
Authority: 5 U.S.C. 301 and 522; 7 CFR 1.3.
Source: 54 FR 51869, Dec. 19, 1989, unless otherwise noted.
Sec. 3011.1 General statement.
This part is issued in accordance with 7 CFR 1.3 of the Department
of Agriculture regulations governing the availability of records (7 CFR
1.1--1.23 and Appendix A) under the Freedom of Information Act (5 U.S.C.
552, as amended). These regulations supplement the Department's
regulations by providing guidance for any person wishing to request
records from the Office of Finance and Management (OFM).
Sec. 3011.2 Public inspection and copying.
(a) Background. 5 U.S.C. 552(a)(2) requires each agency to maintain
and make available for public inspection and copying certain kinds of
records.
(b) Procedure. To gain access to OFM records that are available for
public inspection, contact the Freedom of Information Act Officer by
writing to the address shown in Sec. 3011.4(b) of this title.
Sec. 3011.3 Indexes.
5 U.S.C. 552(a)(2) also requires that each agency maintain and make
available for public inspection and copying current indexes providing
identifying information for the public with regard to any records which
are made available for public inspection and copying. OFM does not
maintain any materials within the scope of these requirements.
Sec. 3011.4 Initial requests for records.
(a) Background. The Freedom of Information Act Officer is authorized
to:
(1) Grant or deny requests for OFM records,
(2) Make discretionary release of OFM records when the benefit to
the public in releasing the document outweighs any harm likely to result
from disclosure,
(3) Reduce or waive fees to be charged where determined to be
appropriate.
(b) Procedures. This part provides the titles and mailing address of
officials who are authorized to release records to the public. The
normal working hours of these offices are 8:30 a.m. to 5:00 p.m., local
time, Monday through Friday, excluding holidays, during which public
inspection and copying of certain kinds of records is permitted. Persons
wishing to request records from the Office of Finance and Management may
do so by submitting each initial written request for OFM records to the
appropriate OFM official shown below:
(1) For records held at the Washington, DC Headquarters units,
submit initial requests to the Freedom of Information Act Officer,
Office of Finance and Management, USDA, 14th and Independence Ave., SW.,
Room 117-W, Administration Building, Washington, DC 20250-9000.
(2) For records held at the National Finance Center in New Orleans,
Louisiana, submit initial requests to the Freedom of Information Act
Officer, National Finance Center, OFM, USDA, 13800 Old Gentilly Road,
Building 350, (P.O. Box 60,000, New Orleans, LA 70160), New Orleans,
Louisiana 70129.
If the requester is unable to determine the official to whom the request
should be addressed, it should be submitted to the Headquarters Freedom
of Information Act Officer who will refer such requests to the
appropriate officials.
Sec. 3011.5 Appeals.
Any person whose initial request is denied in whole or in part may
appeal that denial, in accordance with 7 CFR 1.6(e) and 1.8, to the
Director, Office of Finance and Management, USDA, Room 117-W,
Administration Building, 14th and Independence Ave., Washington, DC
20250-9000.
Sec. 3011.6 Fee schedule.
Departmental regulations provide for a schedule of reasonable
standard charges for document search and duplication. See 7 CFR 1.2(b).
Fees to be charged are set forth in 7 CFR part 1, subpart A, Appendix A.
[[Page 98]]
PART 3015_UNIFORM FEDERAL ASSISTANCE REGULATIONS--Table of Contents
Subpart A_General
Sec.
3015.1 Purpose and scope of this part.
3015.2 Applicability.
3015.3 Conflicting policies and deviations.
3015.4 Special restrictive terms.
Subpart B_Cash Depositories
3015.10 Physical segregation and eligibility.
3015.11 Separate bank accounts.
3015.12 Moneys advanced to recipients.
3015.13 Minority and women-owned banks.
Subpart C_Bonding and Insurance
3015.15 General.
3015.16 Construction and facility improvement.
3015.17 Fidelity bonds.
3015.18 Source of bonds.
Subpart D_Record Retention and Access Requirements
3015.20 Applicability.
3015.21 Retention period.
3015.22 Starting date of retention period.
3015.23 Microfilm.
3015.24 Access to records.
3015.25 Restrictions to public access.
Subpart E_Waiver of ``Single'' State Agency Requirements
3015.30 Waiver of ``single'' State agency requirements.
Subpart F_Grant Related Income
3015.40 Scope.
3015.41 General program income.
3015.42 Proceeds from sale of real property and from sale of equipment
and supplies acquired for use.
3015.43 Royalties and other income earned from a copyrighted work.
3015.44 Royalties or equivalent income earned from patents or from
inventions.
3015.45 Other program income.
3015.46 Interest earned on advances of grant funds.
Subpart G_Cost-Sharing or Matching
3015.50 Scope.
3015.51 Acceptable contributions and costs.
3015.52 Qualifications and exceptions.
3015.53 Valuation of donated services.
3015.54 Valuation of donated supplies and loaned equipment or space.
3015.55 Valuation of donated equipment, buildings, and land.
3015.56 Appraisal of real property.
Subpart H_Standards for Financial Management Systems
3015.60 Scope.
3015.61 Financial management standards.
Subpart I [Reserved]
Subpart J_Financial Reporting Requirements
3015.80 Scope and applicability.
3015.81 General.
3015.82 Financial status report.
3015.83 Federal cash transactions report.
3015.84 Request for advance or reimbursement.
3015.85 Outlay report and request for reimbursement for construction
programs.
Subpart K_Monitoring and Reporting Program Performance
3015.90 Scope.
3015.91 Monitoring by recipients.
3015.92 Performance reports.
3015.93 Significant developments.
3015.94 Site visits.
3015.95 Waivers, extensions and enforcement actions.
Subpart L_Payment Requirements
3015.100 Scope.
3015.101 General.
3015.102 Payment methods.
3015.103 Withholding payments.
3015.104 Requesting advances or reimbursements.
3015.105 Payments to subrecipients.
Subpart M_Programmatic Changes and Budget Revisions
3015.110 Scope and applicability.
3015.111 Cost principles.
3015.112 Approval procedures.
3015.113 Programmatic changes.
3015.114 Budgets--general.
3015.115 Budget revisions.
3015.116 Construction and nonconstruction work under the same grant,
subgrant, or cooperative agreement.
Subpart N_Grant and Subgrant Closeout, Suspension and Termination
3015.120 Closeout.
3015.121 Amounts payable to the Federal government.
3015.122 Violation of terms.
3015.123 Suspension.
3015.124 Termination.
3015.125 Applicability to subgrants.
Subparts O-P [Reserved]
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Subpart Q_Application for Federal Assistance
3015.150 Scope and applicability.
3015.151 Authorized forms.
3015.152 Preapplication for Federal assistance.
3015.153 Notice of preapplication review action.
3015.154 Application for Federal assistance (nonconstruction programs).
3015.155 Application for Federal assistance (construction programs).
3015.156 Application for Federal assistance (short form).
3015.157 Authorized form for nongovernmental organizations.
3015.158 Competition in the awarding of discretionary grants and
cooperative agreements.
Subpart R_Property
3015.160 Scope and applicability.
3015.161 Additional requirements.
3015.162 Title to real property, equipment and supplies.
3015.163 Real property.
3015.164 Statutory exemptions for equipment and supplies.
3015.165 Rights to require transfer of equipment.
3015.166 Use of equipment.
3015.167 Replacement of equipment.
3015.168 Disposal of equipment.
3015.169 Equipment management requirements.
3015.170 Damage, loss, or theft of equipment.
3015.171 Unused supplies.
3015.172 Federal share of real property, equipment, and supplies.
3015.173 Using or returning the Federal share.
3015.174 Subrecipient's share.
3015.175 Intangible personal property.
Subpart S_Procurement
3015.180 Scope and applicability.
3015.181 Standards of conduct.
3015.182 Open and free competition.
3015.183 Access to contractor records.
3015.184 Equal employment opportunity.
Subpart T_Cost Principles
3015.190 Scope.
3015.191 Governments.
3015.192 Institutions of higher education.
3015.193 Other non-profit organizations.
3015.194 For-profit organizations.
3015.195 Subgrants and cost-type contracts.
3015.196 Costs allowable with approval.
Subpart U_Miscellaneous
3015.200 Acknowledgement of support on publications and audiovisuals.
3015.201 Use of consultants.
3015.202 Limits on total payments to the recipient.
3015.203 [Reserved]
3015.204 Federal Register publications.
3015.205 General provisions for grants and cooperative agreements with
institutions of higher education, other nonprofit
organizations, and hospitals.
Subpart V_Intergovernmental Review of Department of Agriculture Programs
and Activities
3015.300 Purpose.
3015.301 Definitions.
3015.302 Applicability.
3015.303 Secretary's general responsibilities.
3015.304 Federal interagency coordination.
3015.305 State selection of programs and activities.
3015.306 Communication with State and local elected officials.
3015.307 State comments on proposed Federal financial assistance and
direct Federal development.
3015.308 Processing comments.
3015.309 Accommodation of intergovernmental concerns.
3015.310 Interstate situations.
3015.311 Simplification, consolidation, or substitution of State plans.
3015.312 Waivers.
Appendix A to Part 3015--Definitions
Appendix B to Part 3015--OMB Circular A-128, ``Audits of State and Local
Governments''
Authority: 5 U.S.C. 301; 31 U.S.C. 901-903; 7 CFR 2.28, unless
otherwise noted.
Source: 46 FR 55639, Nov. 10, 1981, unless otherwise noted.
Subpart A_General
Sec. 3015.1 Purpose and scope of this part.
(a)(1) This part specifies the set of principles for determining
allowable costs under USDA grants and cooperative agreements to State
and local governments, universities, non-profit and for-profit
organizations as set forth in OMB Circulars A-87, A-21, A-122, and 48
CFR 31.2, respectively. This part also contains the general provisions
that apply to all grants and cooperative agreements made by USDA.
(2) Additionally, this part establishes intergovernmental review
provisions
[[Page 100]]
required by Executive Order 12372 for any programs listed in the Federal
Register as covered, and policy on competition in awarding discretionary
grants and cooperative agreements.
(3) Rules for grants and cooperative agreements to State and local
governments are found in part 3016 of this chapter.
(4) Rules for grants and cooperative agreements to institutions of
higher education, hospitals, and other non-profit organizations are
found in part 3019 of this chapter.
(b) These rules supersede and take precedence over any individual
USDA agency regulations and directives dealing with the administration
of grants and cooperative agreements to the extent such regulations and
directives are inconsistent with this part, unless such inconsistency is
based on a statutory provision or an exception has been obtained from
OMB. (See Sec. 3015.3.) Definitions for the terms used in this part are
set forth in Appendix A. Definitions for the implementation of standard
audit requirements for State and local governments and Indian Tribal
governments are contained in Subpart I--Audits.
(c) The purpose of this part is to simplify, standardize, and
improve the administration of USDA grants and cooperative agreements.
(d) Responsibility for developing and interpreting the material for
this part and in keeping it up-to-date is delegated to the Office of the
Chief Financial Officer.
[46 FR 55639, Nov. 10, 1981, as amended at 62 FR 45949, Aug. 29, 1997;
65 FR 49479, Aug. 14, 2000]
Sec. 3015.2 Applicability.
(a) Grants and cooperative agreements. This part applies to USDA
grants and cooperative agreements. For each substantive provision in
this part, either the words of the provision itself or other words in
the same subpart tell whether the provision applies to subgrants.
Exemptions to this part may be applicable to certain kinds of
recipients. (See paragraph (d) of this section.)
(b) Terminology applicable to this part. This part's substantive
rules are the same for grants and cooperative agreements. Many of the
rules are also the same for subgrants. Therefore, certain simplified
terminology is used in the text. Specifically in all portions of this
part:
(1) Each provision that applies to grants also applies to
cooperative agreements, even though the latter term does not appear in
the provisions.
(2) Each provision that applies to recipients of grants applies to
recipients of cooperative agreements, even though the latter term does
not appear in the provision.
(3) The term recipient refers equally to recipients of grants and
recipients of cooperative agreements.
(4) The term awarding agency refers equally to a USDA agency that
awards a grant and to one that awards a cooperative agreement.
(5) The term subgrant refers equally to certain awards under grants
and to the same kinds of awards under cooperative agreements.
(c) Public institutions of higher education and hospitals. Grants,
cooperative agreements and subgrants awarded to institutions of higher
education and hospitals operated by a government are subject only to the
provisions of this part that apply to non-governmental organizations.
(d) Recipients to which this part does not automatically apply. This
part does not automatically apply to the kinds of recipients listed
below unless other conditions set forth in the grant, cooperative
agreement, subgrant, or specific subpart in this part make all or
specified portions apply:
(1) Foreign governments or organizations,
(2) International organizations, such as the United Nations,
(3) Agencies or instrumentalities of the Federal government,
(4) Individuals,
(5) State and local governments, and
(6) Institutions of higher education, hospitals and other non-profit
organizations.
(e) Collaborative arrangements. (1) Where permitted by the terms of
the award, a recipient may enter into collaborative arrangements with
other organizations to jointly carry out activities with grant or
cooperative agreement funds. In this kind of situation,
[[Page 101]]
the arrangement between the recipient and each collaborating
organization is subject to the rules in this part that apply to
subgrants awarded by the recipients. (See the example shown in Sec.
3015.195.)
(2) This paragraph (e) does not apply to arrangements where the
organizations receive an award jointly. In this case, they are not a
recipient and subrecipient but, as the award notice states, joint
recipients.
[46 FR 55639, Nov. 10, 1981, as amended at 53 FR 8044, Mar. 11, 1988; 65
FR 49480, Aug. 14, 2000]
Sec. 3015.3 Conflicting policies and deviations.
(a) Statutory provisions. Federal statutes that apply to some USDA
grant programs may contain provisions that conflict with this part.
Those statutory provisions take precedence over this part.
(b) Nonstatutory provisions. USDA awarding agencies occasionally
develop grant provisions that are inconsistent with this part. USDA
attempts to keep these provisions to a minimum by internal procedures
that require these provisions to be justified to appropriate officials
of USDA and OMB. If the conflicting provisions are of long-term and
general applicability, O&F may require that the awarding agency (1)
publish the conflicting provision as a notice in the Federal Register
and (2) give the public an opportunity to comment before making the
regulations final.
(c) Nonstatutory provisions-subgrants. If a provision of a subgrant
conflicts with this part, the recipient is considered as violating the
provisions of the grant, unless the subgrant provision is authorized in
writing, by the awarding agency.
(d) OMB exceptions. In some cases, OMB grants exceptions from the
requirements of the Circulars, when permissible under existing laws. In
those instances where a program receives an exception to a particular
provision of a Circular, the exception takes precedence over this part.
Sec. 3015.4 Special restrictive terms.
(a) Occasionally an awarding agency, or a recipient awarding a
subgrant, may find that a particular recipient:
(1) Is financially unstable,
(2) Has a history of poor performance, or
(3) Has a management system that does not meet the standards in this
part.
In these cases the awarding agency may impose special conditions that
are more restrictive than otherwise permitted by this part. If so, the
awarding agency must tell the recipient in writing why it is imposing
the special conditions and what corrective action is needed.
(b) At the time an awarding agency imposes a special grant condition
under paragraph (a) of this section, the awarding agency, through O&F,
shall notify OMB and other interested parties.
(c) At the time a recipient imposes a special restrictive subgrant
condition under paragraph (a) of this section, it must notify the
awarding agency, giving full particulars. The awarding agency, through
O&F, shall then notify OMB and other interested parties.
(d) A special restrictive grant or subgrant condition under
paragraph (a) of this section is considered consistent with this part.
Subpart B_Cash Depositories
Sec. 3015.10 Physical segregation and eligibility.
Except as provided in Sec. 3015.11, awarding agencies shall not
impose grant or subgrant conditions which:
(a) Require the recipient to use a separate bank account for the
deposit of grant or subgrant funds, or
(b) Establish any eligibility requirements for banks or other
financial institutions in which recipients deposit grant or subgrant
funds.
Sec. 3015.11 Separate bank accounts.
A separate bank account shall be required when applicable letter of
credit agreements provide that funds will not be drawn until the
recipient's checks are presented to the bank for payment.
[[Page 102]]
Sec. 3015.12 Moneys advanced to recipients.
Any moneys advanced to recipients which are subject to the control
or regulation of the United States or any of its officers, agents, or
employees (public moneys as defined in Treasury Circular 176, as
amended), must be deposited in a bank with Federal Deposit Insurance
Corporation (FDIC) insurance coverage and the balance exceeding the FDIC
coverage must be collaterally secured.
Sec. 3015.13 Minority and women-owned banks.
Consistent with the national goal of expanding opportunities for
minority business enterprises, recipients, and subrecipients are
encouraged to use minority and women-owned banks. Upon request, awarding
agencies will furnish a listing of minority and women-owned banks to
recipients.
Subpart C_Bonding and Insurance
Sec. 3015.15 General.
In administering grants, subgrants, and cooperative agreements,
recipients shall observe their regular requirements and practices with
respect to bonding and insurance. No additional bonding and insurance
requirements, including fidelity bonds, shall be imposed by the
provisions of the grant, subgrant, or cooperative agreement except as
provided in Sec. Sec. 3015.16 through 3015.18.
Sec. 3015.16 Construction and facility improvement.
(a) Scope. This section covers requirements for bid guarantees,
performance bonds, and payment bonds when the recipients will contract
or subcontract for construction or facility improvement (including
alterations and renovations of real property) under a grant or subgrant.
(b) Bids and contracts or subcontracts of $100,000 or less. Unless
otherwise required by law, the recipients shall follow its own
requirements and practices relating to bid guarantees, performance
bonds, and payment bonds.
(c) Bids and contracts or subcontracts exceeding $100,000. Unless
otherwise required by law, the recipient may follow its own regular
policy and requirements if the USDA awarding agency has decided that the
Federal government's interest will be adequately protected. If this
decision has not been made, the minimum requirements shall be as
follows:
(1) A bid guarantee from each bidder equivalent to 5 percent of the
bid price;
(2) A performance bond on the part of the contractor for 100 percent
of the contract price; and
(3) A payment bond on the part of the contractor for 100 percent of
the contract price.
Sec. 3015.17 Fidelity bonds.
(a) If the recipient is not a unit of government, the awarding
agency may require the recipient to carry adequate fidelity bond
coverage where the absence of coverage for the grant-supported activity
is considered as created an unacceptable risk.
(b) If the subrecipient is not a unit of government, the awarding
agency or the recipient may require that the subrecipient carry adequate
fidelity bond coverage where the absence of coverage for the subgrant-
supported activity is considered as creating an unacceptable risk.
Sec. 3015.18 Source of bonds.
Any bonds required under Sec. 3015.16(c) (1) through (3) or Sec.
3015.17 shall be obtained from companies holding certificates of
authority as acceptable sureties (31 CFR part 223). A list of these
companies is published annually by the Department of the Treasury in its
Circular 570.
Subpart D_Record Retention and Access Requirements
Sec. 3015.20 Applicability.
(a) This subpart applies to all financial records, supporting
documents, statistical records and other records of recipients, which
are:
(1) Required to be maintained by the provisions of a USDA grant or
cooperative agreement, or
[[Page 103]]
(2) Otherwise reasonably considered as pertinent to a USDA grant or
cooperative agreement.
(b) This subpart does not apply to the records of contractors and
subcontractors under grants, subgrants and cooperative agreements. For a
requirement to place a provision concerning these records in certain
kinds of contracts, see Subpart S of this part.
Sec. 3015.21 Retention period.
(a) Except as provided in paragraphs (b) and (c) of this section,
records shall be kept for 3 years from the starting date specified in
Sec. 3015.22.
(b) If any litigation, claim, negotiation, audit or other action
involving the records has been started before the end of the 3-year
period, the records shall be kept until all issues are resolved, or
until the end of the regular 3-year period, whichever is later.
(c) In order to avoid dual recordkeeping, awarding agencies may make
special arrangements for recipients to keep any records which are
continuously needed for joint use. The awarding agency shall request a
recipient to transfer records to its custody when the awarding agency
decides that the records possess long-term retention value. When the
records are transferred to or maintained by the awarding agency the 3-
year retention requirement shall not apply to the recipient.
(d) Records for nonexpendable property acquired in whole or in part,
with Federal funds shall be retained for three years after its final
disposition.
Sec. 3015.22 Starting date of retention period.
(a) General. The retention period starts from the date of the
submission of the final expenditure report or, where USDA grant support
is continued or renewed at annual or other intervals, the 3-year
retention period for the records of each funding period starts on the
day the recipient submits to USDA its annual or final expenditure report
for that period. If an expenditure report has been waived, the 3-year
retention period starts on the day the report would have been due.
Exceptions to this paragraph are contained in paragraphs (b) through (d)
of this section.
(b) Equipment records. The 3-year retention period for the equipment
records required by Subpart R starts from the date of the equipment's
disposition, replacement, or transfer at the direction of the awarding
agency.
(c) Records for income transactions after grant or subgrant support.
(1) In cases where USDA requires that program income (as defined in
Appendix A) be applied to costs incurred after expiration or termination
of grant or subgrant support, the 3-year retention period for these cost
records starts from the end of the recipient's fiscal year in which the
costs are incurred.
(2) Where USDA requires the disposition of copyright royalties or
other program income earned after expiration or termination of grant or
subgrant support, the 3-year retention period for those income records
starts from the end of the recipient's fiscal year in which the income
was earned. (See Subpart F, Sec. 3015.44.)
(d) Indirect cost rate proposals, cost allocation plans, etc.--(1)
Applicability. This paragraph applies to the following types of
documents and their supporting records:
(i) Indirect cost rate computations or proposals;
(ii) Cost allocation plans; and
(iii) Any similar accounting computations of the rate at which a
particular group of costs is chargeable (such as computer usage
chargeback rates or composite fringe benefit rates).
(2) If submitted for negotiation. If the Federal government requires
submission of the proposal; plan, or other computation for negotiation
of the rate chargeable for particular costs, then the 3-year retention
period for the plan, proposal or other computation and the supporting
records starts from the date of such submission.
(3) If not submitted for negotiation. If the Federal government does
not require submission of the proposal, plan, or other computation for
negotiation of the rate chargeable for particular costs, then the 3-year
retention period for the proposal, plan, or other computation and the
supporting records starts from the end of the fiscal year covered by
such proposal, plan, or other computation.
[[Page 104]]
Sec. 3015.23 Microfilm.
Copies made by microfilming, photocopying, or similar methods may be
substituted for the original records.
Sec. 3015.24 Access to records.
(a) Records of recipients. USDA and the Comptroller General of the
United States, or any of their authorized representatives, shall have
the right of access to any books, documents, papers, or other records of
the recipient which are pertinent in a specific USDA award in order to
make audit, examination, excerpts, and transcripts.
(b) Records of subrecipients. USDA and the Comptroller General of
the United States, and the recipient, or any of their authorized
representatives, shall have the right of access to any books, documents,
papers, or other records of the subrecipient which are pertinent to a
specific USDA grant or cooperative agreement, in order to make audit,
examination, excerpts, and transcripts.
(c) Expiration of right of access. The rights of access in this
section shall not be limited to the required retention period but shall
last as long as the records are kept.
Sec. 3015.25 Restrictions to public access.
Unless required by law, no awarding agency shall impose grant or
subgrant conditions which limit public access to records covered by this
subpart, except when the awarding agency determines that such records
must be kept confidential and would have been excepted from disclosure
pursuant to USDA's ``Freedom of Information'' regulations if the records
had belonged to USDA (7 CFR 1.1-1.16).
Subpart E_Waiver of ``Single'' State Agency Requirements
Sec. 3015.30 Waiver of ``single'' State agency requirements.
Section 204 of the Intergovernmental Cooperation Act of 1968
authorizes Federal agencies to waive ``single'' State agency
requirements on request of the Governor or other duly constituted State
authorities.
(a) Approval authority. The awarding agency has approval authority
for waiver requests, and shall handle them as quickly as feasible.
Approval should be given whenever possible.
(b) Refusal procedures. When it is necessary to refuse a request for
waiver of the ``single'' State agency requirements under section 204,
the awarding agency shall, through O&F, advise OMB that the request
cannot be granted. Such advice should indicate the reasons for the
denial of the request. Notification, through O&F, to OMB shall occur
prior to informing the State of the refusal.
Subpart F_Grant Related Income