CODE OF FEDERAL REGULATIONS36
CONTAINING
A CODIFICATION OF DOCUMENTS
OF GENERAL APPLICABILITY
AND FUTURE EFFECT
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The Code of Federal Regulations is a codification of the general and permanent rules published in the Federal Register by the Executive departments and agencies of the Federal Government. The Code is divided into 50 titles which represent broad areas subject to Federal regulation. Each title is divided into chapters which usually bear the name of the issuing agency. Each chapter is further subdivided into parts covering specific regulatory areas.
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Title 36—
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Sec. 4, 58 Stat. 889, as amended; 16 U.S.C. 460d.
The regulation covered in this part shall be applicable to all water resource project lands under the supervision of the Secretary of the Army not covered in parts 311 and 326, of this title.
All project land and water areas which are open to the public shall be available for use and enjoyment by the public without regard to race, creed, color or national origin. Each lessee or licensee of a project area under lease or license providing for a public or quasi-public use, including group camp activities, and each concessionaire of a lessee or licensee providing a service to the public including facilities and accommodations, shall not discriminate against any person or persons because of race, creed, color or national origin in the conduct of its operations under the lease, license or concession agreement.
The Rivers and Harbors Act of 1894, as amended and supplemented (33 U.S.C. 1); 16 U.S.C. 460d and 460l-6a.
The regulations covered in this part 327 shall be applicable to water resource development projects, completed or under construction, administered by the Chief of Engineers, and to those portions of jointly administered water resource development projects which are under the administrative jurisdiction of the Chief of Engineers. All other Federal, State and local laws and regulations remain in full force and effect where applicable to those water resource development projects.
(a) It is the policy of the Secretary of the Army, acting through the Chief of Engineers, to manage the natural, cultural and developed resources of each project in the public interest, providing the public with safe and healthful recreational opportunities while protecting and enhancing these resources.
(b) Unless otherwise indicated herein, the term
(c) The term
(d) All water resource development projects open for public use shall be available to the public without regard to sex, race, color, creed, age, nationality or place of origin. No lessee, licensee, or concessionaire providing a service to the public shall discriminate against any person because of sex, race, creed, color, age, nationality or place of origin in the conduct of the operations under the lease, license or concession contract.
(e) In addition to the regulations in this part 327, all applicable Federal, state and local laws and regulations remain in full force and effect on project lands or waters which are outgranted by the District Engineer by lease, license or other written agreement.
(f) The regulations in this part 327 shall be deemed to apply to those lands and waters which are subject to treaties and Federal laws and regulations concerning the rights of Indian Nations and which lands and waters are incorporated, in whole or in part, within water resource development projects administered by the Chief of Engineers, to the extent that the regulations in this part 327 are not inconsistent with such treaties and Federal laws and regulations.
(g) Any violation of any section of this part 327 shall constitute a separate violation for each calendar day in which it occurs.
(h) For the purposes of this part 327, the owner of any unattended vehicle, vessel or aircraft as described herein shall be presumed to be responsible for its use on project property. Unless proven otherwise, such presumption will be sufficient to issue a citation for the violation of regulations applicable to the use of such vehicle, vessel or aircraft as provided for in § 327.25, Violation of Rules and Regulations.
(a) This section pertains to all vehicles, including, but not limited to, automobiles, trucks, motorcycles, mini-bikes, snowmobiles, dune buggies, all-terrain vehicles and trailers, campers, bicycles or any other such equipment.
(b) Vehicles shall not be parked in violation of posted restrictions, or in such a manner as to obstruct or impede normal or emergency traffic movement or the parking of other vehicles, create a safety hazard, or endanger any person, project property or environmental feature. Vehicles so parked are subject to removal and impoundment at the owner's expense.
(c) The operation and/or parking of a vehicle off authorized roadways is prohibited except at locations and times designated by the District Engineer. Taking any vehicle through, around or beyond a restrictive sign, recognizable barricade, fence or traffic control barrier is prohibited.
(d) Vehicles shall be operated only in accorance with posted regulations and applicable Federal, state and local laws, which shall be enforced by authorized enforcement officials.
(e) No person shall operate any vehicle in a careless, negligent or reckless manner so as to endanger any person, project property or environmental feature.
(f) At developed recreation areas, vehicles shall be used only to enter or leave the area or individual sites or facilities unless otherwise posted.
(g) Except as authorized by the District Engineer, no person shall operate any motorized vehicle without a proper and effective exhaust muffler as defined by state and local laws, or with an exhaust muffler cutout open, or in any other manner which renders the exhaust muffler ineffective in muffling the sound of engine exhaust.
(a) This section pertains to all vessels or watercraft, including, but not limited to, powerboats, cruisers, houseboats, sailboats, rowboats, canoes, kayaks, jetskis and any other such equipment capable of navigation on water, whether in motion or at rest.
(b) The placement and/or operation of any vessel or watercraft for a fee or profit upon project waters or lands is prohibited except as authorized by permit, lease, license, or concession contract with the Department of the
(c) Vessels or other watercraft may be operated on the project waters, except in prohibited or restricted areas, in accordance with posted regulations, including buoys, and applicable Federal, state and local laws, as regulated by authorized enforcement officials. All vessels or watercraft so required by applicable Federal, state and local laws shall display an appropriate registration on board whenever the vessel is operated on project waters.
(d) The operation of vessels or other watercraft in a careless, negligent or reckless manner so as to endanger any property or person (including the operator and/or user(s) of the vessel or watercraft) is prohibited.
(e) All vessels, when in use, shall have safety equipment, including personal floatation devices, on board in compliance with U.S. Coast Guard boating safety requirements (Coast Guard Pamphlet CG-290; 46 CFR parts 25, 30; 33 CFR part 175) and in compliance with boating safety laws issued and enforced by the state in which the vessel is being operated.
(f) Unless otherwise permitted by Federal, state or local law, vessels or other watercraft, while moored in commercial facilities, community or corporate docks, or at any fixed or permanent mooring point, may only be used for overnight occupancy when such use is incidental to recreational boating. Vessels or other watercraft are
(g) Water skis, parasails, ski-kites and similar devices are permitted in nonrestricted areas except that they may not be used in a careless, negligent, or reckless manner so as to endanger any property or person (including the user and/or operator of the towing vessel).
(h) All vessels when not in actual use shall be removed from project lands and water unless securely moored or stored at designated areas approved by the District Engineer. The placing of floating or stationary mooring facilities on, adjacent to, or interfering with a buoy, channel marker or other navigational aid is prohibited.
(i) The use at a project of any vessel not constructed or maintained in compliance with the standards and requirements established by the Federal Safe Boating Act of 1971 (Pub. L 92-75, 85 Stat. 213), or promulgated pursuant to such act, is prohibited.
(j) Except as authorized by the District Engineer, no person shall operate any vessel or watercraft without a proper and effective exhaust muffler as defined by State and local laws, or with an exhaust muffler cutout open, or in any other manner which renders the exhaust muffler ineffective in muffling the sound of engine exhaust.
(a) This section pertains to all aircraft including, but not limited to, airplanes, seaplanes, helicopters, ultralight aircraft, motorized hang gliders, hot air balloons, any non-powered flight devices or any other such equipment.
(b) The operation of aircraft on project lands at locations other than those designated by the District Engineer is prohibited. This provision shall not be applicable to aircraft engaged on official business of Federal, state or local governments or law enforcement agencies, aircraft used in emergency rescue in accordance with the directions of the District Engineer or aircraft forced to land due to circumstances beyond the control of the operator.
(c) No person shall operate any aircraft while on or above project waters or project lands in a careless, negligent or reckless manner so as to endanger any person or property.
(d) Nothing in this section (§ 327.4) bestows authority to deviate from rules and regulations or prescribed standards of the appropriate State Aeronautical Agency, or the Federal Aviation Administration, including, but not limited to, regulations and standards concerning pilot certifications or ratings, and airspace requirements.
(e) Except in extreme emergencies threatening human life or serious property loss, the air delivery of any person, material or equipment by parachute, helicopter or other means onto project lands or waters without written permission of the District Engineer is prohibited.
(f) In addition to the above provisions, seaplanes, as defined below, are subject to the following restrictions:
(1) Such use is limited to aircraft utilized for water landings and takeoff, herein called seaplanes, at the risk of the owner, operator and passenger(s).
(2) Seaplane operations contrary to the prohibitions or restrictions established by the District Engineer (pursuant to part 328 of title 36) are prohibited. The responsibility to ascertain whether seaplane operations are prohibited or restricted is incumbent upon the person(s) contemplating the use of, or using, such waters.
(3) All operations of seaplanes while upon project waters shall be in accordance with marine rules of the road for power boats or vessels and § 327.3 Vessels.
(4) Seaplanes on project waters and lands in excess of 24 hours shall be securely moored at mooring facilities and at locations permitted by the District Engineer. Seaplanes may be temporarily moored on project waters and lands, except in areas prohibited by the District Engineer, for periods less than 24 hours providing that (i) the mooring is safe, secure, and accomplished so as not to damage the rights of the Government or members of the public and (ii) the operator remains in the vicinity of the seaplane and reasonably available to relocate the seaplane if necessary.
(5) Commercial operation of seaplanes from project waters is prohibited without written approval of the District Engineer following consultation with and necessary clearance from the Federal Aviation Administration (FAA) and other appropriate public authorities and affected interests.
(6) Seaplanes may not be operated at Corps projects between sunset and sunrise unless adequate lighting and supervision approved by the District Engineer are available.
(a) Swimming, diving, snorkling or scuba diving at one's own risk is permitted, except at launching sites, designated mooring points and other areas so designated by the District Engineer. Diving or jumping from bridges or other structures which cross project waters is prohibited.
(b) An international diving flag must be displayed during underwater activities.
Picnicking and related day-use activities are permitted, except in those areas where prohibited by the District Engineer.
(a) Camping is permitted only at sites and/or areas designated by the District Engineer.
(b) Camping at one or more campsites at any one water resource project for a period longer than 14 days during any 30-consecutive-day period is prohibited without the written permission of the District Engineer.
(c) The unauthorized placement of camping equipment or other items on a campsite and/or personal appearance without overnight occupancy at a campsite for the purpose of reserving a designated campsite for future occupancy is prohibited.
(d) The digging or leveling of any ground or the construction of any structure without written permission of the District Engineer is prohibited.
Hunting, fishing, and trapping are permitted except in areas where prohibited by the District Engineer. All Federal, state and local laws governing these activities apply on project lands and waters, as regulated by authorized enforcement officials.
(a) Garbage, trash, rubbish, litter, or any other waste material or waste liquid generated on the project and incidental to authorized recreational activities shall be either removed from the project or deposited in receptacles
(b) It is a violation to bring onto a project any household or commercial garbage, trash, rubbish, debris, dead animals or litter of any kind for disposal or dumping without the written permission of the District Engineer.
(c) The spilling, pumping or other discharge of contaminants, pollutants or other wastes, including, but not limited to, human or animal waste, petroleum, industrial and commercial products and by-products, on project lands or into project waters is prohibited.
(d) Campers, picnickers, and all other persons using a water resource development project shall keep their sites free of trash and litter during the period of occupancy and shall remove all personal equipment and clean their sites upon departure.
(e) The discharge or placing of sewage, galley waste, garbage, refuse, or pollutants into the project waters from any vessel or watercraft is prohibited.
(a) Gasoline and other fuels, except that which is contained in storage tanks of vehicles, vessels, camping equipment, or hand portable containers designed for such purpose, shall not be carried onto or stored on the project without written permission of the District Engineer.
(b) Fires shall be confined to those areas designated by the District Engineer, and shall be contained in fireplaces, grills, or other facilities designated for this purpose. Fires shall not be left unattended and must be completely extinguished prior to departure. The burning of materials that produce toxic fumes, including, but not limited to, tires, plastic or treated wood products is prohibited.
(c) Improper disposal of lighted smoking materials, matches or other burning material is prohibited.
(a) No person shall bring or allow dogs, cats, or other pets into developed recreation areas unless penned, caged, on a leash under 6 feet in length, or otherwise physically restrained. No person shall allow animals to impede or restrict otherwise full and free use of project lands and waters by the public. All animals and pets are prohibited in swimming beaches. Animals and pets, except properly trained animals assisting the handicapped (such as seeing-eye dogs), are prohibited in sanitary facilities or other areas so designated by the District Engineer. Unclaimed or unattended animals are subject to immediate impoundment and removal in accordance with state and local laws.
(b) Persons bringing or allowing pets in designated public use areas shall be responsible for proper removal and disposal, in sanitary facilities, of any waste produced by these animals.
(c) No person shall bring or allow horses, cattle, or other livestock in camping, picnicking, swimming or other recreation areas except in areas designated by the District Engineer.
(d) Ranging, grazing, watering or allowing livestock on project lands and waters is prohibited except when authorized by lease, license or other written agreement with the District Engineer.
(e) Unauthorized livestock are subject to impoundment and removal in accordance with Federal, state and local laws.
(f) Any animal impounded under the provisions of this section may be confined at a location designated by the District Engineer, who may assess a reasonable impoundment fee. This fee shall be paid before the impounded animal is returned to its owner(s).
(a) The District Engineer may establish and post a schedule of visiting hours and/or restrictions on the public use of a project or portion of a project. The District Engineer may close or restrict the use of a project or portion of a project when necessitated by reason of public health, public safety, maintenance, or other reasons in the public interest. Entering or using a project in a manner which is contrary to the schedule of visiting hours, closures or restrictions is prohibited.
(b) Quiet shall be maintained in all public use areas between the hours of
(c) Any act or conduct by any person which interferes with, impedes or disrupts the use of the project or impairs the safety of another person is prohibited. Individuals who are boisterous, rowdy, disorderly or otherwise disturb the peace on project lands or waters may be requested to leave the project.
(d) The operation or use of any audio or other noise producing device including, but not limited to, radios, televisions, or musical instruments and motorized equipment, including vessels or vehicles, in such a manner as to unreasonably annoy or endanger persons at any time or exceed state or local laws governing noise levels from motorized equipment is prohibited.
The possession of loaded firearms, ammunition, loaded projectile firing devices, bows and arrows, crossbows, explosives or explosive devices of any kind, including fireworks, is prohibited unless:
(a) In the possession of a Federal, state or local law enforcement officer;
(b) Being used for hunting or fishing as permitted under § 327.8, with devices being unloaded when transported to, from or between hunting and fishing sites;
(c) Being used at authorized shooting ranges; or
(d) Written permission has been received from the District Engineer.
(a) Destruction, injury, defacement, removal or any alteration of public property including, but not limited to, developed facilities, natural formations, mineral deposits, historical and archaeological features, and vegetative growth, is prohibited except when in accordance with written pemission of the District Engineer.
(b) Cutting or gathering of trees or parts of trees and/or the removal of wood from project lands is prohibited without written permission of the District Engineer.
(c) Gathering of dead wood on the ground for use in designated recreation areas as firewood is permitted.
(a) Personal property of any kind shall not be abandoned, stored or left unattended upon project lands or waters. After a period of 24 hours, or at any time after a posted closure hour in a public use area, unattended personal property shall be presumed to be abandoned and may be impounded and stored at a storage point designated by the District Engineer, who may assess a reasonable impoundment fee. Such fee shall be paid before the impounded property is returned to its owner.
(b) The District Engineer shall, by public or private sale or otherwise, dispose of all lost, abandoned or unclaimed personal property that comes into Government custody or control. However, property may not be disposed of until diligent effort has been made to find the owner, heirs, next of kin or legal representative(s). If the owner, heirs, next of kin or legal representative(s) are determined but not found, the property may not be disposed of until the expiration of 120 days after the date when notice, giving the time and place of the intended sale or other disposition, has been sent by certified or registered mail to that person at the last known address. When diligent efforts to determine the owner, heirs, next of kin or legal representative(s) are unsuccessful, the property may be disposed of without delay except that if it has a fair market value of $25 or more the property may not be disposed of until 90 days after the date it is received at the storage point designated by the District Engineer. The net proceeds from the sale of property shall be covered into the Treasury of the United States as miscellaneous receipts.
(c) Personal property placed on Federal lands or waters adjacent to a private residence and/or developments of any private nature for more than 24 hours without permssion of the District Engineer shall be presumed to have been abandoned and, unless proven otherwise, such presumption will be
All articles found shall be deposited by the finder at the Resource Manager's office or with a ranger. All such articles shall be disposed of in accordance with the procedures set forth in § 327.15.
Advertising by the use of billboards, signs, markers, audio devices, handbills, circulars, posters, or any other means whatsoever, is prohibited without written permission of the District Engineer. Vessels and vehicles with semipermanent or permanent painted or installed signs are exempt as long as they are used for authorized recreational activities and comply with all other rules and regulations pertaining to vessels and vehicles.
The engaging in or solicitation of business without the express written permission of the District Engineer is prohibited.
(a) It shall be a violation of these regulations to refuse to or fail to comply with the fee requirements or other terms or conditions of any permit issued under the provisions of this part 327.
(b) Permits for floating structures (issued under the authority of § 327.30) of any kind on/in waters of water resources development projects, whether or not such waters are deemed navigable waters of the United States but where such waters are under the management of the Corps of Engineers, shall be issued at the discretion of the District Engineer under the authority of this regulation. District Engineers will delineate those portions of the navigable waters of the United States where this provision is applicable and post notices of this designation in the vicinity of the appropriate Resource Manager's office.
(c) Permits for nonfloating structures (issued under the authority of § 327.30) of any kind constructed, placed in or affecting waters of water resource development projects where such waters are deemed navigable waters of the U.S. shall be issued under the provisions of section 10 of the Act approved March 3, 1899 (33 U.S.C. 403). If a discharge of dredged or fill material in these waters is involved, a permit is required under section 404 of the Clean Water Act (33 U.S.C. 1344). (See 33 CFR parts 320-330).
(d) Permits for nonfloating structures (issued under the authority of § 327.30) of any kind in waters of water resource development projects, where such waters are under the management of the Corps of Engineers and where such waters are not deemed navigable waters of the United States shall be issued as set forth in paragraph (b) of this section. If a discharge of dredged or fill material into any water of the United States is involved, a permit is required under Section 404 of the Clean Water Act (33 U.S.C. 1344) (See 33 CFR parts 320-330). Certification may be required pursuant to section 401 of the Clean Water Act (33 U.S.C. 1341).
The construction, placement, or existence of any structure (including, but not limited to, roads, trails, signs or landscape features) of any kind under, upon, in or over the project lands or waters is prohibited unless a permit, lease, license or other appropriate written agreement has been issued by the District Engineer. The design, construction, placement, existence or use of structures in violation of the terms of the permit, lease, license or other written agreement is prohibited. The government shall not be liable for the loss of, or damage to, any private structures, whether authorized or not, placed on project lands or waters. Unauthorized structures are subject to summary removal or impoundment by the District Engineer.
(a) Special events including, but not limited to, water carnivals, boat regattas, music festivals, dramatic presentations or other special recreation programs are prohibited unless written permission has been granted by the District Engineer. An appropriate fee
(b) The public shall not be charged any fee by the sponsor of such event unless the District Engineer has approved in writing (and the sponsor has properly posted) the proposed schedule of fees. The District Engineer shall have authority to revoke permission and require removal of any equipment upon failure of the sponsor to comply with terms and conditions of the permit/permission or the regulations in this part 327.
(a) Occupying any lands, buildings, vessels or other facilities within water resource development projects for the purpose of maintaining same as a full- or part-time residence without the written permission of the District Engineer is prohibited. The provisions of this section shall not apply to the occupation of lands for the purpsose of camping, in accordance with the provisions of § 327.7.
(b) Use of project lands or waters for agricultural purposes is prohibited except when in compliance with terms and conditions authorized by lease, license or other written agreement issued by the District Engineer.
(a) In accordance with 16 U.S.C. 4601, the Corps of Engineers is required to collect special recreation use fees and/or special permit fees for the use of specialized sites, facilities, equipment or services related to outdoor recreation furnished at Federal expense.
(b) All use fees shall be fair and equitable and will be based on the following criteria (as contained in the Land and Water Conservation Fund Act of 1965, Pub. L. 88-578, as amended):
(1) The direct and indirect amount of Federal expenditure.
(2) The benefit to the recipient.
(3) The public policy or interest served.
(4) The comparable recreation fees charged by other Federal and non-Federal public agencies and the private sector within the service area of the management unit at which the fee is charged.
(5) The economic and administrative feasibility of fee collection.
(6) The extent of regular maintenance required.
(7) Other pertinent factors.
(c) Where such fees are charged, the District Engineer shall insure that clear notice of fee requirements is prominently posted at each area, and at appropriate locations therein and that the notice be included in publications distributed at such areas. Failure to pay authorized recreation use fees as established pursuant to Pub. L. 88-578, 78 Stat. 897, as amended (16 U.S.C. 4601-6a), is prohibited and is punishable by a fine of not more than $100.
(d) Any Golden Age or Golden Access Passport permittee shall be entitled, upon presentation of such a permit, to utlilize special recreation facilities at a rate of 50 percent off the established use fee at federally operated areas.
(e) At each Corps lake or reservoir where camping is permitted, the District Engineer will provide at least one primitive campground, containing designated campsites, sanitary facilities and vehicular access, where no fees will be charged.
(a) It is a Federal crime pursuant to the provisions of sections 1114 and 111 of title 18 U.S.C., to forcibly assault, resist, oppose, impede, intimidate, or interfere with any civilian official or employee of the U.S. Army Corps of Engineers engaged in the performance of his or her official duties, or on account of the performance of his or her official duties. Such actions or interference directed against a Federal employee while carrying out these regulations are also a violation of these regulations and may be a state crime pursuant to the laws of the state where they occur.
(b) Failure to comply with a lawful order issued by a Federal employee acting pursuant to these regulations
(a) Any person who violates the provisions of these regulations, other than for a failure to pay authorized recreation use fees as separately provided for in § 327.23, may be punished by a fine of not more than $500 or imprisonment for not more than six months or both and may be tried and sentenced in accordance with the provisions of section 3401 of title 18 U.S.C. Persons designated by the District Engineer shall have the authority to issue a citation for violation of these regulations, requiring the appearance of any person charged with the violation to appear before the United States Magistrate within whose jurisdiction the affected water resources development project is located. (16 U.S.C. 460d).
(b) Any person who commits an act against any official or employee of the U.S. Army Corps of Engineers that is a crime under the provisions of section 1114 or section 111 of title 18 U.S.C. or under provisions of pertinent state law may be tried and sentenced as further provided in Federal or state law, as the case may be.
Except as otherwise provided herein or by Federal law or regulation, state and local laws and ordinances shall apply on project lands and waters. This includes, but is not limited to, state and local laws and ordinances governing:
(a) Operation and use of motor vehicles, vessels, and aircraft;
(b) Hunting, fishing and trapping;
(c) Use of firearms or other weapons;
(d) Civil disobedience and criminal acts; and,
(e) Littering, sanitation and pollution.
(a)
(b)
(c)
(2) The Rivers and Harbors Act of 1894, as amended and supplemented (33 U.S.C. 1)
(3) Section 10, River and Harbor Act of 1899 (33 U.S.C. 403).
(4) National Historic Preservation Act of 1966 (Pub. L. 89-665; 80 Stat. 915) as amended (16 U.S.C. 470
(5) The National Environmental Policy Act of 1969 (42 U.S.C. 4321,
(6) The Clean Water Act (33 U.S.C. 1344,
(7) The Water Resources Development Act of 1986 (Pub. L. 99-662).
(8) Title 36, chapter III, part 327, Code of Federal Regulations, “Rules and Regulations Governing Public Use of Water Resource Development Projects Administered by the Chief of Engineers.”
(9) Executive Order 12088 (13 Oct. 78).
(10) 33 CFR parts 320-330, “Regulatory Programs of the Corps of Engineers.”
(11) ER 1130-2-400, “Management of Natural Resources and Outdoor Recreation at Civil Works Water Resource Projects.”
(12) EM 385-1-1, “Safety and Health Requirements Manual.”
(d)
(2) Private shoreline uses may be authorized in designated areas consistent with approved use allocations specified in Shoreline Management Plans. Except to honor written commitments made prior to publication of this regulation, private shoreline uses are not allowed on water resource projects where construction was initiated after December 13, 1974, or on water resource projects where no private shoreline uses existed as of that date. Any existing permitted facilities on these projects will be grandfathered until the facilities fail to meet the criteria set forth in § 327.30(h).
(3) A Shoreline Management Plan, as described in § 327.30(e), will be prepared for each Corps project where private shoreline use is allowed. This plan will honor past written commitments. The plan will be reviewed at least once every five years and revised as necessary. Shoreline uses that do not interfere with authorized project purposes, public safety concerns, violate local norms or result in significant environmental effects should be allowed unless the public participation process identifies problems in these areas. If sufficient demand exists, consideration should be given to revising the shoreline allocations (e.g. increases/decreases). Maximum public participation will be encouraged as set forth in § 327.30(e)(6). Except to honor written commitments made prior to the publication of this regulation, shoreline management plans are not required for those projects where construction was initiated after December 13, 1974, or on projects not having private shoreline use as of that date. In that case, a statement of policy will be developed by the district commander to present the shoreline management policy. This policy statement will be subject to the approval of the division commander. For projects where two or more agencies have jurisdiction, the plan will be cooperatively prepared with the Corps as coordinator.
(4) Where commercial or other public launching and/or moorage facilities are not available within a reasonable distance, group owned mooring facilities may be allowed in Limited Development Areas to limit the proliferation of individual facilities. Generally only one permit will be necessary for a group owned mooring facility with that entity, if incorporated, or with one person from the organization designated as the permittee and responsible for all moorage spaces within the facility. No charge may be made for use of any permitted facility by others nor shall any commercial activity be engaged in thereon.
(5) The issuance of a private shoreline use permit does not convey any real estate or personal property rights or exclusive use rights to the permit holder. The public's right of access and use of the permit area must be maintained and preserved. Owners of permitted facilities may take necessary precautions to protect their property from theft, vandalism or trespass, but may in no way preclude the public right of pedestrian or vessel access to the water surface or public land adjacent to the facility.
(6) Shoreline Use Permits will only be issued to individuals or groups with legal right of access to public lands.
(e)
(1)
(2)
(3)
(4)
(5)
(i)
(ii)
(iii)
(iv)
(6)
(7)
(f)
(1)
(ii) Shoreline Use Permits are required for private structures/activities of any kind (except boats) in waters of Civil Works projects whether or not such waters are deemed navigable and where such waters are under the primary jurisdiction of the Secretary of the Army and under the management of the Corps of Engineers.
(iii) Shoreline Use Permits are required for non-floating structures on waters deemed commercially non-navigable, when such waters are under management of the Corps of Engineers.
(iv) Shoreline Use Permits are also required for land vegetation modification activities which do not involve disruption to land form.
(v) Permits should be issued for a term of five years. To reduce administration costs, one year permits should be issued only when the location or nature of the activity requires annual reissuance.
(vi) Shoreline Use Permits for erosion control may be issued for the life or period of continual ownership of the structure by the permittee and his/her legal spouse.
(2)
(3)
(g)
(h)
(1) Section 6 of Pub. L. 97-140 provides that no lawfully installed dock or appurtenant structures shall be required to be removed prior to December 31, 1989, from any Federal water resources reservoir or lake project administered by the Secretary of the Army, acting through the Chief of Engineers, on which it was located on December 29, 1981, if such property is maintained in usable condition, and does not occasion a threat to life or property.
(2) In accordance with section 1134(d) of Pub. L. 99-662, any houseboat, boathouse, floating cabin or lawfully installed dock or appurtenant structures in place under a valid shoreline use permit as of November 17, 1986, cannot be forced to be removed from any Federal water resources project or lake administered by the Secretary of the Army on or after December 31, 1989, if it meets the three conditions below except where necessary for immediate use for public purposes or higher public use or for a navigation or flood control project.
(i) Such property is maintained in a usable and safe condition,
(ii) Such property does not occasion a threat to life or property, and
(iii) The holder of the permit is in substantial compliance with the existing permit.
(3) All such floating facilities and appurtenances will be formally recognized in an appropriate Shoreline Management Plan. New permits for these permitted facilities will be issued to new owners. If the holder of the permit fails to comply with the terms of the permit, it may be revoked and the holder required to remove the structure, in accordance with the terms of the permit as to notice, time, and appeal.
(i)
(j)
(k)
a. Decisions regarding permits for private floating recreation facilities will consider the operating objectives and physical characteristics of each project. In developing Shoreline Management Plans, district commanders will give consideration to the effects of added private boat storage facilities on commercial concessions for that purpose. Consistent with established policies, new commercial concessions may be alternatives to additional limited development shoreline.
b. Permits for individually or group owned shoreline use facilities may be granted only in Limited Development Areas when the sites are not near commercial marine services and such use will not despoil the shoreline nor inhibit public use or enjoyment thereof. The installation and use of such facilities will not be in conflict with the preservation of the natural characteristics of the shoreline nor will they result in significant environmental damage. Charges will be made for Shoreline Use Permits in accordance with the separately published fee schedule.
c. Permits may be granted within Limited Development Areas for ski jumps, floats, boat moorage facilities, duck blinds, and other private floating recreation facilities when they will not create a safety hazard and inhibit public use or enjoyment of project waters or shoreline. A Corps permit is not required for temporary ice fishing shelters or duck blinds when they are regulated by a state program. When the facility or activity is authorized by a shoreline use permit, a separate real estate instrument is generally not required.
d. Group owned boat mooring facilities may be permitted in Limited Development Areas where practicable (e.g. where physically feasible in terms of access, water depths, wind protection, etc.).
a. Applications for private Shoreline Use Permits will be reviewed with full consideration of the policies set forth in this and referenced regulations, and the Shoreline Management Plan. Fees associated with the Shoreline Use Permit shall be paid prior to issuing the permit. Plans and specifications of the proposed facility shall be submitted and approved prior to the start of construction. Submissions should include engineering details, structural design, anchorage method, and construction materials; the type, size, location and ownership of the facility; expected duration of use; and an indication of willingness to abide by the applicable regulations and terms and conditions of the permit. Permit applications shall also identify and locate any land-based support facilities and any specific safety considerations.
b. Permits will be issued by the district commander or his/her authorized representative on ENG Form 4264-R (Application for Shoreline Use Permit) (appendix B). Computer generated forms may be substituted for ENG Form 4264-R provided all information is included. The computer generated form will be designated, “ENG Form 4264-R-E, Oct 87 (Electronic generation approved by USACE, Oct 87)”.
c. The following are guides to issuance of Shoreline Use Permits:
(1) Use of boat mooring facilities, including piers and boat (shelters) houses, will be limited to vessel or watercraft mooring and storage of gear essential to vessel or watercraft operation.
(2) Private floating recreation facilities, including boat mooring facilities shall not be constructed or used for human habitation or in a manner which gives the appearance of converting Federal public property on which the facility is located to private, exclusive use. New docks with enclosed sides (i.e. boathouses) are prohibited.
(3) No private floating facility will exceed the minimum size required to moor the owner's boat or boats plus the minimum size required for an enclosed storage locker of oars, life preservers and other items essential to
(4) All private floating recreation facilities including boat mooring facilities will be constructed in accordance with plans and specifications, approved by the resource manager, or a written certification from a licensed engineer, stating the facility is structurally safe will accompany the initial submission of the plans and specifications.
(5) Procedures regarding permits for individual facilities shall also apply to permits for non-commercial group mooring facilities.
(6) Facilities attached to the shore shall be securely anchored by means of moorings which do not obstruct the free use of the shoreline, nor damage vegetation or other natural features. Anchoring to vegetation is prohibited.
(7) Electrical service and equipment leading to or on private mooring facilities must not pose a safety hazard nor conflict with other recreational use. Electrical installations must be weatherproof and meet all current applicable electrical codes and regulations. The facility must be equipped with quick disconnect fittings mounted above the flood pool elevation. All electrical installations must conform to the National Electric Code and all state, and local codes and regulations. In those states where electricians are licensed, registered, or otherwise certified, a copy of the electrical certification must be provided to the resource manager before a Shoreline Use Permit can be issued or renewed. The resource manager will require immediate removal or disconnection of any electrical service or equipment that is not certified (if appropriate), does not meet code, or is not safely maintained. All new electrical lines will be installed underground. This will require a separate real estate instrument for the service right-of-way. Existing overhead lines will be allowed, as long as they meet all applicable electrical codes, regulations and above guidelines, to include compatibility and safety related to fluctuating water levels.
(8) Private floating recreation facilities will not be placed so as to interfere with any authorized project purposes, including navigation, or create a safety or health hazard.
(9) The district commander or his/her authorized representative may place special conditions on the permit when deemed necessary. Requests for waivers of shoreline management plan permit conditions based on health conditions will be reviewed on a case by case basis by the Operations Manager. Efforts will be made to reduce onerous requirements when a limiting health condition is obvious or when an applicant provides a doctor's certification of need for conditions which are not obvious.
(10) Vegetation modification, including but not limited to, cutting, pruning, chemical manipulation, removal or seeding by private individuals is allowed only in those areas designated as Limited Development Areas or Protected Shoreline Areas. An existing (as of July 1, 1987) vegetation modification permit, within a shoreline allocation which normally would not allow vegetation modification, should be grandfathered. Permittees will not create the appearance of private ownership of public lands.
(11) The term of a permit for vegetation modification will be for five years. Where possible, such permits will be consolidated with other shoreline management permits into a single permit. The district commander is authorized to issue vegetation modification permits of less than five years for one-time requests or to aid in the consolidation of shoreline management permits.
(12) When issued a permit for vegetative modification, the permittee will delineate the government property line, as surveyed and marked by the government, in a clear but unobtrusive manner approved by the district commander and in accordance with the project Shoreline Management Plan and the conditions of the permit. Other adjoining owners may also delineate the common boundary subject to these same conditions. This delineation may include, but is not limited to, boundary plantings and fencing. The delineation will be accomplished at no cost to the government.
(13) No permit will be issued for vegetation modification in Protected Shoreline Areas until the environmental impacts of the proposed modification are assesed by the resource manager and it has been determined that no significant adverse impacts will result. The effects of the proposed modification on water quality will also be considered in making this determination.
(14) The original of the completed permit application is to be retained by the permittee. A duplicate will be retained in the resource manager's office.
Permits may be revoked by the district commander when it is determined that the public interest requires such revocation or when the permittee fails to comply with terms and conditions of the permit, the Shoreline Management Plan, or of this regulation. Permits for duck blinds and ice fishing shelters will be issued to cover a period not to exceed 30 days prior to and 30 days after the season.
Facilities not removed when specified in the permit or when requested after termination or revocation of the permit will be treated as unauthorized structures pursuant to 36 CFR 327.20.
Each district will procure 5
1. This permit is granted solely to the applicant for the purpose described on the attached permit.
2. The permittee agrees to and does hereby release and agree to save and hold the Government harmless from any and all causes of action, suits at law or equity, or claims or demands or from any liability of any nature whatsoever for or on account of any damages to persons or property, including a permitted facility, growing out of the ownership, construction, operation or maintenance by the permittee of the permitted facilities and/or activities.
3. Ownership, construction, operation, use and maintenance of a permitted facility are subject to the Government's navigation servitude.
4. No attempt shall be made by the permittee to forbid the full and free use by the public of all public waters and/or lands at or adjacent to the permitted facility or to unreasonably interfere with any authorized project purposes, including navigation in connection with the ownership, construction, operation or maintenance of a permitted facility and/or activity.
5. The permittee agrees that if subsequent operations by the Government require an alteration in the location of a permitted facility and/or activity or if in the opinion of the district commander a permitted facility and/or activity shall cause unreasonable obstruction to navigation or that the public interest so requires, the permittee shall be required, upon written notice from the district commander to remove, alter, or relocate the permitted facility, without expense to the Government.
6. The Government shall in no case be liable for any damage or injury to a permitted facility which may be caused by or result from subsequent operations undertaken by the Government for the improvement of navigation or for other lawful purposes, and no claims or right to compensation shall accrue from any such damage. This includes any damage that may occur to private property if a facility is removed for noncompliance with the conditions of the permit.
7. Ownership, construction, operation, use and maintenance of a permitted facility and/or activity are subject to all applicable Federal, state and local laws and regulations. Failure to abide by these applicable laws and regulations may be cause for revocation of the permit.
8. This permit does not convey any property rights either in real estate or material; and does not authorize any injury to private property or invasion of private rights or any infringement of Federal, state or local laws or regulations, nor does it obviate the necessity of obtaining state or local assent required by law for the construction, operation, use or maintenance of a permitted facility and/or activity.
9. The permittee agrees to construct the facility within the time limit agreed to on the permit issuance date. The permit shall become null and void if construction is not completed within that period. Further, the permittee agrees to operate and maintain any permitted facility and/or activity in a manner so as to provide safety, minimize any adverse impact on fish and wildlife habitat, natural, environmental, or cultural resources values and in a manner so as to minimize the degradation of water quality.
10. The permittee shall remove a permitted facility within 30 days, at his/her expense, and restore the waterway and lands to a condition accepted by the resource manager upon termination or revocation of this permit or if the permittee ceases to use, operate or maintain a permitted facility and/or activity. If the permittee fails to comply to the satisfaction of the resource manager, the district commander may remove the facility by contract or otherwise and the permittee agrees to pay all costs incurred thereof.
11. The use of a permitted boat dock facility shall be limited to the mooring of the permittee's vessel or watercraft and the storage, in enclosed locker facilities, of his/her gear essential to the operation of such vessel or watercraft.
12. Neither a permitted facility nor any houseboat, cabin cruiser, or other vessel moored thereto shall be used as a place of habitation or as a full or part-time residence or in any manner which gives the appearance of converting the public property, on which the facility is located, to private use.
13. Facilities granted under this permit will not be leased, rented, sub-let or provided to others by any means of engaging in commercial activity(s) by the permittee or his/her agent for monetary gain. This does not preclude the permittee from selling total ownership to the facility.
14. Floats and the flotation material for all docks and boat mooring buoys shall be fabricated of materials manufactured for marine use. The float and its flotation material shall be 100% warranted for a minimum of 8 years against sinking, becoming waterlogged, cracking, peeling, fragmenting, or losing beads. All floats shall resist puncture and penetration and shall not be subject to damage by animals under normal conditions for the area. All floats and the flotation material used in them shall be fire resistant. Any float which is within 40 feet of a line carrying fuel shall be 100% impervious to water and fuel. The use of new or recycled plastic or metal drums or non-compartmentalized air containers for encasement or floats is prohibited. Existing floats are authorized until it or its flotation material is no longer serviceable, at which time it shall be replaced with a float that meets the conditions listed above. For any floats installed after the effective date of this specification, repair or replacement shall be required when it or its flotation material no longer performs its designated function or it fails to meet the specifications for which it was originally warranted.
15. Permitted facilities and activities are subject to periodic inspection by authorized Corps representatives. The resource manager will notify the permittee of any deficiencies and together establish a schedule for their correction. No deviation or changes from approved plans will be allowed without prior written approval of the resource manager.
16. Floating facilities shall be securely attached to the shore in accordance with the approved plans by means of moorings which do not obstruct general public use of the shoreline or adversely affect the natural terrain or vegetation. Anchoring to vegetation is prohibited.
17. The permit display tag shall be posted on the permitted facility and/or on the land areas covered by the permit so that it can be visually checked with ease in accordance with instructions provided by the resource manager.
18. No vegetation other than that prescribed in the permit will be damaged, destroyed or removed. No vegetation of any kind will be planted, other than that specifically prescribed in the permit.
19. No change in land form such as grading, excavation or filling is authorized by this permit.
20. This permit is non-transferable. Upon the sale or other transfer of the permitted facility or the death of the permittee and his/her legal spouse, this permit is null and void.
21. By 30 days written notice, mailed to the permittee by certified letter, the district commander may revoke this permit whenever the public interest necessitates such revocation or when the permittee fails to comply with any permit condition or term. The revocation notice shall specify the reasons for such action. If the permittee requests a hearing in writing to the district commander through the resource manager within the 30-day period, the district commander shall grant such hearing at the earliest opportunity. In no event shall the hearing date be more than 60 days from the date of the hearing request. Following the hearing, a written decision will be rendered and a copy mailed to the permittee by certified letter.
22. Notwithstanding the conditions cited in condition 21 above, if in the opinion of the district commander, emergency circumstances dictate otherwise, the district commander may summarily revoke the permit.
23. When vegetation modification on these lands is accomplished by chemical means, the program will be in accordance with appropriate Federal, state and local laws, rules and regulations.
24. The resource manager or his/her authorized representative shall be allowed to cross the permittee's property, as necessary to inspect facilities and/or activities under permit.
25. When vegetation modification is allowed, the permittee will delineate the government property line in a clear, but unobtrusive manner approved by the resource manager and in accordance with the project Shoreline Management Plan.
26. If the ownership of a permitted facility is sold or transferred, the permittee or new owner will notify the Resource Manager of the action prior to finalization. The new owner must apply for a Shoreline Use Permit within 14 days or remove the facility and restore the use area within 30 days from the date of ownership transfer.
27. If permitted facilities are removed for storage or extensive maintenance, the resource manager may require all portions of the facility be removed from public property.
The amendment to § 327.30 revising the last sentence of paragraph (k), published at 56 FR 29587, June 28, 1991, was deferred indefinitely. See 56 FR 49706, Oct. 1, 1991. The administrative charges contained in § 327.30, Shoreline Management on Civil Works Projects, published in the July 1, 1991 edition of the Code of Federal Regulations will remain in effect. Any future decisions affecting this regulation will be published in the
(k) * * * The Fee Schedule is published in § 327.31.
At 63 FR 35828, July 1, 1998, Appendix A to § 327.30 was amended by revising paragraph 2c(9), and Appendix C to § 327.30 was amended by revising paragraph 14, effective Aug. 17, 1998. For the convenience of the user, the superseded text follows:
2. * * *
c. * * *
(9) The district commander of his/her authorized representative may place special conditions on the permit when deemed necessary.
14. On all new docks and boat mooring buoys, floatation shall be of materials which will not become waterlogged (not over 1
A charge will be made for Shoreline Use Permits to help defray expenses associated with issuance and administration of the permits. As permits become eligible for renewal after July 1, 1976, a charge of $10 for each new permit and a $5 annual fee for inspection of floating facilities will be made. There will be no annual inspection fee for permits for vegetative modification on Shoreline areas. In all cases the total administrative charge will be collected initially at the time of permit issuance rather than on a piecemeal annual basis.
Sec. 4 of the Act of Dec. 22, 1944, 58 Stat. 889, as amended, (16 U.S.C. 460d).
This regulation, in connection with the modification of the present prohibition of seaplane operations by the amendment to § 327.4 of title 36 of the Code of Federal Regulations, is designed to provide uniform policies and criteria for designating Corps projects, or portions thereof, at which seaplane
This regulation is applicable to all Field Operating Agencies having Civil Works responsibilities.
(a) Title 36 CFR, part 327, Rules and Regulations Governing Public Use of Water Resource Development Projects Administered by the Chief of Engineers (38 FR 7552, March 23, 1973).
(b) ER 1105-2-507.
(c) ER 1130-2-400.
(d) ER 1145-2-301.
(e) ER 1145-2-303.
(f) ER 1165-2-400.
(g) ER 405-2-800 Series.
(a) The objective of Corps of Engineers resources management is to maximize public enjoyment and use of the lands, waters, forests, and associated recreational resources, consistent with their aesthetic and biological values. Such management includes efforts to preserve and enhance the environmental amenities that are the source of the recreational value associated with the project and to allow such other new and innovative uses of the projects that are not detrimental thereto.
(b) Seaplane operations at water resource development projects administered by the Chief of Engineers may involve hazards including, but not limited to, conflicting recreational activities, floating debris, and underwater hazards, which may be accentuated by the normal fluctutations of water levels.
(c) Seaplane operations may be prohibited or restricted at such water resource development projects, or portions thereof, for a variety of management reasons. Prohibiting or restricting seaplane operations in certain portions within a project in no way implies that safety hazards to seaplane operations or to other recreation users may not exist in other portions of such project.
(d) The operation of a seaplane at Corps projects is at the risk of the plane's owner, operator, and passenger(s). The responsibility to ascertain whether seaplane operations are permitted, prohibited or restricted at such projects, and portions thereof, is incumbent upon the person(s) contemplating the use of, or using, such waters.
(a) All operations of the aircraft while upon the water shall be in accordance with the marine rules of the road for power boats or vessels.
(b) Seaplanes on project waters and lands in excess of 24 hours shall be securely moored at mooring facilities and at locations permitted by the District Engineer. Seaplanes may be temporarily moored on project waters and lands, except in areas prohibited by the District Engineer, for periods less than 24 hours providing that—
(1) The mooring is safe, secure, and accomplished so as not to damage the rights of the government or members of the public and
(2) The operator remains in the vicinity of the seaplane and reasonably available to relocate the seaplane if necessary.
(c) No commercial operation of seaplanes from project waters will be allowed without written approval of the District Engineer following consultation with and the necessary clearance from the Federal Aviation Administration (FAA) and other appropriate public authorities and affected interests.
(d) Seaplanes may not be operated at Corps projects between sunset and sunrise unless adequate lighting and supervision are available.
(e) Requests for public commercial facilities in support of seaplanes will be handled under normal concession policies.
(f) Permits for floating and nonfloating structures of any kind, in, on, or affecting project waters, under the management of the Resource Manager, including waters under lease, license or other outgrant agreement, shall be
(g) Appropriate signs should be employed to inform users of projects, or portions thereof, where seaplane operations are permitted.
(a) In order to protect the integrity and all authorized uses of Corps projects and the safety of all users of the lake projects, the District Engineer shall:
(1) Examine and investigate each Corps project within his district which a seaplane operator could conceivably attempt to use for seaplane operations, and determine those projects, or portions thereof, in which seaplane operations should be prohibited.
(2) Establish such restrictions on seaplane operations as he deems necessary or desirable in accordance with these regulations for other areas. Seaplane takeoff and landing maneuvers within specified distances of the shoreline, bridges, causeways, water utility crossings, dams, and similar structures should be prohibited.
(3) Prior to concluding any such examination and investigation, consult with the FAA, appropriate State aeronautical agency, lessee or licensee of outgranted lands, the Coast Guard, and state boating law administrators, and use his best efforts to consult with other interested or affected public authorities and private interests for their guidance, particularly for those projects which are regularly used by the public for recreational purposes or are located in the vicinity of actively used airports, air fields, or densely populated areas. News releases, public notice, and congressional liaison should be used. Public hearings are encouraged.
(4) In making his investigation, examination, and determination, consider environmental factors in accordance with the National Environmental Policy Act of 1969 (NEPA), Pub. L. 91-190—particularly should he consider the impact that seaplane operations may have on the safety at the project, aquatic, fish and wildlife, noise levels, recreation, and air and water quality. Prior to concluding such investigation and examination, he shall prepare an environmental impact assessment (EIA) and, if necessary, an environmental impact statement (EIS) assessing the environmental impacts of permitting seaplanes to operate at the projects, or portions thereof, in his district.
(5) Place on Corps maps, brochures and otherwise adequately apprise the public and interested agencies of projects, or portions thereof, where seaplane operations are prohibited or restricted. Each map, brochure, or other notice should clearly indicate that operation of a seaplane at Corps projects is at the risk of the plane's owner, operator, and/or passenger(s).
(6) Notify the FAA by letter of projects, or portions thereof, where seaplane operations are prohibited or restricted. The letter should use the words “seaplane operations prohibited,” or “seaplane operations restricted,” describe the geographical location of such areas as precisely as possible, describe any restrictions, include a telephone number for FAA to contact the District, and be sent to: Federal Aviation Administration, Area Traffic Service, Flight Services Division (AAT-432), 800 Independence Avenue SW., Washington, DC 20591.
(b) The removal of the present prohibition on seaplane operations will be effective one year from the date of publication of these regulations. The District Engineer should complete the examination, investigation, determination and notification to the FAA of projects, or portions thereof, where seaplane operations are prohibited or restricted, within one year from the date of this regulation. The District Engineer may extend the present prohibition for up to one additional year if he cannot complete his examination, investigation, determination, and notification within one year. In such event, he should notify the FAA by letter and publish other appropriate notices. Any
(c) After he has completed his examination, investigation, determination and notification of the FAA of projects, or portions thereof where seaplane operations will be prohibited or restricted, The District Engineer should periodically reevaluate his determination as additional operational data becomes available. He may modify, delete, or add projects, or portions thereof, where seaplane operations are prohibited or restricted. Except where immediate action is required, he should consult with appropriate public authorities and private interests for their guidance with regard to such actions. Notification of these actions shall be forwarded to the FAA as indicated in paragraph (a)(6) of this section.
Nothing in the preceding provisions bestows authority to deviate from rules and regulations or prescribed standards of the State Aeronautical Agency, Federal Aviation Administration, Coast Guard, or other appropriate Federal, state, or local authority.
Sec. 120 of the Water Resource Development Act of 1976, 90 Stat. 2917.
This regulation provides policy and guidance for the establishment and management of the contract law enforcement program including preparation of and management of contracts ensuing from this program.
This regulation is applicable to all field operating agencies having responsibilities for Civil Works water resource development projects.
(a) Section 4 of the Flood Control Act of 1944, as amended (16 U.S.C. 460d).
(b) Section 234 of the River and Harbor and Flood Control Act of 1970 (Pub. L. 91-611, 84 Stat. 1818).
(c) Section 120 of the Water Resource Development Act of 1976 (Pub. L. 94-587, 90 Stat. 2917).
(d) 36 CFR chapter III.
(e) ER 190-2-3.
(f) ER 190-3-4.
(a) Section 120(a) of reference § 330.3(c) authorizes the Secretary of the Army, acting through the Chief of Engineers, to contract with States and their political subdivisions for the purpose of obtaining increased law enforcement services at water resource development projects under the jurisdiction of the Secretary of the Army to meet needs during peak visitation periods.
(b) Further, section 120(b) of the Act authorizes a maximum appropriation of up to $6,000,000 per fiscal year for the fiscal years ending 30 September 1978 and 30 September 1979, to carry out section 120(a).
(a) It is the policy of the Corps of Engineers to provide, to the extent of its authorities, a safe and healthful environment for public use of lands and waters at Civil Works water resource development projects. To insure this safe and healthful environment, and to augment the citation authorities granted to the Corps of Engineers by reference § 330.3(b), District Engineers, subject to the authority of the Division Engineers, as set out below, are hereby delegated the authority to contract with States or their political subdivisions to obtain increased law enforcement services at Civil Works water resource development projects. Division Engineers are hereby delegated the authority to approve any minor deviations from this
(b) Contracts for law enforcement services, as authorized in § 330.5(a), shall be subject to the terms and conditions as provided for within this regulation and in accordance with standard contracting and accounting procedures applicable to the Corps of Engineers.
(c) This regulation is not intended to diminish or otherwise limit the existing law enforcement responsibilities of the State or local law enforcement agencies.
(d) Contract law enforcement personnel shall not be given Federal citation authority for enforcement of regulations contained in title 36 of the Code of Federal Regulations, Chapter III nor shall they be empowered to enforce such regulations. These regulations shall remain the responsibility of the Corps of Engineers.
(e) Contracts for increased law enforcement shall be for those projects or portions of projects that are operated and maintained by the Corps of Engineers. Law enforcement services will not be provided under this program to those outgrant areas operated and maintained by a non-Federal sponsor.
(a) In order to provide reimbursement for law enforcement services supplied by a State or local law enforcement agency, a contract must be executed and approved in accordance with this regulation prior to the provisions of such services.
(b) The authorized contract law enforcement program extends only to 30 September 1979. Law enforcement services acquired by contract under this program shall be limited to those increased law enforcement services required to meet the needs of the public during peak visitation periods. Accordingly, the contract period shall not extend beyond the dates of 1 April through 30 September inclusive, and in no event shall the contract be written for more than 120 days within that time period. The contract may provide for an option to renew for a similar, additional period not to exceed 120-day period in Fiscal Year 1979. Any exceptions to this criteria must be approved by the Chief of Engineers or his authorized representative.
(c) Contracts shall be consummated only with those public law enforcement agencies legally empowered to enforce State and local criminal and civil laws within their respective political jurisdictions. In light of this requirement and the authority cited in § 330.3(c), it is recognized that sole source negotiations may necessarily be utilized in the procurement of these services. In negotiating law enforcement contracts with these agencies the District Engineer must determine the reasonableness of the price for the law enforcement services offered under the contract. Such a determination shall be made prior to execution of the contract, in accordance with the applicable Contract Cost Principles and Procedures as set out in ASPR, section 15, part 7, and as subject to the policies contained in this regulation. Such a determination shall be contained in the official contract file and must accompany any requests for deviations from the Division Engineer or Chief of Engineers as provided for in § 330.5(a) of this regulation. Contract law enforcement personnel must meet all the qualifications, including minimal law enforcement training, required by State and local laws and regulations.
(d) The contractor shall provide all personnel, equipment and supplies which are required to provide the increased law enforcement services contracted for by the District Engineer. The Corps of Engineers shall not reimburse the contractor for the purchase of any equipment or supplies desired by the contractor for use under this program. However, the Corps of Engineers shall reimburse the contractor for the reasonable costs incurred by him in the rental or use of such equipment which is allocated to the work performed by him under the contract. Such use shall include:
(1) A depreciation or use allowance for such equipment as determined by the service life evaluation system used by the contractor, and (2) the costs of necessary maintenance, repair, and upkeep of the property which neither adds to the permanent value of the property nor appreciably prolongs its intended life, but keeps it at an efficient operating condition.
(e) Reimbursement for law enforcement services shall be considered only for increased law enforcement services to meet needs during peak visitation periods. Each District Engineer shall evaluate and establish a normal law enforcement service standard for each contract situation and include such standard in the plan of operation to be developed in accordance with § 330.6(h). Each District Engineer shall evaluate the existing law enforcement services now being provided by State or local law enforcement agencies at those water resources projects or recreation areas where it is anticipated that law enforcement service contracts may be executed, and determine the scope including the type and amount, of law enforcement service which exceeds the normal law enforcement standard, and which will become eligible for reimbursement under the contract. Normally, requests by the District Engineer or his authorized representative for emergency or unanticipated law enforcement assistance will be considered nonreimbursable. Increased law enforcement services, eligible for reimbursement under the terms of the contract, shall be those regularly scheduled patrols or surveillance in excess of the normal law enforcement standard presently being provided by the contractor.
(f) An appropriate orientation program will be given by Corps personnel to all contract law enforcement personnel assigned to Corps projects. The purpose of this orientation will be to familiarize the contract law enforcement personnel with the policies and procedures of the Corps of Engineers, and to familiarize Corps personnel with the functions and duties of the State or local law enforcement agency. The Corps of Engineers shall reimburse the contractor for the cost per man hour as set out in § 330.6(h)(4) for attending the orientation program.
(g) The contractor shall be required to keep a record of the services provided to the District under the terms and conditions of the contract in accordance with the criteria established in the plan of operation required in § 330.6(h).
(h) The District Engineer, in cooperation with the Contractor, shall prepare a Plan of Operation for the Provision of law enforcement services as an attachment to the contract. The Plan of Operation shall contain, but not necessarily be limited to, the following information:
(1) Identify, by name and location, the project or projects and specific areas (recreation and others) that require law enforcement services.
(2) Describe the normal law enforcement services to be provided by the Contractor without reimbursement by the Government (see § 330.6(e)). Identify time of day, number of hours-per-day number of days-per-week, and the number of patrols.
(3) Describe the increased law enforcement services to be provided by the Contractor under the contract. Identify the time-of-day, number of hours-per-day, number of days-per-week, number of patrols, manpower per patrol, and effective starting and ending dates.
(4) Identify the cost-per-man-hour for the provision of reimbursable law enforcement services, and identify the costs for utilization and operation, maintenance and repair of such equipment as allocated for use under the contract. (See § 330.6(d).)
(5) The District Engineer and the Contractor should designate specific individuals to issue or receive requests for reimbursable law enforcement services under the contract.
(6) Describe the billing procedures to be utilized for the increased law enforcement services. The Contractor shall provide, at a minimum, the total charges, the number of hours involved, and starting and ending dates of the billing period.
(7) The Contractor shall prepare a Daily Law Enforcement Log (see § 330.6(g) for the law enforcement services rendered as specified in
(a) Section 330.3(c) sets forth the maximum authorized funds for law enforcement contracting in FY 1978 and FY 1979. The Division funding levels for FY 1978 are based on information as previously submitted.
(b) The FY 1979 funding request for law enforcement contracting will be submitted as part of the FY 1979 budget submittal.
(RCS-DAEN-CWO-53) The Division Engineer will submit a consolidated annual report to reach HQDA (DAEN-CWO-R) WASH DC 20314 not later than 30 October. This requirement expires 30 October 1979. The report will contain the following:
(a) Districts reporting.
(b) Number assigned each contract.
(c) Name of projects covered under each contract.
(d) Number of man-hours of increased law enforcement services provided under each contract.
(e) Total contract cost.
(f) Cost per man-hour for each contract.
(g) Corps of Engineers administrative or overhead costs associated with each contract.
(h) Number of arrests and type of offense committed, i.e., assault, burglary, auto theft, etc.
(i) The Division Engineers assessment of the effects of the contract law enforcement program and recommendation.
Pub. L. 97-137.
(a) The regulations contained in this part apply to those lands and waters within the established boundary of the Falls of the Ohio National Wildlife Conservation Area (WCA). Included in this boundary, which was published in the
(b) The WCA boundary encompasses an existing hydroelectric generating station and the McAlpine Locks and Dam, operating navigation structures which are part of the authorized Ohio River Navigation System. The continued operation and maintenance of this system take precedence over the purposes of the WCA, except that such operation and maintenance will be consistent with the basic purpose of the WCA as regards prohibition of hunting, vandalism, and dumping of refuse. Management of the WCA to achieve its intended purposes will, to the extent practicable, be accomplished in a manner consistent and compatible with continued generation of electricity and navigation on the Ohio River, including operation and maintenance of the McAlpine Locks and Dam and the Louisville Repair Station and material storage areas located on Shippingport Island.
(a) It is the policy of the Secretary of the Army, acting through the Chief of Engineers, to manage the natural and cultural resources of the WCA in the public interest, providing the public with safe and healthful recreational opportunities while protecting and enhancing these resources.
(b) Unless otherwise indicated herein, the term
(c) The WCA shall be available to the public without regard to sex, race, color, creed or national origin. No lessee, licensee or concessionaire providing a service to the public shall discriminate against any person because of sex, race, creed, color, or national origin in the conduct of the operations under the lease, license, or concession contract.
Unless authorized in writing by the District Engineer:
(a) The hunting, trapping, catching, molesting, killing, or having in possession any wild animal or bird, or taking the eggs of any such bird, is prohibited.
(b) Possession of equipment (including, but not limited to, firearms, ammunition, traps, projectile firing devices including bow and arrow) which could be used for hunting, trapping, or the taking of wildlife, is prohibited.
Unless otherwise authorized in writing by the District Engineer:
(a) Fishing is only permitted in accordance with the laws and regulations of the State within whose exterior boundaries that portion of the WCA is located, and such laws and regulations which are now or may hereafter be in effect are hereby adopted as part of these regulations.
(b) Fishing by means of the use of drugs, poisons, explosives, bow and arrow or electricity is prohibited.
(c) Commercial fishing and fishing with gill nets, trammel nets, hoop nets, bow and arrow or trot lines is prohibited.
Unless otherwise authorized in writing by the District Engineer.
(a) The possession or use of fireworks is prohibited.
(b) The possession or use of explosives is prohibited.
Unless otherwise authorized in writing by the District Engineer, the destruction, injury, defacement, removal, or any alteration of public property including, but not limited to natural formations, paleontological features, historical and archaeological features and vegetative growth is prohibited. Any such destruction, removal, or alteration of public property shall be in accordance with the conditions of any permission granted.
(a) Garbage, trash, rubbish, litter, or any other waste material or waste liquid generated on the WCA shall be removed from the area or deposited in receptacles provided for that purpose. The improper disposal of such wastes within the boundaries of the WCA is prohibited.
(b) The use of refuse containers for the disposal of refuse not generated on the WCA is prohibited.
(c) It is a violation to bring any material onto the WCA for the purpose of disposal.
(d) The discharge or placing of sewage, galley waste, garbage, refuse or pollutants into the WCA waters from any vessel or watercraft is prohibited.
(a) Picnicking is permitted only in designated areas.
(b) Picnickers shall remove all personal equipment and clean their sites upon departure.
Camping is not permitted within the WCA.
Swimming is prohibited unless authorized in writing by the District Engineer.
(a) Special events including, but not limited to, water carnivals, boat regattas, music festivals, dramatic presentations, or other special recreation programs are prohibited unless written permission has been granted by the District Engineer.
(b) The public shall not be charged any fee by the sponsor of such permitted event unless the District Engineer has approved in writing the proposed schedule of fees. The District Engineer shall have authority to revoke permission and require removal of any equipment upon failure of the sponsor to comply with terms and conditions of the permit/permission. Any violation shall constitute a separate violation for each calendar day in which it occurs.
(a) The use of a vehicle off roadways is prohibited except as may be authorized by the District Engineer.
(b) Vehicles shall not be parked in violation of any posted restriction, or in such a manner as to endanger any Federal property to include natural features. The owner of any vehicle parked in violation of this section shall be presumed to have parked it, and unless rebutted such presumption will be sufficient to sustain a conviction as provided for in § 331.25.
(c) Vehicles shall be operated in accordance with all posted regulations.
(d) Driving or operating any vehicle in a careless, negligent, or reckless manner, heedlessly or in willful disregard for the safety of other persons, or in such manner as to endanger any property or environmental feature, or without due care or at a speed greater than is reasonable and prudent under prevailing conditions with regard to traffic, weather, road, light and surface conditions, is prohibited.
(e) This section pertains to all vehicles, including, but not limited to, automobiles, trucks, motorcycles, minibikes, trail bikes, snowmobiles, dune buggies, all terrain vehicles, bicycles, trailers, campers, or any other such equipment.
(f) Except as authorized by the District Engineer, no person shall operate any motorized vehicle without a proper and effective exhaust muffler, or with an exhaust muffler cutout open, or in any other manner which renders the exhaust muffler ineffective in muffling the sound of engine exhaust.
(a) Vessels or other watercraft may be operated in the WCA waters except in prohibited or restricted areas in accordance with posted regulations and applicable Federal, State and local laws.
(b) All vessels when not in actual use shall be removed from the WCA unless securely moored at mooring facilities approved by the District Engineer. The placing of floating or stationary mooring facilities to, or interfering with, a buoy, channel marker, or other navigational aid is prohibited.
(c) The operation of vessels or other watercraft in a careless, negligent, or reckless manner so as to endanger any property (including the operator and/or user(s) of the vessel or watercraft) is prohibited.
(a) The operation of aircraft on WCA lands and waters is prohibited, unless authorized in writing by the District Engineer.
(b) Except in extreme emergencies threatening human life or serious property loss, the air delivery of any person or thing by parachute, helicopter, or other means onto project lands or waters without written permission of the District Engineer is prohibited.
(c) The provisions of this section shall not be applicable to aircraft engaged on official business of the Federal Government or used in emergency rescue in accordance with the directions of the District Engineer.
Open fires are prohibited unless confined to fireplaces, grills, or other facilities designed for this purpose as designated by the District Engineer. Fires shall not be left unattended and must be completely extinguished prior to departure.
Interference with any Government employee in the conduct of his or her official duties pertaining to the administration of these regulations is prohibited. It is a violation to fail to comply with a lawful order directed by any Government employee or to knowingly give any false, fictitious, or fraudulent report or other information to any government employee in the performance of his or her official duties pertaining to the administration of these regulations.
All activities in connection with prospecting, exploration, development, mining or other removal or the processing of mineral resources and all uses reasonably incident thereto are prohibited.
The District Engineer may establish and post a schedule of visiting hours and/or restrictions on the public use of a portion or portions of the WCA. The District Engineer may close or restrict the use of the WCA or portion of the WCA when necessitated by reason of public health, public safety, security, maintenance, or other reasons in the public interest. Entering or using the project in a manner which is contrary to the schedule of visiting hours, closure or restrictions is prohibited.
Unless otherwise authorized in writing by the District Engineer, the engaging in or solicitation of business or money is prohibited.
Unless otherwise authorized in writing by the District Engineer, advertising by the use of billboards, signs, markers, audio devices, or any other means whatsoever including handbills, circulars, and posters is prohibited. Vessels or vehicles with semipermanent or permanently installed signs are exempt if being used for authorized recreational activities or special events and in compliance with all other rules and regulations pertaining to vessels and vehicles.
The construction, placing, or continued existence of any structure of any kind under, upon, in, or over WCA lands or waters is prohibited unless a permit, lease, license, or other appropriate written agreement therefor has been issued by the District Engineer. Structures not so authorized are subject to summary removal or impoundment by the District Engineer. The design, construction, placing, existence, or use of structures in violation of the terms of the permit, lease, license, or other written agreement therefor is prohibited.
(a) Personal property of any kind left unattended upon WCA lands or waters
(b) If abandoned property is not claimed by its owner within 3 months after the date it is received at the storage point designated by the District Engineer, it may be disposed of by public or private sale or by other means determined by the District Engineer. Any net proceeds from the sale of property shall be conveyed unto the Treasury of the United States as miscellaneous receipts.
(a) No person shall bring or allow horses, cattle, or other livestock in the WCA.
(b) No person shall bring dogs, cats, or other pets into the WCA unless penned, caged, or on a leash under 6 feet in length, or otherwise under physical restraint at all times. Unclaimed or unattended animals are subject to immediate impoundment and removal in accordance with State and local laws.
It shall be a violation of these regulations to refuse to or fail to comply with the terms or conditions of any permit isued by the District Engineer.
Anyone violating the provisions of this regulation shall be subject to a fine of not more than $500 or imprisonment for not more than 6 months, or both. All persons designated by the Chief of Engineers, U.S. Army Corps of Engineers, for that purpose shall have the authority to issue a citation for the violation of these regulations, requiring the appearance of any person charged with violation to appear before the U.S. Magistrate within whose jurisdiction the violation occurred.
E.O. 11222, 30 FR 6469, 3 CFR 1965 Supp.; 5 CFR 735.101
Pursuant to 5 CFR 735.104(f), the American Battle Monuments Commission (referred to hereinafter as the agency) hereby adopts the following sections of part 735 of title 5, Code of Federal Regulations: §§ 735.101, 735.102, 735.201a, 735.202 (a), (d), (e), (f), 735.210, 735.302, 735.303(a), 735.304, 735.305(a), 735.403(a), 735.404, 735.405, 735.407—735.411, 735.412 (b) and (d). These adopted sections are modified and supplemented as set forth in this part.
Each statement of employment and financial interests submitted under this part shall be reviewed by the Officer in Charge, U.S. Office, except those of the Officer in Charge, U.S. Office, and the Secretary, American Battle Monuments Commission. The statement of the Officer in Charge, U.S. Office, shall be reviewed by the Secretary of the American Battle Monuments Commission. The statement of the Secretary, American Battle Monuments Commission, shall be reviewed by the Chairman of the Agency. When a review indicates a conflict between the interests of an employee or special Government employee of the agency and the performance of his services for the Government, the reviewer shall have the indicated conflict brought to the attention of the employee or special Government employee, grant the employee or special Government employee an opportunity to explain the indicated conflict, and attempt to resolve the indicated conflict. If the indicated conflict cannot be resolved, the reviewer shall forward a written report on the indicated conflict to the Chairman, American Battle Monuments Commission, through the counselor for the agency designated under 5 CFR 735.105(a).
An employee or special Government employee of the agency who violates any of the regulations in this part or adopted under § 400.735-1 may be disciplined. The disciplinary action may be in addition to any penalty prescribed by law for the violation. In addition to or in lieu of disciplinary action, remedial action to end conflicts or appearance of conflicts of interest may include but is not limited to:
(a) Changes in assigned duties;
(b) Divestment by the employee or special Government employee of his conflicting interest; or
(c) Disqualification for a particular assignment.
The agency authorizes the exceptions to 5 CFR 735.202(a) set forth in 5 CFR 735.202(b) (1)-(4).
An employee of the agency may engage in outside employment or other outside activity not incompatible with the full and proper discharge of the duties and responsibilities of his Government employment. An employee who engages in outside employment shall report that fact in writing to his supervisor.
(a) Special Government employees of the agency shall adhere to the standards of conduct applicable to employees as set forth in this part and adopted under § 400.735-1, except 5 CFR 735.203(b).
(b) Special Government employees of the agency may teach, lecture, or write in a manner not inconsistent with 5 CFR 735.203(c).
(c) Pursuant to 5 CFR 735.305(b), the agency authorizes the same exceptions concerning gifts, entertainment, and favors for special Government employees as are authorized for employees by § 400.735-4.
(a) In addition to the employees required to submit statements of employment and financial interests under 5 CFR 735.403(a), employees in the following named positions shall submit statements of employment and financial interests:
(1) Secretary;
(2) Officer in Charge, U.S. Office;
(3) Officer in Charge, European Office;
(4) Chief Maintenance Division, European Office;
(5) Chief Purchasing and Contracting Branch, European Office;
(6) Officer in Charge, Mediterranean Office;
(7) Superintendent, Manila American Cemetery.
(b) Each statement of employment and financial interests required by this section shall be submitted to:
(c) An employee who believes that his position has been improperly included in this section as one requiring the submission of a statement of employment and financial interests may obtain a review of his complaint under the agency's grievance procedure.
Notwithstanding the filing of the annual supplementary statement required by 5 CFR 735.406, each employee shall at all times avoid acquiring a financial interest that could result, or taking an action that would result, in a violation of the conflicts-of-interest provisions of section 208 of title 18 U.S.C. or the regulations in this part or adopted under § 400.735-1.
Sec. 3, 70 Stat. 640, 641; 5 U.S.C. 132 note, 36 U.S.C. 123-125; E.O. 6614, E.O. 9704, 11 FR 2675, 3 CFR 1949-53 Comp., p. 519, E.O. 10057, 10087, 14 FR 2585, 7287, 3 CFR 1949-1953 Comp., pp. 269, 285.
Federal Government agencies, American citizens, States, municipalities, or associations desiring to erect war memorials outside the continental limits of the United States should proceed as follows:
(a) Submit general idea of the memorial to the American Battle Monuments Commission, with a request for the tentative allocation of the site desired.
(b) When site is provisionally allocated, prepare and submit the design of the memorial, together with the inscription, for approval. The design of the memorial will then be referred, in accordance with law, by the Commission to the National Commission of Fine Arts for its approval.
(c) After a site is allocated and the design and inscription are approved, the American Battle Monuments Commission will, if the sponsors so desire, consult with the foreign government concerning the question of securing approval for the erection of the memorial.
(d) When the approval of the foreign government is obtained, the Commission will cooperate, if the sponsors so desire, in obtaining the ground and erection of the memorial. Such cooperation may include construction of
Sec. 3, 70 Stat. 640, 641; 5 U.S.C. 132 note, 36 U.S.C. 123, 125; E.O. 6614, E.O. 9704, 11 FR 2675, 3 CFR 1943-1948 Comp., p. 519, E.O. 10057, 10087, 14 FR 2585, 7287, 3 CFR, 1949-1953 Comp., pp. 269, 285.
(a) No administrative agency of the United States shall give assistance to American citizens, States, municipalities, or associations in erecting any war memorial outside the continental United States unless the plan has been approved in accordance with § 401.1 above.
(b) It is the opinion of the Commission that no battlefield memorial should be erected to any unit smaller than a division or comparable unit or to an individual, unless the services of such unit or individual clearly were of such distinguished character as to warrant a separate memorial.
(c) It is the opinion of the Commission that, as a general rule, memorials should be erected to organizations rather than to troops from a particular locality of the United States.
(d) The policy of the Commission is to approve plans for memorials in foreign countries only in cases in which the sponsors make adequate and permanent arrangements for their maintenance. If the sponsors so desire, the Commission will maintain such memorials, including those previously existing which it deems worthy of preservation, using funds provided by the sponsors; in such cases it will make user charges in accordance with general Government policy.
Sec. 3, 70 Stat. 641; 36 U.S.C. 123; E.O. 6614, Feb. 26, 1934; E.O. 9704, 3 CFR, 1943-1948 Comp., 519; E.O. 10057, 10087, 3 CFR 1949-1953 Comp., pp. 269, 285.
(a) No memorial monuments or buildings shall be placed in these cemeteries unless the design and site have been approved by the American Battle Monuments Commission. No steps toward the erection of any memorial monument or building in these cemeteries should be taken until the idea has first been approved by the American Battle Monuments Commission.
(b) There shall be no variation in the types of headstones officially adopted for use in American cemeteries located outside the United States and its Territories and possessions.
5 U.S.C. 552.
These guidelines prescribe procedures to obtain information and records of the American Battle Monuments Commission under the Freedom of Information Act of 1986, 5 U.S.C. 552(a)(4)(A)(i).
Public requests for information from the records of the American Battle Monuments Commission should be sent to the Freedom of Information Representative, American Battle Monuments Commission, Room 5127, Casimir Pulaski Building, 20 Massachusetts Ave., NW., Washington, DC 20314. They may also be sent to its field offices at the addresses listed below:
(a) Officer-in-Charge, European Office, American Battle Monuments Commission, APO New York 09777.
(b) Officer-in-Charge, Mediterranean Office, American Battle Monuments Commission, APO New York 09794.
(c) Superintendent, Manila American Cemetery, FPO San Francisco 96528.
(d) Superintendent, Corozal American Cemetery, The American Battle Monuments Commission, Attn: AFZU-AG-CRB, Drawer
(e) Superintendent, Mexico City National Cemetery, American Battle Monuments Commission, c/o U.S. Embassy, Mexico, P.O. Box 3087, Laredo, TX 78044-3087.
(a) Except for records and information exempted from disclosure by 5 U.S.C. 552(a)(1), all records of the Commission or in its custody are available to any person who requests them.
(b) Requests for information from the public will be honored within ten working days unless the confidentiality of such information is protected by law, or when it is necessary to search and/or collect records in separate offices or another office of the Commission, which would usually require more than ten working days.
(c) Whenever information cannot be dispatched within ten work days after receipt of request, an interim reply will be sent informing the requester of the status of the request.
(d) The records of the ABMC may be examined and copied between the hours of 8:00 a.m. and 3:30 p.m., Monday through Friday under the supervision of the Freedom of Information representative.
(a) Letters denying confidential information will be dispatched within ten working days of receipt of the request and will be signed by one of the below listed personnel:
(1) Officer-in-Charge, ABMC European Office.
(2) Officer-in-Charge, ABMC Mediterranean Office.
(3) Directors, ABMC Washington Office.
(4) Secretary, ABMC.
(b) Letters denying access to information will:
(1) Provide the requester with the reason for denial,
(2) Inform the requester of his or her right to appeal the denial within 30 days,
(3) Give the name of the official to whom the appeal may be sent.
(c) If an unusual circumstance delays a decision concerning access to information, the requester will be informed of the delay within ten working days of the request's initial receipt. In no case will the decision be delayed more than 20 working days from initial receipt of the request.
(d) A copy of each denial of information will be furnished to the Secretary, ABMC at the time of its dispatch.
(a) The Secretary is the appellate authority for all denials except those which he authors. The Chairman is the appellate authority for denials authored by the Secretary.
(b) The requester will be informed of the decision on his or her appeal within 20 working days after its receipt. If the denial is upheld, the requester will be advised that there are provisions for judicial review of such decisions under the Freedom of Information Act.
(c) In the event a court finds that the American Battle Monuments Commission has arbitrarily and capriciously withheld information from the public and a subsequent Office of Personnel
While most information will be furnished promptly at no cost as a service to the general public, fees will be charged if the cost of search and duplication warrants. In those instances where ABMC deems it necessary to charge a fee, ABMC shall use the most efficient and least costly methods to comply with requests for documents, drawings, photographs, and any other materials made available under the FOIA. The Freedom of Information Representative shall charge the fees stated in paragraphs (a) through (g) of this section. The Freedom of Information Representative shall, however, waive the fees in the circumstances stated in § 404.9. The specific fees which ABMC shall charge the requester when so required by the FOIA are as follows:
(a)
(b)
(c)
(d) $2.00 for each 8 x 10 inch black and white photograph.
(e) $3.00 for each 8 x 10 inch color photograph.
(f) $1.75 per cemetery booklet.
(g) $1.50 per lithograph.
(a)
(2)
(3)
(4)
(i) ABMC estimates that the charges may exceed $25.00. In such an event, ABMC shall notify the requester of the estimated cost and may require an advance payment of an amount up to the full amount of estimated charges; or
(ii) A requester has previously failed to pay a fee within 30 days of the date
(iii) When ABMC acts under paragraph (a)(4)(i) or (ii) of this section, the administrative time limits prescribed in § 404.3 will begin only after ABMC has received fee payments described above.
(5)
(6) ABMC will not defray cost sending records by special methods such as express mail or for transportation of personnel.
(b)
There are four categories of FOIA requesters: Commercial; educational and noncommerical scientific institutions; representatives of the news media; and all others. The fees to be charges each of these categories of requesters are as follows:
(a)
(b)
(c)
(d)
The Freedom of Information Representative shall waive all fees assessed under 404, if the following two conditions are satisfied: Disclosure of the information is in the public interest as it is likely to contribute significantly to public understanding of the operations or activities of the government; and disclosure is not primarily in the commercial interest of the requester. The Freedom of Information
(a) The Freedom of Information Representative shall maintain record of:
(1) The total amount of fees collected by ABMC under this part;
(2) The number of denials of requests for records or information made under this part and the reason for each;
(3) The number of appeals from such denials, together with the results of such appeals, and the reasons for the action upon each appeal that results in a denial of information or documents;
(4) The name and title or position of each person responsible for each denial of records and the number of instances of each;
(5) The results of each proceeding conducted under 5 U.S.C. 552(a)(4)(F), including a report of the disciplinary action against the official or employee primarily responsible for improperly withholding records, or an explanation of why disciplinary action was not taken;
(6) A copy of every rule made by this agency affecting or implementing 5 U.S.C. 552;
(7) A copy of the fee schedule for copies of records and documents requested under this part; and
(8) All other information that indicates efforts to administer fully the letter and spirit of the Freedom of Information Act and the above rules.
(b) The Freedom of Information Act Representative shall annually, within 60 days following the close of each calendar year, prepare a report covering each of the categories of records to be maintained in accordance with the foregoing and submit the same to the Speaker of the House of Representatives and the President of the Senate for referral to the appropriate committees of the Congress.
5 U.S.C. 552, as amended.
(a) While most information will be furnished promptly at no cost as a service to the general public, fees will be charged if the cost of search and duplication warrants.
(b) When a fee is to be charged, the individual requesting the information will be informed of the fee, and no work will be performed until he or she has agreed to pay it.
Fees which may be charged by this Commission for search and duplication of records are as follows:
(a)
(2) $1.50 per 8×10 inch black and white print of photographs.
(3) $2.50 per 8×10 inch color print of photographs.
(b)
(2) $215.00 for selective extracts from Commission computer tapes.
(3) Transportation costs of personnel and records arising from searches for requested information.
29 U.S.C. 794.
This part effectuates section 119 of the Rehabilitation, Comprehensive Services, and Developmental Disabilities Amendments of 1978, which amended section 504 of the Rehabilitation Act of 1973 to prohibit discrimination on the basis of handicap in programs or activities conducted by Executive agencies or the United States Postal Service.
This part applies to all programs or activities conducted by the agency.
For purposes of this part, the term—
As used in this definition, the phrase:
(1)
(i) Any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one of more of the following body systems: Neurological; musculoskeletal; special sense organs; respiratory, including speech organs; cardiovascular; reproductive; digestive; genitourinary; hemic and lymphatic; skin; and endocrine; or
(ii) Any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities. The term
(2)
(3)
(4)
(i) Has a physical or mental impairment that does not substantially limit major life activities but is treated by the agency as constituting such a limitation;
(ii) Has a physical or mental impairment that substantially limits major life activities only as a result of the attitudes of others toward such impairment; or
(iii) Has none of the impairments defined in subparagraph (1) of this definition but is treated by the agency as having such an impairment.
(1) With respect to any agency program or activity under which a person is required to perform services or to achieve a level of accomplishment, a handicapped person who meets the essential eligibility requirements and who can achieve the purpose of the program or activity without modifications in the program or activity that the agency can demonstrate would result in a fundamental alteration in its nature; or
(2) With respect to any other program or activity, a handicapped person who meets the essential eligibility requirements for participation in, or receipt of benefits from, that program or activity.
(3)
(a) The agency shall, by April 9, 1987, evaluate its current policies and practices, and the effects thereof, that do not or may not meet the requirements of this part, and, to the extent modification of any such policies and practices is required, the agency shall proceed to make the necessary modifications.
(b) The agency shall provide an opportunity to interested persons, including handicapped persons or organizations representing handicapped persons, to participate in the self-evaluation process by submitting comments (both oral and written).
(c) The agency shall, until three years following the completion of the self-evaluation, maintain on file and make available for public inspections:
(1) A description of areas examined and any problems identified, and
(2) A description of any modifications made.
The agency shall make available to employees, applicants, participants, beneficiaries, and other interested persons such information regarding the provisions of this part and its applicability to the programs or activities conducted by the agency, and make such information available to them in such manner as the head of the agency finds necessary to apprise such persons of the protections against discrimination assured them by section 504 and this regulation.
(a) No qualified handicapped person shall, on the basis of handicap, be excluded from participation in, be denied the benefits of, or otherwise be subjected to discrimination under any program or activity conducted by the agency.
(b)(1) The agency, in providing any aid, benefit, or service, may not, directly or through contractual, licensing, or other arrangements, on the basis of handicap—
(i) Deny a qualified handicapped person the opportunity to participate in or benefit from the aid, benefit, or service;
(ii) Afford a qualfied handicapped person an opportunity to participate in or benefit from the aid, benefit, or service that is not equal to that afforded others;
(iii) Provide a qualified handicapped person with an aid, benefit, or service that is not as effective in affording equal opportunity to obtain the same result, to gain the same benefit, or to reach the same level of achievement as that provided to others;
(iv) Provide different or separate aid, benefits, or services to handicapped persons or to any class of handicapped persons than is provided to others unless such action is necessary to provide qualified handicapped persons with aid, benefits, or services that are as effective as those provided to others;
(v) Deny a qualified handicapped person the opportunity to participate as a member of planning or advisory boards; or
(vi) Otherwise limit a qualified handicapped person in the enjoyment of any right, privilege, advantage, or opportunity enjoyed by others receiving the aid, benefit, or service.
(2) The agency may not deny a qualified handicapped person the opportunity to participate in programs or activities that are not separate or different, despite the existence of permissibly separate or different programs or activities.
(3) The agency may not, directly or through contractual or other arrangements, utilize criteria or methods of administration the purpose or effect of which would—
(i) Subject qualified handicapped persons to discrimination on the basis of handicap; or
(ii) Defeat or substantially impair accomplishment of the objectives of a program or activity with respect to handicapped persons.
(4) The agency may not, in determining the site or location of a facility, make selections the purpose or effect of which would—
(i) Exclude handicapped persons from, deny them the benefits of, or otherwise subject them to discrimination under any program or activity conducted by the agency; or
(ii) Defeat or substantially impair the accomplishment of the objectives of a program or activity with respect to handicapped persons.
(5) The agency, in the selection of procurement contractors, may not use criteria that subject qualified handicapped persons to discrimination on the basis of handicap.
(c) The exclusion of nonhandicapped persons from the benefits of a program limited by Federal statute or Executive order to handicapped persons or the exclusion of a specific class of handicapped persons from a program limited by Federal statute or Executive order to a different class of handicapped persons is not prohibited by this part.
(d) The agency shall administer programs and activities in the most integrated setting appropriate to the needs of qualified handicapped persons.
No qualified handicapped person shall, on the basis of handicap, be subjected to discrimination in employment under any program or activity conducted by the agency. The definitions, requirements, and procedures of section 501 of the Rehabilitation Act of 1973 (29 U.S.C. 791), as established by the Equal Employment Opportunity Commission in 29 CFR part 1613, shall apply to employment in federally conducted programs or activities.
Except as otherwise provided in § 406.150, no qualified handicapped person shall, because the agency's facilities are inaccessible to or unusable by handicapped persons, be denied the benefits of, be excluded from participation in, or otherwise be subjected to discrimination under any program or activity conducted by the agency.
(a)
(1) Necessarily require the agency to make each of its existing facilities accessible to and usable by handicapped persons; or
(2) Require the agency to take any action that it can demonstrate would result in a fundamental alteration in the nature of a program or activity or in undue financial and administrative burdens. In those circumstances where agency personnel believe that the proposed action would fundamentally alter the program or activity or would result in undue financial and administrative burdens, the agency has the burden of proving that compliance with § 406.150(a) would result in such alteration or burdens. The decision that compliance would result in such alteration or burdens must be made by the agency head or his or her designee after considering all agency resources available for use in the funding and operation of the conducted program or activity, and must be accompanied by a written statement of the reasons for reaching that conclusion. If an action would result in such an alteration or such burdens, the agency shall take any other action that would not result in such an alteration or such burdens but would nevertheless ensure that handicapped persons receive the benefits and services of the program or activity.
(b)
(c)
(d)
(1) Identify physical obstacles in the agency's facilities that limit the accessibility of its programs or activities to handicapped persons;
(2) Describe in detail the methods that will be used to make the facilities accessible;
(3) Specify the schedule for taking the steps necessary to achieve compliance with this section and, if the time period of the transition plan is longer than one year, identify steps that will be taken during each year of the transition period; and
(4) Indicate the official responsible for implementation of the plan.
Each building or part of a building that is constructed or altered by, on behalf of, or for the use of the agency
(a) The agency shall take appropriate steps to ensure effective communication with applicants, participants, personnel of other Federal entities, and members of the public.
(1) The agency shall furnish appropriate auxiliary aids where necessary to afford a handicapped person an equal opportunity to participate in, and enjoy the benefits of, a program or activity conducted by the agency.
(i) In determining what type of auxiliary aid is necessary, the agency shall give primary consideration to the requests of the handicapped person.
(ii) The agency need not provide individually prescribed devices, readers for personal use or study, or other devices of a personal nature.
(2) Where the agency communicates with applicants and beneficiaries by telephone, telecommunication devices for deaf persons (TDD's) or equally effective telecommunication systems shall be used.
(b) The agency shall ensure that interested persons, including persons with impaired vision or hearing, can obtain information as to the existence and location of accessible services, activities, and facilities.
(c) The agency shall provide signage at a primary entrance to each of its inaccessible facilities, directing users to a location at which they can obtain information about accessible facilities. The international symbol for accessibility shall be used at each primary entrance of an accessible facility.
(d) This section does not require the agency to take any action that it can demonstrate would result in a fundamental alteration in the nature of a program or activity or in undue financial and administrative burdens. In those circumstances where agency personnel believe that the proposed action would fundamentally alter the program or activity or would result in undue financial and administrative burdens, the agency has the burden of proving that compliance with § 406.160 would result in such alteration or burdens. The decision that compliance would result in such alteration or burdens must be made by the agency head or his or her designee after considering all agency resources available for use in the funding and operation of the conducted program or activity, and must be accompanied by a written statement of the reasons for reaching that conclusion. If an action required to comply with this section would result in such an alteration or such burdens, the agency shall take any other action that would not result in such an alteration or such burdens but would nevertheless ensure that, to the maximum extent possible, handicapped persons receive the benefits and services of the program or activity.
(a) Except as provided in paragraph (b) of this section, this section applies to all allegations of discrimination on the basis of handicap in programs or activities conducted by the agency.
(b) The agency shall process complaints alleging violations of section 504 with respect to employment according to the procedures established by the Equal Employment Opportunity Commission in 29 CFR part 1613 pursuant to section 501 of the Rehabilitation Act of 1973 (29 U.S.C. 791).
(c) The Director, Personnel and Administration shall be responsible for coordinating implementation of this section. Complaints may be sent to the Director, Personnel and Administration, American Battle Monuments Commission, Room 5127, Pulaski Building, 20 Massachusetts Ave., NW., Washington, DC 20314.
(d) The agency shall accept and investigate all complete complaints for which it has jurisdiction. All complete complaints must be filed within 180 days of the alleged act of discrimination. The agency may extend this time period for good cause.
(e) If the agency receives a complaint over which it does not have jurisdiction, it shall promptly notify the complainant and shall make reasonable efforts to refer the complaint to the appropriate government entity.
(f) The agency shall notify the Architectural and Transportation Barriers Compliance Board upon receipt of any complaint alleging that a building or facility that is subject to the Architectural Barriers Act of 1968, as amended (42 U.S.C. 4151-4157), or section 502 of the Rehabilitation Act of 1973, as amended (29 U.S.C. 792), is not readily accessible to and usable by handicapped persons.
(g) Within 180 days of the receipt of a complete complaint for which it has jurisdiction, the agency shall notify the complainant of the results of the investigation in a letter containing—
(1) Findings of fact and conclusions of law;
(2) A description of a remedy for each violation found;
(3) A notice of the right to appeal.
(h) Appeals of the findings of fact and conclusions of law or remedies must be filed by the complainant within 90 days of receipt from the agency of the letter required by § 406.170(g). The agency may extend this time for good cause.
(i) Timely appeals shall be accepted and processed by the head of the agency.
(j) The head of the agency shall notify the complainant of the results of the appeal within 60 days of the receipt of the request. If the head of the agency determines that additional information is needed from the complainant, he or she shall have 60 days from the date of receipt of the additional information to make his or her determination on the appeal.
(k) The time limits cited in paragraphs (g) and (j) of this section may be extended with the permission of the Assistant Attorney General.
(l) The agency may delegate its authority for conducting complaint investigations to other Federal agencies, except that the authority for making the final determination may not be delegated to another agency.
Secs. 1-9, 65 Stat. 634, as amended, secs. 1-4, 78 Stat. 365; 40 U.S.C. 193n-193w.
These rules and regulations apply to all buildings and grounds of the Smithsonian Institution, as defined in section 3, 78 Stat. 366; 40 U.S.C. 193v(1) (A) and (C), and to all persons entering in or on such buildings and grounds, hereinafter referred to as the premises
Except as otherwise ordered, Smithsonian buildings shall be closed to the public after normal visiting hours. Such buildings, or portions thereof, shall also be closed to the public in emergency situations and at such other times as may be necessary for the orderly conduct of business. Whenever the buildings are closed to the public for any reason, visitors will immediately leave the premises upon being requested by a guard or other authorized individuals. Admission to such premises during periods when closed to the public will be limited to authorized individuals who will be required to register and identify themselves when requested by guards or other authorized individuals.
It is unlawful willfully to destroy, damage, or remove property or any part thereof. Any parcels, portfolios, bags, or containers of any kind may be required to be opened and the contents identified prior to removal from the premises. In order to remove any property from the premises, a properly completed property pass signed by an authorized official of the Smithsonian Institution may be required prior to removal.
Persons in or on the premises shall comply with official signs of a prohibitory or directory nature and with the directions of authorized individuals.
The use of loud, abusive, or otherwise improper language; unwarranted loitering, sleeping or assembly; the creation of any hazard to persons or things; improper disposal of rubbish; spitting, prurient prying; the commission of any obscene or indecent act, or any other unseemly or disorderly conduct on the premises; throwing articles of any kind from or within a building; or climbing upon any part of a building is prohibited.
Participating in games for money or other personal property or the operation of gambling devices, the conduct of a lottery or pool, or the selling or purchasing of numbers tickets in or on the premises is prohibited.
Entering the premises or the operating of a motor vehicle thereon by a person under the influence of any intoxicating beverage or narcotic drug or the use of such drug in or on the premises is prohibited. Consumption of intoxicating beverages on the premises is prohibited unless officially authorized.
The soliciting of alms and contributions, commercial soliciting and vending of all kinds, the display or distribution of commercial advertising, or the collecting of private debts, in or on the premises is prohibited. This rule does not apply to national or local drives for funds for welfare, health, and other purposes sponsored or approved by the Smithsonian Institution concessions, or personal notices posted by employees on authorized bulletin boards. Distribution of material such as pamphlets, handbills, and flyers is prohibited without prior approval of authorized individuals.
The displaying or carrying of placards, signs, banners, or flags is prohibited unless officially authorized.
Dogs and other animals, except seeing-eye dogs, shall not be brought upon the premises for other than official purposes.
No photographs for advertising or any other commercial purpose may be taken on the premises unless officially authorized.
Umbrellas, canes (not needed to assist in walking), or other objects capable of inflicting damage to property or exhibits may be required to be checked in buildings where checking facilities are provided.
(a) Drivers of all vehicles in or on the premises shall drive in a careful and safe manner at all times and shall comply with the signals and directions of the guards and all posted traffic signs.
(b) The blocking of entrances, driveways, walks, loading platforms, or fire hydrants in or on property is prohibited. Parking without authority, or parking in unauthorized locations or in locations reserved for other persons or contrary to the direction of posted signs, is prohibited. This paragraph may be supplemented from time to time by the issuance and posting of such additional traffic and parking directives as may be required, and such directives shall have the same force and effect as if made a part thereof.
No person while on the premises shall carry firearms, other dangerous or deadly weapons, or explosives, either openly or concealed, except for official purposes.
There shall be no discrimination by segregation or otherwise against any person or persons because of race, religion, color, or national origin in furnishing or by refusing to furnish to such person or persons the use of any facility of a public nature, including all services, privileges, accommodations, and activities provided thereby on the premises.
Section 6 of the Smithsonian Institution Special Policing Statute, Act of October 24, 1951, 65 Stat. 635, 40 U.S.C. 193(s) states that:
Whoever violates any provision of sections 193o-193q of this Title, or any regulation prescribed under section 193r of this Title, shall be fined not more than $100 or imprisoned not more than sixty days, or both, prosecution for such offenses to be had in the District of Columbia Court of General Sessions, upon information by the U.S. attorney or any of his assistants:
Secs. 1-9, 65 Stat. 634, as amended, secs. 1-4, 78 Stat. 365; 40 U.S.C. 193n-193w.
The rules and regulations in this part apply to all buildings and grounds of the National Zoological Park of the Smithsonian Institution, as defined in sec. 3, 78 Stat. 366; 40 U.S.C. 193v(1)(B), and to all persons entering in or on such buildings and grounds, hereinafter referred to as the premises.
Except as otherwise ordered, National Zoological Park buildings and grounds shall be closed to the public after posted visiting hours. Such buildings and grounds, or portions thereof, shall be also closed to the public in emergency situations and at such other times as may be necessary for the orderly conduct of business. Whenever the buildings and grounds or portions thereof are closed to the public for any reason, visitors will immediately leave the premises upon being requested by a police officer or other authorized individual. Admission to such premises during periods when closed to the public will be limited to authorized individuals who will be required to register and identify themselves when requested by police officers or other authorized individuals.
It is unlawful willfully to destroy, damage, or remove property or any part thereof. Any parcels, portfolios, bags, or containers of any kind may be required to be opened and the contents identified prior to removal from the premises. In order to remove any property from the premises, a properly completed property pass signed by an authorized official of the National Zoological Park may be required prior to removal.
Except for official purposes, no person shall:
(a) Kill, injure, or disturb any exhibit or research animal by any means except to secure personal safety;
(b) Pet, attempt to pet, handle, move, or remove exhibit or research animals;
(c) Feed exhibit or research animals, except in strict accordance with authorized signs;
(d) Catch, attempt to catch, trap, remove, or kill any free roaming animals inhabiting the premises;
(e) Go over, under, between, or otherwise cross any guardrail, fence, moat, wall, or any other safety barrier; or to seat, stand, or hold children over any of the above-mentioned barriers;
(f) Throw or toss rocks, or any other missiles into, from, or while on premises;
(g) Bring strollers, baby carriages, or other conveyances, except wheel chairs, into exhibit buildings and public restrooms;
(h) Engage in ball games, or any athletic activity, except in places as may be officially designated for such purposes;
(i) Smoke or carry lighted cigarettes, cigars, or pipes into exhibit buildings, or to have a fire of any kind on the premises; or
(j) Damage, deface, pick, or remove any herb, shrub, bush, tree, or turf, or portion thereof, on the premises.
Persons in or on the premises shall comply with official signs of a prohibitory or directory nature and with the directions of authorized individuals.
The use of loud, abusive, or otherwise improper language; unwarranted loitering, sleeping or assembly; the creation of any hazard to persons or things; improper disposal of rubbish; spitting; prurient prying; the commission of any obscene or indecent act, or any other unseemly or disorderly conduct on the premises; throwing articles of any kind on the premises, or climbing upon any part of the building is prohibited.
Participating in games for money or other personal property or the operation of gambling devices, the conduct of a lottery or pool, or the selling or purchasing of numbers tickets in or on the premises is prohibited.
Entering the premises or the operating of a motor vehicle thereon by a person under the influence of any intoxicating beverage or narcotic drug or the use of such drug in or on the premises is prohibited. Consumption of intoxicating beverages on the premises is prohibited, unless officially authorized.
The soliciting of alms and contributions, commercial soliciting and vending of all kinds, the display or distribution of commercial advertising or the collecting of private debts, in or on the premises is prohibited. This rule does not apply to national or local drives for funds for welfare, health, and other purposes sponsored or approved by the National Zoological Park, concessions, or personal notices posted by employees on authorized bulletin boards. Distribution of material such as pamphlets, handbills, and flyers is prohibited without prior approval of authorized individuals.
The displaying or carrying of placards, signs, banners, or flags is prohibited unless officially authorized.
Dogs and other animals, except seeing-eye dogs, shall not be brought upon the premises for other than official purposes unless confined to automobiles.
No photographs for advertising or any other commercial purpose may be taken on the premises unless officially authorized.
Umbrellas, canes (not needed to assist in walking), or other objects capable of inflicting damage to property or exhibits may be required to be checked at the police station where checking facilities are provided.
(a) Drivers of all vehicles in or on the premises shall drive in a careful and safe manner at all times and shall comply with the signals and directions of the police and all posted traffic signs.
(b) The blocking of entrances, driveways, walks, loading platforms, or fire hydrants in or on property is prohibited. Parking without authority, or parking in unauthorized locations or in locations reserved for other persons or contrary to the direction of posted signs, is prohibited. This paragraph may be supplemented from time to time by the issuance and posting of such additional traffic and parking directives as may be required, and such directives shall have the same force and effect as if made a part thereof.
No person while on the premises shall carry firearms, other dangerous or deadly weapons, or explosives, either openly or concealed, except for official purposes, nor shall any person discharge or set off any firework or explosive of any nature on the premises.
There shall be no discrimination by segregation or otherwise against any person or persons because of race, religion, color, or national origin in furnishing or by refusing to furnish to such person or persons the use of any facility of a public nature, including all services, privileges, accommodations, and activities provided thereby on the premises.
(a) Lost articles or money which are found in areas covered by this part shall be immediately referred to the police station. Proper records shall be kept at Police Headquarters of the receipt and disposition of such articles. If an article or money found on park areas and referred to Zoo Police Headquarters is not claimed by the owner within a period of 60 days, it shall be returned to the finder and appropriate receipt obtained; except that in the case of National Zoological Park employees, articles or money turned in which are not claimed by the owner within 60 days shall be considered as abandoned to the Smithsonian Institution. Such articles or money shall be transferred to the Treasurer of the Smithsonian Institution, who shall make suitable disposition of articles and remit all proceeds of such disposition and all unclaimed money into the unrestricted funds of the Smithsonian Institution.
(b) The abandonment of any personal property in any of the park areas is prohibited.
Section 6 of the Smithsonian Institution Special Policing Statute, Act of October 24, 1951, 65 Stat. 635, 40 U.S.C. 193 (s) states that:
Whoever violates any provision of sections 193o-193q of this title, or any regulation prescribed under section 193r of this Title, shall be fined not more than $100 or imprisoned not more than 60 days, or both, prosecution for such offenses to be had in the District of Columbia Court of General Sessions, upon information by the United States attorney or any of his assistants:
20 U.S.C. 41,
The Smithsonian Institution (which encompasses the National Gallery of Art, the John F. Kennedy Center for the Performing Arts and the Woodrow Wilson International Center for Scholars) falls within the purview of the Federal Tort Claims Act. Internal procedures for implementing the Act follow the current general guidance issued by the U.S. Department of Justice in 28 CFR part 14. Information on specific claims procedures can be obtained as follows:
(a) Smithsonian Institution: Office of the General Counsel, Smithsonian Institution, Washington, DC 20560.
(b) National Gallery of Art: Administrator, National Gallery of Art, Washington, DC 20565.
(c) John F. Kennedy Center for the Performing Arts: Director of Operations, John F. Kennedy Center for the Performing Arts, Washington, DC 20566.
(d) Woodrow Wilson International Center for Scholars: Assistant Director for Administration, Woodrow Wilson International Center for Scholars, Smithsonian Institution, Washington, DC 20560.
The regulations in this chapter VII were formerly codified in 44 CFR chapter V.
2 U.S.C. 136; 18 U.S.C. 1017.
The Library of Congress is an Excepted Service Legislative Branch agency. As such, it has its own independent merit system, and applicants do not need Civil Service status to apply for its positions. The Library has a wide range of clerical, technical, and professional positions (the latter being primarily oriented to library operations such as processing, cataloging, and reference, but with some positions in non-librarian occupations such as computer, subject area and research analyst specialists). The Library's Employment Office is located in Room LM-107, James Madison Building, First Street and Independence Avenue, SE., Washington, DC 20540. Information about current employment needs and the procedure for application may be obtained by either visiting this office (Monday-Friday, 8:30 a.m. to 4:30 p.m.), calling during these hours at (202) 287-JOBS, or writing to the above address. A 24-hour recording of general information is available at (202) 287-5295.
(a) In accordance with the Library's general policy, persons other than staff members may be admitted to the Library buildings and to the various areas therein that are open to the public during the announced hours of public opening. Such persons may be admitted to other areas within the buildings and at other times only in accordance with established access regulations.
(b) Persons having legitimate business in buildings closed to the public may be admitted after identification by responsible officials in the building or by authority as evidenced by a building access pass issued by the Associate Librarian for Management.
No material may be removed from the Library buildings without the proper stamp, pass, or other authorization as prescribed by regulations established by The Librarian of Congress. All property including, but not limited to, suitcases, briefcases, handbags, large envelopes, packages, and office
Information about the activities, program, services, organization, and history of the Library of Congress is provided by the Information Office, which has primary responsibility for responding, or for arranging for other divisions of the Library to respond, to inquiries on these subjects from the public and from representatives of public-information media. Such information is provided through publications and through individual response by telephone, by mail, and in personal conference. For convenience of the public, the office administers information counters in the James Madison and Thomas Jefferson Buildings; its staff answers visitors’ inquiries about the Library but does not provide reference service for readers wishing to use the Library's collections. Free publications about the Library and some price publications and facsimiles of famous documents are available at this counter.
(a) All members of the public wishing to use materials from the Library's collections first must obtain a User Card. The Library will issue User Cards, in accordance with established access regulations, to those persons who present a valid photo identification card containing their name and current address. The Library-issued User Card will include the name, digitized photograph, and signature of the user. It must be presented when requesting materials housed in the book stacks or other non-public areas or upon request of a Library staff member. In accordance with Library regulations which prescribe the conditions of reader registration and use of Library materials, presentation of a User Card may be required for entry into certain reading rooms. The Library will maintain the information found on the User Cards, including the digitized photograph and other pertinent information, in an automated file for collections security purposes. Access to the automated file shall be limited to only those Library staff whose official duties require access. The automated file shall be physically separated and accessible only from inside the Library.
(b) Materials in the general classified collections of the Library are serviced in the Main and Local History and Genealogy reading rooms (Thomas Jefferson Building), and the Science and Social Science reading rooms (John Adams Building). Special collections, as explained further in subsequent sections, are serviced in the following reading rooms; Archive of Folk Culture, European, Microform, and Rare Book and Special Collections (Thomas Jefferson Building), African and Middle East and Asian (Adams Building), and Geography and Map, Law Library, Manuscript, Motion Picture and Television, Newspaper and Current Periodical, Performing Arts, Prints and Photographs, and Recorded Sound Reference Center (James Madison Memorial Building). Reference and bibliographic assistance is provided by the staff on duty in the reading rooms, to the extent necessary to supplement the reader's prior use of library resources elsewhere and/or to facilitate use of the Library's collections.
(a) Requests for materials in the general classified collections are submitted by readers on forms provided for that purpose. Available materials so requested are located and delivered to readers by the staff. Subject to specified limitations, materials may be reserved for continued use. Access to the bookstacks is permitted only under regulations established by the Librarian of Congress.
(b)
(1)
(2)
(i) Items in all formats (including, but not limited to, books and pamphlets; documents; manuscripts; maps; microfiche, microfilms, and other microforms; motion pictures, photographs, posters, prints, drawings, videotapes, and other visual materials; newspapers and periodicals; recorded discs, tapes, or audio/video/digital materials in other formats) either in the collections of the Library of Congress or acquired for and in process for the Library's collections;
(ii) Objects such as musical instruments, printing blocks, copper engraving plates, paintings, and scrolls, and
(iii) Control files, which are manual or automated files essential to the physical or intellectual access to Library materials, such as catalogs, computer tapes, finding aids, and shelflists. These include items that are acquired as an integral part of Library materials and are accessioned into the collections with them permanent inventory records, public catalogs, and other finding aids.
(3)
(c)
(1) Any material removed from the security-controlled environment of a reading room or storage area, and meeting the established criteria must be charged as an internal or external loan through the Loan Division, in accordance with established loan regulations. The security of in-process material, and special collections material not meeting the criteria of these regulations, is the responsibility of the division chief or equivalent Library officer with physical control of the material. That division shall determine whether or not a Loan Division internal charge must be created when an item is removed for use. If a Loan Division record is not created, the division shall create and maintain a local record until the item is returned.
(2) When the period of use is completed, all materials shall be returned immediately to the custodial unit to be placed in designated shelf or other locations in assigned storage areas. Charge records for the returned materials shall be removed from the charge files.
(d)
(1) When a reader violates a condition and/or procedure for using material, the division chief or head of the unit where the infraction occurred may, upon written notification, deny further access to the material, or to the unit in which it is housed, to be determined by
(2) Within five workdays of receipt of such notification, the reader may make a written request, including the reasons for such request to the Associate Librarian for that service unit, or his/her designee, for a reconsideration of said notification.
(3) The Associate Librarian for that service unit, or his/her designee, shall respond within five workdays of receipt of such request for reconsideration and may rescind, modify, or reaffirm said notification, as appropriate.
(4) Repeated violations of established conditions and/or procedures for using material may result in denial of further access to the premises and further use of the Library's facilities or revocation of the reader's User Card, in accordance with established access regulations.
(5) Mutilation or theft of Library property also may result in criminal prosecution, as set forth in 18 U.S.C. 641, 1361, and 2071; and 22 D.C. Code 3106.
(6) In certain emergency situations requiring prompt action, the division chief or head of the unit where the infraction occurred immediately may deny further access to the material or unit prior to making written notification action. In such cases, the reader shall be notified, in writing, within three days of the action taken and the reasons therefor. The reader then may request reconsideration.
(7) A copy of any written notification delivered pursuant to this part shall be forwarded to the Captain, Library Police, the service unit, and the Director, Integrated Support Services, for retention.
(a) Reference and bibliographic services provided in response to requests from readers and requests received by telephone and by mail are governed by policies and regulations established by the Librarian of Congress.
(b) Readers requiring reference and bibliographic assistance in the general collections and aid in the use of the catalogs may request help from the staff on duty in the general reading rooms. Requests for such assistance in special collections are referred to the appropriate specialized division and reading rooms.
(c) Reference inquiries and requests for service which cannot be satisfied by other libraries or scholarly institutions nearer the inquirer may be submitted to the Library of Congress, which will respond to them insofar and on such conditions as available staff and facilities permit.
(a)
(b)
(c)
The Library of Congress is not a public circulating library and no material in its collections may be taken from the Library buildings except upon approval by the Chief of the Loan Division. Members of Congress, heads of executive departments, and other statutory borrowers, however, have the privilege of withdrawing books by virtue of their office. Subject to regulations and conditions established by The Librarian of Congress, special permission to withdraw materials may be given to congressional staff. Applications for such privilege are acted upon by the Chief of the Loan Division, who is responsible for the interpretation and enforcement of the regulations governing loans. Except for Members of Congress, heads of executive departments, and others authorized by the Librarian to have materials assembled and delivered to them, persons having the borrowing privilege must present materials to be borrowed to the Loan Division for recording and for issuance of a door pass. Borrowers must present the materials for inspection to the guards on duty at the exits to the Library buildings. Materials are issued on interlibrary loan to other libraries within and outside the District of Columbia under regulations established by the Librarian of Congress. Applications from established libraries for such loans, and requests for information about interlibrary loans and loan service, generally, should be directed to the Chief of the Loan Division.
(a)
(b)
(i) Blind persons whose visual acuity, as determined by competent authority, is 20/200 or less in the better eye with correcting glasses, or whose widest diameter if visual field subtends an angular distance no greater than 20 degrees.
(ii) Persons whose visual disability, with correction and regardless of optical measurement, is certified by competent authority as preventing the reading of standard printed material.
(iii) Persons certified by competent authority as unable to read or unable to use standard printed material as a result of physical limitations.
(iv) Persons certified by competent authority as having a reading disability resulting from organic dysfunction and of sufficient severity to prevent their reading printed material in a normal manner.
(2) In connection with eligibility for loan services “competent authority” is defined as follows:
(i) In cases of blindness, visual disability, or physical limitations “competent authority” is defined to include doctors of medicine, doctors of osteopathy, ophthalmologists, optometrists, registered nurses, therapists, professional staff of hospitals, institutions, and public or welfare agencies (e.g., social workers, case workers, counselors, rehabilitation teachers, and superintendents). In the absence of any of these, certification may be made by professional librarians or by any persons whose competence under specific circumstances is acceptable to the Library of Congress.
(ii) In the case of reading disability from organic dysfunction, competent authority is defined as doctors of medicine who may consult with colleagues in associated disciplines.
(c)
(d)
(e)
(f)
(g)
(h) Inquiries for information relative to the prescribed procedures and regulations governing such loans and requests for loans should be addressed to: Director, National Library Service for the Blind and Physically Handicapped, Library of Congress, Washington, DC 20542.
Subject to special conditions and procedures determined by the Library, certain materials in the Library's collections are available for loan to recognized institutions, such as libraries and museums, with established exhibition programs and with staffs proficient in handling the particular material requested. This service is subject to limitations in terms of the character of the materials and the availability of staff to prepare materials for shipment. Each request for loan is judged on its particular merits, i.e., type of institution and program for which loan is proposed in relation to the importance and value, both monetary and intrinsic, of the material requested and the probability of its being replaceable in the event of loss. Communications concerning the lending of materials for exhibition should be addressed to the Exhibits Officer, Library of Congress, Washington, DC 20540.
Photocopies of materials in the Library's general and special collections may be obtained from the Library's Photoduplication Service at prevailing rates and subject to prescribed contract provisions, provided that they are not subject to copyright or other restrictions, or provided that permission to copy has been obtained. Order forms for photocopies may be secured from the Photoduplication Service, Library of Congress, Washington, DC 20540.
(a) Services to readers in the African and Middle Eastern Division are provided in accordance with prescribed conditions of use of materials in the custody of the division: materials written or printed in Arabic, Hebrew, Persian, Turkish, Yiddish, etc.
(b) Readers requiring reference and bibliographic assistance in the general areas of African and Middle Eastern studies are assisted in the African and Middle Eastern Division's three component sections: African, Hebraic, and Near East, each of which maintains a reference collection and pertinent bibliographic tools. Reference service on special materials of interest to African and Middle Eastern studies (except law) is provided by the divisions holding such materials, as identified in § 701.5. In the fields of science and technology, reference and bibliographic services are provided by the Science and Technology Division.
(a) Services to readers in the Asian Division are provided in accordance with prescribed conditions of use of materials in the custody of the division: materials written or printed in Bengali, Burmese, Chinese, Hindi, Indonesian, Japanese, Korean, Thai, Urdu, Vietnamese, etc.
(b) Readers requiring reference and bibliographic assistance in the general areas of Asian studies are assisted in the Asian Division's three component sections. Reference service on special materials of interest to Asian studies (except law) is provided by the divisions holding such materials, as identified in § 701.5. In the fields of science and technology, reference and bibliographic services are provided by the Science and Technology Division.
(a) Services to readers in the European Division are provided in accordance with prescribed conditions of use of the materials in the custody of the European Division: Unbound serials and newspapers, (with the exception of those assigned to the Law Library), written or printed in any of the Slavic languages and in Estonian, Latvian, and Lithuanian. Readers requesting reference and bibliographic assistance on European materials classified in the general collections are assisted by staff on duty in the general reading rooms, or in the European Reading Room, which maintains a reference collection and pertinent informational files.
(b) The professional staff of the European Division renders reference and bibliographic services pertaining to the cultural, political, social, and economic life of Albania, Austria, Belgium, Bulgaria, Cyprus, Czechosloviakia, Denmark, Estonia, Finland, France, the German Democratic Republic, the Federal Republic of Germany, Greece, Hungary, Iceland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Monaco, The Netherlands, Norway, Poland, Romania, San Marino, the Soviet Union, Sweden, Switzerland, the Vatican City, and Yugoslavia. Reference service on special materials of interest to European studies (except law) is provided by the divisions holding such materials, as identified in § 701.5. In the fields of science and technology, reference and bibliographic services are provided by the Science and Technology Division.
(a) The American Folklife Center renders specialized reference, bibliographic and consulting services pertaining to “preserving and presenting” folk cultural traditions in the United States. The Center is not a grant-giving agency but concentrates on varied services to the field—coordination of folk cultural activities, local, state, Federal and at the Library of Congress; field projects, technical and consultant services; research and archival service; and publications, exhibits and live presentations designed to disseminate ideas and materials pertaining to American folk culture.
(b) The Center's Archive of Folk Song provides reference and referral services concerning folklife and ethnomusicology by telephone, through correspondence, and directly to readers in the Archive's Reading Room on the Library's pertinent collection of books, periodicals, recordings, manuscripts, etc. Printed descriptions of the Archive's published reference and findings aids, recordings, intern program, and other services, are available from the Archive of Folk Culture, Library of Congress, Washington, DC 20540.
(a) Readers requesting reference and bibliographic assistance on hispanic materials classified in the general collections may consult staff on duty in the general reading rooms, or in the Hispanic Reading Room, which maintains a reference collection and pertinent informational files.
(b) The professional staff of the Hispanic Division renders reference and bibliographic services pertaining to the cultural, political, social and economic life of Spain, Portugal, and the countries of Latin America and the Caribbean, as well as for materials pertaining to the social and cultural life of Hispanics in the United States. Reference service on special materials of interest to Hispanic studies (except law) is provided by the divisions holding such materials, as identified in § 701.5. In the fields of science and technology, reference and bibliographic services are provided by the Science and Technology Division.
(a) Legal materials are served in the reading room of the Law Library in the James Madison Building. Those volumes which are not on the open shelves may be obtained for reading room use by filling out and presenting to a reference assistant a slip provided for the purpose.
(b) The collections of the Law Library are available in part, for use outside the Library for a limited period, to authorized borrowers in Washington, DC, and through interlibrary loan to the general public residing in other parts of the country, in conformity with Loan Division procedures. Books which are lent for use outside of the Law Library must be charged in the Law Library. Books which are lent for use outside the Library building must be charged in the Loan Division, where a formal charge is made and a door pass is issued.
Readers requesting reference and bibliographic assistance on materials in local history and genealogy may consult the staff in the Local History and Genealogy Room.
(a) Services to readers in the Manuscript Reading Room are provided in accordance with prescribed conditions of reader registration and use of the materials in the custody of the Manuscript Division. The use of such materials is restricted to the Manuscript Reading Room.
(b) The professional staff of the Manuscript Division renders reference and bibliographic services pertaining to its collections by telephone, through correspondence, and directly to adult readers in the Manuscript Reading Room.
(a) Services to readers in the Geography and Map Reading Room are provided in accordance with prescribed conditions of reader registration and use of the maps, atlases and globes in the custody of the Geography and Map Division. The use of such materials is restricted to the Geography and Map Reading Room.
(b) The professional staff of the Geography and Map Division renders reference and bibliographic services pertaining to its collections by telephone, through correspondence, and directly to adult readers in the Geography and Map Reading Room.
(a) Service to readers in the Microform Reading Room is provided in accordance with prescribed conditions governing the use of microfilm and microprint material in the custody of the Microform Reading Room. Investigators may requisition inkprint materials from other collections of the Library for use in the Microform Reading Room, but such requests will be subject to limitations consistent with the care and service of the collections, and with regard for service to readers in other reading rooms.
(b) Other units have custody of microfilmed materials, such as manuscripts, newspapers, music, law, and orientalia, and render service on these materials.
(a) Services to readers in the Motion Picture and Television Reading Room are provided in accordance with prescribed conditions of reader registration and use of the motion picture film, and videotape materials in the custody of the Motion Picture, Broadcasting and Recorded Sound Division. The use of such materials is restricted to the Motion Picture and Television Reading Room.
(b) The professional staff of the Motion Picture, Broadcasting and Recorded Sound Division renders reference and filmographic services pertaining to its collections by telephone, through correspondence and directly to adult readers in the Motion Picture and Television Reading Room.
(a) Services to readers in the Performing Arts Reading Room are provided in accordance with prescribed conditions of reader registration and
(b) The professional staff of the Music Division renders reference and bibliographic services pertaining to its collections, by telephone, through correspondence and directly to adult readers in Performing Arts Reading Room (see also § 701.29).
(a) Services to readers in the Prints and Photographs Reading Room are provided in accordance with prescribed conditions of reader registration and use of the collections of fine and historical prints, drawings, photographs, posters, and architectural drawings and photographs, in the custody of the Prints and Photographs Division. The use of such materials is restricted to the Prints and Photographs Reading Room.
(b) The professional staff of the Prints and Photographs Division renders reference and bibliographic services pertaining to its collections, by telephone, through correspondence and directly to adult readers in the Prints and Photographs Reading Room.
(a) Services to readers in the Rare Book and Special Collections Reading Room are provided in accordance with prescribed conditions of reader registration and use of the materials in the custody of the Rare Book and Special Collections Division. The use of such materials is restricted to the Rare Book and Special Collections Reading Room.
(b) The professional staff of the Rare Book and Special Collections Division renders reference and bibliographic services pertaining to its collections by telephone, through correspondence, and directly to adult readers in the Rare Book and Special Collections Reading Room.
(c) Service to readers of the rare books in the custody of the Law Library and the Music Division are subject to similar regulations.
(a) Readers requesting reference and bibliographic assistance in science and technology may consult the staff on duty in the Science Reading Room. Inquiries are referred when necessary to subject specialists in the Science and Technology Division. A special collection of technical reports is available in the Science Reading Room. Materials on science in the Library's subject-classified collections are also served in the Library's other general reading rooms.
(b) In answering requests for referral service, the Resources Analysis Section of the General Reading Rooms Division compiles names, addresses, telephone numbers, and brief descriptions of appropriate information resources, which may include professional societies, university research bureaus and institutes, Federal and State agencies, industrial laboratories, museums, testing stations, and individual experts as well as more traditional sources of information, such as technical libraries, information and document centers, and abstracting and indexing services.
(a) Services to readers in the Newspaper and Current Periodical Reading Room are provided in accordance with prescribed conditions of use of the collections of current and unbound periodicals, bound, unbound and microfilmed newspapers, Government documents, ephemera, etc. not assigned to other divisions, in the custody of the Serial and Government Publications Division. The use of such materials is restricted to the Newspaper and Current Periodical Reading Room.
(b) The professional staff of the Serial and Government Publications Division renders reference and bibliographic services pertaining to its collections as well as to the government publications in the general classified
(a) Services to readers in the Recorded Sound Reference Center in the Performing Arts Reading Room are provided in accordance with prescribed conditions of reader registration and use of the sound recordings of all kinds (except recordings for the blind) in the custody of the Motion Picture, Broadcasting and Recorded Sound Division. The use of such materials, for serious research only, is restricted to the Performing Arts Reading Room and appointments to use them must be sought in advance by application to the Motion Picture, Broadcasting and Recorded Sound Division.
(b) The professional staff of the Recorded Sound Reference Center renders reference and discographic services pertaining to the collections, by telephone, through correspondence, and directly to adult readers in the Performing Arts Reading Room.
(c) Reference and information pertaining to folk music and ethnomusicology are available from the Archive of Folk Culture, American Folklife Center.
(d) A list of recordings of poetry and folk music issued by the Library of Congress and available for a sale may be obtained from the Public Services Coordinator, Motion Picture, Broadcasting and Recorded Sound Division, Library of Congress, Washington, DC 20540.
Bibliographic products and services are produced and supplied to the Library of Congress and other libraries by the Cataloging Distribution Service. The Service sells bibliographic data in the form of printed cards, machine-readable tapes (MARC), book catalogs, microfiche catalogs and technical publications to libraries, learned societies, professional institutions, government agencies, private institutions, and cooperative and commercial processing centers. Information may be obtained from the Cataloging Distribution Service, Library of Congress.
Publications of the Library include guides to its collections and services, catalogs of materials in the Library of Congress and other libraries, lists and descriptions of serials and monographs received, registers of personal papers of American public figures, bibliographies, facsimiles of rare items in its collections, exhibit catalogs, annual reports, acquisitions reports, and various other issuances relating to the Library and its programs. Most of the Library's publications are sold by the Superintendent of Documents, Government Printing Office, Washington, DC 20402. A complete list of available publications,
The Library solicits offers of library materials (including books, periodicals, pamphlets, manuscripts, maps, views, music, recordings, motion pictures, photographs, posters, prints, etc.). Lists or catalogs offering materials should specify author, title, place of publication, date of publication, whether or not copyrighted, edition note, series note, and number of pages or volumes. Each item must be priced. All offers of materials and all other correspondence concerning the acquisition by purchase of materials for the Library's collections (including invoices, statements, and questions concerning payment for material purchased by the Library) should be addressed to the Library of Congress, Order Division, Washington, DC 20504. Materials should be sent “on approval” unless specifically requested by the Order Division.
(a)
(1)
(2)
(3)
(4)
(b)
(c) Inquiries concerning the programs relating to the acquisition of materials for the collections of the Library by non-purchase methods and the disposition of surplus materials should be addressed to: Chief, Exchange and Gift Division, Library of Congress, Washington, DC 20540.
Incumbents of the following positions are authorized to contract for materials and services on behalf of the Library of Congress and to execute contracts in the areas as specified below. The Librarian of Congress may further delegate contracting authority in specific situations.
(a)
(1) To assure that the Library of Congress is properly and appropriately identified and credited as a source of materials in publications.
(2) To assure that the name or logo of the Library of Congress, or any unit thereof, is used only with the prior approval of the Librarian of Congress or his designee; and
(3) To assure that the seal of the Library of Congress is used only on official documents or publications of the Library.
(b)
(2)
(3)
(4)
(5)
(6)
(7)
(c)
(2) The Library of Congress seal symbolizes the Library's authority and standing as an official agency of the U.S. Government. As such, it shall be displayed only on official documents or publications of the Library. The seal of the Library of Congress Trust Fund Board shall be affixed to documents of that body as prescribed by the Librarian of Congress. The seal of the National Film Preservation Board shall be affixed to documents of that body as prescribed by the Librarian of Congress. Procedures governing the use of any Library of Congress logo or symbol are set out below.
(3) Questions regarding the appropriateness of the use of any Library logos or symbols, or the use of the Library's name, shall be referred to the Public Affairs Officer.
(4)
(5)
(ii) Ordinarily, the Library logo should appear in an appropriate and suitable location on all cooperative publications. The Library requires that a credit line accompany reproductions of images from its collections and reflect the nature of the relationship such as “published in association with * * *”.
(iii) The size, location, and other attributes of the logo and credit line should be positioned in such a way that they do not imply Library endorsement of the publication unless such endorsement is expressly intended by the Library, as would be the case in cooperative activities. Use of the Library name or logo in any context suggesting an explicit or implicit endorsement may be approved in only those instances where the Library has sufficient control over the publication to make changes necessary to reflect Library expertise.
(iv) Library officers working on cooperative projects shall notify all collaborators of Library policy in writing
NAME OF PARTNER recognizes the great value, prestige and goodwill associated with the name, “Library of Congress” and any logo pertaining thereto. NAME OF PARTNER agrees not to knowingly harm, misuse, or bring into disrepute the name or logo of the Library of Congress, and further to assist the Library, as it may reasonably request, in preserving all rights, integrity and dignity associated with its name. Subject to the Library's prior written approval over all aspects of the use and presentation of the Library's name and logo, the NAME OF PARTNER may use the name of the Library of Congress in connection with publication, distribution, packaging, advertising, publicity and promotion of the
(5)
(6) Each product acquired for resale by the Library that involves new labeling or packaging shall bear a Library logo and shall contain information describing the relevance of the item to the Library or its collections. Items not involving new packaging shall be accompanied by a printed description of the Library and its mission, with Library logo, as well as the rationale for operating a gift shop program in a statement such as, “Proceeds from gift shop sales are used to support the Library collections and to further the Library's educational mission.”
(7)
(8) Office Systems Services shall make available copies of the Library seal or logo in a variety of sizes and formats, including digital versions, if use has been approved by the Public Affairs Officer, in consultation with the Office of General Counsel.
(9) Each service unit head shall be responsible for devising the most appropriate way to carry out and enforce this policy in consultation with the General Counsel and the Public Affairs Officer.
(e)
(2) Whenever the General Counsel has determined that any person or organization is engaged in or about to engage in an act or practice that constitutes or will constitute conduct prohibited by this part or a violation of any requirement of this part, the General Counsel shall take whatever steps are necessary, including seeking the assistance of the U.S. Department of Justice, to enforce the provisions of the applicable statutes and to seek all means of redress authorized by law, including both civil and criminal penalties.
(a) The Seal is the official emblem of the Library of Congress and its use is therefore permitted only on official documents or publications of the Library.
(b) The Seal may be used on Library publications, leaflets, brochures, letterhead, or other printed matter prepared as official documents of the Library.
(c) The embossed Seal shall be used primarily to authenticate contracts, agreements, certifications, and other documents signed by The Librarian, or his/her designated representative(s).
(d) With the approval of The Associate Librarian of Congress, the Seal may be used in cooperative programs in which the Library officially engages with other organization(s).
(e) Any other use shall be approved in advance by The Associate Librarian of Congress.
(f) The official Seal of the Library of Congress Trust Fund Board shall be affixed to documents of that body as prescribed by The Librarian of Congress.
(g) Any person or organization that uses the Library Seal or the Seal of the Library of Congress Trust Fund Board in a manner other than as authorized by the provisions of this section shall be subject to the criminal provisions of 18 U.S.C. 1017.
Sec. 1, 29 Stat. 544, 546; 2 U.S.C. 136.
The rules and regulations in this part apply to all Federal property under the charge and control of the Librarian of Congress and to all persons entering in or on such property.
Admittance and movement of visitors in Library buildings will be restricted to the areas providing facilities and services to the public during announced hours of public opening. Persons having legitimate business in areas closed to the public may be admitted after identification by responsible officials in the building or by authority as evidenced by a building access pass issued by the Associate Librarian for Management.
(a) All persons using the premises shall conduct themselves in such manner as not to affect detrimentally the peace, tranquility, and good order of the Library. Such persons shall:
(1) Use areas that are open to them only at the times those areas are open to them and only for the purposes for which those areas are intended;
(2) Comply with any lawful order of the police or of other authorized individuals; and
(3) Comply with official signs of a restrictive or directory nature.
(b) All persons using the premises shall refrain from:
(1) Creating any hazard to persons or property, such as by fighting or by throwing or deliberately dropping any breakable article, such as glass, pottery, or any sharp article, or stones or other missiles;
(2) Using Library facilities for living accommodation purposes, such as unauthorized bathing, sleeping, or storage of personal belongings, regardless of the specific intent of the individual;
(3) Engaging in inordinately loud or noisy activities;
(4) Disposing of rubbish other than in receptacles provided for that purpose;
(5) Throwing articles of any kind from or at a Library building or appurtenance;
(6) Committing any obscene or indecent act such as prurient prying, indecent exposure, and soliciting for illegal purposes;
(7) Removing, defacing, damaging, or in any other way so misusing a statue, seat, wall, fountain, or other architectural feature or any tree, shrub, plant, or turf;
(8) Stepping upon or climbing upon any statue, fountain, or other ornamental architectural feature or any tree, shrub, or plant;
(9) Bathing or swimming in any fountain;
(10) Painting, marking or writing on, or posting or otherwise affixing any handbill or sign upon any part of a Library building or appurtenance, except on bulletin boards installed for that purpose and with the appropriate authorization;
(11) Bringing any animal onto Library buildings and turf other than dogs trained to assist hearing or visually impaired persons;
(12) Threatening the physical well-being of an individual; and
(13) Unreasonably obstructing reading rooms, food service facilities, entrances, foyers, lobbies, corridors, offices, elevators, stairways, or parking lots in such manner as to impede or disrupt the performance of official duties by the Library staff or to prevent Library patrons from using or viewing the collections.
(c) Public reading rooms, research facilities, and catalog rooms are designated as nonpublic forums. As such, they shall be used only for quiet scholarly research or educational purposes requiring use of Library materials. All persons using these areas shall comply with the rules in effect in the various public reading rooms, shall avoid disturbing other readers, and shall refrain from, but not limited to,
(1) Eating, drinking, or smoking in areas where these activities are expressly prohibited;
(2) Using loud language or making disruptive noises;
(3) Using any musical instrument or device, loudspeaker, sound amplifier, or other similar machine or device for the production or reproduction of sound, except for devices to assist hearing or visually impaired persons, without authorization;
(4) Interfering by offensive personal hygiene with the use of the area by other persons;
(5) Spitting, defecating, urinating, or similar disruptive activities;
(6) Intentionally abusing the furniture or furnishings in the area;
(7) Intentionally damaging any item from the collections of the Library of Congress or any item of Library property;
(8) Using computing terminals for purposes other than searching or training persons to search the Library's data bases or those under contract to the Library, or misusing the terminals by intentional improper or obstructive searching; and
(9) Using the Library's photocopy machines for purposes other than copying Library materials whenever other persons are waiting in line.
(a) Library buildings and grounds are designated as limited public forums, except for those areas designated as nonpublic forums. However, only Library grounds (defined in 2 U.S.C. 167j), not buildings, may be utilized for demonstrations, including assembling, marching, picketing, or rallying. In addition, as the need for the determination of other matters arises, The Librarian will determine what additional First Amendment activities may not be permitted in a limited public forum. In making such determination, The Librarian will consider only whether the intended activity is incompatible with the primary purpose and intended use of that area.
(b) The only areas of the Library grounds that are designated for use for demonstrations are the following:
(1)
(2)
(3)
(c) Persons seeking to use such designated areas for the purpose of demonstrations shall first secure written permission from the Associate Librarian for Management. An application for such permission shall be filed with the Library Support Services Office no later than three workdays before the time of the proposed demonstration. Permission to demonstrate shall be based upon—
(1) The availability of the requested location and
(2) The likelihood that the demonstration will not interfere with Library operations or exceed city noise limitations as defined by District of Columbia regulations (26 D.C. Reg. 229 and 24 D.C. Reg. 293).
(d) No person(s) having permission to demonstrate pursuant to this Regulation shall at any time block either the entrances to or exits from the Library buildings nor shall such person(s) harass, intimidate, or otherwise interfere with the use of the Library's facilities by persons not participating in the demonstration.
Photographs for advertising or commercial purposes may be taken only with the permission of the Library's Information Officer. Cameras and other photographic equipment may be carried on the premises, but their use in certain areas may be restricted by rules or posted signs. Persons using still, motion picture, or video cameras with flash attachments or lights or with tripods or other stationary equipment shall obtain the prior permission of the Library's Information Officer.
Participation in any illegal gambling, such as the operation of gambling devices, the conduct of an illegal pool or lottery, or the unauthorized sale or purchase of numbers or lottery tickets, on the premises is prohibited.
(a) The use of alcoholic beverages on the premises is prohibited except on official occasions for which advance written approval has been given by the Associate Librarian for Management and except for concessionaires to whom Library management has granted permission to sell alcoholic beverages on the premises.
(b) The illegal use or possession of controlled substances on the premises is prohibited.
Except where duly authorized by law, and in the performance of law enforcement functions, no person shall carry firearms, other dangerous or deadly weapons, or explosives, either openly or concealed, while on the premises.
Consumption of food and beverages in Library buildings is prohibited except at point of purchase or other authorized eating places. Under no circumstances may food or beverages be carried to the bookstacks or other areas where there exists significant risk to Library materials or property or where there may result a detraction from the dignity or efficiency of public service.
(a) Individuals entering Library buildings do so with the understanding that all property in their possession including, but not limited to, suitcases, briefcases, large envelopes, packages, and office equipment may be inspected.
(b) Upon entering the Library buildings privately owned office machines including but not limited to typewriters, computing machines, stenotype machines, and dictating machines, shall be registered at the guard's desk at the entrance to buildings for the purpose of controlling such equipment.
(c) In the discharge of official duties, Library officials are authorized to inspect Government-owned or furnished property assigned to readers and the general public for their use, such as cabinets, lockers, and desks. Unauthorized property or contraband found in the possession of members of the Library staff, readers, or the general public as a result of such inspections will be subject to confiscation by Library officials.
(a) Any person who shall steal, wrongfully deface, injure, mutilate, tear, or destroy library materials, or any portion thereof, shall be punished by a fine of not more than $2,000 or imprisoned not more than 3 years, or both (18 U.S.C. 641; 18 U.S.C. 1361; 18 U.S.C. 2071; and 22 D.C. Code 3106).
(b) Any person who embezzles, steals, purloins, or, without authority, disposes of anything of value of the United States, or willfully injures or commits any depredation against any Government property shall be punished by a fine of not more than $10,000 or imprisoned not more than 10 years, or both; but if the value of such property does not exceed the sum of $100, he shall be fined not more than $1,000 or imprisoned not more than 1 year, or both. (18 U.S.C. 641 and 18 U.S.C. 1361.)
Smoking in Library buildings is prohibited except in those areas specifically designated for this purpose.
The use of “meeting places” in the Library shall be limited to official staff functions, or functions sponsored by the Library. The Library's facilities are not available for meetings, performances or special events that: (a) Involve any organization practicing or promoting discrimination based upon race, religion, color, sex, age, marital status, handicap, national origin, or political affiliation; (b) have a partisan political, sectarian, or similar nature or purpose; (c) are sponsored by profit-making organizations that promote commercial enterprises or commodities.
(a) The soliciting of alms and contributions, commercial soliciting and vending of all kinds, the display or distribution of commercial advertising, the offering or exposing of any article for sale, or the collecting of private debts on the grounds or within the buildings of the Library is prohibted. This rule does not apply to national or local drive for funds for welfare, health, or other purposes sponsored or approved by The Librarian of Congress, nor does it apply to authorized concessions, vending devices in approved areas, or as specifically allowed by the Associate Librarian for Management.
(b) Distribution of material such as pamphlets, handbills, and flyers is prohibited without prior approval of the Associate Librarian for Management.
(c) Peddlers and solicitors will not be permitted to enter Library buildings unless they have a specific appointment, and they will not be permitted to canvass Library buildings.
(a) Persons violating provisions of 2 U.S.C. 167a to 167e, inclusive, regulations promulgated pursuant to 2 U.S.C. 167f, this Regulation, or other applicable Federal laws relating to the Library's property, including its collections, are subject to removal from the premises, to arrest, and to any additional penalties prescribed by law. In instances of mutilation or theft of Library materials or other Library property, prosecution by appropriate authorities shall be in accordance with
(b) Upon written notification by the Associate Librarian for Management, disruptive persons may be denied further access to the premises and may be prohibited from further use of the Library's facilities.
(1) Within three workdays of receipt of such notification, an affected individual may make a written request, including the reasons for such a request, to the Associate Librarian for Management for a reconsideration of said notification.
(2) The Associate Librarian for Management shall respond within three workdays of receipt of such request for reconsideration and may, at his or her option, rescind, modify, or reaffirm said notification.
2 U.S.C. 136.
(a) Subject to limitations set out in this part, Library of Congress records shall be available as hereinafter provided and shall be furnished as promptly as possible within the Library to any member of the public at appropriate places and times and for an appropriate fee, if any.
(b) The Library shall not provide records from its files that originate in another federal agency or non-federal organization to persons who may not be entitled to obtain the records from the originator. In such instances, the Library shall refer requesters to the agency or organization that originated the records.
(c) In order to avoid disruption of work in progress, and in the interests of fairness to those who might be adversely affected by the release of information which has not been fully reviewed to assure its accuracy and completeness, it is the policy of the Library not to provide records which are part of on-going reviews or other current projects. In response to such requests, the Library will inform the requester of the estimated completion date of the review or project so that the requester may then ask for the records. At that time, the Library may release the records unless the same are exempt from disclosure as identified in § 703.4.
The administration of this part shall be the responsibility of the Chief, Office Systems Services (OSS), Library of Congress, 101 Independence Avenue, S.E., Washington, DC 20540-9440, and to that end, the Chief may promulgate such supplemental rules or guidelines as may be necessary.
(a)
(b)
(c)
(d)
(e)
(a) The public disclosure of Library records provided for by this part does not apply to records, or any parts thereof, within any of the categories set out below. Unless precluded by law, the Chief, OSS, nevertheless may release records within these categories, except for Congressional correspondence and other materials identified in §703.4 (b)(1), after first consulting with the General Counsel.
(b) Records exempt from disclosure under these regulations are the following:
(1) Congressional correspondence and other materials relating to work performed in response to or in anticipation of Congressional requests, unless authorized for release by officials of the Congress.
(2) Materials specifically authorized under criteria established by Executive Order to be withheld from public disclosure in the interest of national defense or foreign policy and that are properly classified pursuant to Executive Orders.
(3) Records related solely to the internal personnel rules and practices of the Library. This category includes, in addition to internal matters of personnel administration, internal rules and practices which cannot be disclosed without prejudice to the effective performance of a Library function, such as guidelines and procedures used by auditors, investigators, or examiners in the Office of the Inspector General.
(4) Records specifically exempted from disclosure by statute, provided that such statute:
(i) Requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue; or
(ii) Establishes particular criteria for withholding or refers to particular types of matters to be withheld.
(5) Records containing trade secrets and commercial or financial information obtained from a person as privileged or confidential. This exemption may include, but is not limited to, business sales statistics, inventories, customer lists, scientific or manufacturing processes or development information.
(6) Personnel and medical files and similar files the disclosure of which could constitute a clearly unwarranted invasion of personal privacy. This exemption includes all private or personal information contained in files compiled to evaluate candidates for security clearances.
(7) Materials and information contained in investigative or other records compiled for law enforcement purposes.
(8) Materials and information contained in files prepared in connection with government litigation and adjudicative proceedings, except for those portions of such files which are available by law to persons in litigation with the Library.
(9) Records having information contained in or related to examination, operation, or condition reports prepared by, on behalf of, or for the use of an agency responsible for the regulation or supervision of financial institutions.
(10) Inter-agency or intra-agency memoranda, letters or other materials that are part of the deliberative process, the premature disclosure of which would inhibit internal communications or be detrimental to a Library function (e.g., case files in the Manuscript Division).
(11) Records containing information customarily subject to protection as privileged in a court or other proceedings such as information protected by the doctor-patient, attorney work product, or attorney-client privilege.
(12) Information submitted by a person to the Library in confidence or
(13) Materials related to specific patron use of the Library's collections, resources, or facilities either on site or off site. This exemption includes:
(i)
(ii)
(c) Any reasonably segregable portion of a record shall be provided to anyone requesting such records after deletion of the portions which are exempt under this section. A portion of a record shall be considered reasonably segregable when segregation can produce an intelligible record which is not distorted out of context, does not contradict the record being withheld, and can reasonably provide all relevant information.
(a) A request to inspect or obtain a copy of an identifiable record of the Library of Congress shall be submitted in writing to the Chief, OSS, Library of Congress, 101 Independence Avenue, S.E., Washington, DC 20540-9440, who shall promptly record and process the request.
(b) Requests for records shall be specific and shall identify the precise records or materials that are desired by name, date, number, or other identifying data sufficient to allow the OSS staff to locate, retrieve, and prepare the record for inspection or copying and to delete exempted matter where appropriate to do so. Blanket or generalized requests (such as “all matters relating to” a general subject) shall not be honored and shall be returned to the requester.
(c) Records shall be available for inspection and copying in person during business hours.
(d) Records in media other than print (e.g., microforms and machine-readable media) shall be available for inspection in the medium in which they exist. Copies of records in machine-readable media shall be made in media determined by the Chief, OSS.
(e) Library staff shall respond to requests with reasonable dispatch. Use of a record by the Library or Library employees, however, shall take precedence over any request. Under no circumstances shall official records be removed from Library control without the written authorization of The Librarian.
(f) The Chief, OSS, shall make the initial determination on whether:
(1) The record described in a request can be identified and located pursuant to a reasonable search; and
(2) The record (or portions thereof) may be made available or withheld from disclosure under the provisions of this part. In making the initial determinations, the Chief shall consult with any unit in the Library having a continuing substantial interest in the record requested. Where the Chief finds no valid objection or doubt as to the propriety of making the requested record available, the Chief shall honor the request upon payment of prescribed fees, if any are required by §703.7.
(g) If the Chief, OSS, determines that a requested record should be withheld, the Chief shall inform the requester in writing that the request has been denied; shall identify the material withheld; and shall explain the basis for the denial. The Chief shall inform the requester that further consideration of the denied request may be obtained by a letter to the General Counsel setting out the basis for the belief that the denial of the request was unwarranted.
(h) The General Counsel shall make the final determination on any request for reconsideration and shall notify the
(1) If the General Counsel's decision reverses in whole or in part the initial determination by the Chief, OSS, the Chief shall make the requested record, or parts thereof, available to the requester, subject to the provisions of § 703.7.
(2) If the General Counsel's decision sustains in whole or in part the initial determination by the Chief, OSS, the General Counsel shall explain the basis on which the record, or portions thereof, will not be made available.
(a) The Chief, OSS, shall maintain a reading facility for the public inspection and copying of Library records. This facility shall be open to the public from 8:30 a.m. to 4:30 p.m., except Saturdays, Sundays, holidays, and such other times as the Library shall be closed to the public.
(b) The General Counsel shall advise the Chief, OSS, of the records to be available in the public reading facility following consultation with the Library managers who may be concerned.
(a) The Library will charge no fees for:
(1) Access to or copies of records under the provisions of this part when the direct search and reproduction costs are less than $10.
(2) Records requested which are not found or which are determined to be exempt under the provisions of this part.
(3) Staff time spent in resolving any legal or policy questions pertaining to a request.
(4) Copies of records, including those certified as true copies, that are furnished for official use to any officer or employee of the federal government.
(5) Copies of pertinent records furnished to a party having a direct and immediate interest in a matter pending before the Library, when furnishing such copies is necessary or desirable to the performance of a Library function.
(b) When the costs for services are $10 or more, the Chief, OSS, shall assess and collect the fees and charges set out in the appendix to this part for the direct costs of search and reproduction of records available to the public.
(c) The Chief, Office Systems Services, is authorized to waive fees and charges, in whole or in part, where it is determined that the public interest is best served to do so, because waiver is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requester. Persons seeking a waiver or reduction of fees may be required to submit a written statement setting forth the intended purpose for which the records are requested or otherwise indicate how disclosure will primarily benefit the public and, in appropriate cases, explain why the volume of records requested is necessary. Determinations made pursuant to the authority set out herein are solely within the discretion of the Chief, OSS.
(d) Fees and charges for services identified in the appendix to this part shall be paid in full by the requester before the records are delivered. Payment shall be made in U.S. funds by personal check, money order, or bank draft made payable to the Library of Congress. The Chief, OSS, shall remit all fees collected to the Director, Financial Services, who shall cause the same to be credited to appropriate accounts or deposited with the U.S. Treasury as miscellaneous receipts.
(e) The Chief, OSS, shall notify a requester and may require an advance deposit where the anticipated fees will exceed $50.
(a) Searches.
(1) There is no charge for searches of less than one hour.
(2) Fees charged for searches of one hour or more are based on prevailing rates.
Currently, those charges are:
(3) In situations involving the use of computers to locate and extract the requested information, charges will be based on the direct cost to the Library, including labor, material, and computer time.
(b) Duplication of Records. Fees charged for the duplication of records shall be according to the prevailing rates established by the Library's Photoduplication Service, or in the case of machine media duplication, by the Resources Management Staff, Information Technology Services.
(c) Certifications. The fee charges for certification of a record as authentic or a true copy shall be $10.00 for each certificate.
(d) Other Charges. When no specific fee has been established for a service required to meet the request for records, the Chief, Office Systems Services, shall establish an appropriate fee based on direct costs in accordance with the Office of Management and Budget Circular No. A-25.
Public Law 102-307, 106 Stat. 267 (2 U.S.C. 179).
(a) All of the films nominated for inclusion in the National Film Registry should reflect the mission of the National Film Registry in the Library of Congress, found in section 202 of the National Film Preservation Act of 1992 (Pub. L. 102-307), of “maintaining and preserving films that are culturally, historically or aesthetically significant.”
(b) In accordance with the intent of Congress, all of the guidelines for the selection of films in the National Film Registry are intended to be read broadly, so that as many films as possible will be eligible for inclusion in the National Film Registry.
(c) For the purposes of film selection, the term “film” means a “motion picture” as defined in the U.S. copyright law, except, that the term “film” does not include any work not originally fixed on film stock, such as a work fixed on videotape or laser disks. “Motion pictures” are defined in the copyright law as: “audiovisual works consisting of a series of related images which, when shown in succession, impart an impression of motion, together with accompanying sounds, if any.” 17 U.S.C. 101.
(d) Films should not be considered for inclusion in the National Film Registry if no element or copy of the film exists. While the Librarian intends to promote the goals of film preservation and restoration provided for in the Act, no film will be denied inclusion in the National Film Registry because that film has already been preserved or restored.
(e) No film is eligible for inclusion in the National Film Registry until 10 years after such film's first publication. “Publication” is defined in the copyright act as: “the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public
(a) The public shall be informed of all open meetings of the National Film Preservation Board.
(b) A mailing address within the Library of Congress will be maintained to allow the public to make nominations of films to the Librarian and the National Film Preservation Board. All nominations should include the film title, and any other relevant information necessary to prevent confusion with similarly named titles.
(c) Materials will be available to congressional offices and members of the Board to make information available to the public regarding nominations of films. Materials will also be made available for distribution to libraries, movie theaters, and through the guilds and societies representing directors, producers, screenwriters, actors, cinematographers, film critics, film preservation organizations and representatives of academic institutions with film study programs, in order to encourage broad participation from the general public. Nominations received by the Librarian, will be forwarded to the Board to assist in the film selection process.
(d) All nominations for inclusion of films in the National Film Registry must be submitted in writing to the Librarian of Congress no later than March 30th of each year. All nominations should be mailed to: National Film Registry, Library of Congress, Washington, DC 20540.
(a) The Librarian of Congress, Dr. James H. Billington, after consultation with the National Film Preservation Board registers these films in the National Film registry within the Library of Congress for 1989:
(1) The Best Years Of Our Lives (1946)
(2) Casablanca (1942)
(3) Citizen Kane (1941)
(4) The Crowd (1928)
(5) Dr. Strangelove (or, How I Learned To Stop Worrying And Love the Bomb) (1964)
(6) The General (1927)
(7) Gone With The Wind (1939)
(8) The Grapes Of Wrath (1940)
(9) High Noon (1952)
(10) Intolerance (1916)
(11) The Learning Tree (1969)
(12) The Maltese Falcon (1941)
(13) Mr. Smith Goes to Washington (1939)
(14) Modern Times (1936)
(15) Nanook Of The North (1922)
(16) On The Waterfront (1954)
(17) The Searchers (1956)
(18) Singin’ In The Rain (1952)
(19) Snow White And The Seven Dwarfs (1937)
(20) Some Like it Hot (1959)
(21) Star Wars (1977)
(22) Sunrise (1927)
(23) Sunset Boulevard (1950)
(24) Vertigo (1958)
(25) The Wizard Of Oz (1939)
(b) In keeping with section 3(c) of the Act, 2 U.S.C. 178b, the Librarian will endeavor to obtain an archival quality copy for each of these twenty-five films for the National Film Board Collection in the Library of Congress.
(a) The Librarian of Congress, Dr. James H. Billington, after consultation with the National Film Preservation Board registers these films in the National Film Registry within the Library of Congress for 1990:
(1) All About Eve (1950)
(2) All Quiet On the Western Front (1930)
(3) Bringing Up Baby (1938)
(4) Dodsworth (1936)
(5) Duck Soup (1933)
(6) Fantasia (1940)
(7) The Freshman (1925)
(8) The Godfather (1972)
(9) The Great Train Robbery (1903)
(10) Harlan County, U.S.A. (1976)
(11) How Green Was My Valley (1941)
(12) It's A Wonderful Life (1946)
(13) Killer Of Sheep (1977)
(14) Love Me Tonight (1932)
(15) Meshes Of the Afternoon (1943)
(16) Ninotchka (1939)
(17) Primary (1960)
(18) Raging Bull (1980)
(19) Rebel Without A Cause (1955)
(20) Red River (1948)
(21) The River (1937)
(22) Sullivan's Travels (1941)
(23) Top Hat (1935)
(24) The Treasure Of The Sierra Madre (1948)
(25) A Woman Under The Influence (1974)
(b) In keeping with section 3(c) of the Act (2 U.S.C. 178b), the Librarian will endeavor to obtain an archival quality copy for each of these twenty-five films for the National Film Board Collection in the Library of Congress.
(a) The Librarian of Congress, Dr. James H. Billington, after consultation with the National Film Preservation Board registers these films in the National Film Registry within the Library of Congress for 1991:
(1) 2001: A Space Odyssey (1968)
(2) Battle Of San Pietro, The (1945)
(3) Blood Of Jesus, The (1941)
(4) Chinatown (1974)
(5) City Lights (1931)
(6) David Holzman's Diary (1968)
(7) Frankenstein (1931)
(8) Gertie The Dinosaur (1914)
(9) Gigi (1958)
(10) Greed (1924)
(11) High School (1968)
(12) I Am A Fugitive From A Chain Gang (1932)
(13) Italian, The (1915)
(14) King Kong (1933)
(15) Lawrence Of Arabia (1962)
(16) Magnificent Ambersons, The (1942)
(17) My Darling Clementine (1946)
(18) Out Of The Past (1947)
(19) Place In The Sun, A (1951)
(20) Poor Little Rich Girl (1917)
(21) Prisoner of Zenda, The (1937)
(22) Shadow Of A Doubt (1943)
(23) Sherlock, Jr. (1924)
(24) Tevye (1939)
(25) Trouble In Paradise (1932)
(b) In keeping with section 3(c) of the Act, 2 U.S.C. 178b, the Librarian will endeavor to obtain an archival quality copy for each of these twenty-five films for the National Film Board Collection in the Library of Congress.
(a) The Librarian of Congress, Dr. James H. Billington, after consultation with the National Film Preservation Board, registers these films in the National Film Registry within the Library of Congress for 1992:
(b) In keeping with section 206(a) of the Act, 2 U.S.C. 179d(a), the Librarian shall endeavor to obtain an archival quality copy for each of these twenty-five films for the National Film Registry Collection of the Library of Congress.
(a) The Librarian of Congress, Dr. James H. Billington, after consultation with the National Film Preservation Board, registers these films in the National Film Registry within the Library of Congress for 1993:
(b) In keeping with section 206(a) of the Act, 2 U.S.C. 179d(a), the Librarian shall endeavor to obtain an archival quality copy for each of these twenty-five films for the National Film Registry Collection of the Library of Congress.
5 U.S.C. 5514 and 5 CFR 550.1101.
(a)
(b)
(2)
(3)
(c)
(i) The Library's determination that a debt is owed, including the origin, nature, and amount of the debt;
(ii) The Library's intention to collect the debt by means of deduction from the staff member's disposable pay account;
(iii) The amount, frequency, proposed beginning date, and duration of the intended deductions;
(iv) An explanation of the Library's policy concerning interest, penalties, and administrative costs, including a statement that such assessments must be made unless excused;
(v) The staff member's right to inspect and to copy Government records relating to the debt or, if he or she or his or her representative cannot personally inspect the records, to request and receive a copy of such records;
(vi) If not previously provided, the opportunity (under terms agreeable to the Library) to establish a schedule for the voluntary repayment of the debt or to enter into a written agreement to establish a schedule for the repayment of the debt in lieu of offset (the agreement must be in writing, signed by both the staff member and the Library, and documented in the Library's files);
(vii) The staff member's right to a hearing conducted by an official arranged for or engaged by the Library (an administrative law judge or, alternatively, a hearing official not under the control of the Librarian of Congress) if a petition is filed as prescribed by the Library;
(viii) The method and time period for petitioning for a hearing;
(ix) That the timely filing of a petition for hearing will stay the commencement of collection proceedings;
(x) That a final decision on the hearing, if one is requested, will be issued at the earliest practicable date, but not later than 60 days after the filing of the petition requesting the hearing unless the staff member requests and the hearing official grants a delay in the proceedings;
(xi) That any knowingly false or frivolous statements, representations, or evidence may subject the staff member to
(A) Disciplinary procedures appropriate under Library of Congress Regulation 2020-3, or any other applicable regulations or statutes,
(B) Penalties under the False Claim Act, Section 3729 of Title 31, U.S. Code, or any other applicable statutory authority, or
(C) Criminal penalties under Sections 286, 287, 1001, and 1002 of Title 18, U.S. Code, or any other applicable statutory authority;
(xii) Any other rights and remedies available to the staff member under statutes or regulations governing the program for which the collection is being made;
(xiii) Unless there are applicable contractual or statutory provisions to the contrary, that amounts paid on or deducted for the debt which are later waived or found not owed to the United States will be promptly refunded to the staff member;
(xiv) That if the staff member elects not to contest the determination of indebtedness or the amount or the terms of a repayment schedule, the staff member may still wish to exercise the right to request a waiver of the collection of the indebtedness pursuant to the provisions of Library of Congress Regulation 1556,
(xv) That any involuntary payments already made or withheld from salary of any portion of the indebtedness will not be construed as a waiver by the staff member of any rights that he or she may have under this part.
(2)
(3)
(ii) The petition or statement must be signed by the staff member and must fully identify and explain with reasonable specificity all the facts, evidence, and witnesses, if any, which he or she believes supports his or her position.
(iii) Petitions for hearings made later than 15 days after the receipt of the notification of indebtedness will be accepted provided the staff member can show that the delay was because of circumstances beyond his or her control or because of failure to receive notice of the time limit (unless otherwise aware of it).
(4)
(ii) A written decision will be provided to the staff member and must, at a minimum, state the fact(s) purported
(d)
(e)
(2) An exception to the entitlement of notice, hearings, written responses, and final decisions provided for under paragraph (c) of this section is made for overpayments arising out of an employee's election of coverage or a change in coverage under a Federal benefits program requiring periodic deductions from pay, if the amount to be recovered was accumulated over four pay periods or less.
Pub. L. 89-665, 80 Stat. 915 (16 U.S.C. 470), as amended, 84 Stat. 204 (1970), 87 Stat. 139 (1973), 90 Stat. 1320 (1976), 92 Stat. 3467 (1978): E.O. 11593, 3 CFR 1971 Comp., p. 154.
(a)
(b)
(c)
(i)
(ii)
(iii)
(2)
(i)
(ii)
(iii)
(iv)
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(i)
(j)
(k)
(l)
(m)
(n)
(o)
(a)
(b)
(c)
(a)
(i) Review existing information on historic properties potentially affected by the undertaking, including any data concerning the likelihood that undentified historic properties exist in the area of potential effects;
(ii) Request the views of the State Historic Preservation Officer on further actions to identify historic properties that may be affected; and
(iii) Seek information in acordance with agency planning processes from
(2) Based on this assessment, the Agency Official should determine any need for further actions, such as field surveys and predictive modeling, to identify historic properties.
(b)
(c)
(2) If the Agency Official and the State Historic Preservation Officer agree that a property is eligible under the criteria, the property shall be considered eligible for the National Register for section 106 purposes.
(3) If the Agency Official and the State Historic Preservation Officer agree that the criteria are not met, the property shall be considered not eligible for the National Register for section 106 purposes.
(4) If the Agency Official and the State Historic Preservation Officer do not agree, or if the Council or the Secretary so request, the Agency Official shall obtain a determination from the Secretary of the Interior pursuant to the applicable National Park Service regulations.
(5) If the State Historic Preservation Officer does not provide views, then the State Historic Preservation Officer is presumed to agree with the Agency Official's determination for the purpose of this subsection.
(d)
(e)
(a)
(b)
(c)
(d)
(i) Obtain the State Historic Preservation Officer's concurrence with the finding and notify and submit to the Council summary documentation, which shall be available for public inspection; or
(ii) Submit the finding with necessary documentation (§ 800.8(a)) to the Council for a 30-day review period and notify the State Historic Preservation Officer.
(2) If the Council does not object to the finding of the Agency Official within 30 days of receipt of notice, or if the Council objects but proposes changes that the Agency Official accepts, the Agency Official is not required to take any further steps in the section 106 process other than to comply with any agreement with the State Historic Preservation Officer or Council concerning the undertaking. If the Council objects and the Agency Official does not agree with changes proposed by the Council, then the effect shall be considered as adverse.
(e)
(1)
(i) The head of a local government when the undertaking may affect historic properties within the local government's jurisdiction;
(ii) The representative of an Indian tribe in accordance with § 800.1(c)(2)(iii);
(iii) Applicants for or holders of grants, permits, or licenses, and owners of affected lands; and
(iv) Other interested persons when jointly determined appropriate by the Agency Official, the State Historic Preservation Officer, and the Council, if participating.
(2)
(3)
(4)
(5)
(6)
(a)
(i) Accept the Memorandum of Agreement, which concludes the section 106 process, and informs all consulting parties; or
(ii) Advise the Agency Official of changes to the Memorandum of Agreement that would make it acceptable; subsequent agreement by the Agency Official, the State Historic Preservation Officer, and the Council concludes the section 106 process; or
(iii) Decide to comment on the undertaking, in which case the Council shall provide its comments within 60 days of receiving the Agency Official's submission, unless the Agency Official agrees otherwise.
(2) If the Agency Official, the State Historic Preservation Officer, and the Council do not reach agreement in accordance with § 800.6(a)(1)(ii), the Agency Official shall notify the Council, which shall provide its comments within 30 days of receipt of notice.
(b)
(2) The Agency Official shall make a good faith effort to provide reasonably available additional information concerning the undertaking and shall assist the Council in arranging an onsite inspection and public meeting when requested by the Council.
(3) The Council shall provide its comments to the head of the agency requesting comment. Copies shall be provided to the State Historic Preservation Officer, interested persons, and others as appropriate.
(c)
(2) When the Council had commented pursuant to § 800.6(b), the Agency Official shall consider the Council's comments in reaching a final decision on the proposed undertaking. The Agency Official shall report the decision to the Council, and if possible, should do so prior to initiating the undertaking.
(d)
(2) The Agency Official will be given notice and a reasonable opportunity to respond prior to a proposed Council determination that the agency has foreclosed the Council's opportunity to comment.
(e)
(2) In light of the Council views, the Agency Official should reconsider the finding. However, an inquiry to the Council will not suspend action on an undertaking.
(3) When the finding concerns the eligibility of a property for the National Register, the Council shall refer the matter to the Secretary.
(a)
(i) The State historic preservation program has been approved by the Secretary pursuant to section 101(b)(1) of the Act; and
(ii) The Council, after analysis of the State's review process and consideration of the views of Federal and State agencies, local governments, Indian tribes, and the public, determines that the State review process is at least as effective as, and no more burdensome than, the procedures set forth in these regulations in meeting the requirements of section 106.
(2) The Council, in analyzing a State's review process pursuant to § 800.7(a)(1)(ii), shall:
(i) Review relevant State laws, Executive orders, internal directives, standards, and guidelines;
(ii) Review the organization of the State's review process;
(iii) Solicit and consider the comments of Federal and State agencies, local governments, Indian tribes, and the public;
(iv) Review the results of program reviews carried out by the Secretary; and
(v) Review the record of State participation in the section 106 process.
(3) The Council will enter into an agreement with a State under this section only upon determining, at minimum, that the State has a demonstrated record of performance in the section 106 process and the capability to administer a comparable process at the State level.
(4) A State agreement shall be developed through consultation between the State Historic Preservation Officer and the Council and concurred in by the Secretary before submission to the Council for approval. The Council may invite affected Federal and State agencies, local governments, Indian tribes, and other interested persons to participate in this consultation. The agreement shall:
(i) Specify the historic preservation review process employed in the State, showing that this process is at least as effective as, and no more burdensome than, that set forth in these regulations;
(ii) Establish special provisions for participation of local governments or Indian tribes in the review of undertakings falling within their jurisdiction, when appropriate;
(iii) Establish procedures for public participation in the State review process;
(iv) Provide for Council review of actions taken under its terms, and for appeal of such actions to the Council; and
(v) Be certified by the Secretary as consistent with the Secretary's Standards and Guidelines for Archaeology and Historic Preservation.
(5) Upon concluding a State agreement, the Council shall publish notice of its execution in the
(b)
(2) At any time during review of an undertaking under a State agreement, an Agency Official may terminate such
(3) At any time during review of an undertaking under a State agreement, the Council may participate. Participants are encouraged to draw upon the Council's expertise as appropriate.
(c)
(2) The Council may terminate a State agreement after consultation with the State Historic Preservation Officer and the Secretary.
(3) A State agreement may be terminated by the State Historic Preservation Officer.
(4) When a State agreement is terminated pursuant to § 800.7(c) (2) and (3), such termination shall have no effect on undertakings for which review under the agreement was complete or in progress at the time the termination occurred.
(a)
(1) A description of the undertaking, including photographs, maps, and drawings, as necessary;
(2) A description of historic properties that may be affected by the undertaking;
(3) A description of the efforts used to identify historic properties;
(4) A statement of how and why the criteria of adverse effect were found inapplicable; and
(5) The views of the State Historic Preservation Officer, affected local governments, Indian tribes, Federal agencies, and the public, if any were provided, as well as a description of the means employed to solicit those views.
(b)
(1) A description of the undertaking, including photographs, maps, and drawings, as necessary;
(2) A description of the efforts to identify historic properties;
(3) A description of the affected historic properties, using materials already compiled during the evaluation of significance, as appropriate; and
(4) A description of the undertaking's effects on historic properties.
(c)
(d)
(1) A description of the undertaking, with photographs, maps, and drawings, as necessary;
(2) A description of the efforts to identify historic properties;
(3) A description of the affected historic properties, with information on the significant characteristics of each property;
(4) A description of the effects of the undertaking on historic properties and the basis for the determinations;
(5) A description and evaluation of any alternatives or mitigation measures that the Agency Official proposes for dealing with the undertaking's effects;
(6) A description of any alternatives or mitigation measures that were considered but not chosen and the reasons for their rejection;
(7) Documentation of consultation with the State Historic Preservation Officer regarding the identification and
(8) A description of the Agency Official's efforts to obtain and consider the views of affected local governments, Indian tribes, and other interested persons;
(9) The planning and approval schedule for the undertaking; and
(10) Copies or summaries of any written views submitted to the Agency Official concerning the effects of the undertaking on historic properties and alternatives to reduce or avoid those effects.
(a) An undertaking has an effect on a historic property when the undertaking may alter characteristics of the property that may qualify the property for inclusion in the National Register. For the purpose of determining effect, alteration to features of a property's location, setting, or use may be relevant depending on a property's significant characteristics and should be considered.
(b) An undertaking is considered to have an adverse effect when the effect on a historic property may diminish the integrity of the property's location, design, setting, materials, workmanship, feeling, or association. Adverse effects on historic properties include, but are not limited to:
(1) Physical destruction, damage, or alteration of all or part of the property;
(2) Isolation of the property from or alteration of the character of the property's setting when that character contributes to the property's qualification for the National Register;
(3) Introduction of visual, audible, or atmospheric elements that are out of character with the property or alter its setting;
(4) Neglect of a property resulting in its deterioration or destruction; and
(5) Transfer, lease, or sale of the property.
(c) Effects of an undertaking that would otherwise be found to be adverse may be considered as being not adverse for the purpose of these regulations:
(1) When the historic property is of value only for its potential contribution to archeological, historical, or architectural research, and when such value can be substantially preserved through the conduct of appropriate research, and such research is conducted in accordance with applicable professional standards and guidelines;
(2) When the undertaking is limited to the rehabilitation of buildings and structures and is conducted in a manner that preserves the historical and architectural value of affected historic property through conformance with the Secretary's “Standards for Rehabilitation and Guidelines for Rehabilitating Historic Buildings”, or
(3) When the undertaking is limited to the transfer, lease, or sale of a historic property, and adequate restrictions or conditions are included to ensure preservation of the property's significant historic features.
Section 110(f) of the Act requires that the Agency Official, to the maximum extent possible, undertake such planning and actions as may be necessary to minimize harm to any National Historic Landmark that may be directly and adversely affected by an undertaking. When commenting on such undertakings, the Council shall use the process set forth in §§ 800.4 through 800.6 and give special consideration to protecting National Historic Landmarks as follows:
(a) Any consultation conducted under § 800.5(e) shall include the Council;
(b) The Council may request the Secretary under section 213 of the Act to provide a report to the Council detailing the significance of the property, describing the effects of the undertaking on the property, and recommending measures to avoid, minimize, or mitigate adverse effects; and
(c) The Council shall report its comments, including Memoranda of Agreement, to the President, the Congress, the Secretary, and the head of the
(a)
(b)
(2) When an Agency Official has completed the section 106 process without preparing a plan in accordance with § 800.11(a) and finds after beginning to carry out the undertaking that the undertaking will affect a previously unidentified property that may be eligible for inclusion in the National Register, or affect a known historic property in an unanticipated manner, the Agency Official shall afford the Council an opportunity to comment by choosing one of the following courses of action:
(i) Comply with § 800.6;
(ii) Develop and implement actions that take into account the effects of the undertaking on the property to the extent feasible and the comments from the State Historic Preservation Officer and the Council pursuant to § 800.11(c); or
(iii) If the property is principally of archeological value and subject to the requirements of the Archeological and Historic Preservation Act, 16 U.S.C. 469(a)-(c), comply with that Act and implementing regulations instead of these regulations.
(3) Section 106 and these regulations do not require the Agency Official to stop work on the undertaking. However, depending on the nature of the property and the undertaking's apparent effects on it, the Agency Official should make reasonable efforts to avoid or minimize harm to the property until the requirements of this section are met.
(c)
(2) When an Agency Official elects to comply with § 800.11(b)(2)(ii), the Agency Official shall notify the State Historic Preservation Officer and the Council at the earliest possible time, describe the actions proposed to take effects into account, and request the Council's comments. The Council shall provide interim comments to the Agency Official within 48 hours of the request and final comments to the Agency Official within 30 days of the request.
(3) When an Agency Official complies with § 800.11(b)(2)(iii), the Agency Official shall provide the State Historic Preservation Officer an opportunity to comment on the work undertaken and provide the Council with a report on the work after it is undertaken.
(d)
(2) When a discovery occurs and compliance with this section is necessary on lands under the jurisdiction of an Indian tribe, the Agency Official shall consult with the Indian tribe during implementation of this section's requirements.
(a) When a Federal agency head proposes an emergency action and elects to waive historic preservation responsibilities in accordance with 36 CFR 78.3, the Agency Official may comply with the requirements of 36 CFR part 78 in lieu of these regulations. An Agency Official should develop plans
(b) When an Agency Official proposes an emergency undertaking as an essential and immediate response to a disaster declared by the President or the appropriate Governor, and § 800.12(a) does not apply, the Agency Official may satisfy section 106 by notifying the Council and the appropriate State Historic Preservation Officer of the emergency undertaking and affording them an opportunity to comment within seven days if the Agency Official considers that circumstances permit.
(c) For the purposes of activities assisted under title I of the Housing and Community Development Act of 1974, as amended, § 800.12(b) also applies to an imminent threat to public health or safety as a result of natural disaster or emergency declared by a local government's chief executive officer or legislative body, provided that if the Council or the State Historic Preservation Officer objects, the Agency Official shall comply with §§ 800.4 through 800.6.
(d) This section does not apply to undertakings that will not be implemented within 30 days after the disaster or emergency. Such undertakings shall be reviewed in accordance with §§ 800.4 through 800.6.
(a)
(1) When effects on historic properties are similar and repetitive or are multi-State or national in scope;
(2) When effects on historic properties cannot be fully determined prior to approval;
(3) When non-Federal parties are delegated major decisionmaking responsibilities;
(4) That involve development of regional or land-management plans; or
(5) That involve routine management activities at Federal installations.
(b)
(c)
(d)
(e)
(f)
(g)
To the extent feasible, Agency Officials, State Historic Preservation Officers, and the Council should encourage coordination of implementation of these regulations with the steps taken to satisfy other historic preservation and environmental authorities by:
(a) Integrating compliance with these regulations with the processes of environmental review carried out pursuant to the National Environmental Policy Act, and coordinating any studies needed to comply with these regulations with studies of related natural and social aspects;
(b) Designing determinations and agreements to satisfy the terms not only of section 106 and these regulations, but also of the requirements of such other historic preservation authorities as the Archeological and Historic Preservation Act, the Archeological Resources Protection Act, section 110 of the National Historic Preservation Act, and section 4(f) of the Department of Transportation Act, as applicable, so that a single document can be used for the purposes of all such authorities;
(c) Designing and executing studies, surveys, and other information-gathering activities for planning and undertaking so that the resulting information and data is adequate to meet the requirements of all applicable Federal historic preservation authorities; and
(d) Using established agency public involvement processes to elicit the views of the concerned public with regard to an undertaking and its effects on historic properties.
In consultation with the Council, agencies may develop counterpart regulations to carry out the section 106 process. When concurred in by the Council, such counterpart regulations shall stand in place of these regulations for the purposes of the agency's compliance with section 106.
Pub. L. 89-665, 80 Stat. 915 (16 U.S.C. 470); Pub. L. 94-422, 90 Stat. 1320 (16 U.S.C. 470(i)); Pub. L. 96-399, 94 Stat. 1619 (42 U.S.C. 5320).
(a) These regulations are required by section 110(c) of the Housing and Community Development Act of 1980 (HCDA) (42 U.S.C. 5320) and apply only to projects proposed to be funded by the Department of Housing and Urban Development (HUD) under the Urban Development Action Grant (UDAG) Program authorized by title I of the Housing and Community Development Act of 1974, as amended (42 U.S.C. 5301). These regulations establish an expedited process for obtaining the comments of the Council specifically for the UDAG program and, except as specifically provided, substitute for the Council's regulations for the “Protection of Historic and Cultural Properties” (36 CFR part 800).
(b) Section 110(c) of the HCDA of 1980 requires UDAG applicants to: (1) Identify all properties, if any, which are included in the National Register of Historic Places and which will be affected
(c) Section 106 of the National Historic Preservation Act of 1966, as amended (16 U.S.C. 470), requires the head of any Federal agency with jurisdiction over a Federal, federally assisted or federally licensed undertaking that affects a property included in or eligible for inclusion in the National Register of Historic Places to take into account the effect of the undertaking on such property and afford the Council a reasonable opportunity to comment. Under the UDAG program, applicants assume the status of a Federal agency for purposes of complying with section 106.
The terms defined in 36 CFR 800.2 shall be used in conjunction with this regulation. Furthermore, as used in these regulations:
(a)
(b)
(c)
(d)
(e)
As early as possible before the applicant makes a final decision concerning a project and in any event prior to taking any action that would foreclose alternatives or the Council's ability to comment, the applicant should take the following steps to comply with the requirements of section 106 of the National Historic Preservation Act and section 110 of the HCDA of 1980.
(a)
(b)
(1) Consulting the National Register of Historic Places to determine whether the project's impact area includes such properties;
(2) Obtaining, prior to initiating the State Historic Preservation Officer Review Period, relevant information that the State Historic Preservation Officer may have available concerning historic properties, if any are known, in the project's impact area;
(3) Utilizing local plans, surveys, and inventories of historic properties prepared by the locality or a recognized State or local historic authority;
(4) Utilizing other sources of information or advice the applicant deems appropriate;
(5) Conducting an on-the-ground inspection of the project's impact area by qualified personnel to identify properties which may meet the Criteria for evaluation taking into consideration the views of the State Historic Preservation Officer as to the need for and methodology of such inspections;
(6) Applying the Department of the Interior Criteria for Evaluation (36 CFR 60.6) to properties within the project's impact area.
(c)
(1)
(i)
(ii)
(A) Destruction or alteration of all or part of a property;
(B) Isolation from or alteration of the property's surrounding environment;
(C) Introduction of visual, audible, or atmospheric elements that are out of character with the property or alter its setting;
(D) Neglect of a property resulting in its deterioration or destruction;
(iii)
(A) Insulation (except for the use of granular or liquid injected foam insulation in exterior walls or other vertical surfaces);
(B) Caulking;
(C) Weatherstripping;
(D) Replacement of Heating, Ventilating and Air Conditioning (HVAC) equipment, provided that such equipment is not historic and that replacement equipment is screened from public view and that the State Historic Preservation Officer and the applicant agree the equipment will not affect those qualities of the property which qualify it to meet the 36 CFR 60.6 Criteria;
(E) In-kind refenestration (for example, replacement of deteriorated windows of a similar configuration, color and material);
(F) Lowering of ceilings, provided the ceilings will not be visible from outside of the building or from an interior public space and that the State Historic Preservation Officer and the applicant agree it will not affect a quality which qualified the building to meet the 36 CFR 60.6 Criteria;
(G) Replacement in-kind of substantially deteriorated material, provided that the State Historic Preservation Officer and the applicant agree;
(H) Installation of machinery, equipment, furnishings, fixtures, etc., in the interior of existing buildings, provided that the State Historic Preservation Officer and the applicant agree such installations will not affect a quality which qualified the building to meet the 36 CFR 60.6 Criteria.
(I) Site improvements such as sidewalk paving and landscaping, provided that the State Historic Preservation Officer and the applicant agree that the site improvement will not affect those qualities of the property which qualify it to meet the 36 CFR 60.6 Criteria.
(iv)
(2)
(i)
(ii)
(iii)
The following subsections specify how the Council will respond to an applicant's request for the Council's comments required to satisfy the applicant's responsibilities under section 106 of the Act and section 110 of the HCDA of 1980. When appropriate, an applicant may waive the Council time periods specified in these regulations.
(a)
(b)
(2) If the Executive Director objects to a Determination of No Adverse Effect, the consultation process pursuant to § 801.4(c) shall be initiated.
(c)
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(d)
(2)
(3)
(ii) If the Council has commented on an application that is not approved by HUD and a subsequent UDAG application is made for the same project, the project need not be referred to the Council again unless there is a significant amendment to the project which would alter the effect of the project on previously considered properties or result in effects on additional National Register properties or properties which meet the Criteria.
(iii) Failure to carry out the terms of a Memorandum of Agreement requires that the applicant again request the Council's comments in accordance with these regulations. In such instances, until the Council issues its comments under these regulations the applicant shall not take or sanction any action or make any irreversible or irretrievable commitment that could result in an adverse effect with respect to National Register properties or properties which are eligible for inclusion in the National Register covered by the Agreement or that would foreclose the Council's consideration of modifications or alternatives to the proposed project that could avoid or mitigate the adverse effect.
(4)
(5)
(e)
(1)
(2)
(i) A panel shall consist of three non-Federal members, one as Chairman, and two Federal members. The Department of HUD may not be a member of such panel.
(ii) Prior to any panel or full Council consideration of a matter, the Chairman will notify the applicant and the State Historic Preservation Officer and other interested parties of the date on which the project will be considered. The Executive Director, the applicant, the Department of HUD, and the State Historic Preservation Officer shall prepare reports in accordance with § 801.7(b). Reports from the applicant and the State Historic Preservation Officer must be received by the Executive Director at least 7 days before any meeting.
(3)
(4)
(5)
(6)
(f)
(g)
(h)
(1) The project is identical with an undertaking reviewed by the Council under 36 CFR part 800; and
(2) The project and its impacts are included within the area of potential environmental impact described by the Federal agency;
(a) The State Historic Preservation Officer shall have standing to participate in the review process established by section 110(c) of the HCDA of 1980 whenever it concerns a project located within the State Historic Preservation Officer's jurisdiction by the following means: providing, within 30 days, information requested by an applicant under § 801.3(b); responding, within 45 days, to submittal of a determination by the applicant under section 110 of the HCDA of 1980 that National Register property or property which meets the Criteria may be affected by the proposed project; participating in a Memorandum of Agreement that the applicant or the Executive Director may prepare under this part; and participating in a panel or full Council meeting that may be held pursuant to these regulations. Pursuant to section 110(c) of the HCDA of 1980, the State Historic Preservation Officer has a maximum period of 45 days in which to formally comment on an applicant's determination that the project may affect a property that is listed in the National Register or which may meet the Criteria for listing in the National Register. This period does not include the time during which the applicant seeks information from the State Historic Preservation Officer for determining whether a property meets the Criteria for listing in the National Register and whether such property is affected by the project.
(b) The failure of a State Historic Preservation Officer to participate in any required steps of the process set forth in this part shall not prohibit the Executive Director and the applicant from concluding the section 106 process, including the execution of a Memorandum of Agreement.
The National Historic Preservation Act and the National Environmental Policy Act create separate and distinct responsibilities. The National Historic Preservation Act applies to those aspects of a project which may affect National Register properties and those which are eligible for listing in the National Register. The requirements for the National Environmental Policy Act apply to the effect that the project will have on the human environment. To the extent that the applicant finds it practicable to do so, the requirements of these two statutes should be integrated. Some projects, for reasons other than the effects on historic properties, may require an Environmental Impact Statement (EIS) subject to the time requirements for a draft and final EIS, in which case the applicant may choose to separately relate to the State Historic Preservation Officer, the Department of the Interior, and the Council for purposes of section 110(c) of the HCDA of 1980. In that event, information in the draft EIS should indicate that compliance with section 106 and these regulations is underway and the final EIS should reflect the results of this process. Applicants are directed to 36 CFR 800.9, which describes in detail the manner in which the requirements of these two acts should be integrated and applies to all UDAG applicants under these regulations.
(a)
(i) A general discussion and chronology of the proposed project;
(ii) A description of the proposed project including, as appropriate, photographs, maps, drawings, and specifications;
(iii) A statement that no National Register property or property which meets the Criteria exist in the project area, or a brief statement explaining why the Criteria of Effect (See § 801.3(c)) was found inapplicable;
(iv) Evidence of consultation with the State Historic Preservation Officer concerning the Determination of No Effect; and
(v) Evidence of efforts to inform the public concerning the Determination of No Effect.
(2) The information requirements set forth in this section are meant to serve as guidance for applicants in preparing No Effect Determinations. The information should be retained by the applicant, incorporated into any environmental reports or documents prepared concerning the project, and provided to the Executive Director only in the event of an objection to the applicant's determination.
(b)
(1)
(i) A general discussion and chronology of the proposed project;
(ii) A description of the proposed project including, as appropriate, photographs, maps, drawings and specifications;
(iii) A copy of the National Register form or a copy of the Determination of Eligibility documentation for each property that will be affected by the project including a description of each property's physical appearance and significance;
(iv) A brief statement explaining why each of the Criteria of Adverse Effect
(v) Written views of the State Historic Preservation Officer concerning the Determination of No Adverse Effect, if available; and,
(vi) An estimate of the cost of the project including the amount of the UDAG grant and a description of any other Federal involvement.
(2)
(i) A general discussion and chronology of the proposed project;
(ii) The status of the project in the HUD approval process:
(iii) The status of the project in the National Environmental Policy Act compliance process and the target date for completion of all the applicant's environmental responsibilities;
(iv) A description of the proposed project including as appropriate, photographs, maps, drawings and specifications;
(v) A copy of the National Register form or a copy of the Determination of Eligibility documentation for each property that will be affected by the project including a description of each property's physical appearance and significance;
(vi) A brief statement explaining why any of the Criteria of Adverse Effect (See § 801.3(c)(1)(b)) apply;
(vii) Written views of the State Historic Preservation Officer concerning the effect on the property, if available;
(viii) The views of Federal agencies, State and local governments, and other groups or individuals when known as obtained through the OMB Circular A-95 process or the environmental review process, public hearings or other applicant processes;
(ix) A description and analysis of alternatives that would avoid the adverse effects;
(x) A description and analysis of alternatives that would mitigate the adverse effects; and,
(xi) An estimate of the cost of the project including the amount of the UDAG grant and a description of any other Federal involvement.
(c)
(1)
(2)
(a) The Council encourages maximum public participation in the process established by these regulations. Particularly important, with respect to the UDAG program, is participation by the citizens of neighborhoods directly or indirectly affected by projects, and by groups concerned with historic and cultural preservation.
(b) The applicant, in preparing and following its citizen participation plan called for by 24 CFR 570.456(c)(11)(i)(A), should ensure that adequate provision is made for participation by citizens and organizations having interests in historic preservation and in the historic and cultural values represented in affected neighborhoods. 24 CFR 570.431(c) sets forth criteria for citizen participation plans. These should be carefully considered with specific reference to ensuring that local concerns relevant to historic preservation are fully identified, and that citizens are provided with full and accurate information about each project and its effects on historic properties. The applicant should ensure that potentially concerned citizens and organizations are fully involved in the identification of properties which may meet the National Register Criteria, and that they are fully informed, in a timely manner, of determinations of No Effect, No Adverse Effect, and Adverse Effect, and of the progress of the consultation process. Applicants are referred to 36 CFR 800.15 for Council guidelines for public participation.
(c) The Council welcomes the views of the public, especially those groups which may be affected by the proposed project, during its evaluation of the applicant's determination of effect, and will solicit the participation of the public in Council and panel meetings held to consider projects.
Because of the high probability of locating properties which are listed in the National Register or which meet the Criteria for listing in many older city downtowns, this appendix is designed to serve as guidance for UDAG applicants in identifying such properties. This appendix sets forth guidance for applicants and does not set a fixed or inflexible standard for identification efforts.
In any effort to locate National Register properties or properties which meet the Criteria, the State Historic Preservation Officer is a key source of information and advice. The State Historic Preservation Officer will be of vital assistance to the applicant. The State Historic Preservation Officer can provide information on known properties and on studies which have taken place in and around the project area. Early contact should be made with the State Historic Preservation Officer for recommendations about how to identify historic properties. For UDAG projects, identification of National Register properties and properties which meet the Criteria is the responsibility of the applicant. The extent of the identification effort should be made with the advice of the State Historic Preservation Officer. The State Historic Preservation Officer can be a knowledgeable source of information regarding cases wherein the need for a survey of historic properties is appropriate, recommended type and method of a survey and the boundaries of any such survey. Due consideration should be given to the nature of the project and its impacts, the likelihood of historic properties being affected and the state of existing knowledge regarding historic properties in the area of the project's potential environmental impact.
1. The area of the project's potential environmental impact consists of two distinct subareas: that which will be disturbed directly (generally the construction site and its immediate environs) and that which will experience indirect effects. Within the area of indirect impact, impacts will be induced as a result of carrying the project out. Historic and cultural properties subject to effect must be identified in both subareas, and the level of effort necessary in each may vary. The level of effort needed is also affected by the stage of planning and the quality of pre-existing information. Obviously, if the area of potential environmental impact has already been fully and intensively studied before project planning begins, there is no need to duplicate this effort. The State Historic Preservation Officer should be contacted for information on previous studies. If the area has not been previously intensively studied, identification efforts generally fall into three levels:
a.
(1) Assessing the extent to which the area has been previously subjected to study;
(2) Locating properties previously recorded;
(3) Assessing the probability that properties eligible for the National Register will be found if the area is closely inspected, and
(4) Determining the need, if any, for further investigation.
b.
c.
2. An overview study will normally be needed to provide basic information for planning in the area of potential environmental impact. Unless this study indicates clearly that no further identification efforts are needed (e.g., by demonstrating that the entire area has already been intensively inspected with negative results, or by demonstrating that no potentially significant buildings have ever been built there and there is virtually no potential for archeological resources), and identification study will probably be needed within the area of potential environmental impact. This study may show that there are no potentially eligible properties within the area, or may show that only a few such properties exist and document them sufficiently to permit a determination of eligibility to be made in accordance with 36 CFR part 60. Alternatively, the study may indicate that potentially eligible properties exist in the area, but may not document them to the standards of 36 CFR part 60. Should this occur, a definition and evaluation study is necessary for those properties falling within the project's area of direct effect and for those properties subject to indirect effects. If a property falls within the general area of indirect effect, but no indirect effects are actually anticipated on the property in question, a definition and evaluation study will normally be superfluous.
A. Archeological sites in urban contexts are often difficult to identify and evaluate in advance of construction because they are sealed beneath modern buildings and structures. Prehistoric and historic sites within cities may be important both to science and to an understanding of each city's history, however, and should be considered in proj-ect planning. Special methods can be used to ensure effective and efficient consideration and treatment of archeological sites in UDAG projects.
1. If it is not practical to physically determine the existence or nonexistence of archeological sites in the project area, the probability or improbability of their existence can be determined, in most cases, through study of:
a. Information on the pre-urban natural environment, which would have had an effect on the location of prehistoric sites;
b. Information from surrounding areas and general literature concerning the location of prehistoric sites;
c. State and local historic property registers or inventories;
d. Archeological survey reports;
e. Historic maps, atlases, tax records, photographs, and other sources of information on the locations of earlier structures;
f. Information on discoveries of prehistoric or historic material during previous construction, land levelling, or excavation, and
g. Some minor on-the-ground inspection.
2. Should the study of sources such as those listed in section (1)(a) above reveal that the following conditions exist, it should be concluded that a significant likelihood exists that archeological sites which meet the National Register Criteria exist on the project site:
a. Discoveries of prehistoric or historic material remains have been reliably reported on or immediately adjacent to the proj-ect site, and these are determined by the State Historic Preservation Officer or other archeological authority to meet the Criteria for the National Register because of their potential value for public interpretation or the study of significant scientific or historical research problems; or
b. Historical or ethnographic data, or discoveries of material, indicate that a property of potential cultural value to the community or some segment of the community (e.g., a cemetery) lies or lay within the proj-ect site; or
c. The pre-urbanization environment of the project site would have been conducive to prehistoric occupation, or historic buildings or occupation sites are documented to have existed within the project site in earlier
d. The recent history of the project site has not included extensive and intensive ground disturbance (grading, blasting, cellar digging, etc.) in the location, or extending to the depth at which the remains of significant sites, buildings, or other features would be expected.
B. Where review of sources of information such as those listed in section (1)(a) above reveals no significant likelihood that archeological resources which meet the National Register Criteria exist on the project site, no further review is required with respect to archeology provided the State Historic Preservation Officer concurs.
C. Where review of sources of information such as those listed in section (1)(a) above, reveals that archeological resources which meet the National Register Criteria are likely to exist on the project site, but these resources are so deeply buried that the proj-ect will not intrude upon them, or they are in a portion of the project site that will not be disturbed, a determination of “No Effect” is appropriate in accordance with § 801.3(c)(2)(i).
D. Where review of sources of information such as those listed in section (1)(a) above, reveals that archeological resources which meet the Criteria exist or are likely to exist on the project site, and that the project is likely to disturb them, a determination of “No Adverse Effect” may be made in accordance with § 801.3(c)(2)(ii) if:
1. The applicant and/or developer is committed to fund a professionally supervised and planned pre-construction testing program, and to modification of the project in consultation with the State Historic Preservation Officer to protect or incorporate within the project the archeological resources discovered with a minimum of damage to them, or if:
2. The applicant and/or developer is committed to fund a professionally supervised and planned archeological salvage program, coordinated with site clearing and construction, following the standards of the Secretary of the Interior issued pursuant to the Archeological and Historic Preservation Act (16 U.S.C. 469) and the applicant finds that this program negates the adverse effect, in accordance with the standards set forth in section X of the Council's “Supplementary Guidance for Review of Proposals for Treatment of Archeological Properties” (45 FR 78808).
E. When archeological sites included in the National Register or which meet the Criteria are found to exist on the project site or in the area of the project's environmental impact, and where the project is likely to disturb such resources, and where the adverse effect of such disturbance cannot be negated by archeological salvage, a determination of “Adverse Effect” is appropriate in accordance with § 801.3(a)(2)(iii).
Pub. L. 89-665, 80 Stat. 915 (16 U.S.C. 470), as amended, 84 Stat. 204 (1970), 87 Stat. 139 (1973), 90 Stat. 1320 (1976), 92 Stat. 3467 (1978); E.O. 11593, 3 CFR 1971 Comp., p. 154; President's Memorandum on Environmental Quality and Water Resources Management, July 12, 1978.
(a) The National Environmental Policy Act (NEPA) of 1969 (42 U.S.C. 4321
(b) Executive Order 11991 of May 24, 1977, directed the Council on Environmental Quality (CEQ) to issue regulations to implement the procedural provisions of NEPA. Accordingly, CEQ issued final NEPA regulations (40 CFR parts 1500-1508) on November 29, 1978, which are binding on all Federal agencies as of July 30, 1979. These regulations provide that each Federal agency shall as necessary adopt implementing
The purpose of this part is to establish Council procedures that supplement the NEPA regulations and provide for the implementation of those provisions identified in § 1507.3(b) of the regulations (40 CFR 1507.3(b)).
(a) These procedures apply to actions of the full Council and the Council staff acting on behalf of the full Council.
(b) The following actions are covered by these procedures:
(1) Recommendations for legislation.
(2) Regulations implementing section 106 of the National Historic Preservation Act (NHPA).
(3) Procedures implementing other authorities.
(4) Policy recommendations that do not require implementation by another Federal agency.
(c) In accordance with § 1508.4 of the NEPA regulations (40 CFR 1508.4), Council comments on Federal, federally assisted and federally licensed undertakings provided pursuant to section 106 of the NHPA and 36 CFR part 800 are categorically excluded from these procedures. This exclusion is justified because Federal agencies seeking the Council's comments under section 106 have the responsibility for complying with NEPA on the action they propose. The Council's role is advisory and its comments are to be considered in the agency decisionmaking process. Coordination between the section 106 and the NEPA processes is set forth in 36 CFR 800.9.
(a) Section 1505.1 of the NEPA regulations (40 CFR 1505.1) contains requirements to ensure adequate consideration of environmental documents in agency decisionmaking. To implement these requirements the Council shall:
(1) Consider all relevant environmental documents in evaluating proposals for action;
(2) Ensure that all relevant environmental documents, comments, and responses accompany the proposal through internal Council review processes;
(3) Consider only those alternatives encompassed by the range of alternatives discussed in the relevant environmental documents when evaluating proposals for the Council action; and,
(4) Where an environmental impact statement (EIS) has been prepared consider the specific alternative analyzed in the EIS when evaluating the proposal which is the subject of the EIS.
(b) For each of the Council's principal activities covered by NEPA, the following chart identifies the point at which the NEPA process begins, the point at which it ends, and the key officials required to consider environmental documents in their decisionmaking.
(a) Section 1507.3(c)(2) (40 CFR 1507.3(c)(2)) in conjunction with § 1508.4 requires agencies to establish three typical classes of action for similar treatment under NEPA: actions normally requiring EIS; actions normally requiring assessments but not necessarily EISs; and actions normally not requiring assessments or EISs. Each of
(b) The Council shall independently determine whether an EIS or an environmental assessment is required where:
(1) A proposal for Council action is not covered by one of the typical classes of action above; or
(2) For actions which are covered, the presence of extraordinary circumstances indicates that some other level of environmental review may be appropriate.
The Council shall consult with appropriate Federal and non-Federal agencies and with interested private persons and organizations when it is considering actions involving such parties and requiring environmental assessments. Where other Federal agencies are involved in the proposed action, the Council shall cooperate in the required environmental assessment and the preparation of necessary environmental documents. Where appropriate as determined by the nature and extent of Council involvement in the proposed action, the Council shall assume the status of lead agency.
Interested persons may contact the Executive Director for information regarding the Council's compliance with NEPA.
Pub. L. 89-665, 80 Stat. 915 (16 U.S.C. 470) as amended by Pub. L. 91-243, Pub. L. 93-54, Pub. L. 94-422, Pub. L. 94-458, Pub. L. 96-199, Pub. L. 96-244, Pub. L. 96-515.
This subpart contains the regulations of the Advisory Council on Historic Preservation implementing the Freedom of Information Act (5 U.S.C. 552). Procedures for obtaining the records covered by the Act are established in these regulations. Persons seeking information or records of the Council are encouraged to consult first with the staff of the Council before filing a formal request under the Act pursuant to these regulations. The informal exchange of information is encouraged wherever possible.
(a) Requests for information or records not available through informal channels shall be directed to the Administrative Officer, Advisory Council on Historic Preservation, 1522 K Street NW., Washington, DC 20005. All such requests should be clearly marked “FREEDOM OF INFORMATION REQUEST” in order to ensure timely processing. Requests that are not so marked will be honored, but will be deemed not to have been received by the Council, for purposes of computing the response time, until the date on which they are identified by a member of the Council staff as being a request pursuant to the Freedom of Information Act.
(b) Requests should describe the records sought in sufficient detail to allow Council staff to locate them with a reasonable amount of effort. Thus, where possible, specific information, including dates, geographic location of cases, and parties involved, should be supplied.
(c) A request for all records falling within a reasonably specific category shall be regarded as conforming to the statutory requirement that records be reasonably described if the records can be identified by any process that is not unreasonably burdensome or disruptive of Council operations.
(d) If a request is denied on the ground that it does not reasonably describe the records sought, the denial shall specify the reasons why the request was denied and shall extend to the requester an opportunity to confer
(a) Once a requested record has been identified, the Administrative Officer shall notify the requester of a date and location where the records may be examined or of the fact that copies are available. The notification shall also advise the requester of any applicable fees under § 810.5.
(b) A reply denying a request shall be in writing, signed by the Administrative Officer and shall include:
(1) Reference to the specific exemption under the Act which authorizes the denial of the record, a brief explanation of how the exemption applies to the record requested, and a brief statement of why a discretionary release is not appropriate; and,
(2) A statement that the denial may be appealed under § 810.4 within 30 days by writing to the Executive Director, Advisory Council on Historic Preservation, 1522 K Street NW., Washington, DC 20005.
(c) The requirements of § 810.3 (b)(1) and (2) do not apply to requests denied on the ground that they are not described with reasonable specificity and consequently cannot be identified.
(d) Within 10 working days from receipt of a request, the Administrative Officer shall determine whether to grant or deny the request and shall promptly notify the requester of the decision. In certain unusual circumstances specified below, the time for determinations on requests may be extended up to a total of 10 additional working days. The requester shall be notified in writing of any extension and of the reason for it, as well as of the data on which a determination will be made. Unusual circumstances include:
(1) The need to search for and collect records from field offices or other establishments that are separate from the Washington office of the Council;
(2) The need to search for, collect, and examine a voluminous amount of material which is sought in a request; or,
(3) The need for consultation with another agency having substantial interest in the subject matter of the request.
(a) When a request has been denied, the requester may, within 30 days of receipt of the denial, appeal the denial to the Executive Director of the Council. Appeals to the Executive Director shall be in writing, shall be addressed to the Executive Director, Advisory Council on Historic Preservation, 1522 K Street NW., Washington, DC 20005, and shall be clearly marked “FREEDOM OF INFORMATION APPEAL.” Requests that are not so marked will be honored, but will be deemed not to have been received by the Council, for purposes of computing the response time, until the date on which they are identified by a member of the Council staff as being an appeal pursuant to the Freedom of Information Act.
(b) The appeal will be acted on within 20 working days of receipt. A written decision shall be issued. Where the decision upholds an initial denial of information, the decision shall include a reference to the specific exemption in the Freedom of Information Act which authorizes withholding the information, a brief explanation of how the exemption applies to the record withheld, and a brief statement of why a discretionary release is not appropriate. The decision shall also inform the requester of the right to seek judicial review in the U.S. District Court where the requester resides or has his principal place of business, or in which the agency records are situated, or in the District of Columbia.
(c) If no decision has been issued within 20 working days, the requester is deemed to have exhausted his administrative remedies.
(a) Fees shall be charged according to the schedules contained in paragraph (b) of this section unless it is determined that the requested information
(b) The following charges shall be assessed:
(1) Copies of documents—$0.10 per page.
(2) Clerical searches—$1.00 for each one quarter hour in excess of the first quarter hour spent by clerical personnel in searching for requested records.
(3) Professional searches—$2.00 for each one quarter hour in excess of the first quarter hour spent by professional or managerial personnel in determining which records are covered by a request or other tasks that cannot be performed by clerical personnel.
(c) Where it is anticipated that fees may amount to more than $25.00, the requester shall be advised of the anticipated amount of the fee and his consent obtained before the request is processed. The time limits for processing the request under § 810.3 shall not begin to run until the requester's written agreement to pay the fees has been received. In the discretion of the Administrative Officer, advance payment of fees may be required before requested records are made available.
(d) Payment should be made by check or money order payable to the Advisory Council on Historic Preservation.
(a) The Freedom of Information Act exempts from disclosure nine categories of records which are described in 5 U.S.C. 552(b).
(b) When a request encompasses rec-ords which would be of concern to or which have been created primarily by another Federal agency, the record will be made available by the Council only if the document was created primarily to meet the requirements of the Council's regulations implementing section 106 of the National Historic Preservation Act or other provisions of law administered primarily by the Council. If the record consists primarily of materials submitted by State or local governments, private individuals, organizations, or corporations, to another Federal agency in fulfillment of requirements for receiving assistance, permits, licenses, or approvals from the agency, the Council may refer the request to that agency. The requester shall be notified in writing of the referral.
E.O. 11222; 5 CFR parts 734, 735, and 738; Pub. L. 95-521 Ethics In Government Act, (5 U.S.C. 301).
(a)
(b)
(c)
(a)
(b)
(c)(1)(i) Members of the Council fall into three groups:
(ii)
(iii) The Secretaries of Interior and Agriculture and their designees and the heads of the four other agencies of the United States appointed by the President and their designees are
(iv) The Architect of the Capitol is an
(2) For purposes of these regulations, unless otherwise specified, all members of the Council and their designees shall be referred to as
(3) All Council staff members are referred to as
(a)
(b)
(1) Have a direct or indirect financial interest that conflicts substantially or appears to conflict substantially with the member's or employee's Council duties and responsibilities; or
(2) Engage, directly or indirectly, in financial transactions resulting from, or primarily relying on, information obtained through the member's or employee's Council membership or employment.
(a)
(b)
(2) Members who are the heads of Federal agencies and their designees and the Architect of the Capitol and his designee may not engage in outside activities not compatible with the full and proper discharge of the members’ official duties and responsibilities as members of the Council.
(3) Members who are the heads of Federal agencies and their designees shall abide by the conflict of interest regulations of their own agencies except when they are acting in their official capacities as Council members.
(c)
(1) Engage in outside activities not compatible with the full and proper discharge of the member's official duties and responsibilities as a member of the Council;
(2) Perform outside work or engage in outside activities (i) that are of such a nature that they may be reasonably construed by the public to be the official acts of the Council, (ii) that involve the use of Council facilities, equipment, and supplies of any kind, or (iii) that involve the use for private gain of official Council information not available to the public;
(3) Receive any salary or anything of monetary value from a private source as compensation for services to the Council (18 U.S.C. 209); or
(4) Use the member's Council employment to coerce a person to provide financial benefit to the member or another person.
(d)
(1) Engage in outside employment or other outside activity not compatible with the full and proper discharge of the duties and responsibilities of the employee's Council employment; or
(2) Engage in any activity prohibited by paragraphs (c) (2), (3), and (4) of this section.
Members or employees shall not solicit or accept, directly or indirectly, any gift, gratuity, favor, entertainment, loan, or any other thing of monetary value from a person who has, or is seeking to obtain, business or financial relations with the Council or has interests that may be substantially affected by the performance or nonperformance of Council duties. The Council adopts the exceptions to this prohibition set forth in 5 CFR 735.202 (b) (1) through (4).
(a)
(b)
(c)
(d)
(e)
(a)
(b)
(c)
(d)
(2) Members and employees shall disclose all employment, outside activities or financial interests that relate to, or appear to relate to, the member's or employee's work at the Council.
(3) Members and employees must file a supplementary Statement of Employment and Financial Interests if pertinent information arises or is discovered after any Statement is filed.
(4) If any information required to be included on a Statement of Employment and Financial Interests or supplementary Statement is not known to the member or employee but is known to another person, the member or the employee shall request that other person to submit to the Ethics Counselor information on the member's or employee's behalf.
(e)
(2) Statements of Employment and Financial Interest will be retained by the Ethics Counselor. All Statements shall be destroyed two years after a member or employee leaves a position in which a Statement is required or two years after the member or employee leaves the Council, whichever is earlier.
(a)
(b)
(c)
(a)
(2) Members with unresolved conflicts of interest may be disqualified by the Chairman.
(b)
(a)
(b)
(c)
(a)
(b)
(c)
(d)
(e)
(f)
29 U.S.C. 794.
This part effectuates section 119 of the Rehabilitation, Comprehensive Services, and Developmental Disabilities Amendments of 1978, which amended section 504 of the Rehabilitation Act of 1973 to prohibit discrimination on the basis of handicap in programs or activities conducted by Executive agencies or the United States Postal Service.
This part applies to all programs or activities conducted by the agency.
For purposes of this part, the term—
As used in this definition, the phrase:
(1)
(i) Any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: Neurological; musculoskeletal; special sense organs; respiratory, including speech organs; cardiovascular; reproductive; digestive; genitourinary; hemic and lymphatic; skin; and endocrine; or
(ii) Any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities. The term
(2)
(3)
(4)
(i) Has a physical or mental impairment that does not substantially limit major life activities but is treated by the agency as constituting such a limitation;
(ii) Has a physical or mental impairment that substantially limits major life activities only as a result of the attitudes of others toward such impairment; or
(iii) Has none of the impairments defined in paragraph (1) of this definition but is treated by the agency as having such an impairment.
(1) With respect to preschool, elementary, or secondary education services provided by the agency, a handicapped person who is a member of a class of persons otherwise entitled by statute, regulation, or agency policy to receive education services from the agency.
(2) With respect to any other agency program or activity under which a person is required to perform services or to achieve a level of accomplishment, a handicapped person who meets the essential eligibility requirements and who can acheive the purpose of the program or activity without modifications in the program or activity that the agency can demonstrate would result in a fundamental alteration in its nature;
(3) With respect to any other program or activity, a handicapped person who meets the essential eligibility requirements for participation in, or receipt of benefits from, that program or activity; and
(4)
(a) The agency shall, by August 24, 1987, evaluate its current policies and practices, and the effects thereof, that do not or may not meet the requirements of this part, and, to the extent modification of any such policies and practices is required, the agency shall proceed to make the necessary modifications.
(b) The agency shall provide an opportunity to interested persons, including handicapped persons or organizations representing handicapped persons, to participate in the self-evaluation process by submitting comments (both oral and written).
(c) The agency shall, until three years following the completion of the self-evaluation, maintain on file and make available for public inspection:
(1) A description of areas examined and any problems identified, and
(2) A description of any modifications made.
The agency shall make available to employees, applicants, participants, beneficiaries, and other interested persons such information regarding the provisions of this part and its applicability to the programs or activities conducted by the agency, and make such information available to them in such manner as the head of the agency finds necessary to apprise such persons of the protections against discrimination assured them by section 504 and this regulation.
(a) No qualified handicapped person shall, on the basis of handicap, be excluded from participation in, be denied the benefits of, or otherwise be subjected to discrimination under any program or activity conducted by the agency.
(b)(1) The agency, in providing any aid, benefit, or service, may not, directly or through contractual, licensing, or other arrangements, on the basis of handicap—
(i) Deny a qualified handicapped person the opportunity to participate in or benefit from the aid, benefit, or service;
(ii) Afford a qualified handicapped person an opportunity to participate in or benefit from the aid, benefit, or service that is not equal to that afforded others;
(iii) Provide a qualified handicapped person with an aid, benefit, or service that is not as effective in affording equal opportunity to obtain the same result, to gain the same benefit, or to reach the same level of achievement as that provided to others;
(iv) Provide different or separate aid, benefits, or services to handicapped persons or to any class of handicapped persons than is provided to others unless such action is necessary to provide qualified handicapped persons with aid, benefits, or services that are as effective as those provided to others;
(v) Deny a qualified handicapped person the opportunity to participate as a member of planning or advisory boards; or
(vi) Otherwise limit a qualified handicapped person in the enjoyment of any right, privilege, advantage, or opportunity enjoyed by others receiving the aid, benefit, or service.
(2) The agency may not deny a qualified handicapped person the opportunity to participate in programs or activities that are not separate or different, despite the existence of permissibly separate or different programs or activities.
(3) The agency may not, directly or through contractual or other arrangments, utilize criteria or methods of administration the purpose or effect of which would—
(i) Subject qualified handicapped persons to discrimination on the basis of handicap; or
(ii) Defeat or substantially impair accomplishment of the objectives of a program or activity with respect to handicapped persons.
(4) The agency may not, in determining the site or location of a facility, make selections the purpose or effect of which would—
(i) Exclude handicapped persons from, deny them the benefits of, or otherwise subject them to discrimination under any program or activity conducted by the agency; or
(ii) Defeat or substantially impair the accomplishment of the objectives of a program or activity with respect to handicapped persons.
(5) The agency, in the selection of procurement contractors, may not use criteria that subject qualified handicapped persons to discrimination on the basis of handicap.
(6) The agency may not administer a licensing or certification program in a manner that subjects qualified handicapped persons to discrimination on the basis of handicap, nor may the agency establish requirements for the programs or activites of licensees or certified entities that subject qualified handicapped persons to discrimination on the basis of handicap. However, the programs or activities of entities that are licensed or certified by the agency are not, themselves, covered by this part.
(c) The exclusion of nonhandicapped persons from the benefits of a program limited by Federal statute or Executive order to handicapped persons or the exclusion of a specific class of handicapped persons from a program limited by Federal statute or Executive order to a different class of handicapped persons is not prohibited by this part.
(d) The agency shall administer programs and activities in the most integrated setting appropriate to the needs of qualified handicapped persons.
No qualified handicapped person shall, on the basis of handicap, be subjected to discrimination in employment under any program or activity conducted by the agency. The definitions, requirements, and procedures of section 501 of the Rehabilitation Act of 1973 (29 U.S.C. 791), as established by the Equal Employment Opportunity Commission in 29 CFR part 1613, shall apply to employment in federally conducted programs or activities.
Except as otherwise provided in § 812.150, no qualified handicapped person shall, because the agency's facilities are inaccessible to or unusable by handicapped persons, be denied the benefits of, be excluded from participation in, or otherwise be subjected to discrimination under any program or activity conducted by the agency.
(a)
(1) Necessarily require the agency to make each of its existing facilities accessible to and usable by handicapped persons;
(2) In the case of historic preservation programs, require the agency to take any action that would result in a substantial impairment of significant historic features of an historic property; or
(3) Require the agency to take any action that it can demonstrate would result in a fundamental alteration in the nature of a program or activity or in undue financial and administrative burdens. In those circumstances where agency personnel believe that the proposed action would fundamentally alter the program or activity or would result in undue financial and administrative burdens, the agency has the burden of proving that compliance with § 812.150(a) would result in such alteration or burdens. The decision that compliance would result in such alteration or burdens must be made by the agency head or his or her designee after considering all agency resources available for use in the funding and operation of the conducted program or activity, and must be accompanied by a written statement of the reasons for reaching that conclusion. If an action would result in such an alteration or such burdens, the agency shall take any other action that would not result in such an alteration or such burdens but would nevertheless ensure that handicapped persons receive the benefits and services of the program or activity.
(b)
(2)
(i) Using audio-visual materials and devices to depict those portions of an historic property that cannot otherwise be made accessible;
(ii) Assigning persons to guide handicapped persons into or through portions of historic properties that cannot otherwise be made accessible; or
(iii) Adopting other innovative methods.
(c)
(d)
(1) Identify physical obstacles in the agency's facilities that limit the accessibility of its programs or activities to handicapped persons;
(2) Describe in detail the methods that will be used to make the facilities accessible;
(3) Specify the schedule for taking the steps necessary to achieve compliance with this section and, if the time period of the transition plan is longer than one year, identify steps that will be taken during each year of the transition period; and
(4) Indicate the official responsible for implementation of the plan.
Each building or part of a building that is constructed or altered by, on behalf of, or for the use of the agency shall be designed, constructed, or altered so as to be readily accessible to and usable by handicapped persons. The definitions, requirements, and standards of the Architectural Barriers Act (42 U.S.C. 4151-4157), as established in 41 CFR 101-19.600 to 101-19.607, apply to buildings covered by this section.
(a) The agency shall take appropriate steps to ensure effective communication with applicants, participants, personnel of other Federal entities, and members of the public.
(1) The agency shall furnish appropriate auxiliary aids where necessary to afford a handicapped person an equal opportunity to participate in, and enjoy the benefits of, a program or activity conducted by the agency.
(i) In determining what type of auxiliary aid is necessary, the agency shall give primary consideration to the requests of the handicapped person.
(ii) The agency need not provide individually prescribed devices, readers for personal use or study, or other devices of a personal nature.
(2) Where the agency communicates with applicants and beneficiaries by telephone, telecommunication devices for deaf person (TDD's) or equally effective telecommunication systems shall be used.
(b) The agency shall ensure that interested persons, including persons with impaired vision or hearing, can obtain information as to the existence and location of accessible services, activities, and facilities.
(c) The agency shall provide signage at a primary entrance to each of its inaccessible facilities, directing users to a location at which they can obtain information about accessible facilities. The international symbol for accessibility shall be used at each primary entrance of an accessible facility.
(d) This section does not require the agency to take any action that it can demonstrate would result in a fundamental alteration in the nature of a program or activity or in undue financial and adminstrative burdens. In
(a) Except as provided in paragraph (b) of this section, this section applies to all allegations of discrimination on the basis of handicap in programs or activities conducted by the agency.
(b) The agency shall process complaints alleging violations of section 504 with respect to employment according to the procedures established by the Equal Employment Opportunity Commission in 29 CFR part 1613 pursuant to section 501 of the Rehabilitation Act of 1973 (29 U.S.C. 791).
(c) The General Counsel shall be responsible for coordinating implementation of this section. Complaints may be sent to the General Counsel, Advisory Council on Historic Preservation, 1100 Pennsylvania Avenue, NW., Washington, DC 20004.
(d) The agency shall accept and investigate all complete complaints for which it has jurisdiction. All complete complaints must be filed within 180 days of the alleged act of discrimination. The agency may extend this time period for good cause.
(e) If the agency receives a complaint over which it does not have jurisdiction, it shall promptly notify the complainant and shall make reasonable efforts to refer the complaint to the appropriate government entity.
(f) The agency shall notify the Architectural and Transportation Barriers Compliance Board upon receipt of any complaint alleging that a building or facility that is subject to the Architectural Barriers Act of 1968, as amended (42 U.S.C. 4151-4157), or section 502 of the Rehabilitation Act of 1973, as amended (29 U.S.C. 792), is not readily accessible to and usable by handicapped persons.
(g) Within 180 days of the receipt of a complete complaint for which it has jurisdiction, the agency shall notify the complainant of the results of the investigation in a letter containing—
(1) Findings of fact and conclusions of law;
(2) A description of a remedy for each violation found; and
(3) A notice of the right to appeal.
(h) Appeals of the findings of fact and conclusions of law or remedies must be filed by the complainant within 90 days of receipt from the agency of the letter required by § 812.170(g). The agency may extend this time for good cause.
(i) Timely appeals shall be accepted and processed by the head of the agency.
(j) The head of the agency shall notify the complainant of the results of the appeal within 60 days of the receipt of the request. If the head of the agency determines that additional information is needed from the complainant, he or she shall have 60 days from the date of receipt of the additional information to make his or her determination on the appeal.
(k) The time limits cited in paragraphs (g) and (j) of this section may be extended with the permission of the Assistant Attorney General.
(l) The agency may delegate its authority for conducting complaint investigations to other Federal agencies, except that the authority for making the final determination may not be delegated to another agency.
Public Law 104-99, which incorporated the terms of the Department of the Interior and Related Agencies Appropriations Act, 1996 (H.R. 1977), as passed by the House of Representatives on December 13, 1995, provides that the Pennsylvania Avenue Development Corporation terminates as of April 1, 1996. H.R. 1977 provides that “any regulations prescribed by the [Pennsylvania Avenue Development] Corporation in connection with the Pennsylvania Avenue Development Corporation Act of 1972 (40 U.S.C. 871-885) and the Federal Triangle Development Act (40 U.S.C. 1101-1109) shall continue in effect until suspended by regulations prescribed by the Administrator of the General Services Administration.” Accordingly, the authority to administer the regulations in 36 CFR Chapter IX is transferred to the General Services Administration. See the Pennsylvania Avenue Development Corporation document, “Transfer of Responsibilities and Effectiveness of PADC Regulations After PADC Termination”, published at 61 FR 11308, March 20, 1996.
Sec. 6(5), Pub. L. 92-578, 88 Stat. 1270(5) (40 U.S.C. 875(5)).
(a)
(b)
(a)
(b)
(a)
(b)
(1) The fifteen voting members shall include the seven government agency representatives specified in subsection 3(c) of the Act (or, their designees), and eight individuals meeting the qualifications of that subsection, appointed by the President of the United States from private life, at least four of whom shall be residents and registered voters of the District of Columbia.
(2) The Chairman and Vice Chairman shall be designated by the President of the United States from among those members appointed from private life.
(3) Upon his appointment, the Chairman shall invite the eight representatives designated in subsection 3(g) of the Act to serve as non-voting members of the Board of Directors.
(4) Each member of the Board of Directors appointed from private life shall serve a term of six years from the expiration of his predecessor's term; except that the terms of the Directors first taking office shall begin on October 27, 1972 and shall expire as designated at the time of appointment. A Director may continue to serve until his successor has qualified.
(5) A Director appointed from private life wishing to resign shall submit a letter of resignation to the President of the United States, and his resignation shall become effective upon the date of the President's acceptance thereof.
(6) A Director, appointed to fill a vacancy occurring prior to the expiration of the term for which his predecessor was appointed, shall serve for the remainder of such term.
(c)
(2) Meetings of the Board of Directors shall be held at the call of the Chairman, but not less often than once every three months. The Chairman shall also call a meeting at the written request of any five voting members.
(3) The Chairman shall direct the Secretary to give the members of the Board notice of each meeting, either personally, or by mail, or by telegram, stating the time, the place and the agenda for the meeting. Notice by telephone shall be personal notice. Any Director may waive, in writing, notice as
(4) Unless otherwise limited by the notice thereof, any and all Corporation business may be transacted at any meeting.
(5) The Chairman shall preside at meetings of the Board of Directors, or the Vice Chairman in the absence of the Chairman. In the event of the absence of both the Chairman and the Vice Chairman, the Directors present at the meeting shall designate a Presiding Officer.
(d)
(e)
(f)
(1) A Director unable to attend a meeting of the Board may submit a vote to be cast by the Presiding Officer by means of a written signed statement of his vote and the resolution to which it pertains together with any statement bearing on the matter the Director wishes to have read. The proxy vote shall be submitted to the Chairman with a separate signed copy to the Secretary, to be received not later than the close of business of the day prior to the date fixed for the meeting.
(2) The Presiding Officer shall cast proxy votes received by the Chairman in the following manner:
(i) Upon the close of discussion on a resolution for which there has been submitted one or more valid proxy votes, the Presiding Officer shall announce that he holds proxy vote(s) from named Director(s), and shall read any explanatory statements submitted by the Director(s) voting by proxy;
(ii) The Presiding Officer shall take the vote of the Directors present and then declare the proxy votes in hand;
(iii) The Secretary shall orally verify the validity of the votes submitted to be cast by proxy, and shall record them with the votes cast by the Directors present on the resolution.
(3) Proxy votes shall not be utilized to effect the presence of a quorum.
(g)
(h)
(a)
(b)(1)
(2)
(c)
(d)
(1) Execute contracts, agreements, and other documents necessary for planning and design work and for ordinary operations of the Corporation.
(2) Hire staff (including temporary or intermittent experts and consultants).
(3) Procure space, equipment, supplies, and obtain interagency and commercial support services.
(4) Direct and manage the day-to-day operations and work of the Corporation.
(5) Supervise planning and development activities of the Corporation in accordance with the development plan and resolutions of the Board of Directors.
(6) Perform such other duties and exercise such powers as the President and Board of Directors may prescribe.
(e)
(1) Coordinate with the Department of Justice in assuring that the interests of the Corporation are represented
(2) Advise the Board of Directors and the staff of statutory or regulatory requirements, and assure compliance therewith.
(3) Prepare or review all contracts, agreements or other documents of a legal nature.
(4) Prepare or review all draft legislation, regulations, official notices and other legal publications.
(5) Perform such other duties as may be prescribed by the Board of Directors, the President, or the Executive Director.
(f)
(1) Manage development activities in accordance with the development plan.
(2) Function as a key management official performing a wide range of duties required to accomplish the rebuilding of Pennsylvania Avenue.
(3) Provide managerial responsibility for the work of all project managers and consultants relating to development projects.
(4) Coordinate the tasks of other staff professionals as required for accomplishment of projects.
(5) Be liaison between the Corporation and other governmental agencies that review projects in the development area.
(6) Perform such other duties as may be prescribed by the Board of Directors, the President, or the Executive Director.
(g)
The Executive Director shall prepare annually a comprehensive and detailed report of the Corporation's operations, activities, and accomplishments for the review of the Board of Directors. Upon approval by the Board, the Chairman shall transmit the report in January of each year to the President of the United States and to the Congress.
The Corporation may adopt a corporate seal which shall have the name of the Corporation and year of incorporation printed upon it. The seal may be used by causing it or a facsimile thereof to be impressed, affixed, or reproduced.
These bylaws may be altered, amended, or repealed by the Board of Directors at any meeting, if notice of the proposed alteration, amendment, or repeal is contained in the notice of the meeting.
5 U.S.C. 552; 52 FR 10012-10019 (March 27, 1987); E.O. 12600, 52 FR 23781 (June 23, 1987).
This part contains regulations of the Corporation implementing 5 U.S.C. 552, as amended. It informs the public about where and how the Corporation's records may be obtained. The following provisions are applicable to all records of the Corporation in existence at the time a request for records is made. The regulations establish fee schedules applicable to the search and copying of requested records. This part identifies the officials having authority to act on requests and prescribes the procedures to appeal decisions which initially deny disclosure. Indexes maintained to reflect all rec-ords subject to this part are available for public inspection and copying as provided herein.
In keeping with the spirit of the Freedom of Information Act, 5 U.S.C. 552, the policy of the Corporation is one of full and responsible disclosure of its records to the public. Therefore, all records of the Corporation, unless otherwise exempted under subpart F of this part, are declared to be available for public inspection and copying. Each officer and employee of the Corporation is directed to cooperate to this end and shall make records available to the public with reasonable promptness. A record may not be withheld from the public solely because its release might suggest administrative error or embarrass an officer or employee of the Corporation.
As used in this part—
(a)
(b)
(c)
(d)
(e)
(f)
(g)
Except as provided in subpart H of this part, authority to administer this part is delegated to the Administrative Officer, who shall act upon all requests for access to records which are received by the Corporation from any person citing the Act.
In accordance with § 902.41 of subpart E of this part all requests for records shall be made to the Administrative Officer, Pennsylvania Avenue Development Corporation, 1331 Pennsylvania Avenue, NW, Suite 1220 North, Washington, DC 20004.
(a) The Administrative Officer shall maintain records of:
(1) The fees collected by the Corporation for making records available under this part;
(2) The number of denials of requests for records made under this part, and the reasons for each denial;
(3) The number of appeals arising from denials, the result of each appeal, and the reasons for the action upon each appeal that results in a denial of information;
(4) The names and titles or positions of each person responsible for each denial of records requested under this part, and the number of instances of participation for each person;
(5) The results of each proceeding conducted pursuant to subsection 552(a)(4)(f) of title 5, U.S.C., including a report of the disciplinary action against the official or employee who was primarily responsible for improperly withholding records or an explanation of why disciplinary action was not taken;
(6) Every rule made by the Corporation affecting or implementing the Act;
(7) The fee schedule listing fees for search and duplication of records pursuant to request under the Act; and
(8) All other information which indicates efforts to administer fully the letter and spirit of the Act.
(b) The Administrative Officer shall annually prepare a report accounting for each item in paragraph (a) of this section for the prior calendar year. On or before March 1st of each year, the report shall be submitted to the Speaker of the House of Representatives and the President of the Senate for referral to the appropriate committees of Congress.
(a) The Administrative Officer shall be responsible for maintenance, publication, distribution and availability for inspection and copying of the current indexes and supplements which are required by 5 U.S.C. (a)(2). Such indexes
(b) The index of materials under this subpart covers all materials issued, adopted, or promulgated after July 4, 1967 by the Corporation. However, earlier materials may be included in the index to the extent practicable. Each index contains instruction for its use.
Whenever a requested record contains information which falls within one of the exempted categories of subpart F of this part, identifying details shall be deleted from the record before it is made available for public inspection and copying. When a requested record contains both discloseable and nondiscloseable information, only that portion which is reasonably segregable after deletion of the nondiscloseable portions, will be released. If the information in the discloseable portion is readily available from another source and that source is made known to the person making the request, the Corporation need not disclose the requested record. In all cases where a deletion is made, an explanation of the deletion shall be attached to the record made available for inspection, distribution, or copying. Appeal of deletions shall be made in accordance with subpart H of this part.
(a) No person may, without permission of the Administrative Officer, remove from the Corporation's offices any record made available to him for inspection or copying. In addition, no person may steal, alter, multilate, obliterate, or destroy, in whole or in part, such a record.
(b) Section 641 of title 18 U.S.C. provides, in pertinent part, as follows:
(1) Whoever * * * steals, purloins, knowingly converts to his use or the use of any other or without authority sells, conveys or disposes of any record * * * or thing of value shall be fined not more than $10,000 or imprisoned not more than 10 years or both; but if the value of such property does not exceed the sum of $100, he shall be fined not more than $1,000 or imprisoned not more than one year or both. * * *
(c) Section 2071 of title 18 U.S.C. provides, in pertinent part, as follows:
(1) Whoever willfully and unlawfully conceals, removes, multilates, obliterates, or destroys, or attempts to do so, or with intent to do so takes and carries away any record, proceeding, map, book, paper document, or other thing, filed or deposited * * * in any public office, or with any * * * public officer of the United States, shall be fined not more than $2,000 or imprisoned not more than 3 years, or both.
Subject to the exemptions in subpart F of this part, the Corporation, for the guidance of the public, shall submit to the Director of the Federal Register for publication—
(a) Descriptions of the Corporation's organization and functional responsibilities and the designation of places at which the public may secure information, obtain forms and applications, make submittals or requests, or obtain decisions:
(b) Statements of the general course and method by which the Corporation's functions are channeled and determined, including the nature and requirements of all formal and informal procedures available;
(c) Rules of procedure, descriptions of forms available, and instructions as to the scope and contents of all papers, reports, or examinations;
(d) Substantive rules of general applicability adopted as authorized by law, and statements of general policy or interpretations of general applicability; and,
(e) Each amendment, revision, or repeal of the foregoing.
(a) All material described in § 902.20 shall be published in the
(b) Publication in the
(a) This subpart implements section 552(a)(2) of title 5 U.S.C., as amended by 88 Stat. 1561 (1974). It prescribes the rules governing the availability for public inspection and copying of the following:
(1) Final opinions or orders (including concurring and dissenting opinions, if any) made in the adjudication of cases;
(2) Statements of policy or interpretations which have been adopted under the authority of the Corporation's enabling act, including statements of policy or interpretation concerning a particular factual situation. If they can reasonably be expected to have precedential value in any case involving a member of the public in a similar situation, and have not been published in the
(3) Administrative staff manuals or instructions to the staff of the Corporation which affects any member of the public. Included within this category are manuals or instructions which prescribe the manner or performance of any activity by any person. Excepted from this category are staff manuals or instructions to staff concerning internal operating rules, practices, guidelines and procedures for Corporation negotiators and inspectors, the release of which would substantially impair the effective performance of their duties.
(4) Documents and materials offered for sale under the auspices of the Corporation.
(5) Any index of materials which is required to be maintained by the Corporation under § 902.13.
(b) Records listed in paragraph (a) of this section, which the Corporation does not make available for public inspection and copying, or that are not indexed as required by § 902.13, may not be cited, relied upon, or used as a precedent by the Corporation to adversely affect any person, unless the person against whom it is cited, relied upon, or used, has had actual and timely notice of that material.
(c) This subpart shall not apply to information published in the
(a) Records listed in § 902.30(a), are available for inspection and copying by any person at the Corporation's office, 1331 Pennsylvania Avenue, NW., Suite 1220 North, Washington, DC 20004. Facilities for inspection and copying shall be open to the public every workday.
(b) Records listed in § 902.30(a), that are published and offered for sale, shall be indexed as required under § 902.13, and shall be available for public inspection. Records offered for sale will not be copied by the Corporation for the requester without the approval of the Administrative Officer.
(c) Records listed in § 902.30(a) are subject to subpart F of this part and access may be restricted by the Corporation in accordance with that subpart. A refusal to disclose may be appealed by the requester under the provisions of subpart H of this part.
This subpart implements section 552(a)(3) of title 5 U.S.C., as amended, and prescribes regulations governing public inspection and copying of reasonably described records in the Corporation's custody. This subpart shall not apply to material which is covered by subparts C and D of this part, and records exempted under subpart F of this part.
(a) Any person desiring access to a record covered by this subpart may make request for records and copies either in person on any workday at the Corporation's office, or by written request. In either instance, the requester must comply with the following provisions;
(1) A written request must be made for the record;
(2) The request must indicate that it is being made under the Freedom of Information Act (section 552 of title 5 U.S.C.); and
(3) The request must be addressed to the attention of the Administrative Officer, as provided in § 902.11.
(b) Each request for a record should reasonably describe the particular record sought. The request should specify, to the extent possible, the subject matter of the record, the date when it was made, the place where it was made and the person who made it. If the description is insufficient to process the request, the Public Information offices shall promptly notify the person making the request and solicit further information. The Administrative Officer may assist the person in perfecting the request.
(c) Requests made in person at the Corporation's office during regular working hours (9 a.m. to 5 p.m., Monday through Friday, except Federal holidays) shall be processed as provided in subpart G of this part. The Corporation shall provide adequate inspection and copying facilities. Original records may be copied, but may not be released from the custody of the Corporation. Upon payment of the appropriate fee, copies will be provided to the requester by mail or in person.
(d) Every effort will be made to make a record in use by the staff of the Corporation available when requested, and availability may be deferred only to the extent necessary to avoid serious interference with the business of the Corporation.
(e) Notwithstanding paragraphs (a) through (d) of this section, informational materials and services, such as press releases, and similar materials prepared by the Corporation, shall be made available upon written or oral request. These services are considered as part of any informational program of the Government and are readily made available to the public. There is no fee for individual copies of such materials as long as they are in supply. In addition, the Corporation will continue to respond, without charge, to routine oral or written inquiries that do not involve direct access to records of the Corporation.
(a) If the release of a record covered by this subpart would be of concern to both the Corporation and another Federal agency, the record will be made available only after consultation with the other agency concerned. Rec-ords of another agency in the Corporation's possession will not be disclosed without the approval of the other agency.
(b) If the release of a record covered by this subpart would be of concern to both the Corporation and to a foreign, state or local government, the record will be made available by the Corporation only after consultation with the other interested foreign state or local government. Records of a foreign, state or local government will not be disclosed without the approval of the government concerned.
(a) This subpart implements section 552(b) of title 5 U.S.C., which exempts certain records from public inspection under section 552(a). This subpart applies to records requested under subparts D and E of this part. The Corporation may, however, release a record authorized to be withheld under §§ 902.52 through 902.59 unless it determines that the release of that record would be inconsistent with a purpose of the aforementioned sections. Examples given in §§ 902.52 through 902.59 of records included within a particular statutory exemption are not necessarily illustrative of all types of records covered by the exemption. Any reasonably segregable portion of a record withheld under this subpart shall be provided to a requester, after deletion of the portions which are exempt under this subpart.
(b) This subpart does not authorize withholding of information or limit the availability of records to the public, except as specifically stated. This subpart is not authority to withhold information from Congress.
Records relating to matters that are specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy, include those within the scope of the following, and any further amendment of any of them, but only to the extent that the records are in fact properly classified pursuant to such Executive order:
(a) Executive Order 11652 of March 8, 1972 (3 CFR 1974 Comp. p. 339);
(b) Executive Order 10865 of February 20, 1960 (3 CFR 1959-1963 Comp. p. 398); and
(c) Executive Order 10104 of February 1, 1950 (3 CFR 1949-1953 Comp., p. 298).
(a) Records related solely to internal personnel rules and practices that are within the statutory exemption include memoranda pertaining to personnel matters such as staffing policies, and policies and procedures for the hiring, training, promotion, demotion, and discharge of employees, and management plans, records, or proposals related to labor-management relationships.
(b) The purpose of this section is to authorize the protection of any record related to internal personnel rules and practices dealing with the relations between the Corporation and its employees.
(a) Records relating to matters that are specifically exempted by statute from disclosure may not be made available for public inspection. For example: section 1905 of title 18 U.S.C., protecting trade secrets, processes, and certain economic and other data obtained by examination or investigation, or from reports.
(b) The purpose of this section is to preserve the effectiveness of statutes of the kind cited as an example, in accordance with their terms.
(a) Trade secrets and commercial or financial information that are privileged and for which confidentiality is requested by the person possessing such privilege are within the statutory exemption. This includes the following:
(1) Commercial or financial information not customarily released to the public, furnished and accepted in confidence or disclosure of which could reasonably be expected to cause substantial competitive harm, or both;
(2) Statements of financial interest furnished by officers and employees of the Corporation;
(3) Commercial, technical, and financial information furnished by any person in connection with an application for a loan or a loan guarantee;
(4) Commercial or financial information customarily subjected to an attorney-client or similar evidentiary privilege; or,
(5) Materials in which the Corporation has a property right such as designs, drawings, and other data and reports acquired in connection with any research project, inside or outside of the Corporation, or any grant or contract.
(b) The purpose of this section is to authorize the protection of trade secrets and commercial or financial rec-ords that are customarily privileged or are appropriately given to the Corporation in confidence. It assures the confidentiality of trade secrets and commercial or financial information obtained by the Corporation through questionnaires and required reports to the extent that the information would not customarily be made public by the person from whom it was obtained. In any case in which the Corporation has obligated itself not to disclose trade secrets and commercial or financial information it receives, this section indicates the Corporation's intention to honor that obligation to the extent permitted by law. In addition, this section recognizes that certain materials, such as research data and materials, formulae, designs, and architectural drawings, have significance not as rec-ords but as items of property acquired, in many cases at public expense. In any case in which similar proprietary material in private hands would be held in confidence, material covered in this section may be held in confidence.
(c)(1)
(2)
(3)
(A) The information is less than ten years old;
(B) The information is subject to prior express commitment of confidentiality given by the Corporation to the submitter; or
(C) The Corporation has reason to believe that disclosure of the information may result in substantial competitive harm to the submitter.
(ii) For information submitted to the Corporation on or after March 30, 1988, the Corporation shall provide a submitter with notice of a request whenever:
(A) The submitter has in good faith designated the information as confidential, or
(B) The Corporation has reason to believe that disclosure of the information may result in substantial competitive harm to the submitter.
(4)
(5)
(i) A statement of the reasons for which the submitter's disclosure objections were not sustained;
(ii) A description of the information to be disclosed; and
(iii) A specified disclosure date.
(6)
(7)
(i) The Corporation determines that the information should not be disclosed;
(ii) The information lawfully has been published or otherwise made available to the public;
(iii) Disclosure of the information is required by law (other than 5 U.S.C. 552); or
(iv) The designation made by the submitter in accordance with paragraphs (c)(1) and (c)(3)(ii) of this section appears obviously frivolous; except that, in such case, the Corporation shall provide the submitter with written notice of any final decision to disclose information within a reasonable number of days prior to a specified disclosure date.
(a) Any record prepared by a Government officer or employee (including those prepared by a consultant or advisory body) for internal Government use is within the statutory exemption to the extent that it contains—
(1) Opinions, advice, deliberations, or recommendations made in the course of developing official action by the Government, but not actually made a part of that official action, or
(2) Information concerning any pending proceeding or similar matter including any claim or other dispute to be resolved before a court of law, administrative board, hearing officer, or contracting officer.
(b) This section has two distinct purposes. One is to protect the full and frank exchange of ideas, views, and opinions necessary for the effective functioning of the Government and to afford this protection both before and after any action is taken. This judicially recognized privilege of protection against disclosure in litigation or elsewhere is intended to assure that these resources will be fully and readily available to those officials upon whom the responsibility rests to take official and final Corporation action. However, the action itself, any memoranda made part of that action, and the facts on which it is based are not within this protection. The other purpose is to protect against the premature disclosure of material that is in the development stage if premature disclosure would be detrimental to the authorized and appropriate purposes for which the material is being used, or if, because of its tentative nature, the material is likely to be revised or modified before it is officially presented to the public.
(c) Examples of records covered by this section include minutes to the extent they contain matter described in paragraph (a) of this section; staff papers containing advice, opinions, suggestions, or exchanges of views, preliminary to final agency decision or action; budgetary planning and programming information; advance information on such things as proposed plans to procure, lease, or otherwise hire and dispose of materials, real estate, or facilities, documents exchanged preparatory to anticipated legal proceedings; material intended for public release at a specified future time, if premature disclosure would be detrimental to orderly processes of the Corporation; records of inspection, investigations, and surveys pertaining to internal management of the Department; and matters that would not be routinely disclosed under disclosure procedures in litigation and which are likely to be the subject of litigation. However, if such a record also contains factual information, that information must be made available under subpart E of this part unless the facts are so inextricably intertwined with deliverative or policymaking processes, that they cannot be separated without disclosing those processes.
(a) Any of the following personnel, medical, or similar records is within the statutory exemption if its disclosure would harm the individual concerned or be a clearly unwarranted invasion of his personal privacy:
(1) Personnel and background rec-ords personal to any officer or employee of the Corporation, or other person, including his home address;
(2) Medical histories and medical rec-ords concerning individuals, including applicants for licenses; or
(3) Any other detailed record containing personal information identifiable with a particular person.
(b) The purpose of this section is to provide a proper balance between the protection of personal privacy and the preservation of the public's rights to Corporation information by authorizing the protection of information that, if released, might unjustifiably invade an individual's personal privacy.
(a) Files compiled by the Corporation for law enforcement purposes, including the enforcement of the regulations of the Corporation, are within the statutory exemption to the extent that production of such records would:
(1) Interfere with enforcement proceedings;
(2) Deprive a person of a right to a fair trial or an impartial adjudication;
(3) Constitute an unwarranted invasion of personal privacy;
(4) Disclose the identity of a confidential source and in the case of a record compiled by a criminal law enforcement authority in the courts of a criminal investigation, or by an agency conducting a lawful national security intelligence investigation, confidential information furnished only by the confidential source;
(5) Disclose investigative techniques and procedures; or,
(6) Endanger the life or physical safety of law enforcement personnel.
(b) The purpose of this section is to protect from disclosure the law enforcement files of the Corporation including files prepared in connection with related litigation and adjudicative proceedings. It includes the enforcement not only of criminal statutes but all kinds of laws.
Any material contained in or related to any examination, operating, or condition report prepared by, on behalf of, or for the use of, any agency responsible for the regulation or supervision of financial institutions is within the statutory exemption.
Any geological or geophysical information and data (including maps) concerning wells is within the statutory exemption.
(a) An initial determination whether or not to release a record requested under subparts D and E of this part shall be made by the Public Information Offices within 10 workdays after the receipt of a request which complies with § 902.21. Failure of the requester to comply with those provisions may toll the running of the 10 day period until the request is identified as one being made under the Act. This time limit may be extended by up to 10 workdays in accordance with § 902.62.
(b) Upon making initial determination, the Administrative Officer shall immediately notify the person making the request as to its disposition. If the determination is made to release the requested record, the Administrative Officer shall make the record promptly available. If the determination is to deny the release of the requested record, the Public Information Officer shall immediately notify the requester of the denial and shall provide the following information.
(1) The reason for the determination, including a reference to the appropriate exemption provided in subpart F of this part;
(2) The right of the request or to appeal the determination as provided in subpart H of this part; and
(3) The name and position of each person responsible for the denial of the request.
A determination with respect to any appeal made pursuant to subpart H of this part will be made within twenty work days after the date of receipt of the appeal. The time limit provided may be extended by up to 10 workdays in accordance with § 902.62.
(a) In unusual circumstances, the time limits prescribed in §§ 902.60 and 902.61 may be extended by written notice to the person making the request. The notice shall set forth the reasons for the extension and the date on which a determination is expected to be dispatched. Under no circumstances shall the notice specify a date that would result in an extension for more than 10 workdays.
(b) As used in this section,
(1) The need to search for, collect and appropriately examine a voluminous amount of separate and distinct records which are demanded in a single request;
(2) The need to search for and collect the requested records from field facilities or other establishments that are separate from the office processing the request; or
(3) The need for consultation, which shall be conducted with all practicable speed, with another agency having a substantial interest in the determination of the request or among two or more components of the agency having substantial subject matter interest therein.
(c) Any person having made a request for records under this part shall have exhausted his administrative remedies with respect to such request, if the Corporation fails to comply with the applicable time limitations set forth in this subject.
Within the time limitations of subpart G of this part, if the Administrative Officer makes a determination not to disclose a record requested under subparts D and E of this part, he shall furnish a written statement of the reasons for that determination to the person making the request. The statement shall indicate the name(s) and title(s) of each person responsible for the denial of the request, and the availability of an appeal with the Corporation. Any person whose request for a record has
Although no particular written form is prescribed for on appeal, the letter or similar written statement appealing a denial of a record shall contain a description of the record requested, the name and position of the official who denied the request, the reason(s) given for the denial, and other pertinent facts and statements deemed appropriate by the appellant. The Corporation may request additional details if the information submitted is insufficient to support an appeal.
An appeal must be submitted in writing within thirty days from the date of receipt of the initial written denial and must contain the information requested in § 902.71.
An appeal shall be addressed to the Chairman of the Board of Directors, Pennsylvania Avenue Development Corporation, 1331 Pennsylvania Avenue, NW., Suite 1220 North, Washington, DC 20004.
(a) The Chairman shall have sole authority to act on an appeal, which seeks to reverse an initial decision denying disclosure of a record. He shall review each appeal and provide the appellant and other interested parties with a written notice of his decision. The decision of the Chairman as to the availability of the record is administratively final.
(b) If the decision of the Chairman sustains the refusal to disclose, the notice of decision shall set forth the reasons for the refusal, including the specific exemptions from disclosure under the Act that are the bases of the decision not to disclose. The notice shall further advise the appellant that judicial review is available on complaint to the appropriate District Court of the United States, as provided in section 552(a)(4)(B) of title 5 U.S.C.
(c) As set out in § 902.61, the final decision on appeal shall be made within 20 workdays after the receipt of the appeal. An extension of this limitation is authorized as prescribed under § 902.62.
(a) This subpart prescribes fees for services performed by the Corporation under subparts D and E of this part. This subpart shall only apply to the services described herein. The fees for the service listed reflect the actual cost of the work involved in compiling requested record and copying, if necessary.
(b) A fee shall not be charged for time spent in resolving legal or policy issues.
The fees prescribed in this part may be paid in cash or by check, draft, or postal money order made payable to the Pennsylvania Avenue Development Corporation.
(a)
(1) A
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(b) The following provisions shall apply with respect to services rendered to the public in processing requests for disclosure of the Corporation's records under this part:
(1)
(2)
(ii) Search for and review of records by professional and supervisory personnel: $11.50 per hour spent searching for any record or reviewing any record to determine whether it may be disclosed, including time spent in copying any record.
(iii) Except for requests seeking records for a commercial use, the Corporation will provide the first 100 pages of duplication and the first two hours of search time without charge. The word
(3)
(4)
(5)
(6)
(7)
(8)
(ii)
(iii)
(iv)
(9)
(10)
(11)
(12)
(i) The Corporation estimates or determines that allowable charges that a requester may be required to pay are likely to exceed $250; or
(ii) If a requester has previously failed to make timely payments (i.e., within 30 days of billing date) of fees charged under this part, the requester may be required to pay the full amount owed plus any applicable interest accrued thereon or demonstrate that he has, in fact, paid the fee, and to make an advance payment of the full amount of the estimated fee before the Corporation begins to process a new request or a pending request from this requester.
(iii) With regard to any request coming within paragraphs (b)(12) (i) and (ii) of this section, the administrative time limits set forth in §§ 902.60, 902.61, and 902.62 of this part will begin to run only after the Corporation has received the requisite fee payments.
(iv)
Fees otherwise chargeable in connection with a request for disclosure of a record shall be waived or reduced where:
(a) Disclosure of the information is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requester; or
(b) The costs of routine collection and processing of the fee are likely to equal or exceed the amount of the fee.
5 U.S.C. 552a; 40 U.S.C. 870.
The purpose of this part is to enable the Pennsylvania Avenue Development Corporation to implement the Privacy Act of 1974, and in particular the provisions of 5 U.S.C. 552a, as added by the Act. The Act was designed to insure that personal information about individuals collected by Federal agencies be limited to that which is legally authorized and necessary, and that the information is maintained in a manner which precludes unwarranted intrusions upon individual privacy. The regulations in this part establish, and make public, procedures whereby an individual can:
(a) Request notification of whether or not the Corporation maintains or has disclosed a record pertaining to him or her,
(b) Request access to such a record or an accounting of its disclosure,
(c) Request that the record be amended, and
(d) Appeal any initial adverse determination of a request to amend a record.
As used in this part:
(a)
(b)
(c)
(d)
(e)
(f)
(g) The term
(h) The term
(i) The term
(a) An individual making a written or oral request under the Privacy Act (5 U.S.C. 522a) shall be informed of any Corporation systems of records which pertain to the individual, if the request contains a reasonable identification of the appropriate systems of records as described in the notice published in the
(b) Requests may be made in person between the hours of 9:00 a.m. and 5:00 p.m. Monday through Friday, (except legal holidays). The request should be addressed to the Privacy Protection Officer, Pennsylvania Avenue Development Corporation, 1331 Pennsylvania Avenue, NW., Suite 1220 North, Washington, DC 20004. The Privacy Protection Officer of the Corporation will require adequate personal identification before processing the request. If a request is made in writing it must be under the signature of the requesting individual and include the individual's address, date of birth, and an additional proof of identification, such as a photocopy of a driver's license or similar document bearing the individual's signature. A notarized, signed statement is acceptable to verify the identity of the individual involved without additional proof.
(a) Except as otherwise provided by law or regulation, an individual, upon request made in person or delivered in writing may gain access to his or her record or to any information pertaining to him or her which is contained in a system of records maintained by the Corporation, and to review the record and have a copy made of all or any portion thereof in a form comprehensible to him or her. An individual seeking access to a Corporation record may be accompanied by a person of his or her choosing. However, the Corporation will require a written statement from the individual authorizing discussion of his or her record in the accompanying person's presence.
(b) A request under paragraph (a) of this section shall be directed to the Privacy Protection Officer at the place, times and in the manner prescribed in § 903.3(a) and (b). The request should include the following information:
(1) The name of the individual;
(2) If made in writing, the information required under § 903.3(b);
(3) A description of system or systems of records which contain the record to which access is requested;
(4) The approximate dates covered by the record; and,
(5) A suggested date and time when the individual would like to view the record.
(c) Requests which do not contain information sufficient to identify the record requested will be returned promptly to the requester, with a notice indicating that information is lacking. Individuals making requests in person will be informed of any deficiency in the specification of records or identification at the time that the request is made. The Privacy Protection Officer of the Corporation will require adequate personal identification before processing a request made in person.
(a) Within 10 days of receipt of a request made under § 903.4 the Privacy Protection Officer shall determine whether access to the record is available under the Privacy Act and shall notify the requesting individual in person or in writing of that determination.
(b) Notices granting access shall inform the individual when and where the requested record may be seen, how copies may be obtained, and of any anticipated fees or charges which may be incurred under § 903.11. Access shall be provided within 30 days of receipt of the request unless the Corporation, for good cause shown, is unable to provide prompt access, in which case the individual shall be informed in writing within the 30 days as to the cause for delay and when it is anticipated that access will be granted.
(c) Notices denying access shall state the reasons for the denial, and advise the individual that the decision may be appealed in accordance with the procedures set forth in § 903.6.
(a) After receiving notification of an initial denial of access to a record, an individual may request a review and reconsideration of the request by the Executive Director of the Corporation, or an officer of the Corporation designated by him, but other than the Privacy Protection Officer. Appeals for review shall be in writing, addressed to the Executive Director, Pennsylvania Avenue Development Corporation, 1331 Pennsylvania Avenue, NW., Suite 1220 North, Washington, DC 20004. The appeal shall identify the record as in the original request, shall indicate the date of the original request and the date of the initial denial, and shall indicate the expressed basis for the denial.
(b) Not later than 30 days after receipt of an appeal, the Executive Director, or an officer of the Corporation designated by him, will complete review of the appeal and the initial denial and either:
(1) Determine that the appeal should be granted, and notify the individual in writing to that effect; or,
(2) Determine that the appeal should be denied because the information requested is exempt from disclosure. If the reviewing official denies the appeal, he or she shall advise the individual in writing of the decision and the reasons for reaching it, and that the denial of the appeal is a final agency action entitling the individual to seek judicial review in the appropriate district court of the United States as provided in 5 U.S.C. 552a(g).
(a) An individual may request amendment of a Corporation record pertaining to him or to her, if the individual believes that the record contains information which is not accurate, relevant, timely, or complete. The request shall be in writing, whether presented in person or by mail, shall state with specificity the record sought to be amended, and shall propose wording of the correction or amendment sought. The request shall be directed to the Privacy Protection Officer at the place, times, and in the manner specified in § 903.3 (a) and (b). Assistance in preparing a request to amend a record, or to appeal an initial adverse determination under § 903.3(a), may be obtained from the Privacy Officer, Pennsylvania Avenue
(b) Not later than 10 days after the date of receipt of a request the Privacy Protection Officer will acknowledge it in writing. The acknowledgement will clearly describe the request, and if a determination has not already been made, will advise the individual when he or she may expect to be advised of action taken on the request. For requests presented in person, written acknowledgement will be provided at the time when the request is presented. No separate acknowledgement of receipt will be issued if the request can be reviewed and the individual advised of the results of the review within the 10 day period.
(a) Upon receipt of a request for amendment of a record the Privacy Protection Officer will promptly review the record and: Either:
(1) Amend any portion thereof which the individual believes is not accurate, relevant, timely, or complete; or
(2) Inform the individual of refusal to amend the record in accordance with the request. In reviewing a record pursuant to a request to amend it, the Corporation will assess the accuracy, relevance, timeliness and completeness of the record in terms of the criteria established in 5 U.S.C. 522a(e)(5). In reviewing a record in response to a request to amend it by deleting information, the Corporation will ascertain whether or not the information is relevant and necessary to accomplish a purpose of the Corporation required to be accomplished by statute or by executive order of the President, as prescribed by 5 U.S.C. 522a(e)(1).
(b) The Corporation shall take the action specified in paragraph (a) of this section within 30 days of receipt of a request for amendment of a record, unless unusual circumstances preclude completion of the action within that time. If the expected completion date for the action, as indicated in the acknowledgement provided pursuant to § 903.5 cannot be met, the individual shall be advised of the delay and of a revised date when action is expected to be completed. If necessary for an accurate review of the record, the Corporation will seek, and the individual will supply, additional information in support of his or her request for amending the record.
(c) If the Corporation agrees with all or any portion of an individual's request to amend a record, the Corporation will so advise the individual in writing, and amend the record to the extent agreed to by the Corporation. Where an accounting of disclosures has been kept, the Corporation will advise all previous recipients of the record of the fact that the amendment was made and the substance of the amendment.
(d) If the Corporation disagrees with all or any portion of an individual's request to amend a record, the Corporation shall:
(1) Advise the individual of its adverse determination and the reasons therefor, including the criteria used by the Corporation in conducting the review;
(2) Inform the individual that he or she may request a review of the adverse determination by the Executive Director of the Corporation, or by an officer of the Corporation designated by the Executive Director; and,
(3) Advise the individual of the procedures for requesting such a review including the name and address of the official to whom the request should be directed.
(e) If the Corporation is apprised by another agency of any corrections or other amendments made to a record contained in the Corporation's system of records, the Corporation will promptly amend its record and advise in writing all previous recipients of the record of the fact that the amendment was made and the substance of the amendment.
(a) After receipt by an individual of notice of an adverse determination by the Privacy Protection Officer concerning a request to amend a record, the individual may, within 60 working
(b) Not later than 30 days after receipt of an appeal, the Executive Director, or an officer of the Corporation designated by him, will complete a review of the appeal and the initial determination, and either: (1) Determine that the appeal should be granted, take the appropriate action with respect to the record in question, and notify the individual accordingly; or, (2) determine that the appeal should be denied.
(c) The reviewing official may, at his or her option, request from the individual such additional information as is deemed necessary to properly conduct the review. If additional time is required, the Executive Director may, for good cause shown, extend the period for action beyond the 30 days specified above. The individual will then be informed in writing of the delay and the reasons therefor, and of the approximate date on which action is expected to be completed.
(d) If the reviewing official denies the appeal, he or she shall advise the individual in writing:
(1) Of the decision and the reasons for reaching it;
(2) That the denial of the appeal is a final agency action entitling the individual to seek judicial review in the appropriate district court of the United States, as provided in 5 U.S.C. 552a(g); and,
(3) That the individual may file with the Corporation a concise statement setting forth the reasons for his or her disagreement with the refusal of the Corporation to amend the record in question.
(e) Any individual having received notices of a denial of an appeal to amend a record may file a statement of disagreement with the Executive Director not later than 60 working days from the date of receipt of the notice. Such statements shall ordinarily not exceed one page in length, and the Corporation reserves the right to reject statements of excessive length. Upon receipt of a proper and timely statement of disagrement, the Corporation will clearly annotate the record in question to indicate the portion of the record which is in dispute. In any subsequent disclosure containing information about which the individual has filed a statement of disagreement, the Corporation will provide a copy of the statement together with the record to which it pertains. In addition, prior recipients of the disputed record will be provided with a copy of statements of disagreement to the extent that an accounting of disclosures was maintained. If the Corporation deems it apropriate, it may also include in any disclosure its own concise statement of the reasons for not making the amendments requested.
(a) The Corporation will not disclose any record which is contained in a system of records, by any means of communication to any person or to another agency except:
(1) Pursuant to a written request by, or with the prior written consent of, the individual to whom the record pertains;
(2) To those officers and employees of the Corporation who have a need for the record in the performance of their duties;
(3) When required under 5 U.S.C. 522 (The Freedom of Information Act); or
(4) Pursuant to the conditions of disclosure contained in 5 U.S.C. 552a(b)(3) through 5 U.S.C. 522a(b)(11).
(b) The Privacy Protection Officer of the Corporation shall keep an accounting of each disclosure made pursuant to paragraph (a)(4) of this section, in
(a) It shall be a routine use of the records in this system of records to disclose them to the Department of Justice when:
(1) The Corporation, or any component thereof; or
(2) Any employee of the Corporation in his or her official capacity; or
(3) Any employee of the Corporation in his or her individual capacity where the Department of Justice has agreed to represent the employee; or
(4) The United States, where the Corporation determines that litigation is likely to affect the Corporation or any of its components, is a party to litigation or an interest in such litigation, and the use of such records by the Department of Justice is deemed by the Corporation to be relevant and necessary to the litigation, provided, however, that in each case, the Corporation determines that disclosure of the records to the Department of Justice is a use of the information contained in the records that is compatible with the purpose for which the records were collected.
(b) It shall be a routine use of records maintained by the Corporation to disclose them in a proceeding before a court or adjudicative body before which the Corporation is authorized to appear, when:
(1) The Corporation, or any component thereof; or
(2) Any employee of the Corporation is his or her individual capacity;
(3) Any employee of the agency in his or her individual capacity where the Department of Justice has agreed to represent the employee; or
(4) The United States, where the Corporation determines that litigation is likely to affect the Corporation or any of its components is a party to litigation or has an interest in such litigation and the Corporation determines that use of such records is relevant and necessary to the litigation, provided, however, that, in each case, the Corporation determines that disclosure of the records to the Department of Justice is a use of the information contained in the records that is compatible with the purpose for which the records were collected.
(a) Individuals will not be charged a fee for:
(1) The search and review of the record;
(2) Any copies of the record produced as a necessary part of the process of making the record available for access;
(3) Any copies of the requested record when it has been determined that access can only be accomplished by providing a copy of the record through the mail. The Privacy Protection Officer may provide additional copies of any record without charge when it is determined that it is in the interest of the Government to do so.
(b) Except as provided in paragraph (a) of this section, fees will be charged for the duplication of records at a rate of 10¢ per page. If it is anticipated that the total fee chargeable to an individual under this subpart will exceed $25, the Corporation shall promptly notify the requester of the anticipated cost. An advance deposit equal to 50% of the anticipated total fee will be required unless waived by the Privacy Protection Officer. In notifying the requester of the anticipated fee, the Privacy Protection Officer shall extend an offer to the requester to consult so that the request might be reformulated in a manner which will reduce the fee, yet still meet the needs of the requester.
(c) Fees must be paid in full prior to delivery of the requested copies. Remittances may be in the form of cash, personal check, bank draft or a postal money order. Remittances, other than
The provision of 5 U.S.C. 552a(i), as added by section 3 of the Privacy Act, make it a misdemeanor subject to a maximum fine of $5,000, to knowingly and willfully request or obtain any record concerning an individual from an agency under false pretenses. Similar penalties attach for violations by agency officers and employees of the Privacy Act or regulations established thereunder.
Sec. 213, Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, Pub. L. 91-646, 84 Stat. 1894 (42 U.S.C. 4601) as amended by the Surface Transportation and Uniform Relocation Assistance Act of 1987, title IV of Pub. L. 100-17, 101 Stat. 246-256 (42 U.S.C. 4601
Regulations and procedures for complying with the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 (Pub. L. 91-646, 84 Stat. 1894, 42 U.S.C. 4601), as amended by the Surface Transportation and Uniform Relocation Assistance Act of 1987 (title IV of Pub. L. 100-17, 101 Stat. 246-255, 42 U.S.C. 4601
40 U.S.C. 875, unless otherwise noted.
In order to assure that the business of the Pennsylvania Avenue Development Corporation is conducted effectively, objectively, and without improper influence or appearance thereof, all employees and special Government
Under the authority of 5 CFR 735.104(f), the Corporation adopts the following sections of the Civil Service Commission regulations on “Employee Responsibilities and Conduct” found in part 735 of title 5, Code of Federal Regulations: §§ 735.202 (a), (d), (e), (f) through 735.210; 735.302; 735.303(a); 735.304; 735.305(a); 735.306; 735.404 through 735.411; and 735.412 (b) and (d).
As used in this part:
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(i)
(j)
(k)
This part applies to each employee and to each special Government employee of the Corporation as defined herein and supplements the Executive order and part 735 of title 5, Code of Federal Regulations, promulgated by the Civil Service Commission on employee responsibilities and conduct.
In accordance with 5 CFR 735.105(a), the General Counsel of the Corporation is designated to be Ethics Counselor and shall serve as the Corporation's liaison with the Civil Service Commission for matters covered in this part.
(a) At the time these regulations are published, or amended, and not less often than once annually thereafter, the Corporation shall furnish each employee and special Government employees with a copy of the regulations. The Administrative Officer shall insure that each newly hired employee and special Government employee is given a copy of these regulations prior to or at the time of entry on duty.
(b) All employees and special Government employees will be advised by the Corporation of the availability of counseling regarding the provisions of this part.
The Ethics Counselor of the Corporation shall review each statement of employment and financial interests submitted under § 905.735-402 or § 905.735-403, except his own and those statements of special Government employees who file with the Chairman of the Civil Service Commission. When review discloses a conflict between the interests of an employee or special Government employee of the Corporation and the performance of his services for the Corporation, the Ethics Counselor shall bring the conflict to the attention of the employee or special Government employee, grant the individual an opportunity to explain the conflict, and attempt to resolve it. If the conflict cannot be resolved, the Ethics Counselor shall forward a written report on the conflict to the Chairman, recommending appropriate action. The Chairman shall review the report, solicit an explanation from the individual, and seek resolution of the conflict.
(a) In addition to any penalties prescribed by law, the Chairman, after review and consideration of any explanation given by an employee or special Government employee concerning a conflict of interest, may institute appropriate remedial action to resolve or otherwise eliminate the conflict. Appropriate remedial action may include, but is not limited to:
(1) Divestment by the employee or the special Government employee of the conflicting interest;
(2) Disqualification of the individual from a particular assignment;
(3) Changes in the assigned duties of the individual; or
(4) Disciplinary action.
(b) Where the situation warrants some form of disciplinary action, the Chairman may choose from a wide range including a warning or reprimand, suspension, reduction in grade or pay, or termination of employment. The disciplinary action selected should reflect the character and degree of the offense which demands such action and
(c) Remedial action, whether disciplinary or otherwise, shall be effected in accordance with applicable laws, Executive orders, and regulations.
(a) All employees shall conduct themselves on the job so as to efficiently discharge the work of the Corporation. Courtesy, consideration, and promptness are to be observed in dealing with the public, Congress, and other governmental agencies.
(b) All employees shall conduct themselves off the job so as not to reflect adversely upon the Corporation or the Federal service.
(c) Employee conduct shall exemplify the highest standards of integrity. Employees shall avoid any action, whether or not specifically prohibited by this part, which might result in, or create the appearance of:
(1) Using public office for private gain;
(2) Giving preferential treatment to any person;
(3) Impeding Government efficiency or economy;
(4) Losing complete independence or impartiality;
(5) Making a Government decision outside official channels; or
(6) Affecting adversely the confidence of the public in the integrity of the Government.
Pursuant to paragraph (b) of 5 CFR 735.202, the following exceptions to the restriction of paragraph (a) of that section are authorized. Employees may:
(a) Accept gifts and other things of value under circumstances which arise from an obvious family or personal relationship(s) (such as between the parents, children, or spouse of the employee and the employee), when the circumstances make it clear that it is those relationships rather than the business of the persons concerned which are the motivating factors;
(b) Accept food and refreshments of nominal value on infrequent occasions in the ordinary course of a luncheon, dinner, or other meeting, or on an inspection tour where an employee may properly be in attendance;
(c) Accept loans from banks or other financial institutions on customary terms to finance proper and usual activities of employees, such as home purchase;
(d) Accept unsolicited advertising or promotional materials, such as pens, pencils, note pads, calendars and other items of nominal intrinsic value;
(e) Participating without payment in privately funded activities in the Washington metropolitan area if: (1) An invitation is addressed to the Chairman or Executive Director of the Corporation and approved by either of them; (2) no provision for individual payment is readily available; and (3) the activities are limited to ceremonies of interest to both the local community and the Corporation (such as ground breakings or openings), or are sponsored or encouraged by the Federal or District Government as a matter of policy; and,
(f) Participate in widely attended lunches, dinners, and similar gatherings sponsored by industrial, commercial, technical and professional associations, or groups, for discussion of matters of interest both to the Corporation and the public. Participation by an employee at the host's expense is appropriate if the host is an association or group and not an individual.
As provided in 5 CFR 735.203, an employee of the Corporation may engage in outside employment or other outside activity not incompatible with the full and proper discharge of the duties and responsibilities of his Government employment. An employee who proposes to engage in outside employment shall report that fact in writing to his supervisor prior to undertaking such employment.
(a) Every employee who is involved in the development, maintenance or
(b) Every employee is directed to cooperate to the fullest extent possible in discharging the requirement of the Freedom of Information Act (5 U.S.C. 522) and Corporation regulations promulgated thereunder (36 CFR part 902). Every effort should be made to furnish service with reasonable promptness to persons who seek access to Corporation records and information.
Employees of the Corporation and members of their immediate families may purchase Government-owned personal property when it is offered for sale by the General Services Administration or any Federal agency other than the Corporation (41 CFR 101-45.302).
(a) Special Government employees of the Corporation shall adhere to applicable regulations adopted under § 904.735-102, except 5 CFR 735.203(b). In addition, the standards of conduct set forth in §§ 905.735-201, 905.735-204, and 905.735-205 shall apply to special Government employees.
(b) Special Government employees of the Corporation may teach, lecture, or write consistent with the provisions of 5 CFR 735.203(c).
(c) Pursuant to 5 CFR 735.305(b), the provisions concerning gifts, entertainment, and favors set forth in § 905.735-202 are hereby made applicable to special Government employees.
Section 3(c)(8) of the Pennsylvania Avenue Development Corporation Act of 1972, Pub. L. 92-578, 86 Stat. 1267 (40 U.S.C. 872(c)(8)) specifies that the eight members appointed to the Board by the President from private life, at least four of whom shall be residents of the District of Columbia, “shall have knowledge and experience in one or more fields of history, architecture, city planning, retailing, real estate, construction or government.” As a result of these prerequisites for appointment of a private member to the Board of Directors, conflicts could arise for these Board Members as the Corporation proceeds with various development activities. Accordingly, Board Members should perform their responsibilities for the operation and management of the Corporation consistent with these regulations, and other applicable Federal laws and regulations, and consistent with the highest level of fiduciary responsibility.
The Corporation's Ethics Counselor is readily available for consultation when a Board Member seeks advice as to the appropriateness of his actions in light of this part, the Executive order, or title 18 U.S.C., chapter 11. A Board Member has an affirmative duty to advise the Ethics Counselor of any potential conflict of interest which may arise with the individual's participation in any particular matter before the Corporation. If advised to do so, the Board Member should submit to the Chairman for determination the question of whether or not the conflict will disqualify the Board Member from participating in the action to be taken by the Corporation. Under the authority delegated to the Chairman pursuant to 18 U.S.C. 208(b), the Chairman may find that the Board Member need not be disqualified from participating in the particular matter, if:
(a) The Board Member makes a full disclosure of the financial interest; and
(b) The Chairman furnishes him with a written determination in advance of the action that the interest is not so substantial as to be deemed likely to affect the integrity of the services which the Government may expect from the Board Member. Requests for similar determinations for conflicts posed by the financial interests of the Chairman himself shall be submitted to the Chairman of the Civil Service Commission.
Statements of employment and financial interests required to be submitted under this subpart by employees and special Government employees shall contain the information required in the formats prescribed by the Civil Service Commission in the Federal Personnel Manual.
(a) Employees of the Corporation in the following named positions shall prepare and submit statements of employment and financial interests:
(1) Executive Director;
(2) Assistant Director Legal—General Counsel;
(3) Assistant Director/Finance;
(4) Development Director;
(5) Secretary of the Corporation Administrative Officer;
(6) Construction Manager;
(7) Senior Architect/Planner;
(8) Chief, Real Estate Operations;
(9) Any Contracting Officer of the Corporation; and
(10) Any employee classified as a GS-13 or above whose duties and responsibilities are such that the ethics counselor determines a statement should be filed.
(b) Each statement of employment and financial interests required by this section, except that of the General Counsel, shall be submitted to the Ethics Counselor, Office of the General Counsel, Pennsylvania Avenue Development Corporation, 1331 Pennsylvania Avenue, NW., Suite 1220 North, Washington, DC 20004. The General Counsel, as Ethics Counselor, shall submit his statement directly to the Chairman for review.
(c) An employee who believes that his position has been improperly included in this section as one requiring the submission of a statement of employment and financial interests may obtain a review of this determination upon a written request to the Chairman.
All special Government employees shall submit a statement of employment and financial interest prior to beginning employment or service with the Corporation. Each statement shall be submitted to the Ethics Counselor, Office of the General Counsel, Pennsylvania Avenue Development Corporation, 1331 Pennsylvania Avenue, NW., Suite 1220 North, Washington, D.C. 20004, except that the statements of Board Members appointed from private life shall be filed with the U.S. Civil Service Commission.
(a) Upon the adopting of the regulations of this part, the Ethics Counselor shall deliver to the incumbent of each position named in § 905.735-402 and to each special Government employee, two copies of the appropriate form for filing a statement of employment and financial interests. An enclosure with the forms shall advise that:
(1) The original of the completed form must be returned in a sealed envelope, marked “Personal—In Confidence,” to the Ethics Counselor within the time specified by the Ethics Counselor;
(2) The services of the ethics counselor are available to advise and assist in preparation of the statement;
(3) Any additions or deletions to the information furnished must be reported
(4) No later than June 30 of each year, all special Government employees and employees required to file under § 905.735-402(a) shall file an annual supplementary statement to update the information previously filed.
(b) The Administrative Officer shall be responsible for assuring that a completed statement of employment and financial interests is obtained from each special Government employee prior to the beginning of employment or service with the Corporation. The Administrative Officer shall promptly forward the statements to the Ethics Counselor for review.
The Ethics Counselor shall hold in confidence each statement of employment and financial interests, and each supplementary statement within his control. Access to or disclosure of information contained in these statements shall not be allowed, except as the Commission or the Ethics Counselor determine for good cause shown, consistent with the Privacy Act of 1974 (5 U.S.C. 552a), and the regulations and pertinent notices of systems of records prepared by the Civil Service Commission and the Corporation in accordance with that Act.
18 U.S.C. 207(j); sec. 6(5), Pub. L. 92-578, 86 Stat. 1270 (40 U.S.C. 875)(5).
Former employees of the Corporation must abide by the provisions of 18 U.S.C. 207 and 5 CFR 737.1 through 737.25, which bar certain acts by former Government employees that may reasonably give the appearance of making unfair use of prior Government employment and affiliations. Violation of those provisions will give rise to Corporation enforcement proceedings as provided in § 905.737-102, and may also result in criminal sanctions, as provided in 18 U.S.C. 207.
(a)
(b)
(2) On receipt of information regarding a possible violation of 18 U.S.C. 207, and after determining that such information appears substantiated, the Chairman of the Corporation shall expeditiously provide such information, along with any comments or regulations of the Corporation, to the Director of the Office of Government Ethics and to the Criminal Division, Department of Justice. The Corporation shall coordinate any investigation with the Department of Justice to avoid prejudicing criminal proceedings, unless the Department of Justice communicates to the Corporation that it does not intend to initiate criminal prosecution.
(3) Whenever the Corporation has determined after appropriate review, that there is reasonable cause to believe that a former employee has violated 18 U.S.C. 207 or 5 CFR part 737, it shall initiate a disciplinary proceeding by providing the former employee with notice as defined in paragraph (c) of this section.
(4) At each stage of any investigation or proceeding under this section, the Chairman shall take whatever steps are necessary to protect the privacy of the former employee. Only those individuals participating in an investigation or hearing shall have access to information collected by the Corporation pursuant to its investigation of the alleged violation.
(c)
(2) Notice to the former employee must include:
(i) A statement of the allegations (and the basis thereof) sufficiently detailed to enable the former employee to prepare an adequate defense;
(ii) Notification of the right to a hearing;
(iii) An explanation of the method by which a hearing may be requested; and
(iv) Notification that if a hearing is not requested within thirty days of receipt of notice, the Corporation will issue a final decision finding the alleged violations to have occurred.
(3) Failure to request a hearing within thirty days of the receipt of notice will be deemed an admission of the allegations contained in the notice and will entitle the Corporation to issue a final decision finding the alleged violations to have occurred.
(d)
(2) An examiner shall be an employee of the Corporation who is familiar with the relevant provisions of law and who is otherwise qualified to carry out the duties of that position. He or she shall be impartial. No individual who has participated in any manner in the decision to initiate the proceedings may serve as an examiner.
(e)
(2) On setting a hearing date, the presiding official shall give due regard to the former employee's need for:
(i) Adequate time to prepare a defense properly; and
(ii) An expeditious resolution of allegations that may be damaging to his or her reputation.
(f)
(1) To represent oneself or to be represented by counsel;
(2) To introduce and examine witnesses and to submit physical evidence;
(3) To confront and cross-examine adverse witnesses;
(4) To present oral argument; and
(5) To receive a transcript or recording of the proceedings, on request.
(g)
(h)
(2) Within thirty days of the date of an initial decision, either party may appeal the decision to the Chairman. The Chairman shall base his or her decision on such appeal solely on the record of the proceedings on those portions thereof cited by the parties to limit the issues.
(3) If the Chairman modifies or reverses the initial decision, he or she shall specify such findings of fact and conclusions of law as are different from those of the examiner.
(4) If no appeal is taken from an initial decision within thirty days, the initial decision shall become a final decision.
(i)
(1) Prohibiting the individual from making, on behalf of any other person except the United States, any formal or informal appearance before, or, with the intent to influence, any oral or written communication to, the Corporation on any matter of business for a period not to exceed five years, which may be accomplished by directing employees of the Corporation to refuse to participate in any such appearance or to accept any such communication; or
(2) Taking other appropriate disciplinary action.
(j)
Pennsylvania Avenue Development Corporation Act of 1972, as amended, sec. 6(6), Pub. L. 92-578, 86 Stat. 1270 (40 U.S.C. 875(6)); E.O. 11625 (36 FR 19967) Oct. 14, 1971; title VII Civil Rights Act of 1964 (42 U.S.C. 2000e-2); Rehabilitation, Comprehensive Services, and Developmental Disabilities Amendments of 1978, secs. 119, 122(d)(2), Pub. L. 95-602, 92 Stat. 2982, 2987 (29 U.S.C. 794); E.O. 12138 (44 FR 29637) May 22, 1979.
(a) One of the objectives stated in the Congressionally approved Pennsylvania Avenue Plan—1974 is insuring that minority businesses, investors, and workers have an opportunity to share in the benefits that will occur as a result of redevelopment. Accordingly, the Corporation will take affirmative action to assure full minority participation in activities and benefits that result from implementation of The Pennsylvania Avenue Plan—1974.
(b) It is the policy of the Pennsylvania Avenue Development Corporation to foster a progessive Affirmative Action Program that affords minorities, women, handicapped persons, and Vietnam era veterans a fair and meaningful share in the opportunities generated by the development activities of the Corporation.
(c) It is mandatory for developers who respond to a solicitation for proposals made by the Corporation to comply with the rules stated in subpart A of part 906.
(d) It is mandatory for developers who receive property interests of ten percent (10%) or more of the area of a development parcel from the Corporation to comply with the rules stated in subpart A of part 906.
(e) The Corporation will encourage any entity not described in paragraphs (c) and (d) of this section to comply with the requirements set forth in this subpart A of part 906.
As used in this part:
(a)
(1) A statement of the affirmative action policy of the development team and a list of the names of the members of the development team including equity investors, and identification of minority owned businesses and investors;
(2) A contracting and purchasing plan;
(3) A leasing plan;
(4) A personnel plan;
(5) An equity investment plan;
(6) The goals, timetables and strategy for achieving the goals of the developer;
(7) A list of specific, quantifiable committed opportunities; and
(8) Designation of an Affirmative Action Officer.
(b)
(c)
(1) A list of all minority enterprises and minority owned businesses that are involved in the development proposal or its implementation;
(2) An analysis of the types of contracts and purchases that will be required by the development team in order to implement the development through and including operation of the completed development;
(3) A list of goals and timetables by category of purchase or contract for involvement of minority owned businesses in the development process;
(4) Strategy for achieving the goals established; and
(5) A list of committed opportunities for the involvement of minority owned businesses in the development process.
(d)
(e)
(f)
(g)
(1) A statement as to whether or not equity investment has been or will be solicited to implement the subject proj-ect;
(2) A statement as to whether or not a joint venture has been or will be formed to implement the subject proj-ect;
(3) If equity investment has been solicited or if a joint venture has been formed, a statement of the efforts made to involve members of minority groups and women when these opportunities were offered;
(4) If equity investment will be solicited, or a joint venture will be formed, a plan to involve members of minority groups and women when these opportunities are offered, including a list of committed opportunities;
(5) A list of goals and a timetable for securing participation of members of minority groups and women in equity investment and joint venture.
(h)
(i)
(1) A retail plan showing the types of retail businesses to be included in the project and a plan for the types of uses for the balance of the development;
(2) Goals and methods for inclusion of minority enterprises as tenants in the project;
(3) Committed opportunities for leasing to minority enterprises.
(j)
(1) The Board of Directors or equivalent policy making body is comprised of members, a majority of whom are minorities or women and the chief executive officer of the organization is a minority group member or a woman; or
(2) The objectives of the organization as described in its charter are substantially directed toward the betterment of minorities or women.
(k)
(1) Negro—is an individual of the Negro race of African origin;
(2) Hispanic—is an individual who is descended from and was raised in or participates in the culture of Spain, Portugal, or Latin America, or who has at least one parent who speaks Spanish or Portuguese as part of their native culture;
(3) Oriental—is an individual of a culture, origin, or parentage traceable to the areas south of the Soviet Union, East of Iran, inclusive of the islands adjacent thereto, located in the Pacific including, but limited to, Taiwan, Indonesia, Japan, Hawaii, and the Philippines, together with the islands of Polynesia;
(4) Native American—is an individual having origins in any of the original people of North America, who is recognized as an Indian by either a tribe, tribal organization, or suitable authority in the community. For purposes of this section a suitable authority in the community may be an educational institution, a religious organization, or a state or Federal agency.
(5) Eskimo—is an individual having origins in any of the original peoples of Alaska;
(6) Aleut—is an individual having origins in any of the original peoples of the Aleutian Islands.
(l)
(1) A sole proprietorship owned by a minority group member or a woman;
(2) A business entity at least 50 percent of which is owned by minority group members or women;
(3) A publicly owned business at least 51 percent of the stock of which is owned by minority group members or women;
(4) A certified minority owned business as evidenced by a certificate satisfactory to the Corporation's Affirmative Action Officer, and signed by the owner or the executive officer of the minority owned business.
(m)
(1) An analysis of participation of minority group members, women, Vietnam era veterans, and handicapped persons in the development project including an evaluation by category of employment, i.e., professional and managerial, skilled, semi-skilled, trainee, and other, and the number of employees in each category;
(2) An analysis of the salaries of minority group members, women, handicapped persons, and Vietnam era veterans showing the relative position of these employees with those not covered by the Affirmative Action Plan;
(3) Goals and timetables for employment by category and salary level of minorities, women, Vietnam era veterans, and handicapped persons employed for the development parcel;
(4) Strategy for achieving the goals established (see Exhibit B);
(5) A list of committed opportunities for the employment of minority group members, women, Vietnam era veterans, and handicapped persons.
(n)
(1) Served on active duty for a period of more than 180 days, any part of which occurred during the Vietnam era, and was discharged or released therefrom with other than a dishonorable discharge; or
(2) Was discharged or released from active duty for a service-connected disability if any part of such active duty was performed during the Vietnam era.
(a) Affirmative Action Plans must be submitted to the Corporation at the following times:
(1) At the time a response is submitted to the Corporation's solicitation for proposals, the response must include an Affirmative Action Plan;
(2) If a property right exceeding 10 percent of the area of the development parcel is made available by the Corporation, but without the Corporation having made a solicitation for proposals, the developer must submit an Affirmative Action Plan within 30 days after the start of negotiations with the Corporation.
(b) Affirmative Action Plans will be reviewed as follows:
(1) Each Affirmative Action Plan submitted to the Corporation will be reviewed by the Corporation's Affirmative Action Officer, or his designee.
(2) In the case of a developer who responds to a solicitation for proposals, the Affirmative Action Plan will be reviewed by the Affirmative Action Officer, and if the Plan is in substantial compliance with the goals set forth in Exhibit A, the Plan and the recommendation of the Affirmative Action Officer will be submitted to the Chairman of the Board for approval prior to the Board's final selection.
(3) In the case of a developer who receives 10 percent or more of the area of a development parcel from the Corporation, the Affirmative Action Plan will be reviewed by the Corporation's Affirmative Action Officer, and if the Plan is in substantial compliance with the goals set forth in Exhibit A, the Plan and the recommendation of the Affirmative Action Officer will be submitted to the Chairman of the Board for approval within 15 days of submission.
(4) The Chairman may approve any Affirmative Action Plan that is not in substantial compliance with the goals set forth in Exhibit A, but for which the developer has documented a genuine effort to meet the goals of the regulations and complied with the spirit of the Corporation's policy.
(5) The Chairman may, in his discretion, submit any Affirmative Action Plan to the Board of Directors for approval, if there is not substantial compliance with the goals set forth in Exhibit A.
(6) The review of the Affirmative Action Plan will determine conformity with The Pennsylvania Avenue Plan—1974, the policy of the Corporation's Board of Directors, and the regulations and guidelines set forth in this subpart A, part 906.
(c) Revisions: (1) The Corporation may require a developer at any time prior to approval of the Affirmative Action Plan to revise the Plan for compliance with the requirements of this subpart.
(2) Each developer required to comply with this subpart must submit for approval an up-dated Affirmative Action Plan at the commencement of construction, at the commencement of occupancy, and at the commencement of operation or management of any portion of the facility by the developer or a related entity. Each revision of the Affirmative Action Plan must address all the requirements set forth in § 906.4.
(3) The Corporation's Affirmative Action Officer will review all revisions submitted to the Corporation. If the revision is a substantial change from the originally approved Plan, the review procedures set forth in paragraph (b) of this section will be applicable. If the revision submitted is not a substantial change from the originally approved Plan, the Corporation's Affirmative Action Officer may approve the revision.
(a) The developer, in formulating the Affirmative Action Plan, should consider all phases of development from establishment of the development team to operation and management of the development project including each component of the project (e.g., hotel, retail, office, residential). The developer should also consider the personnel profile of project contractors, subcontractors.
(b) For each phase and each component, the developer should give consideration to creating business and employment opportunities and committed opportunities in the following:
(1) Equity participation;
(2) Professional and technical services such as legal, architectural, engineering, and financial;
(3) Purchasing materials and supplies in connection with construction and operation;
(4) Contracting for construction, operation, and maintenance; and,
(5) Financing, including construction and permanent financing, and other financial and banking services.
(a) The developer shall appoint an Affirmative Action Officer, and for projects exceeding $10 million in cost,
(b) The developer shall report to the Corporation periodically its progress in meeting the goals and timetables in its Affirmative Action Plan with respect to its contracting and purchasing plan, leasing plan, and committed opportunities. In meeting the reporting requirements the developer shall:
(1) Count an individual only once for reporting purposes;
(2) Count an individual in the first appropriate category as follows:
(i) Minority Group Member;
(ii) Handicapped Person;
(iii) Woman;
(iv) Vietnam Era Veteran;
(3) Report the dollar amount of contracts and purchases from minority owned businesses including subcontracts;
(4) In the event 10 percent or more of the dollar amount of a contract, subcontract, or purchase from a minority owned business is performed by other than a minority owned business, the developer shall report only the dollar amount performed by the minority owned business.
(a) Each developer's Affirmative Action Plan will be incorporated into the real estate agreement between the developer and the Corporation.
(b) Each developer shall include a clause requiring a contracting and purchasing plan and a personnel plan in any contract exceeding $500,000.
(c) Each developer should consider including a clause requiring a contracting and purchasing plan and a personnel plan in any contract less than $500,000.
(d) In order that the Corporation may be of assistance, and to the extent practical, the developer shall notify the Corporation's Affirmative Action Officer of any failure to meet the approved Affirmative Action Plan.
(e) The Corporation, at the request of the developer, shall provide the developer with assistance for meeting the goals set forth in the Affirmative Action Plan. Such assistance may be provided in the form of lists of minority enterprises, sources for recruiting and advertising, as well as other available information.
(a) At the request of the developer, the Corporation may agree to deferral of a portion of rental, not to exceed 50 percent, during construction and during the first year of operation following construction of any phase of the development project. Allowable rent deferral during the construction phase will be two percent of the total base rent for each one percent of the value of all construction contracts which have been awarded to Minority Owned Businesses, not to exceed 50 percent. Rent deferral during the first year of operation following construction of any phase of the development project will be four percent for each one percent of total equity owned by minority group members, minority owned businesses, and women.
(b) Following review of Affirmative Action reports submitted to the Corporation pursuant to § 906.5(b), the Corporation will determine the developer's compliance with the goals set forth in the approved Affirmative Action Plan. Compliance with the goals established in the Plan will be measured by adding the percentages reported including overages in each category and dividing that by the number of categories covered in the Plan.
(c) If 75 percent compliance is not achieved during any rent deferral period, the Corporation will afford the developer 120 days to achieve at least that level of compliance. If, at the end of that 120 day period, 75 percent compliance is not achieved, all rental deferral, together with interest, will be due and payable to the Corporation on the 10th day following receipt of written notice that payment of the deferred rent has been accelerated.
The Corporation, either by its employees, consultants, or other government agency, shall analyze and monitor compliance with the developer's approved Affirmative Action Plan. The Corporation shall rely on the reports submitted by the developer. However:
(a) Further investigation by the Corporation may be undertaken if problems are brought to the attention of the Corporation through any reliable source, or if any formal complaints are filed against the developer that relate to performance of the Affirmative Action Plan; and
(b) The Corporation reserves the right to audit the records of the developer that pertain to any report submitted to the Corporation.
The Corporation will encourage any individual or entity not described in § 906.1(c) or (d) to submit and adopt an Affirmative Action Plan on any development project for which the Corporation's review and approval is required to determine conformity of the development project with the The Pennsylvania Avenue Plan—1974. Any such Affirmative Action Plan should accompany the development plans.
All information submitted to the Corporation pursuant to this subpart A will be kept confidential, except as availability to the public may be required by the Freedom of Information Act.
The following are suggested for consideration by developers in formulation of minimum affirmative action goals for the development parcel:
(a) Equity participation—10 percent participation by minority group members, women, and minority owned businesses as investors in ownership of the development parcel.
(b) Contracts for professional and technical services—20 percent of the dollar value of the contracts to minority owned businesses.
(c) Persons providing professional or technical services—20 percent should be minority group members, women, handicapped persons, or Vietnam era veterans.
(d) Construction contracting—15 percent of the total dollar value to minority owned businesses. (In order to accomplish this goal, the developer must require that any prime contractor show at least 15 percent minority subcontractors unless the prime contractor is a minority contractor.)
(e) Construction employment should comply with the Washington Plan as a minimum.
(f) Purchasing—20 percent of the dollar value of all purchases of materials and supplies to minority owned businesses.
(g) Hotel employment—20 percent of all hotel employees, 15 percent of all personnel earning an excess of $2,000 a month (in 1978 dollars), and 60 percent of trainees for hotel positions should be minority group members, women, handicapped persons, or Vietnam era veterans.
(h) Leasing of space—15 percent of the retail space should be targeted for minority enterprises.
(i) Committed opportunities—should be created for professional, technical, construction, hotel, or other type operations where the representation of minority group members, women, or handicapped persons in a field is inconsistent with the demographic profile of the Washington metropolitan area.
The following are suggested as the types of activities to be considered in the development of strategies for the affirmative action personnel plan:
(1) “Vigorous” searching for qualified minority and women applicants for job openings in professional and managerial positions, often including recruitment visits to educational institutions with large minority or female enrollments.
(2) Wide dissemination of affirmative action policy in advertisements and employment literature.
(3) Utilization of minority media in recruitment advertisements.
(4) Notification of job openings to minority community organizations and associations.
(5) Listing of all employment openings with compensation of under $20,000 per year at a local office of the State Employment Service (or union hiring hall when union labor is required).
(6) Periodic review of minority, female, Vietnam era veteran, and handcapped employees to identify underutilized and unutilized skills and knowledge as well as opportunities for reassignment.
(7) Utilization of merit promotion and on-the-job training programs to create career ladders or otherwise qualify minority, female, Vietnam era veteran, and handicapped employees for advancement.
40 U.S.C. 875(8); 42 U.S.C. 4321.
The Pennsylvania Avenue Development Corporation's policy is to:
(a) Use all practical means, consistent with the Corporation's statutory authority, available resources, and national policy, to protect and enhance the quality of the human environment;
(b) Ensure that environmental factors and concerns are given appropriate consideration in decisions and actions by the Corporation;
(c) Use systematic and timely approaches which will ensure the integrated use of the natural and social sciences and environmental design arts in planning and decision making which may have an impact on the human environment;
(d) Develop and utilize ecological and other environmental information in the planning and development of projects implementing the Plan;
(e) Invite the cooperation and encourage the participation, where appropriate, of Federal, District of Columbia, and regional authorities and the public in Corporation planning and decision-making processes, which affect the quality of the human environment; and
(f) Minimize any possible adverse effects of Corporation decisions and actions upon the quality of the human environment.
These regulations are prepared to supplement Council on Environmental Quality Regulations for implementing the procedural provisions of the National Environmental Policy Act of 1969, as amended, and describe how the Pennsylvania Avenue Development Corporation intends to consider environmental factors and concerns in the Corporation's decision making process.
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(i)
(j)
(k) Other terms used in this part are defined in 40 CFR part 1508 of the CEQ Regulations.
The Development Director is the Corporation official responsible for implementation and operation of the Corporation's policies and procedures on environmental quality and control.
(a) Coordinate the formulation and revision of Corporation policies and procedures on matters pertaining to environmental protection and enhancement.
(b) Establish and maintain working relationships with relevant government agencies concerned with environmental matters.
(c) Develop procedures within the Corporation's planning and decision-making processes to ensure that environmental factors are properly considered in all proposals and decisions in accordance with this part.
(d) Develop, monitor, and review the Corporation's implementation of standards, procedures, and working relationships for protection and enhancement of environmental quality and compliance with applicable laws and regulations.
(e) Monitor processes to ensure that the Corporation's procedures regarding consideration of environmental quality are achieving their intended purposes.
(f) Advise the Board of Directors, officers, and employees of the Corporation of technical and management requirements of environmental analysis, of appropriate expertise available, and, with the assistance of the Office of the General Counsel, of relevant legal developments.
(g) Monitor the consideration and documentation of the environmental aspects of the Corporation's planning and decisionmaking processes by appropriate officers and employees of the Corporation.
(h) Ensure that all environmental assessments and, where required, all EIS's are prepared in accordance with the appropriate regulations adopted by the Council on Environmental Quality and the Corporation, and are submitted with all proposed legislation.
(i) Consolidate and transmit to appropriate parties the Corporation's comments on EIS's and other environmental reports prepared by other agencies.
(j) Acquire information and prepare appropriate reports on environmental matters required of the Corporation. Information collection activities will be conducted in accordance with the Paperwork Reduction Act of 1980 and approval of OMB will be obtained prior to commencing such activities.
(k) Coordinate Corporation efforts to make available to other parties information and advice on the Corporation's policies for protecting and enhancing the quality of the environment.
(a) The possible environmental effects of a proposed action or project must be considered along with technical, economic, and other factors throughout the decisionmaking process. For most Corporation projects there are three distinct stages in the decision making process:
(1) Conceptual or preliminary stage;
(2) Detailed planning or final approval stage;
(3) Implementation stage.
(b) Environmental review will be integrated into the decision making process of the Corporation as follows:
(1) During the conceptual or preliminary approval study stage, the responsible Corporation official shall determine whether the proposed action or project is one which is categorically excluded, requires an environmental assessment or an EIS.
(2) Prior to proceeding from the conceptual or preliminary approval stage to the detailed planning or final approval stage, an environmental assessment and the determination as to whether an EIS is required must be completed.
(3) An EIS, if determined necessary, must be completed and circulated prior to the decision to proceed from the detailed planning stage to implementation.
Determining whether to prepare an environmental impact statement is the first step in applying the NEPA process. In deciding whether to prepare an environmental impact statement, the responsible Corporation official will determine whether the proposal is one that:
(a) Normally requires an environmental impact statement.
(b) Normally does not require either an environmental impact statement or an environmental assessment (categorical exclusion).
(c) Normally requires an environmental assessment, but not necessarily an environmental impact statement.
PADC shall perform or have performed an environmental assessment to determine if a proposal requires an environmental impact statement. However, it may be readily apparent that a proposed action will have a significant impact on the environment; in such cases, an environmental assessment is not required and PADC will immediately begin to prepare or have prepared the environmental impact statement. To assist in determining if a proposal or action normally requires the preparation of an environmental impact statement, the following criteria and categories of action are provided.
(a)
(1) Buildings or facades designated for retention in the Plan will be adversely affected by the proposal or action.
(2) Traffic generated by the proposal or action would represent a substantial increase over the traffic projections assessed in the Final EIS in the average daily traffic volume on avenues and streets within the Development Area or its environs;
(3) Air quality in the Development Area and its environs would be substantially affected by the proposal or action based upon the District of Columbia's adopted standard for hydrocarbons and carbon monoxide;
(4) Solid waste disposal generated by a project of the Corporation or of a developer who is constructing, reconstructing, or rehabilitating that proj-ect, would have an adverse effect on the capacity of the relevant solid waste disposal facility and compliance with “Solid Waste Management Guidelines” of the U.S. Environmental Protection Agency and related local and regional controls;
(5) Public utilities have insufficient capacity to provide reliable service to a project within the Development Area; and
(6) A project will be inconsistent with major elements of the Zoning Regulations of the District of Columbia as they are applicable to the Development Area.
(b)
(1) Amendments or supplements to the Plan that constitute a “substantial change” to the Plan as defined in 40 U.S.C. 874(c) of the Act.
(2) Acquisition or disposal of real property by the Corporation
(3) Legislative proposals made to Congress.
(4) Funding and/or construction by the Corporation or its agents or representatives of any building, if that activity is not consistent with the Plan and the Final EIS.
(a)
(b)
(c)
The CEQ Regulations provide for the categorical exclusion (40 CFR 1508.4) of actions that do not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required for such actions.
(a)
(1) The action or proposal is consistent with the Plan or the Act, and the environmental effects have been previously analyzed in the Final EIS, a supplement thereto, or in an environmental assessment or an EIS previously prepared; or
(2) The total estimated cost directly attributable to the action or proposal does not exceed $500,000; or
(3) The action or proposal is related solely to internal administrative operations of the Corporation.
(b)
(c)
(2) Additional categories of exclusion identified will be submitted to the Chairman of the Board of Directors for review and approval, and for amendments to this part, following public comment and review by the Council on Environmental Quality.
If a proposal or action is not one that normally requires an environmental impact statement, and does not qualify for categorical exclusion, PADC will prepare or have prepared an environmental assessment.
(a)
(1) Potential for minor degradation of environmental quality;
(2) Potential for cumulative impact on environmental quality; and
(3) Potential for impact on protected resources.
(b)
(1) Amendments to the Plan that do not constitute a “substantial change” to the Plan.
(2) Regulations promulgated by the Corporation that have significant environmental impact on the public or persons residing in the development area including businesses.
(3) Development proposals submitted to the Corporation by private developers that are consistent with the Plan and General Guidelines prepared by the Corporation.
(4) Activities related to the Public Improvements Program of the Corporation for which no previous environmental assessment or EIS has been prepared.
(5) Contracts, work authorizations, and master agreements related to and implementing programs, policies, and proposals not categorically excluded and for which no environmental assessments or for which no environmental assessment and EIS have been previously prepared.
(6) Street closures and other rearrangements of public space which were not covered in the Plan or the Final EIS.
(7) Acquisition/disposal of personal property by the Corporation not related to any specific decision, plan, or program adopted by the Board of Directors of the Corporation for which an environmental assessment or an environmental assessment and an EIS is required to be prepared.
(8) Proposed construction of any public building within the development area by any executive agency of the United States Government, any agency or department of the District of Columbia Government, or any other public or quasi-public entity.
(a)
(b)
(1) Purpose and need for the proposed action.
(2) Description of the proposed action.
(3) Alternatives considered, including the No Action alternative.
(4) Environmental effects of the proposed action and alternative actions.
(5) Listing of agencies, organizations or persons consulted.
(6) In preparation of the environmental assessment, the most important or significant environmental consequences and effects on the areas listed below should be addressed. Only those areas which are specifically relevant to the particular proposal should be addressed. Those areas should be addressed in as much detail as is necessary to allow an analysis of the alternatives and the proposal. The areas to be considered are the following:
(i) Natural/ecological features (such as floodplain, wetlands, coastal zones, wildlife refuges, and endangered species);
(ii) Air quality;
(iii) Sound levels;
(iv) Water supply, wastewater treatment and water runoff;
(v) Energy requirements and conservation;
(vi) Solid waste;
(vii) Transportation;
(viii) Community facilities and services;
(ix) Social and economic;
(x) Historic and aesthetic; and
(xi) Other relevant factors.
(c)
Interested persons may obtain information concerning any pending EIS or any other element of the environmental review process of the Corporation by contacting the Public Information Officer of the Corporation, 1331 Pennsylvania Avenue, NW, Suite 1220 North, Washington, DC 20004, telephone (202) 566-1218.
To ensure that at major decision making points all relevant environmental concerns are considered by the Decision Maker, the following procedures are established.
(a) An environmental document, i.e., the EIS, Environmental Assessment, Finding of No Signficant Impact, or Notice of Intent, in addition to being prepared at the earliest point in the decision making process, shall accompany the relevant proposal or action through the Corporation's decision making process to ensure adequate consideration of environmental factors.
(b) The decision maker shall consider in its decision making process only those decision alternatives discussed in the relevant environmental documents. Also, where an EIS has been prepared, the decision maker shall consider all alternatives described in the EIS. A written record of the consideration of alternatives during the decision making process shall be maintained.
(c) Any environmental document prepared for a proposal or action shall be made part of the record of any formal rulemaking by the Corporation.
(a) Each development proposal submitted by a private developer to the Corporation for its approval, unless categorically excluded, shall require, at a minimum, an environmental assessment.
(b) The Board of Directors may not take any approval action on a submitted development proposal of a private developer until such time as the appropriate environmental review has been prepared and submitted to the Board of Directors.
(c) At a minimum, and as part of any submission made by a private developer to the Board of Directors for its approval, a private developer shall make available data and materials concerning the development proposal sufficient to permit the Corporation to carry out its responsibilities on environmental review. When requested, the developer shall provide additional information that the Corporation believes is necessary to permit it to satisfy its environmental review functions.
(d) As part of a development proposal submission, a private developer may submit an environmental assessment on its development proposal.
(e) Where the responsible Corporation official determines that the preparation of an EIS is required, the EIS shall be prepared in accordance with part 1502 of the CEQ Regulations. The responsible Corporation official may set time limits for environmental review appropriate to each development proposal, consistent with CEQ Regulations 40 CFR 1601.8 and 1506.10.
(f) The responsible Corporation official shall at the earliest possible time ensure that the Corporation commences its environmental review on a proposed development project and shall provide to a private developer any policies or information deemed appropriate in order to permit effective and timely review by the Corporation of a development proposal once it is submitted to the Board of Directors for approval. The official shall designate, for the benefit of the developer, staff members of the Corporation to advise the developer with regard to information that may be required in order to accomplish the Corporation's environmental review.
(a) Consistent with CEQ Regulations, § 1501.5, where a proposed action by the Corporation involves one or more other
(b) For an action that qualifies as one for which the Corporation will seek designation as lead agency, the Corporation will promptly consult with the appropriate Federal agencies such as the National Capital Planning Commission, the Department of the Interior, and the General Services Administration to establish lead agency and cooperating agency designations.
(a) Specific Corporation actions categorically excluded from the requirements for environmental assessment and an EIS are:
(i) Personnel actions;
(ii) Administrative actions and operations directly related to the operation of the Corporation (e.g., purchase of furnishings, services, and space acquisition for the Corporation offices);
(iii) Property management actions related to routine maintenance, operation, upkeep, etc., of real property owned by the Corporation;
(iv) Review of permit applications relating to minor development activities in the Development Area (sign approval, interior renovations, minor exterior changes to facade, etc.);
(v) Promulgation of development general and square guidelines that implement the Plan as covered by the Final EIS;
(vi) Contracts, work authorizations, procurement actions directly related to and implementing proposals, programs, and master agreements for which an environmental assessment or an environmental assessment and an EIS have been prepared, or which are related to administrative operation of the agency;
(vii) Acquisition/disposal by lease, easement, or sale of real and personal property owned by the Corporation subsequent to and implementing a prior decision of the Board of Directors for which an environmental assessment or an assessment and an EIS were prepared;
(viii) Activities directly related to and implementing the Public Improvements Program of the Corporation approved by the Board of Directors, and which are covered by a previously prepared environmental assessment or an environmental assessment and an EIS;
(ix) Demolition actions preparatory for development by the Corporation, other public agencies, or private developers subsequent to approval of development proposals made by the Board of Directors;
(x) Development proposal identical to the requirements of the Plan and which was included in an EIS previously prepared.
(b) An action which falls into one of the above categories may still require the preparation of an EIS or environmental assessment if the designated corporation official determines it meets the criteria stated in § 907.8(a) or involves extraordinary circumstances that may have a significant environmental effect.
40 U.S.C. 874(e); 40 U.S.C. 875(8); 40 U.S.C. 877(d).
One of the goals of The Pennsylvania Avenue Plan—1974, as amended, (
The purpose of this rule is to:
(a) Provide a meaningful opportunity to businesses displaced by the Corporation's program to return to, or remain in, the Development Area;
(b) Establish procedures and requirements for displaced occupants by which they may establish and later exercise their preferential right to return to the Development Area;
(c) Establish procedures which the Corporation and private Developers must follow in providing Qualified Persons with the opportunity to obtain their preferential right to return to the Development Area.
The following definitions shall apply to this part:
(a)
(b)
(c)
(d)
(e)
(f)
(a) A Person whose place of business or residence was located in the Development Area and was displaced from its location by:
(1) The Corporation in connection with the acquisition of fee title, or a lesser interest, in the real property containing such business or residence; or
(2) A Developer in implementing a development project in accordance with the Plan; or
(b) A Person whose place of business or residence is located in the Development Area and who has received notice of initiation of negotiations by the Corporation for purchase of the real property containing such business or residence.
(a) The Corporation shall develop and maintain a List of Qualified Persons who meet the criteria of Qualified Person as defined in § 908.10 and who ask to be placed on that list.
(b) The Corporation shall notify each occupant displaced by development provided an address is available to the Corporation, of this policy and the procedures to be followed for placement on the List.
(c) A person who wishes to be included on the List shall notify the Corporation in writing to that effect. The notice to the Corporation shall include:
(1) The address of the Previous Location;
(2) A short statement indicating the nature of the Qualified Person's occupancy;
(3) The amounts and type of space occupied prior to displacement;
(4) A description of any specialized equipment or unusual requirements for occupancy; and
(5) A copy of the notice to vacate from the Developer or notice of initiation of negotiations from the Corporation if either of these was received by the Qualified Person.
(d) The Corporation shall:
(1) Review the information furnished by the Person including any notice;
(2) Request additional information, if necessary to make a determination of the Person's qualifications;
(3) Determine whether the Person is qualified to be listed, and if so place the Person on the list; and
(4) Notify the Person of its determination.
(e) The Corporation urges that any Person who wishes to be placed on the List request such placement as soon as the Person meets the criteria for Qualified Person established in § 908.10, and all Persons are encouraged to do so no later than one year of the time the Person is displaced in order to increase the opportunity to obtain Newly Developed Space. However, no Person shall be denied placement on the List because such placement was not requested within one year of displacement.
(a) Once placed on the List, the Corporation shall keep a Person on the List until:
(1) The Corporation receives a written request from the Qualified Person to be removed from the List;
(2) The Qualified Person is relocated into or has a binding lease commitment for Newly Developed Space;
(3) The Qualified Person sells, transfers, or merges its interest in the displaced business, unless after such change in ownership Qualified Persons have at least fifty-one percent of the interest in the resulting business; or
(4) The Corporation receives a mailing returned from the Post Office that the Person is not located at the known address and left no forwarding address, provided that the Corporation shall reinstate any such removed name if the Person provides the Corporation with a current address; or
(5) The Corporation ceases operations upon completion of the Plan.
(b) A Qualified person relocated into newly developed space, may only again be placed on the List:
(1) If another branch of its business is subsequently displaced from space within the Development Area which is not Newly Developed Space; and
(2) If all requirements of § 908.10 of the rule are met with regard to the subsequent displacement.
(a) As provided in §§ 908.14(c) and 908.15(b), each Qualified Person on the List shall receive notices of opportunities to occupy Newly Developed Space as opportunities become available.
(b) As provided in §§ 908.14(d) and 908.15(c), each Qualified Person on the List shall be notified of any subsequent changes in the leasing plan which are, in the Corporation's opinion, major.
(c) Each Qualified Person on the List, who is interested in negotiating for occupancy of Newly Developed Space shall, within two weeks after receiving notice of a tenanting opportunity, provide written notice of its interest in the tenanting opportunity to the Developer, and furnish a copy of the written notice to the Corporation.
(d) Each Qualified Person on the List who provides a written notice of interest shall have ninety days following the Developer's receipt of the notice of interest for exclusive negotiations with the Developer for occupancy of the Developer's Newly Developed Space. During the ninety day period the Developer, subject to §§ 908.14 and 908.15 of this rule, shall not negotiate tenanting opportunities for the same Newly Developed Space requested by the Qualified Person with other than Qualified Persons.
(e) A Qualified Person's opportunity to occupy Newly Developed Space shall not be limited to the square on which its previous location was situated but extends throughout the Development Area. Similarly, no Qualified Person has an absolute right to return to the square where previous location was situated.
(f) A Qualified Person's opportunity to occupy space may be exercised in the Development Area at any time during the Corporation's existence, but such opportunity may only be exercised within Newly Developed Space.
(g) A Qualified Person has one opportunity to occupy Newly Developed Space for each location in the Development Area from which it is displaced.
(h) The Corporation cannot assure any Qualified Person that it will be relocated to Newly Developed Space.
Developers who have acquired or leased real property from the Corporation shall:
(a) Notify the Corporation, within six months of the approval of the Developer's building permit, of its leasing plan and when it intends to begin seeking tenants. The Developer shall include at least the following in its leasing plan:
(1) The mix of uses and estimated square footage for each use;
(2) The rentals to be charged by type of use and location;
(3) The terms and conditions to be included in the leases, including financial participation;
(4) The selection criteria to be used by either the Developer or its agents; and
(5) The projected completion and occupancy dates.
(b) Notify the Corporation of any changes in the Developer's leasing plan.
(c) Send registered letters to all Qualified Persons on the List notifying them that the developer is seeking tenants and advising them that they have two weeks to provide the developer with written notice of their interest and ninety days thereafter for exclusive negotiations. This letter shall include a description of the mix of uses in the project, the rentals to be charged by type of use and location, the terms and conditions to be included in leases, the projected completion and occupancy dates, and the selection criteria to be used to choose tenants. The Developer will furnish the Corporation with an enumeration of the Qualified Persons it has notified and a copy of the letter and any attachments sent.
(d) Notify in writing each Qualified Person whom the Developer has previously contacted of changes in the Developer's leasing plan which the Corporation determines are major.
(e) Provide a ninety day period for exclusive negotiations with Qualified Persons, said period to commence with the timely receipt by the Developer of the written notice of interest from the Qualified Person. During this period the Developers shall:
(1) Negotiate tenanting opportunities only with Qualified Persons who have notified the Developer of their interest in the opportunity;
(2) Not seek other potential tenants or negotiate agreements to occupy the Newly Developed Space requested by Qualified Persons with anyone other than those Qualified Persons who have timely notified the Developer of their interest in the opportunity, except that a Developer may negotiate agreements with equity partners in the project who will become tenants or with prime tenants; and
(3) Negotiate in good faith with interested Qualified Persons and seek to accommodate them as tenants.
(f) Report to the Corporation at the conclusion of the ninety day period of
(1) State the number of responses which it received from Qualified Persons;
(2) State the number of Qualified Persons with whom it has reached agreement and the name of each;
(3) State the number of Qualified Persons with whom it is still negotiating and the name of each; and
(4) Describe the Developer's negotiations with each Qualified Person including a summary of each communication between the Developer and each Qualified Person with whom agreement has not been reached, the Developer's best offer to each Qualified Person, the best offer of each Qualified Person to the Developer, and the specific reasons why any Qualified Persons did not meet the selection criteria.
(g) Report to the Corporation quarterly thereafter until the project is fully leased or there are no more Qualified Persons interested in leasing space, whichever first occurs, concerning the results of its nogotiations with Qualified Persons. In particular the Developer shall state:
(1) The number of Qualified Persons with whom it has reached agreement and the name of each;
(2) The percentage of square feet of total leasable space which it has leased to Qualified Persons; and
(3) A description of the Developer's negotiations with each Qualified Person including a summary of each communication between the Developer and each Qualified Person with whom agreement has not been reached, the Developer's best offer to each Qualified Person, the best offer of each Qualified Person to the Developer, and the specific reason why the Developer determines any Qualified Person did not meet its selection criteria.
The Corporation shall encourage Developers that do not acquire or lease real property from the Corporation to lease to Qualified Persons.
(a) While reviewing the Developer's preliminary or final plans, the Corporation shall explore the tenanting opportunities proposed by the Developer and furnish the Developer with the List.
(b) The Corporation shall notify those Qualified Persons on the List who appear to be prospective tenants for the available tenanting opportunities of this tenanting opportunity. To the extent that such information is available to the Corporation, these notices shall specify the mix of uses in the project, the rentals to be charged by type of use and location, the terms and conditions to be included in the leases, the projected completion and occupancy dates and the selection criteria to be used in choosing tenants.
(c) The Corporation shall notify in writing each Qualified Person whom it has previously contacted of changes in the Developer's plan provided the Corporation is informed of the changes and determines the changes are major.
(d) The Corporation shall request that the Developer make every effort to lease space to Persons on the List and to report to the Corporation the names of those Qualified Persons who have reached an agreement with the Developer.
(a) Any Person aggrieved by a determination concerning placement or retention on the List or any other right under subpart B of this rule, may request that the determination be reviewed.
(b) The applicant's request for review, shall be in writing, shall state the reasons for requesting review, and shall describe the relief sought (including all information the aggrieved person believes to be relevant). The applicant's written request shall be sent to the Director of Real Estate, Pennsylvania Avenue Development Corporation, 1331 Pennsylvania Avenue, NW., Suite 1220 North, Washington, DC 20004.
Any person who files a request for review must do so within one year of the date of the determination for which review is sought.
(a) Upon receipt of a request for review, the Director of Real Estate shall compile all pertinent records maintained on the aggrieved person's application, including the following:
(1) Information on which the original determination was based, including applicable regulations;
(2) Information submitted by the applicant including the request for review and any information submitted in support of the application;
(3) Any additional information the Director of Real Estate considers relevant to a full and fair review of the application and which he obtains by request, investigation or research.
(b) The Director of Real Estate shall submit the complete file together with a summary of the facts and issues involved in the application to the Chairman of the Board of Directors of the Corporation or his or her designee (
(c) The Chairman may either review the application or designate one or more persons from the Board of Directors or from outside the Corporation to review the claim. During review the Chairman or designee(s) may consult with the Corporation's Office of General Counsel to obtain advice on legal issues arising from the claim.
(a) The Chairman or designee(s) shall make a final determination on the claim within 45 days of receipt of the file from the Director of Real Estate. The final determination shall be in the form of Findings of Fact and Conclusions of Law and shall be sent to the aggrieved person and to the Director of Real Estate.
(b) If the applicant is determined to have been aggrieved, the Director of Real Estate shall promptly take appropriate action in accordance with the final determination.
(c) A notice of the right to judicial review shall be sent to the aggrieved person with the final determination.
29 U.S.C. 794.
This part effectuates section 119 of the Rehabilitation, Comprehensive Services, and Developmental Disabilities Amendments of 1978, which amended section 504 of the Rehabilitation Act of 1973 to prohibit discrimination on the basis of handicap in programs or activities conducted by Executive agencies or the United States Postal Service.
This part applies to all programs or activities conducted by the agency.
For purposes of this part, the term—
As used in this definition, the phrase:
(1)
(i) Any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: Neurological; musculoskeletal; special sense organs; respiratory, including speech organs; cardiovascular; reproductive; digestive; genitourinary; hemic and lymphatic; skin; and endocrine; or
(ii) Any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities. The term
(2)
(3)
(4)
(i) Has a physical or mental impairment that does not substantially limit major life activities but is treated by the agency as constituting such a limitation;
(ii) Has a physical or mental impairment that substantially limits major life activities only as a result of the attitudes of others toward such impairment; or
(iii) Has none of the impairments defined in paragraph (1) of this definition but is treated by the agency as having such an impairment.
(1) With respect to preschool, elementary, or secondary education services provided by the agency, a handicapped person who is a member of a class of persons otherwise entitled by statute, regulation, or agency policy to receive education services from the agency.
(2) With respect to any other agency program or activity under which a person is required to perform services or
(3) With respect to any other program or activity, a handicapped person who meets the essential eligibility requirements for participation in, or receipt of benefits from, that program or activity; and
(4)
(a) The agency shall, by August 24, 1987, evaluate its current policies and practices, and the effects thereof, that do not or may not meet the requirements of this part, and, to the extent modification of any such policies and practices is required, the agency shall proceed to make the necessary modifications.
(b) The agency shall provide an opportunity to interested persons, including handicapped persons or organizations representing handicapped persons, to participate in the self-evaluation process by submitting comments (both oral and written).
(c) The agency shall, until three years following the completion of the self-evaluation, maintain on file and make available for public inspection:
(1) A description of areas examined and any problems identified, and
(2) A description of any modifications made.
The agency shall make available to employees, applicants, participants, beneficiaries, and other interested persons such information regarding the provisions of this part and its applicability to the programs or activities conducted by the agency, and make such information available to them in such manner as the head of the agency finds necessary to apprise such persons of the protections against discrimination assured them by section 504 and this regulation.
(a) No qualified handicapped person shall, on the basis of handicap, be excluded from participation in, be denied the benefits of, or otherwise be subjected to discrimination under any program or activity conducted by the agency.
(b)(1) The agency, in providing any aid, benefit, or service, may not, directly or through contractual, licensing, or other arrangements, on the basis of handicap—
(i) Deny a qualified handicapped person the opportunity to participate in or benefit from the aid, benefit, or service;
(ii) Afford a qualified handicapped person an opportunity to participate in or benefit from the aid, benefit, or service that is not equal to that afforded others;
(iii) Provide a qualified handicapped person with an aid, benefit, or service that is not as effective in affording equal opportunity to obtain the same result, to gain the same benefit, or to reach the same level of achievement as that provided to others;
(iv) Provide different or separate aid, benefits, or services to handicapped persons or to any class of handicapped persons than is provided to others unless such action is necessary to provide
(v) Deny a qualified handicapped person the opportunity to participate as a member of planning or advisory boards; or
(vi) Otherwise limit a qualified handicapped person in the enjoyment of any right, privilege, advantage, or opportunity enjoyed by others receiving the aid, benefit, or service.
(2) The agency may not deny a qualified handicapped person the opportunity to participate in programs or activities that are not separate or different, despite the existence of permissibly separate or different programs or activities.
(3) The agency may not, directly or through contractual or other arrangments, utilize criteria or methods of administration the purpose or effect of which would—
(i) Subject qualified handicapped persons to discrimination on the basis of handicap; or
(ii) Defeat or substantially impair accomplishment of the objectives of a program or activity with respect to handicapped persons.
(4) The agency may not, in determining the site or location of a facility, make selections the purpose or effect of which would—
(i) Exclude handicapped persons from, deny them the benefits of, or otherwise subject them to discrimination under any program or activity conducted by the agency; or
(ii) Defeat or substantially impair the accomplishment of the objectives of a program or activity with respect to handicapped persons.
(5) The agency, in the selection of procurement contractors, may not use criteria that subject qualified handicapped persons to discrimination on the basis of handicap.
(6) The agency may not administer a licensing or certification program in a manner that subjects qualified handicapped persons to discrimination on the basis of handicap, nor may the agency establish requirements for the programs or activites of licensees or certified entities that subject qualified handicapped persons to discrimination on the basis of handicap. However, the programs or activities of entities that are licensed or certified by the agency are not, themselves, covered by this part.
(c) The exclusion of nonhandicapped persons from the benefits of a program limited by Federal statute or Executive order to handicapped persons or the exclusion of a specific class of handicapped persons from a program limited by Federal statute or Executive order to a different class of handicapped persons is not prohibited by this part.
(d) The agency shall administer programs and activities in the most integrated setting appropriate to the needs of qualified handicapped persons.
No qualified handicapped person shall, on the basis of handicap, be subjected to discrimination in employment under any program or activity conducted by the agency. The definitions, requirements, and procedures of section 501 of the Rehabilitation Act of 1973 (29 U.S.C. 791), as established by the Equal Employment Opportunity Commission in 29 CFR part 1613, shall apply to employment in federally conducted programs or activities.
Except as otherwise provided in § 909.150, no qualified handicapped person shall, because the agency's facilities are inaccessible to or unusable by handicapped persons, be denied the benefits of, be excluded from participation in, or otherwise be subjected to discrimination under any program or activity conducted by the agency.
(a)
(1) Necessarily require the agency to make each of its existing facilities accessible to and usable by handicapped persons;
(2) In the case of historic preservation programs, require the agency to take any action that would result in a substantial impairment of significant historic features of an historic property; or
(3) Require the agency to take any action that it can demonstrate would result in a fundamental alteration in the nature of a program or activity or in undue financial and administrative burdens. In those circumstances where agency personnel believe that the proposed action would fundamentally alter the program or activity or would result in undue financial and administrative burdens, the agency has the burden of proving that compliance with § 909.150(a) would result in such alteration or burdens. The decision that compliance would result in such alteration or burdens must be made by the agency head or his or her designee after considering all agency resources available for use in the funding and operation of the conducted program or activity, and must be accompanied by a written statement of the reasons for reaching that conclusion. If an action would result in such an alteration or such burdens, the agency shall take any other action that would not result in such an alteration or such burdens but would nevertheless ensure that handicapped persons receive the benefits and services of the program or activity.
(b)
(2)
(i) Using audio-visual materials and devices to depict those portions of an historic property that cannot otherwise be made accessible;
(ii) Assigning persons to guide handicapped persons into or through portions of historic properties that cannot otherwise be made accessible; or
(iii) Adopting other innovative methods.
(c)
(d)
(1) Identify physical obstacles in the agency's facilities that limit the accessibility of its programs or activities to handicapped persons;
(2) Describe in detail the methods that will be used to make the facilities accessible;
(3) Specify the schedule for taking the steps necessary to achieve compliance with this section and, if the time period of the transition plan is longer than one year, identify steps that will be taken during each year of the transition period; and
(4) Indicate the official responsible for implementation of the plan.
Each building or part of a building that is constructed or altered by, on behalf of, or for the use of the agency shall be designed, constructed, or altered so as to be readily accessible to and usable by handicapped persons. The definitions, requirements, and standards of the Architectural Barriers Act (42 U.S.C. 4151-4157), as established in 41 CFR 101-19.600 to 101-19.607, apply to buildings covered by this section.
(a) The agency shall take appropriate steps to ensure effective communication with applicants, participants, personnel of other Federal entities, and members of the public.
(1) The agency shall furnish appropriate auxiliary aids where necessary to afford a handicapped person an equal opportunity to participate in, and enjoy the benefits of, a program or activity conducted by the agency.
(i) In determining what type of auxiliary aid is necessary, the agency shall give primary consideration to the requests of the handicapped person.
(ii) The agency need not provide individually prescribed devices, readers for personal use or study, or other devices of a personal nature.
(2) Where the agency communicates with applicants and beneficiaries by telephone, telecommunication devices for deaf person (TDD's) or equally effective telecommunication systems shall be used.
(b) The agency shall ensure that interested persons, including persons with impaired vision or hearing, can obtain information as to the existence and location of accessible services, activities, and facilities.
(c) The agency shall provide signage at a primary entrance to each of its inaccessible facilities, directing users to a location at which they can obtain information about accessible facilities. The international symbol for accessibility shall be used at each primary entrance of an accessible facility.
(d) This section does not require the agency to take any action that it can demonstrate would result in a fundamental alteration in the nature of a program or activity or in undue financial and adminstrative burdens. In those circumstances where agency personnel believe that the proposed action would fundamentally alter the program or activity or would result in undue financial and administrative burdens, the agency has the burden of proving that compliance with § 909.160 would result in such alteration or burdens. The decision that compliance would result in such alteration or burdens must be made by the agency head or his or her designee after considering all agency resources available for use in the funding and operation of the conducted program or activity, and must be accompanied by a written statement of the reasons for reaching that conclusion. If an action required to comply with this section would result in such an alteration or such burdens, the agency shall take any other action that would not result in such an alteration or such burdens but would nevertheless ensure that, to the maximum extent possible, handicapped persons receive the benefits and services of the program or activity.
(a) Except as provided in paragraph (b) of this section, this section applies to all allegations of discrimination on the basis of handicap in programs or activities conducted by the agency.
(b) The agency shall process complaints alleging violations of section
(c) The Executive Director shall be responsible for coordinating implementation of this section. Complaints may be sent to the General Counsel, Pennsylvania Avenue Development Corporaton, 1331 Pennsylvania Avenue, NW., Suite 1220 North, Washington, DC 20004-1730.
(d) The agency shall accept and investigate all complete complaints for which it has jurisdiction. All complete complaints must be filed within 180 days of the alleged act of discrimination. The agency may extend this time period for good cause.
(e) If the agency receives a complaint over which it does not have jurisdiction, it shall promptly notify the complainant and shall make reasonable efforts to refer the complaint to the appropriate government entity.
(f) The agency shall notify the Architectural and Transportation Barriers Compliance Board upon receipt of any complaint alleging that a building or facility that is subject to the Architectural Barriers Act of 1968, as amended (42 U.S.C. 4151-4157), or section 502 of the Rehabilitation Act of 1973, as amended (29 U.S.C. 792), is not readily accessible to and usable by handicapped persons.
(g) Within 180 days of the receipt of a complete complaint for which it has jurisdiction, the agency shall notify the complainant of the results of the investigation in a letter containing—
(1) Findings of fact and conclusions of law;
(2) A description of a remedy for each violation found; and
(3) A notice of the right to appeal.
(h) Appeals of the findings of fact and conclusions of law or remedies must be filed by the complainant within 90 days of receipt from the agency of the letter required by § 909.170(g). The agency may extend this time for good cause.
(i) Timely appeals shall be accepted and processed by the head of the agency.
(j) The head of the agency shall notify the complainant of the results of the appeal within 60 days of the receipt of the request. If the head of the agency determines that additional information is needed from the complainant, he or she shall have 60 days from the date of receipt of the additional information to make his or her determination on the appeal.
(k) The time limits cited in paragraphs (g) and (j) of this section may be extended with the permission of the Assistant Attorney General.
(l) The agency may delegate its authority for conducting complaint investigations to other Federal agencies, except that the authority for making the final determination may not be delegated to another agency.
Sec. 6(8) Pennsylvania Avenue Development Corporation Act of 1972 (40 U.S.C. 875(8)).
(a) The Pennsylvania Avenue Development Corporation Act of 1972, Pub. L. 92-578, October 27, 1972, (the
(b) Prior to creation of the Corporation, the deterioration of the Development Area had an adverse impact upon the physical, economic, and social life of Washington, DC. The Corporation was created as the vehicle to develop, maintain, and use the Development Area in a manner suitable to its ceremonial, physical, and historic relationship to the legislative and executive branches of the Federal government, to the governmental buildings, monuments, memorials, and parks in and adjacent to that area, and to the downtown commercial core of Washington, DC. The Corporation was directed to prepare a development plan for the Development Area and to submit that plan to the United States Congress. Congress accepted that plan and directed its implementation by the Corporation. The Corporation through a broad range of statutory powers has begun this implementation process.
(c) The Pennsylvania Avenue Plan—1974, as amended
(d)
(a) Implementation of
(b) This part 910, together with the
(a) This part 910, together with
(1) This part 910, General Guidelines and Uniform Standards for Urban Planning and Design of Development, sets forth the general planning and design goals and objectives which govern the implementation of
(2)
(3)
(b) Pursuant to section 7(b) of the Act, each proposal for
(1) This part 910.
(2) Square Guidelines.
(3) Development Policies and Procedures.
(4) Historic Preservation Plan.
(5) Energy Guidelines.
(6) Side Street Improvements Program.
(7) Policy on Environmental Quality and Control (36 CFR part 907).
(8) Pennsylvania Avenue Lighting Plan.
(9) Public Improvements Program.
(10) Affirmative Action Policy and Procedure (36 CFR part 906).
(11) Policy and Procedures to Facilitate Successful Relocation of Businesses and Residents within the Pennsylvania Avenue Development Area.
(12) All other programs, policies, and regulations that may be approved and adopted by the Board of Directors from time to time.
(c) Pursuant to the Act, Federal and District of Columbia agencies and departments may exercise such existing authority and lawful powers over urban planning and design features of
To facilitate review of each
(a) Comprehensive planning and design;
(b) Development density;
(c) Urban design of Washington, DC;
(d) Historic preservation;
(e) New development design;
(f) Land use;
(g) Pedestrian circulation sytems; and
(h) Vehicular circulation and storage systems.
(a) All new
(b) All
(c) The design of any
(d) The design of any
(e) Any
(f) Any
(g) All
(a) Land would be developed to the fullest extent appropriate in terms of uses, economics, and design so that the city's economic life and tax base can be enhanced.
(b) New
(c) Development density is limited by the Zoning Regulations of the District of Columbia and may be further restricted by the Corporation in specific
(d) The density of new
(a) Pennsylvania Avenue's unique role as the physical and symbolic link between the White House and the U.S. Capitol should be reinforced by new
(b) To reinforce and enrich the legacy of the L'Enfant Plan, the primary function of new
(a) The Development Area is located almost entirely within the Pennsylvania Avenue National Historic Site, which was established to preserve the exceptional values of Pennsylvania Avenue and its environs in commemorating or illustrating the history of the United States. The Pennsylvania Avenue Area achieves national historic significance because of both its ceremonial role in the life of the nation and its social and economic role in the life of the residents of Washington for more than a century.
(b) The Historic Preservation Plan of the Corporation sets forth the adopted policy of the Corporation on historic preservation and
(c) New construction adjacent to historic structures will be required to take into account the qualities of the adjacent structures (with regard to height, scale, proportion, rhythm, texture, materials, architectural detail, and the amount of variety among the structures with respect to these qualities as well as style and date of erection) to ensure that these structures maintain their historic or architectural integrity, but will not necessarily be required to conform to them.
(d) Wholly new construction and new construction in conjunction with preservation will, where appropriate, take into account the historic buildings to remain, aiming for the highest quality of contemporary design, consistent with the goals and objectives of the Historic Preservation Plan.
(a) All new
(b) Where new
(a)
(b) That portion of the Development Area west of the FBI Building is designated for commercial
(c) The kinds of uses and their location within the Development Area shall be directly related to creating a lively atmosphere and to promoting an active street life throughout the day, evening, and weekend.
(d) Introduction or expansion of retail uses shall be encouraged as both reinforcement of existing retail uses and creation of new retail activities.
(e) While recognized as important to the commercial life of any inner city, uses that do not generate lively activities are discouraged from locating along those street fronts within the Development Area which are considered major pedestrian thoroughfares.
(a) An efficient, pleasant, and stimulating pedestrian circulation system shall be developed to link the components of the Development Area with the Mall and the city's downtown.
(b) Pedestrian circulation systems shall be designed to provide pedestrian comfort and convenience, to create more linear footage of
(c) Curb cuts across the north sidewalk areas of Pennsylvania Avenue shall be prohibited in order to reinforce its importance as the major pedestrian thoroughfare of the Development Area.
(a) Improvement of the existing vehicular storage and circulation system is necessary in order to create the balanced transportation system called for in
(b) The general policies of the Corporation are as follows:
(1) To reduce impedance to traffic movement created by service vehicles by requiring well-integrated off-street loading facilities in terms of location of loading berths and access points on a block-by-block basis;
(2) To control the number of vehicles in the Development Area by limiting the number of parking spaces per
(3) To encourage the use of public transportation by linking new
In addition to the specific requirements and recommendations contained in
(a) Off-street parking as a principal use is prohibited, although off-street parking as an accessory use in a
(b) All parking spaces shall be located below grade level.
(c) The minimum number of parking spaces shall be provided in accordance with DC Zoning Regulations.
(d) The maximum number of parking spaces permitted by PADC for a
(1) Hotel: One parking space for each four sleeping rooms or suites;
(2) Places of public assemblage other than hotels: (i.e., arena, armory, theater, auditorium, community center, convention center, concert hall, etc.) one parking space for each ten seats of occupancy capacity for the first 10,000 seats plus one for each 20 seats above 10,000: Provided, that where seats are not fixed, each seven square feet of
(3) Retail, trade, and service establishments: one parking space for each 750 square feet of
(4) Residential: One parking space for each 1.2 units;
(5) Offices: One parking space for each 1,800 square feet of
(a) Every
(b) Where a
Fine arts, including sculpture, paintings, decorative windows, bas-reliefs, ornamental fountains, murals, tapestries, and the like, should be included in each
All new
As a complementary action to satisfying required District of Columbia codes related to fire safety, it is highly recommended that all new
Exterior illumination of a building shall be in conformance with the standards specified in the Pennsylvania Avenue Lighting Plan of the Corporation.
The definitions appearing in this Glossary of Terms are applicable to this part 910 and to the
A
Pub. L. 104-333, 110 Stat. 4097 (16 U.S.C. 460bb note).
(a) The regulations in this chapter provide for the proper use, management, government and protection of persons, property and natural and cultural resources within the area under the jurisdiction of the Presidio Trust.
(b) The regulations in this chapter will be utilized to fulfill the statutory purposes of the Presidio Trust Act.
(a) The regulations contained in this chapter apply to all persons entering, using, visiting, or otherwise within the boundaries of federally owned lands and waters administered by the Presidio Trust.
(b) The regulations contained in Parts 1002, 1004 and 1005 of this chapter shall not be construed to prohibit administrative activities conducted by the Presidio Trust, or its agents, in accordance with approved policies of the Presidio Trust, or in emergency operations involving threats to life, property, or resources of the area administered by the Presidio Trust.
(c) The regulations in this chapter are intended to treat a mobility-impaired person using a manual or motorized wheelchair as a pedestrian and are not intended to restrict the activities of such a person beyond the degree that the activities of a pedestrian are restricted by the same regulations.
A person convicted of violating a provision of the regulations contained in Parts 1001, 1002, 1004 and 1005 of this chapter, within the area administered by the Presidio Trust, shall be punished by a fine as provided by law, or by imprisonment not exceeding 6 months, or both, and shall be adjudged to pay all costs of the proceedings.
The following definitions shall apply to this chapter, unless modified by the definitions for a specific part or regulation:
(1) There is no unexpended shell, cartridge, or projectile in any chamber or cylinder of a firearm or in a clip or magazine inserted in or attached to a firearm;
(2) A muzzle-loading weapon does not contain gun powder in the pan, or the percussion cap is not in place; and
(3) Bows, crossbows, spear guns or any implement capable of discharging
(a) Consistent with applicable legislation and Federal administrative policies, and based upon a determination that such action is necessary for the maintenance of public health and safety, protection of environmental or scenic values, protection of natural or cultural resources, aid to scientific research, implementation of management responsibilities, equitable allocation and use of facilities, or the avoidance of conflict among visitor use activities, the Board may:
(1) Establish, for all or a portion of the area administered by the Presidio Trust, a reasonable schedule of visiting hours, impose public use limits, or close all or a portion of the area administered by the Presidio Trust to all public use or to a specific use or activity.
(2) Designate areas for a specific use or activity, or impose conditions or restrictions on a use or activity.
(3) Terminate a restriction, limit, closure, designation, condition, or visiting hour restriction imposed under paragraph (a)(1) or (2) of this section.
(b) Except in emergency situations, a closure, designation, use or activity restriction or condition, or the termination or relaxation of such, which is of a nature, magnitude and duration that will result in a significant alteration in the public use pattern of the area administered by the Presidio Trust, adversely affect the natural, aesthetic, scenic or cultural values of the area administered by the Presidio Trust, require a long-term or significant modification in the resource management objectives of the area administered by the Presidio Trust, or is of a highly controversial nature, shall be published as rulemaking in the
(c) Except in emergency situations, prior to implementing or terminating a restriction, condition, public use limit or closure, the Board shall prepare a written determination justifying the action. That determination shall set forth the reason(s) the restriction, condition, public use limit or closure authorized by paragraph (a) of this section has been established, and an explanation of why less restrictive measures will not suffice, or in the case of a termination of a restriction, condition, public use limit or closure previously established under paragraph (a) of this section, a determination as to why the restriction is no longer necessary and a finding that the termination will not adversely impact resources of the area administered by the Presidio Trust. This determination shall be available to the public upon request.
(d) To implement a public use limit, the Board may establish a permit, registration, or reservation system. Permits shall be issued in accordance with the criteria and procedures of § 1001.6.
(e) Except in emergency situations, the public will be informed of closures, designations, and use or activity restrictions or conditions, visiting hours, public use limits, public use limit procedures, and the termination or relaxation of such, in accordance with § 1001.7.
(f) Violating a closure, designation, use or activity restriction or condition,
(a) When authorized by regulations set forth in this chapter, the Executive Director may issue a permit to authorize an otherwise prohibited or restricted activity or impose a public use limit. The activity authorized by a permit shall be consistent with applicable legislation, Federal regulations and administrative policies, and based upon a determination that public health and safety, environmental or scenic values, natural or cultural resources, scientific research, implementation of management responsibilities, proper allocation and use of facilities, or the avoidance of conflict among visitor use activities will not be adversely impacted.
(b) Except as otherwise provided, application for a permit shall be submitted to the Executive Director during normal business hours.
(c) The public will be informed of the existence of a permit requirement in accordance with § 1001.7.
(d) Unless otherwise provided for by the regulations in this chapter, the Executive Director shall deny a permit that has been properly applied for only upon a determination that the designated capacity for an area or facility would be exceeded; or that one or more of the factors set forth in paragraph (a) of this section would be adversely impacted. The basis for denial shall be provided to the applicant upon request.
(e) The Executive Director shall include in a permit the terms and conditions that the Executive Director deems necessary to protect resources of the area administered by the Presidio Trust or public safety and may also include terms or conditions established pursuant to the authority of any other section of this chapter.
(f) A compilation of those activities requiring a permit shall be maintained by the Executive Director and available to the public upon request.
(g) The following are prohibited:
(1) Engaging in an activity subject to a permit requirement imposed pursuant to this section without obtaining a permit; or
(2) Violating a term or condition of a permit issued pursuant to this section.
(h) Violating a term or condition of a permit issued pursuant to this section may also result in the suspension or revocation of the permit by the Executive Director.
(a) Whenever the authority of § 1001.5(a) is invoked to restrict or control a public use or activity, to relax or revoke an existing restriction or control, to designate all or a portion of the area administered by the Presidio Trust as open or closed, or to require a permit to implement a public use limit, the public shall be notified by one or more of the following methods:
(1) Signs posted at conspicuous locations, such as normal points of entry and reasonable intervals along the boundary of the affected locale.
(2) Maps available in the office of the Presidio Trust and other places convenient to the public.
(3) Publication in a newspaper of general circulation in the affected area.
(4) Other appropriate methods, such as the removal of closure signs, use of electronic media, brochures, maps and handouts.
(b) In addition to the above-described notification procedures, the Board shall compile in writing all the designations, closures, permit requirements and other restrictions imposed under discretionary authority. This compilation shall be updated annually and made available to the public upon request.
The information collection requirements contained in 36 CFR 1001.5, 1002.5, 1002.10, 1002.12, 1002.17, 1002.33, 1002.38, 1002.50, 1002.51, 1002.52, 1002.60, 1002.61, 1002.62, 1004.4 and 1004.11 have been approved by the Office of Management and Budget under 44 U.S.C. 3501
(a) The signs pictured in 36 CFR 1.10 provide general information and regulatory guidance in the area administered by the Presidio Trust. Certain of the signs designate activities that are either allowed or prohibited. Activities symbolized by a sign bearing a slash mark are prohibited.
(b) The use of other types of signs not herein depicted is not precluded.
Pub. L. 104-333, 110 Stat. 4097 (16 U.S.C. 460bb note).
(a) Except as otherwise provided in this chapter, the following is prohibited:
(1) Possessing, destroying, injuring, defacing, removing, digging, or disturbing from its natural state:
(i) Living or dead wildlife or fish, or the parts or products thereof, such as antlers or nests.
(ii) Plants or the parts or products thereof.
(iii) Nonfossilized and fossilized paleontological specimens, cultural or archeological resources, or the parts thereof.
(iv) A mineral resource or cave formation or the parts thereof.
(2) Introducing wildlife, fish or plants, including their reproductive bodies, into an ecosystem within the area administered by the Presidio Trust.
(3) Tossing, throwing or rolling rocks or other items inside caves or caverns, into valleys, canyons, or caverns, down hillsides or mountainsides, or into thermal features.
(4) Using or possessing wood gathered from within the area administered by the Presidio Trust: Provided, however, that the Board may designate areas where dead wood on the ground may be collected for use as fuel for campfires within the area administered by the Presidio Trust.
(5) Walking on, climbing, entering, ascending, descending, or traversing an archeological or cultural resource, monument, or statue, except in designated areas and under conditions established by the Board.
(6) Possessing, destroying, injuring, defacing, removing, digging, or disturbing a structure or its furnishing or fixtures, or other cultural or archeological resources.
(7) Possessing or using a mineral or metal detector, magnetometer, side
(i) A device broken down and stored or packed to prevent its use while in the area administered by the Presidio Trust.
(ii) Electronic equipment used primarily for the navigation and safe operation of boats and aircraft.
(iii) Mineral or metal detectors, magnetometers, or subbottom profilers used for authorized scientific, mining, or administrative activities.
(b) The Board may restrict hiking or pedestrian use to a designated trail or walkway system pursuant to § § 1001.5 and 1001.7 of this chapter. Leaving a trail or walkway to shortcut between portions of the same trail or walkway, or to shortcut to an adjacent trail or walkway in violation of designated restrictions is prohibited.
(c)(1) The Board may designate certain fruits, berries, nuts, or unoccupied seashells which may be gathered by hand for personal use or consumption upon a written determination that the gathering or consumption will not adversely affect wildlife, the reproductive potential of a plant species, or otherwise adversely affect the resources of the area administered by the Presidio Trust.
(2) The Board may:
(i) Limit the size and quantity of the natural products that may be gathered or possessed for this purpose; or
(ii) Limit the location where natural products may be gathered; or
(iii) Restrict the possession and consumption of natural products to the area administered by the Presidio Trust.
(3) The following are prohibited:
(i) Gathering or possessing undesignated natural products.
(ii) Gathering or possessing natural products in violation of the size or quantity limits designated by the Board.
(iii) Unauthorized removal of natural products from the area administered by the Presidio Trust.
(iv) Gathering natural products outside of designated areas.
(v) Sale or commercial use of natural products.
(d) This section shall not be construed as authorizing the taking, use or possession of fish, wildlife or plants for ceremonial or religious purposes, except where specifically authorized by Federal statutory law, treaty rights, or in accordance with § 1002.2 or § 1002.3.
(a) The following are prohibited:
(1) The taking of wildlife.
(2) The feeding, touching, teasing, frightening or intentional disturbing of wildlife nesting, breeding or other activities.
(3) Possessing unlawfully taken wildlife or portions thereof.
(b)
(c) The Board may establish conditions and procedures for transporting lawfully taken wildlife through the area administered by the Presidio Trust. Violation of these conditions and procedures is prohibited.
(d) The Board may designate all or portions of the area administered by the Presidio Trust as closed to the viewing of wildlife with an artificial light. Use of an artificial light for purposes of viewing wildlife in closed areas is prohibited.
(e) The regulations contained in this section apply, regardless of land ownership, on all lands and waters within the boundaries of the area administered by the Presidio Trust that are under the legislative jurisdiction of the United States.
Fishing is prohibited within the area administered by the Presidio Trust.
(a)(1) Except as otherwise provided in this section, the following are prohibited:
(i) Possessing a weapon, trap or net.
(ii) Carrying a weapon, trap or net.
(iii) Using a weapon, trap or net.
(2) Weapons, traps or nets may be carried, possessed or used:
(i) At designated times and locations in the area administered by the Presidio Trust where:
(A) The taking of wildlife is authorized by law in accordance with § 1002.2;
(B) The taking of fish is authorized by law in accordance with § 1002.3.
(ii) Within a residential dwelling. For purposes of this paragraph only, the term “residential dwelling” means a fixed housing structure which is either the principal residence of its occupants, or is occupied on a regular and recurring basis by its occupants as an alternate residence or vacation home.
(3) Traps, nets and unloaded weapons may be possessed within a temporary lodging or mechanical mode of conveyance when such implements are rendered temporarily inoperable or are packed, cased or stored in a manner that will prevent their ready use.
(b) Carrying or possessing a loaded weapon in a motor vehicle, vessel or other mode of transportation is prohibited, except that carrying or possessing a loaded weapon in a vessel is allowed when such vessel is not being propelled by machinery and is used as a shooting platform in accordance with Federal and State law.
(c) The use of a weapon, trap or net in a manner that endangers persons or property is prohibited.
(d) Authorized Federal, State and local law enforcement officers may carry firearms in the performance of their official duties.
(e) The carrying or possessing of a weapon, trap or net in violation of applicable Federal and State laws is prohibited.
(f) The regulations contained in this section apply, regardless of land ownership, on all lands and waters within the boundaries of the area administered by the Presidio Trust that are under the legislative jurisdiction of the United States.
(a) Taking plants, fish, wildlife, rocks or minerals except in accordance with other regulations of this chapter or pursuant to the terms and conditions of a specimen collection permit, is prohibited.
(b) A specimen collection permit may be issued only to an official representative of a reputable scientific or educational institution or a State or Federal agency for the purpose of research, baseline inventories, monitoring, impact analysis, group study, or museum display when the Executive Director determines that the collection is necessary to the stated scientific or resource management goals of the institution or agency and that all applicable Federal and State permits have been acquired, and that the intended use of the specimens and their final disposal is in accordance with applicable law and Federal administrative policies. A permit shall not be issued if removal of the specimen would result in damage to other natural or cultural resources, affect adversely environmental or scenic values, or if the specimen is readily available outside of the area administered by the Presidio Trust.
(c) A permit to take an endangered or threatened species listed pursuant to the Endangered Species Act, or similarly identified by the States, shall not be issued unless the species cannot be obtained outside of the area administered by the Presidio Trust and the primary purpose of the collection is to enhance the protection or management of the species.
(d) A permit authorizing the killing of plants, fish or wildlife may be issued only when the Executive Director approves a written research proposal and determines that the collection will not be inconsistent with the purposes of the Presidio Trust Act and has the potential for conserving and perpetuating the species subject to collection.
(e) Specimen collection permits shall contain the following conditions:
(1) Specimens placed in displays or collections will bear official National Park Service museum labels and their catalog numbers will be registered in the National Park Service National Catalog.
(2) Specimens and data derived from consumed specimens will be made available to the public and reports and publications resulting from a research specimen collection permit shall be filed with the Executive Director.
(f) Violation of the terms and conditions of a permit issued in accordance with this section is prohibited and may result in the suspension or revocation of the permit.
(a) The Board may require permits, designate sites or areas, and establish conditions for camping.
(b) The following are prohibited:
(1) Digging or leveling the ground at a campsite.
(2) Leaving camping equipment, site alterations, or refuse after departing from the campsite.
(3) Camping within 25 feet of a water hydrant or main road, or within 100 feet of a flowing stream, river or body of water, except as designated.
(4) Creating or sustaining unreasonable noise between the hours of 10:00 p.m. and 6:00 a.m., considering the nature and purpose of the actor's conduct, impact on visitors or tenants, location, and other factors which would govern the conduct of a reasonably prudent person under the circumstances.
(5) The installation of permanent camping facilities.
(6) Displaying wildlife carcasses or other remains or parts thereof.
(7) Connecting to a utility system, except as designated.
(8) Failing to obtain a permit, where required.
(9) Violating conditions which may be established by the Board.
(10) Camping outside of designated sites or areas.
(c) Violation of the terms and conditions of a permit issued in accordance with this section is prohibited and may result in the suspension or revocation of the permit.
(d)
Picnicking is allowed, except in designated areas closed in accordance with § 1001.5 of this chapter. The Board may establish conditions for picnicking in areas where picnicking is allowed. Picnicking in violation of established conditions is prohibited.
(a) The following are prohibited:
(1) Operating motorized equipment or machinery such as an electric generating plant, motor vehicle, motorized toy, or an audio device, such as a radio, television set, tape deck or musical instrument, in a manner that exceeds a noise level of 60 decibels measured on the A-weighted scale at 50 feet; or that, if below that level, nevertheless makes noise which is unreasonable, considering the nature and purpose of the actor's conduct, location, time of day or night, purposes of the Presidio Trust Act, impact on visitors or tenants, and other factors that would govern the conduct of a reasonably prudent person under the circumstances.
(2) In developed areas, operating a power saw, except pursuant to the terms and conditions of a permit.
(3) In nondeveloped areas, operating any type of portable motor or engine, or device powered by a portable motor or engine, except pursuant to the terms and conditions of a permit.
(4) Operating a public address system, except in connection with a public gathering or special event for which a permit has been issued pursuant to § 1002.50 or § 1002.51.
(b) Violation of the terms and conditions of a permit issued in accordance with this section is prohibited and may result in the suspension or revocation of the permit.
(a) The following are prohibited:
(1) Lighting or maintaining a fire, except in designated areas or receptacles and under conditions that may be established by the Board.
(2) Using stoves or lanterns in violation of established restrictions.
(3) Lighting, tending, or using a fire, stove or lantern in a manner that threatens, causes damage to, or results
(4) Leaving a fire unattended.
(5) Throwing or discarding lighted or smoldering material in a manner that threatens, causes damage to, or results in the burning of property or resources of the area administered by the Presidio Trust, or creates a public safety hazard.
(b) Fires shall be extinguished upon termination of use and in accordance with such conditions as may be established by the Board. Violation of these conditions is prohibited.
(c) During periods of high fire danger, the Executive Director may close all or a portion of the area administered by the Presidio Trust to the lighting or maintaining of a fire.
(d) The regulations contained in this section apply, regardless of land ownership, on all lands and waters within the boundaries of the area administered by the Presidio Trust that are under the legislative jurisdiction of the United States.
(a) The following are prohibited:
(1) Disposing of refuse in other than refuse receptacles.
(2) Using government refuse receptacles or other refuse facilities for dumping household, commercial, or industrial refuse, brought as such from private or municipal property, except in accordance with conditions established by the Executive Director.
(3) Depositing refuse in the plumbing fixtures or vaults of a toilet facility.
(4) Draining refuse from a trailer or other vehicle, except in facilities provided for such purpose.
(5) Bathing, or washing food, clothing, dishes, or other property at public water outlets, fixtures or pools, except at those designated for such purpose.
(6) Polluting or contaminating waters or water courses within the area administered by the Presidio Trust.
(7) Disposing of fish remains on land, or in waters within 200 feet of boat docks or designated swimming beaches, or within developed areas, except as otherwise designated.
(8) In developed areas, the disposal of human body waste, except at designated locations or in fixtures provided for that purpose.
(9) In nondeveloped areas, the disposal of human body waste within 100 feet of a water source, high water mark of a body of water, or a campsite, or within sight of a trail, except as otherwise designated.
(b) The Board may establish conditions concerning the disposal, containerization, or carryout of human body waste. Violation of these conditions is prohibited.
(a) The following are prohibited:
(1) Possessing a pet in a public building, public transportation vehicle, or location designated as a swimming beach, or any structure or area closed to the possession of pets by the Board. This paragraph shall not apply to guide dogs accompanying visually impaired persons or hearing ear dogs accompanying hearing-impaired persons.
(2) Failing to crate, cage, restrain on a leash which shall not exceed six feet in length, or otherwise physically confine a pet at all times.
(3) Leaving a pet unattended and tied to an object, except in designated areas or under conditions which may be established by the Board.
(4) Allowing a pet to make noise that is unreasonable considering location, time of day or night, impact on visitors or tenants, and other relevant factors, or that frightens wildlife by barking, howling, or making other noise.
(5) Failing to comply with pet excrement disposal conditions which may be established by the Board.
(b) Pets or feral animals that are running-at-large and observed by an authorized person in the act of killing, injuring or molesting humans, livestock, or wildlife may be destroyed if necessary for public safety or protection of wildlife, livestock, or other resources of the area administered by the Presidio Trust.
(c) Pets running-at-large may be impounded, and the owner may be charged reasonable fees for kennel or boarding costs, feed, veterinarian fees, transportation costs, and disposal. An
(d) Pets may be kept by residents of the area administered by the Presidio Trust consistent with the provisions of this section and in accordance with conditions which may be established by the Board. Violation of these conditions is prohibited.
(e) This section does not apply to dogs used by authorized Federal, State and local law enforcement officers in the performance of their official duties.
The following are prohibited:
(a) The use of animals other than those designated as “pack animals” for purposes of transporting equipment.
(b) The use of horses or pack animals outside of trails, routes or areas designated for their use.
(c) The use of horses or pack animals on a Presidio Trust road, except where such travel is necessary to cross to or from designated trails, or areas, or privately owned property, and no alternative trails or routes have been designated; or when the road has been closed to motor vehicles.
(d) Free-trailing or loose-herding of horses or pack animals on trails, except as designated.
(e) Allowing horses or pack animals to proceed in excess of a slow walk when passing in the immediate vicinity of persons on foot or bicycle.
(f) Obstructing a trail, or making an unreasonable noise or gesture, considering the nature and purpose of the actor's conduct, and other factors that would govern the conduct of a reasonably prudent person, while horses or pack animals are passing.
(g) Violation of conditions which may be established by the Board concerning the use of horses or pack animals.
(a) Delivering or retrieving a person or object by parachute, helicopter, or other airborne means, except in emergencies involving public safety or serious property loss, or pursuant to the terms and conditions of a permit, is prohibited.
(b) The provisions of this section, other than paragraph (c) of this section, shall not be applicable to official business of the Federal government, or emergency rescues in accordance with the directions of the Executive Director, or to landings due to circumstances beyond the control of the operator.
(c)(1) Except as provided in paragraph (c)(3) of this section, the owners of a downed aircraft shall remove the aircraft and all component parts thereof in accordance with procedures established by the Executive Director. In establishing removal procedures, the Executive Director is authorized to establish a reasonable date by which aircraft removal operations must be complete; determine times and means of access to and from the downed aircraft; and specify the manner or method of removal.
(2) Failure to comply with procedures and conditions established under paragraph (c)(1) of this section is prohibited.
(3) The Executive Director may waive the requirements of paragraph (c)(1) of this section or prohibit the removal of downed aircraft, upon a determination that the removal of downed aircraft would constitute an unacceptable risk to human life; the removal of a downed aircraft would result in extensive resource damage; or the removal of a downed aircraft is impracticable or impossible.
(d) The use of aircraft shall be in accordance with regulations of the Federal Aviation Administration as found in 14 CFR chapter I.
(e) The operation or use of hovercraft is prohibited.
(f) Violation of the terms and conditions of a permit issued in accordance with this section is prohibited and may result in the suspension or revocation of the permit.
(g) The use of devices designed to carry persons through the air in powerless flight is allowed at times and locations designated by the Board, pursuant to the terms and conditions of a permit.
The use of snowmobiles is prohibited.
(a) Skiing, snowshoeing, ice skating, sledding, innertubing, tobogganing and similar winter sports are prohibited on Presidio Trust roads and in parking areas open to motor vehicle traffic, except as otherwise designated.
(b) The towing of persons on skis, sleds, or other sliding devices by motor vehicle or snowmobile is prohibited, except in designated areas or routes.
(c) Failure to abide by area designations or activity restrictions established under this section is prohibited.
Using roller skates, skateboards, roller skis, coasting vehicles, or similar devices is prohibited, except in designated areas.
(a) The Board may designate a portion of the area administered by the Presidio Trust, or all or a portion of a building, structure or facility as closed to smoking when necessary to protect resources, reduce the risk of fire, or prevent conflicts among visitor use activities. Smoking in an area or location so designated is prohibited.
(b) Smoking is prohibited within all caves and caverns.
(a) The following are prohibited:
(1) Abandoning property.
(2) Leaving property unattended for longer than 24 hours, except in locations where longer time periods have been designated or in accordance with coBoard.
(3) Failing to turn in found property to the Executive Director as soon as practicable.
(b)
(2) Unattended property that interferes with visitor safety or orderly management of the area administered by the Presidio Trust, or that presents a threat to resources of the area administered by the Presidio Trust may be impounded by the Executive Director at any time.
(3) Found or impounded property shall be inventoried to determine ownership and safeguard personal property.
(4) The owner of record is responsible and liable for charges to the person who has removed, stored, or otherwise disposed of property impounded pursuant to this section; or the Executive Director may assess the owner reasonable fees for the impoundment and storage of property impounded pursuant to this section.
(c)
(2) Unclaimed, found property shall be stored for a minimum period of 60 days and, unless claimed by the owner or an authorized representative thereof, may be claimed by the finder, provided that the finder is not an employee of the Presidio Trust. Found property not claimed by the owner or an authorized representative or the finder shall be deemed abandoned.
(3) Abandoned property shall be disposed of in accordance with law.
(4) Property, including real property, located within the area administered by the Presidio Trust and owned by a deceased person, shall be disposed of in accordance with the laws of the State within whose exterior boundaries the property is located.
(d) The regulations contained in paragraphs (a)(2), (b) and (c) of this section apply, regardless of land ownership, on all lands and waters within the boundaries of the area administered by the Presidio Trust that are under the legislative jurisdiction of the United States.
(a) Recreation fees shall be charged in the area administered by the Presidio Trust to the same extent that
(b) Entering designated entrance fee areas or using specialized sites, facilities, equipment or services, or participating in group activities, recreation events, or other specialized recreation uses for which recreation fees have been established without paying the required fees and possessing the applicable permits is prohibited. Violation of the terms and conditions of a permit issued in accordance with this section is prohibited and may result in the suspension or revocation of the permit.
(c) The Executive Director may, when in the public interest, prescribe periods during which the collection of recreation fees shall be suspended.
(a) The following are prohibited:
(1) Obtaining or exercising unlawful possession over the property of another with the purpose to deprive the owner of the property.
(2) Obtaining property or services offered for sale or compensation without making payment or offering to pay.
(3) Obtaining property or services offered for sale or compensation by means of deception or a statement of past, present or future fact that is instrumental in causing the wrongful transfer of property or services, or using stolen, forged, expired, revoked or fraudulently obtained credit cards or paying with negotiable paper on which payment is refused.
(4) Concealing unpurchased merchandise on or about the person without the knowledge or consent of the seller or paying less than purchase price by deception.
(5) Acquiring or possessing the property of another, with knowledge or reason to believe that the property is stolen.
(b) The regulations contained in this section apply, regardless of land ownership, on all lands and waters within the boundaries of the area administered by the Presidio Trust that are under the legislative jurisdiction of the United States.
(a) The following are prohibited:
(1)
(2)
(3)
(b) The regulations contained in this section apply, regardless of land ownership, on all lands and waters within the boundaries of the area administered by the Presidio Trust that are under the legislative jurisdiction of the United States.
(a) The following are prohibited:
(1)
(2)
(3)
(4)
(b) The regulations contained in this section apply, regardless of land ownership, on all lands and waters within the boundaries of the area administered by the Presidio Trust that are under the legislative jurisdiction of the United States.
(a) A person involved in an incident resulting in personal injury or property damage exceeding $300, other than an accident reportable under § 1004.4 of this chapter, shall report the incident to the Executive Director as soon as possible. This notification does not satisfy reporting requirements imposed by applicable State law.
(b) Failure to report an incident in accordance with paragraph (a) of this section is prohibited.
(a) A person commits disorderly conduct when, with intent to cause public alarm, nuisance, jeopardy or violence, or knowingly or recklessly creating a risk thereof, such person commits any of the following prohibited acts:
(1) Engages in fighting or threatening, or in violent behavior.
(2) Uses language, an utterance, or gesture, or engages in a display or act that is obscene, physically threatening or menacing, or done in a manner that is likely to inflict injury or incite an immediate breach of the peace.
(3) Makes noise that is unreasonable, considering the nature and purpose of the actor's conduct, location, time of day or night, and other factors that would govern the conduct of a reasonably prudent person under the circumstances.
(4) Creates or maintains a hazardous or physically offensive condition.
(b) The regulations contained in this section apply, regardless of land ownership, on all lands and waters within the boundaries of the area administered by the Presidio Trust that are under the legislative jurisdiction of the United States.
(a)
(2) The following are prohibited:
(i) The sale or gift of an alcoholic beverage to a person under 21 years of age, except where allowed by State law. In a State where a lower minimum age is established, that age limit will apply for purposes of this paragraph.
(ii) The possession of an alcoholic beverage by a person under 21 years of age, except where allowed by State law. In a State where a lower minimum age is established, that age will apply for purposes of this paragraph.
(3)(i) The Board may close all or a portion of a public use area or public facility within the area administered by the Presidio Trust to the consumption of alcoholic beverages and/or to the possession of a bottle, can or other receptacle containing an alcoholic beverage that is open, or that has been opened, or whose seal is broken or the contents of which have been partially removed. Provided however, that such a closure may only be implemented following a determination made by the Board that:
(A) The consumption of an alcoholic beverage or the possession of an open container of an alcoholic beverage would be inappropriate considering other uses of the location and the purpose for which it is maintained or established; or
(B) Incidents of aberrant behavior related to the consumption of alcoholic beverages are of such magnitude that the diligent application of the authorities in this section and § § 1001.5 and 1002.34 of this chapter, over a reasonable time period, does not alleviate the problem.
(ii) A closure imposed by the Board does not apply to an open container of an alcoholic beverage that is stored in compliance with the provisions of § 1004.14 of this chapter.
(iii) Violating a closure imposed pursuant to this section is prohibited.
(b)
(1) The delivery of a controlled substance, except when distribution is made by a practitioner in accordance with applicable law. For the purposes of this paragraph, delivery means the actual, attempted or constructive transfer of a controlled substance whether or not there exists an agency relationship.
(2) The possession of a controlled substance, unless such substance was obtained by the possessor directly, or pursuant to a valid prescription or order, from a practitioner acting in the course of professional practice or otherwise allowed by Federal or State law.
(c) Presence within the area administered by the Presidio Trust when under the influence of alcohol or a controlled substance to a degree that may endanger oneself or another person, or damage property or resources of the area administered by the Presidio Trust, is prohibited.
(a) Gambling in any form, or the operation of gambling devices, is prohibited.
(b) This regulation applies, regardless of land ownership, on all lands and waters within the boundaries of the area administered by the Presidio Trust that are under the legislative jurisdiction of the United States.
Soliciting or demanding gifts, money, goods or services is prohibited, except pursuant to the terms and conditions of a permit that has been issued under § 1002.50, § 1002.51 or § 1002.52.
(a) Using, possessing, storing, or transporting explosives, blasting agents or explosive materials is prohibited, except pursuant to the terms and conditions of a permit. When permitted, the use, possession, storage and transportation shall be in accordance with applicable Federal and State laws.
(b) Using or possessing fireworks and firecrackers is prohibited, except pursuant to the terms and conditions of a permit or in designated areas under such conditions as the Board may establish, and in accordance with applicable State law.
(c) Violation of the conditions established by the Board or of the terms and conditions of a permit issued in accordance with this section is prohibited and may result in the suspension or revocation of the permit.
(a) Sports events, pageants, regattas, public spectator attractions, entertainments, ceremonies, and similar events are allowed: Provided, however, There is a meaningful association between the area administered by the Presidio Trust and the events, and the observance contributes to visitor understanding of the significance of the area administered by the Presidio Trust, and a permit therefore has been issued by the Executive Director. A permit shall be denied if such activities would:
(1) Cause injury or damage to resources of the area administered by the Presidio Trust; or
(2) Be contrary to the purposes of the Presidio Trust Act; or
(3) Unreasonably interfere with interpretive, visitor service, or other program activities, or with the administrative activities of the Presidio Trust or the National Park Service; or
(4) Substantially impair the operation of public use facilities or services of Presidio Trust concessioners or contractors; or
(5) Present a clear and present danger to the public health and safety; or
(6) Result in significant conflict with other existing uses.
(b) An application for such a permit shall set forth the name of the applicant, the date, time, duration, nature and place of the proposed event, an estimate of the number of persons expected to attend, a statement of equipment and facilities to be used, and any other information required by the Executive Director. The application shall be submitted so as to reach the Executive Director at least 72 hours in advance of the proposed event.
(c) As a condition of permit issuance, the Executive Director may require:
(1) The filing of a bond payable to the Presidio Trust, in an amount adequate to cover costs such as restoration, rehabilitation, and cleanup of the area
(2) In addition to the requirements of paragraph (c)(1) of this section, the acquisition of liability insurance in which the United States is named as co-insured in an amount sufficient to protect the United States.
(d) The permit may contain such conditions as are reasonably consistent with protection and use of the area administered by the Presidio Trust for the purposes of the Presidio Trust Act. It may also contain reasonable limitations on the equipment used and the time and area within which the event is allowed.
(e) Violation of the terms and conditions of a permit issued in accordance with this section is prohibited and may result in the suspension or revocation of the permit.
(a) Public assemblies, meetings, gatherings, demonstrations, parades and other public expressions of views are allowed within the area administered by the Presidio Trust, provided a permit therefore has been issued by the Executive Director.
(b) An application for such a permit shall set forth the name of the applicant; the date, time, duration, nature and place of the proposed event; an estimate of the number of persons expected to attend; a statement of equipment and facilities to be used and any other information required by the permit application form.
(c) The Executive Director shall, without unreasonable delay, issue a permit on proper application unless:
(1) A prior application for a permit for the same time and place has been made that has been or will be granted and the activities authorized by that permit do not reasonably allow multiple occupancy of that particular area; or
(2) It reasonably appears that the event will present a clear and present danger to the public health or safety; or
(3) The event is of such nature or duration that it cannot reasonably be accommodated in the particular location applied for, considering such things as damage to resources or facilities of the area administered by the Presidio Trust, impairment of a protected area's atmosphere of peace and tranquillity, interference with program activities, or impairment of public use facilities.
(d) If a permit is denied, the applicant shall be so informed in writing, with the reason(s) for the denial set forth.
(e) The Board shall designate on a map, that shall be available in the office of the Presidio Trust, the locations available for public assemblies. Locations may be designated as not available only if such activities would:
(1) Cause injury or damage to resources of the area administered by the Presidio Trust; or
(2) Unreasonably impair the atmosphere of peace and tranquillity maintained in wilderness, natural, historic or commemorative zones; or
(3) Unreasonably interfere with interpretive, visitor service, or other program activities, or with the administrative activities of the Presidio Trust or the National Park Service; or
(4) Substantially impair the operation of public use facilities or services of Presidio Trust concessioners or contractors; or
(5) Present a clear and present danger to the public health and safety.
(f) The permit may contain such conditions as are reasonably consistent with protection and use of the area administered by the Presidio Trust for the purposes of the Presidio Trust Act. It may also contain reasonable limitations on the equipment used and the time and area within which the event is allowed.
(g) No permit shall be issued for a period in excess of 7 days, provided that permits may be extended for like periods, upon a new application, unless another applicant has requested use of the same location and multiple occupancy of that location is not reasonably possible.
(h) It is prohibited for persons engaged in activities covered under this section to obstruct or impede pedestrians or vehicles, or harass visitors with physical contact.
(i) A permit may be revoked under any of those conditions, as listed in paragraph (c) of this section, that constitute grounds for denial of a permit, or for violation of the terms and conditions of the permit. Such a revocation shall be made in writing, with the reason(s) for revocation clearly set forth, except under emergency circumstances, when an immediate verbal revocation or suspension may be made to be followed by written confirmation within 72 hours.
(j) Violation of the terms and conditions of a permit issued in accordance with this section may result in the suspension or revocation of the permit.
(a) The sale or distribution of printed matter is allowed within the area administered by the Presidio Trust, provided that a permit to do so has been issued by the Executive Director, and provided further that the printed matter is not solely commercial advertising.
(b) An application for such a permit shall set forth the name of the applicant; the name of the organization (if any); the date, time, duration, and location of the proposed sale or distribution; the number of participants; and any other information required by the permit application form.
(c) The Executive Director shall, without unreasonable delay, issue a permit on proper application unless:
(1) A prior application for a permit for the same time and location has been made that has been or will be granted and the activities authorized by that permit do not reasonably allow multiple occupancy of the particular area; or
(2) It reasonably appears that the sale or distribution will present a clear and present danger to the public health and safety; or
(3) The number of persons engaged in the sale or distribution exceeds the number that can reasonably be accommodated in the particular location applied for, considering such things as damage to resources or facilities of the area administered by the Presidio Trust, impairment of a protected area's atmosphere of peace and tranquillity, interference with program activities, or impairment of public use facilities; or
(4) The location applied for has not been designated as available for the sale or distribution of printed matter; or
(5) The activity would constitute a violation of an applicable law or regulation.
(d) If a permit is denied, the applicant shall be so informed in writing, with the reason(s) for the denial set forth.
(e) The Board shall designate on a map, which shall be available for inspection in the office of the Presidio Trust, the locations within the area administered by the Presidio Trust that are available for the sale or distribution of printed matter. Locations may be designated as not available only if the sale or distribution of printed matter would:
(1) Cause injury or damage to resources of the area administered by the Presidio Trust; or
(2) Unreasonably impair the atmosphere of peace and tranquillity maintained in wilderness, natural, historic, or commemorative zones; or
(3) Unreasonably interfere with interpretive, visitor service, or other program activities, or with the administrative activities of the Presidio Trust or the National Park Service; or
(4) Substantially impair the operation of public use facilities or services of Presidio Trust concessioners or contractors; or
(5) Present a clear and present damage to the public health and safety.
(f) The permit may contain such conditions as are reasonably consistent with protection and use of the area administered by the Presidio Trust for the purposes of the Presidio Trust Act.
(g) No permit shall be issued for a period in excess of 14 consecutive days, provided that permits may be extended for like periods, upon a new application, unless another applicant has requested use of the same location and multiple occupancy of that location is not reasonably possible.
(h) It is prohibited for persons engaged in the sale or distribution of printed matter under this section to
(i) A permit may be revoked under any of those conditions, as listed in paragraph (c) of this section, that constitute grounds for denial of a permit, or for violation of the terms and conditions of the permit. Such a revocation shall be made in writing, with the reason(s) for revocation clearly set forth, except under emergency circumstances, when an immediate verbal revocation or suspension may be made, to be followed by written confirmation within 72 hours.
(j) Violation of the terms and conditions of a permit issued in accordance with this section may result in the suspension or revocation of the permit.
(a) The running-at-large, herding, driving across, allowing on, pasturing or grazing of livestock of any kind within the area administered by the Presidio Trust or the use of such area for agricultural purposes is prohibited, except:
(1) As specifically authorized by Federal statutory law; or
(2) As required under a reservation of use rights arising from acquisition of a tract of land; or
(3) As designated, when conducted as a necessary and integral part of a recreational activity or required in order to maintain a historic scene.
(b) Activities authorized pursuant to any of the exceptions provided for in paragraph (a) of this section shall be allowed only pursuant to the terms and conditions of a license, permit or lease. Violation of the terms and conditions of a license, permit or lease issued in accordance with this paragraph is prohibited and may result in the suspension or revocation of the license, permit, or lease.
(c)
(2) In the absence of applicable Federal or State law, the livestock shall be disposed of in the following manner:
(i) If the owner is known, prompt written notice of impoundment will be served, and in the event of the owner's failure to remove the impounded livestock within five (5) days from delivery of such notice, it will be disposed of in accordance with this paragraph.
(ii) If the owner is unknown, disposal of the livestock shall not be made until at least fifteen (15) days have elapsed from the date that a notice of impoundment is originally published in a newspaper of general circulation in the county in which the trespass occurs or, if no such newspaper exists, notification is provided by other appropriate means.
(iii) The owner may redeem the livestock by submitting proof of ownership and paying all expenses of the United States for capturing, advertising, pasturing, feeding, impounding, and the amount of damage to public property injured or destroyed as a result of the trespass.
(iv) In determining the claim of the government in a livestock trespass, the value of forage consumed shall be computed at the commercial rates prevailing in the locality for the class of livestock found in trespass. The claim shall include the pro rata salary of employees for the time spent and the expenses incurred as a result of the investigation, reporting, and settlement or prosecution of the claim.
(v) If livestock impounded under this paragraph is offered at public sale and no bid is received, or if the highest bid received is less than the amount of the claim of the United States or of the officer's appraised value of the livestock, whichever is the lesser amount, such livestock, may be sold at private sale for the highest amount obtainable, condemned and destroyed, or converted to the use of the United States.
(a) Residing within the area administered by the Presidio Trust, other than
(b) Violation of the terms and conditions of a permit issued in accordance with this section is prohibited and may result in the suspension or revocation of the permit.
(a) The installation of a monument, memorial, tablet, structure, or other commemorative installation within the area administered by the Presidio Trust without the authorization of the Board is prohibited.
(b) The scattering of human ashes from cremation is prohibited, except pursuant to the terms and conditions of a permit, or in designated areas according to conditions which may be established by the Board.
(c) Failure to abide by area designations and established conditions is prohibited.
(d) Violation of the terms and conditions of a permit issued in accordance with this section is prohibited and may result in the suspension or revocation of the permit.
Swimming, boating and the use of any water vessel are prohibited within the area administered by the Presidio Trust.
Pub. L. 104-333, 110 Stat. 4097 (16 U.S.C. 460bb note).
The applicability of the regulations in this part is described in § 1001.2 of this chapter. The regulations in this part also apply, regardless of land ownership, on all roadways and parking areas within the boundaries of the area administered by the Presidio Trust that are open to public traffic and that are under the legislative jurisdiction of the United States.
(a) Unless specifically addressed by regulations in this chapter, traffic and the use of vehicles within the boundaries of the area administered by the Presidio Trust are governed by State law. State law that is now or may later be in effect is adopted and made a part of the regulations in this part.
(b) Violating a provision of State law is prohibited.
(a) The operator of an authorized emergency vehicle, when responding to an emergency or when pursuing or apprehending an actual or suspected violator of the law, may:
(1) Disregard traffic control devices;
(2) Exceed the speed limit; and
(3) Obstruct traffic.
(b) The provisions of paragraph (a) of this section do not relieve the operator from the duty to operate with due regard for the safety of persons and property.
(a) The operator of a motor vehicle involved in an accident resulting in property damage, personal injury or death shall report the accident to the Executive Director as soon as practicable, but within 24 hours of the accident. If the operator is physically incapable of reporting the accident, an occupant of the vehicle shall report the accident to the Executive Director.
(b) A person shall not tow or move a vehicle that has been involved in an accident without first notifying the Executive Director unless the position of the vehicle constitutes a hazard or prior notification is not practicable, in which case notification shall be made before the vehicle is removed from the area administered by the Presidio Trust.
(c) Failure to comply with a reporting requirement specified in paragraph (a) or (b) of this section is prohibited.
(d) The notification requirements imposed by this section do not relieve the operator and occupants of a motor vehicle involved in an accident of the responsibility to satisfy reporting requirements imposed by State law.
(a) Operating a motor vehicle is prohibited except on Presidio Trust roads and in parking areas.
(b) The following are prohibited:
(1) Operating a motor vehicle not equipped with pneumatic tires, except that a track-laying motor vehicle or a motor vehicle equipped with a similar traction device may be operated on a route designated for these vehicles by the Board.
(2) Operating a motor vehicle in a manner that causes unreasonable damage to the surface of a Presidio Trust road or route.
(a) Vehicle load, weight and size limits established by State law apply to a vehicle operated on a Presidio Trust road. However, the Board may designate more restrictive limits when appropriate for traffic safety or protection of the road surface. The Board may require a permit and establish conditions for the operation of a vehicle exceeding designated limits.
(b) The following are prohibited:
(1) Operating a vehicle that exceeds a load, weight or size limit designated by the Board.
(2) Failing to obtain a permit when required.
(3) Violating a term or condition of a permit.
(4) Operating a motor vehicle with an auxiliary detachable side mirror that extends more than 10 inches beyond the side fender line except when the motor vehicle is towing a second vehicle.
(c) Violating a term or condition of a permit may also result in the suspension or revocation of the permit by the Executive Director.
Failure to comply with the directions of a traffic control device is prohibited unless otherwise directed by the Executive Director.
The following are prohibited:
(a) Stopping or parking a vehicle upon a Presidio Trust road, except as authorized by the Executive Director, or in the event of an accident or other condition beyond the control of the operator.
(b) Operating a vehicle so slowly as to interfere with the normal flow of traffic.
(a) Each person within a motor vehicle is responsible for complying with the provisions of this section that pertain to carrying an open container. The operator of a motor vehicle is the person responsible for complying with the provisions of this section that pertain to the storage of an open container.
(b) Carrying or storing a bottle, can or other receptacle containing an alcoholic beverage that is open, or has been opened, or whose seal is broken or the contents of which have been partially removed, within a motor vehicle in the area administered by the Presidio Trust is prohibited.
(c) This section does not apply to:
(1) An open container stored in the trunk of a motor vehicle or, if a motor vehicle is not equipped with a trunk, to an open container stored in some other portion of the motor vehicle designed for the storage of luggage and not normally occupied by or readily accessible to the operator or passengers; or
(2) An open container stored in the living quarters of a motor home or camper; or
(3) Unless otherwise prohibited, an open container carried or stored in a motor vehicle parked at an authorized
(d) For the purpose of paragraph (c)(1) of this section, a utility compartment or glove compartment is deemed to be readily accessible to the operator and passengers of a motor vehicle.
(a) Each operator and passenger occupying any seating position of a motor vehicle in the area administered by the Presidio Trust will have the safety belt or child restraint system properly fastened at all times when the vehicle is in motion. The safety belt and child restraint system will conform to applicable United States Department of Transportation standards.
(b) This section does not apply to an occupant in a seat that was not originally equipped by the manufacturer with a safety belt nor does it apply to a person who can demonstrate that a medical condition prevents restraint by a safety belt or other occupant restraining device.
An operator of a motor vehicle shall yield the right of way to pedestrians, saddle and pack animals and vehicles drawn by animals. Failure to yield the right of way is prohibited.
(a) Speed limits in the area administered by the Presidio Trust are as follows:
(1) 15 miles per hour: within all school zones, campgrounds, picnic areas, parking areas, utility areas, business or residential areas, other places of public assemblage and at emergency scenes.
(2) 25 miles per hour: upon sections of Presidio Trust road under repair or construction.
(3) 45 miles per hour: upon all other Presidio Trust roads.
(b) The Board may designate a different speed limit upon any Presidio Trust road when a speed limit set forth in paragraph (a) of this section is determined to be unreasonable, unsafe or inconsistent with the purposes of the Presidio Trust Act. Speed limits shall be posted by using standard traffic control devices.
(c) Operating a vehicle at a speed in excess of the speed limit is prohibited.
(d) An authorized person may utilize radiomicrowaves or other electrical devices to determine the speed of a vehicle on a Presidio Trust road. Signs indicating that vehicle speed is determined by the use of radiomicrowaves or other electrical devices are not required.
(a) The elements of this section constitute offenses that are less serious than reckless driving. The offense of reckless driving is defined by State law and violations are prosecuted pursuant to the provisions of § 1004.2.
(b) The following are prohibited:
(1) Operating a motor vehicle without due care or at a speed greater than that which is reasonable and prudent considering wildlife, traffic, weather, road and light conditions and road character.
(2) Operating a motor vehicle in a manner which unnecessarily causes its tires to squeal, skid or break free of the road surface.
(3) Failing to maintain that degree of control of a motor vehicle necessary to avoid danger to persons, property or wildlife.
(4) Operating a motor vehicle while allowing a person to ride:
(i) On or within any vehicle, trailer or other mode of conveyance towed behind the motor vehicle unless specifically designed for carrying passengers while being towed; or
(ii) On any exterior portion of the motor vehicle not designed or intended for the use of a passenger. This restriction does not apply to a person seated on the floor of a truck bed equipped with sides, unless prohibited by State law.
(a) Operating or being in actual physical control of a motor vehicle is prohibited while:
(1) Under the influence of alcohol, or a drug, or drugs, or any combination thereof, to a degree that renders the operator incapable of safe operation; or
(2) The alcohol concentration in the operator's blood or breath is 0.10 grams
(b) The provisions of paragraph (a) of this section also apply to an operator who is or has been legally entitled to use alcohol or another drug.
(c)
(2) Refusal by an operator to submit to a test is prohibited and proof of refusal may be admissible in any related judicial proceeding.
(3) Any test or tests for the presence of alcohol and drugs shall be determined by and administered at the direction of an authorized person.
(4) Any test shall be conducted by using accepted scientific methods and equipment of proven accuracy and reliability operated by personnel certified in its use.
(d)
(2) The provisions of paragraph (d)(1) of this section are not intended to limit the introduction of any other competent evidence bearing upon the question of whether the operator, at the time of the alleged violation, was under the influence of alcohol, or a drug, or drugs, or any combination thereof.
(a) The use of a bicycle is prohibited except on Presidio Trust roads, in parking areas and on routes designated for bicycle use; provided, however, that the Board may close any Presidio Trust road or parking area to bicycle use pursuant to the criteria and procedures of §§ 1001.5 and 1001.7 of this chapter. Routes may only be designated for bicycle use based on a written determination that such use is consistent with the protection of natural, scenic and aesthetic values, safety considerations and management objectives and will not disturb wildlife or the resources of the area administered by the Presidio Trust.
(b)
(1) Bicycle use is permitted on routes which have been designated by the Board as bicycle routes by the posting of signs, and as designated on maps which are available in the office of the Presidio Trust and other places convenient to the public.
(2) Bicycle speed limits are as follows:
(i) 15 miles per hour: Upon all designated routes within the area administered by the Presidio Trust.
(ii) 5 miles per hour: On blind curves and when passing other trail users.
(3) The following are prohibited:
(i) The possession of a bicycle on routes not designated as open to bicycle use.
(ii) Operating a bicycle on designated bicycle routes between sunset and sunrise without exhibiting on the bicycle or on the operator an activated white light that is visible from a distance of at least 500 feet to the front and with a red light or reflector visible from at least 200 feet to the rear.
(c) A person operating a bicycle is subject to all sections of this part that apply to an operator of a motor vehicle, except §§ 1004.4, 1004.10, 1004.11 and 1004.14.
(d) The following are prohibited:
(1) Possessing a bicycle in a wilderness area established by Federal statute.
(2) Operating a bicycle during periods of low visibility, or while traveling through a tunnel, or between sunset and sunrise, without exhibiting on the operator or bicycle a white light or reflector that is visible from a distance of at least 500 feet to the front and with a red light or reflector visible from at least 200 feet to the rear.
(3) Operating a bicycle abreast of another bicycle except where authorized by the Executive Director.
(4) Operating a bicycle while consuming an alcoholic beverage or carrying in hand an open container of an alcoholic beverage.
Hitchhiking or soliciting transportation is prohibited except in designated areas and under conditions established by the Board.
Pub. L. 104-333, 110 Stat. 4097 (16 U.S.C. 460bb note).
Commercial notices or advertisements shall not be displayed, posted, or distributed within the area administered by the Presidio Trust unless prior written permission has been given by the Executive Director. Such permission may be granted only if the notice or advertisement is of goods, services, or facilities available within the area administered by the Presidio Trust and such notices and advertisements are found by the Executive Director to be desirable and necessary for the convenience and guidance of the public.
The sale of alcoholic, spirituous, vinous, or fermented liquor, containing more than 1 percent of alcohol by weight, shall conform with all applicable Federal, State, and local laws and regulations. (See also § 1002.35 of this chapter.)
Engaging in or soliciting any business in the area administered by the Presidio Trust, except in accordance with the provisions of a permit, contract, or other written agreement with the United States, is prohibited.
Passenger-carrying motor vehicles that are so large as to require special escort in order to proceed safely over Presidio Trust roads, or which in the judgment of the Executive Director are beyond the carrying capacity or safety factor of the roads, will not be permitted in the area administered by the Presidio Trust, except that, where they may satisfactorily enter and travel to the Presidio Trust headquarters they may be parked there during the period of stay.
(a)
(1)
(2)
(ii) A bond shall be furnished, or deposit made in cash or by certified check, in an amount to be set by the official in charge of the area to insure full compliance with all of the conditions prescribed in paragraph (a)(4) of this section.
(3)
(4)
To the Executive Director of the Presidio Trust:
Permission is requested to make, in the area administered by the Presidio Trust, a
The scope of the filming (or production or recording) and the manner and extent thereof will be as follows:
Weather conditions permitting, work will commence on approximately
The undersigned accepts and will comply with the following conditions:
Utmost care will be exercised to see that no natural features are injured, and after completion of the work the area will, as required by the official in charge, either be cleaned up and restored to its prior condition or left, after clean-up, in a condition satisfactory to the official in charge.
Credit will be given to the Presidio Trust through the use of an appropriate title or announcement, unless there is issued by the official in charge of the area a written statement that no such courtesy credit is desired.
Pictures will be taken of wildlife only when such wildlife will be shown in its natural state or under approved management conditions if such wildlife is confined.
Any special instructions received from the official in charge of the area will be complied with.
Any additional information relating to the privilege applied for by this application will be furnished upon request of the official in charge.
Approved:
(b)
(a) The term “Commercial vehicle” as used in this section shall include, but not be limited to trucks, station wagons, pickups, passenger cars or other vehicles when used in transporting movable property for a fee or profit, either as a direct charge to another person, or otherwise, or used as an incident to providing services to another person, or used in connection with any business.
(b) The use of government roads within the area administered by the Presidio Trust by commercial vehicles, when such use is in no way connected with the operation of the area administered by the Presidio Trust, is prohibited, except that in emergencies the Executive Director may grant permission to use Presidio Trust roads.
(c) The Executive Director shall issue permits for commercial vehicles used on Presidio Trust roads when such use is necessary for access to private lands situated within or adjacent to the area administered by the Presidio Trust, to which access is otherwise not available.
Constructing or attempting to construct a building, or other structure, boat dock, road, trail, path, or other way, telephone line, telegraph line, power line, or any other private or public utility, upon, across, over, through, or under any area administered by the Presidio Trust, except in accordance with the provisions of a valid permit, contract, or other written agreement with the United States, is prohibited.
(a) The proprietor, owner, or operator of any hotel, inn, lodge or other facility or accommodation offered to or enjoyed by the general public within the area administered by the Presidio Trust is prohibited from discriminating against any employee or maintaining any employment practice which discriminates because of race, creed, color, ancestry, sex, age, disabling condition, or national origin in connection with any activity provided for or permitted by contract with or permit from the Government or by derivative subcontract or sublease. As used in this section, the term “employment” includes, but is not limited to, employment, upgrading, demotion, or transfer; recruitment, or recruitment advertising; layoffs or termination; rates of pay or other forms of compensation; and selection for training including apprenticeship.
(b) Each such proprietor, owner or operator shall post either the following notice or notices supplied in accordance with Executive Order 11246 at such locations as will ensure that the notice and its contents will be conspicuous to any person seeking employment:
This is a facility operated in an area under the jurisdiction of the Presidio Trust. No discrimination in employment practices on the basis of race, creed, color, ancestry, sex, age, disabling condition, or national origin is permitted in this facility. Violations of this prohibition are punishable by fine, imprisonment, or both. Complaints or violations of this prohibition should be addressed to the Executive Director, The Presidio Trust, P.O. Box 29052, San Francisco, CA 94129-0052.
(c) The regulations contained in this section apply, regardless of land ownership, on all lands and waters within the boundaries of the area administered by the Presidio Trust that are under the legislative jurisdiction of the United States.
(a) The proprietor, owner or operator and the employees of any hotel, inn, lodge, or other facility or accommodation offered to or enjoyed by the general public within the area administered by the Presidio Trust and, while using such area, any commercial passenger-carrying motor vehicle service and its employees, are prohibited from:
(1) Publicizing the facilities, accommodations or any activity conducted therein in any manner that would directly or inferentially reflect upon or question the acceptability of any person or persons because of race, creed, color, ancestry, sex, age, disabling condition, or national origin; or
(2) Discriminating by segregation or otherwise against any person or persons because of race, creed, color, ancestry, sex, age, disabling condition, or national origin in furnishing or refusing to furnish such person or persons any accommodation, facility, service, or privilege offered to or enjoyed by the general public.
(b) Each such proprietor, owner, or operator shall post the following notice at such locations as will insure that the notice and its contents will be conspicuous to any person seeking accommodations, facilities, services, or privileges:
This is a facility operated in an area under the jurisdiction of the Presidio Trust. No discrimination by segregation or other means in the furnishing of accommodations, facilities, services, or privileges on the basis of race, creed, color, ancestry, sex, age, disabling condition or national origin is permitted in the use of this facility. Violations of this prohibition are punishable by fine, imprisonment, or both. Complaints of violations of this prohibition should be addressed to the Executive Director, The Presidio Trust, P.O. Box 29052, San Francisco, CA 94129-0052.
(c) The regulations contained in this section apply, regardless of land ownership, on all lands and waters within the boundaries of the area administered by the Presidio Trust that are under the legislative jurisdiction of the United States.
The creation or maintenance of a nuisance upon the federally owned lands of the area administered by the Presidio Trust or upon any private lands within the boundaries of the area administered by the Presidio Trust under the exclusive legislative jurisdiction of the United States is prohibited.
Prospecting, mining, and the location of mining claims under the general mining laws and leasing under the mineral leasing laws are prohibited in the area administered by the Presidio Trust except as authorized by law.
5 U.S.C. 552, the Freedom of Information Act, as amended.
This part contains the general rules of the Architectural and Transportation Barriers Compliance Board for public access to Board records. These regulations implement 5 U.S.C. 552, the Freedom of Information Act, as amended, and the policy of the Board. It is the Board's policy to disseminate information on matters of interest to the public and to disclose on request all information contained in records in its custody insofar as is compatible with the discharge of its responsibilities and consistent with the law. This part sets forth generally the categories of records accessible to the public, the types of records subject to prohibitions or restrictions on disclosure, and the places and procedures to obtain information from records in the custody of the A&TBCB.
For the purposes of this part:
(a)
(b)
(1) The term includes—
(i) Informal writings such as handwritten notes and drafts;
(ii) Information preserved in a form which must be translated or deciphered by machine in order to be intelligible to humans;
(iii) Records which were created or acquired by the A&TBCB, its members, its employees, its members’ employees, or persons acting on behalf of its members, by use of A&TBCB funds or in the course of transacting official business for the A&TBCB.
(2) The term does not include—
(i) Materials which are legally owned by an A&TBCB member, employee, or
(ii) Materials published by non-Federal organizations which are readily available to the public, such as books, journals, standards, and periodicals available through reference libraries, even if such materials are in the A&TBCB's possession.
(c) The terms
(d) A government record
(e)
(f)
(g)
(h)
(i)
(j)
(k)
(l)
(m)
(n)
(o)
All existing A&TBCB records are subject to routine destruction according to standard record retention schedules.
(a)
(1) Description of the A&TBCB's organization and the established places at which, the employees from whom, and the methods whereby the public may obtain information, make submittals or requests, or obtain decisions;
(2) Statements of the general course and method by which the A&TBCB's functions are channeled and determined, including the nature and requirements of all formal and informal procedures available;
(3) Rules of procedure, descriptions of forms available or the places at which forms may be obtained, and instructions as to the scope and contents of all papers, reports, or examinations;
(4) Substantive rules of general applicability adopted as authorized by law, and statements of general policy or interpretations of general applicability formulated and adopted by the A&TBCB, and
(5) Each amendment, revision, or repeal of the foregoing. Indexes to the
(b)
(c)
(a)
(b)
(1) Final opinions and orders made in the adjudication of cases;
(2) Statements of policy and interpretations adopted but not published in the
(3) Administrative staff manuals and instructions to staff that affect a member of the public.
Except for those categories of materials listed in paragraph (a) of this section, paragraphs (a) (1) through (9) of § 1120.41 the following materials are available for public inspection and copying during normal business hours at the Washington office of the A&TBCB:
(a) Final opinions and orders made in the adjudication of cases;
(b) Statements of policy and interpretations which have been adopted under the authority of the A&TBCB and are not published in the
(c) Administrative staff manuals and instructions to staff that affect a member of the public;
(d) A record of the final votes of each member of the Board in every Board proceeding;
(e) Current indexes providing identifying information for the public as to the materials made available under paragraphs (a) through (d) of this section.
(f) All papers and documents made a part of the official record in administrative proceedings conducted by the A&TBCB in connection with the issuance, amendment, or revocation of rules and regulations or determinations having general applicability or legal effect with respect to members of the public or a class of the public.
(g) After a final order is issued in any adjudicative proceeding conducted by the A&TBCB, all papers and documents made a part of the official record of the proceeding. (The official docket is kept in the office of the administrative law judge hearing the case until a final order is issued.)
Current indexes are normally available to the public in published form as provided in § 1120.11. These indexes, whether or not published, are made available for inspection and copying on request. If published copies of a particular index are at any time not available or if publication of the index has been determined to be unnecessary and impracticable by order published in the
Any material listed in paragraph (a) of this section that is not indexed as required by § 1120.11(e) and § 1120.12, may not be cited, relied on, or used as precedent by the Board to adversely affect any member of the public unless the person against whom it is cited, relied on, or used has had actual and timely notice of the material.
(a) It is the policy of the A&TBCB to make information available to the public to the greatest extent possible in keeping with the spirit of the Freedom of Information Act. Therefore, all records of the A&TBCB, except those that the A&TBCB specifically determines must not be disclosed in the national interest, for the protection of private rights, or for the efficient conduct of public business to the extent permitted by the Freedom of Information Act, are declared to be available for public inspection and copying as provided in this part. Each member and employee of the A&TBCB is directed to cooperate to this end and to make records available to the public promptly and to the fullest extent consistent with this policy. A record may not be withheld from the public solely because its release might suggest administrative error or embarrass a member or employee of the A&TBCB.
(b) Subject to § 1120.51, any nonexempt A&TBCB record is available to the public upon request regardless of whether the requestor shows any justification or need for the record.
(c) An A&TBCB office may waive the procedures on this subpart in favor of the requestor, for reasons of the public interest, simplicity, or speed.
(d) If a requested record contains both exempt and nonexempt material, the nonexempt material shall be disclosed, after the exempt material has been deleted in accordance with § 1120.42.
(a) This subpart applies to any written request (other than a request made by another Federal agency) received by the A&TBCB, whether or not the request cites the Freedom of Information Act, 5 U.S.C. 552, except with respect to records for which a less formal disclosure procedure is provided specifically in this part.
(b) Any written request to the A&TBCB for existing records prepared by the A&TBCB for routine public distribution,
(c) This subpart applies only to rec-ords that exist at the time the request for information is made. (See § 1120.3,
A written request for records must be filed with the A&TBCB Freedom of Information Officer, Suite 501, 1111 18th Street NW., Washington, DC 20036. Requests may be mailed to that address or filed in person at that address during the A&TBCB's normal business hours.
(a) The A&TBCB cannot assure that a timely for satisfactory response under this subpart will be given to written requests that are addressed to A&TBCB offices, members, or employees other than the Freedom of Information Officer listed in § 1120.23. Any A&TBCB member or employee who receives a written request for inspection or disclosure of A&TBCB records must promptly forward a copy of the request to the Freedom of Information Officer, by the fastest practicable means, and must, if appropriate, commence action under § 1120.32.
(b) While A&TBCB members and employees will attempt in good faith to comply with oral requests for inspection or disclosure of A&TBCB rec-ords, by telephone or otherwise, these requests are not required to be processed in accordance with this subpart.
A request must be in writing, must reasonably describe the records sought in a way that will permit their identification and location, and must be addressed to the address set forth in § 1120.23, but otherwise need not be in any particular form. Each request under the Freedom of Information Act should be clearly and prominently identified by a legend on the first page, such as “Freedom of Information Act Request.” The envelope in which the request is sent should be prominently marked with the letters “FOIA.” It is helpful, but not necessary, for the requestor to include his or her phone number and the reason for the request. A request may state the maximum amount of fees which the requester is willing to pay. Under § 1120.33(d), the failure to state willingness to pay fees as high as are anticipated by the A&TBCB will delay running of the time limit and delay processing of the request, if the responsible official anticipates that the fees chargeable may exceed $250.00.
(a) If the description of the records sought in the request is not sufficient to allow the A&TBCB to identify and locate the requested records, the office taking action under § 1120.32 must notify the requestor (by telephone when practicable) that the request cannot be further processed until additional information is furnished.
(b) The A&TBCB must make every reasonable effort to assist the requestor in formulating his or her request. If a request is described in general terms (
(a) Upon receipt of a written request, the Freedom of Information Officer must mark the request with the date of receipt and must attach to the request a control slip indicating the Request Identification Number and other pertinent administrative information. The Freedom of Information Officer must immediately forward the request and control slip to the A&TBCB office which the FOIA Officer believes to be responsible for maintaining the records requested. The Freedom of Information Officer must retain a full copy of the request and control slip and must monitor the handling of the request to ensure a timely response.
(b) The Freedom of Information Officer must maintain a file concerning each request received. The file must contain a copy of the request, initial and appeal determinations, and other pertinent correspondence and records.
(c) The Freedom of Information Officer must collect and maintain the information necessary to compile the reports required by 5 U.S.C. 552(d).
(a) The FOIA Officer is delegated the authority to issue initial determinations concerning records which he or she believes are in the custody of a Board member, an employee of a member's agency, or an employee of a public member. When the FOIA Officer receives such a request, he or she shall forward it to the member, employee of a member agency, or employee of a public member whom the FOIA Officer believes to have custody of the records, requesting the records. The person to whom the request is forwarded shall, within three days of receipt of the FOIA Officer's request, either furnish the records requested to the FOIA Officer or inform the FOIA Officer of the time when they will be furnished. The FOIA Officer shall then determine whether or not to disclose the documents. For purposes of such requests and their processing under this subpart, the FOIA Officer is considered the office handling the requests.
(b) Heads of staff offices are delegated the authority to issue initial determinations, other records which are in their respective custody.
(c) Whenever an A&TBCB office receives a request forwarded by the FOIA Officer, the office should:
(1) Take action under § 1120.26, if required, to obtain a better description of the records requested;
(2) Locate the records as promptly as possible, or determine that:
(i) The records are not known to exist; or
(ii) They are located at another A&TBCB office; or
(iii) They are located at another Federal agency and not possessed by the A&TBCB.
(3) When appropriate, take action under § 1120.53(b) to obtain payment or assurance of payment;
(4) Determine which of the requested records legally must be withheld, and why (see § 1120.42(b),
(5) Of the requested records which are exempt from mandatory disclosure but which legally may be disclosed (see § 1120.42(a)), determine which rec-ords will be withheld, and why;
(6) Issue an initial determination within the allowed period (see § 1120.31), specifying (individually or by category) which records will be disclosed and which will be withheld, and signed by a person authorized to issue the determination under paragraph (a) of this section (see § 1120.33,
(7) Furnish the Freedom of Information Officer a copy of the determination; and
(8) If the determination denies a request, furnish the Freedom of Information Officer the name of the A&TBCB member(s) or employee(s) having custody of the records and maintain the records in a manner permitting their prompt forwarding to the General Counsel upon request if an appeal from the initial denial is filed. (See also § 1120.34.)
(d) If it appears that some or all of the requested records are not in the possession of the A&TBCB office which has been assigned responsibility for responding to the request but may be in the possession of some A&TBCB office, the responding office must so inform
(e) An initial determination to disclose documents must provide the requested documents or provide the opportunity to inspect and/or obtain copies of the documents.
(a) Except as otherwise provided in this section, as soon as possible and not later than the tenth working day after the day on which the Freedom of Information Officer receives a request for records, the A&TBCB office responsible for responding to the request must issue a written determination to the requestor stating which of the requested records, will, and which will not, be released and the reason for any denial of a request.
(b) The period of 10 working days is measured from the date the request is first received and logged in by the Freedom of Information Officer.
(c) There is excluded from the period of 10 working days (or any extension) any time which elapses between the date that a requestor is notified by the A&TBCB under § 1120.26 that his or her request does not reasonably identify the records sought, and the date that the requestor furnishes a reasonable identification.
(d) There is excluded from the period of 10 working days (or any extension) any time which elapses between the date that a requestor is notified by an A&TBCB office under § 1120.53(b) that prepayment of fees is required, and the date that the requestor pays (or makes suitable arrangements to pay) the charges.
(e) The A&TBCB office taking action under § 1120.31 may extend the basic 10-day period established under paragraph (a) of this section by a period not to exceed 10 additional working days if—
(1) The office notifies the Freedom of Information Officer;
(2) The office notifies the requestor in writing within the basic 10-day period stating the reasons for the extension and the date by which the office expects to be able to issue a determination;
(3) The extension is reasonably necessary to properly process the particular request; and
(4) One or more of the following unusual circumstances require the extension:
(i) There is a need to search for and collect the requested records from field facilities or other establishments that are separate from the office processing the request;
(ii) There is a need to search for, collect, and/or appropriately examine a voluminous amount of separate and distinct records which are demanded in a single request; or
(iii) There is need for consultation with another agency having a substantial interest in the determination of the request or among two or more components of the A&TBCB. The office must conduct the consultation with all practicable speed.
(f) Should the A&TBCB fail to issue a determination within the 10-day period or any authorized extension as to an initial request, or during the period for consideration of an appeal, the requestor shall be deemed to have exhausted his or her administrative remedies with respect to such.
(a) An initial denial of a request may be issued only for the following reasons:
(1) The record is not under the A&TBCB's control;
(2) The record has been published in the
(3) A statutory provision, provision of this part, or court order requires that the information not be disclosed;
(4) The record is exempt from mandatory disclosure under 5 U.S.C. 552(b) and the responding office has decided not to disclose it under §§ 1120.41 and 1120.42;
(5) The record is believed to be in the A&TBCB's custody but has not yet been located. (See paragraph (f) of this section.)
(b) Each initial denial of a request shall—
(1) Be written, signed, and dated;
(2) Contain a reference to the Request Identification Number;
(3) Identify the records that are being withheld (individually or, if the denial covers a large number of similar records, by described category); and
(4) State the basis for denial of each record of category of records or any reasonably segregable portion(s) thereof being withheld.
(c) If the issuance of the determination to deny a request was directed by some A&TBCB officer or employee other than the person signing the determination letter, that other person's identity and position must be stated in the determination letter.
(d) Each initial determination which denies, in whole or in part, a request for one or more existing, located A&TBCB records must state that the requestor may appeal the initial denial by sending a written appeal to the address shown in § 1120.23 within 30 days of receipt of the determination. (See § 1120.36.)
(e) A determination is deemed issued on the date the determination letter is placed in A&TBCB mailing channels for first class mailing to the requestor, delivered to the U.S. Postal Service for mailing, or personally delivered to the requestor, whichever date first occurs.
(f) When a request must be denied because the record has not yet been located (although it is believed to be in the A&TBCB's possession), the A&TBCB office responsible for maintaining the record must continue to search diligently until it is located or it appears that the record does not exist or is not in the A&TBCB's possession, and must periodically inform the requestor of the office's progress.
(a) Any person whose request has been denied in whole or in part by an initial determination may appeal that denial by addressing a written appeal to the address shown in § 1120.23.
(b) Any appeal must be mailed or filed in person at the address shown in § 1120.23—
(1) In the case of a denial of an entire request, generally not later than 30 calendar days after the date the requestor received the initial determination on the request; or
(2) In the case of a partial denial, generally not later than 30 calendar days after the requestor receives all records being made available pursuant to the initial determination.
(c) The appeal letter must contain—
(1) A reference to the Request Identification Number (RIN);
(2) The date of the initial determination;
(3) The name and address of the person who issued the initial denial;
(4) A statement of which of the rec-ords to which access was denied are the subjects of the appeal; and
(5) If the applicant wishes, such facts and legal or other authorities as he or she considers appropriate.
(a) The General Counsel must make one of the following legal determinations in connection with every appeal from the initial denial of a request for an existing, located record:
(1) The record must be disclosed;
(2) The record must not be disclosed because a statute or a provision of this part so requires; or
(3) The record is exempt from mandatory disclosure but legally may be disclosed as a matter of agency discretion.
(b) Whenever the General Counsel has determined under paragraph (a)(3) of this section that a record is exempt from mandatory disclosure but legally may be disclosed, the matter must be referred to the Executive Director. If the Executive Director determines that an important purpose would be served by withholding the record, the General Counsel shall issue a determination denying the appeal. If the Executive Director determines that no important purpose would be served by withholding the record, the General Counsel must disclose the record.
(c) The General Counsel may delegate his or her authority under this section to any other attorney employed by the A&TBCB in connection
(d) A determination denying an appeal from an initial denial must—
(1) Be in writing;
(2) State which of the exemptions in 5 U.S.C. 552(b) apply to each requested existing record;
(3) State the reason(s) for denial of the appeal;
(4) State the name and position of each A&TBCB officer or employee who directed that the appeal be denied; and
(5) State that the person whose request was denied may obtain de novo judicial review of the denial by complaint filed with the district court of the United States in the district in which the complainant resides, or in which the agency records are situated, or in the District of Columbia, pursuant to 5 U.S.C. 552(a)(4).
(a) Except as otherwise provided in this section, as soon as possible and not later than the twentieth working day after the day on which the Freedom of Information Officer receives an appeal from an initial denial of a request for records, the General Counsel shall issue a written determination stating which of the requested records (as to which appeal was made) will and which will not be disclosed.
(b) The period of 20 working days shall be measured from the date an appeal is first received by the Freedom of Information Officer.
(c) The General Counsel may extend the basic 20-day period established under paragraph (a) of this section by a period not to exceed 10 additional working days if—
(1) He or she notifies the Freedom of Information Officer;
(2) He or she notifies the requestor in writing within the basic 20-day period stating the reasons for the extension and the date by which he or she expects to be able to issue a determination;
(3) The extension is reasonably necessary to properly process the particular request; and
(4) One or more of the following unusual circumstances require the extension:
(i) There is a need to search for and collect the records from field facilities or other establishments that are separated from the office processing the appeal;
(ii) There is a need to search for, collect, and/or appropriately examine a voluminous amount of separate and distinct records which are demanded in a single request; or
(iii) There is a need for consultation with another agency or among two or more components of the A&TBCB. The General Counsel must conduct the consultation with all practicable speed.
(d) No extension of the 20-day period may be issued under paragraph (c) of this section which would cause the total of all such extensions and of any extensions issued under § 1120.33(c) to exceed 10 working days.
(a) Generally, 5 U.S.C. 552(b) establishes nine exclusive categories of matters which are exempt from the mandatory disclosure requirements of 5 U.S.C. 552(a). No request under 5 U.S.C. 552 for an existing, located, unpublished record in the A&TBCB's control may be denied by any A&TBCB office or employee unless the record contains (or its disclosure would reveal) matters that are—
(1) Specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and which are in fact properly classified pursuant to the Executive order;
(2) Related solely to the internal personnel rules and practices of an agency;
(3) Specifically exempted from disclosure by statute;
(4) Trade secrets and commercial or financial information obtained from a person and privileged or confidential;
(5) Interagency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency;
(6) Personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy;
(7) Investigatory records compiled for law enforcement purposes, but only to
(i) Interfere with enforcement proceedings;
(ii) Deprive a person of a right to a fair trial or an impartial adjudication;
(iii) Constitute an unwarranted invasion of personal privacy;
(iv) Disclose the identity of a confidential source and, in the case of a record compiled by a criminal law enforcement authority in the course of a criminal investigation or by an agency conducting a lawful national security intelligence investigation, confidential information furnished only by the confidential source;
(v) Disclose investigative techniques and procedures; or
(vi) Endanger the life or physical safety of law enforcement personnel;
(8) Contained in or related to examination, operating, or condition reports prepared by, on behalf of, or for the use of an agency responsible for the regulation or supervision of financial institutions; or
(9) Geological and geophysical information and data, including maps, concerning wells.
(b) The fact that the applicability of an exemption permits the withholding of a requested record (or portion of a record) does not necessarily mean that the record must or should be withheld. (See § 1120.42
(a) An A&TBCB office may, in its discretion, release requested records despite the applicability of one or more of the exemptions listed in § 1120.41 (a)(2), (5), or (7). Disclosure of such records is encouraged if no important purpose would be served by withholding the records.
(b) Though the policy of the A&TBCB is to honor all requests, as indicated in § 1120.21(a), there are circumstances when the A&TBCB will not disclose a record if one or more of the FOIA exemptions applies to the record. The exemptions usually in such circumstances are exemptions (2), (3), (4), (6), (8) and (9). In these cases, where the A&TBCB has withheld a requested record, or portions thereof, the A&TBCB will disclose the exempted record when ordered to do so by a Federal court or in exceptional circumstances under appropriate restrictions with the approval of the Office of General Counsel.
(a) It shall be the policy of the ATBCB to comply with requests for documents made under the FOIA using the most efficient and least costly methods available. Requesters will be charged fees, in accordance with the administrative provisions and fee schedule set forth below, for searching for, reviewing (in the case of commercial use requesters only), and duplicating requested records.
(b)
(c)
(1) Commercial Use Requesters—When the ATBCB receives a request for documents which appears to be a request for commercial use, the Board may assess charges in accordance with the fee schedule set forth below, which recover the full direct costs of searching for, reviewing for release, and duplicating the records sought. Costs for time spent reviewing records to determine whether they are exempt from mandatory disclosure applies to the initial review only. No fees will be assessed for reviewing records, at the administrative appeal level, of the exemptions already applied.
(2) Educational and Non-Commercial Scientific Institution Requesters—The ATBCB shall provide documents to requesters in this category for the cost of reproduction alone, in accordance with the fee schedule set forth below, excluding charges for the first 100 pages of reproduced documents.
(i) To be eligible for inclusion in this category, requesters must demonstrate the request is being made under the auspices of a qualifying institution and that the records are not sought for a commercial use, but are sought in furtherance of scholarly (if the request is from an educational institution) or scientific (it the request is from a non-commercial scientific institution) research.
(ii) Requesters eligible for free search must reasonably describe the records sought.
(3) Requesters Who Are Representatives of the News Media—The ATBCB shall provide documents to requesters in this category for the cost of reproduction alone, in accordance with the fee schedule set forth below, excluding charges for the first 100 pages of reproduced documents.
(4) All Other Requestors—The ATBCB shall charge requestors who do not fit into any of the categories described above, fees which recover the full direct cost of searching for and reproducing records that are responsive to the request, except that the first two hours of search time and the first 100 pages of reproduction shall be furnished without charge.
(d) Schedule of FOIA fees.
(1) Record search (ATBCB employees)—$14.00 per hour
(2) Document review (ATBCB employees)—$20.00 per hour
(3) Duplication of documents (paper copy of paper original)—$.20 per page
(e) No charge shall be made:
(1) If the costs of routine collection and processing of the fee are likely to equal or exceed the amount of the fee;
(2) For any request made by an individual or group of individuals falling into the categories listed at paragraph (b) of this section, and described in paragraph (c) of this section, (excepting commercial use requests) the first two hours of search time and first 100 pages of duplication;
(3) For the cost of preparing or reviewing letters of response to a request or appeal;
(4) For responding to a request for one copy of the official personnel record of the requestor;
(5) For furnishing records requested by either House of Congress, or by duly authorized committee or subcommittee or Congress, unless the records are requested for the benefit of an individual Member of Congress or for a constituent;
(6) For furnishing records requested by and for the official use of other Federal agencies; or
(7) For furnishing records needed by an A&TBCB contractor or grantee to perform the work required by the A&TBCB contract or grant.
(f) Requestors may be charged for unsuccessful or unproductive searches or for searches when records located are determined to be exempt from disclosure.
(g) Where the ATBCB reasonably believes that a requestor or group of requestors is attempting to break a request down into a series of requests for the purpose of evading the assessment of fees, the ATBCB shall aggregate any such requests and charge accordingly.
(a) Information available in whole or in part in computerized form which is disclosable under the Freedom of Information Act is available to the public as follows:
(1) When there is an existing printout from the computer which permits copying the printout, the material will be made available at the per page rate stated in § 1120.51(a) for each 8
(2) When there is not an existing printout of information disclosable under the Freedom of Information Act, a printout shall be made if the applicant pays the cost to the A&TBCB as stated in paragraph (a)(3) of this section.
(3) Obtaining information from computerized records frequently involves a minimum computer time cost of approximately $100 per request. Multiple requests involving the same subject may cost less per request. Services of personnel in the nature of a search shall be charged for at rates prescribed in § 1120.51(a). A charge shall be made for the computer time involved based upon the prevailing level of costs to Government organizations and upon the particular types of computer and associated equipment and the amounts
(b) Information in the Board's computerized records which could be produced only by additional programming of the computer, thus producing information not previously in being, is not required to be furnished under the Freedom of Information Act. In view of the usually heavy workloads of the computers used by the Board, such a service cannot ordinarily be offered to the public.
(a)
(b)
(c) Advance payment or assurance of payment.
(1) When an ATBCB office determines or estimates that the allowable charges a requestor may be required to pay are likely to exceed $250.00, the ATBCB may require the requestor to make an advance payment or arrangements to pay the entire fee before continuing to process the request. The ATBCB shall promptly inform the requestor (by telephone, if practicable) of the need to make an advance payment or arrangements to pay the fee. That office need not search for, review, duplicate, or disclose records in response to any request by that requestor until he or she pays, or makes acceptable arrangements to pay, the total amount of fees due (or estimated to become due) under this subpart.
(2) Where a requestor has previously failed to pay a fee charged in a timely fashion, the ATBCB may require the requestor to pay the full amount owed, plus any applicable interest, as provided in paragraph (b) of this section, and to make an advance payment of the full amount of the estimated fee before any new or pending requests will be processed from that requestor.
(3) In those instances described in paragraphs (c)(1) and (2) of this section, the administrative time limits prescribed in § 1120.33(d) will begin only after the ATBCB has received all fee payments due or acceptable arrangements have been made to pay all fee payments due.
(d) Effect of the Debt Collection Act of 1982 (Pub. L. 97-365). Requestors are advised that the ATBCB shall use the authorities of the Debt Collection Act of 1982, including disclosure to consumer reporting agencies and use of collection agencies, where appropriate, to encourage repayment of debts arising from freedom of information act requests.
(e) Waiver or reduction of fees.
(1) Records responsive to a request under 5 U.S.C. 552 shall be furnished without charge or at a charge reduced below that establsihed under paragraph (d) of § 1120.51 where the Freedom of Information Officer determines, based upon information provided by a requestor in support of a fee waiver request or otherwise made known to the Freedom of Information Officer, that disclosure of the requested information is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requestor. Requests for a waiver or reduction of fees shall be considered on a case-by-case basis.
(2) In order to determine whether the first fee waiver requirement is met—i.e., that disclosure of the requested information is in the public interest because it is likely to contribute significantly to public understanding of the
(i) The subject of the request: Whether the subject of the requested records concerns “the operations or activities of the government.” The subject matter of the requested records, in the context of the request, must specifically concern identifiable operations or activities of the federal government—with a connection that is direct and clear, not remote or attenuated. Furthermore, the records must be sought for their informative value with respect to those government operations or activities; a request for access to records for their intrinsic informational content alone will not satisfy this threshold consideration.
(ii) The informative value of the information to be disclosed: Whether the disclosure is “likely to contribute” to an understanding of government operations or activities. The disclosable portions of the requested records must be meaningfully informative on specific government operations or activities in order to hold potential for contributing to increase public understanding of those operations and activities. The disclosure of information that already is in the public domain, in either a duplicative or a substantially identical form, would not be likely to contribute to such understanding, as nothing new would be added to the public record.
(iii) The contribution to an understanding of the subject by the public likely to result from disclosure: Whether disclosure of the requested information will contribute to “public understanding.” The disclosure must contribute to the understanding of the public at large, as opposed to the individual understanding of the requestor or a narrow segment of interested persons. A requestor's identity and qualifications—e.g., expertise in the subject area and ability and intention to effectively convey information to the general public—should be considered. It reasonably may be presumed that a representative of the news media (as defined in § 1120.2(o)) who has access to the means of public dissemination readily will be able to satisfy this consideration. Requests from libraries or other record repositories (or requestors who intend merely to disseminate information to such institutions) shall be analyzed, like those of other requestors to identify a particular person who represents that he actually will use the requested information in scholarly or other analytic work and then disseminate it to the general public.
(iv) The significance of the contribution to public understanding: Whether the disclosure is likely to contribute “significantly” to public understanding of government operations or activities. The public's understanding of the subject matter in question, as compared to the level of public understanding existing prior to the disclosure, must be likely to be enhanced by the disclosure to a significant extent. Freedom of Information Officer shall not make separate value judgments as to whether information, even though it in fact would contribute significantly to public understanding of the operations or activities of the government, is “important” enough to be made public.
(3) In order to determine whether the second fee waiver requirement is met—i.e., that disclosure of the requested information is not primarily in the commercial interest of the requestor—the Freedom of Information Officer shall consider the following two factors in sequence:
(i) The existence and magnitude of a commercial interest: Whether the requestor has a commercial interest that would be furthered by the requested disclosure. The Freedom of Information Officer shall consider all commercial interests of the requester (with reference to the definition of “commercial use” in § 1120.2(l)) or any person on whose behalf the requestor may be acting, but shall consider only those interests which would be furthered by the requested disclosure. In assessing the magnitude of identified commercial interests, consideration shall be given to the role that such FOIA-disclosed information plays with respect to those commercial interests, as well as to the extent to which FOIA disclosures serve those interests overall. Requestors shall be given a reasonable opportunity
(ii) The primary interest in disclosure: Whether the magnitude of the identified commercial interest of the requestor is sufficiently large, in comparison with the public interest in disclosure, that disclosure is “primarily in the commercial interest of the requestor.” A fee waiver or reduction is warranted only where, once the “public interest” standard set out in paragraph (e)(2) of this section is satisfied, that public interest can fairly be regarded as greater in magnitude than that of the requestor's commercial interest in disclosure. The Freedom of Information Officer shall ordinarily presume that where a news media requestor has satisfied the “public interest” standard, that will be the interest primarily served by disclosure to that requestor. Disclosure to data brokers or others who compile and market government information for direct economic return shall not be presumed to primarily serve “public interest.”
(4) Where only a portion of the requested records satisfies both of the requirements for a waiver or reduction of fees under this paragraph, a waiver or reduction shall be granted only as to that portion.
(5) Requests for the waiver or reduction of fees shall address each of the factors listed in paragraphs (e) (2) and (3) of this section, as they apply to each record request. One hundred pages of reproduction shall be furnished without charge.
(6) A request for reduction or waiver of fees shall be addressed to the Freedom of Information Officer at the address shown in § 1120.23. The ATBCB office which is responding to the request for records shall initially determine whether the fee shall be reduced or waived and shall so inform the requestor. The initial determination may be appealed by letter addressed to the address shown in § 1120.23. The General Counsel or his or her designee shall decide such appeals.
5 U.S.C. 552a; Pub. L. 93-579.
The purposes of these regulations are to:
(a) Establish a procedure by which an individual can determine if the Architectural and Transportation Barriers Compliance Board, hereafter known as the Board or ATBCB, maintains a system of records which includes a record pertaining to the individual; and
(b) Establish a procedure by which an individual can gain access to a record pertaining to him or her for the purpose of review, amendment and/or correction.
For the purpose of these regulations—
(a) The term
(b) The term
(c) The term
(d) The term
(e) The term
(f) The term
An individual or authorized representative shall submit a written request to the Administrative Officer to determine if a system of records named by the individual contains a record pertaining to the individual. The individual or authorized representative shall submit a written request to the Executive Director of the ATBCB which states the individual's desire to review his or her record.
An individual or authorized representative making a request to the Administrative Officer of the ATBCB pursuant to § 1121.3 shall present the request at the ATBCB offices, 330 C Street, SW., Room 1010, Washington, DC 20202, on any business day between the hours of 9 a.m. and 5:30 p.m. The individual or authorized representative submitting the request should present himself or herself at the ATBCB's offices with a form of identification which will permit the ATBCB to verify that the individual is the same individual as contained in the record requested. An authorized representative shall present a written document authorizing access. The document must be signed by the individual.
Upon verification of identity the Board shall disclose to the individual or authorized representative the information contained in the record which pertains to that individual. Nothing in this section shall allow an individual access to any information compiled in reasonable anticipation of a civil action or proceeding.
The individual or authorized representative should submit a request to the Administrative Officer which states the individual's desire to correct or to amend his or her record. This request is to be made in accord with provisions of § 1121.4.
Within ten working days of the receipt of the request to correct or to amend the record, the Administrative Officer will acknowledge in writing such receipt and promptly either—
(a) Make any correction or amendment of any portion thereof which the individual believes is not accurate, relevant, timely, or complete; or
(b) Inform the individual or authorized representative of his or her refusal to correct or to amend the record in accordance with the request, the reason for the refusal and the procedures established by the Board for the individual to request a review of that refusal.
An individual who disagrees with the refusal of the Administrative Officer to correct or to amend his or her record may submit a request for a review of such refusal to the Executive Director, ATBCB, 330 C Street, SW., Room 1010, Washington, DC 20202. The Executive Director will, not later than thirty (30) working days from the date on which the individual requests such review, complete such review and make final
In any disclosure pursuant to § 1121.10 containing information about which the individual has previously filed a statement of disagreement under § 1121.8, the Board shall clearly note any portion of the record which is disputed and provide copies of the statement and, if the Executive Director deems it appropriate, copies of a concise statement of the reasons of the Executive Director for not making the amendments requested.
The Board will not disclose a record to any individual or agency other than the individual to whom the record pertains, except to an authorized representative, unless the disclosure has been listed as a “routine use” in the Board's notices of its systems of records, or falls within one of the special disclosure situations listed in the Privacy Act of 1974 (5 U.S.C. 552a(b)).
(a) The Board shall, except for disclosure made under sections (b)(1) and (b)(2) of the Privacy Act of 1974 (5 U.S.C. 552a) keep an accurate accounting of—
(1) The date, nature and purpose of each disclosure of a record to any person or another agency made pursuant to § 1121.10; and
(2) The name and address of the person or agency to whom the disclosure is made.
(b) This accounting shall be retained for at least five years or the life of the record, whichever is longer, after the disclosure for which the accounting is made;
(c) The Board shall make this accounting available to the individual named in the record at his or her request, except for disclosures made under section (b)(7) of the Privacy Act of 1974 (5 U.S.C. 552a).
(d) The Board shall inform any person or other agency to whom disclosure has been made pursuant to § 1121.10 about any correction or notation of dispute made by the Board.
If an individual or authorized representative requests copies of his or her record, he or she shall be charged ten cents per page, excluding the cost of any search for review of the record, in advance of receipt of the pages.
29 U.S.C. 792, as amended.
(a)
(b)
(1) The intended use for which either—
(i) Will require that such building or facility be accessible to the public, or
(ii) May result in employment or residence therein of physically handicapped persons; and
(2) Which is—
(i) To be constructed or altered by or on behalf of the United States;
(ii) To be leased in whole or in part by the United States—
(A) After August 12, 1968, and before January 1, 1977, after construction or alteration in accordance with plans and specifications of the United States; or
(B) On or after January 1, 1977, including any renewal of a lease entered into before January 1, 1977, which renewal is on or after such date;
(iii) To be financed in whole or in part by a grant or loan made by the United States after August 12, 1968, if the building or facility may be subject to standards for design, construction, or alteration issued under the law authorizing the grant or loan; or
(iv) To be constructed under the authority of the National Capital Transportation Act of 1960, the National Capital Transportation Act of 1965, or title III of the Washington Metropolitan Area Transit Regulation Compact.
(c)
(1) Any privately owned residential structure, unless it is leased by the Federal government on or after January 1, 1977, for subsidized housing programs; or
(2) Any building or facility on a military installation designed and constructed primarily for use by military personnel.
(d) Any covered building or facility, as provided in this section, which is designed, constructed, or altered after the effective date of a standard issued which is applicable to the building or facility, shall be designed, constructed, altered, or leased in accordance with the standard. For purposes of this section, any design, construction, alteration or lease for which bids or offers are received before the effective date of an applicable standard, in response to an invitation for bids or request for proposals, is not subject to that standard.
The policy of the Architectural and Transportation Barriers Compliance Board is to maximize the accessibility and usability of buildings, and facilities through amicable means. To this end, the Architectural and Transportation Barriers Compliance Board encourages voluntary and informal resolution of all complaints.
(a) These rules shall govern all compliance proceedings held before a judge and all alleged violations coming to the Executive Director as a complaint.
(b) In the absence of a specific provision in these rules, procedure shall be in accordance with the Administrative Procedure Act, subchapter II of chapter 5 and chapter 7, of title 5 U.S.C., and the Federal Rules of Civil Procedure, in that order.
(c) These rules and regulations shall be liberally construed to effectuate the purposes and provisions of the Architectural Barriers Act and section 502 of the Rehabilitation Act.
(d) The rules shall be applied to secure fairness in administration and elimination of unjustifiable expense and delay and to ascertain the truth.
(e) Words importing the singular number may extend and be applied to a plural and vice versa.
Upon notice to all parties, the judge, with respect to matters pending before him/her, may modify or waive any rule in these regulations upon determination that no party will be unduly prejudiced and that the end of justice will be served.
(a) The term parties includes (1) any agency, state or local body, or other person named as a respondent in a notice of hearing or opportunity for hearing, (2) the Executive Director and (3) any person named as a party by order of the judge.
(b) The Executive Director has the sole authority to initiate proceedings by issuing a citation under § 1150.42, on the basis of (1) a complaint from any person or (2) alleged violations coming to his/her attention through any means.
(a) Any person may submit a complaint to the A&TBCB alleging that a building or facility does not comply with applicable standards issued under the Architectural Barriers Act. Complaints must be in writing and should be sent to: Executive Director, Architectural and Transportation Barriers Compliance Board, 1111 18th Street, Suite 501, Washington, DC 20036-3894.
(b) The A&TBCB shall hold in confidence the identity of all persons submitting complaints unless the person submits a written authorization otherwise.
(c) The A&TBCB shall give or mail to the complainant a copy of these regulations.
(d) A complainant is not a party to the proceedings as a matter of course, but may petition the judge to participate under § 1150.13.
(e) The A&TBCB shall send the complainant a copy of the final order issued by the judge. The complainant
(a) By petitioning the judge, any person may be permitted to participate in the proceedings when he/she claims an interest in the proceedings and may contribute materially to their proper disposition. A complainant shall be permitted to participate in the proceeding when he/she petitions the judge.
(b) The judge may, in his/her discretion, determine the extent of participation of petitioners, including as an intervening party or participant. The judge may, in his/her discretion, limit participation to submitting documents and briefs, or permit the introduction of evidence and questioning of witnesses.
(a) A party may appear in person or by counsel or other representative and participate fully in any proceedings. An agency, state or local body, corporation or other association, may appear by any of its officers or by any employee it authorizes to appear on its behalf.
(b) A representative of a party or participant shall be deemed to control all matters respecting the interest of such party or participant in the proceedings.
(c) This section shall not be construed to require any representative to be an attorney-at-law.
(d) Withdrawal of appearance of any representative is effective when a written notice of withdrawal is filed and served on all parties and participants.
Documents to be filed under the rules in this part shall be dated, the original signed in ink, shall show the docket number and title of the proceeding and shall show the title, if any, and address of the signatory. Copies need not be signed; however, the name of the person signing the original, but not necessarily his/her signature, shall be reproduced. Documents shall be legible and shall not be more than 8
The signature of a party, authorized officer, employee or attorney constitutes a certification that he/she has read the document, that to the best of his/her knowledge, information, and belief there is a good ground to support it, and that it is not interposed for delay. If a document is not signed or is signed with intent to defeat the purpose of this section, it may be stricken as sham and false and the proceeding may proceed as though the document had not been filed.
(a)
(b)
(c)
The date of service shall be the day when the matter is deposited in United States mail or is delivered in person, except that the date of service of the initial notice of hearing or opportunity for hearing shall be the date of its delivery, or the date that its attempted delivery is refused.
The original of every document filed and required to be served upon parties to a proceeding shall be endorsed with a certificate of service signed by the party making service or by his/her attorney or representative, stating that such service has been made, the date of service, and the manner of service, whether by mail or personal delivery.
In computing any period of time under these rules or in any order issued under them, the time begins with the day following the act, event, or default, and includes the last day of the period, unless it is a Saturday, Sunday, or Federal legal holiday, in which event it includes the next following business day. When the period of time prescribed or allowed is less than seven (7) days, intermediate Saturdays, Sundays, and Federal legal holidays shall be excluded from the computation.
(a) Requests for extension of time shall be addressed to the judge and served on all parties and participants. Requests should set forth the reasons for the application.
(b) If made promptly, answers to requests for extension of time are permitted.
(c) The judge may grant the extension upon a showing of good cause by the applicant.
(a) The A&TBCB immediately shall send copies of complaints to all interested agencies and persons. In addition, the A&TBCB shall apprise any person who might become a party to compliance proceedings of the alleged instances of noncompliance and afford him/her a reasonable opportunity to respond or submit pertinent documents.
(b) The Executive Director or his/her designee shall seek the cooperation of persons and agencies in obtaining compliance and shall provide assistance and guidance to help them comply voluntarily.
(c) Upon request of the Executive Director, interested agencies or persons, including, but not limited to, occupant agencies, recipients of assistance, and lessors, shall submit to the Executive Director or his/her designee timely, complete, and accurate reports concerning the particular complaint. Reports shall be completed at such times, and in such form containing all information as the Executive Director or his/her designee may prescribe.
(d) The Executive Director, or his/her designee, shall have access during normal business hours to books, records, accounts and other sources of information and facilities as may be pertinent to ascertain compliance. Considerations of privacy or confidentiality asserted by an agency or person may not bar the Executive Director from evaluating such materials or seeking to enforce compliance. The Executive Director may seek a protective order authorizing the use of allegedly confidential materials on terms and conditions specified by the judge.
(e) Complaints should be resolved informally and expeditiously, by the interested persons or agencies. If compliance with the applicable standards is not achieved informally or an impasse concerning the allegations of compliance or noncompliance is reached, the Executive Director will review the matter, including previous attempts by agencies to resolve the complaint, and
(f) All actions to informally resolve complaints under paragraphs (a) through (e) of this section shall be completed within one hundred eighty (180) days after receipt of the complaint by all affected agencies and persons. A complaint shall be deemed informally resolved if the person or agencies responsible for the alleged violation either:
(1) Demonstrates to the Executive Director that no violation has occurred, or
(2) Corrects the violation, or
(3) Agrees in writing to implement specific compliance action within a definite time agreed to by the Executive Director, or
(4) Are timely implementing a plan for compliance agreed to by the Executive Director.
(g) A determination not to issue a citation shall be served in accordance with § 1150.23 on all interested agencies and persons upon whom a citation would have been served if it had been issued. Except as otherwise provided in paragraph (i) of this section, the failure of the Executive Director to take action within the ten (10) day period after termination of the one hundred eighty (180) day informal resolution period shall not preclude the Executive Director from taking action thereafter.
(h) Nothing in paragraphs (a) through (g) of this section shall be construed as precluding the Executive Director before the termination of the one hundred eighty (180) day informal resolution period from:
(1) Issuing a citation if it is reasonably clear that informal resolution cannot be achieved within that time, or
(2) Determining not to issue a citation if it is reasonably clear that compliance can be achieved or that issuance of a citation is not otherwise warranted.
(i) At any time after the expiration of one hundred ninety (190) days after receipt of the complaint by all affected agencies and persons, any person or agency receiving a copy of the complaint, or the complainant, may serve a written request on the Executive Director to issue a citation or determination not to proceed within thirty (30) days. If the Executive Director fails to serve a written response within thirty (30) days of receipt of such a request, the complaint shall be deemed closed.
(a) If there appears to be a failure or threatened failure to comply with a relevant standard, and the noncompliance or threatened noncompliance cannot be corrected or resolved by informal means under § 1150.41, the Executive Director on behalf of the A&TBCB may issue a written citation, requesting the ordering of relief necessary to ensure compliance with the standards or guidelines and requirements. The relief may include the suspension or withholding of funds and/or specific corrective action.
(b) The citation shall be served upon all interested parties, as appropriate, including but not limited to the complainant, the agency having custody, control, or use of the building or facility, and the agency funding by contract, grant, or loan, the allegedly noncomplying building or facility.
(c) The citation shall contain:
(1) A concise jurisdictional statement reciting the provisions of section 502 of the Rehabilitation Act and Architectural Barriers Act under which the requested action may be taken, (2) a short and plain basis for requesting the imposition of the sanctions, (3) a statement either that within fifteen (15) days a hearing date will be set or that the agency or affected parties may request a hearing within fifteen (15) days from service of the citation, and (4) a
(d) The Executive Director shall file copies of all pertinent documents listed in the citation simultaneously with filing the citation.
(a) Answers shall be filed by respondents within fifteen (15) days after receipt of a citation.
(b) The answer shall admit or deny specifically and in detail, matters set forth in each allegation of the citation. If the respondent is without knowledge, the answer shall so state and such statement shall be deemed a denial. Matters not specifically denied shall be deemed admitted. Failure to file a timely answer shall constitute an admission of all facts recited in the citation.
(c) Answers shall contain a list of additional pertinent documents not listed in the citation when respondent reasonably believes these documents are necessary for the judge to make a decision. Copies of the listed documents shall be filed with the answer.
(d) Answers may also contain a request for a hearing under § 1150.45.
(a) The Executive Director may amend the citation as a matter of course before an answer is filed. A respondent may amend its answer once as a matter of course, but not later than five (5) days after the filing of the original answer. Other amendments of the citation or the answer shall be made only by leave of judge.
(b) An amended citation shall be answered within five (5) days of its service, or within the time for filing an answer to the original citation, whichever is longer.
When a citation does not state that a hearing will be scheduled, the respondent, either in a separate paragraph of the answer, or in a separate document, may request a hearing. Failure of a respondent to request a hearing within fifteen (15) days from service of the citation shall be deemed a waiver of the right to a hearing and shall constitute consent to the making of a decision on the basis of available information.
(a) Motions and petitions shall state the relief sought, the authority relied upon, and the facts alleged.
(b) If made before or after the hearing, these matters shall be in writing. If made at the hearing, they may be stated orally or the judge may require that they be reduced to writing and filed and served on all parties.
(c) Except as otherwise ordered by judge, responses to a written motion or petition shall be filed within ten (10) days after the motion or petition is served. An immediate oral response may be made to an oral motion. All oral arguments on motions will be at the discretion of the judge.
(d) A reply to a response may be filed within within five (5) days after the response is served. The reply shall address only the contents of the response.
The judge may not sustain or grant a written motion or petition prior to expiration of the time for filing responses, but may overrule or deny such motion or petition without awaiting response,
(a) Unless otherwise specified, other relevant sections shall apply to PER proceedings.
(b) In addition to all other forms of relief requested, the citation shall request PER when it appears to the Executive Director that immediate and irreparable harm from noncompliance with the standard is occurring or is about to occur. Citations requesting
(c) Answers to citations requesting PER shall be in the form of all answers, as set forth in § 1150.43, and must be filed within four (4) days after receipt of the citation. Answers shall recite in detail, by affidavit or by notarized answer, why the PER requested should not be granted.
(d) When a citation contains both a request for relief to ensure compliance with a standard and a request for PER, an answer to the PER request shall be filed in accordance with paragraph (c) of this section and an answer to a request for other relief shall be filed in accordance with § 1150.43.
(e) Citations and answers in PER proceedings may not be amended prior to hearing. Citations and answers in PER proceedings may be amended at the hearing with the permission of the judge.
(a) A judge assigned to the case under section 3105 or 3344 of title 5 U.S.C. (formerly section 11 of the Administrative Procedure Act), shall preside over the taking of evidence in any hearing to which these rules of procedure apply.
(b) The A&TBCB shall, in writing, promptly notify all parties and participants of the assignment of the judge. This notice may fix the time and place of hearing.
(c) Pending his/her assignment, the responsibilities, duties, and authorities of the judge under these regulations shall be executed by the A&TBCB, through the Chair or another member of the A&TBCB designated by the Chair. A Board member shall not serve in this capacity in any proceeding relating to the member, his/her Federal agency, or organization of which he/she is otherwise interested.
The judge shall have the duty to conduct a fair hearing, to take all necessary action to avoid delay, and maintain order. He/she shall have all powers necessary to effect these ends, including (but not limited to) the power to:
(a) Arrange and issue notice of the date, time, and place of hearings previously set.
(b) Hold conferences to settle, simplify, or fix the issues in proceedings, or to consider other matters that may aid in the expeditious disposition of the proceedings.
(c) Require parties and participants to state their position with respect to the various issues in the proceedings.
(d) Administer oaths and affirmations.
(e) Rule on motions, and other procedural items on matters pending before him/her.
(f) Regulate the course of the hearing and conduct of counsel.
(g) Examine witnesses and direct witnesses to testify.
(h) Receive, rule on, exclude or limit evidence.
(i) Fix time for filing motions, petitions, briefs, or other items in matters pending before him/her.
(j) Issue decisions.
(k) Take any action authorized by the rules in this part or the provisions of sections 551 through 559 of title 5 U.S.C. (the Administrative Procedure Act).
(a) A judge shall disqualify himself/herself whenever in his/her opinion it is improper for him/her to preside at the proceedings.
(b) At any time following appointment of the judge and before the filing of the decision, any party may request the judge to withdraw on grounds of
(c) If, in the opinion of the judge, the affidavit referred to in paragraph (b) of this section is filed with due diligence and is sufficient on its face, the judge shall promptly disqualify himself/herself.
(d) If the judge does not disqualify himself/herself, he/she shall so rule upon the record, stating the grounds for his/her ruling. Then, he/she shall proceed with the hearing, or, if the hearing has closed, he/she shall proceed with the issuance of the decision.
(a) At any time before a hearing, the judge on his/her own motion or on motion of a party, may direct the parties or their representative to exchange information or to participate in a prehearing conference for the purpose of considering matters which tend to simplify the issues or expedite the proceedings.
(b) The judge may issue a prehearing order which includes the agreements reached by the parties. Such order shall be served upon all parties and participants and shall be a part of the record.
(a) Proposed exhibits shall be exhanged at the prehearing conference, or otherwise prior to the hearing if the judge so requires. Proposed exhibits not so exchanged may be denied admission as evidence.
(b) The authenticity of all proposed exhibits will be deemed admitted unless written objection to them is filed prior to the hearing or unless good cause is shown at the hearing for failure to file such written objection.
(a) Parties are encouraged to engage in voluntary discovery procedures. For good cause shown under appropriate circumstances, but not as a matter of course, the judge may entertain motions for permission for discovery and issue orders including orders—(1) to submit testimony upon oral examination or written interrogatories before an officer authorized to administer oaths, (2) to permit service of written interrogatories upon the opposing party, (3) to produce and permit inspection of designated documents, and (4) to permit service upon the opposing parties of a request for the admission of specified facts.
(b) Motions for discovery shall be granted only to the extent and upon such terms as the judge in his/her discretion considers to be consistent with and essential to the objective of securing a just and inexpensive determination of the merits of the citation without unnecessary delay.
(c) In connection with any discovery procedure, the judge may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression or undue burden or expense, including limitations on the scope, method, time and place for discovery, and provisions for protecting the secrecy of confidential information or documents. If any party fails to comply with a discovery order of the judge, without an excuse or explanation satisfactory to the judge, the judge may decide the fact or issue relating to the material requested to be produced, or the subject matter of the probable testimony, in accordance with claims of the other party in interest or in accordance with the other evidence available to the judge, or make such other ruling as he/she determines just and proper.
The judge may require parties and participants to file written statements of position before the hearing begins. The judge may also require the parties to submit trial briefs.
Hearings for the receipt of evidence will be held only in cases where issues
(a) Formal rules of evidence shall not apply, but rules or principles designed to assure production of the most probative evidence available do apply. Testimony shall be given orally under oath or affirmation; but the judge, in his/her discretion, may require or permit the direct testimony of any witness to be prepared in writing and served on all parties in advance of the hearing. Such testimony may be adopted by the witness at the hearing and filed as part of the record.
(b) All witnesses shall be available for cross-examination and, at the discretion of the judge, may be cross-examined without regard to the scope of direct examination as to any matter which is relevant and material to the proceeding.
(c) When testimony is taken by deposition, an opportunity shall be given, with appropriate notice, for all parties to cross-examine the witness. Objections to any testimony or evidence presented shall be deemed waived unless raised at the time of the deposition.
(d) Witnesses appearing before the judge shall be paid the same fees and mileage that are paid witnesses in the courts of the United States. Witnesses whose depositions are taken and the persons taking the same shall be entitled to the same fees as are paid for like services in the courts of the United States. Witness fees and mileage shall be paid by the party requesting the witness to appear, and the person taking a deposition shall be paid by the party requesting the taking of the deposition.
The judge may exclude evidence which is immaterial, irrelevant, unreliable, or unduly repetitious.
Objections to evidence or testimony shall be timely and may briefly state the grounds.
Exceptions to rulings of the judge are unnecessary. It is sufficient that a party at the time the ruling of the judge is sought, makes known the action which he/she desires the judge to take, or his/her objection to an action taken, and his/her grounds for it.
Where official notice is taken or is to be taken of a material fact not appearing in the evidence of record, any party on timely request, shall be afforded an opportunity to question the propriety of taking notice or to rebut the fact noticed.
When a party or paticipant offers, in whole or in part, a public document, such as an official report, decision, opinion, or published scientific or economic statistical data issued by any of the executive departments, or their subdivisions, legislative agencies or committees or administrative agencies of the Federal government (including government-owned corporations), or a similar document issued by a State or local government or their agencies, and such document (or part thereof) has been shown by the offeror to be reasonably available to the public, such document need not be produced or marked for identification, but may be offered for official notice, as a public document by specifying the document or its relevant part.
An offer of proof made in connection with an objection taken to a ruling of the judge rejecting or excluding proffered oral testimony shall consist of a statement of the substance of the evidence which counsel contends would be adduced by such testimony. If the excluded evidence consists of evidence in documentary or written form or refers to documents or records, a copy of the
An affidavit is not inadmissible as such. Unless the judge fixes other time periods, affidavits shall be filed and served on the parties not later than fifteen (15) days prior to the hearing. Not less than seven (7) days prior to hearing, a party may file and serve written objections to any affidavit on the ground that he/she believes it necessary to test the truth of its assertions at hearing. In such event the assertions objected to will not be received in evidence unless the affiant is made available for cross-examination, or the judge determines that cross-examination is not necessary for the full and true disclosure of facts referred to in such assertions. Not withstanding any objection, however, affidavits may be considered in the case of any respondent who waives a hearing.
In cases in which the same or related facts are asserted to constitute noncompliance with standards or guidelines and requirements, the judge may order all related cases consolidated and may make other orders concerning the proceedings as will be consistent with the objective of securing a just and inexpensive determination of the case without unnecessary delay.
(a) In proceedings in which a citation, or part of one, seeking PER has been filed, the judge shall make necessary rulings with respect to time for filing of pleadings, the conduct of the hearing, and to all other matters. He/she shall do all other things necessary to complete the proceeding in the minimum time consistent with the objective of securing an expeditious, just and inexpensive determination of the case. The times for actions set forth in these rules shall be followed unless otherwise ordered by the judge.
(b) The judge shall determine the terms and conditions for orders of PER. These orders must be consistent with preserving the rights of all parties so as to permit the timely processing of the citation, or part of it, not requesting PER, as well as consistent with the provisions and objectives of the Architectural Barriers Act and section 502 of the Rehabilitation Act. In issuing an order for PER, the judge shall make the following specific findings of fact and conclusions of law—
(1) The Executive Director is likely to succeed on the merits of the proceedings;
(2) The threatened injury or violation outweighs the threatened harm to the respondent if PER is granted; and
(3) Granting PER is in the public interest.
(c) The judge may dismiss any citation or part of a citation seeking PER when the judge finds that the timely processing of a citation not requesting PER will adequately ensure the objectives of section 502 of the Rehabilitation Act and that immediate and irreparable harm caused by noncompliance with the standards or guidelines and requirements is not occurring or about to occur.
The transcript of testimony, exhibits and all papers, documents and requests filed in the proceeding, including briefs and proposed findings and conclusions, shall constitute the record for decision.
The official transcripts of testimony, and any exhibits, briefs, or memoranda of law filed with them, shall be filed with the judge. Transcripts of testimony in hearings may be obtained from the official reporter by the parties and the public at rates not to exceed the maximum rates fixed by the contract between the A&TBCB and the reporter. Upon notice to all parties, the judge may authorize corrections to the transcript as are necessary to reflect accurately the testimony.
The judge shall fix the terms, including time, for filing post-hearing statements of position or briefs, which may contain proposed findings of fact and conclusions of law. The judge may fix a reasonable time for such filing, but this period shall not exceed thirty (30) days from the receipt by the parties of the transcript of the hearing.
(a) The judge shall issue a decision within thirty (30) days after the hearing ends or, when the parties submit posthearing briefs, within thirty (30) days after the filing of the briefs.
(b) The decision shall contain (1) all findings of fact and conclusions of law regarding all material issues of fact and law presented in the record, (2) the reasons for each finding of fact and conclusion of law, and (3) other provisions which effectuate the purposes of the Architectural Barriers Act and section 502 of the Rehabilitation Act. The decision may direct the parties to take specific action or may order the suspension or withholding of Federal funds.
(c) The decision shall be served on all parties and participants to the proceedings.
(a) No briefs or posthearing statements of position shall be required in proceedings seeking PER unless specifically ordered by the judge.
(b) In proceedings seeking PER the decision may be given orally at the close of the hearing and shall be made in writing within three (3) days after the hearing.
Any complainant or participant in a proceeding may obtain judicial review of a final order issued in a compliance proceeding.
The Executive Director, at the direction of the Board, shall bring a civil action in any appropriate United States district court to enforce, in whole or in part, any final compliance order. No member of the A&TBCB shall participate in any decision of the A&TBCB concerning a proceeding relating to the member, his/her Federal agency, or organization to which he/she is a member or in which he/she is otherwise interested.
(a) No party, participant or other person having an interest in the case shall make or cause to be made an ex parte communication to the judge with respect to the case.
(b) A request for information directed to the judge which merely inquiries about the status of a proceeding without discussing issues or expressing points of view is not deemed an ex parte communication. Communications with respect to minor procedural matters or inquires or emergency requests for extensions of time are not deemed ex parte communications prohibited by paragraph (a) of this section. Where feasible, however, such communications should be by letter, with copies delivered to all parties. Ex parte communications between a party or participant and the Executive Director with respect to securing compliance are not prohibited.
(c) In the event an ex parte communication occurs, the judge shall issue orders and take action as fairness requires. A prohibited communication in writing received by the judge shall be made public by placing it in the correspondence file of the docket in the case and will not be considered as part of the record for decision. If the prohibited communication is received orally, a memorandum setting forth its substance shall be made and filed in the correspondence section of the docket in the case. A person referred to in this memorandum may file a comment for inclusion in the docket if he/she considers the memorandum to be incorrect.
(a) Any party adversely affected by the compliance order issued by a judge
(b) Notice of motions and copies of all pleadings shall be served on all parties and participants to the original proceeding. Responses to the motion to vacate shall be filed within ten (10) days after receipt of the motion unless the judge for good cause shown grants additional time to respond.
(c) Oral arguments on the motion may be ordered by the judge. The judge shall fix the terms of the argument so that they are consistent with the objective of securing a prompt, just, and inexpensive determination of the motion.
(d) Within ten (10) days after receipt of all answers to the motion, the judge shall issue his/her decision in accordance with § 1150.102 (b) and (c).
(a) Amicable resolution is encouraged at any stage of proceedings where such resolution is consistent with the provisions and objectives of the Architectural Barriers Act and section 502 of the Rehabilitation Act.
(b) Agreements to amicably resolve pending proceedings shall be submitted by the parties and shall be accompanied by an appropriate proposed order.
(c) The Executive Director is authorized to resolve any proceeding on behalf of the A&TBCB unless otherwise specifically directed by the A&TBCB and afterwards may file appropriate stipulations or notice that the proceeding is discontinued.
If any section, subsection, paragraph, sentence, clause or phrase of these regulations is declared invalid for any reason, the remaining portions of these regulations that are severable from the invalid part shall remain in full force and effect. If a part of these regulations is invalid in one or more of its applications, the part shall remain in effect in all valid applications that are severable from the invalid applications.
29 U.S.C. 792.
The Architectural and Transportation Barriers Compliance Board was established pursuant to section 502 of the Rehabilitation Act of 1973, as amended. The agency is also known and often referred to as the “Access Board” or simply the “Board.”
The Board shall have the authority and responsibilities as set forth in section 502 of the Rehabilitation Act of 1973 (29 U.S.C. 792); section 504 of the Americans with Disabilities Act of 1990 (42 U.S.C. 12204); and section 225(e) of the Telecommunications Act of 1996 (47 U.S.C. 255(e)).
(a)
(b)
(c)
(d)
(e)
(a)
(b)
(c)
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(i)
(2) Proxies shall not be counted for purposes of establishing a quorum.
(3) If a quorum is not present, a meeting shall be held only for the purpose of discussion and no vote may be taken.
(j)
(2) Except as otherwise prescribed in the bylaws in this part, a majority vote of the members present and any proxies is necessary for action by the Board.
(3) The presiding officer shall have the same right to vote as any other member.
(4) Any member may give his or her directed or undirected proxy to any other Board member, present at the meeting. Proxies shall be given in writing and submitted to the Chair prior to or at the meeting. A directed proxy shall be voided as to a specific issue if the question on which the vote is eventually taken differs from the question to which the proxy is directed.
(5) The Board may act on items of business between meetings by notational voting. At the request of the Chair, the Executive Director shall send a written ballot to each Board member describing each item submitted for notational voting. If any Board member requests discussion on an item, the ballots shall not be counted and the Chair shall place the item on the next Board meeting agenda for discussion and voting.
(k)
(a)
(i) To review and consider recommendations and proposals from the various subject matter committees;
(ii) To review and make recommendations to the Board to amend or approve the Board's bylaws; and
(iii) To request and review all committee charters.
(2)
(3)
(4)
(5)
(ii) On matters subject to Board review, liaisons are permitted to vote in the absence of their Federal member. A majority vote of the members (or liaisons) present at the meeting and any directed or undirected proxies is necessary for action by the committee.
(iii) On matters of final action, not subject to Board review, a majority vote of the membership of the committee, present at the meeting or by directed proxy, is necessary for action by the committee. In the absence of their Federal member, liaisons are permitted to cast a directed proxy only.
(b)
(2)
(3)
(4)
(5)
(c)
(d)
(e)
(f)
(g)
In order to amend the bylaws in this part, a vote of two-thirds of the membership of the Board (as fixed by statute) at the time the vote is taken shall be required. The Board shall not suspend the rules in taking any action concerning adoption, amendment or recision of the bylaws in this part except that by vote of two-thirds of the membership of the Board (as fixed by statute), an item concerning the adoption, amendment or recision of the bylaws in this part may be placed on an agenda for Board consideration at a future meeting.
E.O. 12674; 5 CFR part 735.
The maintenance of unusually high standards of honesty, integrity, impartiality, and conduct by Government employees and special Government employees is essential to assure the proper performance of the Government business and the maintenance of confidence by citizens in their Government. The avoidance of misconduct and conflicts of interest on the part of Government employees and special Government employees through informed judgment is indispensable to the maintenance of these standards. To accord with these concepts, this part sets forth the Board's regulations prescribing standards of conduct and responsibilities, and governing statements reporting employment and financial interests for employees and special Government employees.
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(a) The Chair shall designate in writing an agency ethics official and an alternate agency ethics official to serve in an acting capacity in the absence of the primary Designated Agency Ethics Official.
(b) The Designated Agency Ethics Official shall coordinate and manage the agency's ethics program, including:
(1) Serving as liaison with the Office of Government Ethics;
(2) Reviewing financial disclosure reports;
(3) Conducting ethics education and training programs;
(4) Monitoring administrative actions and sanctions; and
(5) Providing counsel and guidance on matters relating to ethical conduct to employees seeking advice on questions of conflicts of interest and other matters covered by this part.
(c) The Designated Agency Ethics Official may delegate any of the duties in paragraph (b) of this section to a deputy agency ethics official.
Violations of the regulations in this part by an employee may be cause for appropriate disciplinary action which may be in addition to any penalty prescribed by law.
An employee shall avoid any action, whether or not specifically prohibited by this subpart, which might result in, or create the appearance of:
(a) Using public office for private gain;
(b) Giving preferential treatment to any person;
(c) Impeding Government efficiency or economy;
(d) Losing complete independence or impartiality;
(e) Making a Government decision outside official channels; or
(f) Affecting adversely the confidence of the public in the integrity of the Government.
(a) Except as provided in paragraphs (b) and (f) of this section, an employee shall not solicit or accept, directly or indirectly any gift, gratuity, favor, entertainment, loan, or any other thing of monetary value, from a person who:
(1) Has, or is seeking to obtain, contractual or other business or financial relations with his/her agency;
(2) Conducts operations or activities that are regulated by his/her agency; or
(3) Has interests that may be substantially affected by the performance or nonperformance of his/her official duty.
(b) The prohibitions of paragraph (a) of this section do not apply in the following cases:
(1) Obvious family or personal relationships, such as those between the parents, children, or spouse of the employee and the employee, when the circumstances make it clear that it is
(2) Acceptance of food and refreshments of nominal value on infrequent occasions in the ordinary course of a luncheon or dinner meeting or other meeting or on an inspection tour where an employee may properly be in attendance;
(3) The acceptance of loans from banks or other financial institutions on customary terms to finance proper and usual activities of employees, such as home mortgage loans; and
(4) The acceptance of unsolicited advertising or promotional material, such as pens, pencils, note pads, calendars, and other items of nominal intrinsic value.
(c) [Reserved]
(d) An employee shall not solicit a contribution from another employee for a gift to an official superior, make a donation as a gift to an official superior, or accept a gift from an employee receiving less pay than himself/herself (5 U.S.C. 7351). However, this paragraph does not prohibit a voluntary gift of nominal value or donation in a nominal amount made on a special occasion such as marriage, illness, or retirement.
(e) An employee shall not accept a gift, present, decoration, or other thing from a foreign government unless authorized by Congress as provided by the Constitution and in section 7342 of title 5 U.S.C.
(f) Neither this section nor § 1152.735-203 precludes an employee from receipt of bona fide reimbursement, unless prohibited by law, for expenses of travel and such other necessary subsistence as is compatible with this part for which no Government payment or reimbursement is made. However, this paragraph does not allow an employee to be reimbursed, or payment to be made on his/her behalf, for excessive personal living expenses, gifts, entertainment, or other personal benefits, nor does it allow an employee to be reimbursed by a person for travel on official business under agency orders when reimbursement is proscribed by Decision B-128527 of the Comptroller General dated March 7, 1967 (46 Comp. Gen. 689).
(a) An employee shall not engage in outside employment or other outside activity not compatible with the full and proper discharge of the duties and responsibilities of his/her Government employment. Incompatible activities include but are not limited to:
(1) Acceptance of a fee, compensation, gift, payment of expense, or any other thing of monetary value in circumstances in which acceptance may result in, or create the appearance of, conflicts of interest; or
(2) Outside employment which tends to impair his/her mental or physical capacity to perform his/her Government duties and responsibilities in an acceptable manner.
(b) An employee shall not receive any salary or anything of monetary value from a private source as compensation for his/her services to the Government (18 U.S.C. 209).
(c) Employees are encouraged to engage in teaching, lecturing, and writing that is not prohibited by law, the Executive order, Office of Personnel Management or Office of Government Ethics regulations, or this part. However, an employee shall not, either for or without compensation, engage in teaching, lecturing, or writing, including teaching, lecturing or writing for the purpose of the special preparation of a person or class of persons for an examination of the Office of Personnel Management or Board of Examiners for the Foreign Service, that depends on information obtained as a result of his/her Government employment, except when that information has been made available to the general public or will be made available on request, or when the Chair or his/her designee gives written authorization for use of nonpublic information on the basis that the use is in the public interest. In addition, an employee who is a Presidential appointee covered by section 401(a) of the order shall not receive compensation or anything of monetary value for any consultation, lecture, discussion, writing, or appearance the subject matter of which is devoted substantially to the responsibilities, programs, or operations of his/her agency,
(d) [Reserved]
(e) This section does not preclude an employee from:
(1) [Reserved]
(2) Participation in the activities of national or State political parties not proscribed by law.
(3) Participation in the affairs of or acceptance of an award for a meritorious public contribution or achievement given by a charitable, religious, professional, social, fraternal, nonprofit educational and recreational, public service, or civic organization.
(a) An employee shall not have a direct or indirect financial interest that conflicts substantially, or appears to conflict substantially, with his/her Government duties and responsibilities.
(b) An employee shall not engage in, directly or indirectly, a financial transaction as a result of, or primarily relying on, information obtained through his/her Government employment.
(c) This section does not preclude an employee from having a financial interest or engaging in financial transactions to the same extent as a private citizen not employed by the Government so long as it is not prohibited by law, Executive Order, Office of Personnel Management or Office of Government Ethics regulations, or this part.
(d) The following financial or economic interests described below are hereby exempted from the prohibition of 18 U.S.C. 208(a) as being too remote or too inconsequential to affect the integrity of an employee's services in a matter: The stock, bond or policy holdings of an employee in a mutual fund, investment company, bank or insurance company which owns an interest in an entity involved in the matter, provided that in the case of a mutual fund, investment company or bank the fair value of such stock or bond holding does not exceed 1 percent of the value of the reported assets of the mutual fund, investment company, or bank.
An employee shall not directly or indirectly use, or allow the use of Government property of any kind, including property leased to the Government, for other than officially approved activities. An employee has a positive duty to protect and conserve Government property, including equipment, supplies, and other property entrusted or issued to him/her.
For the purpose of furthering a private interest, an employee shall not, except as provided in § 1152.735-203(c), directly or indirectly use, or allow the use of, official information obtained through or in connection with his/her Government employment which has not been made available to the general public.
An employee shall pay each just financial obligation in a proper and timely manner, especially one imposed by law such as Federal, State or local taxes. For the purpose of this section, a
An employee shall not participate while on Government-owned or leased property or while on duty for the Government, in any gambling activity including the operation of a gambling device, in conducting a lottery or pool, in a game for money or property, or in selling or purchasing a numbers slip or
(a) Necessitated by an employee's law enforcement duties; or
(b) Under section 3 of Executive Order 10927, namely solicitations conducted by organizations composed of employees among their own members for organizational support or for benefit or welfare funds for their members, or similar Board-approved activities.
An employee shall not engage in criminal, infamous, dishonest, immoral, or notoriously disgraceful conduct, or other conduct prejudicial to the Government.
Each employee shall acquaint himself/herself with each statute that relates to his/her ethical and other conduct as an employee of the Board and of the Government. The attention of each employee is directed to the following statutory provisions:
(a) House Concurrent Resolution 175, 85th Congress, 2d session, 72 Stat. B12, the “Code of Ethics for Government Service”.
(b) Chapter II of title 18 U.S.C., relating to bribery, graft, and conflicts of interest, as appropriate to the employees concerned.
(c) The prohibition against lobbying with appropriated funds (18 U.S.C. 1913).
(d) The prohibitions against disloyalty and striking (5 U.S.C. 7311, 18 U.S.C. 1918).
(e) The provision relating to honoraria for speeches (2 U.S.C. 441 (i)).
(f) The prohibitions against (1) the disclosure of classified information (18 U.S.C. 798, 50 U.S.C. 783); and (2) the disclosure of confidential information (18 U.S.C. 1905).
(g) The provision relating to the habitual use of intoxicants to excess (5 U.S.C. 7352).
(h) The prohibition against the misuse of Government vehicle (31 U.S.C. 638a(c)).
(i) The prohibition against the misuse of the franking privilege (18 U.S.C. 1719).
(j) The prohibition against the use of deceit in an examination of personnel action in connection with Government employment (18 U.S.C. 1917).
(k) The prohibition against fraud or false statements in a Government matter (18 U.S.C. 1001).
(l) The prohibition against mutilating or destroying a public record (18 U.S.C. 2071).
(m) The prohibition against counterfeiting and forging transportation requests (18 U.S.C. 508).
(n) The prohibitions against (1) embezzlement of government, money or property (18 U.S.C. 641); (2) failing to account for public money (18 U.S.C. 643); and (3) embezzlement of the money or property of another person in the possession of an employee by reason of his/her employment (18 U.S.C. 654).
(o) The prohibition against unauthorized use of documents relating to claims from or by the Government (18 U.S.C. 285).
(p) The prohibitions against political activities in subchapter III of chapter 73 of title 5 U.S.C. and 18 U.S.C. 602, 603, 607, and 608.
(q) The prohibition against an employee acting as the agent of a foreign principal registered under the Foreign Agents Registration Act (18 U.S.C. 219).
A special Government employee shall not use his/her Government employment for a purpose that is, or gives the appearance of being, motivated by the desire for private gain for himself/herself or another person, particularly one with whom he/she has family business, or financial ties.
(a) A special Government employee shall not use inside information obtained as a result of his/her Government employment for private gain for himself or another person either by direct action on his/her part or by counsel, recommendation, or suggestion to another person, particularly one with whom he/she has family, business, or financial ties. For the purpose of this section,
(b) Special Government employees may teach, lecture, or write in a manner consistent with the provisions of § 1152.735-203(c).
A special Government employee shall not use his/her Government employment to coerce, or give the appearance of coercing, a person to provide financial benefit to himself/herself or another person, particularly one with whom he/she has family, business, or financial ties.
(a) Except as provided in paragraph (b) of this section, a special Government employee, while so employed or in connection with such employment, shall not receive or solicit from a person having business with the agency anything of value as a gift, gratuity, loan, entertainment, or favor for himself/herself or another person, particularly one with whom he/she has family, business, or financial ties.
(b) The exceptions of § 1152.735-202(b) which are applicable to employees, are also applicable to special Government employees.
Each special Government employee shall acquaint himself/herself with each statute that relates to his/her ethical and other conduct as a special Government employee of his/her agency and of the Government. The attention of each special Government employee is directed to those statutory provisions listed in § 1152.735-210 that are applicable to special Government employees.
(a) Financial statements of all employees shall be filed with the Designated Agency Ethics Official. The Designated Agency Ethics Official shall review statements of employment and financial interests submitted under this part.
(b) When a statement submitted under this part or information from other sources indicates a conflict between the interests of an employee or special Government employee and the performance of his/her service for the Government, the employee, or special Government employee concerned shall be provided an opportunity to explain the conflict or appearance of conflict.
(c) When after explanation by the employee or special Government employee involved, the conflict or appearance of conflict is not resolved by the Designated Agency Ethics Official, the information concerning the conflict or appearance of conflict shall be reported to the Chair for appropriate administrative action.
(d) When after consideration of the explanation of the employee or special Government employee, the Chair decides that remedial action is required, he/she shall take immediate action to end the conflicts or appearance of conflicts of interest.
(e) Remedial action, whether disciplinary or otherwise, shall be effected in accordance with any applicable laws, Executive orders and regulations and may include, but is not limited to:
(1) Changes in assigned duties;
(2) Divestment by the employee or special Government employee of his/her conflicting interest;
(3) Disciplinary action; or
(4) Disqualification for a particular assignment.
Except as provided in § 1152.735-404, the following categories of employees shall submit statements of employment and financial interest:
(a) Employees classified at GS-13 or above who are in positions identified by the Chair as positions the incumbents of which are responsible for making a Government decision or taking a Government action in regard to:
(1) Contracting or procurement;
(2) Administering or monitoring grants or subsidies;
(3) Regulating or auditing private or other non-Federal enterprise; or
(4) Other activities where the decision or action has an economic impact on the interest of any non-Federal enterprise.
(b) Employees classified at GS-13 or above who are in positions which the Chair has determined have duties and responsibilities which require the incumbent to report employment and financial interests in order to avoid involvement in a possible conflicts-of-interests situation and carry out the purpose of law, Executive order, Office of Personnel Management and Office of Government Ethics regulations and this part.
(c) Employees classified below GS-13 who are in positions which otherwise meet the criteria in paragraph (b) or (c) of this section. These positions have been approved by the Chair and the Office of Government Ethics as exceptions that are essential to protect the integrity of the Government and avoid employees involvement in a possible conflict-of-interest situation.
Employees have the opportunity for review through the Board's grievance procedures of a complaint by an employee that his/her position has been improperly included under these regulations as one requiring the submission of a statement of employment and financial interests.
(a) Employees in positions that meet the criteria in § 1152.735-402(b) may be excluded from the reporting requirement when the Chair determines that:
(1) The duties of a position are such that the likelihood of the incumbent's involvement in a conflict-of-interest situation is remote;
(2) The duties of a position are at such a level of responsibility that the submission of a statement of employment and financial interests is not necessary because of the degree of supervision and review over the incumbent or the inconsequential effect on the integrity of the Government;
(3) The use of an alternative procedure approved by the Board is adequate to prevent possible conflicts of interest.
(b) Federal members and the Designated Agency Ethics Official are subject to separate reporting requirements under the Ethics in Government Act of 1978, Pub. L. 95-521. The Designated Agency Ethics Official shall obtain and review a copy of the financial statement filed by Federal members with their respective agency. The Office of Government Ethics will review the financial statement filed by the Designated Agency Ethics Official.
A statement of employment and financial interest required pursuant to this subpart shall contain, at a minimum, the information required by the formats prescribed by the Office of Personnel Management in the Federal Personnel Manual.
An employee required to submit a statement of employment and financial interest pursuant to § 1152.735-402 shall submit that statement to the Designated Agency Ethics Official not later than:
(a) Ninety days after the effective date of this part if employed on or before that effective date; or
(b) Thirty days after his/her entrance on duty, but not earlier than 90 days after the effective date, if appointed after that effective date.
(a) Changes in, or additions to, the information contained in an employee's statement shall be reported to the Designated Agency Ethics Official in a supplementary statement as of May 15 each year. If no changes or additions occur, a negative report is required.
(b) Notwithstanding the filing of the annual report required by this section, each employee shall at all times avoid acquiring a financial interest or engaging in outside employment or other activity that could result, or taking an action that would result, in a violation of the conflict-of-interest provisions of section 208 of title 18 U.S.C., or subpart B of this part.
The interest of a spouse, minor child, or other member of an employee's immediate household is considered to be an interest of the employee. For the purpose of this section,
If any information required to be included on a statement or supplementary statement, including holdings placed in trust, is not known to the employee but is known to another person, the employee shall request that other person to submit information in his/her behalf.
This subpart does not require an employee to report information relating to his/her connection with, or interest in, a professional society or a charitable, religious, social, fraternal, recreational, public service, civic, or political organization or a similar organization not conducted as a business enterprise. For the purpose of this section, educational and other institutions doing research and development or related work involving grants of money from or contracts with the Government are deemed “business enterprises” and are required to be included in an employee's statement.
(a) Each statement of employment and financial interest, and each supplementary statement, shall be kept confidential.
(b) The Designated Agency Ethics Official is responsible for maintaining the statements in confidence and shall not allow access to, or allow information to be disclosed from, a statement except to carry out the purpose of this part.
(c) Information from a statement may not be disclosed except as the Office of Government Ethics or the Chair may determine for good cause shown.
The statements and supplementary statements required of employees pursuant to this part are in addition to, and not in substitution for, or in derogation of, any similar requirement imposed by law, order, or regulation. The submission of a statement or supplementary statement by an employee does not permit him/her or any other person to participate in a matter in which his/her or the other person's participation is prohibited by law, order, or regulation.
(a) Except as provided in paragraph (c) of this section, each Public member
(1) Other employment; and
(2) Financial interests in a partnership, organization or entity which have an interest in obtaining, or has obtained, a grant or contract from the Board or which is a party to a complaint pending before the Board.
(b) The provisions of §§ 1152.735-409 through 1152.735-412 are applicable to a Public member and special Government employee who is required to file a statement.
(c) The Chair or his/her designee may waive the provisions of this section for the submission of a statement in the case of a special Government employee who is not a consultant or an expert when the Board finds that the duties of the position held by that special Government employee are of a nature and at such level or responsibility that the submission of the statement by the incumbent is not necessary to protect the integrity of the Government. For the purpose of this paragraph,
(1) A physician, dentist, or allied medical specialist whose services are procured to provide care and service to patients; or
(2) A veterinarian whose services are procured to provide care and service to animals.
(3) A specialist appointed for intermittent confidential intelligence consultation of brief duration.
(d) A statement of employment and financial interest required to be submitted under this section shall be submitted not later than the time of employment of the special Government employee. Each Public member and special Government employee shall keep his/her statement current throughout his/her employment with the Board by the submission of supplementary statements to be filed no later than May 15th of each year. If no changes or additions occur, a negative report is required.
29 U.S.C. 794.
The purpose of this part is to effectuate section 119 of the Rehabilitation, Comprehensive Service, and Developmental Disabilities Amendments of 1978, which amended section 504 of the Rehabilitation Act of 1973 to prohibit discrimination on the basis of handicap in programs or activities conducted by Executive agencies or the United States Postal Service.
This part applies to all programs or activities conducted by the agency.
For purposes of this part, the term—
As used in this definition, the phrase:
(1)
(i) Any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological; musculoskeletal; special sense organs; respiratory, including speech organs; cardiovascular; reproductive; digestive; genitourinary; hemic and lymphatic; skin; and endocrine; or
(ii) Any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities. The term
(2)
(3)
(4)
(i) Has a physical or mental impairment that does not substantially limit major life activities but is treated by the agency as constituting such a limitation;
(ii) Has a physical or mental impairment thaqt substantially limits major life activities only as a result of the attitudes of others toward such impairment; or
(iii) Has none of the impairments defined in subparagraph (1) of this definition but is treated by the agency as having such an impairment.
(1) With respect to any agency program or activity under which a person is required to perform services or to achieve a level of accomplishment, a handicapped person who meets the essential eligibility requirements and who can achieve the purpose of the program or activity without modifications in the program or activity that the agency can demonstrate would result in a fundamantal alteration in its nature; and
(2) With respect to any other program or activity, a handicapped person who meets the essential eligibility requirements for participation in, or receipt of benefits from, that program or activity.
(3) Qualified Handicapped Person is defined for purposes of employment in 29 CFR 1613.702(f) which is made applicable to this part by § 1154.140.
(a) By July 6, 1988, the agency shall evaluate its current policies and practices, and the effects thereof, that do not or may not meet the requirements of this part, and, to the extent modification of any such policies and practices is required, the agency shall proceed to make the necessary modifications.
(b) The agency shall provide an opportunity to interested persons, including handicapped persons or organizations representing handicapped persons, to participate in the self-evaluation process by submitting comments (both oral and written).
(c) The agency shall, for all least three years following completion of the evaluation required under paragraph (a) of this section, maintain on file and make available for public inspection—
(1) A description of areas examined and any problems identified; and
(2) A description of any modifications made.
The agency shall make available to employees, applicants, participants, beneficiaries, and other interested persons such information regarding the provisions of this part and its applicability to the programs or activities conducted by the agency, and made such information available to them in such manner as the agency head finds necessary to apprise effectively such persons of the protections against discrimination assured them by section 504 and this regulation.
(a) No qualified handicapped person shall, on the basis of handicap, be excluded from participation in, be denied the benefits of, or otherwise be subjected to discrimination under any program or activity conducted by the agency.
(b)(1) The agency, in providing any aid, benefit, or service, may not, directly or through contractual, licensing, or other arrangements, on the basis of handicap—
(i) Deny a qualified handicapped person the opportunity to participate in or benefit from the aid, benefit, or service;
(ii) Afford a qualified handicapped person an opportunity to participate in or benefit from the aid, benefit, or service that is not equal to that afforded others;
(iii) Provide a qualified handicapped person with an aid, benefit, or service that is not as effective in affording equal opportunity to obtain the same result, to gain the same benefit, or to reach the same level of achievement as that provided to others;
(iv) Provide different or separate aid, benefits, or servcies to handicapped persons or to any class of handicapped persons than is provided to others unless such action is necessary to provide qualified handicapped persons with aid, benefits, or services that are as effective as those provided to others;
(v) Deny a qualified handicapped person the opportunity to participate as a member of planning or advisory boards; or
(vi) Otherwise limit a qualified handicapped person in the enjoyment of any right, privilege, advantage, or opportunity enjoyed by others receiving the aid, benefit, or service.
(2) The agency may not deny a qualified handicapped person the opportunity to participate in programs or activities that are not separate or different, despite the existence of permissibly separate of different programs or activities.
(3) The agency may not, directly or through contractual or other arrangements, utilize criteria or methods of administration the purpose or effect of which would—
(i) Subject qualified handicapped persons to discrimination on the basis of handicap; or
(ii) Defeat or substantially impair accomplishment of the objectives of a program or activity with respect to handicapped persons.
(4) The agency may not, in determining the site or location of a facility, make selections the purpose or effect of which would—
(i) Exclude handicapped persons from, deny them the benefits of, or otherwise subject them to discrimination under any program or activity conducted by the agency; or
(ii) Defeat or substantially impair the accomplishment of the objectives of a program or activity with respect to handicapped persons.
(5) The agency, in the selection of procurement contractors, may not use criteria that subject qualified handicapped persons to discrimination on the basis of handicap.
(c) The exclusion of nonhandicapped persons from the benefits of a program limited by Federal statute or Executive order to handicapped persons or the exclusion of a specific class of handicapped persons from a program limited by Federal statute or Executive order to a different class of handicapped persons is not prohibited by this part.
(d) The agency shall administer programs and activities in the most integrated setting appropriate to the needs of qualified handicapped persons.
No qualified handicapped person shall, on the basis of handicap, be subjected to discrimination in employment under any program or activity conducted by the agency. The definitions, requirements, and procedures of section 501 of the Rehabilitation Act of 1973 (29 U.S.C. 791), as established by the Equal Employment Opportunity Commission in 29 CFR part 1613, shall apply to employment in federally-conducted programs or activities.
Except as otherwise provided in § 1154.150, no qualified handicapped person shall, because the agency's facilities are inaccessible to or unusable by handicapped persons, be denied the benefits of, be excluded from participation in, or otherwise be subjected to discrimination under any program or activity conducted by the agency.
(a)
(1) Necessarily require the agency to make each of its existing facilities accessible to and usable by handicapped persons; or
(2) Require the agency to take any action that it can demonstrate would result in a fundamental alteration in the nature of a program or activity or in undue financial and administrative burdens. In those circumstances where agency personnel believe that the proposed action would fundamentally alter the program or activity or would result in undue financial and administrative burdens, the agency has the burden of proving that compliance with § 1154.150(a) would result in such alteration or burdens. The decision that compliance would result in such alteration or burdens must be made by the agency head or his/her designee after considering all agency resources available for use in the funding and operation of the conducted program or activity, and must be accompanied by a written statement of the reasons for reaching that conclusion. If an action would result in such an alteration or such burdens, the agency shall take any other action that would not result in such an alteration or such burdens but would nevertheless ensure that
(b)
(c)
(d)
(1) Identify physical obstacles in the agency's facilities that limit the accessibility of its programs or activities to handicapped persons;
(2) Describe in detail the methods that will be used to make the facilities accessible;
(3) Specify the schedule for taking the steps necessary to achieve compliance with this section and, if the time period of the transition plan is longer than one year, identify steps that will be taken during each year of the transition period; and
(4) Indicate the official responsible for implementatin of the plan.
Each building or part of a building that is constructed or altered by, on behalf of, or for the use of the agency shall be designed, constructed, or altered so as to be readily accessible to and usable by handicapped persons. The definitions, requirements and standards of the Architectural Barriers Act (42 U.S.C. 4151-4157), as established in 41 CFR 101-19.600 to 101-19.607, apply to buildings covered by this section.
(a) The agency shall take appropriate steps to ensure effective communication with applicants, participants, personnel of other Federal entities, and members of the public.
(1) The agency shall furnish appropriate auxiliary aids where necessary to afford a handicapped person an equal opportunity to participate in, and enjoy the benefits of, the program or activity conducted by the agency.
(i) In determining what type of auxiliary aid is necessary, the agency shall give primary consideration to the requests of the handicapped person.
(ii) The agency need not provide individually prescribed devices, readers for personal use or study, or other devices of a personal nature.
(2) Where the agency communicates with applicants, beneficiaries, and members of the public by telephone, telecommunications devices for deaf persons (TDD's) or equally effective
(b) The agency shall ensure that interested person, including persons with impaired vision, speech or hearing, can obtain information as to the existence and location of accessible services, activities, and facilities.
(c) The agency shall provide signage at a primary entrance to each of its inaccessible facilities, directing users to a location at which they can obtain information about accessible facilities. The international symbol for accessibility shall be used at each primary entrance of an accessible facility.
(d) This section does not require the agency to take any action that it can demonstrate would result in a fundamental alteration in the nature of a program or activity or in undue financial and administrative burdens.
(a) Except as provided in paragraph (b) of this section, this section applies to all allegations of discrimination on the basis of handicap in programs or activities conducted by the agency.
(b) The agency shall process complaints alleging violations of section 504 with respect to employment according to the procedures established by the Equal Employment Opportunity Commission in 29 CFR part 1613 pursuant to section 501 of the Rehabilitation Act of 1973 (29 U.S.C. 791).
(c) Responsiblity for implementation and operation of this section shall be vested in the Equal Employment Opportunity Director.
(d) Complaints may be delivered or mailed to the Equal Employment Opportunity Director, ATBCB, 330 C Street, SW., Rm. 1010, Washington, DC 20202.
(e) The agency shall accept and investigate all complete complaints over which it has jurisdiction. All complete complaints must be filed within 180 days of the alleged act of discrimination. The agency may extend this time period for good cause.
(f) If the Equal Employment Opportunity Director receives a complaint that is not complete, he or she shall notify the complainant, within 30 days of receipt of the incomplete complaint, that additional information is needed. If the complainant fails to complete the complaint within 30 days of receipt of this notice, the Equal Employment Opportunity Director shall dismiss the complaint without prejudice, and shall notify the complainant of such dismissal.
(g) If the agency receives a complaint over which it does not have jurisdiction, it shall promptly notify the complainant and shall make reasonable efforts to refer the complaint to the appropriate government entity.
(h) The agency shall notify the Director of the Compliance and Enforcement Division of any complaint alleging that a building or facility is not readily accessible to and usable by handicapped persons. The Director of the Compliance and Enforcement Division shall determine whether or not the building or facility is subject to the Architectural Barriers Act of 1968, as amended (42 U.S.C. 4151-4157), or section 502 of the Rehabilitation Act of 1973, as amended (29 U.S.C. 792).
(i) Within 180 days of the receipt of a complete complaint over which it has jurisdiction, the agency shall notify the complainant of the results of the investigation in a letter containing—
(1) Findings of fact and conclusions of law;
(2) A description of a remedy for each violation found; and
(3) A notice of the right to appeal.
(j) Appeals of the findings of fact and conclusions of law or remedies must be filed by the complainant within 90 days of receipt from the agency of the letter required by § 1154.170(g). The agency may extend this time for good cause.
(k) Timely appeals shall be accepted and processed by the head of the agency.
(l) The head of the agency shall notify the complainant of the results of the appeal within 60 days of the receipt of the request. If the head of the agency determines that additional information is needed from the complainant, he/she shall have 60 days from the date of receipt of the additional information to make his/her determination on the appeal.
(m) The time limits cited in paragraphs (i) and (l) of this section may be extended with the permission of the Assistant Attorney General.
(n) The agency may delegate its authority for conducting complaint investigations to other Federal agencies, except that the authority for making the final determination may not be delegated to another agency.
Sec. 502(b), Rehabilitation Act of 1973 (29 U.S.C. 792(b)(7)), as amended by the Rehabilitation, Comprehensive Services, and Developmental Disabilities Amendments of 1978 (sec. 119, Pub. L. 602, 92 Stat. 2982, and the Rehabilitation Act Amendments of 1986 (Pub. L. 99-506, 100 Stat. 1801).
The purpose of this part is to implement section 502(b)(7) of the Rehabilitation Act of 1973 (29 U.S.C. 792(b)(7)), as amended, which requires the Architectural and Transportation Barriers Compliance Board to establish minimum guidelines and requirements for standards issued under the Architectural Barriers Act of 1968 (42 U.S.C. 4151
(a)
(1)
(2)
(3)
(b)
(1) The intended use for which either—
(i) Will require that such building or facility be accessible to the public, or
(ii) May result in employment or residence therein of physically handicapped persons; and
(2) Which is—
(i) To be constructed or altered by or on behalf of the United States;
(ii) To be leased in whole or in part by the United States after August 12, 1968, and before January 1, 1977, after construction or alteration in accordance with plans and specifications of the United States;
(iii) To be leased in whole or in part by the United States on or after January 1, 1977;
(iv) To be financed in whole or in part by a grant or loan made by the United States after August 12, 1968, if the building or facility may be subject to standards for design, construction, or alteration issued under the law authorizing the grant or loan; or
(v) To be constructed under the authority of the National Capital Transportation Act of 1960, the National Capital Transportation Act of 1965, or Title III of the Washington Metropolitan Area Transit Regulation Compact.
(c)
(1) Any privately owned residential structure, unless it is leased by the Federal government on or after January 1, 1977, for subsidized housing programs; or
(2) Any building or facility on a military installation designed and constructed primarily for use by able-bodied military personnel.
(d)
As used in this part, the term:
(1) Used for human passage and
(2) Equipped with a power-operated mechanism and controls that open and close the door upon receipt of a momentary actuating signal.
(1) The assessed valuation of a building or facility as recorded in the assessor's office of the municipality and as equalized at one hundred percent (100%) valuation—
The one hundred percent (100%) equalized assessed value shall be based upon the state's most recent determination of the particular city's or town's assessment ratio.
Town X has an assessment ratio of forty percent (40%), and the particular building in question is assessed at $200,000.00. To determine the equalized assessed value of this building, divide $200,000.00 by .40, and the equalized assessed value equals $500,000.00.);
(2) The replacement cost; or
(3) The fair market value.
(1) Used for human passage; and
(2) With a mechanism that helps to open the door, or relieve the opening resistance of a door, upon the activation of a switch or a continued force applied to the door itself.
(a) These guidelines and requirements are the minimum guidelines and requirements for standards issued under the Architectural Barriers Act by the Administrator of General Services, Secretary of Housing and Urban Development, Secretary of Defense, and Postmaster General.
(b) Standards which conform to or exceed the provisions of the guidelines shall be deemed in compliance with the guidelines and requirements.
(c) Each standard-setting agency is encouraged to issue standards which follow the format of these guidelines and requirements. However, standards which differ in format from these guidelines and requirements but are otherwise consistent with the guidelines and requirements shall be deemed in compliance with these guidelines and requirements.
These minimum guidelines and requirements and those standards published by the four standard-setting agencies under the Architectural Barriers Act of 1968, as amended, may be used by other governmental and non-governmental entities, along with other sources, to develop their own standards.
(a) These guidelines and requirements shall be liberally construed to carry out the purposes and provisions of the Architectural Barriers Act and section 502 of the Rehabilitation Act.
(b) Words importing the singular number may extend and be applied to the plural and vice versa. However, unless otherwise specified in the guidelines and requirements, each element or space of a particular building or facility shall comply with the guidelines and requirements.
(c) Use of the imperative mood,
(d) The provisions in the minimum guidelines and requirements are based upon adult dimensions and anthropometrics.
(e) Dimensions that are not marked “minimum” or “maximum” are absolute, unless otherwise indicated in the text or captions. All dimensions are subject to conventional building tolerances for field conditions.
If any section, subsection, paragraph, sentence, clause, or phrase of these guidelines and requirements is declared
Except as otherwise provided in this part, all new construction of buildings and facilities shall comply with the minimum requirements set forth below. The citations beginning with “ANSI” in the provisions which follow refer to the sections of the American National Standard, ANSI Al17.1-1986, “Providing Accessibility and Usability for Physically Handicapped People” by the American National Standards Institute, Inc. This incorporation by reference was approved by the Director of the Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Copies may be obtained from the American National Standards Institute, Inc., 1430 Broadway, New York, NY 10018. Copies may be inspected at the office of the U.S. Architectural and Transportation Barriers Compliance Board, 1111 18th Street, NW., Suite 501, Washington, DC or at the Office of the Federal Register, 800 North Capitol Street, NW., suite 700, Washington,DC.
(a) Accessible route. At least one accessible route shall comply with ANSI A117.1-1986, section 4.3, Accessible Routes (Incorporated by reference, see this paragraph (a).)
(1) Required accessible route(s) shall connect an accessible building entrance with:
(i) Transportation facilities located within the property line of a given site, including passenger loading zones, public transportation facilities, taxi stands, and parking;
(ii) Public streets and sidewalks;
(iii) Other accessible buildings, facilities, elements, and spaces that are on the same site; and
(iv) All accessible spaces, rooms, and elements within the building or facility.
(2) Where fire code provisions require more than one means of egress from any space or room, then more than one accessible means of egress complying with ANSI A117.1-1986, section 4.3.10 shall be provided for handicapped people and shall be arranged so as to be readily accessible from all accessible rooms and spaces (Incorporated by reference, see § 1190.3l(a).)
(b)
(1) If any parking is provided, for employees or visitors, or both, each such parking area shall comply with ANSI A117.1-1986 section 4.6 Parking Spaces and Passenger Loading Zones (Incorporated by reference, see paragraph (a) of this section), and the following table:
(i)
(ii)
(2) If passenger loading zones are provided, at least one passenger loading zone shall comply with ANSI A117.1-1986 section 4.6 Parking Spaces and Passenger Loading Zones (Incorporated by reference, see paragraph (a) of this section).
(c)
(d)
(e)
(f)
(1)
(2)
(g)
(h)
(i)
(2) Within a building or facility, at least one door at each accessible entrance to the accessible space shall comply with ANSI A117.1-1986, section 4.13, Doors (incorporated by reference, see paragraph (a) of this section).
(3) Each door required by ANSI A117.1-1986, section 4.3.10, Egress (incorporated by reference, see paragraph (a) of this section), shall comply with ANSI A117.1-1986, section 4.13, Doors (incorporated by reference, see paragraph (a) of this section).
(4) Each door that is an element of an accessible route shall comply with ANSI A117.1-1986, section 4.13, Doors (incorporated by reference, see paragraph (a) of this section).
(j)
(k)
(l)
(m)
(n)
(o)
The ATBCB has funded research in the area of detectable tactile surface treatments. The research findings were inconclusive and, therefore, recommended no mandatory requirements at this time. Further information is being developed through additional research on detectable materials and fact-finding on current applications, particularly on transit platforms. Technical assistance materials including information about additional detectable cues (sound and resiliency) not discussed in ANSI are available from the ATBCB, 1111 18th Street, NW, Suite 501, Washington, DC 20036, (202) 653-7834 (voice or TDD).
(p)
(q)
(2) At least one of the public telephones complying with ANSI A117.1-1986, section 4.29, Telephones (incorporated by reference, see paragraph (a) of this section), shall be equipped with a volume control. The installation of additional volume controls is encouraged and these may be installed on any public telephone provided.
(3) Signage. [Reserved]
(r)
(s)
(2) Assembly areas with audio-amplification systems shall have a listening system complying with ANSI A117.1-1986, section 4.31, to assist a reasonable number of people but no fewer than two, with severe hearing loss. For assembly areas without amplification systems and for spaces used primarily as meeting and conference rooms, a permanently installed or portable listening system shall be provided. This requirement may be satisfied by use of a portable system that requires little or no installation. If portable systems are used for conference and meeting rooms, the system may serve more than one room.
(3) If performing areas are provided, accessible routes shall comply with ANSI A117.1-1986, section 4.3, Accessible Routes, to performing areas, including but not limited to stages, arena floors, dressing rooms, locker rooms, and other rooms and spaces required for use of the assembly area. (ANSI 4.33.5)
(i)
(ii) [Reserved]
(t)
(u)
(1) Comply with the requirements of this section as it applies to public use and common use areas and areas where handicapped persons may be employed, except as follows:
(i) Elevators: Where provided, elevators shall comply with ANSI A117.1-1986, section 4.10 (incorporated by reference, see paragraph (a) of this section). All elevator control buttons shall be at least
(A) No accessible dwelling units are located above or below the accessible grade level; and
(B) At least one of each type of common area and amenity provided for use of residents and visitors is available at the accessible grade level.
(ii) Entrances: Entrances complying with ANSI 4.14 shall be provided as necessary to achieve access to and egress from buildings and facilities. EXCEPTION: In projects consisting of one-to-four family dwellings where accessible entrances would be extraordinarily costly due to site conditions or local code restrictions, accessible entrances are required only to those buildings containing accessible dwelling units.
(iii) Common Areas: At least one of each type of common area and amenity in each project shall be accessible and shall be located on an accessible route to any accessible dwelling unit.
(2) Provide dwelling units or sleeping accommodations complying with ANSI 4.32, Dwelling Units, in accordance with the following table:
(v)
(1) Comply with the requirements of this section, as it applies to public use and common use areas and areas where handicapped persons may be employed; and
(2) Provide patient rooms and patient toilet rooms complying with Part 6 of UFAS in accordance with the following table:
Each addition to an existing building or facility shall comply with § 1190.31, New construction, except as follows:
(a)
(b)
(c)
(d)
(e)
(a)
(1) If existing elements, spaces, essential features, or common areas are altered, then each such altered element, space, feature, or area shall comply with the applicable provisions of § 1190.31, Accessible buildings and facilities: New construction, except as noted in paragraph (a)(2) of this section.
(2) Exceptions to the requirements for (a)(1) of this section for existing buildings or facilities are:
(i)
(ii)
(B) Where existing shaft or structural elements prohibit strict compliance with ANSI A117.1-1986, section 4.10.9 (incorporated by reference, see § 1190.31(a)), then the minimum floor area dimensions may be reduced by the minimum amount necessary, but in no case shall they be less than 48 in by 48 in (1220 mm by 1220 mm).
(iii)
(B) If existing thresholds measure
(iv)
(v)
(B) In alterations where it is structurally impracticable to alter all performing areas to be on an accessible route, then at least one of each type shall be made accessible.
(3) If power-driven vertical access equipment (
(4) If alterations of single elements, when considered together, amount to an alteration of a space of a building or facility, the entire space shall be made accessible.
(b) Where a building or facility is vacated and it is totally altered, then it shall comply with § 1190.31 Accessible buildings and facilities: New construction, except to the extent where it is structurally impracticable.
(c) Where substantial alteration occurs to a building or facility, then each element or space that is altered or added shall comply with the applicable provisions of § 1190.31, Accessible buildings and facilities: New construction, except to the extent where it is structurally impracticable and the altered building or facility shall contain:
(1) At least one accessible route complying with ANSI A1l7.1-1986, section 4.3, Accessible Routes (incorporated by reference, see § 1190.31(a)), and paragraph (a) of this section;
(2) At least one accessible entrance complying with ANSI A117.1-1986, section 4.14, Entrances (incorporated by reference, see § 1190.31(a).). If additional accessible entrances are altered, then they shall comply with paragraph (a)(1) of this section; and
(3) The following toilet facilities, whichever number is greater:
(i) At least one toilet facility for each sex in the altered building complying with ANSI A117.1-1986, section 4.22, Toilet Rooms, Bathrooms, Bathing Facilities, and Shower Rooms (incorporated by reference, see § 1190.31(a));
(ii) At least one toilet facility for each sex on each substantially altered floor, where such facilities are provided, complying with ANSI A117.1-1986, section 4.22, Toilet Rooms, Bathrooms, Bathing Facilities, and Shower Rooms (incorporated by reference, see § 1190.31(a));
(4)
(5)
(6)
(i) ANSI A117.1-1986, sections 4.6, Parking Spaces and Passenger Loading Zones, as modified by § 1190.31(s)(1);
(ii) ANSI A117.1-1986, section 4.15, Drinking Fountains and Water Coolers;
(iii) ANSI A117.1-1986, section 4.23, Storage;
(iv) ANSI A117.1-1986, section 4.26, Alarms;
(v) ANSI A117.1-1986, section 4.29, Telephones;
(vi) ANSI A117.1-1986, section 4.30, Seating, Tables and Work Surfaces;
(vii) ANSI 4.31, Auditorium and Assembly Areas, as modified by § 1190.31(s)(1). (Incorporated by reference, see § 1190.31(a).)
(7)
(a) Buildings or facilities or portions thereof leased by the Federal Government shall comply with § 1190.31, New construction, or shall incorporate the features listed in § 1190.33(c), Alterations. Where both types of buildings are available for leasing, reasonable preference must be given to buildings or facilities complying with § 1190.31, New construction.
(b) If space complying with paragraph (a) of this section is not available, space may be leased only if the space meets, or is altered to meet, the following conditions:
(1) At least one accessible route is provided from an accessible entrance complying with § 1190.120, Entrances, to those areas in which the principal activities for which the building or facility was leased are conducted. Separate accessible routes may be provided to areas serving different groups of users (e.g., the public, employees).
(2) The accessible route shall comply with the requirements of § 1190.50, Walks, floors, and accessible routes, and provide access to whatever accessible facilities are either required or provided, such as accessible toilets.
(i) Toilet facilities, to the extent required for the ready intended use of the building or facility, shall be provided as follows—
(A) Where more than one toilet for each sex is provided in a building or facility, at least one toilet facility which complies with § 1190.150, Toilet and bathing facilities, shall be provided for each sex on each floor having toilets; or
(B) In a building or facility providing only one toilet for each sex, either one unisex toilet or one toilet for each sex complying with § 1190.150 shall be provided; or
(C) In a building or facility where only one toilet is provided, one unisex toilet complying with § 1190.150 shall be provided.
(ii) Parking facilities, if a parking area is included within the lease, shall be provided complying with § 1190.60, Parking and passenger loading zones, to the extent feasible.
(3) Where an agency determines that an area does not require the provision of toilets or parking facilities for the users or occupants of that area, nothing in this section shall be construed to require the provision of any such facilities.
(4) Consideration shall be given to providing accessible elements and spaces in each altered building or facility complying with:
(i) Section 1190.160 Drinking fountains and water coolers;
(ii) Section 1190.180 Alarms;
(iii) Section 1190.210 Telephones;
(iv) Section 1190.220 Seating, tables, and work surfaces;
(v) Section 1190.230 Assembly areas; and
(vi) Section 1190.240 Storage.
(c) If space leased in accordance with the requirements of paragraph (a) or (b) of this section is subsequently altered, then the alterations shall comply with the requirements of § 1190.33, Alterations.
(d) If space leased in accordance with the requirements of paragraph (a) or (b) of this section is increased by construction of an addition, the addition shall comply with § 1190.32, Additions, to the extent it is leased by the Federal Government.
(e) If leased space at the time of leasing meets past or present state or local codes or the recommended standards of the American National Standards Institute (ANSI) A117.1 for accessibility to physically handicapped people, and provides the features required by this section, the space may be used as is or altered to comply with the technical requirements of paragraph (a) or (b) of this section.
(f) Once leased space in an existing building is accessible or is made accessible hereunder, no new accessibility alterations shall be required under this subpart except where alterations or additions are made to the building which are covered by paragraphs (c) and (d) of this section.
(g)
(i) If the lease is necessary for officials servicing natural or human-made disasters on an emergency basis;
(ii) If the space is used on an intermittent basis; or
(iii) If the occupancy of the space is for no more than twelve months. If delays occur during the twelve months, the short-term lease may be extended for no more than an additional 12 months.
(2) Mechanical rooms and other spaces which normally are not frequented by the public or employees with handicaps of the occupant agency or which by nature of their use are not required to be accessible are excepted from this section.
Features, elements and spaces required to be accessible by § 1190.31, § 1190.32, or § 1190.33 shall meet the technical requirements specified in the provisions of sections 4.2 through 4.32 of ANSI A117.1-1986, “American National Standard for Buildings and Facilities—Providing Accessibility and Usability for Physically Handicapped People,” which is incorporated herein by reference, except as noted herein. This incorporation by reference was approved by the Director of the Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Copies may be obtained from the American National Standards Institute, Inc., 1430 Broadway, New York, NY 10018. Copies may be inspected at the office of the U.S. Architectural and Transportation Barriers Compliance Board, 1111 18th Street, NW., Suite 501, Washington, DC or at the Office of the Federal Register, 800 North Capitol Street, NW., suite 700, Washington, DC.
(a) In addition to ANSI A117.1-1986, section 4.10 (incorporated by reference, see § 1190.31(a)), Elevators, the following requirement is added: Hall call buttons provided under ANSI A117.1-1986, section 4.10.3 shall be raised or flush.
(b) Under ANSI A117.1-1986, section 4.7 (incorporated by reference, see § 1190.31(a)), Curb Ramps, and ANSI 117.1-1986, section 4.7.7, Warning Textures, and ANSI 117.1-1986, section 4.7.12, Uncurbed Intersections, shall not apply.
(c) In addition to ANSI A117.1-1986, section 4.28, Signage (incorporated by reference, see § 1190.31(a)), there is added the requirement that interior tactile signage identifying rooms and spaces be located alongside the door on
The requirements specified in the Uniform Federal Accessibility Standards (UFAS) in sections 5, Restaurants and Cafeterias; 6, Health Care; 7, Mercantile; 8, Libraries; and 9, Postal Facilities, are deemed to satisfy minimum guidelines and requirements of the ATBCB for accessibility standards for those building and facility types.
42 U.S.C. 12204.
The accessibility guidelines for buildings and facilities for purposes of the Americans with Disabilities Act are found in the appendix to this part. The guidelines are issued to assist the Department of Justice and Department of Transportation to establish accessibility standards to implement the legislation.
The detectable warning requirements contained in §§ 4.7.7, 4.29.5, and 4.29.6 of Appendix A to this part are suspended temporarily until July 26, 1998.
Americans With Disabilities Act of 1990, Pub. L. 101-336, 104 Stat. 370 (42 U.S.C. 12204).
This part provides minimum guidelines and requirements for accessibility standards to be issued by the Department of Transportation in 49 CFR part 37 for transportation vehicles required to be accessible by the Americans with Disabilities Act (ADA) of 1990 (42 U.S.C. 12101
Departures from particular technical and scoping requirements of these guidelines by use of other designs and technologies are permitted where the alternative designs and technologies used will provide substantially equivalent or greater access to and usability
(a)
(b)
(c)
(d)
(1)
(2)
(3)
(4)
(5)
(a) New, used or remanufactured buses and vans (except over-the-road buses covered by subpart G of this part), to be considered accessible by regulations issued by the Department of Transportation in 49 CFR part 37, shall comply with the applicable provisions of this subpart.
(b) If portions of the vehicle are modified in a way that affects or could affect accessibility, each such portion shall comply, to the extent practicable, with the applicable provisions of this subpart. This provision does not require that inaccessible buses be retrofitted with lifts, ramps or other boarding devices.
(a)
(b)
(2)
(ii)
(3)
(4)
(5)
(6)
(7)
(8)
(9)
(10)
(11)
(12)
(13)
(c)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(d)
(2)
(3)
(4)
(5)
(6)
(7)
(a)
(b)
(c)
(a) Each vehicle shall contain sign(s) which indicate that seats in the front of the vehicle are priority seats for persons with disabilities, and that other passengers should make such seats available to those who wish to use them. At least one set of forward-facing seats shall be so designated.
(b) Each securement location shall have a sign designating it as such.
(c) Characters on signs required by paragraphs (a) and (b) of this section shall have a width-to-height ratio between 3:5 and 1:1 and a stroke width-to-height ratio between 1:5 and 1:10, with a minimum character height (using an upper case “X”) of
(a) Interior handrails and stanchions shall permit sufficient turning and maneuvering space for wheelchairs and other mobility aids to reach a securement location from the lift or ramp.
(b) Handrails and stanchions shall be provided in the entrance to the vehicle in a configuration which allows persons with disabilities to grasp such assists from outside the vehicle while starting to board, and to continue using such assists throughout the boarding and fare collection process. Handrails shall have a cross-sectional diameter between 1
(c) For vehicles in excess of 22 feet in length, overhead handrail(s) shall be
(d) Handrails and stanchions shall be sufficient to permit safe boarding, on-board circulation, seating and standing assistance, and alighting by persons with disabilities.
(e) For vehicles in excess of 22 feet in length with front-door lifts or ramps, vertical stanchions immediately behind the driver shall either terminate at the lower edge of the aisle-facing seats, if applicable, or be “dog-legged” so that the floor attachment does not impede or interfere with wheelchair footrests. If the driver seat platform must be passed by a wheelchair or mobility aid user entering the vehicle, the platform, to the maximum extent practicable, shall not extend into the aisle or vestibule beyond the wheel housing.
(f) For vehicles in excess of 22 feet in length, the minimum interior height along the path from the lift to the securement location shall be 68 inches. For vehicles of 22 feet in length or less, the minimum interior height from lift to securement location shall be 56 inches.
(a) Any stepwell or doorway immediately adjacent to the driver shall have, when the door is open, at least 2 foot-candles of illumination measured on the step tread or lift platform.
(b) Other stepwells and doorways, including doorways in which lifts or ramps are installed, shall have, at all times, at least 2 foot-candles of illumination measured on the step tread, or lift or ramp, when deployed at the vehicle floor level.
(c) The vehicle doorways, including doorways in which lifts or ramps are installed, shall have outside light(s) which, when the door is open, provide at least 1 foot-candle of illumination on the street surface for a distance of 3 feet perpendicular to all points on the bottom step tread outer edge. Such light(s) shall be located below window level and shielded to protect the eyes of entering and exiting passengers.
Where provided, the farebox shall be located as far forward as practicable and shall not obstruct traffic in the vestibule, especially wheelchairs or mobility aids.
(a) Vehicles in excess of 22 feet in length, used in multiple-stop, fixed-route service, shall be equipped with a public address system permitting the driver, or recorded or digitized human speech messages, to announce stops and provide other passenger information within the vehicle.
(b) [Reserved]
(a) Where passengers may board or alight at multiple stops at their option, vehicles in excess of 22 feet in length shall provide controls adjacent to the securement location for requesting stops and which alerts the driver that a mobility aid user wishes to disembark. Such a system shall provide auditory and visual indications that the request has been made.
(b) Controls required by paragraph (a) of this section shall be mounted no higher than 48 inches and no lower than 15 inches above the floor, shall be operable with one hand and shall not require tight grasping, pinching, or twisting of the wrist. The force required to activate controls shall be no greater than 5 lbf (22.2 N).
(a) Where destination or route information is displayed on the exterior of a vehicle, each vehicle shall have illuminated signs on the front and boarding side of the vehicle.
(b) Characters on signs required by paragraph (a) of this section shall have a width-to-height ratio between 3:5 and 1:1 and a stroke width-to-height ratio between 1:5 and 1:10, with a minimum character height (using an upper case “X”) of 1 inch for signs on the boarding side and a minimum character height of 2 inches for front “headsigns”, with “wide” spacing (generally, the space between letters shall be
(a) New, used and remanufactured rapid rail vehicles, to be considered accessible by regulations issued by the Department of Transportation in 49 CFR part 37, shall comply with this subpart.
(b) If portions of the vehicle are modified in a way that affects or could affect accessibility, each such portion shall comply, to the extent practicable, with the applicable provisions of this subpart. This provision does not require that inaccessible vehicles be retrofitted with lifts, ramps or other boarding devices.
(c) Existing vehicles which are retrofitted to comply with the “one-car-per-train rule” of 49 CFR 37.93 shall comply with §§ 1192.55, 1192.57(b), 1192.59 and shall have, in new and key stations, at least one door complying with § 1192.53(a)(1), (b) and (d). Removal of seats is not required. Vehicles previously designed and manufactured in accordance with the accessibility requirements of 49 CFR part 609 or Department of Transportation regulations implementing section 504 of the Rehabilitation Act of 1973 that were in effect before October 7, 1991, and which can be entered and used from stations in which they are to be operated, may be used to satisfy the requirements of 49 CFR 37.93.
(a)
(2) If doorways connecting adjoining cars in a multi-car train are provided, and if such doorway is connected by an aisle with a minimum clear width of 30 inches to one or more spaces where wheelchair or mobility aid users can be accommodated, then such doorway shall have a minimum clear opening of 30 inches to permit wheelchair and mobility aid users to be evacuated to an adjoining vehicle in an emergency.
(b)
(c)
(d)
(2)
(3)
(a) Each vehicle shall contain sign(s) which indicate that certain seats are priority seats for persons with disabilities, and that other passengers should make such seats available to those who wish to use them.
(b) Characters on signs required by paragraph (a) of this section shall have a width-to-height ratio between 3:5 and 1:1 and a stroke width-to-height ratio between 1:5 and 1:10, with a minimum character height (using an upper case “X”) of
(a) Handrails and stanchions shall be provided to assist safe boarding, on-board circulation, seating and standing assistance, and alighting by persons with disabilities.
(b) Handrails, stanchions, and seats shall allow a route at least 32 inches wide so that at least two wheelchair or mobility aid users can enter the vehicle and position the wheelchairs or mobility aids in areas, each having a minimum clear space of 48 inches by 30 inches, which do not unduly restrict movement of other passengers. Space to accommodate wheelchairs and mobility aids may be provided within the normal area used by standees and designation of specific spaces is not required. Particular attention shall be given to ensuring maximum maneuverability immediately inside doors. Ample vertical stanchions from ceiling to seat-back rails shall be provided. Vertical stanchions from ceiling to floor shall not interfere with wheelchair or mobility aid user circulation and shall be kept to a minimum in the vicinity of doors.
(c) The diameter or width of the gripping surface of handrails and stanchions shall be 1
Floor surfaces on aisles, places for standees, and areas where wheelchair and mobility aid users are to be accommodated shall be slip-resistant.
(a)(1)
(2)
(b) [Reserved]
(a)
(b)
(a) New, used and remanufactured light rail vehicles, to be considered accessible by regulations issued by the Department of Transportation in 49 CFR part 37, shall comply with this subpart.
(b)(1) Vehicles intended to be operated solely in light rail systems confined entirely to a dedicated right-of-way, and for which all stations or stops are designed and constructed for revenue service after the effective date of standards for design and construction issued pursuant to subpart C of 49 CFR part 37, shall provide level boarding and shall comply with §§ 1192.73(d)(1) and 1192.85.
(2) Vehicles designed for, and operated on, pedestrian malls, city streets, or other areas where level boarding is not practicable shall provide wayside or car-borne lifts, mini-high platforms, or other means of access in compliance with § 1192.83 (b) or (c).
(c) If portions of the vehicle are modified in a way that affects or could affect accessibility, each such portion shall comply, to the extent practicable, with the applicable provisions of this
(d) Existing vehicles retrofitted to comply with the “one-car-per-train rule” at 49 CFR 37.93 shall comply with §§ 1192.75, 1192.77(c), 1192.79(a) and 1192.83(a) and shall have, in new and key stations, at least one door which complies with § 1192.73 (a)(1), (b) and (d). Vehicles previously designed and manufactured in accordance with the accessibility requirements of 49 CFR part 609 or Department of Transportation regulations implementing section 504 of the Rehabilitation Act of 1973 that were in effect before October 7, 1991, and which can be entered and used from stations in which they are to be operated, may be used to satisfy the requirements of 49 CFR 37.93.
(a)
(2) If doorways connecting adjoining cars in a multi-car train are provided, and if such doorway is connected by an aisle with a minimum clear width of 30 inches to one or more spaces where wheelchair or mobility aid users can be accommodated, then such doorway shall have a minimum clear opening of 30 inches to permit wheelchair and mobility aid users to be evacuated to an adjoining vehicle in an emergency.
(b)
(c)
(d)
(2)
(3)
(4)
(a) Each vehicle shall contain sign(s) which indicate that certain seats are priority seats for persons with disabilities, and that other passengers should make such seats available to those who wish to use them.
(b) Where designated wheelchair or mobility aid seating locations are provided, signs shall indicate the location and advise other passengers of the need to permit wheelchair and mobility aid users to occupy them.
(c) Characters on signs required by paragraph (a) or (b) of this section shall have a width-to-height ratio between 3:5 and 1:1 and a stroke width-to-height ratio between 1:5 and 1:10, with a minimum character height (using an upper case “X”) of
(a) Handrails and stanchions shall be sufficient to permit safe boarding, on-board circulation, seating and standing assistance, and alighting by persons with disabilities.
(b) At entrances equipped with steps, handrails and stanchions shall be provided in the entrance to the vehicle in a configuration which allows passengers to grasp such assists from outside the vehicle while starting to board, and to continue using such handrails or stanchions throughout the boarding process. Handrails shall have a cross-sectional diameter between 1
(c) At all doors on level-entry vehicles, and at each entrance accessible by lift, ramp, bridge plate or other suitable means, handrails, stanchions, passenger seats, vehicle driver seat platforms, and fare boxes, if applicable, shall be located so as to allow a route at least 32 inches wide so that at least two wheelchair or mobility aid users can enter the vehicle and position the wheelchairs or mobility aids in areas, each having a minimum clear space of 48 inches by 30 inches, which do not unduly restrict movement of other passengers. Space to accommodate wheelchairs and mobility aids may be provided within the normal area used by standees and designation of specific spaces is not required. Particular attention shall be given to ensuring maximum maneuverability immediately inside doors. Ample vertical stanchions from ceiling to seat-back rails shall be provided. Vertical stanchions from ceiling to floor shall not interfere with wheelchair or mobility aid circulation and shall be kept to a minimum in the vicinity of accessible doors.
(a) Floor surfaces on aisles, step treads, places for standees, and areas where wheelchair and mobility aid users are to be accommodated shall be slip-resistant.
(b) All thresholds and step edges shall have a band of color(s) running the full width of the step or threshold which contrasts from the step tread and riser or adjacent floor, either light-on-dark or dark-on-light.
(a) Any stepwell or doorway with a lift, ramp or bridge plate immediately adjacent to the driver shall have, when the door is open, at least 2 footcandles of illumination measured on the step tread or lift platform.
(b) Other stepwells, and doorways with lifts, ramps or bridge plates, shall have, at all times, at least 2 footcandles of illumination measured on the step tread or lift or ramp, when deployed at the vehicle floor level.
(c) The doorways of vehicles not operating at lighted station platforms shall have outside lights which provide at least 1 footcandle of illumination on the station platform or street surface for a distance of 3 feet perpendicular to all points on the bottom step tread. Such lights shall be located below window level and shielded to protect the eyes of entering and exiting passengers.
(a)(1)
(2)
(b)
(2)
(ii)
(iii)
(3)
(4)
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Where vehicles operate in a high-platform, level-boarding mode, devices or systems shall be provided to prevent, deter or warn individuals from inadvertently stepping off the platform
(a) Each vehicle shall be equipped with an interior public address system permitting transportation system personnel, or recorded or digitized human speech messages, to announce stations and provide other passenger information. Alternative systems or devices which provide equivalent access are also permitted.
(b) [Reserved]
(a) New, used and remanufactured commuter rail cars, to be considered accessible by regulations issued by the Department of Transportation in 49 CFR part 37, shall comply with this subpart.
(b) If portions of the car are modified in such a way that it affects or could affect accessibility, each such portion shall comply, to the extent practicable, with the applicable provisions of this subpart. This provision does not require that inaccessible cars be retrofitted with lifts, ramps or other boarding devices.
(c)(1) Commuter rail cars shall comply with §§ 1192.93(d) and 1192.109 for level boarding wherever structurally and operationally practicable.
(2) Where level boarding is not structurally or operationally practicable, commuter rail cars shall comply with § 1192.95.
(d) Existing vehicles retrofitted to comply with the “one-car-per-train rule” at 49 CFR 37.93 shall comply with §§ 1192.93(e), 1192.95(a) and 1192.107 and shall have, in new and key stations, at least one door on each side from which passengers board which complies with § 1192.93(d). Vehicles previously designed and manufactured in accordance with the program accessibility requirements of section 504 of the Rehabilitation Act of 1973, or implementing regulations issued by the Department of Transportation that were in effect before October 7, 1991, and which can be entered and used from stations in which they are to be operated, may be used to satisfy the requirements of 49 CFR 37.93.
(a)
(2) If doorways connecting adjoining cars in a multi-car train are provided, and if such doorway is connected by an aisle with a minimum clear width of 30 inches to one or more spaces where wheelchair or mobility aid users can be accommodated, then such doorway shall have, to the maximum extent practicable in accordance with the regulations issued under the Federal Railroad Safety Act of 1970 (49 CFR parts 229 and 231), a clear opening of 30 inches.
(b)
(c)
(d)
(2)
(3)
(4)
(e)
(a)(1)
(2)
(b)
(2)
(ii)
(iii)
(3)
(4)
(5)
(6)
(7)
(8)
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(d)
(a) Where provided, handrails or stanchions within the passenger compartment shall be placed to permit sufficient turning and maneuvering space for wheelchairs and other mobility aids to reach a seating location, complying with § 1192.95(d), from an accessible entrance. The diameter or width of the gripping surface of interior handrails and stanchions shall be 1
(b) Where provided, handrails or stanchions shall be sufficient to permit safe boarding, on-board circulation, seating and standing assistance, and alighting by persons with disabilities.
(c) At entrances equipped with steps, handrails or stanchions shall be provided in the entrance to the car in a configuration which allows passengers to grasp such assists from outside the car while starting to board, and to continue using such assists throughout the boarding process, to the extent permitted by 49 CFR part 231.
(a) Floor surfaces on aisles, step treads, places for standees, and areas where wheelchair and mobility aid users are to be accommodated shall be slip-resistant.
(b) All thresholds and step edges shall have a band of color(s) running the full width of the step or threshold which contrasts from the step tread and riser or adjacent floor, either light-on-dark or dark-on-light.
(a) Any stepwell or doorway with a lift, ramp or bridge plate shall have, when the door is open, at least 2 footcandles of illumination measured on the step tread, ramp, bridge plate, or lift platform.
(b) The doorways of cars not operating at lighted station platforms shall have outside lights which, when the door is open, provide at least 1 footcandle of illumination on the station platform surface for a distance of 3 feet perpendicular to all points on the bottom step tread edge. Such lights shall be shielded to protect the eyes of entering and exiting passengers.
(a) Each car shall be equipped with an interior public address system permitting transportation system personnel, or recorded or digitized human
(b) [Reserved]
(a) Each car shall contain sign(s) which indicate that certain seats are priority seats for persons with disabilities and that other passengers should make such seats available to those who wish to use them.
(b) Characters on signs required by paragraph (a) shall have a width-to-height ratio between 3:5 and 1:1 and a stroke width-to-height ratio between 1:5 and 1:10, with a minimum character height (using an upper case “X”) of
(a) If a restroom is provided for the general public, it shall be designed so as to allow a person using a wheelchair or mobility aid to enter and use such restroom as specified in paragraphs (a) (1) through (5) of this section.
(1) The minimum clear floor area shall be 35 inches by 60 inches. Permanently installed fixtures may overlap this area a maximum of 6 inches, if the lowest portion of the fixture is a minimum of 9 inches above the floor, and may overlap a maximum of 19 inches, if the lowest portion of the fixture is a minimum of 29 inches above the floor, provided such fixtures do not interfere with access to the water closet. Fold-down or retractable seats or shelves may overlap the clear floor space at a lower height provided they can be easily folded up or moved out of the way.
(2) The height of the water closet shall be 17 inches to 19 inches measured to the top of the toilet seat. Seats shall not be sprung to return to a lifted position.
(3) A grab bar at least 24 inches long shall be mounted behind the water closet, and a horizontal grab bar at least 40 inches long shall be mounted on at least one side wall, with one end not more than 12 inches from the back wall, at a height between 33 inches and 36 inches above the floor.
(4) Faucets and flush controls shall be operable with one hand and shall not require tight grasping, pinching, or twisting of the wrist. The force required to activate controls shall be no greater than 5 lbf (22.2 N). Controls for flush valves shall be mounted no more than 44 inches above the floor.
(5) Doorways on the end of the enclosure, opposite the water closet, shall have a minimum clear opening width of 32 inches. Doorways on the side wall shall have a minimum clear opening width of 39 inches. Door latches and hardware shall be operable with one hand and shall not require tight grasping, pinching, or twisting of the wrist.
(b) Restrooms required to be accessible shall be in close proximity to at least one seating location for persons using mobility aids and shall be connected to such a space by an unobstructed path having a minimum width of 32 inches.
Where vehicles operate in a high-platform, level-boarding mode, and where between-car bellows are not provided, devices or systems shall be provided to prevent, deter or warn individuals from inadvertently stepping off the platform between cars. Appropriate devices include, but are not limited to, pantograph gates, chains, motion detectors or other suitable devices.
(a) New, used and remanufactured intercity rail cars, to be considered accessible by regulations issued by the Department of Transportation in 49 CFR part 37, shall comply with this subpart to the extent required for each type of car as specified below.
(1) Single-level rail passenger coaches and food service cars (other than single-level dining cars) shall comply with §§ 1192.113 through 1192.123. Compliance with § 1192.125 shall be required only to the extent necessary to meet the requirements of paragraph (d) of this section.
(2) Single-level dining and lounge cars shall have at least one connecting doorway complying with § 1192.113(a)(2), connected to a car accessible to persons using wheelchairs or mobility aids, and at least one space complying with § 1192.125(d) (2) and (3), to provide table service to a person who wishes to remain in his or her wheelchair, and space to fold and store a wheelchair for a person who wishes to transfer to an existing seat.
(3) Bi-level dining cars shall comply with §§ 1192.113(a)(2), 1192.115(b), 1192.117(a), and 1192.121.
(4) Bi-level lounge cars shall have doors on the lower level, on each side of the car from which passengers board, complying with § 1192.113, a restroom complying with § 1192.123, and at least one space complying with § 1192.125(d) (2) and (3) to provide table service to a person who wishes to remain in his or her wheelchair and space to fold and store a wheelchair for a person who wishes to transfer to an existing seat.
(5) Restrooms complying with § 1192.123 shall be provided in single-level rail passenger coaches and food service cars adjacent to the accessible seating locations required by paragraph (d) of this section. Accessible restrooms are required in dining and lounge cars only if restrooms are provided for other passengers.
(6) Sleeper cars shall comply with §§ 1192.113 (b) through (d), 1192.115 through 1192.121, and 1192.125, and have at least one compartment which can be entered and used by a person using a wheelchair or mobility aid and complying with § 1192.127.
(b)(1) If physically and operationally practicable, intercity rail cars shall comply with § 1192.113(d) for level boarding.
(2) Where level boarding is not structurally or operationally practicable, intercity rail cars shall comply with § 1192.125.
(c) If portions of the car are modified in a way that affects or could affect accessibility, each such portion shall comply, to the extent practicable, with the applicable provisions of this subpart. This provision does not require that inaccessible cars be retrofitted with lifts, ramps or other boarding devices.
(d) Passenger coaches or food service cars shall have the number of spaces complying with § 1192.125(d)(2) and the number of spaces complying with § 1192.125(d)(3), as required by 49 CFR 37.91.
(e) Existing cars retrofitted to meet the seating requirements of 49 CFR 37.91 shall comply with §§ 1192.113(e), 1192.123, 1192.125(d) and shall have at least one door on each side from which passengers board complying with § 1192.113(d). Existing cars designed and manufactured to be accessible in accordance with Department of Transportation regulations implementing section 504 of the Rehabilitation Act of 1973 that were in effect before October 7,1991, shall comply with § 1192.125(a).
(a)
(2) Doorways at ends of cars connecting two adjacent cars, to the maximum extent practicable in accordance with regulations issued under the Federal Railroad Safety Act of 1970 (49 CFR parts 229 and 231), shall have a clear opening width of 32 inches to permit wheelchair and mobility aid users to enter into a single-level dining car, if available.
(b)
(c)
(d)
(2)
(3)
(4)
(e)
(a) Where provided, handrails or stanchions within the passenger compartment shall be placed to permit sufficient turning and maneuvering space for wheelchairs and other mobility aids to reach a seating location, complying with § 1192.125(d), from an accessible entrance. The diameter or width of the gripping surface of interior handrails and stanchions shall be 1
(b) Where provided, handrails and stanchions shall be sufficient to permit safe boarding, on-board circulation, seating and standing assistance, and alighting by persons with disabilities.
(c) At entrances equipped with steps, handrails or stanchions shall be provided in the entrance to the car in a configuration which allows passengers to grasp such assists from outside the car while starting to board, and to continue using such assists throughout the boarding process, to the extent permitted by 49 CFR part 231.
(a) Floor surfaces on aisles, step treads and areas where wheelchair and mobility aid users are to be accommodated shall be slip-resistant.
(b) All step edges and thresholds shall have a band of color(s) running the full width of the step or threshold which contrasts from the step tread and riser or adjacent floor, either light-on-dark or dark-on-light.
(a) Any stepwell, or doorway with a lift, ramp or bridge plate, shall have, when the door is open, at least 2 footcandles of illumination measured on the step tread, ramp, bridge plate or lift platform.
(b) The doorways of cars not operating at lighted station platforms shall have outside lights which, when the door is open, provide at least 1 footcandle of illumination on the station platform surface for a distance of 3 feet perpendicular to all points on the bottom step tread edge. Such lights shall be shielded to protect the eyes of entering and exiting passengers.
(a) Each car shall be equipped with a public address system permitting transportation system personnel, or recorded or digitized human speech messages, to announce stations and provide other passenger information. Alternative systems or devices which provide equivalent access are also permitted.
(b) [Reserved]
(a) If a restroom is provided for the general public, and an accessible restroom is required by § 1192.111 (a) and (e), it shall be designed so as to allow a person using a wheelchair or mobility aid to enter and use such restroom as specified in paragraphs (a) (1) through (5) of this section.
(1) The minimum clear floor area shall be 35 inches by 60 inches. Permanently installed fixtures may overlap this area a maximum of 6 inches, if the lowest portion of the fixture is a minimum of 9 inches above the floor, and may overlap a maximum of 19 inches, if the lowest portion of the fixture is a minimum of 29 inches above the floor. Fixtures shall not interfere with access to and use of the water closet. Fold-down or retractable seats or shelves may overlap the clear floor space at a lower height provided they can be easily folded up or moved out of the way.
(2) The height of the water closet shall be 17 inches to 19 inches measured to the top of the toilet seat. Seats shall not be sprung to return to a lifted position.
(3) A grab bar at least 24 inches long shall be mounted behind the water closet, and a horizontal grab bar at least 40 inches long shall be mounted on at least one side wall, with one end not more than 12 inches from the back wall, at a height between 33 inches and 36 inches above the floor.
(4) Faucets and flush controls shall be operable with one hand and shall not require tight grasping, pinching, or twisting of the wrist. The force required to activate controls shall be no greater than 5 lbf (22.2 N). Controls for flush valves shall be mounted no more than 44 inches above the floor.
(5) Doorways on the end of the enclosure, opposite the water closet, shall have a minimum clear opening width of 32 inches. Doorways on the side wall shall have a minimum clear opening width of 39 inches. Door latches and hardware shall be operable with one hand and shall not require tight grasping, pinching, or twisting of the wrist.
(b) Restrooms required to be accessible shall be in close proximity to at least one seating location for persons using mobility aids complying with § 1192.125(d) and shall be connected to such a space by an unobstructed path having a minimum width of 32 inches.
(a)(1)
(2)
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(4)
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(a) Sleeping compartments required to be accessible shall be designed so as to allow a person using a wheelchair or mobility aid to enter, maneuver within and approach and use each element within such compartment. (See Fig. 5.)
(b) Each accessible compartment shall contain a restroom complying with § 1192.123(a) which can be entered directly from such compartment.
(c) Controls and operating mechanisms (e.g., heating and air conditioning controls, lighting controls, call buttons, electrical outlets, etc.) shall be mounted no more than 48 inches, and no less than 15 inches, above the floor and shall have a clear floor area directly in front a minimum of 30 inches by 48 inches. Controls and operating mechanisms shall be operable with one hand and shall not require tight grasping, pinching, or twisting of the wrist.
(a) New, used and remanufactured over-the-road buses, to be considered accessible by regulations issued by the Department of Transportation in 49 CFR part 37, shall comply with this subpart.
(b) Over-the-road buses covered by 49 CFR 37.7(c) shall comply with § 1192.23 and this subpart.
(a) Floor surfaces on aisles, step treads and areas where wheelchair and mobility aid users are to be accommodated shall be slip-resistant.
(b) All step edges shall have a band of color(s) running the full width of the step which contrasts from the step tread and riser, either dark-on-light or light-on-dark.
(c) To the maximum extent practicable, doors shall have a minimum clear width when open of 30 inches, but in no case less than 27 inches.
(a) Handrails and stanchions shall be provided in the entrance to the vehicle in a configuration which allows passengers to grasp such assists from outside the vehicle while starting to board, and to continue using such handrails or stanchions throughout the boarding process. Handrails shall have a cross-sectional diameter between 1
(b) Where provided within passenger compartments, handrails or stanchions shall be sufficient to permit safe on-board circulation, seating and standing assistance, and alighting by persons with disabilities.
(a) Any stepwell or doorway immediately adjacent to the driver shall have, when the door is open, at least 2 foot-candles of illumination measured on the step tread.
(b) The vehicle doorway shall have outside light(s) which, when the door is open, provide at least 1 foot-candle of illumination on the street surface for a distance of 3 feet perpendicular to all points on the bottom step tread outer edge. Such light(s) shall be located below window level and shielded to protect the eyes of entering and exiting passengers.
(a) New, used and remanufactured vehicles and conveyances for systems not covered by other subparts of this part, to be considered accessible by regulations issued by the Department of Transportation in 49 CFR part 37, shall comply with this subpart.
(b) If portions of the vehicle or conveyance are modified in a way that affects or could affect accessibility, each such portion shall comply, to the extent practicable, with the applicable provisions of this subpart. This provision does not require that inaccessible vehicles be retrofitted with lifts, ramps or other boarding devices.
(c) Requirements for vehicles and systems not covered by this part shall be determined on a case-by-case basis by the Department of Transportation in consultation with the U.S. Architectural and Transportation Barriers Compliance Board (Access Board).
(a) Automated Guideway Transit (AGT) vehicles and systems, sometimes called “people movers”, operated in airports and other areas where AGT vehicles travel at slow speed, shall comply with the provisions of §§ 1192.53 (a) through (c), and 1192.55 through 1192.61 for rapid rail vehicles and systems.
(b) Where the vehicle covered by paragraph (a) of this section will operate in an accessible station, the design of vehicles shall be coordinated with the boarding platform design such that the horizontal gap between a vehicle door at rest and the platform shall be no greater than 1 inch and the height of the vehicle floor shall be within plus or minus
(c) In stations where open platforms are not protected by platform screens, a suitable device or system shall be provided to prevent, deter or warn individuals from stepping off the platform between cars. Acceptable devices include, but are not limited to, pantograph gates, chains, motion detectors or other appropriate devices.
(d) Light rail and rapid rail AGT vehicles and systems shall comply with subparts D and C of this part, respectively.
(a) All cars for high-speed rail systems, including but not limited to those using “maglev” or high speed steel-wheel-on-steel-rail technology, and monorail systems operating primarily on dedicated rail (i.e., not used by freight trains) or guideway, in which stations are constructed in accordance with subpart C of 49 CFR part 37, shall be designed for high-platform, level boarding and shall comply with § 1192.111(a) for each type of car which is similar to intercity rail, §§ 1192.111(d), 1192.113 (a) through (c) and (e), 1192.115 (a) and (b), 1192.117 (a) and (b), 1192.121 through 1192.123, 1192.125(d), and 1192.127 (if applicable). The design of cars shall be coordinated with the boarding platform design such that the horizontal gap between a car door at rest and the platform shall be no greater than 3 inches and the height of the car floor shall be within plus or minus
(b) All other high-speed rail cars shall comply with the similar provisions of subpart F of this part.
(a) New and used trams consisting of a tractor unit, with or without passenger accommodations, and one or more passenger trailer units, including but not limited to vehicles providing shuttle service to remote parking areas, between hotels and other public accommodations, and between and within amusement parks and other recreation areas, shall comply with this section. For purposes of determining applicability of 49 CFR 37.101, 37.103, or 37.105, the capacity of such a vehicle or “train” shall consist of the total combined seating capacity of all units, plus the driver, prior to any modification for accessibility.
(b) Each tractor unit which accommodates passengers and each trailer unit shall comply with §§ 1192.25 and 1192.29. In addition, each such unit shall comply with § 1192.23 (b) or (c) and shall provide at least one space for wheelchair or mobility aid users complying with § 1192.23(d) unless the complete operating unit consisting of tractor and one or more trailers can already accommodate at least two wheelchair or mobility aid users.
This appendix contains materials of an advisory nature and provides additional information that should help the reader to understand the minimum requirements of the guidelines or to design vehicles for greater accessibility. Each entry is applicable to all subparts of this part except where noted. Nothing in this appendix shall in any way obviate any obligation to comply with the requirements of the guidelines themselves.
Slip resistance is based on the frictional force necessary to keep a shoe heel or crutch tip from slipping on a walking surface under conditions likely to be found on the surface. While the dynamic coefficient of friction during walking varies in a complex and non-uniform way, the static coefficient of friction, which can be measured in several ways, provides a close approximation of the slip resistance of a surface. Contrary to popular belief, some slippage is necessary to walking, especially for persons with restricted gaits; a
The Occupational Safety and Health Administration recommends that walking surfaces have a static coefficient of friction of 0.5. A research project sponsored by the Architectural and Transportation Barriers Compliance Board (Access Board) conducted tests with persons with disabilities and concluded that a higher coefficient of friction was needed by such persons. A static coefficient of friction of 0.6 is recommended for steps, floors, and lift platforms and 0.8 for ramps.
The coefficient of friction varies considerably due to the presence of contaminants, water, floor finishes, and other factors not under the control of transit providers and may be difficult to measure. Nevertheless, many common materials suitable for flooring are now labeled with information on the static coefficient of friction. While it may not be possible to compare one product directly with another, or to guarantee a constant measure, transit operators or vehicle designers and manufacturers are encouraged to specify materials with appropriate values. As more products include information on slip resistance, improved uniformity in measurement and specification is likely. The Access Board's advisory guidelines on Slip Resistant Surfaces provides additional information on this subject.
The material used to provide contrast should contrast by at least 70%. Contrast in percent is determined by:
In addition to the requirements for handrails and stanchions for rapid, light, and commuter rail vehicles, consideration should be given to the proximity of handrails or stanchions to the area in which wheelchair or mobility aid users may position themselves. When identifying the clear floor space where a wheelchair or mobility aid user can be accommodated, it is suggested that at least one such area be adjacent or in close proximity to a handrail or stanchion. Of course, such a handrail or stanchion cannot encroach upon the required 32 inch width required for the doorway or the route leading to the clear floor space which must be at least 30 by 48 inches in size.
The characters and background of signs should be eggshell, matte, or other non-glare finish. An eggshell finish (11 to 19 degree gloss on 60 degree glossimeter) is recommended. Characters and symbols should contrast with their background—either light characters on a dark background or dark characters on a light background. Research indicates that signs are more legible for persons with low vision when characters contrast with their background by at least 70 percent. Contrast in percent is determined by:
The greatest readability is usually achieved through the use of light-colored characters or symbols on a dark background.
The following specifications, which are required for buses (§ 1192.39), are recommended for other types of vehicles, particularly light rail vehicles, where appropriate.
1.Where destination or route information is displayed on the exterior of a vehicle, each vehicle should have illuminated signs on the front and boarding side of the vehicle.
2. Characters on signs covered by paragraph IV.B.1 of this appendix should have a width-to-height ratio between 3:5 and 1:1 and a stroke width-to-height ratio between 1:5 and 1:10, with a minimum character height (using an upper case “X”) of 1 inch for signs on the boarding side and a minimum character height of 2 inches for front “headsigns”, with “wide” spacing (generally, the space between letters shall be
The International Symbol of Accessibility should be displayed as shown in Figure 6.
There is currently no requirement that vehicles be equipped with an information system which is capable of providing the same or equivalent information to persons with hearing loss. While the Department of Transportation assesses available and soon-to-be available technology during a study to be conducted during Fiscal Year 1992, entities
Announcements may be provided in a visual format by the use of electronic message boards or video monitors.
Electronic message boards using a light emitting diode (LED) or “flip-dot” display are currently provided in some transit stations and terminals and may be usable in vehicles. These devices may be used to provide real time or pre-programmed messages; however, real time message displays require the availability of an employee for keyboard entry of the information to be announced.
Video monitor systems, such as visual paging systems provided in some airports (e.g., Baltimore-Washington International Airport), are another alternative. The Architectural and Transportation Barriers Compliance Board (Access Board) can provide technical assistance and information on these systems (“Airport TDD Access: Two Case Studies,” (1990)).
Assistive listening systems (ALS) are intended to augment standard public address and audio systems by providing signals which can be received directly by persons with special receivers or their own hearing aids and which eliminate or filter background noise. Magnetic induction loops, infra-red and radio frequency systems are types of listening systems which are appropriate for various applications.
An assistive listening-system appropriate for transit vehicles, where a group of persons or where the specific individuals are not known in advance, may be different from the system appropriate for a particular individual provided as an auxiliary aid or as part of a reasonable accommodation. The appropriate device for an individual is the type that individual can use, whereas the appropriate system for a station or vehicle will necessarily be geared toward the “average” or aggregate needs of various individuals. Earphone jacks with variable volume controls can benefit only people who have slight hearing loss and do not help people who use hearing aids. At the present time, magnetic induction loops are the most feasible type of listening system for people who use hearing aids equipped with “T-coils”, but people without hearing aids or those with hearing aids not equipped with inductive pick-ups cannot use them without special receivers. Radio frequency systems can be extremely effective and inexpensive. People without hearing aids can use them, but people with hearing aids need a special receiver to use them as they are presently designed. If hearing aids had a jack to allow a by-pass of microphones, then radio frequency systems would be suitable for people with and without hearing aids. Some listening systems may be subject to interference from other equipment and feedback from hearing aids of people who are using the systems. Such interference can be controlled by careful engineering design that anticipates feedback sources in the surrounding area.
The Architectural and Transportation Barriers Compliance Board (Access Board) has published a pamphlet on Assistive Listening Systems which lists demonstration centers across the country where technical assistance can be obtained in selecting and installing appropriate systems. The state of New York has also adopted a detailed technical specification which may be useful.
47 U.S.C. 255(e).
This part provides requirements for accessibility, usability, and compatibility of telecommunications equipment and customer premises equipment covered by the Telecommunications Act of 1996 (47 U.S.C. 255).
This part provides requirements for accessibility, usability, and compatibility of new products and existing products which undergo substantial change or upgrade, or for which new releases are distributed. This part does not apply to minor or insubstantial changes to existing products that do not affect functionality.
Terms used in this part shall have the specified meaning unless otherwise stated. Words, terms and phrases used in the singular include the plural, and use of the plural includes the singular.
Where readily achievable, telecommunications equipment and customer premises equipment shall comply with the requirements of subpart C of this part. Where it is not readily achievable to comply with subpart C of this part, telecommunications equipment and customer premises equipment shall comply with the requirements of subpart D of this part, if readily achievable.
(a) Manufacturers shall evaluate the accessibility, usability, and compatibility of telecommunications equipment and customer premises equipment and shall incorporate such evaluation throughout product design, development, and fabrication, as early and consistently as possible. Manufacturers shall identify barriers to accessibility and usability as part of such a product design and development process.
(b) In developing such a process, manufacturers shall consider the following factors, as the manufacturer deems appropriate:
(1) Where market research is undertaken, including individuals with disabilities in target populations of such research;
(2) Where product design, testing, pilot demonstrations, and product trials are conducted, including individuals with disabilities in such activities;
(3) Working cooperatively with appropriate disability-related organizations; and
(4) Making reasonable efforts to validate any unproven access solutions through testing with individuals with disabilities or with appropriate disability-related organizations that have established expertise with individuals with disabilities.
When required by § 1193.21, telecommunications equipment and customer premises equipment shall be accessible to and usable by individuals with disabilities and shall comply with §§ 1193.33 through 1193.43 as applicable.
(a) Manufacturers shall ensure access to information and documentation it provides to its customers. Such information and documentation includes user guides, installation guides for end-user installable devices, and product support communications, regarding both the product in general and the accessibility features of the product. Manufacturers shall take such other steps as necessary including:
(1) Providing a description of the accessibility and compatibility features of the product upon request, including, as needed, in alternate formats or alternate modes at no additional charge;
(2) Providing end-user product documentation in alternate formats or alternate modes upon request at no additional charge; and
(3) Ensuring usable customer support and technical support in the call centers and service centers which support their products at no additional charge.
(b) Manufacturers shall include in general product information the contact method for obtaining the information required by paragraph (a) of this section.
(c) Where manufacturers provide employee training, they shall ensure it is appropriate to an employee's function. In developing, or incorporating existing training programs, consideration shall be given to the following factors:
(1) Accessibility requirements of individuals with disabilities;
(2) Means of communicating with individuals with disabilities;
(3) Commonly used adaptive technology used with the manufacturer's products;
(4) Designing for accessibility; and
(5) Solutions for accessibility and compatibility.
Telecommunications equipment and customer premises equipment shall pass through cross-manufacturer, non-proprietary, industry-standard codes, translation protocols, formats or other information necessary to provide telecommunications in an accessible format. In particular, signal compression technologies shall not remove information needed for access or shall restore it upon decompression.
(a) No change shall be undertaken which decreases or has the effect of decreasing the net accessibility, usability, or compatibility of telecommunications equipment or customer premises equipment.
(b) Exception: Discontinuation of a product shall not be prohibited.
Input, control, and mechanical functions shall be locatable, identifiable, and operable in accordance with each of the following, assessed independently:
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(i)
All information necessary to operate and use the product, including but not limited to, text, static or dynamic images, icons, labels, sounds, or incidental operating cues, shall comply with each of the following, assessed independently:
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(i)
When required by subpart B of this part, telecommunications equipment and customer premises equipment shall be compatible with peripheral devices and specialized customer premises equipment commonly used by individuals with disabilities to achieve accessibility, and shall comply with the following provisions, as applicable:
(a)
(b)
(c)
(d)
(e)
1. This appendix provides examples of strategies and notes to assist in understanding the guidelines and are a source of ideas for alternate strategies for achieving accessibility. These strategies and notes are not mandatory. A manufacturer is not required to incorporate all of these examples or any specific example. Manufacturers are free to use these or other strategies in addressing the guidelines. The examples listed here are not comprehensive, nor does adopting or incorporating them guarantee an accessible product. They are meant to provide a useful starting point for evaluating the accessibility of a product or conceptual design and are not intended to inhibit innovation. For a more complete list of all of the published strategies to date, as well as for further information and links to on-going discussions, the reader is referred to the National Institute on Disability and Rehabilitation Research's Rehabilitation Engineering Center on Access to Telecommunications System's strategies Web site (http://trace.wisc.edu/world/telecomm/).
2. This appendix is organized to correspond to the sections and paragraphs of the guidelines in this part to which the explanatory material relates. This appendix does not contain explanatory material for every section and paragraph of the guidelines in this part.
1. Section 255 defines “readily achievable” as having the same meaning as in the Americans with Disabilities Act (ADA). However, the ADA applies the term to the removal of barriers in existing public accommodations. Not all of the factors cited in the ADA or the Department of Justice (DOJ) implementing
2. It may not be readily achievable to make every product accessible or compatible. Depending on the design, technology, or several other factors, it may be determined that providing accessibility to all products in a product line is not readily achievable. The guidelines do not require accessibility or compatibility when that determination has been made, and it is up to the manufacturer to make it. However, the assessment as to whether it is or is not readily achievable cannot be bypassed simply because another product is already accessible. For this purpose, two products are considered to be different if they have different functions or features. Products which differ only cosmetically, where such differences do not affect functionality, are not considered separate products.
3. Below is a list of factors provided as interim guidance to manufacturers to assist them in making readily achievable assessments. The factors are derived from the ADA itself and the DOJ regulations and are presented in the order in which they appear in those sources. Ultimately, the priority or weight of these factors is a compliance issue, under the jurisdiction of the Federal Communications Commission (FCC). Factors applicable to a determination of whether an action is readily achievable include: the nature and cost of the action needed to provide accessibility or compatibility; the overall resources of the manufacturer, including financial resources, technical expertise, component supply sources, equipment, or personnel; the overall financial resources of any parent corporation or entity, only to the extent such resources are available to the manufacturer; and whether the accessibility solution results in a fundamental alteration of the product.
a. One factor in making readily achievable assessments is the nature and cost of the action needed to provide accessibility or compatibility. The term readily achievable means that an action is “easily accomplishable and able to be carried out without much difficulty or expense.” The nature of the action or solution involves how easy it is to accomplish, including the availability of technology and expertise, and the ability to incorporate the solution into the production process. Obviously, knowing about an accessibility solution, even in detail, does not mean it is readily achievable for a specific manufacturer to implement it immediately. Even if it only requires substituting a different, compatible part, the new part must be ordered and integrated into the manufacturing process. A more extreme implementation might require re-tooling or redesign. On the other hand, a given solution might be so similar to the current design, development and fabrication process that it is readily achievable to implement it virtually overnight.
b. Another factor in making readily achievable assessments is the overall resources of the manufacturer, including financial resources, technical expertise, component supply sources, equipment, or personnel. The monetary resources of a manufacturer are obviously a factor in determining whether an action is readily achievable, but it may be appropriate to consider other resources, as well. For example, a company might have ample financial resources and, at first glance, appear to have no reason for not including a particular accessibility feature in a given product. However, it might be that the company lacks personnel with experience in software development, for example, needed to implement the design solution. One might reason that, if the financial resources are available, the company should hire the appropriate personnel, but, if it does, it may no longer have the financial resources to implement the design solution. One would expect that the company would develop the technical expertise over time and that eventually the access solution might become readily achievable.
c. Another factor in making readily achievable assessments is the overall financial resources of any parent corporation or entity, only to the extent such resources are available to the manufacturer. Both the ADA statutory definition of readily achievable and the DOJ regulations define the resources of a parent company as a factor. However, such resources are considered only to the extent those resources are available to the subsidiary. If, for example, the subsidiary is responsible for product design but the parent company is responsible for overall marketing, it may be appropriate to expect the parent company to address some of the marketing goals. If, on the other hand, the resources of a parent company are not available to the subsidiary, they may not be relevant. This determination would be made on a case-by-case basis.
d. A fourth factor in making readily achievable assessments is whether the accessibility solution results in a fundamental alteration of the product. This factor, derived by extension from the “undue burden” criteria of the ADA, takes into consideration the effect adding an accessibility feature might have on a given product. For example, it may not be readily achievable to add a large display for low vision users to a small pager designed to fit in a pocket, because making the device significantly larger would be a fundamental alteration of the device. On
1. This section requires manufacturers to evaluate the accessibility, usability, and compatibility of telecommunications equipment and customer premises equipment and incorporate such evaluation throughout product design, development, and fabrication, as early and consistently as possible. Manufacturers must develop a process to ensure that products are designed, developed and fabricated to be accessible whenever it is readily achievable. Since what is readily achievable will vary according to the stage of development (i.e., some things will be readily achievable in the design phase which may not be in later phases), barriers to accessibility and usability must be identified throughout product design and development, from conceptualization to production. Moreover, usability can be seriously affected even after production, if information is not provided in an effective manner.
2. The details of such an evaluation process will vary from one company to the next, so this section does not specify its structure or specific content. Instead, this section sets forth a series of factors that a manufacturer must consider in developing such a process. How, and to what extent, each of the factors is incorporated in a specific process is up to the manufacturer.
3. Different manufacturers, or even the same manufacturer at different times, have the flexibility to tailor any such plan to its own particular needs. This section does not prescribe any particular plan or content. It does not require that such a process be submitted to any entity or that it even be in writing. The requirement is outcome-oriented, and a process could range from purely conceptual to formally documented, as suits the manufacturer.
4. The goal is for designers to be aware of access and incorporate such considerations in the conceptualization of new products. When an idea is just beginning to take shape, a designer would ask, “How would a blind person use this product? How would a deaf person use it?” The sooner a manufacturer makes its design team cognizant of design issues for achieving accessibility; and proven solutions for accessibility and compatibility, the easier this process will be.
1. The guidelines do not require market research, testing or consultation, only that they be considered and incorporated to the extent deemed appropriate for a given manufacturer. If a manufacturer has a large marketing effort, involving surveys and focus groups, it may be appropriate to include persons with disabilities in such groups. On the other hand, some small companies do not do any real marketing, per se, but may just notice that a product made by XYZ Corporation is selling well and, based on this “marketing survey” it decides it can make a cheaper one. Clearly, “involvement” of persons with disabilities is not appropriate in this case.
2. A manufacturer must consider how it could include individuals with disabilities in target populations of market research. It is important to realize that any target population for which a manufacturer might wish to focus a product contains individuals with disabilities, whether it is teenagers, single parents, women between the ages of 25 and 40, or any other subgroup, no matter how narrowly defined. Any market research which excludes individuals with disabilities will be deficient.
1. Including individuals with disabilities in product design, testing, pilot demonstrations, and product trials will encourage appropriate design solutions to accessibility barriers. In addition, such involvement may result in designs which have an appeal to a broader market.
1. Working cooperatively with appropriate disability-related organizations is one of the factors that manufacturers must consider in their product design and development process. The primary reason for working cooperatively is to exchange relevant information. This is a two-way process since the manufacturer will get information on barriers to the use of its products, and may also be alerted to possible sources for solutions. The process will also serve to inform individuals with disabilities about what is readily achievable. In addition, manufacturers will have a conduit to a source of subjects for market research and product trials.
2. Manufacturers should consult with representatives from a cross-section of disability groups, particularly individuals whose disabilities affect hearing, vision, movement, manipulation, speech, and interpretation of information.
3. Because of the complex interrelationship between equipment and services in providing accessibility to telecommunications products, coordination and cooperation between manufacturers and service providers will be beneficial. Involving service providers in the product development process will encourage appropriate design solutions to accessibility barriers and permit the exchange of relevant information.
1. Manufacturers must consider how they can make reasonable efforts to validate any unproven access solutions through testing with individuals with disabilities or with appropriate disability-related organizations that have established expertise with individuals with disabilities. It is important to obtain input from persons or organizations with established expertise to ensure that input is not based merely on individual preferences or limited experience.
2. This input should be sought from representatives from a cross-section of disability groups, particularly individuals whose disabilities affect hearing, vision, movement, manipulation, speech, and interpretation of information.
1. This section requires that manufacturers provide access to information and documentation. The information and documentation includes user guides, installation guides, and product support communications, regarding both the product in general and the accessibility features of the product. Information and documentation should be provided to people with disabilities at no additional charge. Alternate formats or alternate modes of this information is also required to be available. Manufacturers should also encourage distributors of their products to establish information dissemination and technical support programs similar to those established by the manufacturer.
1. Alternate formats may include, but are not limited to, Braille, ASCII text, large print, and audio cassette recording. Alternate modes may include, but are not limited to, voice, fax, relay service, TTY, Internet posting, captioning, text-to-speech synthesis, and video description.
2. In considering how to best provide product information to people with disabilities, it is essential that information be provided in an alternate format or mode that is usable by the person needing the information. For example, some individuals who are blind might require a manual in Braille to understand and use the product effectively. Other persons who are blind may prefer this information on a computer disk. Persons with limited reading skills may need this information recorded on audio cassette tape so they can listen to the manual. Still other persons with low vision may be able to read the text version of the manual if it is provided in a larger font. Likewise, if a tutorial video is provided, persons who are deaf may require a captioned version so that they will understand how to use the product effectively. Finally, individuals who rely on TTYs will need direct TTY access to a customer service line so they can ask questions about a product like everyone else.
3. This portion of the appendix explains how to provide information in alternate formats (Braille, ASCII text, large print, audio cassette) to persons with disabilities.
4. Some persons who are blind rely on the use of Braille in order to obtain information that is typically provided in print. These persons may need Braille because of the nature of their disability (such as persons who are deaf-blind) or because of the complexity of the material. Most large urban areas have companies or organizations which can translate printed material to Braille. On the other hand, manufacturers may wish to consider producing Braille documents “in house” using a personal computer, Braille translation software, and a Braille printer. The disadvantage is the difficulty in ensuring quality control and accuracy. Software programs exist which can translate common word processing formats directly into Braille, but they are not always error free, especially if the document contains special characters, jargon, graphics, or charts. Since the typical office worker will not be able to proofread a Braille document, the initial apparent cost saving may be quickly lost by having to re-do documents. The Braille translation software costs approximately $500 and most Braille printers sold range from $2,000 to $5,000, however some Braille printers, depending on the speed and other features, do cost more. Depending on the quality of Braille to be generated, a Braille
5. People who are blind or have low vision and who have access to computers may be able to use documents in electronic form. Electronic text must be provided in ASCII or a properly formatted word processor file. Using electronic text allows this information to be transmitted through e-mail or other on-line telecommunications. Blind or low vision persons who have access to a personal computer can then read the document using synthetic speech, an electronic Braille display, a large print computer monitor, or they can produce a hard copy in large print or Braille.
6. Documents prepared for electronic transmission should be in ASCII. Documents supplied on disk should also be provided in either ASCII or a word processor format usable by the customer. Word processing documents should be properly formatted before distribution or conversion to ASCII. To be correctly formatted, the document should be in Courier 10 point size and formatted for an 80 character line. Tables should be converted to plain text. Graphics or text boxes should be deleted and explained or described in text format. This will allow the reader to understand all of the documentation being presented. Replace bullets (•) with “*” or “-” and convert other extended ASCII characters into text. When converting a document into ASCII or word processor formats, it is important to utilize the appropriate “tab key” and “centering key” rather than using the space bar. This is necessary because Braille translation software relies on the proper use of commands to automate the formatting of a Braille document.
7. Persons with low vision may require documentation to be provided in large print. Large print documents can easily be produced using a scalable font from any good word processing program and a standard laser printer. Using the document enlargement option on a photocopier will usually yield unsatisfactory results.
8. To obtain the best results follow these guidelines:
a. It is preferable to use paper that is standard 8
b. The best contrast with the least glare is achieved on very pale yellow or cream-colored non-glossy paper, such as paper that is used for photocopying purposes. To produce a more aesthetic looking document, an off-white paper may be used and will still give good contrast while producing less glare than white. Do not use dark colors and shades of red. Double-sided copying (if print does not bleed through) will produce a less bulky document.
c. Remove formatting codes that can make reading more difficult. For example, centered or indented text could be difficult to track because only a few words will fit on a line. All text should begin at the left margin. Use only left margin justification to maintain uniform spacing across lines. Right margin justification can produce uneven spacing between letters and words. Use 1
d. There is no standard typeface or point size. For more universal access, use 18 point type; anything larger could make text too choppy to read comfortably. Use a good strong bold typeface. Do not use italics, fine, or fancy typefaces. Do not use compressed typefaces; there should be normal “white space” between characters.
e. Use upper and lowercase letters.
f. Using these instructions, one page of print (11-12 point type) will equal approximately three pages of large print (14-18 point) depending on the density of the text.
9. Some persons who are blind or who have learning disabilities may require documentation on audio cassettes. Audio materials can be produced commercially or in-house. Agencies sometimes record material in-house and purchase a high speed tape duplicator ($1,000-2,000) which is used to make cassette copies from the master. The cost of a duplicator can be higher depending upon the number of copies produced on a single run, and whether the duplicator can produce standard speed
10. Further guidance in making cassette recordings includes:
a. The reader should be proficient in the language being recorded.
b. The reader should be familiar with the subject. Someone who is somewhat familiar with the technical aspects of a product but who can explain functions in ordinary language would be a logical person to record an audio cassette.
c. The reader should have good diction. Recording should be done in a conversational tone and at a conversational pace; neither too slow nor too fast.
d. The reader should be familiar with the material to minimize stumbling and hesitation.
e. The reader should not editorialize. When recording a document, it should be read in full. Graphic and pictorial information available to sighted readers should be described in the narrated text. Tables and charts whose contents are not already contained in text should be converted into text and included in the recording.
f. The reader should spell difficult or unusual words and words of foreign origin.
g. At the beginning of the tape, identify the reader, i.e., “This document is being read by John Smith.”
h. On each side of the tape, identify the document and the page number where the reader is continuing, i.e., “tape 2, side 1, Guide to Barrier Free Meetings, continuing on page 75.”
i. For blind users, all cassettes should be labeled in Braille so that they can easily be referenced in the appropriate order.
11. Information is provided increasingly through a variety of means including television advertisements, Internet postings, information seminars, and telephone. This portion of the appendix explains how to provide information in some alternate modes (captioning, video description, Internet postings, relay service, and TTY).
12. When manufacturers of telecommunications equipment or customer premises equipment provide videos with their products (such as tutorials or information explaining various components of a product) the video should be available with captioning. Closed captioning refers to assistive technology designed to provide access to television for persons with hearing disabilities that is visible only through the use of a decoder. Open captions are visible at all times. Captioning is similar to subtitles in that the audio portion of a television program is displayed as printed words on the television screen. Captions should be carefully placed to identify speakers, on-and off-screen sound effects, music and laughter. Increased captioning was made possible because of the Television Decoder Circuitry Act which requires all television sets sold in the United States with screens 13 inches or larger to have built-in decoder circuitry.
13. Although captioning technology was developed specifically to make television and video presentations accessible to deaf and hard of hearing people, there has been widespread interest in using this technology to provide similar access to meetings, classroom teaching, and conferences. For meetings, video-conferences, information seminars, and the like, real-time captioning is sometimes provided. Real-time captioning uses a stenographic machine connected to a computer with translation software. The output is then displayed on a monitor or projected on a screen.
14. Just as manufacturers of telecommunications equipment and customer premises equipment need to make their videos accessible to persons who are deaf or hard of hearing, they must also be accessible to persons who are blind or have low vision. This process is known as video description. Video description may either be a separate audio track that can be played simultaneously with the regular audio portion of the video material (adding description during pauses in the regular audio), or it can be added to (or “mixed” with) an existing soundtrack. The latter is the technique used for videotapes.
15. The fastest growing way to obtain information about a product is through use of the Internet, and specifically the World Wide Web. However, many Internet users with disabilities have difficulty obtaining this information if it is not correctly formatted. This section provides information on how to make a World Wide Web site more accessible to persons with disabilities
16. The level of accessibility of the information on the Web is dependent on the format of the information, the transmission media, and the display system. Many of the issues related to the transmission media and the display system cannot be affected by the general user. On the other hand, anyone creating information for a Web server has control of the accessibility of the information. Careful design and coding of information will provide access to all people without compromising the power and elegance of the Web site.
17. A few suggestions are:
a. Every graphic image should have associated text. This will enable a person using a character-based program, such as Lynx, to understand the material being presented in the graphical format. It also allows anyone who does not want to wait for graphics to load to have quick access to the information on the site.
b. Provide text transcriptions or descriptions for all audio output. This will enable people who are deaf or hard of hearing to have access to this information, as well as individuals who do not have sound cards.
c. Make any link text descriptive, but not verbose. For example, words like “this”, “here”, and “click” do not convey enough information about the nature of the link, especially to people who are blind. Link text should consist of substantive, descriptive words which can be quickly reviewed by the user. Conversely, link text which is too long bogs down efficient browsing.
d. Provide alternate mechanisms for on-line forms. Forms are not supported by all browsers. Therefore, it is important to provide the user with an opportunity to select alternate methods to access such forms.
e. All Web pages should be tested using multiple viewers. At a minimum, pages should be tested with the latest version of Lynx to ensure that they can be used with screen reader software.
18. By using telecommunications relay services (TRS), it has now become easier for persons with hearing and speech disabilities to communicate by the telephone. TRS links TTY users with those who do not have a TTY and use standard telephones. With TRS, a TTY user communicates with another person with the help of a communications assistant who is able to talk on the telephone and then communicate by typing the message verbatim, to the TTY user. The communications assistant also reads the message typed by the TTY user, or the TTY user may speak for him or herself using voice carry over.
19. There are now TRS programs in every state. Although TRS is very valuable, it does have limitations. For example, relay calls take longer, since they always involve a third party, and typing words takes longer than speaking words.
20. A TTY also provides direct two-way typed conversations. The cost of these devices begins at approximately $200 and they can be operated by anyone who can type.
21. The following information is excerpted from the brochure “Using a TTY” which is available free of charge from the Access Board:
a. If the TTY line is also used for incoming voice calls, be sure the person who answers the phone knows how to recognize and answer a TTY call. You will usually hear silence, a high-pitched, electronic beeping sound, or a pre-recorded voice message when it is a TTY call. If there is silence, assume it is a TTY call.
b. TTYs should be placed near a standard telephone so there is minimal delay in answering incoming TTY calls.
c. To initiate a TTY call, place the telephone headset in the acoustic cups of the TTY adapter. If the TTY unit is directly connected to the phone line, there is no need to put the telephone headset in the acoustic cups. Turn the TTY on. Make sure there is a dial tone by checking for a steady light on the TTY status indicator.
d. Dial the number and watch the status indicator light to see if the dialed number is ringing. The ring will make a long slow flash or two short flashes with a pause in between. If the line is busy, you will see short, continuous flashes on the indicator light. When the phone is answered, you will see an irregular light signal as the phone is picked up and placed in the cradle. If you are calling a combination TTY and voice number, tap the space bar several times to help the person on the other end identify this as a TTY call.
e. The person who answers the call is the first to type. Answer the phone as you would by voice, then type “GA”.
f. “GA” means “I’m done, go ahead and type”. “HD” means hold. “GA or SK” means “Is there anything more, I’m done”. “SK” means stop keying. This is how you show that the conversation is ended and that you will hang up. It is polite to type good-bye, thank you for calling, or some other closing remark before you type “SK”. Stay on the line until both parties type SKSK.
22. Because of the amount of time it takes to send and receive messages, it is important to remember that short words and sentences are desired by both parties. With some TTY calls it is often not possible to interrupt when the other person is typing. If you get a garbled message in all numbers or mixed numbers and letters, tap the space bar and see if the message clears up. If not, when the person stops typing, you should type, “Message garbled, please repeat.” If the garbled messages continue, this may mean that one of the TTYs is not working properly, there is background noise causing interference, or that you may have a bad connection. In this case you should say something like, “Let's hang up and I’ll call you back.”
23. The typical TTY message will include many abbreviations and jargon. The message may also include misspelled words because, if the meaning is clear, many callers will not bother to correct spelling since it takes more time. Also, some TTY users communicate in American sign language, a language with its own grammar and syntax. English may be a second language. Extend the same patience and courtesy to TTY callers as you do to all others.
1. This paragraph requires manufacturers to supply a point of contact for obtaining information about accessibility features of the product and how to obtain documents in alternate formats. This could be the name of a specific person, a department or an office. Supplying a telephone number, and preferably a separate TTY number, is the most universal method. Web site and e-mail addresses are also desirable, but should not substitute for a telephone number since many more people have access to a telephone than have e-mail or Internet access. Of course, the means for requesting additional accessibility information must, itself, be accessible.
2. Automated voice response systems are not usable by deaf and hard of hearing persons. An approach to consider is to augment an automated voice response system with an automated TTY response system that also detects whether a caller is using voice or TTY.
3. The phone number should be prominently displayed in product literature. Ideally, it should be displayed on the outside of the package so that a potential buyer can obtain information about the accessibility before purchase. In addition, manufacturers should acquaint their distributors with this information so that they can assist customers with disabilities, such as a blind person unable to read the package information.
1. This paragraph requires manufacturers to consider including information on accessibility in training a manufacturer provides to its staff. For example, if technical support staff are trained on how to provide good technical support, such a program should be expanded to include information on accessibility features of the manufacturer's products and peripheral devices that are compatible with them. Such staff should also have basic information on how to handle TTY and relay calls. Personnel who deal directly with the public, including market researchers, should be trained in basic disability “etiquette.”
1. Although this section is reserved, manufacturers of telecommunications equipment and customer premises equipment are encouraged to provide redundancy such that input and output functions are available in more than one mode.
2. Alternate input and output modes should be selectable by the user.
3. Products should incorporate multiple modes for input and output functions so the user is able to select the desired mode.
a. Since there is no single interface design that accommodates all disabilities, accessibility is likely to be accomplished through various product designs which emphasize interface flexibility to maximize user configurability and multiple, alternative and redundant modalities of input and output.
b. Selectability is especially important where an accessibility feature for one group of individuals with disabilities may conflict with an accessibility feature for another. This potential problem could be solved by allowing the user to switch one of the features on and off. For example, a conflict may arise between captioning (provided for persons who are deaf or hard of hearing) and a large font size (provided for persons with low vision). The resulting caption would either be so large that it obscures the screen or need to be scrolled or displayed in segments for a very short period of time.
c. It may not be readily achievable to provide all input and output functions in a single product or to permit all functions to be selectable. For example, switching requires control mechanisms which must be accessible and it may be more practical to have multiple modes running simultaneously. Whenever possible, it is preferable for the
4. Some experiments with smart cards are showing promise for enhancing accessibility. Instead of providing additional buttons or menu items to select appropriate input and output modes, basic user information can be stored on a smart card that triggers a custom configuration. For example, insertion of a particular card can cause a device to increase the font size on a display screen or activate speech output. Another might activate a feature to increase volume output, lengthen the response time between sequential operations, or allow two keys to be pressed sequentially instead of simultaneously. This technology, which depends on the issuance of a customized card to a particular individual, would allow redundancy and selectability without adding additional controls which would complicate the operation. As more and more functions are provided by software rather than hardware, this option may be more readily achievable.
5. The increasing use of “plug-ins” allow a product to be customized to the user's needs. Plug-ins function somewhat like peripheral devices to provide accessibility and there is no fundamental problem in using plug-ins to provide access, as long as the accessibility plug-ins are provided with the product. For example, at least one computer operating system comes packaged with accessibility enhancements which a user can install if wanted. In addition, modems are typically sold with bundled software that provides the customer premises equipment functionality. A compatible screen reader program, for example, could be bundled with it. At least one software company has developed a generalized set of accessibility tools designed to be bundled with a variety of software products to provide access. As yet, such developments are not fully mature; most products are still installed by providing on-screen visual prompts, not accompanied by meaningful sounds.
1. Individuals who are blind or have low vision cannot locate or identify controls, latches, or input slits by sight or operate controls that require sight. Products should be manufactured to be usable independently by these individuals. For example, individuals who cannot see must use either touch or sound to locate and identify controls. If a product uses a flat, smooth touch screen or touch membrane, the user without vision will not be able to locate the controls without auditory or tactile cues.
2. Once the controls have been located, the user must be able to identify the various functions of the controls. Having located and identified the controls, individuals must be able to operate them.
3. Below are some examples of ways to make products accessible to persons with visual disabilities:
a. If buttons are used on a product, make them discrete buttons which can be felt and located by touch. If a flat membrane is used for a keyboard, provide a raised edge around the control areas or buttons to make it possible to locate the keys by touch. Once an individual locates the different controls, he or she needs to identify what the keys are. If there is a standard number pad arrangement, putting a nib on the “5” key may be all that is necessary for identifying the numbers. On a QWERTY keyboard, putting a tactile nib on the “F” and “J” keys allows touch typists to easily locate their hands on the key.
b. Provide distinct shapes for keys to indicate their function or make it easy to tell them apart. Provide Braille labels for keys and controls for those who read Braille to determine the function and use of controls.
c. Provide large raised letters for short labels on large objects. Where it is not possible to use raised large letters, a voice mode selection could be incorporated that announces keys when pressed, but does not activate them. This would allow people to turn on the voice mode long enough to explore and locate the item they are interested in, then release the voice mode and press the control. If it is an adjustable control, voice confirmation of the status may also be important.
d. Provide tactile indication on a plug which is not a self-orienting plug. Wireless connections, which eliminate the need to orient or insert connectors, also solve the problem.
e. Avoid buttons that are activated when touched to allow an individual to explore the controls to find the desired button. If touch-activated controls cannot be avoided (for example, on a touch screen), provide an alternate mode where a confirm button is used to confirm selections (for example, items are read when touched, and activated when the confirm button is pressed). All actions should be reversible, or require confirmation before executing non-reversible actions.
f. Once controls have been located and users know what the functions are, they must be operable. Some types of controls, including mouse devices, track balls, dials without markings or stops, and push-button controls with only one state, where the position or setting is indicated only by a visual cue, will not be usable by persons who are blind or have low vision. Providing a rotational or linear stop and tactile or audio detents is a useful strategy. Another is to provide keyboard or push-button access to the functions. If the product has an audio
g. Controls may also be shaped so that they can easily be read by touch (e.g., a twist knob shaped like a pie wedge). For keys which do not have any physical travel, some type of audio or tactile feedback should be provided so that the individual knows when the key has been activated. A two-state key (on/off) should be physically different in each position (e.g., a toggle switch or a push-in/pop-out switch), so the person can tell what state the key is in by feeling it.
h. If an optional voice mode is provided for operating a product, a simple “query” mode can also be provided, which allows an individual to find out the function and state of a switch without actually activating it. In some cases, there may be design considerations which make the optimal mode for a sighted person inaccessible to someone without vision (e.g., use of a touch screen or mouse). In these cases, a primary strategy may be to provide a closely linked parallel method for efficiently achieving the same results (e.g., keyboard access) if there is a keyboard, or “SpeedList” access for touch screens.
1. Individuals with low vision often also have hearing disabilities, especially older individuals. These persons cannot rely solely on audio access modes commonly used by people who are blind. Tactile strategies are still quite useful, although many older persons may not be familiar with Braille. The objective, therefore, is to maximize the number of people who can use their residual vision, combined with tactile senses, to operate a product.
2. Strategies for addressing this provision may include the following: a. Make the information on the product easier to see. Use high-contrast print symbols and visual indicators, minimize glare on the display and control surfaces, provide adequate lighting, position controls near the items they control to make them easy to find, and use Arabic instead of Roman numerals.
b. The type-face and type-spacing used can greatly affect legibility. The spacing between letters should be approximately 1/16 the height of uppercase letters and the spacing should be uniform from one label to the next. Also, symbols can sometimes be used which are much more legible and understandable than fine print.
c. Where the display is dynamic, provide a means for the user to enlarge the display and to “freeze” it. In addition to making it easier to see, there are strategies which can be used to reduce the need to see things clearly in order to operate them.
d. A judicious use of color-coding, always redundant with other cues, is extremely helpful to persons with low vision. These cues should follow standard conventions, and can be used to reduce the need to read labels (or read labels more than the first time). In addition, all of the tactile strategies discussed under section 1193.41 (a) can also be used here.
1. Many people are unable to distinguish between certain color combinations. Others are unable to see color at all.
2. Strategies for addressing this provision include:
a. Eliminate the need for a person see color to operate the product. This does not eliminate the use of color completely but rather requires that any information essential to the operation of a product also be conveyed in some other fashion.
b. Avoid color pairs such as red/green and blue/yellow, that are indistinguishable by people with limited color perception.
c. Provide colors with different hues and intensity so that colored objects can be distinguished even on a black and white screen by their different appearance. Depending upon the product, the manufacturer may also be able to allow users to adjust colors to match their preferences and visual abilities.
d. Avoid colors with a low luminance.
1. Individuals who are deaf or hard of hearing cannot locate or identify controls that require hearing. Products that provide only audio prompts cannot be used by individuals who are deaf or hard of hearing. For example, a voice-based interactive product that can be controlled only by listening to menu items and then pressing buttons is not accessible. By addressing the output issues under section 1193.43(d) many accessibility problems that affect input under this section can be solved.
2. Some strategies include:
a. Text versions of audio prompts could be provided which are synchronized with the audio so that the timing is the same.
b. If prompts are provided visually and no speech or vocalization is required, most problems associated with locating, identifying, and operating controls without hearing will be solved.
1. Individuals may have difficulty manipulating controls on products for any number of reasons. Though these disabilities may vary widely, these persons have difficulty grasping, pinching, or twisting objects and often have difficulty with finer motor coordination. Some persons may use a headstick, mouthstick, or artificial limb.
2. Below are some strategies which will assist in designing products which will meet the needs of these persons:
a. Provide larger buttons and controls, or buttons which are more widely spaced, to reduce the likelihood that a user will accidentally activate an adjacent control.
b. Provide guard bars between the buttons or near the buttons so that accidental movements would hit the guard bars rather than accidentally bumping switches.
c. Provide an optional mode where buttons must be depressed for a longer period of time (e.g., SlowKeys) before they would accept input to help separate between inadvertent motions or bumps and desired activation.
d. Where two buttons must be depressed simultaneously, provide an option to allow them to be activated sequentially (e.g., StickiKeys).
e. Avoid buttons which are activated merely by touch, such as capacitance switches. Where that is difficult to do (e.g., with touchscreens), provide a “confirm” button which an individual can use to confirm that the item touched is the desired one. Also, make all actions reversible, or request confirmation before initiating non-reversible actions.
f. Avoid latches, controls, or key combinations which require simultaneous activation of two or more buttons, or latches. Also, avoid very small controls or controls which require rotation of the wrist or pinching and twisting. Where this is not possible, provide alternate means for achieving the same functions.
g. Controls which have non-slip surfaces and those that can be operated with the side of the hand, elbow or pencil can be used to minimize physical activity required. In some cases, rotary controls can be used if they can be operated without grasping and twisting (e.g., a thin pie slice shape control or an edge control). Providing a concave top on buttons makes them easier to use.
h. Make it easier to insert cards or connectors by providing a bevel around the slot or connector, or use cards or connectors which can be inserted in any orientation or which self-center or self-align. Placing the slot or connector on the front and near a ledge or open space allows individuals to brace their hands or arms to make use of the slot or connector easier.
i. For some designs, controls which pose problems for individuals with disabilities may be the most efficient, logical or effective mechanism for a majority of users. In these cases, provide alternate strategies for achieving the same functions, but which do not require fine manipulation. Speech input or voice recognition could be provided as an alternate input, although it should not be the only input technique.
1. Some individuals may have difficulty operating systems which require reach or strength. The most straight-forward solution to this problem is to place the controls where they can be easily reached with minimal changes to body position. Many products also have controls located on different parts of the product.
2. When this is the case, the following strategies may be used:
a. Allow the functions to be controlled from the keyboard, which is located directly in front of the user.
b. Allow voice recognition to be used as an option. This provides input flexibility, but should never be the only means for achieving a function.
c. Provide a remote control option that moves all of the controls for the product together on a unit that can be positioned optimally for the individual. This allows the individual to operate the product without having to move to it. If this strategy is used, a standard communication format would be important to allow the use of alternate remote controls for those who cannot use the standard remote control.
d. Reduce the force needed to operate controls or latches and avoid the need for sustained pressure or activity (e.g., use guards rather than increased strength requirements to avoid accidental activation of crucial switches).
e. Provide arm or wrist rests or supports, create short cuts that reduce the number of actions needed, or completely eliminate the need to operate controls wherever possible by having automatic adjustments.
f. Section 4.34.3 of the Americans with Disabilities Act Accessibility Guidelines (ADAAG) also contains specific information concerning reach ranges. ADAAG gives specific guidance concerning access to the built environment. Section 4.34.3 indicates the reach ranges for a front or parallel approach to equipment for individuals using a wheelchair. This information may prove useful for those telecommunications manufacturers whose equipment is stationary, such as an information kiosk.
1. Many persons find it very difficult to operate time-dependent controls.
2. Some strategies which address this problem include:
a. Avoid any timed-out situations or provide instances where the user must respond to a question or moving display in a set amount of time or at a specific time (e.g., a rotating display).
b. Where timed responses are required or appropriate, allow the user to adjust them or set the amount of time allotted to complete a given task. Warn users that time is running out and allow them to secure extended time.
c. If the standard mode of operation would be awkward or inefficient, then provide an alternate mode of operation that offers the same functions.
1. Many individuals cannot speak or speak clearly. Products which require speech in order to operate them should also provide an alternate way to achieve the same function.
2. Some strategies to achieve this include:
a. Provide an alternate mechanism for achieving all of the functions which are controlled by speech. If a product includes speech identification or verification, provide an alternate mechanism for this function as well.
b. Include individuals who are deaf or who have speech disabilities in the subject populations that are used to develop voice recognition algorithms, so that the algorithms will better accommodate a wider range of speech patterns.
1. Many individuals have reduced cognitive abilities, including reduced memory, sequence tracking, and reading skills. This does not necessarily prevent these persons from using a telecommunications product or feature.
2. The following strategies are extensions of techniques for making products easier for everyone to learn and use:
a. Use standard colors and shapes and group similar functions together. On products which have some controls that are used by everyone and other controls which would only be used by advanced users, it is generally good practice to separate the two, putting the more advanced features behind a door or under a separate menu item.
b. Products which read the contents of the display aloud, or controls which announce their settings, are easier for individuals who have difficulty reading.
c. Design products that are self-adjusting to eliminate additional controls which must be learned, and reduce the visual clutter.
d. On products which have sign-in procedures, allow user settings to be associated with them when they sign in or insert their identification card. The system can then autoconfigure to them. Some new “smart cards” are being designed with user preferences encoded on the card.
e. Where a complex series of steps is required, provide cuing to help lead the person through the process. It is also helpful to provide an “undo” or back up function, so that any mistakes can be easily corrected. Most people will find this function helpful.
f. Where functions are not reversible, request some type of confirmation from the user before proceeding. On labels and instructions, it is helpful to use short and simple phrases or sentences. Avoid abbreviations wherever possible. Eliminate the need to respond within a certain time or to read text within a certain time.
1. Just as persons with visual or cognitive disabilities need to be able to operate the input, controls, and mechanical functions of a product, they must also have access to the output functions.
2. The following are strategies for addressing this provision:
a. Provide speech output of all displayed text and labels. For information which is presented in non-text form (e.g., a picture or graphic), provide a verbal description unless the graphic is just decorative. When speech output is provided, allow for the spoken message to be repeated if the message is very long. Also, if the information being provided is personal in nature, it is recommended that headphones be provided in order to assure privacy. A message for stepping through menus is also helpful.
b. Providing Braille labels for controls is an extremely effective mechanism for those individuals who read Braille.
c. Large raised print can also be used but is generally restricted to rather large objects due to the size of the letters.
1. Individuals with low vision often also have hearing disabilities, especially older individuals. These persons cannot rely solely on audio access modes commonly used by
2. Strategies for meeting this provision involve:
a. Provide larger, higher contrast text and graphics. Individuals with 20/200 vision can see lettering if they get close to it, unless it is very small or has very poor contrast. Although 14 or 18 point type is recommended for visual displays, it is usually not possible to put this size text on small products.
b. Make the lettering as large and high contrast as possible to maximize the number of people who can use the product.
c. On displays where the font size can be varied, allow the user to increase the font size, even if it means that the user must pan or move in order to see the full display.
1. Moving text can be an access problem because individuals with low vision, or other disabilities may find it difficult or impossible to track moving text with their eyes.
2. Strategies to address this requirement may include the following:
a. Provide a mechanism for freezing the text. Thus, persons could read the stationary text and obtain the same information.
b. Provide scrolling to display one full line at a time, with a pause before the next line replaces it.
c. Provide the same information in another type of display which does not move. The right-to-left scrolling text on a TTY does not usually present a problem because it can be controlled by asking the sender to type slower or pause at specified intervals.
1. Individuals who have hearing disabilities are unable to receive auditory output, or mechanical and other sounds that are emitted by a product. These sounds are often important for the safe or effective operation of the product. Therefore, information which is presented auditorial should be available to all users.
2. Some strategies to achieve this include the following:
a. Provide a visual or tactile signal that will attract the person's attention and alert the user to a call, page, or other message, or to warn the user of significant mechanical difficulties in the product.
b. In portable products, a tactile signal such as vibration is often more effective than a visual signal because a visual signal may be missed. An auxiliary vibrating signaler might be effective if it is not readily achievable or effective to build vibration into a portable product.
c. For stationary products, a prominent visual indicator in the field of vision (e.g., a screen flash for a computer, or a flashing light for a telephone) is effective. To inform the user of the status of a process (e.g., line status on a telephone call, power on, saving to disk, or disconnected), text messages may be used. It is also desirable to have an image or light that is activated whenever acoustic energy is present on a telephone line.
d. Speech messages should be portrayed simultaneously in text form and displayed where easily seen by the user. Such captions should usually be verbatim and displayed long enough to be easily read. If the product provides speech messages and the user must respond to those messages (e.g., interactive voice response and voice mail), a TTY accessible method of accessing the product could be provided.
e. TTY to TTY long distance and message unit calls from pay telephones are often not possible because an operator says how much money must be deposited. Technology exists to have this information displayed on the telephone and a test installation is currently operating at the Butler plaza on the Pennsylvania Turnpike. In addition, if the product provides interactive communication using speech and video, it would be helpful to provide a method and channel for allowing non-speech communication (e.g., text conversation) in parallel with the video.
f. Certain operations of products make sounds that give status information, although these sounds are not programmed signals. Examples include the whir of an operating disk drive and the click of a key being pushed. Where sounds of this type provide information important for operating the product, such as a “beep” when a key is activated, provide a light or other visual confirmation of activation.
1. People who are hard of hearing but not deaf can often use their hearing to access auditory information on a product.
2. Strategies for addressing this requirement may include the following:
a. Improve the signal to noise ratio by making the volume adjustable, between 18-25 dB, increasing the maximum undistorted volume, and minimizing background noise by such methods as better coupling between the signal source and the user.
b. Alerting tones are most likely to be heard if they involve multiple tones, separated in frequency, which contrast with the environment.
c. Occasionally, varying tones may be preferred for attracting attention. If speech is
d. For essential auditory information, the information might be repeated and an acknowledgment from the user requested.
e. The intelligibility of the output can also be maximized by the location of the speakers and by keeping the speakers away from noise sources. However, visual displays are often more desirable than loud prompts or alerts, because the latter reduce privacy and can annoy others unless the amplified signal is isolated by means of a headphone, induction coupling, direct plug-in to a hearing aid, or other methods.
f. The use of a telephone handset or earcup which can be held up to the ear can improve intelligibility without disturbing others in the area. If a handset or earcup is used, making it compatible with a hearing aid allows users to directly couple the auditory signal to their hearing aids. If the microphone in the handset is not being used, turning it off will also reduce the amount of background noise which the person hears in the earpiece. Providing a headphone jack also allows individuals to plug in headphones, induction loops, or amplifiers which they may use to hear better.
1. Individuals with photo-sensitive epilepsy can have a seizure triggered by displays which flicker or flash, particularly if the flash has a high intensity and within certain frequency ranges.
2. Strategies to address this requirement involve reducing or eliminating screen flicker or image flashing to the extent possible. In particular, the rates of 2 Hz or lower or 70 Hz or higher are recommended. This recommendation reflects current research data on people with photosensitive epilepsy which indicates that the peak sensitivity for these individuals is 20 Hz and that the sensitivity then drops off in both directions.
3. The chance of triggering seizures can also be reduced by avoiding very bright flashes which occupy a large part of the visual field (particularly in the center of the visual field) in order to minimize the impact on the visual cortex.
1. Individuals using the audio access mode, as well as those using a product with the volume turned up, need a way to limit the range of audio broadcast.
2. If an audio headphone jack is provided, a cut-off switch can be included in the jack so that insertion of the jack would cut off the speaker. If a telephone-like handset is used, the external speakers can be turned off when the handset is removed from the cradle.
1. Individuals who are hard of hearing use hearing aids and other assistive listening devices but these devices cannot be used if a telecommunications product introduces noise into the listening aids because of stray electromagnetic interference.
2. Strategies for reducing this interference (as well as improving hearing aid immunity) are being researched. The most desirable strategy is to avoid the root causes of interference when a product is initially designed. If the root sources of interference cannot be removed, then shielding, placement of components to avoid hearing aid interference, and field-canceling techniques may be effective. Standards are being developed to limit interference to acceptable levels, but complete elimination for some technologies may not yet be practical.
3. In April 1996, the American National Standards Institute (ANSI) established a task group (ANSI C63) under its subcommittee on medical devices to develop standards to measure hearing aid compatibility and accessibility to digital wireless telecommunications. The C63.19 task group is continuing to develop its standard, C63.19-199X, American National Standard for Methods of Measurement for Hearing Aid Compatibility with Wireless Communications Devices. When the standard is completed, the Board intends to reference it in this appendix.
1. Many individuals who are hard of hearing use hearing aids with a T-coil (or telecoil) feature to allow them to listen to audio output of products without picking up background noise and to avoid problems with feedback, signal attenuation or degradation.
2. The Hearing Aid Compatibility (HAC) Act defines a telephone as hearing aid compatible if it provides internal means for effective use with hearing aids and meets established technical standards for hearing aid compatibility.
3. The technical standards for HAC telephones are specified in ANSI/EIA-504-1989, “Magnetic Field Intensity Criteria for Telephone Compatibility with Hearing Aids,” ANSI/TIA/EIA-504-1-1994, “An Addendum to EIA-504,” which adds the HAC requirements, and the FCC regulations at 47 CFR 68.317 (a).
4. A good strategy for addressing this requirement for any product held up to the ear
1. Some individuals with severe or multiple disabilities are unable to use the built-in displays and control mechanisms on a product.
2. The two most common forms of manipulation-free connections are an infrared connection or a radio frequency connection point. Currently, the Infrared Data Association (IrDA) infrared connection point is the most universally used approach.
3. The Infrared Data Association together with dominant market players in the cellular and paging industries, Ericsson, Matsushita/Panasonic, Motorola, NEC, Nokia, NTT DoCoMo, Puma, and TU-KA Phone Kansai, announced on April 25, 1997 a proposed set of standards that will empower wireless communication devices, such as cellular phones, pagers and personal computers to transfer useful information over short distances using IrDA infrared data communication ports. Because the proposed standard is designed to be scalable, it is easy-to-adopt by a wide range of wireless devices from pagers to more enhanced communications tools such as smart phones. (See http://www.irda.org).
4. Adding an infrared connector to the serial port of a peripheral device or specialized customer premises equipment will make these products more compatible with each other and with customer premises equipment.
5. An infrared link can provide a mechanism for providing access to smaller, more advanced telecommunication devices and provide a safety net for products which are unable to incorporate other technologies. There is a joint international effort to develop a Universal Remote Console Communication (URCC) protocol which would achieve this functionality. (See http://trace.wisc.edu/world/urc/).
1. Individuals using audio peripheral devices such as amplifiers, telecoil adapters, or direct-connection into a hearing aid need a standard, noise free way to tap into the audio generated by a product.
2. Individuals who cannot hear well can often use products if they can isolate and enhance the audio output. For example, they could plug in a headphone which makes the audio louder and helps shut out background noise; they might feed the signal through an amplifier to make it louder, or through filters or frequency shifters to make it better fit their audio profile. If they are wearing a hearing aid, they may directly connect their hearing aid to the audio signal or plug in a small audio loop which allows them to couple the audio signal through their hearing aid's built-in T-coil.
3. Devices which can process the information and provide visual and/or tactile output are also possible. The most common strategy for achieving this requirement is the use of a standard 9 mm miniature plug-in jack, common to virtually every personal tape player or radio. For small products, a subminiature phone jack could be used.
1. Individuals who have artificial hands or use headsticks or mouthsticks to operate products have difficulty with capacitive or heat-operated controls which require contact with a person's body rather than a tool. Individuals who wear prosthetics are unable to operate some types of products because they either require motions that cannot easily be made with a prosthetic hand, or because products are designed which require touch of the human skin to operate them (e.g., capacitive touchscreen kiosks), making it impossible for individuals with artificial arms or hands to operate, except perhaps with their nose or chin. Some individuals who do not have the use of their arms use either a headstick or a mouthstick to operate products. Controls and mechanisms which require a grasping and twisting motion should be avoided.
1. Acoustic coupling is subject to interference from ambient noise, as many handsets do not provide an adequate seal with TTYs. Therefore, alternate (non-acoustic) connections are needed. Control of the microphone is needed for situations such as pay-phone usage, where ambient noise picked up by the mouthpiece often garbles the signal. For the use of voice carry-over, where the person can speak but not hear, the user needs to be able to turn the microphone on to speak and off to allow them to receive the TTY text replies.
2. A TTY can be connected to and used with any telecommunications product supporting speech communication without requiring purchase of a special adapter, and the user is able to intermix speech and clear TTY communication. The most common approach today is to provide an RJ-11 jack. On very small products, where there may not be room for this large jack, a miniature or subminiature phone-jack wired as a “headset” jack (with both speaker and microphone connections) could be used as an alternate approach. In either case, a mechanism for turning the phone mouthpiece (microphone) on and off would reduce garbling in noisy environments, while allowing the user to speak into the microphone when desired (to conduct conversations with mixed voice and TTY). For equipment that combines voice communications, displays, keyboards and data communication functions, it is desirable to build in direct TTY capability.
1. Some telecommunications systems compress the audio signal in such a manner that standard signals used by a TTY is distorted or attenuated preventing successful TTY communication over the system. A TTY can be used with any product providing voice communication function.
2. The de facto standard of domestic TTYs is Baudot which has been defined in ITU-T Recommendation V.18. Although the V.18 standard has been adopted, products are not yet available which meet its requirements.
3. This provision can be addressed by ensuring that the tones used can travel through the phones compression circuits undistorted. It is even more desirable to provide undistorted connectivity to the telephone line in the frequency range of 390 Hz to 2300 Hz (ITU-T Recommendation V.18), as this range covers all of the TTY protocols known throughout the world. Although it may not be achievable with current technology, an alternate strategy might be to recognize the tones, transmit them as codes, and resynthesize them at the other end. In addition, it should be possible for individuals using TTYs to conduct conversations with mixed voice and TTY, and to control all aspects of the product and receive any messages generated by the product.
44 U.S.C. 2104(e), 2116(b), 2302.
For the purposes of this part—
(a)
Centered on a disc with a double-line border a solid line rendition of an heraldic eagle displayed holding in its left talon thirteen arrows, in its right talon a branch of olive, bearing on its breast a representation of the shield of the United States and displayed above its head a partially unrolled scroll inscribed with the words LITTERA SCRIPTA MANET one above the other; all within the circumscription NATIONAL ARCHIVES AND RECORDS ADMINISTRATION, with the date 1985 at bottom center.
(b)
(c)
The Archivist of the United States and the Archivist's designees are authorized to affix the official seals, embossing seals, replicas and reproductions to appropriate documents, certifications and other material for all purposes authorized by this part.
(a) The seals are the official emblems of NARA and their use is therefore permitted only as provided in this part.
(b) Use by any person or organization outside NARA may be made only with prior written approval by NARA.
(c) Requests by any person or organization outside NARA for permission to use the seals must be made in writing to the Archivist of the United States, National Archives (N), Washington, DC 20408, and must specify, in detail, the exact use to be made. Any permission granted applies only to the specific use for which it was granted and is not to be construed as permission for any other use.
(d) Use of the NARA and the National Archives of the United States seals shall be primarily for informational purposes and for authentication of documents. The National Archives Trust Fund Board seal shall be used only for Trust Fund documents and publications. The seals may not be used on any article or in any manner which may discredit the seals or reflect unfavorably upon NARA or which implies NARA endorsement of commercial products or services, or of the user's policies or activities.
(e) Falsely making, forging, counterfeiting, mutilating, or altering the official seals, replicas, reproductions or embossing seals, or knowingly using or possessing with fraudulent intent any altered seal is punishable under section 506 of title 18, United States Code.
(f) Any person using the official seals, replicas, reproductions, or embossing seals in a manner inconsistent with the provisions of this part is subject to the provisions of 18 U.S.C. 1017, which provides penalties for the wrongful use of an official seal, and to other provisions of law as applicable.
44 U.S.C. 2104(a); 5 U.S.C. 552a.
This part sets forth policies and procedures concerning the collection, use, and dissemination of records maintained by NARA which are subject to the provisions of the Privacy Act of 1974, 5 U.S.C. 552a. These policies and procedures govern only those records as defined in § 1202.4. Policies and procedures governing the disclosure and availability of NARA administrative records in general are in part 1250 of this chapter. This part also covers exemptions from disclosure of personal information; procedures for guidance of subject individuals in obtaining information and inspecting and disagreeing with the content of records; accounting for disclosures of information; special requirements for medical records; and fees.
This part implements the provisions of 5 U.S.C. 552a, popularly known as the “Privacy Act of 1974” (hereinafter referred to as the Act). This part prescribes procedures for notifying an individual of NARA systems of records which may contain a record pertaining to him or her, procedures for gaining access and contesting the contents of such records, and other procedures for carrying out the provisions of the Act.
For the purposes of this part 1202:
(a)
(b)
(c)
(1) The disclosure is required by Federal law, or;
(2) The disclosure was required under a Federal law or regulation adopted before January 1, 1975, to verify the identity of an individual, and the social security number will become a part of a system of records in existence and operating before January 1, 1975.
(d)
The system manager shall ensure that all records which are used by NARA to make a determination about any individual are maintained with such accuracy, relevance, timeliness, and completeness as is reasonably necessary to ensure fairness to the individual.
All NARA employees involved in the design, development, operation, or maintenance of any system of records, or in maintaining any record, shall review the provisions of 5 U.S.C. 552a and the regulations in this part, and shall conduct himself or herself in accordance with the rules of conduct concerning the protection of personal information in the NARA Standards of Conduct.
The system manager shall ensure that appropriate administrative, technical, and physical safeguards are established to ensure the security and confidentiality of records and to protect against any anticipated threats or hazards to their security or integrity which could result in substantial harm, embarrassment, inconvenience, or unfairness to any individual on whom information is maintained. Personnel information contained in both manual and automated systems of records shall be protected by implementing the following safeguards:
(a) Official personnel folders, authorized personnel operating or work folders, and other records of personnel actions effected during a NARA employee's Federal service or affecting the employee's status and service, including information on experience, education, training, special qualifications and skills, performance appraisals, and conduct, shall be stored in a lockable metal filing cabinet when not in use by an authorized person. A system manager may employ an alternative storage system providing that it furnishes an equivalent degree of physical security as storage in a lockable metal filing cabinet.
(b) System managers, at their discretion, may designate additional records of unusual sensitivity which require safeguards similar to those described in paragraph (a) of this section.
(c) System managers shall permit access to and use of automated or manual personnel records only to persons whose official duties require such access, or to subject individuals or their representatives as provided by this part.
Any policies and procedures in any NARA issuance which are inconsistent with the policies and procedures in this part are superseded to the extent of that inconsistency.
(a)
(b)
Access to NARA systems of records by subpoena or other legal process shall be in accordance with the provisions of part 1250 of this chapter for administrative records and part 1254 of this chapter for accessioned records, FRC records, and donated historical materials.
No NARA employee may disclose any record to any person or to another agency without the express written consent of the subject individual unless the disclosure is:
(a) To NARA employees who have a need for the information in the official performance of their duties;
(b) Required by the provisions of the Freedom of Information Act;
(c) For a routine use as published in a notice in the
(d) To the Bureau of the Census for uses pursuant to title 13 U.S.C.;
(e) To a recipient who has provided NARA with advance adequate written assurance that the record will be used solely as a statistical research or reporting record. The record shall be transferred in a form that is not individually identifiable. The written statement shall include as a minimum:
(1) A statement of the purpose for requesting the records; and
(2) Certification that the records will be used only for statistical purposes; these written statements shall be maintained as records. In addition to deleting personal identifying information from records released for statistical purposes, the system manager shall ensure that the identity of the individual cannot reasonably be deduced by combining various statistical records.);
(f) To the National Archives of the United States as a record which has sufficient historical or other value to warrant its continued preservation by the United States Government;
(g) To another agency or instrumentality of any governmental jurisdiction within or under the control of the United States for a civil or criminal law enforcement activity, if the activity is authorized by law, and if the head of the agency or instrumentality or his or her other designated representative has made a written request to NARA specifying the particular portion desired and the law enforcement activity for which the record is sought;
(h) To a person showing compelling circumstances affecting the health or safety of an individual, not necessarily the individual to whom the record pertains (upon such disclosure, a notification must be sent to the last known address of the subject individual);
(i) To either House of Congress or to a subcommittee or committee (joint or of either House, to the extent that the subject matter falls within its jurisdiction);
(j) To the Comptroller General or any of his authorized representatives in the course of the performance of the duties of the General Accounting Office;
(k) To a consumer reporting agency in accordance with section 3711(f) of title 31; or
(l) Pursuant to the order of a court of competent jurisdiction.
(a) Address all requests for disclosure of records pertaining to a third party to the NARA Privacy Act Officer (NAA), National Archives and Records Administration, Washington, DC 20408. Upon receipt of such request, NARA shall verify the right of the requester to obtain disclosure pursuant to § 1202.30. Upon verification, the system manager shall make the requested records available. NARA shall acknowledge requests within 10 workdays and shall make a decision within 30 workdays, unless NARA notifies the requester that the time limit must be extended for good cause.
(b) If NARA determines that the disclosure is not permitted under § 1202.30, the Assistant Archivist for Management and Administration or the Inspector General (for records for which the Inspector General is the system manager) shall deny the request in writing. The requester shall be informed of the right to submit a request for review and final determination to the appropriate NARA Privacy Act Appeal Officer.
(1) Requests for review involving records for which the Inspector General is the system manager shall be addressed to the NARA Privacy Act Appeal Officer (N), National Archives and Records Administration, Washington, DC 20408.
(2) Requests for review involving all other records shall be addressed to the NARA Privacy Act Appeal Officer (ND), National Archives and Records Administration, Washington, DC 20408.
(a) Except for disclosures made pursuant to § 1202.30(a) and (b), an accurate accounting of each disclosure shall be made and retained for 5 years after the disclosure or for the life of the record, whichever is longer. The accounting shall include the date, nature, and purpose of each disclosure, and the name and address of the person or agency to whom the disclosure is made.
(b) The system manager also shall maintain in conjunction with the accounting of disclosures:
(1) A full statement of the justification for the disclosures;
(2) All documentation surrounding disclosure of a record for statistical or law enforcement purposes; and
(3) Evidence of written consent by the subject individual to a disclosure.
(c) Except for the accounting of disclosures made to agencies or instrumentalities in law enforcement activities in accordance with § 1202.30 or of disclosures made from exempt systems (see subpart F of this part), the accounting of disclosures shall be made available to the individual upon request. Procedures for requesting access to the accounting are in subpart C of this part.
(a) Individuals seeking access to their records or to any information pertaining to themselves which is contained in a system of records should notify the system manager or applicable NARA official at the address indicated in the
(b) The request shall be in writing and shall bear the legend “Privacy Act Request” both on the request letter and on the envelope. The request letter shall contain:
(1) The complete name and identifying number of the NARA system as published in the
(2) The full name and address of the subject individual;
(3) A brief description of the nature, time, place, and circumstances of the individual's association with NARA; and
(4) Any other information which the individual believes would help the system manager to determine whether the information about the individual is included in the system of records.
(c) System managers at their discretion, may accept oral requests for access to a NARA system of records, subject to verification of identity.
(a) A system manager who receives a request from an individual for access to those official medical records which belong to the Office of Personnel Management and are described in chapter 339 of the Federal Personnel Manual (medical records which are otherwise filed in the Official Personnel Folder), shall refer the pertinent system of records to a Federal Medical Officer for review and determination in accordance with this section. If no Federal medical officer is available to make the determination required by this section, the system manager shall refer the request and the medical reports concerned to the Office of Personnel Management for a determination.
(b) If, in the opinion of a Federal Medical Officer, medical records requested by the subject individual indicate a condition about which a prudent physician would hesitate to inform a person suffering from such a condition of its exact nature and probable outcome, the system manager shall not release the medical information to the subject individual nor to any person other than a physician designated in writing by the subject individual, his or her guardian, or conservator.
(c) If, in the opinion of a Federal medical officer, the medical information does not indicate the presence of any condition which would cause a prudent physician to hesitate to inform a person suffering from such a condition of its exact nature and probable outcome, the system manager shall release the information to the subject individual or to any person, firm, or organization which the individual authorizes in writing to receive it.
(a) Upon receipt of a request for access to non-exempt records, the system manager shall make such records available to the subject individual or shall acknowledge the request within 10 workdays of its receipt by NARA. The acknowledgment shall indicate when the system manager will make the records available.
(b) If the system manager anticipates more than a 10-day delay in making a record available, he or she also shall include in the acknowledgment specific reasons for the delay.
(c) If a subject individual's request for access does not contain sufficient information to permit the system manager to locate the records, the system
(d) Records will be made available for authorized access during normal business hours at the NARA offices where the records are located. Requesters should be prepared to identify themselves by signature (i.e., to sign the access log on the date of access and to produce other identification verifying the signature).
(e) Upon request, a system manager shall permit a subject individual to examine the original of a non-exempt record, shall provide the individual with a copy of the record, or both. Fees shall be charged only for copies requested by the individual and not for copies provided to the individual for the convenience of NARA.
(f) Subject individuals may request to pick up a record in person or to receive it by mail, directed to the name and address provided by the individuals in their request. A system manager shall not make a record available to a third party for delivery to the subject individual, except for medical records as outlined in § 1202.42.
(g) Subject individuals who wish to have a person of their choosing review, accompany them in reviewing, or obtain a copy of a record must, prior to the disclosure of their record, sign a statement authorizing the disclosure. The system manager shall maintain this statement with the record.
(h) The procedure for access to an accounting of disclosures is identical to the procedure for access to a record as set forth in this section.
(a) A system manager may deny a subject individual access to his or her record only on the grounds that NARA has published rules in the
(b) Upon receipt of a request for access to a record which the system manager believes is contained within an exempt system of records, he or she shall forward the request to the Assistant Archivist for Management and Administration. The system manager shall append to the request an explanation of the determination that the requested record is contained within an exempt system of records and a recommendation that the request be denied or granted.
(c) If the system manager is the Assistant Archivist for Management and Administration, that person shall retain the responsibility for denying or granting the request.
(d) If the system manager is the Inspector General, that person shall retain the responsibility for denying or granting the request.
(e) The Assistant Archivist for Management and Administration shall, in consultation with legal counsel and such other officials as deemed appropriate, determine if the requested record is in fact contained within an exempt system of records and:
(1) If the record is not contained within an exempt system of records, the Assistant Archivist for Management and Administration shall notify the system manager to grant the request in accordance with § 1202.44, or
(2) If the record is contained within an exempt system of records, the Assistant Archivist for Management and Administration shall:
(i) Notify the requester that the request is denied, including a statement justifying the denial and advising the requester of the right to judicial review of that decision as provided in § 1202.74; or
(ii) Notify the system manager to make the record available to the requester in accordance with § 1202.44, notwithstanding the inclusion of the record within an exempt system of records.
(a) Requesters denied access in whole or part to records pertaining to them, exclusive of those records for which the system manager is the Archivist of the
(1) Appeals involving records for which the Inspector General is the system manager should be addressed to NARA Privacy Act Appeal Official (N), National Archives and Records Administration, Washington, DC 20408.
(2) All other appeals should be addressed to NARA Privacy Act Appeal Official (ND), National Archives and Records Administration, Washington, DC 20408.
(b) Each appeal to the NARA Privacy Act appeal official shall be in writing. The appeal should bear the legend “Privacy Act—Access Appeal,” on both the face of the letter and the envelope.
(c) Upon receipt of an appeal, the NARA Privacy Act appeal official shall consult with the system manager, the official who made the denial, legal counsel, and such other officials as may be appropriate. If the NARA Privacy Act appeal official, in consultation with these officials, determines that the request for access should be granted because the subject records are not exempt, the NARA Privacy Act appeal official shall immediately either instruct the system manager in writing to grant access to the record in accordance with § 1202.44 or shall grant access and shall notify the requester of that action.
(d) If the NARA Privacy Act appeal official, in consultation with the officials specified in paragraph (c) of this section, determines that the appeal should be rejected, the NARA Privacy Act appeal official immediately shall notify the requester in writing of that determination. This action shall constitute NARA's final determination on the request for access to the record and shall include:
(1) The reason for the rejection of the appeal; and
(2) Notice of the requester's right to seek judicial review of NARA's final determination, as provided in § 1202.74.
(e) The final NARA determination will be made no later than 30 workdays from the date on which the appeal is received by the NARA Privacy Act appeal official. The NARA Privacy Act appeal official may extend this time limit by notifying the requester in writing before the expiration of the 30 workdays. The NARA Privacy Act appeal official's notification shall include an explanation of the reasons for the extension of time.
(f) Denial of access by the Archivist to records for which the Archivist is the system manager shall constitute the NARA final determination in such instances. Requesters shall be given notice of their right to seek judicial review of the determination, as provided in § 1202.74.
The system manager shall provide one electrostatic copy of a record to a requester at a fee of $0.20 per page if NARA makes the copy or $0.10 per page if the requester makes the copy on a NARA self-service copier.
If the system manager determines that the estimated total fee is likely to exceed $25, the system manager shall notify the individual that the estimated fee must be prepaid prior to NARA's making the records available. NARA will remit any excess amount paid by the individual or bill the individual for an additional amount if there is a variation between the final fee charged and the amount prepaid.
Payment shall be by check or money order payable to the National Archives and Records Administration and shall be addressed to the system manager.
Subject individuals who desire to amend any record containing personal information about themselves should write to the NARA system manager specified in the pertinent
(a) The system manager shall acknowledge receipt of a request to amend a record within 10 workdays. If possible, the acknowledgment should include the system manager's determination either to amend the record or to deny the request to amend as provided in § 1202.66.
(b) When reviewing a record in response to a request to amend, the system manager shall assess the accuracy, relevance, timeliness, and completeness of the existing record in light of the proposed amendment. The system manager shall determine whether the amendment is justified. With respect to a request to delete information, the system manager also shall review the request and existing record to determine whether the information is relevant and necessary to accomplish an agency purpose required to be accomplished by law or Executive order.
If the system manager determines that amendment of a record is proper in accordance with the request to amend, he or she promptly shall make the necessary amendment to the record and shall send a copy of the amended record to the subject individual. Where an accounting of disclosure has been maintained, the system manager shall advise all previous recipients of the record of the fact that an amendment has been made and give the substance of the amendment. Where practicable, the system manager shall send a copy of the amended record to previous recipients. The system manager shall advise the Assistant Archivist for Management and Administration that a request to amend has been approved.
(a) Except where the system manager is the Inspector General, if the system manager determines that an amendment of a record is improper or that the record should be amended in a manner other than that requested by an individual, the request to amend and the system manager's determinations and recommendations shall be referred to the Assistant Archivist for Management and Administration. If the system manager is the Inspector General, that person shall retain the responsibility for granting or denying the request to amend.
(b) If the Assistant Archivist for Management and Administration, after reviewing the request to amend a record, determines to amend the record in accordance with the request, the Assistant Archivist promptly shall return the request to the system manager with instructions to make the requested amendments in accordance with § 1202.64.
(c) If the Assistant Archivist for Management and Administration, after reviewing the request to amend a record, determines not to amend the record in accordance with the request, the Assistant Archivist promptly shall advise the requester in writing of the decision. The denial letter shall state the reasons for the denial of the request to amend; include proposed alternative amendments, if appropriate; state the requester's right to appeal the denial of the request to amend; and state the procedure for appealing.
If the denial of a request to amend a record includes proposed alternative amendments, and if the requester agrees to accept them, the requester shall notify the NARA official who signed the denial letter. That official shall immediately instruct the system manager to make the necessary amendments in accordance with § 1202.64.
(a) A requester who disagrees with a denial of a request to amend a record may file an appeal of that denial.
(1) If the denial was signed by the Assistant Archivist for Management and Administration, the requester shall address the appeal to the NARA Privacy Act Appeal Official (ND), Washington, DC 20408.
(2) If the denial was signed by the Inspector General, the requester shall address the appeal to the NARA Privacy Act Appeal Official (N), Washington, DC 20408.
(3) If the requester is an employee of NARA and the denial to amend involves a record maintained in the employee's Official Personnel Folder, as described in chapter 293 of the Federal Personnel Manual, the appeal should be addressed to the Assistant Director, Workforce Information Office, Compliance and Investigations Group, Office of Personnel Management, 1900 E Street, NW., Washington, DC 20415.
(b) Each appeal to the NARA Privacy Act appeal official shall be in writing and must be received no later than 30 calendar days from the date of the requester's receipt of a denial of a request to amend a record. The appeal shall bear the legend “Privacy Act—Appeal,” both on the face of the letter and the envelope.
(c) Upon receipt of an appeal, the NARA Privacy Act appeal official shall consult with the system manager, the official who made the denial, legal counsel, and such other officials as may be appropriate. If the NARA Privacy Act appeal official, in consultation with these officials, determines that the record should be amended as requested, he or she immediately shall instruct the system manager to amend the record in accordance with § 1202.64 and shall notify the requester of that action.
(d) If the NARA Privacy Act appeal official, in consultation with the officials specified in paragraph (c) of this section, determines that the appeal should be rejected, the NARA Privacy Act appeal official immediately shall notify the requester in writing of that determination. This action shall constitute the NARA final determination on the request to amend the record and shall include:
(1) The reasons for the rejection of the appeal;
(2) Proposed alternative amendments, if appropriate, which the requester subsequently may accept in accordance with § 1202.68;
(3) Notice of the requester's right to file a Statement of Disagreement for distribution in accordance with § 1202.72; and
(4) Notice of the requester's right to seek judicial review of the NARA final determination, as provided in § 1202.74.
(e) The NARA final determination shall be made no later than 30 workdays from the date on which the appeal is received by the NARA Privacy Act appeal official. In extraordinary circumstances, the NARA Privacy Act appeal official may extend this time limit by notifying the requester in writing before the expiration of the 30 workdays. The NARA Privacy Act appeal official's notification shall include a justification for the extension of time.
Upon receipt of a NARA final determination denying a request to amend a record, the requester may file a Statement of Disagreement with the appropriate system manager. The Statement of Disagreement shall include an explanation of why the requester believes the record to be inaccurate, irrelevant, untimely, or incomplete. The system manager shall maintain the Statement of Disagreement in conjunction with the pertinent record and shall include a copy of the Statement of Disagreement in any disclosure of the pertinent record. The system manager shall provide a copy of the Statement of Disagreement to any person or agency to whom the record has been disclosed only if the disclosure was subject to the accounting requirements of § 1202.34.
Within 2 years of receipt of a NARA final determination as provided in § 1202.48 or § 1202.70, a requester may seek judicial review of that determination. A civil action must be filed in the
(a) Prior to the establishment of a new NARA system of records or the alteration of an existing NARA system of records, the system manager shall notify the Assistant Archivist for Management and Administration of the proposed new system or alteration. The system manager shall include with the notification a complete description and justification for each system of records that the system manager proposes to establish or alter. If the Assistant Archivist for Management and Administration determines that the establishment or alteration of a system of records is in the best interest of the Government, the Assistant Archivist for Management and Administration will submit, no later than 60 calendar days prior to the establishment or alteration of a system of records, a report of the proposal to the President of the Senate, the Speaker of the House of Representatives, and the Director of the Office of Management and Budget for their evaluation of the probable or potential effect of the proposal on the privacy and other personal or property rights of individuals.
(b) The reports required by this regulation are exempt from reports control.
The NARA Assistant Archivist for Management and Administration shall publish in the
(a) Notice is received that the Senate, the House of Representatives, and the Office of Management and Budget do not object to the establishment of a new system of records or to the alteration of an existing system of records, or
(b) No fewer than 30 calendar days have elapsed from the date of submission of the proposal to the Senate, the House of Representatives, and the Office of Management and Budget without receipt by NARA of an objection to the proposal.
Systems of records proposed to be established or altered in accordance with this subpart shall be effective no sooner than 30 calendar days from the publication of the notice required by § 1202.82.
(a) The following NARA systems of records are exempt from subsections (c)(3); (d); (e)(1); (e)(4) (G), (H), and (I); and (f) of the Privacy Act of 1974;
(1) Investigation Case Files, NARA-23.
(2) Personnel Security Case Files, NARA-24.
(b) These systems of records are exempt:
(1) To the extent that the systems consist of investigatory material compiled for law enforcement purposes; however, if any subject individual is denied any right, privilege, or benefit to which the individual would otherwise be eligible, as a result of the maintenance of such material, such material shall be provided to such individual, except to the extent that the disclosure of such material would reveal the indentity of a source who furnished information to the Government under an express promise that the identity of the source would be held in confidence, or, prior to the effective date of this section, under an implied promise that the identity of the source would be held in confidence; and
(2) To the extent the systems of records consist of investigatory material compiled solely for the purpose of determining suitability, eligibility, or qualification for Federal civilian employment, military service, Federal contracts, or access to classified information, but only to the extent that the
(c) These NARA systems of records have been exempted to maintain the efficacy and integrity of investigations conducted pursuant to NARA's responsibilities in the areas of Federal employment, Government contracts, and access to security classified information.
Requests for assistance and referral to the responsible system manager or other NARA employee charged with implementing these regulations should be made to the NARA Privacy Act Officer (NAA), National Archives and Records Administration, Washington, DC 20408.
44 U.S.C. 2104(a); 44 U.S.C. 2501-2506.
This part prescribes the procedures and rules governing the operation of the grant program of the National Historical Publications and Records Commission.
(a) The term
(b) The term
(c) In §§ 1206.36 and 1206.38, the term
(d) In § 1206.36(a), the term
(e) The term
(f) The term
(g) The term
The National Historical Publications and Records Commission makes plans, estimates, and recommendations regarding the preservation and use of historical records that may be important for an understanding and appreciation of the history of the United States. It also cooperates with and encourages appropriate Federal, State, and local agencies and nongovernmental institutions in collecting and preserving and, when it considers it desirable, in editing and publishing the records of outstanding citizens, groups, or institutions and other important documents. On recommendation of the Commission, the Archivist of the United States makes grants to State and local agencies and to non-profit organizations and institutions and to individuals in support of these programs.
The Commission operates primarily through a grant program supporting publications projects (subpart B) and records projects (subpart C). Fellowships for individuals in archival administration and documentary editing are also offered, as well as an annual institute for the editing of historical documents.
The Executive Director, Program Director, and the staff of the Commission administer the publications and records grants under the guidance of the Commission and the immediate administrative direction of its chairman, the Archivist of the United States.
This subpart describes the scope, purpose, and operation of that part of the grant program relating to publications projects and prescribes requirements applicable to printed, microform, and electronic publication projects. Grant application and administration procedures are given in subpart D of this part.
Publications projects are intended to ensure the dissemination and accessibility of documentary source material important to the study and understanding of U.S. history. Projects should therefore be based upon material of widespread interest among scholars, students, and informed citizens. Documents should have historical value and interest that transcend local and State boundaries.
(a) Each publications project shall include either the papers of a U.S. leader in a significant phase of life in the United States or documents relating to some outstanding event or to some topic or theme of national significance in U.S. history. These projects shall
(b) For microform projects, the grantee shall make positive prints and all finding aids available to institutions, scholars, or students through interlibrary loan and for purchase. Five complimentary copies of guides and indexes produced by the projects shall be sent to the Commission.
(a) The Commission will consider grant applications from university and other nonprofit presses for the subvention of part of the costs of manufacturing and disseminating volumes that have been formally endorsed by the Commission. Grants not exceeding $10,000 per volume ($3,000 for reprints) are awarded upon recommendation of the Commission to promote the availability of Commission-supported documentary editions.
(b) The granting of a subvention shall be used to encourage the highest standards in the production of volumes, particularly the quality of paper and ink.
(c) The Commission shall receive five complimentary copies of each published volume for which a subvention grant is made.
Technical standards for NHPRC-sponsored microform projects are stated in the brochure “National Historical Publications and Records Commission: Microform Guidelines,” which will be supplied to applicants upon request and to grantee institutions at the time a grant is made for a microform project.
This subpart describes the scope, purpose, and operation of that part of the grant program relating to records projects. Grant application and administration procedures are given in subpart D of this part.
Through its support for records projects, the National Historical Publications and Records Commission encourages a greater effort at all levels of government and by private organizations to preserve and make available for use those records, generated in every facet of life, that further an understanding and appreciation of U.S. history. In the public sector, these historical records document significant activities of State, county, municipal, and other units of government. In the private sector, historical records include manuscripts, personal papers, and family or corporate archives that are maintained by a variety of general repositories as well as materials in special collections relating to particular fields of study, including the arts, business, education, ethnic and minority groups, immigration, labor, politics, professional services, religion, science, urban affairs, and women. In addition to recommending the supporting of projects relating directly to a body of records, the Commission may also recommend support for projects to advance the state of the art, to promote cooperative efforts among institutions and organizations, and to improve the knowledge, performance, and professional skills of those who work with historical records.
(a) The governor of each State desiring to participate fully in the program shall appoint a State historical records coordinator (coordinator), who shall be the full-time professional official in charge of the State archival program or agency. If the State has another state-funded historical agency or agencies with archival and/or records responsibilities, the official(s) in charge of at least one of these shall be a member of the State historical records advisory board (board). The coordinator is appointed to a minimum four-year term, but may continue to serve until replaced by the governor or until resignation. The coordinator shall serve as chair of the board and shall be the central coordinating officer for the historical records grant program in the State. The person appointed will not be deemed to be an official or employee of the Federal Government and will receive no Federal compensation for such service. The pamphlet “Guidelines for State Historical Records Coordinators and State Historical Records Advisory Boards,” which is available from the Commission and from State historical records coordinators, provides further information on the role of the coordinator.
(b) In the event of the resignation of the coordinator or other inability to serve, a deputy coordinator, if one has been designated, will serve as acting State coordinator until the governor makes an appointment. In the absence of a deputy coordinator, the NHPRC will recognize an acting coordinator, selected by the state board, who shall serve until the governor appoints a coordinator in order to conduct the necessary business of the board.
A deputy State historical records coordinator may be designated to assist in carrying out the duties and responsibilities of the coordinator and to serve as an acting coordinator at the coordinator's direction or upon the coordinator's resignation or other inability to serve.
(a) Each State desiring to participate in the program shall define an appointment process and appoint a State historical records advisory board consisting of at least seven members, including the State historical records coordinator, who chairs the board, unless otherwise specified in state statute. The coordinator shall provide the Commission with a description of the appointment process. A majority of the members shall have recognized experience in the administration of government records, historical records, or archives. The board should be as broadly representative as possible of the public and private archives, records offices, and research institutions and organizations in the State. Board members will not be deemed to be officials or employees of the Federal Government and will receive no Federal compensation for their service on the board. They are appointed for three years with the possibility of renewal; and preferably terms are staggered so that one-third of the board is newly appointed or reappointed each year. If the board is not established in State law, members’ terms continue until replacements are appointed. The board may adopt standards for attendance and may declare membership positions open if those standards are not met.
(b) The board is the central advisory body for historical records planning and for Commission-funded projects developed and carried out within the State. The board serves as a coordinating body to facilitate cooperation among historical records repositories and other information agencies within the state and as a state-level review body for grant proposals as defined in the Commission's guidelines. Specifically, the board may perform such duties as sponsoring and publishing surveys of the conditions and needs of historical records in the State; soliciting or developing proposals for projects to be carried out in the State with NHPRC grants; reviewing proposals by institutions in the State and making recommendations about these to the Commission; developing, revising, and submitting to the Commission State priorities for historical records
(a)
(b)
(c)
(d)
Grant limitations are described in the grant program guidelines pamphlet, available on request from the Commission.
The Commission will consider applications from State and local government agencies, nonprofit organizations and institutions, Federally acknowledged or state-recognized Native American tribes or groups, and, under certain conditions, from individuals. Proposals for State projects falling under the Commission's goals, “To Assure the Preservation of the Nation's Documentary Heritage through State Collaborative Efforts” and “To Achieve Progress in the Preservation and Use of Original Source Material,” as defined in the grant program guidelines, will be accepted only from applicants in States in which a State historical records coordinator and a State historical records advisory board are currently appointed. This requirement
Grant proposals are considered during Commission meetings held three times during the year. For current application deadlines contact the grant program staff or State historical records coordinators (for records grant proposals). Some State boards have established pre-submission review deadlines for records proposals; further information is available from State coordinators.
(a)
(b)
(c)
(d)
(a)
(b)
(c)
Primary responsibility for the administration of grants is shared by the grantee institution and the project director designated by the institution. In the case of grants made to individuals, the individual named as project director has primary responsibility for the administration of the grant. Grants shall be administered in conformance with either the regulations in part 1210 of this chapter or, in the case of State and local governments, with the regulations in part 1207 of this chapter. All grants shall be in conformance with part 1209 of this chapter.
(a)
(1)
(2)
(3)
(b)
The grant award instrument is a letter from the Archivist of the United States to the grantee. The letter and attachments specify terms of the grant.
(a) Financial status reports and narrative progress reports are required for all grants. Standard Form 269, Financial Status Report, shall be used for all financial reports. The pamphlet, “Program Guidelines: Applications and Grants,” which is provided to each grantee and is available from the Commission on request, specifies the content of the narrative progress reports (OMB Control Number 3095-0013).
(b) Financial reports are due annually 30 days after the end of each reporting period. Narrative progress reports are due 30 days after the end of each six-month period. Final financial and narrative reports are due within 90 days after the expiration or termination of the grant period. Grants with a duration of six months or less require a final report only. Additional rules on financial and performance reports are found in §§ 1210.51 and 1210.52 or §§ 1207.40 and 1207.41 of this chapter, as appropriate.
Grantees are responsible for obtaining audits in accordance with either the Single Audit Act of 1984 (31 U.S.C. 7501-7), for which audit requirements have been set forth in Office of Management and Budget (OMB) Circular A-128, “Audits of State and Local Governments,” or requirements established under OMB Circular A-133, “Audits of Institutions of Higher Education and Other Nonprofit Organizations,” as appropriate. Copies are available from the Commission office or from OMB. The grantee is responsible for ensuring that the NHPRC receives a copy of the audit report for any audit performed during the grant period or for three years thereafter. A reasonable portion of grant funds, as defined in the OMB Circular, may be used to comply with audit requirements. The Commission prefers that the grantee assume such costs as institutional cost sharing.
NARA and the Commission cannot assume any liability for accidents, illnesses, or claims arising out of any work undertaken with the assistance of the grant.
Grantee institutions, grant directors, or grant staff personnel may publish results of any work supported by an NHPRC grant without review by the Commission. Publications or other products resulting from the project, shall, however, acknowledge the assistance of the NHPRC grant.
In addition to the grant application and grant administration requirements outlined in this part 1206, grantees are responsible for complying with applicable Governmentwide requirements contained in part 1210 or part 1207 of this chapter, as appropriate, and part 1209 of this chapter.
44 U.S.C. 2104(a); 44 U.S.C. 2501-2506.
This part establishes uniform administrative rules for Federal grants and cooperative agreements and subawards to State, local and Indian tribal governments.
This subpart contains general rules pertaining to this part and procedures for control of exceptions from this part.
As used in this part:
(a)
(1) Grants and subgrants to State and local institutions of higher education or State and local hospitals.
(2) The block grants authorized by the Omnibus Budget Reconciliation Act of 1981 (Community Services; Preventive Health and Health Services; Alcohol, Drug Abuse, and Mental Health Services; Maternal and Child Health Services; Social Services; Low-Income Home Energy Assistance; States’ Program of Community Development Block Grants for Small Cities; and Elementary and Secondary Education other than programs administered by the Secretary of Education under title V, subtitle D, chapter 2, section 583—the Secretary's discretionary grant program) and titles I-III of the Job Training Partnership Act of 1982 and under the Public Health Services Act (section 1921), Alcohol and Drug Abuse Treatment and Rehabilitation Block Grant and part C of title V, Mental Health Service for the Homeless Block Grant).
(3) Entitlement grants to carry out the following programs of the Social Security Act:
(i) Aid to Needy Families with Dependent Children (title IV-A of the Act, not including the Work Incentive Program (WIN) authorized by section 402(a)19(G); HHS grants for WIN are subject to this part);
(ii) Child Support Enforcement and Establishment of Paternity (title IV-D of the Act);
(iii) Foster Care and Adoption Assistance (title IV-E of the Act);
(iv) Aid to the Aged, Blind, and Disabled (titles I, X, XIV, and XVI-AABD of the Act); and
(v) Medical Assistance (Medicaid) (title XIX of the Act) not including the State Medicaid Fraud Control program authorized by section 1903(a)(6)(B).
(4) Entitlement grants under the following programs of The National School Lunch Act:
(i) School Lunch (section 4 of the Act),
(ii) Commodity Assistance (section 6 of the Act),
(iii) Special Meal Assistance (section 11 of the Act),
(iv) Summer Food Service for Children (section 13 of the Act), and
(v) Child Care Food Program (section 17 of the Act).
(5) Entitlement grants under the following programs of The Child Nutrition Act of 1966:
(i) Special Milk (section 3 of the Act), and
(ii) School Breakfast (section 4 of the Act).
(6) Entitlement grants for State Administrative expenses under The Food Stamp Act of 1977 (section 16 of the Act).
(7) A grant for an experimental, pilot, or demonstration project that is also supported by a grant listed in paragraph (a)(3) of this section;
(8) Grant funds awarded under subsection 412(e) of the Immigration and Nationality Act (8 U.S.C. 1522(e)) and subsection 501(a) of the Refugee Education Assistance Act of 1980 (Pub. L. 96-422, 94 Stat. 1809), for cash assistance, medical assistance, and supplemental security income benefits to refugees and entrants and the administrative costs of providing the assistance and benefits;
(9) Grants to local education agencies under 20 U.S.C. 236 through 241-1(a), and 242 through 244 (portions of the Impact Aid program), except for 20 U.S.C. 238(d)(2)(c) and 240(f) (Entitlement Increase for Handicapped Children); and
(10) Payments under the Veterans Administration's State Home Per Diem Program (38 U.S.C. 641(a)).
(b)
All other grants administration provisions of codified program regulations, program manuals, handbooks and other nonregulatory materials which are inconsistent with this part are superseded, except to the extent they are required by statute, or authorized in accordance with the exception provision in § 1207.6.
(a) For classes of grants and grantees subject to this part, Federal agencies may not impose additional administrative requirements except in codified regulations published in the
(b) Exceptions for classes of grants or grantees may be authorized only by OMB.
(c) Exceptions on a case-by-case basis and for subgrantees may be authorized by the affected Federal agencies.
(a)
(2) This section applies only to applications to Federal agencies for grants, and is not required to be applied by grantees in dealing with applicants for subgrants. However, grantees are encouraged to avoid more detailed or burdensome application requirements for subgrants.
(b)
(2) Applicants are not required to submit more than the original and two copies of preapplications or applications.
(3) Applicants must follow all applicable instructions that bear OMB clearance numbers. Federal agencies may specify and describe the programs, functions, or activities that will be used to plan, budget, and evaluate the work under a grant. Other supplementary instructions may be issued only with the approval of OMB to the extent required under the Paperwork Reduction Act of 1980. For any standard form, except the SF-424 facesheet, Federal agencies may shade out or instruct the applicant to disregard any line item that is not needed.
(4) When a grantee applies for additional funding (such as a continuation or supplemental award) or amends a previously submitted application, only the affected pages need be submitted. Previously submitted pages with information that is still current need not be resubmitted.
(a)
(b)
(c)
(1) Cite by number the statutory or regulatory provisions requiring the assurances and affirm that it gives the assurances required by those provisions,
(2) Repeat the assurance language in the statutes or regulations, or
(3) Develop its own language to the extent permitted by law.
(d)
(a) A grantee or subgrantee may be considered “high risk” if an awarding agency determines that a grantee or subgrantee:
(1) Has a history of unsatisfactory performance, or
(2) Is not financially stable, or
(3) Has a management system which does not meet the management standards set forth in this part, or
(4) Has not conformed to terms and conditions of previous awards, or
(5) Is otherwise not responsible; and if the awarding agency determines that an award will be made, special conditions and/or restrictions shall correspond to the high risk condition and shall be included in the award.
(b) Special conditions or restrictions may include:
(1) Payment on a reimbursement basis;
(2) Withholding authority to proceed to the next phase until receipt of evidence of acceptable performance within a given funding period;
(3) Requiring additional, more detailed financial reports;
(4) Additional project monitoring;
(5) Requiring the grante or subgrantee to obtain technical or management assistance; or
(6) Establishing additional prior approvals.
(c) If an awarding agency decides to impose such conditions, the awarding official will notify the grantee or subgrantee as early as possible, in writing, of:
(1) The nature of the special conditions/restrictions;
(2) The reason(s) for imposing them;
(3) The corrective actions which must be taken before they will be removed and the time allowed for completing the corrective actions and
(4) The method of requesting reconsideration of the conditions/restrictions imposed.
(a) A State must expand and account for grant funds in accordance with State laws and procedures for expending and accounting for its own funds. Fiscal control and accounting procedures of the State, as well as its subgrantees and cost-type contractors, must be sufficient to—
(1) Permit preparation of reports required by this part and the statutes authorizing the grant, and
(2) Permit the tracing of funds to a level of expenditures adequate to establish that such funds have not been used in violation of the restrictions and prohibitions of applicable statutes.
(b) The financial management systems of other grantees and subgrantees must meet the following standards:
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(c) An awarding agency may review the adequacy of the financial management system of any applicant for financial assistance as part of a preaward review or at any time subsequent to award.
(a)
(b)
(c)
(d)
(e)
(f)
(2) Except as provided in paragraph (f)(1) of this section, grantees and subgrantees shall disburse program income, rebates, refunds, contract settlements, audit recoveries and interest earned on such funds before requesting additional cash payments.
(g)
(i) The grantee or subgrantee has failed to comply with grant award conditions or
(ii) The grantee or subgrantee is indebted to the United States.
(2) Cash withheld for failure to comply with grant award condition, but without suspension of the grant, shall be released to the grantee upon subsequent compliance. When a grant is suspended, payment adjustments will be made in accordance with § 1207.43(c).
(3) A Federal agency shall not make payment to grantees for amounts that are withheld by grantees or subgrantees from payment to contractors to assure satisfactory completion of work. Payments shall be made by the Federal agency when the grantees or subgrantees actually disburse the withheld funds to the contractors or to escrow accounts established to assure satisfactory completion of work.
(h)
(2) A grantee or subgrantee shall maintain a separate bank account only when required by Federal-State agreement.
(i)
(a)
(1) The allowable costs of the grantees, subgrantees and cost-type contractors, including allowable costs in the form of payments to fixed-price contractors; and
(2) Reasonable fees or profit to cost-type contractors but not any fee or profit (or other increment above allowable costs) to the grantee or subgrantee.
(b)
(a)
(b)
(a)
(1) Allowable costs incurred by the grantee, subgrantee or a cost-type contractor under the assistance agreement. This includes allowable costs borne by non-Federal grants or by others cash donations from non-Federal third parties.
(2) The value of third party in-kind contributions applicable to the period to which the cost sharing or matching requirements applies.
(b)
(2)
(3)
(4)
(5)
(6)
(7)
(ii) Some third party in-kind contributions are goods and services that, if the grantee, subgrantee, or contractor receiving the contribution had to pay for them, the payments would have been an indirect costs. Costs sharing or matching credit for such contributions shall be given only if the grantee, subgrantee, or contractor has established, along with its regular indirect cost rate, a special rate for allocating to individual projects or programs the value of the contributions.
(iii) A third party in-kind contribution to a fixed-price contract may count towards satisfying a cost sharing or matching requirement only if it results in:
(A) An increase in the services or property provided under the contract (without additional cost to the grantee or subgrantee) or
(B) A cost savings to the grantee or subgrantee.
(iv) The values placed on third party in-kind contributions for cost sharing or matching purposes will conform to the rules in the succeeding sections of this part. If a third party in-kind contribution is a type not treated in those sections, the value placed upon it shall be fair and reasonable.
(c)
(2)
(d)
(2) If a third party donates the use of equipment or space in a building but retains title, the contribution will be valued at the fair rental rate of the equipment or space.
(e)
(1)
(2)
(i) If approval is obtained from the awarding agency, the market value at the time of donation of the donated equipment or buildings and the fair rental rate of the donated land may be counted as cost sharing or matching. In the case of a subgrant, the terms of the grant agreement may require that the approval be obtained from the Federal agency as well as the grantee. In all cases, the approval may be given only if a purchase of the equipment or rental of the land would be approved as an allowable direct cost. If any part of the donated property was acquired with Federal funds, only the non-federal share of the property may be counted as cost-sharing or matching.
(ii) If approval is not obtained under paragraph (e)(2)(i) of this section, no amount may be counted for donated land, and only depreciation or use allowances may be counted for donated equipment and buildings. The depreciation or use allowances for this property are not treated as third party in-kind contributions. Instead, they are treated as costs incurred by the grantee or subgrantee. They are computed and allocated (usually as indirect costs) in accordance with the cost principles specified in § 1207.22, in the same way as depreciation or use allowances for purchased equipment and buildings. The amount of depreciation or use allowances for donated equipment and buildings is based on the property's market value at the time it was donated.
(f)
(g)
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(1)
(2)
(3)
(h)
(a)
(b)
(1) Determine whether State or local subgrantees have met the audit requirements of the Act and whether subgrantees covered by OMB Circular A-110, “Uniform Administrative Requirements for Grants and Agreements with Institutions of Higher Education, Hospitals, and Other Non-Profit Organizations,” have met the audit requirements of the Act. Commercial contractors (private for-profit and private and governmental organizations) providing goods and services to State and local governments are not required to have a single audit performed. State and local governments should use their own procedures to ensure that the contractor has complied with laws and regulations affecting the expenditure of Federal funds;
(2) Determine whether the subgrantee spent Federal assistance funds provided in accordance with applicable laws and regulations. This may be accomplished by reviewing an audit of the subgrantee made in accordance with the Act, Circular A-110, or through other means (e.g., program reviews) if the subgrantee has not had such an audit;
(3) Ensure that appropriate corrective action is taken within six months after receipt of the audit report in instance of noncompliance with Federal laws and regulations;
(4) Consider whether subgrantee audits necessitate adjustment of the grantee's own records; and
(5) Require each subgrantee to permit independent auditors to have access to the records and financial statements.
(c)
(a)
(b)
(c)
(i) Any revision which would result in the need for additional funding.
(ii) Unless waived by the awarding agency, cumulative transfers among direct cost categories, or, if applicable, among separately budgeted programs, projects, functions, or activities which exceed or are expected to exceed ten percent of the current total approved budget, whenever the awarding agency's share exceeds $100,000.
(iii) Transfer of funds allotted for training allowances (i.e., from direct
(2)
(3)
(d)
(1) Any revision of the scope or objectives of the project (regardless of whether there is an associated budget revision requiring prior approval).
(2) Need to extend the period of availability of funds.
(3) Changes in key persons in cases where specified in an application or a grant award. In research projects, a change in the project director or principal investigator shall always require approval unless waived by the awarding agency.
(4) Under nonconstruction projects, contracting out, subgranting (if authorized by law) or otherwise obtaining the services of a third party to perform activities which are central to the purposes of the award. This approval requirement is in addition to the approval requirements of § 1207.36 but does not apply to the procurement of equipment, supplies, and general support services.
(e)
(f)
(2) A request for a prior approval under the applicable Federal cost principles (see § 1207.22) may be made by letter.
(3) A request by a subgrantee for prior approval will be addressed in writing to the grantee. The grantee will promptly review such request and shall approve or disapprove the request in writing. A grantee will not approve any budget or project revision which is inconsistent with the purpose or terms and conditions of the Federal grant to the grantee. If the revision, requested by the subgrantee would result in a change to the grantee's approved project which requires Federal prior approval, the grantee will obtain the Federal agency's approval before approving the subgrantee's request.
(a)
(b)
(c)
(1)
(2)
(3)
(a)
(b)
(c)
(2) The grantee or subgrantee shall also make equipment available for use on other projects or programs currently or previously supported by the Federal Government, providing such use will not interfere with the work on the projects or program for which it was originally acquired. First preference for other use shall be given to other programs or projects supported by the awarding agency. User fees should be considered if appropriate.
(3) Notwithstanding the encouragement in § 1207.25(a) to earn program income, the grantee or subgrantee must not use equipment acquired with grant funds to provide services for a fee to compete unfairly with private companies that provide equivalent services, unless specifically permitted or contemplated by Federal statute.
(4) When acquiring replacement equipment, the grantee or subgrantee may use the equipment to be replaced as a trade-in or sell the property and use the proceeds to offset the cost of the replacement property, subject to the approval of the awarding agency.
(d)
(1) Property records must be maintained that include a description of the property, a serial number or other identification number, the source of property, who holds title, the acquisition date, and cost of the property, percentage of Federal participation in the cost of the property, the location, use and condition of the property, and any ultimate disposition data including the date of disposal and sale price of the property.
(2) A physical inventory of the property must be taken and the results reconciled with the property records at least once every two years.
(3) A control system must be developed to ensure adequate safeguards to prevent loss, damage, or theft of the property. Any loss, damage, or theft shall be investigated.
(4) Adequate maintenance procedures must be developed to keep the property in good condition.
(5) If the grantee or subgrantee is authorized or required to sell the property, proper sales procedures must be established to ensure the highest possible return.
(e)
(1) Items of equipment with a current per-unit fair market value of less than $5,000 may be retained, sold or otherwise disposed of with no further obligation to the awarding agency.
(2) Items of equipment with a current per unit fair market value in excess of $5,000 may be retained or sold and the awarding agency shall have a right to an amount calculated by multiplying the current market value or proceeds from sale by the awarding agency's share of the equipment.
(3) In cases where a grantee or subgrantee fails to take appropriate disposition actions, the awarding agency may direct the grantee or subgrantee to take excess and disposition actions.
(f)
(1) Title will remain vested in the Federal Government.
(2) Grantees or subgrantees will manage the equipment in accordance with Federal agency rules and procedures, and submit an annual inventory listing.
(3) When the equipment is no longer needed, the grantee or subgrantee will request disposition instructions from the Federal agency.
(g)
(1) The property shall be identified in the grant or otherwise made known to the grantee in writing.
(2) The Federal awarding agency shall issue disposition instruction within 120 calendar days after the end of the Federal support of the project for which it was acquired. If the Federal awarding agency fails to issue disposition instructions within the 120 calendar-day period the grantee shall follow § 1207.32(e).
(3) When title to equipment is transferred, the grantee shall be paid an amount calculated by applying the percentage of participation in the purchase to the current fair market value of the property.
(a)
(b)
The Federal awarding agency reserves a royalty-free, nonexclusive, and irrevocable license to reproduce, publish or otherwise use, and to authorize others to use, for Federal Government purposes:
(a) The copyright in any work developed under a grant, subgrant, or contract under a grant or subgrant; and
(b) Any rights of copyright to which a grantee, subgrantee or a contractor purchases ownership with grant support.
Grantees and subgrantees must not make any award or permit any award (subgrant or contract) at any tier to any party which is debarred or suspended or is otherwise excluded from or ineligible for participation in Federal assistance programs under Executive Order 12549, “Debarment and Suspension.”
(a)
(b)
(2) Grantees and subgrantees will maintain a contract administration system which ensures that contractors perform in accordance with the terms, conditions, and specifications of their contracts or purchase orders.
(3) Grantees and subgrantees will maintain a written code of standards of conduct governing the performance of their employees engaged in the award and administration of contracts. No employee, officer or agent of the grantee or subgrantee shall participate in selection, or in the award or administration of a contract supported by Federal funds if a conflict of interest, real or apparent, would be involved. Such a conflict would arise when:
(i) The employee, officer or agent,
(ii) Any member of his immediate family,
(iii) His or her partner, or
(iv) An organization which employs, or is about to employ, any of the above, has a financial or other interest in the firm selected for award. The grantee's or subgrantee's officers, employees or agents will neither solicit nor accept gratuities, favors or anything of monetary value from contractors, potential contractors, or parties to subagreements. Grantee and subgrantees may set minimum rules where the financial interest is not substantial or the gift is an unsolicited item of nominal intrinsic value. To the extent permitted by State or local law or regulations, such standards or conduct will provide for penalties, sanctions, or other disciplinary actions for violations of such standards by the grantee's and subgrantee's officers, employees, or agents, or by contractors or their agents. The awarding agency may in regulation provide additional prohibitions relative to real, apparent, or potential conflicts of interest.
(4) Grantee and subgrantee procedures will provide for a review of proposed procurements to avoid purchase of unnecessary or duplicative items. Consideration should be given to consolidating or breaking out procurements to obtain a more economical purchase. Where appropriate, an analysis will be made of lease versus purchase alternatives, and any other appropriate analysis to determine the most economical approach.
(5) To foster greater economy and efficiency, grantees and subgrantees are encouraged to enter into State and local intergovernmental agreements for procurement or use of common goods and services.
(6) Grantees and subgrantees are encouraged to use Federal excess and surplus property in lieu of purchasing new equipment and property whenever such use is feasible and reduces project costs.
(7) Grantees and subgrantees are encouraged to use value engineering clauses in contracts for construction projects of sufficient size to offer reasonable opportunities for cost reductions. Value engineering is a systematic and creative anaylsis of each contract item or task to ensure that its essential function is provided at the overall lower cost.
(8) Grantees and subgrantees will make awards only to responsible contractors possessing the ability to perform successfully under the terms and conditions of a proposed procurement. Consideration will be given to such matters as contractor integrity, compliance with public policy, record of past performance, and financial and technical resources.
(9) Grantees and subgrantees will maintain records sufficient to detail the significant history of a procurement. These records will include, but are not necessarily limited to the following: rationale for the method of procurement, selection of contract type, contractor selection or rejection, and the basis for the contract price.
(10) Grantees and subgrantees will use time and material type contracts only—
(i) After a determination that no other contract is suitable, and
(ii) If the contract includes a ceiling price that the contractor exceeds at its own risk.
(11) Grantees and subgrantees alone will be responsible, in accordance with good administrative practice and sound business judgment, for the settlement of all contractual and administrative issues arising out of procurements. These issues include, but are not limited to source evaluation, protests, disputes, and claims. These standards do not relieve the grantee or subgrantee of any contractual responsibilities under its contracts. Federal agencies will not substitute their judgment for that of the grantee or subgrantee unless the matter is primarily a Federal concern. Violations of law will be referred to the local, State, or Federal authority having proper jurisdiction.
(12) Grantees and subgrantees will have protest procedures to handle and resolve disputes relating to their procurements and shall in all instances disclose information regarding the protest to the awarding agency. A protestor must exhaust all administrative remedies with the grantee and subgrantee before pursuing a protest with the Federal agency. Reviews of protests by the Federal agency will be limited to:
(i) Violations of Federal law or regulations and the standards of this section (violations of State or local law will be under the jurisdiction of State or local authorities) and
(ii) Violations of the grantee's or subgrantee's protest procedures for failure to review a complaint or protest. Protests received by the Federal agency other than those specified above will be referred to the grantee or subgrantee.
(c)
(i) Placing unreasonable requirements on firms in order for them to qualify to do business,
(ii) Requiring unnecessary experience and excessive bonding,
(iii) Noncompetitive pricing practices between firms or between affiliated companies,
(iv) Noncompetitive awards to consultants that are on retainer contracts,
(v) Organizational conflicts of interest,
(vi) Specifying only a “brand name” product instead of allowing “an equal” product to be offered and describing the performance of other relevant requirements of the procurement, and
(vii) Any arbitrary action in the procurement process.
(2) Grantees and subgrantees will conduct procurements in a manner that prohibits the use of statutorily or administratively imposed in-State or local geographical preferences in the evaluation of bids or proposals, except in those cases where applicable Federal statutes expressly mandate or encourage geographic preference. Nothing in this section preempts State licensing laws. When contracting for architectural and engineering (A/E) services, geographic location may be a selection criteria provided its application leaves an appropriate number of qualified firms, given the nature and size of the project, to compete for the contract.
(3) Grantees will have written selection procedures for procurement transactions. These procedures will ensure that all solicitations:
(i) Incorporate a clear and accurate description of the technical requirements for the material, product, or service to be procured. Such description shall not, in competitive procurements, contain features which unduly restrict competition. The description may include a statement of the qualitative nature of the material, product or service to be procured, and when necessary, shall set forth those minimum essential characteristics and standards to which it must conform if it is to satisfy its intended use. Detailed product specifications should be avoided if at all possible. When it is impractical or uneconomical to make a clear and accurate description of the technical requirements, a “brand name or equal” description may be used as a means to define the performance or other salient requirements of a procurement. The specific features of the named brand which must be met by offerors shall be clearly stated; and
(ii) Identify all requirements which the offerors must fulfill and all other factors to be used in evaluating bids or proposals.
(4) Grantees and subgrantees will ensure that all prequalified lists of persons, firms, or products which are used in acquiring goods and services are current and include enough qualified sources to ensure maximum open and free competition. Also, grantees and subgrantees will not preclude potential bidders from qualifying during the solicitation period.
(d)
(2) Procurement by
(i) In order for sealed bidding to be feasible, the following conditions should be present:
(A) A complete, adequate, and realistic specification or purchase description is available;
(B) Two or more responsible bidders are willing and able to compete effectively and for the business; and
(C) The procurement lends itself to a firm fixed price contract and the selection of the successful bidder can be made principally on the basis of price.
(ii) If sealed bids are used, the following requirements apply:
(A) The invitation for bids will be publicly advertised and bids shall be solicited from an adequate number of known suppliers, providing them sufficient time prior to the date set for opening the bids;
(B) The invitation for bids, which will include any specifications and pertinent attachments, shall define the items or services in order for the bidder to properly respond;
(C) All bids will be publicly opened at the time and place prescribed in the invitation for bids;
(D) A firm fixed-price contract award will be made in writing to the lowest responsive and responsible bidder. Where specified in bidding documents, factors such as discounts, transportation cost, and life cycle costs shall be considered in determining which bid is lowest. Payment discounts will only be used to determine the low bid when prior experience indicates that such discounts are usually taken advantage of; and
(E) Any or all bids may be rejected if there is a sound documented reason.
(3) Procurement by
(i) Requests for proposals will be publicized and identify all evaluation factors and their relative importance. Any response to publicized requests for proposals shall be honored to the maximum extent practical;
(ii) Proposals will be solicited from an adequate number of qualified sources;
(iii) Grantees and subgrantees will have a method for conducting technical evaluations of the proposals received and for selecting awardees;
(iv) Awards will be made to the responsible firm whose proposal is most advantageous to the program, with price and other factors considered; and
(v) Grantees and subgrantees may use competitive proposal procedures for qualifications-based procurement of architectural/engineering (A/E) professional services whereby competitors’ qualifications are evaluated and the most qualified competitor is selected, subject to negotiation of fair and reasonable compensation. The method, where price is not used as a selection factor, can only be used in procurement of A/E professional services. It cannot be used to purchase other types
(4) Procurement by
(i) Procurement by noncompetitive proposals may be used only when the award of a contract is infeasible under small purchase procedures, sealed bids or competitive proposals and one of the following circumstances applies:
(A) The item is available only from a single source;
(B) The public exigency or emergency for the requirement will not permit a delay resulting from competitive solicitation;
(C) The awarding agency authorizes noncompetitive proposals; or
(D) After solicitation of a number of sources, competition is determined inadequate.
(ii) Cost analysis, i.e., verifying the proposed cost data, the projections of the data, and the evaluation of the specific elements of costs and profits, is required.
(iii) Grantees and subgrantees may be required to submit the proposed procurement to the awarding agency for pre-award review in accordance with paragraph (g) of this section.
(e)
(2) Affirmative steps shall include:
(i) Placing qualified small and minority businesses and women's business enterprises on solicitation lists;
(ii) Assuring that small and minority businesses, and women's business enterprises are solicited whenever they are potential sources;
(iii) Dividing total requirements, when economically feasible, into smaller tasks or quantities to permit maximum participation by small and minority business, and women's business enterprises;
(iv) Establishing delivery schedules, where the requirement permits, which encourage participation by small and minority business, and women's business enterprises;
(v) Using the services and assistance of the Small Business Administration, and the Minority Business Development Agency of the Department of Commerce; and
(vi) Requiring the prime contractor, if subcontracts are to be let, to take the affirmative steps listed in paragraphs (e)(2)(i) through (v) of this section.
(f)
(2) Grantees and subgrantees will negotiate profit as a separate element of the price for each contract in which there is no price competition and in all cases where cost analysis is performed. To establish a fair and reasonable profit, consideration will be given to the complexity of the work to be performed, the risk borne by the contractor, the contractor's investment, the amount of subcontracting, the quality of its record of past performance, and industry profit rates in the surrounding geographical area for similar work.
(3) Costs or prices based on estimated costs for contracts under grants will be allowable only to the extent that costs incurred or cost estimates included in negotiated prices are consistent with Federal cost principles (see § 1207.22). Grantees may reference their own cost principles that comply with the applicable Federal cost principles.
(4) The cost plus a percentage of cost and percentage of construction cost methods of contracting shall not be used.
(g)
(2) Grantees and subgrantees must on request make available for awarding agency pre-award review procurement documents, such as requests for proposals or invitations for bids, independent cost estimates, etc. when:
(i) A grantee's or subgrantee's procurement procedures or operation fails to comply with the procurement standards in this section; or
(ii) The procurement is expected to exceed the simplified acquisition threshold and is to be awarded without competition or only one bid or offer is received in response to a solicitation; or
(iii) The procurement, which is expected to exceed the simplified acquisition threshold, specifies a “brand name” product; or
(iv) The proposed award is more than the simplified acquisition threshold and is to be awarded to other than the apparent low bidder under a sealed bid procurement; or
(v) A proposed contract modification changes the scope of a contract or increases the contract amount by more than the simplified acquisition threshold.
(3) A grantee or subgrantee will be exempt from the pre-award review in paragraph (g)(2) of this section if the awarding agency determines that its procurement systems comply with the standards of this section.
(i) A grantee or subgrantee may request that its procurement system be reviewed by the awarding agency to determine whether its system meets these standards in order for its system to be certified. Generally, these reviews shall occur where there is a continuous high-dollar funding, and third-party contracts are awarded on a regular basis.
(ii) A grantee or subgrantee may self-certify its procurement system. Such self-certification shall not limit the awarding agency's right to survey the system. Under a self-certification procedure, awarding agencies may wish to rely on written assurances from the grantee or subgrantee that it is complying with these standards. A grantee or subgrantee will cite specific procedures, regulations, standards, etc., as being in compliance with these requirements and have its system available for review.
(h)
(1)
(2)
(3)
(i)
(1) Administrative, contractual, or legal remedies in instances where contractors violate or breach contract terms, and provide for such sanctions and penalties as may be appropriate. (Contracts more than the simplified acquisition threshold)
(2) Termination for cause and for convenience by the grantee or subgrantee including the manner by which it will be effected and the basis for settlement. (All contracts in excess of $10,000)
(3) Compliance with Executive Order 11246 of September 24, 1965, entitled “Equal Employment Opportunity,” as amended by Executive Order 11375 of October 13, 1967, and as supplemented in Department of Labor regulations (41 CFR chapter 60). (All construction contracts awarded in excess of $10,000 by grantees and their contractors or subgrantees)
(4) Compliance with the Copeland “Anti-Kickback” Act (18 U.S.C. 874) as supplemented in Department of Labor regulations (29 CFR Part 3). (All contracts and subgrants for construction or repair)
(5) Compliance with the Davis-Bacon Act (40 U.S.C. 276a to 276a-7) as supplemented by Department of Labor regulations (29 CFR Part 5). (Construction contracts in excess of $2000 awarded by grantees and subgrantees when required by Federal grant program legislation)
(6) Compliance with Sections 103 and 107 of the Contract Work Hours and Safety Standards Act (40 U.S.C. 327-330) as supplemented by Department of Labor regulations (29 CFR Part 5). (Construction contracts awarded by grantees and subgrantees in excess of $2000, and in excess of $2500 for other contracts which involve the employment of mechanics or laborers)
(7) Notice of awarding agency requirements and regulations pertaining to reporting.
(8) Notice of awarding agency requirements and regulations pertaining to patent rights with respect to any discovery or invention which arises or is developed in the course of or under such contract.
(9) Awarding agency requirements and regulations pertaining to copyrights and rights in data.
(10) Access by the grantee, the subgrantee, the Federal grantor agency, the Comptroller General of the United States, or any of their duly authorized representatives to any books, documents, papers, and records of the contractor which are directly pertinent to that specific contract for the purpose of making audit, examination, excerpts, and transcriptions.
(11) Retention of all required records for three years after grantees or subgrantees make final payments and all other pending matters are closed.
(12) Compliance with all applicable standards, orders, or requirements issued under section 306 of the Clean Air Act (42 U.S.C. 1857(h)), section 508 of the Clean Water Act (33 U.S.C. 1368), Executive Order 11738, and Environmental Protection Agency regulations (40 CFR part 15). (Contracts, subcontracts, and subgrants of amounts in excess of $100,000)
(13) Mandatory standards and policies relating to energy efficiency which are contained in the state energy conservation plan issued in compliance with the Energy Policy and Conservation Act (Pub. L. 94-163, 89 Stat. 871).
(a)
(1) Ensure that every subgrant includes any clauses required by Federal statute and executive orders and their implementing regulations;
(2) Ensure that subgrantees are aware of requirements imposed upon them by Federal statute and regulation;
(3) Ensure that a provision for compliance with § 1207.42 is placed in every cost reimbursement subgrant; and
(4) Conform any advances of grant funds to subgrantees substantially to the same standards of timing and amount that apply to cash advances by Federal agencies.
(b)
(1) Ensure that every subgrant includes a provision for compliance with this part;
(2) Ensure that every subgrant includes any clauses required by Federal statute and executive orders and their implementing regulations; and
(3) Ensure that subgrantees are aware of requirements imposed upon them by Federal statutes and regulations.
(c)
(1) Section 1207.10;
(2) Section 1207.11;
(3) The letter-of-credit procedures specified in Treasury Regulations at 31 CFR part 205, cited in § 1207.21; and
(4) Section 1207.50.
(a)
(b)
(1) Grantees shall submit annual performance reports unless the awarding agency requires quarterly or semi-annual reports. However, performance reports will not be required more frequently than quarterly. Annual reports shall be due 90 days after the grant year, quarterly or semi-annual reports shall be due 30 days after the reporting period. The final performance report will be due 90 days after the expiration or termination of grant support. If a justified request is submitted by a grantee, the Federal agency may extend the due date for any performance report. Additionally, requirements for unnecessary performance reports may be waived by the Federal agency.
(2) Performance reports will contain, for each grant, brief information on the following:
(i) A comparison of actual accomplishments to the objectives established for the period. Where the output of the project can be quantified, a computation of the cost per unit of output may be required if that information will be useful.
(ii) The reasons for slippage if established objectives were not met.
(iii) Additional pertinent information including, when appropriate, analysis and explanation of cost overruns or high unit costs.
(3) Grantees will not be required to submit more than the original and two copies of performance reports.
(4) Grantees will adhere to the standards in this section in prescribing performance reporting requirements for subgrantees.
(c)
(d)
(1) Problems, delays, or adverse conditions which will materially impair the ability to meet the objective of the award. This disclosure must include a statement of the action taken, or contemplated, and any assistance needed to resolve the situation.
(2) Favorable developments which enable meeting time schedules and objectives sooner or at less cost than anticipated or producing more beneficial results than originally planned.
(e) Federal agencies may make site visits as warranted by program needs.
(f)
(2) The grantee may waive any performance report from a subgrantee when not needed. The grantee may extend the due date for any performance report from a subgrantee if the grantee will still be able to meet its performance reporting obligations to the Federal agency.
(a)
(i) Submitting financial reports to Federal agencies, or
(ii) Requesting advances or reimbursements when letters of credit are not used.
(2) Grantees need not apply the forms prescribed in this section in dealing with their subgrantees. However, grantees shall not impose more burdensome requirements on subgrantees.
(3) Grantees shall follow all applicable standard and supplemental Federal agency instructions approved by OMB to the extend required under the Paperwork Reduction Act of 1980 for use in connection with forms specified in paragraphs (b) through (e) of this section. Federal agencies may issue substantive supplementary instructions only with the approval of OMB. Federal agencies may shade out or instruct the grantee to disregard any line item that the Federal agency finds unnecessary for its decisionmaking purposes.
(4) Grantees will not be required to submit more than the original and two copies of forms required under this part.
(5) Federal agencies may provide computer outputs to grantees to expedite or contribute to the accuracy of reporting. Federal agencies may accept the required information from grantees in machine usable format or computer printouts instead of prescribed forms.
(6) Federal agencies may waive any report required by this section if not needed.
(7) Federal agencies may extend the due date of any financial report upon receiving a justified request from a grantee.
(b)
(2)
(3)
(4)
(c)
(ii) These reports will be used by the Federal agency to monitor cash advanced to grantees and to obtain disbursement or outlay information for each grant from grantees. The format of the report may be adapted as appropriate when reporting is to be accomplished with the assistance of automatic data processing equipment provided that the information to be submitted is not changed in substance.
(2)
(3)
(4)
(d)
(2)
(3) The frequency for submitting payment requests is treated in § 1207.41(b)(3).
(e)
(ii) The frequency for submitting reimbursement requests is treated in § 1207.41(b)(3).
(2)
(ii) When a construction grant is paid by Treasury check advances based on periodic requests from the grantee, the advances will be requested on the form specified in § 1207.41(d).
(iii) The Federal agency may substitute the Financial Status Report specified in § 1207.41(b) for the Outlay Report and Request for Reimbursement for Construction Programs.
(3)
(a)
(i) Required to be maintained by the terms of this part, program regulations or the grant agreement, or
(ii) Otherwise reasonably considered as pertinent to program regulations or the grant agreement.
(2) This section does not apply to records maintained by contractors or subcontractors. For a requirement to place a provision concerning records in certain kinds of contracts, see § 1207.36(i)(10).
(b)
(2) If any litigation, claim, negotiation, audit or other action involving the records has been started before the expiration of the 3-year period, the records must be retained until completion of the action and resolution of all issues which arise from it, or until the end of the regular 3-year period, whichever is later.
(3) To avoid duplicate recordkeeping, awarding agencies may make special arrangements with grantees and subgrantees to retain any records which are continuously needed for joint use. The awarding agency will request transfer of records to its custody when it determines that the records possess long-term retention value. When the records are transferred to or maintained by the Federal agency, the 3-year retention requirement is not applicable to the grantee or subgrantee.
(c)
(2)
(3)
(4)
(i)
(ii)
(d)
(e)
(2)
(f)
(a)
(1) Temporarily withhold cash payments pending correction of the deficiency by the grantee or subgrantee or more severe enforcement action by the awarding agency,
(2) Disallow (that is, deny both use of funds and matching credit for) all or part of the cost of the activity or action not in compliance,
(3) Wholly or partly suspend or terminate the current award for the grantee's or subgrantee's program,
(4) Withhold further awards for the program, or
(5) Take other remedies that may be legally available.
(b)
(c)
(1) The costs result from obligations which were properly incurred by the grantee or subgrantee before the effective date of suspension or termination, are not in anticipation of it, and, in the case of a termination, are noncancellable, and,
(2) The costs would be allowable if the award were not suspended or expired normally at the end of the funding period in which the termination takes effect.
(d)
Except as provided in § 1207.43 awards may be terminated in whole or in part only as follows:
(a) By the awarding agency with the consent of the grantee or subgrantee in which case the two parties shall agree upon the termination conditions, including the effective date and in the case of partial termination, the portion to be terminated, or
(b) By the grantee or subgrantee upon written notification to the awarding agency, setting forth the reasons for such termination, the effective date, and in the case of partial termination, the portion to be terminated. However, if, in the case of a partial termination, the awarding agency determines that the remaining portion of the award will not accomplish the purposes for which the award was made, the awarding agency may terminate the award in its entirety under either § 1207.43 or paragraph (a) of this section.
(a)
(b)
(1) Final performance or progress report.
(2) Financial Status Report (SF 269) or Outlay Report and Request for Reimbursement for Construction Programs (SF-271) (as applicable).
(3) Final request for payment (SF-270) (if applicable).
(4) Invention disclosure (if applicable).
(5) Federally-owned property report:
(c)
(d)
(2) The grantee must immediately refund to the Federal agency any balance of unobligated (unencumbered) cash advanced that is not authorized to be retained for use on other grants.
The closeout of a grant does not affect:
(a) The Federal agency's right to disallow costs and recover funds on the basis of a later audit or other review;
(b) The grantee's obligation to return any funds due as a result of later refunds, corrections, or other transactions;
(c) Records retention as required in § 1207.42;
(d) Property management requirements in §§ 1207.31 and 1207.32; and
(e) Audit requirements in § 1207.26.
(a) Any funds paid to a grantee in excess of the amount to which the grantee is finally determined to be entitled under the terms of the award constitute a debt to the Federal Government. If not paid within a reasonable period after demand, the Federal agency may reduce the debt by:
(1) Making an adminstrative offset against other requests for reimbursements,
(2) Withholding advance payments otherwise due to the grantee, or
(3) Other action permitted by law.
(b) Except where otherwise provided by statutes or regulations, the Federal agency will charge interest on an overdue debt in accordance with the Federal Claims Collection Standards (4 CFR chapter II). The date from which interest is computed is not extended by litigation or the filing of any form of appeal.
29 U.S.C. 794.
The purpose of this regulation is to effectuate section 119 of the Rehabilitation, Comprehensive Services, and Developmental Disabilities Amendments of 1978, which amended section 504 of the Rehabilitation Act of 1973 to prohibit discrimination on the basis of handicap in programs or activities conducted by Executive agencies or the United States Postal Service.
This regulation (§§ 1208.101-1208.170) applies to all programs or activities conducted by the agency, except for programs or activities conducted outside the United States that do not involve individuals with handicaps in the United States.
For purposes of this regulation, the term—
As used in this definition, the phrase:
(1)
(i) Any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: Neurological; musculoskeletal; special sense organs; respiratory, including speech organs; cardiovascular; reproductive; digestive; genitourinary; hemic and lymphatic; skin; and endocrine; or
(ii) Any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities. The term
(2)
(3)
(4)
(i) Has a physical or mental impairment that does not substantially limit major life activities but is treated by the agency as constituting such a limitation;
(ii) Has a physical or mental impairment that substantially limits major life activities only as a result of the attitudes of others toward such impairment; or
(iii) Has none of the impairments defined in paragraph (i) of this definition but is treated by the agency as having such an impairment.
(1) With respect to preschool, elementary, or secondary education services provided by the agency, an individual with handicaps who is a member of a class of persons otherwise entitled by statute, regulation, or agency policy to receive education services from the agency;
(2) With respect to any other agency program or activity under which a person is required to perform services or to achieve a level of accomplishment, an individual with handicaps who meets the essential eligibility requirements and who can achieve the purpose of the program or activity without modifications in the program or activity that the agency can demonstrate would result in a fundamental alteration in its nature;
(3) With respect to any other program or activity, an individual with handicaps who meets the essential eligibility requirements for participation in, or receipt of benefits from, that program or activity; and
(4)
(a) The agency shall, by September 6, 1989, evaluate its current policies and practices, and the effects thereof, that do not or may not meet the requirements of this regulation and, to the extent modification of any such policies and practices is required, the agency shall proceed to make the necessary modifications.
(b) The agency shall provide an opportunity to interested persons, including individuals with handicaps or organizations representing individuals with handicaps, to participate in the self-evaluation process by submitting comments (both oral and written).
(c) The agency shall, for at least three years following completion of the self-evaluation, maintain on file and make available for public inspection:
(1) A description of areas examined and any problems identified; and
(2) A description of any modifications made.
The agency shall make available to employees, applicants, participants, beneficiaries, and other interested persons such information regarding the provisions of this regulation and its applicability to the programs or activities conducted by the agency, and make such information available to them in such manner as the head of the agency finds necessary to apprise such persons of the protections against discrimination assured them by section 504 and this regulation.
(a) No qualified individual with handicaps shall, on the basis of handicap, be excluded from participation in, be denied the benefits of, or otherwise be subjected to discrimination under any program or activity conducted by the agency.
(b)(1) The agency, in providing any aid, benefit, or service, may not, directly or through contractual, licensing, or other arrangements, on the basis of handicap—
(i) Deny a qualified individual with handicaps the opportunity to participate in or benefit from the aid, benefit, or service;
(ii) Afford a qualified individual with handicaps an opportunity to participate in or benefit from the aid, benefit, or service that is not equal to that afforded others;
(iii) Provide a qualified individual with handicaps with an aid, benefit, or service that is not as effective in affording equal opportunity to obtain the same result, to gain the same benefit, or to reach the same level of achievement as that provided to others;
(iv) Provide different or separate aid, benefits, or services to individuals with handicaps or to any class of individuals with handicaps than is provided to others unless such action is necessary to provide qualified individuals with handicaps with aid, benefits, or services that are as effective as those provided to others;
(v) Deny a qualified individual with handicaps the opportunity to participate as a member of planning or advisory boards;
(vi) Otherwise limit a qualified individual with handicaps in the enjoyment of any right, privilege, advantage, or opportunity enjoyed by others receiving the aid, benefit, or service.
(2) The agency may not deny a qualified individual with handicaps the opportunity to participate in programs or activities that are not separate or different, despite the existence of permissibly separate or different programs or activities.
(3) The agency may not, directly or through contractual or other arrangements, utilize criteria or methods of administration the purpose or effect of which would—
(i) Subject qualified individuals with handicaps to discrimination on the basis of handicap; or
(ii) Defeat or substantially impair accomplishment of the objectives of a program or activity with respect to individuals with handicaps.
(4) The agency may not, in determining the site or location of a facility, make selections the purpose or effect of which would—
(i) Exclude individuals with handicaps from, deny them the benefits of, or otherwise subject them to discrimination under any program or activity conducted by the agency; or
(ii) Defeat or substantially impair the accomplishment of the objectives of a program or activity with respect to individuals with handicaps.
(5) The agency, in the selection of procurement contractors, may not use criteria that subject qualified individuals with handicaps to discrimination on the basis of handicap.
(6) The agency may not administer a licensing or certification program in a manner that subjects qualified individuals with handicaps to discrimination on the basis of handicap, nor may the agency establish requirements for the programs or activities of licensees or certified entities that subject qualified individuals with handicaps to discrimination on the basis of handicap. However, the programs or activities of entities that are licensed or certified by the agency are not, themselves, covered by this regulation.
(c) The exclusion of nonhandicapped persons from the benefits of a program limited by Federal statute or Executive order to individuals with handicaps or the exclusion of a specific class of individuals with handicaps from a program limited by Federal statute or Executive order to a different class of individuals with handicaps is not prohibited by this regulation.
(d) The agency shall administer programs and activities in the most integrated setting appropriate to the needs of qualified individuals with handicaps.
No qualified individual with handicaps shall, on the basis of handicap, be subject to discrimination in employment under any program or activity conducted by the agency. The definitions, requirements, and procedures of section 501 of the Rehabilitation Act of 1973 (29 U.S.C. 791), as established by the Equal Employment Opportunity Commission in 29 CFR part 1613, shall apply to employment in federally conducted programs or activities.
Except as otherwise provided in § 1208.150, no qualified individual with handicaps shall, because the agency's facilities are inaccessible to or unusable by individuals with handicaps, be denied the benefits of, be excluded from participation in, or otherwise be subjected to discrimination under any program or activity conducted by the agency.
(a)
(1) Necessarily require the agency to make each of its existing facilities accessible to and usable by individuals with handicaps;
(2) In the case of historic preservation programs, require the agency to take any action that would result in a substantial impairment of significant historic features of an historic property; or
(3) Require the agency to take any action that it can demonstrate would result in a fundamental alteration in the nature of a program or activity or in undue financial and administrative burdens. In those circumstances where agency personnel believe that the proposed action would fundamentally alter the program or activity or would result in undue financial and administrative burdens, the agency has the burden of proving that compliance with § 1208.150(a) would result in such alteration or burdens. The decision that compliance would result in such alteration or burdens must be made by the agency head or his or her designee after considering all agency resources available for use in the funding and operation of the conducted program or activity, and must be accompanied by a written statement of the reasons for reaching that conclusion. If an action would result in such an alteration or such burdens, the agency shall take any other action that would not result in such an alteration or such burdens but would nevertheless ensure that individuals with handicaps receive the benefits and services of the program or activity.
(b)
(2)
(i) Using audio-visual materials and devices to depict those portions of an historic property that cannot otherwise be made accessible;
(ii) Assigning persons to guide individuals with handicaps into or through portions of historic properties that cannot otherwise be made accessible; or
(iii) Adopting other innovative methods.
(c)
(d)
(1) Identify physical obstacles in the agency's facilities that limit the accessibility of its programs or activities to individuals with handicaps;
(2) Describe in detail the methods that will be used to make the facilities accessible;
(3) Specify the schedule for taking the steps necessary to achieve compliance with this section and, if the time period of the transition plan is longer than one year, identify steps that will be taken during each year of the transition period; and
(4) Indicate the official responsible for implementation of the plan.
Each building or part of a building that is constructed or altered by, on behalf of, or for the use of the agency shall be designed, constructed, or altered so as to be readily accessible to and usable by individuals with handicaps. The definitions, requirements, and standards of the Architectural Barriers Act (42 U.S.C. 4151-4157), as established in 41 CFR 101-19.600 to 101-19.607, apply to buildings covered by this section.
(a) The agency shall take appropriate steps to ensure effective communication with applicants, participants, personnel of other Federal entities, and members of the public.
(1) The agency shall furnish appropriate auxiliary aids where necessary to afford an individual with handicaps an equal opportunity to participate in, and enjoy the benefits of, a program or activity conducted by the agency.
(i) In determining what type of auxiliary aid is necessary, the agency shall
(ii) The agency need not provide individually prescribed devices, readers for personal use or study, or other devices of a personal nature.
(2) Where the agency communicates with applicants and beneficiaries by telephone, telecommunication devices for deaf persons (TDD's) or equally effective telecommunication systems shall be used to communicate with persons with impaired hearing.
(b) The agency shall ensure that interested persons, including persons with impaired vision or hearing, can obtain information as to the existence and location of accessible services, activities, and facilities.
(c) The agency shall provide signage at a primary entrance to each of its inaccessible facilities, directing users to a location at which they can obtain information about accessible facilities. The international symbol for accessibility shall be used at each primary entrance of an accessible facility.
(d) This section does not require the agency to take any action that it can demonstrate would result in a fundamental alteration in the nature of a program or activity or in undue financial and administrative burdens. In those circumstances where agency personnel believe that the proposed action would fundamentally alter the program or activity or would result in undue financial and administrative burdens, the agency has the burden of proving that compliance with § 1208.160 would result in such alteration or burdens. The decision that compliance would result in such alteration or burdens must be made by the agency head or his or her designee after considering all agency resources available for use in the funding and operation of the conducted program or activity and must be accompanied by a written statement of the reasons for reaching that conclusion. If an action required to comply with this section would result in such an alteration or such burdens, the agency shall take any other action that would not result in such an alteration or such burdens but would nevertheless ensure that, to the maximum extent possible, individuals with handicaps receive the benefits and services of the program or activity.
(a) Except as provided in paragraph (b) of this section, this section applies to all allegations of discrimination on the basis of handicap in programs and activities conducted by the agency.
(b) The agency shall process complaints alleging violations of section 504 with respect to employment according to the procedures established by the Equal Employment Opportunity Commission in 29 CFR part 1613 pursuant to section 501 of the Rehabilitation Act of 1973 (29 U.S.C. 791).
(c) The Assistant Archivist for Management and Administration shall be responsible for coordinating implementation of this section. Compliants may be sent to National Archives and Records Administration (NA), Washington, DC 20408.
(d) The agency shall accept and investigate all complete complaints for which it has jurisdiction. All complete complaints must be filed within 180 days of the alleged act of discrimination. The agency may extend this time period for good cause.
(e) If the agency receives a complaint over which it does not have jurisdiction, it shall promptly notify the complainant and shall make reasonable efforts to refer the complaint to the appropriate Government entity.
(f) The agency shall notify the Architectural and Transportation Barriers Compliance Board upon receipt of any complaint alleging that a building or facility that is subject to the Architectural Barriers Act of 1968, as amended (42 U.S.C. 4151-4157), is not readily accessible to and usable by individuals with handicaps.
(g) Within 180 days of the receipt of a complete complaint for which it has jurisdiction, the agency shall notify the complainant of the results of the investigation in a letter containing—
(1) Findings of fact and conclusions of law;
(2) A description of a remedy for each violation found; and
(3) A notice of the right to appeal.
(h) Appeals of the findings of fact and conclusions of law or remedies must be filed by the complainant within 90 days of receipt from the agency of the letter required by § 1208.170(g). The agency may extend this time for good cause.
(i) Timely appeals shall be accepted and processed by the head of the agency.
(j) The head of the agency shall notify the complainant of the results of the appeal within 60 days of the receipt of the request. If the head of the agency determines that additional information is needed from the complainant, he or she shall have 60 days from the date of receipt of the additional information to make his or her determination on the appeal.
(k) The time limits cited in paragraphs (g) and (j) of this section may be extended with the permission of the Assistant Attorney General.
(l) The agency may delegate its authority for conducting complaint investigations to other Federal agencies, except that the authority for making the final determination may not be delegated to another agency.
E.O. 12549; sec. 5151-5160 of the Drug-Free Workplace Act of 1988 (Pub. L. 100-690, title V, subtitle D; 41 U.S.C. 701
See also Office of Management and Budget notice published at 55 FR 21679, May 25, 1990, and 60 FR 33036, June 26, 1995.
(a) Executive Order (E.O.) 12549 provides that, to the extent permitted by law, Executive departments and agencies shall participate in a governmentwide system for nonprocurement debarment and suspension. A person who is debarred or suspended shall be excluded from Federal financial and nonfinancial assistance and benefits under Federal programs and activities. Debarment or suspension of a participant in a program by one agency shall have governmentwide effect.
(b) These regulations implement section 3 of E.O. 12549 and the guidelines promulgated by the Office of Management and Budget under section 6 of the E.O. by:
(1) Prescribing the programs and activities that are covered by the governmentwide system;
(2) Prescribing the governmentwide criteria and governmentwide minimum due process procedures that each agency shall use;
(3) Providing for the listing of debarred and suspended participants, participants declared ineligible (see definition of “ineligible” in § 1209.105), and participants who have voluntarily excluded themselves from participation in covered transactions;
(4) Setting forth the consequences of a debarment, suspension, determination of ineligibility, or voluntary exclusion; and
(5) Offering such other guidance as necessary for the effective implementation and administration of the governmentwide system.
(c) These regulations also implement Executive Order 12689 (3 CFR, 1989 Comp., p. 235) and 31 U.S.C. 6101 note (Public Law 103-355, sec. 2455, 108 Stat. 3327) by—
(1) Providing for the inclusion in the
(2) Setting forth the consequences of a debarment, suspension, determination of ineligibility, or voluntary exclusion.
(d) Although these regulations cover the listing of ineligible participants and the effect of such listing, they do not prescribe policies and procedures governing declarations of ineligibility.
The following definitions apply to this part:
(1) The agency head, or
(2) An official designated by the agency head.
(1) Principal investigators.
(1) The agency head, or
(2) An official designated by the agency head.
(a) These regulations apply to all persons who have participated, are currently participating or may reasonably be expected to participate in transactions under Federal nonprocurement programs. For purposes of these regulations such transactions will be referred to as “covered transactions.”
(1)
(i)
(ii)
(A) Any transaction between a participant and a person other than a procurement contract for goods or services, regardless of type, under a primary covered transaction.
(B) Any procurement contract for goods or services between a participant and a person, regardless of type, expected to equal or exceed the Federal procurement small purchase threshold fixed at 10 U.S.C. 2304(g) and 41 U.S.C. 253(g) (currently $25,000) under a primary covered transaction.
(C) Any procurement contract for goods or services between a participant and a person under a covered transaction, regardless of amount, under which that person will have a critical influence on or substantive control over that covered transaction. Such persons are:
(
(
(2)
(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
(iv) Federal employment;
(v) Transactions pursuant to national or agency-recognized emergencies or disasters;
(vi) Incidental benefits derived from ordinary governmental operations; and
(vii) Other transactions where the application of these regulations would be prohibited by law.
(b)
(c)
(a) In order to protect the public interest, it is the policy of the Federal Government to conduct business only with responsible persons. Debarment and suspension are discretionary actions that, taken in accordance with Executive Order 12549 and these regulations, are appropriate means to implement this policy.
(b) Debarment and suspension are serious actions which shall be used only in the public interest and for the Federal Government's protection and not for purposes of punishment. Agencies may impose debarment or suspension for the causes and in accordance with the procedures set forth in these regulations.
(c) When more than one agency has an interest in the proposed debarment or suspension of a person, consideration shall be given to designating one agency as the lead agency for making the decision. Agencies are encouraged to establish methods and procedures for coordinating their debarment or suspension actions.
(a)
(b)
(c)
(1) Statutory entitlements or mandatory awards (but not subtier awards thereunder which are not themselves mandatory), including deposited funds insured by the Federal Government;
(2) Direct awards to foreign governments or public international organizations, or transactions with foreign governments or foreign governmental entities, public international organizations, foreign government owned (in whole or in part) or controlled entities, and entities consisting wholly or partially of foreign governments or foreign governmental entities;
(3) Benefits to an individual as a personal entitlement without regard to the individual's present responsibility (but benefits received in an individual's business capacity are not excepted);
(4) Federal employment;
(5) Transactions pursuant to national or agency-recognized emergencies or disasters;
(6) Incidental benefits derived from ordinary governmental operations; and
(7) Other transactions where the application of these regulations would be prohibited by law.
Persons who are ineligible, as defined in § 1209.105(i), are excluded in accordance with the applicable statutory, executive order, or regulatory authority.
Persons who accept voluntary exclusions under § 1209.315 are excluded in accordance with the terms of their settlements. NARA shall, and participants may, contact the original action agency to ascertain the extent of the exclusion.
NARA may grant an exception permitting a debarred, suspended, or voluntarily excluded person, or a person proposed for debarment under 48 CFR part 9, subpart 9.4, to participate in a particular covered transaction upon a written determination by the agency head or an authorized designee stating the reason(s) for deviating from the Presidential policy established by Executive Order 12549 and § 1209.200. However, in accordance with the President's stated intention in the Executive Order, exceptions shall be granted only infrequently. Exceptions shall be reported in accordance with § 1209.505(a).
(a) Notwithstanding the debarment, suspension, proposed debarment under 48 CFR part 9, subpart 9.4, determination of ineligibility, or voluntary exclusion of any person by an agency, agencies and participants may continue covered transactions in existence at the time the person was debarred, suspended, proposed for debarment under 48 CFR part 9, subpart 9.4, declared ineligible, or voluntarily excluded. A decision as to the type of termination action, if any, to be taken should be made only after thorough review to ensure the propriety of the proposed action.
(b) Agencies and participants shall not renew or extend covered transactions (other than no-cost time extensions) with any person who is debarred, suspended, proposed for debarment under 48 CFR part 9, subpart 9.4, ineligible or voluntary excluded, except as provided in § 1209.215.
(a) Except as permitted under § 1209.215 or § 1209.220, a participant shall not knowingly do business under a covered transaction with a person who is—
(1) Debarred or suspended;
(2) Proposed for debarment under 48 CFR part 9, subpart 9.4; or
(3) Ineligible for or voluntarily excluded from the covered transaction.
(b) Violation of the restriction under paragraph (a) of this section may result in disallowance of costs, annulment or termination of award, issuance of a stop work order, debarment or suspension, or other remedies as appropriate.
(c) A participant may rely upon the certification of a prospective participant in a lower tier covered transaction that it and its principals are not debarred, suspended, proposed for debarment under 48 CFR part 9, subpart 9.4, ineligible, or voluntarily excluded
The debarring official may debar a person for any of the causes in § 1209.305, using procedures established in §§ 1209.310 through 1209.314. The existence of a cause for debarment, however, does not necessarily require that the person be debarred; the seriousness of the person's acts or omissions and any mitigating factors shall be considered in making any debarment decision.
Debarment may be imposed in accordance with the provisions of §§ 1209.300 through 1209.314 for:
(a) Conviction of or civil judgment for:
(1) Commission of fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a public or private agreement or transaction;
(2) Violation of Federal or State antitrust statutes, including those proscribing price fixing between competitors, allocation of customers between competitors, and bid rigging;
(3) Commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, receiving stolen property, making false claims, or obstruction of justice; or
(4) Commission of any other offense indicating a lack of business integrity or business honesty that seriously and directly affects the present responsibility of a person.
(b) Violation of the terms of a public agreement or transaction so serious as to affect the integrity of an agency program, such as:
(1) A willful failure to perform in accordance with the terms of one or more public agreements or transactions;
(2) A history of failure to perform or of unsatisfactory performance of one or more public agreements or transactions; or
(3) A willful violation of a statutory or regulatory provision or requirement applicable to a public agreement or transaction.
(c) Any of the following causes:
(1) A nonprocurement debarment by any Federal agency taken before October 1, 1988, the effective date of these regulations, or a procurement debarment by any Federal agency taken pursuant to 48 CFR subpart 9.4;
(2) Knowingly doing business with a debarred, suspended, ineligible, or voluntarily excluded person, in connection with a covered transaction, except as permitted in § 1209.215 or § 1209.220;
(3) Failure to pay a single substantial debt, or a number of outstanding debts (including disallowed costs and overpayments, but not including sums owed the Federal Government under the Internal Revenue Code) owed to any Federal agency or instrumentality, provided the debt is uncontested by the debtor or, if contested, provided that the debtor's legal and administrative remedies have been exhausted;
(4) Violation of a material provision of a voluntary exclusion agreement entered into under § 1209.315 or of any settlement of a debarment or suspension action; or
(5) Violation of any requirement of subpart F of this part, relating to providing a drug-free workplace, as set forth in § 1209.615 of this part.
(d) Any other cause of so serious or compelling a nature that it affects the present responsibility of a person.
NARA shall process debarment actions as informally as practicable, consistent with the principles of fundamental fairness, using the procedures in §§ 1209.311 through 1209.314.
Information concerning the existence of a cause for debarment from any
A debarment proceeding shall be initiated by notice to the respondent advising:
(a) That debarment is being considered;
(b) Of the reasons for the proposed debarment in terms sufficient to put the respondent on notice of the conduct or transaction(s) upon which it is based;
(c) Of the cause(s) relied upon under § 1209.305 for proposing debarment;
(d) Of the provisions of § 1209.311 through § 1209.314, and any other NARA procedures, if applicable, governing debarment decisionmaking; and
(e) Of the potential effect of a debarment.
(a)
(b)
(2) A transcribed record of any additional proceedings shall be made available at cost to the respondent, upon request, unless the respondent and the agency, by mutual agreement, waive the requirement for a transcript.
(a)
(b)
(2) The debarring official may refer disputed material facts to another official for findings of fact. The debarring official may reject any such findings, in whole or in part, only after specifically determining them to be arbitrary and capricious or clearly erroneous.
(3) The debarring official's decision shall be made after the conclusion of the proceedings with respect to disputed facts.
(c)(1)
(2)
(d)
(i) Referring to the notice of proposed debarment;
(ii) Specifying the reasons for debarment;
(iii) Stating the period of debarment, including effective dates; and
(iv) Advising that the debarment is effective for covered transactions throughout the executive branch of the Federal Government unless an agency head or an authorized designee makes
(2) If the debarring official decides not to impose debarment, the respondent shall be given prompt notice of that decision. A decision not to impose debarment shall be without prejudice to a subsequent imposition of debarment by any other agency.
(a) When in the best interest of the Government, NARA may, at any time, settle a debarment or suspension action.
(b) If a participant and the agency agree to a voluntary exclusion of the participant, such voluntary exclusion shall be entered on the Nonprocurement List (see subpart E).
(a) Debarment shall be for a period commensurate with the seriousness of the cause(s). If a suspension precedes a debarment, the suspension period shall be considered in determining the debarment period.
(1) Debarment for causes other than those related to a violation of the requirements of subpart F of this part generally should not exceed three years. Where circumstances warrant, a longer period of debarment may be imposed.
(2) In the case of a debarment for a violation of the requirements of subpart F of this part (
(b) The debarring official may extend an existing debarment for an additional period, if that official determines that an extension is necessary to protect the public interest. However, a debarment may not be extended solely on the basis of the facts and circumstances upon which the initial debarment action was based. If debarment for an additional period is determined to be necessary, the procedures of §§ 1209.311 through 1209.314 shall be followed to extend the debarment.
(c) The respondent may request the debarring official to reverse the debarment decision or to reduce the period or scope of debarment. Such a request shall be in writing and supported by documentation. The debarring official may grant such a request for reasons including, but not limited to:
(1) Newly discovered material evidence;
(2) Reversal of the conviction or civil judgment upon which the debarment was based;
(3) Bona fide change in ownership or management;
(4) Elimination of other causes for which the debarment was imposed; or
(5) Other reasons the debarring official deems appropriate.
(a)
(2) The debarment action may include any affiliate of the participant that is specifically named and given notice of the proposed debarment and an opportunity to respond (see §§ 1209.311 through 1209.314).
(b)
(1)
(2)
(3)
(a) The suspending official may suspend a person for any of the causes in § 1209.405 using procedures established in §§ 1209.410 through 1209.413.
(b) Suspension is a serious action to be imposed only when:
(1) There exists adequate evidence of one or more of the causes set out in § 1209.405, and
(2) Immediate action is necessary to protect the public interest.
(c) In assessing the adequacy of the evidence, the agency should consider how much information is available, how credible it is given the circumstances, whether or not important allegations are corroborated, and what inferences can reasonably be drawn as a result. This assessment should include an examination of basic documents such as grants, cooperative agreements, loan authorizations, and contracts.
(a) Suspension may be imposed in accordance with the provisions of §§ 1209.400 through 1209.413 upon adequate evidence:
(1) To suspect the commission of an offense listed in § 1209.305(a); or
(2) That a cause for debarment under § 1209.305 may exist.
(b) Indictment shall constitute adequate evidence for purposes of suspension actions.
(a)
(b)
When a respondent is suspended, notice shall immediately be given:
(a) That suspension has been imposed;
(b) That the suspension is based on an indictment, conviction, or other adequate evidence that the respondent has committed irregularities seriously reflecting on the propriety of further Federal Government dealings with the respondent;
(c) Describing any such irregularities in terms sufficient to put the respondent on notice without disclosing the Federal Government's evidence;
(d) Of the cause(s) relied upon under § 1209.405 for imposing suspension;
(e) That the suspension is for a temporary period pending the completion of an investigation or ensuing legal, debarment, or Program Fraud Civil Remedies Act proceedings;
(f) Of the provisions of § 1209.411 through § 1209.413 and any other NARA procedures, if applicable, governing suspension decisionmaking; and
(g) Of the effect of the suspension.
(a)
(b)
(i) The action is based on an indictment, conviction or civil judgment, or
(ii) A determination is made, on the basis of Department of Justice advice, that the substantial interests of the Federal Government in pending or contemplated legal proceedings based on the same facts as the suspension would be prejudiced.
(2) A transcribed record of any additional proceedings shall be prepared and made available at cost to the respondent, upon request, unless the respondent and the agency, by mutual agreement, waive the requirement for a transcript.
The suspending official may modify or terminate the suspension (for example, see § 1209.320(c) for reasons for reducing the period or scope of debarment) or may leave it in force. However, a decision to modify or terminate the suspension shall be without prejudice to the subsequent imposition of suspension by any other agency or debarment by any agency. The decision shall be rendered in accordance with the following provisions:
(a)
(b)
(2) The suspending official may refer matters involving disputed material facts to another official for findings of fact. The suspending official may reject any such findings, in whole or in part, only after specifically determining them to be arbitrary or capricious or clearly erroneous.
(c)
(a) Suspension shall be for a temporary period pending the completion of an investigation or ensuing legal, debarment, or Program Fraud Civil Remedies Act proceedings, unless terminated sooner by the suspending official or as provided in paragraph (b) of this section.
(b) If legal or administrative proceedings are not initiated within 12 months after the date of the suspension notice, the suspension shall be terminated unless an Assistant Attorney General or United States Attorney requests its extension in writing, in which case it may be extended for an additional six months. In no event may a suspension extend beyond 18 months, unless such proceedings have been initiated within that period.
(c) The suspending official shall notify the Department of Justice of an impending termination of a suspension, at least 30 days before the 12-month period expires, to give that Department an opportunity to request an extension.
The scope of a suspension is the same as the scope of a debarment (see § 1209.325), except that the procedures of §§ 1209.410 through 1209.413 shall be used in imposing a suspension.
(a) In accordance with the OMB guidelines, GSA shall compile, maintain, and distribute a list of all persons who have been debarred, suspended, or voluntarily excluded by agencies under Executive Order 12549 and these regulations, and those who have been determined to be ineligible.
(b) At a minimum, this list shall indicate:
(1) The names and addresses of all debarred, suspended, ineligible, and voluntarily excluded persons, in alphabetical order, with cross-references when more than one name is involved in a single action;
(2) The type of action;
(3) The cause for the action;
(4) The scope of the action;
(5) Any termination date for each listing; and
(6) The agency and name and telephone number of the agency point of contact for the action.
(a) The agency shall provide GSA with current information concerning debarments, suspension, determinations of ineligibility, and voluntary exclusions it has taken. Until February 18, 1989, the agency shall also provide GSA and OMB with information concerning all transactions in which NARA has granted exceptions under § 1209.215 permitting participation by debarred, suspended, or voluntarily excluded persons.
(b) Unless an alternative schedule is agreed to by GSA, the agency shall advise GSA of the information set forth in § 1209.500(b) and of the exceptions granted under § 1209.215 within five working days after taking such actions.
(c) The agency shall direct inquiries concerning listed persons to the agency that took the action.
(d) Agency officials shall check the Nonprocurement List before entering covered transactions to determine whether a participant in a primary transaction is debarred, suspended, ineligible, or voluntarily excluded (Tel. #).
(e) Agency officials shall check the Nonprocurement List before approving principals or lower tier participants where agency approval of the principal or lower tier participant is required under the terms of the transaction, to determine whether such principals or participants are debarred, suspended, ineligible, or voluntarily excluded.
(a)
(b)
(2) A participant may rely upon the certification of a prospective participant in a lower tier covered transaction that it and its principals are not
(c)
(a) The purpose of this subpart is to carry out the Drug-Free Workplace Act of 1988 by requiring that—
(1) A grantee, other than an individual, shall certify to the agency that it will provide a drug-free workplace;
(2) A grantee who is an individual shall certify to the agency that, as a condition of the grant, he or she will not engage in the unlawful manufacture, distribution, dispensing, possession or use of a controlled substance in conducting any activity with the grant.
(b) Requirements implementing the Drug-Free Workplace Act of 1988 for contractors with the agency are found at 48 CFR subparts 9.4, 23.5, and 52.2.
(a) Except as amended in this section, the definitions of § 1209.105 apply to this subpart.
(b) For purposes of this subpart—
(1)
(2)
(3)
(4)
(5)
(i) All
(ii) All
(iii) Temporary personnel and consultants who are directly engaged in the performance of work under the grant and who are on the grantee's payroll.
(6)
(7)
(8)
(9)
(10)
(a) This subpart applies to any grantee of the agency.
(b) This subpart applies to any grant, except where application of this subpart would be inconsistent with the international obligations of the United States or the laws or regulations of a foreign government. A determination of such inconsistency may be made only by the agency head or his/her designee.
(c) The provisions of subparts A, B, C, D and E of this part apply to matters covered by this subpart, except where specifically modified by this subpart. In the event of any conflict between provisions of this subpart and other provisions of this part, the provisions of this subpart are deemed to control with respect to the implementation of drug-free workplace requirements concerning grants.
A grantee shall be deemed in violation of the requirements of this subpart if the agency head or his or her official designee determines, in writing, that—
(a) The grantee has made a false certification under § 1209.630;
(b) With respect to a grantee other than an individual—
(1) The grantee has violated the certification by failing to carry out the requirements of paragraphs (A)(a)-(g) and/or (B) of the certification (alternate I to appendix C) or
(2) Such a number of employees of the grantee have been convicted of violations of criminal drug statutes for violations occurring in the workplace as to indicate that the grantee has failed to make a good faith effort to provide a drug-free workplace.
(c) With respect to a grantee who is an individual—
(1) The grantee has violated the certification by failing to carry out its requirements (alternate II to appendix C); or
(2) The grantee is convicted of a criminal drug offense resulting from a violation occurring during the conduct of any grant activity.
(a) In the event of a violation of this subpart as provided in § 1209.615, and in accordance with applicable law, the grantee shall be subject to one or more of the following actions:
(1) Suspension of payments under the grant;
(2) Suspension or termination of the grant; and
(3) Suspension or debarment of the grantee under the provisions of this part.
(b) Upon issuance of any final decision under this part requiring debarment of a grantee, the debarred grantee shall be ineligible for award of any grant from any Federal agency for a period specified in the decision, not to
The agency head may waive with respect to a particular grant, in writing, a suspension of payments under a grant, suspension or termination of a grant, or suspension or debarment of a grantee if the agency head determines that such a waiver would be in the public interest. This exception authority cannot be delegated to any other official.
(a)(1) As a prior condition of being awarded a grant, each grantee shall make the appropriate certification to the Federal agency providing the grant, as provided in appendix C to this part.
(2) Grantees are not required to make a certification in order to continue receiving funds under a grant awarded before March 18, 1989, or under a no-cost time extension of such a grant. However, the grantee shall make a one-time drug-free workplace certification for a non-automatic continuation of such a grant made on or after March 18, 1989.
(b) Except as provided in this section, all grantees shall make the required certification for each grant. For mandatory formula grants and entitlements that have no application process, grantees shall submit a one-time certification in order to continue receiving awards.
(c) A grantee that is a State may elect to make one certification in each Federal fiscal year. States that previously submitted an annual certification are not required to make a certification for Fiscal Year 1990 until June 30, 1990. Except as provided in paragraph (d) of this section, this certification shall cover all grants to all State agencies from any Federal agency. The State shall retain the original of this statewide certification in its Governor's office and, prior to grant award, shall ensure that a copy is submitted individually with respect to each grant, unless the Federal agency has designated a central location for submission.
(d)(1) The Governor of a State may exclude certain State agencies from the statewide certification and authorize these agencies to submit their own certifications to Federal agencies. The statewide certification shall name any State agencies so excluded.
(2) A State agency to which the statewide certification does not apply, or a State agency in a State that does not have a statewide certification, may elect to make one certification in each Federal fiscal year. State agencies that previously submitted a State agency certification are not required to make a certification for Fiscal Year 1990 until June 30, 1990. The State agency shall retain the original of this State agency-wide certification in its central office and, prior to grant award, shall ensure that a copy is submitted individually with respect to each grant, unless the Federal agency designates a central location for submission.
(3) When the work of a grant is done by more than one State agency, the certification of the State agency directly receiving the grant shall be deemed to certify compliance for all workplaces, including those located in other State agencies.
(e)(1) For a grant of less than 30 days performance duration, grantees shall have this policy statement and program in place as soon as possible, but in any case by a date prior to the date on which performance is expected to be completed.
(2) For a grant of 30 days or more performance duration, grantees shall have this policy statement and program in place within 30 days after award.
(3) Where extraordinary circumstances warrant for a specific grant, the grant officer may determine a different date on which the policy statement and program shall be in place.
(a) When a grantee other than an individual is notified that an employee has been convicted for a violation of a criminal drug statute occurring in the workplace, it shall take the following actions:
(1) Within 10 calendar days of receiving notice of the conviction, the grantee shall provide written notice, including the convicted employee's position title, to every grant officer, or other designee on whose grant activity the convicted employee was working, unless a Federal agency has designated a central point for the receipt of such notifications. Notification shall include the identification number(s) for each of the Federal agency's affected grants.
(2) Within 30 calendar days of receiving notice of the conviction, the grantee shall do the following with respect to the employee who was convicted.
(i) Take appropriate personnel action against the employee, up to and including termination, consistent with requirements of the Rehabilitation Act of 1973, as amended; or
(ii) Require the employee to participate satisfactorily in a drug abuse assistance or rehabilitation program approved for such purposes by a Federal, State, or local health, law enforcement, or other appropriate agency.
(b) A grantee who is an individual who is convicted for a violation of a criminal drug statute occurring during the conduct of any grant activity shall report the conviction, in writing, within 10 calendar days, to his or her Federal agency grant officer, or other designee, unless the Federal agency has designated a central point for the receipt of such notices. Notification shall include the identification number(s) for each of the Federal agency's affected grants.
1. By signing and submitting this proposal, the prospective primary participant is providing the certification set out below.
2. The inability of a person to provide the certification required below will not necessarily result in denial of participation in this covered transaction. The prospective participant shall submit an explanation of why it cannot provide the certification set out below. The certification or explanation will be considered in connection with the department or agency's determination whether to enter into this transaction. However, failure of the prospective primary participant to furnish a certification or an explanation shall disqualify such person from participation in this transaction.
3. The certification in this clause is a material representation of fact upon which reliance was placed when the department or agency determined to enter into this transaction. If it is later determined that the prospective primary participant knowingly rendered an erroneous certification, in addition to other remedies available to the Federal Government, the department or agency may terminate this transaction for cause or default.
4. The prospective primary participant shall provide immediate written notice to the department or agency to which this proposal is submitted if at any time the prospective primary participant learns that its certification was erroneous when submitted or has become erroneous by reason of changed circumstances.
5. The terms
6. The prospective primary participant agrees by submitting this proposal that, should the proposed covered transaction be entered into, it shall not knowingly enter into any lower tier covered transaction with a person who is proposed for debarment under 48 CFR part 9, subpart 9.4, debarred, suspended, declared ineligible, or voluntarily excluded from participation in this covered transaction, unless authorized by the department or agency entering into this transaction.
7. The prospective primary participant further agrees by submitting this proposal that it will include the clause titled “Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion-Lower Tier Covered Transaction,” provided by the department or agency entering into this covered transaction, without modification, in all lower tier covered transactions and in all solicitations for lower tier covered transactions.
8. A participant in a covered transaction may rely upon a certification of a prospective participant in a lower tier covered transaction that it is not proposed for debarment under 48 CFR part 9, subpart 9.4,
9. Nothing contained in the foregoing shall be construed to require establishment of a system of records in order to render in good faith the certification required by this clause. The knowledge and information of a participant is not required to exceed that which is normally possessed by a prudent person in the ordinary course of business dealings.
10. Except for transactions authorized under paragraph 6 of these instructions, if a participant in a covered transaction knowingly enters into a lower tier covered transaction with a person who is proposed for debarment under 48 CFR part 9, subpart 9.4, suspended, debarred, ineligible, or voluntarily excluded from participation in this transaction, in addition to other remedies available to the Federal Government, the department or agency may terminate this transaction for cause or default.
(1) The prospective primary participant certifies to the best of its knowledge and belief, that it and its principals:
(a) Are not presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded by any Federal department or agency;
(b) Have not within a three-year period preceding this proposal been convicted of or had a civil judgment rendered against them for commission of fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a public (Federal, State or local) transaction or contract under a public transaction; violation of Federal or State antitrust statutes or commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, or receiving stolen property;
(c) Are not presently indicted for or otherwise criminally or civilly charged by a governmental entity (Federal, State or local) with commission of any of the offenses enumerated in paragraph (1)(b) of this certification; and
(d) Have not within a three-year period preceding this application/proposal had one or more public transactions (Federal, State or local) terminated for cause or default.
(2) Where the prospective primary participant is unable to certify to any of the statements in this certification, such prospective participant shall attach an explanation to this proposal.
1. By signing and submitting this proposal, the prospective lower tier participant is providing the certification set out below.
2. The certification in this clause is a material representation of fact upon which reliance was placed when this transaction was entered into. If it is later determined that the prospective lower tier participant knowingly rendered an erroneous certification, in addition to other remedies available to the Federal Government the department or agency with which this transaction originated may pursue available remedies, including suspension and/or debarment.
3. The prospective lower tier participant shall provide immediate written notice to the person to which this proposal is submitted if at any time the prospective lower tier participant learns that its certification was erroneous when submitted or had become erroneous by reason of changed circumstances.
4. The terms
5. The prospective lower tier participant agrees by submitting this proposal that, should the proposed covered transaction be entered into, it shall not knowingly enter into any lower tier covered transaction with a person who is proposed for debarment under 48 CFR part 9, subpart 9.4, debarred, suspended, declared ineligible, or voluntarily excluded from participation in this covered transaction, unless authorized by the department or agency with which this transaction originated.
6. The prospective lower tier participant further agrees by submitting this proposal that it will include this clause titled “Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion-Lower Tier Covered Transaction,” without modification, in all lower tier covered transactions and in all solicitations for lower tier covered transactions.
7. A participant in a covered transaction may rely upon a certification of a prospective participant in a lower tier covered transaction that it is not proposed for debarment under 48 CFR part 9, subpart 9.4, debarred, suspended, ineligible, or voluntarily excluded from covered transactions, unless it knows that the certification is erroneous. A participant may decide the method and frequency by which it determines the eligibility of its principals. Each participant may, but is not required to, check the List of Parties Excluded from Federal Procurement and Nonprocurement Programs.
8. Nothing contained in the foregoing shall be construed to require establishment of a system of records in order to render in good faith the certification required by this clause. The knowledge and information of a participant is not required to exceed that which is normally possessed by a prudent person in the ordinary course of business dealings.
9. Except for transactions authorized under paragraph 5 of these instructions, if a participant in a covered transaction knowingly enters into a lower tier covered transaction with a person who is proposed for debarment under 48 CFR part 9, subpart 9.4, suspended, debarred, ineligible, or voluntarily excluded from participation in this transaction, in addition to other remedies available to the Federal Government, the department or agency with which this transaction originated may pursue available remedies, including suspension and/or debarment.
(1) The prospective lower tier participant certifies, by submission of this proposal, that neither it nor its principals is presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participation in this transaction by any Federal department or agency.
(2) Where the prospective lower tier participant is unable to certify to any of the statements in this certification, such prospective participant shall attach an explanation to this proposal.
1. By signing and/or submitting this application or grant agreement, the grantee is providing the certification set out below.
2. The certification set out below is a material representation of fact upon which reliance is placed when the agency awards the grant. If it is later determined that the grantee knowingly rendered a false certification, or otherwise violates the requirements of the Drug-Free Workplace Act, the agency, in addition to any other remedies available to the Federal Government, may take action authorized under the Drug-Free Workplace Act.
3. For grantees other than individuals, Alternate I applies.
4. For grantees who are individuals, Alternate II applies.
5. Workplaces under grants, for grantees other than individuals, need not be identified on the certification. If known, they may be identified in the grant application. If the grantee does not identify the workplaces at the time of application, or upon award, if there is no application, the grantee must keep the identity of the workplace(s) on file in its office and make the information available for Federal inspection. Failure to identify all known workplaces constitutes a violation of the grantee's drug-free workplace requirements.
6. Workplace identifications must include the actual address of buildings (or parts of buildings) or other sites where work under the grant takes place. Categorical descriptions may be used (e.g., all vehicles of a mass transit authority or State highway department while in operation, State employees in each local unemployment office, performers in concert halls or radio studios).
7. If the workplace identified to the agency changes during the performance of the grant, the grantee shall inform the agency of the change(s), if it previously identified the workplaces in question (see paragraph five).
8. Definitions of terms in the Nonprocurement Suspension and Debarment common rule and Drug-Free Workplace common rule apply to this certification. Grantees’ attention is called, in particular, to the following definitions from these rules:
A. The grantee certifies that it will or will continue to provide a drug-free workplace by:
(a) Publishing a statement notifying employees that the unlawful manufacture, distribution, dispensing, possession, or use of a controlled substance is prohibited in the grantee's workplace and specifying the actions that will be taken against employees for violation of such prohibition;
(b) Establishing an ongoing drug-free awareness program to inform employees about—
(1) The dangers of drug abuse in the workplace;
(2) The grantee's policy of maintaining a drug-free workplace;
(3) Any available drug counseling, rehabilitation, and employee assistance programs; and
(4) The penalties that may be imposed upon employees for drug abuse violations occurring in the workplace;
(c) Making it a requirement that each employee to be engaged in the performance of the grant be given a copy of the statement required by paragraph (a);
(d) Notifying the employee in the statement required by paragraph (a) that, as a condition of employment under the grant, the employee will—
(1) Abide by the terms of the statement; and
(2) Notify the employer in writing of his or her conviction for a violation of a criminal drug statute occurring in the workplace no later than five calendar days after such conviction;
(e) Notifying the agency in writing, within ten calendar days after receiving notice under paragraph (d)(2) from an employee or otherwise receiving actual notice of such conviction. Employers of convicted employees must provide notice, including position title, to every grant officer or other designee on whose grant activity the convicted employee was working, unless the Federal agency has designated a central point for the receipt of such notices. Notice shall include the identification number(s) of each affected grant;
(f) Taking one of the following actions, within 30 calendar days of receiving notice under paragraph (d)(2), with respect to any employee who is so convicted—
(1) Taking appropriate personnel action against such an employee, up to and including termination, consistent with the requirements of the Rehabilitation Act of 1973, as amended; or
(2) Requiring such employee to participate satisfactorily in a drug abuse assistance or rehabilitation program approved for such purposes by a Federal, State, or local health, law enforcement, or other appropriate agency;
(g) Making a good faith effort to continue to maintain a drug-free workplace through implementation of paragraphs (a), (b), (c), (d), (e) and (f).
B. The grantee may insert in the space provided below the site(s) for the performance of work done in connection with the specific grant:
(a) The grantee certifies that, as a condition of the grant, he or she will not engage in the unlawful manufacture, distribution, dispensing, possession, or use of a controlled substance in conducting any activity with the grant;
(b) If convicted of a criminal drug offense resulting from a violation occurring during the conduct of any grant activity, he or she will report the conviction, in writing, within 10 calendar days of the conviction, to every grant officer or other designee, unless the Federal agency designates a central point for the receipt of such notices. When notice is made to such a central point, it shall include the identification number(s) of each affected grant.
44 U.S.C. 2104(a); 44 U.S.C. 2501-2506.
This part establishes uniform administrative requirements for NHPRC grants and agreements awarded to institutions of higher education, hospitals, and other non-profit organizations. Non-profit organizations that implement NHPRC programs for the States are also subject to State requirements.
(a)
(1) Goods and other tangible property received;
(2) Services performed by employees, contractors, subrecipients, and other payees; and,
(3) Other amounts becoming owed under programs for which no current services or performance is required.
(b)
(1) Earnings during a given period from
(i) Services performed by the recipient, and
(ii) Goods and other tangible property delivered to purchasers, and
(2) Amounts becoming owed to the recipient for which no current services or performance is required by the recipient.
(c)
(d)
(e)
(f)
(g)
(h)
(i)
(j)
(k)
(l)
(m)
(n)
(o)
(p)
(q)
(r)
(s)
(t)
(u)
(v)
(w)
(x)
(y)
(z)
(aa)
(bb)
(cc)
(dd)
(ee)
(ff)
(gg)
(hh)
(ii)
(jj)
(kk)
(ll)
(mm)
(nn)
(oo)
(pp)
(qq)
For awards subject to this part, all administrative requirements of codified program regulations, program manuals, handbooks and other nonregulatory materials which are inconsistent with the requirements of this part shall be superseded, except to the extent they are required by statute, or authorized in accordance with the deviations provision in § 1210.4.
The Office of Management and Budget (OMB) may grant exceptions for classes of grants or recipients subject to the requirements of this part when exceptions are not prohibited by statute. However, in the interest of maximum uniformity, exceptions from the requirements of this part shall be permitted only in unusual circumstances. The NHPRC may apply more restrictive requirements to a class of recipients when approved by OMB. The NHPRC may apply less restrictive requirements when awarding small awards, except for those requirements which are statutory. Exceptions on a case-by-case basis may also be made by the NHPRC.
Unless sections of this part specifically exclude subrecipients from coverage, the provisions of this part shall be applied to subrecipients performing work under awards if such subrecipients are institutions of higher education, hospitals or other non-profit organizations. State and local government subrecipients are subject to the provisions of regulations implementing the grants management common rule, “Uniform Administrative Requirements for Grants and Cooperative Agreements to State and Local Governments,” published at 36 CFR part 1207.
Sections 1210.11 through 1210.17 prescribes forms and instructions and other pre-award matters to be used in applying for NHPRC awards.
(a)
(b)
(a) The NHPRC shall comply with the applicable report clearance requirements of 5 CFR Part 1320, “Controlling Paperwork Burdens on the Public,” with regard to all forms used by the NHPRC in place of or as a supplement to the Standard Form 424 (SF-424) series.
(b) Applicants shall use the SF-424 (Application for Federal Assistance) and NA Form 17001 (Budget Form) forms and instructions prescribed by
(c) Applicants shall complete the appropriate sections of the SF-424 (Application for Federal Assistance) indicating whether the application was subject to review by the State Single Point of Contact (SPOC) under E.O. 12372, “Intergovernmental Review of Federal Programs.” The name and address of the SPOC for a particular State can be obtained from the NHPRC or the Catalog of Federal Domestic Assistance. The SPOC shall advise the applicant whether the program for which application is made has been selected by that State for review.
The NHPRC and recipients shall comply with the nonprocurement debarment and suspension common rule implementing E.O.s 12549 and 12689, “Debarment and Suspension” (36 CFR Part 1209). This common rule restricts subawards and contracts with certain parties that are debarred, suspended or otherwise excluded from or ineligible for participation in Federal assistance programs or activities.
If an applicant or recipient has a history of poor performance, is not financially stable, has a management system that does not meet the standards prescribed in this part, has not conformed to the terms and conditions of a previous award, or is not otherwise responsible, the NHPRC may impose additional requirements as needed, provided that such applicant or recipient is notified in writing as to: the nature of the additional requirements, the reason why the additional requirements are being imposed, the nature of the corrective action needed, the time allowed for completing the corrective actions, and the method for requesting reconsideration of the additional requirements imposed. Any special conditions shall be promptly removed once the conditions that prompted them have been corrected.
The Metric Conversion Act, as amended by the Omnibus Trade and Competitiveness Act (15 U.S.C. 205) declares that the metric system is the preferred measurement system for U.S. trade and commerce. The Act requires NARA to establish a date or dates in consultation with the Secretary of Commerce, when the metric system of measurement will be used in NARA's procurements, grants, and other business-related activities. Metric implementation may take longer where the use of the system is initially impractical or likely to cause significant inefficiencies in the accomplishment of federally-funded activities. NARA shall follow the provisions of E.O. 12770, “Metric Usage in Federal Government Programs.”
Under the Resource Conservation and Recovery Act ((RCRA) (Pub. L. 94-580 codified at 42 U.S.C. 6962), any State agency or agency of a political subdivision of a State which is using appropriated Federal funds must comply with section 6002. Section 6002 requires that preference be given in procurement programs to the purchase of specific products containing recycled materials identified in guidelines developed by the Environmental Protection Agency (EPA) (40 CFR Parts 247 through 254). Accordingly, State and local institutions of higher education, hospitals, and non-profit organizations that receive direct Federal awards or other Federal funds shall give preference in their procurement programs funded with Federal funds to the purchase of recycled products pursuant to the EPA guidelines.
Unless prohibited by statute or codified regulation, the NHPRC is authorized to allow recipients to submit certifications and representations required by statute, executive order, or regulation on an annual basis, if they have an ongoing and continuing relationship with the NHPRC. Annual certifications and representations shall be
Sections 1210.21 through 1210.28 prescribe standards for financial management systems, methods for making payments and rules for: satisfying cost sharing and matching requirements, accounting for program income, budget revision approvals, making audits, determining allowability of cost, and establishing fund availability.
(a) The NHPRC shall require recipients to relate financial data to performance data and develop unit cost information whenever practical.
(b) Recipients’ financial management systems shall provide for the following.
(1) Accurate, current and complete disclosure of the financial results of each NHPRC-sponsored project or program in accordance with the reporting requirements set forth in § 1210.52.
(2) Records that identify adequately the source and application of funds for NHPRC-sponsored activities. These records shall contain information pertaining to NHPRC awards, authorizations, obligations, unobligated balances, assets, outlays, income and interest.
(3) Effective control over and accountability for all funds, property and other assets. Recipients shall adequately safeguard all such assets and assure they are used solely for authorized purposes.
(4) Comparison of outlays with budget amounts for each award. Whenever appropriate, financial information should be related to performance and unit cost data.
(5) Written procedures to minimize the time elapsing between the transfer of funds to the recipient from the U.S. Treasury and the issuance or redemption of checks, warrants or payments by other means for program purposes by the recipient. To the extent that the provisions of the Cash Management Improvement Act (CMIA) (Pub. L. 101-453) govern, payment methods of State agencies, instrumentalities, and fiscal agents shall be consistent with CMIA Treasury-State Agreements or the CMIA default procedures codified at 31 CFR Part 205, “Withdrawal of Cash from the Treasury for Advances under Federal Grant and Other Programs.”
(6) Written procedures for determining the reasonableness, allocability and allowability of costs in accordance with the provisions of the applicable Federal cost principles and the terms and conditions of the award.
(7) Accounting records including cost accounting records that are supported by source documentation.
(c) Where the Federal Government guarantees or insures the repayment of money borrowed by the recipient, the NHPRC, at its discretion, may require adequate bonding and insurance if the bonding and insurance requirements of the recipient are not deemed adequate to protect the interest of the Federal Government.
(d) The NHPRC may require adequate fidelity bond coverage where the recipient lacks sufficient coverage to protect the Federal Government's interest.
(e) Where bonds are required in the situations described in this section, the bonds shall be obtained from companies holding certificates of authority as acceptable sureties, as prescribed in 31 CFR Part 223, “Surety Companies Doing Business with the United States.”
(a) Payment methods shall minimize the time elapsing between the transfer of funds from the United States Treasury and the issuance or redemption of checks, warrants, or payment by other means by the recipients. Payment methods of State agencies or instrumentalities shall be consistent with Treasury-State CMIA agreements or default procedures codified at 31 CFR Part 205.
(b) Recipients will be paid in advance, provided they maintain or demonstrate the willingness to maintain written procedures that minimize the
(c) Whenever possible, advances shall be consolidated to cover anticipated cash needs for all awards made by the NHPRC to the recipient.
(1) Advance payment mechanisms include, but are not limited to, Treasury check and electronic funds transfer.
(2) Advance payment mechanisms are subject to 31 CFR Part 205.
(3) Recipients can submit requests for advances and reimbursements at least monthly when a predetermined schedule of electronic funds transfer is not used.
(d) Requests for Treasury check advance payment shall be submitted on SF-270, “Request for Advance or Reimbursement,” or other forms as may be authorized by OMB. This form is not to be used when Treasury check advance payments are made to the recipient automatically through the use of a predetermined payment schedule or if precluded by special NHPRC instructions for electronic funds transfer.
(e) Reimbursement is the preferred method when the requirements in paragraph (b) of this section cannot be met.
(1) When the reimbursement method is used, the NHPRC shall make payment within 30 days after receipt of the billing, unless the billing is improper.
(2) Recipients can submit a request for reimbursement at least monthly when a predetermined schedule of electronic funds transfer is not used.
(f) If a recipient cannot meet the criteria for advance payments and the NHPRC has determined that reimbursement is not feasible because the recipient lacks sufficient working capital, the NHPRC may provide cash on a working capital advance basis. Under this procedure, the NHPRC shall advance cash to the recipient to cover its estimated disbursement needs for an initial period generally geared to the awardee's disbursing cycle. Thereafter, the NHPRC shall reimburse the recipient for its actual cash disbursements. The working capital advance method of payment shall not be used for recipients unwilling or unable to provide timely advances to their subrecipient to meet the subrecipient's actual cash disbursements.
(g) To the extent available, recipients shall disburse funds available from repayments to and interest earned on a revolving fund, program income, rebates, refunds, contract settlements, audit recoveries and interest earned on such funds before requesting additional cash payments.
(h) Unless otherwise required by statute, the NHPRC shall not withhold payments for proper charges made by recipients at any time during the project period unless paragraph (h)(1) or (2) of this section apply.
(1) A recipient has failed to comply with the project objectives, the terms and conditions of the award, or NHPRC reporting requirements.
(2) The recipient or subrecipient is delinquent in a debt to the United States as defined in OMB Circular A-129, “Managing Federal Credit Programs.” Under such conditions, the NHPRC may, upon reasonable notice, inform the recipient that payments shall not be made for obligations incurred after a specified date until the conditions are corrected or the indebtedness to the Federal Government is liquidated.
(i) Standards governing the use of banks and other institutions as depositories of funds advanced under awards are as follows.
(1) Except for situations described in paragraph (i)(2) of this section, the NHPRC shall not require separate depository accounts for funds provided to a recipient or establish any eligibility requirements for depositories for funds provided to a recipient. However, recipients must be able to account for
(2) Advances of NHPRC funds shall be deposited and maintained in insured accounts whenever possible.
(j) Consistent with the national goal of expanding the opportunities for women-owned and minority-owned business enterprises, recipients shall be encouraged to use women-owned and minority-owned banks (a bank which is owned at least 50 percent by women or minority group members).
(k) Recipients shall maintain advances of NHPRC funds in interest bearing accounts, unless paragraphs (k)(1), (2) or (3) of this section apply.
(1) The recipient receives less than $120,000 in Federal awards per year.
(2) The best reasonably available interest bearing account would not be expected to earn interest in excess of $250 per year on Federal cash balances.
(3) The depository would require an average or minimum balance so high that it would not be feasible within the expected Federal and non-Federal cash resources.
(l) In keeping with Electronic Funds Transfer rules (31 CFR Part 206), interest earned should be remitted annually to the Department of Health and Human Services (HHS) Payment Management System through an electronic medium such as the FEDWIRE Deposit system. Recipients which do not have this capability should use a check and mail it to the Payment Management System, P.O. Box 6021, Rockville, MD 20852. Interest amounts up to $250 per year may be retained by the recipient for administrative expense. State universities and hospitals shall comply with CMIA, as it pertains to interest. If an entity subject to CMIA uses its own funds to pay pre-award costs for discretionary awards without prior written approval from the NHPRC, it waives its right to recover the interest under CMIA.
(m) Except as noted elsewhere in this part, only the SF-270, Request for Advance or Reimbursement, shall be authorized for the recipients in requesting advances and reimbursements. The NHPRC requires an original and two copies of this form.
(a) All contributions, including cash and third party in-kind, shall be accepted as part of the recipient's cost sharing or matching when such contributions meet all of the following criteria.
(1) Are verifiable from the recipient's records.
(2) Are not included as contributions for any other federally-assisted project or program.
(3) Are necessary and reasonable for proper and efficient accomplishment of project or program objectives.
(4) Are allowable under the applicable cost principles.
(5) Are not paid by the Federal Government under another award, except where authorized by Federal statute to be used for cost sharing or matching.
(6) Are provided for in the approved budget when required by the NHPRC.
(7) Conform to other provisions of this part, as applicable.
(b) Unrecovered indirect costs may be included as part of cost sharing or matching only with the prior approval of the NHPRC.
(c) Values for recipient contributions of services and property shall be established in accordance with the applicable cost principles. If the NHPRC authorizes recipients to donate buildings or land for construction/facilities acquisition projects or long-term use, the value of the donated property for cost sharing or matching shall be the lesser of paragraph (c)(1) or (2) of this section.
(1) The certified value of the remaining life of the property recorded in the recipient's accounting records at the time of donation.
(2) The current fair market value. However, when there is sufficient justification, the NHPRC may approve the use of the current fair market value of the donated property, even if it exceeds the certified value at the time of donation to the project.
(d) Volunteer services furnished by professional and technical personnel, consultants, and other skilled and unskilled labor may be counted as cost sharing or matching if the service is an integral and necessary part of an approved project or program. Rates for volunteer services shall be consistent with those paid for similar work in the
(e) When an employer other than the recipient furnishes the services of an employee, these services shall be valued at the employee's regular rate of pay (plus an amount of fringe benefits that are reasonable, allowable, and allocable, but exclusive of overhead costs), provided these services are in the same skill for which the employee is normally paid.
(f) Donated supplies may include such items as expendable equipment, office supplies, laboratory supplies or workshop and classroom supplies. Value assessed to donated supplies included in the cost sharing or matching share shall be reasonable and shall not exceed the fair market value of the property at the time of the donation.
(g) The method used for determining cost sharing or matching for donated equipment, buildings and land for which title passes to the recipient may differ according to the purpose of the award, if paragraph (g)(1) or (2) of this section apply.
(1) If the purpose of the award is to assist the recipient in the acquisition of equipment, buildings or land, the total value of the donated property may be claimed as cost sharing or matching.
(2) If the purpose of the award is to support activities that require the use of equipment, buildings or land, normally only depreciation or use charges for equipment and buildings may be made. However, the full value of equipment or other capital assets and fair rental charges for land may be allowed, provided that the NHPRC has approved the charges.
(h) The value of donated property shall be determined in accordance with the usual accounting policies of the recipient, with the following qualifications.
(1) The value of donated land and buildings shall not exceed its fair market value at the time of donation to the recipient as established by an independent appraiser (e.g., certified real property appraiser or General Services Administration representative) and certified by a responsible official of the recipient.
(2) The value of donated equipment shall not exceed the fair market value of equipment of the same age and condition at the time of donation.
(3) The value of donated space shall not exceed the fair rental value of comparable space as established by an independent appraisal of comparable space and facilities in a privately-owned building in the same locality.
(4) The value of loaned equipment shall not exceed its fair rental value.
(5) The following requirements pertain to the recipient's supporting records for in-kind contributions from third parties.
(i) Volunteer services shall be documented and, to the extent feasible, supported by the same methods used by the recipient for its own employees.
(ii) The basis for determining the valuation for personal service, material, equipment, buildings and land shall be documented.
(a) The NHPRC applies the standards set forth in this section in requiring recipient organizations to account for program income related to projects financed in whole or in part with Federal funds.
(b) Except as provided in paragraph (h) of this section, program income earned during the project period shall be retained by the recipient and, in accordance with these regulations or the terms and conditions of the award, shall be used in one or more of the ways listed in the following.
(1) Added to funds committed to the project by the NHPRC and recipient and used to further eligible project or program objectives.
(2) Used to finance the non-Federal share of the project or program.
(3) Deducted from the total project or program allowable cost in determining the net allowable costs on which the Federal share of costs is based.
(c) When the NHPRC authorizes the disposition of program income as described in paragraphs (b)(1) or (b)(2) of this section, program income in excess of any limits stipulated shall be used in accordance with paragraph (b)(3) of this section.
(d) In the event that the NHPRC does not specify in its regulations or the terms and conditions of the award how program income is to be used, paragraph (b)(3) of this section shall apply automatically to all projects or programs except research. For awards that support research, paragraph (b)(1) of this section shall apply automatically unless the NHPRC indicates in the terms and conditions another alternative on the award or the recipient is subject to special award conditions, as indicated in § 1210.14.
(e) Unless NHPRC regulations or the terms and conditions of the award provide otherwise, recipients shall have no obligation to the Federal Government regarding program income earned after the end of the project period.
(f) If authorized by NHPRC regulations or the terms and conditions of the award, costs incident to the generation of program income may be deducted from gross income to determine program income, provided these costs have not been charged to the award.
(g) Proceeds from the sale of property shall be handled in accordance with the requirements of the Property Standards (See §§ 1210.30 through 1210.37).
(h) Unless NHPRC regulations or the terms and condition of the award provide otherwise, recipients shall have no obligation to the Federal Government with respect to program income earned from license fees and royalties for copyrighted material, patents, patent applications, trademarks, and inventions produced under an award. However, Patent and Trademark Amendments (35 U.S.C. 18) apply to inventions made under an experimental, developmental, or research award.
(a) The budget plan is the financial expression of the project or program as approved during the award process. It may include either the Federal and non-Federal share, or only the Federal share, depending upon NHPRC requirements. It shall be related to performance for program evaluation purposes whenever appropriate.
(b) Recipients are required to report deviations from budget and program plans, and request prior approvals for budget and program plan revisions, in accordance with this section.
(c) Recipients shall request prior approvals from the NHPRC for one or more of the following program or budget related reasons.
(1) Change in the scope or the objective of the project or program (even if there is no associated budget revision requiring prior written approval).
(2) Change in a key person specified in the application or award document.
(3) The absence for more than three months, or a 25 percent reduction in time devoted to the project, by the approved project director or principal investigator.
(4) The need for additional NHPRC funding.
(5) The transfer of amounts budgeted for indirect costs to absorb increases in direct costs, or vice versa, if approval is required by the NHPRC.
(6) The inclusion, unless waived by the NHPRC, of costs that require prior approval in accordance with OMB Circular A-21, “Cost Principles for Institutions of Higher Education,” OMB Circular A-122, “Cost Principles for Non-Profit Organizations,” or 45 CFR Part 74 Appendix E, “Principles for Determining Costs Applicable to Research and Development under Grants and Contracts with Hospitals,” or 48 CFR Part 31, “Contract Cost Principles and Procedures,” as applicable.
(7) The transfer of funds allotted for training allowances (direct payment to trainees) to other categories of expense.
(8) Unless described in the application and funded in the approved awards, the subaward, transfer or contracting out of any work under an award. This provision does not apply to the purchase of supplies, material, equipment or general support services.
(d) No other prior approval requirements for specific items will be imposed unless a deviation has been approved by OMB.
(e) Except for requirements listed in paragraphs (c)(1) and (c)(4) of this section, the NHPRC is authorized, at their option, to waive cost-related and administrative prior written approvals required by this Circular and OMB Circulars A-21 and A-122. Such waivers may include authorizing recipients to do any one or more of the following.
(1) Incur pre-award costs 90 calendar days prior to award or more than 90 calendar days with the prior approval of the NHPRC. All pre-award costs are incurred at the recipient's risk (i.e., the NHPRC is under no obligation to reimburse such costs if for any reason the recipient does not receive an award or if the award is less than anticipated and inadequate to cover such costs).
(2) Initiate a one-time extension of the expiration date of the award of up to 12 months unless one or more of the following conditions apply. For one-time extensions, the recipient must notify the NHPRC in writing with the supporting reasons and revised expiration date at least 10 days before the expiration date specified in the award. This one-time extension may not be exercised merely for the purpose of using unobligated balances.
(i) The terms and conditions of award prohibit the extension.
(ii) The extension requires additional NHPRC funds.
(iii) The extension involves any change in the approved objectives or scope of the project.
(3) Carry forward unobligated balances to subsequent funding periods.
(4) For awards that support research, unless the NHPRC provides otherwise in the award or in NHPRC's regulations, the prior approval requirements described in paragraph (e) of this section are automatically waived (i.e., recipients need not obtain such prior approvals) unless one of the conditions included in paragraph (e)(2) of this section applies.
(f) The NHPRC may, at its option, restrict the transfer of funds among direct cost categories or programs, functions and activities for awards in which the Federal share of the project exceeds $100,000 and the cumulative amount of such transfers exceeds or is expected to exceed 10 percent of the total budget as last approved by the NHPRC. The NHPRC shall not permit a transfer that would cause any Federal appropriation or part thereof to be used for purposes other than those consistent with the original intent of the appropriation.
(g) All other changes to nonconstruction budgets, except for the changes described in paragraph (j), do not require prior approval.
(h) [Reserved]
(i) No other prior approval requirements for specific items will be imposed unless a deviation has been approved by OMB.
(j) The NHPRC shall require recipients to notify the NHPRC in writing promptly whenever the amount of Federal authorized funds is expected to exceed the needs of the recipient for the project period by more than $5,000 or five percent of the NHPRC award, whichever is greater. This notification shall not be required if an application for additional funding is submitted for a continuation award.
(k) When requesting approval for budget revisions, recipients shall use the budget forms that were used in the application unless the NHPRC indicates a letter of request suffices.
(l) Within 30 calendar days from the date of receipt of the request for budget revisions, the NHPRC shall review the request and notify the recipient whether the budget revisions have been approved. If the revision is still under consideration at the end of 30 calendar days, the NHPRC shall inform the recipient in writing of the date when the recipient may expect the decision.
(a) Recipients and subrecipients that are institutions of higher education or other non-profit organizations (including hospitals) shall be subject to the audit requirements contained in the Single Audit Act Amendments of 1996 (31 U.S.C. 7501-7507) and revised OMB Circular A-133, “Audits of States, Local Governments, and Non-Profit Organizations.”
(b) State and local governments shall be subject to the audit requirements contained in the Single Audit Act Amendments of 1996 (31 U.S.C. 7501-7507) and revised OMB Circular A-133,
(c) For-profit hospitals not covered by the audit provisions of revised OMB Circular A-133 shall be subject to the audit requirements of the Federal awarding agencies.
For each kind of recipient, there is a set of Federal principles for determining allowable costs. Allowability of costs shall be determined in accordance with the cost principles applicable to the entity incurring the costs. Thus, allowability of costs incurred by State, local or federally-recognized Indian tribal governments is determined in accordance with the provisions of OMB Circular A-87, “Cost Principles for State and Local Governments.” The allowability of costs incurred by non-profit organizations is determined in accordance with the provisions of OMB Circular A-122, “Cost Principles for Non-Profit Organizations.” The allowability of costs incurred by institutions of higher education is determined in accordance with the provisions of OMB Circular A-21, “Cost Principles for Educational Institutions.” The allowability of costs incurred by hospitals is determined in accordance with the provisions of Appendix E of 45 CFR Part 74, “Principles for Determining Costs Applicable to Research and Development Under Grants and Contracts with Hospitals.” The allowability of costs incurred those non-profit organizations listed in Attachment C to Circular A-122 is determined in accordance with the provisions of the Federal Acquisition Regulation (FAR) at 48 CFR Part 31.
Where a funding period is specified, a recipient may charge to the grant only allowable costs resulting from obligations incurred during the funding period and any pre-award costs authorized by the NHPRC.
Sections 1210.31 through 1210.37 set forth uniform standards governing management and disposition of property furnished by the Federal Government whose cost was charged to a project supported by an NHPRC award. The NHPRC requires recipients to observe these standards under awards and shall not impose additional requirements, unless specifically required by Federal statute. The recipient may use its own property management standards and procedures provided it observes the provisions of §§ 1210.31 through 1210.37.
Recipients shall, at a minimum, provide the equivalent insurance coverage for real property and equipment acquired with NHPRC funds as provided to property owned by the recipient. Federally-owned property need not be insured unless required by the terms and conditions of the award.
The NHPRC shall prescribe requirements for recipients concerning the use and disposition of real property acquired in whole or in part under awards. Unless otherwise provided by statute, such requirements, at a minimum, shall contain the following.
(a) Title to real property shall vest in the recipient subject to the condition that the recipient shall use the real property for the authorized purpose of the project as long as it is needed and shall not encumber the property without approval of the NHPRC.
(b) The recipient shall obtain written approval by the NHPRC for the use of real property in other federally-sponsored projects when the recipient determines that the property is no longer needed for the purpose of the original project. Use in other projects shall be limited to those under federally-sponsored projects (i.e., awards) or programs that have purposes consistent with those authorized for support by the NHPRC.
(c) When the real property is no longer needed as provided in paragraphs (a) and (b) of this section, the recipient shall request disposition instructions from the NHPRC or its successor Federal awarding agency. The NHPRC shall observe one or more of the following disposition instructions.
(1) The recipient may be permitted to retain title without further obligation to the Federal Government after it compensates the Federal Government for that percentage of the current fair market value of the property attributable to the Federal participation in the project.
(2) The recipient may be directed to sell the property under guidelines provided by the NHPRC and pay the Federal Government for that percentage of the current fair market value of the property attributable to the Federal participation in the project (after deducting actual and reasonable selling and fix-up expenses, if any, from the sales proceeds). When the recipient is authorized or required to sell the property, proper sales procedures shall be established that provide for competition to the extent practicable and result in the highest possible return.
(3) The recipient may be directed to transfer title to the property to the Federal Government or to an eligible third party provided that, in such cases, the recipient shall be entitled to compensation for its attributable percentage of the current fair market value of the property.
(a) Federally-owned property.
(1) Title to federally-owned property remains vested in the Federal Government. Recipients shall submit annually an inventory listing of federally-owned property in their custody to the NHPRC. Upon completion of the award or when the property is no longer needed, the recipient shall report the property to the NHPRC for further Federal agency utilization.
(2) If the NHPRC has no further need for the property, it shall be declared excess and reported to the General Services Administration. Appropriate instructions shall be issued to the recipient by the NHPRC.
(b) Exempt property. When statutory authority exists, the NHPRC has the option to vest title to property acquired with Federal funds in the recipient without further obligation to the Federal Government and under conditions the NHPRC considers appropriate. Such property is “exempt property.” Should the NHPRC not establish conditions, title to exempt property upon acquisition shall vest in the recipient without further obligation to the Federal Government.
(a) Title to equipment acquired by a recipient with NHPRC funds shall vest in the recipient, subject to conditions of this section.
(b) The recipient shall not use equipment acquired with NHPRC funds to provide services to non-Federal outside organizations for a fee that is less than private companies charge for equivalent services, unless specifically authorized by Federal statute, for as long as the Federal Government retains an interest in the equipment.
(c) The recipient shall use the equipment in the project or program for which it was acquired as long as needed, whether or not the project or program continues to be supported by Federal funds and shall not encumber the property without approval of the NHPRC. When no longer needed for the original project or program, the recipient shall use the equipment in connection with its other federally-sponsored activities, in the following order of priority:
(1) Activities sponsored by the NHPRC which funded the original project, then
(2) Activities sponsored by other Federal awarding agencies.
(d) During the time that equipment is used on the project or program for which it was acquired, the recipient shall make it available for use on other projects or programs if such other use will not interfere with the work on the project or program for which the equipment was originally acquired. First preference for such other use shall be given to other projects or programs sponsored by the NHPRC that financed the equipment; second preference shall
(e) When acquiring replacement equipment, the recipient may use the equipment to be replaced as trade-in or sell the equipment and use the proceeds to offset the costs of the replacement equipment subject to the approval of the NHPRC.
(f) The recipient's property management standards for equipment acquired with Federal funds and federally-owned equipment shall include all of the following.
(1) Equipment records shall be maintained accurately and shall include the following information.
(i) A description of the equipment.
(ii) Manufacturer's serial number, model number, Federal stock number, national stock number, or other identification number.
(iii) Source of the equipment, including the award number.
(iv) Whether title vests in the recipient or the Federal Government.
(v) Acquisition date (or date received, if the equipment was furnished by the Federal Government) and cost.
(vi) Information from which one can calculate the percentage of Federal participation in the cost of the equipment (not applicable to equipment furnished by the Federal Government).
(vii) Location and condition of the equipment and the date the information was reported.
(viii) Unit acquisition cost.
(ix) Ultimate disposition data, including date of disposal and sales price or the method used to determine current fair market value where a recipient compensates the NHPRC for its share.
(2) Equipment owned by the Federal Government shall be identified to indicate Federal ownership.
(3) A physical inventory of equipment shall be taken and the results reconciled with the equipment records at least once every two years. Any differences between quantities determined by the physical inspection and those shown in the accounting records shall be investigated to determine the causes of the difference. The recipient shall, in connection with the inventory, verify the existence, current utilization, and continued need for the equipment.
(4) A control system shall be in effect to insure adequate safeguards to prevent loss, damage, or theft of the equipment. Any loss, damage, or theft of equipment shall be investigated and fully documented; if the equipment was owned by the Federal Government, the recipient shall promptly notify the NHPRC.
(5) Adequate maintenance procedures shall be implemented to keep the equipment in good condition.
(6) Where the recipient is authorized or required to sell the equipment, proper sales procedures shall be established which provide for competition to the extent practicable and result in the highest possible return.
(g) When the recipient no longer needs the equipment, the equipment may be used for other activities in accordance with the following standards. For equipment with a current per unit fair market value of $5,000 or more, the recipient may retain the equipment for other uses provided that compensation is made to the NHPRC or its successor. The amount of compensation shall be computed by applying the percentage of Federal participation in the cost of the original project or program to the current fair market value of the equipment. If the recipient has no need for the equipment, the recipient shall request disposition instructions from the NHPRC. The NHPRC shall determine whether the equipment can be used to meet the NHPRC's requirements. If no requirement exists within the NHPRC, the availability of the equipment shall be reported to the General Services Administration by the NHPRC to determine whether a requirement for the equipment exists in other Federal agencies. The NHPRC shall issue instructions to the recipient no later than 120 calendar days after the recipient's request and the following procedures shall govern.
(1) If so instructed or if disposition instructions are not issued within 120
(2) If the recipient is instructed to ship the equipment elsewhere, the recipient shall be reimbursed by the Federal Government by an amount which is computed by applying the percentage of the recipient's participation in the cost of the original project or program to the current fair market value of the equipment, plus any reasonable shipping or interim storage costs incurred.
(3) If the recipient is instructed to otherwise dispose of the equipment, the recipient shall be reimbursed by the NHPRC for such costs incurred in its disposition.
(4) The NHPRC reserves the right to transfer the title to the Federal Government or to a third party named by the Federal Government when such third party is otherwise eligible under existing statutes. Such transfer shall be subject to the following standards.
(i) The equipment shall be appropriately identified in the award or otherwise made known to the recipient in writing.
(ii) The NHPRC shall issue disposition instructions within 120 calendar days after receipt of a final inventory. The final inventory shall list all equipment acquired with grant funds and federally-owned equipment. If the NHPRC fails to issue disposition instructions within the 120 calendar day period, the recipient shall apply the standards of this section, as appropriate.
(iii) When the NHPRC exercises its right to take title, the equipment shall be subject to the provisions for federally-owned equipment.
(a) Title to supplies and other expendable property shall vest in the recipient upon acquisition. If there is a residual inventory of unused supplies exceeding $5,000 in total aggregate value upon termination or completion of the project or program and the supplies are not needed for any other federally-sponsored project or program, the recipient shall retain the supplies for use on non-Federal sponsored activities or sell them, but shall, in either case, compensate the NHPRC for its share. The amount of compensation shall be computed in the same manner as for equipment.
(b) The recipient shall not use supplies acquired with NHPRC funds to provide services to non-Federal outside organizations for a fee that is less than private companies charge for equivalent services, unless specifically authorized by Federal statute as long as the Federal Government retains an interest in the supplies.
(a) The recipient may copyright any work that is subject to copyright and was developed, or for which ownership was purchased, under an award. The NHPRC reserves a royalty-free, nonexclusive and irrevocable right to reproduce, publish, or otherwise use the work for Federal purposes, and to authorize others to do so.
(b) Recipients are subject to applicable regulations governing patents and inventions, including government-wide regulations issued by the Department of Commerce at 37 CFR Part 401, “Rights to Inventions Made by Nonprofit Organizations and Small Business Firms Under Government Grants, Contracts and Cooperative Agreements.”
(c) Unless waived by the NHPRC, the Federal Government has the right to:
(1) Obtain, reproduce, publish or otherwise use the data first produced under an award; and
(2) Authorize others to receive, reproduce, publish, or otherwise use such data for Federal purposes.
(d) Title to intangible property and debt instruments acquired under an award or subaward vests upon acquisition in the recipient. The recipient
Real property, equipment, intangible property and debt instruments that are acquired or improved with NHPRC funds shall be held in trust by the recipient as trustee for the beneficiaries of the project or program under which the property was acquired or improved. The NHPRC may require recipients to record liens or other appropriate notices of record to indicate that personal or real property has been acquired or improved with Federal funds and that use and disposition conditions apply to the property.
Sections 1210.41 through 1210.48 set forth standards for use by recipients in establishing procedures for the procurement of supplies and other expendable property, equipment, real property and other services with NHPRC funds. These standards are furnished to ensure that such materials and services are obtained in an effective manner and in compliance with the provisions of applicable Federal statutes and executive orders. No additional procurement standards or requirements shall be imposed by the NHPRC upon recipients, unless specifically required by Federal statute or executive order or approved by OMB.
The standards contained in this section do not relieve the recipient of the contractual responsibilities arising under its contract(s). The recipient is the responsible authority, without recourse to the NHPRC, regarding the settlement and satisfaction of all contractual and administrative issues arising out of procurements entered into in support of an award or other agreement. This includes disputes, claims, protests of award, source evaluation or other matters of a contractual nature. Matters concerning violation of statute are to be referred to such Federal, State or local authority as may have proper jurisdiction.
The recipient shall maintain written standards of conduct governing the performance of its employees engaged in the award and administration of contracts. No employee, officer, or agent shall participate in the selection, award, or administration of a contract supported by Federal funds if a real or apparent conflict of interest would be involved. Such a conflict would arise when the employee, officer, or agent, any member of his or her immediate family, his or her partner, or an organization which employs or is about to employ any of the parties indicated herein, has a financial or other interest in the firm selected for an award. The officers, employees, and agents of the recipient shall neither solicit nor accept gratuities, favors, or anything of monetary value from contractors, or parties to subagreements. However, recipients may set standards for situations in which the financial interest is not substantial or the gift is an unsolicited item of nominal value. The standards of conduct shall provide for disciplinary actions to be applied for violations of such standards by officers, employees, or agents of the recipient.
All procurement transactions shall be conducted in a manner to provide, to the maximum extent practical, open and free competition. The recipient shall be alert to organizational conflicts of interest as well as noncompetitive practices among contractors that may restrict or eliminate competition or otherwise restrain trade. In order to ensure objective contractor performance and eliminate unfair competitive advantage, contractors that develop or draft specifications, requirements, statements of work, invitations for bids and/or requests for proposals shall be excluded from competing for such procurements. Awards shall be made to
(a) All recipients shall establish written procurement procedures. These procedures shall provide for, at a minimum, that paragraphs (a) (1), (2) and (3) of this section apply.
(1) Recipients avoid purchasing unnecessary items.
(2) Where appropriate, an analysis is made of lease and purchase alternatives to determine which would be the most economical and practical procurement for the Federal Government.
(3) Solicitations for goods and services provide for all of the following.
(i) A clear and accurate description of the technical requirements for the material, product or service to be procured. In competitive procurements, such a description shall not contain features which unduly restrict competition.
(ii) Requirements which the bidder/offeror must fulfill and all other factors to be used in evaluating bids or proposals.
(iii) A description, whenever practicable, of technical requirements in terms of functions to be performed or performance required, including the range of acceptable characteristics or minimum acceptable standards.
(iv) The specific features of “brand name or equal” descriptions that bidders are required to meet when such items are included in the solicitation.
(v) The acceptance, to the extent practicable and economically feasible, of products and services dimensioned in the metric system of measurement.
(vi) Preference, to the extent practicable and economically feasible, for products and services that conserve natural resources and protect the environment and are energy efficient.
(b) Positive efforts shall be made by recipients to utilize small businesses, minority-owned firms, and women's business enterprises, whenever possible. Recipients of Federal awards shall take all of the following steps to further this goal.
(1) Ensure that small businesses, minority-owned firms, and women's business enterprises are used to the fullest extent practicable.
(2) Make information on forthcoming opportunities available and arrange time frames for purchases and contracts to encourage and facilitate participation by small businesses, minority-owned firms, and women's business enterprises.
(3) Consider in the contract process whether firms competing for larger contracts intend to subcontract with small businesses, minority-owned firms, and women's business enterprises.
(4) Encourage contracting with consortiums of small businesses, minority-owned firms and women's business enterprises when a contract is too large for one of these firms to handle individually.
(5) Use the services and assistance, as appropriate, of such organizations as the Small Business Administration and the Department of Commerce's Minority Business Development Agency in the solicitation and utilization of small businesses, minority-owned firms and women's business enterprises.
(c) The type of procuring instruments used (e.g., fixed price contracts, cost reimbursable contracts, purchase orders, and incentive contracts) shall be determined by the recipient but shall be appropriate for the particular procurement and for promoting the best interest of the program or project involved. The “cost-plus-a-percentage-of-cost” or “percentage of construction cost” methods of contracting shall not be used.
(d) Contracts shall be made only with responsible contractors who possess the potential ability to perform successfully under the terms and conditions of the proposed procurement. Consideration shall be given to such matters as contractor integrity, record of past performance, financial and technical resources or accessibility to other necessary resources. In certain circumstances, contracts with certain
(e) Recipients shall, on request, make available for the NHPRC, pre-award review and procurement documents, such as request for proposals or invitations for bids, independent cost estimates, etc., when any of the following conditions apply.
(1) A recipient's procurement procedures or operation fails to comply with the procurement standards in the NHPRC's implementation of this part.
(2) The procurement is expected to exceed the small purchase threshold fixed at 41 U.S.C. 403 (11) (currently $25,000) and is to be awarded without competition or only one bid or offer is received in response to a solicitation.
(3) The procurement, which is expected to exceed the small purchase threshold, specifies a “brand name” product.
(4) The proposed award over the small purchase threshold is to be awarded to other than the apparent low bidder under a sealed bid procurement.
(5) A proposed contract modification changes the scope of a contract or increases the contract amount by more than the amount of the small purchase threshold.
Some form of cost or price analysis shall be made and documented in the procurement files in connection with every procurement action. Price analysis may be accomplished in various ways, including the comparison of price quotations submitted, market prices and similar indicia, together with discounts. Cost analysis is the review and evaluation of each element of cost to determine reasonableness, allocability and allowability.
Procurement records and files for purchases in excess of the small purchase threshold shall include the following at a minimum:
(a) Basis for contractor selection,
(b) Justification for lack of competition when competitive bids or offers are not obtained, and
(c) Basis for award cost or price.
A system for contract administration shall be maintained to ensure contractor conformance with the terms, conditions and specifications of the contract and to ensure adequate and timely follow up of all purchases. Recipients shall evaluate contractor performance and document, as appropriate, whether contractors have met the terms, conditions and specifications of the contract.
The recipient shall include, in addition to provisions to define a sound and complete agreement, the following provisions in all contracts. The following provisions shall also be applied to subcontracts.
(a) Contracts in excess of the small purchase threshold shall contain contractual provisions or conditions that allow for administrative, contractual, or legal remedies in instances in which a contractor violates or breaches the contract terms, and provide for such remedial actions as may be appropriate.
(b) All contracts in excess of the small purchase threshold shall contain suitable provisions for termination by the recipient, including the manner by which termination shall be effected and the basis for settlement. In addition, such contracts shall describe conditions under which the contract may be terminated for default as well as conditions where the contract may be terminated because of circumstances beyond the control of the contractor.
(c) All negotiated contracts (except those for less than the small purchase threshold) awarded by recipients shall include a provision to the effect that the recipient, the NHPRC, the Comptroller General of the United States, or any of their duly authorized representatives, shall have access to any books, documents, papers and records of the contractor which are directly pertinent to a specific program for the purpose of making audits, examinations, excerpts and transcriptions.
(d) All contracts, including small purchases, awarded by recipients and
Sections 1210.51 through 1210.53 set forth the procedures for monitoring and reporting on the recipient's financial and program performance and the necessary standard reporting forms. They also set forth record retention requirements.
(a) Recipients are responsible for managing and monitoring each project, program, subaward, function or activity supported by the award. Recipients shall monitor subawards to ensure subrecipients have met the audit requirements as delineated in § 1210.26.
(b) Except as provided in paragraph (f) of this section, interim performance reports shall be submitted every six months and shall be due 30 days after the reporting period; final reports shall be due 90 calendar days after the end of the grant period.
(c) If inappropriate, a final performance report shall not be required after completion of the project.
(d) When required, performance reports shall generally contain, for each award, brief information on each of the following.
(1) A comparison of actual accomplishments with the goals and objectives established for the period, the findings of the investigator, or both. Whenever appropriate and the output of programs or projects can be readily quantified, such quantitative data should be related to cost data for computation of unit costs.
(2) Reasons why established goals were not met, if appropriate.
(3) Other pertinent information including, when appropriate, analysis and explanation of cost overruns or high unit costs.
(e) Recipients shall not be required to submit more than the original and two copies of performance reports.
(f) Recipients shall immediately notify the NHPRC of developments that have a significant impact on the award-supported activities. Also, notification shall be given in the case of problems, delays, or adverse conditions which materially impair the ability to meet the objectives of the award. This notification shall include a statement of the action taken or contemplated, and any assistance needed to resolve the situation.
(g) The NHPRC may make site visits, as needed.
(h) The NHPRC shall comply with clearance requirements of 5 CFR Part 1320 when requesting performance data from recipients.
(a) The following forms or such other forms as may be approved by OMB are authorized for obtaining financial information from recipients.
(1) SF-269 or SF-269A, Financial Status Report.
(i) The NHPRC requires recipients to use the SF-269 or SF-269A to report the status of funds for all nonconstruction projects or programs. The NHPRC may, however, have the option of not requiring the SF-269 or SF-269A when the SF-270, Request for Advance or Reimbursement, or SF-272, Report of Federal Cash Transactions, is determined to provide adequate information to meet its needs, except that a final SF-269 or SF-269A shall be required at the completion of the project when the SF-270 is used only for advances.
(ii) The report may be on a cash or accrual basis.
(iii) The NHPRC shall determine the frequency of the Financial Status Report for each project or program, considering the size and complexity of the particular project or program. However, the report shall not be required more frequently than quarterly or less frequently than annually. A final report shall be required at the completion of the agreement.
(iv) The NHPRC shall require recipients to submit the SF-269 or SF-269A (an original and no more than two copies) no later than 30 days after the end of each specified reporting period for quarterly and semi-annual reports, and 90 calendar days for annual and final reports. Extensions of reporting due
(2) SF-272, Report of Federal Cash Transactions.
(i) When funds are advanced to recipients the NHPRC shall require each recipient to submit the SF-272 and, when necessary, its continuation sheet, SF-272a. The NHPRC shall use this report to monitor cash advanced to recipients and to obtain disbursement information for each agreement with the recipients.
(ii) The NHPRC may require forecasts of Federal cash requirements in the “Remarks” section of the report.
(iii) When practical and deemed necessary, the NHPRC may require recipients to report in the “Remarks” section the amount of cash advances received in excess of three days. Recipients shall provide short narrative explanations of actions taken to reduce the excess balances.
(iv) Recipients shall be required to submit not more than the original and two copies of the SF-272 15 calendar days following the end of each quarter. The NHPRC may require a monthly report from those recipients receiving advances totaling $1 million or more per year.
(v) The NHPRC may waive the requirement for submission of the SF-272 for any one of the following reasons:
(A) When monthly advances do not exceed $25,000 per recipient, provided that such advances are monitored through other forms contained in this section;
(B) If, in the NHPRC's opinion, the recipient's accounting controls are adequate to minimize excessive Federal advances; or,
(C) When the electronic payment mechanisms provide adequate data.
(b) When the NHPRC needs additional information or more frequent reports, the following shall be observed.
(1) When additional information is needed to comply with legislative requirements, the NHPRC shall issue instructions to require recipients to submit such information under the “Remarks” section of the reports.
(2) When the NHPRC determines that a recipient's accounting system does not meet the standards in § 1210.21, additional pertinent information to further monitor awards may be obtained upon written notice to the recipient until such time as the system is brought up to standard. The NHPRC, in obtaining this information, shall comply with report clearance requirements of 5 CFR Part 1320.
(3) The NHPRC is encouraged to shade out any line item on any report if not necessary.
(4) The NHPRC may accept the identical information from the recipients in machine readable format or computer printouts or electronic outputs in lieu of prescribed formats.
(5) The NHPRC may provide computer or electronic outputs to recipients when such expedites or contributes to the accuracy of reporting.
(a) This section sets forth requirements for record retention and access to records for awards to recipients. The NHPRC will not impose any other record retention or access requirements upon recipients.
(b) Financial records, supporting documents, statistical records, and all other records pertinent to an award shall be retained for a period of three years from the date of submission of the final expenditure report or, for awards that are renewed quarterly or annually, from the date of the submission of the quarterly or annual financial report, as authorized by the NHPRC. The only exceptions are the following.
(1) If any litigation, claim, or audit is started before the expiration of the 3-year period, the records shall be retained until all litigation, claims or audit findings involving the records have been resolved and final action taken.
(2) Records for real property and equipment acquired with NHPRC funds shall be retained for 3 years after final disposition.
(3) When records are transferred to or maintained by the NHPRC, the 3-year retention requirement is not applicable to the recipient.
(4) Indirect cost rate proposals, cost allocations plans, etc. as specified in paragraph (g) of this section.
(c) Copies of original records may be substituted for the original records if authorized by the NHPRC.
(d) The NHPRC shall request transfer of certain records to its custody from recipients when it determines that the records possess long term retention value. However, in order to avoid duplicate recordkeeping, the NHPRC may make arrangements for recipients to retain any records that are continuously needed for joint use.
(e) The NHPRC, the Inspector General, Comptroller General of the United States, or any of their duly authorized representatives, have the right of timely and unrestricted access to any books, documents, papers, or other records of recipients that are pertinent to the awards, in order to make audits, examinations, excerpts, transcripts and copies of such documents. This right also includes timely and reasonable access to a recipient's personnel for the purpose of interview and discussion related to such documents. The rights of access in this paragraph are not limited to the required retention period, but shall last as long as records are retained.
(f) Unless required by statute, the NHPRC will place no restrictions on recipients that limit public access to the records of recipients that are pertinent to an award, except when the NHPRC can demonstrate that such records shall be kept confidential and would have been exempted from disclosure pursuant to the Freedom of Information Act (5 U.S.C. 552) if the records had belonged to the NHPRC.
(g) Indirect cost rate proposals, cost allocations plans, etc. Paragraphs (g)(1) and (g)(2) of this section apply to the following types of documents, and their supporting records: indirect cost rate computations or proposals, cost allocation plans, and any similar accounting computations of the rate at which a particular group of costs is chargeable (such as computer usage chargeback rates or composite fringe benefit rates).
(1) If submitted for negotiation. If the recipient submits to the cognizant Federal agency or the subrecipient submits to the recipient the proposal, plan, or other computation to form the basis for negotiation of the rate, then the 3-year retention period for its supporting records starts on the date of such submission.
(2) If not submitted for negotiation. If the recipient is not required to submit to the NHPRC or the subrecipient is not required to submit to the recipient the proposal, plan, or other computation for negotiation purposes, then the 3-year retention period for the proposal, plan, or other computation and its supporting records starts at the end of the fiscal year (or other accounting period) covered by the proposal, plan, or other computation.
Sections 1210.61 and 1210.62 set forth uniform suspension, termination and enforcement procedures.
(a) Awards may be terminated in whole or in part only if paragraphs (1), (2) or (3) of this section apply.
(1) By the NHPRC, if a recipient materially fails to comply with the terms and conditions of an award.
(2) By the NHPRC with the consent of the recipient, in which case the two parties shall agree upon the termination conditions, including the effective date and, in the case of partial termination, the portion to be terminated.
(3) By the recipient upon sending to the NHPRC written notification setting forth the reasons for such termination, the effective date, and, in the case of partial termination, the portion to be terminated. However, if the NHPRC determines in the case of partial termination that the reduced or modified portion of the grant will not accomplish the purposes for which the grant was made, it may terminate the grant in its entirety under either paragraphs (a)(1) or (2) of this section.
(b) If costs are allowed under an award, the responsibilities of the recipient referred to in § 1210.71(a), including those for property management as applicable, shall be considered in the termination of the award, and provision
(a) Remedies for noncompliance. If a recipient materially fails to comply with the terms and conditions of an award, whether stated in a Federal statute, regulation, assurance, application, or notice of award, the NHPRC may, in addition to imposing any of the special conditions outlined in § 1210.14, take one or more of the following actions, as appropriate in the circumstances.
(1) Temporarily withhold cash payments pending correction of the deficiency by the recipient or more severe enforcement action by the NHPRC.
(2) Disallow (that is, deny both use of funds and any applicable matching credit for) all or part of the cost of the activity or action not in compliance.
(3) Wholly or partly suspend or terminate the current award.
(4) Withhold further awards for the project or program.
(5) Take other remedies that may be legally available.
(b) Hearings and appeals. In taking an enforcement action, the NHPRC shall provide the recipient an opportunity for hearing, appeal, or other administrative proceeding to which the recipient is entitled under any statute or regulation applicable to the action involved.
(c) Effects of suspension and termination. Costs of a recipient resulting from obligations incurred by the recipient during a suspension or after termination of an award are not allowable unless the NHPRC expressly authorizes them in the notice of suspension or termination or subsequently. Other recipient costs during suspension or after termination which are necessary and not reasonably avoidable are allowable if paragraphs (c)(1) and (2) of this section apply.
(1) The costs result from obligations which were properly incurred by the recipient before the effective date of suspension or termination, are not in anticipation of it, and in the case of a termination, are noncancellable.
(2) The costs would be allowable if the award were not suspended or expired normally at the end of the funding period in which the termination takes effect.
(d) Relationship to debarment and suspension. The enforcement remedies identified in this section, including suspension and termination, do not preclude a recipient from being subject to debarment and suspension under E.O.s 12549 and 12689 and NARA implementing regulations (see § 1210.13).
Sections 1210.71 through 1210.73 contain closeout procedures and other procedures for subsequent disallowances and adjustments.
(a) Recipients shall submit, within 90 calendar days after the date of completion of the award, all financial, performance, and other reports as required by the terms and conditions of the award. The NHPRC may approve extensions when requested by the recipient.
(b) Unless the NHPRC authorizes an extension, a recipient shall liquidate all obligations incurred under the award not later than 90 calendar days after the funding period or the date of completion as specified in the terms and conditions of the award or in agency implementing instructions.
(c) The NHPRC shall make prompt payments to a recipient for allowable reimbursable costs under the award being closed out.
(d) The recipient shall promptly refund any balances of unobligated cash that the NHPRC has advanced or paid and that is not authorized to be retained by the recipient for use in other projects. OMB Circular A-129 governs unreturned amounts that become delinquent debts.
(e) When authorized by the terms and conditions of the award, the NHPRC shall make a settlement for any upward or downward adjustments to the Federal share of costs after closeout reports are received.
(f) The recipient shall account for any real and personal property acquired with Federal funds or received
(g) In the event a final audit has not been performed prior to the closeout of an award, the NHPRC shall retain the right to recover an appropriate amount after fully considering the recommendations on disallowed costs resulting from the final audit.
(a) The closeout of an award does not affect any of the following.
(1) The right of the NHPRC to disallow costs and recover funds on the basis of a later audit or other review.
(2) The obligation of the recipient to return any funds due as a result of later refunds, corrections, or other transactions.
(3) Audit requirements in § 1210.26.
(4) Property management requirements in §§ 1210.31 through 1210.37.
(5) Records retention as required in § 1210.53.
(b) After closeout of an award, a relationship created under an award may be modified or ended in whole or in part with the consent of the NHPRC and the recipient, provided the responsibilities of the recipient referred to in § 1210.73(a), including those for property management as applicable, are considered and provisions made for continuing responsibilities of the recipient, as appropriate.
(a) Any funds paid to a recipient in excess of the amount to which the recipient is finally determined to be entitled under the terms and conditions of the award constitute a debt to the Federal Government. If not paid within a reasonable period after the demand for payment, the NHPRC may reduce the debt by:
(1) Making an administrative offset against other requests for reimbursements;
(2) Withholding advance payments otherwise due to the recipient; or
(3) Taking other action permitted by statute.
(b) Except as otherwise provided by law, the NHPRC shall charge interest on an overdue debt in accordance with 4 CFR Chapter II, “Federal Claims Collection Standards.”
All contracts, awarded by a recipient including small purchases, shall contain the following provisions as applicable:
1. Equal Employment Opportunity—All contracts shall contain a provision requiring compliance with E.O. 11246, “Equal Employment Opportunity,” as amended by E.O. 11375, “Amending Executive Order 11246 Relating to Equal Employment Opportunity,” and as supplemented by regulations at 41 CFR part 60, “Office of Federal Contract Compliance Programs, Equal Employment Opportunity, Department of Labor.”
2. Copeland “Anti-Kickback” Act (18 U.S.C. 874 and 40 U.S.C. 276c)—All contracts and subgrants in excess of $2,000 for construction or repair awarded by recipients and subrecipients shall include a provision for compliance with the Copeland “Anti-Kickback” Act (18 U.S.C. 874), as supplemented by Department of Labor regulations (29 CFR part 3, “Contractors and Subcontractors on Public Building or Public Work Financed in Whole or in Part by Loans or Grants from the United States”). The Act provides that each contractor or subrecipient shall be prohibited from inducing, by any means, any person employed in the construction, completion, or repair of public work, to give up any part of the compensation to which he is otherwise entitled. The recipient shall report all suspected or reported violations to the Federal awarding agency.
3. Davis-Bacon Act, as amended (40 U.S.C. 276a to a-7)—When required by Federal program legislation, all construction contracts awarded by the recipients and subrecipients of more than $2,000 shall include a provision for compliance with the Davis-Bacon Act (40 U.S.C. 276a to a-7) and as supplemented by Department of Labor regulations (29 CFR part 5, “Labor Standards Provisions Applicable to Contracts Governing Federally Financed and Assisted Construction”). Under this Act, contractors shall be required to pay wages to laborers and mechanics at a rate not less than the minimum wages specified in a wage determination made by the Secretary of Labor. In addition, contractors shall be required to pay wages not less than once a week. The recipient shall place a copy of the current prevailing wage determination issued by the Department of Labor in each solicitation and the award of a contract shall be conditioned upon the acceptance of the wage determination. The recipient shall report all suspected or reported violations to the Federal awarding agency.
4. Contract Work Hours and Safety Standards Act (40 U.S.C. 327-333)—Where applicable, all contracts awarded by recipients in
5. Rights to Inventions Made Under a Contract or Agreement—Contracts or agreements for the performance of experimental, developmental, or research work shall provide for the rights of the Federal Government and the recipient in any resulting invention in accordance with 37 CFR part 401, “Rights to Inventions Made by Nonprofit Organizations and Small Business Firms Under Government Grants, Contracts and Cooperative Agreements,” and any implementing regulations issued by the awarding agency.
6. Clean Air Act (42 U.S.C. 7401
7. Byrd Anti-Lobbying Amendment (31 U.S.C. 1352)—Contractors who apply or bid for an award of $100,000 or more shall file the required certification. Each tier certifies to the tier above that it will not and has not used Federal appropriated funds to pay any person or organization for influencing or attempting to influence an officer or employee of any agency, a member of Congress, officer or employee of Congress, or an employee of a member of Congress in connection with obtaining any Federal contract, grant or any other award covered by 31 U.S.C. 1352. Each tier shall also disclose any lobbying with non-Federal funds that takes place in connection with obtaining any Federal award. Such disclosures are forwarded from tier to tier up to the recipient.
8. Debarment and Suspension (E.O. 12549 and E.O. 12689)—No contract shall be made to parties listed on the General Services Administration's List of Parties Excluded from Federal Procurement or Nonprocurement Programs in accordance with E.O. 12549 and E.O. 12689, “Debarment and Suspension.” This list contains the names of parties debarred, suspended, or otherwise excluded by agencies, and contractors declared ineligible under statutory or regulatory authority other than E.O. 12549. Contractors with awards that exceed the small purchase threshold shall provide the required certification regarding its exclusion status and that of its principal employees.
44 U.S.C. 2104(a) and chs. 29 and 33.
Subchapter B prescribes policies for Federal agencies’ records management programs relating to records creation and maintenance, adequate documentation, and proper records disposition.
The National Archives and Records Administration Act of 1984 amended the records management statutes to divide records management responsibilities between the National Archives and Records Administration (NARA) and the General Services Administration (GSA). Under the Act, NARA is responsible for adequacy of documentation and records disposition and GSA is responsible for economy and efficiency in records management. NARA regulations are codified in this subchapter. GSA records management regulations are codified in 41 CFR chapter 201, Subchapters A and B. Federal agency records management programs must be in compliance with regulations promulgated by both NARA and GSA.
The regulations in this part are issued under the provisions of the National Archives and Records Administration Act of 1984 (Pub. L. 98-497, 44 U.S.C. 101
The regulations in subchapter B apply to all Federal agencies as defined in § 1220.14.
As used in subchapter B—
(a) Disposal of temporary records no longer needed for the conduct of business by destruction or donation to an eligible person or organization outside of Federal custody in accordance with the requirements of part 1228 of this chapter.
(b) Transfer of records to Federal agency storage facilities or records centers;
(c) Transfer to the National Archives of the United States of records determined to have sufficient historical or other value to warrant continued preservation; or
(d) Transfer of records from one Federal agency to any other Federal agency in accordance with the requirements of part 1228 of this chapter.
(a) An SF 115, Request for Records Disposition Authority, that has been approved by NARA to authorize the disposition of Federal records;
(b) A General Records Schedule (GRS) issued by NARA; or
(c) A printed agency manual or directive containing the records descriptions and disposition instructions approved by NARA on one or more SF 115s or issued by NARA in the GRS. (See also the definition
(a) A series of records designated as disposable in an agency records disposition schedule approved by NARA (Standard Form 115, Request for Records Disposition Authority); or
(b) A series of records designated as disposable in a General Records Schedule.
Under 44 U.S.C. 2904(c)(8), the Archivist of the United States is required to report to Congress and the Office of Management and Budget annually on
In accordance with 44 U.S.C. 2906, when NARA inspects an agency record which is contained in a system of records subject to the Privacy Act of 1974 (5 U.S.C. 552a), the records shall be maintained by the Archivist or his designee as a record contained in a system of records or considered to be a record contained in a system of records for the purposes of subsections (b), (c), and (i) of section 552a of title 5.
Section 3101 of title 44 U.S.C. requires the head of each Federal agency to make and preserve records containing adequate and proper documentation of the organization, functions, policies, decisions, procedures and essential transactions of the agency and designed to furnish the information necessary to protect the legal and financial rights of the Government and of persons directly affected by the agency's activities.
Agency programs shall, among other things, provide for:
(a) Cooperation with NARA in developing and applying standards, procedures, and techniques designed to improve the management of records, promote the maintenance and security of records deemed appropriate for permanent preservation, and facilitate the segregation and disposal of temporary records.
(b) Compliance with sections 2101-2117, 2501-2507, 2901-2909, 3101-3107, and 3301-3314 of title 44 U.S.C. and with NARA regulations issued in title 36 of the Code of Federal Regulations.
Adequate records management controls over the creation of Federal agency records shall be instituted to ensure that agency functions are adequately and properly documented. Federal agencies shall also comply with GSA regulations on creation of records found in 41 CFR part 201-9.
Adequate records management controls over the maintenance and use of records shall be instituted to ensure that permanent records can be located when needed and that they are preserved for eventual transfer to the National Archives of the United States. Agencies shall also be in compliance with GSA regulations on the maintenance and use of records found in 41 CFR part 201-9.
Provision shall be made to ensure that permanent records are preserved but that records no longer of current use to an agency are promptly disposed of or retired. Effective techniques for the accomplishment of these ends are the development of records disposition schedules; the transfer of records to records centers and the National Archives of the United States; the conversion of the information to other media; and the disposal of valueless records. Disposition of any records requires the approval of the Archivist of the United States (see part 1228 of this chapter).
An office or offices within each Federal agency shall be assigned responsibility for the development of the records management program required by this part. The office to which responsibility is assigned shall be reported to the NARA, Life Cycle Management Division (NWML), 8601 Adelphi Rd., College Park, MD 20740-6001. The name, title, and telephone number of the official or officials authorized by the head of the agency to approve records disposition schedules and transfers of records to the custody of the National Archives shall also be
Each agency shall periodically evaluate its records management programs relating to records creation and recordkeeping requirements, maintenance and use of records, and records disposition. These evaluations shall include periodic monitoring of staff determinations of the record status of documentary materials, including electronic mail, and implementation of these decisions. These evaluations should determine compliance with NARA regulations in subchapter B of this chapter and assess the effectiveness of the agency's records management program.
44 U.S.C. chapter 29 vests in the Archivist of the United States the responsibility for providing guidance and assistance to Federal agencies with respect to ensuring adequate and proper documentation and proper records disposition. Sections 2904 and 2906 specifically authorize the Archivist to conduct inspections or surveys of records and records management programs and practices within and between Federal agencies and require officers and employees of agencies to cooperate fully in such inspections. Section 2904 also authorizes the Archivist to report to the appropriate oversight and appropriations committees of the Congress and the Director of OMB on the results of inspections, the responses by agencies to NARA evaluation recommendations, and estimates of the costs to the Federal government resulting from the failure to implement such recommendations.
(a) NARA evaluations assess how effectively Federal agencies make and preserve complete and accurate records of their organization, functions, policies, decisions, procedures, and essential transactions; and maintain an active, continuing records management program including proper records disposition. Agencies shall be evaluated for compliance with requirements in 44 U.S.C. chapters 31 and 33 and all the regulations issued thereunder in 36 CFR subchapter B.
(b) NARA evaluations may include comprehensive reviews of agency records management programs, or selective reviews focused on adequate and proper documentation, on records disposition, on the management of specific types of record media or on the management of records in particular program areas. NARA evaluations may be of one agency or may be multi-agency. These evaluations may be conducted solely within headquarters offices, only at field locations, or at a combination of field sites and headquarters.
(c) Evaluations will involve site visits by NARA; submission by NARA to the agency of a written report containing findings, analyses, and recommendations; and submission to NARA by the agency of an action plan for implementing the recommendations followed by regular progress reports. Interagency report control number 0153-NARA-AR has been assigned to the action plan and progress reports in accordance with 41 CFR subpart 201-45.6.
(a) NARA shall select Federal agencies to be evaluated on the basis of perceived need by NARA or specific request by the agency, or on the basis of a compliance monitoring cycle developed by NARA. NARA will determine the scope of the evaluation. An agency may request an evaluation of its records management program by contacting the Director, Life Cycle Management Division; however, the final determination of agencies to be evaluated will be made by NARA. The heads of agencies will be notified in writing by the Archivist of the United States of the intent to conduct an evaluation and the scope of the evaluation at least
(b) Once NARA has notified the agency, the agency head will, by the date specified in the Archivist's letter:
(1) Acknowledge in writing NARA's intention to evaluate, and provide the Archivist with the name and telephone number of the senior official with overall responsibility for records management and of a headquarters official who will work with NARA to facilitate the evaluation process;
(2) Provide written notification of the evaluation to all appropriate offices and employees and contractors potentially involved; this notification will include instructions to cooperate with NARA by setting up interviews, providing requested information, and making records available for inspection;
(3) Provide NARA with a copy of the written notification in paragraph (b)(2) of this section and with a list of names and telephone numbers of officials responsible for records management in field sites, if applicable, who will work with NARA during the evaluation;
(4) For comprehensive evaluations, provide NARA with a set of internal records management directives, orders, bulletins, or similar authoritative issuances; copies of the two most recent internal records management evaluations; and any special records-related reports. Included may be: issuances relating to adequate and proper documentation and recordkeeping requirements; personal papers; management and disposition of textual, electronic, audiovisual, cartographic and architectural, micrographic, and vital records; disaster mitigation and recovery; and any other records-related documentation requested by NARA. A subset of this documentation will be requested for more limited evaluations;
(5) Provide NARA with a current version of the agency manual(s) covering records creation, maintenance, storage, and disposition, and a list of information systems maintained as required by OMB Circular A-130, section 9a(5), and a list of offices and/or functions and activities not currently covered by schedules;
(6) Arrange for appropriate management and program officials in headquarters and, if applicable, at field sites to be briefed by NARA at the beginning and at the end of the evaluation process; and
(7) Take immediate corrective action regarding any serious problems that NARA may bring to the agency's attention during the course of the evaluation process such as the unauthorized destruction of records or the unauthorized donation or other transfer of records to non-NARA facilities.
(a) NARA will submit a draft evaluation report for factual review and comment to the agency within 120 calendar days of the last evaluation site visit or exit briefing. After receipt of agency comments, NARA will finalize the report, incorporating any changes resulting from factual errors identified by the agency. The final report will be transmitted by the Archivist to the head of the agency within 30 calendar days of receiving comments from the agency.
(b) The head of the agency will:
(1) Comment within 60 calendar days, in writing, on the contents of the draft report. If necessary, agencies can request extensions. No response from the agency within the allotted time will indicate that the agency concurs in the factual accuracy of the draft report.
(2) Review the final report and assign implementation responsibility; and
(3) Distribute the final report to all concerned and appropriate persons and offices.
(a)
(i) The name of the senior official and the office responsible for coordinating implementation agency-wide;
(ii) The specific action(s) the agency will take to implement each evaluation report recommendation. If an agency is unable to implement a recommendation, the rationale for not acting shall be documented in the action plan;
(iii) The name of the official and office or program responsible for the overall coordination of the agency's followup actions who will be the liaison with NARA;
(iv) The estimated time needed to complete each action and the proposed quarter and year for starting and completing each action;
(v) Major milestones with dates for tracking the completion of implementation actions that are expected to extend longer than 3 years past the date of the action plan; and,
(vi) If requested by NARA, separate action plans for each field site visited, incorporating the information required by paragraphs (a)(1)(i) through (a)(1)(v) of this section.
(2) NARA will analyze the action plan(s) submitted by the agency for adequacy and effectiveness in implementing the recommendations contained in the evaluation report. NARA will provide comments to the agency on the plan(s) within 60 calendar days.
(3) The agency will revise the action plan until it is approved by NARA.
(b)
(i) A description of what has been accomplished on each action since the last report;
(ii) The current status of the action;
(iii) Any changes in the offices or programs responsible for over-all or specific action implementation; and,
(iv) If appropriate, explanation of any delays in implementation and revised target dates and milestones for completion of the action.
(2) The agency will continue to submit these progress reports until NARA and the agency agree all actions have been completed, NARA and the agency agree that the agency has implemented the recommendation(s) to the fullest extent possible, or NARA indicates in writing that regular progress reports are no longer required.
(3) NARA will review and comment on agency progress reports, and work closely with the agency to provide assistance in evaluation implementation.
(a) If NARA determines that there is not substantial progress in the full implementation of evaluation recommendations or that the agency has not corrected serious problems identified in the report, the Archivist, after notifying the head of the agency, may notify Congress and appropriate Federal oversight agencies of the evaluation findings and the agency response.
(b) NARA may initiate follow-up reviews at specific offices or field sites. Results of these follow-up reviews shall be communicated to the head of the agency and, if NARA determines it to be appropriate, to Congress and Federal oversight agencies.
44 U.S.C. 2904, 3101, and 3102.
(a) 44 U.S.C. 2904, vests in the Archivist of the United States responsibility for providing guidance and assistance to Federal agencies with respect to ensuring adequate and proper documentation of the policies and transactions of the Federal Government, including developing and issuing standards to improve the management of records.
(b) 44 U.S.C. 3101, requires that the head of each Federal agency shall make and preserve records containing adequate and proper documentation of the organization, functions, policies, decisions, procedures, and essential transactions of the agency and designed to furnish the information necessary to protect the legal and financial rights of the Government and of persons directly affected by the agency's activities.
(c) 44 U.S.C. 3102, requires that the head of each Federal agency shall establish and maintain an active, continuing program for the economical and efficient management of the records of the agency. The program, among other things, shall provide for—
(1) Effective controls over the creation, and over the maintenance and use of records in the conduct of current business;
(2) Cooperation with the Administrator of General Services and the Archivist in applying standards, procedures, and techniques designed to improve the management of records, promote the maintenance and security of records deemed appropriate for preservation, and facilitate the segregation and disposal of records of temporary value.
(a) The statutory definition of Federal records is contained in 44 U.S.C. 3301 and is stated in § 1220.14 of this chapter.
(b) Several key terms, phrases, and concepts in the statutory definition of records are defined as follows:
(1)
(2)
(3)
(4)
(5)
(6)
(a) The head of each Federal agency, in meeting the requirements of 44 U.S.C. 2904, 3101, and 3102, shall observe the responsibilities and standards set forth in this part. Agencies are also subject to regulations issued by the General Services Administration (GSA) in 41 CFR chapter 201.
(b) Each Federal agency shall:
(1) Assign to one or more offices of the agency the responsibility for the development and implementation of agency-wide programs to identify, develop, issue, and periodically review recordkeeping requirements for records for all agency activities at all levels and locations in all media including paper, microform, audiovisual, cartographic, and electronic (including those created or received using electronic mail);
(2) Integrate programs for the identification, development, issuance, and periodic review of recordkeeping requirements with other records and information resources management programs of the agency, including the requirement of close coordination between the office designated in 36 CFR 1222.20(b)(1) and the office assigned overall records management responsibility in accordance with 36 CFR 1220.40, if the two are different;
(3) Issue a directive(s) establishing program objectives, responsibilities, and authorities for agency recordkeeping requirements. Copies of the directive(s) (including subsequent amendments or supplements) shall be disseminated throughout the agency, as appropriate, and a copy shall be sent to NARA (NWML);
(4) Establish procedures for the participation of records management officials in developing new or revised agency programs, processes, systems, and procedures in order to ensure that adequate recordkeeping requirements are established and implemented;
(5) Ensure that adequate training is provided to all agency personnel on policies, responsibilities, and techniques for the implementation of recordkeeping requirements and the distinction between records and nonrecord materials, regardless of media, including those materials created by individuals using computers to send or receive electronic mail.
(6) Develop and implement records schedules for all records created and received by the agency and obtain NARA approval of the schedules in accordance with 36 CFR part 1228;
(7) Ensure compliance with applicable Governmentwide policies, procedures, and standards relating to recordkeeping requirements as may be issued by the Office of Management and Budget, the General Services Administration, the National Archives and Records Administration, the National Institute of Standards and Technology, or other agencies, as appropriate;
(8) Review recordkeeping requirements, as part of the periodic information resources management reviews required by 44 U.S.C. 3506, or the periodic records management evaluations required by 36 CFR 1220.54, in order to validate their currency and to ensure that recordkeeping requirements are being implemented.
(9) Remind all employees annually of the agency's recordkeeping policies and of the sanctions provided for the unlawful removal or destruction of Federal records (18 U.S.C. 2071).
(a) The clear articulation of recordkeeping requirements by Federal agencies is essential if agencies are to meet the requirements of 44 U.S.C. 3101 and 3102 with respect to creating, receiving, maintaining, and preserving adequate and proper documentation, and with respect to maintaining an active, continuing program for the economical and efficient management of agency records.
(b) Although many agencies regularly issue recordkeeping requirements for routine operations, many do not adequately specify such requirements for documenting policies and decisions, nor do they provide sufficient guidance on distinguishing between records and nonrecord materials, and maintaining
(c) Since agency functions, activities, and administrative practices vary so widely, NARA cannot issue a comprehensive list of all categories of documentary materials appropriate for preservation by an agency as evidence of its activities or because of the information they contain. In all cases, the agency must consider the intent or circumstances of creation or receipt of the materials to determine whether their systematic maintenance shall be required.
Agencies shall identify, develop, issue, and periodically review their recordkeeping requirements for all agency operations and for records in all media, including those records created or received on electronic mail systems. Recordkeeping requirements shall:
(a) Identify and prescribe specific categories of documentary materials to be systematically created or received and maintained by agency personnel in the course of their official duties;
(b) Prescribe the use of materials and recording techniques that ensure the preservation of records as long as they are needed by the Government;
(c) Prescribe the manner in which these materials shall be maintained wherever held; and
(d) Distinguish records from nonrecord materials and, with the approval of the Archivist of the United States, prescribe action for the final disposition of agency records when they are no longer needed for current business.
(a)
(b)
(1) They are made or received by an agency of the United States Government under Federal law or in connection with the transaction of agency business; and
(2) They are preserved or are appropriate for preservation as evidence of agency organization and activities or because of the value of the information they contain.
(c)
(1) They were circulated or made available to employees, other than the creator, for official purposes such as approval, comment, action, recommendation, follow-up, or to communicate with agency staff about agency business; and
(2) They contain unique information, such as substantive annotations or comments included therein, that adds to a proper understanding of the agency's formulation and execution of basic policies, decisions, actions, or responsibilities.
(d)
(e)
(f)
(1) Library and museum material (but only if such material is made or acquired and preserved solely for reference or exhibition purposes);
(2) Extra copies of documents (but only if the sole reason such copies are preserved is for convenience of reference); and
(3) Stocks of publications and of processed documents. (Each agency shall create and maintain serial or record sets of its publications and processed documents, as evidence of agency activities and for the information they contain, including annual reports, brochures, pamphlets, books, handbooks, posters and maps.)
(g)
(a) Personal papers are documentary materials, or any reasonably segregable portion thereof, of a private or nonpublic character that do not relate to, or have an effect upon, the conduct of agency business. Personal papers are excluded from the definition of Federal records and are not owned by the Government. Examples of personal papers include:
(1) Materials accumulated by an official before joining Government service that are not used subsequently in the transaction of Government business;
(2) Materials relating solely to an individual's private affairs, such as outside business pursuits, professional affiliations, or private political associations that do not relate to agency business; and
(3) Diaries, journals, personal correspondence, or other personal notes that are not prepared or used for, or circulated or communicated in the course of, transacting Government business.
(b) Personal papers shall be clearly designated as such and shall at all times be maintained separately from the office's records.
(c) If information about private matters and agency business appears in the same document, the document shall be copied at the time of receipt, with the personal information deleted, and treated as a Federal record.
(d) Materials labeled “personal,” “confidential,” or “private,” or similarly designated, and used in the transaction of public business, are Federal records subject to the provisions of pertinent laws and regulations. The use of a label such as “personal” is not sufficient to determine the status of documentary materials in a Federal office.
Agency recordkeeping requirements shall prescribe the creation and maintenance of records of the transaction of agency business that are sufficient to:
(a) Document the persons, places, things, or matters dealt with by the agency.
(b) Facilitate action by agency officials and their successors in office.
(c) Make possible a proper scrutiny by the Congress or other duly authorized agencies of the Government.
(d) Protect the financial, legal, and other rights of the Government and of persons directly affected by the Government's actions.
(e) Document the formulation and execution of basic policies and decisions and the taking of necessary actions, including all significant decisions and commitments reached orally (person to person, by telecommunications, or in conference).
(f) Document important board, committee, or staff meetings.
Agencies shall develop procedures to ensure that departing officials do not
(a) Nonrecord materials, including extra copies of agency records kept only for convenience of reference, may be removed from Government agencies only with the approval of the head of the agency or the individual authorized to act for the agency on matters pertaining to agency records.
(b) Agencies shall ensure that when nonrecord material containing classified information is removed from the executive branch, it is protected under conditions equivalent to those required of executive branch agencies. The originating agency or its successor in function retains control over access to such classified information, even after it is properly removed from the agency.
(c) Agencies shall ensure the appropriate protection of nonrecord material containing information which is restricted from release under the Privacy Act or other statutes, when such restricted nonrecord material is removed from Government agencies.
Agency recordkeeping requirements shall prescribe that the programs, policies, and procedures of the agency shall be adequately documented in appropriate directives. A record copy of each such directive (including those superseded) shall be maintained by the appropriate agency directives management officer(s) as part of the official files.
When statutes, regulations, directives or authoritative issuances of other agencies prescribe an agency's recordkeeping requirements, the agency so affected shall include these in appropriate directives or other authoritative issuances prescribing its organization, functions, or activities.
(a) Contractors performing Congressionally-mandated program functions are likely to create or receive data necessary to provide adequate and proper documentation of these programs and to manage them effectively. Agencies shall specify the delivery of the Government of all data needed for the adequate and proper documentation of contractor-operated programs in accordance with requirements of the Federal Acquisition Regulation (FAR) and, where applicable, the Defense Federal Acquisition Regulation Supplement (DFARS).
(b) When contracts involve the creation of data for the Government's use, in addition to specifying a final product, agency officials may need to specify the delivery of background data that may have reuse value to the Government. Before specifying the background data that contractors must deliver to the agency, program and contracting officials shall consult with agency records and information managers and historians and, when appropriate, with other Government agencies to ensure that all agency and Government needs are met, especially when the data deliverables support a new agency mission or a new Government program.
(c) Deferred ordering and delivery-of-data clauses and rights-in-data clauses shall be included in contracts whenever necessary to ensure adequate and proper documentation or because the data have reuse value to the Government.
(d) When data deliverables include electronic records, the agency shall require the contractor to deliver sufficient technical documentation to permit the agency or other Government agencies to use the data.
(e) All data created for Government use and delivered to, or falling under the legal control of, the Government are Federal records and shall be managed in accordance with records management legislation as codified at 44 U.S.C. chapters 21, 29, 31, and 33, the Freedom of Information Act (5 U.S.C. 552), and the Privacy Act (5 U.S.C.
(a) Agencies shall prescribe an appropriate records maintenance program so that complete records are filed or otherwise identified and preserved, records can be found when needed, the identification and retention of permanent records are facilitated, and permanent and temporary records are physically segregated or, for electronic records, segregable.
(b) Each Federal agency, in providing for effective controls over the maintenance of records, shall:
(1) Establish and implement standards and procedures for classifying, indexing, and filing records as set forth in GSA and NARA handbooks;
(2) Formally specify official file locations for records in all media and prohibit the maintenance of records at unauthorized locations;
(3) Formally specify which officials are responsible for maintenance and disposition of electronic records and which computer systems are used for recordkeeping;
(4) Standardize reference service procedures to facilitate the finding, charging out, and refiling of paper, audiovisual, and cartographic and architectural records, and to ensure that reference to electronic records minimizes the risk of unauthorized additions, deletions, or alterations;
(5) Make available to all agency employees published standards, guides, and instructions designed for easy reference and revision;
(6) Review its records maintenance program periodically to determine its adequacy; audit a representative sample of its paper, audiovisual, electronic, cartographic, and architectural files for duplication, misclassification, or misfiles;
(7) Maintain microform, audiovisual, and electronic records in accordance with 36 CFR parts 1230, 1232, and 1234, respectively;
(8) Establish and implement procedures for maintaining records and nonrecord materials separately; ensure that record materials generated electronically are clearly identified as records and protected from unauthorized change or deletion for the length of their scheduled retention period; and
(9) Establish and implement procedures for the separate maintenance of any personal papers in accordance with § 1222.36.
44 U.S.C. chs. 21, 29, and 33.
See Derivation Table appearing in the Finding Aids section of this volume.
This part sets policies and establishes standards, procedures, and techniques for the disposition of all Federal records in accordance with 44 U.S.C. chapters 21, 29, 31, and 33. The disposition of documentary materials created or acquired by a Federal agency, regardless of physical form or characteristics, is controlled by this part if any of the following conditions are met:
(a) The materials are created or received in the course of business and contain information related to the organization, functions, policies, decisions, procedures, operations, or other official activities of the agency. Also included is documentation of oral exchanges such as telephone conversations and meetings during which policy was discussed or formulated or other significant activities of the agency were planned, discussed, or transacted.
(b) The creation, retention, or disposition of the materials is mandated by statute or agency or other Federal regulations, directives, policies, or procedures.
(c) The materials are controlled, maintained, preserved, processed, filed, or otherwise handled following established agency procedures for records.
(d) The material contains unique information, such as substantive annotations, including drafts, transmittal sheets, and final documents or other materials circulated or made available to employees other than the creator for official purposes, such as approval, comment, action, recommendation, follow-up, or to keep agency staff informed regarding agency business.
(e) The material was created or received on an electronic mail system and it meets the definition of record. For specific instructions on the disposition of records created or received
The head of each agency (in accordance with 44 U.S.C. 2904, 3102, and 3301) is required to establish and maintain a records disposition program to ensure efficient, prompt, and orderly reduction in the quantity of records and to provide for the proper maintenance of records designated as permanent by NARA.
The primary steps in managing a records disposition program are given below. Details of each element are contained in the NARA records management handbook, Disposition of Federal Records (NSN 7610-01-055-8704).
(a) Issue a program directive assigning authorities and responsibilities for records disposition activities in the agency and keep that directive up to date.
(b) Develop, implement, and maintain an accurate, current, and comprehensive records schedule.
(c) Train all agency personnel taking part in the agency's records disposition activities.
(d) Publicize the program to make all agency employees aware of their records disposition responsibilities.
(e) Evaluate the results of the program to ensure adequacy, effectiveness, and efficiency.
(a) The head of each agency shall direct the creation and preservation of records containing accurate and complete documentation of the organization, functions, policies, decisions, procedures, and essential transactions of the agency (44 U.S.C. 3101). The National Archives and Records Administration shall establish standards for the retention of those records having continuing value, and assist Federal agencies in applying the standards to records in their custody (44 U.S.C. 2905).
(b) No Federal records shall be destroyed or otherwise alienated from the Government except in accordance with procedures described in this part 1228 (44 U.S.C. 3314).
The primary steps in developing agency records schedules are given below. Details in each step are contained in the NARA records management handbook, Disposition of Federal Records (NSN 7610-01-055-8704). Ultimately, all records of an agency must be scheduled, but they need not all be scheduled at the same time. An agency may schedule the records of one function, program or organizational element at a time.
(a) Determine the functions and activities documented by the records to be scheduled.
(b) Prepare an inventory of the records including a description of their medium, location, volume, inclusive dates, informational content and use.
(c) Evaluate the period of time the agency needs each records series or system by reference to its uses and value to agency operations or legal obligations.
(d) Based on agency need, formulate specific recommended disposition instructions for each records series or each part of an automated information system, including file breaks, retention periods for temporary records, transfer periods for permanent records, and instructions for the retirement of records to Federal records centers, when appropriate. Recommended retention periods take into account the rights of the Government and the rights of those directly affected by agency actions.
(e) Assemble into a draft schedule the descriptions and recommended disposition instructions for logical blocks of
(f) Obtain approval of the records schedules from NARA (and from the General Accounting Office, when so required under title 8 of the GAO “Policy and Procedures Manual for the Guidance of Federal Agencies”).
(a)
(b)
(1) Schedules shall identify and describe clearly each series or system and shall contain disposition instructions that can be readily applied. (Additional information is required for permanent records as specified in § 1228.28(b).) Schedules must be prepared so that each office will have standing instructions detailing the disposal, transfer, or retention of records.
(2) SF 115s shall include only new records not covered by the General Records Schedules (GRS) (see subpart C), deviations from the GRS (see § 1228.42), or previously scheduled records requiring changes in retention periods or substantive changes in description.
(3) All schedules shall take into account the physical organization of records or the filing system so that disposal or transfer can be handled in blocks.
(4) The disposition of nonrecord materials is controlled by instructions in the agency's printed or published records disposition manual. These instructions do not require NARA approval. Such items shall not be included on SF 115s. Non-record materials, such as extra copies of documents preserved solely for reference, and stocks of processed documents, and personal materials shall be maintained separately from official agency files to aid in records disposition.
(c)
(1) The destruction of records that have served their statutory, fiscal, or administrative uses and no longer have sufficient value to justify further retention. Procedures for obtaining disposal authorizations are prescribed in § 1228.30;
(2) The removal to a Federal records center (or to an agency records center approved under subpart K) of records not eligible for immediate destruction or other disposition but which are no longer needed in office space. These records are maintained by the records center until they are eligible for further disposition action;
(3) The retention of the minimum volume of current records in office space consistent with effective and efficient operations; and
(4) The identification of records of permanent value in accordance with § 1228.28, and the establishment of cutoff periods and dates when such records will be transferred to the legal custody of NARA.
(a)
(1) New Federal agencies shall apply General Records Schedules to eligible records and shall submit to NARA SF 115s covering all remaining records within 2 years of their establishment.
(2) Agencies shall submit to NARA schedules for the records of new programs and of programs that are reorganized or otherwise changed in a way that results in the creation of new or
(b)
(c)
(a)
(b)
(1) Records series title used by agency personnel to identify the records;
(2) Complete description of the records including physical type and information contents;
(3) Inclusive dates;
(4) An arrangement statement;
(5) Statement of restrictions on access which NARA should impose in conformity with the Freedom of Information Act if the records are proposed for immediate transfer;
(6) An estimate of the volume of records accumulated annually if the records are current and continuing;
(7) The total volume to date; and
(8) Disposition instructions, developed using the following guidelines:
(i) If the records series or system is current and continuing, the SF 115 will include a disposition instruction specifying the period of time after which the records will be transferred to the National Archives, normally within 30 years for paper records, 5-10 years for audiovisual or microform records, and as soon as the records become inactive or the agency cannot meet the maintenance requirements found in § 1228.188 of this part for electronic records.
(ii) If the records series or system is nonrecurring, i.e., no additional records will be created or acquired, the agency may propose either immediate or future transfer to the National Archives.
(c)
(1) If NARA determines that records are not permanent, it will notify the agency and negotiate an appropriate disposition. The disposition instruction on the SF 115 will be modified prior to NARA approval.
(2) If NARA determines that records are permanent, but that the transfer instructions are not appropriate, it will negotiate appropriate transfer terms with the agency. The disposition instruction on the SF 115 will be modified prior to NARA approval.
(a)
(b)
(1) Records series title used by agency personnel to identify the records;
(2) Description of the records including physical type and informational content;
(3) If the records are contained in a Privacy Act system of records, a citation to the agency's alpha-numeric or numeric code designation for the system of records. If the system of records was added or deleted since the publication of the current Office of the Federal Register compilation of Privacy Act Issuances, the agency shall also cite the date and page of the
(4) Disposition instructions, developed using the following guidelines:
(i) If the records series or system is current and continuing, the SF 115 will include a disposition instruction specifying the period of time after which the records will be destroyed.
(ii) If the records series or system is nonrecurring, i.e., no additional records will be created or acquired, the agency may propose either immediate destruction or destruction on a future date.
(c)
(d)
(e)
(1) If, during the course of the appraisal process, NARA determines that records described by an item(s) on the proposed schedule do not exist or are not arranged as stated on the SF 115, NARA may request the agency to withdraw the item(s) from consideration, if the agency is unable to offer sufficient clarification.
(2) If NARA and the agency cannot agree on the retention period for an item(s), the items(s) may be withdrawn. In these cases, the agency will submit an SF 115 with a revised proposal for disposition within 6 months of the date of the approval of the original SF 115.
(a) Agencies desiring to change the approved retention period of a series or system of records shall submit an SF 115. Disposition authorities contained in an approved SF 115 are automatically superseded by approval of a later SF 115 applicable to the same records unless the later SF 115 specified an effective date. Agencies submitting revised schedules shall indicate on the SF 115 the relevant schedule and item numbers to be superseded, the citation to the current printed records disposition schedule, if any, and/or the General Records Schedules and item numbers that cover the records.
(b) Agencies proposing to change the retention period of a series or system of records shall submit with the SF 115 an explanation and justification for the change. The need to retain records longer than the retention period specified in the disposition instructions on an approved SF 115 for purposes of audit, court order, investigation, litigation, study, or any other administrative purpose that justifies the temporary extension of the retention period shall be governed by the procedures set forth in § 1228.54. Agencies shall not submit an SF 115 to change the retention period in such cases.
The Archivist of the United States shall issue schedules authorizing disposal, after specified periods of time, of records common to several or all agencies after determining that the records lack value for continued retention by the U.S. Government. General Records Schedules constitute authority to destroy records described therein after expiration of the stated retention period. Application of the disposition instructions in these schedules is mandatory (44 U.S.C. 3303a).
(a) New items or changes in the disposition of GRS records supersede approved agency schedules for the same series or system of records, unless the agency schedule provides for a shorter retention period, or unless NARA indicates that the GRS standard must be applied without exception. Agencies shall not request authority to apply GRS authorizations (see § 1228.24(b)(2)).
(b) Agencies may request exceptions to disposition instructions in the GRS by submitting an SF 115 in accordance with § 1228.30 accompanied by a written justification explaining why the agency needs the records for a different period of time from other agencies.
(c) Provisions of the General Records Schedules may be applied to records in the custody of the National Archives at NARA's discretion subject to the provisions of § 1228.200.
The following General Records Schedules governing the disposition of records common to several or all agencies were developed by the National Archives and Records Administration after consultation with other appropriate agencies. They have been approved by the Archivist of the United States.
1. Civilian Personnel Records.
2. Payrolling and Pay Administration Records.
3. Procurement, Supply and Grant Records.
4. Property Disposal Records.
5. Budget Preparation, Presentation, and Apportionment Records.
6. Accountable Officers’ Accounts Records.
7. Expenditure Accounting Records.
8. Stores, Plant, and Cost Accounting Records.
9. Travel and Transportation Records.
10. Motor Vehicle Maintenance and Operation Records.
11. Space and Maintenance Records.
12. Communications Records.
13. Printing, Binding, Duplication, and Distribution Records.
14. Information Services Records.
15. Housing Records.
16. Administrative Management Records.
17. Cartographic, Aerial Photographic, Architectural, and Engineering Records.
18. Security and Protective Services Records.
19. Research and Development Records: RESCINDED.
20. Electronic Records.
21. Audiovisual Records.
22. Inspector General Records.
23. Records Common to Most Offices Within Agencies.
The GRS and instructions for their use are available from NARA (NWM). The Archivist of the United States distributes new schedules and schedule revisions under sequentially numbered GRS transmittals.
The application of approved schedules is mandatory (44 U.S.C. 3303a). The Archivist of the United States will determine whether or not records may be destroyed or transferred to the National Archives. If the Archivist approves the request for disposition authority, NARA will notify the agency by returning one copy of the completed SF 115. This shall constitute mandatory authority for the final disposition
(a) Issue an agency directive incorporating the disposition authorities approved by NARA, i.e., SF 115s (except for one-time authorities covering nonrecurring records) and the General Records Schedules. Also include nonrecord materials with disposition instructions developed by the agency. Once all records and nonrecord materials are included, this document is the agency's comprehensive schedule. Agencies may also issue other directives containing instructions relating to agency records disposition procedures.
(1) Published schedules do not include nonrecurring records for which NARA has granted authority for immediate disposal or transfer to the National Archives. They do include general instructions for retirement of records to the Federal records centers, transfer of records to the National Archives, and other records disposition procedures.
(2) Comprehensive schedules are formally published manuals or directives that provide for the disposition of all recurring records and nonrecord materials created by an agency. These schedules must cite the GRS or SF 115 and item numbers that provide the legal disposition authority for items covering record material.
(3) Prior to issuance, agencies may consult with NARA concerning directives or other issuances containing approved schedules, instructions for use of the Federal records centers, transfer of records to the National Archives, or other matters covered by NARA procedures or regulations.
(4) Agencies shall forward to the National Archives and Records Administration (NWML) three copies of each final directive or other issuance relating to records disposition and 20 copies of all published records schedules (printed agency manuals) and changes.
(b) Establish internal training programs to acquaint appropriate personnel with the requirements and procedures of the records disposition program.
(c) Apply the approved records disposition schedules to the agency's records.
(1) Records described by items marked “disposition not approved” or “withdrawn” may not be destroyed until a specific disposition has been approved by NARA.
(2) Disposition authorities for items on approved SF 115s that specify an organizational component of the department or independent agency as the creator or custodian of the records may be applied to the same records after internal reorganization, but only if the nature, content, and functional importance of the records remain the same. Authority approved for items described in a functional format may be applied to any organizational component within the department or independent agency that is responsible for the relevant function.
(3) Disposition authorities approved for one department or independent agency may not be applied by another. Departments or agencies that acquire records from another department or agency, and/or continue creating the same series of records previously created by another department or agency through interagency reorganization must submit an SF 115 to NARA for disposition authorization for the records within one year of the reorganization.
(4) Unless otherwise specified, disposition authorities apply retroactively to all existing records as described in the schedule, including records acquired by transfer of function within or between agencies, as long as the nature, content, and functional importance of the records series is unchanged.
(d) Review approved schedules, and, if necessary, update them annually. Additions and changes to the GRS shall be incorporated or otherwise disseminated within 6 months of issuance from NARA.
In an emergency or in the interest of efficiency of Government operations, NARA will withdraw disposal authorizations in approved disposal schedules (44 U.S.C. 2909). This withdrawal may apply to particular items on schedules submitted by agencies or may apply to all existing authorizations for the disposal of a specified type of record obtained by any or all agencies of the Government. If the withdrawal is applicable to only one agency, that agency will be notified of this action by letter signed by the Archivist; if applicable to more than one agency, notification may be by NARA bulletin issued and signed by the Archivist.
(a) Approved agency records schedules and the General Records Schedules are mandatory (44 U.S.C. 3303a). Except as specified in § 1228.32(b), records series or systems approved for destruction shall not be maintained longer without the prior written approval of the National Archives and Records Administration (NWML). However, extended retention of an individual shipment of records to a Federal Records Center for a period up to 6 months is governed by procedures in § 1228.164(c).
(b) Upon submission of adequate justification, NARA may authorize a Federal agency to extend the retention period of a series or system of records (44 U.S.C. 2909). These extensions of retention periods will be granted for records which are required to conduct Government operations because of special circumstances which alter the normal administrative, legal, or fiscal value of the records.
(c) The head of a Federal agency may request approval of a temporary extension of a retention period by sending a letter to NARA (NWML), 8601 Adelphi Rd., College Park, MD 20740-6001. The request shall include:
(1) A concise description of the records series for which the extension is requested.
(2) A complete citation of the specific provisions of the agency records schedule or the General Records Schedule currently governing disposition of the records;
(3) A statement of the estimated period of time that the records will be required; and
(4) A statement of the current and proposed physical location of the records including information on whether the records have been or will be transferred to one or more Federal records centers.
(d) Approval of a request for extension of retention periods may apply to records in the custody of one Federal agency or records common to several or all Federal agencies. If approval of a request is applicable to records in the custody of one agency, that agency will be notified by letter. If approval is applicable to records common to several agencies, notification may be made by NARA bulletin.
(e) Upon approval of a request for a change in retention periods applicable to records that have been or will be transferred to one or more Federal records centers, centers will be notified of the change and agencies will be furnished a copy of the notification. Agencies shall forward to the National Archives and Records Administration (NWML) 20 copies of all formally issued instructions which extend retention periods.
(f) Upon expiration of an approved extension of retention period, NARA will notify all affected agencies to apply normal retention requirements.
(g) Except when NARA agrees to continue to store and service records on a reimbursable basis or waives the requirements of this paragraph under a condition specified in paragraph (h) of this section, agencies shall remove from Federal records centers at the agency's expense records that, because of audit, court order, investigation,
(h) NARA will waive the requirements specified in paragraph (g) of this section when:
(1) The temporary extension of retention period has been imposed by NARA, for instance when NARA plans to reappraise the archival value of records or when NARA is working on a new or revised General Records Schedule item;
(2) The agency has submitted an SF 115, Request for Disposition Authority, to NARA to request a change in the scheduled disposition of a series of records;
(3) NARA and the agency mutually agree that a temporary extension is required to meet exceptional records management situations such as a NARA-agency screening project to separate permanent from disposable records or application of a new records disposition schedule to previously unscheduled records; or
(4) The administrative cost to NARA to implement a reimbursable agreement would exceed the reimbursement received.
All records scheduled as permanent shall be transferred to the National Archives after the period specified on the SF 115 in accordance with procedures specified under subpart J.
(a)
(b)
(c)
(a) When the public interest will be served, a Federal agency may propose the transfer of records eligible for disposal to an appropriate person, organization, institution, corporation, or government (including a foreign government) that has requested them. Records will not be transferred without prior written approval of NARA.
(b) The head of a Federal agency shall request the approval of such a transfer by sending a letter to NARA (NWML), 8601 Adelphi Rd., College Park, MD 20740-6001. The request shall include:
(1) The name of the department or agency, and subdivisions thereof, having custody of the records;
(2) The name and address of the proposed recipient of the records;
(3) A list containing:
(i) An identification by series or system of the records to be transferred,
(ii) The inclusive dates of the records,
(iii) The NARA disposition of job (SF 115) or GRS and item numbers that authorize disposal of the records;
(4) A statement providing evidence:
(i) That the proposed transfer is in the best interests of the Government,
(ii) That the proposed recipient agrees not to sell the records as records or documents, and
(iii) That the transfer will be made without cost to the U.S. Government;
(5) A certification that:
(i) The records contain no information the disclosure of which is prohibited by law or contrary to the public interest, and/or
(ii) That records proposed for transfer to a person or commercial business are directly pertinent to the custody or operations of properties acquired from the Government, and/or
(iii) That a foreign government desiring the records has an official interest in them.
(c) NARA will consider such request and determine whether the donation is in the public interest. Upon approval NARA will notify the requesting agency in writing. If NARA determines such a proposed donation is contrary to the public interest, the request will be denied and the agency will be notified that the records must be destroyed in accordance with the appropriate disposal authority.
The Archivist of the United States has authority over the placement of permanent records (44 U.S.C. 2107 and 2904). As unscheduled records have not been appraised, they will be deemed permanent for the purposes of this section and are also covered by this authority.
No permanent or unscheduled records shall be loaned to non-Federal recipients without prior written approval from NARA. This authorization is not required for temporary loan of permanent and unscheduled records between Federal agencies.
(a) An agency proposing to loan permanent or unscheduled records shall execute a written loan agreement with the proposed recipient. The agreement shall include:
(1) The name of the department or agency and subdivisions thereof having custody of the records;
(2) The name and address of the proposed recipient of the records;
(3) A list containing:
(i) An identification by series or system of the records to be loaned,
(ii) The inclusive dates for each series,
(iii) The volume and media of the records to be loaned, and
(iv) The NARA disposition job (SF 115) and item numbers covering the records, if any;
(4) A statement of the purpose and duration of the loan;
(5) A statement specifying any restrictions on the use of the records and how these restrictions will be administered by the donee; and
(6) A certification that the records will be stored according to the environmental specifications for archival records.
(b) The Archivist of the United States shall be a signatory on all loan agreements for permanent and unscheduled records. An agreement may not be implemented until the Archivist has signed.
(c) The head of the Federal agency shall request approval for the loan by sending a letter to NARA (NWML), 8601 Adelphi Rd., College Park, MD 20740-6001, transmitting the proposed loan agreement and specifying the name, title, and telephone number of the person NARA should contact about the proposed loan.
NARA will review the request and, if found acceptable, return the approved agreement to the agency. NARA will deny the request if the records should be transferred to the National Archives in accordance with subpart J of this part or if the loan would endanger the records or otherwise contravene the regulations in 36 CFR chapter XII, subchapter B. If NARA disapproves the loan, the Archivist will notify the agency in writing and provide instructions for the disposition of the records.
An agency shall contact the recipient of the loan of permanent or unscheduled records 30 days prior to the expiration of the loan period (as stated in the loan agreement) to arrange for the return of the records. If the agency extends the duration of the loan, it shall notify NARA (NWML) in writing, specifying the reason for the extension and providing a new time limit for the loan.
Under certain conditions, records may be destroyed without regard to the provisions of subpart D.
(a) Agencies may destroy records that constitute a continuing menace to human health or life or to property (44 U.S.C. 3310). When such records are identified, the agency head shall notify NARA (NWML), specifying the nature of the records, their location and quantity, and the nature of the menace. If NARA concurs in the determination, the Archivist will direct the immediate destruction of the records or other appropriate means of destroying the recorded information. However, if the records are still or motion picture film on nitrocellulose base that has deteriorated to the extent described in paragraph (b) of this section, the head of the agency may follow the procedure therein provided.
(b) Whenever any radarscope, aerial, or other still or motion picture film on nitrocellulose base has deteriorated to the extent that it is soft and sticky, is emitting a noxious order, contains gas bubbles, or has retrograded into acrid powder, and the head of the agency having custody of it shall determine that it constitutes a menace to human health or life or to property, then the agency shall without prior authorization of the Archivist:
(1) Arrange for its destruction in a manner that will salvage its silver content if the silver content is of sufficient quantity and market value per troy ounce to warrant such salvage;
(2) Authorize burial in approved landfills, in the event the quantity is not sufficiently large to justify the salvaging of its silver content; or
(3) Effect other appropriate methods in the event that the methods provided in paragraph (b)(1) or (2) of this section are not feasible.
(c) These films should be removed from inhabited buildings as soon as possible.
(d) Within 30 days after the destruction of the film as provided in this section, the head of the agency who directed its destruction shall submit a written statement to NARA (NWML), 8601 Adelphi Rd., College Park, MD 20740-6001, describing the film and showing when, where, and how the destruction was accomplished.
(e) This report has been cleared in accordance with 41 CFR part 201-45 and assigned Interagency Report Control Number 1095-NAR-AR.
(a) Destruction of records outside the territorial limits of the continental United States is authorized whenever,
(b) Within 6 months after the destruction of any records under this authorization, a written statement describing the character of the records and showing when and where the disposal was accomplished shall be submitted to NARA (NWML) by the agency official who directed the disposal.
(a) The Archivist of the United States and the heads of Federal agencies are responsible for preventing the alienation or unauthorized destruction of records, including all forms of mutilation. Records may not be removed from Federal custody or destroyed without regard to the provisions of agency records schedules (SF 115) approved by NARA or the General Records Schedules issued by NARA (44 U.S.C. 2905, 3106, and 3303a).
(b) The heads of Federal agencies are responsible for ensuring that all employees are aware of the provisions of the law relating to unauthorized destruction, alienation, or mutilation of records, and should direct that any such action be reported to them.
The maximum penalty for the willful and unlawful destruction, damage, or alienation of Federal records is a $2,000 fine, 3 years in prison, or both (18 U.S.C. 2071).
(a) The head of a Federal agency shall report any unlawful or accidental destruction, defacing, alteration, or removal of records in the custody of that agency to NARA (NWML), 8601 Adelphi Rd., College Park, MD 20740-6001. The report shall include:
(1) A complete description of the records with volume and dates if known;
(2) The office of origin;
(3) A statement of the exact circumstances surrounding the alienation, defacing, or destruction of the records;
(4) A statement of the safeguards established to prevent further loss of documentation; and
(5) When appropriate, details of the actions taken to salvage, retrieve, or reconstruct the records.
(b) This report has been cleared in accordance with 41 CFR part 201-45 and assigned Interagency Report Control Number 0285-NAR-AR.
(c) The Archivist of the United States will assist the head of the agency in contacting the Attorney General for the recovery of any unlawfully removed records.
Private or personal files are not governed by these provisions. 36 CFR 1222.20(d) provides the legal definition of personal papers and prescribes standards for their maintenance.
The Archivist of the United States will issue regulations governing the transfer of records from the custody of one executive agency to another (44 U.S.C. 2908).
No records shall be transferred from the custody of one executive agency to another without the prior written approval of the National Archives and Records Administration except as provided in § 1228.136.
The head of any executive agency may request the transfer of records to or from his or her agency. Approval shall be requested by letter addressed to the NARA (NWML), in which are included:
(a) A concise description of the rec-ords to be transferred, including the volume in cubic feet;
(b) A statement of the restrictions imposed on the use of records;
(c) A statement of the agencies and persons using the records and the purpose of this use;
(d) A statement of the current and proposed physical and organizational locations of the records; and
(e) A justification for the transfer including an explanation of why it is in the best interests of the Government.
Copies of the concurrence or nonconcurrence in the transfer by the heads of any agencies concerned shall be attached to the agency request.
Transfers of records of executive agencies whose functions are terminated or are in process of liquidation are expressly subject to this part 1228 and no such transfers shall be made except in accordance with its provisions.
Records storage equipment shall be transferred with the records contained therein in accordance with arrangements previously agreed to by the agencies concerned.
Approved transfers shall be made without reimbursement to the agency of original custody for any cost involved, except when this reimbursement is previously agreed to by the agencies concerned.
Whenever any records that are transferred are subject to restrictions upon their use imposed under a statute, Executive order, or agency determination, these restrictions shall continue in effect after the transfer. Restrictions imposed by agency determination may be removed by agreement between the agencies concerned.
Prior written approval of NARA is not required when:
(a) Records are transferred to Federal records centers or the National Archives in accordance with subparts I and J.
(b) Records are loaned for official use.
(c) The transfer of records or functions or both is required by statute, Executive Order, Presidential reorganization plan, or Treaty, or by specific determinations made thereunder.
(d) The records are transferred between two components of the same Executive department.
(e) Records accessioned by the National Archives, later found to lack sufficient value for continued retention by the National Archives are governed exclusively for further disposition in accordance with § 1228.200.
The Archivist of the United States is authorized to establish, maintain, and
This section prescribes general procedures for the transfer of records to Federal records centers. For greater detail consult the NARA Records Management Handbook, Federal Archives and Records Centers (NSN 7610-00-298-6904).
(a) Federal records centers will accept for transfer any records of Federal agencies, subject to the following conditions:
(1) The records are properly scheduled. If the records are not scheduled, or if the records are scheduled for final disposition after the occurrence of an event at some unspecified future time (contingent), an exception to this regulation must be obtained by submitting a request, in writing, to the NARA (NR), 8601 Adelphi Rd., College Park, MD 20740-6001.
(i) Requests for exceptions for unscheduled records will be considered only if an SF 115 has been submitted and accepted in accordance with the provisions of subpart C. The request must include information on the volume of the records and the anticipated reference activity.
(ii) Requests for exceptions for contingent records must include the series title, records disposition schedule and item numbers, approximate volume accumulated annually, periodic review interval for disposal and justification for retirement to a Federal records center.
(2) The records are not authorized for immediate disposal and transportation costs are not in excess of the resulting savings.
(3) Facilities for storing and providing reference on the records are available.
(b) Priority will be given to the removal of records from office space, from space convertible to office use, from leased space, and from filing equipment that can be reused.
(c) Inquiries concerning the appropriateness of transfers may be sent to the Director of the Federal records center serving the area in which the records are located. Inquiries shall specify the nature and quantity of the records proposed for transfer.
(d) Tranfers of records on an agencywide basis may be initiated by submitting a request to NARA (NR), 8601 Adelphi Rd., College Park, MD 20740-6001. Requests shall specify the nature and quantity of the records proposed for transfer.
(e) Transfers to Federal records centers shall be preceded by the submission of Standard Form 135, Records Transmittal and Receipt.
(1) A separate accession number is required for each series of records listed on the Standard Form 135. An accession consists of records in one series that have the same disposition authority and disposition date.
(2) Standard Forms 135 proposing the transfer of the following categories of records must contain, either in block 6F of the form or on attached plain paper, a folder title list of the box contents or equivalent detailed records description, and each accession must be listed on a separate SF 135:
(i) Records scheduled for permanent retention;
(ii) Unscheduled records (if authorized for transfer by NARA in accordance with paragraph (a)(1)(i) of this section) which have been proposed for permanent retention on the pending SF 135;
(iii) Records which are scheduled for sampling or selecting files for permanent retention by the National Archives; and
(iv) Records for which the agency has implemented the sampling or selection technique specified in the agency records control schedule to separate permanent and disposable records.
(3) Permanent microforms from offices in the Washington, DC, area are stored at the Washington National Records Center. Permenent microforms from all other offices are stored at the National Personnel Records Center—Civilian Personnel Records. Submit Standard Forms 135 proposing the transfer of permanent microforms to the appropriate center. (See 36 CFR 1230.22 for inspection requirements for microforms transferred to a Federal records center.)
(4) Agencies shall prepare an original and two copies of the Standard Form 135, retain one copy for filing purposes, and send the original and one copy to the Federal records center to arrive at least 10 workdays before the desired date of the records shipment. The records center will review the Standard Form 135 for completeness to determine the appropriateness of the transfer. If the transfer is approved, the records center may annotate block 6J of the Standard Form 135 with the Federal records center shelf location where each accession will be stored. The Federal records center returns a copy of the Standard Form 135 to the agency indicating that the records may be transferred. This copy shall be placed in the first carton of the shipment when the records are shipped to the center.
(f) The physical transfer of records to a records center should be accomplished as soon as possible after the agency has received the annotated copy of the Standard Form 135. If NARA has not received the shipment within 90 days after transmittal of the annotated SF 135 to the agency (120 days for agencies located outside the continental United States), it will return the SF 135 to the agency. The agency will then have to resubmit the accessioning paperwork.
(g) Upon receipt of the records shipment at the center, the cartons are matched against the copy of the Standard Form 135 submitted with the transfer. That copy is signed by center officials and returned to the agency for its files. Any changes in location designation will be noted on this receipt copy before it is returned to the agency. This is the only receipt the center will provide for transferred material, including records having security classifications up to and including “Secret.”
General Records Schedules 1 and 2 specify that certain Federal civilian personnel, medical, and pay records must be centrally stored at the National Personnel Records Center (Civilian Personnel Records), 111 Winnebago Street, St. Louis, MO 63118.
(a) The following four types of records are so specified:
(1) Official personnel folders of separated Federal civilian employees;
(2) Service record cards of employees who separated or transferred on or before December 31, 1947;
(3) Audited individual earnings and pay cards and comprehensive payrolls; and
(4) Employee medical folders of separated Federal civilian employees.
(b) The official personnel folder (OPF) and the employee medical folder (EMF) must be forwarded to the National Personnel Records Center at the same time. Only x rays that will easily fit inside the EMF without folding will be accepted by the Center. X rays over 11
(c) A cover letter must accompany loose personnel or medical documents forwarded for interfiling in an OPF or EMF previously sent to the Center. Only those documents required for long-term retention may be forwarded for interfiling. Each document must contain the former employee's current name and name under which formerly employed, if different; date of birth; social security number; and date of separation. Letters accompanying loose personnel documents must clearly identify the agency personnel office and address. Letters accompanying loose medical documents must include the name and address of the agency's designated medical records manager (i.e., medical, health, safety, or personnel officer or other designee). Medical documents required to be part of the EMF may not be sent for interfiling in agency accessions retired prior to September 1, 1984. Such documents must be placed in an EMF and sent to the National Personnel Records Center in accordance with the instructions in paragraph (b) of this section if the employee has left Federal service.
(d) Transfer of fiscal records must be in accordance with the procedures outlined in § 1228.152.
(e) Standard Form 127, Request for Official Personnel Folder (Separated Employee), must be used by agencies when requesting transmission of personnel folders of separated employees. Standard Form 184, Request for Employee Medical Folder (Separated Employee), must be used when requesting medical folders. The name and address of the agency's designated medical records manager must be shown on the
(f) Occupational medical records of separated Federal civilian employees who were not in positions subject to civil service rules and regulations may be retired if the records are properly scheduled and if access procedures are furnished for use by the Center.
(1) It is recommended that a folder similar to the SF 66-D, Employee Medical Folder, but different in color, be used for medical records of non-civil-service employees.
(2) If the records are not scheduled, an exception may be obtained by submitting a request to the Assistant Archivist for Regional Records Services, NARA (NR), 8601 Adelphi Rd., College Park, MD 20740-6001. The request must identify the location(s) of records and the volume proposed for transfer. The request will be considered only if an SF 115, Request for Records Disposition Authority, has been received by NARA's Life Cycle Management Division (NWML).
(g) Medical records of non-Federal employees (e.g., contractor employees and student volunteers) must be disposed of in accordance with the approved agency disposition schedule.
NARA provides for the storage and protection of rights and interests vital records under the dispersed concept as described in part 1236. The facilities of all NARA Federal records centers (FRC) without regard to geographical location are now available for agencies desiring to store these records. Each NARA Federal records center has areas with suitable temperature and humidity controls allowing the safe storage of paper records, magnetic tape, and photographic film. Agencies may make arrangements through the NARA (NR), 8601 Adelphi Rd., College Park, MD 20740-6001, for the transfer of indispensable vital records to these depositories and for their use.
File equipment received with the transfer of records to a Federal rec-ords center will normally be disposed of in accordance with applicable excess personal property regulations. An agency desiring return of the equipment should make this request before transfer of the records to the records center.
Each agency record which is accepted by the Archivist of the United States for storage, processing, and servicing in accordance with 44 U.S.C. 3103 shall, for the purposes of this section, be considered to be maintained by the agency which deposited the record. The Archivist of the United States will not disclose the record except to the agency which maintains the record, or under rules established by that agency which are not inconsistent with existing laws.
(a) Standard Form 180, Request Pertaining to Military Records, must be used by Federal agencies to obtain information from military service records in the National Personnel Records Center (Military Personnel Records). Agencies may furnish copies of that form to the public to aid in inquiries. Members of the public and non-governmental organizations also may obtain copies of Standard Form 180 by submitting a written request to the National Personnel Records Center (Military Personnel Records), 9700 Page Boulevard, St. Louis, MO 63132.
(b) Requests for Federal civilian personnel files and medical files from the National Personnel Records Center must be made in accordance with § 1228.154. Requests for medical records retired to other Federal Records Centers prior to September 1, 1984, must be made on Optional Form 11, Reference Request—Federal Records Centers. The
(c) For any other requests, agencies should use Optional Form 11, Reference Request—Federal Records Centers, or a form jointly designated by that agency and NARA.
(a) Records at the National Personnel Records Center covered by General Records Schedules 1 and 2 will be destroyed in accordance with those schedules without further agency clearance.
(b) Contingent records (records of Federal agencies scheduled for destruction after occurrence of an event at some unspecified time in the future) held by Federal records centers will be destroyed upon receipt of agency concurrence in response to NA Form 13000, Agency Review for Contingent Disposal, or other written concurrence. If the agency does not respond to the review notice within 90 calendar days, the records center may return the records to the agency and reject future transfers of that records series.
(c) Other records of Federal agencies held by Federal records centers will be destroyed with the concurrence of the agency concerned by use of NA Form 13001, Notice of Intent to Destroy Records, or other written concurrence for each disposal action. If an agency is notified of the eligibility of its records for disposal and the agency fails to respond to this notification within 90 calendar days, the records will be destroyed in accordance with the appropriate disposition authority. If an agency does not concur in the scheduled destruction of an accession, the agency may request extended retention of the records for up to an additional 6 months by submitting written justification, including a new disposal date, within 90 days to the records center director. Further extensions must be requested in accordance with § 1228.54 of this part.
(a)
(1) Accept for deposit with the National Archives of the United States the records of a Federal agency or of the Congress determined by the Archivist of the United States to have sufficient historical or other value to warrant their continued preservation by the U.S. Government; and
(2) Direct and effect the transfer to the National Archives of the United States of Federal agency records that have been in existence for more than 30 years and that have been determined by the Archivist of the United States to have sufficient historical or other value to warrant their continued preservation by the U.S. Government.
(b)
(c)
(a)
(1) They are 30 years old; or
(2) At any age when:
(i) The originating agency no longer needs to use the records for the purpose for which they were created or in its regular current business; or
(ii) Agency needs will be satisfied by use of the records in NARA research rooms or by copies of the records; and restrictions on the use of records are acceptable to NARA and do not violate the Freedom of Information Act (5 U.S.C. 552). Records appraised as permanent that are not yet eligible for transfer because of agency needs or restrictions may be stored in a Federal records center pending transfer. (See subpart I of this part.)
(b)
(1)
(2)
(ii) Records including both headquarters and field office records of regional agencies such as the Tennessee Valley Authority; and
(iii) Other records determined by NARA to be of primarily regional or local interest.
(3)
(ii) All other records not deposited in a Presidential library or Regional Archives.
(a) Permanent records shall be transferred to the National Archives of the United States when the records have been in existence for more than 30 years unless the head of the agency which has custody of the records certifies in writing to the Archivist that the records must be retained in agency custody for use in the conduct of the regular current business of the agency. Records that are scheduled in a NARA-approved records schedule to be transferred to the National Archives of the United States after a specified period of time are subject to the certification requirement only if the records are not transferred as scheduled.
(b) In order to certify that records must be retained for the conduct of regular current business, an agency should consider the following factors:
(1) Character of use (to be retained by an agency, records should be used for the normal routine business of the agency at the time of certification);
(2) Frequency of use (to be retained by an agency, records should be used more than one time per month per file unit); and,
(3) Preservation of the records (to be retained by an agency, permanently valuable records should be preserved in accordance with NARA guidelines).
(c) The written certification of need of a series of 30-year-old records for current agency business must:
(1) Include a comprehensive description and location of records to be retained;
(2) Cite the NARA approved authority for the disposition of the records if scheduled (SF 115 item number);
(3) Describe the current business for which the records are required;
(4) Estimate the length of time the records will be needed by the agency
(5) Explain why the current needs of the agency cannot be met by the services NARA provides for records deposited with the National Archives of the United States; and,
(6) If the records are being retained to enable the agency to provide routine public reference, cite the statute authorizing this agency activity.
(d) NARA will not accept an agency certification that a specific body of records over 30 years old, regardless of physical form or characteristics, is being used for the “conduct of the regular current business,” if that agency is retaining such records primarily to:
(1) Provide to persons outside the agency access which can be provided by NARA; or
(2) Function as an agency archives, unless specifically authorized by statute or NARA.
The following types of audiovisual records appraised as permanent shall be transferred to the National Archives as soon as they become inactive or whenever the agency cannot provide proper care and handling of the records, including adequate storage conditions, to facilitate their preservation by the National Archives (see part 1232 of this chapter). In general the physical types described below constitute the minimum record elements for archival purposes that are required to provide for future preservation, duplication, and reference needs.
(a)
(i) Original negative or color original plus separate optical sound track;
(ii) Intermediate master positive or duplicate negative plus optical track sound track; and,
(iii) Sound projection print and video recording, if both exist.
(2) Agency-acquired motion picture films: Two projection prints in good condition or one projection print and one videotape.
(3) Unedited footage, outtakes and trims (the discards of film productions) that are properly arranged, labeled, and described and show unstaged, unrehearsed events of historical interest or historically significant phenomena:
(i) Original negative or color original; and
(ii) Matching print or videotape.
(b)
(2) For color photographs, the original color negative, color transparency, or color slide; a captioned print of the original color negative; and/or captioning information as described above if for an original color transparency or original color slide; and a duplicate negative, or slide, or transparency, if they exist.
(3) For slide sets, the original and a reference set, and the related audio recording and script.
(4) For other pictorial records such as posters, original art work, and filmstrips, the original and a reference copy.
(c)
(i) For conventional disc recordings, the master tape and two disc pressings of each recording, typically a vinyl copy for playback at 33
(ii) For compact discs, the origination recording regardless of form and two compact discs.
(2) For analog audio recordings on magnetic tape (open reel, cassette, or cartridge), the original tape, or the earliest available generation of the recording, and a subsequent generation copy for reference. Section 1232.30(d) of this subchapter requires the use of open-reel analog magnetic tape for original audio recordings.
(d)
(2) For video discs, the premaster videotape used to manufacture the video disc and two copies of the disc. Video discs that depend on interactive software and nonstandard equipment may not be acceptable for transfer.
(e)
(1) Existing finding aids such as data sheets, shot lists, continuities, review sheets, catalogs, indexes, list of captions, and other documentation that are helpful or necessary for the proper identification, or retrieval of audiovisual records. Agencies should contact the Nontextual Archives Division, or its appropriate audiovisual branch, to determine the type of hardware and software that is currently acceptable for transfer to the National Archives as an agency electronic finding aid that will accompany its audiovisual records. In general, however, agencies must transfer two copies of the electronic finding aid, one in its native format with its field structure documented, and a second copy in a contemporary format available at the time of transfer that NARA will be able to support and import to its database.
(2) Production case files or similar files that include copies of production contracts, scripts, transcripts, and appropriate documentation bearing on the origin, acquisition, release, and ownership of the production.
The following classes of cartographic and architectural records appraised as permanent should be transferred to the National Archives as soon as they become inactive or whenever the agency cannot provide the proper care and handling of the materials to guarantee their preservation.
(a)
(2) Master sets of printed or processed maps in the custody of the agency by which they were issued. Such master sets should be kept segregated from the stock of maps held for distribution and from maps received from other agencies. A master set should include one copy of each edition of a printed or processed map issued.
(3) Computer-related and computer-plotted maps that cannot be reproduced by the National Archives because of destruction of the magnetic tapes or other stored data or because of the unavailability of ADP equipment.
(4) Index maps, card indexes, lists, catalogs, or other finding aids that may be helpful in using the maps transferred.
(5) Records related to preparing, compiling, editing, or printing maps, such as manuscript field notebooks of surveys, triangulation and other geodetic computations, and project folders containing specifications to be followed and appraisals of source materials to be used.
(b)
(2) Annotated copy negatives, internegatives, rectified negatives, and glass plate negatives from vertical and oblique aerial film, conventional aircraft.
(3) Annotated prints from aerial film, conventional aircraft.
(4) Infrared, ultraviolet, multispectral (multiband), video, imagery radar, and related tapes, converted to a film base.
(5) Indexes and other finding aids in the form of photo mosaics, flight line indexes, coded grids, and coordinate grids.
(c)
(2) Master sets of drawings which document the condition of a building or structure in terms of its initial construction and subsequent alterations. This category includes final working drawings, “as-built” drawings, shop drawings, and repair and alteration drawings.
(3) Drawings of repetitive or standard details of one or more buildings or structures.
(4) “Measured” drawings of existing buildings and original or photocopies of drawings reviewed for approval.
(5) Related finding aids and specifications to be followed.
(a)
(b)
(c)
(1)
(2)
(i) CD-ROMs used for this purpose must conform to ANSI/NISO/ISO 9660-1990, American National Standard for Volume and File Structure of CD-ROM for Information Exchange. The standard is available from the National Information Standards Organization (NISO), P.O. Box 1056, Bethesda, MD or the American National Standards Institute, 11 West 42nd Street, 13th floor, New York NY 10036. It is also available for inspection at the Office of the Federal Register, 800 North Capitol Street, NW., Suite 700, Washington, D.C. This incorporation by reference was approved by the Director of the Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. These materials are incorporated by reference as they exist on the date of approval and a notice of any change in these materials will be published in the
(ii) Permanently valuable electronic records must be stored in discrete files. The CD-ROMs transferred may contain other files, such as software or temporary records, but all permanently valuable records must be in files that contain only permanent records. Agencies should indicate at the time of transfer if a CD-ROM contains temporary records and, if so, where those records are located on the CD-ROM. The agency must also specify whether NARA should return the CD-ROM to the agency or dispose of it after copying the permanent records to an archival medium.
(iii) In some cases, permanently valuable electronic records that an agency disseminates on CD-ROM exist on other media, such as magnetic tape. In such cases, the agency and NARA will mutually agree on the most appropriate medium for transfer of the records to the National Archives.
(d)
(1)
(2)
(3)
(4)
(5)
(e)
(1)
(2)
(3)
(a)
(b)
(2)
(3)
(c)
(a)
(b)
(c)
For records constituting systems of records subject to the Privacy Act of 1974 (5 U.S.C. 552a), the agency shall attach to the SF 258 the most recent agency Privacy Act system notice covering the records.
Equipment received with the transfer of records to the National Archives will, when emptied, normally be retained by NARA or disposed of in accordance with applicable excess property regulations, unless the transferring agency requests its return.
(a) In accordance with 44 U.S.C. 2108, restrictions lawfully imposed on the use of transferred records will be observed and enforced by NARA to the extent to which they do not violate 5 U.S.C. 552. The regulations in subchapters B and C of this title, insofar as they relate to the use of records in the National Archives of the United States apply to official use of the records by Federal agencies as well as to the public.
(b) In instances of demonstrated need, and subject to any restrictions on their use, records deposited in the National Archives may be borrowed for official use outside the building in which they are housed by Federal agencies and the Congress, subject to the following conditions:
(1) Documents of high intrinsic value shall not be removed from the building in which they are housed except with the written approval of the Archivist;
(2) Records will not be loaned to enable agencies to answer routine reference inquiries from other agencies or the public;
(3) Records in fragile condition, or otherwise deteriorated to an extent that further handling will endanger them, will not be loaned;
(4) Each official who borrows records shall provide a receipt for them at the time they are delivered and shall be responsible for their prompt return upon the expiration of the loan period specified by NARA; and
(5) Each official who borrows computer magnetic tapes shall assume responsibility for proper care and handling of the tapes.
No records of a Federal agency still in existence will be disposed of by NARA except with the concurrence of the agency concerned or as authorized on Standard Form 258, Request to Transfer—Approval and Receipt of Records to National Archives of the United States.
Federal agencies are authorized to maintain and operate records centers for the storage, servicing, and disposal of their own noncurrent records when these centers are approved by the Archivist (44 U.S.C. 3103). Centers operated by Federal agencies are referred to in this subchapter B as “agency records centers.”
Inspection of agency records centers by NARA shall include an evaluation of the agency's compliance with the facility standards for records centers specified below:
(a)
(2) A floor load limit shall be established for the records storage area by a structural engineer. The allowable load limit shall be posted in a conspicuous place and shall not be exceeded.
(3) Steel shelving or other open-shelf records storage equipment shall be braced to prevent collapse under full load in accordance with Federal Specifications AS-S-271 or AA-S-1047. The records storage height shall not exceed 15 feet. Agencies operating rec-ords centers which have storage heights in excess of 15 feet may apply in writing to the NARA (NR), 8601 Adelphi Rd., College Park, MD 20740-6001, for an exemption to this requirement. If a request for exemption is denied, agencies will be required to remodel existing centers to meet the 15-foot requirement.
(4) The area occupied by the center shall be equipped with an anti-intrusion alarm system, or equivalent, to protect against unlawful entry after hours.
(b)
(2) Openings in firewalls separating records storage areas shall be avoided as far as possible but if openings are necessary they shall be protected by self-closing or automatic Class A firedoors, or equivalent, on each side of the wall openings.
(3) Roof support structures that cross or penetrate firewalls shall be cut and supported independently on each side of the firewall.
(4) If firewalls are erected with expansion joints, the joints shall be protected to their full height with No. 10 iron astragals lapping the opening on each side of the firewall.
(5) Building columns in the records storage areas shall be 2-hour fire resistant from the floor to the point where they meet the ceiling or roof framing system.
(6) Automatic roof vents shall not be designed into new or existing buildings.
(7) Where lightweight steel roof or floor supporting members (e.g., bar joists having top chords with angles 2 by 1
(8) Furnace or boiler rooms shall be separated from records storage areas by 4-hour-rated firewalls, with no openings directly from these rooms to the records storage areas. No open flame (oil or gas) equipment or unit heaters shall be installed or used in any records storage area.
(9) The arrangement of the records storage equipment shall be such that there shall be no dead-end aisles. Equipment rows running perpendicular to the wall shall terminate at least 18 inches from the wall.
(10) No oil-type electrical transformers, regardless of size, except thermally protected devices included in fluorescent light ballasts, shall be installed in the records storage areas. All electrical wiring shall be in metal conduit, except that armored cable may be used where flexible connections to light fixtures are required.
(11) All records storage and adjoining areas shall be protected by automatic wetpipe sprinklers. Automatic sprinklers are specified herein because they provide the most effective fire protection for high-piled storage of paper records on open-type shelving.
Other automatic extinguishing systems or protective measures may provide an acceptable level of fire-loss risk depending upon specific conditions, such as type or importance of the records, the type and stacking height of the storage equipment used; or how the space is designed, controlled, and operated (as well as its value). Agencies may elect to use alternate standards, as appropriate to their needs, such as those issued by the National Fire Protection Association (see NFPA 13, NFPA 231, NFPA 231C, NFPA 232, and NFPA 232AM). Also, agencies may consult the Chief of the Accident and Fire Prevention Branch in the GSA regional office about these or other systems and protective measures.
(12) The sprinkler system shall be rated at 286 degrees Fahrenheit and designed to provide 0.30 gpm per square foot for the most remote 1,500 square feet of floor area with a minimum flowing pressure of 7.0 psi at the most remote sprinkler head. Installation shall be in accordance with Standard Number 13 of the National Fire Protection Association.
(13) Maximum spacing of the sprinkler heads shall be on a 10-foot grid and the positioning of the heads shall provide complete, unobstructed coverage, with a clearance of not less than 18 inches from the top of the highest stored materials.
(14) The sprinkler system shall be equipped with a water-flow alarm connected to a continuously staffed fire department or central station, with responsibility for immediate response.
(15) A manual fire alarm system shall be provided with central station service or other automatic means of notifying the municipal fire department. A manual alarm pull station shall be located adjacent to each exit. Supplemental manual alarm stations are permitted within the records storage areas.
(16) All water cutoff valves in the sprinkler system shall be equipped with automatic closure alarm connected to a continously staffed station, with responsibility for immediate response.
(17) A dependable water supply free of interruption shall be provided. This normally requires a backup supply system having sufficient pressure and capacity to meet both firehose and sprinkler requirements for 2 hours.
(18) Interior firehose stations equipped with a 1
(19) In addition to the designed sprinkler flow demand, 500 gpm shall be provided for hose stream demand. The hose stream demand shall be calculated into the system at the base of the main sprinkler riser.
(20) Fire hydrants should be located within 250 feet of each exterior entrance or other access to the records center that could be used by firefighters. All hydrants should be at least 50 feet away from the building walls and adjacent to a roadway usable by fire apparatus.
(21) Portable water-type fire extinguishers (2
(22) Catwalks may be provided in the aisles between the metal stacks in high-activity records storage areas without provision of sprinklers under the walkway. Where provided, the walking surface of the catwalks shall be of expanded metal at least 0.09-inch thickness with a 2-inch mesh length. The surface opening ratio shall be equal to or greater than that outlined in Military Specification (MIL-M-17194C) of March 8, 1955. The sprinkler water demand for protection over bays with catwalks where records are not oriented perpendicular to the aisles shall be calculated hydraulically to give 0.3 gpm per square foot for the most remote 2,000 square feet.
(23) Storage of hazardous cellulose nitrate film requires special facilities not covered by the above standards. (See NFPA 40 and NFPA 232.)
(c)
(2) Firesafety criteria for archives shall be the same as that for records centers, except that fire detection shall be incorporated into the archival storage areas in accordance with NFPA Standard 72E, and fire divisions in the archival storage areas may be reduced in size to reflect a management decision on the maximum amount of archives subject to damage or loss from fire.
No agency records center shall be established or relocated from one city to another without the prior written approval of NARA.
(a)
(1) Records staging areas containing either less than 5,000 square feet of storage space or less than 25,000 cubic feet of records each used by agencies for the temporary storage of materials before their transfer to a records center or other disposition, provided no records are held in these staging areas more than 5 years. The facility standards in § 1228.222 apply to these staging areas.
(2) Records holding areas of either less than 5,000 square feet of floor space or less than 25,000 cubic feet of holdings each used solely for the storage of noncurrent records that are not suitable for transfer to a records center or archives for economic, high security, technical servicing, or other reasons. The facility standards is § 1228.222 apply to these records areas.
(b)
(1) Proposed location of the agency records center,
(2) Space to be occupied in gross square feet,
(3) Nature and quantity of records to be stored,
(4) Total personnel to be employed, and
(5) Justification for the proposed center which shall include a comparison between the annual cost per cubic foot to store the records in the agency records centers and the cost to store the same records in a NARA Federal rec-ords center. An analysis of NARA's Federal records center space and equipment cost may be obtained from the Office of Regional Records Services (NR), NARA, 8601 Adelphi Rd., College Park, MD 20740-6001. The justification also should indicate whether the records to be stored in the agency center have high security classification, require specialized processing or high-cost indexing, or are to be used by technical agency personnel stationed at the records center.
(c)
44 U.S.C. 2907, 3302 and 3312.
This part provides standards for using micrographic technology in the creation, use, storage, inspection, retrieval, preservation, and disposition of Federal records.
As provided in 44 U.S.C. chapters 29 and 33, the Archivist of the United States is authorized to establish standards for the reproduction of records by photographic and microphotographic processes with a view to the disposal of original records; to establish uniform standards within the Government for the creation, storage, use, and disposition of processed microform records; and to establish, maintain, and operate centralized microfilming services for Federal agencies.
(a)
(b)
ANSI/NAPM IT9.1-1992, American National Standard for Imaging Media (Film)—Silver-Gelatin Type—Specifications for Stability.
ANSI IT9.2-1991, American National Standard for Imaging Media—Photographic Processed Films, Plates, and Papers—Filing Enclosures and Storage Containers.
ANSI IT9.11-1991, American National Standard for Imaging Media—Processed Safety Photographic Film—Storage.
ANSI IT2.19-1990, American National Standard for Photography—Density Measurements—Geometric Conditions for Transmission Density.
ANSI/ISO 5/3-1984, ANSI PH2.18-1985, Photography (Sensitometry)—Density Measurements—Spectral Conditions.
(c)
ANSI/AIIM MS1-1988, Recommended Practice for Alphanumeric Computer-Output Microforms—Operational Practices for Inspection and Quality Control. (FIPS 82).
ANSI/AIIM MS5-1991, Microfiche. (FIPS 54-1).
ANSI/AIIM MS14-1988, Specifications for 16mm and 35mm Roll Microfilm. (FIPS 54-1).
ANSI/AIIM MS19-1987, Recommended Practice for Identification of Microforms.
ANSI/AIIM MS23-1991, Practice for Operational Procedures/Inspection and Quality Control of First-generation, Silver Microfilm of Documents.
ANSI/AIIM MS32-1987, Microrecording of Engineering Source Documents on 35mm Microfilm.
ANSI/AIIM MS41-1988, Unitized Microfilm Carriers (Aperture, Camera, Copy, and Image Cards).
ANSI/AIIM MS43-1988, Recommended Practice for Operational Procedures/Inspection and Quality Control for Duplicate Microforms of Documents and From COM.
ANSI/AIIM MS45-1990, Recommended Practice for Inspection of Stored Silver-Gelatin Microforms for Evidence of Deterioration.
ANSI/ISO 3334-1991, ANSI/AIIM MS51-1991, Micrographics—ISO Resolution Test Chart No. 2—Description and Use.
(d)
NIST-SRM 1010a, Microcopy Resolution Test Chart (ISO Test Chart No. 2), certified June 1, 1990.
For the purpose of this part the following definitions shall apply:
(b) The process of recording microimages on film; or
(c) A fine-grain, high resolution photographic film containing an image greatly reduced in size from the original.
The head of each Federal agency must ensure that the management of microform records incorporates the following elements:
(a) Assigning responsibility to develop and implement an agencywide program for managing all records on microform media and notifying the National Archives and Records Administration (NWM), 8601 Adelphi Rd., College Park, MD 20740-6001 of the name and title of the person assigned the responsibility.
(b) Integrating the management of microform records with other records and information resources management programs of the agency.
(c) Incorporating microform records management objectives, responsibilities, and authorities in pertinent agency directives and disseminating them throughout the agency as appropriate.
(d) Establishing procedures for addressing records management concerns, including recordkeeping and disposition requirements, before approving new microform records systems or enhancements to existing systems.
(e) Ensuring that adequate training is provided for the managers and users of microform records.
(f) Developing and securing NARA approval of records schedules covering microform records, and ensuring proper implementation of the schedule provisions.
(g) Ensuring that computerized indexes associated with microform records, such as in a computer-assisted retrieval (CAR) system, are scheduled in accordance with part 1234 of this chapter.
(h) Reviewing the agency's program periodically to ensure compliance with NARA standards in this part for the creation, storage, use, inspection, and disposition of microform records.
(a)
(1) Agencies using microfilming methods and procedures meeting the standards in § 1230.14 shall include on the SF 115 the following certification: “This certifies that the records described on this form were (or will be) microfilmed in accordance with the standards set forth in 36 CFR part 1230.”
(2) Agencies using microfilming methods, materials and procedures that do not meet the standards in § 1230.14(a) shall include on the SF 115 a description of the system and standards used.
(3) Agencies proposing to retain and store the silver original microforms of permanent records after disposal of the original records shall include on the SF 115 a statement that the agency's storage conditions shall comply with the standards of § 1230.20 and that the inspections required by § 1230.22 will be performed.
(b)
(a) The integrity of the original records authorized for disposal shall be maintained by ensuring that the microforms are adequate substitutes for the original records and serve the purpose for which such records were created or maintained. Copies shall be complete and contain all information shown on the originals.
(b) The records shall be arranged, identified, and indexed so that any particular document or component of the records can be located. Each microform roll or fiche shall include accurate titling information on a titling target or header. At a minimum, titling information shall include the name of the agency and organization; the title of the records; the number or identifier for each unit of film; the security classification, if any; and the inclusive dates, names, or other data identifying the records to be included on a unit of film. For fiche, complete titling information may be placed as a microimage in frame 1 if the information will not fit on the header.
(c) Each microform shall contain an identification target showing the date of filming. When necessary to give the film copy better legal standing, the target shall also identify the person authorizing the microfilming. See ANSI/AIIM MS19-1987 for standards for identification targets.
(d) The following formats are mandatory standards for microforms.
(1)
(ii)
(2)
(e)
(2)
(a)
(b)
(c)
(d)
(ii)
(2)
Recommended visual diffuse transmission densities for computer generated images are as follows:
(3)
(4)
(a)
(b)
(a)
(b)
(a)
(1) Master films of permanent records microfilmed in order to dispose of the original records, master films of permanent records originally created on microfilm, and other master films scheduled for transfer to the National Archives, must be inspected by the agency creating the film when the films are 2 years old and, until they are transferred to a Federal records center or to the National Archives, every 2 years thereafter. The inspection must be made in accordance with ANSI/AIIM MS45-1990.
(2) Microforms cannot be accepted for deposit with the National Archives of the United States until the first inspection (occurring after the microforms are 2 years old) has been performed. Permanent microforms may be transferred to a Federal records center only after the agency has performed the first inspection or has certified that the microforms will be inspected by the agency, an agency contractor, or the Federal records center (on a reimbursable basis) when they become 2 years old.
(3) To facilitate inspection, an inventory of microfilm must be maintained, listing each microform series/publication by production date, producer, processor, format, and results of previous inspections.
(4) The elements of the inspection shall consist of:
(i) An inspection for aging blemishes following ANSI/AIIM MS45-1990;
(ii) A rereading of resolution targets;
(iii) A remeasurement of density; and
(iv) A certification of the environmental conditions under which the microforms are stored, as specified in § 1230.20(a).
(5) An inspection report must be prepared, and a copy must be furnished to NARA in accordance with § 1230.26(b). The inspection report must contain:
(i) A summary of the inspection findings, including:
(A) A list of batches by year that includes the identification numbers of microfilm rolls and microfiche in each batch;
(B) The quantity of microforms inspected;
(C) An assessment of the overall condition of the microforms;
(D) A summary of any defects discovered, e.g., redox blemishes or base deformation; and
(E) A summary of corrective action taken.
(ii) A detailed inspection log created during the inspection that contains the following information:
(A) A complete description of all records inspected (title; roll or fiche number or other unique identifier for each unit of film inspected; security classification, if any; and inclusive dates, names, or other data identifying the records on the unit of film);
(B) The date of inspection;
(C) The elements of inspection (see subparagraph (a)(4) of this section);
(D) Any defects uncovered; and
(E) The corrective action taken.
(6) An agency having in its custody a master microform that is deteriorating, as shown by the inspection, shall prepare a silver duplicate in accordance with § 1230.14 to replace the deteriorating master. The duplicate film will be subject to the 2-year inspection requirement before transfer to a Federal Record Center or to the National Archives.
(7) Inspection must be performed in an environmentally controlled area in accordance with ANSI/AIIM MS45-1990.
(b)
(a) The silver gelatin original microform or duplicate silver gelatin microform created in accordance with § 1230.14 of this part (archival microform) must not be used for reference purposes. Duplicates must be used for reference and for further duplication on a recurring basis or for large-scale duplication, as well as for distribution of records on microform. Agency procedures must ensure that the archival microform remains clean and undamaged during the process of making a duplicating master.
(b) Agencies retaining the original record in accordance with an approved
The disposition of microform records shall be carried out in the same manner prescribed for other types of records in part 1228 of this chapter with the following additional requirements:
(a) The silver gelatin original (or duplicate silver gelatin microform created in accordance with § 1230.14) plus one microform copy of each permanent record microfilmed by an agency, must be transferred to an approved agency records center, the National Archives of the United States, or to a Federal records center, at the time that the records are to be transferred in accordance with the approved records disposition schedule, SF 258, or other authorization for transfer. Non-silver copies must be packaged separately from the silver gelatin original or silver duplicate microform copy and labeled clearly as non-silver copies.
(b) The microforms shall be accompanied by:
(1) Information identifying the agency and organization; the title of the records; the number or identifier for each unit of film; the security classification, if any; the inclusive dates, names, or other data identifying the records to be included on a unit of film;
(2) Any finding aids relevant to the microform that are not contained in the microform; and
(3) The inspection log forms and inspection reports required by § 1230.22(a) (5) and (6).
(c) The information required in this paragraph (b) shall be attached to the SF 135 when records are being transferred to a Federal records center and to the SF 258 when records are being transferred to the legal custody of the National Archives.
NARA provides reimbursable microfilming services at many of its Federal records centers, including the preparation, indexing, and filming of records, inspection of film, and labeling of film containers. Agencies desiring microfilming services should contact the Office of Regional Records Services (NR), 8601 Adelphi Rd., College Park, MD 20740-6001, or the director of the Federal records center serving the agency's records (see § 1228.150 of this chapter).
The fees for microfilming services will be announced in NARA bulletins. For microfilming services not listed, contact the office shown in § 1230.50.
44 U.S.C. 2904 and 3101; and OMB Circular A-130.
This part prescribes policies and procedures for managing audiovisual records to ensure adequate and proper documentation and authorized, timely, and appropriate disposition.
The objectives of audiovisual records management are to achieve the effective creation, maintenance, use, and disposition of audiovisual and related records by establishing standards for maintenance and disposition, physical security, and preservation and by reviewing recordkeeping practices on a continuing basis to improve procedures.
For the purposes of this part, the following definitions shall apply (see also § 1220.14 of this chapter for other definitions).
Each Federal agency, in providing for effective controls over the creation of records, shall establish an appropriate program for the management of audiovisual records. This program shall be governed by the following requirements:
(a) Prescribe the types of records to be created and maintained so that audiovisual activities and their products are properly documented. (Regulations on the appropriate types of permanent audiovisual records are located in § 1228.184 of this chapter.)
(b) Ensure that adequate training is provided to:
(1) Agency personnel responsible for the disposition of audiovisual records;
(2) Contractor personnel who have temporary custody of audiovisual records; and,
(3) All users who create, handle, or maintain audiovisual records or operate equipment for their use.
(c) Ensure that contract provisions protect the Government's legal title and control over audiovisual records and related documentation produced or maintained by contract. Ensure that contract provisions identify as deliverables any working papers/files that are needed for adequate and proper documentation. Include a provision that permits the Government to inspect contractor facilities used for the storage and handling of permanent or unscheduled audiovisual records. Agencies shall inspect such facilities at least once each year.
(d) Keep inventories indicating the location of all generations of audiovisual records, whether in agency storage or in another facility such as a laboratory or library distribution center.
(e) Schedule disposition of all audiovisual records as soon as practicable after creation. General Records Schedule 21 provides mandatory disposal authorization for temporary audiovisual records common to most Federal offices. Agencies must submit an SF 115,
(f) Periodically review agency audiovisual recordkeeping practices for conformance with requirements and take necessary corrective action.
Nitrocellulose-base film once used in the manufacture of sheet film and motion pictures may be occasionally found in records storage areas. The nitrocellulose base, a substance akin to gun cotton, is chemically unstable and highly inflammable.
(a) Agencies must remove nitrocellulose film materials from records storage areas.
(b) Agencies must immediately notify NARA about the existence of nitrocellulose film materials because of their age and instability. NARA will determine if they may be destroyed or destroyed after a copy is made for transfer, as appropriate.
(c) If NARA appraises nitrate film materials as disposable, but the agency wishes to retain them, agencies must follow the guidance in NFPA 40-1994, Standard for the Storage and Handling of Cellulose Nitrate Motion Picture Film, which is incorporated by reference. NFPA 40-1994 is available from the National Fire Protection Association, Batterymarch Park, Quincy, MA 02269. This standard is also available for inspection at the Office of the Federal Register, 800 North Capitol Street, NW., suite 700, Washington, D.C. This incorporation by reference was approved by the Director of the Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. These materials are incorporated by reference as they exist on the date of approval and a notice of any change in these materials will be published in the
(d) The packing and shipping of nitrate film are governed by the following Department of Transportation regulations: 49 CFR 172.101, Hazardous materials table; 172.504, Transportation; 173.24, Standard requirements for all packages; and 173.177, Motion picture film and X- ray film—nitrocellulose base.
Cellulose-acetate film, also known as safety film, is nonflammable and does not represent the same degree of hazard as nitrate film materials. Nonetheless, cellulose-acetate film also deteriorates over time. Temperature, humidity, harmful storage enclosures, and gaseous products influence the rate of deterioration. Agencies shall inspect cellulose-acetate film periodically for an acetic odor, wrinkling, or the presence of crystalline deposits on the edge or surface of the film that indicate deterioration. Agencies shall notify NARA within 30 days after inspection about deteriorating permanent or unscheduled audiovisual records composed of cellulose acetate so that they can be copied.
Agencies must:
(a) Provide audiovisual records storage facilities that are secure from unauthorized access and make them safe from fire, water, flood, chemical or gas damage and from other harmful conditions. See NFPA 232A-1995, Guide for Fire Protection for Archives and Records Centers issued by the National Fire Protection Association, which is incorporated by reference. The standard is available from the National Fire Protection Association, Batterymarch Park, Quincy, MA 02269. This standard is also available for inspection at the Office of the Federal Register, 800 North Capitol Street, NW., suite 700, Washington, D.C. This incorporation by reference was approved by the Director of the Federal Register in accordance with 5 U.S.C. 552(a) and 1CFR part 51. These materials are incorporated by reference as they exist on the date of approval and a notice of any change in these materials will be published in the
(b) Maintain good ambient storage conditions for permanent or unscheduled audiovisual records. Generally, the temperature should not exceed 70
(c) For the storage of permanent or unscheduled records, use audiovisual storage containers or enclosures made of noncorroding metal, inert plastics, paper products and other safe materials recommended and specified in ANSI standards: ANSI/NAPM IT9.11-1993, Imaging Media—Processed Safety Photographic Films—Storage; and ANSI IT9.2-1991, Imaging Media—Photographic Processed Films, Plates, and Papers—Filing Enclosures and Storage Containers. These standards, which are incorporated by reference, are available from the American National Standards Institute (ANSI), Inc., 11 West 42nd Street, New York, NY 10036. These standards are also available for inspection at the Office of the Federal Register, 800 North Capitol Street, NW., suite 700, Washington, D.C. This incorporation by reference was approved by the Director of the Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. These materials are incorporated by reference as they exist on the date of approval and a notice of any change in these materials will be published in the
(d) Store originals and use copies (e.g., negatives and prints) separately, whenever practicable.
(e) Store series of permanent and unscheduled x-ray films in accordance with this section, and store series of temporary x-ray films under conditions that will ensure their preservation for their full retention period, in accordance with ANSI/NAPM IT9.11-1993, Imaging Media—Processed Safety Photographic Films—Storage. This requirement does not apply to x-rays that are interspersed among paper records, as in case files.
Agencies must:
(a) Handle audiovisual records in accordance with commonly accepted industry practices because of their extreme vulnerability to damage. For further information, consult the American National Standards Institute (ANSI), Inc., 11 West 42nd Street, New York, NY 10036; and the Society of Motion Picture and Television Engineers, 595 West Hartsdale Avenue, White Plains, NY 10607.
(b) Use only personnel trained to perform their audiovisual duties and responsibilities and ensure that equipment intended for projection or playback is in good working order.
(c) Loan permanent or unscheduled audiovisual records to non-Federal recipients only in conformance with the provisions of part 1228 subpart E of this chapter. Such records may be loaned to other Federal agencies only if a record copy is maintained in the agency's custody.
(d) Take all steps necessary to prevent accidental or deliberate alteration or erasure of audiovisual records.
(e) Ensure that no information recorded on permanent or unscheduled magnetic sound or video media is erased.
(f) If different versions of audiovisual productions (e.g., short and long versions or foreign-language versions) are prepared, keep an unaltered copy of each version for record purposes.
(g) Maintain the association between audiovisual records and the finding aids for them, such as captions and published and unpublished catalogs, and production files and similar documentation created in the course of audiovisual production.
(h) Maintain disposable audiovisual records separate from permanent ones in accordance with General Records Schedule 21 and a records schedule approved by NARA for the agency's other audiovisual records.
Agencies must:
(a) When ordering photographic materials for permanent or unscheduled records, ensure that still picture negatives and motion picture preprints (negatives, masters, etc.) are composed of polyester bases and are processed in accordance with industry standards as specified in ANSI/ISO 543-1990 (ANSI IT9.6-1991) Photography—Photographic Films—Specifications for Safety Film; and, ANSI/NAPM IT9.1-1992 Imaging Media (Film)—Silver-Gelatin Type—Specifications for Stability, which are incorporated by reference. (Currently, not all motion picture stocks are available on a polyester base.) It is particularly important to ensure that residual sodium thiosulfate (hypo) on newly processed black-and-white photographic film does not exceed .014 grams per square meter. Require laboratories to process film in accordance with this standard. Excessive hypo will shorten the longevity of film and accelerate color fading. Process color film in accordance with the manufacturer's recommendations. If using reversal type processing, request full photographic reversal; i.e., develop, bleach, expose, develop, fix, and wash. The standards cited in this paragraph are available from the American National Standards Institute (ANSI), Inc., 11 West 42nd Street, New York, NY 10036. These standards are also available for inspection at the Office of the Federal Register, 800 North Capitol Street, NW., suite 700, Washington, D.C. This incorporation by reference was approved by the Director of the Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. These materials are incorporated by reference as they exist on the date of approval and a notice of any change in these materials be published in the
(b) Refrain from using motion pictures in a final “A & B” format (two precisely matched reels designed to be printed together) for the reproduction of excerpts or stock footage.
(c) Use only industrial or professional recording equipment and videotape, previously unrecorded, for original copies of permanent or unscheduled recordings. Limit the use of consumer formats to distribution or reference copies or to subjects scheduled for disposal. Video cassettes in the VHS format are unsuitable for use as originals of permanent or unscheduled records due to their inability to be copied without significant loss in image quality.
(d) Record permanent or unscheduled audio recordings on
The disposition of audiovisual records shall be carried out in the same manner as that prescribed for other types of records in part 1228 of this chapter. For further instructions on the transfer of permanent audiovisual records to the National Archives see § 1228.184 of this chapter, Audiovisual Records.
44 U.S.C. 2904, 3101, 3102, and 3105.
This part establishes the basic requirements related to the creation, maintenance, use, and disposition of electronic records. Electronic records include numeric, graphic, and text information, which may be recorded on any medium capable of being read by a computer and which satisfies the definition of a record. This includes, but is not limited to, magnetic media, such as tapes and disks, and optical disks. Unless otherwise noted, these requirements apply to all electronic information systems, whether on microcomputers, minicomputers, or main-frame computers, regardless of storage media, in network or stand-alone configurations. This part also covers creation, maintenance and use, and disposition of Federal records created by individuals using electronic mail applications.
Basic records management terms are defined in 36 CFR 1220.14. As used in part 1234—
(1)
(2)
The head of each Federal agency shall ensure that the management of electronic records incorporates the following elements:
(a) Assigning responsibility to develop and implement an agencywide program for the management of all records created, received, maintained, used, or stored on electronic media; and notifying the National Archives and Records Administration, Modern Records Programs (NWM), 8601 Adelphi Rd., College Park, MD 20740-6001 and the General Services Administration, Regulations Branch (KMPR), Washington, DC 20405, of the name and title of the person assigned the responsibility.
(b) Integrating the management of electronic records with other records
(c) Incorporating electronic records management objectives, responsibilities, and authorities in pertinent agency directives and disseminating them throughout the agency as appropriate.
(d) Establishing procedures for addressing records management requirements, including recordkeeping requirements and disposition, before approving new electronic information system or enhancements to existing systems.
(e) Ensuring that adequate training is provided for users of electronic mail systems on recordkeeping requirements, the distinction between Federal records and nonrecord materials, procedures for designating Federal records, and moving or copying records for inclusion in an agency recordkeeping system;
(f) Ensuring that adequate training is provided for users of electronic information system in the operation, care, and handling of the equipment, software, and media used in the system.
(g) Developing and maintaining up-to-date documentation about all electronic information system that is adequate to: Specify all technical characteristics necessary for reading or processing the records; identify all defined inputs and outputs of the system; define the contents of the files and records; determine restrictions on access and use; understand the purpose(s) and function(s) of the system; describe update cycles or conditions and rules for adding information to the system, changing information in it, or deleting information; and ensure the timely, authorized disposition of the records.
(h) Specifying the location, manner, and media in which electronic records will be maintained to meet operational and archival requirements, and maintaining inventories of electronic information system to facilitate disposition.
(i) Developing and securing NARA approval of records disposition schedules, and ensuring implementation of their provisions.
(j) Specifying the methods of implementing controls over national security-classified, sensitive, proprietary, and Privacy Act records stored and used electronically.
(k) Establishing procedures to ensure that the requirements of this part are applied to those electronic records that are created or maintained by contractors.
(l) Ensuring compliance with applicable Governmentwide policies, procedures, and standards such as those issued by the Office of Management and Budget, the General Accounting Office, the General Services Administration, the National Archives and Records Administration, and the National Institute of Standards and Technology.
(m) Reviewing electronic information system periodically for conformance to established agency procedures, standards, and policies as part of the periodic reviews required by 44 U.S.C. 3506. The review should determine if the records have been properly identified and described, and whether the schedule descriptions and retention periods reflect the current informational content and use. If not, or if substantive changes have been made in the structure, design, codes, purposes, or uses of the system, submit an SF 115, Request for Records Disposition Authority, to NARA.
(a) For electronic information systems that produce, use, or store data files, disposition instructions for the data shall be incorporated into the system's design.
(b) Agencies shall maintain adequate and up-to-date technical documentation for each electronic information system that produces, uses, or stores data files. Minimum documentation required is a narrative description of the system; physical and technical characteristics of the records, including a record layout that describes each field
(a) Electronic recordkeeping systems that maintain the official file copy of text documents on elecronic media shall meet the following minimum requirements:
(1) Provide a method for all authorized users of the system to retrieve desired documents, such as an indexing or text search system;
(2) Provide an appropriate level of security to ensure integrity of the documents;
(3) Provide a standard interchange format when necessary to permit the exchange of documents on electronic media between agency computers using different software/operating systems and the conversion or migration of documents on electronic media from one system to another; and
(4) Provide for the disposition of the documents including, when necessary, the requirements for transferring permanent records to NARA (see § 1228.188 of this chapter).
(b) Before a document is created electronically on electronic recordkeeping systems that will maintain the official file copy on electronic media, each document shall be identified sufficiently to enable authorized personnel to retrieve, protect, and carry out the disposition of documents in the system. Appropriate identifying information for each document maintained on the electronic media may include: office of origin, file code, key words for retrieval, addressee (if any), signator, author, date, authorized disposition (coded or otherwise), and security classification (if applicable). Agencies shall ensure that records maintained in such systems can be correlated with related records on paper, microform, or other media.
Agencies shall manage records created or received on electronic mail systems in accordance with the provisions of this chapter pertaining to adequacy of documentation, recordkeeping requirements, agency records management responsibilities, and records disposition (36 CFR parts 1220, 1222, and 1228).
(a) Agency instructions on identifying and preserving electronic mail messages will address the following unique aspects of electronic mail:
(1) Some transmission data (names of sender and addressee(s) and date the message was sent) must be preserved for each electronic mail record in order for the context of the message to be understood. Agencies shall determine if any other transmission data is needed for purposes of context.
(2) Agencies that use an electronic mail system that identifies users by codes or nicknames or identifies addressees only by the name of a distribution list shall instruct staff on how to retain names on directories or distributions lists to ensure identification of the sender and addressee(s) of messages that are records.
(3) Agencies that use an electronic mail system that allows users to request acknowledgments or receipts showing that a message reached the mailbox or inbox of each addressee, or that an addressee opened the message, shall issue instructions to e-mail users specifying when to request such receipts or acknowledgments for recordkeeping purposes and how to preserve them.
(4) Agencies with access to external electronic mail systems shall ensure that Federal records sent or received on these systems are preserved in the appropriate recordkeeping system and that reasonable steps are taken to capture available transmission and receipt data needed by the agency for recordkeeping purposes.
(5) Some e-mail systems provide calendars and task lists for users. These may meet the definition of Federal record. Calendars that meet the definition of Federal records are to be managed in accordance with the provisions of General Records Schedule 23, Item 5.
(6) Draft documents that are circulated on electronic mail systems may be records if they meet the criteria specified in 36 CFR 1222.34.
(b) Agencies shall consider the following criteria when developing procedures for the maintenance of electronic mail records in appropriate recordkeeping systems, regardless of format.
(1) Recordkeeping systems that include electronic mail messages must:
(i) Provide for the grouping of related records into classifications according to the nature of the business purposes the records serve;
(ii) Permit easy and timely retrieval of both individual records and files or other groupings of related records;
(iii) Retain the records in a usable format for their required retention period as specified by a NARA-approved records schedule;
(iv) Be accessible by individuals who have a business need for information in the system;
(v) Preserve the transmission and receipt data specified in agency instructions; and
(vi) Permit transfer of permanent records to the National Archives and Records Administration (see 36 CFR 1228.188 and 36 CFR 1234.32(a)).
(2) Agencies shall not store the recordkeeping copy of electronic mail messages that are Federal records only on the electronic mail system, unless the system has all of the features specified in paragraph (b)(1) of this section. If the electronic mail system is not designed to be a recordkeeping system, agencies shall instruct staff on how to copy Federal records from the electronic mail system to a recordkeeping system.
(c) Agencies that maintain their electronic mail records electronically shall move or copy them to a separate electronic recordkeeping system unless their system has the features specified in paragraph (b)(1) of this section. Because they do not have the features specified in paragraph (b)(1) of this section, backup tapes should not be used for recordkeeping purposes. Agencies may retain records from electronic mail systems in an off-line electronic storage format (such as optical disk or magnetic tape) that meets the requirements described at 36 CFR 1234.30(a). Agencies that retain permanent electronic mail records scheduled for transfer to the National Archives shall either store them in a format and on a medium that conforms to the requirements concerning transfer at 36 CFR 1228.188 or shall maintain the ability to convert the records to the required format and medium at the time transfer is scheduled.
(d) Agencies that maintain paper files as their recordkeeping systems shall print their electronic mail records and the related transmission and receipt data specified by the agency.
Electronic records may be admitted in evidence to Federal courts for use in court proceedings (Federal Rules of Evidence 803(8)) if trustworthiness is established by thoroughly documenting the recordkeeping system's operation and the controls imposed upon it. Agencies should implement the following procedures to enhance the legal admissibility of electronic records.
(a) Document that similar kinds of records generated and stored electronically are created by the same processes each time and have a standardized retrieval approach.
(b) Substantiate that security procedures prevent unauthorized addition, modification or deletion of a record and ensure system protection against such problems as power interruptions.
(c) Identify the electronic media on which records are stored throughout their life cycle, the maximum time span that records remain on each storage medium, and the NARA-approved disposition of all records.
(d) Coordinate all of the above with legal counsel and senior IRM and records management staff.
Agencies shall implement and maintain an effective records security program that incorporates the following:
(a) Ensures that only authorized personnel have access to electronic records.
(b) Provides for backup and recovery of records to protect against information loss.
(c) Ensures that appropriate agency personnel are trained to safeguard sensitive or classified electronic records.
(d) Minimizes the risk of unauthorized alteration or erasure of electronic records.
(e) Ensures that electronic records security is included in computer systems security plans prepared pursuant to the Computer Security Act of 1987 (40 U.S.C. 759
(a) Agencies shall select appropriate media and systems for storing agency records throughout their life, which meet the following requirements:
(1) Permit easy retrieval in a timely fashion;
(2) Facilitate distinction between record and nonrecord material;
(3) Retain the records in a usable format until their authorized disposition date; and
(4) If the media contains permanent records and does not meet the requirements for transferring permanent records to NARA as outlined in § 1228.188 of this chapter, permit the migration of the permanent records at the time of transfer to a medium which does meet the requirements.
(b) The following factors shall be considered before selecting a storage medium or converting from one medium to another:
(1) The authorized life of the records, as determined during the scheduling process;
(2) The maintenance necessary to retain the records;
(3) The cost of storing and retrieving the records;
(4) The records density;
(5) The access time to retrieve stored records;
(6) The portability of the medium (that is, selecting a medium that will run on equipment offered by multiple manufacturers) and the ability to transfer the information from one medium to another (such as from optical disk to magnetic tape); and
(7) Whether the medium meets current applicable Federal Information Processing Standards.
(c) Agencies should avoid the use of floppy disks for the exclusive long-term storage of permanent or unscheduled electronic records.
(d) Agencies shall ensure that all authorized users can identify and retrieve information stored on diskettes, removable disks, or tapes by establishing or adopting procedures for external labeling.
(e) Agencies shall ensure that information is not lost because of changing technology or deterioration by converting storage media to provide compatibility with the agency's current hardware and software. Before conversion to a different medium, agencies must determine that the authorized disposition of the electronic records can be implemented after conversion.
(f) Agencies shall back up electronic records on a regular basis to safeguard against the loss of information due to equipment malfunctions or human error. Duplicate copies of permanent or unscheduled records shall be maintained in storage areas separate from the location of the records that have been copied.
(g)
(2) Agencies shall maintain the storage and test areas for computer magnetic tapes containing permanent and unscheduled records at the following temperatures and relative humidities:
(3) Agencies shall rewind under controlled tension all tapes containing unscheduled and permanent records every 3
(4) Agencies shall annually read a statistical sample of all reels of magnetic computer tape containing permanent and unscheduled records to identify any loss of data and to discover and correct the causes of data loss. In tape libraries with 1800 or fewer reels, a 20% sample or a sample size of 50 reels, whichever is larger, should be read. In tape libraries with more than 1800 reels, a sample of 384 reels should be read. Tapes with 10 or more errors should be replaced and, when possible, lost data shall be restored. All other tapes which might have been affected by the same cause (i.e., poor quality tape, high usage, poor environment, improper handling) shall be read and corrected as appropriate.
(5) Agencies shall copy permanent or unscheduled data on magnetic tapes before the tapes are 10 years old onto tested and verified new tapes.
(6) External labels (or the equivalent automated tape management system) for magnetic tapes used to store permanent or unscheduled electronic records shall provide unique identification for each reel, including the name of the organizational unit responsible for the data, system title, and security classification, if applicable. Additionally, the following information shall be maintained for (but not necessarily attached to) each reel used to store permanent or unscheduled electronic records: file title(s); dates of creation; dates of coverage; the recording density; type of internal labels; volume serial number, if applicable; number of tracks; character code/software dependency; information about block size; and reel sequence number, if the file is part of a multi-reel set. For numeric data files, include record format and logical record length, if applicable; data set name(s) and sequence, if applicable; and number of records for each data set.
(7) Agencies shall prohibit smoking and eating in magnetic computer tape storage libraries and test or evaluation areas that contain permanent or unscheduled records.
(h)
(2) External labels for diskettes or removable disks used when processing or temporarily storing permanent or unscheduled records shall include the following information: name of the organizational unit responsible for the records, descriptive title of the contents, dates of creation, security classification, if applicable, and identification of the software and hardware used.
Agencies shall establish policies and procedures to ensure that electronic records and their documentation are retained as long as needed by the Government. These retention procedures shall include provisions for:
(a) Scheduling the disposition of all electronic records, as well as related documentation and indexes, by applying General Records Schedules (particularly GRS 20 or GRS 23) as appropriate or submitting an SF 115, Request for Records Disposition Authority, to NARA (see part 1228 of this chapter). The information in electronic information systems, including those operated for the Government by a contractor, shall be scheduled as soon as possible but no later than one year after implementation of the system.
(b) Transferring a copy of the electronic records and any related documentation and indexes to the National Archives at the time specified in the records disposition schedule in accordance with instructions found in § 1228.188 of this chapter. Transfer may take place at an earlier date if convenient for both the agency and the National Archives and Records Administration.
(c) Establishing procedures for regular recopying, reformatting, and other necessary maintenance to ensure the retention and usability of electronic records throughout their authorized life cycle (see § 1234.28).
(d) Electronic mail records may not be deleted or otherwise disposed of without prior disposition authority from NARA (44 U.S.C. 3303a). This applies to the original version of the record that is sent or received on the electronic mail system and any copies that have been transferred to a recordkeeping system. See 36 CFR part 1228 for records disposition requirements.
(1)
(2)
Electronic records may be destroyed only in accordance with a records disposition schedule approved by the Archivist of the United States, including General Records Schedules. At a minimum each agency shall ensure that:
(a) Electronic records scheduled for destruction are disposed of in a manner that ensures protection of any sensitive, proprietary, or national security information.
(b) Magnetic recording media previously used for electronic records containing sensitive, proprietary, or national security information are not reused if the previously recorded information can be compromised by reuse in any way.
(c) Agencies shall establish and implement procedures that specifically address the destruction of electronic records generated by individuals employing electronic mail.
44 U.S.C. 2104(a), 2904(a), 3101; E. O. 12656, 53 FR 47491, 3 CFR, 1988 Comp., p. 585.
This part prescribes policies and procedures for establishing a program for the identification and protection of vital records, those records needed by agencies for continuity of operations before, during, and after emergencies, and those records needed to protect the legal and financial rights of the Government and persons affected by Government activities. The records may be maintained on a variety of media including paper, magnetic tape or disk, photographic film, and microfilm. The management of vital records is part of an agency's continuity of operations plan designed to meet emergency management responsibilities.
Heads of agencies are responsible for the vital records program under the following authorities:
(a) To make and preserve records containing adequate and proper documentation of the agency's organization, functions, policies, procedures, decisions, and essential transactions,
(b) To perform national security emergency preparedness functions and activities (Executive Order 12656).
Basic records management terms are defined in 36 CFR 1220.14. As used in part 1236:
The vital records program is conducted to identify and protect those records that specify how an agency will
(a) Specify agency staff responsibilities;
(b) Ensure that all concerned staff are appropriately informed about vital records;
(c) Ensure that the designation of vital records is current and complete; and
(d) Ensure that vital records and copies of vital records are adequately protected, accessible, and immediately usable.
Vital records include emergency plans and related records that specify how an agency is to respond to an emergency as well as those records that would be needed to continue operations and protect legal and financial rights. Agencies should consider the informational content of records series and electronic records systems when identifying vital records. Only the most recent and complete source of the vital information needs to be treated as vital records.
Agencies shall ensure that retrieval procedures for vital records require only routine effort to locate needed information, especially since individuals unfamiliar with the records may need to use them during an emergency or disaster. Agencies also shall ensure that all equipment needed to read vital records or copies of vital records will be available in case of emergency or disaster. For electronic records systems, agencies also shall ensure that system documentation adequate to operate the system and access the records will be available in case of emergency or disaster.
Agencies shall take appropriate measures to ensure the survival of the vital records or copies of vital records in case of emergency or disaster. In the case of electronic records, this requirement is met if the information needed in the event of emergency or disaster is available in a copy made for general security purposes, even when the copy contains other information.
(a)
(b)
(c)
(1) Under certain circumstances, Federal records centers (FRC's) may store copies of emergency operating vital records. FRC's will store small volumes of such records, but may not be able to provide storage for large collections or ones requiring constant recycling of the vital records, except under reimbursable agreement. Prior to preparing the records for shipment, the agency must contact the FRC to determine if the center can accommodate the storage requirements and return copies in an acceptable period of time.
(2) The off-site copy of legal and financial rights vital records may be stored at an off-site agency location or, in accordance with § 1228.156 of this chapter, at an FRC.
(3) When using an FRC for storing vital records that are duplicate copies of original records, the agency must specify on the SF 135, Records Transmittal and Receipt, that they are vital records (duplicate copies) and the medium on which they are maintained. The agency shall also periodically cycle (update) them by removing obsolete items and replacing them with the most recent version, when necessary.
(4) Agencies that transfer permanent, original vital records maintained on electronic or microform media to the custody of the National Archives may designate such records as their off-site copy. That designation may remain in effect until the information in such transferred records is superseded or becomes obsolete.
The disposition of original vital records is governed by records schedules approved by NARA (see part 1228, Disposition of Federal Records). Original records that are not scheduled may not be destroyed or deleted.
44 U.S.C. 2904 and 3101.
The National Archives and Records Administration publishes handbooks, conducts workshops and other training sessions, and furnishes information and guidance to Federal agencies about the creation of records, their maintenance and use, and their disposition.
Agencies desiring information or assistance related to any of the areas covered by subchapter B should contact the NARA Life Cycle Management Division (NWML), 8601 Adelphi Rd., College Park, MD 20740-6001. Agency field organizations may contact the appropriate Regional Administrator regarding records in or scheduled for transfer to the records center and/or the archival operations within the region.
44 U.S.C. 2104(a); 5 U.S.C. 552; E.O. 12600, 52 FR 23781, 3 CFR, 1987 Comp., p. 235.
This part sets forth policies and procedures concerning the availability to the public of all records and informational materials generated, developed, or held by NARA with respect to:
(a) NARA organization and functions and regulations of general applicability;
(b) NARA final orders and staff manuals; and
(c) Operational and other appropriate agency records.
This part implements the provisions of the Freedom of Information Act (“FOIA”), 5 U.S.C. 552, as amended. This part prescribes procedures by which the public may inspect and obtain copies of NARA records under FOIA.
NARA administrative records are available to the greatest extent possible in keeping with the spirit and intent of the FOIA. Requesters should
NARA may deny a request for a NARA record if the record falls within an exemption of FOIA as outlined in subpart E of this part. Except when a record is classified or when disclosure would violate any Federal law, the authority to withhold a record is permissive rather than mandatory. NARA will not withhold a record unless there is a compelling reason to do so. In the absence of a compelling reason, NARA will disclose a record although it otherwise is subject to exemption.
(a)
(b)
In accordance with 5 U.S.C. 552(a)(1), NARA publishes in the
(a) A description of its central and field organization and the established places at which, the employees from whom, and the methods whereby the public may obtain information, make submittals or requests, or obtain decisions;
(b) Statements of the general courses and methods by which functions are channeled and determined, including the nature and requirements of all formal and informal procedures available;
(c) Rules of procedure, descriptions of forms available or the places where forms may be obtained, and instructions on the scope and content of all papers, reports, and examinations;
(d) Substantive rules of general applicability adopted as authorized by law and statements of general policy or interpretations of general applicability formulated and adopted by NARA;
(e) Each amendment, revision, or repeal of the materials described in this section.
NARA makes available for public inspection and copying the materials described in paragraph (a)(2) of the FOIA (5 U.S.C. 552(a)(2)), which are listed in § 1250.32, and an Index of those materials as described in § 1250.34, at the National Archives Building located at 7th and Pennsylvania Avenue, NW., Washington, DC. Copying services are available at fees specified in § 1250.40.
NARA materials available under this subpart C are as follows:
(a) NARA orders;
(b) Written statements of NARA policy that are not published in the
(c) Administrative staff manuals and instructions to staff affecting a member of the public unless these materials are promptly published and copies offered for sale.
NARA will maintain and make available for public inspection and copying current indexes regarding any matter issued, adopted, or promulgated after July 4, 1967, and described in § 1250.32. NARA will publish quarterly and make available copies of each index or supplement thereto. The index will be maintained for public inspection by the Office of Management and Administration, National Archives (NA), Washington, DC 20408. The public may write to the Policy and Program Analysis Division, National Archives (NAA), Washington, DC 20408, to request a copy of the index.
NARA will make records not subject to exemption available at the NARA facility where the records are located during normal working hours (see part 1253 of this chapter), or at an alternative NARA facility as mutually agreed upon by NARA and the requester. NARA will agree to show the originals or a copy of the originals if the originals are located at another NARA facility, make one copy available at a fee, or a combination of these alternatives.
(a) The search fee is $10 per hour or fraction thereof when clerical/administrative staff manually search for records responsive to a request, and $18 per hour or fraction thereof when NARA must use professional staff to manually search for the requested records because clerical/administrative staff would be unable to locate them. The search fee for computerized searches is the wage (plus 16 percent fringe benefits) of the computer operator per hour or fraction thereof plus the actual computer operating costs.
(b) NARA may charge for search time spent in trying to locate NARA records which are responsive to the request regardless of whether or not any responsive records are identified. NARA will not engage in line-by-line search when merely duplicating an entire document is feasible and would prove to be a less expensive and quicker method of complying with the request.
(c) When the search includes nonpersonnel expenditures to locate and identify requested information (e.g., transport or travel costs, etc.), the applicable fee is the direct cost to NARA.
(d) NARA will charge for the aggregate of all time spent in searching for documents responsive to a series of requests when NARA reasonably believes a requester or group of requesters is dividing a request into a series of requests to evade assessment of applicable fees.
(a) NARA will not charge review fees for time spent resolving general legal or policy issues regarding the application of exemptions.
(b) The review fee is $24 per hour or fraction thereof, for time spent in activities set forth in paragraphs (d)(1), (d)(2), and (d)(3) of this section.
(c) NARA will charge only commercial-use requesters review fees.
(d) NARA may charge for the time spent engaged in the following activities to determine “review time” subject to review fees:
(1) Time spent examining all documents that are responsive to a request to determine whether any portion of any document is exempt from mandatory disclosure regardless of whether any information is ultimately withheld.
(2) Time spent excising information and otherwise preparing records for release (except preparing the copies that will be made available to the requester).
(3) The aggregate of all time spent in reviewing documents to determine whether any portion of any document is permitted to be withheld when NARA reasonably believes that a requester or group of requesters is dividing a request into a series of requests to evade the assessment of applicable fees.
(e) A fee of $.20 per page will be charged for making working copies of pages from which information must be excised.
(a)
(2)
(b)
(c)
(a)
(b)
(c)
(a)
(2) NARA will not assess fees otherwise chargeable if the aggregate of all applicable fees is less than $10.
(3) If NARA estimates that total applicable search and reproduction charges are likely to exceed $25, NARA will notify the requester of the estimated amount of fees, unless the requester has indicated in advance a willingness to pay fees as high as those anticipated. The requester will be offered the opportunity to confer with a NARA official with the object of reformulating the request to meet the requester's need at a lower cost.
(4) For those requests eligible for 2 hours free search time, NARA may begin charging for computerized search time once the cost of the search (including the operator time and the cost of operating the computer to process the request) equals the equivalent dollar amount of two hours of a manual search by a clerical/administrative employee.
(b)
(1) Search fees as set forth in § 1250.38;
(2) Review fees as set forth in § 1250.39
(3) Reproduction fees as set forth in § 1250.40; and
(4) Other fees as set forth in § 1250.41, as applicable.
(c)
(1) Reproduction costs as set forth in § 1250.40, except the first 100 pages or their equivalent will be provided free; and
(2) Other costs as set forth in § 1250.41, if applicable. NARA will not charge search or review fees.
(d)
(e)
(1) Search fees as set forth in § 1250.38 for any search time in excess of two hours of manual search or its computerized search equivalent;
(2) Reproduction fees as set forth in § 1250.40, as applicable, except the first 100 pages or their equivalent will be provided free; and
(3) Other fees as set forth in § 1250.41, if applicable.
(a) NARA may require prepayment of all fees when:
(1) Applicable fees are likely to exceed $250, and
(i) The requester has no history of payment;
(ii) After notifying a requester who has a history of prompt payment of FOIA fees of the estimated fees, NARA does not receive satisfactory assurances of full payment: Or
(2) A requester has previously failed to pay a fee and interest charges within 30 days of the date of billing.
(b) The amount of the prepayment will be the anticipated fees for the current request, and if applicable, any previously assessed fees and any interest which have not been received by NARA.
(a) Any request for waiver or reduction of a fee shall be included in the initial letter requesting access to NARA records under § 1250.54. The waiver or reduction request should explain how release of the requested information is likely to benefit the public by contributing significantly to the public understanding of the operations or activities of the government, and why the information is not primarily in the commercial interest of the requester.
(b) Documents shall be furnished without a fee or at a reduced fee if NARA determines that the information is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requester.
(c) If NARA denies a request for a waiver or reduction of a fee, the requester may appeal this denial, following the procedures set forth in § 1250.58.
Requesters shall pay fees by check or money order payable to: “National Archives and Records Administration” and addressed to the official named by NARA in its correspondence.
As provided for in the Debt Collection Act of 1982 (Pub. L. 97-365), NARA may employ collection agencies and may disclose information concerning nonpayment of fees to consumer reporting agencies when fees have not been paid within 31 days of billing.
(a) Except for records made available in accordance with subparts B and C of this part, NARA promptly will make records available to a requester when the request describes the records so as to enable a professional NARA employee to identify and locate the record(s) unless NARA invokes an exemption in accordance with subpart F of this part. NARA will consult with the requester, when necessary, to more specifically identify the requested record(s).
(b) Upon receipt of a request that does not reasonably describe the records requested, NARA may contact the requester to seek a more specific description. The 10-workday time limit set forth in § 1250.56 will not start until NARA receives a request reasonably describing the records.
This section sets forth initial procedures for making requested records available. These procedures do not apply to records of other agencies that have been transferred to NARA in accordance with 44 U.S.C. 2107 and 3103; in those cases, the procedures in part 1254 of this chapter govern.
For records located in NARA, the requester shall submit a request in writing to the NARA FOIA Officer, National Archives (NAA), Washington, DC 20408. Requests shall include the words “Freedom of Information Request” prominently marked on both the face of the request letter and the envelope. The 10-workday time limit for agency decisions set forth in § 1250.56 begins with receipt of the request by the NARA office which maintains the requested records. A requester who has questions concerning a FOIA request may consult the NARA FOIA Officer.
NARA shall mail a response to an initial FOIA request within 10 workdays (that is, excluding Saturdays, Sundays, and legal Federal holidays) after receipt of a request by the NARA office that maintains the records. In unusual circumstances, NARA will inform the requester of the agency's need
(a) A requester who receives a denial of access in whole or in part of a request or who receives a response that no responsive records were found, and who considers the latter response as adverse in nature, may appeal that decision or finding within NARA to the appropriate NARA FOIA Appeal Official. If the denial was signed by the Assistant Archivist for Management and Administration, the appeal shall be addressed to the Deputy Archivist of the United States, National Archives (ND), Washington, DC 20408. If the denial was signed by the Inspector General, the appeal shall be addressed to the Archivist of the United States, National Archives (N), Washington, DC 20408.
(b) The NARA FOIA Appeal Official must receive an appeal no later than 35 calendar days after the date of the NARA letter of denial.
(c) (1) The requester shall appeal in writing. The appeal letter shall include a brief statement of the reason(s):
(i) If an appeal of denial of access, why NARA should release the records, or
(ii) If an appeal of a requester category determination, why the requester should be considered to be a member of a different category, or
(iii) If an appeal of a denial of a fee reduction or waiver request that the requester is not otherwise entitled to, how disclosure of the information is likely to contribute significantly to public understanding of the operations or activities of government and why it is not a request primarily intended to benefit the commercial, trade, or profit interests of the requester, or
(iv) If no responsive records were found and the requester considers this to be an adverse determination, why the requester thinks that the search does not meet the requirements of the FOIA.
(2) The appeal letter shall include the words “Freedom of Information Appeal” on both the face of the appeal letter and the envelope, and the requester shall enclose with the appeal letter a copy of the initial request and denial.
(3) NARA has 20 workdays after receipt of an appeal to make a determination with respect to the appeal. The 20-workday time limit begins when the NARA FOIA Appeal Official receives the appeal.
(d) A requester who has received a denial of an appeal may seek judicial review of NARA's decision in the United States district court in the district in which the requester resides or has a principal place of business, or where the records are situated, or in the District of Columbia.
In unusual circumstances the NARA FOIA Appeal Official may extend the time limits prescribed in § 1250.58. If necessary, more than one extension of time may be taken. However, the total extension of time shall not exceed 10 workdays with respect to a particular request. The extension may be divided between the initial and appeal stages or within a single stage. NARA shall provide a written notice to the requester of any extension of time limits.
(a) 5 U.S.C. 552(b) provides that the requirements of the FOIA do not apply to matters that are:
(1) Specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defence or foreign policy and that are, in fact, properly classified under the Executive order;
(2) Related solely to the internal personnel rules and practices of an agency;
(3) Specifically exempted from disclosure by statute, other than the Privacy Act, provided that the statute:
(i) Requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or
(ii) Establishes particular criteria for withholding or refers to particular types of matters to be withheld;
(4) Trade secrets and commercial or financial information obtained from a person that are privileged or confidential;
(5) Interagency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency;
(6) Personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy;
(7) Records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information:
(i) Could reasonably be expected to interfere with enforcement proceedings:
(ii) Would deprive a person of a right to a fair trial or an impartial adjudication;
(iii) Could reasonably be expected to constitute an unwarranted invasion of personal privacy;
(iv) Could reasonably be expected to disclose the identity of a confidential source, including a State, local or foreign agency or authority or any private institution which furnished information on a confidential basis, and, in the case of a record or information compiled by a criminal law enforcement authority in the course of a criminal investigation, or by an agency conducting lawful national security intelligence investigation, information furnished by a confidential source;
(v) Would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law; or
(vi) Could reasonably be expected to endanger the life or physical safety of any individual.
(8) Contained in or related to examination, operating, or condition reports prepared by, on behalf of, or for the use of an agency responsible for the regulation or supervision of financial institutions; and
(9) Geological and geophysical information and data, including maps, concerning wells.
(b) NARA will provide any reasonably segregable portion of a record to a requester after deletion of the portions that are exempt under this section.
(c) NARA will invoke no exemption under this section if the requested records would be available under the Privacy Act of 1974 and NARA implementing regulations in part 1202 of this chapter, or if disclosure would cause no demonstrable harm to any public or private interest.
(a)
(b)
(c)
(1) Be made by the submitter when the information is submitted to NARA or within 30 workdays thereafter;
(2) Specify precisely which information is claimed as commercially confidential;
(3) Be made in good faith;
(4) Be supported by a certification by the submitter that the information has not been published or previously officially disclosed to the public.
(d)
(i) The submitter, in good faith, has designated the material as commercially confidential in accordance with paragraph (c) of this section; and
(ii) The FOIA request is received within 10 years of the date of submission.
(2) The written notice of receipt of an FOIA request shall either describe the potentially confidential commercial information requested, or provide copies of the records containing the information. The notice shall be mailed to the last known address of the submitter.
(3) When notice is given to a submitter pursuant to this section, NARA shall inform the requester that:
(i) The notice has been sent to the submitter;
(ii) That NARA's response to the request may be delayed beyond the limitations specified in 5 U.S.C. 552(a)(6)(A) and (B) to allow for time to notify the submitter, and to consider any response; and
(iii) That the delay may be considered a denial of access to records and the requester may seek judicial review. However, the requester shall be invited to agree to a voluntary extension of time so that NARA may consider any claims of confidentiality by the submitter.
(e)
(i) A detailed statement of any objections to disclosure. The statement shall specify which information is claimed to be of a confidential commercial nature, and shall specify all grounds for withholding any of the information under the exemptions of the FOIA. If exemption (b)(4) of the FOIA is cited, the statement shall explain how the release of the information can be reasonably expected to cause substantial competitive harm to the submitter; and
(ii) Certification that the information has not been published or previously disclosed to the public.
(2) The statement provided pursuant to this subsection may itself be subject to disclosure under the FOIA
(f)
(2) When NARA decides to disclose commercial information over the objections of a submitter, whether in response to a request to release or as the result of an appeal of a denial of access, NARA shall provide the submitter a written notice which:
(i) States the reasons why the submitter's objections were not sustained;
(ii) Describes or contains a copy of the information to be disclosed; and
(iii) Specifies a disclosure date. NARA shall inform the submitter that disclosure will be made on the specified disclosure date, unless barred by court order.
(3) NARA shall inform the requester that such notice has been given to the submitter and of the proposed disclosure date.
(4) When NARA and the submitter are in agreement concerning disclosure, disclosure shall take place as soon as possible.
(5) The notice of receipt of a request shall serve as the notice of intent to disclose when the submitter fails to respond to the initial notice within a reasonable period of time.
(g)
(h)
(1) NARA determines that the information should not be disclosed in accordance with one or more FOIA exemptions;
(2) The information has been published or officially made available to the public;
(3) Disclosure of the information is required by law (other than 5 U.S.C. 552); or
(4) NARA has no substantial reason to believe that disclosure would result in competitive harm.
(a) A subpoena duces tecum or other legal demand for the production of NARA administrative records should be addressed to the Director of the Legal Services Staff, National Archives (NXL), Washington, DC 20408, with respect to NARA records.
(b) The Archivist of the United States and the Director of the Legal Services Staff are the only NARA employees authorized to accept, on behalf of NARA, service of a subpoena duces tecum or other legal demands for NARA administrative records.
(c) Regulations concerning service of a subpoena or other legal demand for records accessioned into the National Archives of the United States, records of other agencies in the custody of the Federal records centers, and donated historical materials are located at part 1254 of this chapter.
44 U.S.C. 2104(a).
This subchapter prescribes rules and procedures governing the public use of records and donated historical materials in the custody of the National Archives and Records Administration (NARA). Except for part 1250, this subchapter does not apply to current operating records of NARA. This subchapter also prescribes rules and procedures governing the public use of certain NARA facilities.
The following definitions are established for terms used in this subchapter.
44 U.S.C. 2104(a).
The National Archives Building is located at Seventh Street and Pennsylvania Avenue, NW., Washington, DC 20408. Hours: For the Central Research Room and Microfilm Research Room, 8:45 a.m. to 5 p.m., Monday and Wednesday; 8:45 a.m. to 9 p.m., Tuesday, Thursday, and Friday; 8:45 a.m. to 4:45 p.m. on Saturday. For other research rooms, 8:45 a.m. to 5 p.m., Monday through Friday.
The National Archives at College Park is located at 8601 Adelphi Road, College Park, MD 20740-6001. Research complex hours are 8:45 a.m. to 5 p.m., Monday and Wednesday; 8:45 a.m. to 9 p.m., Tuesday, Thursday, and Friday; and 8:45 a.m. to 4:45 p.m. Saturday.
Some of the Presidential Libraries may offer extended research room hours on selected evenings and Saturdays; museums within the Libraries offer Saturday and Sunday hours. More specific information on extended hours is available from each Presidential Library. The hours listed in this section are the minimum hours that each Presidential Library is normally open.
(a) Herbert Hoover Library, 210 Parkside Dr., West Branch, IA. Mailing address: PO Box 488, West Branch, IA 52358-0488. Hours: 9 a.m. to 5 p.m., Monday through Friday.
(b) Franklin D. Roosevelt Library, 511 Albany Post Rd., Hyde Park, NY 12538-1999. Hours: 8:45 a.m. to 5 p.m., Monday through Friday.
(c) Harry S. Truman Library, 500 W. US Hwy 24, Independence, MO 64050-1798. Hours: 8:45 a.m. to 4:45 p.m., Monday through Friday.
(d) Dwight D. Eisenhower Library, 200 SE Fourth Street, Abilene, KS 67410-2900. Hours: 9 a.m. to 4:45 p.m., Monday through Friday.
(e) John Fitzgerald Kennedy Library, Columbia Point, Boston, MA 02125. Hours: 8 a.m. to 4:30 p.m., Monday through Friday.
(f) Lyndon Baines Johnson Library, 2313 Red River St., Austin, TX 78705-5702. Hours: 9 a.m. to 5 p.m., Monday through Friday.
(g) Gerald R. Ford Library, 1000 Beal Avenue, Ann Arbor, MI 48109-2114. Hours: 8:45 a.m. to 4:45 p.m., Monday through Friday.
(h) Gerald R. Ford Museum, 303 Pearl St. NW, Grand Rapids MI 49504-5353. Hours: 9 a.m. to 4:45 p.m., Sunday through Saturday.
(i) Jimmy Carter Library, 1 Copenhill Ave NE, Atlanta, GA 30307-1406. Hours: 9 a.m. to 4:45 p.m., Monday through Friday.
(j) Ronald Reagan Library, 40 Presidential Dr, Simi Valley, CA 93065-0666.
Washington National Records Center, 4205 Suitland Road, Suitland, MD. Mailing address: Washington National Records Center, 4205 Suitland Road, Washington, DC 20409-0002. Hours: 8:30 a.m. to 4 p.m., Monday through Friday. From May 6, 1996, through August 30, 1996, appointments may be made to use archival records at the Center by calling the Suitland Reference Branch at (301) 457-7190.
(a) Military Personnel Records, National Personnel Records Center, 9700 Page Ave., St. Louis, MO 63132-5100. Hours: 7:30 a.m. to 4 p.m., Monday through Friday.
(b) Civilian Personnel Records, National Personnel Records Center, 111 Winnebago St., St. Louis, MO 63118-4199. Hours: 7:30 a.m. to 4 p.m., Monday through Friday.
(a) 380 Trapelo Rd., Waltham, MA 02154-6399. Hours: 8 a.m. to 4 p.m., Monday through Friday.
(b) 100 Dan Fox Dr., Pittsfield, MA 01201-8230. Hours: 7:30 a.m. to 4 p.m., Monday through Friday.
(c) Military Ocean Terminal Bldg. 22, Bayonne, NJ 07002-5388. Hours: 7:30 a.m. to 4 p.m., Monday through Friday.
(d) 14700 Townsend Rd., Philadelphia, PA 19154. Hours: 7:30 a.m. to 4 p.m., Monday through Friday.
(e) 1557 St. Joseph Ave., East Point, GA 30344-2593. Hours: 8 a.m. to 4 p.m., Monday through Friday.
(f) 3150 Springboro Rd., Dayton, OH 45439-1883. Hours: 7:30 a.m. to 4 p.m., Monday through Friday.
(g) 7358 S. Pulaski Rd., Chicago, IL 60629-5898. Hours: 8 a.m. to 4 p.m., Monday through Friday.
(h) 2312 E. Bannister Rd., Kansas City, MO 64131-3060. Hours: 8 a.m. to 4 p.m., Monday through Friday.
(i) 501 W. Felix St., Bldg. 1, Dock 1, Fort Worth, TX. Mailing Address: PO Box 6216, Fort Worth, TX 76115-6216. Hours: 8 a.m. to 4 p.m., Monday through Friday.
(j) Denver Federal Center Bldg. 48, Denver, CO. Mailing Address: PO Box 25307, Denver, CO 80225-0307. Hours: 7:30 a.m. to 4 p.m., Monday through Friday.
(k) 1000 Commodore Dr., San Bruno, CA 94066-2350. Hours: 7:30 a.m. to 3:30 p.m., Monday through Friday.
(l) 2400 Avila Rd., 1st Floor East, Laguna Niguel, CA. Mailing Address: PO Box 6719, Laguna Niguel, CA 92607-6719. Hours: 8 a.m. to 4:30 p.m., Monday through Friday.
(m) 6125 Sand Point Way NE, Seattle, WA 98115-7999. Hours: 8 a.m. to 4 p.m., Monday through Friday.
Some of the Regional Archives may offer extended research room hours on selected evenings and Saturdays. More specific information on extended hours is available from each Regional Archives. The hours listed in this section are the minimum hours that each Regional Archives is normally open.
(a) National Archives—New England Region, 380 Trapelo Rd., Waltham, MA 02154-6399. Hours: 8 a.m. to 4 p.m., Monday through Friday. Telephone: (617) 647-8100.
(b) National Archives—Pittsfield Region, 100 Dan Fox Dr., Pittsfield, MA 01201-8230. Hours: 9 a.m. to 3:30 p.m., Monday through Friday. Telephone: (413) 445-8458.
(c) National Archives—Northeast Region, 201 Varick St., New York, NY 10014-4811. Hours: 8 a.m. to 4 p.m., Monday through Friday. Telephone: (212) 337-1300.
(d) National Archives—Mid-Atlantic Region, 900 Market St. Room 1350, Philadelphia, PA 19107-4292. Hours: 8 a.m. to 4 p.m., Monday through Friday. Telephone: (215) 597-3000.
(e) National Archives—Southeast Region, 1557 St. Joseph Ave., East Point, GA 30344-2593. Hours: 8 a.m. to 4 p.m., Monday through Friday. Telephone: (404) 763-7477.
(f) National Archives—Great Lakes Region, 7358 S. Pulaski Rd., Chicago, IL 60629-5898. Hours: 8 a.m. to 4 p.m., Monday through Friday. Telephone: (312) 353-0162.
(g) National Archives—Central Plains Region, 2312 E. Bannister Rd., Kansas City, MO 64131-3060. Hours: 8 a.m. to 4 p.m., Monday through Friday. Telephone: (816) 926-6934.
(h) National Archives—Southwest Region, 501 West Felix St., Bldg. 1, Dock 1, Fort Worth, TX. Mailing address: PO Box 6216, Fort Worth, TX 76115-0216. Hours: 8 a.m. to 4 p.m., Monday through Friday. Telephone: (817) 334-5525.
(i) National Archives—Rocky Mountain Region, Denver Federal Center, Bldg. 48, Denver, CO. Mailing address: PO Box 25307, Denver, CO 80225-0307. Hours: 8 a.m. to 4 p.m., Monday through Friday. Telephone: (303) 236-0817.
(j) National Archives—Pacific Southwest Region, 2400 Avila Rd., 1st Floor East, Laguna Niguel, CA. Mailing address: PO Box 6719, Laguna Niguel, CA 92607-6719. Hours: 8 a.m. to 4 p.m., Monday through Friday. Telephone: (714) 643-4241.
(k) National Archives—Pacific Sierra Region, 1000 Commodore Dr., San Bruno, CA 94066-2350. Hours: 8 a.m. to 4 p.m., Monday through Friday. Telephone: (415) 876-9009.
(l) National Archives—Pacific Northwest Region, 6125 Sand Point Way NE, Seattle, WA 98115-7999. Hours: 8 a.m. to 4 p.m., Monday through Friday. Telephone: (206) 526-6507.
(m) National Archives—Alaska Region, 654 W. 3rd Ave. Rm. 012, Anchorage, AK 99501-2145. Hours: 8 a.m. to 4 p.m., Monday through Friday. Telephone: (907) 271-2441.
44 U.S.C. 2101-2118; 5 U.S.C. 552; and E.O. 12600, 52 FR 23781, 3 CFR, 1987 Comp., p. 235.
Nomenclature changes to part 1254 appear at 59 FR 29192, June 6, 1994.
(a) Researchers will normally use documents in designated research rooms only.
(b) Original documents will not normally be made available when microfilm copies or other alternative copies of the documents are available.
(c) Persons seeking information that is published and readily available will normally be referred to a public library.
(d) A director may require that researchers under the age of 16 years be accompanied by an adult researcher who agrees in writing to be present when the documents are used and to be responsible for compliance with the research room rules set forth in subpart B.
(e) Requests received in the normal course of reference service that do not specifically cite the Freedom of Information Act (5 U.S.C. 552) are not considered requests made under the act. Requests under the act must follow the procedure set forth in subpart C or subpart D of this part.
(f) Certain documents in the custody of NARA are available for exhibit, but are loaned only if the exhibitor meets exacting requirements regarding security, insurance coverage and humidity and temperature control of the exhibit area. These requirements may be obtained by writing to National Archives (NE), Washington, DC 20408.
(a) Researchers should identify the location of the documents needed. Inquiries may be addressed to the National Archives (NNRS), Washington, DC 20408.
(b) The locations and hours of operation (expressed in local time) of the depositories administered by the National Archives and Records Administration are shown in part 1253 of this chapter.
(c) Except for Federal holidays and other times specified by the Archivist or other authorized NARA officials, documents will be made available according to the schedule set forth in part 1253.
(d) In addition to the times specified in part 1253, documents may be made available at such other times as are authorized by a director.
(a) Before applying to use documents, the researcher should ask the depository holding them whether the documents are available, whether there are enough documents to warrant a visit, or whether copies would be more practical.
(b) Researchers must apply in person at the depository that has custody of the documents.
(c) Researchers who wish to use documents not on microfilm in a depository where the microfilm research room is separate from textual research rooms, must complete a researcher identification application form and provide the
(d) A researcher will not be issued a researcher identification card if the branch chief or director of the relevant repository determines that:
(1) The documents which the researcher wishes to use are not in the legal custody of NARA; or
(2) The researcher is not interested in documents maintained by NARA but in information contained in secondary sources available at other institutions.
(e) Researchers using only microfilm, where the microfilm research room is separate from textual research rooms, are not issued an identification card but must register as described in § 1254.10.
(f) In addition to the procedures in this section, researchers desiring to use archives that contain national security classified information must follow procedures in subpart D.
(g) The legal custody and control over access to records that are in the physical custody of the records centers, but not yet accessioned into the National Archives of the United States, remains with the agency. NARA informs researchers of the procedures required to obtain access.
An identification card is issued to each person whose application is approved to use records other than microfilm. The card is valid at each depository (except the Presidential libraries which issue cards valid only at the issuing library) for 2 years, but it may be renewed upon application. Cards are not transferable and must be produced if requested by a guard or research room attendant.
(a) Access to records transferred to a Federal records center is controlled by the instructions and restrictions imposed on NARA by the Federal agency that transferred the records to the Federal records center. NARA will honor a subpoena duces tecum or other legal demand for the production of these records, to the extent required by law, if the transferring agency has imposed no restrictions. When the transferring agency has imposed restrictions, NARA will notify the authority issuing the subpoena or other legal demand that NARA must abide by the agency-imposed restrictions and will request the authority to pursue the matter directly with the transferring agency.
(b) The Archivist of the United States, the Director of the Legal Services Staff (NXL) or his designee, and the Director of the Federal Records Center in which the records are stored are the only NARA officials authorized to accept a subpoena or other legal demand for records transferred to a Federal records center.
(c) A subpoena duces tecum or other legal demand for the production of documents designated as
Researchers must register each day they enter a research facility, furnishing the information asked on the registration sheet and may be asked to provide additional personal identification.
(a) The research room attendant may limit the quantity of documents delivered to a researcher at one time. The researcher must sign for the documents received and may be required to show his/her researcher identification card. The researcher is responsible for the proper handling of and prevention of damage to all documents delivered to him/her until he/she returns them. When the researcher is finished using the documents, the documents must be returned to the research room attendant. The reference service slip that accompanies the documents to the research room must not be removed. If asked to do so, the researcher must return documents as much as 15 minutes before closing time. Before leaving a research room, even for a short time, a researcher must notify the research room attendant and place all documents in their proper containers.
(b) When microfilm is available on a self-service basis, research room attendants will assist researchers in identifying research sources on microfilm and provide information concerning how to locate and retrieve the roll(s) of film containing the information of interest. The researcher is responsible for retrieving and examining the roll(s). Unless a researcher requires assistance in learning how to operate microfilm reading equipment, the researcher is expected to install the microfilm on the reader. Unless otherwise permitted, a researcher is limited to one roll of microfilm at a time. After using each roll, the researcher is responsible for refiling the roll of microfilm in the location from which it was removed, unless instructed otherwise.
(c) Researchers are responsible for complying with provisions of the Copyright Act (Title 17, United States Code) which governs the making and use of electrostatic copies or other reproductions of copyrighted materials.
(a) Use of the microfilm readers in the National Archives Building will be on a first-come, first-served basis. When other researchers are waiting to use a microfilm reader, a 3-hour limit may be placed on using a reader. After 3 hours of machine use, the researcher may sign the waiting list for an additional 3-hour period.
(b) The number of researchers in the microfilm research room in the National Archives Building will be limited, for fire safety reasons, to those researchers assigned a microfilm reader.
(c) Directors of regional archives may permit reservations for use of microfilm readers and set time limits on use to meet local circumstances. Rules for use will be posted in the research room.
(a) Researchers must exercise all possible care to prevent damage to documents.
(b) Documents may not be used at a desk where there is food or liquid or where an ink pen is being used. Only pencils may be used in research rooms where original documents are used.
(c) Documents must not be leaned on, written on, folded anew, traced, or handled in any way likely to cause damage.
(d) Documents must be identified for reproduction only with a paper tab provided by NARA. Documents may not be fastened with paper clips or rubber bands.
(e) Microfilm must be carefully removed from and returned to the proper microfilm boxes. Care must be taken loading and unloading microfilm from microfilm readers. Damaged microfilm must be reported to the research room attendant as soon as it is discovered.
(f) Exceptionally valuable or fragile documents may be used only under the conditions specified by the research room attendant.
A researcher must keep unbound documents in the order in which they are delivered to him/her. Documents that appear to be in disorder must not be rearranged by the researcher, but must be referred to the research room attendant. Researchers may use only one folder at a time. Researchers are not allowed to remove documents from more than one container at a time. Researchers should bring to the attention of the research room attendant microfilm put in the wrong box or file cabinet.
Researchers may not remove documents from a research room. Removing or mutilating documents is forbidden by law and is punishable by fine or imprisonment or both (18 U.S.C. 2071). Researchers must check personal belongings, including briefcases, folders, coats, newspapers, or containers of any kind before entering a research room. Upon leaving, researchers must present for examination any article that could contain documents. To ensure that documents are not unlawfully removed or mutilated, the director may issue and post at the entrance to the research room instructions supplementing the rules in subpart B.
(a)
(b)
(c)
(a) The National Archives and Rec-ords Administration (NARA) prohibits researchers from carrying boxes, briefcases, satchels, valises, purses, or other large containers into the research rooms or authorized stack areas. To accommodate researchers who have these items, lockers or other storage facilities are conveniently located near research rooms. These lockers or other storage facilities are available on a first-come-first-served basis.
(b) Researchers’ personal belongings must be removed each night from the lockers or other storage facilities provided to hold them unless special permission is obtained in advance from designated research room staff. If personal belongings are not removed from the facilities by the researcher, they will be removed by NARA personnel. Directions for reclaiming confiscated items will be posted near the lockers or other storage facilities.
(c) The National Archives and Rec-ords Administration is not responsible for the loss or theft of articles stored in the lockers.
(a) Admission to research rooms in the National Archives Building, the Washington National Records Center, and the National Archives at College Park facility at which original documents are made available is limited to individuals examining and/or copying
(b) The procedures in paragraphs (c) through (g) of this section apply to all research rooms in the National Archives Building (except the Microfilm Research Room); the Suitland Research Room in the Washington National Records Center; and the research rooms in the National Archives at College Park. These procedures are in addition to the procedures specified elsewhere in this part.
(c) All researchers bringing personal typewriters, tape recorders, cameras, personal computers, and other equipment, into the National Archives Building shall complete the Equipment Log at the guard's desk in the lobby. The log will evidence personal ownership and will be checked by the guard when such equipment is removed from the building.
(d) Researchers must present a valid researcher identification card to the guard or research room attendant on entering the room. All researchers are required to sign each day the research room registration sheet at the entrance to the research room. Researchers will also record the time they leave the research room at the end of the visit for that day. Researchers are not required to sign in or out when leaving the area temporarily.
(e) Researchers may not bring into the research rooms overcoats, raincoats, hats, or similar apparel; personal copying equipment, including personal paper-to-paper copiers; briefcases, suitcases, daypacks, purses, or similar containers of personal property; notebooks, notepaper, notecards, folders or other containers for papers. These items may be stored at no cost in lockers available in the hallway adjacent to the various research rooms. The following exceptions may be granted:
(1) Hand-held wallets and coin purses for the carrying of currency, coins, credit cards, keys, drivers licenses and other identification cards may be brought into research rooms, but are subject to inspection when the researcher enters or leaves the room. The guard or research room attendant shall judge whether the wallet or purse may be considered small for purposes of this section;
(2) Notes, references, lists of documents to be consulted, and other materials may be admitted if the chief of the branch administering the research room or the senior archivist on duty in the research room determines they are essential to a researcher's work requirements. Materials will be presented to the research room attendant when the researcher enters the research room. Materials approved for admission will be stamped to indicate that they are the personal property of the researcher;
(3) Typewriters, personal computers, tape recorders, and hand-held cameras may be admitted by the research room attendant provided that they are inspected, approved, and tagged prior to
(4) Notepaper and notecards provided by the National Archives and electrostatic copies made on copying machines in NARA research rooms which are marked with the statement “Reproduced at the National Archives” may be brought back into the research room on subsequent visits but must be presented on entry to the research room attendant for inspection.
(f) NARA will furnish to researchers, without charge, pencils and specially marked lined and unlined notepaper and notecards, for use in the research rooms. Pencils and unused notepaper and notecards should be returned to the research room attendant at the end of the day.
(g) The personal property of all researchers, including notes, electrostatic copies, typerwriter cases, tape recorders, cameras, personal computers, and other property, will be inspected before removal from the research room. Guards and research room attendants may request that a member of the research room staff examine such personal items prior to their removal from the research room.
(h) In addition to the procedures in paragraphs (c) through (g) of this section, the following procedures apply to the Motion Picture, Sound, and Video Research Room (hereinafter, “the research room”) in the National Archives Building:
(1) Use of NARA viewing and listening equipment in the research room is provided on a first-come-first-served basis. When others are waiting to use the equipment, a three-hour limit may be imposed on the use of the equipment.
(2) The following procedures shall be followed when personal recording equipment and accessories are brought into the unrestricted viewing and copying area in the research room:
(i) Personal recording equipment brought into the unrestricted viewing and copying area in the research room must be inspected and tagged by the research room attendant prior to admittance. All equipment and accessory devices must be placed on the table adjacent to the viewing station, except that a tripod holding a video camera may be placed on the floor in front of a film viewing station.
(ii) Researchers shall remain in the research room while their personal equipment is in use at an audio or video viewing station. The film viewing stations must be attended at all times while in use. Researchers shall remove their personal equipment from the research room when they leave the room for the day or for extended breaks.
(iii) NARA will not be responsible for assisting with “hook-up” to NARA viewing equipment; for providing compatibility between the personal recording equipment and NARA viewing equipment; or for the quality of the copies made by researchers. NARA will provide the researcher information on the types of NARA equipment being used in the research room and on the cables necessary for hook up to the NARA viewing equipment.
(3) When a researcher brings audio or video recording tapes or cassettes into the unrestricted area of the research room, the research room attendant will mark the recording media “NARA-approved personal property” for identification purposes. Such media shall be inspected upon exit from the research room, as well as upon exit from the National Archives Building.
(4) A NARA-furnished video copying station and 120-minute blank video cassette may be reserved, for a fee, on a first-come, first-served basis for a 90-minute period of time. If no other individual is waiting to use the station, an additional time period may be reserved at the end of the current period. Personal recording devices may not be connected to NARA equipment at the video copying station. Only NARA-provided tapes may be used at the video copying station. Fees for use of the station and blank cassette are specified in § 1258.12 of this chapter.
(5) The NARA or personal recording device and media may be used to make a personal-use copy of unrestricted archival materials in the research room.
(6) Each researcher will be provided a copy of the Motion Picture, Sound, and
(7) No personal recording device or media is permitted in the restricted viewing area in the research room.
(a) When directed by the appropriate director, the following procedures shall be observed in Federal Records Center, regional archives and Presidential library archival research rooms where original documents are used. These procedures are in addition to the procedures specified elsewhere in this part.
(b) Researchers must present a valid researcher identification card to the guard or research room attendant on entering the room. All researchers are required to sign each day the research room registration sheet at the entrance to the research room. Where instructed to do so, researchers also sign out when leaving the research room for the day. Researchers are not required to sign in or out when leaving the area temporarily or at the end of the day.
(c) Researchers may not bring into the research room overcoats, raincoats, hats, and similar apparel, and briefcases, suitcases, daypacks, purses, or similar containers of personal property. In facilities where NARA provides notepaper and notecards, researchers also may not bring into the research room notebooks, notepaper, notecards, folders or other containers for papers. In facilities where NARA provides a self-service copier, researchers may not bring into the research room personal copying equipment including personal paper-to-paper copiers. These items may be stored at no cost in lockers or other storage facilities in the NARA facility. The following exceptions may be granted:
(1) Hand-held wallets and coin purses for carrying currency, coins, credit cards, keys, drivers licenses and other identification cards may be brought into research rooms, but are subject to inspection when the researcher enters or leaves the room. The guard or research room attendant shall judge whether the wallet or purse may be considered small for purposes of this section;
(2) Notes, references, lists of documents to be consulted, and other materials may be admitted if the director, or the senior attendant on duty in the research room determines they are essential to a researcher's work requirements. Materials will be presented to the attendant when the researcher enters the research room. If the materials are approved for admission, they may be stamped to indicate that they are the researcher's property;
(3) Typewriters, personal computers, tape recorders, and hand-held cameras may be admitted by the guard or research room attendant provided that they are inspected, approved, and tagged prior to admittance. The director, or the senior attendant on duty in the research room will review the determination made by the guard or research room attendant if requested to do so by the researcher. In facilities where personal paper-to-paper copiers are permitted, the researcher must obtain prior written approval from the facility director to bring in the copier. The request to bring a personal copier should state the space and power consumption requirements and the intended period of use; and
(4) Notepaper and notecards provided by the National Archives and electrostatic copies made on copying machines in NARA research rooms which are marked with the statement “Reproduced at the National Archives” may be brought back into the research room on subsequent visits but must be presented on entry to the guard or research room attendant for inspection.
(d) NARA may furnish specially marked lined and unlined notepaper and notecards, without charge, to researchers for use in the research rooms. Unused notepaper and
(e) The personal property of all researchers, including notes, electrostatic copies, typewriter cases, tape recorders, cameras, personal computers, and other personal property, will be inspected before removal from the research room. Guards and research room attendants may request that a member of the research room staff examine such personal items prior to their removal from the research room.
(f) Researchers may use NARA self-service copiers or authorized personal paper-to-paper copiers to copy documents in accordance with NARA document handling instructions and after review of the documents by the research room attendant to determine their suitability for copying. The director or the senior archivist on duty in the research room will review the determination of suitability if requested by the researcher. The following types of documents are not suitable for copying on a self-service or personal copier:
(1) Bound archival volumes;
(2) Documents fastened together by staples, clips, acco fasteners, rivets, or similar fasteners, where folding or bending the document may cause damage;
(3) Documents larger than the glass copy plate of the copier;
(4) Documents with uncancelled security classification markings;
(5) Documents with legal restrictions on copying; and
(6) Documents which, in the judgement of the research room attendant, are in poor physical condition or which may be subject to possible damage if copied.
The use of archives is subject to the restrictions prescribed by statute or Executive order or by the restrictions specified in writting in accordance with 44 U.S.C. 2108 by the agency from which the records were transferred. NARA will make available any reasonably segregable portion of a record after the restricted portion has been deleted. The restrictions are published in the “Guide to the National Archives of the United States,” and supplemented by restriction statements approved by the Archivist of the United States and set forth in part 1256 of this chapter. The Guide is available from the Superintendent of Documents, Government Printing Office, Washington, DC 20402. The Guide may also be consulted at the NARA research facilities listed in part 1253 of this chapter.
Requests for access to records on deposit in Federal records centers shall be addressed directly to the appropriate agency or to the FRC director at the address shown in part 1253. The use of FRC records is subject to access rules prescribed by the agency from which the records were transferred. When the agency's rules permit, NARA makes FRC records available to requesters. When access is precluded by these rules and restrictions, the FRC director will refer to the responsible agency the requests and any appeals for access, including those made under the Freedom of Information Act.
Access to archives and FRC records received from agencies which have ceased to exist without a successor in function are handled in accordance with §§ 1254.30 and 1254.50.
Access to Presidential records transferred to NARA is governed by 36 CFR part 1270. Access to the Nixon Presidential materials is governed by 36 CFR part 1275.
The public use of donated historical materials is subject to restrictions on their use and availability as stated in writing by the donors or depositors of such materials and other restrictions imposed by statute. (Researchers are encouraged to confer with the appropriate director or reference staff member on any question of copyright.) In addition, use is subject to all conditions specified by the Archivist of the United States for purposes of archival preservation.
(a)
(b)
(c)
(d)
(e)
(f)
(2) The Deputy Archivist must receive an appeal no later than 35 calendar days after the date of the NARA letter of denial to be considered timely.
(3) The appeal letter shall include the words “Freedom of Information Act Appeal” on both the letter and the envelope, and the requester shall enclose with the appeal letter a copy of the initial request and the denial.
(4) In the appeal letter the requester shall briefly state the reasons why NARA should release the records, or, if no responsive records were found and the requester considers this to be an adverse determination, why the requester thinks that the search does not meet the requirements of the FOIA.
(5) The Deputy Archivist shall consult with the agency specifying the restriction, when appropriate, and make a determination within 20 workdays after the date of receipt by the Deputy Archivist of the appeal. If an extension is required, the Deputy Archivist shall notify the requester within 20 workdays from receipt of the request. Time extensions shall not exceed 10 workdays in the aggregate: either solely in the initial stage or solely in the appellate stage, or divided between them.
(6) If the determination is adverse in whole or in part, the Deputy Archivist shall notify the requester of the right to judicial review.
(7) Denials and appeals of denials of access to information under the FOIA exemption 552(b)(1), national security
(a)
(2) When the request is for information from a single or small number of submitters, the notice shall be sent to the submitter's last known address.
(3) When the request is for information from a large number of submitters, notice shall be provided by publication of a notice in the
(4) The notice shall either describe the potentially commercially confidential information requested (if the notice is published in the
(5) NARA shall inform the requester that:
(i) Notice of receipt of a request has been provided to the submitter;
(ii) The response to the request may be delayed beyond the limitations specified in 5 U.S.C. 552(a)(6) (A) and (B) to allow for time to provide notice to the submitter, and to consider any response;
(iii) The delay may be considered as a denial of access to records and that the requester may seek judicial review. However, the requester shall be invited to agree to a voluntary extension of time so that NARA may consider any claims of commercial confidentiality provided by the submitter.
(b)
(2) The statement shall specify which information is claimed to be of a confidential commercial nature, and shall specify all grounds for withholding any of the information under the exemptions of the FOIA. If exemption (b)(4) of the FOIA is cited, the statement shall explain how the release of the information can be reasonably expected to cause substantial competitive harm to the submitter.
(3) The statement shall contain a certification that the information has not been published or officially released to the public.
(4) The statement provided pursuant to this subsection may itself be subject to disclosure under the FOIA under § 1250.75.
(c)
(1) States why the initial designation or the objections were not sustained;
(2) Describes or encloses a copy of the information proposed for disclosed; and
(3) Specifies a date on which it is proposed to release the information unless barred by court order. The requester shall be simultaneously informed of the disclosure date.
(d)
(e)
(1) NARA determines that the information should not be disclosed in accordance with one or more FOIA exemptions;
(2) The information has been published or officially made available to the public;
(3) Disclosure of the information is required by law (other than 5 U.S.C. 552); or,
(4) More than 10 years have passed since the date of submission, regardless of any designation as commercially confidential made by the submitter in accordance with the recipient agency's regulations, and NARA has no substantitial reason to believe that disclosure would result in competitive harm.
(5) The submitter failed to respond to a notice of receipt of request, in which case this initial notice shall serve as the notice of intent to disclose.
(a) Declassification of and public access to national security information and material, hereinafter referred to as “classified information” or collectively termed “information” is governed by Executive Order 12356 of April 2, 1982 (3 CFR, 1982 Comp., p. 166), the implementing Information Security Oversight Office Directive Number 1 of June 22, 1982 (47 FR 27836, June 25, 1982) and the Freedom of Information Act (5 U.S.C. 552).
(b) Public access to documents declassified in accordance with this regulation may be restricted or denied for other reasons under the provisions of 5 U.S.C. 552(b) for accessioned agency records; 36 CFR 1254.36 for donated historical materials; 44 U.S.C. 2201
(a)
(b)
(1) Advise whether the information should be declassified in whole or in part or should continue to be exempt from declassification;
(2) Provide a brief statement of the reason any requested information should not be declassified; and
(3) Return all reproductions referred for determination, including a copy of each document which should be released only in part, marked to indicate the portions which remain classified.
(c)
United States citizens or permanent resident aliens, Federal agencies, or State or local governments wishing to request mandatory review of classified information that has been accessioned
(a) Access to classified information may be granted to U.S. citizens who are engaged in historical research projects or who previously occupied policy-making positions to which they were appointed by the President. Persons desiring permission to examine material under this special historical researcher/Presidential appointees access program should contact NARA at least 4 months before they desire access to the materials to permit time for the responsible agencies to process the requests for access. NARA will inform requesters of the agencies to which they will have to apply for permission to examine classified information, including classified information originated by the White House or classified information in the custody of the National Archives which was originated by a defunct agency.
(b) Requestors may examine records under this program only after the originating or responsible agency:
(1) Determines in writing that access is consistent with the interest of national security;
(2) Takes appropriate steps to protect classified information from unauthorized disclosure or compromise, and ensures that the information is safeguarded in a manner consistent with Executive Order 12356; and
(3) Limits the access granted to former presidential appointees to items that the person originated, reviewed, signed, or received while serving as a presidential appointee.
(c) To protect against the possibility of unauthorized access to restricted documents, a director may issue instructions supplementing the research room rules provided in subpart B.
NARA will charge requesters for copies of declassified documents according to the fees listed in § 1258.12 of this chapter.
(a) The copying of documents will be done by personnel of the National Archives and Records Administration with equipment belonging to NARA. NARA reserves the right to make a duplicate, at NARA expense, of any material copied. Such duplicates may be used by NARA to make additional copies for others.
(b) In order to preserve the original documents, documents which are available on microfilm or other alternate copy will not be copied by other means as long as a legible copy (electrostatic, photographic, or microfilm) can be made from the microfilm.
(a)
(b)
(2) Reserved self-service copiers located in the designated research area on the second floor of the National Archives Building may be used between 9 a.m. and 12 noon and between 1 p.m. and 5 p.m., Monday through Friday, except Federal holidays. The reserved self-service copier located in the designated research area at the Washington National Records Center may be used between the hours of 8 a.m. and 12 noon and between 1 p.m. and 4 p.m., Monday through Friday, except Federal holidays.
(i) A copier may be reserved for one hour at a time in the textual research room in the National Archives Building and the National Archives at College Park and for one-half hour at a time in the Microfilm Research Room in the National Archives Building and in the Suitland Research Room in the Washington National Records Center. Another appointment may be reserved after completing the scheduled appointment. The appointment may be forfeited if the researcher does not arrive within 10 minutes after the scheduled time.
(ii) If an appointment must be canceled due to copier failure, NARA will make every effort to schedule a new mutually agreed-upon time. However, NARA will not displace researchers whose appointments are not affected by the copier failure.
(c)
(2) Researchers using the reserved copiers must submit the containers of documents to the attendant for review at least one hour prior to the scheduled appointment. The research room staff will deliver the containers to the designated area where the reserved copiers are located. Researchers using self-service copiers located in the research room will transport their containers of documents to the copier themselves.
(3) Researchers may copy from only one box and one folder at a time. After copying the documents, the researcher must show the original documents and the copies to a research room attendant.
(d)
(1) Bound archival volumes;
(2) Documents fastened together by staples, clips, acco fasteners, rivets, or similar fasteners, where folding or bending documents may cause damage;
(3) Documents larger than the glass copy plate of the copier;
(4) Documents with uncanceled security classification markings;
(5) Documents with legal restrictions on copying; and
(6) Documents which, in the judgement of the research room attendant, are in poor physical condition or which
(e)
(1) Security classification markings (RESTRICTED, CONFIDENTIAL, SECRET, TOP SECRET, and others) on declassified records must be properly canceled before documents are copied. Only a NARA staff member can cancel security markings. Properly declassified documents will bear the declassification authority.
(2) Researchers may not remove from the research room copies of documents bearing uncanceled classification markings. Copies of documents with uncanceled markings will be confiscated.
(3) When individual documents are being copied, the research room staff will cancel the classification markings on each page and will place the declassification authority on the first page of each document. If the researcher is copying only selected pages from a document, the researcher must make a copy of the first page bearing the declassification authority and attach that page to any subsequent page(s) copied from the document. This declassification authority must be presented to the guard when copies of documents are removed from the research room and/or the building.
(4) Researchers using the reserved copiers are provided with a declassification strip which is attached to the copier. The strip, which is reproduced on each page copied, cancels the security markings.
(f)
(g)
(1) To obtain a refund of any unused amount on a debitcard, a researcher must bring the debitcard to the Cashier's Office in room G-1 of the National Archives Building. Cash refunds for debitcards are currently limited to $20.00 or less. Refunds due for more than $20.00 are currently paid by U.S. Treasury check in approximately 6-8 weeks. Refunds due on debitcards obtained using credit cards will be made by issuing a credit of the refund amount to the credit card. Refunds due on debitcards obtained using funds from a deposit account will be made by crediting the refund to the deposit account.
(2) An NATF Form 30A, Request for Debit Card Refund or Credit, must be submitted to the Cashier's Office. The form is available from the research room staff or the Cashier. During evening hours and on Saturdays, researchers should enclose the completed form and debitcard in a preaddressed envelope, also available in the research room. The envelope may be dropped through the mail slot in room G-1 or mailed to the Cashier.
(a) Upon request, overall information pertaining to holdings or about specific documents will be furnished, provided that the time required to furnish the information is not excessive, and provided that the information is not restricted (see subpart C and subpart D).
(b) When so specified by a director, requests must be made on prescribed forms. Such forms will be approved by OMB as information collections and will bear the approved control number.
Normally, information contained in the documents will be furnished in the
The responsible director, or any of his or her superiors, the Director of the Federal Register, and their designees are authorized to certify copies of documents as true copies.
(a) This subpart establishes rules and procedures governing the use of privately owned microfilm equipment to film archival records and donated historical materials in the National Archives Building, the Washington National Records Center, the regional archives, and the Presidential libraries.
(b) Persons or organizations wishing to microfilm Federal agency records in the custody of a Federal Records Center should contact the director of the Center about procedures for obtaining permission to film those records.
(c) Federal agencies needing to microfilm archival records in support of the agency's mission must contact the Assistant Archivist for the National Archives, as soon as possible after the need is identified, for information concerning standards and procedures for microfilming archival records.
(a) Requests to microfilm archival records or donated historical materials (except donated historical materials under the control of the Office of Presidential Libraries) in the National Archives Building, the Washington National Records Center, or the regional archives must be made in writing to the Assistant Archivist for the National Archives (NN), NARA, Washington, DC 20408. Requests to microfilm records or donated historical materials in a Presidential library or donated historical materials in the National Archives Building under the control of the Office of Presidential Libraries must be made in writing to the Assistant Archivist for Presidential Libraries (NL), NARA, Washington, DC 20408. OMB control number 3095-0017 has been assigned to the information collection contained in this section.
(b) Request to use privately owned microfilm equipment should be submitted six months in advance of the proposed starting date of the microfilming project. Requests submitted with less advance notice will be considered and may be approved if space is available for the cameras in the area set aside for private microfilming and if the records require minimal preparation for filming. Only one microfilming project may be included in a request. NARA will not accept additional requests from an individual or organization to microfilm records in a NARA facility while NARA is evaluating an earlier request from that individual or organization to microfilm records at that facility. NARA will establish the number of camera spaces available to a single project based upon the total number of projects approved for filming at that time.
(c) The request must include:
(1) A description of the documents to be copied which includes the following elements:
(i) Agency of origin or, for donated historical materials, title of the collection,
(ii) Title of series or file segment;
(iii) Date span; and
(iv) Estimated volume in number of pages or cubic feet.
(2) The estimated amount of time (work-days) that the microfilm copying project will take; the date that the requester would like to begin the project; and the number of persons who would require training (see § 1254.100(b)).
(3) The number and a description of the equipment that will be used for copying including:
(i) The name of the manufacturer and model number; and
(ii) The type of light source to be employed (fluorescent, tungsten, or electronic flash) and if electronic flash (i.e., strobe) or fluorescent, whether the light source is filtered to omit ultraviolet radiation.
(4) A statement of the procedures which will be followed to ensure that all pages are copied, that the images on the microfilm are legible, and that the microfilm is properly processed. At a minimum, the procedures should meet the requirements specified in part 1230 of this chapter regarding the microfilming of permanent records.
(d) The requester must agree to credit the National Archives or the particular Presidential Library having custody of the original documents. The credit must appear at the beginning of a microfilm publication and in any publicity material or descriptions of the publication.
(1) If the original documents are Federal records, the requester must agree to include on the film this statement: “The documents reproduced in this publication are among the records of the (name of agency) in the custody of the National Archives of the United States. No copyright is claimed in these official U.S. Government records.”
(2) If the original documents are donated historical materials, the requester must agree to include on the film this statement: “The documents reproduced in this publication are donated historical materials from (name of donor) in the custody of the (name of Presidential library or National Archives). The National Archives administers them in accordance with the requirements of the donor's deed of gift and the U.S. Copyright Law, Title 17, U.S.C.”.
(e) If the person or organization producing the film plans to copyright the microfilm publication, the National Archives and Records Administration must be given a royalty-free worldwide license to sell the publication seven years after filming at the NARA facility is completed, or earlier if there is no commercial distributor.
(a) NARA will evaluate the requests on the basis of the extent to which completion of a proposed project would further NARA's efforts to preserve and to make available to the public the historically valuable records of the Government.
(b) NARA will approve only requests to microfilm a complete body of documents, such as an entire series or a major continous segment of a very large series which is reasonably divisible. Microfilming a complete body of documents means that all documents within the file unit(s) to be microfilmed will be consecutively copied, from the first to the last page, not skipping any pages in between except for pages that are exact duplicates or blank pages that are not included in a pagination scheme.
(c) NARA will normally approve only requests which include assurances that the project will adhere to the specifications in part 1230 of this chapter which concern microfilm stock standards, index placement, and microfilm processing for permanent records.
(d) NARA will approve only requests which specify that NARA will receive a first generation silver halide duplicate negative containing no splices made from the original camera negative of the microform record created in accordance with part 1230 of this chapter.
(1) NARA may use this duplicate negative microform to make duplicate preservation and reference copies. The copies may be made available for NARA and public use in NARA facilities and programs.
(2) NARA may also sell copies of the microform seven years after filming at
(e) NARA will not approve any request that does not include all of the information required by § 1254.92.
(f) NARA will normally not approve requests to microfilm documents:
(1) Which have previously been microfilmed and made available to the public;
(2) Which have been approved for microfilming by another party; or
(3) Which NARA plans to film as a NARA microfilm publication or which relate closely to other documents previously microfilmed or approved for microfilming by NARA. Exceptions to this provision may be granted at the discretion of NARA.
(g) NARA will normally not approve requests to microfilm the following categories of documents:
(1) Documents which include documents with general or specific restrictions on access that preclude their reproduction;
(2) Documents which include documents which are known to be protected by copyright;
(3) Documents of high intrinsic value which may be handled only by authorized NARA personnel;
(4) Documents in vulnerable physical condition;
(5) Documents having a high research demand and which would have to be denied to others for an extended period of time during the microfilming process. Where possible, NARA will assist requesters in developing filming schedules that avoid the need to close documents for a lengthy period of time; and
(6) Oversize documents, bound volumes, and other formats that would be subject to excessive stress and possible damage from special equipment planned to be used by the requester, as well as documents fastened with grommets, heavy duty staples, miscellaneous fasteners, or wafers and other adhesives that cannot be removed without tearing or breaking documents.
(h) NARA will normally not approve requests from persons or organizations who have failed to produce usable microfilm or to honor commitments made in previous requests, or who have had a previous permission to microfilm documents rescinded because of their conduct.
(i) NARA will not approve requests to microfilm documents in NARA facilities in which there is insufficient space available for private microfilming. NARA will not move documents from a facility lacking space for private microfilming to another NARA facility for that purpose.
(j) Federal agencies microfilming records in support of the agency's mission may use the space set aside for private microfilming. Agency microfilming takes precedence over private microfilming when there is insufficient space to accommodate both at the same time.
(a) As part of its evaluation of a request to microfilm documents, NARA will determine the amount of microfilm preparation that NARA must do before the documents can be microfilmed and the estimated cost of such preparation. The fees for microfilm preparation will be based on direct salary costs (including benefits) and supply costs when NARA staff performs the work. When the work is performed by a NARA contractor, the fees will be the cost to NARA. Microfilm preparation includes:
(1) Verifying or correcting the arrangement of documents after withdrawn items are reviewed and refiled when appropriate;
(2) Screening the documents for possible restrictions on use;
(3) Declassifying security classified documents;
(4) Removing document fasteners from documents when the fasteners can be removed without damage to the documents; and
(5) Taking any document conservation actions that must be accomplished in order to film the documents, such as document flattening or mending.
(b) NARA will provide the requester detailed information on the fees for microfilm preparation in the letter of approval. Payment of fees will be made in accordance with § 1258.14 of this chapter. When a body of documents
(a) Equipment must be designed for the microfilming of documents in roll form or standard fiche form and be operable from a table top. Only planetary type camera equipment may be used. Automatic feed devices may not be used. Book cradles or other specialized equipment designed for use with bound volumes, oversized documents, or other formats will be approved by the Office of the National Archives on a case-by-case basis.
(b) The power consumption of the equipment normally must not exceed 1.2 kilowatts. Power normally available is 115 volts, 60 hz. Requests for electricity exceeding that normally available must be made at least 90 days in advance.
(c) Equipment having clamps or other devices to exert pressure upon or to affix the document to any surface in a way that might damage the document may not be used.
(d) The equipment must not use a heat generating light source in close enough proximity to the documents to result in their physicial distortion or degradation. All sources of ultraviolet light must be filtered.
(a) Equipment used must conform to the equipment standards in § 1254.98.
(b) Documents must be handled in accordance with the training and instructions provided by NARA personnel so that documents are not damaged during copying and so that their original order is maintained. Only persons who have attended NARA training will be permitted to handle the documents or supervise microfilming operations. Training will be offered only in Washington, DC.
(c) Documents from only one file unit may be microfilmed at a time.
(d) Documents may not be left unattended on the copying equipment or elsewhere.
(e) Under normal microfilming conditions, actual copying time per sheet must not exceed 30 seconds.
(f) Any lights used with the camera must be turned off when the camera is not in actual operation.
(g) Microfilm equipment may be operated only in the presence of the research room attendant or a designated NARA employee.
(h) The equipment normally should be in use each working day that it is in a NARA facility. The director of the NARA facility (as defined in § 1252.2 of this chapter) will decide when equipment must be removed because of lack of regular use. The equipment must be promptly removed upon request of the facility director.
(i) NARA assumes no responsibility for loss or damage to microfilm equipment or supplies left unattended.
(j) NARA will inspect the microform output at scheduled intervals during the project to verify that the processed film meets the microfilm preparation and filming standards required by part 1230 of this chapter. To enable NARA to properly inspect the film, NARA must receive the film within 5 days after it has been processed. The person or organization producing the microfilm will provide NARA with a silver halide duplicate negative of the filmed records (see § 1254.94(d)) according to the schedule shown in (k). If the processed film does not meet the standards, NARA may require that the records be refilmed.
(k) When 10,000 or fewer images are filmed, the person or organization producing the microfilm will provide NARA with a silver halide duplicate negative upon completion of the project. When the project involves more than 10,000 images, a silver halide duplicate negative of the first completed roll or segment of the project reproducing this image count will be provided to NARA for evaluation; subsequent completed segments of the project, in quantities approximating 100,000 or fewer images, will be provided to NARA within 30 days after filming unless NARA approved other arrangements.
NARA may, at any time, rescind permission to microfilm records:
(a) If the person or organization fails to comply with the microfilming procedures in § 1254.100;
(b) If inspection of the processed microfilm reveals persistent problems with the quality of the filming or processing;
(c) If the person or organization fails to proceed with the microfilming or project as indicated in the request, or
(d) If the microfilming project is having an unanticipated adverse effect on the condition of the documents or the space set aside in the NARA facility for microfilming.
44 U.S.C. 2101-2118; 22 U.S.C. 1461(b).
This part contains material referred to in § 1254.30.
The use of some archives and donated historical materials transferred to the National Archives of the United States, especially those of recent date, is subject to restrictions prescribed in statute or Executive order, or restrictions specified by the donor or agency from which the records were transferred and imposed by the Archivist of the United States. Restrictions on access to particular records that have been specified by the donor or transferring agency are known as “specific restrictions.” Restrictions on access that may apply to more than one record group are termed “general restrictions,” and apply to the kinds of information or classes of records designated, regardless of the record group to which such records have been allocated. Both specific and general restrictions have been published in the “Guide to the National Archives of the United States.” (See § 1254.30.) Subparts A and B contain restrictions that have been added or revised since the publication of the latest edition of the Guide.
(a)
(1) NARA may authorize access to such records for the purpose of statistical or quantitative research to qualified persons doing biomedical research under the conditions outlined in this section.
(2) If NARA is able to make a copy of such records with all personal identifiers masked or deleted, NARA will make such a “sanitized” copy of the record available to all researchers in accordance with part 1254 of this chapter.
(3) NARA will not grant access to restricted census and survey records of
(4) NARA will not grant access contrary to a specific restriction to records which have specific restrictions on access imposed by the agency of origin in accordance with § 1256.40.
(b)
(1) Name and mailing address;
(2) Institutional affiliation and position, if applicable;
(3) List of published research;
(4) References from two persons who have first-hand knowledge of the requester's qualifications to perform the research;
(5) A statement of the nature of the research to be conducted and any plans for publication or presentation of the research findings;
(6) A listing of all sources of great funds supporting the research project or its publication;
(7) A statement of the methodology to be used;
(8) A statement of the administrative, technical, and physical safeguards to be employed by the researcher to prevent unauthorized use or disclosure of the records;
(9) A listing of the record groups and series titles to be used; and
(10) A statement that the researcher will abide by the conditions of access to be prescribed by NARA and that the researcher will assume responsibility for the action of all persons working with the researcher on the project.
(c)
(1) The Committee will examine the request to determine:
(i) Whether the requested information is of such a highly sensitive personal nature that disclosure should not be permitted even for biomedical statistical or quantitative research;
(ii) Whether the methodology proposed by the requester will permit the researcher to obtain the projected research results without revealing personally identifying information;
(iii) Whether the research results will be published or presented at an academic or research conference;
(iv) Whether the requester is a
(v) Whether the safeguards proposed by the requester will adequately protect the personal information; and
(vi) Whether NARA has sufficient staff and space available to safeguard privacy interests necessary to accommodate the research project.
(2) The decision of the Committee will be made in writing to the requester within 15 workdays after receipt of a completed request. At the discretion of the Committee, the researcher may meet with the Committee to discuss the project or to discuss revising the research proposal to meet possible objections of the Committee.
(d)
(1) The records may be used only for the purpose of the statistical research and for the statistical reporting of research findings as described in the approved research project. The records may not be used for any other purpose without NARA approval;
(2) The records and copies of any data elements which permit the identification of an individual or which can be identified with an individual may not be transferred to any person or institution not directly involved with the approved research project;
(3) Reasonable administrative, technical, and physical safeguards, as approved by NARA, to prevent unauthorized use or disclosure of the records shall be established by the researcher and followed by all persons associated with the research project;
(4) When required by NARA, the records shall be consulted at the NARA facility where the records are located;
(5) Any individually identifiable information in the researcher's notes or in authorized copies of the records shall be rendered anonymous by the researcher at the earliest possible time consistent with the purpose of the research project;
(6) Persons who are identified in the records may not be contacted by or on behalf of the researcher;
(7) Prior to publication or public presentation of the data, the final research product(s) shall be provided to the Assistant Archivist for the National Archives for review. NARA's review shall be limited to ensuring that there is no possible identification of individuals in the research findings. NARA will not evaluate the validity of the research findings;
(8) All research notes containing personally identifiable information from privacy-restricted records and/or copies of such records shall, upon completion of the project, be destroyed or returned to NARA, whichever condition NARA has imposed as a condition of access. If the notes and/or copies are destroyed, the researcher shall verify in writing to the Assistant Archivist for the National Archives that the research notes and/or copies have been destroyed.
(e)
(1) The institution with which the researcher is affiliated, if applicable;
(2) Persons who served as references in the application for access;
(3) Organizations which provided grant funds for the project;
(4) The sponsor of the publication or public presentation; and/or
(5) Appropriate professional organizations.
(a)
(b)
(c)
(a)
(b)
(c)
(a)
(b)
(1) The party that provided the information agrees to its release; or
(2) In the judgment of the Archivist of the United States, the passage of time is such that release of the information would not result in substantial competitive harm.
(c)
(a)
(1) Contain personal information not known to have been previously made public, and
(2) Relate to events less than 75 years old.
(b)
(1) To those officers and employees of the agency that transferred the records to the National Archives who have a need for the record in the performance of their official duties;
(2) To those officers and employees of the agency that originated the information in the records who have a need for the records in the performance of their official duties;
(3) To researchers for the purpose of statistical or quantitative research when such researchers have provided the National Archives with adequate written assurance that the record will be used solely as a statistical research or reporting record and that no individually identifiable information will be disclosed; or
(4) To the subject individual or his duly authorized representative (the individual requesting access will be required to furnish reasonable and appropriate identification). Access will not be granted, however, to records containing the following categories of information:
(i) Investigatory material compiled for law enforcement purposes or for the purpose of determining suitability, eligibility, or qualifications for Federal civilian employment, military service, or Federal contracts if the identity of the source who furnished the information to the Government under an expressed or implied promise of confidentiality is revealed;
(ii) Evaluation material used to determine potential for promotion in the armed services if the identity of the source who furnished the information to the government under an expressed or implied promise of confidentiality is revealed; and
(iii) Security classified material.
(c)
(a)
(b)
(1) If the release of the information does not interfere with enforcement proceedings, and
(2) If confidential sources and/or confidential information are not revealed, and
(3) If the release of the information would not constitute an unwarranted invasion of personal privacy, and
(4) If confidential investigation techniques are not described, and
(5) If the release of the information would not endanger the safety of law enforcement personnel, or
(6) If, in the judgment of the Archivist of the United States the passage of time is such that:
(i) The safety of persons is not endangered, and
(ii) The public interest in disclosure outweighs the continued need for confidentiality.
(c)
Some records in NARA legal custody are covered by restrictions imposed by the agency of origin that are in conformance with the Freedom of Information Act.
This subpart prescribes procedures governing the public availability of audiovisual records and other materials subject to 22 U.S.C. 1461(b) that have been transferred to the National Archives of the United States by the United States Information Agency (USIA).
This subpart implements section 501 of the United States Information and Educational Exchange Act of 1948 (22 U.S.C. 1461), as amended by section 202 of Public Law 101-246 (104 Stat. 49, Feb. 16, 1990). This subpart prescribes procedures by which the public may inspect and obtain copies of USIA audiovisual records and other materials prepared for dissemination abroad that have been transferred to NARA for preservation and domestic distribution.
For the purposes of this subpart—
The provisions of 44 U.S.C. 2107 and 36 CFR part 1228 apply to the transfer of USIA audiovisual records to NARA, and to their deposit with the National Archives of the United States. At the time the audiovisual records are transferred to NARA, the Director of USIA, in accordance with § 1228.184(e) of this chapter, will also transfer any production or title files bearing on the ownership of rights in the productions in connection with USIA's official overseas programming.
No USIA audiovisual records in the National Archives of the United States that were prepared for dissemination abroad will be available for copying until it has been at least 12 years since such materials were first disseminated abroad, or, in the case of materials prepared for foreign dissemination but not disseminated abroad, until it has been at least 12 years since the preparation of the materials.
(a)
(b)
(1) USIA audiovisual records prepared for dissemination abroad that NARA determines may have copyright protection or may contain copyrighted material will be made available for examination in NARA research facilities in accordance with the regulations set forth in this Title.
(2) Copies of USIA audiovisual records prepared for dissemination abroad that NARA determines may have copyright protection or may contain copyrighted material will be provided to persons seeking the release of such materials in the United States once NARA has:
(i) Ensured, in accordance with paragraph (b)(3) of this section, that the persons seeking copies have secured and paid for necessary United States rights and licenses;
(ii) Been provided with evidence from the Copyright Office sufficient to determine that copyright protection in the materials sought, or relevant portions therein, has lapsed or expired; or
(iii) Received a requester's signed certification in accordance with paragraph (b)(4) of this section that the materials sought will be used only for purposes permitted by the Copyright Act of 1976, as amended, including the fair use provisions of 17 U.S.C. 107. No copies of USIA audiovisual records will be provided until the fees authorized under part 1258 of this chapter have been paid to NARA.
(3) If NARA has determined that a USIA audiovisual record prepared for dissemination abroad may have copyright protection or may contain copyrighted material, persons seeking the release of such material in the United States may obtain copies of the material by submitting to NARA written evidence from all copyright and/or license owner(s) that any necessary fees have been paid or waived and any necessary licenses have been secured.
(4) If NARA has determined that a USIA audiovisual record prepared for dissemination abroad may have copyright protection or may contain copyrighted material, persons seeking the release of such material in the United States may obtain copies of the material by submitting to NARA the following certification statement:
I, (printed name of individual), certify that my use of the copyrighted portions of the (name or title and NARA identifier of work involved) provided to me by the National Archives and Records Administration (NARA), will be limited to private study, scholarship, or research purposes, or for other purposes permitted by the Copyright Act of 1976, as amended. I understand that I am solely responsible for the subsequent use of the copyrighted portions of the work identified above.
(c) In every instance where a copy of an audiovisual record is provided under this subpart, and NARA has determined that the work being reproduced may have copyright protection or may contain copyrighted material, NARA shall provide a warning notice of copyright.
(d) Nothing in this section shall limit NARA's ability to make copies of USIA audiovisual records for preservation, arrangement, repair and rehabilitation, description, exhibition, security, or reference purposes.
Copies or reproductions of audiovisual records will only be provided under this subpart upon payment of fees in accordance with 44 U.S.C. 2116(c) and 22 U.S.C. 1461(b)(3).
44 U.S.C. 2116(c).
44 U.S.C. 2116(c) authorizes the charging of a fee for making or authenticating copies or reproductions of materials transferred to the Archivist's custody. Under 44 U.S.C. 2307 the Chairman, National Archives Trust Fund Board, is authorized to prepare and publish special works and collections of sources and to prepare, duplicate, edit, and release historical photographic materials and sound recordings and sell those publications and releases at a price that will cover their cost, plus 10 percent.
(a) Except as otherwise provided in this section, fees for the reproduction of NARA archival records, donated historical materials, and records filed with the Office of the Federal Register are as set forth in § 1258.12. Some reproduction services listed in § 1258.12 may not be available at all NARA facilities.
(b) The fees set forth in § 1258.12 apply to reproduction of FRC records, except when NARA and the agency that transferred the records have agreed to apply that agency's fee schedule.
(c) The following categories are excluded from the fees set forth in § 1258.12.
(1) National Archives Trust Fund Board publications, including microfilm publications. Prices are available from the Product Sales Section (NWPS), 700 Pennsylvania Ave., NW., Room G-9, Washington, DC 20408.
(2) [Reserved]
(3) Motion picture, sound recording, and video holdings of the National Archives and Presidential libraries. Information on the availability of and prices for reproduction of these materials are available from the Motion Picture, Sound, and Video Branch (NWDNM), 8601 Adelphi Rd., Room 3340, College Park, MD 20740-6001, or from the Presidential library which has such materials (see § 1253.3 of this chapter for addresses).
(4) Electronic records. Information on the availability of and prices for duplication are available from the Center for Electronic Records (NWRE), 8601 Adelphi Rd., Room 5320, College Park, MD 20740-6001, or from the Presidential library which has such materials (see § 1253.3 of this chapter for addresses).
(5) Still photography, including aerial film, and oversize maps and drawings. Information on the availability and prices of reproductions of records held in the Still Pictures Branch (NWDNS) and the Cartographic and Architectural Branch (NWDNC), both located at the National Archives at College Park facility, 8601 Adelphi Rd., College Park, MD 20740-6001, and in the Presidential libraries and regional records services facility (see §§ 1253.3 and 1253.7 of this chapter for addresses) should be obtained from the unit which has the original records.
(6) Reproduction of the following types of records using the specified order form:
(i) Military service files and pension files more than 75 years old (order form NATF Form 80). Reproduction of a military service file (or selected documents from the file if voluminous)—$10.
(ii) Passenger arrival lists (order form NATF Form 81)—$10.
(iii) Federal Census requests (order form NATF Form 82)—$6.
(iv) Eastern Cherokee applications to the Court of Claims (order form NATF Form 83)—$10.
(v) Land entry records (order form NATF Form 84)—$10.
(7) Reproductions of NARA administrative records made in response to FOIA requests under part 1250 of this chapter. Fees for such reproductions are found in § 1250.40 of this chapter.
(8) Orders for expedited service (“rush” orders) for reproduction of still pictures and motion picture and video recordings among the holdings of a Presidential library. Orders may be accepted on an expedited basis by the library when the library determines that sufficient personnel are available to handle such orders or that the NARA contractor making the reproduction can provide the service. Rush orders are subject to a surcharge to cover the additional cost of providing expedited service.
(9) Orders requiring additional expense to meet unusual customer specifications such as the use of special techniques to make a photographic copy more legible than the original document, or unusual format or background requirement for negative microfilm. Fees for these orders are computed for each order.
No fee is charged for reproduction or certification in the following instances:
(a) Documents furnished to other elements of the Federal Government. However, a fee may be charged if the appropriate director determines that the service cannot be performed without reimbursement.
(b) When NARA wishes to disseminate information about its activities to the general public through press, radio, television, and newsreel representatives;
(c) When the reproduction is to furnish the donor of a document or other gift with a copy of the original;
(d) When the reproduction is for individuals or associations having official voluntary or cooperative relations with NARA in its work;
(e) When the reproduction is for a foreign, State, or local government or an international agency and furnishing it without charge is an appropriate courtesy;
(f) For records center records only:
(1) When furnishing the service free conforms to generally established business custom, such as furnishing personal reference data to prospective employers of former Government employees;
(2) When the reproduction of not more than one copy of the document is required to obtain from the Government financial benefits to which the requesting person may be entitled (e.g., veterans or their dependents, employees with workmen's compensation claims, or persons insured by the Government);
(3) When the reproduction of not more than one copy of a hearing or other formal proceeding involving security requirements for Federal employment is requested by a person directly concerned in the hearing or proceeding; and
(4) When the reproduction of not more than one copy of a document is for a person who has been required to furnish a personal document to the Government (e.g., a birth certificate required to be given to an agency where the original cannot be returned to the individual).
Color reproductions are furnished to the public and the Government only on a fee basis.
Requests for photographs of materials for which no copy negative is on file are handled as follows:
(a) The cost of the negative shall be charged to the customer; except in cases where NARA wishes to retain the negative for its own use.
(b) When no fee is charged the negative becomes the property of NARA. When a fee is charged the negative becomes the property of the customer.
(a) There is a minimum fee of $10 per order for reproductions which are sent by mail to the customer.
(b) Orders to addresses in the United States are sent either first class or UPS depending on the weight of the order and availability of UPS service. When a customer requests special mailing services (such as Express Mail or registered mail) and/or shipment to a foreign address, the cost of the special service and/or additional postage for
(a)
(b)
(2) Paper-to-paper copies (up to and including 11 in. by 17 in.) made by NARA staff:
(i) At a Presidential library; at a regional records services facility; and, when ordered on a same-day “cash and carry” basis, at a Washington, DC, area facility: $0.50 per copy.
(ii) All other orders placed at a Washington, DC, area facility: $10 for the first 1-20 copies; $5 for each additional block of up to 20 copies.
(3) Oversized electrostatic copies (per linear foot): $2.50.
(4) Electrostatic copies (22 in. by 34 in.): $2.50.
(5) Microfilm or microfiche to paper copies made by the customer on a NARA self-service copier: $0.25.
(6) Microfilm or microfiche to paper copies made by NARA staff: $1.75.
(c)
(2) Direct duplicate copy of accessioned microfilm: $34.00 per roll.
(3) Positive copy of accessioned microfilm: $34.00 per roll.
(d)
(e)
(2) Additional 90-minute use of video copying station with no videocassette: $14.
(3) Blank 120-minute VHS videocassette: $6.
(f)
(g)
(h)
Fees may be paid in cash, by check or money order made payable to the National Archives Trust Fund, or by selected credit cards. Remittances from outside the United States must be made by international money order payable in U.S. dollars or a check drawn on a U.S. bank. Fees must be paid in advance except when the appropriate director approves a request for handling them on an account receivable basis. Purchasers with special billing requirements must state them when placing orders and must complete any special forms for NARA approval in advance.
The fees in § 1258.12 are effective on July 14, 1997.
44 U.S.C. 2104(a); Executive Order 12356 of April 2, 1982 (3 CFR 1982 Comp., p. 166).
(a) Declassification of and public access to national security information and material (hereafter referred to as “classified information” or collectively termed “information”) is governed by Executive Order 12356 of April 2, 1982 (47 FR 14874, 3 CFR 1982 Comp, p. 166) and by the Information Security Oversight Office Directive Number 1 of June 22, 1982 (47 FR 27836, June 25, 1982).
(b) Documents declassified in accordance with this regulation may be withheld from release under the provisions of 5 U.S.C. 552(b) for accessioned agency records; 36 CFR 1254.36 for donated historical materials; 44 U.S.C. 2201 et seq. and 36 CFR part 1270 for Presidential records; and 44 U.S.C. 2111 note and 36 CFR part 1275 for Nixon Presidential materials. Procedures for public requests for mandatory review of classified information under Executive Order 12356 are found in § 1254.46 of this chapter.
(a)
(b)
(c)
(d)
(e)
(f)
To ensure that NARA will be able to respond promptly to mandatory review requests and appeals from denials, the head of each agency shall be requested to provide NARA with the current name, title, and address of the agency's designated mandatory review and appellate authority.
(a)
(b)
Upon receipt of a request for mandatory review of classified U.S. Government originated information or foreign government information forwarded by NARA, the originating or responsible agency shall:
(a) Either make a prompt declassification determination and notify NARA accordingly, or inform NARA of the additional time needed to process the request. NARA will inform the requester of the agency action. Except in unusual circumstances, agencies shall make a final determination within one year.
(b) Notify NARA of any other agency to which it forwarded the request in those cases requiring the declassification determination of another agency.
(c) Return to NARA a complete copy of each declassified document with the agency determination. NARA will forward the reproduction to the requester. When a request cannot be declassified in its entirety, the agency must also furnish NARA, for transmission to the requester, the following:
(1) A brief statement of the reasons the requested information cannot be declassified; and
(2) A statement of the requester's right to appeal within 60 calendar days of receipt of the denial; the procedures for taking such action; and the name, title, and address of the appeal authority.
(d) The agency appellate authority shall make a determination within 30 working days following receipt of an appeal. If additional time is required to make a determination, the agency appellate authority shall notify NARA of the additional time needed and the reason for the extension. The agency appellate authority shall notify NARA in writing of the final determination and of the reasons for any denial. NARA will provide the researcher a copy of any notifications.
(e) Furnish to NARA a complete copy of each document to be released only in part, clearly marked to indicate the portions which remain classified.
NARA is responsible for declassification of all information in the custody of NARA originated by an agency which has ceased to exist and whose functions have not been transferred to another agency and of all foreign government information originally received or classified by such an agency. NARA will promptly acknowledge receipt of requests for such information, review the information using applicable systematic review guidelines, and, when necessary, consult with any agency having primary subject matter interest. NARA shall either make a prompt declassification determination and notify the requester accordingly, or inform the requester of the additional time needed to process the request. Except in unusual circumstances NARA shall make a final determination within one year. If the request is denied in whole or in part, the Assistant Archivist for the National Archives or the Assistant Archivist for Presidential Libraries will furnish the requester a brief statement of the reasons for denial and a notice of the right to appeal the determination within 60 calendar days to the Deputy Archivist of the United States (mailing address: National Archives (ND), Washington, DC 20408). Upon receipt of an appeal the Deputy Archivist shall, within 30 working days:
(a) Review the previous decision made to deny the information and, as necessary;
(b) Consult with the appellate authorities in any agency having primary subject matter interest in the information previously denied; and
(c) Notify the requester of the determination and make available to the requester any additional information that has been declassified as a result of the appeal.
Upon receipt of a request forwarded by NARA for consultation regarding the declassification of information originated by a defunct agency or of foreign government information originally received or classified by a defunct agency, the agency with primary subject matter interest shall:
(a) Advise the Archivist whether the information should be declassified in whole or in part or should continue to be exempt from declassification; and
(b) Return the request to NARA along with a brief statement of the reasons any requested information should not be declassified.
Information originated by a President, the White House staff, by committees, commissions, or boards appointed by a President, or others specifically providing advice and counsel to a President or acting on behalf of a President (hereafter cited as White House originated information) is subject to mandatory review consistent with the provisions of applicable laws or lawful agreements that pertain to the respective Presidential papers or records. Unless precluded by such laws or agreements, White House originated information is subject to mandatory review 10 years after the close of the administration which created the materials or when the materials have been archivally processed, whichever occurs first.
(a) NARA shall promptly acknowledge receipt of a request for mandatory review of such classified White House originated information and foreign
(b) NARA will review the requested information, determine which agencies have primary subject matter interest, forward to those agencies copies of material containing the requested information, and request their recommendations regarding declassification.
(c) NARA will review the recommendations returned by the agencies and make its declassification determination within one year of receipt of the request, except in unusual circumstances.
(d) When the request cannot be declassified in its entirety, NARA will furnish the requester:
(1) A brief statement of the reasons the requested information cannot be declassified;
(2) Access to those portions of documents releasable only in part that constitute a coherent segment; and
(3) A notice of the right to appeal the determination within 60 calendar days to the Deputy Archivist of the United States (mailing address: National Archives (ND), Washington, DC 20408).
Upon receipt of an appeal, the Deputy Archivist shall within 30 working days:
(a) Review the decision made to deny the information;
(b) Consult with the appellate authorities in agencies having primary subject matter interest in the information previously denied;
(c) Notify the requester of the determination and make available to the requester any additional information which has been declassified as a result of the appeal; and
(d) Notify the requester of the right to appeal denials of access to the Director, Information Security Oversight Office (mailing address: General Services Administration (Z), Washington, DC 20405).
Upon receipt of a request forwarded by NARA for consultation regarding declassification of White House originated information and foreign government information received by or classified in the White House, the agency with primary subject matter interest shall:
(a) Advise the Archivist whether the information should be declassified in whole or in part or should continue to be exempt from declassification; and
(b) Provide a brief statement of the reasons any requested information should not be declassified and return a complete copy of the reproductions to NARA; and
(c) Return all reproductions referred for consultation including a complete copy of each document which should be released only in part, clearly marked to indicate the portions which remain classified.
(a) NARA shall promptly acknowledge the receipt of a request for mandatory review of classified White House originated information and foreign government information received by or classified in the White House more than 30 years old, and shall act upon that request within 60 calendar days. If additional time is necessary to make a declassification determination, NARA shall notify the requester of the time needed to process the request. NARA will make a final determination within 1 year of the receipt of the request, except in unusual circumstances.
(b) NARA shall review the information using applicable systematic review guidelines and will make available to the requester information declassified using those guidelines.
(c) Information which cannot be declassified by NARA using systematic review guidelines will be promptly forwarded to the agencies with primary subject matter interest and further processed in accordance with § 1260.42(b) through (d) and §§ 1260.44 through 1260.46.
Agencies having custody of classified White House information of a previous administration shall forward requests for mandatory review of such information to the Office of the National Archives (mailing address: National Archives (NND), Washington, DC 20408) together with copies of documents containing the requested information and the agency's recommendations regarding declassification. NARA will make a declassification determination on such requests after consulting with any other agency with primary subject matter interest and will reply to the requester. If the request is denied in whole or in part, the requester may appeal within 60 calendar days of receipt of the denial to the Deputy Archivist of the United States (mailing address: National Archives (ND), Washington, DC 20408). Appeals are processed in accordance to the procedures listed in § 1260.44.
An agency may request NARA to temporarily close, re-review, and possibly reclassify records and donated historical materials originated by the agency which were declassified in accordance with E.O. 12356 or predecessor Orders. The agency shall submit the request in writing to the Assistant Archivist for the National Archives (NN) or to the Assistant Archivist for Presidential Libraries (NL) (mailing address: National Archives (NL), Washington, DC 20408). If the urgency of the matter precludes a written request, an authorized agency official may make a preliminary request by telephone. A written request shall follow the oral request within 5 workdays. In the request the authorized agency official shall:
(a) Identify the records or donated historical materials involved as specifically as possible;
(b) Explain the reason the agency believes a re-review and possible reclassification may be necessary in the interest of national security; and
(c) Provide any information the agency may have concerning any previous public disclosure of the information in the records or donated historical materials.
Requests from agencies to re-review and possibly reclassify information originated by a President; the White House staff; committees commissions, or boards appointed by the President; or others specifically providing advice and counsel to a President or acting on behalf of a President and which has been declassified and disclosed shall be submitted in writing to the Archivist of the United States. In the request the authorized agency official shall:
(a) Specifically identify the record or donated historical material;
(b) Explain the reason the agency believes a re-review and possible reclassification may be necessary in the interest of national security; and
(c) Provide any information the agency may have concerning the public disclosure of the information in the records or donated historical material.
NARA may appeal to the Director, Information Security Oversight Office, any re-review or reclassification request from an agency when, in the Archivist's opinion, the facts of previous disclosure suggest that such action is unwarranted or unjustified.
The Presidential Records Act of 1978, Pub. L. 95-591, 92 Stat. 2523-27, as amended by the National Archives and Records Administration Act of 1984, Pub. L. 98-497, sec. 107(b)(7), 98 Stat. 2287 (1984) (codified at 44 U.S.C. 2201-07).
These regulations implement the provisions of the Presidential Records Act of 1978, Pub. L. No. 95-591, 92 Stat. 2523-27, as amended by Pub. L. No. 98-497, sec. 107(b)(7), 98 Stat. 2287 (1984) (codified at 44 U.S.C. 2201-07), by setting forth the policies and procedures governing preservation, protection, and disposal of, and access to Presidential and Vice-Presidential records created during a term of office of the President or Vice President beginning on or after January 20, 1981. Nothing in these regulations is intended to govern procedures for assertion of, or response to, any constitutionally based privilege which may be available to an incumbent or former President.
(a) These regulations apply to all Presidential records created during a term of office of the President beginning on or after January 20, 1981.
(b) Vice-Presidential records shall be subject to the provisions of this part in the same manner as Presidential records. The Vice President's duties and responsibilities, with respect to Vice-Presidential records, shall be the same as the President's duties and responsibilities with respect to Presidential records. The Archivist's authority with respect to Vice-Presidential records shall be the same as the Archivist's authority with respect to Presidential records, except that the Archivist may, when he determines it to be in the public interest, enter into an agreement with a non-Federal archival repository for the deposit of Vice-Presidential records.
For the purposes of this part—
(a) The terms
(b) The term
(c) The term
(d) The term
(e) The term
(a) A President or former President may designate some person or persons to exercise, upon death or disability of the President or former President, any or all of the discretion or authority granted to the President or former President by chapter 22 of title 44 U.S.C.
(b) When a President or former President designates a person or persons to act for him pursuant to paragraph (a) of this section, this designation shall be effective only if the Archivist has received notice of the designation before the President or former President dies or is disabled.
(c) The notice required by paragraph (b) of this section shall be in writing, and shall include the following information:
(1) Name(s) of the person or persons designated to act for the President or former President;
(2) The current addresses of the person or persons designated; and
(3) The records, identified with reasonable specificity, over which the designee(s) will exercise discretion or authority.
In those instances where a President has specified, in accordance with 44 U.S.C. 2204(a), restrictions on access to Presidential records, but has not made a designation under § 1270.20 of this subpart, the Archivist shall, upon the death or disability of a President or former President, exercise the discretion or authority granted to a President or former President by 44 U.S.C. 2204.
A President may, while in office, dispose of any Presidential records which in his opinion lack administrative, historical, informational, or evidentiary value if one of the following two sets of requirements is satisfied:
(a)(1) The President has obtained the written views of the Archivist concerning the proposed disposal; and
(2) The Archivist states in his written views to the President that he does not intend to request, with respect to the President's proposed disposal of Presidential records, the advice of the Committees on Rules and Administration and Governmental Affairs of the Senate, and the Committees on House Administration and Government Operations of the House of Representatives because he does not consider—
(i) The records proposed for disposal to be of special interest to the Congress; or
(ii) Consultation with the Congress concerning the proposed disposal to be in the public interest; or
(b)(1) The President has obtained the written views of the Archivist concerning the proposed disposal;
(2) The Archivist states in his written views either—
(i) That the records proposed for disposal may be of special interest to the Congress; or
(ii) That consultation with the Congress concerning the proposed disposal is in the public interest; and
(3) The President submits copies of the proposed disposal schedule to the Committees on Rules and Administration and Governmental Affairs of the Senate and the Committees on House Administration and Government Operations of the House of Representatives at least 60 calendar days of continuous session of Congress in advance of the proposed disposal date. For the purpose of this section, continuity of session is broken only by an adjournment of Congress
(a) The Archivist may dispose of Presidential records which he has appraised and determined to have insufficient administrative, historical, informational, or evidentiary value to warrant their continued preservation.
(b) When Presidential records are scheduled for disposal pursuant to paragraph (a) of this section, the Archivist shall publish a notice of this disposal in the
(c) The notice required by paragraph (b) of this section, shall include the following:
(1) A reasonably specific description of the records scheduled for disposal; and
(2) A concise statement of the reason for disposal of the records.
(d) Publication in the
(a) If a President, prior to the conclusion of his term of office or last consecutive term of office, as the case may be, specifies durations, not to exceed 12 years, for which access to certain information contained in Presidential records shall be restricted, in accordance with 44 U.S.C. 2204, the Archivist or his designee shall identify the Presidential records affected, or any reasonably segregable portion thereof, in consultation with that President or his designated representative(s).
(b) The Archivist shall restrict public access to the information contained in those records identified as affected until—
(1) The date on which the former President waives the restriction on disclosure of the record or information contained within;
(2) The expiration of the period of restriction specified under 44 U.S.C. 2204(a) for the category of information under which a certain record, or a portion thereof, was restricted; or
(3) The Archivist has determined that the former President or an agent of the former President has placed in the public domain through publication a restricted record or a reasonably segregable portion thereof, if this date is earlier than either of the dates specified in paragraph (b)(1) or (2) of this section.
(a) Any person denied access to a Presidential record (hereinafter
(b) Appeals shall be filed no later than 10 working days after the requester receives written notification that access to Presidential records has been denied.
(c) Appeals shall be in writing and shall set forth the reason(s) why the requester believes access to the records sought should be allowed. The requester shall identify the specific records sought.
(d) Upon receipt of an appeal, the Assistant Archivist for Presidential Libraries shall have 30 working days from the date an appeal is filed to consider the appeal and to respond in writing to the requester. The Assistant Archivist's response shall state whether or not the Presidential records requested are to be released and the basis for this determination. The decision of the Assistant Archivist to withhold release of Presidential records is final and not subject to judicial review.
(a) Notwithstanding any restrictions on access imposed pursuant to section 2204 or these regulations, and subject to any rights, defenses, or privileges which the United States or any agency or person may invoke, Presidential records shall be made available in the following instances:
(1) Pursuant to subpoena or other judicial process properly issued by a court of competent jurisdiction for the purposes of any civil or criminal investigation or proceeding;
(2) To an incumbent President if the records sought contain information which is needed for the conduct of current business of his office and is not otherwise available;
(3) To either House of Congress, or, to the extent of matter within its jurisdiction, to a Congressional committee or subcommittee if the records sought contain information which is needed for the conduct of business within its jurisdiction and is not otherwise available.
(b) Requests by an incumbent President, a House of Congress, or a Congressional committee or subcommittee pursuant to paragraph (a) of this section shall be addressed to the Archivist. All requests shall be in writing and, where practicable, identify the records sought with reasonable specificity.
(c) Presidential records of a former President shall be available to the former President or his designated representative upon request.
(a) The Archivist or his designee shall notify a former President or his designated representative(s) before any Presidential records of his Administration are disclosed.
(b)(1) The notice given by the Archivist or his designee shall:
(i) Be in writing;
(ii) Identify the particular records with reasonable specificity;
(iii) State the reason for the disclosure; and
(iv) Specify the date on which the record will be disclosed.
(2) In the case of records to be disclosed in accordance with § 1270.44, the notice shall also:
(i) Identify the requester and the nature of the request;
(ii) Specify whether the requested records contain materials to which access would otherwise be restricted pursuant to 44 U.S.C. 2204(a) and identify the category of restriction within which the record to be disclosed falls; and
(iii) Specify the date of the request.
(c) If, after receiving the notice required by paragraph (a) of this section, a former President raises rights or privileges which he believes should preclude the disclosure of a Presidential record, and the Archivist nevertheless determines that the record in question should be disclosed, in whole or in part, the Archivist shall notify the former President or his representative of this determination. The notice given by the Archivist or his designee shall:
(1) Be in writing;
(2) State the basis upon which the determination to disclose the record is made; and
(3) Specify the date on which the record will be disclosed.
(d) The Archivist shall not disclose any records covered by any notice required by paragraph (a) or (c) of this section for at least 30 calendar days from receipt of the notice by the former President, unless a shorter time period is required by a demand for Presidential records under § 1270.44.
(e) Copies of all notices provided to former Presidents under this section shall be provided at the same time to the incumbent President.
(a) For the processing of Presidential records compiled for law enforcement purposes that may be subject to 5 U.S.C. 552(b)(7), the Archivist shall request specific guidance from the appropriate Federal agency on the proper treatment of a record if there is no general guidance applicable, if the record is particularly sensitive, or if
(b) When specific agency guidance is requested under paragraph (a) of this section, the Archivist shall notify the appropriate Federal agency of the decision regarding disclosure of the specific documents. Notice shall include the following:
(1) A description of the records in question;
(2) Statements that the records described contain information compiled for law enforcement purposes and may be subject to the exemption provided by 5 U.S.C. 552(b)(7) for records of this type; and,
(3) The name of a contact person at NARA.
(c) Agency guidance under this section is not binding on the Archivist. The final determination on whether Presidential records may be subject to the exemption in 5 U.S.C. 552(b)(7) is the Archivist's responsibility.
Sec. 102(a) of the National Archives and Records Administration Act of 1984, Pub. L. 98-497; 44 U.S.C. 2104; and secs. 103 and 104 of the Presidential Recordings and Materials Preservation Act 88 Stat. 1695; 44 U.S.C. 2111 note.
This part sets forth policies and procedures concerning the preservation and protection of and access to the tape recordings, papers, documents, memorandums, transcripts, and other objects and materials which constitute the Presidential historical materials of Richard M. Nixon, covering the period beginning January 20, 1969, and ending August 9, 1974.
This part 1275 implements the provisions of title I of the Presidential Recordings and Materials Preservation Act (Pub. L. 93-526; 88 Stat. 1695). It prescribes policies and procedures by which the National Archives and Records Administration will preserve, protect, and provide access to the Presidential historical materials of the Nixon Administration.
This part 1275 applies to all of the Presidential historical materials of the Nixon Administration in the custody of the Archivist of the United States pursuant to the provisions of title I of the Presidential Recordings and Materials Preservation Act (Pub. L. 93-526; 88 Stat. 1695).
The Archivist of the United States has or will obtain exclusive legal custody and control of all Presidential historical materials of the Nixon Administration held pursuant to the provisions of title I of the Presidential Recordings and Materials Preservation Act (Pub. L. 93-526; 88 Stat. 1695).
For the purposes of this part 1275, the following terms have the meaning ascribed to them in this § 1275.16.
(a)
(b)
(c)
(1) Were within the purview of the charters of the Senate Select Committee on Presidential Campaign Activities or the Watergate Special Prosecution Force; or
(2) Are circumscribed in the Articles of Impeachment adopted by the House Committee on the Judiciary and reported to the House of Representatives for consideration in House Report No. 93-1305.
(d)
(e)
(f)
(g)
(h)
(i)
Each agency which receives a request or legal demand for access to Presidential historical materials of the Nixon Administration shall immediately forward the request or demand to the Archivist of the United States, National Archives and Records Administration (NARA), Washington, DC 20408.
The Archivist is responsible for the preservation and protection of the Nixon Presidential historical materials.
The Archivist is responsible for providing adequate security for the Presidential historical materials.
When authorized by the Archivist and until the commencement of archival processing in accordance with subpart D of this part, archivists may process the Presidential historical materials to the extent necessary for protecting and preserving the materials, and for providing authorized access to the materials pursuant to subpart C of this part.
(a) The Archivist will receive and/or prepare appropriate documentation of each access authorized under this part 1275.
(b) Entry to the records storage areas will be provided by the Archivist only to archival, maintenance, security, or other necessary personnel or to Mr. Nixon or his agent. Two persons, at least one of whom represents the Archivist, will be present at all times that records storage areas are occupied.
(c) The Archivist will determine that each individual having access to the Presidental historical materials has a security clearance equivalent to the highest degree of national security classification that may be applicable to any of the material examined.
(d) The Archivist will provide former President Nixon or his designated attorney or agent (hereinafter Mr. Nixon), prior notice of, and allow him to be present during, each search necessary to comply with an authorized access under § 1275.32 or § 1275.34.
(e) Only NARA archivists shall conduct searches necessary to comply with authorized accesses under §§ 1275.32 and 1275.34.
(f) Prior to releasing Presidential historical materials in accordance with an access authorized under § 1275.32 or § 1275.34, the Archivist will give Mr. Nixon notice of the nature and identity of, and at his request allow him access to, those Presidential historical materials which the archivists have determined are covered by the subpoena, or other lawful process, or request. The notice will also inform Mr. Nixon that he may file a claim with the Archivist objecting to the release of all or portions of the described materials within 5 workdays of his receiving the notice described herein. The claim should detail the alleged rights and privileges of Mr. Nixon which would be violated by the release of the materials. The Archivist will refrain from releasing any of the materials to the requester during this period, and while any claim of right or privilege is pending before him, will refrain from releasing the materials subject to the claim.
(g) The Archivist will notify Mr. Nixon in writing of the administrative determination on any claims filed in accordance with paragraph (f) of this section. In the event the determination is wholly or partially adverse to the claim, the Archivist will refrain from releasing the materials to the requester for an additional 5 workdays from Mr. Nixon's receipt of the determination.
(h) Whenever possible, a copy, which shall be certified upon request, instead of the original documentary Presidential historical materials shall be provided to comply with a subpoena or other lawful process or request. Whenever the original documentary material is removed, a certified copy of the material shall be inserted in the proper file until the return of the original.
In the event of an emergency that threatens the physical preservation of the Presidential historical materials or their environs, the Archivist will take such steps as may be necessary, including removal of the materials to temporary locations outside the metropolitan area of the District of Columbia, to preserve and protect the materials.
In accordance with the provisions of subpart B of this part, former President Richard M. Nixon or his designated agent shall at all times have access to Presidential historical materials in the custody and control of the Archivist.
In accordance with the provisions of subpart B of this part, any Federal agency or department in the executive branch shall have access for lawful Government use to the Presidential historical materials in the custody and control of the Archivist to the extent necessary for ongoing Government business. The Archivist will only consider written requests from heads of agencies or departments, deputy heads of agencies or departments, or heads of major organizational components or functions within agencies or departments.
In accordance with the provisions of subpart B of this part, and subject to any rights, defenses, or privileges which the Federal Government or any person may invoke, the Presidential historical materials in the custody and control of the Archivist will be made available for use in any judicial proceeding and are subject to subpoena or other lawful process.
This subpart sets forth policies and procedures concerning public access to the Presidential historical materials of Richard M. Nixon.
(a)(1) The archivists will conduct archival processing of those materials other than tape recordings to prepare them for public access. In processing the materials, the archivists will give priority to segregating private or personal materials and transferring them to their proprietary or commemorative owner in accordance with § 1275.48. In conducting such archival processing, the archivists will restrict portions of the materials pursuant to §§ 1275.50 and 1275.52. All materials other than tape recordings to which reference is made in § 1275.64 will be prepared for public access and released subject to restrictions or outstanding claims or petitions seeking such restrictions. The Archivist will open for public access each integral file segment of materials upon completion of archival processing of that segment.
(2) The archivists will conduct archival processing of the tape recordings to prepare them for public access in accordance with the provisions set forth in the Settlement Agreement (see Appendix A to this part). In conducting the archival processing of the tape recordings, the archivists will restrict segments of the tape recordings pursuant to §§ 1275.50 and 1275.52. The tape segments which consist of abuses of governmental power information, as defined in § 1275.16(c), will be given priority processing by the archivists and will be prepared for public access and released following review and resolution of objections from the Nixon estate and other interested parties as set forth in the Settlement Agreement (see Appendix A to this Part). After the tape segments which consist of abuses of governmental power information have been released, the archivists will conduct archival processing of those tape recordings which were taped in the Cabinet Room, as set forth in the Settlement Agreement, Appendix A to this Part. Following release of the Cabinet Room tape recordings, the remaining tape recordings will be prepared for public access and released in five segments in accordance with the schedule set forth in the Settlement Agreement. In addition, NARA will identify and return any additional private or personal segments to the Nixon estate, at approximately the time that NARA proposes each segment for public release.
(b) At least 30 calendar days prior to the opening to public access of any integral file segment of the materials, the Archivist will publish notice in the
(c) The Archivist will maintain a registry which shall contain the names and mailing addresses of persons who wish to receive personal notice of the proposed opening of integral file segments of the materials when those segments contain references about them. To be included in the registry, a person must submit his/her name and mailing address to the National Archives and Records Administration (NLN), Washington, DC 20408. Both the envelope and letter should be prominently marked, “Nixon Materials Registry.” By submitting his/her name for inclusion in the registry, a person agrees to reimburse the United States for the cost of
(a) Within 30 days following publication of the notice prescribed in § 1275.42(b), any person claiming a legal or constitutional right or privilege which would prevent or limit public access to any of the materials shall notify the Archivist in writing of the claimed right or privilege and the specific materials to which it relates. Unless the claim states that particular materials are private or personal (see paragraph (d) of this section), the Archivist will notify the claimant by certified mail, return receipt requested, of his decision regarding public access to the pertinent materials. If that decision is adverse to the claimant, the Archivist will refrain from providing public access to the pertinent materials for at least 30 calendar days from receipt by the claimant of such notice.
(b) Within 30 days following publication of the notice prescribed in § 1275.42(b), officers of any Federal, State, or local court and other persons who believe that public access to any of the materials may jeopardize an individual's right to a fair and impartial trial should petition the Archivist setting forth the relevant circumstances that warrant withholding specified materials. The Archivist will notify the petitioner by certified mail, return receipt requested, of his decision regarding public access to the pertinent materials. If that decision is adverse to the petitioner, the Archivist will refrain from providing public access to the pertinent materials for at least 30 calendar days from receipt by the petitioner of such notice.
(c) In reaching decisions required by paragraphs (a) and (b) of this section, the Archivist may consult with other appropriate Federal agencies. If these consultations require the transfer of copies of the materials to Federal officials in agencies other than the National Archives and Records Administration, the Archivist will transfer these copies in accordance with the procedures prescribed in §§ 1275.26 and 1275.32.
(d) Within 30 days following publication of notice prescribed in § 1275.42(b), any person claiming that materials proposed for public access are in fact private or personal, as defined in § 1275.16(b), and that he or she is the proprietary or commemorative owner of those materials shall notify the Archivist in writing. The claim shall describe the specific materials to which it refers, and the claimant's basis for concluding that these materials are private or personal. Upon receipt of such a claim, the Archivist will transmit it to the Presidential Materials Review Board for its consideration and determination in accordance with § 1275.46(i). The Archivist will refrain from providing public access to the pertinent materials or from returning them to the claimant for at least 30 calendar days from receipt by the claimant or any intervening parties of the Board's determination.
(e)(1) In place of the right to make all other objections with respect to the tape segments that NARA has designated as abuses of governmental power materials, the Nixon estate may object to their release only on the ground that such designation by NARA is clearly inconsistent with the term “abuses of governmental power” as used in § 104(a)(1) of the Presidential Recordings and Materials Preservation Act (PRMPA) and defined in § 1275.16(c), as qualified by § 1275.50(b). Any such objection may not be based on isolated instances of alleged failure by NARA to apply the appropriate review standard, but only on a pattern of misapplication of the requirements of the PRMPA and its implementing regulations. Further, any such objection must be accompanied by specific examples of alleged review errors and contain sufficient information to enable the review panel of three Presidential Library archivists appointed by the Archivist, as described in the Settlement Agreement, Appendix A to this Part, to locate those examples readily.
(2) If an objection is made by the Nixon estate to the abuses of governmental power tape segments, the matter shall be immediately referred to a
(3) The Nixon estate may, at any time, elect to use the procedures outlined in paragraphs (e)(1) and (e)(2) of this section for the tape recordings other than the abuses of governmental power segments, except that the standard under which objections shall be made by the Nixon estate, and under which the review panel shall decide their merits, is whether the release taken as a whole is plainly inconsistent with the requirements of the Presidential Recordings and Materials Preservation Act of 1974 and these regulations. If the Nixon estate elects to use the procedures in paragraph 1 of the Settlement Agreement (Appendix A to this Part) in place of the provisions in paragraphs 4 (b) and (d) and 5(c) of the Settlement Agreement for a tape segment, the estate cannot subsequently revert back to the formal objection process set forth in this section for that tape segment.
(a) During the processing period described in § 1275.42(a), the Archivist will assign archivists to segregate private or personal materials, as defined in § 1275.16(b). The archivists shall have sole responsibility for the initial review and determination of private or personal materials. At all times when the archivists or other authorized officials have access to the materials in accordance with these regulations, they shall take all reasonable steps to minimize the degree of intrusion into private or personal materials. Except as provided in these regulations, the archivists or other authorized officials shall not disclose to any person private or personal or otherwise restricted information learned as a result of their activities under these regulations.
(b) During the processing period described in § 1275.42(a), the Archivist will assign archivists to segregate materials neither relating to abuses of governmental power, as defined in § 1275.16(c), nor otherwise having general historical significance, as defined in § 1275.16(d). The archivists shall have sole responsibility for the initial review and determination of those materials which are not related to abuses of governmental power and do not otherwise have general historical significance.
(c) During the processing period described in § 1275.42(a), the Archivist will assign archivists to segregate materials subject to restriction, as prescribed in §§ 1275.50 and 1275.52. The archivists shall have sole responsibility for the initial review and determination of materials that should be restricted. The archivists shall insert a notification of withdrawal at the front of the file folder or container affected by the removal of restricted material. The notification shall include a brief description of the restricted material and the basis for the restriction as prescribed in §§ 1275.50 and 1275.52.
(d) If the archivists are unable to make a determination required in paragraphs (a), (b), or (c) of this section, or if the archivists conclude that
(e) If the Senior Archival Panel is unable to make a determination required in paragraph (d) of this section, or if the panel concludes that the required determination raises significant issues involving interpretation of these regulations or will have far-reaching precedential value, the Panel shall certify the matter and submit the pertinent materials, or representative examples of them, to the Presidential Materials Review Board.
(f) The Presidential Materials Review Board (Board
(1) The Assistant Archivist for the Office of the National Archives;
(2) The Assistant Archivist for the Office of the Presidential Libraries;
(3) The Director of the Legal Counsel Staff of the National Archives and Records Administration; and
(4) The Historian of a Federal agency who shall be selected by the Archivist in his capacity as Chairman.
(g) When the matter certified to the Board by the Senior Archival Panel involves a determination required in paragraphs (a) or (b) of this section, the Board shall prepare a final written decision, together with dissenting and concurring opinions, of the proper categorization and disposition of the pertinent materials. The Board's decision will be the final administrative determination.
(h) When the matter certified to the Board by the Senior Archival Panel involves a determination required in paragraph (c) of this section, the Board shall recommend an initial determination to the Senior Archival Panel, which shall retain the sole responsibility for the initial determination.
(i) When the Board considers a matter referred to it by the Archivist as provided in § 1275.44(d), it shall follow these procedures:
(1) The Board shall notify the claimant of its consideration of the claim, and invite the claimant to supplement at his discretion the basis for the claim.
(2) The Board will publish notice in the
(3) The Board shall take into account the positions maintained by the claimant and any intervenors in reaching its decision. The Board shall issue its decision, including dissenting and concurring opinions, no sooner than 20 days nor later than 60 days from the publication of notice in the
(a) The Archivist will transfer sole custody and use of those materials determined to be private or personal, or to be neither related to abuses of governmental power nor otherwise of general historical significance, to former President Nixon's estate, or, when appropriate and after notifying the Nixon estate, to the former staff member having primary proprietary or commemorative interest in the materials; however, no physical part of any original tape recording or a master preservation copy to which reference is made in § 1275.64 shall be transferred to the heirs of former President. NARA will maintain the original tape recordings and a master preservation copy, including the private and personal segments, in a manner consistent with the PRMPA and these regulations and will restrict access to all private or personal material on the originals and the master preservation copy.
(b) Materials determined to be neither related to abuses of governmental power nor otherwise of general historical significance, and transferred pursuant to paragraph (a) of this section, shall upon such transfer no longer be deemed Presidential historical materials as defined in § 1275.16(a).
(a) The Archivist will restrict access to materials determined during the processing period to relate to abuses of governmental power, as defined in § 1275.16(c), when:
(1) The Archivist, in accordance with § 1275.44, is in the process of reviewing or has determined the validity of a claim by any person of a legal or constitutional right or privilege; or
(2) The Archivist, in accordance with § 1275.44, is in the process of reviewing or has determined the validity of a petition by any person of the need to protect an individual's right to a fair and impartial trial; or
(3) The release of the materials would violate a Federal statute; or
(4) The materials are authorized under criteria established by Executive order to be kept secret in the interest of national defense or foreign policy, provided that any question as to whether materials are in fact properly classified or are properly subject to classification shall be resolved in accordance with the applicable Executive order or as otherwise provided by law. However, the Archivist may waive this restriction when:
(i)(A) The requester is engaged in a historical research project; or
(B) The requester is a former Federal official who had been appointed by the President to a policymaking position and who seeks access only to those classified materials which he originated, reviewed, signed or received while in public office; and
(ii) The requester has a security clearance equivalent to the highest degree of national security classification that may be applicable to any of the materials to be examined; and
(iii) The Archivist has determined that the heads of agencies having subject matter interest in the material do not object to the granting of access to the materials; and
(iv) The requester has signed a statement, which declares that the requester will not publish, disclose, or otherwise compromise the classified material to be examined and that the requester has been made aware of Federal criminal statutes which prohibit the compromise or disclosure of this information.
(b) The Archivist will restrict access to any portion of materials determined to relate to abuses of governmental power when the release of those portions would constitute a clearly unwarranted invasion of personal privacy or constitute libel of a living person:
(a) The Archivist will restrict access to materials determined during the processing period to be of general historical significance, but not related to abuses of governmental power, under one or more of the circumstances specified in § 1275.50(a).
(b) The Archivist will restrict access to materials of general historical significance, but not related to abuses of governmental power, when the release of these materials would:
(1) Disclose trade secrets and commercial or financial information obtained from a person and privileged or confidential; or
(2) Constitute a clearly unwarranted invasion of personal privacy or constitute libel of a living person; or
(3) Disclose investigatory materials compiled for law enforcement purposes, but only when the disclosure of such records would:
(i) Interfere with enforcement proceedings;
(ii) Deprive a person of a right to a fair trial or an impartial adjudication;
(iii) Constitute an unwarranted invasion of personal privacy;
(iv) Disclose the identity of a confidential source, and in the case of a record compiled by a criminal law enforcement authority in the course of a criminal investigation or by an agency conducting a lawful national security intelligence investigation, confidential information furnished only by the confidential source;
(v) Disclose investigative techniques and procedures; or
(vi) Endanger the life or physical safety of law enforcement personnel.
The Archivist periodically will assign archivists to review materials placed under restriction by § 1275.50 or § 1275.52 and to make available for public access those materials which, with the passage of time or other circumstances, no longer require restriction. If the archivists are unable to determine whether certain materials should remain restricted, the archivists shall submit the pertinent materials, or representative examples of them, to the Senior Archival Panel described in § 1275.44(d), which shall then have the responsibility for determining if the materials should remain restricted. The Senior Archival Panel may seek the recommendations of the Presidential Materials Review Board, in the manner prescribed in paragraph (e) and (h) of § 1275.46, in making its determination. Before opening previously restricted materials, the Archivist will comply with the notice requirements of § 1275.42(b).
Upon petition of any researcher who claims in writing to the Archivist that the restriction of specified materials is inappropriate and should be removed, the archivists shall submit the pertinent materials, or representative examples of them, to the Presidential Materials Review Board described in § 1275.46(f). The Board shall review the restricted materials, and consult with interested Federal agencies as necessary. To the extent these consultations require the transfer of copies of materials to Federal officials outside the National Archives and Records Administration, the Board shall comply with the requirements of §§ 1275.26 and 1275.32. As necessary and practicable, the Board shall also seek the views of any person, including former President Nixon, whose rights or privileges might be adversely affected by a decision to open the materials. The Board shall prepare a final written decision, including dissenting and concurring opinions, as to the continued restriction of all or part of the pertinent materials. The Board's decision shall be the final administrative determination. The Archivist will notify the petitioner and other interested persons of the final administrative determination within 60 calendar days following receipt of such petition. If the Board's decision is to open previously restricted materials, the Archivist will comply with the notice requirements of § 1275.42(b).
The Archivist will provide a requester any reasonably segregable portions of otherwise restricted materials after the deletion of the portions which are restricted under this § 1275.50 or § 1275.52.
Challenges to the classification and requests for the declassification of national security classified materials shall be governed by the provisions of 36 CFR part 1254 of this chapter, as that may be amended from time to time.
The Archivist shall, from time to time, separately prescribe the precise location or locations where the materials shall be available for public reference, and the hours of operation and rules governing the conduct of researchers using such facilities. This information may be obtained by writing to: Office of Presidential Libraries (NL), The National Archives, Washington, DC 20408.
(a) To ensure the preservation of original tape recordings of conversations which were recorded or caused to be recorded by any officer or employee of the Federal Government and which:
(1) Involve former President Richard M. Nixon or other individuals who, at the time of the conversation, were employed by the Federal Government; and
(2) Were recorded in the White House or in the office of the President in the Executive Office Buildings located in Washington, DC; Camp David, MD; Key Biscayne, FL; or San Clemente, CA; and
(3) Were recorded during the period beginning January 20, 1969, and ending August 9, 1974, the Archivist will produce duplicate copies of such tape recordings in his custody for public and official reference use. The original tape recordings shall not be available for public access.
(b) Since the original tape recordings may contain information which is subject to restriction in accordance with § 1275.50 or § 1275.52, the archivists shall review the tapes and delete restricted portions from copies for public and official reference use.
(c) Researchers may listen to reference copies of the tape recordings described in paragraph (a) of this section in a National Archives building in the Washington, DC area and at other reference locations established by the Archivist in accordance with § 1275.62.
(d) The reproduction for members of the public of the reference copies of the available tape recordings described in paragraph (a) of this section will be permitted as follows: Copies of tape recordings will be made available following the public release of the last of the tape segments contemplated in § 1275.42(a). If the releases contemplated in § 1275.42(a) are not completed by December 31, 1999, NARA will, beginning January 1, 2000, allow members of the public to obtain copies only of the abuses of governmental power tapes, together with any other tapes publicly released as of the effective date of the Settlement Agreement. If the releases contemplated in § 1275.42(a) are not completed by December 31, 2002, NARA will, beginning January 1, 2003, allow members of the public to obtain copies of all tapes that have been made available to the public by that date and tapes that subsequently become available as they are released. Such copying will be controlled by NARA or its designated contractor. The fees for the reproduction of the tape recordings under this section shall be those prescribed in the schedule set forth in part 1258 of this chapter or pertinent successor regulation, as that schedule is amended from time to time.
(e) The Archivist shall produce and maintain a master preservation copy of the original tape recordings for preservation purposes.
(a) Copying of materials other than tape recordings described in § 1275.64 may be done by NARA, by a contractor designated by NARA, or by researchers using self-service copiers. Such self-
(b) The Archivist may authenticate and attest copies of materials when necessary for the purpose of the research.
(c) The fees for reproduction and authentication of materials under this section shall be those prescribed in the schedule set forth in part 1258 of this chapter or pertinent successor regulation, as that schedule is amended from time to time.
The Archivist may from time to time amend the regulations of this subpart D in accordance with the applicable law concerning such amendments.
(a) The Archivist will process Freedom of Information Act requests for access to only those materials within the Presidential historical materials which are identifiable by an archivist as records of an agency as defined in § 1275.16(f). The Archivist will process these requests in accordance with the Freedom of Information regulations set forth in § 1254.30 of this chapter or pertinent successor regulations.
(b) In order to allow NARA archivists to devote as much time and effort as possible to the processing of materials for general public access, the Archivist will not process those Freedom of Information requests where the requester can reasonably obtain the same materials through a request directed to an agency (as defined in § 1275.16(f)), unless the requester demonstrates that he or she has unsuccessfully sought access from that agency or its successor in law or function.
Settlement Agreement filed April 12, 1996, in
This Settlement Agreement (“Agreement”) is made by and entered into among plaintiffs Stanley I. Kutler and Public Citizen; defendant/cross-claim defendant John W. Carlin, in his official capacity as Archivist of the United States; and defendant-intervenors/cross-claimants John H. Taylor and William E. Griffin, co-executors of the estate of Richard M. Nixon (“the Nixon estate”), in the above-entitled action by and through the parties’ undersigned attorneys.
It is hereby agreed, by and among the parties, appearing through their undersigned attorneys, that this action is partially settled on the following terms:
1(a). As soon as practicable, the National Archives and Records Administration (“the Archives”) will publicly release the segments of tape recordings made during the Presidency of Richard M. Nixon (“tape recordings” or “tapes”) identified by the Archives as relating to “abuses of governmental power,” as defined by 36 C.F.R. Part 1275, along with the corresponding portions of the tape log and any other finding aid. The date of that release, which is expected to be on or about November 15, 1996, shall be determined in the following manner.
(b). No later than April 15, 1996, the Archives shall deliver to an agent of the Nixon estate a copy of the approximately 201 hours of abuses of governmental power tape segments that it proposes to release, together with the corresponding portions of the tape log and any other finding aid, for review by the Nixon estate to determine whether it intends to object to the release. The Archives agrees to provide a period of orientation to the designated Nixon estate agent with respect to the review of the abuses of governmental power tape segments and to be available to respond to questions thereafter.
(c). In place of the right to make all other objections with respect to the tape recordings that the Archives has designated as abuses of governmental power materials, the Nixon estate agrees that it may object to their release only on the ground that such designation by the Archives is clearly inconsistent with the term “abuses of governmental power” as used in section 104(a)(1) of
(d). The Nixon estate shall have until October 1, 1996, to submit any objection in accordance with subparagraph 1(c) above. If no such objection is filed, the Archives shall proceed to issue a notice of proposed release pursuant to 36 C.F.R. 1275.42 as soon as possible, but no later than October 15, 1996.
(e). If an objection is made, the matter shall be immediately referred to a panel of the following three Presidential Library archivists: David Alsobrook, Frances Seeber, and Claudia Anderson. If any of these three persons is unable to serve, the Archivist shall appoint a substitute who is acceptable to the other parties.
(f). The panel shall have such access to the tapes as it deems necessary to make its decision. The decision of the panel shall be either that the Nixon estate's objection is sustained or that it is rejected. The decision shall include a brief statement of the panel's reasons, but it need not include an item-by-item determination. In deciding whether the designation by the Archives of the material proposed to be released is clearly inconsistent with the definition of “abuses of governmental power,” the panel shall consider whether the release would seriously injure legitimate interests of identifiable individuals, whether the errors suggest a pattern of misinterpretation, and any other factor that bears on the issue of whether the Archives’ designation of material as relating to abuses of governmental power was reasonable, considered as a whole. The decision of the panel shall be made within sixty (60) days of the date of the objection. However, if the panel determines that exceptional circumstances interfere with its ability to meet this deadline, the panel shall have up to an additional sixty (60) days to make its decision. The Archives shall notify the other parties of the need for an extension and briefly describe the reasons therefor. The panel's decision shall be final and binding on all parties, and no party may exercise any right to appeal to any person, board, or court that might otherwise be available. Nothing contained in this Agreement shall preclude the panel from advising the Archives of any particular processing errors that it believes may have been made, but the Archivist shall make the final determination as to whether to accept such advice.
(g). If the objection of the Nixon estate is sustained, the Archives shall re-review the tapes sufficiently to address the concerns raised by whatever aspect of the objection is sustained. At the conclusion of such re-review, the same process of review, first by the Nixon estate and then by the panel in the event of further objection, shall be repeated for those tape segments concerning the subject matter of the sustained objection prior to any release of tape recordings designated as relating to abuses of governmental power.
(h). The Nixon estate agrees to inform the Archives and plaintiffs whether it intends to file objections as soon as it has made its decision. If there is an objection by the Nixon estate and it is overruled, the
(i). If, following the
(j). The Archives shall send to plaintiff Kutler, to arrive no later than the day that the release of the tapes occurs, a copy of the portions of the tape log and any other finding aid that correspond to the tapes being released. The Archives shall also make suitable arrangements for plaintiff Kutler to listen to such tapes on the date of their release,
2(a). Although the Agreement provides that the Archives will identify and return to the Nixon estate a copy of any private or personal materials identified on the tapes, the parties have been unable to reach agreement regarding the Archivist's retention and maintenance of the original tape recordings in their entirety, including those segments deemed to be private or personal, along with a master preservation copy. The government's position is that it is complying with the Act by retaining the original tapes and a master preservation copy, including those portions containing private or personal conversations. The Nixon estate's position, with which plaintiffs agree, is that the family has statutory, constitutional, and other rights that prevent the Archives from retaining private or personal materials, on both the original tapes and all copies.
(b). The parties have agreed to litigate the issue described in subparagraph 2(a) above, including the validity of 36 C.F.R. 1275.48(a) and 1275.64(e) as proposed for amendment. The parties further agree that the Court shall retain jurisdiction of that issue, as provided in paragraph 14 below, and that the right to litigate this issue includes the right to seek review in the United States Court of Appeals for the District of Columbia Circuit and the United States Supreme Court. If there is litigation between the Nixon estate and the Archivist over the issue described in subparagraph 2(a) above, the plaintiffs shall support the Nixon estate in any such litigation by filing a brief supporting the estate's position in District Court. The parties agree to make all reasonable efforts to expedite resolution of this issue.
(c). This Agreement and all discussions, negotiations and exchanges of information leading to it shall be entirely without prejudice to any positions the parties may take in the event of such litigation. Nothing in this Agreement, in any discussions leading to it, or in any information or materials exchanged by the parties as part of the mediation may be relied on or disclosed by any party to support or rebut the position of any party with respect to the treatment of private or personal materials on the original tapes. Nothing in this subparagraph prevents any party from expressing its understanding as to the meaning and effect of the legal position of another party.
3. The Archives will provide to the Nixon estate any additional private or personal materials at approximately the time that the Archives proposes each segment identified in paragraphs 4 and 5 below for public release. Any additional copies of that material (other than on a master preservation copy, the status of which will be determined in accordance with the resolution of the issue as described in subparagraph 2(a) above), will be destroyed by appropriate method, with appropriate means of verification.
4(a). The second group of tapes to be processed for release is the approximately 278 hours recorded in the Cabinet Room. The projected date for publishing a notice of proposed opening of tapes in that group is August 1, 1997. The Archives will make the Cabinet Room tapes proposed for release available to the Nixon estate in no fewer than four (4) segments. The process by which those tapes will be reviewed by the Nixon estate, and the objections handled by the Archives, is set forth in the following subparagraphs of this paragraph 4.
(b). The Nixon estate agrees to review each segment as it is received and promptly to call to the attention of the Archives any concerns that it may have. The Archives and the Nixon estate agree to attempt to work out their differences informally in order to minimize any objections to a proposed release. To facilitate informal consultation between the Nixon estate and the Archives concerning the tape review, the Archivist shall designate a panel member identified in subparagraph 1(e) above who will serve as a contact with the Nixon estate and assure access to information relating to Presidential libraries practices and procedures that may arise in the course of the tape review. The designated individual will be responsible for assuring that the Nixon estate has access to the appropriate person to answer its concerns. The Nixon estate may communicate with the designated individual orally or in writing. If the Archives agrees with the Nixon estate that any portion of a segment that has been sent to the Nixon estate as a proposed release should not be released, the Archives shall assure that there is appropriate documentation to reflect that change.
(c). The Nixon estate will have a period of at least six (6) months in which to review all of the Cabinet Room tapes, beginning on the date the Archives makes the first installment of such tapes available to the estate for review (but in no event will the six (6) months begin earlier than November 15, 1996). During the review of the Cabinet Room tapes, the Nixon estate will employ an agent or agents who will spend an average of at least thirty two (32) hours a week (total) in actual review of the tapes. The Nixon estate may request from the Archives an extension of the six-month review period, which the Archives shall grant if good cause is shown.
(d). If, during its review, the Nixon estate becomes aware that there are materials proposed for release that it believes should not be heard even by individuals on the registry list, it will promptly advise the Archives of any such materials so that they can be reviewed and/or segregated by the Archives before any other individual is permitted to listen to them. The Nixon estate will cooperate
5(a). The remaining tapes, consisting of approximately 2338 hours, shall be processed for release in five (5) segments. Because the precise number of hours of tapes for each month cannot readily be determined, the parties have agreed to divide the releases into the segments set forth below. The Archives will begin processing (which includes, but is not limited to, tape review, preparing tapes for declassification review, tape editing and production of finding aids) each segment before processing of the preceding segment is concluded. Processing of the tapes in each segment is projected to take from about fifteen (15) to about twenty three (23) months. The approximate number of hours of tapes to be reviewed in each segment is set forth in parentheses in the following listing of the segments. The projected number of months between the completion of the Archives’ processing of the immediately preceding segment and the completion of the Archives’ processing of each listed segment is set forth in brackets.
(b). The time estimates in this Agreement are not enforceable as such, but the parties agree to have the Court retain jurisdiction to consider requests that it enter a binding order setting a schedule for the Archives to complete the processing of the tapes. No party may seek such an order unless that party first provides twenty (20) days’ written notice to the other parties of that party's intention to seek such an order. Further, no party may seek such an order except on the ground that the Archives has unreasonably failed to meet the estimates contained herein by a substantial amount. The type of proof that will demonstrate reasonableness on the part of the Archives in this regard may include, but will not necessarily be limited to, a showing that the Archives is reasonably allocating its resources among its various programs and activities in the event that it experiences a shortage of resources, including any occasioned by court order.
(c). Portions of each segment processed by the Archives shall be provided to the Nixon estate when the processing of each month of tape recorded material is completed, unless there are a very few hours for two (2) or more months, which may then be combined into a single unit. During its review of the chronological tape segments, the Nixon estate will employ an agent or agents who will spend an average of at least thirty two (32) hours a week (total) in actual review of the tapes, forty eight (48) weeks of the year. As its review of the tapes proceeds, the Nixon estate shall provide a written report of its progress to the Archives and the plaintiffs on a bimonthly basis. The report shall include the number of hours worked in each week, the number of hours of tapes reviewed in each week, and the Nixon estate's projected completion date for review of the segment currently under review. The provisions of subparagraphs 4(b) and 4(d) above shall apply to the review, objections, and releases with respect to the chronological tape segments, subject to paragraph 7 below.
(d). If one of the other parties to this Agreement determines that the Nixon estate's review is not being conducted diligently or in good faith, or that the estate's estimated completion date(s) of one or more segments is unreasonable, that party may petition the Archivist to establish an earlier date(s) for the completion of the review of that segment and/or of future segments. Any such date(s) established by the Archivist shall provide the Nixon estate with a reasonable opportunity to protect and assert its interests without unduly delaying the release of the tapes, and shall be based upon consideration of the progress of the Archives’ review and its scheduled completion date(s); the progress to date of the estate's review; and the time reasonably necessary to complete the estate's review and to formulate and present any objections. The Archives may also propose earlier dates for the completion of the review by the Nixon estate on the basis provided for in this subparagraph. If a proposal for an earlier date is made, the Nixon estate will have a reasonable opportunity to respond.
6. Once the Archives has completed processing the approximately 2338 hours of tapes discussed in paragraph 5 above, and has made corresponding releases, the Archives shall identify any additional copies of partial tape segments in its possession. If the Archives determines that some or all of such additional partial tape segments are duplicative of any tape recordings that it has already processed, the Archives may dispose of the duplicative tape segments, following notification to the parties, subject to paragraph 3 above. To the extent that such partial tape
7(a). After completion of the procedures described in paragraph 4 above, the Cabinet Room tapes that are found to be releasable under paragraph 4 above may be released if either there has been a final decision by the district court on the issue to be litigated as described in subparagraph 2(a) above, or the release is scheduled after April 1, 1998, whichever of these two events happens sooner.
(b). After completion of the procedures described in paragraph 5 above, the tapes described in paragraph 5(a) above that are found to be releasable may be released if either there has been a final judgment by the district court, which is not subject to further review by appeal or certiorari, with regard to the issue to be litigated as described in subparagraph 2(a) above, or there has been a final decision by the United States Court of Appeals for the District of Columbia Circuit on this issue, or the release is scheduled to take place after November 1, 1999, whichever of these three events happens sooner.
(c). As used in subparagraphs 7(a) and (b) above, the term “final decision” means a decision not subject to reconsideration under Rule 59 of the Federal Rules of Civil Procedure, or Rules 35 or 40 of the Federal Rules of Appellate Procedure, respectively.
8. The Nixon estate may, at any time, elect to use the procedures in paragraph 1 above with respect to any tape segment in place of the provisions of paragraphs 4(b) and (d) and 5(c) above, with the following substitution: The standard under which objections shall be made, and under which the panel shall decide their merits, is whether the release taken as a whole is plainly inconsistent with the requirements of the Act and its implementing regulations. Provided, however, that once the Nixon estate elects to use the procedures in paragraph 1 above in place of the provisions in paragraphs 4(b) and (d) and 5(c) above, it cannot subsequently revert back to the formal objection process set forth in 36 C.F.R. Part 1275 for that tape segment.
9. Within thirty (30) days of the Court's entry of an order as described in paragraph 14 below, the Archivist shall designate a particular person who shall be responsible for responding to reasonable inquiries from the plaintiffs on the status of the releases and objections. Such designation may be changed at any time at the Archivist's discretion by a notice to plaintiffs through their counsel.
10. If the Archives appoints a Senior Archival Panel as defined in 36 C.F.R. 1275.46(d) and (e), no party to the Agreement may object to the appointment of such a panel on the ground that the suggestion to appoint such a panel was originated by an individual other than the processing archivists assigned to the Archives’ Nixon Presidential Materials Staff.
11. The Archives will allow members of the public to obtain copies of publicly accessible portions of the tapes after the releases described in paragraph 5 above, are completed; provided, however, that if the releases described in paragraph 5 above are not completed by December 31, 1999, the Archives will allow members of the public to obtain copies only of the abuses of governmental power tapes, together with any other tapes publicly released as of the date of the filing of this Agreement with the Court, beginning January 1, 2000. Further provided, that if the releases described in paragraph 5 above are not completed by December 31, 2002, the Archives will, beginning January 1, 2003, allow members of the public to obtain copies of all tapes that have been made available to the public by that date and tapes that subsequently become available, as they are released.
12(a). Promptly after the Court enters the Order provided for in paragraph 14 below, plaintiff Kutler will withdraw his request under the Freedom of Information Act, 5 U.S.C. 552, for any and all tape logs and other finding aids, which is pending in
(b). Nothing in this Agreement shall affect the processing by the Archives of any dictabelts, which are a collection of recordings of former President Nixon and other White House staff members dictating memoranda, correspondence and speech drafts, that are included in the materials that are subject to the Act.
13. Pursuant to Rule 315 of this Court, the plaintiffs and the defendant shall attempt to resolve the plaintiffs’ claim for attorneys’ fees and expenses and shall advise the Court no later than forty-five (45) days after this Court has entered the Order provided for in paragraph 14 below on whether they have been able to resolve the issue of attorneys’ fees and expenses. If no resolution has been reached, they will, at that time, recommend a schedule to the Court to resolve such claim.
14. The parties agree to the dissolution of the preliminary injunction entered on August 9, 1993, and dismissal with prejudice of this action, including all claims and cross-claims, except for the issue to be litigated as described in subparagraph 2(a) above, and any fees and expenses claimed pursuant to paragraph 13 above, by filing the attached Joint Motion to Vacate Preliminary Injunction and to Dismiss Claims, and the attached Consent Order. The parties agree that the
15. The terms of this Agreement may not be altered except with the written consent of the parties. Nothing in this Agreement constitutes an admission of liability or wrongdoing on the part of any party.
Executed this 12th day of April, 1996.
For Plaintiffs Stanley I. Kutler and Public Citizen:
For Defendant John W. Carlin:
For Defendant-Intervenors John H. Taylor and William E. Griffin:
44 U.S.C. 2104(a).
All persons using the facilities in the National Archives Building and the Presidential Libraries (referred to in this subpart as “NARA property”) are subject to the provisions of subpart A of this part. Persons using other NARA facilities are subject to the GSA regulations, Conduct on Federal Property, at 41 CFR subpart 101-20.3.
Children under the age of 16 will not be admitted to NARA facilities unless accompanied by an adult. Children under the age of 16 must be supervised by the accompanying adult at all times while on NARA property. The director of a NARA facility may authorize a lower age limit for admission of unaccompanied children to meet local circumstances, e.g., students who have been given permission to conduct research without adult supervision.
Persons in and on NARA property shall at all times comply with official NARA signs (e.g., restrictions on smoking or parking) and with the directions of the guards and NARA staff.
(a) The blocking of entrances, driveways, walks, loading platforms, or fire hydrants on NARA property is prohibited.
(b) Except in emergencies, members of the public may not park in spaces reserved for holders of NARA parking permits.
Dogs and other animals, except seeing eye dogs or other guide dogs, may not be brought upon NARA property without permission of the appropriate NARA official.
Packages, briefcases, and other containers brought into, while on, or being removed from the NARA property are subject to inspection.
Distribution or posting of handbills, flyers, pamphlets or other materials on bulletin boards or elsewhere is prohibited on NARA property, except in those spaces designated by NARA as public forums. This prohibition also does not apply to displays or notices distributed as part of authorized Government activities or bulletin boards used by employees to post personal notices.
(a)
(b)
(c)
(d)
(e)
(f)
Unless otherwise directed by the Archivist of the United States, visitors are admitted to the Exhibition Hall from 10 a.m. to 9 p.m. except during winter months (the day after Labor Day through March 31) when the Exhibition Hall is closed at 5:30 p.m. The building is closed on Christmas Day. Visitors are admitted only through the Constitution Avenue entrance. However, the guards are authorized to admit handicapped visitors to the Exhibition Hall through the Pennsylvania Avenue entrance and the Main Floor gates.
(a)
(b)
(c)
(d)
(e)
(1) Permission to film or photograph will not be granted to persons or groups wishing to promote commercial enterprises or commodities, or to persons or groups involved with political, sectarian, or similar activities.
(2) Filming or photographing may not impede ingress or egress of visitors to the National Archives Building.
(3) Permission to film or photograph the exterior of the National Archives Building does not constitute approval or sponsorship by NARA of the persons or groups involved, of their activities or views, or of the uses to which the works depicting the National Archives Building are put.
(4) Permission to film or photograph does not release the perons or groups involved from liability for injuries to persons or property that result from their activities on property to which the Archivist controls access.
(5) Persons and groups granted permission to film or photograph under this section must conduct their activities at all times in accordance with the regulations contained in subpart A of this part (§§ 1280.1 through 1280.8).
(a)
(i) Individuals covered by § 1280.16 of this chapter; and
(ii) Individuals who have permission to use privately-owned microfilming equipment to film archival records and donated historical materials under the provisions of §§ 1254.90 through 1254.102 of this chapter.
(2) This section does not apply to the following areas within the National Archives Building, which are covered by §§ 1280.22 through 1280.28 of this chapter:
(i) Conference rooms;
(ii) The National Archives Theater; and
(iii) The Archivist's Reception Room.
(b)
(c)
(1) Permission to film or photograph will not be granted to persons or groups wishing to promote commercial enterprises or commodities, or to persons or groups involved with political, sectarian, or similar activities.
(2) Persons and groups must be accompanied at all times by a member of the Public Affairs Staff when in the National Archives Building, Washington National Records Center, or Pickett Street Annex for other than research purposes (see part 1254 of this chapter for regulations on research use of records and donated historical materials.)
(3) The filming and photographing of documents shall take place only in areas designated by the NARA Public Affairs Staff. NARA may limit or prohibit use of artificial light in connection with the filming or photographing of documents.
(4) Interviews with NARA staff and researchers shall take place only in areas designated by the NARA Public Affairs Staff.
(5) Approved film and photography sessions will normally be limited to two hours.
(6) Persons and groups are subject at all times to the regulations set forth at subpart A of this part.
(7) Permission to film or photograph under this section does not constitute approval or sponsorship by NARA of the persons or groups involved, of their activities or views, or of the uses to which the works depicting the facilities are put.
(8) Permission to film or photograph under this section does not release the persons or groups involved from liability for injuries to persons or property that result from their activities on NARA property.
Filming or photographing documents or exhibits in the Exhibition Hall, the Pennsylvania Avenue lobby, or any other exhibit areas in the National Archives Building without supplemental artificial light sources, or tripods, or similar equipment is permitted for personal use at any time during regular hours. However, such activities may not take place on the steps or ramp leading to the Declaration of Independence, the Constitution, and the Bill of Rights.
Supplemental artificial lighting devices may be used with prior approval of the Public Affairs Officer (NXI) when filming documents in public areas of the National Archives Building subject to the following restrictions:
(a) Facsimiles shall be used in place of the Declaration of Independence, the Constitution, or the Bill of Rights if supplemental artificial lighting is to be used. When high intensity lighting is used, all other exhibited documents that fall within the boundaries of such illumination must be covered or replaced by facsimiles. If approval is granted for filming facsimiles or for filming other exhibited documents, a high intensity light source may not expose any exhibited item to more than
(b) Ladders, scaffolding, and tripods may be used before regular hours, but must be kept at a distance from documents greater than the height of the equipment.
(c) Auxiliary power units may be used. Existing lights will not be replaced by higher wattage or intensity lights. A NARA electrician must be pres-ent at all times whenever there is a change to the normal power supply. Organizations who film after regular hours will be billed for the electrician's time.
The National Archives Library is operated to meet the needs of researchers and NARA staff members. Other persons desiring to use library materials will generally be referred to public libraries and other possible sources of such materials.
The theater in the National Archives Building was designed and will be used primarily for furnishing reference services on the motion picture holdings of the National Archives. Conference rooms in the National Archives Building will be used for conferences and official meetings. When not required for such uses, conference rooms may be assigned to other organizations. Application for use of a room will be approved only if the purpose for which it is requested is educational or is related to the programs of the National Archives and Records Administration. The theater and conference rooms shall not be used to promote commercial enterprises or commodities, for political, sectarian, or similar purposes, or for meetings sponsored by profitmaking organizations. Use of the theater and conference rooms will not be authorized for any organization or group of individuals that engages in discriminatory practices proscribed in the Civil Rights Act of 1964 (42 U.S.C. 2000a, note).
(a) Applications for use of the theater and conference rooms shall be submitted in writing by the head of the requesting organization, or his duly authorized representative, at least 1 week in advance of the requested use. Applications for use shall be addressed to National Archives (NA), Washington, DC 20408, and shall include the following information:
(1) The name of the requesting organization;
(2) The date and the hours of contemplated use;
(3) A brief description of the programs;
(4) The number of persons expected to attend the meeting or performance (The capacity of the theater is 216 persons; conference rooms accommodate between 35 and 70 persons.);
(5) A statement regarding the intention to exhibit motion pictures or slides and, if so, the size (35mm or 16mm) of the film or slides, and whether the film to be shown is on nitrate or safety base; and
(6) Samples of any literature, folders, or posters to be distributed or exhibited at the meeting or performance.
(b) No program will be permitted to continue beyond 10 p.m.
(c) Applications for use on Saturdays, Sundays, holidays, or at times when the building is closed will be considered if fully justified.
(d) No admission fee will be charged, no indirect assessment will be made for admission, and no collection will be taken except as specifically authorized by the Archivist of the United States for special nonprofit-making events
(e) The serving or consumption of food or beverages within the theater is prohibited. Food or beverages may be served in the conference rooms if approved in advance.
(f) Smoking within the theater and conference rooms is prohibited. Smoking is allowed only in designated smoking areas.
(g) If the projection of motion pictures or slides is a part of the program, operators will be furnished by the National Archives and Records Administration on a reimbursable basis.
(h) Posting of any material about the premises is subject to prior approval.
(i) All persons attending meetings or performances will be required to go directly to the theater, which is on the fifth floor, or to the assigned conference room. No one will be admitted to the parts of the building that are closed to the public.
The Archivist's Reception Room is primarily intended for meetings and other functions of NARA. The Archivist may sponsor, co-sponsor or, if the room is not scheduled for use by NARA, authorize the use of the room by other Federal agencies for official government functions, or by private individuals and organizations. Such use by private individuals and groups must be for the benefit of or in connection with the archival and records activities administered by the National Archives and Records Administration and must be consistent with the public perception of the National Archives as a research and cultural institution. The National Archives Trust Fund Board refurbished the Archivist's Reception Room from private gifts and donations. In order to maintain this Room in its present condition, as well as to cover the cost of additional cleaning, guard and other required services, the use of this Room by private individuals and organizations requires a donation to the National Archives Trust Fund. Federal agencies using the room for official government functions shall reimburse NARA only for the cost of additional guard and NARA staff services. The Archivist's Reception Room shall not be used to promote commercial enterprises or products or for political, sectarian, or similar purposes. Use of the Room will not be authorized for any organization or group that engages in discriminatory practices proscribed by the Civil Rights Act of 1964, as amended.
(a) Applications for use of the Archivist's Reception Room shall be submitted in writing by the private individual or by the head of the requesting organization or the duly authorized representative of the organization, normally 30 days in advance. Applications for use shall be submitted to the Assistant Archivist for Public Programs (NE), National Archives and Records Administration, Washington, DC 20408 and shall include the following:
(1) The name of the requesting organization or individual;
(2) The date and hours of contemplated use;
(3) A description of the purpose, anticipated number of attendees, and the name of the individual designated to serve as host and responsible official for the event;
(4) Whether audiovisual services are required (these must be provided by NARA on a reimbursible basis);
(5) Samples of any literature, folders, or posters to be distributed or exhibited.
(b) A donation to the National Archives Trust Fund to cover the costs involved in the maintenance and use of the Room is needed. Further information may be obtained from the Assistant Archivist for Public Programs.
(c) The Room is available from 8:00 a.m. until 9:30 p.m., Monday through Friday, and from 9:00 a.m. until 4:30
(d) Those using the Room must obtain approval from NARA before distributing or displaying any item and must not misrepresent their identity to the public nor conduct any activities in a misleading or fraudulent manner. If any notice or advertisement is to mention the National Archives or incorporate its seal, the approval of the Archivist of the United States is required.
(e) Those using the Room must provide persons as needed to register guests, distribute approved literature, name tags, or similar material.
(f) NARA must approve in advance the use of a caterer who will bring beverages, food, or equipment into the National Archives Building. NARA must approve any equipment or decorations to be used and any entertainment to occur in the National Archives Building.
(g) No Government property shall be destroyed, displaced, or damaged by the user. The user must take prompt action to replace, return, restore, repair or repay NARA for any damage caused to Government property during the use of NARA facilities.
(a) Unless otherwise directed by the library director, the hours of admission to museums of the libraries are as follows:
(1) Monday through Saturday, 9 a.m. to 5 p.m., including Federal legal holidays.
(2) Sunday, 2 p.m. to 5 p.m. (10 a.m. to 5 p.m. from May 16 to September 15), including Federal legal holidays.
(3) Museums will be closed on Thanksgiving, Christmas, and New Year's days.
(b) Visitors to the museums of the libraries may be required to check all parcels and luggage at designated places.
(c) Eating and smoking are prohibited in the museums of the libraries and in other library areas except where designated by the library director.
(a) Presidential library auditoriums and other public spaces in the library buildings and the library grounds are intended primarily for the use of the library in carrying out its programs. These areas may also be used by other organizations for lectures, seminars, meetings, and similar activities when these activities are sponsored, cosponsored, or authorized by the Library to further the library's interests, and when such activities will not interfere with the normal operation of the library. Any activities sponsored, cosponsored, or authorized by the library must be related to the mission and programs of the library and must be consistent with the public perception of the library as a research and cultural institution. Application for such use shall be made in writing to the library director (see § 1253.3 of this chapter for the address).
(b) Use of the auditoriums and other public spaces will not be authorized for any profitmaking, commercial advertising and sales, sectarian, or similar purpose or for any use inconsistent with those authorized in paragraph (a) of this section.
(c) No admission fee will be charged except by the library, no indirect assessment fees will be made for admission, and no collections will be taken. The library director may assess additional charges to reimburse the Government for expenses incurred as a result of the use by groups of library facilities.
Library directors may establish appropriate supplemental rules governing
The book collections of Presidential libraries are available to researchers needing the unique resources of such libraries and to NARA staff members. Other persons desiring to use the book collections will generally be referred to public libraries and other possible sources of such materials.
(a) Visitors are permitted to take photographs in Presidential libraries and adjacent buildings open to the public, subject to restrictions set forth in paragraph (c) of this section.
(b) Photographs for news, advertising, or commercial purpose may be taken only after the Presidential library director approves the request.
(c) Artificial light devices shall not be used anywhere in a Presidential library where such use may cause damage to documents. Persons desiring to use photolighting devices shall request special permission from the director of the Presidential library concerned and shall follow procedures prescribed in § 1280.14(c).
Conference rooms in Federal Records Centers and National Archives Field Branches will be used for official meetings and for conferences sponsored by NARA. When not required for such use, assignments for other purposes during normal working hours may be made. Applications for such use will be approved only if the purpose for which it is requested is educational or is related to NARA programs. Applications for such use shall be made to the Federal Records Center Director or the National Archives Field Branch Director (see § 1253.6 of this chapter for the address).
Use of the conference rooms will not be authorized for any profitmaking, political, sectarian, or similar purpose or for any organization or group that engages in discriminatory practices proscribed in the Civil Rights Act of 1964 (42 U.S.C. 2000a, note).
44 U.S.C. 2104(a).
This part sets forth policies and procedures concerning the exhibition of materials at the National Archives Building.
(a) Documents, paintings, or other objects belonging to private individuals or organizations normally will not be accepted for display at the National Archives Building except as part of a NARA-produced exhibit.
(b) NARA may accept for temporary special exhibit at the National Archives Building privately-owned documents or other objects under the following conditions:
(1) The material to be displayed relates to the institutional history of the National Archives and Records Administration or its predecessor organizations, the National Archives Establishment and the National Archives and Records Service;
(2) Exhibition space is available in the building that the NARA Office of Public Programs and the Document Conservation Branch judge to be appropriate in terms of security, light level,
(3) NARA has resources (such as exhibit and security staff) available to produce the special exhibit.
(c) The Assistant Archivist for Public Programs (NE), in conjunction with the NARA General Counsel when appropriate, shall review all offers to display privately-owned material and shall negotiate the terms of exhibition for offers that can be accepted. The lender shall provide evidence of title to and authenticity of the item(s) to be displayed before any loan agreement is executed.
(d) The Assistant Archivist shall inform the offeror of NARA's decision within 60 days.
44 U.S.C. 2107.
(a) An
(b) An
(1) All records as defined in Section 3(2) of the JFK Act;
(2) All records collected by or segregated by all Federal, state, and local government agencies in conjunction with any investigation or analysis of or inquiry into the assassination of President Kennedy (for example, any intra-agency investigation or analysis of or inquiry into the assassination; any interagency communication regarding the assassination; any request by the House Select Committee on Assassinations to collect documents and other materials; or any inter- or intra-agency collection or segregation of documents and other materials);
(3) Other records or groups of records listed in the Notice of Assassination Record Designation, as described in § 1400.8 of this chapter.
The term
(a) All documents used by government offices and agencies during their declassification review of assassination records as well as all other documents, indices, and other material (including but not limited to those that disclose cryptonyms, code names, or other identifiers that appear in assassination records) that the Assassination Records Review Board (Review Board) has a reasonable basis to believe may constitute an assassination record or would assist in the identification, evaluation or interpretation of an assassination record. The Review Board will identify in writing those records and other materials it intends to seek under this section.
(b) All training manuals, instructional materials, and guidelines created or used by the agencies in furtherance of their review of assassination records.
(c) All records, lists, and documents describing the procedure by which the agencies identified or selected assassination records for review.
(d) Organizational charts of government agencies.
(e) Records necessary and sufficient to describe the agency's:
(1) Records policies and schedules;
(2) Filing systems and organization;
(3) Storage facilities and locations;
(4) Indexing symbols, marks, codes, instructions, guidelines, methods, and procedures;
(5) Search methods and procedures used in the performance of the agencies’ duties under the JFK Act; and
(6) Reclassification to a higher level, transfer, destruction, or other information (
(f) Any other record that does not fall within the scope of assassination record as described in § 1400.1, but which has the potential to enhance, enrich, and broaden the historical record of the assassination.
Assassination records and additional records and information may be located at, or under the control of, without limitation:
(a) Agencies, offices, and entities of the executing, legislative, and judicial branches of the Federal Government;
(b) Agencies, offices, and entities of the executive, legislative, and judicial branches of state and local governments;
(c) Record repositories and archives of Federal, state, and local governments, including presidential libraries;
(d) Record repositories and archives of universities, libraries, historical societies, and other similar organizations;
(e) Individuals who possess such records by virtue of service with a government agency, office, or entity;
(f) Persons, including individuals and corporations, who have obtained such records from sources identified in paragraphs (a) through (e) of this section;
(g) Persons, including individuals and corporations, who have themselves created or have obtained such records from sources other than those identified in paragraphs (a) through (e) of this section;
(h) Federal, state, and local courts where such records are being held under seal; or
(i) Foreign governments.
The term
(a) papers, maps, and other documentary material;
(b) photographs;
(c) motion pictures;
(d) sound and video recordings;
(e) machine readable information in any form; and
(f) artifacts.
An assassination record shall be released in its entirety except for portions specifically postponed pursuant to the grounds for postponement of public disclosure of records established in § 2107.6 of the JFK Act, and no portion of any assassination record shall be withheld from public disclosure solely on grounds of non-relevance unless, in the Review Board's sole discretion, release of part of a record is sufficient to comply with the intent and purposes of the JFK Act.
(a) For purposes of determining whether originals or copies of assassination records will be made part of the President John F. Kennedy Assassination Records Collection (JFK Assassination Records Collection) established under the JFK Act, the following shall apply:
(1) In the case of papers, maps, and other documentary materials, the Review Board may determine that record copies of government records, either the signed original, original production or a reproduction that has been treated as the official record maintained to chronicle government functions or activities, may be placed in the JFK Assassination Records Collection;
(2) In the case of other papers, maps, and other documentary material, the Review Board may determine that a true and accurate copy of a record in lieu of the original may be placed in the JFK Assassination Records Collection;
(3) In the case of photographs, the original negative, whenever available (otherwise, the earliest generation print that is a true and accurate copy), may be placed in the JFK Assassination Records Collection;
(4) In the case of motion pictures, the camera original, whenever available (otherwise, the earliest generation print that is a true and accurate copy), may be placed in the JFK Assassination Records Collection;
(5) In the case of sound and video recordings, the original recording, whenever available (otherwise, the earliest
(6) In the case of machine-readable information, a true and accurate copy of the original (duplicating all information contained in the original and in a format that permits retrieval of the information), may be placed in the JFK Assassination Records Collection; and
(7) In the case of artifacts, the original objects themselves may be placed in the JFK Assassination Records Collection.
(b) To the extent records from foreign governments are included in the JFK Assassination Records Collection, copies of the original records shall be sufficient for inclusion in the collection.
(c) In cases where a copy, as defined in paragraph (a) of this section, is authorized by the Review Board to be included in the JFK Assassination Records Collection, the Review Board may require that a copy be certified if, in its discretion, it determines a certification to be necessary to ensure the integrity of the JFK Assassination Records Collection. In cases where an original, as defined in paragraph (a) of this section, is required for inclusion in the JFK Assassination Records Collection, the Review Board may, at its discretion, accept the best available copy. In such cases that records included in the JFK Assassination Records Collection, whether originals or copies, contain illegible portions, such records shall have attached thereto a certified transcription of the illegible language to the extent practicable.
(d) For purposes of implementing the JFK Act, the term
(e) Nothing in this section shall be interpreted to suggest that additional copies of any assassination records contained in the JFK Assassination Records Collection are not also assassination records that, at the Review Board's discretion, may also be placed in the JFK Assassination Records Collection.
(f) Nothing in this section shall be interpreted to prevent or to preclude copies of any electronic assassination records from being reformatted electronically in order to conform to different hardward and/or software requirements of audiovisual or machine readable formats if such is the professional judgment of the National Archives and Records Administration.
(a) A government agency, office, or entity includes, for purposes of interpreting and implementing the JFK Act, all current, past, and former departments, agencies, offices, divisions, foreign offices, bureaus, and deliberative bodies of any Federal, state, or local government and includes all inter- or intra-agency working groups, committees, and meetings that possess or created records relating to the assassination of President John F. Kennedy.
(b) The inclusion of artifacts in the scope of the term assassination record is understood to apply solely to the JFK Assassination Records Collection and to implement fully the terms of the JFK Act and has no direct or indirect bearing on the interpretation or implementation of any other statute or regulation.
(c) Whenever artifacts are included in the JFK Assassination Records Collection, it shall be sufficient to comply with the JFK Act if the public is provided access to photographs, drawings, or similar materials depicting the artifacts. Additional display of or examination by the public of artifacts in the JFK Assassination Records Collection shall occur under the terms and conditions established by the National Archives and Records Administration to ensure their preservation and protection for posterity.
(d) The terms and, or, any, all, and the plural and singular forms of nouns shall be understood in their broadest and most inclusive sense and shall not be understood to be terms of limitation.
(e) Unless the Review Board in its sole discretion directs otherwise, records that are identified with respect to a particular person shall include all records ralating to that person that
(f) Unless the Review Board in its sole discretion directs otherwise, records that are identified by the Review Board with respect to a particular operation or program shall include all records, pertaining to that program by any other name, pseudonym, codeword, symbol, number, or cryptonym.
(a) A Notice of Assassination Record Designation (NARD) shall be the mechanism for the Review Board to announce publicly its determination that a record or group of records meets the definition of assassination records.
(b) Notice of all NARDs will be published in the
(c) In determining to designate such records as assassination records, the Review Board must determine that the record or group of record will more likely than not enhance, enrich, and broaden the historical record of the assassination.
5 U.S.C. 552b; 44 U.S.C. 2107.
(a) This part implements the provisions of the Government in the Sunshine Act (5 U.S.C. 552b). These procedures apply to meetings of the Review Board. The Review Board may waive the provisions set forth in this Part to the extent authorized by law.
(b) Requests for all documents other than the transcripts, recordings, and minutes described in 1405.8 shall be governed by Review Board regulations pursuant to the Freedom of Information Act (5 U.S.C. 552).
As used in this part:
(1) Notation voting or similar consideration of business, whether by circulation of material to the Members individually in writing or by a polling of the Members individually by telephone.
(2) Action by three or more Members to:
(i) Open or to close a meeting or to release or to withhold information pursuant to § 1405.5;
(ii) Set an agenda for a proposed meeting;
(iii) Call a meeting on less than seven days’ notice as permitted by § 1405.6(b); or
(iv) Change the subject matter or the determinations to open or to close a publicly announced meeting under § 1405.7(b).
(3) A session attended by three or more Members for which the purpose is to receive briefings from the Review Board's staff or expert consultants,
(4) A session attended by three or more Members for which the purpose is to receive informational briefings from representatives of government offices discussing classified or otherwise restricted information in accordance with the provisions of the JFK Act, provided that Members of the Review Board do not engage in deliberations at such sessions that determine or result in the joint conduct or disposition of official Review Board business on such matters.
(5) A gathering of three or more Members for the purpose of holding informal preliminary discussions or exchanges of views, but that does not effectively predetermine official Review Board action.
Any meetings of the Review Board, as defined in § 1504.2, shall be conducted in accordance with this part. Except as provided in § 1405.4, the Review Board's meetings, or portions thereof, shall be open to public observation.
A meeting may be closed when the Review Board properly determines that an open meeting would disclose information that may be withheld under the criteria enumerated below. Similarly, information that otherwise would be required to be disclosed under §§ 1405.5, 1405.6, and 1405.7 may also be withheld under these criteria. All records of closed meetings shall, however, be disclosed at a future date consistent with the terms and requirements of the JFK Act. Except in a case where the Review Board finds that the public interest requires otherwise, the criteria for closing meetings are whether information disclosed at such meetings is likely to:
(a) Disclose matters that are:
(1) Specifically authorized under criteria established by the Executive Order to be kept secret in the interests of national defense or foreign policy; and
(2) In fact properly classified pursuant to such Executive order;
(b) Relate solely to the internal personnel rules and practices of the Review Board;
(c) Disclose matters specifically exempted from disclosure by statute (other than 5 U.S.C. 552), provided that such statute:
(1) Requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue; or
(2) Establishes particular criteria for withholding or refers to particular types of matters to be withheld.
(d) Discloses trade secrets and commercial or financial information obtained from a person and is privileged or confidential;
(e) Involves accusing any person of a crime, or formally censuring any person;
(f) Discloses information of a personal nature where disclosure would constitute a clearly unwarranted invasion of personal privacy;
(g) Discloses investigatory records compiled for law enforcement purposes, or information which, if written, would be contained in such records, but only to the extent that the production of such records or information would:
(1) Interfere with enforcement proceedings;
(2) Deprive a person of a right to a fair trial or an impartial adjudication;
(3) Constitute an unwarranted invasion to personal privacy;
(4) Disclose the identity of a confidential source and, in the case of a record compiled by a criminal law enforcement authority in the course of a criminal investigation, or by an agency
(5) Disclose investigative techniques and procedures; or
(6) Endanger the life or physical safety of law enforcement personnel;
(h) Specifically concern the Review Board's issuance of a subpoena, or the Review Board's participation in a civil action or proceeding, an action in a foreign court or international tribunal, or an arbitration, or the initiation, conduct, or disposition by the Review Board of a particular case of formal agency adjudication pursuant to the procedures in 5 U.S.C. 554 or otherwise involving a determination on the record after opportunity for a hearing; or
(i) Disclose other information for which the Sunshine Act provides an exemption to the open meeting requirements of the Act.
(a) A majority of all Members may vote to close a meeting or withhold information pertaining to that meeting. A separate vote shall be taken with respect to each action under § 1405.4. A majority of the Review Board may act by taking a single vote with respect to a series of meetings, a portion or portions of which are proposed to be closed to the public, or with respect to any information concerning such series of meetings, so long as each meeting in such series involves the same particular matters and is scheduled to be held no more than thirty days after the initial meeting in such series. Each Member's vote under the paragraph shall be recorded and no proxies shall be permitted.
(b) Any person whose interests may be directly affected if a portion of a meeting is open may request the Review Board to close that portion of the meeting on the grounds referred to in § 1405.4 (e), (f), or (g). Requests, with reasons in support thereof, should be submitted to the Office of the General Counsel, Assassination Records Review Board, 600 E Street, NW., 2nd Floor, Washington, DC 20530. On the motion of any Member, the Review Board shall determine by recorded vote whether to grant the request.
(c) Within one working day of any vote taken pursuant to this section, the Review Board shall make publicly available a written copy of such vote reflecting the vote of each Member on the question. If a portion of a meeting is to be closed to the public, the Review Board shall make available a full written explanation of its action closing the meeting (or portion thereof) and a list of all persons expected to attend the meeting and their affiliation.
(d) For each closed meeting, the General Counsel shall publicly certify that, in his or her opinion, the meeting may be closed to the public and shall state each relevant exemptive provision. A copy of such certification shall be available for public inspection.
(e) For each closed meeting, the Presiding Officer shall issue a statement setting forth the time, place, and persons present. A copy of such statement shall be available for public inspection.
(f) For each closed meeting, with the exception of a meeting closed pursuant to § 1405.4(h), the Review Board shall maintain a complete transcript or electronic recording adequate to record fully the proceedings of each meeting. For meetings or portions thereof that are closed pursuant to 1405.4(h), the Review Board may maintain a set of minutes in lieu of such transcript or recording. Such minutes shall fully and clearly describe all matters discussed and shall provide a full and accurate summary of any actions taken, and the reasons therefor, including a description of each of the views expressed on any item and the record of any roll call vote. The records of closed meetings, in addition to all other records of the Review Board, shall be included as permanent records in the JFK Collection at the National Archives as provided by the JFK Act.
(a) For each meeting, the Review Board shall make public announcement, at least one week before the meeting, of the:
(1) Time of the meeting;
(2) Place of the meeting;
(3) Subject matter of the meeting;
(4) Whether the meeting is to be open or closed; and
(5) The name and business telephone number of the official designated by the Review Board to respond to requests for information about the meeting.
(b) The one week advance notice required by paragraph (a) of this section may be reduced only if:
(1) A majority of all Members determines by recorded vote that Review Board business requires that such meeting be scheduled in less than seven days; and
(2) The public announcement required by paragraph (a) of this section is made at the earliest practicable time.
(a) After there has been a public announcement of a meeting, the time or place of such meeting may be changed only if the Review Board publicly announces such change at the earliest practicable time. Members need not approve such change by recorded vote.
(b) After there has been a public announcement of a meeting, the subject matter of such meeting, or the determination of the Review Board to open or to close a meeting or a portion thereof to the public, may be changed only when:
(1) A majority of all Members determines, by recorded vote, the Review Board business so requires and that no earlier announcement of the change was possible; and
(2) The Review Board publicly announces such change and the vote of each Member thereof at the earliest practicable time.
In accordance with the provisions of the JFK Act, the Review Board shall retain the transcript, electronic recording, or minutes of the discussion of any item on the agenda or of any testimony received at a closed meeting for inclusion as a permanent record in the JFK Collection at the National Archives once the work of the Review Board is completed. The public shall have access to such records consistent with the provisions of the JFK Act which, according to the understanding of the Review Board, supersedes the Sunshine Act and FOIA. Copies of any nonexempt transcript or minutes, or transaction of such recordings disclosing the identity of each speaker, shall be furnished to any person at the actual cost of transcript or duplication unless otherwise provided by the terms of the JFK Act. If at some later time the Review Board determines that there is no further justification for withholding a portion of a transcript, electronic recording, or minutes or other item of information for the public which had been previously withheld, such portion or information shall be made publicly available.
If any provision of this part of the application of such provision to any person or circumstance, is held invalid, the reminder of this part of the application of such provision to persons or circumstances other than those as to which it is held invalid, shall not be affected thereby.
5 U.S.C. 552; 44 U.S.C. 2107.
This part contains the Review Board's regulations implementing the Freedom of Information Act, 5 U.S.C. 552.
(a)
(1) Publicly available books, periodicals, films, sound or video recordings, photographs, or other publications that are owned or copyrighted by nonfederal sources that the Review Board acquires and uses for reference and research purposes;
(2) Records owned by another Federal agency that the Review Board temporarily holds for the purpose of conducting its review under the President John F. Kennedy Assassination Records Collection Act of 1992 (JFK Act) (FOIA requests for such documents should be directed to the originating agency);
(3) Records delivered to the Review Board for transfer to the JFK Collection at the National Archives and Records Administration (NARA).
(b)
(c)
(d)
(a) A Public Reading Room will be maintained at the Review Board headquarters and will be open between 10 a.m. and 4:30 p.m., Monday through Friday, except on Federal holidays. Documents may be obtained in person from the Public Reading Room.
(b) The Public Reading Room records will include the following (if and when such records are created):
(1) The Review Board's rules and regulations;
(2) Statements of policy adopted by the Review Board;
(3) Transcripts of public hearings;
(4) Review Board orders, decisions, notices, and other formal actions;
(5) Copies of all unclassified filings, certifications, pleadings, Review Board records, briefs, orders, judgments, decrees, and mandates in court proceedings to which the Review Board is a party and the correspondence with the courts or clerks of court;
(6) Unclassified reports to Congress in which the Review Board's operations during a past fiscal year are described;
(7) Administrative staff manuals and instructions to staff to the extent that such manuals or instructions affect a member of the public; and
(8) Indices of the documents identified in this section, but not including drafts thereof.
The Review Board will make all Review Board records available for inspection and copying, except that it may exempt from release those portions of:
(a) Review Board records specifically authorized under criteria established by an Executive Order to be kept secret in the interest of national defense or foreign policy, and that are in fact properly classified pursuant to such Executive Order;
(b) Review Board records related solely to the internal personnel rules and practices of the Review Board;
(c) Review Board records specifically exempted from disclosure by statute (other than 5 U.S.C. 552), provided that such statute:
(1) Requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or
(2) Establishes particular criteria for withholding or refers to particular types of matters to be withheld;
(d) Trade secrets and commercial or financial information obtained from a person and privileged or confidential;
(e) Inter-agency or intra-agency memoranda or letters which would not be available by law to a party other than an agency in litigation with the agency;
(f) Personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy;
(g) Records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information:
(1) Could reasonably be expected to interfere with enforcement proceedings;
(2) Would deprive a person of a right to a fair trial or an impartial adjudication;
(3) Could reasonably be expected to constitute an unwarranted invasion of personal privacy;
(4) Could reasonably be expected to disclose the identify of a confidential source, including a state, local, or foreign agency or authority or any private institution which furnished information on a confidential basis, and, in the case of a record of information compiled by a criminal law enforcement authority in the course of a criminal investigation or by an agency conducting a lawful national security intelligence investigation, information furnished by a confidential source;
(5) Would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law; or
(6) Could reasonably be expected to endanger the life or physical safety of any individual
(h) Contained in or related to examination, operating, or condition reports prepared by, on behalf of, or for the use of an agency responsible for the regulation or supervision of financial institutions; or
(i) Geological and geophysical information and data, including maps, concerning wells.
(a) Upon the request of any person, the Review Board shall make available for public inspection and copying any reasonably described Review Board record in the possession and control of the Review Board, but not available through the Public Reading Room, subject to the provisions of this part.
(b) A person may request access to Review Board records that are not available through the Public Reading Room by using the following procedures:
(1) The request must be in writing and must reasonably describe the Review Board records requested to enable Review Board personnel to locate them with a reasonable amount of effort. A request for all Review Board records falling within a reasonably specific and well-defined category shall be regarded as conforming to the statutory requirement that Review Board records be reasonably described. Where possible, specific information such as dates or titles that may help identify the Review Board records should be supplied by the requester, including the names and titles of Review Board personnel who may have been contacted regarding the request prior to the submission of the written request.
(2) The request should be addressed to the Designated FOIA Officer, and clearly marked “Freedom of Information Act Request.” The address for such requests is: Designated FOIA Officer, Assassination Records Review Board, 600 E Street, N.W., 2nd Floor, Washington, D.C. 20530. Requests must be either mailed or hand-delivered to the above address. Hand-delivered requests will be received between 8:30 a.m. and 5 p.m., Monday through Friday, except on Federal holidays. For purposes of calculating the time for response to the request under § 1410.40, the request shall not be deemed to have been received until it is in the possession of the Designated FOIA Officer or
(3) The request must include:
(i) A statement by the requester of a willingness to pay the fee applicable under § 1410.35(b), or to pay that fee not to exceed a specific amount, or
(ii) A request for waiver or reduction of fees.
(c) Requests for Review Board records containing information received from another agency, or records prepared jointly by the Review Board and other agencies, and that do not fall under category § 1410.10(a)(2) above, shall be treated as requests for Review Board records. The Designated FOIA Officer shall, however, coordinate with the appropriate official of the other agency. The notice of determination to the requester, in the event part or all of the record is recommended for denial by the other agency, shall cite the other agency denying officials as well as the Designated FOIA Officer if a denial by the Review Board is also involved.
(d) If a request does not reasonably describe the Review Board records sought, as provided in paragraph (b) of this section, the Review Board response shall specify the reasons why the request failed to meet those requirements and shall offer the requester the opportunity to confer with knowledgeable Review Board personnel in an attempt to restate the request. If additional information is needed from the requester to render the agency records reasonably described, any restated request submitted by the requester shall be treated as an initial request for purpose of calculating the time for response under § 1410.40.
(e) The Review Board will not be required to create new agency records, compile lists of selected items from its files, or create new statistical or other data.
(f) The Review Board staff may also respond to oral, unmarked, or generally stated requests for information and documents even though those requests do not comply with the provisions of this rule.
(a) The Review Board shall collect fees for record requests made under § 1410.25 as provided in § 1410.35(b), unless the Review Board grants a written request for a waiver or reduction of fees. The Designated FOIA Officer shall make a determination on a fee waiver or reduction request within five working days of the request coming into his or her possession. If the determination is made that the written request for a waiver or reduction of fees does not meet the requirements of this section, the Designated FOIA Officer shall inform the requester that the request for waiver or reduction of fees is being denied and set forth the appeal rights under § 1410.45.
(b) A person requesting the Review Board to waive or reduce search, review, or duplication fees shall:
(1) Describe the purpose for which the requester intends to use the requested information;
(2) Explain the extent to which the requester will extract and analyze the substantive content of the Review Board record;
(3) Describe the nature of the specific activity or research in which the Review Board records will be used and the specific qualification the requester possesses to utilize information for the intended use in such a way that it will contribute to public understanding of the operations or activities of the Government;
(4) Describe the likely impact of disclosure of the requested records on the public's understanding of the subject as compared to the level of understanding of the subject existing prior to disclosure;
(5) Describe the size and nature public to whose understanding a contribution will be made;
(6) Describe the intended means of dissemination to the general public;
(7) Indicate if public access to information will be provided free of charge or provided for an access or publication fee; and
(8) Describe any commercial or private interest the requester or any other party has in the Review Board records sought.
(c) The Review Board shall waive or reduce fees, without further specific information from the requester if, from information provided with the request for Review Board records made under § 1410.25, it can determine that it is likely to contribute significantly to public understanding of the operations or activities of the Government and is not primarily in the commercial interest of the requester.
(d) In making a determination regarding a request for a waiver or reduction of fees, the Review Board shall consider the following factors:
(1) Whether disclosure is likely to contribute significantly to public understanding of Government operations or activities, and
(2) Whether the requester has a commercial interest and, if so, the extent of any interests and how they would be furthered by the disclosure of the requested Review Board records.
(a)
(b)
(1)
(2)
(i) If the Review Board determines that the documents are requested for commercial use, it shall charge the average salary rate, including benefits, for Review Board employees, for document search time and for document review time, in addition to the costs of duplication as established in the schedule of fees in paragraph (b)(6) of this section.
(ii) If documents are not sought for commercial use and the request is made by an educational or noncommercial scientific institution, whose purpose is scholarly or scientific research, or a representative of the news media, the Review Board's charges shall be limited to the direct costs of duplication as established in the schedule of fees in paragraph (b)(6) of this section. There shall be no charge for the first 100 pages of duplication.
(iii) For a request not described in paragraphs (b)(2)(i) or (b)(2)(ii) of this section the Review Board shall charge the average salary rate for Review Board employees (including benefits), for document search time, and the direct costs of duplication as established in the schedule of fees in paragraph (b)(6) of this section. There shall be no charge for document review time and the first 100 pages of reproduction and the first two hours of search time will be furnished without charge.
(iv) If the Review Board is asked by a requester to send Review Board records by special methods such as express mail, it may do so, provided that the requester pays for the express delivery service.
(v) The Review Board may assess charges for time spent searching, even if it fails to locate the records, or if Review Board records located are determined to be exempt from disclosure.
(vi) Whenever the Review Board estimates that fees are likely to exceed $25, it shall notify the requester of the estimated costs, unless the requester has indicated in advance a willingness to pay fees as high as those anticipated. Such a notice shall offer the requester an opportunity to confer with the Review Board personnel to reformulate the request to meet the requester's needs at a lower cost.
(3)
(4)
(i) Payment of fees must be by check or money order made payable to the Assassination Records Review Board.
(ii)
(A) If the Review Board estimates or determines that allowable charges that a requester may be required to pay are likely to exceed $250, the Review Board shall notify such requester of the estimated cost and either require satisfactory assurance of full payment where the requester has a history of prompt payment of fees, or require advance payment of the charges if a requester has no payment history.
(B) If a requester has previously failed to pay a fee in a timely fashion, the Review Board shall require the requester to pay the full amount owed plus any applicable interest, and to make an advance payment of the full amount of the estimated fee before the Review Board will begin to process a new request or pending request from that requester.
(C) When the Review Board requires advance payment under this paragraph, the administrative time limits prescribed in § 1410.40(b) will begin only after the Review Board has received the fee payments.
(5)
(6)
(i)
(ii)
(iii)
(iv)
(a) Where a request complies with § 1410.25 as to specificity and statement of willingness to pay or request for fee waiver or reduction, the Designated FOIA Officer shall acknowledge receipt of the request and commence processing of the request. The Designated FOIA Officer shall prepare a written response:
(1) Granting the request;
(2) Denying the request;
(3) Granting or denying it in part;
(4) Stating that the request has been referred to another agency under § 1410.25; or
(5) Informing the requester that responsive Review Board records cannot be located or do not exist.
(b) Action pursuant to this section to provide access to requested Review Board records shall be taken within 10 working days of receipt of a request for Review Board records, as defined in § 1410.25, except that where unusual circumstances require an extension of time before a decision on a request can be reached and the person requesting Review Board records is promptly informed in writing by the Designated FOIA Officer of the reason for such extension and the date on which a determination is expected to be made, the Designated
(c) For purposes of this section and § 1410.45, the term “unusual circumstances” may include but is not limited to the following:
(1) The need to search, collect, and appropriately examine a voluminous amount of separate and distinct Review Board records that are demanded in a single request; or
(2) The need for consultation, which shall be conducted with all practicable speed, with another agency having a substantial interest in the determination of the request or among two or more components of the agency having substantial subject-matter interest therein.
(a)(1) A person whose request for access to Review Board records or request for fee waiver or reduction is denied in whole or in part may appeal that determination to the Executive Director within 30 days of the determination. Appeals filed pursuant to this section must be in writing, directed to the Executive Director at the address stated above, and clearly marked “Freedom of Information Act Appeal.” Such an appeal received by the Review Board that is not properly addressed and marked will be so addressed and marked by Review Board personnel as soon as it is properly identified and then will be forwarded to the Executive Director. Appeals taken pursuant to this paragraph will be considered to be received upon actual receipt by the Executive Director.
(2) The Executive Director shall make a determination with respect to any appeal within 20 working days after the receipt of such appeal. If, on appeal, the denial of the request for Review Board records or fee reduction is in whole or in part upheld, the Executive Director shall notify the person making such request of the provisions for judicial review of that determination.
(b) In unusual circumstances, as defined in § 1410.40(c), the time limits prescribed for deciding an appeal pursuant to this section may be extended by up to 10 working days by the Executive Director, who will send written notice to the requester setting forth the reasons for such extension and the date on which a determination or appeal is expected to be dispatched.
The Review Board may at any time be in possession of classified records received from other Federal agencies. Except with respect to those documents identified in § 1410.10(a)(2), the Review Board shall refer requests under § 1410.25 for such records or information to the other agency without making an independent determination as to the releasability of such documents. The Review Board shall refer requests for classified records in a manner consistent with Executive Order 12958 of April 17, 1995, or other such law as may apply.
5 U.S.C. 552a; 44 U.S.C. 2107.
This part contains the Review Board's regulations implementing the Privacy Act of 1974, 5 U.S.C. 552a.
In addition to the definitions provided in the Privacy Act, the following terms are defined as follows:
Any individual who wishes to know whether a system of records contains a record pertaining to him or her may file a request in person or in writing. Written requests should be directed to the Privacy Act Officer, Assassination Records Review Board, 600 E Street, NW, Washington, DC 20530, and should be clearly marked “Privacy Act Request.”
(a)
(1) Full name, address, and telephone number of requester;
(2) Proof of identification, which should be a copy of one of the following: Valid driver's license, valid passport, or other current identification which contains both an address and picture of the requester;
(3) The system of records in which the desired information is contained; and
(4) At the requester's option, authorization for expenses (see § 1415.50 below).
(b)
(a) The Privacy Act Officer will process all requests under both the Freedom of Information Act and the Privacy Act.
(b) The Privacy Act Officer will respond to the request within ten working days of its receipt by the Privacy Act Officer. If the Review Board needs additional time to respond, the Privacy Act Officer will provide the requester an explanation as to why the Review Board requires an extension.
(c) Following the initial call from the requester, the Privacy Act Officer will determine: whether the records identified by the requester exist, and whether they are subject to any exemption under § 1415.55 below. If the records exist and are not subject to exemption, the Privacy Act Officer will call the requester and arrange an appointment at a mutually agreeable time when the records can be examined. At the appointment, the requester will be asked to present identification as stated in § 1415.20(a)(2). The requester may be accompanied by one individual of his or her own choosing, and should state during this call whether or not a second individual will be present at the appointment. In the event that a second individual accompanies the requester, the requester will be asked to provide the Review Board with written consent to disclose his or her records to the second individual.
(d) If a request is received for information compiled in reasonable anticipation of a civil action or proceeding, the Privacy Act Officer will determine whether to disclose the information and will inform the requester whether this information is subject to release under the Privacy Act (see 5 U.S.C. 552a(d)(5)).
When access to records has been denied in whole or in part by the Privacy Act Officer, the requester may file an appeal in writing. This appeal should be directed to the Executive Director, Assassination Records Review Board,
(a)
(b)
(a) When amendment of records has been denied by the Privacy Act Officer, the requester may file an appeal in writing. This appeal should be directed to the Executive Director, Assassination Records Review Board, 600 E Street, NW., 2nd Floor, Washington, DC 20530. The appeal letter must specify the record subject to the appeal, and state why the denial of amendment by the Privacy Act Officer is erroneous. The Executive Director or his representative will respond to such appeals within thirty working days (subject to extension by the Executive Director for good cause) after the appeal letter has been received in the Review Board's offices.
(b) The appeal determination, if adverse to the requester in any respect, will:
(1) Explain the basis for denying amendment of the specified records;
(2) Inform the requester that he or she may file a concise statement setting forth reasons for disagreeing with the Executive Director's determination; and
(3) Inform the requester of his or her right to pursue a judicial remedy under 5 U.S.C. 552a(g)(1)(A).
Records subject to the Privacy Act that are requested by a person other than the individual to whom they pertain will not be made available except in the following circumstances:
(a) Release is required under the Freedom of Information Act in accordance with the Review Board's FOIA regulations, 36 CFR part 1410;
(b) Pursuant to a written request by, or with the prior written consent of, the individual to whom the record pertains; or
(c) Release is authorized by 5 U.S.C. 552a(b)(1) or (3) through (11).
A fee will not be charged for search or review of requested records, or for amendment of records. When a request is made for copies of records, a copying fee will be charged at the same rate established for FOIA requests. See 36 CFR 1410.35. However, the first 100 pages will be free of charge.
(a) The systems of records entitled “Personal Security Files” and “Subject File” contain some information specifically authorized under criteria established by an Executive Order to be kept secret in the interest of national defense or foreign policy and which is properly classified pursuant to such Executive Order. Therefore, to the extent that information in these systems falls within the coverage of exemption (k)(1) of the Privacy Act, 5 U.S.C. 552a(k)(1), these systems of records are eligible for exemption from the requirements of the following subsections of the Privacy Act: subsections (c)(3), (d), (e)(1), (e)(4)(G), (H) and (I) and (f). Disclosure of information properly classified pursuant to an Executive Order would jeopardize the national defense or foreign policy of the United States.
(b) The systems of records entitled “Agency Contacts,” “Investigations,” “Public Contacts,” and “Subject File” consist, in part, of investigatory material compiled by the Review Board for law enforcement purposes other than material within the scope of subsection (j)(2) of 5 U.S.C. 552a. Provided however, that if any individual is denied any right, privilege or benefit that he would otherwise be entitled by Federal law, or for which he would otherwise be eligible, as a result of the maintenance of such material, such material shall be provided to such individual, except to the extent that the disclosure of such material would reveal the identity of a source who furnished information to the Government under an express promise that the identity of the source would be held in confidence, or prior to January 1, 1975, under an implied promise that the identity of the source would be held in confidence. Therefore, to the extent that information in these systems falls within the coverage of exemption (k)(2) of the Privacy Act, 5 U.S.C. 552a(k)(2), these systems of records are eligible for exemption from the requirements of the following subsections of the Privacy Act, for the reasons stated below.
(1) From subsection (c)(3) because release of the agency's accounting of certain disclosures to an individual who is the subject of an investigation could reveal the nature and scope of the investigation and could result in the altering or destruction of evidence, improper influencing of witnesses, and other evasive actions that could impede or compromise the investigation.
(2) From subsection (d) because release of investigative records to an individual who is the subject of an investigation could interfere with pending or prospective law enforcement proceedings, constitute an unwarranted invasion of the personal privacy of third parties, reveal the identity of confidential sources, or reveal sensitive investigative techniques and procedures.
(3) From subsections (d)(2), (3), and (4) because amendment or correction of investigative records could interfere with pending or prospective law enforcement proceedings, or could impose an impossible administrative and investigative burden by requiring the Review Board continuously to retrograde its investigations attempting to resolve questions of accuracy, relevance, timeliness, and completeness.
(4) From subsection (e)(1), because it is often impossible to determine relevance or necessity of information in the early stages of an investigation. The value of such information is a question of judgment and timing; what appears relevant and necessary when collected may ultimately be evaluated and viewed as irrelevant and unnecessary to an investigation.
(5) From subsection (e)(4)(G) and (H), because the Review Board is claiming an exemption for subsections (d) (Access to Records) and (f) (Agency Rules) of the Act, these subsections are inapplicable to the extent that these systems of records are exempted from subsections (d) and (f).
(6) From subsection (f) because procedures for notice to an individual pursuant to subsection (f)(1) as to the existence of records pertaining to the person dealing with an actual or potential investigation must be exempted because such notice to an individual would be detrimental to the successful conduct of a pending or future investigation. In addition, mere notice of an investigation could inform the subject or others that their activities either are, or may become, the subject of an
(c) The systems of records entitled “Employment Applications” and “Personal Security Files” consist in part of investigatory material compiled by the Review Board for the purpose of determining suitability, eligibility, or qualifications for Federal civilian employment or Federal contracts, the release of which would reveal the identity of a source who furnished information to the Government under an express promise that the identity of the source would be held in confidence. Therefore, to the extent that information in these systems falls within the coverage of Exemption (k)(5) of the Privacy Act, 5 U.S.C. 552a(k)(5), these systems of records are eligible for exemption from the requirements of subsection (d)(1), because release would reveal the identity of a source who furnished information to the Government under an express promise of confidentiality. Revealing the identity of a confidential source could impede future cooperation by sources, and could result in harassment or harm to such sources.
A list of CFR titles, subtitles, chapters, subchapters and parts and an alphabetical list of agencies publishing in the CFR are included in the CFR Index and Finding Aids volume to the Code of Federal Regulations which is published separately and revised annually.
Material Approved for Incorporation by Reference
Table of CFR Titles and Chapters
Alphabetical List of Agencies Appearing in the CFR
Redesignation Tables
List of CFR Sections Affected
The Director of the Federal Register has approved under 5 U.S.C. 552(a) and 1 CFR Part 51 the incorporation by reference of the following publications. This list contains only those incorporations by reference effective as of the revision date of this volume. Incorporations by reference found within a regulation are effective upon the effective date of that regulation. For more information on incorporation by reference, see the preliminary pages of this volume.
At 55 FR 27428, July 2, 1990, a document was published restructuring part 1228 of chapter XII. For the convenience of the user, the following Derivation Table shows the relationship of the new regulations to the old regulations.
At 56 FR 959, January 10, 1991, the following sections in part 1152 were redesignated as set forth in the table below:
All changes in this volume of the Code of Federal Regulations which were made by documents published in the
For the period before January 1, 1986, see the “List of CFR Sections Affected, 1949-1963, 1964-1972, and 1973-1985” published in seven separate volumes.